Silva v. Medic Ambulance Service, Inc. ( 2024 )

Filed 4/4/24
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
MEGHAN SILVA et al.,
Plaintiffs and Appellants, A167098
v. (Solano County
MEDIC AMBULANCE SERVICE, Super. Ct. No. FCS048440)
INC.,
Defendant and Respondent.
Plaintiff Meghan Silva filed a class action against defendant Medic
Ambulance Service, Inc. (Medic) alleging it had violated labor laws by
requiring that employees remain on call during their rest breaks. California
voters subsequently approved a proposition enacting the Emergency
Ambulance Employee Safety and Preparedness Act (EAESPA) (Lab. Code,
§ 880 et seq.).1 The EAESPA provides that emergency ambulance employees
“shall remain reachable” throughout their work shift and is explicit that this
provision is retroactive. (§§ 887, subd. (a), 889.) In Calleros v. Rural Metro of
San Diego, Inc. (2020) 58 Cal.App.5th 660 (Calleros), the Fourth District
* Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this
opinion is certified for publication with the exception of parts A.1 and B of the
Discussion.
1 Further undesignated statutory references are to the Labor Code.
1
rejected an argument that retroactive application of the EAESPA was
unconstitutional. (Id. at p. 668.)
When confronted with the EAESPA and Calleros, Silva’s counsel
indicated they would proceed and appeal to the First District for a decision
that disagreed with Calleros. Medic filed a motion for judgment on the
pleadings (MJOP) and a motion for sanctions. The trial court granted the
MJOP, and imposed a $2,000 sanction against Silva’s counsel. Silva and her
counsel now appeal, renewing their argument that Calleros was wrongly
decided and contending that the trial court abused its discretion in imposing
sanctions. We disagree and affirm.
I. BACKGROUND
A. Augustus Decision
In December 2016, the California Supreme Court issued its decision in
Augustus v. ABM Security Services, Inc. (2016) 2 Cal.5th 257 (Augustus). The
class action plaintiffs in that case worked as security guards for ABM
Security Services and were required to remain on call during rest periods.
(Id. at p. 261.) The trial court granted summary judgment for the plaintiffs,
but the appellate court reversed. (Ibid.) The California Supreme Court
granted review to answer two interrelated questions: (1) whether off-duty
rest periods are required under section 226.7 and Industrial Welfare
Commission (IWC) wage order No. 4-2001 (Cal. Code Regs., tit. 8, § 11040)
(Wage Order 4); and (2) whether employers may require employees to remain
on call during rest periods. (Augustus, at p. 260.)
Section 226.7 prohibits an employer from requiring an employee to
work during a “rest or recovery period” mandated pursuant to an IWC order.
(§ 226.7, subd. (b).) The IWC was delegated authority to promulgate orders
regulating wages, hours and working conditions for “various occupations,
2
trades, and industries in which employees are employed in this state.”
(§ 1173.) The IWC issued various industry-specific and occupation-specific
wage orders. (Augustus, supra, 2 Cal.5th at p. 263.) Occupational orders
only apply when a business is not covered by an industry order. Wage
Order 4 is an occupational order for persons employed in the “professional,
technical, clerical, mechanical, and similar occupations.” (Cal. Code Regs.,
tit. 8, § 11040.) It requires every employer to “authorize and permit all
employees to take rest periods.” (Id., subd. (12)(A).)
Interpreting Wage Order 4 in Augustus, the California Supreme Court
determined that the term “rest period” should be given its “most common
understanding” as a period of rest during which employees are relieved from
their work duties. (Augustus, supra, 2 Cal.5th at p. 264.) Requiring
employees to remain on call could not be reconciled with this reading. (Id. at
pp. 269–270.) The Court explained that its interpretation of Wage Order 4
was consistent with section 226.7’s prohibition on work during a rest period,
as well as opinion letters from the Division of Labor Standards Enforcement
(DLSE), the agency that enforces wage orders. (Augustus, at pp. 265, 267.)
Augustus thus concluded that Wage Order 4 and section 226.7 prohibit on-
duty rest periods. (Augustus, at p. 273.)
