GRFCO, Inc. v. Super. Ct.

Filed 3/10/23; Certified for Partial Publication 4/3/23 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
GRFCO, INC., et al.,
Plaintiffs and Appellants, E076823
v. (Super.Ct.No. RIC l906126)
THE SUPERIOR COURT OF OPINION
RIVERSIDE COUNTY,
Defendant and Respondent;
DEPARTMENT OF INDUSTRIAL
RELATIONS, DIVISION OF LABOR
STANDARDS ENFORCEMENT,
Real Party in Interest.
APPEAL from the Superior Court of Riverside County. John W. Vineyard, Judge.
Affirmed.
Manning Construction Law and Kimberly J. Manning for Plaintiffs and Appellants
GRFCO, Inc. and George Rogers Frost.
1
Tredway, Lumsdaine & Doyle and Brandon L. Fieldsted for Plaintiff and
Appellant James Craig Jackson.
No appearance for Defendant and Respondent.
Lance A. Grucela for Real Party in Interest.
After an administrative hearing, the Department of Industrial Relations,
Division of Labor Standards Enforcement (Division) debarred the following from acting
as public works contractors: (1) GRFCO, Inc. (GRFCO), a contractor; (2) George Rogers
Frost, the principal in GRFCO; (3) Garcia Juarez Construction (GJC), a contractor and
apparent alter ego of GRFCO; and (4) James Craig Jackson, the principal in GJC and an
employee of GRFCO.1 The Division found that, in six instances, the contractors had
violated apprenticeship requirements, and in two instances, Frost and Jackson had made
false certifications under penalty of perjury. The trial court denied the contractors’
petition for administrative mandate.
The contractors appeal. They contend that:
(1) There is insufficient evidence that the apprenticeship violations were knowing.
(2) There is insufficient evidence to support the false certification findings.
(3) The contractors were debarred because they refused to join a union, in
violation of the First Amendment.
1 In discussing events leading up to this appeal, we will use “contractors” to
refer to all four. GJC, however, is no longer in business and did not appeal. Hence, in
discussing events during this appeal, we will use “contractors” to refer only to GRFCO,
Frost, and Jackson.
2
(4) The Division, the hearing officer, and/or the investigator were biased.
(5) The hearing officer erred by denying the contractors’ request to reopen, which
was based on new evidence of bias.
We find no error. Therefore, we will affirm.
I
DEBARMENT OF PUBLIC WORKS CONTRACTORS
“Debarment excludes an individual or entity from doing business with the
government as a result of wrongful conduct or violations of a public contract or program.
[Citation.]” (Southern Cal. Underground Contractors, Inc. v. City of San Diego (2003)
108 Cal.App.4th 533, 542.)
A public works contractor must be registered. (Lab. Code, § 1725.5.)2 To qualify
for registration, it must, among other things, provide evidence that it “does not have any
delinquent liability to . . . the state for any . . . penalties pursuant to any final judgment,
order, or determination by a court or any federal, state, or local administrative agency.”
(§ 1725.5, subd. (a)(2)(C).)
If a public works contractor violates section 1725.5 with the intent to defraud, it
can be debarred for from one to three years. (§ 1777.1, subd. (a).)
Subject to exceptions not applicable here, a public works contractor must use one
hour of apprentice work for every five hours of journeyman work. (§ 1777.5, subds. (d),
2 All further statutory citations are to the Labor Code, unless otherwise
indicated.
3
(g).) To that end, before starting work, it must send contract award information (form
140) to an apprenticeship program in the geographical area. (§ 1777.5, subd. (e).)
“Contractors who are not already approved to train by an apprenticeship program sponsor
shall provide contract award information to all of the applicable apprenticeship
committees.” (Cal. Code Regs., tit. 8, § 230(a), italics added.)
The public works contractor must also send a request for apprentices (form 142) to
an apprenticeship program in the geographical area, at least 72 hours (excluding
Saturdays, Sundays and holidays) before the apprentices are to start work. (Cal. Code
Regs., tit. 8, § 230.1(a).)
“If the apprenticeship committee . . . does not dispatch apprentices as requested,
the contractor must request apprentice dispatch(es) from another committee . . . in the
geographic area . . . , and must request apprentice dispatch(es) from each such committee,
either consecutively or simultaneously, until the contractor has requested apprentice
dispatches from each such committee.” (Cal. Code Regs., tit. 8, § 230.1(a).) “[I]f . . . no
apprenticeship committee dispatches . . . any apprentice . . . within 72 hours of [a timely]
request (excluding Saturdays, Sundays and holidays) the contractor shall not be
considered in violation.” (Ibid.)
If a public works contractor knowingly commits a serious violation of section
1777.5, it can be debarred for up to one year for the first violation, or up to three years for
any subsequent violation. (§ 1777.1, subd. (d)(1).)
4
“The Labor Commissioner shall consider, in determining whether a violation is
serious, and in determining whether and for how long a party should be debarred for
violating Section 1777.5, all of the following circumstances:
“(A) Whether the violation was intentional.
“(B) Whether the party has committed other violations of Section 1777.5.
“(C) Whether, upon notice of the violation, the party took steps to voluntarily
remedy the violation.
“(D) Whether, and to what extent, the violation resulted in lost training
opportunities for apprentices.
“(E) Whether, and to what extent, the violation otherwise harmed apprentices or
apprenticeship programs.” (§ 1777.1, subd. (d)(2).)
II
STATEMENT OF FACTS3
GJC was a public works contractor. Jackson was the owner, president, and
responsible managing officer of GJC. GJC shut down in March 2013.
3 At a debarment hearing, “[t]he formal rules of evidence shall not apply and
any relevant evidence may be admitted if it is the sort of evidence on which responsible
persons are accustomed to rely in the conduct of serious affairs, regardless of the
existence of any common law or statutory rule which might make improper the admission
of such evidence over objection in civil actions. However, no determination shall be
made based solely upon any evidence which would not be admissible, over objection, in a
court of law in this state.” (Cal. Code Regs., tit. 8, § 16801(a)(2)(D).)
The contractors do not contend that any of the hearing officer’s findings were
based on evidence that would not be admissible in court. We deem them to have
forfeited any such contention.
5
GRFCO was also a public works contractor. Frost was the owner, president, and
responsible managing officer of GRFCO. Jackson worked for GRFCO as a senior project
manager.
Otherwise, however, GRFCO and GJC had the same staff. In one instance,
GRFCO asked to have GJC’s work experience imputed to it.
Frost and Jackson’s companies had completed many public works projects. They
had repeatedly received commendations from their clients and from members of the
public praising their professionalism, expertise, ability to solve problems, and the high
quality of their work.
A. Apprenticeship Violations.
At all relevant times, there were two apprenticeship committees for laborers in the
relevant geographic area: Laborers Southern California Joint Apprenticeship Committee
(Laborers) and Associated General Contractors of California, San Diego Chapter
(Associated).4 This information was available on the Division’s website.
Form 140 stated: “[Y]ou must send [contract award] information . . . to ALL
applicable apprenticeship committees . . . in the area of your public work. Go to:
http://www.dir.ca.gov/PublicWorksForms.htm for information about programs in your
area . . . .” Similarly, form 142 stated: “Go to: http://www.dir.ca.gov/
PublicWorksForms.htm for information about programs in your area . . . .”
