Bennett et al v. Simplexgrinnell LP

Filing 199

ORDER GRANTING PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT AND DENYING MOTION TO STRIKE AS MOOT by Judge Jon S. Tigar, granting 137 Motion for Partial Summary Judgment; denying as moot 175 Motion to Strike. (wsn, COURT STAFF) (Filed on 3/5/2014)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
DON C. BENNETT, et al.,

7

Case No. 11-cv-01854-JST

Plaintiffs,
8
v.
9
SIMPLEXGRINNELL LP,

10

Defendant.

ORDER GRANTING PLAINTIFFS’
MOTION FOR PARTIAL SUMMARY
JUDGMENT AND DENYING MOTION
TO STRIKE AS MOOT
Re: ECF No. 137, 175

United States District Court
Northern District of California

11
In this action for alleged violations of California’s labor laws, Plaintiffs move for partial

12
13

summary judgment on the issue of whether the stand-alone testing and inspection of fire alarm and

14

sprinkler systems at issue in this action is subject to the payment of prevailing wages under

15

California Labor Code section 1771.1 Defendant SimplexGrinnell opposes the motion and moves

16

to strike the expert testimony and report of Dr. Nareau, which Plaintiffs filed in support of their

17

motion for partial summary judgment. For the reasons set forth below, Plaintiffs’ motion is

18

GRANTED, and Defendants’ motion is DENIED AS MOOT.

19

I.

BACKGROUND

20

A.

The Parties and Claims

21

Plaintiffs worked as inspectors on public works projects in California as employees of

22

Defendant SimplexGrinnell.2 Third Am. Compl. (“TAC”) ¶ 1, ECF No. 125. SimplexGrinnell

23

designs, engineers, and installs life safety systems, and it employs workers to inspect, test,

24

maintain, repair, and monitor those systems. Id. ¶¶ 14, 19.
Plaintiffs bring this action against SimplexGrinnell on their own behalf and on behalf of

25
26
27
28

1

To the extent that Plaintiffs seek a determination as to the applicability of section 1771 to testing
and inspection work that is not at issue in this action, the motion is DENIED.
2
Plaintiffs are Don Bennett, Comerlis Delaney, Gary Robinson, Darren Scott, and Jon Hotzler.

1

others similarly situated for claims arising out of SimplexGrinnell’s purported failure to comply

2

with various California labor laws. Plaintiffs assert the following claims in the operative

3

complaint: (1) failure to pay prevailing wages in violation of California Labor Code sections

4

1720-1861; (2) failure to pay wages owed upon termination in violation of California Labor Code

5

section 203; (3) unfair competition in violation of California Business and Professions Code

6

section 17200; and (4) a claim for penalties under the California Private Attorney General Act.

7

B.

Undisputed Facts

8

Simplex installs and services fire alarm and sprinkler systems for public and private

9

customers. Gilbride Decl., Ex. 4, Goodrich Dep. at 16:14-17:13. SimplexGrinnell performs work
for public customers, including inspecting, testing, and servicing of fire alarms and sprinkler

11
United States District Court
Northern District of California

10

systems, but only after it has submitted a bid on a contract and the bid has been accepted by a

12

public customer. Id. at 16:14-17:13; 25:3-28:11; Gilbride Decl., Ex. 5, Ochoa Dep. at 28:17-

13

29:23. The vast majority of the inspections performed by SimplexGrinnell are performed pursuant

14

to preventative maintenance agreements (“PMAs”), which are negotiated contracts that cover

15

testing and inspection over a fixed period of time, as well as labor, parts, and servicing of the

16

systems if the inspection reveals a problem. Gilbride Decl., Ex. 6, Shaffer Dep. at 44:13-16;

17

Ochoa Dep. at 28:20-29:9. SimplexGrinnell’s inspectors perform stand-alone testing and

18

inspection work under the PMAs. Gilbride Decl., Ex. 7, Bernot Dep. at 32:14-33:1.

19

SimplexGrinnell does not pay these inspectors prevailing wages for the stand-alone testing and

20

inspection work.3 Ochoa Dep. at 125:17; Gilbride Decl., Ex. 13, CA PW SOPs at SGCA360573

21

& SGCA360582 (Simplex’s Standard Operating Procedures for California Prevailing Wage Law

22

Compliance) (providing that “[a]t this time, PMA sales that are strictly test and inspection only,

23

are not subject to the payment of prevailing wage”).

