Unpaid Wages in PA

Author: LegalEase Solutions 

MEMORANDUM OF POINTS AND AUTHORITIES

  1. INTRODUCTION

In this matter, Plaintiffs allege damages for unpaid wages based on alleged work performed on public works jobs while employed by Defendant Van Elk, LTD (hereinafter “Van Elk”).

Defendant Van Elk seeks summary judgment on the basis that Plaintiffs lack standing to bring forth theses claims pursuant to recent Supreme Court case law which restricts these kind of damage claims from undocumented workers.

In the alternative, assuming arguendo that Plaintiffs do have standing, Defendant Van Elk seeks summary adjudication on the damage claims which have no merit and for which Van Elk has a complete defense. More specifically, Defendant Van Elk seeks the following summary adjudication relief: (1) reduce Plaintiffs’ damage claims by eliminating five of the eight projects listed in Plaintiffs’ Complaint from which they base their claims, since those projects are private and not public, and thus not subject to prevailing wage claims; and (2) reduce Plaintiffs’ damage claims by eliminating all prevailing wages sought for work performed off-site and limiting all claims to only those hours performed on-site.

Defendant Van Elk will demonstrate in this Memorandum of Points and Authorities and the attached Separate Statement of Undisputed Facts, that the relevant facts are undisputed, and that as a matter of law, Plaintiffs lack standing to pursue their claims, and in the alternative, Plaintiffs’ claims for damages should exclude five of the eight projects listed since they are private jobs, and all claims for damages should be limited to those hours performed on-site and exclude damages for hours performed off-site.

Based on the foregoing, Defendant Van Elk respectfully requests this Court grant its Motion for Summary Judgment, or in the alternative, grant its Motion for Summary Adjudication.

  1. STATEMENT OF FACTS

Each of the Plaintiffs were employed by Defendant Van Elk for a period of time. During their employment, Plaintiffs performed welding related work on different construction projects for Van Elk.  Plaintiffs’ Complaint claims they worked on the following projects and were not paid the prevailing wage they were owed: (1) Washington K-8 Middle School; (2) 420 South Tecan Street, Boyle Heights; (3) 2037 North Lincoln Park Avenue, Lincoln Heights; (4) 5521 West Harold Way, Hollywood; (5) 9229 Sepulveda Boulevard, North Hills; (6) University Housing – 31232 Broad Beach Road, Malibu; (7) Marvin Engineering Company – 250 Beach Avenue, Inglewood; and (8) Las Positas Elementary School[1].

It is undisputed that none of the Plaintiffs are documented workers. [Deposition of Jose Reyes, page 21, lines 16-25; Deposition of Jose Reyes, page 74, lines 23-24; Jose Reyes’ Response to Request for Admission of Defendant Van Elk, LTD, Set One No. 13 (“Exhibit H”); Deposition of Francisco Reyes, page 58, lines 3-15; Deposition of Francisco Reyes, page 57, lines 4-16; Francisco Reyes’ Response to Request for Admission of Defendant Van Elk, LTD, Set One No. 13 (“Exhibit I”); Deposition of Jose Perez, page 9, lines 15-18; Deposition of Jose Perez, pages 93, 94, lines 24-25, line 1; Deposition of Jose Perez, page 28, lines 5-6; Jose Perez’s Response to Request for Admission of Defendant Van Elk, LTD, Set One No. 13 (“Exhibit J”); Deposition of Carlos Flores, page 61-62, lines 22-25, line 1; Deposition of Carlos Flores page 62, lines 5-14; Carlos Flores’ Response to Request for Admission of Defendant Van Elk, LTD, Set One No. 13 (“Exhibit K”) (Separate Statement of Undisputed Facts Nos. 1-4)].

It is also undisputed that five of the eight projects listed in Plaintiffs’ Complaint are not public works projects subject to prevailing wage, but rather private projects entered into between private parties not involving any public entity or funding. [Exhibits A-G, Declarations of Richard Dennis, John O’Neal, Dora Leong Gallo, Arthur Otero, Paul Lasiter, and Jerry Givens (Separate Statement of Undisputed Facts Nos. 5-9)].

