Lloyd E. AUBRY, Jr., as Labor Commissioner, etc., Cross–Complainant and Appellant, v. TRI–CITY HOSPITAL DISTRICT, etc., Cross–Defendant and Respondent.
The trial court sustained without leave to amend the demurrer of Tri–City Hospital District (District) to the “SECOND AMENDED CROSS–COMPLAINT FOR DAMAGES (815.6 Government Code)” of Lloyd W. Aubry, Jr., Chief of the Division of Labor Standards Enforcement, State Department of Industrial Relations, (DLSE) seeking payment from District of amounts pursuant to Labor Code 1 provisions which we refer to as the prevailing wage law. (§ 1720, et seq.) DLSE appeals after the trial court dismissed its second amended cross-complaint and entered judgment for District.
Concluding that DLSE has no cause of action against District under Government Code section 815.6 and the prevailing wage law and that, even assuming DLSE had such a cause of action, the second amended cross-complaint is time barred, we affirm.
This case involves the same lawsuit arising from the same hospital building transaction, sometimes called the expansion project, that is pending before the California Supreme Court in Lusardi Construction Co. v. Aubry (S011121, review granted September 27, 1989, formerly reported at 211 Cal.App.3d 265, 259 Cal.Rptr. 250).
Seeking to acquire a new, multi-story hospital facility costing some $20 million, in June 1983 the District entered an agreement with Imperial Municipal Services, Inc. (Imperial) under which Imperial agreed to construct a 108,000 square foot addition and then sell it to the District. The District–Imperial contract provided, in part, that District, “as agent, shall cause contractors under such contracts to comply with workers' compensation insurance laws, to pay prevailing wages in accordance with Article 2 (commencing with Section 1770) of Chapter 1, Part 7, Division 2 of the California Labor Code [the prevailing wage law]․” 2 Imperial in turn entered a contract with Lusardi Construction Company (Lusardi) which agreed to construct the expansion project under circumstances in which Lusardi was told by the District negotiators and Board of Directors the expansion project was not a “public works” subject to the prevailing wage law. (§ 1720, subd. (a), defining “public works,” in part, as “[c]onstruction, alteration, demolition or repair work done under contract and paid for in whole or in part out of public funds․”) Among other things, Lusardi was told by agents of the District that the expansion project was not public works, but instead was a “private” work, that the prevailing wage and payroll record requirements for public works projects would be inapplicable, and that it should figure construction costs upon the assumption that the project would not be subject to sections 1720 through 1815 [the prevailing wage law]. The Imperial–Lusardi contract contained no reference to the status of the project as “public works” and no indication the project would be governed by the prevailing wage law.
In July 1983, Lusardi commenced construction pursuant to its contract with Imperial, relying on the statements of District agents that the project was private and estimating costs on that basis. Lusardi did not comply with the prevailing wage law by paying prevailing rates for wages, maintaining certified payroll records and hiring apprentices. The District never gave Lusardi notice the project is public works and instead continued to contend the work is private.
In January 1986, after significant portions of the project were completed and accepted by the District, DLSE gave District its first notice it considered the project “ ‘public’ work.” Later notices to District and Lusardi, beginning in May 1986 and concluding with a “final determination” in August 1986, indicated DLSE intended to impose sanctions and penalties against Lusardi.
In this context, on November 14, 1986, Lusardi filed the underlying action for declaratory and injunctive relief against DLSE. The trial court entered judgment for Lusardi, granting declaratory relief reaching the conclusion that enforcement of the public works-prevailing wages requirements on Lusardi under these circumstances would constitute a violation of due process, and issuing a permanent injunction against enforcement. This is the judgment pending review in the Supreme Court.
On May 4, 1987, DLSE filed its original cross-complaint in the underlying action. A first amended cross-complaint was filed, and on November 16, 1987, the trial court sustained a demurrer to it, with leave to amend, on the ground there is no basis for relief against the District inasmuch as the Labor Code does not authorize an action for damages or penalties against an alleged public awarding body. The leave to amend was stated to be for the purpose of allowing DLSE an opportunity to attempt to state a cause of action pursuant to section 815.6 of the Government Code. On December 14, 1987, the trial court entered its judgment for Lusardi and against DLSE in the underlying action for declaratory and injunctive relief. On January 11, 1988, DLSE filed the second amended cross-complaint, the dismissal of which is the subject of this appeal.
