The opinion
Filed 10/23/25; certified for publication 11/18/25 (order attached)
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
ANTON’S SERVICES INC., D084833
Appellant,
v. (Super. Ct. No. 37-2023-
00021117-CU-WM-CTL)
KATRINA S. HAGEN, as Director, etc.
et al.,
Respondents;
DIVISION OF LABOR STANDARDS
ENFORCEMENT,
Real Party in Interest and
Respondent.
APPEAL from a judgment of the Superior Court of San Diego County,
Wendy M. Behan, Judge. Affirmed.
Silver Law Firm and Zvi Silver for Appellant.
No appearance for Respondents.
Lance A. Grucela for Real Party in Interest and Respondent.
Plaintiff and appellant Anton’s Services Inc. allegedly violated state
labor statutes and regulations applicable to public works by misclassifying
and underpaying workers and failing to comply with apprenticeship
requirements. Real party in interest and respondent Division of Labor
Standards Enforcement (DLSE) cited Anton’s for those violations and
assessed penalties. Anton’s administrative appeal was unsuccessful, and it
thereafter filed a petition for writ of administrative mandamus under Code of
Civil Procedure section 1094.5, which the superior court denied.
On appeal, Anton’s contends the superior court erroneously upheld
administrative findings that: (1) Anton’s misclassified workers on two public
works projects; (2) Anton’s is liable for penalties for failing to pay these
workers the prevailing wage; (3) Anton’s is liable for liquidated damages;
(4) Anton’s failed to comply with apprenticeship requirements; and
(5) Anton’s is liable for penalties for failing to comply with apprenticeship
requirements. Finding no error, we affirm.
BACKGROUND
A. Prevailing Wage Law
Under the Prevailing Wage Law, Labor Code1 sections 1720 through
1861, workers employed under a public works contract must generally be
paid “prevailing wages.” (§ 1771.) The prevailing wage is set by the Director
of Industrial Relations (Director) and depends on worker classification and
location. (See §§ 1770, 1773, 1773.9.) The Director also creates worker
classifications, determining the scope of work for each. (See § 1773.5, subd.
(a); Cal. Code Regs., tit. 8, § 16303, subd. (a).) Contractors on public works
projects must pay workers the prevailing wage under the proper job
classification. (See § 1774.)
1 Undesignated statutory references are to the Labor Code.
2
In addition, before commencing work on a contract for public works,
every contractor must submit contract award information to an applicable
apprenticeship program that can supply apprentices to the project. (§ 1777.5,
subd. (e).) Unless an exemption applies, contractors must employ apprentices
to perform one hour of work for every five hours of work performed by
journeypersons in the applicable craft or trade. (§ 1777.5, subd. (i); Cal. Code
Regs., tit. 8, § 230.1, subd. (a).) If a contractor is “not already employing
sufficient registered apprentices” to meet this requirement, it “must request
the dispatch of required apprentices from” appropriate apprenticeship
committees “by giving the committee written notice of at least 72 hours
(excluding Saturdays, Sundays and holidays) before the date on which one or
more apprentices are required.” (Cal. Code Regs., tit. 8, § 230.1, subd. (a).)
There is thus both an initial notice requirement and a subsequent
requirement that contractors request dispatch of apprentices if unable to
meet the required ratio.
The DLSE is charged with enforcing these prevailing wage and
apprenticeship requirements. (Lab. Code, § 1741.) The DLSE issues civil
wage and penalty assessments for violations of the Prevailing Wage Law.
(Ibid.) A party may challenge a civil wage and penalty assessment in a
hearing before the Director. (Lab. Code, § 1742.) A party can, in turn, seek
judicial review of the Director’s decision under Code of Civil Procedure
section 1094.5.
