HALLER, J.
Burtech Pipeline, Inc. (Burtech or Employer) appeals from a judgment entered after the trial court denied Burtech's petition for writ of administrative mandate challenging a workplace safety citation issued by real party in interest Department of Industrial Relations, Division of Occupational Safety and Health (the Division), and upheld in an administrative appeal heard by respondent California Occupational Safety and Health Appeals Board (the Board).
In this appeal, Burtech challenges the sufficiency of the evidence and findings supporting the Board's determination upholding the citation. By presenting an inadequate and one-sided summary of the evidence in its opening brief, Burtech has forfeited this challenge on appeal. And, even if not forfeited, we have independently reviewed the record and reject Burtech's appeal on the merits.
We affirm the judgment.
Burtech installs drainage and water pipes in excavations, which are sometimes also referred to as trenches or ditches.
The Division "shoulders primary responsibility for administering and enforcing the California Occupational Safety and Health Act of 1973 (Cal/OSHA or the Act), Labor Code section 6300 et seq. It does this through investigating workplaces and enforcing occupational safety and health standards. (Lab. Code, §§ 6309, 6313, 6314.) Many of these standards, commonly referred to as safety orders, are codified at title 8 of the California Code of Regulations."
The Board is "an independent adjudicatory agency responsible, among other matters, for resolving appeals from citations" issued by the Division. (Rick's Elec., supra, 80 Cal.App.4th at p. 1027; see Lab. Code, §§ 148, 6600.)
On February 26, 2013, the Division cited Burtech for a "serious" safety violation after a Division inspector observed a Burtech employee working in the bottom of an eight-foot-deep trench that was protected against cave-ins only in the upper four feet of the trench walls.
Subject to certain exceptions the parties agree do not apply here, section 1541.1(a)(1) requires an employer to protect against trench cave-ins by either modifying the slope of the trench walls (§ 1541.1, subd. (b) (hereafter § 1541.1(b)), or by reinforcing the trench walls with a "support, "shield," or "other protective system[]" (§ 1541.1, subd. (c) (hereafter § 1541.1(c)). It is undisputed that Burtech sought to comply with the second option by using a single aluminum hydraulic shoring device. This device looks like the letter "H," but with two horizontal cross-pieces. The horizontal pieces are cylindrical, and each is known as a "cylinder"; the vertical portions are flat, and each is known as a "rail." The cylinders exert horizontal pressure against the rails, which, in turn exert pressure on the trench walls to prevent a cave-in.
Section 1541.1(c) requires an employer using an aluminum hydraulic shoring device to deploy it in accordance with one of the following four design requirements: (1) "if manufacturer's tabulated data cannot be utilized, designs shall be in accordance with Appendix D" to section 1541.1; (2) using "manufacturer's tabulated data"; (3) "using other tabulated data"; or (4) "design by a registered professional engineer." (§ 1541.1(c)(1)-(4), capitalization omitted.) The safety order states these options in the disjunctive, and an employer need only comply with one of them. (§ 1541.1(c); see In the Matter of the Appeal of: Delta Excavating, Inc. (Cal-OSHA App.Bd., Aug. 10, 1999, No. 94-R1D5-2389) 1999 WL 607825 (Delta Excavating).)
The Division's citation asserted Burtech violated these design guidelines because only "the top half" of the eight-foot-deep trench was protected by the single shoring device, leaving "no protection from cave-in at the bottom four feet of the excavation." The citation noted the risks of cave-in were exacerbated by the fact the trench was "in the middle of the street where there was additional surcharge from passing vehicles." The citation concluded, "The employee in the trench was exposed to a serious engulfment hazard."
Burtech appealed the citation to the Board, which set the matter for an evidentiary hearing before an administrative law judge (ALJ). The Division called two witnesses (a Division inspector and a Burtech employee); Burtech called none.
Darcy Murphine was a compliance safety and health officer with the Division for 25 years, conducting safety inspections and enforcing safety orders. Before that, she worked in a similar capacity for the "Federal OSHA" for two years. In addition to extensive training regarding general workplace safety, Murphine "had about six different courses" specifically addressing excavation safety, covering topics such as "hazard evaluation of excavations and trenches," "use of protective systems," "soil testing and soils analyses," "contents of . . . safety orders," "case studies on excavation accidents," and excavation permit requirements.