B. Silva’s Complaint
In February 2017, two months after the Augustus decision was issued,
Silva filed a class action against Medic on behalf of herself and other
emergency medical technicians, as well as paramedics, dispatchers, and
supply service technicians employed by Medic. Silva amended her complaint
shortly thereafter. The amended complaint alleged a cause of action for
failure to provide rest breaks in violation of section 226.7 and IWC orders,
specifically citing Augustus and Wage Order 4. It also asserted derivative
3
claims for failure to provide accurate itemized wage statements and waiting
time penalties, and violation of California’s Unfair Competition Law (Bus. &
Prof. Code, § 17200 et seq.) based on the alleged failure to provide rest
breaks.
C. Stewart I Decision
In December 2017, the Ninth Circuit certified questions to the
California Supreme Court regarding the applicability of meal and rest period
regulations to the employers of ambulance attendants working 24-hour
shifts. (Stewart v. San Luis Ambulance, Inc. (9th Cir. 2017) 878 F.3d 883,
884 (Stewart I).) The plaintiff in that case had worked as an emergency
medical technician and alleged that the defendant ambulance company
violated state and federal labor laws by requiring him to remain on duty
throughout his shifts. (Id. at p. 885.) The Ninth Circuit explained that,
while the California Supreme Court had interpreted Wage Order 4 to require
off-duty rest periods, “Augustus does not control the interpretation of Wage
Order 9.” (Stewart I, at p. 886.)
IWC wage order No. 9-2001 (Wage Order 9) is an industry order that
regulates wages, hours, and working conditions in the transportation
industry. (Cal. Code Regs., tit. 8, § 11090.) California courts have applied
Wage Order 9 to “ambulance drivers and attendants.” (Mendiola v. CPS
Security Solutions, Inc. (2015) 60 Cal.4th 833, 844, fn. 13.) Like Wage
Order 4, Wage Order 9 requires every employer to “authorize and permit all
employees to take rest periods.” (Cal. Code Regs., tit. 8, § 11090,
subd. (12)(A).)
But Stewart I explained that importing the interpretation of Wage
Order 4 from Augustus to Wage Order 9 “would create a conflict” within its
provisions, as another section of Wage Order 9 “affirmatively contemplates
4
‘[twenty-four ]hour shifts of duty’ for ambulance attendants.” (Stewart I,
supra, 878 F.3d at p. 886, quoting Cal. Code Regs., tit. 8, § 11090,
subd. (3)(K).) Moreover, the Ninth Circuit noted that “for the past twenty-
seven years, California courts have permitted employers of ambulance
attendants to exclude sleep periods from compensable time without a written
agreement, despite the fact that the employer retains control throughout the
twenty-four hours to wake the employees from their sleep every time an
emergency arises.” (Stewart I, at pp. 886–887.) “This precedent, unique to
the ambulance industry, makes the applicability of Augustus to Wage Order 9
a difficult open question.” (Stewart I, at p. 887.)
The California Supreme Court granted the Ninth Circuit’s request.
(Stewart v. San Luis Ambulance, Inc., S246255, Supreme Ct. Mins., Mar. 28,
2018.)
D. Proposition 11 and the EAESPA
In November 2018 (with these questions still pending before the Court),
California voters approved Proposition 11, which enacted the EAESPA.
Section 887, subdivision (a) of the EAESPA provides: “In order to maximize
protection of public health and safety, emergency ambulance employees shall
remain reachable by a portable communications device throughout the
entirety of each work shift.” Section 888 defines an “emergency ambulance
employee” under the EAESPA. Section 889 then states: “Notwithstanding
any other provision of law to the contrary, Sections 887 and 888 are
declaratory of, and do not alter or amend, existing California law and shall
apply to any and all actions pending on, or commenced after, October 25,
2017, alleging a violation of [Wage Order 9] or any amended, successor, or
replacement law, regulation, or IWC order.”
5
Voting materials indicated that a “YES” vote on Proposition 11 would
allow private ambulance companies to “continue their current practice of
having emergency medical technicians (EMTs) and paramedics stay on-duty
during their meal and rest breaks in order to respond to 911 calls.” (Voter
Information Guide, Gen. Elec. (Nov. 6, 2018) quick reference guide, p. 10.)
