IRION, J.
This appeal involves California's Occupational Safety and Health Act (Cal/OSHA). (Lab. Code, § 6300 et seq.; Cal. Code Regs., tit. 8, § 330 et seq.)
This appeal concerns a May 19, 2008,
On the date of the accident, the physical structure was almost complete — more than 30 stories with windows already installed and the Hilton signage being elevated to the top of the structure. Sherwood's two employees on the jobsite, Richard Brown and Stanley Solis, were in the process of finalizing the installation of the gas lines to the four boilers in the mechanical room on the fifth floor (5th floor MR). Jerry Barron, who worked for another subcontractor, was in the 5th floor MR when, immediately after "a couple [of] plumbers came in," a ball of fire rolled at him, knocking him off a ladder. As the results of an investigation would later reveal, there had been a major explosion in the 5th floor MR, resulting in significant damage to the building and many workers being injured, including Barron, Brown and Solis.
Later in the day on May 19, the Division's San Diego district manager assigned Division employee Kasthuri Ramesh to investigate the explosion. Within hours, he and two other Division investigators arrived at the site, which by then was being controlled by the fire department. Most of the workers had been sent home or to the hospital, and due to the nature of the incident no one, including the Division's representatives, was allowed in the building that afternoon. The Division's personnel talked briefly with some of the workers and met with the Hensel and Sherwood representatives responsible for safety. Ramesh and his associates returned to the site each of the next two or three days to investigate.
On the morning of May 20, Ramesh met with Bob Bridges, whom the Hensel representative introduced as Sherwood's site foreman.
Miguel San Martin, who was employed by an electrical contractor, was on the jobsite on the day of the accident. His general responsibilities included the supervision of the installation of any equipment that needed to be energized in order to ensure the equipment would receive the required voltage. On May 19, about an hour before the explosion, a foreman for Sherwood called San Martin to advise him that Sherwood was ready, and needed him, to energize (i.e., provide electricity to) four boilers in the 5th floor MR. By that time, there was other equipment in the 5th floor MR that already was receiving electricity — e.g., a transformer, a distribution board, three or four panel boards and three pumps. At the evidentiary hearing, San Martin explained both (1) that some of this other equipment, in particular the "booster," has "relays," which can create sparks, and (2) that if any energized equipment produced a spark that was exposed to flammable gas, the gas could ignite.
Knowing that Sherwood employees had been purging gas at the time of the explosion and the fire department had stated the explosion was caused by gas, Ramesh proceeded to determine what the lower explosive limit (LEL) of the 5th floor MR would be for natural gas.
In order to calculate the amount of natural gas released into the 5th floor MR prior to the explosion, Ramesh obtained SDG&E gas meter readings for the building, a portion of which were admitted into evidence as an exhibit at the evidentiary hearing. According to the SDG&E witness who testified at the hearing, these readings reflected the amount of natural gas being released at the entire hotel jobsite, beginning on the date the meter was installed on April 3 through the date of the explosion on May 19.
Ramesh determined that "almost all" of the 4,000 cubic feet of gas was released into the 5th floor MR. He reasoned: First, all other gas usage at the property was "[v]ery minimal" (as confirmed by the SDG&E representative and the gas meter printout); second, the 5th floor MR "was the only place where there was a gas explosion"; and finally, gas from the 5th floor MR could not have been vented to the outside atmosphere, because the uncontradicted testimony was that there were no such vents. Bridges further supported Ramesh's determination that the gas had been released in the 5th floor MR, when he (Bridges) testified that upon arriving at the jobsite the morning after the explosion, May 20, the gas valve on the pipe that supplies the gas to the 5th floor MR was open. In this regard, Ramesh explained that the accident could have been prevented had the workers ensured proper ventilation in the 5th floor MR so that the natural gas could have been vented outside instead of accumulating inside the room.
Based on its investigation of the May 19 incident at the Hilton construction site, the Division issued Sherwood four citations on November 18. Only citation 3 and citation 4 are at issue in this appeal.
Citation 3 proposed a penalty of $27,000 and alleged a serious accident-related violation, as follows:
Citation 3 referenced the following applicable regulation and applicable engineering standard of the American National Standards Institute (ANSI)/American Society of Mechanical Engineers (ASME):
Citation 4 proposed a penalty of $27,000 and alleged a serious accident-related violation, as follows: "On 05/19/08, the employer, Sherwood Mechanical Inc., was allowing natural gas to escape from piping in the mechanical room, the employer failed to test for the concentration of gas in the room. [Sic.]"
Sherwood appealed the Division's citations, and an ALJ presided over an evidentiary hearing in August 2011. The Division presented its case and rested; Sherwood did not put on a defense, instead arguing only that the Division did not meet its burden.