4 The contractors state that Associated was “recently formed.” There was no
evidence of this.
6
Associated required contractors to join its organization; it would not dispatch
apprentices to a contractor that was not a member.
1. Avocado Boulevard Project.
From February 2012 through May 2013, GJC acted as prime contractor on a sewer
replacement project in San Diego County called the Avocado Boulevard Project.
GJC sent forms 140 and 142 to Laborers, but not to Associated.5 Laborers did not
dispatch any apprentices. Thus, GJC did not employ any laborer apprentices on the
project.
In November 2013, the Center for Contract Compliance (Center)6 filed a
complaint against GJC with the Division; it alleged failure to send forms to Associated
and failure to employ apprentices.
The Center’s complaint was served on GJC on or before November 8, 2013. That
would have made the contractors aware (if they were not already) that Associated existed
and that there was at least an issue as to whether they needed to send forms 140 and 142
to it. However, Jackson denied receiving the complaint.
5 The record includes what would appear to be forms 140 and 142 for the
project, with certified mail receipts showing that they were sent to Associated.
Nevertheless, Jackson admitted that GJC did not send these forms to Associated, and this
admission is supported by other evidence.
6 Jackson testified that the Center was funded by the laborers union, and that
“their job is to take out non[-]union contractors because we don’t pay union dues.”
7
In April 2014, the Division issued a civil wage and penalty assessment against
GJC. GJC sought review. Jackson testified that he did not send the forms to Associated
because, at the time, he was not aware of it.
The Director of Industrial Relations (Director) found that GJC “knowingly” failed
to employ apprentices. However, for purposes of the amount of the penalty, she found
that the violation was not intentional; rather, it “was technical noncompliance based on
mistake.” She assessed a penalty of $4,500.
2. Euclid Street Project.
Meanwhile, from February through March 2013, GRFCO acted as prime
contractor on a sewer replacement project in Orange County called the Euclid Street
Project.
GRFCO sent forms 140 and 142 to Laborers, but not to Associated. Jackson
claimed he did not know that he had to send forms to more than one apprenticeship
committee for a geographic area. However, someone at GRFCO claimed it did not send
the forms because it believed that Associated did not operate in the geographical area. 7
Laborers did not dispatch any apprentices. Thus, GRFCO did not employ any
apprentices on the project.
As a result, in December 2014, the Division issued a civil wage and penalty
assessment against GRFCO. GRFCO requested review, but defaulted. In December
7 This contradicted Jackson’s subsequent testimony that he did not become
aware of Associated until April 2014, when he received the penalty assessment for the
Avocado Boulevard project.
8
2015, a judgment was entered against it for $2,700 (Euclid Street judgment). It did not
pay the judgment until June 2016.
3. E Street Project.
From December 2013 through January 2014, GRFCO acted as prime contractor on
a storm drain project in San Bernardino County called the E Street Project.
GRFCO sent forms 140 and 142 to Laborers, but not to Associated. It claimed it
believed that Associated was not operating in the relevant geographical area. Laborers
did not dispatch any apprentices. Thus, GRFCO did not employ any apprentices on the
project.
As a result, in December 2014, the Division issued a civil wage and penalty
assessment against GRFCO. GRFCO did not seek review. In December 2015, a
judgment was entered against it for $3,800 (E Street judgment). GRFCO did not pay the
judgment until June 2016.
Jackson testified that he understood that GRFCO had 60 days to pay a judgment
— i.e., “after all rights of appeal had been exhausted[.]”8 He also testified that GRFCO
paid each of the judgments at issue within 60 days.
4. Garfield Avenue Project.
From February through July 2014, GRFCO acted as prime contractor on a sewer
replacement project in Orange County called the Garfield Avenue Project.
8 Jackson also testified, however, that he understood that he had no
obligation to pay a judgment until there was a demand for payment, and even then he had
60 days to pay from the date of the demand.
9
GRFCO sent forms 140 and 142 to Laborers, but not to Associated. The requests
specified a start date of July 27. The project, however, ended on July 3. Thus, GRFCO
did not employ any apprentices on the project.
As a result, in December 2014, the Division issued a determination of civil penalty
against GRFCO. GRFCO sought review. Jackson testified that he did not send a request
to Associated because he believed that Associated was not operating in the relevant
geographical area and did not provide laborers. He admitted that he had not checked the
website. He argued that it would have been futile to send a request to Associated,
because Associated would not send to a nonmember contractor. Jackson also testified
that the erroneous start date was “probably” a clerical error by his assistant.
In March 2016, the Director found that GRFCO “knowingly” and “intentional[ly]”
failed to employ apprentices. She assessed a penalty of $8,580 (Garfield Avenue
assessment). In May 2016, GRFCO filed a mandate petition. In June 2017, the superior
court denied a writ. GRFCO paid the assessment in July 2017.
5. Feather Hill Project.
In 2015, GRFCO acted as prime contractor on a storm drain project in Orange
County called the Feather Hill Project.
GRFCO sent form 140 to Laborers and Associated. According to Jackson, he
signed timely form 142s for both Laborers and Associated; his administrative assistant,
however, inadvertently failed to send them. When he discovered this, on February 26, he
sent them immediately; however, they were untimely for the specified start date of March
10
2. Meanwhile, he changed the actual start date to March 4. However, he did not send
any new requests for apprentices for the new start date. Thus, GRFCO did not employ
any apprentices on the project.
The Center filed a complaint against GRFCO with the Division. As a result, in
December 2016, the Division issued a civil wage and penalty assessment against
GRFCO.
GRFCO sought review. The Director found that GRFCO “knowingly” and
“intentional[ly]” failed to employ apprentices. Jackson claimed that he did not send
requests for apprentices because he believed the apprentice programs would not send
apprentices to a “non-union shop.” The Director, however, found this not credible,
because Jackson also claimed that he intended to send the requests and failed to do so
only because of his assistant’s inadvertence. She assessed a penalty of $3,900.
6. San Onofre Project.
In 2015, GRFCO acted as prime contractor on a waterline replacement project
called the San Onofre Project.
GRFCO sent forms 140 and 142 forms to both Laborers and Associated for the
expected start date of the project. However, when the start date was delayed, it did not
send any new form 142’s for the new start date. Thus, GRFCO did not employ any
laborer apprentices on the project.
11
Once again, the Center filed a complaint against GRFCO with the Division for its
failure to employ apprentices on the project. As a result, in December 2016, the Division
issued a civil wage and penalty assessment against GRFCO.
GRFCO sought review. The Director found that GRFCO “knowingly” failed to
employ apprentices. For this and other violations, she assessed a penalty of $11,100.
B. False Certifications.
1. 2016 registration renewal.
On May 18, 2016, GRFCO renewed its registration online. The renewal recited
that Jackson was certifying, under penalty of perjury, that GRFCO did not have any
delinquent liability to the state for any final judgments. At the time, however, GRFCO
had not yet paid either the E Street judgment or the Euclid Street judgment.
2. 2017 registration renewal.
On June 12, 2017, GRFCO renewed its registration online. It recited that Frost
was certifying, under penalty of perjury, that GRFCO did not have any delinquent
liability to the state for any final assessments. At the time, however, GRFCO had not yet
paid the Garfield Avenue assessment.
