Opinion
F055046.
2-10-2009
RICARDO AGUILAR et al., Plaintiffs and Appellants, v. A & R CONSTRUCTION AND DEVELOPMENT, LTD. et al., Defendants and Respondent.
Randy Rumph for Plaintiffs and Appellants. Weinberg, Roger & Rosenfeld, Sandra Rae Benson, Patricia M. Gates and Roberta D. Perkins for Carpenters 46 Northern California Counties Conference Board as Amicus Curiae on behalf of Plaintiffs and Appellants. Howard Goodman for Defendant and Respondent Williams Scotsman, Inc. Sandra Kuhn McCormack for Defendant and Respondent A & R Construction Ltd.
Not to be Published in the Official Reports
Plaintiffs appeal the judgment entered after defendants motions for summary judgment were granted. We conclude the trial court incorrectly interpreted the relevant statute and reverse.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs sued their employer, A & R Construction (A & R), for underpayment of wages, alleging A & R was required by statute to pay them at the prevailing wage rate for their work on works of public improvement, but did not do so. The work plaintiffs performed for A & R involved delivery and set up of trailers at school sites for use as modular classrooms. A & R cross-complained against Williams Scotsman, Inc. (Scotsman). Scotsman contracted with the school districts for the lease or rental of the trailers, and retained A & R to deliver them and set them up at the school sites.
Scotsman moved for summary judgment, arguing that the rental, delivery, and set up of modular trailers as classrooms did not constitute "construction" for which payment of prevailing wages was required. A & R joined in Scotsmans motion and filed its own, almost identical, motion for summary judgment. The parties agreed there were no disputed facts and the only issue was one of law: whether the work performed by A & R in setting up the modular classrooms fell within the definition of "public works" in Labor Code section 1720. The trial court concluded it did not, and granted both defendants motions for summary judgment. Plaintiffs appealed.
Plaintiffs request for judicial notice, filed January 20, 2009, is denied.
DISCUSSION
I. Standard of Review
We review the trial courts grant of summary judgment de novo. (Bourgi v. West Covina Motors, Inc. (2008) 166 Cal.App.4th 1649, 1662.) "Summary judgment is appropriate when no triable issue of material fact exists and the defendant is entitled to judgment as a matter of law." (Ibid.) The facts on which defendants relied were set out in their separate statements of undisputed material facts. Plaintiffs did not dispute any of defendants factual statements; they disputed only the conclusions of law that were presented in defendants separate statements as statements of fact. Because the facts are undisputed, the only issue in this case is the proper application of law to those facts, to determine whether defendants are entitled to judgment. This is a question of law subject to de novo review. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799.)
We note that defendants ascribe significance to the absence from the record of plaintiffs opposition to their motions, other than plaintiffs responses to defendants separate statements of undisputed facts. That absence is immaterial. If the defendant moving for summary judgment fails to meet its initial burden of demonstrating that plaintiffs causes of action are without merit, then summary judgment cannot be entered even if plaintiff filed no opposition to the motion. (Code Civ. Proc., § 437c, subds. (c), (p)(2); Thatcher v. Lucky Stores (2000) 79 Cal.App.4th 1081, 1086.) Defendants presented undisputed facts and legal arguments that attempted to show defendants were entitled to judgment as a matter of law. The issue here is whether defendants successfully demonstrated that plaintiffs cannot establish one of the elements of their causes of action: that they were "employed on public works," as that term is used in the prevailing wage statute. That issue can be resolved without reference to the opposition papers filed by plaintiffs in the trial court.
II. Public Works
"[A]ll workers employed on public works" pursuant to public works contracts costing over $1,000 must be paid "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." (Labor Code, § 1771.) "Workers employed by contractors or subcontractors in the execution of any contract for public work are deemed to be employed upon public work." (§ 1772.) As used in these sections, "public works" is defined to include: "Construction, alteration, demolition, installation, or repair work done under contract and paid for in whole or in part out of public funds." (§ 1720, subd. (a)(1).)
