Supreme Court of California Justia
Docket No. S118450
Long Beach v. Dept. Industrial Relations

Filed 12/20/04

IN THE SUPREME COURT OF CALIFORNIA

CITY OF LONG BEACH,
Plaintiff and Respondent,
S118450
v.
Ct.App. 2/7 B159333
DEPARTMENT OF INDUSTRIAL
RELATIONS, )

Los Angeles County
Defendant and Appellant.
Super. Ct. No. BS072516

In this case, we address the application of the state’s prevailing wage law
(PWL; see Lab. Code, § 1770 et seq.)1 to private construction of a $10 million
animal control facility in Long Beach (the City). The Society for the Prevention
of Cruelty to Animals of Los Angeles (SPCA-LA) built the facility, but it was
partly funded by a $1.5 million grant from the City that was expressly limited to
project development and other preconstruction expenses. Section 1771 requires
that “workers employed on public works” 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 . . . .”
When the present contract was executed in 1998, “public works” was
defined as including “construction, alteration, demolition, or repair work done
under contract and paid for in whole or in part out of public funds . . . ” (§ 1720,

1 Further statutory references are to this code unless otherwise indicated.
1


subd. (a), italics added.) As we observe, after the agreement was executed, and
after the City’s grant money was used for preconstruction expenses, a 2000
amendment to section 1720, subdivision (a)(1), was adopted to include within the
word “construction” such activities as “the design and preconstruction phases of
construction,” including “inspection and land surveying work,” items the City
partly funded in this case.
We first consider whether the project here is indeed a “public work” within
the meaning of section 1771 and former section 1720. We will conclude, contrary
to the Court of Appeal, that under the law in effect when the contract at issue was
executed, a project that private developers build solely with private funds on land
leased from a public agency remains private. It does not become a public work
subject to the PWL merely because the City had earlier contributed funds to the
owner/lessee to assist in defraying such “preconstruction” costs or expenses as
legal fees, insurance premiums, architectural design costs, and project
management and surveying fees.
This conclusion completely disposes of this case. We leave open for
consideration at another time important questions raised by the parties, including
(1) whether, assuming the project indeed was a “public work” under section 1771,
it should be deemed a “municipal affair” of a charter city and therefore exempt
from PWL requirements, and (2) whether the PWL is a matter of such “statewide
concern” that it would override a charter city’s interests in conducting its
municipal affairs. Resolution of these important issues is unnecessary and
inappropriate here because the present project was not a public work subject to the
PWL.
2
FACTS
The following uncontested facts are largely taken from the Court of Appeal
opinion in this case. The Department of Industrial Relations (Department) appeals
from a judgment granting a petition for writ of mandate filed by the City. The
City had sought to overturn the Department’s determination that an animal shelter
project financed in part with City funds and built on City lands was subject to the
PWL.
In 1998, the City entered into an agreement with SPCA-LA, under which
the City agreed to contribute $1.5 million to assist in the development and
preconstruction phases of a facility within City limits that would serve as an
animal shelter and SPCA-LA’s administrative headquarters. It would also provide
kennels and office space for the City’s animal control department. The agreement
required the City’s funds to be placed in a segregated account and used only for
expenses related to project development, such as SPCA-LA’s “investigation and
analysis” of the property on which the shelter was to be built, “permit, application,
filing and other fees and charges,” and “design and related preconstruction costs.”
SPCA-LA was specifically precluded from using any of the City’s funds “to pay
overhead, supervision, administrative or other such costs” of the organization.
The City owned the land on which the facility was to be built, but leased it
to SPCA-LA for $120 per year. The City in turn agreed to pay SPCA-LA $60 a
year as rent for the space occupied by its animal control department. The
agreement further provided it was “interdependent,” with lease and lease-back
agreements between the parties with respect to the City land on which the project
would be built. The agreement further stated that “[i]f either the lease or lease-
back is terminated then this agreement shall automatically terminate, without
notice.” Finally, the agreement provided “[i]f there is a claim relating to the
payment of wages arising from the construction described herein,” the City shall
3
pay 95 percent of “all costs, expenses, penalties, payments of wages, interest, and
other charges related to the claim, including attorneys’ fees and court or
administrative costs and expenses[.]”
The record shows a portion of the City’s financial contribution was spent
on such preconstruction expenses as architecture and design ($318,333), project
management ($440,524), legal fees ($16,645), surveying ($14,500), and insurance
($23,478). The City estimated that an additional $152,000 in architectural, legal,
development and insurance expenses would be required for completion. The
dissent observes that some of these additional funds may have been spent after
actual construction began. The dissent cites a letter from the City indicating that
by the time construction began, some additional funds “had yet to be spent.” (Dis.
opn. at p. 6.) The record is unclear, however, if or when such funds were actually
paid. But as we previously noted, the City’s agreement with SPCA-LA required
the City’s funds to be used only for project development, design and related
preconstruction costs, and the issue before us is whether the term “construction”
includes such activities. Assuming some limited City funds were spent during
construction, the record fails to demonstrate they were used for construction.
The project itself was completed in 2001 at a cost of approximately $10
million. Evidence obtained from the SPCA-LA showed the project was intended
to serve all of Los Angeles County and parts of Orange County. Animals from all
these areas, not just from Long Beach, would be housed at the shelter. In addition,
the facility would also house the SPCA-LA’s headquarters.
Section 1771 states in relevant part: “[N]ot 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 . . . shall be paid to all workers employed on public
works.” In 1998, when the present contract was executed, “public works” was
defined as “[c]onstruction, alteration, demolition, or repair work done under
4
contract and paid for in whole or in part out of public funds . . . .” (§ 1720, subd.
(a), italics added.) The term “construction” was undefined. As discussed below, a
2000 amendment to section 1720, subdivision (a), adopted several years after the
City executed its contract with SPCA-LA and made its limited contribution, now
includes within “construction” such activities as “the design and preconstruction
phases of construction,” including inspection and surveying.
Acting on an inquiry by a labor organization, the Department began an
investigation to determine whether the project was a “public work” under former
section 1720 and was therefore subject to the prevailing wage rates that section