The second amended cross-complaint names the District and no others as cross-defendant. Among other things, it alleges that the events, circumstances and documents it alleges in earlier paragraphs “were part of an overall scheme by Cross–Defendant DISTRICT to circumvent the public works laws of California for the purpose of providing lower construction costs to DISTRICT ․ at all times IMPERIAL was a dummy corporation set up by DISTRICT and the alter ego of DISTRICT.” The second amended cross-complaint further alleges the expansion project is “public works” within the prevailing wage law, citing sections 1720 and 1720.2,3 and that sections 1771 and 1774 4 “obligated LUSARDI and its sub-contractors to pay the prevailing wage rate” on the expansion project. Lusardi failed to do so and “there is now due, owing, and unpaid wages” and “penalties pursuant to Labor Code Sections 1775 and 1776 in an amount not yet ascertainable.”
With respect to the District, the second amended cross-complaint alleges:
“14. Cross–Defendant, as an awarding body, failed to comply with its mandatory duties under the provisions of Labor Code Sections 1733.2 [sic ] 5 and 1775 to specify in the specifications and contract with LUSARDI what the prevailing wages were for said project; to put in the contract with LUSARDI, a stipulation that the provisions of Section 1775 would be complied with or to put in said contract [a] stipulation to effectuate the provisions of Section 1776.”
The second amended cross-complaint alleges it was not until after February 28, 1986, that DLSE ascertained District had failed to comply with its mandatory duties as set forth in paragraph 14, quoted above, and it concludes with the allegations:
“16. That as a result of DISTRICT's failure to comply with its statutory duties as set forth in paragraph 14, LUSARDI has received a summary judgment against Cross–Complainant in this action whereby Cross–Complainant cannot proceed against LUSARDI for any wages or penalties.
“17. That as a direct result of DISTRICT's failure to exercise its mandatory duties as set forth herein, the workmen on said project and the State of California have been damaged in an amount to be ascertained.”
The prayer of the second amended cross-complaint is for damages to the State of California “for benefit of its workmen on the said project consisting of the difference between prevailing wages and the actual amounts paid said workmen,” and “consisting of penalties for the failure to pay prevailing wages and furnish certified payrolls.”
District's demurrer to the second amended cross-complaint set forth several grounds for sustaining it, including the ground that DLSE has no cause of action against the District under Government Code section 815.6 since District is immune from liability for an injury due to a misrepresentation of an employee (Gov.Code, § 818.8) and in any event Government Code section 815.6 is inapplicable because it creates a cause of action for negligence, not intentional conduct as alleged by DLSE, and the “injury” against which the section protects does not include an injury to the state.
District's demurrer also asserted the second amended cross-complaint is time-barred under section 1775 which provides, in part, that an action by DLSE to recover penalties and amounts due under the prevailing wage law “shall be commenced not later than 90 days after the filing of a valid notice of completion in the office of the county recorder ․ or not later than 90 days after acceptance of such public work, whichever last occurs.”
In its ruling on the demurrer, the trial court expressly held the second amended cross-complaint was time-barred by section 1775. In its order sustaining the demurrer, the court stated, in part:
“2. The original Cross–Complaint was filed on May 4, 1987. Since that date is well beyond 90 days after (i) January 11, 1985 (Notice of Completion on Dialysis Building), (ii) August 15, 1986 (Notice of Completion on Two–Story Ancillary Wing), or (iii) August 11, 1986 (Acceptance of Work on Basement and Four–Story Tower Building), the Cross–Complaint is barred by the explicit and mandatory time limitation provisions of Labor Code § 1775.
“3. Section 1775 is a strict, mandatory statute of limitations provision.
“4. Accordingly, since the Cross–Complainant failed to file its cross-complaint within the time frame required by the Labor Code, it is subject to demurrer without leave to amend as to the above completed ‘parts' of the Tri–City Hospital District Expansion Project.”
The trial court's order sustaining the demurrer also states, “[f]or the reasons set forth in Cross–Defendant's points and authorities, the Demurrer to the Second Amended Cross–Complaint is sustained without leave to amend.”
