Ensch v. Zou

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Filed 3/12/03 Ensch v. Zou CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
EL REY ENSCH,
Plaintiff and Appellant,
v.
CHU ZOU,
Defendant and Respondent.
E029403
(Super.Ct.No. SCV55818)
O P I N I O N
APPEAL from the Superior Court of San Bernardino County. Frank Gafkowski,
Jr., Judge. (Retired Judge of the Mun. Ct. for the L.A. Jud. Dist., assigned by the Chief
Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Wilson, Kenna & Borys and Garth Goldberg for Plaintiff and Appellant.
The Arns Law Firm, Morgan C. Smith and Robert S. Arns for Consumer
Attorneys of California as Amicus Curiae on behalf of Plaintiff and Appellant.
Parker & Stanbury and Graham J. Baldwin for Defendant and Respondent.
A jury found that defendant and respondent Chu Zou aka Cathy Zou, individually,
and dba Cathy Zou Apiaries (collectively, defendant) was not negligent or liable for the

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personal injuries of plaintiff and appellant El Rey Ensch. Plaintiff appeals from the
verdict contending that: (1) the trial court erred in granting a motion in limine, and
thereby excluding evidence of Labor Code section 6304.51 and its 1999 amendments,
which allegedly made safety regulations promulgated under the California Occupational
Safety and Health Act (CAL/OSHA) or the Act) admissible in evidence in this case; (2)
the trial court erred in failing to allow any expert testimony regarding the applicability of
such safety regulations; and (3) the trial court erred in failing to instruct the jury that a
violation of the safety regulations constituted negligence per se. We find no error and
affirm.
FACTS AND PROCEDURAL BACKGROUND
Defendant owned and operated a beekeeping business, manufacturing honey and
other bee products. Defendant and plaintiff were married in 1991 and divorced in 1997.
They remained on friendly terms, and plaintiff helped defendant with her business, even
after they divorced. Plaintiff was employed as an electrician by the City of Burbank.
Plaintiff was not an employee of defendant.
On November 28, 1998, plaintiff was at defendant’s beekeeping business building,
doing some repairs. The building was very cold. Both plaintiff and defendant noticed
that the building was not heating up, even after the heater was turned on. Plaintiff asked
defendant if he could close the ridge vents, which were vents that were located along the
1 All further statutory references will be to the Labor Code section, unless
otherwise noted.

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ridge (peak) of the roof of the building. The ridge vents were 10 feet long and had
dampers, which were mechanisms that closed the vents. The vents were located
approximately 18 feet above the concrete floor of the building.
Plaintiff found an extension ladder on the premises and placed it at the south end
of the building, near the southernmost vent. Before placing the ladder, plaintiff visually
inspected the floor, but did not notice any large debris or anything that appeared to be
slippery. He placed the ladder on the ground and extended it up, so that the top of the
ladder touched the purlin (a steel beam running the length of the building, that extended
downward from the roof about seven and three/quarter inches), on the underside of the
roof. Plaintiff climbed to the top of the ladder, “secured the top of the ladder off with the
wire,” reached over to the vent and pulled it shut. Plaintiff moved the ladder over to the
next location to close the next vent. He followed the same procedure, however, when he
was about to secure the top of the ladder by tying if off to the purlin, the ladder “went out
from under” him. Plaintiff fell to the ground. He sustained the loss of an eye and a tooth,
a fractured left foot, and partial loss of his senses of smell and taste.
Plaintiff filed a complaint on March 22, 1999, alleging causes of action for
premises liability and negligence against defendant, and causes of action for product
liability, negligence, and breach of express and implied warranty against Davidson
Ladders, Inc. (Davidson).2 The matter was set for trial.
2 Davidson Ladders, Inc. is not a party to this appeal.

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On the first day of the trial, the court heard motions in limine. One of the motions
was brought by Davidson to exclude evidence or reference to CAL/OSHA safety
regulations. In its motion, Davidson pointed out that one of plaintiff’s expert witnesses
had improperly relied upon CAL/OSHA regulations in his deposition testimony.
Davidson argued that, under section 6304.5, CAL/OSHA regulations were not applicable
to, and should not be admissible evidence in, any personal injury action, except as
between an employee and his or her own employer.
Plaintiff filed an opposition and pointed out that section 6304.5 had been
amended; whereas the statute formerly prohibited any application of CAL/OSHA safety
regulations to personal injury cases that were not brought by an employee against his or
her own employer, the statute now only prohibited the applicability or admissibility into
evidence of the issuance of, or failure of the Division of Occupational Safety and Health
to issue, a citation, in such action. Plaintiff further noted that the amendment provided
that any violation of a CAL/OSHA safety regulation constituted negligence per se. The
matter was argued before the court. The court granted the motion as to Davidson, since
the court found that the safety orders had nothing to do with the ladder, but denied the
motion as to defendant.
The next day, defendant filed points and authorities in support of Davidson’s
motion in limine, basically requesting that the court reconsider its ruling on the in limine
motion. Defendant pointed out that the amended section 6304.5 specifically stated that it
was the intent of the Legislature that the amendments “shall not abrogate the holding in