On its own motion, the Board ordered reconsideration of the ALJ's decision, directing the issue on reconsideration to be "[w]hether the record contains evidence sufficient to sustain the violations alleged in Citations 3 and 4." Following briefing, in June 2012 the Board issued its decision, in which it reversed the ALJ (thereby reinstating citations 3 and 4), found sufficient evidence to sustain the violations (and their classification as both "serious" and "accident-related") in citations 3 and 4 and assessed an $18,000 penalty for citation 3 only.
Sherwood filed the underlying mandamus action (Code Civ. Proc., § 1094.5), challenging the Board's decision after reconsideration. The parties briefed and argued the matter, after which the superior court denied Sherwood's petition, ruling that the Board's decision was neither clearly erroneous, unreasonable nor unsupported by substantial evidence. (§ 6629, subds. (c), (d).) The court entered judgment, the Board gave notice of its entry and Sherwood timely appealed. (Code Civ. Proc., § 904.1, subd. (a)(1); Cal. Rules of Court, rule 8.104(a)(1)(A).)
"Our function on appeal is the same as that of the trial court in ruling on the petition for the writ [of mandate]. We must determine whether based on the entire record the Board's decision is supported by substantial evidence and whether it is reasonable." (Lusardi Construction Co. v. California Occupational Safety & Health Appeals Bd. (1991) 1 Cal.App.4th 639, 643 (Lusardi Construction); see § 6629, subds. (c), (d).) In determining the sufficiency of the evidence, as an appellate court we "may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to [the respondent] must be accepted as true and conflicting evidence must be disregarded[,] `. . . indulging every legitimate inference which may be drawn from the evidence in [the respondent's] favor. . . .'" (Campbell v. General Motors Corp. (1982) 32 Cal.3d 112, 118 (Campbell).) The testimony of a single witness, including that of a party, may be sufficient (In re Marriage of Mix (1975) 14 Cal.3d 604, 614; Evid. Code, § 411); whereas even uncontradicted evidence in favor of an appellant does not establish the fact for which the evidence was submitted (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 890 (Foreman).) The issue is not whether there is evidence in the record to support a different finding, but whether there is evidence that, if believed, would support the trier of fact's findings. (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 872-873 (Bowers).) Finally, the substantial evidence standard of review applies to both express and implied findings of fact (Ermoian v. Desert Hospital (2007) 152 Cal.App.4th 475, 501) and requires consideration of the evidence in the entire record, not just the evidence recited in the underlying decision (Gaehwiler v. Occupational Safety & Health Appeals Bd. (1983) 141 Cal.App.3d 1041, 1045, fn. 2).
If an appellant challenges a finding for insufficiency of the evidence to support it, the appellant is required to set forth in its opening brief all the material evidence on that issue or finding, not merely what other evidence might have been favorable to its position. (Foreman, supra, 3 Cal.3d at p. 881.) "In furtherance of its burden, the appellant has the duty to fairly summarize all of the facts in the light most favorable to the judgment." (Boeken v. Philip Morris, Inc. (2005) 127 Cal.App.4th 1640, 1658; see Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 410 [before appellate court considers a lack of substantial evidence argument, appellant must first present "a fair summary of the evidence bearing on the challenged finding, particularly including evidence that arguably supports it"].) Unless this is done, the asserted error is deemed waived or forfeited. (Foreman, at p. 881.) In sum, unless the "party who challenges the sufficiency of the evidence to support a finding . . . set[s] forth, discuss[es], and analyze[s] all the evidence on that point, both favorable and unfavorable" (Doe v. Roman Catholic Archbishop of Cashel & Emly (2009) 177 Cal.App.4th 209, 218, italics added), the reviewing court may deem the substantial evidence contention to have been waived or forfeited (ibid.; Foreman, at p. 881).
Finally, to the extent there is a challenge to the Board's interpretation of a regulation it enforces, it is a question of law that we review de novo. (Lusardi Construction, supra, 1 Cal.App.4th at p. 643.)
Sherwood's lead argument is that the Board improperly relied on unreliable hearsay from Bridges in finding that Sherwood employees were purging gas into the 5th floor MR without venting it. Sherwood acknowledges that the hearsay objection was overruled on the basis that any statement from Bridges was "an `authorized admission'" of Sherwood. Then, without an argument or citation to legal authority, Sherwood continues: "Even if technically admissible, the hearsay statement is not strong credible evidence. . . ." Accordingly, we consider any potential hearsay argument related to Bridges forfeited
Sherwood asks us to "look at the overall reliability and trustworthiness" of Bridges's hearsay statements, criticizing the depth of some, the lack of foundation of some, and the conclusory nature of some, suggesting instead what other evidence the Division could or should have been presented. However, those types of objections are for the consideration of the ALJ or the Board when trying the facts — either as objections to admissibility prior to the testimony or as argument going to the weight at the close of the evidence — not for judicial review in an appeal, where we are limited to a determination of whether the decision is reasonable and supported by substantial evidence.
