Purdy and Fitzpatrick v. State

• Decision Date: 01 July 1969
• Citation: 79 Cal.Rptr. 77,71 Cal.2d 566,456 P.2d 645
• Court: California Supreme Court
• Parties: , 456 P.2d 645, 2 Fair Empl.Prac.Cas. (BNA) 415, 38 A.L.R.3d 1194, 1 Empl. Prac. Dec. P 9987, 60 Lab.Cas. P 52,119 PURDY & FITZPATRICK, Plaintiff and Respondent, v. STATE of California et al., Defendants and Appellants. Peter J. MOTSHAGEN, Plaintiff and Respondent, v. STATE of California et al., Defendants and Appellants. L.A. 29602, L.A. 29603

Page 77

79 Cal.Rptr. 77

71 Cal.2d 566, 456 P.2d 645, 2 Fair Empl.Prac.Cas. (BNA) 415,

38 A.L.R.3d 1194, 1 Empl. Prac. Dec. P 9987,

60 Lab.Cas. P 52,119

PURDY & FITZPATRICK, Plaintiff and Respondent, v. STATE of California et al., Defendants and Appellants.

Peter J. MOTSHAGEN, Plaintiff and Respondent, v. STATE of California et al., Defendants and Appellants.

L.A. 29602, L.A. 29603.

July 1, 1969.

Marilyn Shinderman, Gerald Friedman, Arthur Stahl, Lelia H. Jabin, Los Angeles, Thomas C. Lynch, Atty. Gen., and Edward M. Belasco, Deputy Atty. Gen., for defendants and appellants.

Hillyer & Irwin and Ronald R. Hrusoff, San Diego, for plaintiffs and respondents.

Hill, Farrer & Burrill, Carl M. Gould, Stanley E. Tobin, Robert P. Hess, Richman, Garrett & Ansell and Lionel Richman, Los Angeles, as amici curiae on behalf of plaintiffs and respondents.

TOBRINER, Justice.

These cases involve a challenge to Labor Code section 1850, which basically prohibits the employment of aliens on public works. ¹ Plaintiffs, contractors on public works, brought actions to declare section 1850 unconstitutional or otherwise invalid and to recover certain penalties paid for alleged violations of the section. The trial court, without opinion, granted plaintiffs' motions for summary judgment and awarded damages in the amount of the penalties assessed for violation of section 1850, plus interest and costs.

Defendant Division of Labor Law Enforcement of the State Department of Industrial Relations appeals from the summary judgments and urges that we reverse them and sustain the validity of Labor Code section 1850. Defendant Treasurer of the State appeals on the sole ground that Purdy & Fitzpatrick's complaint failed to state a cause of action for damages against her office. ²

We have concluded: (1) that section 1850 encroaches upon the congressional scheme for immigration and naturalization; that section 1850 interferes with the operation of the extensive labor controls provisions of the Immigration and Nationality Act of 1952, as amended, 8 U.S.C. section 1101 et seq.; (2) that section 1850 offends the equal protection clause of the Fourteenth Amendment to the United States Constitution. Accordingly, we affirm the judgments to the extent that they constitute a declaration of the invalidity of Labor Code section 1850 and related sections.

We further hold: (3) that plaintiffs' exclusive remedy for the recovery of penalties consists of an action under Labor Code sections 1731--1733 against the awarding bodies of their respective contracts. Accordingly, we reverse the judgments to the extent that they purport to award plaintiffs recovery in damages against the Division of Labor Law Enforcement and the State Treasurer. To the extent that the trial court awarded plaintiff Motshagen recovery in damages against the Division of Highways of the State Department of Public Works, we affirm that judgment.

Plaintiff Peter J. Motshagen, a contractor doing business under the firm name of D & M Sprinkler Co., undertook to perform landscaping for the Division of Highways of the State Department of Public Works on a state highway in San Diego County. The Division of Highways withheld $2,710 from the final payment under Motshagen's contract because of 271 alleged violations ³ of Labor Code section 1850. On August 17, 1967, plaintiff Motshagen sued the Division of Highways in the municipal court for breach of contract pursuant to Labor Code sections 1731--1733, seeking a return of the penalty assessed. The Division of Highways answered and joined issue over the lawfulness of the penalty assessment.

On January 18, 1968, plaintiff Motshagen moved in the municipal court for leave to file an amended complaint seeking additional relief in the form of a declaration that Labor Code section 1850 was unconstitutional or otherwise invalid. Motshagen simultaneously moved for transfer of the action to the superior court. On February 13, 1968, the municipal court granted plaintiff Motshagen's motions. In the superior court, Motshagen filed an amended complaint for damages and declaratory relief adding new parties defendant, namely the Division of Labor Law Enforcement of the State Department of Industrial Relations, and Does I through X. ⁴ Motshagen filed his amended complaint jointly with two additional plaintiffs, namely Purdy & Fitzpatrick (hereinafter referred to as Purdy), a corporation, and Hilario Torres, an alien employee.