3. Circumstances of the renewals.
Penney Paulson, an assistant project administrator for GRFCO, was the person
who actually filed the registration renewals. She did so under Frost’s and Jackson’s
names, at their direction, using their credit cards. At the time, she was not aware of the
12
unpaid judgments. She assumed that if there had been a judgment, GRFCO would have
already paid it.
Jackson and Paulson both understood “delinquent” to mean past due, not merely
due.
III
STATEMENT OF THE CASE
In May 2018, the Division filed a debarment action against GRFCO. In
September 2018, a hearing officer held an evidentiary hearing.
In November 2019, the hearing officer found that the contractors had knowingly
committed serious violations of the apprenticeship requirements for public works
projects, in violation of section 1777.1, subdivision (d). She further found that Frost and
Jackson had knowingly submitted false certifications under penalty of perjury with the
intent to defraud the state, in violation of section 1777.1, subdivision (a). She ruled that
they should be debarred for three years. Thus, the Labor Commissioner debarred them
for three years, effective in January 2020.
In December 2019, the contractors filed an administrative mandate petition. The
parties stipulated to stay the debarment order while the writ proceeding was pending. In
March 2021, after hearing argument, the trial court denied the petition.
13
IV
MOOTNESS
The contractors were debarred for three years, effective January 2, 2020.
Accordingly, we questioned whether this appeal is moot.
We take judicial notice, however, that after March 30, 2021, when the trial court
entered judgment denying a writ of mandate, and after May 18, 2021, when we denied a
writ of supersedeas, the Labor Commissioner entered a new order debarring the
contractors for three years from May 21, 2021. Hence, the appeal is not moot.
V
THE SUFFICIENCY OF THE EVIDENCE OF
THE APPRENTICESHIP VIOLATIONS
The contractors contend that there was insufficient evidence that the
apprenticeship violations were knowing.9
A. Collateral Estoppel.
In connection with four of the six projects, there was a prior finding that GJC or
GRFCO acted “knowingly.” Each such finding had resulted in a penalty assessment
order and, in one instance, in the entry of a judgment for penalties.
9 The Division does not respond adequately to this contention. It does not
discuss the evidence on this point at all. It asserts, “Appellants do not dispute the
Superior Court’s confirmation that ‘[t]here is no question that Petitioners made knowing
violations of Lab. Code § 1777.5 on all six of the enumerated projects.’” The contractors
do argue, however, that to be “knowing,” a violation must be willful and intentional, and
that there was no evidence of this.
14
As the hearing officer noted, the penalty assessments “became final in all six
projects and are not subject to review by the hearing officer in this matter.”
“‘Collateral estoppel precludes relitigation of issues argued and decided in prior
proceedings. [Citation.] Traditionally, we have applied the doctrine only if several
threshold requirements are fulfilled. First, the issue sought to be precluded from
relitigation must be identical to that decided in a former proceeding. Second, this issue
must have been actually litigated in the former proceeding. Third, it must have been
necessarily decided in the former proceeding. Fourth, the decision in the former
proceeding must be final and on the merits. Finally, the party against whom preclusion is
sought must be the same as, or in privity with, the party to the former proceeding.
[Citations.]’ [Citation.]” (Hernandez v. City of Pomona (2009) 46 Cal.4th 501, 511.)
All of these requirements were met here. In particular, in each of the four former
proceedings, Jackson claimed that the violation was committed ignorantly, inadvertently,
or by mistake. Thus, the issue of whether the violation was “knowing” was actually
litigated.10 It was therefore established that the contractors had committed not just one,
but four apprenticeship violations knowingly.
The Division did not have to prove that all six of the alleged violations were
committed knowingly. Debarment required only a single knowing and serious
10 In connection with the other two projects — Euclid Street and E Street —
the Division issued a penalty assessment, which required a determination that GRFCO
have acted “knowingly.” (§ 1777.7, subd. (a)(1).) However, GRFCO either did not seek
review or defaulted, so arguably, this issue was not actually litigated. (See Gottlieb v.
Kest (2006) 141 Cal.App.4th 110, 148-149.)
15
apprenticeship violation. (§ 1777.1, subd. (d)(1).) In determining whether the violation
was serious, and in determining the length of the debarment, the hearing officer could
consider, among other things, whether the contractors had committed other
apprenticeship violations; however, the other violations did not have to be either knowing
or serious. (§ 1777.1, subd. (d)(2)(B).) As long as the hearing officer determined that
one of the knowing violations established by collateral estoppel was serious, she could
also consider all of the other five.
B. The Evidence of the Apprenticeship Violations.
Separately and alternatively, we also consider whether the evidence before the
hearing officer established knowing violations, without resort to collateral estoppel.
As mentioned, a contractor can be debarred for a serious violation of the
apprenticeship requirements only if the violation is committed “knowingly.” (§ 1777.1,
subd. (d)(1).) The contractors conflate “knowingly” with “intentionally” and/or
“willfully.” They state, “Section 1777.1(e) provides a definition of what constitutes an
intentional (willful) violation under Section 1777.1(d)(2)(A) . . . .” (Italics added.)
However, the contractors were sanctioned under section 1777.1, subdivision (d), which
requires that a violation be committed knowingly. Section 1777.1, subdivision (b), which
requires that a violation be committed willfully, is not involved here. Thus, the definition
of “willfully” in section 1777.1, subdivision (e) likewise is not involved here.
Significantly, in determining the duration of the debarment, the Labor
Commissioner is required to consider whether the violation was intentional or not.
16
(§ 1777.1, subd. (d)(2)(A).) Evidently the Legislature contemplated that a violation could
be knowing, yet not intentional.
The Labor Code does not define “knowingly.” However, under the Division’s
regulations, as they stood at the time: “For purposes of Section 1777.7, a contractor
knowingly violates Section 1777.5 if the contractor knew or should have known of the
requirements of that Section and fails to comply, unless the failure to comply was due to
circumstances beyond the contractor’s control.” (Cal. Code Regs., tit. 8, former § 231(h),
repealed Oct. 1, 2021.)
Admittedly, here, the question is whether the violations were knowing for
purposes of section 1777.1, not section 1777.7. However, section 1777.7 deals with
whether to assess a monetary penalty for an apprenticeship violation; it requires that a
violation be knowing. Section 1777.1, subdivision (d) deals with whether to impose
debarment for an apprenticeship violation; it requires that a violation be both knowing
and serious. “‘“It is an established rule of statutory construction that similar statutes
should be construed in light of one another [citations] and that when statutes are in pari
materia similar phrases appearing in each should be given like meanings.”’ [Citation.]”
(People v. Tran (2015) 61 Cal.4th 1160, 1167-1168.) It would be unreasonable to
construe “knowingly” differently as between the two statutes.
1. Avocado Boulevard Project.
In connection with the Avocado Boulevard project, Jackson did not claim he was
unaware of the requirement that he send forms 140 and 142 to all apprenticeship
17
committees in the geographical area. This requirement was stated on form 140 itself.