On November 15, 2012, Murphine saw workers excavating a trench with a backhoe in a roadway in her residential neighborhood. When she saw workers at the excavation site the next day, she decided to conduct a "self-referral" or "drive-by" inspection to "see . . . if they were doing what they're supposed to do in terms of excavation safety." Murphine saw a Burtech truck at the jobsite, and was familiar with the company's work from conducting inspections in other parts of the city. Murphine observed an excavation or trench that measured approximately eight feet deep, five or six feet long, and three feet wide. Cars traveled on the road beside the excavation, and two Burtech employees were working in the area surrounding the trench.
A sound alerted Murphine to the presence of a worker inside the trench. She stepped closer, saw someone working in the bottom of the trench, and observed that "there was inadequate shoring." Murphine retrieved a camera from her truck and took pictures of the trench and surrounding area. The photos were admitted as exhibits at the hearing and are included in the appellate record.
Murphine observed that the trench was secured against cave-ins by a single aluminum hydraulic shoring device. This device was placed in the trench such that the top ends of the four-foot-long rails were at the top of the trench, and the bottom ends were about four feet above the bottom of the trench.
Murphine asked one of the men outside the trench "who was the competent person at the jobsite." The relevant safety order defines a "competent person" as "[o]ne who is capable of identifying existing and predictable hazards in the surroundings or working conditions which are unsanitary, hazardous, or dangerous to employees, and who has authorization to take prompt corrective measures to eliminate them." (§ 1504.) The man outside the trench pointed to the man inside the trench, Ramon Higuera, who was kneeling or crouching as he installed a cleanout pipe on an existing underground sewer drainage pipe.
Murphine told Higuera to get out of the trench, and he complied. She asked him whether he was the competent person, and he responded that he was. She asked if the "soil type" had been analyzed.
Murphine "asked [Higuera] why the trench wasn't fully shored. And he didn't have a response for that." She had been "able to get some information from him in English," but noticed that "he was having trouble with some of the language." Murphine noted she did not "speak enough Spanish to communicate fluently" with Higuera in that language.
Murphine asked Higuera if there was a foreman on the jobsite. Higuera indicated there was a foreman, but that he was not present at that moment. About 10 or 15 minutes later, foreman Bob Campbell, who had been driving from one worksite to another, arrived. Murphine introduced herself; explained what she had seen and why she had ordered Higuera out of the trench; and obtained Campbell's permission to continue the inspection. When Murphine asked Campbell about the soil type, he "agreed" with Murphine "that it was probably Type B."
Murphine ordered that an additional shoring device be installed in the bottom of the trench, and Campbell and his crew complied. With the second shore in place, Murphine considered the precautions "within the requirements" of safety order standards.
Murphine explained at the hearing why she concluded Burtech's initial shoring configuration failed to satisfy section 1541.1's requirements. She said the safety order requires that the trench "be fully shored from top to bottom." When a single shoring device "isn't long enough to reach all the way to the bottom of the trench," the order's design guidelines address how to "stack" multiple devices. She noted that manufacturer's tabulated data (Option (2) under section 1541.1(c)) have "differing requirements" for stacking. But Appendix D (Option (1) under section 1541.1(c)), which Murphine said "are guidelines for . . . the type of shoring that was used at the Burtech site," prohibits the shore's rails from being "more than two feet from the bottom of the trench." She added that the two-foot requirement is contained not only in Appendix D, but also, more broadly, in section 1541.1.
Finally, Murphine explained how the safety order promotes workplace safety: "The reason why the standard requires full shoring is to protect the employees that are down in the bottom of the excavation. [¶] . . . [¶] There's a possibility of death from catastrophic failure of the excavation." Murphine opined a competent person should have been aware of this risk and how to adequately guard against it. She further opined "a competent person's judgment at the jobsite" cannot "substitute for what the safety orders require."
