Del Fierro v. DynCorp International CA2/6

Filed 5/9/22 Del Fierro v. DynCorp International CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
RAMON DEL FIERRO, 2d Civil No. B312841
(Super. Ct. No. 56-2019-
Plaintiff and Appellant, 00534888-CU-OE-VTA)
(Ventura County)
v.
DYNCORP INTERNATIONAL,
LLC,
Defendant and Respondent.
Plaintiff brought an action against his former employer
under the Private Attorneys Generals Act (PAGA) (Lab. Code,1
§ 2699) for violation of section 226, subdivision (a)(9). Plaintiff
was employed by a private contractor on a United States military
base. The trial court concluded that plaintiff’s action was barred
by the federal enclave rule. (U.S. Const., art. I, § 8, cl. 17.) The
court granted defendant judgment on the pleadings. We affirm.
All statutory references are to the Labor Code unless
1
otherwise stated.
FACTS
In 1954 the State of California ceded to the federal
government the land occupied by the Point Mugu Naval Air
Station (Point Mugu). Ramon del Fierro worked for DynCorp
International, LLC (DynCorp) at Point Mugu servicing military
jets from 2016 to 2019. Because he worked the evening shift, his
union contract required that he be paid a shift differential of
$1.85 per hour, later raised to $2.05 per hour.
Del Fierro’s wage statements showed the total amount of
shift differential pay he received and the shift differential hourly
rate. The wage statements did not show the total number of shift
differential hours he worked. That amount could be easily
calculated, however, by dividing the total shift differential pay by
the hourly rate.
Complaint
Del Fierro brought this action against DynCorp on behalf of
himself and others alleging that DynCorp violated section 226,
subdivision (a)(9) requiring wage statements to show “all
applicable hourly rates in effect during the pay period and the
corresponding number of hours worked at each hourly rate.”
The complaint sought statutory penalties under sections
226.3 and 2699, subdivision (f).
Section 226.3 provides, in part: “Any employer who
violates subdivision (a) of Section 226 shall be subject to a civil
penalty in the amount of two hundred fifty dollars ($250) per
employee per violation in an initial citation and one thousand
dollars ($1,000) per employee for each violation in a subsequent
citation, for which the employer fails to provide the employee a
wage deduction statement or fails to keep the records required in
subdivision (a) of Section 226.”
2
Section 2699, subdivision (f) provides, in part: “For all
provisions of this code except those for which a civil penalty is
specifically provided, there is established a civil penalty for a
violation of these provisions, as follows: . . . [¶] (2) If, at the time
of the alleged violation, the person employs one or more
employees, the civil penalty is one hundred dollars ($100) for
each aggrieved employee per pay period for the initial violation
and two hundred dollars ($200) for each aggrieved employee per
pay period for each subsequent violation.”
Although the civil penalties are within the purview of the
Labor and Workforce Development Agency, section 2699,
subdivision (a) provides, in part: “(a) Notwithstanding any other
provision of law, any provision of this code that provides for a
civil penalty to be assessed and collected by the Labor and
Workforce Development Agency . . . for a violation of this code,
may, as an alternative, be recovered through a civil action
brought by an aggrieved employee on behalf of himself or herself
and other current or former employees . . . .”
Procedure
DynCorp demurred on the ground that section 226.3 limits
civil penalties for the employer’s failure to provide the employee
with “a wage deduction statement” or where the employer “fails
to keep the records required in subdivision (a) of Section 226.”
DynCorp pointed out that Del Fierro alleged neither violation in
his complaint. The trial court overruled the demurrer.
After answering, DynCorp moved for judgment on the
pleadings. DynCorp claimed that Point Mugu’s status as a
federal enclave barred application of PAGA to actions by
employees working at Point Mugu. The trial court denied the
motion.
3
DynCorp made a second motion for judgment on the
pleadings, again arguing that PAGA could not be applied on a
federal enclave. Thus, Del Fierro has no private right of action to
enforce the penalties under section 226.3. This time the trial
court agreed and granted the motion.