Purdy, a landscape contractor, undertook to perform certain construction for the San Diego Unified Port District on a public park known as the Spanish Landing project in San Diego. Upon a determinaton of the Division of Labor Law enforcement that Purdy had committed 228 violations of Labor Code section 1850, on October 23, 1967, Purdy paid a penalty or $2,280 under protest. ⁵ In the joint complaint Purdy sought to recover the penalty assessed and to obtain a declaration that Labor Code section 1850 was unconstitutional or otherwise invalid. Hilario Torres had worked as an employee for Purdy on the Spanish Landing project; he is a citizen of the Republic of Mexico but was legally admitted into the United States as an immigrant in 1958. On March 20, 1961, Torres filed a declaration of intention of becoming a United States citizen. After the Division of Labor Law Enforcement determined that Purdy had violated Labor Code section 1850, Purdy discharged Torres and other aliens employed on the Spanish Landing project. In the joint complaint Torres sought a declaration that Labor Code section 1850 was unconstitutional.

Just as plaintiff Motshagen had done in his action, Purdy and Torres named the Division of Labor Law Enforcement as a party defendant. Labor Code section 95 charges the division with the duty to enforce certain provisions of the Labor Code, including section 1850. All three plaintiffs named additional defendants as 'Does I through X' and alleged an interest by each of these entities in the subject matter of the controversy. Of those defendants which the record discloses received a summons and copy of the joint complaint, the San Diego Unified Port District appeared and answered, but the State Treasurer failed to enter an appearance before the trial court.

Of the several causes of action recited in the joint complaint, we are concerned only with the fourth and seventh causes of action, upon which the trial court granted plaintiffs' summary judgment. Each of these causes of action seeks a declaration of the invalidity of Labor Code section 1850 and a return of the penalties illegally assessed thereunder. Defendant Division of Labor Law Enforcement demurred to these causes of action, but the trial court overruled the demurrer. The Division of Labor Law Enforcement thereupon answered and put in issue all of the averments of the complaint going to the constitutionality and validity of Labor Code section 1850. The Division of Highways did not file an answer to plaintiff Motshagen's amended complaint and thus chose to stand on its original answer filed in the municipal court.

Pursuant to Code of Civil Procedure section 437c plaintiff Motshagen moved that the trial court strike the answers of the Division of Highways and the Division of Labor Law Enforcement and that the court enter a summary judgment on the seventh cause of action against these defendants. Plaintiff Purdy moved that the trial court strike the answer of the Division of Labor Law Enforcement and that the court enter summary judgment on the third cause of action against this defendant. On June 13, 1968, the trial court granted these motions without opinion. On June 27, 1968, the trial court awarded plaintiff Motshagen judgment in the sum of $2,710, representing the penalty assessed plus costs and pre-judgment interest, against defendants Division of Labor Law Enforcement and Division of Highways. On that date, plaintiff Purdy sought and obtained permission to amend its complaint to show the true name of defendant Doe I as the Treasurer of the State of California. On the same day, the trial court awarded judgment in the sum of $2,454.51, representing the penalty assessed plus costs and pre-judgment interest, against defendants Division of Labor Law Enforcement and the State Treasurer. The court entered the judgment against the Treasurer by default.

Defendant Division of Labor Law Enforcement appeals from the judgments favoring Motshagen and Purdy. The State Treasurer appeals from the default judgment favoring Purdy. The consolidated cases would normally have been heard on appeal by the Court of Appeal, Fourth Appellate District. Because of the great importance of the issue involved and because of the immediate statewide significance of a decision in these cases, we transferred the pending causes to this court upon application of the Division of Labor Law Enforcement.

The parties to this appeal are: Motshagen and Purdy (hereinafter referred to as plaintiffs), the Division of Labor Law Enforcement (hereinafter referred to as defendant), and the State Treasurer. In seeking to uphold the trial court's decision in this case, the plaintiffs are joined by the National Electrical Contractors Association and the Southern California District Council of Laborers as amici curiae.

1. Labor Code section 1850 encroaches upon the congressional scheme for immigration and naturalization.

Congress possesses the exclusive right to regulate immigration and naturalization. (Fong Yue Ting v. United States (1893) 149 U.S. 698, 13 S.Ct. 1016, 37 L.Ed. 905; U.S.Const., art. I, § 8, cl. 4.) ⁶ State laws which substantially encroach upon the exercise of this power cannot stand. ⁷

Courts have invalidated three types of state laws as infringements upon the competence of Congress to act in this area: (1) A state may not attempt to regulate or control immigration as such. (Henderson v. Mayor of City of New York, supra, 92 U.S. 259, 23 L.Ed. 543.) (2) A state law which burdens the...