Government Code section 815.6 provides:
“Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.”
We assume for purposes of this case we are dealing with a “public works,” as DLSE alleges. An important fundamental point to be kept in mind in this case is that the remedies and statutory basis for DLSE's asserting them are found in the prevailing wage law, and yet the second amended cross-complaint purports to state its cause of action under Government Code section 815.6, relating to recovery from a public entity for an injury proximately caused by the public entity's failure to discharge a mandatory duty. We believe the Government Code section does not furnish a ground for DLSE to recover the prevailing wage law differential and penalties.6 The body of law constituting the prevailing wage law is the basis of the recovery sought by DLSE. However, it has been long since determined in the order sustaining the demurrer to the first amended cross-complaint that there existed no cause of action against the District within the prevailing wage law. It follows that DLSE has not stated a cause of action in the second amended cross-complaint against the District under Government Code section 815.6.
It is to be noted that sections 1771 and 1774, which DLSE mentions early in its second amended cross-complaint, impose a duty on the contractor, Lusardi, as is alleged. Those sections do not apply to an entity such as the District which does not pay the workers employed on the public works.
Likewise, sections 1775 and 1776 impose no duties on the public entity under the circumstances alleged in this case. The force and thrust of those sections is to impose duties on the contractor, not the body awarding the contract. The only possible exception to this general statement is to be found in subdivision (g) of section 1776, which requires the body awarding the contract to cause to be inserted in the contract stipulations to effectuate that section, which “stipulations shall fix the responsibility for compliance with this section on the prime contractor.” The last quoted phrase establishes the ultimate responsibility is the contractor's. In any event, since here Imperial and not the District awarded the contract to Lusardi, the prime contractor, it is clear that subdivision (g) of section 1776 furnishes no basis for concluding a mandatory duty rested with the District.7
For the same reason, i.e., the District did not award the contract to Lusardi, there is no mandatory duty imposed on the District by section 1773.2, which applies only to the “body awarding any contract for public work, or otherwise undertaking any public work․”
In connection with this analysis we are aware the second amended cross-complaint contains allegations that “IMPERIAL was a dummy corporation set up by DISTRICT and the alter ego of DISTRICT,” and “Cross–Defendant, as an awarding body, failed to comply with its mandatory duties․” Under established rules of pleading, including rules related to the truthful pleading requirement, we do not apply the general rule that assumes the truth of all well-pleaded allegations. Rather, based largely on facts and materials to which Aubry stipulated in the aspect of this case dealing with Lusardi's complaint against Aubry, we disregard these conclusionary allegations. (See 4 Witkin, Cal.Procedure (3d ed. 1985) Pleading, § 385, p. 433, “recitals [in an instrument], if contrary to allegations in the pleading, will be given precedence, and the pleader's inconsistent allegations as to the meaning and effect of an unambiguous document will be disregarded.”) The court may read a pleading as if it included matters judicially noticed (Code Civ.Proc., § 430.30, subd. (a), authorizing a demurrer on a ground appearing on the face of the pleading “or from any matter of which the court is required to or may take judicial notice”), and as if it included matters not directly alleged but found in recitals in an attached exhibit. (5 Witkin, Cal.Procedure (3d ed. 1985) Pleading, § 896, p. 337.)
Here, the demurrer was based in part on “the files and records of this action,” which includes the stipulation to which Aubry is a party. The basis for disregarding Aubry's allegation that District is the “awarding body” is found in the following passages of the stipulation:
“2. ․ The District is an independent political subdivision of the State of California within the meaning of § 1721 of the California Labor Code.
“3. In or about June 1983, the District entered into an Installment Sales Agreement with Imperial Municipal Services Group, Inc. (‘Imperial’), a California corporation duly organized and existing under the laws of the State of California. A copy of the Installment Sales Agreement is attached hereto as Exhibit ‘A’.
“4. On or about June 30, 1983, Imperial executed a written construction contract (‘Construction Contract’) with Lusardi under which Lusardi agreed to act as general contractor for an Expansion Project for the District. A true and correct copy of the Construction Contract is attached hereto as Exhibit ‘B’.”