1771 mandated. The City argued that the project was not a public work, but even
if it was, the prevailing wage law did not apply because it was strictly a charter
city’s “municipal affair.” The Department concluded the project was a public
work and the city’s status as a charter city did not exempt it from the PWL. This
determination was affirmed on an administrative appeal. The City filed a petition
for a writ of mandate under Code of Civil Procedure section 1085 challenging the
Department’s decision that the PWL applied to the shelter project. The trial court
granted the writ, and the Department filed a timely appeal. The Court of Appeal
reversed, concluding that (1) the project was a public work under former section
1720 and section 1771, (2) the project was not a municipal affair exempt from the
PWL, and (3) even if the project was a municipal affair, the PWL was a matter of
statewide concern, precluding exemption under the municipal affairs doctrine.
Concluding the shelter project was not a public work as then defined, we will
reverse the judgment of the Court of Appeal.
DISCUSSION
Before proceeding with our analysis, we set out some established principles
that will help guide our decision. In Lusardi Construction Co. v. Aubry (1992) 1
Cal.4th 976 (Lusardi), we spoke regarding the PWL’s general intent and scope.
5
We observed that “[t]he Legislature has declared that it is the public policy of
California ‘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 competitive advantage at the expense of their workers by failing to
comply with minimum labor standards.’ [Citation.] [¶] The overall purpose of
the prevailing wage law is to protect and benefit employees on public works
projects. [Citation.]” (Lusardi, supra, 1 Cal.4th at p. 985, italics added.)
Lusardi continued by observing that “[t]his 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, supra, 1 Cal.4th at p. 987.)
In conducting our review, we must exercise our independent judgment in
resolving whether the project at issue constituted a “public work” within the
meaning of the PWL. (McIntosh v. Aubry (1993) 14 Cal.App.4th 1576, 1583-
1584 (McIntosh).) We have acknowledged that the PWL was enacted to protect
and benefit workers and the public and is to be liberally construed. (See Lusardi,
supra, 1 Cal.4th at p. 985.) The law does, however, permit public agencies to
form alliances with the private sector and allows them to enter into leases of public
lands and to give financial incentives to encourage private, nonprofit construction
projects that provide public services at low cost (see Gov. Code, § 26227;
McIntosh, supra, 14 Cal.App.4th at p. 1587; International Brotherhood of
Electrical Workers v. Board of Harbor Commissioners (1977) 68 Cal.App.3d 556,
6
562 [lease to private developer to construct oil and gas facilities and pay city-
lessor royalties not “public work” under former section 1720]).
“Courts will liberally construe prevailing wage statutes [citations], but they
cannot interfere where the Legislature has demonstrated the ability to make its
intent clear and chosen not to act [citation].” (McIntosh, supra, 14 Cal.4th at p.
1589.) Here, we must determine whether the City’s contract with SPCA-LA truly
involved “construction” that was paid for in part with public funds.
The City observes that its $1.5 million donation to SPCA-LA was neither
earmarked nor used for actual construction of the facility. The City’s agreement
with SPCA-LA specifically designated the contributed funds for preconstruction
costs. Those funds were in fact spent on architectural design, project
management, legal fees, surveying fees, and insurance coverage. The City
contends that, when the agreement was executed in 1998, “construction” meant
only the actual physical act of building the structure.
The City notes that only in 2000, several years after the agreement was
signed and after the City had contributed its funds to the project, did the
Legislature amend section 1720, subdivision (a), by adding a sentence stating:
“For purposes of this paragraph, ‘construction’ includes work performed during
the design and preconstruction phases of construction including, but not limited to,
inspection and land surveying work.” (Stats. 2000, ch. 881, § 1.) The City views
the foregoing amendment as a prospective change in the law, not a simple
restatement of existing law.
The Department, on the other hand, argues that the term “construction”
would encompass the planning, design, and “pre-building” phases of a project,
which would include architectural design, project management, and surveying.
The City’s financial contribution to the project paid for all these items. In the
Department’s view, the 2000 amendment to section 1720, subdivision (a), merely
7
clarified existing law. As will appear, we think the City’s argument makes more
sense.
The Court of Appeal observed that the “[Department’s] position is supported
by the common meaning of the word ‘construction’ . . . ,” citing a dictionary that
defines construction as “[t]he act or process of constructing.” (American Heritage
Dict. (2d college ed. 1982) p. 315, italics added; see also Priest v. Housing
Authority (1969) 275 Cal.App.2d 751, 756 [construction ordinarily includes “the
entire process” required in order to erect a structure, including basements,
foundations, and utility connections].) But that definition begs the question
whether the construction “process” includes the preconstruction activities involved
here. Other dictionaries give the word a more literal interpretation.
For example, Webster’s Third New International Dictionary (2002), page
489, gives a primary definition of “construction” as “[t]he act of putting parts
together to form a complete integrated object.” 3 Oxford English Dictionary (2d
ed. 1989), page 794, defines the word as “the action of framing, devising, or
forming, by the putting together of parts; erection, building.” Thus, contrary to the
Court of Appeal’s statement, dictionary definitions do not strongly support the
Department’s position.
The Court of Appeal also relied on the Department’s own regulations and
rulings interpreting and implementing the PWL. It noted that the Department has
defined “construction” as including “field survey work traditionally covered by
collective bargaining agreements,” when such surveying is “integral to the specific
public works project in the design, preconstruction, or construction phase.” (Cal.
Code Regs., tit. 8, § 16001, subd. (c).) The total project cost was approximately
$10 million. The record does not clearly show whether the minimal ($14,500)
surveying work paid for out of the City’s donation met the “collective bargaining”
8
and “integral work” elements of the Department regulation. Neither the Court of
Appeal nor the briefs explore these aspects of the regulation.
In any event, assuming that regulation applies here, although we give the
Department’s interpretation great weight (e.g., People ex rel. Lungren v. Superior
Court (1996) 14 Cal.4th 294, 309), this court bears the ultimate responsibility for
construing the statute. “When an administrative agency construes a statute in
adopting a regulation or formulating a policy, the court will respect the agency
interpretation as one of several interpretive tools that may be helpful. In the end,
however, ‘[the court] must . . . independently judge the text of the statute.’ ”
(Agnew v. State Bd. of Equalization (1999) 21 Cal.4th 310, 322, quoting Yamaha
Corp. of America v. State Board of Equalization (1998) 19 Cal.4th 1, 7-8.)
The Court of Appeal also relied on the Attorney General’s opinion citing the