B. Factual Background
1. The Torrey Pines Road Project
In 2017, the City of San Diego (City) awarded Hazard Construction
Company (Hazard) a contract for road improvement and slope restoration
along Torrey Pines Road (the Torrey Pines Road Project). The contract
3
specified that California prevailing wage rates applied to the project. The
scope of work under the contract included: excavation of the slope to achieve
the required space for a sidewalk; removal of sloughing soil and debris from
the slope face; installation of permanent soil-nails wall; installation of new
sidewalk, retaining curb, and walls; installation of a pedestrian crossing with
street lighting and crosswalk systems; asphalt concrete overlay with striping
of buffered bike lanes; and installation of a flush stamped and painted
asphalt median.
Hazard contracted with Anton’s as a “Clearing/Demolition Constructor”
on the Torrey Pines Road Project. According to inspection reports, Anton’s
work included “clearing and grubbing” the slope. Generally, “[c]learing and
grubbing consists of methodically ‘scarifying’ or tilling the soil on a
construction site to remove vegetation, roots, and other undesirable
material.” (Moorefield Construction, Inc. v. Intervest-Mortgage Investment
Co. (2014) 230 Cal.App.4th 146, 150.) Anton’s brief indicates that its work
was consistent with this definition. Anton’s claims the clearing included
removal of a small palm tree, which it contends “was in a public utility
easement.”2
As the work continued, concerns arose that a Torrey pine tree might
fall if the slope became unstable. After consulting with the City, Anton’s
stabilized the tree with cables and belts and trimmed it back before
proceeding with additional clearing and grubbing.
Following an investigation, the DLSE issued a civil wage and penalty
assessment, concluding that Anton’s had failed to properly classify workers,
failed to pay prevailing wages, and had committed apprenticeship violations.
2 As discussed below, Anton’s improperly relies on documents not
submitted in the administrative proceedings.
4
From the start of its work at the Torrey Pines Road Project, Anton’s paid
workers the rates for “Tree Maintenance.” The scope of work for the “Tree
Maintenance (Laborer)” classification includes:
“2. tree maintenance, including trimming, pruning,
topping, tree/stump removal, grinding of stumps, root
pruning and root barrier installation; handling, piling,
hauling and chipping of brush and limbs; removal and
replacement of trees; The operation of all vehicles, tools and
equipment including but not limited to hand tools of any
type, chainsaws, pole saws, pruners, stump grinders for
trees, boom trucks, loaders and trucks for personnel,
material and equipment, debris removal and towing.
“3. This [classification] does not cover (a) any work of
any employee performing construction or landscape
construction work (including work incidental to
construction or post-construction maintenance during the
plant installation and establishment period) and (b) tree
trimmer utility line clearance work within the scope of
work in any pre-existing prevailing wage determinations
for Tree Trimmer (High Voltage Line Clearance) and Tree
Trimmer (Line Clearance), issued by the Director of
Industrial Relations.”
The DLSE determined Anton’s should have paid its workers the prevailing
wage under the “Laborer (Engineering Construction)” classification, a broad
category that includes:
“(2) Street and highway work, grading and paving,
excavation of earth and rock, including non-destructive
utility line location (hydrovac operations), grade
separations, elevated highways, viaducts, bridges,
abutments, retaining walls, subways, airport grading,
surfacing and drainage, electric transmission line and
conduit projects, underground communication and conduit
installation, fiberoptic installation, blowing, splicing,
testing and related work for telephone, T.V. or other
communication transmission through underground conduit,
water supply, water, development, reclamation, irrigation,
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draining and flood control projects, water mains, pipe lines,
sanitation and sewer projects, dams, aqueducts, canals,
reservoirs, intakes, channels, levees, dikes, revetments,
quarrying of breakwater or riprap stone, foundations, pile
driving, piers, locks, river and harbor projects,
breakwaters, jetties, dredging, tunnels. [¶] . . . [¶]
“(11) All work in connection with excavation for incidental
building and other construction including digging of
trenches, piers, foundations and holes; digging, lagging,
sheeting, cribbing and bracing of foundations, holes,
caissons, cofferdams, manning, setting and moving all
manually movable pumps. [¶] . . . [¶]
“(14) All work in the excavation, grading, preparation,
concreting, asphalt and mastic paving, paving, ramming,
curbing, flagging, traffic control by any method, and laying
of other stone materials, . . . and bridges. [¶] . . . [¶]
“(16) All work in connection with the cutting of streets and
ways for all purposes, including aligning by any method,
digging of trenches, manholes, etc., handling and conveying
of all materials for same; concrete of same; and the
backfilling, grading and resurfacing of same.”