Exhibit “A,” the installment sale agreement, bears the acknowledged signatures of Roy E. Nelson, Vice President of Imperial, and A. Hal Thatcher, M.D., President, and Guy N. Cantrell, Assistant Secretary, of District.
Exhibit “B,” the construction contract, bears the signatures of Nelson, for Imperial, and Bruce G. Keeton, Vice President of Lusardi. The construction contract is not signed by representatives of the District.
The stipulation recites that in July 1983 Lusardi began work on the expansion project, the subject of the construction contract between Imperial and Lusardi. Further, the stipulation states that Lusardi completed work on the free-standing, eight station chronic dialysis portion on or about August 30, 1984, the ancillary wing containing a pharmacy, medical records department, nuclear medicine, pulmonary medicine and speech therapy facilities on or about February 26, 1986, and the multi-story tower containing 28 semi-private and 8 private patient rooms and accommodations for various services on or about August 11, 1986.
From these stipulations it is quite clear, contrary to Aubry's allegation, District is not the awarding body. (§ 1722, “ ‘[a]warding body’ or ‘body awarding the contract’ means department, board, authority, officer or agent awarding a contract for public work.”) Imperial, not District, entered the construction contract with Lusardi and thus, Imperial was the entity which awarded the contract. Even the second amended cross-complaint may be read to concede this fact, as it pleads the contract with Lusardi was “presumably signed by Imperial.”
The allegations that Imperial was a “dummy corporation set up by DISTRICT and the alter ego of DISTRICT” must also be considered in light of the stipulation and attached documents, including the written contracts between District and Imperial and between Imperial and Lusardi, as well as the conceded completion of substantial portions of the expansion project pursuant to those contracts. Considered in this light, the allegations run counter to the stipulated facts and amount to no more than legal conclusions insufficient to invoke the pleading assumption of their truthfulness. (See Dos Pueblos Ranch & Imp. Co. v. Ellis (1937) 8 Cal.2d 617, 620–621, 67 P.2d 340; Meadows v. Emett & Chandler (1950) 99 Cal.App.2d 496, 498–499, 222 P.2d 145.) Thus, these allegations may be disregarded. (See 4 Witkin, Cal.Procedure (3d ed. 1985) Pleading, § 337, p. 389.)
Viewed in light of the foregoing, the second amended cross-complaint does not contain allegations showing the District is “a public entity [which] is under a mandatory duty imposed by an enactment that is designed to protect against the risk of [this] particular kind of injury.” (Gov.Code, § 815.6.) Thus, it does not state a cause of action under the Government Code provision.
An additional reason for concluding Government Code section 815.6 furnishes no basis for DLSE to state a cause of action against the District is that the section provides liability only for an “injury” of the kind against which the enactment is designed to protect. Government Code section 810.8 specifically defines “injury” as “death, injury to a person, damage to or loss of property, or any other injury that a person may suffer to his person, reputation, character, feelings or estate, of such nature that it would be actionable if inflicted by a private person.” (Italics added.) The definition of “person,” i.e., “any person, firm, association, organization, partnership, business trust, corporation, or company” (Gov.Code, § 17), literally does not include the state which is separately defined. (Gov.Code, § 18.) However, DLSE argues that it may be viewed as if it were the “person” because it is empowered to administer and enforce the prevailing wage law. (See § 90.5, subd. (b); the Labor Commission is authorized to “collect ․ on behalf of the worker without assignment of such wages or benefits to the commissioner” any wages or monetary benefits determined after investigation to be due and unpaid to any worker (§ 96.7, italics added), and to “prosecute” actions to collect wages, penalties and monetary benefits (§ 98.3).)
Under a theory that the DLSE is an assignee of the worker as a matter of law,8 we may concede the status of the DLSE as a “person” for purposes of the Government Code section 810.8 definition of “injury” and its repeated references to various forms of loss that a “person” may suffer. Nevertheless, we conclude DLSE's status as a “person” does not permit it to state a cause of action under Government Code section 815.6. We reach this conclusion because the type of recovery sought here, the prevailing wage differential, is not within the scope of the statutory definition of “injury” for which a cause of action is permitted.