Rather, he claimed only that he was unaware of Associated.11 Again, however, forms
140 and 142 both stated that he could identify the apprenticeship committees in the
geographical area by going to the website. He admitted that he did not check the website:
“I just send it to the same ones that I always send it to . . . .” This was substantial
evidence that (1) Jackson knew or should have known of the requirement; (2) he failed to
comply; and (3) the failure to comply was not due to circumstances beyond his control.
That was sufficient to satisfy the definition of “knowingly.”
The contractors make much of the Director’s findings that this particular violation
“was not intentional” and that Jackson “made a mistake.” As already discussed,
however, a violation can be knowing, even though unintentional.
2. Euclid Street, E Street, and Garfield Projects.
The Division conducted a single investigation regarding the Euclid Street, E
Street, and Garfield projects combined.
This time, Jackson did not claim he had been unaware of Associated. Somewhat
to the contrary, he referred to it as the “secondary apprenticeship” in the area. Moreover,
someone at GRFCO — apparently not Jackson — indicated that GRFCO was aware of
Associated but believed it was outside the geographic area.
11 The contractors claim, contradictorily, that in connection with the Avocado
Street project, they did not send forms 140 and 142 to Associated both because Jackson
was unaware of Associated and because Jackson believed Associated did not operate in
the geographical area of the project. Jackson testified only to the first reason.
18
Jackson claimed he had been unaware of the requirement that he send forms 140
and 142 to more than one apprenticeship committee. Again, however, this requirement
was stated on form 140. Moreover, in connection with the Avocado Street Project —
which had started a year before the Euclid Street project — he had not made this claim;
he had claimed only that he had not known Associated existed, thus implying that he was
aware of the requirement. And again, the unnamed other person at GRFCO said it did
not send the forms to Associated because it believed Associated was not in the
geographic area. Amid this welter of conflicting explanations, the hearing officer was
entitled to find that Jackson was aware of the requirement.
As Jackson was aware of the requirement and aware that Associated was the
“secondary apprenticeship” committee in the geographic area, there was substantial
evidence that the violation was knowing. Even assuming, however, he was unaware that
Associated was in the geographic area, once again, he knew he could identify all of the
relevant apprenticeship committees by going to the website. Thus, the violations were
still knowing.
3. Feather Hill Project.
By the time of the Feather Hill project, Jackson was well aware, due to the
investigations regarding previous projects, that he needed to send forms to Associated.
He claimed that his administrative assistant “inadvertently” failed to send form 142 in a
timely manner; when he learned it had not been sent, he rescheduled the project start
date. However, he did not send a new form with the new start date. We may assume,
19
without deciding, that his assistant’s failure was not knowing. Even so, Jackson’s own
failure — to send a new form — was knowing.
4. San Onofre Project.
In connection with the San Onofre project, Jackson sent forms for the original start
date. However, when the start date was delayed, he did not send new forms. This failure
was knowing.
5. All six violations, taken together.
Finally, we reiterate, a single knowing and serious violation was sufficient to
support debarment. The contractors’ only argument about any specific project is that
their violation in connection with the Avocado Street project was not knowing. They do
not argue that their violations in connection with the Feather Hill and San Onofre projects
— when they were admittedly aware of Associated — were not knowing. Accordingly,
even assuming there was insufficient evidence that the other four violations were
knowing, the debarment order may stand.
C. “Serious” Violations.
The contractors argue that there was insufficient evidence that the apprenticeship
violations were serious. They also argue that the requirement that a violation be serious
is vague, in violation of due process.
This argument, however, does not have its own heading in their brief. (See Cal.
Rules of Court, rule 8.204(a)(1)(B).) “A contention not appropriately raised in the
20
opening brief under a separate argument heading may be deemed forfeited. [Citation.]”
(Tukes v. Richard (2022) 81 Cal.App.5th 1, 12.)
The contractors likewise forfeited their contention that “serious” is
unconstitutionally vague by failing to raise it at the administrative hearing (Basurto v.
Imperial Irrigation Dist. (2012) 211 Cal.App.4th 866, 892, fn. 6 [“due process . . . issues
must be presented to the hearing officer or tribunal itself for the issue to be preserved.”])
and again in the trial court (San Diego Municipal Employees Assn. v. Superior Court
(2012) 206 Cal.App.4th 1447, 1462 [“‘Under familiar general rules, theories not raised in
the trial court may not be raised for the first time on appeal.’”]).
Alternatively, we also reject both arguments on the merits.
As mentioned, in determining whether an apprenticeship violation is serious, the
hearing officer can consider “[w]hether the party has committed other violations of
Section 1777.5.” (§ 1777.1, subd. (d)(2)(B).) The evidence here showed six violations.
This was sufficient evidence to support the finding.
Turning to the due process argument, “‘a statute which either forbids or requires
the doing of an act in terms so vague that [people] of common intelligence must
necessarily guess at its meaning and differ as to its application, violates the first essential
of due process of law.’ [Citation.] Although even noncriminal legislation can be void for
vagueness [citation], ‘economic regulation is subject to a less strict vagueness test.’
[Citations.]” (Connor v. First Student, Inc. (2018) 5 Cal.5th 1026, 1034.)
21
Here, section 1777.1 defines “serious” in terms of five specified factors, including,
as noted, whether the party has committed other violations; it requires the hearing officer
to balance those factors. Similar balancing tests have been held to be not
unconstitutionally vague. (E.g., In re Kavanaugh (2021) 61 Cal.App.5th 320, 361 [“The
parole criteria regulation specifies the factors that the Board, in its discretion, may weigh
and balance during each individual prisoner’s parole consideration proceeding.
Therefore, the parole criteria regulation is not unconstitutionally vague.”].)
On a related point, the contractors argue that it was futile to require them to send
forms 140 and 142 to Associated, because Associated would not dispatch apprentices to
them. They do not explain how this is legally relevant. The applicable statutes and
regulations required them to do so. They do not contend that this requirement was so
arbitrary or irrational as to violate substantive due process. It could have many rational
purposes — e.g., to prove conclusively that the apprenticeship program will not send
apprentices, or to inform the apprenticeship program about the demand for apprentices.
Section 1777.1, subdivision (d)(2) provides that, in determining whether a
violation is serious or in determining the length of the disbarment, the Director can
consider, among other things, whether the violation actually resulted in lost training
opportunities for apprentices. The fact that it did not do so here is a mitigating
circumstance. However, it is not determinative.
22
VI
THE SUFFICIENCY OF THE EVIDENCE
OF THE CERTIFICATION VIOLATIONS
The contractors do not challenge the certification violations in the argument
section of their brief; they challenge them only in the “Introduction.” However, the
argument is under a heading (albeit not one listed in the table of contents). We therefore
consider it.12
As mentioned, to renew its registration, a public works contractor must “[p]rovide
evidence” that it “does not have any delinquent liability to . . . the state for any . . .
penalties pursuant to any final judgment, order, or determination by a court or any
. . . administrative agency . . . . However, for purposes of this paragraph, the contractor
shall not be disqualified for any judgment, order, or determination that is under appeal,
provided that the contractor has secured the payment of any amount eventually found due
through a bond or other appropriate means.” (§ 1725.5, subd. (a)(2)(C).)13
12 The Division is aware that the contractors are raising this issue, as it has
responded. Its response, however, is inadequate. It argues only that (1) whether the
judgment was delinquent was for the hearing officer to decide, and (2) the trial court
upheld the hearing officer’s decision. This fails to address the sufficiency of the evidence
to support either the hearing officer’s or the trial court’s ruling.