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Brock v. State of California (1978) 81 Cal.App.3d 752.” In oral argument, the parties
discussed section 6304.5, in light of Brock, and the trial court reversed itself and granted
the motion in limine with regard to defendant.
The matter was then tried to a jury. The jury returned a special verdict finding that
defendant was not negligent and that plaintiff was comparatively negligent and 100 per
cent at fault.
Plaintiff now appeals.
ANALYSIS
I. Standard of Review
The trial court’s exclusion of the subject evidence and failure to instruct the jury
on negligence per se were based on its interpretation of section 6304.5. Statutory
interpretation is a question of law which we determine de novo.3 Thus, the question on
review becomes whether or not section 6304.5 granted the trial court any discretion to
admit the evidence.
II. The Trial Court Properly Excluded the Evidence
Plaintiff contends that the trial court erred in failing to allow any evidence at trial
of the applicability and alleged violations of CAL/OSHA safety regulations. Defendant
argues that: (1) section 6304.5, as amended, does not permit the admissibility into
evidence of CAL/OSHA standards in a third party civil action; and (2) the statute was
3 Argaman v. Ratan (1999) 73 Cal.App.4th 1173, 1176.

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amended after the accident occurred, and the statute would not apply retroactively to this
case. We agree with defendant.
A. Section 6304.5 Does Not Permit the Admissibility into Evidence of
CAL/OSHA Safety Standards in Cases Brought by Non-Employees
Plaintiff sought to have an expert witness testify to the applicability of Title 8 of
California Code of Regulations, section 3270, in order to show that California “has a
defined standard of care for industrial premises that would reduce the risk of portable
ladder accidents involving a risk of fall from height.” (Italics omitted.) Section 3270
essentially requires that every permanent elevated location, where there is material that is
frequently repaired or adjusted, must be provided with a safe platform or maintenance
runway, and that “[a]ccess shall be by means of either fixed ladders or permanent ramps
or stairways.” However, because of the trial court’s ruling on the motion in limine,
plaintiff was not allowed to present any such evidence.
Before it was amended, section 6304.5 provided: “It is the intent of the
Legislature that the provisions of this division4 shall only be applicable to proceedings
against employers brought pursuant to the provisions of Chapter 3 (commencing with
Section 6500) and 4 (commencing with Section 6600) of Part 1 of this division for the
exclusive purpose of maintaining and enforcing employee safety. [¶] Neither this
division nor any part of this division shall have any application to, nor be considered in,
4 “Division” means the Division of Occupational Safety and Health. Section
6302.

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nor be admissible into, evidence in any personal injury or wrongful death action arising
after the operative date of this section, except as between an employee and his own
employer.” (Fns. omitted.)
Section 6304.5 now provides:
“It is the intent of the Legislature that the provisions of this division * * *, and the
occupational and health standards and orders promulgated under this code, are applicable
to proceedings against employers * * * for the exclusive purpose of maintaining and
enforcing employee safety. [¶] Neither * * * the issuance of, or failure to issue, a
citation by the division shall have any application to, nor be considered in, nor be
admissible into, evidence in any personal injury or wrongful death action * * *, except as
between an employee and his or her own employer. Sections 452 and 669 of the
Evidence Code shall apply to this division and to occupational safety and health
standards adopted under this division in the same manner as any other statute, ordinance,
or regulation. . . . It is the intent of the Legislature that the amendments to this section
enacted in the 1999-2000 Regular Session shall not abrogate the holding in Brock v. State
of California (1978) 81 Cal.App.3d 752.”5
1. Interpretation of the Statute
In interpreting a statute, a court should first “examine the actual language of the
statute, giving the words of the statute their ordinary, everyday meaning. [Citation.] If
5 Asterisks indicate omissions from the earlier version; underscore indicates new
text.