24

C.

Jurisdiction

25

The Court has jurisdiction over this action under 28 U.S.C. § 1332(d).

26
27
28

3

By contrast, SimplexGrinnell’s technicians and other employees who perform more laborintensive five-year inspections are paid the applicable prevailing wage rates. Ochoa Dep. at
125:14-16.
2

1
2

II.

LEGAL STANDARD
Summary judgment or partial summary judgment is proper when “there is no genuine

3

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

4

Civ. P. 56(a). A dispute is genuine only if there is sufficient evidence for a reasonable fact finder

5

to find for the non-moving party, and it is material only if the fact may affect the outcome of the

6

case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). “In considering a motion

7

for summary judgment, the court may not weigh the evidence or make credibility determinations,

8

and is required to draw all inferences in a light most favorable to the non-moving party.” Freeman

9

v. Arpaio, 125 F.3d 732, 735 (9th Cir.1997). A court must draw all reasonable inferences in the
light most favorable to the non-moving party. Johnson v. Rancho Santiago Cmty. Coll. Dist., 623

11
United States District Court
Northern District of California

10

F.3d 1011, 1018 (9th Cir. 2010).

12

Where the party moving for summary judgment would bear the burden of proof at trial,

13

that party bears the initial burden of producing evidence that would entitle it to a directed verdict if

14

uncontroverted at trial. See C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474,

15

480 (9th Cir. 2000). Where the party moving for summary judgment would not bear the burden of

16

proof at trial, that party bears the initial burden of either producing evidence that negates an

17

essential element of the non-moving party’s claim, or showing that the non-moving party does not

18

have enough evidence of an essential element to carry its ultimate burden of persuasion at trial. If

19

the moving party satisfies its initial burden of production, then the non-moving party must produce

20

admissible evidence to show that a genuine issue of material fact exists. See Nissan Fire &

21

Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102-03 (9th Cir. 2000).

22

The non-moving party must “identify with reasonable particularity the evidence that

23

precludes summary judgment.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). Indeed, it is

24

not the duty of the district court to “to scour the record in search of a genuine issue of triable fact.”

25

Id. “A mere scintilla of evidence will not be sufficient to defeat a properly supported motion for

26

summary judgment; rather, the nonmoving party must introduce some significant probative

27

evidence tending to support the complaint.” Summers v. Teichert & Son, Inc., 127 F.3d 1150,

28

1152 (9th Cir. 1997) (citation and internal quotation marks omitted). If the non-moving party fails
3

1

to make this showing, the moving party is entitled to summary judgment. Celotex Corp. v.

2

Catrett, 477 U.S. 317, 323 (1986).

3

III.

ANALYSIS

4

Plaintiffs move for partial summary judgment on the issue of whether the stand-alone

5

testing and inspection of fire alarm and sprinkler systems at issue in this action (“the work at

6

issue”) is subject to the payment of prevailing wages under California Labor Code section 1771.

7

SimplexGrinnell argues that the motion must be denied for two reasons: (1) the work at

8

issue is not subject to section 1771 because it does not fall within the definition of “public works”

9

under section 1720(a) of the Labor Code; (2) Plaintiffs are barred from seeking judicial relief in
connection with SimplexGrinnell’s purported failure to pay prevailing wages for the work at issue

11
United States District Court
Northern District of California

10

because they have failed to show that the Director of the Department of Industrial Relations (“the

12

Director”) determined at some point that the work at issue is subject to the prevailing wage laws.

13
14

As will be discussed below, the Court concludes that the work at issue is subject to the
payment of prevailing wages under section 1771.

15

A.

