NOT TO BE PUBLISHED IN OFFICIAL REPORTS

OPINION

HOLLENHORST, J.

I. INTRODUCTION

Plaintiff Jorge Ortiz appeals from judgment in favor of defendants Jack Soll, Alhambra Reprographics, Inc., (Alhambra) Sandra D. Soll, and the Soll Family Trust in his personal injury action. Ortiz contends the trial court erred in ruling that a California Occupational Safety and Health Act of 1973 (Cal-OSHA; Lab. Code, § 6300 et. seq.) regulation (See Cal. Code Regs., tit. 8, § 3210, subd. (a) (hereafter, § 3210(a)) was not applicable and in refusing to give a proffered instruction on negligence per se based on that regulation. We find no error, and we affirm.

II. FACTS AND PROCEDURAL BACKGROUND

A. Procedural History

In December 2006, Ortiz sued defendants and others not parties to this appeal for personal injuries he suffered in a fall from a ceiling-level platform on premises owned and/or managed by defendants.

Before trial, defendants moved to exclude any evidence or argument concerning alleged violations of section 3210(a). Defendants argued that the platform from which Ortiz had fallen was not a work level or working area within the meaning of the regulation. The trial court granted defendants' motion without prejudice. Ortiz renewed the issue following the presentation of evidence, and the trial court again ruled that the evidence was inadmissible. The trial court also refused Ortiz's request for an instruction on negligence per se but instructed the jury on common law negligence and premises liability.

Following trial, the jury entered a special verdict in which they answered "no" to the first question on the form, which asked whether defendants had been negligent in the use or maintenance of the building. The trial court entered judgment in favor of defendants, and this appeal ensued.

B. Facts

Evidence at trial showed that defendants Jack Soll (Soll), Sandra Soll, and the Soll Family Trust purchased a building on Flower Road in Rancho Cucamonga (the building) in the mid-1980s. Soll was also then the owner and president of defendant Alhambra, a blueprint printing business. In 2006, Soll sold Alhambra but continued to own and manage the building. Alhambra continued to occupy the building under a lease from the Soll Family Trust; the lease required Alhambra to keep every part of the building in good order, condition, and repair.

The building was partitioned into two office suites. Soll had an additional office built in one of the suites and added dropped ceilings in a shop area; dropped ceilings in the office area had already been in place when defendants purchased the building. A wooden platform was built above the dropped ceiling; the platform covered only a portion of the space above the ceiling, and beyond the platform were acoustic ceiling panels.

Soll testified that Alhambra employees had used the elevated platform to store records, but no one worked there on a day-to-day basis. The platform had also been used when telephone and computer cables were run from a telephone room at one end of the building to other locations within the building. In addition, there were light fixtures, electrical outlets, heating and air conditioning equipment, and electrical conduit above the ceiling. Some of the conduit and ducting had been there when Soll purchased the building in 1986. A hole had been cut into a wall, apparently to allow access from one portion of the platform to another. The platform did not extend throughout the entire area, but ended without any guardrail or barrier. The floor surface of the elevated area, including the platform and the ceiling, appeared to be uniform and was the same dusty brown color. There were no fixed stairways or ladders leading to the platform.

Ortiz was an independent contractor who installed and repaired telecommunications equipment. In September 2006, a subtenant of Alhambra hired AT&T to install some telecommunications equipment in the building. AT&T retained National Service Direct, which in turn offered Ortiz the assignment. When Ortiz arrived at the building, Alhambra's receptionist showed him the plan room where he was to install the equipment and gave him a key to access the telephone room at the other end of the building. Another Alhambra employee provided him with a ladder to access the elevated platform.

Ortiz climbed up onto the platform and began pulling a cable across it. As he neared the location where he needed to run the cable through a conduit into the plan room, he stepped onto an acoustical ceiling panel, which gave way. Ortiz fell about nine feet to the floor below. He did not know how or why he fell. The light was sufficient to allow him to work without using a flashlight.

Ortiz's safety engineering expert, Morris Farkas, testified that he saw footprints in the dust on the platform, but he did not know if they had been made by anyone other than Ortiz and another person who had installed cable for defendants. Farkas did not know if any employees of Alhambra or other tenants of the building ever walked on the wood platform. Farkas testified that if the platform is "permanent and it is more than 30 inches above the floor or level below, it needs a guardrail."

Michael Murphy, an independent cable installer who testified as an expert witness for defendants, testified he had seen footprints on the platform as well as preexisting cables running throughout, which indicated to him others had performed similar cable installation work at the building.

John Keith Tyson testified as an expert witness for defendants. In Tyson's opinion, the platform was not a work platform, because there was nothing to indicate any work was performed in the attic, and the attic was dusty. Ducting, conduit, electrical wires, and communication cable are common in any attic space. Tyson testified that if the platform was a work space, a guardrail would have been required.

Employees of other tenants of the building testified the platform was not a work area.

Additional facts are set forth in the discussion of the issues to which they pertain.

III. DISCUSSION

A. Applicability of Cal-OSHA Regulation

Ortiz contends the trial court erred in ruling that section 3210(a) was not applicable.

1. Standard of Review

This appeal turns on the proper interpretation of a regulation, which is a matter of law subject to this court's independent review. (See Chambers v. Kay (2002) 29 Cal.4th 142, 148.)

