Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. Edward A. Ferns, Judge. Los Angeles County Super. Ct. No. BC330541
Donahoo & Associates, Richard E. Donahoo; Law Office of Herb Fox and Herb Fox for Plaintiffs and Appellants
Atkinson, Andelson, Loya, Ruud & Romo, Steven D. Atkinson, Robert R. Roginson, Rooha Asifuddin and Christopher S. Milligan for Defendants and Respondents.
MOSK, J.
INTRODUCTION
Plaintiffs allege that they were not paid the correct wages in public works projects. They set forth the hourly rate they were paid and the minimum wage they should have been paid. Their claims are on behalf of themselves and for others. Thus, the action is a class action. We hold that plaintiffs for themselves stated facts sufficient to state a cause of action with respect to each of the alleged causes of action, and that the validity of the class action allegations should await determination in a certification proceeding. Therefore, we reverse the judgment entered pursuant to a court order sustaining a demurrer.
STATEMENT OF FACTS AND PROCEEDINGS
We discuss the specific allegations in the Discussion, post.
The plaintiffs (appellants) are Jose Manuel Gonzalez, Juan M. Alcantar, III, Robert Allen, Estivan M. Sanchez, Sr., and Harley Smith, Jr., all of whom performed labor on public works projects for defendants (respondents) Western Pacific Roofing Co. and Stone Roofing Co., Inc. Plaintiffs sued on their own behalf, and on behalf of all of the defendants’ other employees who are similarly situated.
In California, publicly financed construction projects are governed by the prevailing wage law. (Lab. Code, §§ 90.5, 1720-1861; see Lusardi Construction Co. v. Aubry (1992) 1 Cal.4th 976, 985-988.) With certain exceptions, a contractor on a public works project must pay workers "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." (Lab. Code, § 1771.) The Department of Industrial Relations ("DIR") is responsible for determining that wage for each "craft, classification, or type of worker." (Lab. Code, §§ 1770, 1773; Cal. Code Regs., tit. 8, § 16200;Pipe Trades Dist. Council No. 51 v. Aubry (1996) 41 Cal.App.4th 1457, 1466-1467.)
Plaintiffs’ allege defendants (alleged to be alter egos of each other) violated the prevailing wage law by paying them less than the prevailing wage for the Sheet Metal Worker “craft, classification, or type.” The complaint brought causes of action for violation of the prevailing wage law (Lab. Code, §§ 1194, 1771, and 1774), breach of contract (defendants' contracts with the public entities, on a third party beneficiary theory), violation of Labor Code section 203 (which establishes penalties for failure to timely pay wages), and unfair business practices under Business and Professions Code section 17200.
There was also a cause of action for conversion, but plaintiffs do not appeal from the dismissal of that cause of action.
Plaintiffs sought to represent themselves, and all of defendants' employees who were employed on defendants’ public works projects and who were not paid the prevailing wage during the four years before the original complaint was filed on March 18, 2005. Plaintiffs allege various subclasses for various categories of payments and by each of the defendants.
Defendants demurred to the complaint and causes of action on the ground they failed to state facts sufficient to constitute a cause of action (Code Civ. Proc., § 430.10, subd. (e)) and on the grounds they were uncertain (Code Civ. Proc, § 430.10, subd. (f)) so as not to state a cause of action. The trial court sustained the demurrer as to the entire third amended complaint, but did not refer to any specific special demurrer. The trial court granted leave to amend, but plaintiffs chose to stand on their third amended complaint, and judgment was entered in defendants' favor. Plaintiffs timely appealed.
Plaintiffs asked that judgment be entered so that they could seek appellate review. We reject defendants’ argument that plaintiffs thus consented to the judgment and waived appellate review. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 399-402.)
DISCUSSION
A. Standard of Review and Demurrers
When a trial court sustains a demurrer, the reviewing court admits all material facts properly pleaded, and matters that may be judicially noticed, in order to determine whether the complaint states facts sufficient to state a cause of action. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) All material allegations of the complaint are accepted as true. (Hensler v. City of Glendale (1994) 8 Cal.4th 1, 8, fn. 3.) It is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. (Landeros v. Department of Corrections (2002) 99 Cal.App.4th 271, 273.)
Uncertainty in a complaint is the basis of a special demurrer, but normally not for a general demurrer. (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 244, fn. 2; 5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, §§ 905, 929, pp. 366, 388.) Plaintiff, although purporting to challenge the cause of action on the basis of uncertainty did so by contending that the complaint was “fatally uncertain and therefore fails to state a cause of action.”
“Even though the complaint is in some respects uncertain, the courts often hold it good against [special] demurrer on the theory that, ‘though not a model of pleading,’ its allegations, liberally construed, are sufficient to apprise the defendant of the issues that he is to meet.” (5 Witkin, Cal. Procedure, supra, Pleading, § 929, p. 388.) Special demurrers will be overruled, “[w]here the uncertainty relates to a matter not material to the cause of action . . . [w]here the facts as to which the complaint is uncertain are presumptively within the knowledge of the defendant . . . [w]here the uncertainty consists of failure to state the items of an account . . . [w]here the complaint, though uncertain in fact, is legally certain . . . .” (Id. at pp. 388-389.) “[A] general demurrer will be overruled if the complaint contains allegations of every fact essential to the statement of a cause of action, regardless of mistaken theory or imperfections of form that make it subject to special demurrer.” (5 Witkin, Cal. Procedure, supra, Pleading, § 905, p. 366.)
