In the Matter of the Appeal of:

1170 East Fruit Street
Santa Ana, CA 92701

����������������������������� Employer



Docket No.




The Occupational Safety and Health Appeals Board (Board), acting pursuant to authority vested in it by the California Labor Code and having granted the petition for reconsideration filed in the above-entitled matter by the Division of Occupational Safety and Health (Division) makes the following decision after reconsideration.


On April 26, 2000, a representative of the Division conducted a drive-by inspection at a place of employment maintained by California Pipe Line, Inc. (Employer) at Highway 79 and Roripaugh Road, Temecula, California (the site). On August 18, 2000, the Division cited Employer for a violation of section 341(a)(1) [excavation permit] of the occupational safety and health standards and orders found in Title 8, California Code of Regulations.1 The violation was classified as willful/regulatory and a civil penalty of $12,000 was proposed.

Employer filed a timely appeal contesting every possible ground and alleging affirmative defenses.

A hearing was held before Dale A. Raymond, Administrative Law Judge (ALJ) of the Board, in Anaheim, California. Ronald E. Medeiros, attorney, represented Employer. Albert Cardenas, staff counsel, represented the Division.

On July 10, 2001, the ALJ issued a decision finding that the evidence established a regulatory violation of section 341(a)(1) and also finding that the willful classification was not sustained. The Division filed a timely petition for reconsideration on August 14, 2001, and Employer filed an answer on September 7, 2001. The Board took the Division’s petition for reconsideration under submission on September 25, 2001.


As found by the ALJ and not contested by Employer, Employer did not obtain a permit prior to the initiation of work in an excavation more than five-feet deep. Melvin Dunn, the Division’s Associate Compliance Engineer, requested the permit when he went to the job site but was informed by the project superintendent and the foreman that the permit was not available.

In his efforts to establish whether there was a permit, Dunn obtained a copy of a voided excavation permit from the Division’s San Bernardino District Office. Dunn testified that he also spoke with Andrew Morita, the District Manager, and another Division employee who had interviewed Employer when it came in the office to apply for a permit, an application that was rejected. Dunn further testified that the violation was classified as willful because he concluded that Employer knew of the requirements for a permit, knew it had been denied a permit because it did not meet the requirements, but nevertheless began work.

In order to establish that the permit had been rejected and apparently the circumstances surrounding the rejection, the Division called Morita as its first witness. Counsel for the Division indicated that Morita was needed to establish a foundation for the willful classification. Employer moved to exclude his testimony based upon the Division’s failure to comply with a discovery request served in September 2000 requesting that the Division furnish the names of the witnesses it intended to call at the hearing. Morita had not been identified as a witness any time prior to the proceeding.

The Division stipulated that it had not provided a list or otherwise advised Employer of its intent to call Morita. It opposed Employer’s exclusion motion, however, on the ground that Employer had not shown it was prejudiced by the omission. As an alternative, the Division moved for a continuance to permit Employer to interview Morita. The Division’s motion for a continuance was denied.

The ALJ concluded that from the time the request was served until the date of the hearing, the Division had more than nine months to comply with the discovery request.2 She specifically noted that the Appeals Board’s discovery rules had not been followed by the Division. The ALJ also found that Employer had been surprised and was prejudiced because it had been deprived of the opportunity to interview or depose Morita and to prepare a defense to his testimony.


Did the ALJ act improperly when she excluded the testimony of Andrew Morita and denied the request for a continuance?


In its petition, the Division contends that the ALJ erred when she excluded the testimony of a witness on the ground that the Division had failed to respond to a properly propounded discovery request. Should this Board agree, the Division does not request that the matter be remanded to the ALJ for purposes of hearing the testimony of the excluded witness; the Division requests that the ALJ’s finding regarding the willful classification be reversed.

Employer submitted a request for a list of witnesses more than nine months before the date set for the hearing. Section 372 governs such requests and provides:

After initiation of a proceeding, a party, upon written request made to another party, is entitled to obtain prior to the hearing the names and addresses of witnesses to the extent known to the other party, including, but not limited to, those intended to be called to testify at the hearing. . . . A request under this section for a list of witnesses to be called may be satisfied only by the service of a list of witnesses. [Emphasis added.]

When a party does not comply with discovery regulations and noncompliance is disclosed at the hearing, the ALJ hearing the case is granted certain powers pursuant to section 372.7, which provides:

(a) The Administrative Law Judge or the Appeals Board may impose sanctions on a party who fails to respond to an authorized request for discovery or makes an evasive or incomplete response to discovery where such action results in surprise to the requesting party at the hearing.
(b) Such sanctions may include:
(1) An order prohibiting the introduction of designated matters into evidence by the abusing party; and/or
(2) An order establishing designated facts, claims, or defenses against the abusing party in accordance with the claim of a party adversely affected.
(3) Any other order as the Administrative Law Judge or the Appeals Board may deem appropriate under the circumstances.