The Law Revision Commission comment to Government Code section 810.8's definition of “injury” states, in part:
“The purpose of the definition is to make clear that public entities and public employees may be held liable only for injuries to the kind of interests that have been protected by the courts in actions between private persons.” (West's Annotated Gov.Code, following § 810.8, italics added.)
It is readily apparent that the kind of interest sought to be protected here, a right of a worker to be paid a prevailing wage while engaged in a public work, is not of the type protected in actions between private persons. The right here, like a right to overtime pay, is a right created by statute, not by an employment agreement. With respect to overtime pay, Aubry v. Goldhor (1988) 201 Cal.App.3d 399, 247 Cal.Rptr. 205, analyzed the right for purposes of determining the applicable statute of limitations, three years if founded on a liability created by statute (Code Civ.Proc., § 338, subd. (a)) or two years if founded on an oral contract (Code Civ.Proc., § 339). The overtime pay right was provided for in an order of the state's Industrial Welfare Commission promulgated under the authority of sections 1171 through 1204 and article XIV, section 1, of the California Constitution. Sections 201 through 203 also gave an employee a right to a “waiting time” penalty for a period of up to 30 days after employment terminated during which the former employer willfully failed to pay overtime compensation due a worker. Goldhor concludes that the right to overtime derives from an obligation created by statute,9 applying the following test:
“ ‘An obligation is created by statute if the liability would not exist but for the statute, and the obligation is created by law in the absence of an agreement. [Citations.] The action must be of a type which did not exist at common law.’ [Citations.]” (201 Cal.App.3d at p. 404, 247 Cal.Rptr. 205.)
It is manifest here that a right to be paid at prevailing wage rates, like the right to overtime pay, derives from statute, the prevailing wage law in section 1720 et seq. As such a statutorily derived right, the prevailing wage right does not represent the kind of interest protected at common law in actions between private persons. DLSE cites no example showing the prevailing wage law confers a right to an interest protected in actions between private persons, and we have found none. Not having the character of the kind of interest protected in actions between private persons, the prevailing wage law right does not fit within the definition of “injury” in Government Code section 810.8. This being the case, Government Code section 815.6 does not furnish a basis for DLSE to state a cause of action.
In this connection it must be observed again that the “duty” on which DLSE relies to assert liability under Government Code section 815.6 includes the duty of the “body awarding the contract” to “cause to be inserted in the contract stipulations to effectuate” section 1776 and section 1777.5. (§§ 1776, subd. (g), 1777.5, second to last paragraph.) These provisions go on to state the “stipulations shall fix the responsibility” of compliance with the respective sections on “the prime contractor.” It is apparent that these duties of including contract stipulations run from the awarding body to the prime contractor, and do not directly or by implication impose any duty on the awarding body to pay the prevailing wage to the workers. The latter duty which underlies the remedy sought here rests with the contractor.
Viewing these provisions in this light, it is proper to conclude that the matter of including contract stipulations, while imposing mandatory duties, does not impose on the awarding agency a “mandatory duty ․ designed to protect against the risk of a particular kind of injury,” as required to invoke Government Code section 815.6. This is so because, even assuming a deprivation of the prevailing wage is an “injury” under the section and District is the “awarding body,” protection against the risk of such a deprivation is directly and primarily furnished by the contractor's payment of the prevailing wage in the appropriate case and only indirectly and secondarily protected by including stipulations in the contract. In the context of a government tort liability system in which liability must be based on statute (Gov.Code, § 815 10), it is unlikely the Legislature intended to impose liability on a public entity for a duty so tentatively connected with the risk involved.
District's status is akin to that of the community college chancellor of the State of California in First Interstate Bank v. State of California (1987) 197 Cal.App.3d 627, 636–637, 243 Cal.Rptr. 8, where the duty involved under Education Code section 81836 was to determine if construction plans of a local community college district conformed to established standards. The Court of Appeal held that duty did not require the state chancellor “to determine whether the plans are cost-effective for their intended purpose, nor does it require him to oversee construction of a particular project or [to determine] that a district is meeting its contractual obligations in connection therewith.” (Id. at p. 636, 243 Cal.Rptr. 8.) Accordingly, the court held the statute is not intended to protect against a community college district's default on a financing agreement made in connection with a lease-purchase arrangement for which certificates of participation had been sold.