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the meaning is without ambiguity, doubt, or uncertainty, then the language controls, and
there is nothing to ‘interpret’ or ‘construe.’ [Citation.]”6 In other words, “[w]here
statutory language is clear and unambiguous, there is no need to construct the statute, and
resort to legislative materials or other external sources is unnecessary. [Citation.]”7
Plaintiff argues that the trial court should have applied section 6304.5 to this case
and thereby should have admitted evidence of defendant’s alleged violation of
CAL/OSHA provisions to show that defendant was negligent per se. We disagree.
Section 6304.5 begins with the following language: “It is the intent of the
Legislature that the provisions of this division, and the occupational safety and health
standards and orders promulgated under this code, are applicable to proceedings against
employers for the exclusive purpose of maintaining and enforcing employee safety.”
(Italics added.) The statute formerly provided that it was “the intent of the Legislature
that the provisions of this division shall only be applicable to proceedings against
employers brought pursuant to the provisions of Chapter 3 (commencing with Section
6500) and 4 (commencing with section 6600) of Part 1 of this division for the exclusive
purpose of maintaining and enforcing employee safety.” (Italics added, fns. omitted.)
Plaintiff argues that the deletion of the words “shall only” shows the Legislature’s intent
to expand the statute and allow evidence of CAL/OSHA safety orders in actions against
non-employers, as well as employers. The problem with plaintiff’s reading of the statute
6 Soil v. Superior Court (1997) 55 Cal.App.4th 872, 875.
7 McLaughlin v. State Bd. of Education (1999) 75 Cal.App.4th 196, 215.

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is that he isolates and focuses on the deletion of the words “shall only,” without
considering the rest of the sentence that was deleted by the amendment. The amended
statute unambiguously sets forth the Legislature’s intent that the safety standards and
regulations “are applicable to proceedings against employers for the exclusive purpose of
maintaining and enforcing employee safety.” (Italics added.) It is undisputed that
plaintiff was not an employee of defendant.
Moreover, in its second paragraph, section 6304.5 states that the issuance or
failure to issue a citation is not admissible in evidence “in any personal injury or
wrongful death action, except as between an employee and his or her own employer.”
(Italics added.) Plaintiff points out that the statute only prohibits the admissibility of
evidence of the issuance or failure to issue a citation in actions not involving employers.
Thus, he infers that evidence of a CAL/OSHA safety regulation would be admissible in
actions not involving employers (i.e., to simply show that a defendant violated a
CAL/OSHA regulation, regardless of whether or not a citation was issued). However, we
cannot read the second paragraph without reference to the first paragraph. In construing
the statute, the words “must be read in context, considering the nature and purpose of the
statutory enactment. [Citations.]”8 The first paragraph of the statute clearly sets out the
Legislature’s intent to make CAL/OSHA standards “applicable to proceedings against
employers for the exclusive purpose of maintaining and enforcing employee safety.”
8 Nahrstedt v. Lakeside Village Condominium Assn. (1994) 8 Cal.4th 361, 378-
379, italics added.

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(Italics added.) Nothing in the language of the statute attempts to expand the
applicability of CAL/OSHA standards and orders to third party lawsuits not involving
employers.
Section 6304.5 next provides that Evidence Code section 452 (judicial notice) and
669 (negligence per se) “shall apply to this division” and to CAL/OSHA safety and
health standards, “in the same manner as any other statute, ordinance, or regulation.”
Plaintiff argues that it is significant that the amendments included these references to
sections 452 and 669 since these sections allegedly “can only apply in actions involving a
defendant other than the direct employer.” (Underscore in original.) Plaintiff assumes
that an employee’s sole remedy against his or her employer is a workers’ compensation
proceeding, before the Workers’ Compensation Appeals Board (WCAB). He thus claims
that because the rules of evidence do not apply in a worker’s compensation proceeding
(against an employer), “[n]egligence per se . . . can only have meaning in the context of a
third-party [civil] suit in a trial court.” (Underscore in original.) Therefore, plaintiff
reasons, because section 6304.5 applies the rules of evidence, it must include personal
injury actions against third party defendants that are not employers of the complainants.
Plaintiff’s reasoning is faulty. He incorrectly assumes that an employee’s sole
remedy against an employer is a workers’ compensation proceeding, before the WCAB.
However, an employee may bring an action against an employer in superior court if the
employer fails to carry compensation insurance, if the employee’s injury is proximately
caused by a willful physical assault by the employer, where the employee’s injury “is

