Stanford Law School - Robert Crown Law Library

Filed 12/20/04

IN THE SUPREME COURT OF CALIFORNIA

ROWDY ELSNER,
Plaintiff and Respondent,
S113799
v.
) Ct.App.
4/1
D037761
CARL UVEGES,
San
Diego
County
Defendant and Appellant;
Super. Ct. No. 739513
STATE COMPENSATION
INSURANCE FUND,
)

Intervener and Appellant.

In 1971, the Legislature enacted Labor Code section 6304.5,1 a statute that
barred the admission of California Occupational Safety and Health Act (Cal-
OSHA) provisions2 in employee negligence actions against nonemployers. Labor
Code section 6304.5 created an exception to the long-standing common law rule,
codified in Evidence Code section 669, that statutes may be admitted to establish a
standard or duty of care in negligence actions.

1
Subsequent unlabeled statutory references are to the Labor Code.
2
By the term “Cal-OSHA provisions,” we refer both to the specific sections
of the Labor Code constituting Cal-OSHA (§ 6300 et seq.) and to the regulations
and safety orders promulgated under Cal-OSHA.
1

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In 1999, the Legislature substantially amended section 6304.5, which now
provides in part: “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.” We
granted review to decide whether, and to what extent, the 1999 amendments
repealed the ban on the admission of Cal-OSHA provisions in third party
negligence actions. We conclude that the amendments restore the common law
rule and allow use of Cal-OSHA provisions to establish standards and duties of
care in negligence actions against private third parties.
However, this case involves a preamendment accident. The use of Cal-
OSHA provisions to establish the standard of care and to shift the burden of proof
to defendant was an impermissible retroactive application of the amendment, and
the error was not harmless. We therefore affirm the Court of Appeal’s reversal of
judgment for plaintiff.
PROCEDURAL AND FACTUAL BACKGROUND
On December 3, 1998, plaintiff Rowdy Elsner, a roofer employed by
Hoffman Roofing, injured his right ankle when a scaffold collapsed beneath him at
a construction site in the City of Coronado. Defendant Carl Uveges was the
general contractor for the project, a pair of two-story single-family homes. The
day before the accident, Sean Frey, a carpenter employed by Uveges, had
constructed the temporary wood plank scaffold to assist his installation of
plywood panels on the second story of the structure. Uveges acknowledged that
he was directly responsible for supervising and controlling the work in order to
ensure required safety practices were followed.
2

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Elsner sued Uveges and Uveges’s joint venturer on the project, asserting
causes of action for negligence, premises liability, breach of nondelegable duty,
failure to provide a safe place of work, and peculiar risk.3 In January 2001, before
trial, Uveges moved in limine for an order excluding references to Cal-OSHA
provisions and their alleged violation. He argued that under section 6304.5,
testimony that the scaffolding violated Cal-OSHA provisions was inadmissible for
any purpose in an employee’s third party action. (See Spencer v. G. A.
MacDonald Constr. Co. (1976) 63 Cal.App.3d 836, 857-858; Mackey v. Campbell
Construction Co. (1980) 101 Cal.App.3d 774, 790.) The trial court denied the
motion. It ruled that as a result of the 1999 amendments to section 6304.5, which
took effect January 1, 2000, Cal-OSHA provisions were now admissible in a third
party action.
The matter proceeded to jury trial against Uveges only. Based on its in
limine ruling, the court permitted testimony by Elsner’s expert as to how the
scaffold violated Cal-OSHA provisions. Having granted a separate evidentiary
motion made by Elsner during trial, the court also prevented Uveges from eliciting
expert testimony that the scaffold as constructed was customary and met the
standard of care for such construction jobs. It gave the jury special instructions
based on duties created by the Labor Code (§§ 6400, 6401 & 6403)4 and Cal-

3
State Compensation Insurance Fund (State Fund) intervened in the lawsuit,
seeking reimbursement for workers’ compensation benefits paid to Elsner.
4
The special instructions based on sections 6400, 6401 and 6403
respectively provided:

“Every employer shall furnish employment and a place of employment . . .
that is safe and healthful for the employees therein . . . .”

“Every employer shall furnish and use safety devices and safeguards, and
shall adopt and use practices, means, methods, operations, and processes which

(footnote continued on next page)
3

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OSHA regulations setting standards for the nailing, anchoring, size, and railing of
scaffolds (Cal. Code Regs., tit. 8, §§ 1513, 1637, 1640). The court then instructed
the jury on the principles of negligence per se.5
The jury returned a special verdict finding Uveges 100 percent negligent
and his negligence a cause of Elsner’s injuries. It found Elsner’s employer not
negligent.6 The jury awarded Elsner $131,254 in economic damages, $500,000 in
noneconomic damages, and costs. It awarded State Fund $52,867.71.

(footnote continued from previous page)
are reasonably adequate to render such employment and place of employment safe
and healthful. Every employer shall do every other thing reasonably necessary to
protect the life, safety, and health of employees.”

“No employer shall fail or neglect to do any of the following: [¶] (a) To
provide and use safety devices and safeguards reasonably adequate to render the
employment and place of employment safe. [¶] (b) To adopt and use methods and
processes reasonably adequate to render the employment and place of employment
safe. [¶] (c) To do every other thing reasonably necessary to protect the life,
safety, and health of employees.”
5
The court gave a modified version of BAJI No. 3.45: “If you find that a
party to this action violated Labor Code sections 6400, 6401, 6403, 7151, [Cal-]
OSHA Regulations 1513, 1637 and/or 1640, the statutes and regulations just read
to you[,] and that any such violation was a cause of injury to another, you will find
that such violation was negligence unless defendant proves by a preponderance of
the evidence that he did what might reasonably be expected of a person of
ordinary prudence, acting under similar circumstances, who desired to comply
with the law. In order to sustain such burden of proof, such party must prove by a
preponderance of the evidence that he was faced with circumstances which
prevented compliance or justified noncompliance with the statute or regulation.”
6
The jury made a finding with respect to Elsner’s employer’s conduct in
order to establish whether that conduct might limit reimbursement to State Fund of
workers’ compensation benefits State Fund had paid out. (See Associated
Construction & Engineering Co. v. Workers’ Comp. Appeals Bd. (1978) 22 Cal.3d
829, 842.)
4