It is further undisputed that Plaintiffs are claiming damages for hours performed off-site during pre-fabrication at Van Elk’s warehouse, in addition to hours performed on-site. [Deposition of Jose Reyes, page 57, lines 16-24; Deposition of Francisco Reyes, page 31, lines 19-24; Deposition of Jose Perez, pages 30, lines 16-25; page 31, lines 1-25, page 32 line 1; Deposition of Carlos Flores, page 45, lines 19-25, page 46, lines 1-25 (Separate Statement of Undisputed Facts Nos. 10-13)].

Each argument below more fully explains the pertinent facts relevant to the relief requested by Defendant Van Elk. After consideration of the following arguments, Defendant Van Elk respectfully requests this Court grants its Motion for Summary Judgment, or in the alternative, Summary Adjudication.

III. STATEMENT OF LAW

     The general statutory authority for summary judgment is found in Code of Civil Procedure (hereinafter “CCP”) section 437c(a) which states in pertinent part the following:

“Any party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.”

CCP Section 437c(c) states the criteria for granting the summary judgment as follows:

“The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers…..”

     As alluded to in the above-cited code section, the burden of persuasion on a Motion for Summary Judgment is bourne on the moving party, who must make a prima facie showing that there is no triable issue of material fact and that it is entitled to judgment as a matter of law. Aguilar v. Atlantic Richfield Co. (2001) 25 C4th 826, 850. Once this burden has been met by the moving party, the burden of persuasion then shifts to the opposing party, who must demonstrate that there exist one or more triable issues of material fact to survive Summary Judgment. Id. at 850.

In the alternative to the Summary Judgment Motion, Defendant Van Elk moves for Summary Adjudication on Plaintiffs’ claims for damages which have no merit and for which Van Elk has a complete defense C.C.P. §437c(f)(1) and (p) (2). The court may summarily dispose claims for damages in Plaintiffs’ Complaint which have no merit. Id. For purposes of Summary Adjudication, separate wrongful acts give rise to separate causes of action; Weil & Brown, CAL. PRAC. GUID: CIV. PRO. BEFORE TIRAL (The Rutter Group 2004) 10:39.2, whether they are pleaded in the same or single counts is not determinative. Id; Lilienthal & Fowler v. Sup. Ct. (Karr) (1993) 123 CA4th 1848, 1854; CCP Section 437c(p)(2). Therefore, under this law, Van Elk is entitled to a review and adjudication of Plaintiffs’ claims for damages which as a matter of law, have no merit and cannot form a basis for recovery, i.e., damages sought on five projects listed in Plaintiffs’ Complaint which are not prevailing wage projects, and damages sought for off-site hours performed which do not entitle Plaintiffs to prevailing wages under law.

Van Elk will demonstrate in this memorandum, that there are no triable issues of material fact and as a matter of law, this Court should grant its Motion for Summary Judgment since Plaintiffs have no standing to bring forward their claims, or in the alternative, grant its Motion for Summary Adjudication and (1) eliminate five of the eight Projects listed in Plaintiffs’ Complaint since those projects were private not public, and therefore do not entitle Plaintiffs to prevailing wage, and (2) limit the damages sought for hours worked to on-site hours only, and eliminate all damages sought for off-site hours performed which are not recoverable as a matter of law.

  1. PLAINTIFFS LACK STANDING TO BRING FORTH THEIR COMPLAINT FOR DAMAGES AS A RESULT OF THEIR UNDOCUMENTED WORKER STATUS, THUS SUMMARY JUDGMENT SHOULD BE GRANTED

Plaintiffs seek damages for unpaid wages from Defendant Van Elk, however recent case law from the Supreme Court finds such a recovery for Plaintiffs violates critical federal immigration policy and warrants dismissal of such claims based on claimants’ undocumented status. It is undisputed that all four Plaintiffs are undocumented workers, and thus, as a matter of law, their claims should be dismissed by way of Summary Judgment. [Deposition of Jose Reyes, page 21, lines 16-25; Deposition of Jose Reyes, page 74, lines 23-24; Jose Reyes’ Response to Request for Admission of Defendant Van Elk, LTD, Set One No. 13 (“Exhibit H”); Deposition of Francisco Reyes, page 58, lines 3-15; Deposition of Francisco Reyes, page 57, lines 4-16; Francisco Reyes’ Response to Request for Admission of Defendant Van Elk, LTD, Set One No. 13 (“Exhibit I”); Deposition of Jose Perez, page 9, lines 15-18; Deposition of Jose Perez, pages 93, 94, lines 24-25, line 1; Deposition of Jose Perez, page 28, lines 5-6; Jose Perez’s Response to Request for Admission of Defendant Van Elk, LTD, Set One No. 13 (“Exhibit J”); Deposition of Carlos Flores, page 61-62, lines 22-25, line 1; Deposition of Carlos Flores page 62, lines 5-14; Carlos Flores’ Response to Request for Admission of Defendant Van Elk, LTD, Set One No. 13 (“Exhibit K”) (Separate Statement of Undisputed Facts Nos. 1-4)].