Higuera testified he had worked for Burtech for about 16 years, performing a variety of functions. As a "piper," he installed pipes; as a competent person, he was trained in jobsite safety; and as a "leadman," he transmitted the foreman's directions to the work crew when the foreman was not present.
Higuera testified that when Murphine arrived at the jobsite he had been kneeling in the bottom of the trench, using a shovel to locate a clay pipe, and a power tool to trim it. He acknowledged only one shoring was in place, and that Murphine asked him to exit the trench. Higuera was not certain at the hearing whether Murphine directed him to install a second shoring, but he thought it was "possibl[e] she told them to install it." He testified there was a second shore onsite that had not yet been installed, and he "think[s] it was placed after the lady from OSHA came."
The ALJ affirmed the citation, finding that Burtech used an aluminum hydraulic shoring protective system that did not fulfill the requirements of section 1541.1. Citing the Board's precedent in Delta Excavating, which requires that the Division prove that an employer's shoring design fails to comply with any of the four design options available under section 1541.1(c), the ALJ inferred Burtech's noncompliance based on its acquiescence "when Murphine instructed Higuera to get out of the trench and to install spot bracing to the bottom of the trench."
Burtech petitioned the Board to reconsider the ALJ's decision. (See Lab. Code, § 6614, subd. (a) [authorizing an aggrieved party to seek reconsideration of a final order or decision of the Board or a hearing officer].) Burtech argued the Division had not met its burden of proving a prima facie safety violation, and that the ALJ's inference of noncompliance was unreasonable in light of the possibility that Higuera's silence was the result of a language barrier rather than an acknowledgment of noncompliance.
The Board, after independently reviewing and considering the entire evidentiary record, issued a "decision after reconsideration" (DAR) affirming the ALJ's decision.
The Board, in its DAR, made the following findings of fact regarding the citation:
The Board found that none of section 1541.1(a)(1)'s exceptions applied, and that Burtech had chosen to protect the trench with a shoring system under section 1541.1(c) (as opposed to a benching/sloping system under section 1541.1(b)). These findings are not at issue in this appeal.
After quoting section 1541.1(c)'s Options (1) and (2) (designs using Appendix D and manufacturer's tabulated data, respectively), the Board explained why it concluded Burtech had not satisfied this safety order:
In explaining why it did not address whether Burtech had complied with Options (3) or (4) (designs "using other tabulated data" and "by a registered professional engineer," respectively), the Board stated:
Burtech filed a petition for writ of administrative mandamus in the superior court, challenging the Board's DAR. (See Lab. Code, § 6627 ["Any person affected by an order or decision of the appeals board may . . . apply to the superior court . . . for a writ of mandate."].) Burtech argued the Board (1) "did not base its findings of fact on substantial evidence in the record," (2) "abused its discretion and issued an unreasonable decision by failing to justify its findings of fact and by failing to apply Board case law precedent in issuing its decision," and (3) "failed to state the evidence relied upon" as required by the Labor Code.
Burtech, the Board, and the Division briefed the matter. After hearing oral argument, the trial court denied the petition and entered judgment in favor of the Board and the Division. The court found the Board's determination was supported by "strong and compelling" evidence.
Burtech appeals.
"An appellant challenging the sufficiency of the evidence to support the judgment must cite the evidence in the record supporting the judgment and explain why such evidence is insufficient as a matter of law. [Citations.] An appellant who fails to cite and discuss the evidence supporting the judgment cannot demonstrate that such evidence is insufficient. The fact that there was substantial evidence in the record to support a contrary finding does not compel the conclusion that there was no substantial evidence to support the judgment. An appellant . . . who cites and discusses only evidence in her favor fails to demonstrate any error and waives the contention that the evidence is insufficient to support the judgment." (Rayii v. Gatica (2013) 218 Cal.App.4th 1402, 1408 (Rayii); see Gombiner v. Swartz (2008) 167 Cal.App.4th 1365, 1374 (Gombiner) ["When a party challenges on appeal the sufficiency of evidence, the party must discuss all the evidence supporting the court's ruling or the party waives the point."].)