According to analysis by the Legislative Analyst, private ambulance
companies own and operate most ambulances in California, and provide
approximately 75 percent of all emergency ambulance rides. (Voter
Information Guide, Gen. Elec. (Nov. 6, 2018) p. 62.) Ambulance companies
contract with counties to respond to emergency calls within a certain amount
of time. (Ibid.) Ambulance crews are positioned throughout an area to meet
these contracted response times and when one crew responds to an
emergency call, others may need to reposition. (Id. at p. 63.) Accordingly,
breaks may be interrupted by emergency calls or requests to reposition.
(Ibid.) “In practice, EMTs and paramedics are ‘on call’ for their entire work
shift in case they receive an emergency call.” (Ibid.) However, “most
ambulance shifts include down time between emergency calls” and “[a]s a
result, crews often have enough down time in their shift to take
uninterrupted meal and rest breaks even though they are technically on call.”
(Ibid.)
It is evident that Proposition 11 was proposed in response to Augustus:
voting materials summarized the decision and then stated that, due to the
“similarities” in labor laws and industry practices for private security guards
and emergency ambulance employees, “it appears likely that the Augustus
decision will also apply to EMTs and paramedics in the near future.” (Voter
Information Guide, Gen. Elec. (Nov. 6, 2018) analysis of Prop. 11 by the
Legislative Analyst, p. 64.) Proposition 11 would thus preclude any need for
6
private ambulance companies to comply with Augustus and avoid two sets of
related costs. (Ibid.) First, if ambulance companies had to provide off-duty
meal and rest breaks under Augustus, they “would likely have to operate
significantly more ambulances in each area than they do now,” which “would
increase costs to ambulance companies—potentially by more than $100
million each year.” (Ibid.) These higher costs would “be borne by counties,”
“by reducing ambulance company payments to them and/or by requiring
county payments to ambulance companies to ensure adequate service.” (Id.
at pp. 64–65.) Second, the retroactive effect of Proposition 11 would limit
“potentially large, one-time costs” that private ambulance companies might
face as a result of active lawsuits regarding meal and rest break violations.
(Id. at p. 65)
E. Stewart II Decision
The California Supreme Court subsequently dismissed consideration of
the questions posed by the Ninth Circuit in Stewart I. (Stewart v. San Luis
Ambulance, Inc., S246255, Supreme Ct. Mins., Sept. 18, 2019.) It explained:
“In light of the passage of Proposition 11, the Emergency Ambulance
Employee Safety and Preparedness Act (Gen. Elec. (Nov. 6, 2018)[)],
resolution of the questions posed by the Ninth Circuit Court of Appeals is no
longer ‘necessary . . . to settle an important question of law.’ ” (Ibid.)
The Ninth Circuit then issued an unpublished memorandum decision
affirming summary judgment for the defendant ambulance company.
(Stewart v. San Luis Ambulance, Inc. (9th Cir. 2020) 818 Fed. Appx. 705, 709
(Stewart II).) It concluded that the EAESPA applied and because it “ ‘merely
clarified existing law, no question of retroactivity is presented.’ ” (Stewart II,
at p. 708.)
7
F. Calleros Decision
In November 2020, the Fourth District issued its decision in Calleros.
(Calleros, supra, 58 Cal.App.5th at p. 663.) The class action plaintiffs in that
case had alleged violations of section 226.7 and Wage Order 9 for requiring
that ambulance employees remain on call during rest breaks. (Calleros, at
p. 663.) On appeal from the denial of their class certification motion, the
plaintiffs argued that retroactive application of the EAESPA was
unconstitutional because it impermissibly interfered with their vested rights.
(Calleros, at p. 667.)