Similarly here, even if it were an “awarding body” and the risk of nonpayment of prevailing wages were an “injury,” District would be under no statutory duty to determine whether the contractor is meeting its obligations in connection with the prevailing wage law. The District's duty imposed by statute extends only to causing stipulations to be inserted in the contract to effectuate section 1776 and 1777.5, a notice-giving duty which does not give rise to a duty to ensure prevailing wages are paid by the contractor.
In short, we are convinced there is no basis for creating a prevailing wage law remedy under Government Code section 815.6 where none has previously existed. It is apparent the state does not suffer an “injury” as that term is used in Government Code section 815.6, and the state may not sue under that section.
Having reached the conclusion on these bases that Government Code section 815.6 does not afford a ground for DLSE to state a cause of action against the District, we need not address the additional theory of immunity for misrepresentation under Government Code section 818.8 11 urged by the District. (See, e.g., Harshbarger v. City of Colton (1988) 197 Cal.App.3d 1335, 1339–1344, 243 Cal.Rptr. 463.)
Since the trial court ruled on the basis that the 90–day limitations bar of section 1775 applies to preclude the action for recovery of the prevailing wage rate differential and penalties with respect to the dialysis building, the two-story ancillary wing and the basement and four-story tower building, we briefly address the limitations question. Assuming the prevailing wage law furnishes a basis for the action, it was appropriate for purposes of ruling on the demurrer for the court to take judicial notice of the official acts reflecting recorded notices of completion and an acceptance of work by the District. (Code Civ.Proc., § 430.30, subd. (a); Evid.Code, § 452, subd. (c); Dryden v. Tri–Valley Growers (1977) 65 Cal.App.3d 990, 997, 135 Cal.Rptr. 720.) Taking that judicial notice leads necessarily to the conclusion the May 4, 1987, cross-complaint first seeking recovery under the prevailing wage law came far beyond 90 days after the latest of the three events, the filing of a notice of completion for the two-story auxiliary wing on August 15, 1986. Accordingly, under the assumption of applicability of the prevailing wage law, the action as to those three facilities was barred. The trial court correctly so ruled.
1. All statutory references are to the Labor Code unless otherwise specified.
2. Section 303 of the District–Imperial contract sets forth obligations of the respective parties in connection with the expansion project, described as the “1983 Project” in the contract, as follows:“303. Construction and Equipping of 1983 Project. Seller [Imperial] agrees to acquire and construct the 1983 Project pursuant to the plans and specifications submitted to and approved by the Purchaser [District]. Seller hereby appoints and constitutes Purchaser as its agent and attorney-in-fact for all purposes respecting construction of the 1983 Project, including, without limitation, the engagement of contractors, managers, architects, engineers and others, the execution or approval of change orders under any construction contract, and the management and supervision of the construction of the 1983 Project. Seller shall enter into, or shall cause the Purchaser, as agent for Seller, to enter into one or more contracts (which shall provide that all payments shall be made from the appropriate subaccount of the Acquisition and Construction Account as provided in the Trust Agreement) providing for acquisition and construction of the 1983 Project. Purchaser, as agent, shall cause contractors under such contracts to comply with workers' compensation insurance laws, to pay prevailing wages in accordance with Article 2 (commencing with Section 1770) of Chapter 1, Part 7, Division 2 of the California Labor Code, to post faithful performance and labor and materials bonds in such amounts and containing such provisions as are required for works of the Purchaser of commensurate size and use as the 1983 Project, and shall supervise and provide for, or cause to be supervised and provided for, as agent for Seller, the complete acquisition and construction of the 1983 Project. Purchaser shall cause the work under said construction contracts to be performed diligently to the end and [sic ] that the 1983 Project will be substantially completed in accordance with said plans and specifications on or prior to May 1, 1986. Purchaser agrees that upon substantial completion of any portion of the 1983 Project it will take possession of that portion of the 1983 Project under the terms and provisions of this Agreement. No changes shall be made in such plans and specifications unless such changes are approved in writing by the Purchaser as agent of Seller.“Upon completion of construction of the 1983 Project satisfactory to the Seller and Purchaser, but in any event not later than thirty (30) days following completion of such construction, Seller and Purchaser shall deliver to the Trustee a certificate of completion executed by an Independent Architect․”
3. Section 1720 provides in part that “public works” means “[c]onstruction, alteration, demolition or repair work done under contract and paid for in whole or in part out of public funds․”Section 1720.2, relating to private contracts to construct property that is leased to the public entity after construction, has no bearing on the facts of this case.