Sherwood next focuses on the evidence related to Barron's statements regarding the presence of "`a couple [of] plumbers' "in the 5th floor MR just prior to "`a ball of fire coming up at him.'" These statements were presented at the hearing by Barron's boss, Tony Anderson. Barron communicated this information to Anderson during a telephone conversation, within 10 minutes of the explosion, in which Barron called Anderson to ask Anderson to take him to the hospital. Once again, Sherwood does not present any objection to the admission of the hearsay statements, but only to weight that should be accorded them since he (not Anderson) was in the 5th floor MR at the time of the explosion. Again, however, we will not reweigh the evidence (Campbell, supra, 32 Cal.3d at p. 118), and we will not consider what other evidence was or could have been presented (Bowers, supra, 150 Cal.App.3d at pp. 872-873).
Next, Sherwood argues that there is no exception to the hearsay rule that allowed the Board to rely on the hearsay statement from San Martin, the employee of the electrical contractor who testified that "the foreman for Sherwood" on the job on May 19 called him to request that he energize four boilers in the 5th floor MR. As the Board correctly counters, however, Board proceedings are not strictly subject to the hearsay rules. (§ 6612; tit. 8, § 376.2.)
In closing, Sherwood argues that, given the lack of "strong, credible and direct evidence from witnesses with personal knowledge," the finding that Sherwood vented 4,000 cubic feet of gas into the 5th floor MR was not supported by substantial evidence. Unfortunately, this type of criticism is not helpful in assessing whether the finding is supported by substantial evidence. Sherwood's failure to have fairly presented all the evidence and inferences that support the Board's decision compels us to deem Sherwood to have forfeited its substantial evidence argument related to this finding. (Foreman, supra, 3 Cal.3d at p. 881.) Were we to consider the argument on its merits, however, the record contains the requisite substantial evidence: Bridges's uncontradicted testimony was that that Brown and Solis were in the 5th floor MR purging the gas from the pipes on May 19; Ramesh's and the SDG&E representative's uncontradicted testimony and exhibit established that on May 19 between 1:00 p.m. and 2:00 p.m. 4,000 cubic feet of gas was released at the jobsite; and Ramesh's uncontradicted testimony was that "almost all" of the 4,000 cubic feet of gas was released into the 5th floor MR; and Bridges's uncontradicted testimony was that on the morning of May 20, when people were once again allowed into the building, the gas valve on the pipe that supplies gas to the 5th floor MR was open.
Citation 3 charges Sherwood with failing to "install natural gas piping in accordance with good engineering practice, or in a manner which provided reasonable safety for employees." Sherwood argues that, without expert testimony, the record does not contain substantial evidence to establish that the opening of a valve on an existing pipe to purge gas without the opening of a vent to the outside qualifies as installing a pipe. We disagree.
Once again, Sherwood has forfeited this issue. First, Sherwood presents no argument or authority in support of its statement that expert testimony was necessary to establish this fact.
Nevertheless, the record does contain substantial evidence that Sherwood was in the process of installing piping. Clearing the gas pipe of air and whatever else had built up inside the pipe before putting the system into operation (i.e., purging the gas) is but one step of the process in the installation of the piping, a prerequisite to delivering operable boilers
According to Ramesh, ASME is an association that establishes standards for mechanical equipment installation, including specifically "gas pipe installation work." (Italics added.) Thus, the record contains substantial evidence that the purging of the gas pipes on May 19 was part of the installation of the boilers.
Accordingly Sherwood has not established reversible error related to the finding it was in the process of installing piping.
Sherwood contends the record does not contain substantial evidence to support the Board's finding that the violation in citation 3 was "serious." At the time of the explosion, former section 6432 provided that, for Cal/OSHA purposes, a "`serious violation'" existed "if there is a substantial probability that death or serious physical harm could result from a violation." (Former § 6432, subd. (a); Stats. 1999, ch. 615, § 10, p. 4342; see tit. 8, § 334, subd. (c)(1) [rebuttable presumption of "`serious violation' . . . if the [D]ivision demonstrates that there is a realistic possibility that death or serious physical harm could result from the actual hazard created by the violation"].) As used in former section 6432, "`substantial probability' refers not to the probability that an accident or exposure will occur as a result of the violation, but rather to the probability that death or serious physical harm will result assuming an accident or exposure occurs as a result of the violation." (Id., subd. (c).)
