Owino et al v. CoreCivic, Inc.

Filing 82

ORDER: (1) Denying 47 Motion for Reconsideration ; and (2) Denying certification for interlocutory appeal. Signed by Judge Janis L. Sammartino on 3/26/2019. (jpp)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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SYLVESTER OWINO and JONATHAN
GOMEZ, on behalf of themselves and all
others similarly situated,

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Case No.: 17-CV-1112 JLS (NLS)
ORDER: (1) DENYING MOTION
FOR RECONSIDERATION; AND
(2) DENYING CERTIFICATION
FOR INTERLOCUTORY APPEAL

Plaintiffs,
v.
CORECIVIC, INC., a Maryland
corporation,

(ECF No. 47)

Defendant.

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Presently before the Court is Defendant CoreCivic, Inc.’s Motion for

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Reconsideration and Certification for Interlocutory Appeal (“Mot.,” ECF No. 47).

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Plaintiffs’ filed an Opposition to (“Opp’n,” ECF No. 52) and Defendant filed a Reply in

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Support of (“Reply,” ECF No. 55) the Motion. After considering the parties’ arguments

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and the law, the Court rules as follows.

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BACKGROUND

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The Court’s Prior Order Granting in Part and Denying in Part Defendant’s Motion

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to Dismiss Plaintiffs’ Complaint (“Prior Order,” ECF No. 38) contains an extensive

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summary of this case’s factual background, which the Court incorporates here by reference.

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Relevant to this Motion: On May 14, 2018, the Court issued its ruling on Defendant’s
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Motion to Dismiss Plaintiffs’ Complaint. See generally Prior Order. The Court held that

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Plaintiffs’ claims under the California Labor Code were not preempted by federal

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immigration law, id. at 31–37, and that Wage Order 5-2001 (“Wage Order 5”) applied to

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Defendant’s civil immigration detention facility, id. at 47–48.

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Defendant filed the present Motion for Reconsideration and Certification for Interlocutory

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Appeal.

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On June 11, 2018,

ANALYSIS
I.

Motion for Reconsideration

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In the Southern District of California, a party may apply for reconsideration

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“[w]henever any motion or any application or petition for any order or other relief has been

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made to any judge and has been refused in whole or in part.” Civ. L. R. 7.1(i)(1). The

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moving party must provide an affidavit or certified statement of an attorney setting forth,

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inter alia, new or different facts and circumstances which previously did not exist. Id.

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Generally, reconsideration of a prior order is “appropriate if the district court (1) is

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presented with newly discovered evidence, (2) committed clear error or the initial decision

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was manifestly unjust, or (3) if there is an intervening change in controlling law.” Sch.

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Dist. No. 1J, Multnomah Cnty. v. AC&S, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).

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Reconsideration is an “extraordinary remedy, to be used sparingly in the interests of finality

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and conservation of judicial resources.” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d

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877, 890 (9th Cir. 2000). Ultimately, whether to grant or deny a motion for reconsideration

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is in the “sound discretion” of the district court. Navajo Nation v. Norris, 331 F.3d 1041,

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1046 (9th Cir. 2003) (citing Kona Enters., 229 F.3d at 883). A party may not raise new

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arguments or present new evidence if it could have reasonably raised them earlier. Kona

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Enters., 229 F.3d at 890 (citing 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th

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Cir. 1999)).

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Defendant bases its motion on only one ground for reconsideration: that the Court

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“committed clear error or the initial decision was manifestly unjust.” Mot. at 2–5. “Clear

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error or manifest injustice occurs when ‘the reviewing court on the entire record is left with
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the definite and firm conviction that a mistake has been committed.’” Young v. Wolfe, CV

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07-03190 RSWL-AJWx, 2017 WL 2798497, at *5 (C.D. Cal. June 27, 2017) (quoting

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Smith v. Clark Cnty. Sch. Dist., 727 F.3d 950, 955 (9th Cir. 2013)).