Chief Justice Rehnquist, writing for the Supreme Court, recently held that “allowing the Board [National Labor Relations Board] to award backpay to illegal aliens would unduly trench upon explicit statutory prohibitions critical to federal immigration policy, as expressed in ICRA [Immigration Reform and Control Act],” “encourage the successful evasion of apprehension by immigration authorities,” “condone prior violations of the immigration laws,” and “encourage future violations” Hoffman Plastic Compounds, Inc. v. Supreme Court of the United States (2002) 535 U.S. 137, 151.

Post-Hoffman cases over the past 12 months have followed the reasoning in the Supreme Court’s ruling and have amplified its holding by finding undocumented workers are not entitled to injured worker’s back pay nor lost wages, due to their illegal immigration status. In Majilinger v. Cassino Contracting Corp., 1 Misc. 3d 659, 766 N.Y.S.2d 332 (Sup. Ct. Richmond Co. 2003) defendant’s motion for partial summary judgment dismissing plaintiff’s claims for lost earnings was granted and the court reasoned “although New York law has, in the past, permitted the recovery of lost wages for undocumented illegal aliens, the interpretation afforded to the Immigration Reform and Control Act (IRCA) by the United States Supreme Court in Hoffman would appear to require this court to conclude that plaintiff should not be permitted to recover for lost wages given his inability to prove he is legally authorized to work in this country.” That same court concluded as follows: “Manifestly, it is not within the power or competence of this court to encroach, even by indirection, upon the immigration policy of these United States. On constraint of Hoffman, it is therefore the determination of this court that plaintiff’s claim for lost wages must be dismissed.”

Likewise, in Veliz v. Rental Serv. Corp. USA, Inc., 2003 U.S. Dist. LEXIS 24924; 17 Fla. L. Weekly Fed. D 393, the court granted defendant’s summary judgment motion regarding lost wages holding, “[F]ollowing Hoffman, this Court finds that it cannot condone an award of lost wages here. In addition to trenching upon the immigration policy of the United States and condoning prior violations of immigration laws, awarding lost wages would be tantamount to violating the IRCA [Immigration Reform and Control Act].”

     It is undisputed that all four Plaintiffs are undocumented workers, as evidenced in their respective deposition testimony and Response to Request for Admissions [See Declarations cited above and Separate Statement of Undisputed Facts Nos. 1-4]. All Plaintiffs testified that they were born outside the United States and they also testified that they did not have a social security number. Id. Upon Defense counsel’s further inquiry into their respective legal status, Plaintiffs’ counsel objected and instructed their clients not to respond. Id. In order for Plaintiffs to survive Summary Judgment, they must set forth evidence to the contrary – that establishes Plaintiffs are indeed legally documented workers and thus have the appropriate standing to bring forward these claims. Since Defendant Van Elk is not aware of any evidence which exists to prove Plaintiffs’ legal status, it remains undisputed that all four Plaintiffs are undocumented workers and thus not entitled to the damages claimed pursuant to recent Supreme Court case law.

Based on the foregoing, Defendant Van Elk respectfully requests this Court find in its favor, as a matter of law, and grant Summary Judgment.