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On appeal, Uveges argued that notwithstanding the 1999 amendments to
section 6304.5, the admission of testimony concerning applicable Cal-OSHA
provisions, the exclusion of Uveges’s expert’s testimony, and the issuance of jury
instructions based on negligence per se were error. The Court of Appeal agreed
and reversed. It concluded that when the Legislature amended section 6304.5, it
did not intend to change the existing rule against admitting Cal-OSHA provisions
in third party actions to establish negligence per se. We granted review.
DISCUSSION
I. Interpretation of Section 6304.5
A. Statutory Background
The provisions of Cal-OSHA are intended to “assur[e] safe and healthful
working conditions for all California working men and women by authorizing the
enforcement of effective standards, assisting and encouraging employers to
maintain safe and healthful working conditions, and by providing for . . .
enforcement in the field of occupational safety and health.” (§ 6300.) Until 1971,
these provisions were routinely admitted in workplace negligence actions to show
the standard of care, and their violation was treated as negligence per se. (See,
e.g., De Cruz v. Reid (1968) 69 Cal.2d 217, 229-230; Kuntz v. Del E. Webb
Constr. Co. (1961) 57 Cal.2d 100, 103-104; Porter v. Montgomery Ward & Co.,
Inc. (1957) 48 Cal.2d 846, 847, 850; Armenta v. Churchill (1954) 42 Cal.2d 448,
455.)
In 1971, the Legislature enacted section 6304.5, which originally provided:
“It is 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. [¶] Neither this division nor any part of this division
5

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shall have any application to, nor be considered in, 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.”
(Stats. 1971, ch. 1751, § 3, p. 3780.) Thereafter, both this court and the Courts of
Appeal consistently held that section 6304.5 barred the introduction of Cal-OSHA
provisions in actions between employees and third party tortfeasors. (See, e.g.,
Griesel v. Dart Industries, Inc. (1979) 23 Cal.3d 578, 588; Felmlee v. Falcon
Cable TV (1995) 36 Cal.App.4th 1032, 1039.)
In 1999, the Legislature passed Assembly Bill No. 1127 (1999-2000 Reg.
Sess.), which substantially amended section 6304.5 and various other provisions
of the Labor Code relating to worker safety. As amended, section 6304.5 now
provides: “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. [¶] 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. Section 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. The testimony of
employees of the [D]ivision [of Occupational Safety and Health] shall not be
admissible as expert opinion or with respect to the application of occupational
safety and health standards. 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.” We must
determine the effect of these amendments.
6

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B. Statutory Interpretation
In interpreting section 6304.5, we seek to “ ‘ascertain the Legislature’s
intent so as to effectuate the purpose of the law.’ ” (In re J.W. (2002) 29 Cal.4th
200, 209.) We begin with the language of section 6304.5. (See Wilcox v.
Birtwhistle (1999) 21 Cal.4th 973, 977; People v. Cruz (1996) 13 Cal.4th 764,
775.)
The key sentence of Labor Code section 6304.5 is in its second paragraph:
“Section 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.” Evidence Code section 452
allows judicial notice of state statutes and regulations. (Evid. Code, § 452, subd.
(a).) Evidence Code section 669 allows proof of a statutory violation to create a
presumption of negligence in specified circumstances.7 It codifies the common
law doctrine of negligence per se, pursuant to which statutes and regulations may
be used to establish duties and standards of care in negligence actions.8 While

7
Evidence Code section 669, subdivision (a) provides: “The failure of a
person to exercise due care is presumed if: [¶] (1) He violated a statute, ordinance,
or regulation of a public entity; [¶] (2) The violation proximately caused death or
injury to person or property; [¶] (3) The death or injury resulted from an
occurrence of the nature which the statute, ordinance, or regulation was designed
to prevent; and [¶] (4) The person suffering the death or the injury to his person or
property was one of the class of persons for whose protection the statute,
ordinance, or regulation was adopted.” Subdivision (b) sets out the showing
required of a defendant to rebut this presumption.
8
Some courts and commentators use “negligence per se” to refer globally to
the borrowing of statutory standards in negligence actions. Examined with care,
however, it actually consists of two distinct, albeit occasionally overlapping,
concepts. Statutes may be borrowed in the negligence context for one of two
purposes: (1) to establish a duty of care, or (2) to establish a standard of care.
(California Service Station etc. Assn. v. American Home Assurance Co. (1998) 62
Cal.App.4th 1166, 1177-1179; see Vesely v. Sager (1971) 5 Cal.3d 153, 157, 166-

(footnote continued on next page)
7

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adding this language, the amendments to Labor Code section 6304.5 also deleted
language precluding admission of Cal-OSHA provisions in third party actions,
eliminating a sentence that read: “Neither this division nor any part of this
division shall have any application to, nor be considered in, 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.”
(§ 6304.5, as added by Stats. 1971, ch. 1751, § 3, p. 3780, deleted by Stats. 1999,
ch. 615, § 2.)
In combination, the new language and the deletion indicate that henceforth,
Cal-OSHA provisions are to be treated like any other statute or regulation and may
be admitted to establish a standard or duty of care in all negligence and wrongful
death actions, including third party actions.
Nevertheless, Uveges argues that the references to Evidence Code sections
452 and 669 serve a far more limited purpose. He contends that Assembly Bill
No. 1127 (1999-2000 Reg. Sess.) (Assembly Bill No. 1127) was an omnibus
workers’ compensation reform bill, that the first paragraph of amended Labor
Code section 6304.59 confines admissibility of Cal-OSHA provisions to actions
against employers, and that the references in the second paragraph to Evidence
Code sections 452 and 669 were intended only to make those sections applicable
to workers’ compensation actions and Cal-OSHA administrative proceedings

(footnote continued from previous page)
167 [borrowing statutory duty of care]; Satterlee v. Orange Glenn School Dist.
(1947) 29 Cal.2d 581, 592 [borrowing statutory standard of care].)
9
“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.” (§ 6304.5.)
8

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against employers. He points out that the references to these Evidence Code
sections replaced an earlier proposed amendment providing: “This division and
the occupational safety and health standards and orders promulgated under this
code may have application to, be considered in, or be admissible into, evidence in
any personal death or wrongful death action.” (Assem. Bill No. 1127, § 2, as
amended in Sen., Aug. 23, 1999.) Uveges argues, and the Court of Appeal agreed,
that the deletion of clear language admitting Cal-OSHA provisions in third party
actions reflected a desire to return to the pre-1999 rule of inadmissibility. We
disagree.
First, Uveges’s interpretation is at odds with the plain language of section
6304.5. Unlike the pre-1999 version, the current first paragraph does not say that
Cal-OSHA provisions are admissible only in actions against employers. Nor does
the second paragraph contain any language suggesting that its effect is limited to
workers’ compensation suits or Cal-OSHA administrative proceedings.
Second, Uveges’s interpretation is belied by the legislative history and
purpose behind the 1999 amendments. To the extent a statutory text is susceptible
of more than one reasonable interpretation, we will consider “ ‘a variety of
extrinsic aids, including the ostensible objects to be achieved, the evils to be
remedied, the legislative history, public policy, contemporaneous administrative
construction, and the statutory scheme of which the statute is a part.’ ” (Wilcox v.
Birtwhistle, supra, 21 Cal.4th at p. 977, quoting People v. Woodhead (1987) 43
Cal.3d 1002, 1008.)10 Had the Legislature truly intended to reverse course and
leave in place a general ban against admission of Cal-OSHA provisions, one