All further statutory references are to the Labor Code, unless otherwise indicated.
Plaintiffs allege they performed work for A & R on public works, for which A & R was required to, but did not, pay them wages at the prevailing rate. They asserted causes of action for violation of sections 1771 and 1774 , breach of a third party beneficiary contract, unfair business practices, and unjust enrichment, all based on the alleged failure to pay prevailing wages. Defendants moved for summary judgment, asserting the work plaintiffs performed — delivery and set up of modular classrooms at school sites — did not constitute "public works" within the meaning of section 1771. Defendants presented no facts addressing whether the work performed by plaintiffs for A & R was performed "under contract" or was "paid for in whole or in part out of public funds." (§ 1720, subd. (a)(1).) Thus, the only issue presented for our determination is whether the work, as described in defendants motions for summary judgment, constituted "[c]onstruction, alteration, demolition, installation, or repair work," as those terms are used in section 1720, subdivision (a)(1).
Section 1774 provides: "The contractor to whom the contract is awarded, and any subcontractor under him, shall pay not less than the specified prevailing rates of wages to all workmen employed in the execution of the contract."
"A fundamental rule of statutory construction is that a court should ascertain the intent of the Legislature so as to effectuate the purpose of the law. [Citations.] In construing a statute, our first task is to look to the language of the statute itself. [Citation.] When the language is clear and there is no uncertainty as to the legislative intent, we look no further and simply enforce the statute according to its terms. [Citations.]" (DuBois v. Workers Comp. Appeals Bd. (1993) 5 Cal.4th 382, 387-388.) "`"If possible, significance should be given to every word, phrase, sentence and part of an act in pursuance of the legislative purpose." [Citation.] . . . . "When used in a statute [words] must be construed in context, keeping in mind the nature and obvious purpose of the statute where they appear." [Citations.] Moreover, the various parts of a statutory enactment must be harmonized by considering the particular clause or section in the context of the statutory framework as a whole. [Citations.] [Citations.]" (Id. at p. 388.)
The Legislature has expressed the policy underlying the prevailing wage law in the Labor Code: "It is the policy of this state to vigorously enforce minimum labor standards in order to ensure employees are not required or permitted to work under substandard unlawful conditions . . . and to protect employers who comply with the law from those who attempt to gain a competitive advantage at the expense of their workers by failing to comply with minimum labor standards." (§ 90.5, subd. (a).) "The overall purpose of the prevailing wage law . . . is to benefit and protect employees on public works projects. This general objective subsumes within it a number of specific goals: to protect employees from substandard wages that might be paid if contractors could recruit labor from distant cheap-labor areas; to permit union contractors to compete with nonunion contractors; to benefit the public through the superior efficiency of well-paid employees; and to compensate nonpublic employees with higher wages for the absence of job security and employment benefits enjoyed by public employees. [Citations.]" (Lusardi Construction Co. v. Aubry (1992) 1 Cal.4th 976, 987.) The prevailing wage statutes are to be liberally construed. (City of Long Beach v. Department of Industrial Relations (2004) 34 Cal.4th 942, 950.)
Prior to 2002, section 1720, subdivision (a)(1), defined "public works" as "[c]onstruction, alteration, demolition, or repair work." In 2001, the Legislature amended this subdivision to add the word "installation" to the definition. In order to give effect to every word of the definition, we must conclude that the Legislature, by adding the word installation to the definition, intended to broaden the definition to include activities constituting "installation" that might not be encompassed within the terms "[c]onstruction, alteration, demolition, or repair work." (§ 1720, as amended by Stats. 2001, ch. 938, § 2.) Installation may be defined as "the setting up or placing in position for service or use." (Websters 3d New Internat. Dict. (1986) p. 1171; see also, Blacks Law Dict. (5th ed. 1979) p. 717, defining "install" as "to set up or fix in position for use or service.") Thus, it appears the Legislature expanded the definition of public works to include not only construction and alteration of structures or improvements on public property, but also placing such items in position on public property and preparing them for use.
