Williams v. Snsands Corp.

• Decision Date: 31 October 2007
• Docket Number: No. A113399.,A113399.
• Court: California Court of Appeals Court of Appeals
• Parties: Fred H. WILLIAMS, Plaintiff and Respondent, v. SNSANDS CORPORATION, Defendant and Appellant.

67 Cal.Rptr.3d 606

156 Cal.App.4th 742

Fred H. WILLIAMS, Plaintiff and Respondent, v. SNSANDS CORPORATION, Defendant and Appellant.

No. A113399.

Court of Appeal, First District, Division 5.

October 31, 2007.

McCurdy & Ku, Richmond, Henry Y. Ku, for Plaintiff and Respondent.

Tommy A. Conner, for Defendant and Appellant.

JONES, P.J.

The California Prevailing Wage Law mandates the payment of prevailing wages to workers employed in the execution of a contract for public works. (Lab.Code, § 1771.)¹ Plaintiff and respondent Fred H. Williams was an employee truck driver for defendant and appellant SnSands Corporation, doing business as S&S Trucking (hereafter S&S Trucking), who sought unpaid wages in this action. In the first phase of a bifurcated court trial, the parties presented to the court certain stipulated factual scenarios, involving the on-hauling of materials to, and the off-hauling of materials from, a public works construction project, and sought a determination of whether S&S Trucking's truck drivers were entitled to prevailing wages in each circumstance. In a second phase, the trial court applied the phase one conclusions and awarded Williams $76,853.27 for unpaid wages.

S&S Trucking contends the trial court erred in concluding that its truck driver employees were entitled to prevailing wages under the prevailing wage law for hauling building materials from public works construction sites to nonpublic works project sites. It also contends the amount of the court's award is not supported by the evidence.

BACKGROUND

Parties

S&S Trucking is engaged in both the trucking business and the materials supply business. The materials bought and sold include rock and sand. It has a substantial inventory of heavy equipment that includes tractors, trailers, loaders, bulldozers, power screens, and dump trucks. This equipment is used in the purchase, sale, and hauling of materials for construction projects, including rock, sand, gravel, dirt, and related materials. S&S Trucking sells these materials to the general public. It also has two recycling facilities where it receives, stores, separates and sells the aforementioned materials. In addition to construction materials, S&S Trucking hauls and disposes i;rash and other refuse to and from jobsites.

There are three primary means by which S&S Trucking obtains jobs. (1) It "hard bid[s]" on a project. (2) A contractor or customer telephones for an S&S Trucking truck to be dispatched to a specific location to pick up a particular load and deliver that load to another specific location. (3) Another trucking company or trucking broker requests the use of an S&S Trucking truck.

Williams began working for S&S Trucking as a truck driver in July 1999. His duties included hauling building materials to and from public works projects.

Labor Code

California's prevailing wage law provides that workers employed by contractors or subcontractors "in i;he execution of any contract for public work are deemed to be employed upon public work." (§ 1772.) Workers employed on public works shall be paid at least the general prevailing rate for work of a similar character in the locality in which the public work is performed. (§ 1771.) The contractor to whom a public works contract is awarded, and any subcontractor thereunder, shall not pay less than the specified prevailing rate of wages to all workers employed in the execution of the contract. (§ 1774.)

Complaint and Defense

The gravamen of Williams's second amended, and operative, complaint was that the work he performed for S&S Trucking was either work directly resulting from a public works contract or performed indirectly in the execution of a public works contract, and that S&S Trucking failed to pay him the prevailing rate for this work, in violation of the prevailing wage law.

The crux of S&S Trucking's defense was that when it was hired or dispatched to deliver materials to a public works construction site ("on-hauling") or to take away materials from a public works construction site ("off-hauling"), it was not a subcontractor to the construction project's general contractor, and its workers were therefore not employed in the execution of the public works contract.

Phase One Trial

In phase one of the trial, the parties submitted a stipulated statement of facts to the court and requested it to determine as a matter of law whether prevailing wages were due in four factual circumstances:

A. On-haul of materials purchased from an open-to-the-public vendor of such materials.

S&S Trucking dispatches one or more trucks driven by its employee(s) to a public works project for delivery of rock, soil or other materials to be used in the construction of the project. S&S Trucking purchases the specified materials from a vendor of such materials who is open to the public for sale of such materials, delivers them to the jobsite, and deposits them at the jobsite as directed by one or more employees of the entity that hired S&S Trucking's services. After unloading the materials, the driver either leaves to acquire additional materials for the same project or is dispatched to another project.