10
Elsner’s request that we take judicial notice of the legislative history of
Assembly Bill No. 1127 is granted. (Evid. Code, §§ 452, subd. (c), 459.)
9

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would have expected it to drop the amendment entirely and simply revert to the
original language of the statute, as it did for numerous other sections in the course
of its consideration of Assembly Bill No. 1127.11 It did not. Instead, both the
preliminary and final versions of the amendment deleted the original language,
language that had imposed a ban in clear and unmistakable terms.
Notwithstanding the August 23 revision in wording, the Legislative Counsel’s
Digest accompanying the final chaptered bill still described the amendment to
section 6304.5 as a departure from pre-1999 law excluding Cal-OSHA provisions.
(Legis. Counsel’s Dig., Assem. Bill No. 1127, Stats. 1999, ch. 615.)
Moreover, contrary to Uveges’s assertion, Assembly Bill No. 1127 was not
an omnibus workers’ compensation reform bill, but an omnibus measure intended
to increase civil and criminal sanctions against those who maintain unsafe working
conditions. A series of fatal industrial accidents provided the impetus for the bill.
(Sen. Com. on Public Safety, Analysis of Assem. Bill No. 1127, as amended Aug.
16, 1999, p. 9.) Assemblyman Darrell Steinberg introduced the bill as a worker
health and safety measure designed to prevent injuries and close loopholes in
various laws relating to workplace safety standards. (Assem. Com. on Public
Safety, Analysis of Assem. Bill No. 1127, as introduced Feb. 25, 1999.) To that
end, the bill strengthened civil, criminal, and administrative enforcement
mechanisms for ensuring workplace safety. (Ibid.)12 The Los Angeles County

11
For example, the original version of Assembly Bill No. 1127 included
revisions to sections 6302, 6308, 6315.5, 6317, 6323-6325, 6427 and 6435.
(Assem. Bill No. 1127, §§ 2, 4, 6-10, 16, 22, as introduced Feb. 25, 1999.) By the
time the final version was passed, the Legislature had eliminated any changes to
these provisions. (Assem. Bill No. 1127, as amended Sept. 3, 1999, p. 1.)
12
This focus did not shift during the amendment process. As finally enacted,
Assembly Bill No. 1127 increased the maximum criminal penalty for certain Cal-
OSHA violations from six months and $5,000 to one year and $15,000, with new

(footnote continued on next page)
10

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District Attorney, a bill cosponsor, pushed for a repeal of the ban on using Cal-
OSHA provisions in wrongful death and personal injury lawsuits, and the repeal
was included as part of the expansion of civil remedies available for violation of
safety standards. The net effect of the proposed reforms was to increase
significantly the sanctions available against those in control of workplace safety,
with the goal of deterring unsafe practices and reducing the number and severity
of future accidents. This overall purpose is consistent with our reading of the
plain language of the amendments as allowing Cal-OSHA provisions in third party
suits and thereby facilitating private suits against workplace tortfeasors. (See Day
v. City of Fontana (2001) 25 Cal.4th 268, 272.)
Third, Uveges’s interpretation is inconsistent with the structure of section
6304.5, which addresses public administrative proceedings in the first paragraph
and private court actions in the second paragraph. As originally adopted, the first
paragraph allowed the Division of Occupational Safety and Health to introduce
Cal-OSHA provisions when proving employer violations.13 (See, e.g., In re A.

(footnote continued from previous page)
corporate penalties of up to $150,000 (§ 6423); changed willful violation of a Cal-
OSHA provision causing death or prolonged impairment from a misdemeanor to a
wobbler (first offense) or felony (second offense), with new corporate penalties of
up to $3.5 million (§ 6425); increased maximum civil penalties for serious
violations from $7,000 per day to $25,000 per day (§ 6428); and substantially
broadened the definition of serious violations that would qualify for enhanced
sanctions (§ 6432), along with numerous other changes in similar veins. (Stats.
1999, ch. 615, §§ 5-7, 10.)
13
“It is 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.” (Stats. 1971, ch. 1751, § 3, p. 3780.)
Chapter 3 governed Cal-OSHA administrative hearings and orders, while chapter
4 governed administrative rehearings and judicial review.
11

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Ritter Plastering, Inc. (Feb. 11, 1992) No. 91-R4D1-041, 1992 Cal. OSHA App.
Bd. Lexis 30; In re Hudson Plastering Co., Inc. (Nov. 19, 1987) Nos. 85-R1D2-
1271, 1476, 1987 Cal. OSHA App. Bd. Lexis 8.) In contrast, the second
paragraph governed private actions by injured parties and prohibited use of those
same Cal-OSHA provisions except against one’s own employer.14 (See, e.g.,
Spencer v. G. A. MacDonald Constr. Co., supra, 63 Cal.App.3d at pp. 854-858.)
The 1999 amendments retained this subject matter division. Assembly Bill
No. 1127 left in place the first paragraph’s broad rule of admissibility for Cal-
OSHA provisions in public administrative enforcement proceedings.15 In
contrast, the bill substantially revised the second paragraph’s rules for private
actions by injured parties. It deleted the clause admitting Cal-OSHA provisions in
first party suits by employees against their own employers but excluding Cal-
OSHA provisions from third party suits.16 The bill retained the distinction

14
“Neither this division nor any part of this division shall have any
application to, nor be considered in, 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.” (Stats. 1971, ch.
1751, § 3, p. 3780.)
15
After Assembly Bill No. 1127 was introduced, the amended first paragraph
for months sat side by side with a version of the second paragraph that admitted
Cal-OSHA provisions in all private personal injury and wrongful death suits. If
the first paragraph were intended to limit such admission to actions against
employers, these provisions would have been mutually contradictory.
16 The
original
committee
bill analysis explained: “Under current law,
government regulatory standards are generally admissible into evidence in
negligence and wrongful death actions. They are typically used in such cases to
establish a standard of care. In 1971, the Legislature barred the admission into
evidence of occupational health and safety standards, and thereby created an
exception to the general rule. This bill repeals that exception.” (Assem. Com. on
Labor and Employment, Analysis of Assem. Bill No. 1127, as introduced Feb. 25,
1999, p. 6.)
12