16

The relevant prevailing wage law is codified as California Labor Code section 1771. It

17

Maintenance Work is Subject to Prevailing Wages under Section 1771

provides that:

18
19
20
21
22
23
24
25
26
27
28

Except for public works projects of one thousand dollars ($1,000) or
less, not less than the general prevailing rate of per diem wages for
work of a similar character in the locality in which the public work
is performed, and not less than the general prevailing rate of per
diem wages for holiday and overtime work fixed as provided in this
chapter, shall be paid to all workers employed on public works.
This section is applicable only to work performed under contract,
and is not applicable to work carried out by a public agency with its
own forces. This section is applicable to contracts let for
maintenance work.
Cal. Labor Code § 1771 (emphasis added).
The plain language of section 1771 makes clear that, to be subject to prevailing wages, the
work at issue, among other things, must be performed in connection with a public work.
Plaintiffs contend that the work at issue is covered by section 1771 because that section
4

1

expressly applies to “maintenance work,” which they claim is a type of public work. Plaintiffs

2

argue that the stand-alone testing and inspection of fire alarm and sprinkler systems is

3

maintenance work within the meaning of section 1771.

4

SimplexGrinnell contends that maintenance work does not fall within the scope of section

5

1771, because such work is not a “public work” as defined by section 1720(a). That section of the

6

California Labor Code lists various types of work that constitute “public work.” The statute

7

provides:

8

(a) As used in this chapter, “public works” means:

9

(1) Construction, alteration, demolition, installation, or repair work
done under contract and paid for in whole or in part out of public
funds, except work done directly by any public utility company
pursuant to order of the Public Utilities Commission or other public
authority. For purposes of this paragraph, “construction” includes
work performed during the design and preconstruction phases of
construction, including, but not limited to, inspection and land
surveying work. For purposes of this paragraph, “installation”
includes, but is not limited to, the assembly and disassembly of
freestanding and affixed modular office systems.

10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

(2) Work done for irrigation, utility, reclamation, and improvement
districts, and other districts of this type. “Public work” does not
include the operation of the irrigation or drainage system of any
irrigation or reclamation district, except as used in Section 1778
relating to retaining wages.
(3) Street, sewer, or other improvement work done under the
direction and supervision or by the authority of any officer or public
body of the state, or of any political subdivision or district thereof,
whether the political subdivision or district operates under a
freeholder’s charter or not.
(4) The laying of carpet done under a building lease-maintenance
contract and paid for out of public funds.
(5) The laying of carpet in a public building done under contract and
paid for in whole or in part out of public funds.
(6) Public transportation demonstration projects authorized pursuant
to Section 143 of the Streets and Highways Code.
Cal. Labor Code § 1720(a) (emphasis added).
Section 1720(a)’s broad definition of “public work” applies to various chapters of the

27

California Labor Code. Notably, it does not include “maintenance work” as a type of work that

28

falls within the definition of “public work.”
5

1

The issue before the Court is whether maintenance work must fall within one of the

2

categories listed in section 1720(a) in order to qualify as “public work” that can be subject to the

3

payment of prevailing wages under section 1771.

4

SimplexGrinnell contends that section 1720 contains an exhaustive list of work that

5

qualifies as “public work,” and for that reason, maintenance work cannot be covered by section

6

1771 unless it is performed in connection with a “public work” as defined by section 1720.

7

Specifically, SimplexGrinnell argues that the only category of “public work” under which the

8

maintenance work at issue in this action could fall is the first one, which defines public works as

9

involving the “construction, alteration, demolition, installation, or repair work.” See Cal. Lab.
Code § 1720(a)(1). According to SimplexGrinnell, therefore, the work at issue must involve

11
United States District Court
Northern District of California

10

construction, alteration, demolition, installation, or repair work within the meaning of section

12

1720(a)(1)—which SimplexGrinnell refers to as “construction-related” activity—to be subject to

13

the payment of prevailing wages under section 1771. SimplexGrinnell contends that the testing

14

and inspection of fire alarm and sprinkler systems does not involve construction-related activity,

15

and as such, it is not “public work” covered by section 1771.

16

The Court concludes that SimplexGrinnell’s reading of the relevant statutes is not

17

supported by the text and structure of the California Labor Code, or by the California Court of

18

Appeal’s interpretation of the Labor Code, all of which demonstrate that section 1720(a)(1) is not

19

meant to serve as an exhaustive definition of “public work.” Accordingly, SimplexGrinnell’s

20

reading of the relevant statutes must be rejected.