The trial court stated it erred in denying DynCorp’s first
motion for judgment on the pleadings because it did not
understand that Del Fierro’s claims depended on PAGA. The
court concluded that PAGA did not apply to Point Mugu because
Point Mugu was ceded to the federal government decades prior to
the enactment of PAGA.
DISCUSSION
I
Application of PAGA in a Federal Enclave
The United States Constitution gives Congress the power
to exercise exclusive legislation “over all Places purchased by the
Consent of the Legislature of the State in which the Same shall
be, for the Erection of Forts, Magazines, Arsenals, dock-Yards,
and other needful Buildings.” (U.S. Const., art. I, § 8, cl. 17.)
When an area in a state becomes a federal enclave, only the
state law in effect at the time of the transfer continues in force,
and, going forward, the state law does not apply to the enclave.
(Parker Drilling Management Services, Ltd. v. Newton (2019) __
U.S. __ [139 S.Ct. 1881, 1890].)
Del Fierro’s complaint alleges that he worked at Point
Mugu from 2016 to 2019. It is undisputed that Point Mugu
became a federal enclave in 1954. PAGA became effective on
January 1, 2004. (Stats. 2003, ch. 906, § 2.)
Del Fierro argues that PAGA is procedural; it simply allows
an employee to act as an agent of the state in collecting civil
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penalties. (Citing Julian v. Glenair, Inc. (2017) 17 Cal.App.5th
853, 871.) But PAGA also has a substantive part. Section 2699,
subdivision (f) provides for civil penalties for violation of the
Labor Code. Del Fierro’s complaint requests those civil penalties.
Having arisen decades after Point Mugu became a federal
enclave, the federal enclave rule bars the imposition of such
penalties here.
In apparent recognition that the penalties under section
2699, subdivision (f) are barred, Del Fierro focuses his appeal on
section 226. He claims that section 226 was enacted in 1943,
before Point Mugu became a federal enclave. But a code section
number is not the law; the law is contained in the text of the code
section. Del Fierro makes no effort to show that section 226 as it
existed prior to 1954 contained the text of the law on which he
relies.
As first enacted in 1943, section 226 required only that
employers provide written statements of any deductions from an
employee’s pay. (Ward v. United Airlines, Inc. (2020) 9 Cal.5th
732, 745.) The only amendment prior to 1954 required that the
statement be a detachable part of the pay check. (Stats. 1945, ch.
1140, § 1.) The Legislature did not add the requirement to
section 226 that a wage statement provide “all applicable hourly
rates in effect during the pay period and the corresponding
number of hours worked at each hourly rate by the employee,”
the provision on which Del Fierro relies, until 2000. (Stats. 2000,
ch. 876, § 6, capitalization omitted.) Moreover, section 226.3, the
statute that establishes the civil penalties Del Fierro’s complaint
seeks, was not enacted until 1979. (Stats. 1979, ch. 1050, § 3.)
Del Fierro’s reliance on Paul v. United States (1963) 371
U.S. 245 is misplaced. In Paul, the question was whether price
5
control on milk enacted by the state of California applied on
various military bases in the state. The Supreme Court
concluded, “[T]he current price controls over milk are applicable
to [milk sales], provided the basic state law authorizing such
control has been in effect since the times of these [military base]
acquisitions.” (Id. at p. 269.)
The term “basic state law” as used in Paul must be
narrowly interpreted to prevent the prior state law exception
from overwhelming the federal enclave constitutional rule. (See
Allison v. Boeing Laser Technical Services (10th Cir. 2012) 689
F.3d 1234, 1243 [changes in state labor law related to wrongful
termination not applicable in federal enclave].) Paul allowed
only administrative changes to the price of milk under a
legislative program that began prior to the establishment of a
federal enclave. Paul did not contemplate substantive legislative
changes to the program itself. That there would be
administrative changes in the price of milk was an essential part
of the original state program.