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aggravated by the employer’s fraudulent concealment of existence of the injury and its
connection with the employment,” and where the employee’s injury is proximately
caused by a defective product manufactured by the employer.9 That means that, contrary
to plaintiff’s contention, the rules of evidence can apply in an action against a direct
employer. Furthermore, the WCAB and the superior court are two different jurisdictions
that abide by different rules.10 Thus, plaintiff’s conclusion that section 6304.5 must
include personal injury actions against third party defendants that are not employers, is
simply not logical or tenable.
Finally, the last sentence of the amended section 6304.5 provides that: “It is the
intent of the Legislature that the amendments to this section enacted in the 1999-2000
Regular Session shall not abrogate the holding in Brock v. State of California (1978) 81
Cal.App.3d 752.” (Italics added.) In Brock, the plaintiffs filed a personal injury action
against the State of California following an explosion at a paper plant, at which several
employees were killed or injured. Although the state was not an employer at the paper
plant, the plaintiffs brought an action against the state alleging that the state failed to
comply with the mandatory safety inspection provisions of CAL/OSHA and, as a result,
dust accumulated in the plant and created an ultra hazardous and dangerous condition.11
9 Section 3601, subdivision (b) and Section 3706; see also, Jones v. Brown (1970)
13 Cal.App.3d 513, 522.
10 Jones v. Brown, supra, 13 Cal.App.3d 513, 520.
11 Brock v. State of California (1978) 81 Cal.App.3d 752, 754-755.

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The state demurred on the ground that section 6304.5 “prohibits reliance upon the
Labor Code Occupational Safety and Health Act provision as a basis for a personal injury
or wrongful death action except as between an employee and his employer.”12 The trial
court sustained the demurrer. On appeal, the court affirmed the judgment and dismissed
the action stating that “[t]he fact that the state has a mandatory duty to inspect and to
enforce CAL/OSHA provisions is irrelevant to the issue of whether those provisions can
be relied upon in a personal injury action against the state when the state is not the
employer. It is evident that the purpose of section 6304.5 is to prevent the technical
CAL/OSHA safety provisions from enlarging the personal injury liability of third parties
beyond basic common law liability.”13 (Italics added.) The court further stated that “the
Legislature sensibly limited the applicability of the CAL/OSHA safety provisions to
actions involving employers alone.”14 (Italics added.) Contrary to plaintiff’s contention
that the court in Brock did not directly address the issue currently raised by this appeal,
the court specifically determined that CAL/OSHA provisions are not to be applied to
actions against third parties.
Plaintiff makes the nonsensical argument that “since Brock was decided long
before the amendments [to section 6304.5] were made . . ., that case cannot be looked to
for guidance as to what the [L]egislature intended in 1999.” The Legislature specifically
stated that the holding in Brock was not to be abrogated by the amendments to section
12 Brock v. State of California, supra, 81 Cal.App.3d 752, 755.
13 Brock v. State of California, supra, 81 Cal.App.3d 752, 757.

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6304.5. Brock thus continues as a valid expression of the law. Plaintiff relies on an
opinion by the Legislative Counsel to the effect that, in the Legislative Counsel’s view,
the Legislature’s statement of intent in the amended section 6304.5 regarding the holding
in Brock referred to the narrow holding that the state may not be held liable for a breach
of its statutory duty under CAL/OSHA to inspect places of employment. 15 “While we
give due deference to the opinions of the Legislative Counsel, in this case the opinion is
not persuasive. . . . [W]e note that the opinion in question is not part of the legislative
history of section [6304.5]; it was issued after the statute was adopted, and hence could
not have been considered by the Legislature when it was debating the bill that enacted
section [6304.5]. It is, rather, a post hoc expression of the Legislative Counsel’s opinion
of what the Legislature meant when it adopted section [6304.5].”16
In sum, section 6304.5 plainly precludes the admissibility into evidence of
CAL/OSHA’s standards and orders in any personal injury action, except as between an
employee and his or her own employer. Thus, the trial court properly excluded the
evidence.
[footnote continued from previous page]
14 Brock v. State of California, supra, 81 Cal.App.3d 752, 758.
15 On June 5, 2002, plaintiff requested that this court take judicial notice of this
Legislative Counsel opinion. As well, on May 10, 2002, defendant requested that this
court take judicial notice of excerpts from the legislative history of Assembly Bill 1127
for the 1999-2000 regular session of the California Legislature. We reserved ruling on
these requests. The requests are denied.
16 Grupe Development Co. v. Superior Court (1993) 4 Cal.4th 911, 922.