Burtech's opening brief contains only a one-page summary of facts framed favorably to Burtech, not the judgment. For example, Burtech cites Higuera's testimony to support the assertion that "at no time was there any danger of the trench being unstable or unsafe." However, Burtech ignores Murphine's testimony to the contrary: "This [trench] wasn't" safe; rather, there was "a possibility of death from catastrophic failure of the excavation." And even though the Board in its respondent's brief argued that Burtech forfeited its challenge by failing to present all the relevant facts, Burtech offered no explanation in its reply brief for this deficiency.
Because Burtech has not fulfilled its appellate burden of presenting an adequate factual summary stated favorably to the judgment, Burtech has forfeited its challenge to the sufficiency of the evidence supporting the judgment. (See Rayii, supra, 218 Cal.App.4th at p. 1408; Gombiner, supra, 167 Cal.App.4th at p. 1374.)
Despite this forfeiture, we exercise our discretion to consider the merits and, for reasons we will explain, we affirm the judgment.
Under Board precedent, to establish that Burtech violated section 1541.1(a)(1), the Division bore the burden of establishing (1) which of the four design options set forth in section 1541.1(c) Burtech chose, and (2) that Burtech "did not comply with the requirements of that choice, or any of the other options." (Delta Excavating, supra, 1999 WL 607825 at p. *2, italics added; see Ghilotti Bros., supra, 2011 WL 3665366, at p. * 3 ["Where . . . a safety order established alternative means of compliance, . . . the Division must show which option the employer selected and that it did not comply with it or any of the alternatives in the safety order."]; In re Marine Terminals Corp. (Mar. 5, 2013, Cal-OSHA App.Bd., No. 08-R6D2-1920) 2013 WL 1496123 at p. *5 ["when safety order written in disjunctive, Division has burden to prove that employer did not comply with any of the listed options"].)
Burtech contends the record does not contain sufficient evidence to establish either of these two prongs. Burtech further contends the Board's findings in its DAR are insufficient to "bridge the analytic gap between the raw evidence and [the Board's] ultimate decision or order." (Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 515, 516-517 (Topanga).) We disagree.
On appeal from a trial court judgment on a petition for writ of administrative mandate challenging a Board determination, "`"[o]ur function on appeal is the same as that of the trial court in ruling on the petition for the writ. We must determine whether based on the entire record the Board's decision is supported by substantial evidence and whether it is reasonable. [Citations.] Where the decision involves the interpretation and application of existing regulations, we must determine whether the administrative agency applied the proper legal standard. [Citation.] Since the interpretation of a regulation is a question of law, while the administrative agency's interpretation is entitled to great weight, the ultimate resolution of the legal question rests with the courts. . . . An agency's expertise with regard to a statute or regulation it is charged with enforcing entitles its interpretation of the statute or regulation to be given great weight unless it is clearly erroneous or unauthorized. [Citations.] The Board is one of those agencies whose expertise we must respect. [Citation.]" [Citation.] However, "[a]n administrative agency cannot alter or enlarge the legislation, and an erroneous administrative construction does not govern the court's interpretation of the statute." [Citation.]'" (Overaa, supra, 147 Cal.App.4th at pp. 244-245.)
"`[T]he substantial evidence standard of review is generally considered the most difficult standard of review to meet.'" (Phillips v. Campbell (2016) 2 Cal.App.5th 844, 851.) "We view the evidence in a light most favorable to the Board's decision, drawing all reasonable inferences and resolving all conflicts in the evidence in favor of the decision." (Teichert Construction v. California Occupational Safety & Health Appeals Bd. (2006) 140 Cal.App.4th 883, 888; see Sully-Miller Contracting Co. v. California Occupational Safety & Health Appeals Bd. (2006) 138 Cal.App.4th 684, 692; Lab. Code, § 6630 ["The findings and conclusions of the [Board] on questions of fact are conclusive and final and are not subject to review. Such questions of fact shall include ultimate facts and the findings and conclusions of the [Board]."].)