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between private first party and third party suits, but only for the issuance or failure
to issue a citation: “Neither the issuance of, or failure to issue, a citation by the
[D]ivision [of Occupational Safety and Health] shall have any application to, nor
be considered in, any personal injury or wrongful death action, except as between
an employee and his or her own employer.” (Assem. Bill No. 1127, § 3, as
introduced Feb. 25, 1999.) This subject matter division indicates that the
references to Evidence Code sections 452 and 669 relate to their use in private
actions, not public enforcement proceedings.
Fourth, Uveges’s suggested interpretation renders part of section 6304.5
superfluous. The issue of negligence does not arise in either the strict liability
workers’ compensation scheme or Cal-OSHA administrative enforcement
proceedings, and thus a provision allowing application of negligence per se in
those contexts would serve no real purpose. We will avoid constructions that
render parts of a statute surplusage. (Arnett v. Dal Cielo (1996) 14 Cal.4th 4, 22;
Brown v. Superior Court (1984) 37 Cal.3d 477, 484.)
Instead, the most sensible explanation of the August 23 amendment is this:
As originally drafted, the proposed amendment to section 6304.5 could have been
interpreted to offer greater admissibility for Cal-OSHA provisions than for other
statutes and regulations. Instead of simply restoring the pre-1971 state of affairs,
under which statutes could be admitted to establish a presumption of negligence
only when the requirements of Evidence Code section 669 were met, the original
version of Assembly Bill No. 1127 would have provided an independent basis for
admitting Cal-OSHA provisions whether or not these threshold criteria were met.
The August 23 amendment cured that anomaly; consistent with the purpose
articulated in an earlier bill summary, it effectively reextended to Cal-OSHA
provisions the “usual rule of admissibility of statutes and regulations in court
proceedings.” (See Sen. Com. on Public Safety, Analysis of Assem. Bill No.
13

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1127, as amended Aug. 16, 1999.) In doing so, the amendment also reextended
the limits on admissibility, including the requirements that the exercise of due care
be in issue, the statute actually apply to the defendant, the injured party be a
member of the class the statute was intended to protect, and the injury result from
an occurrence the statute was designed to prevent. (Evid. Code, § 669, subd.
(a)(1), (3), (4).)
Uveges argues that a late change in the 1999 amendments precludes
interpreting them as allowing admission of Cal-OSHA provisions in third party
suits. On September 3, 1999, the Senate added a sentence stating: “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.” (Assem. Bill No. 1127, § 2, as amended in Sen.,
Sept. 3, 1999.) In Brock, the plaintiffs were injured in an explosion and fire at a
paper plant. They sued numerous defendants, including the State of California.
They contended that under Cal-OSHA, the state had a statutory duty to inspect
facilities to ensure they were safe,17 that it had breached that duty, and that the
plaintiffs could maintain a tort action based on the breach. (Brock v. State of
California, supra, 81 Cal.App.3d at pp. 754-755 (Brock).) The trial court
sustained a demurrer, and the Court of Appeal affirmed. Relying on section
6304.5, the Court of Appeal rejected the plaintiffs’ attempt to make any Cal-
OSHA duty of inspection enforceable in tort: “[D]ay-to-day operating control
over safety conditions rests with the employer alone. Since third parties, including
the state, are not in control of such day-to-day operations . . . the Legislature

17
See, e.g., sections 6307, 6309, 6327.5.
14

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sensibly limited the applicability of the [Cal-OSHA] safety provisions to actions
involving employers alone.” (Brock, at pp. 757-758.)
Uveges argues, and the Court of Appeal agreed, that the insertion of a
reference to Brock was intended to reinstate the broad pre-1999 ban on admission
of Cal-OSHA provisions against third parties to show negligence per se. In
contrast, Elsner argues that the reference to Brock was intended not to negate the
general repeal of that ban, but to preserve an exception for suits against the State
of California based on the duty to inspect worksites and enforce safety rules; as to
such suits, plaintiffs would still be precluded from using these statutory duties to
support negligence liability. We conclude Elsner’s narrower interpretation is
correct.
First, when interpreting a statute, we must harmonize its various parts if
possible, reconciling them in the manner that best carries out the overriding
purpose of the legislation. (Russell v. Stanford University Hospital (1997) 15
Cal.4th 783, 789.) An interpretation of the Brock clause as applying only to state
duty suits avoids any contradictions with other parts of section 6304.5. If we were
to interpret the Brock clause as preserving the general exclusion of Cal-OSHA
provisions in third party suits, it would conflict with that portion of the statute
admitting such provisions under Evidence Code sections 452 and 669. The
narrow reading of the Brock clause is also consistent with the general purpose of
Assembly Bill No. 1127, a measure intended to deter unsafe workplace practices
by expanding sanctions for the violation of safety standards.
Second, Elsner’s interpretation of “the holding in Brock” (§ 6304.5) is
consistent with the line we have drawn between “holdings and mere descriptive
language” (Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1157).
The holding of a case is coextensive with its particular facts. (Ibid.) Because
under the facts of Brock, the only issue was whether the State of California could
15

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be sued for breach of its Cal-OSHA duties, Brock’s holding encompassed only the
conclusion that the state could not be sued for any breach. The Brock court recited
the language of former section 6304.5 in arriving at this conclusion (Brock, supra,
81 Cal.App.3d at p. 756), but under Harris this recitation of a relevant statute was
descriptive language about the then extant state of the law, not a holding.
Third, this interpretation explains why the Legislature chose to reference
Brock, of all cases. Had the Legislature intended to leave in place a general ban
against admission of Cal-OSHA provisions, it might have simply reverted back to
the original language of the statute or chosen any of a number of more frequently
cited cases to stand for the general proposition that Cal-OSHA regulations are
inadmissible. (See, e.g., Griesel v. Dart Industries, Inc., supra, 23 Cal.3d at
p. 588; Widson v. International Harvester Co. (1984) 153 Cal.App.3d 45, 51-52;
Spencer v. G. A. MacDonald Constr. Co., supra, 63 Cal.App.3d at p. 860.) Like
Holmes’s dog that did not bark,18 the fact the Legislature did neither of these
things is instructive and suggests that the aspects of Brock the Legislature intended
to preserve are unique to that case. The one unique aspect of Brock is its holding
that breach of the state’s duty to enforce safety rules does not give rise to tort
liability. (Brock, supra, 81 Cal.App.3d at pp. 757-758.)
Fourth, the amendment’s subsequent legislative history supports the
conclusion that the Brock reference was not intended to change the rule allowing
admission of Cal-OSHA provisions for purposes of negligence per se. After the
Senate amended Assembly Bill No. 1127, the Assembly was required to concur in
the changes. The Assembly Floor Analysis explained that under Assembly Bill

