Bennett et al v. Simplexgrinnell LP, No. 3:2011cv01854 - Document 161 (N.D. Cal. 2013)
Court Description: ORDER GRANTING MOTION TO DISMISS by Judge Jon S. Tigar, granting 129 Motion to Dismiss. (wsn, COURT STAFF) (Filed on 10/17/2013)
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Bennett et al v. Simplexgrinnell LP Doc. 161 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DON C. BENNETT, et al., Case No. 11-cv-01854-JST Plaintiffs, 8 v. ORDER GRANTING MOTION TO DISMISS 9 10 SIMPLEXGRINNELL LP, Re: ECF No. 129 Defendant. United States District Court Northern District of California 11 In this action for alleged violations of California’s prevailing wage law, Defendant 12 13 SimplexGrinnell moves under Federal Rule of Civil Procedure 12(b)(6) to dismiss or strike 14 Plaintiffs’ claim for liquidated damages under California Labor Code § 1194.2. Plaintiffs oppose 15 the motion. For the reasons set forth below, the motion is GRANTED. 16 I. 17 BACKGROUND Plaintiffs Don Bennett, Gary Robinson, Comerlis Delaney, Darren Scott, Jon Hotzler, and 18 Patrick Nicassio performed work for Defendant SimplexGrinnell LP in connection with public 19 works projects in California. 20 Plaintiffs allege that SimplexGrinnell failed to pay them prevailing wages under California 21 law and bring the following four claims on their own behalf and on behalf of others similarly 22 situated: (1) failure to pay prevailing wages in violation of California Labor Code §§ 1720-1861; 23 (2) failure to pay wages owed upon termination in violation of California Labor Code § 203; 24 (3) unfair competition in violation of California Business and Professions Code § 17200; and 25 (4) penalties under the California Private Attorney General Act of 2004. 26 Plaintiffs seek unpaid prevailing wages, penalties under California Labor Code § 203, 27 liquidated damages under California Labor Code § 1194.2(a), penalties under California Labor 28 Code § 2698, and attorney’s fees and costs under California Labor Code § 1194(a) in connection Dockets.Justia.com 1 with their claims. The Court has jurisdiction over this action under 28 U.S.C. § 1332(d). 2 3 II. LEGAL STANDARD A pleading must contain a “short and plain statement of the claim showing that the pleader 4 5 is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A motion to dismiss under Federal Rule of Civil 6 Procedure 12(b)(6) tests the legal sufficiency of the claims in the complaint. “To survive a motion 7 to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to 8 relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual 9 content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation and internal quotation 11 United States District Court Northern District of California 10 marks omitted). “Threadbare recitals of the elements of a cause of action, supported by mere 12 conclusory statements, do not suffice.” Id. When dismissing a complaint, the court must grant 13 leave to amend unless it is clear that the complaint’s deficiencies cannot be cured by amendment. 14 Lucas v. Dep’t of Corrections, 66 F.3d 245, 248 (9th Cir. 1995). 15 III. DISCUSSION 16 SimplexGrinnell moves to dismiss or strike Plaintiffs’ claim for liquidated damages under 17 California Labor Code § 1194.2(a) on the ground that Section 1194.2(a) does not apply to claims 18 for unpaid prevailing wages.1 According to SimplexGrinnell, Section 1194.2(a) allows employees 19 to recover liquidated damages when they sue to enforce minimum wages that are fixed either by 20 order of the Industrial Welfare Commission or by statute, and here, Plaintiffs seek to recover 21 liquidated damages in connection with unpaid prevailing wages under California Labor Code 22 section 1773, which are fixed by the Department of Industrial Relations, and not by the 23 commission or by statute. 24 1 25 26 27 28 To the extent that SimplexGrinnell moves to strike Plaintiffs’ claim for liquidated damages under Section 1194.2(a), the motion is DENIED, as a motion to strike is not the proper vehicle for dismissing damages claims that are barred as a matter of law. See Whittlestone, Inc. v. HandiCraft Co., 618 F.3d 970, 974-975 (9th Cir. 2010) (“We therefore hold that Rule 12(f) does not authorize district courts to strike claims for damages on the ground that such claims are precluded as a matter of law.”). Such dismissals are “better suited for a Rule 12(b)(6) motion or a Rule 56 motion.” Id. at 974. 2 1 Plaintiffs oppose the motion, arguing that California’s prevailing wage law is a minimum 2 wage law that is enforceable through a private right of action under Section 1194, and as such, 3 liquidated damages are available for violations of that law under Section 1194.2. Opp’n at 2. 4 The Court concludes that liquidated damages under Section 1194.2 are not available for 5 violations of California’s prevailing wage law, because the plain language of Section 1194.2 limits 6 the recovery of liquidated damages to the enforcement of minimum wages set either by the 7 commission or by statute, and prevailing wages do not fall within either one of these two 8 categories. 9 10 United States District Court Northern District of California 11 12 13 14 California’s prevailing wage law, which is codified at California Labor Code section 1771 et. seq., provides in part that: 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. 15 Cal. Labor Code § 1771. 