21

First, several sections of the Labor Code other than section 1720(a), including sections

22

pertaining specifically to prevailing wages, contain their own definition of “public work.” See,

23

e.g., Cal. Lab. Code. § 1771.7(b) (defining public works in the context of the Kindergarten-

24

University Public Education Facilities Bond Act); Cal. Lab. Code § 1720.3 (defining “public

25

works” in the context of the payment of wages); Cal. Lab. Code § 1720.4 (same); Cal. Lab. Code

26

§ 1771.5 9 (discussing “public works” in the context of prevailing wages as including

27

“maintenance work”). This shows that the definition of public work changes depending on

28

context and that section 1720(a)’s definitional list is not all-inclusive.
6

1

Second, in the context of prevailing wages, “maintenance work” is expressly described in

2

the Labor Code as a type of “public work” subject to prevailing wages under section 1771. See,

3

e.g., Cal. Lab. Code § 1771.5 (permitting awarding body not to require the payment of prevailing

4

wages for “any public works project of fifteen thousand dollars ($15,000) or less when the project

5

is for alteration, demolition, repair, or maintenance work”) (emphasis added). This categorical

6

description of “maintenance work” as “public work,” without any further qualification,

7

undermines SimplexGrinnell’s contention that maintenance work cannot constitute “public work”

8

unless it involves construction-related activity.

9

Third, the California Court of Appeal recently and expressly held that an activity need not
fall within the scope of section 1720(a) to be subject to prevailing wages under section 1771. In

11
United States District Court
Northern District of California

10

Reliable Tree Experts v. Baker, 200 Cal. App. 4th 785 (2011), the California Court of Appeal

12

squarely rejected the argument that SimplexGrinnell makes here, namely that maintenance work

13

does not qualify as “public work” subject to prevailing wages when it does not involve

14

“[c]onstruction, alteration, demolition, installation, or repair work” under section 1720(a). Id. at

15

795. The court held that “sections 1720 and 1771 both define the scope of what constitutes a

16

‘public work,’” because “the scope of the Prevailing Wage Law is not to be ascertained solely

17

from the words of section 1720, subdivision (a)(1),” as “[s]ection 1771 is also a part of the

18

Prevailing Wage Law, and its language must also be taken into account.” Id. (emphasis added).

19

The Court further held that, though “[s]ection 1720 may not expressly include maintenance work

20

within the definition of public work,” maintenance work constitutes public work subject to

21

prevailing wages because “section 1771 does” expressly define maintenance work as public work.

22

Id. at 796. Indeed, the court held that, under the plain language of section 1771, “maintenance

23

work is within the general definition of public works.” Id.

24

SimplexGrinnell attempts to distinguish Reliable Tree based on the notion that, in that

25

case, the activity at issue involved construction, whereas here, the work at issue does not. Opp’n

26

at 19-20. SimplexGrinnell’s argument fundamentally misunderstands the facts and the holding in

27

Reliable Tree. The court in Reliable Tree never considered whether the work at issue had

28

anything to do with construction, because this determination was unnecessary to the resolution of
7

1

the issue before it, namely whether maintenance work is subject to prevailing wages regardless of

2

whether it also falls within the scope of section 1720. As discussed above, the court held that

3

maintenance work categorically is a form of “public work” that is subject to prevailing wages.

4

After concluding that maintenance work of all types is subject to prevailing wages, the only

5

factual determination that the court had to make was to determine whether the work at issue,

6

namely the pruning and removal of trees, constituted maintenance work. The held found that it

7

did.
Accordingly, the Court concludes that maintenance work is public work subject to

8
9

prevailing wages under section 1771.4
B.

11
United States District Court
Northern District of California

10

The Court now must determine whether the work at issue constitutes “maintenance work”

12

The Work at Issue Is Maintenance Work within the Meaning of Section 1771

within the meaning of section 1771.
In making this determination, the Court looks to the definition of “maintenance” found in

13
14

the regulations promulgated by the Director to implement the prevailing wage laws, namely

15

Regulation 16000, because such regulations are entitled to deference by the courts. See Reliable

16

Tree, 200 Cal. App. 4th at 797 (holding that Director’s interpretation of the term “maintenance . . .