18 See
Doyle,
Silver Blaze in The Complete Sherlock Holmes (1960)
page 347.
16

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No. 1127, as amended September 3, 1999, and passed by the Senate on
September 7, 1999, the effect of the Senate amendments was to “[c]larify that
[Cal-]OSHA statutes and regulations, but not citations or orders, may be admitted
into evidence, in the same manner as other statutes and regulations.” (Assem.
Floor Analysis, Assem. Bill No. 1127, as amended Sept. 3, 1999, p. 1.)
After the Assembly passed Assembly Bill No. 1127, the Department of
Industrial Relations submitted an enrolled bill report to the Governor reflecting the
same understanding.19 As explained by the enrolled bill report, the amendment to
section 6304.5 “would change existing law to make statutes and regulations
enforceable by the Division [of Occupational Safety and Health] admissible in
personal injury and wrongful death lawsuits so that litigants in these actions could
use these provisions as standards for determining negligence.” (Dept. of Industrial
Relations, Enrolled Bill Rep. on Assem. Bill No. 1127 prepared for Governor
Davis (Sept. 1999) p. 1.) The enrolled bill report noted that Brock, supra, 81
Cal.App.3d 752, was the leading authority for excluding Cal-OSHA provisions
establishing state mandatory duties from private lawsuits and concluded that the
amendment relating to Brock was probably intended to retain this partial state
immunity. We agree.

19
Uveges challenges Elsner’s reliance on the enrolled bill report, arguing that
it is irrelevant because it was prepared after passage. However, we have routinely
found enrolled bill reports, prepared by a responsible agency contemporaneous
with passage and before signing, instructive on matters of legislative intent. (See,
e.g., Lolley v. Campbell (2002) 28 Cal.4th 367, 375-376 [Department of Industrial
Relations enrolled bill report]; Dyna-Med, Inc. v. Fair Employment & Housing
Com. (1987) 43 Cal.3d 1379, 1399 [same]; Yamaha Corp. v. State Bd. of
Equalization (1998) 19 Cal.4th 1, 22-23; Lockheed Information Management
Services Co. v. City of Inglewood (1998) 17 Cal.4th 170, 184.) Though we do not
give great weight to the report, it is instructive here.
17

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Finally, Uveges contends that the amendment of an entirely different
section, section 6400, demonstrates the Legislature did not intend to change the
existing ban. Assembly Bill No. 1127 also added section 6400, subdivisions (b)
and (c), the latter of which provides: “It is the intent of the Legislature, in adding
subdivision (b) to this section to codify existing regulations with respect to the
responsibility of employers at multi-employer worksites. Subdivision (b) of this
section is declaratory of existing law and shall not be construed or interpreted as
creating a new law or as modifying or changing an existing law.” But this
subdivision plainly refers only to the changes made to section 6400, subdivision
(b), which codified an existing Cal-OSHA regulation (see Cal. Code Regs., tit. 8,
§ 336.10); it does not apply to any other section of Assembly Bill No. 1127. As
discussed throughout the bill’s legislative history, the purpose of the bill was to
change existing law and specifically to expand civil and criminal penalties for
failure to maintain a safe workplace. When the Legislature amends a statute, we
will not presume lightly that it “engaged in an idle act.” (California Teachers
Assn. v. Governing Bd. of Rialto Unified School Dist. (1997) 14 Cal.4th 627, 634.)
Thus, we reject the assertion that despite having substantially reworked the
language of section 6304.5, the Legislature intended no change in the law.
Amici curiae on behalf of Uveges argue that our interpretation of Assembly
Bill No. 1127 generates equal protection and due process problems because on the
one hand, it allows an injured plaintiff to submit a Cal-OSHA provision as proof
of the standard of care, while on the other, it prevents a defendant from submitting
evidence that the Division of Occupational Safety and Health investigated and
issued no citation. Amici curiae also complain that the statute unfairly permits
employers, but not nonemployers, to submit proof that they were not cited for a
violation. These comparisons are misleading. Assembly Bill No. 1127 is even-
handed, as it prevents nonemployer defendants from showing that no citation was
18

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issued but also prevents nonemployee plaintiffs from showing that a citation was
issued. A legislative judgment was made that in third party cases such evidence,
on either side, ought not to play a role in the jury’s deliberations. Defendants have
no constitutional entitlement to use such evidence, and its exclusion does not
render unconstitutional an otherwise routine extension of the doctrine of
negligence per se. Nor is there any constitutional infirmity in the differing
treatment of first party cases; there too, the Legislature created a level playing
field, allowing employers to introduce proof of no citation, but also allowing
employees to introduce proof that a citation was issued, evidence from which
nonemployers like Uveges are shielded.
We summarize our conclusions. The first paragraph of section 6304.5
addresses the applicability of Cal-OSHA provisions to administrative proceedings
brought by the Division of Occupational Safety and Health against employers to
enforce worker safety standards. The provisions of Cal-OSHA are broadly
applicable to such proceedings. This paragraph has no bearing on actions such as
the one in this case.
The second paragraph of section 6304.5 catalogues the rules for the
admissibility of Cal-OSHA provisions in trial court personal injury and wrongful
death actions. In general, plaintiffs may use Cal-OSHA provisions to show a duty
or standard of care to the same extent as any other regulation or statute, whether
the defendant is their employer or a third party. The lone exception arises when
the state is the defendant based on actions it took or failed to take in its regulatory
capacity; in such cases, Cal-OSHA provisions remain inadmissible to show
liability based on breach of the statutory duty to inspect worksites and enforce
safety rules.
19

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II. Application of Section 6304.5
A. Retroactivity
In this case, Elsner’s expert testified to the content of various Cal-OSHA
provisions for purposes of establishing the relevant standard of care. (Lab. Code,
§§ 6400, 6401, 6403, 7151; Cal. Code Regs., tit. 8, §§ 1513, 1637, 1640.) The
jury was instructed on the requirements of these Cal-OSHA provisions, instructed
on the duties imposed by sections 6400, 6401 and 6403, and instructed on
negligence per se. This testimony and these instructions were consistent with
section 6304.5 as amended. However, Uveges contends the application of
amended section 6304.5 to this case violates the presumption against the
retroactive application of laws because the accident occurred before Assembly Bill
No. 1127 took effect on January 1, 2000.20
New statutes are presumed to operate only prospectively absent some clear
indication that the Legislature intended otherwise. (Tapia v. Superior Court
(1991) 53 Cal.3d 282, 287 (Tapia); Evangelatos v. Superior Court (1988) 44
Cal.3d 1188, 1207; Aetna Cas. & Surety Co. v. Ind. Acc. Com. (1947) 30 Cal.2d
388, 393 (Aetna Casualty).) However, this rule does not preclude the application
of new procedural or evidentiary statutes to trials occurring after enactment, even
though such trials may involve the evaluation of civil or criminal conduct
occurring before enactment. (Tapia, at pp. 288-289.) This is so because these
uses typically affect only future conduct—the future conduct of the trial. “Such a