16 As Plaintiffs correctly point out, courts in California routinely have held that California’s 17 prevailing wage law “is a minimum wage law[.]” Road Sprinkler Fitters Local Union No. 669 v. 18 G & G Fire Sprinklers, Inc., 102 Cal. App. 4th 765, 778 (2004) (citations omitted). That the 19 prevailing wage law is a minimum wage law, however, does not lead to the conclusion that 20 liquidated damages under Section 1194.2 are available for violations of that law. 21 22 23 24 25 Section 1194.2(a) provides: In any action under Section 98, 1193.6, or 1194 to recover wages because of the payment of a wage less than the minimum wage fixed by an order of the commission or by statute, an employee shall be entitled to recover liquidated damages in an amount equal to the wages unlawfully unpaid and interest thereon. Nothing in this subdivision shall be construed to authorize the recovery of liquidated damages for failure to pay overtime compensation. 26 27 Cal. Labor Code § 1194.2(a) (emphasis added). 28 The plain language of Section 1194.2 limits the recovery of liquidated damages to 3 1 situations in which the employee received less than the “minimum wage fixed by an order of the 2 commission or by statute.” As such, Plaintiffs here may recover liquidated damages for prevailing 3 wage violations only if the prevailing wages at issue were set by an order of the commission or by 4 statute.2 Plaintiffs concede that prevailing wages are not set by an order of the commission. 5 6 Accordingly, the issue is whether prevailing wages are set by statute. Prevailing wages are not set either by statute or by an order of the commission. Rather, 7 8 they are set by the Director of the Department of Industrial Relations. See State Bldg. & Constr. 9 Trades Council of Cal., 162 Cal. App. 4th 289, 295 (Cal. Ct. App. 2008) (“The Director of the Department of Industrial Relations (Director) is given the responsibility for determining the 11 United States District Court Northern District of California 10 general prevailing wage according to statutory criteria. The Director fixes the prevailing wage 12 rates for every category of worker needed for a public works project, which are then used by 13 public entities soliciting bids for the project.”) (internal citations omitted); see also Chamber of 14 Commerce of U.S. v. Bragdon, 64 F.3d 497, 502 (9th Cir. 1995) (noting that the prevailing wage 15 statute “does not directly establish the prevailing wages in a particular locality. They are 16 developed pursuant to regulations promulgated by the Director of the Department of Industrial 17 Relations”) (citing Cal. Labor Code §§ 1773 & 1773.1). Indeed, as the Ninth Circuit has 18 concluded, “the prevailing wage determined by the Director is not a fixed statutory or regulatory 19 minimum wage, but one derived from the combined collective bargaining of third parties in a 20 particular locality.” Id. Accordingly, prevailing wages fall outside of the scope of Section 1194.2. Plaintiffs argue that prevailing wages are fixed by statute because “numerous courts” have 21 22 held that “the duty to pay prevailing wages arises from statute.” Opp’n at 2 (emphasis added). 23 This argument is unpersuasive because it improperly conflates the duty to pay prevailing wages 24 with the manner in which prevailing wages are set. The plain language of Section 1194.2 refers 25 26 27 28 2 Because the plain language of Section 1194.2 is unambiguous, the Court need not address arguments pertaining to the legislative history of that statute. Day v. City of Fontana, 25 Cal. 4th 268, 272 (Cal. 2001) (“If there is no ambiguity, then we presume the lawmakers meant what they said, and the plain meaning of the language governs.”). 4 1 only to the latter, not the former. For that reason, the cases that Plaintiffs cite in support of their 2 argument are inapposite and do not shed any light on the question of whether liquidated damages 3 under Section 1194.2 are available for prevailing wage violations. See, e.g., Lusardi Constr. Co. 4 v. Aubry, 1 Cal. 4th 976, 986-988 (Cal. 1992) (holding that the duty to pay statutory wages arises 5 from statute); Rd. Sprinkler Fitters Local Union No. 669, 102 Cal. App. 4th 765, 779 (Cal. Ct. 6 App. 2002) (noting that “the duty to pay the prevailing wage is statutory”); Reyes v. Van Elk, 7 Ltd., 148 Cal. App. 4th 604, 612 (Cal. Ct. App. 2007) (same). 8 To the extent that Plaintiffs rely on the Court’s order of June 7, 2012, to support the 9 proposition that liquidated damages under Section 1194.2 are available for violations of the prevailing wage law, such reliance is misplaced, as that order did not address this issue. See ECF 11 United States District Court Northern District of California 10 No. 78. Rather, that order held that California’s prevailing wage law “is a minimum wage law” 12 that may be enforced through California Labor Code § 1194. Id. at 1. Section 1194 is distinct 13 from 1194.2. The former permits an employee who receives less than the minimum wage to 14 recover the unpaid balance of wages owed to him, as well as attorney’s fees and costs. See Cal. 15 Labor Code § 1194(a) (“[A]ny employee receiving less than the legal minimum wage or the legal 16 overtime compensation applicable to the employee is entitled to recover in a civil action the 17 unpaid balance of the full amount of this minimum wage or overtime compensation, including 18 interest thereon, reasonable attorney’s fees, and costs of suit.”). The latter permits an employee to 19 recover liquidated damages when the employer failed to pay minimum wages that are fixed either 20 by order of the commission or by statute, as discussed above. 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 28 5 1 IV. CONCLUSION 2 Defendants’ motion to dismiss Plaintiffs’ claim for liquidated damages under California 3 Labor Code Section 1194.2 in connection with violations of California’s prevailing wage law is 4 GRANTED. 5 6 7 8 IT IS SO ORDERED. Dated: October 17, 2013 ______________________________________ JON S. TIGAR United States District Judge 9 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 6
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