17

is entitled to some deference”).
Regulation 16000, which defines various terms used in the prevailing wage statutes,

18
19

defines “maintenance” as:

20

(1) Routine, recurring and usual work for the preservation,
protection and keeping of any publicly owned or publicly operated
facility (plant, building, structure, ground facility, utility system or
any real property) for its intended purposes in a safe and
continually usable condition for which is has been designed,
improved, constructed, altered, or repaired.

21
22
23

(2) Carpentry, electrical, plumbing, glazing, [touchup painting,] and
other craft work designed to preserve the publicly owned or publicly
operated facility in a safe, efficient, and continuously usable
condition for which it was intended, including repairs, cleaning and
other operations on machinery and other equipment permanently
attached to the building or realty as fixtures.

24
25
26
27
4

28

The Court also finds that section 1771’s legislative history, as well as the regulations
implementing the prevailing wage statutes, also support this conclusion.
8

1

Exception: 1: Janitorial or custodial services of a routine, recurring
or usual nature is excluded.

2

Exception: 2: Protection of the sort provided by guards, watchmen,
or other security forces is excluded.

3
4

(3) Landscape maintenance.
21002.

5

See Public Contract Code Section

Exception: Landscape maintenance work by “sheltered workshops”
is excluded.

6
7

8 Cal. Code Regs. § 16000 (emphasis added).
8
Plaintiffs argue that the work at issue meets each element of the definition of
9

“maintenance” under subsection (1) of Regulation 16000. As will be discussed below, Plaintiffs

10
satisfy their burden to show that the work at issue is (1) routine, recurring and usual work; (2) for
11
United States District Court
Northern District of California

the preservation, protection and keeping of any publicly owned or publicly operated facility for its
12
intended purposes; and (3) in a safe and continually usable condition for which it has been
13
designed.
14
1.
15
16

Routine, Recurring, and Usual

To satisfy the first element of the definition of “maintenance work” under Regulation
16000, the work must be “routine, recurring and usual.” In determining whether this element is

17
satisfied, courts look to the nature and frequency of the work at issue, as opposed to the terms of
18
the contract under which it was performed. Reliable Tree, 200 Cal. App. 4th at 798.
19
Here, Plaintiffs show that the testing and inspection at issue occurred according to a
20
schedule set either by the regulations of the State Fire Marshal or by the PMA containing the
21
terms of the work. See Shaffer Dep. at 43:12-22, 88:5-16; Schoaf Dep. at 103:15-17; 103:1822
104:4; Ochoa Dep. at 115:10-23. Accordingly, the first element is met.
23
2.
24

Preservation and Protection

To qualify as “maintenance work,” the work also must relate to the “preservation,

25
protection and keeping of any publicly owned or publicly operated facility for its intended
26
purposes[.]”
27
Here, Plaintiffs show that the purpose of the testing and inspection at issue was to ensure
28
9

1

that the systems being tested functioned as intended. Schoaf Dep. at 76:7-10; Bernot Dep. at

2

117:17-19, 108:7-21. As such, the second element is satisfied, as well.
3.

3
4

Safe and Usable Condition

Finally, to satisfy the last element, Plaintiffs must show that the work at issue was

5

performed to ensure the safety and usability of the facility. Plaintiffs point to sufficient facts to

6

show that this element is met. See, e.g., Ochoa Dep. at 108:14-17 (confirming that testing and

7

inspection is necessary to ensure the building is safe to use); Schoaf Dep. at 122:22-123:4

8

(agreeing that a building might be unsafe if the fire alarm and sprinkler system have not been

9

properly inspected); Shaffer Dep. at 79:11-17 (purpose of testing and inspection is to ensure that

10

United States District Court
Northern District of California

11

system is operating properly as well as complying with law).
In its opposition, SimplexGrinnell does not cite to any evidence that would raise a genuine

12

issue of material fact with respect to any of these elements. See Keenan v. Allan, 91 F.3d 1275,

13

1279 (9th Cir. 1996) (holding that the party opposing a motion for summary judgment must

14

“identify with reasonable particularity the evidence that precludes summary judgment”). Instead,

15

SimplexGrinnell states conclusorily and without explanation that a “triable issue of fact” exists

16

with respect to whether the work at issue constitutes “maintenance” because “the testing and

17

inspection of fire alarms differs significantly from the testing and inspection of sprinkler systems”

18

and because “SimplexGrinnell’s testing and inspection services merely alert the building owner

19

whether the system is operating properly.” Opp’n at 24. These conclusory statements are

20

insufficient to create a triable issue of material fact.