  1. ASSUMING ARGUENDO THAT PLAINTIFFS HAVE STANDING, THEIR CLAIMS FOR DAMAGES SHOULD BE DENIED AS TO FIVE OF THE EIGHT PROJECTS LISTED IN THEIR COMPLAINT AS A MATTER OF LAW, THUS, SUMMARY ADJUDICATION SHOULD BE GRANTED

     Plaintiffs’ underlying claim for damages is based on the presumption that the projects listed in their Complaint are “prevailing wage” projects entitling them to an amount certain of compensation under the California Labor Code (“Labor Code”).  Defendant Van Elk in this memorandum will present undisputed evidence which demonstrates that five of the eight projects listed in Plaintiffs’ Complaint are not prevailing wage projects as a matter of law, and thus do not entitle Plaintiffs to the damages sought in their Complaint.

Based on the foregoing, Defendant Van Elk respectfully requests this Court adjudicate five of the eight damage claims made by Plaintiffs in their Complaint as a matter of law, thereby excluding from Plaintiffs’ claim any damages related to the following five projects: (1) 420 South Tecan Street, Boyle Heights; (2) 2037 North Lincoln Park Avenue, Lincoln Heights; (3) 9229 Sepulveda Blvd. North Hills; (4) University Housing 31232 Broad Beach Road, Malibu; (5) Marvin Engineering Company 250 Beach Avenue, Inglewood.

  1. PREVAILING WAGE LAW

In order to adjudicate the projects listed in Plaintiffs’ Complaint, which as a matter of law are not prevailing wage projects entitling Plaintiffs to damages, it is important to review the law which defines “prevailing wage” projects.

Under Labor code §1771, prevailing wages are to be paid to all workers employed on public works projects over $1,000.00. “Public works” projects are defined under Labor code §1720 as projects “paid for in whole or in part out of public funds”. Subdivision (b)(1)-(6) of that section defines “public funds” as follows:

(1)  The payment of money or the equivalent of money by the state or political subdivision directly to or on behalf of the public works contractor, subcontractor, or developer.

(2)  Performance of construction work by the state or political subdivision in execution of the project.

(3)  Transfer by the state or political subdivision of an asset of value for less than fair market price.

(4) Fees, costs, rents, insurance or bond premiums, loans, interest rates, or other obligations that would normally be required in the execution of the contract, that are paid, reduced, charged at less than fair market value, waived, or forgiven by the state or political subdivision.

(5)  Money loaned by the state or political subdivision that is to be repaid on a contingent basis.

(6) Credits that are applied by the state or political subdivision against repayment obligations to the state or political subdivision.

It is undisputed that five of the projects listed in Plaintiffs’ Complaint, namely (1) 420 South Tecan Street, Boyle Heights; (2) 2037 North Lincoln Park Avenue, Lincoln Heights; (3) 9229 Sepulveda Blvd. North Hills; (4) University Housing 31232 Broad Beach Road, Malibu; (5) Marvin Engineering Company 250 Beach Avenue, Inglewood, are not prevailing wage projects since they were not “public works” jobs and not “paid for in whole or in part out of public funds.” (Separate Statement of Undisputed Facts Nos. 5-9)  The following sets forth the undisputed facts for each of the five projects which evidences the fact that they are not public works projects entitling Plaintiffs to damages.

  1. 420 SOUTH TECAN STREET, BOYLE HEIGHTS IS NOT A PREVAILING WAGE PROJECT AND SHOULD THUS BE ADJUDICATED FROM PLAINTIFFS’ CLAIM FOR DAMAGES

     Attached hereto as Exhibit “A” is a true and correct copy of the contract entered into between Defendant Van Elk and Carick Management for the installation of a perimeter fence at the property located at 420 Tecan Street, Boyle Heights, California (hereinafter “Project”). [“Exhibit A”; Declaration of Richard Dennis, page 2, paragraph 4].  Richard Dennis, President of Carick Management testifies that the Project was a private project and not a “public works” project for purposes of prevailing wage. [Declaration of Richard Denis, page 2, paragraph 5].

As additional support that the work performed at the Project was not classified as a “public works” project, attached hereto as “Exhibit F” is a letter from James Bloor, Supervisor to the Compliance Unit for the Los Angeles Housing Department stating that the Project at 420 Tecan Street, Boyle Heights, California, was not monitored by the Los Angeles Housing Department for compliance with the State’s Prevailing Wage requirements.