13 In a single sentence, the contractors assert that “the vague definition of
‘late’ makes this statute un-constitutional [sic].” The word “late,” however, is not in any
of the statutes involved.
Rather, the key word is “delinquent.” (§ 1725.5, subd. (a)(2)(C).) The further
provision allowing a contractor to obtain a delay by filing an appeal and posting a bond
necessarily implies that payment is not delinquent at least until the end of the appeal
[footnote continued on next page]
23
GRFCO’s registration application forms specifically stated, “Note: This statement
does not include liabilities that are still within the appeal period or still under appeal.”
The contractors assert, “It is un-disputed [sic] that the judgments were paid in full
within 60 days.” The cited portion of the record, however, establishes only that they
were paid “eventually,” not that they were paid within 60 days.
Actually, Jackson did testify that the Euclid Street and E Street judgments were
paid within 60 days. The record, however, shows that they were entered in December
2015. Jackson testified vaguely that a mandate proceeding was brought to set them aside.
However, there is no other evidence of such a mandate proceeding; in any event, a
judgment could not properly be challenged in a mandate proceeding. The hearing officer
was entitled to conclude that GRFCO did not actually challenge these judgments. And
GRFCO did not pay them until June 2016.
In the Garfield Avenue case, the Director’s decision was served in March 2016. If
the contractors wanted to challenge it, they were required to file a mandate petition
within 45 days after service. (§ 1742, subd. (c).) They did not do so. Instead, they filed
a mandate petition belatedly, in December 2016. In June 2017, the trial court entered
judgment denying the writ. As far as the record shows, it may have done so because the
petition was untimely.
period, and longer if a bond is posted. The evidence shows that this is, in fact, how the
Division construed “delinquent.”
24
We may assume, without deciding, that the extension of time applicable to a
decision that is “under appeal” (§ 1725.5, subd. (a)(2)(C)) applies to one that is the
subject of a mandate proceeding. But that must be construed as limited to a valid
mandate proceeding, not a belated and thus invalid mandate proceeding. And, in any
event, there is no evidence that GRFCO had “secured the payment of any amount
eventually found due through a bond or other appropriate means.” (Ibid.)
VII
REFUSAL TO JOIN A UNION
The contractors contend that they were penalized because they refused to join a
union, in violation of the First Amendment: As they put it: “To avoid assessments, even
debarment, [the contractors] had to join the A[ssociated] G[eneral] C[ontractors] union.”
The contractors claim Associated “will not send an apprentice unless the
contractor joins the union.” The only evidence supporting this is Jackson’s testimony.
However, he admitted that this was only an assumption on his part. The other evidence
showed that Associated would not send apprentices to the contractors because they were
not members, not because they were not unionized.
There is no evidence that Associated is a “union.” Indeed, it would be a strange
union that allowed employers to join. Arguably, however, the contractors have a First
Amendment right not to join Associated, whatever kind of organization it may be.
Most important, the Division did not penalize the contractors for refusing to join
Associated. The evidence showed that California Code of Regulations, title 8, section
25
230.1(a) is a safe harbor provision. All the contractors had to do was send forms 140 and
142 to all apprenticeship committees in the geographical area, including Associated.
Then, if Associated refused to send apprentices to the contractors, the contractors would
not be required to employ apprentices at all.
The contractors also claim the Center targeted them because they were nonunion.
If the contractors were breaking the law, the Center had the right to report them to the
Division. We know of no legal principle that prevents a citizen from reporting a crime
just because the citizen reports crimes in a discriminatory manner. There was no
evidence that the Division exercised its enforcement powers in a discriminatory manner.
“[T]he unlawful administration by state officers of a state statute that is fair on its face,
which results in unequal application to persons who are entitled to be treated alike, denies
equal protection if it is the product of intentional or purposeful discrimination.
[Citation.]” (Baluyut v. Superior Court (1996) 12 Cal.4th 826, 832; accord, Snowden v.
Hughes (1944) 321 U.S. 1, 8.) Even assuming the Center intentionally discriminated
against the contractors based on the exercise of their First Amendment rights, that intent
is not imputed to the Division.
Under the general heading of this argument, the contractors also assert, in passing,
that penalizing them for refusing to join a union violated sections 921 and 923. They
forfeited this point by failing to “develop the argument . . . discussing the application of
26
relevant legal authority to the facts of this case.” (Gerlach v. K. Hovnanian’s Four
Seasons at Beaumont, LLC (2022) 82 Cal.App.5th 303, 311-312.)14
Sections 921 and 923 do not apply. Section 921 prohibits an employer from
agreeing with an employee that it will not join a labor organization or an employer
organization. No such employer-employee agreement is involved here. Section 923
states a public policy that “[n]egotiation of terms and conditions of labor should result
from voluntary agreement between employer and employees.” This has no free-standing
effect; it applies only “[i]n the interpretation and application of” certain specified sections
of the Labor Code, none of which are involved here. And, of course, as we have already
held, the contractors were not penalized either for refusing to join a union or for refusing
to join Associated.
VIII
BIAS
The contractors contend that the Division and/or the hearing officer were biased,
as manifested in five instances.
In their reply brief, however, the contractors concede that “the administrative
record is devoid of any evidence of bias.” They argue only that they should have been
allowed to reopen to introduce evidence of bias. (See part IX, post). That concession is
fatal to this contention.
14 The contractors’ reference to the National Labor Relations Act, in its
entirety, with no analysis, is similarly forfeited.
27
Nevertheless, if only out of an excess of caution, we address it on the merits.
A. Delay in Investigation.
1. Additional factual background.
In June 2012, Jamie Roberts of the Center asked Associates whether it had
received forms 140 and 142 for the Avocado Boulevard project. She added, “[N]o rush
on this at all . . . the project won[’]t be finished until fall and I don’t plan on filing any
apprenticeship complaints (if applicable) until project completion.”
In March and May 2013, the contractors finished work on both the Euclid Street
project and the Avocado Boulevard project.
In November 2013, the Center filed its first complaint, about the Avocado
Boulevard project.
The contractors view this delay in filing as hiding the ball — keeping them
ignorant of the existence of Associated and thus entrapping them into noncompliance on
the Euclid Street and E Street projects.15
The only prosecution witness was Deputy Labor Commissioner Kari Anderson.
She had investigated all of the contractors’ alleged violations. She testified, “It was my
duty to find violations against contractors.”
15 Jackson testified that the Center’s first complaint was not served on him, so
he did not learn that Associated existed until April 2014, when the Division issued its
first civil wage and penalty assessment. Thus, in the contractors’ view, they were further
entrapped into noncompliance on the E Street project, begun in December 2013, and the
Garfield Avenue project, begun in February 2014.
28
Anderson also testified that she “maintain[ed] objectivity” during her
investigation. She had never spoken to Roberts, of the Center, about the contractors. She
did not know whether the Center was either “biased” or “union-affiliated.” The Center
was “the complainant”; however, the Division conducts an “independent investigation.”