4. Sections 1771 and 1774 provide:“1771. 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. [¶] This section is applicable only to work performed under contract, and is not applicable to work carried out by a public agency with its own forces. This section is applicable to contracts let for maintenance work.”“1774. The contractor to whom the contract is awarded, and any subcontractor under him, shall pay not less than the specified prevailing rates of wages to all workmen employed in the execution of the contract.”
5. There is no section 1733.2. In the context of the allegations made in the paragraph, we assume the section reference intended was to section 1773.2, which reads: “The body awarding any contract for public work, or otherwise undertaking any public work, shall specify in the call for bids for the contract, and in the bid specifications and in the contract itself, what the general rate of per diem wages is for each craft, classification or type of workman needed to execute the contract.“In lieu of specifying the rate of wages in the call for bids, and in the bid specifications and in the contract itself, the awarding body may, in such call for bids, bid specifications, and contract, include a statement that copies of the prevailing rate of per diem wages are on file at its principal office, which shall be made available to any interested party on request. The awarding body shall also cause a copy of the determination of the director of the prevailing rate of per diem wages to be posted at each job site.”
6. This ground for sustaining the demurrer to the second amended cross-complaint was urged by the District. Thus, aside from the trial court's having expressly sustained the demurrer for the reasons set forth in the District's points and authorities, which included this ground, there is no impediment to our sustaining the trial court's ruling on this ground. (Gonzales v. State of California (1977) 68 Cal.App.3d 621, 627, 137 Cal.Rptr. 681, “if any ground stated in a demurrer is sustainable, the trial court's action is proper.”)
7. The same analysis applies to similar provisions in section 1777.5, relating to the hiring of apprentices.
8. Although the above-cited sections 90.5, subdivision (b), 96.7 and 98.3 speak of different activities, e.g., “administer and enforce” versus “collect” and “collect” versus “prosecute,” they are interrelated in their force and thrust in that engaging in one of the described activities encompasses what is described in the other. Due to the interrelationship it would seem reasonable to view DLSE as an assignee of the workman as a matter of law in cases such as this where it is suing for the prevailing wage differential which is remittable to the worker if recovered. (§ 96.7, subd. (c), “[a]ll wages or benefits collected under this section shall be remitted to the worker․”; § 1775, “[t]he difference between such prevailing wage rates and the amount paid ․ shall be paid to each workman by the contractor․”)The theory DLSE is an assignee of the worker can have no application to the $25 per worker per day penalty DLSE also seeks under Government Code section 815.6 but in reliance on section 1775. The $25 per worker per day penalty is not a benefit for the worker, but rather is a “penalty to the state or political subdivision on whose behalf the contract is made or awarded․” (§ 1775; cf. International Brotherhood of Electrical Workers v. Board of Harbor Commissioners (1977) 68 Cal.App.3d 556, 563, 137 Cal.Rptr. 372.)
9. There is no sound basis for distinguishing Goldhor solely on the ground it was considering the proper statute of limitations.
FN10. Government Code section 815 provides: “Except as otherwise provided by statute: [¶] (a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person. [¶] (b) The liability of a public entity established by this part (commencing with Section 814) is subject to any immunity of the public entity provided by statute, including this part, and is subject to any defenses that would be available to the public entity if it were a private person.”. FN10. Government Code section 815 provides: “Except as otherwise provided by statute: [¶] (a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person. [¶] (b) The liability of a public entity established by this part (commencing with Section 814) is subject to any immunity of the public entity provided by statute, including this part, and is subject to any defenses that would be available to the public entity if it were a private person.”
11. Government Code section 818.8 reads: “A public entity is not liable for an injury caused by misrepresentation by an employee of the public entity, whether or not such misrepresentation be negligent or intentional.”
TODD, Acting Presiding Justice.
HUFFMAN and NARES, JJ., concur.