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Defendant argues that the Court’s interpretation of Wage Order 5’s applicability is

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contrary to the California Division of Labor Standards Enforcement’s (“DLSE”)

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interpretation. Mot. at 3. Defendant points to DLSE’s opinion letter from July 22, 1998,

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in which DLSE explained that Wage Order 5 only applies when an “industry, business, or

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establishment” provides “meals, housing or maintenance services” to the public or other

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businesses. Mot. at 4 (citing Dep’t of Labor Standards Enforcement, Occupation Wage

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Orders v. Order 5, at 1 (July 22, 1997), ECF No. 47-3). Although Wage Order 5 covers

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services that are incidental to an entity’s primary business and Plaintiffs’ Complaint

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included allegations that they provided services covered in the Wage Order––e.g., janitorial

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services, landscaping, catering, boarding, and cleaning of facilities––Defendant argues

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that, because it does not provide those services to the public, pursuant to DLSE’s

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interpretation, Wage Order 5 does not apply. Id. at 4–5.

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In further support of this argument, Defendant cites to Construction Protective

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Services, Inc. v. Superior Court, No. 5183445, 2006 WL 164995 (Cal. Ct. App. Jan. 24,

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2006), an unpublished California Court of Appeal decision that found that Wage Order 5

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did not apply where the defendant employer provided housing to its employees, which was

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a service incidental to its primary business purpose. The Court held that, because the

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employer did not provide these incidental services “to individuals other than its own

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employees,” Wage Order 5 did not apply. Id. at *4. According to Defendant, these

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authorities should lead the Court to “reconsider its analysis, defer to the DLSE’s and

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California Court of Appeals’ consistent interpretation of [Wage Order 5], and dismiss

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Plaintiffs’ claims to the extent they are based on that Wage Order.” Mot at 5.

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The Court is not convinced that it clearly erred in determining that Wage Order 5

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applies to Defendant’s civil immigration detention facility. To begin with, the Court notes

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that none of the authority in which Defendant relies as the basis for its arguments is binding
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authority. With regard to the opinion letter, California courts “have concluded that DLSE

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enforcement policies are not entitled to deference because they were not adopted in

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compliance with the Administrative Procedure Act.” Kilby v. CVS Pharmacy, Inc., 63 Cal.

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4th 1, 13 (2016). Instead, courts are to “give DLSE opinion letters consideration and

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respect.” Harris v. Super. Ct., 53 Cal. 4th 170, 190 (2011). Thus, although such opinion

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letters “may be persuasive as precedents in similar subsequent cases,” Kilby, 63 Cal. 4th at

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13, “it is ultimately the judiciary’s role to construe the language.” Harris, 53 Cal. 4th at

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190. As for Defendant’s reliance on Construction Protective Services, Inc. v. Superior

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Court, as an unpublished decision, it may have “persuasive value,” but it has no

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“precedential value.” Emp’rs Ins. of Wausau v. Granite St. Ins. Co., 330 F.3d 1214, 1220

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n.8 (9th Cir. 2003); see also Holt v. Noble House Hotels & Resort, LTD, No.

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17cv2246-MMA (BLM), 2019 WL 969437, at *4 (S.D. Cal. Feb. 28, 2019) (holding that

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although California Rule of Court 8.1115(a) precludes citing or relying on unpublished

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state court opinions, federal courts may still consider unpublished state court decisions as

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persuasive authority).

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Other DLSE guidance materials lessens the persuasive weight of Defendant’s
In DLSE’s guide for determining the classification of businesses and

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authority.

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occupations under wage orders, DLSE stated that “new types of businesses and occupations

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are constantly coming into existence” and that, “as industry practices and business

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structures evolve, circumstances may dictate the change in classification of a particular

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occupation from one wage order to another wage order.” California Division of Labor

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Standards and Enforcement, Which IWC Order? Classifications 2 (2013). The opinion

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letter relied on by Defendant, which is over twenty years old, is based on former industry

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practices and business structures that do not necessarily reflect the current realities.

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Finally, case law from both before and after the Court’s Prior Order supports its

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conclusion. The California Supreme Court previously held that, “‘in light of the remedial

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nature of the legislative enactments authorizing the regulation of wages, hours and working

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conditions for the protection and benefit of employees, the statutory provisions [of the
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Labor Code] are to be liberally construed with an eye to promoting such protection.’”

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Brinker Rest. Corp. v. Super. Ct., 53 Cal. 4th 1004, 1026–27 (2012) (quoting Indus.