Anderson did not know why the Center had delayed filing its complaint. She
noted, however, that the contractors had until the end of a project to fulfill their
obligation to employ apprentices, implying that they were not in violation (or could still
cure a violation) until then.
2. Discussion.
The contractors offer the delayed filing as an instance of the Division’s bias. They
assert that the Center and the Division delayed the investigation. They also assert that
“Anderson worked closely with the C[enter] to target the contractors.” (Bolding
omitted.)
There is evidence that the Center delayed. However, there is no evidence that the
Division did, or that the Division was working with the Center, except in the way that any
prosecuting agency would work with any witness or reporting party.16
The contractors also complain that the Division knew there were two apprentice
committees in the geographic area, but “did not notify” them. The Division had no duty
to notify them. At the top of every form 140 and 142, there was a notice that the
16 To the extent that the contractors base this argument on evidence submitted
with their request to reopen, we discuss that evidence in part IX, post.
29
contractors could go to the Division’s website “for information about programs in your
area . . . .” That was more than the Division was required to do.
B. Working Relationship Between the Hearing Officer and the Investigator.
1. Additional factual background.
The hearing officer was an attorney in the Labor Commissioner’s office.17 Before
the hearing, the contractors moved to disqualify her. They argued that “an agent of the
Labor Commissioner is not qualified to serve as hearing officer in a debarment
proceeding prosecuted by another agent of the Labor Commissioner.” The hearing
officer refused to disqualify herself.
2. Discussion.
The contractors argue that Anderson and/or the hearing officer was biased. They
assert: “Anderson would have obviously worked with [the] Hearing Officer . . . during
her investigation and the drafting of the complaint against the contractors . . . .” This is
not “obvious[]” at all. And the contractors do not cite any support for it in the record.
The contractors do not mention the hearing officer’s stated reasons for refusing to
disqualify herself. She wrote: “The regulations which govern debarment hearings do not
prohibit an attorney from [the Division] from also serving as a hearing officer in this type
17 The contractors assert that the hearing officer had been a prosecutor:
“[The] hearing officer . . . went from being a prosecutor at the D[ivision] to now being
the hearing officer for the contractors . . . .” Their citation to the record does not support
this, nor does anything else in the record.
Even if it were true, however, for the reasons we will discuss, it would not be
material.
30
of proceeding. Cal. Code Regs., [t]it. 8, [§] 16801. In addition, a party is not denied an
impartial adjudicator simply because an administrative entity performs both the functions
of a prosecutor and judge. Southern Cal. Underground Contractors, Inc. v. City of San
Diego[, supra,] 108 Cal.App.4th [at p. ]549.”
The contractors also give short shrift to the trial court’s reasons for rejecting their
bias claim. It ruled, in part, “the Administrative Procedure Act only requires
disqualification of the presiding officer where: ‘(1) The person has served as
investigator, prosecutor, or advocate in the proceeding or its preadjudicative stage; or (2)
The person is subject to the authority, direction, or discretion of a person who has served
as investigator, prosecutor, or advocate in the proceeding or its preadjudicative stage.’
(Gov. Code § 11425.30.) There is neither evidence, nor even suggestion, in the
Administrative Record that the Hearing Officer participated ‘as investigator, prosecutor,
or advocate’ in the present proceeding; nor is there any evidence in the Administrative
Record that the Hearing Officer was subject to the ‘authority, direction, or discretion’ of
the DLSE’s advocate . . . .”
Like the hearing officer, it recognized that “‘[b]y itself, the combination of
investigative, prosecutorial, and adjudicatory functions within a single administrative
agency does not create an unacceptable risk of bias and thus does not violate the due
process rights of individuals who are subjected to agency prosecutions.’ (Morongo Band
of Mission Indians v. State Water Resources Control Bd. (2009) 45 Cal.4th 731, 737.) In
the absence of a financial interest in the outcome, hearing officers are presumed to be
31
impartial. (Ibid.) ‘To prove a due process violation based on overlapping functions thus
requires something more than proof that an administrative agency has investigated and
accused, and will now adjudicate.’ (Today’s Fresh Start, Inc. v. Los Angeles County
Office of Education (2013) 57 Cal.4th 197, 221.)”
Both rulings were correct. Appellant asserts that the trial court refused to consider
any kind of bias other than financial interest. Not so. It said that, in the absence of a
financial interest, a hearing officer is presumed to be impartial. It did not preclude the
contractors from attempting to overcome this presumption. However, they did not.
C. Restriction on Cross-Examination.
1. Additional factual background.
During her cross-examination, Anderson testified that a judgment is due when
entered. She had trouble understanding a convoluted question about whether either of the
judgments involved here was past due; the hearing officer sustained an objection that it
was vague.
When counsel asked, “Was payment on any of the judgments past due?,” the
hearing officer sustained an asked-and-answered objection. However, in response to
further questions, Anderson testified, “[E]ach day that the judgment is or is not paid, then
it is past due.” Counsel asked, “Who told you that?”; she said, “No one.” He then asked,
“Where did you get that understanding?” The hearing officer sustained an asked-and-
answered objection.
32
Counsel asked, “When did you first make an inquiry relating to the false
certification?” The hearing officer sustained an asked-and-answered objection.
Anderson admitted that, in connection with the Feather Hill and San Onofre
projects, GRFCO did send forms 140 and 142 to Associated. Counsel then asked, “So
you would agree with me, then, that after April 2014, there was corrective action taken by
GRFCO with regard to sending forms 140 and 142 to AGC?” The hearing officer
sustained an objection that this “calls for a legal conclusion about corrective action,
quote/unquote, which is in the statute.”
2. Discussion.
The contractors cite the pages that these exchanges are on as instances of the
hearing officer’s bias.18 However, they do not bother to tell us what those pages show —
i.e., what questions were asked or what objections were made. A fortiori, they make no
effort to show that the hearing officer’s rulings were erroneous.
They were not. The “vague” question was vague, and the witness did not
understand it. Anyway, she ultimately explained that, in her view, the judgments were
past due as soon as they were entered. The “asked and answered” questions had been
asked and answered. And again, counsel did get the information. The “legal conclusion”
18 In support of this point, the contractors also cite pages 201-203 of the
reporter’s transcript of the hearing (i.e., pages 1261-1263 of the administrative record).
On those pages, however, the hearing officer did not sustain any objections or otherwise
restrict the cross-examination.
33
question called for a legal conclusion as to whether sending the forms to Associated in
connection with the last two projects constituted “corrective action.”
In any event, “‘a trial court’s . . . rulings against a party — even when erroneous
— do not establish a charge of judicial bias, especially when they are subject to review.’
[Citation.]” (People v. Farley (2009) 46 Cal.4th 1053, 1110.)
D. Inability to Call the Labor Commissioner.
1. Additional factual background.
The contractors served a notice to appear (Gov. Code, § 11450.50) on then-Labor
Commissioner Julie Su. The Division objected to the notice to appear; it argued that the
contractors had not shown good cause to depose an agency head. It does not appear that
the contractors made any further effort to compel the Commissioner’s appearance.
2. Discussion.
The contractors complain about their inability to call the Labor Commissioner,
supposedly to prove that she was biased.
They forfeited this argument by failing to raise it before the hearing officer. (See
Lewis v. Superior Court (2017) 3 Cal.5th 561, 578.) When the Division refused to
produce the Labor Commissioner, the contractors simply dropped the matter.