B. The Third Amended Complaint And Causes of Action Therein States Facts Sufficient to Constitute a Cause of Action
1. Allegations
Plaintiffs allege the following: plaintiffs are sheet metal workers formerly employed by defendants to work on public works projects; the legal minimum wage for workers employed on California public works projects is known as the general prevailing rate of per diem wages (Lab. Code, § 1771) or the “prevailing wage”; the proper prevailing wage classification for plaintiffs, defined by the actual work they performed on the public works, is sheet metal worker, and defendants were required to pay plaintiffs the prevailing wage for such workers as published by the DIR; the two defendants are in reality a single company owned and operated by the same owner, with a common place of business, common management, common policies and procedures and common employees; plaintiffs would routinely receive paychecks from either company, without explanation, although their supervisors and managers remained the same; the defendants employed hundreds of workers on public works projects throughout California; as a matter of common company policy, defendants did not pay prevailing wages and other wages—overtime, travel time and subsistence—to the individual plaintiffs or to hundreds of other workers who were employed by public works projects; each plaintiff, as an individual, is owed back wages for work performed for defendants on California public works; in addition to their individual claims, plaintiffs seek to represent the claims of all other current and former employees of defendants who were subject to the common policy to deny workers their lawfully earned wages. The subclasses are for each defendant and for each type of compensation due.
2. Certainty
Plaintiffs specifically alleged the two defendants are, in fact, the same entity; they were employed by the defendants, and worked on, one or more public works projects, including but not limited to 25 specifically identified projects; the hourly wage that they each were paid; and the prevailing hourly wage that the defendants were required by law and contract to pay them.
Specifically, plaintiffs alleged they were sheet metal workers. They alleged that the work they performed was that of a sheet metal worker, and they alleged the specific work they performed. They alleged that instead of the $39 to $46 per hour rate required by California law, they received as low as $11 per hour. They also alleged that defendants failed to pay overtime at all or travel time and subsistence pay, all required by law. They set forth the dates each of the named plaintiffs worked and the specific hourly rate each received. They listed all of the various projects on which one or more of the plaintiffs worked.
Plaintiffs set forth the prevailing wage for straight time, overtime, and Sunday and holiday work for sheet metal workers for 2001, 2002, 2003, 2004, and 2005. The rates begin at $39.76 per hour (straight time wage for 2001-2002) and top out at $78.84 per hour for Sunday and holiday overtime in 2005. The allegations are that Gonzalez and Sanchez were paid approximately $11.50 per hour, Alcantar approximately $20.00 per hour during the last four years of his employment, Allen approximately $14 per hour, and Smith approximately $11 per hour during the last four years of his employment. Plaintiffs alleged that they were paid less than required prevailing wage for holiday and overtime work and travel time, and that they were not paid overtime, travel time, or required subsistence at all. They alleged that defendants required them to work “excessive hours of overtime.”
The prevailing wage law requires a contractor to keep records, verified under penalty of perjury, showing “the name, address, social security number, work classification, straight time and overtime hours worked each day and week, and the actual per diem wages paid” for each employee on a public works project. (Lab. Code, § 1776.)
Plaintiffs are required only to set forth the essential facts of their case with reasonable precision and with particularity sufficient to acquaint a defendant with the nature, source and extent of his cause of action. (Youngman v. Nevada Irrigation Dist., supra, 70 Cal.2d at p. 245.) Plaintiffs are not required to plead the specific amount of damages. (Furia v. Helm (2003) 111 Cal.App.4th 945, 957.)
The amount of unpaid wages due to each plaintiff is only a matter of proof (the number of hours worked on public works projects multiplied by the difference between the lawful wage and the wages actually paid). The amount of waiting time penalties under section 203 is also a simple matter of proof; the penalty is the amount of unpaid wages for a 30-day period. (Lab. Code, § 203.) Defendants should have full and complete records dealing with this subject. “Once an employee shows that he performed work for which he was not paid, the fact of damage is certain; the only uncertainty is the amount of damage. [Citations.] In such a case, it would be a perversion of justice to deny all relief to the injured person, thereby relieving the wrongdoer from making any restitution for his wrongful act. [Citation.]” (Hernandez v. Mendoza (1988) 199 Cal.App.3d 721, 726-727.)