20
Elsner argues that Uveges waived this issue by failing to raise it in his
answer to the petition for review. (See Cal. Rules of Court, rules 28(c),
29.1(b)(3).) Uveges did not waive the issue. He raised the retroactivity issue in
his opening brief in the Court of Appeal and again in his answer to the petition for
review, and both parties briefed the issue on the merits. We may consider it.
20

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statute ‘is not made retroactive merely because it draws upon facts existing prior
to its enactment . . . . [Instead,] [t]he effect of such statutes is actually prospective
in nature since they relate to the procedure to be followed in the future.’
[Citations.] For this reason, we have said that ‘it is a misnomer to designate [such
statutes] as having retrospective effect.’ ” (Id. at p. 288.)
In deciding whether the application of a law is prospective or retroactive,
we look to function, not form. (Tapia, supra, 53 Cal.3d at p. 289; Aetna Casualty,
supra, 30 Cal.2d at p. 394.) We consider the effect of a law on a party’s rights and
liabilities, not whether a procedural or substantive label best applies. Does the law
“change[] the legal consequences of past conduct by imposing new or different
liabilities based upon such conduct?” (Tapia, at p. 291.) Does it “substantially
affect[] existing rights and obligations?” (Aetna Casualty, at p. 395.) If so, then
application to a trial of preenactment conduct is forbidden, absent an express
legislative intent to permit such retroactive application. If not, then application to
a trial of preenactment conduct is permitted, because the application is
prospective.
The amendments to section 6304.5 were used in three ways in this case: to
allow Cal-OSHA provisions to be introduced to establish a duty of care, to allow
Cal-OSHA provisions to be introduced to establish the standard of care, and to
allow the burden of proof to shift to Uveges once a violation of Cal-OSHA was
found. We consider each in turn.
The admission of provisions imposing broader duties on a defendant than
existed under the common law expands the defendant’s liability. It attaches tort
liability to the violation of statutes and regulations that previously could give rise
only to civil and criminal penalties. (See §§ 6317, 6423, 6425, 6427-6430.)
Because such a use “impos[es] new or different liabilities based upon . . . [past]
conduct” (Tapia, supra, 53 Cal.3d at p. 291), it is retroactive.
21

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Here, however, the admission of sections 6400, 6401 and 6403 did not
expand Uveges’s common law duty of care. These provisions imposed on Uveges
the duty to furnish a safe place of employment, to use safe practices and
procedures, and to provide and use appropriate safety devices and safeguards.
(§§ 6400, 6401, 6403.) But Uveges already owed Elsner a common law duty to
provide safe equipment: “[W]hen a hirer of an independent contractor, by
negligently furnishing unsafe equipment to the contractor, affirmatively
contributes to the injury of an employee of the contractor, the hirer should be
liable to the employee for the consequence of the hirer’s own negligence.”
(McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th 219, 225.) At trial, this case
proceeded on a single theory: Uveges negligently furnished unsafe scaffolding
that contributed to Elsner’s injury. That Frey, Uveges’s agent, constructed the
scaffolding from which Elsner fell was undisputed. Also undisputed was that
when Uveges furnished scaffolding for the construction project, he had a common
law duty to furnish safe scaffolding. The principal issues were breach, causation,
and comparative negligence: whether the scaffolding met the standard of care,
whether any defects contributed to Elsner’s injuries, and whether Elsner’s own
conduct contributed to his injuries. Thus, Uveges cannot complain that the jury
verdict in this case arose from a retroactive expansion of his duty of care.
We reach a different result with respect to the use of Cal-OSHA provisions
to establish the standard of care and shift the burden of proof. Morris v. Pacific
Electric Railway Company (1935) 2 Cal.2d 764 is instructive. In Morris, an
automobile driver sued the defendant railway following a collision with one of the
defendant’s trains. The railway requested, and was erroneously denied, an
instruction that if the plaintiff was speeding, he was contributorily negligent as a
matter of law and was barred from recovery. (Id. at pp. 766-767.) Before this
court, the plaintiff argued that any error was harmless because after the accident
22

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and trial the Legislature changed the presumption of negligence arising from
speeding from a conclusive to a permissive one and shifted the burden of proof to
the opposing party to prove that the driver was in fact negligent. (Id. at pp. 767-
768.) We rejected the notion that these legislative changes were purely procedural
and evidentiary and thus would apply prospectively to any retrial, rendering the
error in the first trial harmless. Instead, we held that the defendant had a
substantive right to have the case tried under the rules of negligence per se
applicable at the time of the accident, and that the changes in the application of
negligence per se—no longer letting the speed limit define the plaintiff’s standard
of care and shifting the burden of proof to the defendant—could not be applied
retroactively to a preamendment accident. (Id. at pp. 768-769.)
The same principles and conclusions apply in this case, where the trial
court instructed the jury on new postaccident rules with respect to the standard of
care and burden of proof. Though superficially procedural and evidentiary,
Assembly Bill No. 1127’s new rules would, if applied here, change the legal
consequences of Uveges’s past conduct by making him potentially liable for
conduct that might have satisfied the applicable 1998 common law standard of
care but not specific Cal-OSHA provisions. To allow a jury in 2001 to decide
whether Uveges had breached his duty of care in 1998 by considering Cal-OSHA
provisions not previously admissible would be “ ‘to apply the new law of today to
the conduct of yesterday.’ ” (Fox v. Alexis (1985) 38 Cal.3d 621, 626, quoting
Pitts v. Perluss (1962) 58 Cal.2d 824, 836.)21 Nothing in the text of Assembly

21
Moreover, it is well established that the use of a new statute or ordinance to
measure whether preenactment conduct satisfied the standard of care is a
retroactive, and generally impermissible, application of the statute or ordinance.
(Akins v. County of Sonoma (1967) 67 Cal.2d 185, 194; Salinero v. Pon (1981)
124 Cal.App.3d 120, 132; Zellers v. State of California (1955) 134 Cal.App.2d

(footnote continued on next page)
23

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Bill No. 1127 or its legislative history indicates that the Legislature intended
retroactive application. Thus, application of amended section 6304.5 to this case
was error.
B. Harmless Error Analysis
We consider whether the error was harmless. We will not reverse a
judgment unless “after an examination of the entire cause, including the
evidence,” it appears the error caused a “miscarriage of justice.” (Cal. Const., art.
VI, § 13.) In the case of civil state law error, this standard is met when “there is a
reasonable probability that in the absence of the error, a result more favorable to
the appealing party would have been reached.” (Soule v. General Motors Corp.
(1994) 8 Cal.4th 548, 574.)
The erroneous application of amended section 6304.5 to this case had four
related effects on the evidence and instructions. First, it permitted Elsner’s expert
to testify that the scaffold violated Cal-OSHA provisions. Second, it precluded
Uveges’s expert from testifying that the scaffold met the industry standard of care
for jobs of this nature, as the record establishes he was prepared to do; the trial
court granted Elsner’s motion in limine excluding any testimony of industry
custom and practice at odds with the requirements of Cal-OSHA provisions.
Third, it permitted Elsner’s attorney on cross-examination to extract the
concession from Uveges’s expert that the scaffold was constructed in violation of
Cal-OSHA. Fourth, it resulted in the jury being instructed that if it found a Cal-