Based on the foregoing, it is undisputed that the 420 Tecan Street, Boyle Heights, Project is not a prevailing wage project as defined under code, and thus, as a matter of law, Summary Adjudication should be granted and Plaintiffs’ claim for damages arising from said Project should be adjudicated from their Complaint.

  1. 2037 NORTH LINCOLN PARK AVENUE, LINCOLN HEIGHTS IS NOT A PREVAILING WAGE PROJECT, THUS IT SHOULD BE EXCLUDED FROM PLAINTIFFS’ CLAIM FOR DAMAGES

     Attached hereto as Exhibit “B” is a true and correct copy of the subcontract entered into between Defendant Van Elk and Defendant Fassberg Construction Company for the project commonly known as “Amistad Apartments” located at 2037 North Lincoln Park Avenue (hereinafter “Project”). [“Exhibit B”; Declaration of John O’Neal, page 2, paragraph 4]. In the subcontract between the parties attached hereto as “Exhibit B”, attachment “Rider B” to the subcontract specifically categorizes and identifies this Project as a “Non-Prevailing Wage Project”. [“Exhibit B” attachment “Rider B”; Declaration of John O’Neal, page 2, paragraph 6].

The owner identified on the face-page of the subcontract is “Amistad Apartments, L.P.” an active limited liability company licensed by the State of California. [Declaration of Dora Leong Gallo, CEO of Amistad Apartments, L.P., page 1, paragraph 2]. The owner did not receive any public funds for the project as defined under Labor code §1720 and testifies that prevailing wages were not included in the administration and management of the Project. [Declaration of Dora Leong Gallo, page 2, paragraphs 5].

As additional support that the Project was not prevailing wage, attached hereto as “Exhibit F” is a letter from James Bloor, Supervisor to the Compliance Unit for the Los Angeles Housing Department stating that the 2037 North Lincoln Park Avenue, Lincoln Heights, was not monitored by the Los Angeles Housing Department for compliance with the State’s Prevailing Wage requirements.

Based on the foregoing, it is undisputed that the 2037 North Lincoln Park Avenue, Lincoln Heights project is not a prevailing wage project as defined under code, and thus, as a matter of law, Summary Adjudication should be granted and Plaintiffs’ claim for damages arising from said Project should be adjudicated from their Complaint.

  1. 9229 SEPULVEDA BLVD. NORTH HILLS IS NOT A PREVAILING WAGE PROJECT AND SHOULD THUS BE ADJUDICATED FROM PLAINTIFFS’ CLAIM FOR DAMAGES

     Attached hereto as Exhibit “C” is a true and correct copy of the Subcontract entered into between Defendant Van Elk and American Housing Contractors, Inc. for the project commonly known as Apple Tree Village located at 9229 Sepulveda Blvd., North Hills. [“Exhibit C”; Declaration of Arthur Otero, page 2, paragraph 4]. As evidenced from the attached contract, no public entity was a party to the contract, and it was instead entered into between two private parties for the benefit of private property.

The attached Declaration of Arthur Otero, President of American Housing Contractors, Inc. (“American Housing”) testifies that American Housing was the owner/builder for the Project and that the Project was private and not a “public works project”. [Declaration of Arthur Otero, page 2, paragraph 5]. Moreover, Mr. Otero testifies that no part of the Project was paid for in whole or in part out of public funds as defined under California Labor Code §1720(b)(1)-(6).  [Declaration of Arthur Otero, page 2, paragraph 6(a)-(g)].

As additional support, attached hereto as “Exhibit F” is a letter from James Bloor, Supervisor to the Compliance Unit for the Los Angeles Housing Department stating that the project located at 9229 Sepulveda Blvd., North Hills was not monitored by the Los Angeles Housing Department for compliance with the State’s Prevailing Wage requirements.

Based on the foregoing, it is undisputed that the 9229 Sepulveda Blvd., North Hills project is not a prevailing wage project as defined under code, and thus, as a matter of law, Summary Adjudication should be granted and Plaintiffs’ claim for damages arising from said Project should be adjudicated from their complaint.

  1. UNIVERSITY HOUSING 31232 BROAD BEACH ROAD, MALIBU IS NOT A PREVAILING WAGE PROJECT AND SHOULD THUS BE ADJUDICATED FROM PLAINTIFFS’ CLAIM FOR DAMAGES

     Attached hereto as Exhibit “D” is a true and correct copy of the Subcontract entered into between general contractor Holst Brother, Inc. and Defendant Van Elk for the project commonly known as Pepperdine University, Broad Beach Cottage located on Broad Beach, Malibu, California. [“Exhibit D”].