2. Analysis

Section 3210 is part of the Cal-OSHA General Industry Safety Orders, the purpose of which is set forth in California Code of Regulations, title 8, section 3200: "To fulfill the expressed social public policy of the State of California set forth in Article XX, Section 21 of the Constitution, to make full provision for securing safety in places of employment, these General Industry Safety Orders are promulgated for the guidance of employers and employees alike. Compliance with these orders may not in itself prevent occupational injuries or diseases, but will, it is believed, provide a safe environment which is a fundamental prerequisite in controlling injuries. . . ." (Cal. Code Regs., tit. 8, § 3200.)

Section 3210(a) provides: "Guardrails shall be provided on all open sides of unenclosed elevated work locations, such as: roof openings, open and glazed sides of landings, balconies or porches, platforms, runways, ramps, or working levels more than 30 inches above the floor, ground, or other working areas of a building as defined in Section 3207 of the General Industry Safety Orders. . . ." Section 3207, in turn, defines "Working Level or Working Area" as "A platform, walkway, runway, floor or similar area fixed with reference to the hazard and used by employees in the course of their employment. This does not include ladders or portable or temporary means used for access, repair or maintenance, provided such means are removed immediately upon completion of the work." Exception 11 to section 3210(a) states that no guardrail need be installed at "[e]levated locations used infrequently by employees if the employees using them are protected by a fall restraint/fall arrest system used in accordance with the requirements in Article 24 of the Construction Safety Orders."

Cal-OSHA regulations "may be admitted to establish a standard or duty of care in all negligence and wrongful death actions, including third party actions." (Elsner v. Uveges (2004) 34 Cal.4th 915, 928.) (See also Pierson v. Holly Sugar Corp. (1951) 107 Cal.App.2d 298 (Pierson); Bragg v. Mobilhome Co. of Los Angeles (1956) 145 Cal.App.2d 326, 331 (Bragg).) In Pierson, the plaintiff, who was delivering merchandise at the defendant's premises, sustained injuries when the freight elevator on which he was riding dropped from the third floor to the ground floor. (Pierson. supra, at p. 300.) Following judgment for the plaintiff in his action for personal injuries, the defendant appealed, contending, among other things, that the trial court erred in instructing the jury as to certain orders and regulations of the Division of Industrial Safety and that violations of such orders was negligence per se. (Id. at p. 302.) The defendant argued that "the benefit of the safety orders and Labor Code provisions is restricted to a situation where an employer-employee relationship exists," and the plaintiff was not an employee of the defendant. The court rejected the argument, concluding that the safety orders and statutory provisions "were intended not only to protect employees of defendant corporation but also as safeguards for the public generally against injury and loss of life, . . ." and the jury instructions were therefore proper. (Ibid.)

In Bragg, the plaintiff was injured when he fell through a hole in the roof of a house under construction; the hole was concealed by a tarpaper covering, in violation of a construction safety order. (Bragg, supra, 145 Cal.App.2d at p. 329.) On appeal from judgment in favor of the plaintiff, the court rejected the defendants' argument that the plaintiff, who was an independent contractor, was excluded from the protection of the safety order. The court noted that the purpose of construction safety orders was to "provide for the safety of employees," and the definition of "employee" in Labor Code section 6305 "brings in all workmen who are required or directed by an employer to go to work or be in a place of employment," but "it is not to be understood as excluding workmen who may not precisely fit into the definition but are clearly of a class for whose protection the safety measures are required." (Bragg, supra, at p. 331.)

There was no dispute that the platform from which Ortiz fell was more than 30 inches above the floor and that it had an open side. The critical issue is thus whether the platform was a "work location" "working level[]" or "working area[]" within the meaning of section 3210(a), and more specifically, whether the platform was "used by employees in the course of their employment." (§ 3207.)

Soll testified at trial that when he was operating Alhambra, the platform had been used to store records: "Once a year we put up records, old records that we had. In the interim if during the year we needed to see a record, we would open up the tile and reach[] in and grab[] the box. They were all numbered by year." He further testified that employees "would not go physically up there. They would stand on a ladder and retrieve a box that I would need to check out if there was a bill in there that I had to have or an invoice, . . . ." As far as he knew, "[n]o employee ever stood up there." As best as he could recall, "all the boxes that we had were close enough to the ceiling where we could reach it."

Soll's testimony, therefore, showed that the platform was not a work area within the meaning of section 3210. Soll further testified that "A person might have walked up there to retrieve a record. But there was not a work area there where people would go work there at all times." And in his deposition, he testified that some of the records were far enough away that one "would have to get off the ladder and walk over along this wood surface in order to retrieve them." That additional testimony did not establish the platform was a work area, because it was merely speculative—Soll did not testify that any employee had ever in fact walked on the platform.

The fact that independent contractors such as cable installers might have used the platform does not bring the platform within the requirements of section 3210. We therefore conclude the trial court did not err in failing to instruct the jury with section 3210(a).

B. Instruction on Negligence Per Se

Ortiz contends the trial court erred in failing to instruct the jury on negligence per se based on defendants' violation of section 3210(a). Because we have rejected Ortiz's argument with regard to the applicability of section 3210(a), it necessarily follows that Ortiz's argument regarding the instruction on negligence per se must also fail.

IV. DISPOSITION

The judgment is affirmed. Parties to bear their own costs.

We concur:

RAMIREZ, P.J.

RICHLI, J.