The Division argues that the ALJ did not comply with the provisions of section 372.7 because Employer did not produce any evidence of prejudice and the ALJ did not find prejudice. The Division further maintains that Employer could not have been surprised because Morita was alluded to in the citation itself and because the rejected permit had been produced during the course of discovery.

With regard to the question of surprise, the Division’s argument is without merit on several grounds. First, perhaps in anticipation of arguments such as that advanced by the Division herein, section 372 specifically provides that a request for a list of witnesses can only be satisfied by production of such a list. The rule recognizes that parties are not required to guess the intentions of an adversary by reference to a series of documents or other exhibits provided during discovery, which may or may not be introduced at a hearing. Counsel for Employer stated he did not anticipate the Division was going to call Morita. That constitutes surprise sufficient to satisfy the condition precedent set forth in section 372.7.3

In ruling on the motion at the hearing, contrary to assertions by the Division, the ALJ specifically found that Employer had been surprised and prejudiced when the Division sought to produce testimony from a witness not identified prior to the hearing. We note, however, that nowhere in section 372.7 is “prejudice” referenced. We find the rule is designed to benefit both parties and, as stated by Employer in its answer to the petition for reconsideration, “to eliminate surprise to prevent trial by ambush.” In Yellow Freight System, Inc., Cal/OSHA App. 94-2565, Decision After Reconsideration (July 23, 1999) we held that the Division’s failure to respond to a request for the identity of witnesses constitutes a basis for which sanctions may be imposed, including the exclusion of those unidentified witnesses. We held that the order excluding witness testimony “[w]as well within the discretion of the ALJ to fashion an appropriate remedy for the failure of the Division to comply with a proper discovery request.”

In the instant case, there is no basis for finding that the ALJ acted improperly when she ruled that Morita should be excluded from testifying in the Division’s case. The ALJ noted that Employer had been unable to properly prepare its case and had been deprived of the opportunity to either interview or depose Morita. Although exclusion of a witness’s testimony is a harsh sanction, and not one that is required, the ALJ is in the best position to determine from a case management standpoint what remedy needs to be fashioned in order to promote a fair adjudication of the issues and maintain an orderly proceeding. As the regulation provides, an ALJ can issue sanctions regarding exclusion of evidence, can make findings, or issue any other order the ALJ or the Board may deem appropriate. Wide latitude is granted to the ALJ and nothing in this record suggests that the steps taken were not well within the powers conferred.

Similarly, we find nothing improper in the ALJ’s determination that a continuance would not be granted. The Division maintained that a continuance was the appropriate way to overcome any prejudice or surprise that resulted from its failure to identify Morita. Pursuant to the rules governing the procedures of the Appeals Board, continuances are disfavored before a hearing convenes and disapproved, except in extraordinary circumstances, once the hearing has begun. Section 376.1(f) provides:

Continuance requests shall be entertained at the hearing only in cases of: (1) unforeseen emergencies, including, but not limited to, death or illness of a party, witness, or representative, or (2) non-appearance of a subpoenaed witness whose testimony is material to the outcome of the proceeding.

In the instant case, the excluded testimony may have been material to the outcome of the case but the “lack of availability” was attributable to the Division’s discovery abuse, not to circumstances beyond the Division’s control. In addition, a continuance would undoubtedly have entailed inconvenience to the Board and Employer and its representatives. We note that the business address for counsel for Employer is Rocklin, California, approximately 450 miles from the site of the hearing.

Finally, as the ALJ recognized, the integrity of the Board’s process is essential for maintenance of fair and equitable proceedings. The Board has discovery rules and the Division did not follow them. No excuse or explanation was proffered for the failure to identify witnesses necessary to establish the violation. Under these circumstances, we endorse the decision of the ALJ.


The Board affirms the ALJ’s decision finding a regulatory violation of section 341(a)(1) and assessing a civil penalty of $900.


FILED ON: April 3, 2002

1 Unless otherwise specified all references are to sections of Title 8, California Code of Regulations.
2 The initial discovery request was dated September 5, 2000, and was addressed to James Brown, then the District Manager at the Division’s Anaheim office. The Division’s counsel was designated as the attorney representing the Division on November 29, 2000.
3 In this Decision After Reconsideration, it is unnecessary to reach the question of whether notification by means other than a list would vitiate a claim of surprise. The Division alleged no alternative means of notification.