21

Accordingly, because the work at issue constitutes “maintenance work” within the

22

meaning of section 1771, Plaintiffs’ motion for partial summary judgment is GRANTED.

23
24

C.

The Absence of a Determination by the Director as to Coverage or as to the
Rate of Prevailing Wages Does Not Preclude this Action

25

SimplexGrinnell argues that Plaintiffs’ motion must be denied because Plaintiffs have not

26

shown that the Director previously determined that prevailing wages apply to the work at issue or

27

established the wage rates that would apply to such work. SimplexGrinnell contends that the

28

absence of any determination by the Director with respect to the work at issue deprives this Court
10

1

of authority to decide whether the work at issue is subject to prevailing wages under section 1771.

2

SimplexGrinnell further contends that a determination as to the applicability of the prevailing

3

wage laws at this stage would defeat the purpose of the prevailing wages scheme, which,

4

according to SimplexGrinnell, is to provide notice to all parties of the applicability of the

5

prevailing wage statutes.
As will be discussed below, SimplexGrinnell’s arguments misunderstand the purpose and

6
7

substance of the prevailing wage statutory scheme and therefore must be rejected.
Prior to entering into a contract for work that is subject to prevailing wages, the public

9

entity awarding a contract for public work is required to petition the Director to determine the

10

applicable prevailing wages for that project. See Cal. Lab. Code § 1773. Once this occurs, the

11
United States District Court
Northern District of California

8

Director is responsible for determining the rate of prevailing wages for any craft, classification, or

12

type of worker involved in the project, which the Director typically does by considering the wage

13

rates established by collective bargaining agreements within the particular locality See Cal. Lab.

14

Code §§ 1770, 1773. The awarding body then must specify the general rate for each type of

15

worker in the call for bids for the contract, in the bid specifications, and in the contract itself. See

16

Cal. Lab. Code § 1773.2. Once the contract is awarded, the contractor is required to “pay not less

17

than the specified prevailing rates of wages to all workmen employed in the execution of the

18

contract.” Cal. Lab. Code § 1774. At any point in the process, any interested party may ask the

19

Director to make a determination as to whether “a specific project or type of work” is subject to

20

the prevailing wage statutes. 8 Cal. Code Regs. § 16001.
Here, the contracting parties never requested a determination from the Director, either as to

21
22

the applicability of the prevailing wage statutes or as to the prevailing wage rate that would apply

23

to the work at issue.5 For that reason, the contracts governing the work at issue do not state that

24
25
26
27
28

5

Accordingly, SimplexGrinnell’s reliance on Sheet Metal Workers Int’l Ass’n, Local Union No.
104 v. Rea, 153 Cal. App. 4th 1071, 1082-83 (2007), is misplaced. In that case, the California
Court of Appeal held that an interested party that disagrees with the prevailing wage rate set by the
Director but that fails to challenge that determination within 20 days is barred from instituting a
subsequent judicial action. This case has no bearing on the issues before the court, because here,
the Director never determined the applicable wage rates.
11

1

such work is subject to the prevailing wage statutes or state the rate of prevailing wages that would

2

apply to such work. Nevertheless, the contracting parties’ failure to seek a determination from the

3

Director and to state in the contracts the requisite prevailing wage information does not bar

4

Plaintiffs from seeking redress in court for SimplexGrinnell’s failure to pay them prevailing wages

5

in connection with the work at issue.

6

The California Court of Appeal has held that “[t]he duty to pay prevailing wages is

7

mandated by statute and is enforceable independent of an express contractual agreement.” Rd.

8

Sprinkler Fitters Local Union No. 669 v. G & G Fire Sprinklers, Inc., 102 Cal. App. 4th 765, 779,

9

(2002). This is because the express language of section 1771 “is not limited to those workers
whose employers have contractually agreed to pay the prevailing wage; it applies to ‘all workers

11
United States District Court
Northern District of California

10

employed on public works.’” Lusardi Constr. Co. v. Aubry, 1 Cal. 4th 976, 987 (1992) (emphasis

12

in original). As such, all employees have a “private statutory right to recover unpaid prevailing

13

wages from an employer who fails to pay that minimum wage” under California Labor Code

14

section 1194.