Calleros concluded that, even assuming the plaintiffs had such vested
rights, the EAESPA’s retroactive application satisfies constitutional
requirements. (Calleros, supra, 58 Cal.App.5th at p. 667.) It explained that
there are “significant state interests” underlying the EAESPA to protect and
promote public health and safety, and that retroactive application “was
sought to achieve the public fiscal and safety goals underlying the new
provisions by making clear the ambulance entities would not be penalized for
ensuring their workers had been previously available at all times to respond
to emergencies.” (Calleros, at pp. 668–669.) It also explained that the
plaintiffs “have not shown any reliance, much less justifiable reliance, on the
claimed vested right” because “ambulance entities have long required
ambulance workers to carry communication devices during their rest breaks,”
and “Augustus had never been extended to ambulance workers before the
voters passed Proposition 11.” (Id. at p. 669)
Two requests for depublication of Calleros were filed with the
California Supreme Court, including one by Silva’s counsel. The Court
denied the requests and declined review on its own motion. (Calleros v.
Rural Metro of San Diego Inc., S266626, Supreme Ct. Mins., Mar. 24, 2021.)
8
G. Medic’s Motions
After the Calleros decision was issued and requests for its
depublication were denied, Silva’s counsel represented to the trial court that
Silva “does not intend to dismiss the case and believes the opinion from the
4th District was erroneously decided and will go before the Court of Appeal to
have the decision reversed.” Medic filed its MJOP, arguing Silva’s claims
were foreclosed by the EAESPA and citing Calleros, Stewart I, and
Stewart II. Medic noted that the first amended complaint alleged a violation
of Wage Order 4, presumably to strengthen its reliance on Augustus, but that
Wage Order 9 applied to ambulance employees like Silva and the putative
class members.
Medic also filed a motion requesting $20,000 in sanctions to be imposed
against Silva’s counsel, arguing that counsel had maintained the action
despite legal authorities that “unequivocally foreclose” the claims.
H. Trial Court’s Ruling
The trial court granted Medic’s MJOP and dismissed Silva’s amended
complaint without leave to amend. It explained: “As a trial court[,] this court
is bound by an opinion of the Court of Appeal so long as there is no conflict
with the California Supreme Court or another appellate decision (and for
Calleros there is not). [Citation.] Calleros directly states that Plaintiff,
whose case is functionally identical to the case before that court, cannot state
a valid claim because the [EAESPA] retroactively declares that Defendant
was not required to provide duty-free rest breaks. It speaks to and rejects
her argument of unconstitutional interference with a vested property right.”
The trial court imposed $2,000 in sanctions against Silva’s counsel,
9
concluding that no reasonable attorney would find merit in her claim in light
of Calleros.
Silva and her counsel filed timely notices of appeal.
II. DISCUSSION
A. MJOP
We begin with Silva’s challenge to the trial court’s ruling on the MJOP.
Our review is de novo. (Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th
468, 515.) The crux of Silva’s argument here is that Calleros was wrongly
decided and retroactive application of the EAESPA is unconstitutional.
Before turning to this argument, however, we address two threshold issues.
1. Wage Order 4 vs. Wage Order 9
Medic contends that judgment on the pleadings was proper because, in
her cause of action for violation of section 226.7 and IWC wage orders, Silva
relied on the inapplicable Wage Order 4, not the applicable Wage Order 9. As
described above, the IWC promulgated different industry-specific and
occupation-specific wage orders “ ‘that apply to distinct groups of
employees.’ ” (California Correctional Peace Officers’ Assn. v. State of
California (2010) 188 Cal.App.4th 646, 654–55.) California courts have made
clear that Wage Order 9, an industry-specific wage order governing the
transportation industry, applies to ambulance workers. (Mendiola v. CPS
Security Solutions, Inc., supra, 60 Cal.4th 833, 844, fn. 13; see also Monzon v.
Schaefer Ambulance Service, Inc. (1990) 224 Cal.App.3d 16, 22 (Monzon)
[ambulance drivers and attendants “are covered by” Wage Order 9].) The
DLSE has also made clear that occupation-specific wage orders, like Wage
10
Order 4, only apply when a business is not covered by an industry order.
That is not the situation here.
Silva responds that, even if she cited the wrong wage order in her
amended complaint, it is not grounds for granting a MJOP because she has
still stated sufficient allegations for her cause of action. “A motion for
judgment on the pleadings presents the question of whether ‘the plaintiff’s
complaint state[s] facts sufficient to constitute a cause of action against the
defendant.’ ” (Jacks v. City of Santa Barbara (2017) 3 Cal.5th 248, 272.)