(footnote continued from previous page)
270, 276.) Though the Cal-OSHA provisions at issue were on the books in 1998,
former section 6304.5 excluded them from consideration in evaluating the
standard of care.
24

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OSHA violation, the burden was on Uveges to prove that he was not negligent
because circumstances prevented compliance or justified noncompliance.
Elsner argues that testimony on industry custom and practice at odds with
the applicable Cal-OSHA provisions was inadmissible in any event. He relies on
the settled rule that “evidence of custom and practice may not be used to
contravene a statutory duty of care.” (Hom v. Clark (1963) 221 Cal.App.2d 622,
650.) “ ‘We do not think that an established use or custom among men engaged in
the same line of work can avail as against the positive requirements of the
ordinance, or statute. In fact, a breach of a legal duty, or a duty imposed by law,
comes within the very definition of negligence; and, if such be the proximate
cause of an injury, it constitutes actionable negligence.’ ” (Hurtel v. Albert Cohn,
Inc. (1936) 5 Cal.2d 145, 148-149, quoting Stultz v. Thomas (1921) 182 N.C. 470,
473; see also Shuff v. Irwindale Trucking Co. (1976) 62 Cal.App.3d 180, 188;
Transamerica Title Ins. Co. v. Green (1970) 11 Cal.App.3d 693, 702-703;
Anderson v. L. C. Smith Constr. Co. (1969) 276 Cal.App.2d 436, 444.)
Under the current version of section 6304.5, this rule would require the
exclusion of custom and practice testimony at odds with Cal-OSHA provisions.
But the rule is subject to a limiting principle: it applies only to those statutes and
ordinances that set out a duty or standard of care. Under former section 6304.5,
Cal-OSHA provisions did not establish either duties or standards of care. Implicit
in the Legislature’s pre-1999 exclusion of these provisions from third party actions
was a judgment that the provisions might set out standards different from or
greater than the requisite common law standard of care—indeed, that the Division
of Occupational Safety and Health ought to be free to adopt such stricter
standards—but that those provisions would not establish or modify the applicable
standard of care. It follows that until January 1, 2000, an industry could adopt a
custom or practice that was consistent with the common law standard of care even
25

---

though it fell afoul of applicable safety orders. (See Spencer v. G. A. MacDonald
Constr. Co., supra, 63 Cal.App.3d at pp. 857-858.) Consequently, in cases
involving pre-2000 accidents, evidence of such customs and practices would still
be admissible, because it would not contradict any statutorily established standard
of care.22 Hence, the exclusion of expert testimony on custom and practice was
error.
Thus, on the key question whether Uveges had breached the applicable
standard of care, the trial court’s rulings deprived the jury of a choice. Instead of
having to decide between two experts who disagreed whether Uveges had satisfied
the standard of care, the jury was presented with two experts who agreed the
scaffolding violated Cal-OSHA provisions and thus (given Uveges’s concession
that nothing prevented him from complying with Cal-OSHA) that Uveges had
breached the applicable standard of care. In effect, Uveges was deprived of the
defense that the scaffold met the applicable standard of care. There is a reasonable
probability that absent this error, a different outcome would have resulted.

22
Bizarre consequences would arise were this not so. If Cal-OSHA
provisions made inadmissible by former section 6304.5 could still be used to
exclude any evidence of the reasonableness of practices that contradicted them, the
result would be identical to admission of those provisions to set the standard of
care—the precise outcome that, until 1999, was forbidden.
26

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DISPOSITION
For the foregoing reasons, we affirm the judgment of the Court of Appeal
and remand the case for further proceedings consistent with this opinion.

WERDEGAR, J.
WE CONCUR:
GEORGE, C. J.
KENNARD, J.
BAXTER, J.
CHIN, J.
BROWN, J.
MORENO, J.

27

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Elsner v. Uveges
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 106 Cal.App. 4th 73
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S113799
Date Filed: December 20, 2004
__________________________________________________________________________________

Court:

Superior
County: San Diego
Judge: Thomas Oliver LaVoy

__________________________________________________________________________________

Attorneys for Appellant:

Bonesteel & Associates, Summers & Shives, Scott M. Bonesteel and Jodi E. Lambert for Defendant and
Appellant.

Horvitz & Levy, Lisa Perrochet, William N. Hancock and Tracy L. Turner for American International
Group, Inc., Swinerton Builders, Swinerton Incorporated and SME Steel Contractors, Inc., as Amici Curiae
on behalf of Defendant and Appellant.

Marguerite I. Delbourgo for Intervener and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Singleton & Associates, Terry Singleton, Horatio Barraza; Law Offices of Daniel U. Smith and Daniel U.
Smith for Plaintiff and Respondent.

William A. Herreras and John Messer for California Applicants’ Attorneys Association as Amicus Curiae
on behalf of Plaintiff and Respondent.

James C. Sturdevant; William L. Veen; Brian C. Unitt; Ian Herzog; David A. Rosen; The Arns Law Firm,
Morgan C. Smith and Robert S. Arns for Consumer Attorneys of California as Amicus Curiae on behalf of
Plaintiff and Respondent.

Michael D. Mason for State of California, Department of Industrial Relations as Amicus Curiae on behalf
of Plaintiff and Respondent.

28

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Counsel who argued in Supreme Court (not intended for publication with opinion):

Scott M. Bonesteel
Summers & Shives
8755 Aero Drive, Suite 230
San Diego, CA 92123
(858) 874-1800

Daniel U. Smith
Law Offices of Daniel U. Smith
Post Office Box 278
Kentfield, CA 94914
(415) 461-5630