Defendants separate statements state that A & R "was and is retained by Williams Scotsman, Inc. on a regular basis to deliver and set up trailers and to remove trailers." Defendants description of the process of "setting up a modular trailer as a classroom" indicates that, after the unit is delivered, "[t]he foundation materials are unloaded," they are "cut to length and stacked and nailed to provide a level perimeter," "[t]he foundation is anchored to the ground with a 12" pipe or rod," "[t]ie plates are installed to fasten the modular unit to foundation stacks," and "[t]he access ramp consisting of two pieces is assembled and set in place." This work of placing the modular trailer in position on the school site, preparing a foundation, anchoring it to the ground, and fastening it to the trailer, then putting a ramp in place to provide access, all to prepare the trailer for use as a classroom, falls within the definition of the word "installation." We conclude that the set up work performed by A & R, as described in defendants motions for summary judgment, constitutes "installation" as that term is used in section 1720, subdivision (a)(1).
In ruling that A & Rs work setting up the trailers did not constitute "public works" as defined in section 1720, the trial court expressed concern that holding the prevailing wage law applied "to the delivery and set-up of personal property (trailers for temporary classrooms) incidental to their lease to a school district," would be "fraught with mischief" and "would require prevailing wage to be paid to the technician of Xerox who delivers and sets up a leased copy machine to a government agency."
Public works have traditionally involved improvements to real property or structures. This is illustrated by definitions of "public work" and "public works contract" in other statutes. Public Contract Code section 7103, subdivision (e), provides that "`public work includes the erection, construction, alteration, repair or improvement of any state structure, building, road, or other state improvement of any kind." Public Contract Code section 1101 provides: "`Public works contract, as used in this part, means an agreement for the erection, construction, alteration, repair, or improvement of any public structure, building, road, or other public improvement of any kind." Public Contract Code section 22200 contains a similar provision: "As used in this part: [¶] (a) `Public works contract means . . . a contract . . . for the erection, construction, alteration, repair, or improvement of any kind upon real property." While the definition of public works set out in section 1720, subdivision (a)(1), does not expressly state that the construction, alteration, demolition, installation, or repair work must involve a public structure or other public improvement or an improvement upon real property, we believe it should be so construed, consistent with the definitions in these Public Contract Code sections. We believe such a construction of section 1720, subdivision (a)(1), will avoid the mischief anticipated by the trial court.
Defendants motions for summary judgment did not establish that installation of the modular classrooms on school property was not the installation of a structure or other improvement on public real property. "[I]mprovement" is defined as "[a]n addition to real property, whether permanent or not; esp., one that increases its value or utility or that enhances its appearance." (Blacks Law Dict. (8th ed. 2004) p. 773.) "[S]tructure" is defined as "[a]ny construction, production, or piece of work artificially built up or composed of parts purposefully joined together." (Id. at p. 1464.) The trailers meet the definition of a structure. They were placed on school district real property, fastened to a foundation which was anchored to the ground. Defendants assert their installation was temporary, noting that a "temporary" wooden foundation was used, rather than a permanent concrete foundation. We do not believe the nature of the foundation — whether made of wood or concrete — should be determinative of the issue.
We infer the trailers were intended to remain in position until the expiration of the leases. There is nothing in defendants motions to indicate the length of the leases. The trailers were to be used as classrooms, serving the same function as permanently constructed or installed classrooms. The addition of the modular classrooms to the property presumably increased the utility of the property by increasing the classroom space available to the schools. Defendants made no contrary showing. Although the trailers may not be permanent additions to the schools real property, we cannot say as a matter of law that their installation for use as modular classrooms did not constitute installation of a structure or improvement on public real property. Accordingly, the trial court erred in concluding that installation of the modular classrooms did not constitute "public works" as defined in section 1720, subdivision (a)(1).