“ ‘ “Moreover, the allegations must be liberally construed with a view to
attaining substantial justice among the parties.” [Citation.] “Our primary
task is to determine whether the facts alleged provide the basis for a cause of
action against defendants under any theory.” ’ ” (Ibid.) Given this
framework, we agree that Silva’s citation to the inapplicable Wage Order 4
alone is not a sufficient basis for granting the MJOP, as she included more
general allegations about a violation of IWC “wage orders” and failure to
provide off-duty rest breaks. But as explained below, even if Silva had cited
the applicable Wage Order 9, we conclude that these allegations were
insufficient to constitute a viable cause of action in light of the EAESPA.
2. Clarification vs. Change in Law
Medic contends that we need not address the retroactivity of the
EAESPA because it clarified existing law. “ ‘[A] statute that merely clarifies,
rather than changes, existing law does not operate retrospectively even if
applied to transactions predating its enactment’ ‘because the true meaning of
the statute remains the same.’ ” (McClung v. Employment Development Dept.
(2004) 34 Cal.4th 467, 471.) In other words, no question of retroactivity is
presented because the statute “would not have changed anything.” (Id. at
p. 472.)
11
In determining whether a statute clarifies or changes existing law, we
first look to whether the California Supreme Court has “ ‘finally and
definitively’ ” interpreted the former law. (Carter v. California Dept. of
Veteran Affairs (2006) 38 Cal.4th 914, 922 (Carter).) Here, Silva contends
that Augustus “ ‘finally and definitively’ ” interpreted the rest period
provision in not only Wage Order 4, but “all other” IWC wage orders with the
provision. (Carter, at p. 922.)
We are not persuaded. The California Supreme Court was clear on the
scope of its review in Augustus: to determine whether Wage Order 4
prohibited on-duty rest periods. (Augustus, supra, 2 Cal.5th at p. 273.) In
concluding that it did, the Court interpreted the specific language in Wage
Order 4. (Augustus, at p. 264.) It did not make any sweeping holding
regarding other IWC wage orders.2
Silva argues that Augustus nonetheless applies with equal force to
Wage Order 9 because they both contain the same provision requiring
employers to “ ‘authorize and permit all employees to take rest periods.’ ”
(Augustus, supra, 2 Cal.5th at p. 267 [explaining rest period provision in
Wage Order 4 is “identical to the rest period provisions of most other wage
orders”].) But as the Ninth Circuit explained in Stewart I, there are other
important differences in the language of Wage Order 9 and its interpretation
by California courts. (Stewart I, supra, 878 F.3d at p. 886.) Wage Order 9
expressly contemplates that ambulance drivers and attendants may be
2 Silva repeatedly cites a phrase in the introductory paragraph of
Augustus—that “ ‘state law prohibits on-duty and on-call rest periods’ ”—to
suggest otherwise. (Augustus, supra, 2 Cal.5th at p. 273.) Given that the
Court explicitly identified its scope of review and analysis to section 226.7
and Wage Order 4, including in the introductory paragraph, we read this
phrase as a reference to that law and not all IWC wage orders. (Augustus, at
p. 273.)
12
scheduled for “24-hour shifts of duty” and during those shifts, they can agree
to exclude certain sleep and meal periods from compensable time. (Cal. Code
Regs., tit. 8, § 11090, subd. (3)(K); Monzon, supra, 224 Cal.App.3d at p. 46
[concluding agreement to exclude sleep time need not be written].) This
provision was added when the IWC “ ‘recognized the unique need for 24-hour
coverage by ambulance service and the special circumstances under which
most ambulance drivers work, and allowed relaxation of daily overtime
requirements for such drivers under certain protective conditions.’ ”
(Monzon, at p. 44.) Given these differences, we cannot conclude that
Augustus “ ‘finally and definitively’ ” answered the question of whether Wage
Order 9 prohibited on-duty rest periods. (Carter, supra, 38 Cal.4th at p. 922.)
