(Alameda County Super. Ct. No. RG08384120), Honorable Steven A. Brick.
The opinion of the court was delivered by: Siggins, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Appellants, the Alameda County Joint Apprenticeship and Training Committee (JATC), the International Brotherhood of Electrical Worker's Local 595 Health and Welfare Trust, the International Brotherhood of Electrical Worker's Local 595 Northern California Chapter National Electrical Contractors Association Labor Management Committee and Edward W. Scott Electric Company, Inc., sued respondents Roadway Electrical Works, Inc. (Roadway) and MCM Construction, Inc. for unfair and unlawful competition under Business and Professions Code sections 17200 et seq. and interference with prospective economic advantage. Appellants' causes of action are all premised upon an allegation that respondents are using unauthorized workers in the rebuilding of the San Francisco-Oakland Bay Bridge to perform certain tasks that must be performed by certified electricians pursuant to Labor Code section 3099.*fn2 The trial court concluded that appellants' causes of action implicate the authority of the Director of the California Department of Industrial Relations (the Director) to determine the scope of work for electricians under the prevailing wage law, and that appellants were required to exhaust the administrative remedy provided in section 1773.4 before filing suit. Because appellants had not done so, respondents' demurrer to the complaint was sustained without leave to amend.
We reverse. In the published portion of this opinion, we hold that appellants' claims brought under section 3099 arise independently of the prevailing wage law and do not challenge the authority of the Director to determine the scope of work or the prevailing wage. Thus, there was no requirement that appellants exhaust their administrative remedy before filing suit. In the unpublished portion of the opinion, we decline to stay this action under the doctrine of primary jurisdiction.
Read together, sections 3099 and 3099.2 provide that electrical contractors holding a C-10 specialty license must use certified electricians, enrolled apprentice electricians, or properly supervised electrical trainees to do electrical work.*fn3 Respondent Roadway is a C-10 specialty electrical contractor.*fn4 In spite of its status as a specialty contractor, Roadway has used uncertified workers rather than certified electricians to perform electrical work on the Bay Bridge and other unspecified public works projects.*fn5 Roadway's use of uncertified workers in this way enabled it to unfairly submit a low bid and secure the work on the Bay Bridge project. Respondent MCM Construction, Inc. failed to adequately supervise Roadway's activities and acquiesced in Roadway's unlawful use of uncertified workers. Appellants suffered economic injury as a result of respondents' unlawful acts, and sought declaratory and injunctive relief, restitution, damages, and an accounting.
Respondents demurred on the basis that appellants' complaint was really a challenge to prevailing wage and scope of work determinations by the Director that were relied upon by the California Department of Transportation (Caltrans) and respondents in order to formulate bid documents and perform work on the Bay Bridge project. Thus, in order to contest respondents' practice of utilizing uncertified workers for electrical work, appellants should have first exhausted the administrative remedy provided under section 1773.4. Alternatively, respondents argued the court should abstain from deciding the controversy because the subject of appellants' complaint was within the Director's primary jurisdiction.
The trial court concluded that all of appellants' claims "borrow from the prevailing wage laws" and they were required to exhaust their administrative remedy by filing a petition with the Director under section 1773.4 within 20 days of the Caltrans call for bids on the Bay Bridge project. Because appellants did not exhaust, the court sustained the demurrer without leave to amend and dismissed the action. Appellants timely appealed.*fn6
We review an order sustaining a demurrer de novo to determine whether the factual allegations of the complaint are adequate to state a viable cause of action under any legal theory. (Coastside Fishing Club v. California Resources Agency (2008) 158 Cal.App.4th 1183, 1190; Cobb v. O'Connell, supra, 134 Cal.App.4th at p. 95.) "[W]e assume the truth of all facts properly pleaded in the complaint... as well as those facts that may fairly be implied or inferred from the express allegations." (Cobb, supra, at p. 95.) We "independently evaluate the complaint, construing it liberally, giving it a reasonable interpretation, if possible, and reading it as a whole, while viewing its parts in context." (Ibid.) While respondents suggest the trial court's order should be reviewed under an abuse of discretion standard, that standard applies when we review a trial court's determination to grant or deny leave to amend, an issue not presented in this appeal. (See Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081; Hendy v. Losse (1991) 54 Cal.3d 723, 742.)
B. The Prevailing Wage Law and Section 3099 et seq.
The prevailing wage law generally requires a contractor or subcontractor on a public works project to pay its workers the prevailing rate of wages as "set by the DIR Director for each locality where the work is to be performed for each craft, classification or type of worker needed to execute a public works contract, based on a statutorily mandated methodology." (Sheet Metal Workers Internat. Assn., Local Union No. 104 v. Rea (2007) 153 Cal.App.4th 1071, 1078 (Sheet Metal Workers); § 1770.) It was enacted to protect and benefit employees of contractors who work on projects paid for with public funds. (Lusardi Construction Co. v. Aubry (1992) 1 Cal.4th 976, 985.)
In setting the prevailing wage rates, section 1773 requires the Director to consider applicable wages established by collective bargaining agreements and federal public works projects in the locality. If those are not actually the prevailing rates in the area, the Director must "obtain and consider further data from the labor organizations and employers or employer associations...." (§ 1773.) Section 1773.2 requires a body awarding a public works contract to specify in its call for bids the prevailing rate for each craft, classification or type of ...