Department regulation with apparent approval. (70 Ops.Cal.Atty.Gen. 92, 93-94
(1987).) But the question whether that regulation comported with the PWL was
not before the Attorney General, who was asked only whether the PWL applied to
engineering firm employees whom the city hired to perform services that the city
engineer ordinarily performed. That issue involved determining whether the work
was “performed under contract” or “carried out by a public agency with its own
forces.” (§ 1771.) As the opinion recites, “The inquiry assumes that the work in
question is a ‘public work’ within the meaning” of former section 1720 and
section 1771. (70 Ops.Cal.Atty.Gen., supra, at p. 93.) Indeed, the Attorney
General’s conclusion was that the PWL applied to the engineering firm’s
employees “except with respect to such duties which do not qualify as a public
work.” (Id. at p. 98, italics added.) Thus, the opinion seems inconclusive for our
purposes. In any event, as with the Department’s own regulations, the Attorney
General’s opinions are entitled to “considerable weight,” but are not binding on
9
us. (E.g., State of Cal. ex rel. State Lands Com. v. Superior Court (1995) 11
Cal.4th 50, 71.)
As noted, the City relies in part on the 2000 post-agreement amendment to
section 1720, subdivision (a), defining “construction” to include work performed
during the project’s design and preconstruction phases. The City views the
amendment as a change in existing law. It relies on an August 30, 2000, letter
from the amendment’s author, Senator John Burton, seeking to respond to
interested parties’ “concerns” regarding its operation. The letter recites that the
amendment was “intended only to operate prospectively and therefore will only
apply to contracts for public works entered into on and after the effective date of
the legislation which will be January 1, 2001.” (4 Sen. J. (1999-2000 Reg. Sess.)
p. 6371.) The present contract was executed in 1998.
Although letters from individual legislators are usually given little weight
unless they reflect the Legislature’s collective intent (Quelimane Co. v. Stewart
Title Guaranty Co. (1998) 19 Cal.4th 26, 45-46, fn. 9; Metropolitan Water Dist. v.
Imperial Irrigation Dist. (2000) 80 Cal.App.4th 1403, 1425-1426), the Burton
letter was presented, prior to the bill’s enactment, to the full Senate, which carried
his motion to print it in the Senate Daily Journal. Indeed, the letter is printed and
included under the notes to section 1720 in West’s Annotated Labor Code.
(Historical and Statutory Notes, 44A West’s’ Ann. Lab. Code (2003 ed.) foll. §
1720, p.7.) Under these circumstances, we think the letter carries more weight as
indicative of probable legislative intent. (See Roberts v. City of Palmdale (1993) 5
Cal.4th 363, 377-378; In re Marriage of Bouquet (1976) 16 Cal.3d 583, 590-591.)
Moreover, Senator Burton’s remarks conform to the well-established rule
that legislation is deemed to operate prospectively only, unless a clear contrary
intent appears (e.g., Myers v. Philip Morris Companies, Inc. (2002) 28 Cal.4th
828, 840-841; Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1207-1209,
10
and cases cited). We find in the available legislative history no indication of an
intent to apply the amendment retroactively.
The Department, on the other hand, relies on an Assembly Committee on
Labor and Employment report indicating, “The bill [amending section 1720]
codifies current Department practice by including inspectors and surveyors among
those workers deemed to be employed upon public works and by insuring that
workers entitled to prevailing wage during the construction phase of a public
works project will get prevailing wage on the design and pre-construction phases
of a project.” (Assem. Com. on Labor and Employment, Rep. on Sen. Bill No.
1999 (1999-2000 Reg. Sess.) as amended Aug. 18, 2000, p. 3.) This language is
inconclusive. Although it indicates the proposed legislation will now adopt the
Department practice as to inspectors and surveyors, it fails to state that such
adoption reflects existing law or should be applied retroactively to preexisting
contracts. Moreover, the same Assembly Committee report notes that “in its
current form, this bill also expands the definition of ‘public works’ to include
architects, engineers, general contractors and others in their employ who have not
previously been subject to the prevailing wage laws.” (Ibid., italics added.) This
language strongly indicates that the 2000 amendment was more than a simple
restatement of existing law.
We also note that the Legislative Counsel’s digest to the bill explains that it
would “revise the definition of public works by providing that ‘construction’
includes work performed during the design and preconstruction phases of
construction including, but not limited to, inspection and land surveying work.”
(Legis. Counsel’s Dig., Sen. Bill No. 1999 (1999-2000 Reg. Sess.), Stats. 2000,
ch. 881, italics added.) The Legislative Counsel also evidently believed that the
revision might impose new costs on local government. (Ibid.)
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The City observes that the United States Secretary of Labor has defined
“construction,” for purposes of the federal prevailing wage law (40 U.S.C. §§
3141-3148) as: “All types of work done on a particular building or work at the site
thereof . . . by laborers and mechanics employed by a construction contractor or
construction subcontractor . . . .” (29 C.F.R. § 5.2(j)(1) (2004).) “Laborers and
mechanics” generally include “those workers whose duties are manual or physical
in nature (including those workers who use tools or who are performing the work
of a trade), as distinguished from mental or managerial.” (29 C.F.R. § 5.2(m)
(2004).) This definition seemingly would not cover work done by surveyors,
lawyers, project managers, or insurance underwriters, who function before actual
construction activities commence.
We have found no case deciding whether surveyors’ work constitutes
“construction” under federal regulations. California’s prevailing wage law is
similar to the federal act and shares its purposes. (Southern Cal. Lab.
Management etc. Committee v. Aubry (1997) 54 Cal.App.4th 873, 882.) Although
the Legislature was free to adopt a broader definition of “construction” for
projects that state law covers, certainly the fact that federal law generally confines
its prevailing wage law to situations involving actual construction activity is
entitled to some weight in construing the pre-2000 version of the statute.
The Court of Appeal concluded that the broader interpretation of
“construction” in former section 1720, subdivision (a), is “most consistent” with
the PWL’s purpose, to protect employees and the public. But, of course, no one
suggests that had SPCA-LA, a private charitable foundation, funded the entire
project, the PWL, which applies only to projects constructed in whole or in part
with public funds, would nonetheless cover it. Does it make a difference that
SPCA-LA received City funds for designing, surveying and insuring, and
otherwise managing the project at the preconstruction phase? For all the reasons
12
discussed above, we conclude the project falls outside the PWL’s scope. Our
conclusion makes it unnecessary to reach the City’s alternative contention that the
present project was not “done under contract” within the PWL’s meaning. (See §
1720, subd. (a).)
CONCLUSION
The PWL does not apply in this case because no publicly funded
construction was involved. The judgment of the Court of Appeal is reversed.
CHIN, J.
WE CONCUR:

GEORGE, C.J.
BAXTER, J.
WERDEGAR, J.
BROWN, J.
MORENO, J.

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DISSENTING OPINION BY KENNARD, J.

When a construction project is funded in whole or in part by a public entity,
California law requires that the workers be paid the local prevailing wage. Here, a
city and a charity entered into a contract for construction of a building, and agreed
that the city would pay for certain expenses essential to the overall project but
would not pay for erection of the building itself. The majority concludes the
project was not a public work and therefore not subject to the prevailing wage. I
disagree.
I
In 1998, the City of Long Beach (City) contracted with the Society for the
Prevention of Cruelty to Animals, Los Angeles (SPCA-LA) for the latter to
construct a building that was to contain an animal shelter as well as the SPCA-
LA’s headquarters and the City’s animal control department. The City agreed to
contribute $1.5 million to the project (which ultimately cost approximately $10
million) and to lease to the SPCA-LA, at a nominal fee, the six and one-half acres
of land on which the facility was to be built.
In December 1999, just after ground was broken and the actual building
had begun, a local newspaper reported on the project. This prompted a labor
organization to ask the state Department of Industrial Relations (DIR) to
investigate whether the project was a public work and therefore subject to the
prevailing wage law. In response to the DIR’s inquiry, the City explained in a
1



letter written in September 2000 that the SPCA-LA had placed the City’s $1.5
million contribution in a segregated account; that roughly $1 million was being
used to pay the architects, project managers, lawyers, and surveyors, as well as the
insurance costs; the rest would be used for advertising, fundraising, and “startup
costs” such as furniture and equipment; and that none of the City’s money would
be used to pay for the building itself. The City asserted that because its financial
contribution would not be used to pay for the building itself, the project was not a
public work. The DIR, however, determined that the project was a public work
and therefore subject to the prevailing wage law; that ruling was affirmed on
administrative appeal. The City challenged that decision in a petition for writ of
mandate in the superior court. The court granted the writ, and the DIR appealed.
The Court of Appeal reversed the superior court, concluding that the project was a
public work.
II
Labor Code section 17711 provides that “all workers employed on public
works” costing more than $1,000 must be paid “the general prevailing rate of per
diem wages for work of a similar character in the locality in which the public work
is performed . . . .” When the City and the SPCA-LA contracted to build the
animal control facility in question, the version of section 1720, subdivision (a)
(former section 1720(a)) then in effect defined “public works” in these words:
Construction, alteration, demolition, or repair work done under contract and paid
for in whole or in part out of public funds . . . .” (Stats. 1989, ch. 278, p. 1359,
italics added.) At issue here is what the Legislature meant by the term
“construction.” That term, which has been in section 1720 since its enactment in

1
All further statutory citations are to the Labor Code.
2



1937, is ambiguous. In a narrow sense it could mean – as the majority concludes
– erection of the actual building only. In a broader sense it could mean – as the
Court of Appeal concluded – the entire construction project, including the
architectural, project management, insurance, surveying, and legal costs paid for
by the City here. The parties furnish no legislative history bearing on the intent of
the Legislature in 1937, when it used the word “construction” in former section
1720(a). But two principles of statutory interpretation provide guidance, as
discussed below.
In construing an ambiguous statute, courts generally defer to the views of
an agency charged with administering the statute. “While taking ultimate
responsibility for the construction of a statute, we accord ‘great weight and respect
to the administrative construction’ thereof. . . . [¶] Deference to administrative
interpretations always is ‘situational’ and depends on ‘a complex of factors’ . . . ,
but where the agency has special expertise and its decision is carefully considered
by senior agency officials, that decision is entitled to correspondingly greater
weight . . . .” (Sharon S. v. Superior Court (2003) 31 Cal.4th 417, 436, citations &
fn. omitted (Sharon S.); see also Styne v. Stevens (2001) 26 Cal.4th 42, 53;
Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 11-
15.)
The Legislature has given the Director of the DIR “plenary authority to
promulgate rules to enforce the Labor Code,” including “the authority to make
regulations governing coverage” under the prevailing wage law. (Lusardi
Construction Co. v. Aubry (1992) 1 Cal.4th 976, 989.) When, as here, the
meaning of a statutory term is ambiguous and there is no indication of the
Legislature’s intent regarding its meaning, this court should defer to the DIR’s
determination based on its “special expertise” (Sharon S., supra, 31 Cal.4th at
p. 436), so long as that determination was “carefully considered by senior agency
3