Without such an answer, we must then look to “all pertinent
circumstances and considerations” in deciding whether a statute clarifies or
changes existing law. (People v. Franklin (1999) 20 Cal.4th 249, 256.) A
legislative declaration that a statute merely clarifies existing law is “ ‘a factor
for a court to consider,’ ” but is “ ‘ “neither binding nor conclusive” ’ ” as
“ ‘interpretation of a statute is an exercise of the judicial power the
Constitution assigns to the courts.’ ” (Carter, supra, 38 Cal.4th at p. 922.)
“ ‘[I]n interpreting a voter initiative . . . , we apply the same principles that
govern statutory construction.’ ” (Professional Engineers in California
Government v. Kempton (2007) 40 Cal.4th 1016, 1037.)
Here, the EAESPA explicitly states that “Sections 887 and 888 are
declaratory of, and do not alter or amend, existing California law.” (§ 889.)
Other circumstances support this statement. Prior to enactment of the
EAESPA, the legality of on-duty rest periods for ambulance workers was an
open question. No authority had extended Augustus to employees governed
by Wage Order 9. Indeed, the California Supreme Court granted the Ninth
13
Circuit’s request from Stewart I to answer the question. Voting materials on
Proposition 11 described the legal status of labor law requirements on the
ambulance industry as “currently in flux.” (Voter Information Guide, Gen.
Elec. (Nov. 6, 2018) analysis by the Legislative Analyst, p. 65.) In approving
Proposition 11, voters “promptly react[ed] to the emergence of a novel
question of statutory interpretation.” (Western Security Bank v. Superior
Court (1997) 15 Cal.4th 232, 243.) As our Supreme Court has explained, such
a reaction suggests the statute was “an effort only to clarify” the “true
meaning” of existing law. (Ibid.)
In sum, we conclude that the EAESPA clarified existing law and
therefore retroactivity analysis is unnecessary. The EAESPA applies to
Silva’s claim and Medic was entitled to judgment on the pleadings.
3. Retroactivity of the EAESPA
Even if we were to conclude otherwise that the EAESPA did change
existing law, we nonetheless agree with Calleros that retroactive application
of the EAESPA satisfies constitutional requirements. (Calleros, supra,
58 Cal.App.5th at p. 667.)
Retroactive application of a statute may be unconstitutional “if it
deprives a person of a vested right without due process of law.” (In re
Marriage of Buol (1985) 39 Cal.3d 751, 756 (Buol).) Vested rights, however,
“are not immutable; the state, exercising its police power, may impair such
rights when considered reasonably necessary to protect the health, safety,
morals and general welfare of the people.” (Id. at pp. 760–761.) Accordingly,
to determine whether a retroactive statute contravenes the due process
clause, “we consider such factors as the significance of the state interest
served by the law, the importance of the retroactive application of the law to
the effectuation of that interest, the extent of reliance upon the former law,
14
the legitimacy of that reliance, the extent of actions taken on the basis of that
reliance, and the extent to which the retroactive application of the new law
would disrupt those actions.” (In re Marriage of Bouquet (1976) 16 Cal.3d
583, 592 (Bouquet).) “Where ‘retroactive application is necessary to subserve
a sufficiently important state interest,’ ” however, “the inquiry need proceed
no further.” (Buol, at p. 761.)
As a preliminary matter, we are not persuaded that Silva or putative
class members had any “vested right[s]” impaired by retroactive application
of the EAESPA. (Buol, supra, 39 Cal.3d at p. 756.) Silva relies on Hall v.
Cultural Care USA (N.D.Cal. July 22, 2022, No. 3:21-cv-00926) 2022
U.S.Dist. Lexis 130582 (Hall), an unpublished federal decision3 declining to
retroactively apply a new legal test for classifying workers as employees
versus independent contractors that would take away wages earned under
the former test. (Id. at p. *12.) But Hall is distinguishable because here,
Silva contends that she and putative class members had a vested right to
unpaid wages accrued from the purported violation of their vested right to
off-duty rest breaks under Augustus. For the reasons discussed above,
Augustus did not create any such right for ambulance industry employment
governed by Wage Order 9.