The Subcontract states the owner of the Project is Pepperdine University. The attached Declaration of Paul Lasiter, Associate Vice President Controller of Pepperdine University testifies that the University is a California non-profit public benefit corporation and sole owner of the property located at 31232 and 31236 Broad Beach, Malibu, California. [Declaration of Paul Lasiter, page 1, paragraphs 1 and 2]. Moreover, the Declaration of Paul Lasiter testifies that the construction of the project was paid for by private University funds.  [Declaration of Paul Lasiter, page 2, paragraph 5].

As additional support, attached hereto as “Exhibit F” is a letter from James Bloor, Supervisor to the Compliance Unit for the Los Angeles Housing Department stating that the Pepperdine University, Broad Beach Cottage was not monitored by the Los Angeles Housing Department for compliance with the State’s Prevailing Wage requirements.

Based on the foregoing, it is undisputed that the Pepperdine University, Broad Beach Cottage Project is not a prevailing wage project as defined under code, and thus, as a matter of law, Summary Adjudication should be granted and Plaintiffs’ claim for damages arising from said Project should be adjudicated from their Complaint.

  1. MARVIN ENGINEERING COMPANY 250 BEACH AVENUE, INGLEWOOD IS NOT A PREVAILING WAGE PROJECT AND SHOULD THUS BE ADJUDICATED FROM PLAINTIFFS’ CLAIM FOR DAMAGES

Attached hereto as Exhibit “E” is a true and correct copy of the Subcontract entered into between Defendant Van Elk and general contractor Pacifica Sunrise Construction Co., Inc. (“Pacifica”)for the project commonly known as 261 West Beach Ave., Inglewood. [“Exhibit E”].

The private owners on the Project as identified on the face-page of the Subcontract are “Marvin Gussman, Madeline Gussman, and Gerald M. Friedman” dba Marvin Engineering Company, Inc. (“Marvin Engineering”). As evidenced from the attached contract, no public entity was a party to the contract, and it was instead entered into between two private parties for the benefit of private property.

As additional support evidencing this project was not prevailing wage, attached hereto is the Declaration of Jerry Givens, Assistant City Administrative Officer/Public Works for the City of Inglewood testifying that the subject Project, located at 261 West Beach Avenue in Inglewood is a private project in the City of Inglewood and not regulated under compliance requirements for public works projects.   [Declaration of Jerry Givens, page 2, paragraphs 5 and 6]. Moreover, Mr. Givens testifies that the project is not monitored nor regulated for prevailing wage. [Declaration of Jerry Givens, page 2, paragraph 5].

Based on the foregoing, it is undisputed that the 261 West Beach Avenue, Inglewood project is not a prevailing wage project as defined under code, and thus, as a matter of law, Summary Adjudication should be granted and Plaintiffs’ claim for damages arising from said Project should be adjudicated from their Complaint.

  1. ASSUMING ARGUENDO THAT PLAINTIFFS HAVE STANDING, ALL CLAIMS FOR DAMAGES FOR PREVAILING WAGE SHOULD BE LIMITED TO THOSE HOURS OF WORK PERFORMED “ON-SITE” AND NO “OFF-SITE” OR “FABRICATION” HOURS SHOULD BE INCLUDED IN THEIR CLAIM AS A MATTER OF LAW, THUS, SUMMARY ADJUDICATION SHOULD BE GRANTED

Plaintiffs allege in their Complaint that they were not paid prevailing wages for hours worked while employed by Defendant Van Elk.  It is undisputed that Plaintiffs’ damage claim for prevailing wages includes hours worked on specific construction projects (“on-site”) in addition to hours performed in Van Elk’s warehouse (“off-site”) for fabrication. [Deposition of Jose Reyes, page 57, lines 16-24; Deposition of Francisco Reyes, page 31, lines 19-24; Deposition of Jose Perez, pages 30, lines 16-25; page 31, lines 1-25, page 32 line 1; Deposition of Carlos Flores, page 45, lines 19-25, page 46, lines 1-25 (Separate Statement of Undisputed Facts Nos. 10-13)]. The issue as to whether Plaintiffs are entitled to prevailing wages for hours worked “off-site” is a question of law, not fact. As demonstrated below, the law does not provide for prevailing wages for hours performed “off-site” and thus, this Court should grant Summary Adjudication in regard to Plaintiffs’ damage claim for “off-site” prevailing wage hours.