B. On-haul of materials owned by S&S Trucking and available for sale to the public.

S&S Trucking dispatches one or more trucks driven by its employees to a public works project for delivery of rock, soil or other materials to be used in the construction of the project. S&S Trucking owns the specified materials, and offers them for sale to the public. A contractor or subcontractor purchases the materials from S&S Trucking and hires S&S Trucking to deliver them to a public works jobsite. S&S Trucking dispatches one of its drivers to pick up one or more loads of the subject materials for delivery to the jobsite. The driver does so and deposits the materials at the jobsite as directed by one or more employees of the entity that hired S&S Trucking's services. After unloading the materials, the driver either leaves to acquire additional materials for the same project or is dispatched to another project.

C. Off-haul of soil, concrete, gravel, rock or sand (or a mixture of these materials) from a public works project for resale.

S&S Trucking dispatches one or more of its trucks driven by its employees to a public works project to pick up soil, concrete, gravel, rock or sand (or a mixture of these materials) to deliver them to one or more different sites to be used as fill or for another purpose specified by the contractor or owner of the other site(s). The driver picks up the materials as directed, delivers them to another site, and deposits them at that other site as directed by one or more employees of the receiving entity. After unloading the materials, the driver either leaves to acquire additional materials from the same public works project, or is dispatched to another project.

D. Off-haul of soil, concrete, gravel, rock or sand (or a mixture of these materials) from a public works project for disposal.

S&S dispatches one or more trucks driven by an S&S employee(s) to a public works project to pick up soil, concrete, gravel, rock or sand (or a mixture of these materials) to deliver to one or more disposal sites not set up for the particular public works project. The driver picks up the materials as directed, delivers them to the disposal site or sites, and deposits the materials at the disposal site as directed by one or more employees of the receiving entity. After unloading the materials, the driver either leaves to acquire additional materials from the same public works project or is dispatched to another project.

Phase One Statement of Decision

Following trial on the four stipulated factual scenarios, the court found: "(1) S&S [Trucking] is in the business of selling supplies to the general public; and is not a business established specifically to furnish materials for specific public works contracts; (2) The sources of materials maintained by S&S [Trucking] are not established specifically for particular public contracts; (3) The sources of materials maintained by S&S [Trucking] are not located at the site of the public works projects; (4) S&S [Trucking] qualifies as a materialman/material supplier for purposes of the exemption recognized in [O.G. Sansone Co. v. Department of Transportation (1976) 55 Cal.App.3d 434, 127 Cal. Rptr. 799]."

The statement then addressed each factual circumstance. As to fact patterns A and B, the "on-hauling" scenarios, the court found that S&S Trucking drivers were not entitled to prevailing wages.

As to fact patterns C and D, the "off-hauling" scenarios, the court found that drivers were entitled to prevailing wages.²

Phase Two Trial

In the second phase, the issues were whether Williams had in fact off-hauled materials from public works projects, and if so, the amount of his unpaid wages.

Evidence of Williams's public works off-haul jobs was in the form of approximately 400 "truck tags." A truck tag is filled out and signed by the driver and shows the shipper of the material, the point of origin and destination of the haul, the time the material was loaded and unloaded, and the net work time. The tags were either "undisputed," meaning there was no dispute that the tag represented a public works hauling job, or "disputed," meaning the parties disagreed as to whether the tags represented public or private works jobs.

Phase Two Statement of Decision

As to the disputed truck tags, the trial court found that S&S Trucking failed to meet its burden of proving that 21 specifically enumerated disputed tags did not involve hauling from a public works site. It therefore found i:hat Williams was entitled to prevailing wages for the hours represented by these disputed tags, as well as for the undisputed tags, plus prejudgment interest thereon.

DISCUSSION

I. Prevailing Wages for Off-Hauling

S&S Trucking contends its drivers are not entitled to prevailing wages for hauling materials away from a public...