Based on the misclassification of workers, the DLSE determined that Anton’s
owed additional wages and apprenticeship training fees.
The DLSE also found that Anton’s failed to submit contract award
information to applicable apprenticeship committees before starting work,
failed to request dispatch of apprentices from the applicable apprenticeship
committees, and did not employ apprentices in the required ratio. The Civil
Wage and Penalty Assessment for the Torrey Pines Road Project, which
totaled $36,626.30, included $22,526.30 in unpaid prevailing wages, $12,720
in penalties under section 1775 for failing to pay prevailing wages, and
$1,380.00 in penalties under section 1777.7 for apprenticeship violations. As
required by section 1727, subdivision (b), after the Civil Wage and Penalty
6
Assessment was issued, Hazard withheld $36,626.30 from Anton’s and
transmitted those funds to the City.
2. The Voltaire Street Project
Also in 2017, the City awarded Hazard a public works contract to
renovate an overpass on Voltaire Street in San Diego County (the Voltaire
Street Project). The scope of work included: removing and replacing existing
barrier rails and sidewalks; removing the existing raised median; repairing
the concrete bridge deck; reducing the number of through-lanes; removing
and replacing street lights; installing accessible curb ramps; and modifying
storm drain inlets on and immediately adjacent to the overpass. Hazard
contracted with Anton’s for “[r]emoval of bridge sidewalk, railing, and edge
concrete.” Anton’s performed work on the Voltaire Street Project between
February 1, 2018, and September 28, 2018. Anton’s claims that its work on
the Voltaire Street Project also included tree removal.
Following an investigation, the DLSE issued a Civil Wage and Penalty
Assessment for the Voltaire Street Project. As on the Torrey Pines Road
Project, DLSE found Anton’s had classified workers under “Tree
Maintenance” instead of “Laborer,” thus underpaying workers and failing to
pay appropriate apprenticeship fees. This Civil Wage and Penalty
Assessment totaled $10,653.88, including $1,653.88 in unpaid prevailing
wages and $9,000 in penalties under section 1775 for failing to pay prevailing
wages.
C. Administrative Proceedings
Anton’s challenged both Civil Wage and Penalty Assessments under
section 1742. The parties agreed to submit the matters to the Director for
decision on stipulated facts and documentary evidence. After considering the
7
parties’ submissions, the Director issued a decision affirming the
Assessments.
The Director first found that Anton’s had misclassified workers on both
projects. The Director found “the nature of work” for each project was
“construction work,” and noted that “the applicable scope of work for the Tree
Maintenance classification . . . specifically excluded coverage of construction
or landscape construction work, including work incidental to construction.”
The Director rejected Anton’s argument that the tree work on the
Torrey Pines Road Project was not incidental to construction “because it was
the subject of a [change order] that expanded the contract to include
additional work on the tree.” Rather, the Director found “the additional work
on the Torrey [p]ine tree was part of the construction project, because the
tree had to be trimmed before clearing work could continue on the soil nail
wall.”
Although Anton’s argued “that it ‘received no compensation for [its]
work [on the Voltaire Street Project] because the City determined this was
outside the original contract scope of work,’ ” the Director noted Anton’s had
not cited any “evidence to support this claim.” Similarly, although Anton’s
argued it could have properly classified its workers as “Tree Trimmer (High
Voltage Line Clearance)” at a lower rate of pay due to the presence of
utilities, the Director found “[n]either scope of work for either [p]roject
contains any reference to line clearance for communications lines or electric
power lines, nor is there evidence that Anton’s workers performed such line
clearance work.”