"`Inferences may constitute substantial evidence as long as they are the product of logic and reason rather than speculation or conjecture.'" (Holmes v. California Victim Compensation & Government Claims Bd. (2015) 239 Cal.App.4th 1400, 1406.) "`A finding . . . based upon a reasonable inference . . . will not be set aside by an appellate court unless it appears that the inference was wholly irreconcilable with the evidence. [Citations.]' [Citation.] `[W]hen the evidence gives rise to conflicting reasonable inferences, one of which supports the finding of the [factfinder], the [factfinder]'s finding is conclusive on appeal. [Citation.]'" (Phillips v. Campbell, supra, 2 Cal.App.5th at p. 851.)
The relevant safety order, section 1541.1, states in pertinent part:
Substantial evidence supports the Board's finding that the Division met its burden of showing which of section 1541.1(c)'s design options Burtech chose, and that Burtech failed to comply with that option or any other option in the safety order. (See Delta Excavating, supra, 1999 WL 607825 at p. *2 ["The Division must determine from the employer which of the options the employer chose, and show that it did not comply with the requirements of that choice, or any of the other options."].)
First, substantial evidence supports the Board's finding that Burtech chose the design guidelines of Option (1)/Appendix D. Murphine testified at length about these guidelines, and illustrative figures were admitted as exhibits at the hearing and are included in the appellate record. Significantly, Murphine testified these guidelines "are . . . for the type of shoring that was used at the Burtech site." It is reasonable to infer from this testimony that Burtech chose Option (1)/Appendix D.
Second, substantial evidence supports the Board's finding that Burtech did not comply with its chosen option or any of the other options. As for the chosen option, Appendix D required that the shore's rails be within two feet of the bottom of the trench. Murphine's measurements show Burtech failed to meet this requirement. Burtech does not contend otherwise.
As for "any of the other options" (Delta Excavating, supra, 1999 WL 607825 at p. *2), substantial evidence supports the Board's finding for two reasons: (1) Murphine testified that all of the available design options include a two-feet-from-the-bottom requirement, and (2) Board precedent supports an inference of noncompliance based on Burtech's acquiescence when confronted by Murphine.
First, it is reasonably inferable from Murphine's testimony—based on her extensive training and experience enforcing excavation safety orders—that all of the design options under section 1541.1(c) require that a shore's rails come within two feet of the bottom of a trench. She testified generally that "the trench is supposed to be fully shored from top to bottom." (Italics added.) And she testified more specifically that the two-foot requirement is contained not only in Appendix D, but it "is also contained in Title 8"; that is, "In [section] 1541.1."
Second, Burtech's silence when confronted about the trench not being "fully shored," and acquiescence when directed to install an additional shore, support an inference that Burtech's shoring design did not comply with any of section 1541.1(c)'s available design options. Delta Excavating is instructive in this regard. There, the Division cited Delta for violating section 1541.1(a) at two excavation sites. At one site (the Tuttle Ranch Excavation), Delta used benching as the protective system on a nine-foot-deep trench. (Delta Excavating, supra, 1999 WL 607825 at p. *1.) At the other site (the Valve Excavation), Delta used shoring as the protective system on a 16-foot-deep trench. (Ibid.) When a Division inspector told a Delta foreman that the benching at the Tuttle Ranch Excavation "did not comply with Title 8 occupational safety and health standards," the foreman "did not deny that the system was improperly benched at the time two of his workers were wrapping a pipe joint." (Ibid.) But when the inspector determined the shoring at the Valve Excavation was deficient and asked a second foreman working in the trench if he "`felt safe,'" this "foreman said he believed the protective system was `all right' and had been working fine for the duration of the project." (Id. at p. *2.) When the inspector later told the first foreman "there were insufficient shores" in the Valve Excavation, the foreman's "only response was that he would make sure there was a sufficient number of shores there." (Ibid.)
