Hestand v. Saunders (2001)

[Modification of Opinion (85 Cal.App.4th 334) on denial of petition for rehearing.]

ANDY L. HESTAND, et al., Plaintiffs and Appellants, v. MARCY SAUNDERS, as Labor Commissioner, etc., et al., Defendants and Respondents.

BEDSWORTH, J.-

It is ordered that the opinion filed herein on December 8, 2000, be modified in the following particulars:

1. On page 5, delete the last full paragraph [85 Cal. App. 4th 339 , advance report, 2d full par.] and replace with the following:

In 1980, when the IWC set a new state minimum wage in Order MW-80, the order reiterated that "[e]mployees engaged in certain on-site activities in . . . construction are not covered by Industrial Welfare Commission industry and occupation orders . . . ." (Cal. Code Regs., tit. 8, former § 115670.7)

2. On page 5, delete the last sentence of footnote 6 [85 Cal. App. 4th 339 , advance report, fn. 6, lines 4-5], beginning with "To date."

3. On page 6, at the end of the first full paragraph [85 Cal. App. 4th 339 , advance report, 3d par., line 11], add the following new footnote: While the Commission correctly insists that the letters are not regulations and not subject to the provisions of the APA, they are nonetheless part of the record.

4. On page 6 [85 Cal. App. 4th 340 , advance report], in the first paragraph under heading I, change the last sentence to read: He contends, without citation of authority, that extrinsic evidence of the IWC's intent may not be considered in interpreting a regulation that is unambiguous on its face. [86 Cal. App. 4th 383c]

5. On page 8, in the last full paragraph [85 Cal. App. 4th 341 , advance report, last par., lines 6-7], the sentence beginning with "Here, Hestand sought," delete the italicized word "consider" and replace it with the italicized word "process."

6. On page 10, in the second full paragraph [85 Cal. App. 4th 343 , advance report, 2d par., lines 9-10], delete the sentence near the end of the paragraph that begins with "Rather," and replace it with the following: Rather, we must independently decide if the DLSE's interpretation of non-coverage was correct.

7. On page 11, replace the last sentence of the last paragraph [85 Cal. App. 4th 344 , advance report, 1st full par., lines 5-8] with the following: Considering the scope of the wage order free of any duty to defer to the DLSE's position, we conclude that it was never intended to apply to on-site construction activities, and petitioners are not entitled to relief.

This modification does not effect a change in the judgment.

The petitions for rehearing are DENIED.

Sills, P. J., and Rylaarsdam, J., concurred.