Next, the Director addressed the $120 per-day penalties imposed
under section 1775, subdivision (a). After noting it was Anton’s burden to
establish the penalty constituted an abuse of discretion (Cal. Code Regs.,
8
tit. 8, § 17250, subd. (c)), the Director concluded Anton had not provided any
“compelling or probative evidence establishing that the workers had not been
misclassified or underpaid,” and had not produced “evidence that [it] made
a good faith mistake, or that it promptly and voluntarily corrected its
misclassification error and the consequent failure to pay the correct
prevailing wage when these issues were brought to its attention.” In fact,
the Director found “Anton’s lacks any reasonable defense to worker
misclassification, which supports a finding that the violations were willful.”
The Director also found Anton’s liable for liquidated damages under
section 1742.1, subdivision (a), which provides that “[a]fter 60 days following
the service of a civil wage and penalty assessment,” a party “shall be liable
for liquidated damages in an amount equal to the wages, or portion thereof,
that still remain unpaid.” Section 1742.1, subdivision (b) provides, “there
shall be no liability for liquidated damages if the full amount of the
assessment or notice, including penalties, has been deposited with the
Department of Industrial Relations, within 60 days following service of the
assessment or notice, for the department to hold in escrow pending
administrative and judicial review.” The Director found Anton’s had neither
paid back wages nor deposited the full amount of either assessment with the
Department of Industrial Relations (Department), and thus was liable for
liquidated damages.
The Director upheld the DLSE’s finding that Anton’s failed to comply
with the apprenticeship requirements of section 1777.5 on the Torrey Pines
Road Project. The Director found, under section 1777.5, subdivision (e),
Anton’s was “required to submit contract award information to the [San
Diego Chapter of the Associated General Contractors of America Joint
Apprenticeship Committee (Apprenticeship Committee)] prior to the
9
commencement of work on the Torrey Pines Road Project.” Anton’s conceded
it did not submit contract award information to the Apprenticeship
Committee before starting work. The Director also found Anton’s had
violated section 1777.5 and related regulations by failing to request or employ
an adequate number of apprentices. (See § 1777.5, subd. (i); Cal. Code Regs.,
tit. 8, § 230.1, subd. (a).)
Finally, the Director upheld the DLSE’s imposition of penalties
under section 1777.7, subdivision (a)(1), which requires penalties if a
contractor “knowingly violate[s] Section 1777.5.” The Director found Anton’s
“ ‘knowingly violated’ the requirement of a 1:5 ratio of apprentice hours to
journeyperson hours because it employed insufficient Laborer apprentices,”
applying an “irrebuttable presumption that Anton’s knew or should have
known of the apprenticeship requirements of section 1777.5 applies because
Anton’s was issued prior assessments for apprenticeship violations and
because the contract for the Torrey Pines Road Project notified Anton’s of its
obligation to comply with prevailing wage requirements.” (See Cal. Code
Regs., tit. 8, § 231, subd. (h).)
D. Mandate Proceedings
Anton’s filed a petition for writ of mandate under Code of Civil
Procedure section 1094.5, seeking judicial review of the Director’s decision.
The trial court rejected Anton’s efforts to rely on extra-record evidence in
support of its petition. Applying the substantial evidence standard, the court
found that the administrative record and applicable law supported the
Director’s decision.