officials” (ibid.) and is consistent with the DIR’s previous decisions (Yamaha
Corp. of America v. State Bd. of Equalization, supra, 19 Cal.4th at p. 13 [courts
should not defer to an administrative agency that has taken a “vacillating position”
as to the meaning of the statute in question]).
Here, in a 13-page decision signed by DIR Director Stephen Smith, the
DIR concluded that this project was a public work. The DIR’s regulations have
long stated that surveying work, which the City paid for here, comes within the
definition of the term “construction” under former section 1720(a), whether or not
it occurs before the actual building process begins, so long as it is “integral to” the
project. (Cal. Code Regs., tit. 8, § 16001, subd. (c).) The City does not deny that
the work performed by the architect and the project manager – also paid for by the
City – was integral to the construction project here. Thus, the DIR’s
determination that the construction project in question is a public work was
carefully considered by a senior agency official and is consistent with the agency’s
regulations. Therefore, that decision commands great deference.
Also lending support to my conclusion is California’s long-standing policy
that prevailing wage laws are to be liberally construed in favor of the worker.
(Walker v. County of Los Angeles (1961) 55 Cal.2d 626, 634-635; McIntosh v.
Aubry (1993) 14 Cal.App.4th 1576, 1589; Union of American Physicians v. Civil
Service Com. (1982) 129 Cal.App.3d 392, 395; Melendres v. City of Los Angeles
(1974) 40 Cal.App.3d 718, 728; Alameda County Employees’ Assn. v. County of
Alameda (1973) 30 Cal.App.3d 518, 531.) When, as here, a term in the prevailing
wage law can plausibly be construed in two ways, one broad and one narrow, and
there is no evidence that the Legislature intended the term’s narrow meaning, this
court should adopt the term’s broader meaning. The Legislature’s objectives in
enacting the prevailing wage law were these: “to protect employees from
substandard wages that might be paid if contractors could recruit labor from
4

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.”
(Lusardi Construction Co. v. Aubry, supra, 1 Cal.4th at p. 987.) These purposes
will be implemented by applying the prevailing wage law to the project here.
For the reasons given above, the word “construction” in former section
1720(a) refers to work that, in the Court of Appeal’s words, is “integrally
connected to the actual building and without which the structure could not be
built.” That includes the costs of surveying, architectural design and supervision,
and project management paid for by the City here.
III
The majority acknowledges the two rules of statutory interpretation I just
discussed. As applied here, those rules require a broad reading of the word
“construction” in former section 1720(a). Yet the majority construes the term
narrowly, holding that it does not encompass the expenses paid for by the City
here. The majority’s reasons are unpersuasive.
The majority repeatedly characterizes as “preconstruction” costs the
expenses the City paid for architectural design and supervision, project
management, insurance, surveying, and legal services. (Maj. opn., ante, at pp. 1,
2, 3, 7, 8, 12.) To label these expenses as “preconstruction” is misleading. The
term implies that all these expenses were incurred before the building of the
facility began. But, as explained below, that view finds no support in the record.
True, the surveying expenses were most likely incurred at the outset of the
project, as is customarily the case. But that is not true of the project’s
management and architectural costs. The SPCA-LA’s contract with project
manager Pacific Development Services said the latter’s duties included
5

“Construction Management of all phases of construction of the Project.” (Italics
added.) And the SPCA-LA’s contract with the architectural firm of Warren
Freedenfeld & Associates provided that the firm would “be a representative of and
shall advise and consult with the owner during construction,” would “visit the site
at intervals appropriate to the stage of construction,” would “keep the Owner
informed of the progress and quality of the Work,” and would attempt to “guard
the Owner against defects and deficiencies in the Work” as it progressed. (Italics
added.) Indeed, the City’s September 2000 letter to the DIR (see p. 2, ante) when
the building phase of the project was well under way, said that of the
approximately $540,000 of the City’s contribution that was budgeted for project
management, $100,000 had yet to be spent; and that of the $360,000 of the City’s
contribution that was budgeted for architectural fees, $40,000 had yet to be spent.
The City’s letter also mentioned that smaller portions of the legal and insurance
costs had yet to be paid. Thus, the contracts with the project manager and the
architect, as well as the City’s letter, demonstrate that the City did not pay merely
for “preconstruction” costs but also for expenses incurred while the facility was
being constructed.
The majority talks at length about an amendment to section 1720(a) that the
Legislature enacted in 2000, stating that the term “construction,” as used in that
section, includes “the design and preconstruction phases of construction.” After a
thorough review of the legislative history pertaining to the 2000 amendment, the
majority concludes that the Legislature did not intend the amendment to apply
retroactively. Right. So what? Retroactivity of the 2000 amendment is not at
issue here; therefore, the intent of the 2000 Legislature has no bearing here. What
is at issue is the intent of the Legislature back in 1937, when it first used the word
“construction” to define public works in former section 1720(a). It is the duty of
this court, not the 2000 Legislature, to determine the 1937 Legislature’s intent, and
6

the views of the 2000 Legislature on the subject are not controlling. As this court
said less than two months ago: “[T]he ‘Legislature has no authority to interpret a
statute. That is a judicial task. The Legislature may define the meaning of
statutory language by a present legislative enactment which, subject to
constitutional restraints, it may deem retroactive. But it has no legislative
authority simply to say what it did mean.’ ” (McClung v. Employment
Development Department (2004) 34 Cal.4th 467, 473.)
IV
I would uphold the Court of Appeal’s decision that the project here was a
public work and thus subject to the prevailing wage law. The majority concludes
to the contrary and sees no need to resolve the remaining two issues on which this
court granted review: (1) whether the project is a “municipal affair” exempt from
the prevailing wage law, and (2) whether the prevailing wage law is a matter of
statewide concern that overrides the municipal affair exemption. These are
difficult and important questions. I would retain the case to decide them.
KENNARD,
J.
7

See last page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion City of Long Beach v. Department of Industrial Relations
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 110 Cal.App.4th 636
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S118450
Date Filed: December 20, 2004
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: David P. Yaffe

__________________________________________________________________________________

Attorneys for Appellant:

John M. Rea, Chief Counsel, Vanessa L. Holton, Acting Chief Counsel, Steven A. McGinty, Assistant
Chief Counsel, Sarah L. Cohen, Acting Assistant Chief Counsel, and Anthony Mischel, Staff Counsel, for
Defendant and Appellant.