Citing International Brotherhood of Electrical Workers v. Board of Harbor Commissioners (1977) 68 Cal.App.3d 556 (International Brotherhood), defendants contend the contracts with the school districts were leases, not subject to the prevailing wage laws. The contracts in International Brotherhood, however, are not analogous.
We note that the separate statements submitted in support of defendants motions for summary judgment contained no facts about the contracts themselves. The facts set out in defendants separate statements are that Scotsman rents and leases modular trailers, its clients include school districts which rent or lease the trailers to be used as classrooms, and A & R was and is retained by Scotsman on a regular basis to deliver and set up trailers and remove trailers. No contracts were submitted in evidence.
In International Brotherhood, the City of Long Beach entered into a contract with Long Beach Oil Development Company (Development) in 1963 for the production of oil from the citys tidelands. Development was required to conduct all operations at its own expense, sell all oil and gas produced, and pay the city the value of all the oil and gas sold, after deducting expenses and 9 percent of the net profits. (International Brotherhood, supra, 68 Cal.App.3d at p. 558.) In 1974, Development contracted with Yorba Linda Electric for the construction of electrical distribution facilities for use in connection with the oil production contract. Plaintiff, a labor union suing on behalf of its members, alleged the contract with Yorba Linda contemplated it would pay its employees less than the prevailing wage for their work. Plaintiff sought a declaration that the work called for in the oil production contract and the Yorba Linda contract constituted a "public work," to which the prevailing wage statute applied, and an injunction against payment of less that the prevailing wage to Yorba Lindas employees. (Id. at p. 559.) The court concluded:
"We conclude that the 1963 contract before us is not one for a `public work within the meaning of section 1720 of the Labor Code. Although unique in its provisions, it is, in essence, an oil and gas lease, calling for payment of royalties to the city. Development is obligated to drill for, produce and sell oil and gas from the tidelands involved. It operates at its own risk, since the city is not obligated to reimburse Development for any losses incurred in the operations. The citys only interest is in receiving its percentage of the oil and gas produced and sold. The fact that royalties are to be computed in a manner different from the ordinary oil and gas lease does not make the contract anything other than a lease. While the contract requires Development to construct drilling and collateral equipment, that equipment is not the property of the city, but remains the property of Development, removable at the termination of its lease. The contract does not contemplate any of the results falling within the kinds of results contemplated by section 1720." (International Brotherhood, supra, 68 Cal.App.3d at p. 562.)
Scotsman did not lease property from the school districts, install trailers on that property for its own use, and thereafter use and operate those trailers for its own benefit, compensating the school districts with a portion of its profits and retaining the right to remove the trailers at the end of the lease. Here, the school districts were the lessees; Scotsman furnished the trailers and installed them on school district property for use by the districts as classrooms. International Brotherhood is not analogous, and the set up of the trailers on school property as described in the motions for summary judgment constituted installation of a structure or improvement on public property.
We emphasize the narrowness of this decision. The only issue presented by defendants motions and the only issue we address is whether the trial court correctly ruled that the delivery and set up of the trailers as modular classrooms as described in defendants motions for summary judgment as a matter of law did not constitute "[c]onstruction, alteration, demolition, installation, or repair work" within the definition of "public works" set out in section 1720, subdivision (a)(1). We were not presented with, and do not determine, any other issue, including whether A & Rs work met other aspects of the definition of "public works," such as whether the work was "done under contract" or whether it was "paid for in whole or in part out of public funds." (§ 1720, subd. (a)(1).)
Defendants motions for summary judgment failed to demonstrate that plaintiffs causes of action are without merit, i.e., that plaintiffs cannot establish at least one element of each of their causes of action. Consequently, defendants were not entitled to summary judgment.
DISPOSITION
The judgment is reversed with directions to vacate the order granting summary judgment and to enter a new order denying summary judgment. Appellants are awarded their costs on appeal.
WE CONCUR:
CORNELL, Acting P.J.
GOMES, J.