3. Each Cause of Action
Plaintiffs in their first cause of action pleaded violations of Labor Code sections 1194, 1771 and 1774. The failure to comply with these provisions provides to plaintiffs a private statutory cause of action to recover unpaid prevailing wages. (Violante v. Communities Southwest Development and Construction Co. (2006) 138 Cal.App.4th 972, 978-979; Road Sprinkler Fitters Local Union No. 669 v. G&G Fire Sprinklers, Inc. (2002) 102 Cal.App.4th 765; see generally Sheet Metal Workers Internat. Assn. v. Rea (2007) 153 Cal.App.4th 1071, 1078-1079 (Sheet Metal Workers).) Plaintiffs as third party beneficiaries also have an action for breach of contract based on the agreements between defendants and public bodies—their second cause of action. (Department of Industrial Relations v. Fidelity Roof Co. (1997) 60 Cal.App.4th 411, 425-426.) Plaintiffs alleged such contracts and attached them to the pleading. The failure to make the payments on time is the basis for the third cause of action for penalties under Labor Code section 203. The allegations of law violations, and other necessary allegations are sufficient to state a cause of action under the Unfair Practices Act—the fourth cause of action. (Bus. & Prof. Code, § 17200 et seq.; see Steinhebel v. Los Angeles Times Communications, LLC (2005) 126 Cal.App.4th 696, 712.)
4. Wage Orders
Plaintiffs’ case depends in part on their theory that the law required that they be paid at the Sheet Metal Worker rate. Plaintiffs allege they performed the “tasks and duties of Sheet Metal workers, including but not limited to the cutting, bending, attaching, handling, forming, installing, and fabricating of sheet metal and sheet metal accessories, in connection with the construction of sheet metal buildings throughout California. The work performed by Plaintiffs involved these tasks. The work undertaken by Plaintiffs did not involve roofing work. Defendants employed other workers to perform the work of roofers such as installation of hot-mopped asphalt roofing. [¶] Currently, and historically among the different building trades, the cutting, bending, attaching, handling, forming, installing, and fabricating of sheet metal and sheet metal accessories has been performed by Sheet Metal Workers.” Plaintiffs further allege, “Of all available general prevailing wage classifications published by the DIR, the classification which most closely resembles work performed by the Plaintiffs is that of a Sheet Metal worker.”
Defendants are roofing contractors, and plaintiffs allege that defendants are “engaged in providing construction-related sheet metal roofing.” The contracts specifically call for roofing work. It may well be that in certain areas and at certain times the work plaintiffs perform did not fall under a sheet metal workers classification. But that does not mean the issue of the proper classification of work performed on public projects should be resolved on demurrer. (Cf. Division of Labor Standard Enforcement v. Ericsson Information Systems (1990) 221 Cal.App.3d 114, 121, 129.) Plaintiffs have alleged improper classification by defendants. That in some areas some work was properly classified does not mean that plaintiffs have not stated a cause of action. (See Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028. 1047; Weil, Brown et al., Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2007) ¶ 7:42.2, p. 7-20 [“A general demurrer does not lie to only part of a cause of action. If there are sufficient allegations to entitle plaintiff to relief, other allegations cannot be challenged by general demurrer”].) Sheet Metal Workers, supra, 153 Cal.App.4th 1071, a case brought by a union, illustrates some of the difficulties in applying a prevailing rate to the work of installing sheet metal roofing. In their brief on appeal, defendants do not seek judicial notice of or refer to any specific Department of Industrial Relations material or to its website. They likewise did not refer to any such material before the trial court on the demurrer in question. Thus, we are in no position to interpret or apply any such material. (Evid. Code, §§ 455, 459, subd. (c); People v. Preslie (1977) 70 Cal.App.3d 486, 493.)
Defendants suggest that Sheet Metal Workers, supra, 153 Cal.App.4th 1071, requires that an employee seek a special determination pursuant to Labor Code section 1773.4 prior to pursuing a claim for unpaid prevailing wages. That case, however, was an action by a union against the Department of Industrial Relations for mandamus for review of a wager order—not an employee against an employer, as here. Here, the work is disputed. The claim there also involved the retroactive effort of a wage order so as to undo existing contracts. Accordingly, plaintiffs stated facts sufficient to state a cause of action.
We express no opinion on the merits of the claim.
C. Class Action
There is conflicting case law on to what extent a trial court can dismiss an action on demurrer as not being an appropriate class action or proper class. As the court stated in Prince v. CLS Transportation, Inc. (2004) 118 Cal.App.4th 1320, 1325, “There are two lines of facially inconsistent cases relevant to the issue before us but the inconsistency evaporates when the facts of the cases are considered, at which point it becomes apparent that it is only in mass tort actions (or other actions equally unsuited to class action treatment) that class suitability can and should be determined at the pleading stage. In other cases, particularly those involving wage and hour claims, class suitability should not be determined by demurrer.” The court went on, “‘all that is normally required for a complaint to survive demurrers to the propriety of class litigation is that the complaint allege facts that tend to show: (1) an ascertainable class of plaintiffs, and (2) questions of law and fact which are common to the class. If the complaint is allowed to survive the demurrer, then the judge may proceed with the suit, deferring his determination of the propriety of class action until a time when he may better make the decision.’” (Id. at p. 1326.)
Here, plaintiffs have made such required allegations. That some or all of the proposed classes or subclasses may not be appropriate is a matter that may be addressed in connection with class certification.
DISPOSITION
The judgment is reversed. Plaintiffs shall recover their costs on appeal.
We concur, ARMSTRONG, Acting P. J., KRIEGLER, J.