Althshuler, Berzon, Nussbaum, Rubin & Demain, Stephen P. Berzon, Scott A. Kronland, Dorothea K.
Langsam and Victor M. Ortiz-de-Montellano for The State Building and Construction Trades Council of
California, AFL-CIO as Amicus Curiae on behalf of Defendant and Appellant.

Cox, Castle & Nicholson, John S. Miller, Jr., and Dwayne P. McKenzie for Center for Contract
Compliance as Amicus Curiae on behalf of Defendant and Appellant.

Weinberg, Roger & Rosenfeld, Sandra Rae Benson, Ellyn Moscowitz and M. Suzanne Murphy for
California Apprenticeship Coordinators Association, et al., as Amici Curiae on behalf of Defendant and
Appellant.

Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, Andrea Lynn Hoch, Chief
Assistant Attorney General, Louis R. Mauro, Assistant Attorney General, and Douglas J. Woods, Deputy
Attorney General, as Amici Curiae on behalf of Defendant and Appellant.

Simpson, Garrity & Innes, Paul V. Simpson and Ronald A. Johnstone for Engineering & Utility
Contractors Association as Amicus Curiae on behalf of Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Robert E. Shannon, City Attorney, Daniel S. Murphy, Principal Deputy City Attorney, and Michelle
Gardner, Deputy City Attorney, for Plaintiff and Respondent.


PAGE 2 - COUNSEL CONTINUED - S118450

Attorneys for Respondent:

Rutan & Tucker, M. Katherine Jenson and Mark J. Austin for 44 California Cities and The League of
California Cities as Amici Curiae on behalf of Plaintiff and Respondent.

Nick Cammarota for California Building Industry Association as Amicus Curiae on behalf of Plaintiff and
Respondent.

Atkinson, Andelson, Loya, Ruud & Romo, Robert Fried, Thomas A. Lenz and Alice K. Conway for
Associated Builders & Contractors of Southern California, Inc., as Amicus Curiae on behalf of Plaintiff
and Respondent.

Case, Knowlson, Jordan & Wright, Michael F. Wright and Armen Tamzarian for M&H Realty Partners IV
L.P. as Amicus Curiae on behalf of Plaintiff and Respondent.

Stanton, Kay & Watson and James P. Watson for Foundation for Fair Contracting as Amicus Curiae.

Davis, Cowell & Bowe, John J. Davis, Jr., and Andrew J. Kahn for Northern California Mechanical
Contractors Association, Los Angeles Chapter National Electrical Contractors Association, Air
Conditioning, Refrigeration and Mechanical Contractors Association of Southern California, California
Plumbing and Mechanical Contractors Association, California Sheet Metal Contractors National
Association and Associated Plumbing and Mechanical Contractors Association as Amici Curiae.



Counsel who argued in Supreme Court (not intended for publication with opinion):


Anthony Mischel
Staff Counsel
Department of Industrial Relations
Office of the Director - Legal Unit
320 West Fourth Street, Suite 600
Los Angeles, CA 90013-2344
(213) 576-7725

Scott A. Kronland
Althsuler, Berzon, Nussbaum, Rubin & Demain
177 Post Street, Suite 300
San Francisco, CA 94108
(415) 421-7151

Robert E. Shannon
City Attorney
333 West Ocean Boulevard, 11th Floor
Long Beach, CA 90802-4664
(562) 570-2200

M. Katherine Jenson
Rutan & Tucker
611 Anton Boulevard, 14th Floor
Costa Mesa, CA 92626-1931
(714) 641-5100


Opinion Information
Date:Docket Number:
Mon, 12/20/2004S118450

Parties
1City Of Long Beach (Plaintiff and Respondent)
Represented by Daniel S. Murphy
Ofc City Attorney
333 W Ocean Blvd 11th Fl
Long Beach, CA

2Department Of Industrial Relations (Defendant and Appellant)
Represented by Anthony Mischel
Ofc Director/Legal Unit
320 W 4th St #600
Los Angeles, CA

3League Of California Cities (Pub/Depublication Requestor)
Represented by M. Katherine Jenson
Rutan Ampersan & Tucker LLP
611 Anton Blvd #1400
Costa Mesa, CA

4State Building & Construction Trades Council Of California (Amicus curiae)
Represented by Stephen P. Berzon
Altshuler Berzon et al
177 Post St #300
San Francisco, CA

5State Building & Construction Trades Council Of California (Amicus curiae)
Represented by Scott A. Kronland
Altshuler Berzon et al
177 Post St #300
San Francisco, CA

6League Of California Cities (Amicus curiae)
Represented by M. Katherine Jenson
Rutan Ampersan & Tucker LLP
611 Anton Blvd #1400
Costa Mesa, CA

7California Apprenticeship Coordinators Association (Amicus curiae)
Represented by Mary Suzanne Murphy
Weinberg Roger & Rosenfeld
180 Grand Avenue, Suite 1400
Oakland, CA

8California Apprenticeship Coordinators Association (Amicus curiae)
Represented by Sandra Rae Benson
Van Bourg Weinberg et al
180 Grand Ave #1400
Oakland, CA

9California Apprenticeship Coordinators Association (Amicus curiae)
Represented by Ellyn Lee Moscowitz
WEINBERG, ROGER & ROSENFELD
180 Grand Ave #1400
Oakland, CA

10Northern California Mechanical Contractors Association (Amicus curiae)
Represented by Andrew J. Kahn
Davis Cowell & Bowe
100 Van Ness Ave 20th Fl
San Francisco, CA

11Northern California Mechanical Contractors Association (Amicus curiae)
Represented by John J. Davis
Davis Cowell & Bowe LLP
100 Van Ness Avenue, 20th Floor
San Francisco, CA

12California Building Industry Association (Amicus curiae)
Represented by Nicholas John Cammarota
Attorney at Law
1215 K St #1200
Sacramento, CA

13Foundation For Fair Contracting (Amicus curiae)
Represented by James P. Watson
Stanton Kay & Watson LLP
101 New Montgomery St 5FL
San Francisco, CA

14Associated Builders & Contractors Of Southern California (Amicus curiae)
Represented by Robert Fried
Atkinson Andelson et al
5776 Stoneridge Mall Rd 200
Pleasanton, CA