They further forfeited this argument by failing to raise it in the trial court. (See
Lewis v. Superior Court, supra, 3 Cal.5th at p. 578.) They did not mention it in their
petition, in their opening brief, in their reply brief, or at the hearing.
34
Finally, they do not discuss whether they were actually entitled to call the Labor
Commissioner; they do not mention what the Division’s actual objections were. Much as
the Division argued below, “a busy public official should not be required to give
evidence in his or her official capacity in the absence of ‘compelling reasons.’”
(Deukmejian v. Superior Court (1983) 143 Cal.App.3d 632, 633.) As the contractors
never raised the issue below, they never showed any compelling reasons to require her to
appear.
Belatedly, they argue that she could have testified about (1) why the Division
stepped up its enforcement of form 140 and 142 violations when she took office, and (2)
what her relationship was to the Center or to “the labor union.”19 However, there was no
evidence that the Division did step up enforcement,20 and there was no evidence that she
did have any such relationship. Thus, even now, the contractors have not shown any
compelling reason to call the Labor Commissioner.
E. The Merits of the Case.
The contractors argue that the hearing officer must have been biased because
“[t]he basis for debarment is without merit.” (Bolding omitted.) In part V, ante, we held
that the debarment order is supported by sufficient evidence. In any event, we reiterate,
19 As the contractors use the word “union” loosely, it is not clear whether this
means Associated, the laborers union, or some other organization.
20 The contractors state, “[T]he D[ivision] did not commence enforcement of
apprenticeship requirements until late 2013.” (Italics omitted.) The cited portion of the
record does not support this.
35
the mere fact that a ruling is erroneous is insufficient to establish bias. (People v. Farley,
supra, 46 Cal.4th at p. 1110.)
IX
REQUEST TO REOPEN
The contractors contend — sporadically, but throughout their brief — that the
hearing officer erred by denying their request to reopen.
A. Additional Factual and Procedural Background.
The hearing was held on September 6-7, 2018.
On October 25, 2019 — over a year later — the contractors filed a “request to
reopen.” (Capitalization altered.) In it, they asserted that on July 31, 2019, they had
taken the deposition of Pierre Weakley, a former representative of the Center.21
Allegedly, Weakley had testified that the Center “target[ed]” certain non-union
contractors, including them. It had submitted bid protests against them, accompanied by
evidence of multiple violations of apprenticeship requirements. Weakley admitted that
he wanted to stop the contractors from getting the bids.
Weakley allegedly also testified that he asked the Division to start debarment
proceedings against the contractors. Anderson had responded that the Division “wanted
to wait until she finished up some pending cases.” The contractors took this to mean the
penalty assessment proceedings against them.
21 The contractors describe Weakly as “a senior investigator” for the Center,
The record does not support this. They also describe him as a “lobbyist.” Again, the
record does not support this.
36
According to the contractors, Weakley had “a direct line of communication” with
Anderson.22 They concluded that Weakley’s deposition showed “a coordinated effort
over a considerable period of time by Mr. Weakley and individuals at the [Division]
including most notably Kari Anderson to develop multiple claims of apprenticeship
violations against [the contractors] with the ultimate goal of debarment.”
None of this was asserted under oath. None of it was supported with excerpts
from the deposition. A number of emails and other documents were attached to the
request, but they were not authenticated.
One email indicated that in 2017, the Center was “monitor[ing]” four contractors,
including GRFCO.
Other emails indicated that, in 2018 and 2019, the Center submitted or helped
others to submit bid protests against GRFCO.
One document was entitled “Case Summary 2017-2018.” It listed 61 cases against
contractors that the Center had “sent” (inferably to the Division). It included one case
against GRFCO. (Capitalization altered.)
The last document was entitled “CCC-DLSE Results (2019).” (Capitalization
altered.) It listed 30 “assessments issued” against various contractors, including three
against GRFCO. (Capitalization altered.)23
22 It is not clear that this means any more than that he had her phone number.
23 The contractors call this a “target list” or “scoreboard.” They claim the
Center created it “to keep track and tally assessments against non-union contractors to
achieve the labor union’s goal to eliminate the nonunion competition via debarment.”
[footnote continued on next page]
37
As far as the record shows, the hearing officer never ruled on the request to
reopen. On November 19, 2019, she issued her statement of decision.
B. Discussion.
Once again, the contractors give short shrift to the trial court’s stated reasons for
rejecting this contention. It said:
“Petitioners cite no authority which required the Hearing Officer to reopen a
hearing more than a year after the record was closed. (See . . . 8 CCR § 16801(a)(2)(I).)
Moreover, in the context of a civil action, a court does not abuse its discretion when its
refuses to reopen a case for new evidence that will not produce a different result.
[Citation.] The evidence upon which Petitioners made their request attacks the
D[ivision]’s motive in bringing charges against Petitioners, and in that regard, it is not
relevant to any alleged bias or whether substantial evidence supported the Hearing
Officer’s Decision. Nor do Petitioners argue — let alone provide evidence — that they
acted diligently. (See 2 Wilkin, Cal. Procedure (5th ed. 2008) Trial, § 166 [motion to
reopen trial must be supported by a showing of good cause and due diligence].)”
“Petitioners’ arguments are not so much a claim of bias as a complaint regarding the
D[ivision]’s motive . . . . An improper motive of the agency bringing the charges,
however, is not particularly relevant so long as there are sufficient facts introduced at the
However, it does not show that the contractors listed were either (1) nonunion or (2)
debarred. It does not even conclusively show (although it may be inferable) that it was
the Center that reported these contractors to the Division. On its face, it appears to be
merely a list of contractors who violated the law and were penalized.
38
hearing to support the decision. (See, e.g., Pomona Valley Hospital Medical Center v.
Superior Court (1997) 55 Cal.App.4th 93, 107.)”
Even now, the contractors do not cite any authority allowing the hearing officer to
reopen the hearing. In a debarment proceeding, “[a]t the conclusion of the hearing the
Hearing Officer may take the matter under submission or allow the introduction of post
hearing briefs.” (Cal. Code Regs., tit. 8, § 16801(a)(2)(I).) This appears to leave no
room for reopening. “[A] trial court judgment is ordinarily presumed to be correct and
the burden is on an appellant to demonstrate . . . that the trial court committed an error
. . . . [Citations.]” (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609.) Because the
contractors have not shown that the hearing officer had authority to reopen, in the face of
a regulation suggesting she did not, we must presume she did not.
Likewise, the contractors do not claim that they acted diligently. The request was
filed more than 13 months after the hearing. It was based on the deposition of Weakley,
taken on July 31, 2019, yet the contractors did not move to reopen until October 25,
2019, some three months later. The trial court could reasonably conclude that this was
not diligent.
We also note that the request to reopen was not supported by a declaration.
Weakley’s deposition was not attached. The documents that were attached were not
authenticated. The request consisted entirely of counsel’s characterizations of what
Weakley had allegedly said and of the documents. Evidence at the hearing, however, had
to be under oath. (Cal. Code Regs., tit. 8, § 16801(a)(2)(F).) While hearsay was
39
admissible (Cal. Code Regs., tit. 8, § 16801(a)(2)(D)), someone had to testify that the
hearsay was said. “It is axiomatic that the unsworn statements of counsel are not
evidence. [Citations.]” (In re Zeth S. (2003) 31 Cal.4th 396, 413, fn. 11.) In sum, there
was no evidence supporting the request to reopen. The contractors calling the request
“direct evidence” some 12 times does not make it such.