Delta appealed the citations, and an ALJ granted the appeal as to both citations. (Delta Excavating, supra, 1999 WL 607825, at p. *1.) On its own motion, however, the Board ordered reconsideration of the ALJ's decision. (Ibid. ) The Board affirmed the ALJ's determination as to the Valve Excavation, concluding the Division had not met its burden of showing that Delta had not complied with any of section 1541.1(c)'s four design options. (Delta Excavating, at pp. *1-2.) Although the Division had shown that Delta did not satisfy the design guidelines of Option (1)/Appendix D, the Board explained the Division had not shown that Delta had not complied with any of the other available design options. (Id. at p. *3.) Most notably, the Board found the Division had not met its burden of showing Delta had not chosen to use one of the "tabulated data" options; the fact that the inspector did not see tabulated data at the excavation site was of no import because there is no requirement that an employer using such data keep it at the site for the duration of the project. (Ibid.) The Board also noted that Delta "representatives gave no indication that the Valve Excavation protective system was deficient. Rather, [the second foreman] differed with [the inspector] over whether the protective system was safe and adequate." (Ibid.)
As to the Tuttle Ranch Excavation, however, the Board concluded the Division had met its burden of proving a serious violation of section 1541.1. (Delta Excavating, supra, 1999 WL 607825, at pp. *1-2.) The Board reasoned the first foreman's acquiescence when confronted about inadequate benching supported an inference that Delta was not using any of the four alternative benching design options set forth in section 1541.1(b):
Similarly, here, Higuera "didn't have a response" when Murphine "asked him why the trench wasn't fully shored"; acquiesced in her direction to install an additional shore; and (3) did not challenge at the jobsite her opinion that the protective system was inadequate. In the absence of contrary proof at the hearing, this evidence supports a reasonable inference that Burtech's shoring design did not satisfy any of the design options available under section 1541.1(c). It is undisputed Burtech presented "no proof to the contrary at the hearing." (Delta Excavating, supra, 1999 WL 607825, at p. *4.) Indeed, Burtech presented no evidence at the hearing. Once the Board "present[ed] evidence which, if believed, is of such a nature as to support a finding if unchallenged, then the burden of producing evidence shift[ed] to Employer to present convincing evidence to avoid an adverse finding as to Employer." (In the Matter of the Appeal of: Paramount Scaffold, Inc. (Cal-OSHA App.Bd., Oct. 7, 2004, Nos. 01-R3D1-4564 and 4566, p. 3.)
Burtech contends an inference of noncompliance is unreasonable for several reasons, none of which we find persuasive. For example, Burtech argues Murphine's question about "why the trench wasn't `fully shored'" was "[s]uch a vague question" compared to the Delta Excavating inspector's statement that the Tuttle Ranch Excavation "did not comply with Title 8 occupational safety and health standards." (Delta Excavating, supra, 1999 WL 607825, at p. *1.) However, Higuera—a competent person familiar with excavation safety who had just been ordered out of the trench and asked why it wasn't fully shored—should reasonably have understood that a question about "fully shored" referred to some safety standard (that is, "fully shored" according to what?). Therefore, he could easily have explained how the shoring satisfied one of the available design options. The fact he had no response supports the reasonable inference that the shoring design did not comply with any of the available design alternatives.
Burtech's assertion that Higuera did not respond to Murphine due to a language barrier is purely speculative. Indeed, although Murphine speculated Higuera had not responded because "[m]aybe he didn't understand the question," this was ultimately a credibility matter for the factfinder to resolve, which we do not second-guess on appeal.
We are similarly unpersuaded by Burtech's argument, based on a hearsay exception, that the negative inference is unwarranted because Higuera—whom the Board found was not a foreman, supervisor, or responsible for other workers' safety—was not "authorized to communicate (or not communicate) on behalf of Employer." (See Evid. Code, § 1220 ["Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party in either his individual or representative capacity, regardless of whether the statement was made in his individual or representative capacity."].) First, formal rules of evidence generally do not apply in Board proceedings. (Lab. Code, § 6612 ["No informality in any proceeding or in the manner of taking testimony shall invalidate any order, decision, or finding."].) Second, even if the hearsay rule applied in Board proceedings, Burtech did not preserve the issue for appeal by objecting on that ground at the hearing. Finally, although Higuera was not a foreman (as the employer's representative in Delta Excavating was), he was nevertheless a competent person, which, by definition, is a person "who is capable of identifying existing and predictable hazards . . . and who has authorization to take prompt corrective measures to eliminate them." (§ 1504.)