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B. The Amendment to Section 6304.5 Cannot Be Applied Retroactively
Even if the amended section 6304.5 did allow the admissibility of evidence of
CAL/OSHA’s provisions in actions between a plaintiff and a non-employer defendant,
the amendments to section 6304.5 did not become operative until after the subject
accident occurred.
Section 6304.5 was amended during the regular legislative session of 1999 and
became operative on January 1, 2000. Plaintiff was injured on November 28, 1998. “It
is an established canon of interpretation that statutes are not to be given a retrospective
operation unless it is clearly made to appear that such was the legislative intent.
[Citations.]”17 Section 6304.5 says nothing about retrospective operation.
Plaintiff attempts to circumvent this general principle by characterizing the
application of the section 6304.5 amendments to this case as “prospective” rather than
“retrospective.” He asserts that section 6304.5 applies to this case “since its application
concerns only evidentiary rules to be applied to a trial yet to occur,” and is therefore only
procedural in nature. (Italics omitted.) Plaintiff states that “a statute which concerns only
the conduct of a trial ‘addresses conduct in the future’ even though the occurrence which
gives occasion to the trial took place before the effective date of the statute.”
Plaintiff opposed defendant’s motion in limine because he wanted to have an
expert witness testify that the condition of defendant’s premises were in violation of a
CAL/OSHA safety order which required that there be either fixed ladders or permanent

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ramps or stairways in place to access elevated areas. Plaintiff was essentially trying to
establish that since defendant allegedly violated a CAL/OSHA safety order, she was
negligent per se, pursuant to the amendment providing that Evidence Code sections 452
(judicial notice) and 669 (negligence per se) apply to CAL/OSHA provisions. Contrary
to plaintiff’s contention, applying section 6304.5 to this case would not simply be
procedural and merely concern the conduct of a future trial; it would effectively create a
new duty of care owed by defendant to plaintiff under CAL/OSHA standards and entitle
plaintiff to have the benefit of a negligence per se jury instruction.
The application of the amendments would not be prospective, but rather
retrospective. “‘A retrospective law is one which affects rights, obligations, acts,
transactions and conditions which are performed or exist prior to the adoption of the
statute.’ [Citations.]”18 Under plaintiff’s interpretation of the statute, the CAL/OSHA
standards only applied to proceedings between an employee and his or her employer; the
amendments allegedly expanded the applicability to include proceedings against non-
employer third parties. Thus, the application of the amendments to section 6304.5 to this
case would significantly affect the rights and obligations of defendant that existed prior to
the amendments. However, because the amendments to section 6304.5 did not become
operative until over one year after plaintiff’s accident, plaintiff’s claim fails. “It is well
established that statutes not in effect at the time of an accident have no relevance to a
[footnote continued from previous page]
17 Aetna Cas. & Surety Co. v. Ind. Acc. Com. (1947) 30 Cal.2d 388, 393.

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defendant’s statutory duty of care.”19 Moreover, there is no indication that the
Legislature intended to give these amendments a retrospective operation.
Plaintiff further argues that the specific CAL/OSHA safety order at issue was first
made effective in 1976, and was therefore applicable to defendant as an employer at the
time of the accident. Plaintiff asserts that there is no question that if one of defendant’s
employees had been injured, rather than plaintiff, the safety order would have been
applicable. He further states that since his cause of action against defendant was based
on negligence in the management of her premises, his cause of action “was not created or
altered by the existence of the safety orders . . . or the amendments,” since defendant was
always subject to the safety order. (Italics omitted.) Plaintiff’s glib argument overlooks
the crux of this appeal. There is no dispute that the CAL/OSHA standards applied to
defendant’s work premises, or that she was an employer, or that plaintiff was not an
employee of defendant. The question is whether or not the CAL/OSHA safety provisions
could be admitted as evidence in an action against defendant by a non-employee,
pursuant to the section 6304.5 amendments. The answer to that question is no.
C. Plaintiff’s Argument Regarding Defendant’s Duty as a Landowner Has Been
Waived on Appeal
Plaintiff finally adds the argument that he is not seeking to impose “a new duty”
on defendant, but rather he is simply showing that defendant owed him a duty of due care
[footnote continued from previous page]
18 Aetna Cas. & Surety Co. v. Ind. Acc. Com., supra, 30 Cal.2d 388, 391.

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in the management of her premises. He argues that the purpose of allowing evidence of
CAL/OSHA safety provisions is simply to set a standard of care for defendant “as an
employer and as a land possessor.” Plaintiff appears to be mixing legal arguments, as
well as raising an argument that was not raised in his opposition to the motion in limine
below. “It is well established that issues or theories not properly raised or presented in
the trial court may not be asserted on appeal, and will not be considered by an appellate
tribunal. A party who fails to raise an issue in the trial court has therefore waived the
right to do so on appeal. [Citations.]”20
[footnote continued from previous page]
19 Salinero v. Pon (1981) 124 Cal.App.3d 120, 132.
20 In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 117.

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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
/s/ Ward
J.
We concur:
/s/ McKinster
Acting P. J.
/s/ Gaut
J.

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