Last but not least, even assuming everything in the request to reopen was true, it
did not show any improper bias, for two reasons.
First, it showed that Weakley and the Center were motivated by pro-union bias,
but not that Anderson or the Division was.24 For example, it alleged that there was a
“coordinated effort” by Weakley and Anderson “to develop multiple claims of
apprenticeship violations against [the contractors] with the ultimate goal of debarment.”
“[T]he D[ivision] and, in particular, Kari Anderson is using the [Center]’s targeting effort
to facilitate its disbarment effort.” For all this shows, Anderson’s only motivation was
entirely proper — to identify, penalize, and, when appropriate, debar violators.
Second, it did not show that the hearing officer was motivated by pro-union bias.
The trial court cited a case on point, Pomona Valley Hospital Medical Center v. Superior
24 The contractors claim the Division’s respondent’s brief makes the
“shocking revelation” that personnel of the Center “were paid investigators or employees
of the D[ivision].” This is not supported by the cited portions of the respondent’s brief
nor by any other portion. We remind the contractors’ counsel of her duty of candor (see
also fns.4, 11, 17, 18, 20, 21, ante). (Rules Prof. Conduct, rule 3.3(a).)
40
Court, supra, 55 Cal.App.4th 93 (Pomona).25 In Pomona, Dr. Knudsen, the head of a
hospital’s medical staff, suspended Dr. Bressman, a member of that medical staff. After
a further investigation, by a committee that included Knudsen, the hospital refused to
reappoint Bressman. (Id. at pp. 96, 99.) Bressman requested review by the hospital’s
Judicial Review Committee (JRC); it upheld the termination. (Id. at p. 97.) In
subsequent administrative and judicial proceedings, Bressman maintained that he had
been denied a fair administrative hearing because Knudsen was a competitor and had
“fostered” the charges so he could take over Bressman’s practice. (Id. at pp. 97-98.)
The appellate court held that Knudsen’s motive was irrelevant to whether
Bressman received a fair administrative hearing. (Pomona, supra, 55 Cal.App.4th at
pp. 106-107.) “‘[I]t is the bias of the tribunal deciding a case, not the bias of the person
instituting the proceeding that is important.’ [Citation.]” (Id. at p. 107.) “Although
Knudsen suspended Bressman and was a member of the committee which recommended
that Bressman’s reappointment application be denied, Knudsen was not a hearing officer,
a member of the JRC or a member of the appeal board of Pomona Valley’s board of
directors. Consequently, evidence of Knudsen’s motive in initiating Bressman’s
suspension, and his subsequent actions with respect to the denial of Bressman’s
reappointment application [are] not relevant to the issue of whether Bressman had a fair
administrative hearing. [Citations.]” (Ibid., fn. omitted; accord, Dixon v. State Bar
25 This was a neat bit of research on its part. The Division had not cited
Pomona.
41
(1982) 32 Cal.3d 728, 737; Citizens Capital Corp. v. Cathcart (1982) 136 Cal.App.3d
793, 799; Cole v. Los Angeles Community College Dist. (1977) 68 Cal.App.3d 785, 792.)
Here, then, the Division’s motive was irrelevant.
The contractors argue that evidence of cooperation between the Center and the
Division was relevant for other purposes. They did not raise these arguments in the
request to reopen or in the trial court. Therefore, they have forfeited them.
In any event, these arguments lack merit.
First, the contractors assert that Weakley and Anderson had “improper ex parte
communications.” Anderson was not a tribunal. She was an investigator. Investigators
are allowed to talk to an accuser in the absence of the accused. In any event, this would
not taint the hearing officer’s decision.
Second, they claim that “calls, emails, and meetings between Weakley, [the
Division’s counsel,] and Anderson were illegal” under the Ralph M. Brown Act (Brown
Act). (Gov. Code, § 54950 et seq.) The Brown Act did not apply because the Division
is not a “local agency” and because neither the Division’s counsel nor Anderson was a
member of the Division’s “governing body.” (See Gov. Code, §§ 54952, 54952.2.) And
again, this would not taint the hearing officer’s decision.
Third, they suggest that Anderson “use[d] . . . public resources for personal or
political purposes” in violation of Government Code section 8314. Again, however, the
request to reopen did not so much as allege that Anderson had a pro-union bias. We also
note that Government Code section 8314, subdivision (b)(4) defines “use” as “a use of
42
public resources which is substantial enough to result in a gain or advantage to the user or
a loss to the state or any local agency for which a monetary value may be estimated.”
Even assuming Anderson had a pro-union bias, she had no gain, and the Division had no
loss, “for which a monetary value may be estimated.” And yet again, this would not taint
the hearing officer’s decision.
For all these reasons, the hearing officer could properly refuse to reopen the
hearing.
X
DISPOSITION
The judgment is affirmed. The Division is awarded costs on appeal against the
contractors.
RAMIREZ
P. J.
We concur:
McKINSTER
J.
MILLER
J.
43
Filed 4/3/23
CERTIFIED FOR PARTIAL PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
GRFCO, INC. et al.,
Plaintiffs and Appellants,
v. E076823
THE SUPERIOR COURT OF (Super.Ct.No. RIC l906126)
RIVERSIDE COUNTY,
Defendant and Respondent; ORDER CERTIFYING OPINION
FOR PARTIAL PUBLICATION
DEPARTMENT OF INDUSTRIAL
RELATIONS, DIVISION OF LABOR
STANDARDS ENFORCEMENT,
Real Party in Interest.
THE COURT
The opinion in the above-entitled matter, filed on March 10, 2023, was not
certified for publication in the Official Reports.
A request has been made, pursuant to California Rules of Court, rule 8.1120(a),
for publication of the opinion. It appears that part of the opinion does meet the standard
for publication as specified in California Rules of Court, rule 8.1105(c).
We therefore GRANT the request, in part, and ORDER that the opinion is
certified for publication, with the exception of parts VI, VII, VIII.C, VIII.E, and footnote
12.
CERTIFIED FOR PARTIAL PUBLICATION
RAMIREZ
P. J.
We concur:
McKINSTER
J.
MILLER
J.
1
See attached mailing list
MAILING LIST FOR CASE: E076823
GRFCO, Inc. et al. v. The Superior Court; Department of Industrial Relations, Division of Labor
Standards Enforcement
Superior Court Clerk
Riverside County
P.O. Box 431 - Appeals
Riverside, CA 92502
Kimberly Jo Manning
Manning Construction Law, Inc., APLC
4 Hutton Centre Drive, Suite 900
Santa Ana, CA 92707
Brandon Lloyd Fieldsted
Tredway Lumsdaine & Doyle LLP
2010 Main Street, Suite 1000
Irvine, CA 92614
Lance Arthur Grucela
Division of Labor Standards Enforcement
CA Dept. of Industrial Relations
7575 Metropolitan Drive, Suite 210
San Diego, CA 92108
2