In sum, a broad reading of Murphine's testimony and inferences reasonably derived therefrom constitute substantial evidence that Burtech did not comply with any of the design alternatives set forth in section 1541.1(c).
Burtech also contends the Board's DAR fails to adequately "state the evidence relied upon and specify in detail the reasons for the decision." (Lab. Code, § 6623; see § 385, subd. (a) [requiring the Board or an ALJ to "summarize the evidence received and relied upon, make findings upon all facts involved in the appeal, and file an order or decision with the reasons or grounds upon which the order or decision was made"].) We are not persuaded.
The Board recites in its eight-page DAR that "[t]he Board has fully reviewed the record in this case, including the arguments presented in the petition for reconsideration and the Division's Answer." We, too, have fully reviewed the record. It is not extensive—it contains testimony from only two Division witnesses (Murphine and Higuera) and minimal documentary evidence regarding the challenged citation.
In addition, the Board's findings recited in the DAR are sufficient to "bridge the analytic gap between the raw evidence and [the Board's] ultimate decision or order." (Topanga, supra, 11 Cal.3d at p. 515.) "`[A]dministrative agency findings are generally permitted considerable latitude with regard to their precision, formality, and matters reasonably implied therein.'" (Young v. City of Coronado (2017) 10 Cal.App.5th 408, 421.) They "can be informal so long as they serve the purposes of enabling the parties to determine whether and on what basis to appeal and enabling a reviewing court to determine the basis for the decision." (Save Our Carmel River v. Monterey Peninsula Water Management Dist. (2006) 141 Cal.App.4th 677, 701.) They "`are to be liberally construed to support rather than defeat the decision under review.'" (Young, at p. 421.) "The nature of the statute, ordinance, or rule being applied by [the] agency is also relevant to the analysis of the adequacy of an administrative agency's findings." (Ibid.) Thus, "where an agency's findings only generally refer to the administrative record even though specific reference to portions of the record supporting the ultimate conclusion is the better practice, the findings will still be determined to be sufficient if a court has `no trouble under the circumstances discerning "the analytic route the administrative agency traveled from evidence to action." [Citations.]'" (Great Oaks Water Co. v. Santa Clara Valley Water Dist. (2009) 170 Cal.App.4th 956, 971.)
We have no trouble under the circumstances determining the analytic route the Board took in determining Burtech failed to secure the trench in compliance with any of the design options available under section 1541.1(c). The Board expressly found that Burtech elected Option (1)/Appendix D and failed to comply with that option. As discussed above, the record supports these findings.
The Board also implicitly found that Burtech did not comply with any of the other three available design options. The Board states in the DAR that Burtech "does not contend" it complied with Option (2) (manufacturer's tabulated data), and the Board inferred from Burtech's election of Option (1) that Burtech "elected not to utilize any of the other options set forth in section 1541.1" (that is, Options (3) [other tabulated data] and (4) [professional engineer's designs]). In light of the negative inference allowed under Delta Excavation and the burden-shift allowed under Paramount Scaffold, a reasonable reading of the Board's findings as to Options (2), (3), and (4) is that Burtech presented no evidence to rebut the reasonable inference that it did not comply with any of the other options. We are satisfied that Burtech understood the import of the Board's findings in this regard because Burtech expressly briefed the Delta Excavation inference in its petition for reconsideration, which the Board expressly stated it had reviewed.
The judgment is affirmed. The parties shall bear their own costs on appeal.
BENKE, Acting P. J. and AARON, J., concurs.
The Division issued Burtech a separate citation for a variety of "regulatory" and "general" violations. (See, e.g., §§ 1512, subd. (e) [failing to post emergency phone numbers at the job site], 3395, subd. (f)(1) [failing to provide employees with "heat illness" training].) That citation is not at issue in this appeal.
Burtech asserts the Board's reference to this portion of section 1541.1 violates Burtech's due process because the Division did not cite Burtech for violating this provision and the Board did not rely on it in affirming the citation. We are not persuaded. In any event, we cite the provision not as authority independently establishing Burtech's violation, but merely as evidence corroborating Murphine's testimony.