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Welfare Com. v. Super. Ct., 27 Cal. 3d 690, 702 (1980)); see also Murphy v. Kenneth Cole

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Prods., Inc., 40 Cal. 4th 1094, 1103 (2007) (“[S]tatutes governing conditions of

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employment are to be construed broadly in favor of protecting employees.”). Because

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“wage orders are to be accorded the same dignity as statutes,” these same interpretation

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principles apply here and this Court must construe Wage Order 5 broadly in favor of

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protecting employees. See Brinker, 53 Cal. 4th at 527. This cuts against the DLSE’s

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narrow reading of the statute and in favor of this Court’s conclusion in its Prior Order.

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Following this Court’s Prior Order, the Honorable Jesus Bernal of the Central

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District of California faced a case directly on point both factually and legally with this case

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and came to the same conclusion. In Novoa v. GEO Group, Inc., No. EDCV 17-2514 JGB

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(SHKx), 2018 WL 3343494 (C.D. Cal. June 21, 2018), the plaintiffs argued that Wage

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Order 5 applied to a civil immigration detention facility that operated a voluntary work

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program.

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encompass[ed]” the civil immigration detention facility because “it provid[ed] housing and

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board for the detainees, in addition to offering medical services.” Id., at *8. Addressing

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the defendant’s arguments concerning the same DLSE opinion letter at issue here, the court

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concluded that “DLSE’s July 22, 1997 letter reads meaning into Wage Order 5 that is

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contrary to its plain language” and found DLSE’s interpretation to be contrary to “the

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California Supreme Court’s advice to ‘liberally construe[]’ statutory provisions concerning

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the regulation of wages and hours ‘with an eye to promoting such protection.’” Id. at *9

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(citing Brinker, 53 Cal. 4th at 1026–27).

Id. at *2.

The court concluded that “Wage Order 5’s broad language

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Based on the foregoing, the Court is convinced that Defendant has not proven any

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clear error or manifest injustice in the Court’s determination that Wage Order 5 applies to

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the detention center.

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Reconsideration.

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The Court therefore DENIES Defendant’s Motion for

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II.

Certification for Interlocutory Appeal

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Defendant moves the Court to certify the following issue for interlocutory appeal:

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“whether federal law––and specifically, the Immigration and Nationality Act (“INA”), the

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Immigration Reform and Control Act (“IRCA”), and 8 U.S.C. § 1555––preempt Plaintiffs’

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California labor law claims.” Mot. at 5.

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Section 1292(b) of title 28 of the United States Code provides, in pertinent part, that

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a district judge may certify an order for immediate interlocutory appeal if the judge is “of

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the opinion” that: (1) the order “involves a controlling question of law,” (2) there is

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“substantial ground for difference of opinion” as to the resolution of that question, and

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(3) “an immediate appeal from the order may materially advance the ultimate termination

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of the litigation[].” See Kaltwasser v. AT&T Mobility, No. C 07-00411 JW, 2011 WL

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5417085, at *1 (N.D. Cal. Nov. 8, 2011). The Court should only grant certification “in

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extraordinary cases where decision of an interlocutory appeal might avoid protracted and

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expensive litigation.” U.S. Rubber Co. v. Wright, 359 F.2d 784, 785 (9th Cir. 1966).

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The Court agrees with Defendant that the preemption issue is “a controlling question

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of law” and that there is “substantial ground for difference of opinion” as to the resolution

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of that question. Defendant has not demonstrated, however, that an immediate appeal

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would materially advance the ultimate termination of the litigation. Even if the preemption

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issue is resolved favorably for Defendant on appeal, this litigation would continue on

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Plaintiffs’ remaining claims. Instead of a resolution of this case, an immediate appeal

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would significantly delay final resolution of the entire action and result in unnecessary

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trouble and expense. The Court thus finds the circumstances presented in this case do not

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overcome the general policy disfavoring piecemeal appeals, and that they do not merit

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Section 1292(b) certification. Accordingly, the Court DENIES Defendant’s request for

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interlocutory appeal.

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CONCLUSION
For the reasons stated above, the Court (1) DENIES Defendant’s Motion for
Reconsideration, and (2) DENIES Defendant’s request for interlocutory appeal.
IT IS SO ORDERED.
Dated: March 26, 2019

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