29

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Opinion Information

Date:	Docket Number:
Mon, 12/20/2004	S113799

Disposition
Dec 20 2004	Opinion: Affirmed with directions

Dockets
Feb 25 2003	Petition for review filed   by counsel for respondent (Rowdy Elsner) (40k) Exp. Mail
Feb 25 2003	Record requested
Feb 26 2003	Received Court of Appeal record   two doghouses
Feb 27 2003	Filed:   cert of word count for petn for rev.
Feb 28 2003	Request for judicial notice received (pre-grant)   Petitioner's (respondent's) Request for Judicial Notice
Mar 6 2003	Received:   errata to petn for review
Mar 13 2003	Answer to petition for review filed   appellant Carl Uveges dba CBU Builders
Apr 18 2003	Time extended to grant or deny review   to 5-23-03
Apr 30 2003	Petition for Review Granted (civil case)   Request for judicial notice granted. Votes: George, C.J., Kennard, Werdegar, Chin & Moreno JJ.
May 9 2003	Certification of interested entities or persons filed   by intervenor State Comp.
May 12 2003	Certification of interested entities or persons filed   by counsel for resp
May 16 2003	Certification of interested entities or persons filed   by counsel for aplt
May 19 2003	Opening brief on the merits filed   Intervenor's (State Comp Ins Fund) Notice of Intention to Rely on Appellate Brief (Aplt's o[pening Brief)
May 29 2003	Request for extension of time filed   by respondent (Rowdy Elsner) for a 10-day e.o.t. through June 9, 2003, to file the Answer Brief on the Merits.
Jun 5 2003	Extension of time granted   On application of Respondent Rowdy Elsner and good cause appearing, it is ordered that the time to serve and file the Opening Brief on the Merits is extended to and including June 9, 2003.
Jun 10 2003	Opening brief on the merits filed   by attorneys for plaintiff and respondent (Rowdy Elsner) 40k/Express Mail
Jun 23 2003	Request for judicial notice filed (in non-AA proceeding)   by resp (two volumes)
Jul 1 2003	Request for extension of time filed   to file answer brief/merits to 7-25-03>>appellant Carl Uveges
Jul 1 2003	Received:   Fax from L. A. Office re: appellant's 15-day extension request to 7-25-2003, to file the answer brief on the merits.
Jul 9 2003	Extension of time granted   to 7-25-03 for aplt to file the answer brief on the merits.
Jul 21 2003	Answer brief on the merits filed   respondent Carl Uveges
Jul 30 2003	Request for extension of time filed   by resp Elsner to file the reply brief on the merits, to 9-4-03.
Aug 1 2003	Extension of time granted   to 9-4-03 for resp to file the reply brief on the merits.
Aug 25 2003	Received application to file amicus curiae brief; with brief   from Calif. Applicants' Attorneys Association in support of resp Elsner
Sep 2 2003	Permission to file amicus curiae brief granted   The application of California Applicants' Attorneys Association for permission to file an amicus curiae brief in support of respondent is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Sep 2 2003	Amicus curiae brief filed   by California Applicants' Attorneys Association in support of respondent
Sep 4 2003	Request for extension of time filed   for resp to file the reply brief on the merits, to 9/19.
Sep 9 2003	Extension of time granted   to 9-19-03 for resp Elsner to file the reply brief on the merits.
Sep 22 2003	Reply brief filed (case fully briefed)   by Respondent Elsner [with permission]
Sep 22 2003	Received:   Plaintiff/Respondent Elsner's application for permission to file reply brief of 5,037 words, exceeding the 4,200 word count limit. (CRC 29.1(c). Reply Brief on the Merits separate.
Oct 16 2003	Received application to file amicus curiae brief; with brief   from Consumer Attorneys of California
Oct 21 2003	Permission to file amicus curiae brief granted   The application of Consumer Attorneys of California for permission to file an amicus curiae brief in support of Plaintiff and Respondent (Elsner) is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Oct 21 2003	Amicus curiae brief filed   Consumer Attorneys of Caifornia in support of plaintiff and respondent (Elsner)
Oct 22 2003	Received application to file amicus curiae brief; with brief   Swinerton Builders, etal [in support of applt] [applctn w/i brief]
Oct 24 2003	Received application to file amicus curiae brief; with brief   from State of Calif, Dept of Industrial Relations
Oct 29 2003	Permission to file amicus curiae brief granted   by American International Group, Swinerton Builders, et al in support of aplt. Answers may be filed w/in 20 days
Oct 29 2003	Amicus curiae brief filed   by American International Group, Swinerton Bldrs. et al in support of aplt.
Oct 29 2003	Permission to file amicus curiae brief granted   by State of Calif. Department of Industrial Relations in support of resp. Answers may be filed w/in 20 days.
Oct 29 2003	Amicus curiae brief filed   by State of Ca.if. Dept of Industrial Relations in support of resp.
Nov 12 2003	Response to amicus curiae brief filed   by resp Elsner to the A/C brief of Swinerton et al (timely per CRC 40k)
Nov 12 2003	Response to amicus curiae brief filed   to ac brief of Consumer Attys of Calif >>appellant Carl Uveges [rule 40k]
Aug 11 2004	Case ordered on calendar   rescheduled to 10-5-04 (L.A.) (was 9-8-04, 9am, S.F.)
Aug 16 2004	Filed:   counsel for appellant CARL UVEGES request continuance of Oral Argument schd for 9-8-04 @ 9am in San Francisco
Aug 17 2004	Argument rescheduled   to the October 5, 2004 calendar (Los Angeles)
Aug 23 2004	Filed:   Request of intervenor State Comp. for 10 min of oral arg time.
Sep 1 2004	Filed:   Response of resp Elsner to intervenor's request for oral argument time.
Sep 1 2004	Case ordered on calendar   10/5/04 @ 9am - Los Angeles
Sep 13 2004	Opposition filed   by Resp Elsner to intervenor's request for oral argument time.
Sep 15 2004	Request Denied   The request by intervenor for oral argument time filed on August 23, 2004, is denied.
Oct 5 2004	Cause argued and submitted
Dec 20 2004	Opinion filed: Affirmed in full with directions   Majority opinion by Werdegar, J. ----------------------joined by George, C.J., Kennard, Baxter, Chin, Brown, Moreno, JJ.
Jan 5 2005	Rehearing petition filed   by petnr (CRC 40.1b)
Jan 10 2005	Time extended to consider modification or rehearing   to 3-18-05, or the date upon which rehearing is either granted or denied, whichever occurs first.
Jan 14 2005	Received:   defts-aplts' answer to petition for rehearing. (approval needed for filing, see CRC rule 25(b)(2))
Jan 24 2005	Answer to rehearing petition filed   by defts-aplts
Feb 3 2005	Received:   letter from A/C Consumer Attorneys of Calif.
Feb 23 2005	Rehearing denied
Feb 23 2005	Remittitur issued (civil case)

Briefs
May 19 2003	Opening brief on the merits filed
Jun 10 2003	Opening brief on the merits filed
Jul 21 2003	Answer brief on the merits filed
Sep 2 2003	Amicus curiae brief filed
Sep 22 2003	Reply brief filed (case fully briefed)
Oct 21 2003	Amicus curiae brief filed
Oct 29 2003	Amicus curiae brief filed
Oct 29 2003	Amicus curiae brief filed
Nov 12 2003	Response to amicus curiae brief filed
Nov 12 2003	Response to amicus curiae brief filed

If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website