The prevailing wage law under which Plaintiffs base their claim  is found in Labor Code §§§ 1771, 1772, and 1774. The body of law explaining, implementing and defining prevailing wages under the Labor Code comes from the California Department of Industrial Relations.  On May 3, 2004, the new Director for the California Department of Industrial Relations published a landmark decision entitled “Important Notice,” attached hereto as “Exhibit G” which reverses a Department finding that prevailing wages covers hours performed for “off-site fabrication” of sheet metal work on a public works project. Sheet metal work, much like the welding work performed by Plaintiffs in the case at bar, involves major “off-site” pre-fabrication work prior to physical installation “on-site”. This most recent decision rejects the public works coverage determination concerning public works coverage for off-site fabrication and it upholds prior case law defining the parameters of prevailing wages Imperial Prison II, South, PW 92-036 (April 5, 1994); San Diego City Schools/Construction of Portable Classrooms, PW 1999-032 (Une 23, 2002).

In O.G. Sansone v. California Department of Transortation (1976) 55 Cal.App.3d 434, 127 (“Sansone”) the leading California case addressing prevailing wage obligations, (regarding material suppliers, the principles of which have been applied to countless other trades), the Court set forth three principle criteria for determining whether prevailing wages are owed: (1) a material supplier must be in the business of selling supplies to the general public; (2) the plant from which the material is obtained must not be established specifically for the particular contract; and (3) the plant may not be located at the site of the work. Id. at 444. If these criteria are met, prevailing wages are not owed for “off-site” work.

In this case, it is undisputed that Plaintiffs performed “off-site” fabrication work for the subject projects listed in Plaintiffs’ Complaint at Van Elk’s warehouse (“plant”). [See Declarations cited above and Separate Statement of Undisputed Fact Nos. 10-13]. It is also undisputed that Van Elk has maintained the warehouse for a period of five years and that the warehouse does not exist for the purpose or benefit of any particular project, rather it serves the many needs of the corporation and is used for multiple purposes. [Declaration of Emil Vassilev, page 2, paragraphs 4 and 5]. Therefore, under Sansone, the Plaintiffs employed by Van Elk who performed “off-site” fabrication work at Van Elk’s warehouse are not entitled to recover prevailing wages for work performed “off-site” since Van Elk’s warehouse was not established specifically for any particular public works project and the warehouse was not located at or adjacent to any of the project sites named in Plaintiffs’ Complaint. The purpose and reasoning behind the logic of Sansone seems to be that when work is technically performed “off-site” at a location which exists purely for the purpose and benefit of a particular project and is located on or in close proximity to that site, it essentially can be considered to be an “arm” of the site, therefore entitling workers to prevailing wages since in essence the “off-site” functions as an extension of the physical site. Under this analysis of Sansone, it would seem quite fair for workers to recover prevailing wages for work which essentially is being performed at a location which is an extension of the site and which exists exclusively for the site. However, under this case, since all the “off-site” work performed on the subject projects was performed at Van Elk’s warehouse, which did not exist for any particular project and which in fact has been maintained by Van Elk for years and serves many corporate purposes, these Plaintiffs are not entitled to prevailing wage for the hours they worked at the warehouse “off-site”.

Based on the foregoing law and its application to this case, Defendant Van Elk respectfully requests this Court adjudicate Plaintiffs’ prevailing wage claims and limit its damages to only those hours performed “on-site” and exclude from Plaintiffs’ damage claims any and all hours performed “off-site.”

VII. CONCLUSION

     Based on the foregoing, Defendant Van Elk, LTD. respectfully requests this Court grant its Summary Judgment Motion, or in the alternative, grant Summary Adjudication for the reasons stated above.

[1]Jose Reyes and Francisco Reyes do not allege damages on the last project, Las Positas Elementary School Project.