Lusardi Construction Co. v. Aubry

BAXTER, J., Concurring and Dissenting.

I agree with the majority that Lusardi Construction Company (Lusardi) cannot be held liable for statutory penalties. I respectfully dissent, however, from the remainder of the judgment and the majority’s reasoning. I have concurred in Justice Panelli’s explanation of why Lusardi should not be required to pay the difference between the prevailing wages and the wages that Lusardi contracted to pay. (Cone, and dis. opn. of Panelli, J., at pp. 999-1004, ante.) I write separately only to state that I also agree with Justice Arabian’s conclusion that the majority opinion results in a miscarriage of justice. (Cone, and dis. opn. of Arabian, J., at pp. 1004-1008, ante.) As he explains and as the Court of Appeal observed, this case cries out for application of equitable estoppel.

In an apparent attempt to render its harsh result more palatable, the majority suggests that Lusardi “has remedies against the District, Imperial, and perhaps others for indemnification . . . .” (Maj. opn., at p. 997, ante.) This result not only delays justice to Lusardi, it unnecessarily consumes court resources.