15Associated Builders & Contractors Of Southern California (Amicus curiae)
Represented by Alice Kathleen Conway
Atkinson Andelson et al
5776 Stoneridge Mall Rd 200
Pleasanton, CA

16Associated Builders & Contractors Of Southern California (Amicus curiae)
Represented by Thomas Arthur Lenz
Atkinson Andelson et al
17871 Park Plaza Dr
Cerritos, CA

17Engineering & Utility Contractors Association (Amicus curiae)
Represented by Paul V. Simpson
Simpson Garrity & Innes
651 Gateway Blvd
S San Francisco, CA

18Engineering & Utility Contractors Association (Amicus curiae)
Represented by Ronald Alex Johnstone
Cooley Godward LLP
1 Maritime Plz 20FL
San Francisco, CA

19Center For Contract Compliance (Amicus curiae)
Represented by John S. Miller
Cox Castle & Nicholson
2049 Century Park E 28th Fl
Los Angeles, CA

20Center For Contract Compliance (Amicus curiae)
Represented by Dwayne Paul Mckenzie
Cox Castle & Nicholson LLP
265 Sobrante Way #G
Sunnyvale, CA

21M&H Realty Partners Iv, L.P. (Amicus curiae)
Represented by Michael F. Wright
Case Knowlson et al LLP
2049 Century Park E #3350
Los Angeles, CA

22M&H Realty Partners Iv, L.P. (Amicus curiae)
Represented by Armen Tamzarian
Case Knowlson et al LLP
2049 Century Park E #3350
Los Angeles, CA


Disposition
Dec 20 2004Opinion: Reversed

Dockets
Aug 21 2003Petition for review filed
  respondent , City of Long Beahc
Aug 25 2003Record requested
 