Here we are not concerned with administrative changes
contemplated by the original statute. We are concerned with
substantive change to the statute itself. The statutory provision
on which Del Fierro’s case depends did not exist prior to 1954
when Point Mugu became a federal enclave.
For the first time in his reply brief, Del Fierro contends
DynCorp is barred by collateral estoppel from claiming section
226 is not enforceable at Point Mugu. In a parallel federal class
action, the federal district court denied DynCorp’s motion for
judgment of the pleadings. DynCorp’s motion was based on the
contention that the federal enclave rule barred the application of
section 226. The court denied the motion on the ground that
6
section 226 was enacted before Point Mugu became a federal
enclave.
Del Fierro’s contention lacks merit for a number of reasons.
First, we do not ordinarily consider matters raised for the
first time in the reply brief. (Baugh v. Garl (2006) 137
Cal.App.4th 737, 746.) Del Fierro referred to the case under the
facts in his opening brief, but did not raise the contention that it
had a preclusive effect. Del Fierro provides no reason why he did
not raise the issue in his opening brief. The issue has been
waived.2
Second, collateral estoppel requires a final decision on the
merits in a prior action. (In re Marriage of Furie (2017) 16
Cal.App.5th 816, 828.) A motion for judgment on the pleadings is
the equivalent of a demurrer. (Hardy v. America’s Best Home
Loans (2014) 232 Cal.App.4th 795, 802.) Del Fierro cites no
authority that supports its claim that the denial of a motion for
judgment on the pleadings or an order overruling a demurrer is
sufficiently determinative to constitute a final decision on the
merits.
Finally, as we have explained above, the district court’s
ruling was wrong.
II
Section 226.3 Does Not Apply
By its terms section 226.3 provides civil penalties for an
employer who “fails to provide the employee a wage deduction
statement or fails to keep the records required in subdivision (a)
of Section 226.”
2 DynCorp’s motion to strike the issue, filed February 22,
2022, is granted.
7
That is not what Del Fierro is alleging. He is alleging that
DynCorp failed to provide the hourly rates and the corresponding
number of hours worked at each hourly rate. By the plain
wording of section 226.3, it does not apply to the alleged violation
of section 226. (See Gunther v. Alaska Airlines, Inc. (2021) 72
Cal.App.5th 334, 354-355 [limiting the application of section
226.3 to failure to provide wage deduction statement and keep
required records; disapproving of Raines v. Coastal Pacific Food
Distributors, Inc. (2018) 23 Cal.App.5th 667, 675, applying
section 226.3 to all violations of section 226].)
III
DynCorp’s Second Motion for Judgment on the Pleadings
Del Fierro contends the trial court erred in allowing
DynCorp’s second motion for judgment on the pleadings.
Del Fierro argues DynCorp’s second motion did not satisfy
the requirements of Code of Civil Procedure section 1008 that a
motion for reconsideration be based on different facts,
circumstances, or law.
Code of Civil Procedure section 1008, subdivision (a) gives
the trial court the power to deny a second motion for failure to
show different facts, circumstances, or law. But the court has the
inherent power to correct its errors. (Le Francois v. Goel (2005)
35 Cal.4th 1094, 1107 [Code of Civil Procedure section 1008 does
not limit the court’s ability on its own motion to correct errors].)
If the court believes one of its interim orders was erroneous, the
court is able to correct the error no matter how it came to acquire
that belief. (Le Francois, at p. 1108.) Thus, the trial court did
not err in granting DynCorp’s second motion for judgment on the
pleadings.
8
The judgment is affirmed. Costs are awarded to
respondent.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
PERREN, J.
TANGEMAN, J.
9
Ronda J. McKaig, Judge
Superior Court County of Ventura
______________________________
Diversity Law Group, Larry W. Lee; Law Offices of Choi &
Associates, Edward W. Choi; Polaris Law Group, William L.
Marder; Hyun Legal and Dennis S. Hyun for Plaintiff and
Appellant.
Constangy, Brooks, Smith & Prophete and Stephen B. Katz
for Defendant and Respondent.
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