Even assuming there were such vested rights, we agree with Calleros
that the Bouquet factors support retroactive application of the EAESPA.
(Calleros, supra, 58 Cal.App.5th at p. 667.) As to the first factor (significance
of state interest), the EAESPA is explicit that its purpose “is to enhance
public health and safety by ensuring that emergency ambulance employees
. . . are available to respond to 911 emergency-type requests for medical
3 We note that the prohibition on citing unpublished California opinions
(Cal. Rules of Court, rule 8.1115(a)) does not apply to unpublished federal
opinions. (Farm Raised Salmon Cases (2008) 42 Cal.4th 1077, 1096, fn. 18.)
15
assistance at all times.” (§ 882.) As to the second factor (importance of
retroactivity to effectuate state interest), Calleros explained that “retroactive
application of Proposition 11 was sought to achieve the public fiscal and
safety goals underlying the new provisions by making clear the ambulance
entities would not be penalized for ensuring their workers had been
previously available at all times to respond to emergencies.” (Calleros, at
pp. 668–669.) Silva contends that there is “no logical showing” that could
support this analysis. We disagree. Voting materials for Proposition 11
made clear that active lawsuits alleging past rest break violations could
expose private ambulance companies to “potentially large, one-time costs,”
and that those costs would ultimately be borne by counties and the public,
either in reducing the availability of ambulance services or the availability of
funds for providing such services. (Voter Information Guide, Gen. Elec. (Nov.
6, 2018) analysis by the Legislative Analyst, p. 65.)
As to the remaining factors related to reliance on the former law,
Calleros concluded that the plaintiffs had “not shown any reliance, much less
justifiable reliance, on the claimed vested right.” (Calleros, supra,
58 Cal.App.5th at p. 669.) Silva points to her filing of this action (and
Calleros), but presents no authority to support her position that initiating
litigation is sufficient to show reliance under the Bouquet factors, let alone
that such reliance would outweigh the other state interest factors. This is
particularly true given a “ ‘sufficiently important state interest’ ” can end the
analysis on this factor alone. (Buol, supra, 39 Cal.3d 751, 761.) Silva again
cites Hall, but in that case the only state interest proffered by defendant was
that the new legal test “ensures ‘consistency and stability’ ” in employment
rules. (Hall, supra, 2022 U.S.Dist. Lexis 130582, at p. *13.) Hall determined
that retroactive application was “not of much ‘importance’ to the ‘effectuation
16
of that interest.’ ” (Ibid.) As for the reliance factors, both employers and
workers had “necessarily relied” on the former legal test for classification of
employees and independent contractors for “ ‘more than a century.’ ” (Id. at
pp. *13–*14.) Retroactive application would “vitiate” this “reasonable
reliance.” (Id. at p. *16.) Here, unlike the law in Hall, the EAESPA
advances an important state interest that retroactive application helps
effectuate, and Silva has not shown reliance that precludes such application.
In sum, we conclude the trial court did not err in retroactively applying
the EAESPA under Calleros and granting Medic’s MJOP.
B. Sanctions
Silva’s counsel also challenges the trial court’s imposition of sanctions.
Code of Civil Procedure section 128.7 provides, in relevant part, that a court
may impose sanctions for filing a pleading that is indisputably without legal
merit. (Peake v. Underwood (2014) 227 Cal.App.4th 428, 440.) A claim is
“legally frivolous if it is ‘not warranted by existing law or a good faith
argument for the extension, modification, or reversal of existing law.’ ” (Ibid.)
“[T]o obtain sanctions, the moving party must show the party’s conduct in
asserting the claim was objectively unreasonable,” meaning “ ‘any reasonable
attorney would agree that [it] is totally and completely without merit.’ ”
(Ibid.)