Sep 4 20032nd record request
 
Sep 5 2003Request for depublication (petition for review pending)
  The League of Calif. Cities (non-party)
Sep 8 2003Received Court of Appeal record
  one doghouse.
Sep 15 2003Opposition filed
  by State Bldg. and Constr. Trades Council of Calif., AFL-CIO to depub. request of the League of Calif. Cities.
Sep 15 2003Opposition filed
  opposition to depub>>appellant Department of Industrial Relations
Sep 15 2003Received:
  answer to petition for review & reqt for judicial notice [late] appellant Department of Industrial Relations
Sep 18 2003Application for relief from default filed
  by counsel for Dept.of Industrial Relations
Sep 22 2003Answer to petition for review filed with permission
  by counsel for appellant (Dept. of Industrial Relations)
Oct 1 2003Petition for Review Granted (civil case)
  Request for judicial notice denied. Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Brown and Moreno, JJ.
Oct 14 2003Certification of interested entities or persons filed
  appellant Department of Industrial Relations
Oct 31 2003Opening brief on the merits filed
  respondent City of Long Beach
Nov 20 2003Request for extension of time filed
  counsel for aplt. (Dept. of Industrial Relations) requests an extension of time to February 2, 2004, to file the answer brief on the merits.
Nov 21 2003Extension of time granted
  Appellant's time to serve and file the answer brief on the merits is extended to and including December 30, 2003.
Dec 16 2003Motion for leave to intervene filed
  by counsel for amicus State Building and Construction Trades Council of California/AFL-CIO
Dec 19 2003Filed:
  Supplemental Declaration of Scott Kronland in support of Motion for Leave to Intervene.
Dec 30 2003Answer brief on the merits filed
  appellant Department of Industrial Relations
Dec 31 2003Received:
  Application of the State Bldg. and Constr. Trades Council/AFL-CIO to file brief as Amicus Curiae if Intervention is denied w/Brief.
Jan 5 2004Opposition filed
  by counsel for aplt. (City of Long Beach) to Motion for Leave to Intervene.
Jan 9 2004Filed:
  by counsel for (State Bldg. and Construc. Trades Council of Calif., AFL-CIO), Reply to Opposition for Motion for Leave to Intervene.
Jan 20 2004Reply brief filed (case fully briefed)
  by respondent City of Long Beach
Jan 22 2004Permission to file amicus curiae brief granted
  State Bldg. and Construction Trades Council of Calif., AFL-CIO
Jan 22 2004Motion for leave to intervene denied
  Amicus's motion to intervene as party, filed December 16, 2003, is DENIED.
Jan 23 2004Received application to file amicus curiae brief; with brief
  League of Calif. Cities in support of petitioner
Jan 28 2004Amicus curiae brief filed
  State Bldg. and Construc.Trades Council of Calif., AFL-CIO. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Jan 28 2004Permission to file amicus curiae brief granted
  League of California Cities in support of petitioner (non-party)
Jan 28 2004Amicus curiae brief filed
  League of California Cities. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Feb 13 2004Received letter from:
  Alameda City Councilmember, letter dated February 10, 2004. (Letter returned 3-1-2004)
Feb 17 2004Response to amicus curiae brief filed
  to ac League of Calif Cities>>appellant Department of Industrial Relations
Feb 18 2004Received application to file amicus curiae brief; with brief
  Center for Contract Compliance [in support of aplt Dept]
Feb 18 2004Received application to file amicus curiae brief; with brief
  Calif. Building Industry Assoc. in support of plaintiff/w Request for Judicial Notice
Feb 19 2004Received application to file amicus curiae brief; with brief
  Calif. Apprenticeship Coordinators Assoc., et al., in support of appellant
Feb 19 2004Amicus curiae brief filed
  SAC/Attorney General in support of appellant. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Feb 19 2004Received application to file amicus curiae brief; with brief
  Northern Calif. Mechanical Contractors Assoc.et al., and a request to file oversized attachment
Feb 19 2004Received application to file amicus curiae brief; with brief
  Associated Builders & Contractors of Southern California Chapter, Inc. [in support of petr City]
Feb 19 2004Request for Judicial Notice received (in non-AA proceeding)
  & rec'd application for leave to submit request Center for Contract Compliance
Feb 23 2004Permission to file amicus curiae brief granted
  Northern Calif. Mechanical Contractors Assoc. (non-party) in support of affirmance.
Feb 23 2004Amicus curiae brief filed
  Northern Calif. Mechanical Contractors Assoc.et al., in support of affirmance is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Feb 24 2004Received application to file amicus curiae brief; with brief
  Foundation for Fair Contracting--late
Feb 24 2004Filed:
  by counsel for (Dept. of Industrial Rel .) letter re: grant of amicus curiae status to Assoc. Bldg. Contractors of So. Calif.
Feb 24 2004Received:
  Proof of service from counsel for aplt.
Feb 25 2004Application filed to:
  submit late ac brief>> Foundation for Fair Contracting
Feb 25 2004Application filed to:
  submit late ac brief>>M & H Realty Partners IV, LP
Feb 25 2004Received application to file amicus curiae brief; with brief
  M&H Realty Partners IV, LP--late
Feb 25 2004Request for Judicial Notice received (in non-AA proceeding)
  & applctn to file w/i RQJ>>M&H Realty Partners IV, LP
Feb 27 2004Received application to file Amicus Curiae Brief
  Engineering & Utility Contrs. Assoc. w/ request to file late.
Feb 27 2004Filed:
  by counsel for aplt. (Dept. of Industrial Rel.) letter objecting to M & H Realty application for amicus curiae status.
Mar 1 2004Permission to file amicus curiae brief granted
  Calif. Apprenticeship Coordinators.
Mar 1 2004Amicus curiae brief filed
  California Apprenticeship Coordinators in support of appellant. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Mar 4 2004Received:
  from counsel for Engineering & Utility Contrs. Assn. Errata to Appl. for permission to file a/c brief.
Mar 5 2004Filed:
  by counsel for amicus curiae Amer. Bldg. Industry re: letter from Dept. of Ind. Rel. on amicus status.
Mar 12 2004Permission to file amicus curiae brief granted
  Associated Builders & Contractors of Southern Calif.Chapter. Inc, (non-party)
Mar 12 2004Amicus curiae brief filed
  Assoc. Builders & Contractors of So. Calif. Chapter, Inc. in support of petitioner. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Mar 12 2004Permission to file amicus curiae brief granted
  Engineering & Utility Contractors Assoc. (non-party)
Mar 12 2004Amicus curiae brief filed
  Engineering & Utility Contractors Assoc. in support of appellant. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Mar 12 2004Permission to file amicus curiae brief granted
  Foundation for Fair Contracting (non-party)
Mar 12 2004Amicus curiae brief filed
  Foundation For Fair Contracting. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Mar 12 2004Permission to file amicus curiae brief granted
  Center for Contract Compliance (non-party)
Mar 12 2004Amicus curiae brief filed
  Center for Contract Compliance with Request for Judicial Notice in support of appellant. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Mar 12 2004Permission to file amicus curiae brief granted
  M & H Realty Partners IV L.P. (non-party)
Mar 12 2004Amicus curiae brief filed
  M & H Realty Partners IV L.P. with Request for Judicial Notice in support of petitioner. An answer thereo may be served and filed by any party within twenty days of the filing of the brief.
Mar 12 2004Permission to file amicus curiae brief granted
  California Building Industry Assoc. (non-party)
Mar 12 2004Amicus curiae brief filed
  California Building Industry Association with Request for Judicial Notice. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Apr 1 2004Response to amicus curiae brief filed
  to ac brief of California Bldg Industry Assn, etal>> appellant Department of Industrial Relations
Sep 1 2004Case ordered on calendar
  10/6/04 @ 9am - Los Angeles
Sep 9 2004Received:
  Application to participate in oral argument from amicus State Building Trades Council for appellant.
Sep 13 2004Received:
  application to participate in oral argument from amicus - League of California Cities for respondent.
Sep 13 2004Filed:
  Appellant's request to allocate oral argument time to amicus State Building and Constructions Trades Counsel.
Sep 15 2004Letter sent to:
  counsel for A/C, State Building & Trades Council of California, AFL-CIO, re court has granted them 10 minutes of time to present oral argument on behalf of Appelant.
Sep 23 2004Order filed
  The request of counsel for respondent to allow two counsel to argue on behalf of respondent at oral argument is hereby granted.
Sep 23 2004Order filed
  The request of respondent to allocate to amicus curiae League of California Cities 10 minutes of respondent's 30-minute allotted time for oral argument is granted.
Sep 23 2004Order filed
  The request of counsel for appellant to allow two counsel to argue on behalf of appellant at oral argument is hereby granted.
Sep 23 2004Order filed
  The request of appellant to allocate to amicus curiae State Building and Construction Trades Council of California, AFL-CIO 10 minutes of appellant's 30-minute allotted time for oral argument is granted.
Oct 6 2004Cause argued and submitted
 
Dec 20 2004Opinion filed: Judgment reversed
  OPINION BY: Chin, J. ---joined by: George, C.J., Baxter, Werdegar, Brown, Moreno, JJ. DISSENTING OPINION BY: Kennard, J.
Jan 20 2005Remittitur issued (civil case)
 
Jan 27 2005Received:
  receipt for remittitur from CA 2/7

Briefs
Oct 31 2003Opening brief on the merits filed
 
Dec 30 2003Answer brief on the merits filed
 
Jan 20 2004Reply brief filed (case fully briefed)
 
Jan 28 2004Amicus curiae brief filed
 
Jan 28 2004Amicus curiae brief filed
 
Feb 17 2004Response to amicus curiae brief filed
 
Feb 19 2004Amicus curiae brief filed
 
Feb 23 2004Amicus curiae brief filed
 
Mar 1 2004Amicus curiae brief filed
 
Mar 12 2004Amicus curiae brief filed
 
Mar 12 2004Amicus curiae brief filed
 
Mar 12 2004Amicus curiae brief filed
 
Mar 12 2004Amicus curiae brief filed
 
Mar 12 2004Amicus curiae brief filed
 
Mar 12 2004Amicus curiae brief filed
 
Apr 1 2004Response to amicus curiae brief filed
 
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