15

The California Court of Appeal has held that an employee has the right to sue an employer

16

under section 1194 for failing to pay prevailing wages even though the employer and the public

17

entity that awarded the contract did not “includ[e] in the contract language requiring compliance

18

with the prevailing wage law.” Id. In so holding, the court reasoned that:

19
20
21
22
23

To construe the prevailing wage law as applicable only when the
contractor and the public entity have included in the contract
language requiring compliance with the prevailing wage law would
encourage awarding bodies and contractors to legally circumvent the
law, resulting in payment of less than the prevailing wage to
workers on construction projects that would otherwise be deemed
public works. To allow this would reduce the prevailing wage law
to merely an advisory expression of the Legislature’s view.
Id. at 987-88; see also Division of Lab. Stds. Enforcement v. Ericsson Information

24
Systems, Inc., 221 Cal.App.3d 114, 126 (1990) (“The failure to request a special determination
25
was the fault of the [awarding body] and/or the contractor; it was not the fault of the workers
26
whom the prevailing wage laws were designed to protect.”).
27
In light of this authority, and in light of the purpose of the prevailing wage laws, which is
28
12

1

to “protect and benefit employees on public works projects,” Plaintiffs have the absolute right to

2

sue SimplexGrinnell for its failure to pay them prevailing wages for the work at issue even if the

3

contracts under which the work was performed did not state that prevailing wages would apply to

4

such work, and even if the contracting parties never sought a determination from the Director as to

5

the applicability of the prevailing wage law.6 See City of Long Beach v. Dep’t of Indus.

6

Relations, 34 Cal. 4th 942, 949-50 (2004) (holding that “[t]he overall purpose of the prevailing

7

wage law is to protect and benefit employees on public works projects” and the law must be

8

construed liberally in light of such purpose).

9

IV.

MOTION TO STRIKE
Simplex moves to strike the testimony and report of Dr. Douglas Nareau, which Plaintiffs

10

United States District Court
Northern District of California

11

filed in support of their motion for partial summary judgment, on the ground that the testimony

12

and report do not comply with Federal Rule of Civil Procedure 26(a)(2)(B), Federal Rules of

13

Evidence 702 and 403, and other applicable rules.

14

Plaintiffs oppose the motion, arguing that the testimony and report at issue comply with all

15

applicable rules. Plaintiffs note that they seek to introduce the testimony and report in connection

16

with two issues: (1) whether the construction industry customarily pays prevailing wages for

17

testing and inspection work on fire alarm and sprinkler systems, which is relevant to the instant

18

motion for partial summary judgment; and (2) the determination of the prevailing wage rates that

19

are customarily paid for such work in the construction industry, which is pertinent to damages

20

calculations.
Because the Court did not rely on the expert testimony or report of Dr. Nareau in resolving

21
22

Plaintiffs’ motion for partial summary judgment, the motion to strike is DENIED AS MOOT.

23

Defendants may renew the motion later in the litigation in the event that Plaintiffs seek to rely on

24

Dr. Nareau’s expert testimony for damages calculations.

25

///

26
6

27
28

To the extent the applicable rates of prevailing wages are in question, the Court has the authority
to determine the appropriate rate at trial. See Ericsson, 221 Cal. App. 3d at 129 (“[I]n the event of
trial, the trial court shall be the fact finder to determine the appropriate wage rate for the workers
whose wages are in dispute[.]”).
13

1
2

V.

CONCLUSION
Plaintiffs’ motion for partial summary judgment on the issue of whether stand-alone

3

testing and inspection of fire alarms and sprinkler systems is subject to California’s prevailing

4

wage laws is GRANTED. Defendants’ motion to strike Dr. Nareau’s testimony is DENIED AS

5

MOOT.

6
7
8
9

IT IS SO ORDERED.
Dated: March 5, 2014
______________________________________
JON S. TIGAR
United States District Judge

10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
14