Thus, at the hearing, the Division was required to prove that a serious injury was more likely than not to occur as a result of the accident. (Benicia Foundry & Iron Works, Inc. (Cal. OSHA, Apr. 24, 2003, No. 00-R2D2-2976) 2003 CA OSHA App.Bd. Lexis 43, *16.) Now, on appeal, we must determine whether substantial evidence supports the Board's finding that a serious injury was more likely than not to result from the explosion. We disagree with Sherwood's suggestion that the only evidence the Division presented was the existence of serious injuries rather than the substantial probability of death or serious harm following the accident of May 19.
The Division introduced into evidence 11 full-page color photographs depicting the extensive property damage resulting from the gas explosion. Within the 5th floor MR, damage included severely warped and disfigured metal panels and struts, as well as burns to piping insulation. Outside the room, the force of the explosion is further substantiated by large pieces of wall, wire mesh, and other building materials being thrown long distances onto the ground and adjacent buildings. Windows were completely blown out, including windows on adjacent floors, and the large Hilton overhead signage in the process of being installed on the roof was thrown onto the adjacent parking structure. Indeed, an entire corner of the building on the fifth, sixth and seventh floors was completely blown away. This is substantial evidence that someone exposed to the gas explosion in the 5th floor MR on May 19 would more likely than not suffer serious injury.
In addition, where a Division witness provides an opinion, based on his or her experience in the field of safety, that an accident would more likely than not result in serious injury — and the testimony is uncontroverted and neither impeached nor called into question under cross-examination — the Division has met its burden of establishing the classification that a violation was properly classified "serious." (Forklift Sales of Sacramento, Inc. (Cal. OSHA, July 7, 2011, No. 05-R2D1-3477) 2011 CA OSHA App.Bd. Lexis 102, *12.) Here, Ramesh testified that, in his experience investigating accidents, serious injury would more likely than not result from the explosion on May 19 due to the resulting heat and displacement of objects — including but not limited to burns, broken bones, serious cuts, and head injuries from objects being hurled through the air. Also, Michele Boswell (one of the Division investigators who accompanied Ramesh on May 20) testified, based on her past investigations dealing with burn injuries, that the heat that caused the type of burn marks on property evidenced in the photos would lead to second- and third-degree burns when subjected to human skin; that skin grafts would be required for such second- and third-degree burns since tissue cannot regenerate; and that scarring would result. Notably, no evidence contradicted these witnesses' experience or the testimony based on their experience.
Accordingly, the photographs and uncontradicted testimony described ante are sufficiently substantial evidence to support the Board's finding that a worker who was exposed to the May 19 natural gas explosion while in the 5th floor MR would more likely than not suffer serious physical harm. Stated differently, the record contains substantial evidence to support the Board's finding that the violation in citation 3 was "serious."
Citation 4 is based on title 8, section 5416, which provides in relevant part:
The description of the violation is: "On 05/19/08, the employer, Sherwood Mechanical Inc., was allowing natural gas to escape from piping in the mechanical room, the employer failed to test for the concentration of gas in the room. [Sic.]" (Italics added.)
Relying on the lack of direct evidence of the amount of natural gas in the 5th floor MR and whether the spike in the release of the gas was before or after the explosion, Sherwood argues that the violation in citation 4 is not supported by substantial evidence. In so doing, however, Sherwood reads the violation too narrowly. By itself, "[f]ailure to test is violative of [title 8,] section 5416[, subdivision ](c)." (Cal Energy-Board Decision, supra, 2010 CA OSHA App.Bd. Lexis 152 at p. *7.) "Specifically, the regulation requires [Sherwood] to conduct tests `to ascertain that the [lower explosive] limit is not exceeded,' before a source of ignition is introduced into the area." (Petrolite Corp. (Cal. OSHA, Mar. 3, 1998, No. 93-R2D3-2083) 1998 CA OSHA App.Bd. Lexis 7, *8-*9, italics added.)
Because Sherwood once again has not presented any evidence in support of the challenged finding, Sherwood has forfeited its substantial evidence argument related to this finding. (Foreman, supra, 3 Cal.3d at p. 881.) Were we to consider the argument on its merits, however, the record contains substantial uncontroverted evidence that Sherwood did not conduct tests or otherwise monitor for gas concentration levels: at the time when Sherwood employees were purging the gas in the 5th floor MR and a source of ignition was present, the employees had no gas detection devices, and the only means they had of detecting gas in the air was the sniff test — i.e., their sense of smell.
Accordingly, Sherwood did not meet its burden of establishing reversible error with regard to citation 4.
The judgment of the superior court is affirmed. The Board and the Division are each entitled to recover costs on appeal from Sherwood. (Cal. Rules of Court, rule 8.278(a).)
NARES, Acting P. J. and McDONALD, J., concurs.
Title 8, section 376.2 is entitled "Evidence Rules" and provides in part: "The hearing need not be conducted according to technical rules relating to evidence and witnesses. Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions. Hearsay evidence may be used for the purpose of supplementing or explaining other evidence but over timely objection shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions." (Italics added.)