“We review a Code of Civil Procedure section 128.7 sanctions award
under the abuse of discretion standard.” (Peake v. Underwood, supra,227 Cal.App.4th at p. 441.) Silva asks us to depart from this rule, citing
authority that de novo review applies where there is a question of law and no
disputed facts. None of this authority is on point. (Ponce v. Wells Fargo
Bank (2018) 21 Cal.App.5th 253, 261 [legal question about whether
nonfrivolous claim can be asserted for improper purpose subject to de novo
17
review]; Li v. Majestic Industry Hills LLC (2009) 177 Cal.App.4th 585, 591
[legal question regarding safe harbor period to avoid sanctions subject to de
novo review].) Silva’s counsel does not raise a pure question of law here, but
instead challenges the trial court’s determination that no reasonable attorney
would have found merit in Silva’s claim in light of Calleros. We review that
determination for abuse of discretion. (Peake, at p. 441.) In so doing, “[w]e
presume the trial court’s order is correct and do not substitute our judgment
for that of the trial court.” (Ibid.) “To be entitled to relief on appeal, the
court’s action must be sufficiently grave to amount to a manifest miscarriage
of justice.” (Ibid.)
Silva’s counsel contends that the imposition of sanctions was improper
because they made a “good faith argument” that Calleros was wrongly
decided and should not be followed.4 Specifically, they argue that Calleros
(1) “failed to consider how retroactive application of EAESPA would serve the
state’s interest in public health and safety,” and (2) “ignored the plaintiffs’
justifiable reliance on the law as it stood prior to the passage of EAESPA.”
Neither is a reasonable reading of Calleros, which explicitly considered that
“retroactive application of Proposition 11 was sought to achieve the public
fiscal and safety goals underlying the new provisions by making clear the
ambulance entities would not be penalized for ensuring their workers had
been previously available at all times to respond to emergencies” and
explained that the filing of litigation was not reliance on any vested rights,
4 We note that Silva’s counsel did not present an argument on appeal
challenging the amount of sanctions imposed against them by the trial court.
Any such argument is forfeited. (Tiernan v. Trustees of Cal. State University
& Colleges (1982) 33 Cal.3d 211, 216, fn. 4 [issue not raised on appeal may be
deemed waived].)
18
but “at most an expectation or hope that Augustus would be applied to the
ambulance industry.” (Calleros, supra, 58 Cal.App.5th at pp. 668–669.)
Silva’s counsel also argues that Hall provided some support for their
theory that Calleros was wrongly decided. But Hall is an unpublished
federal decision that, unlike Calleros, was not binding on the trial court.
(Airline Pilots Assn. Internat. v. United Airlines, Inc. (2014) 223 Cal.App.4th
706, 724, fn. 7.) Moreover, as described above, Hall is clearly distinguishable
from the instant action in at least four respects: it involved a vested right to
unpaid wages, a less significant state interest proffered by the defendant, an
interest that was not much effectuated by retroactivity, and reasonable
reliance on the former law for over a century. (Hall, supra, 2022 U.S.Dist.
Lexis 130582, at p. *13.) The trial court’s determination that Silva’s claim
was without legal merit did not amount to a “manifest miscarriage of justice.”
(Peake v. Underwood, supra, 227 Cal.App.4th at p. 441.)
In sum, we conclude the trial court did not abuse its discretion in
imposing sanctions against Silva’s counsel.5
III. DISPOSITION
The judgment is affirmed. Medic is entitled to its costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(2).)
5 We deny Medic’s request, made in its respondent’s brief, that we
sanction Silva’s counsel in the amount of $20,000 for their “frivolous” appeal.
A party requesting sanctions for taking a frivolous appeal must do so by
motion with a supporting declaration. (Cal. Rules of Court, rule 8.276(a)–(b).)
19
LANGHORNE WILSON, J.
WE CONCUR:
HUMES, P. J.
CASTRO, J.*
* Judge of the Superior Court of California, County of Alameda,
assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
20
Trial Court: Solano County Superior Court
Trial Judge: Hon. Alesia Jones
Counsel:
Weinberg, Roger & Rosenfeld, Jannah V. Manansala, Caitlin E. Gray,
Alexander S. Nazarov and Winnie Vien for Plaintiffs and Appellants.
CDF Labor Law, Carothers DiSante & Freudenberger, Corey J. Cabral, Dalia
Z. Khatib, Mark Steven Spring and Nicole A. Legrottaglie for Defendant and
Respondent.
A167098
Silva v. Medic Ambulance Service, Inc.
21