10
DISCUSSION
A. Standard and Scope of Review
Code of Civil Procedure section 1094.5 governs review of a decision by
the Director concerning a Civil Wage and Penalty Assessment. (See, e.g.,
Reliable Tree Experts v. Baker (2011) 200 Cal.App.4th 785, 790.) Where, as
here, the trial court has reviewed the Director’s decision under the
substantial evidence standard, this court also reviews the administrative
record as a whole for substantial evidence. (See Code Civ. Proc., § 1094.5,
subd. (c); Lab. Code, § 1742, subd. (c).) Under this standard, we do not
reweigh the evidence, and we resolve any conflicts in the evidence and
reasonable doubts about the decision in the Director’s favor. (See City of
Hesperia v. Lake Arrowhead Community Services Dist. (2019) 37 Cal.App.5th
734, 761.) The appellant has the burden of establishing that the Director’s
findings are not supported by substantial evidence in the administrative
record. (See Schutte & Koerting, Inc. v. Regional Water Quality Control Bd.
(2007) 158 Cal.App.4th 1373, 1384.)
Several of Anton’s arguments rely on documents outside the
administrative record. Evidence outside the administrative record is
generally not admissible in proceedings filed under Code of Civil Procedure
section 1094.5. (See, e.g., Western States Petroleum Assn. v. Superior Court
(1995) 9 Cal.4th 559, 578; Nightlife Partners v. City of Beverly Hills (2003)
108 Cal.App.4th 81, 89).) DLSE objected to Anton’s notice of lodgment of
extra-record material in the trial court. It appears Anton’s did not seek to
justify its reliance on this material and did not respond to the DLSE’s
objection. In its order, the trial court rejected Anton’s attempts to rely on
extra-record material.
11
Anton’s does not challenge the trial court’s exclusion of this evidence
and does not explain why this court should consider evidence not contained in
the administrative record. Anton’s has forfeited such arguments. (See, e.g.,
Asaro v. Maniscalco (2024) 103 Cal.App.5th 717, 728, fn. 4 (Asaro) [a party
forfeits arguments not briefed on appeal].) We thus limit our review to the
administrative record and will not consider arguments that rely on extra-
record evidence.
B. Misclassification
1. Torrey Pines Road Project Classification
Anton’s principally argues it properly classified workers on the Torrey
Pines Road Project because they performed work on a Torrey pine tree.
However, Anton’s does not dispute that the Torrey Pines Road Project was a
construction project. Anton’s was designated as a “Clearing/Demolition
Constructor.” (Italics added.) Anton’s actual work performed principally
consisted of “clearing and grubbing,” which is the removal of vegetation. As
Anton’s concedes, this work was necessary preparatory work for the slope
stabilization, and thus incidental to construction work. Anton’s work
stabilizing and trimming the Torrey pine tree was also incidental to the
broader construction project, as the tree only needed to be stabilized so the
slope work could proceed. The Tree Maintenance classification expressly
“does not cover . . . any work of any employee performing construction or
landscape construction work (including work incidental to construction or
post-construction maintenance during the plant installation and
establishment period).”
Anton’s argues, in several different ways, that its work on the Torrey
pine tree should be considered separate from, and not incidental to the
12
broader Torrey Pines Road Project. Anton’s cites no authority in support of
its various arguments. Nor do we find them persuasive.
Anton’s argues: (1) it holds an arborist license, was acting as an
arborist when working on the tree, and invoiced the services as “Arborist
Services”; (2) other work stopped while waiting for the tree to be stabilized;
and (3) the trunk of the tree was outside of the project area.3 None of
these factors undermine the conclusion that the work was “incidental” to
construction. (See, e.g., Cleveland National Forest Foundation v. County of
San Diego (2019) 37 Cal.App.5th 1021, 1051 [meaning of “incidental” may
“include the concept of an association or dependency on the primary use”];
Black’s Law Dictionary (12th ed. 2024) p. 908, col. 1 [“incidental” defined as
“Subordinate to something of greater importance; having a minor role”].)
Anton’s also claims the tree work was not part of the original scope of
work for the project. But the additional tree work only became necessary to
further the broader construction project, so remains incidental to that work.
Relatedly, Anton’s argues that because the work was performed pursuant to
a change order, it could have simply passed along costs to the City and made
additional profit, as it was entitled to five percent profit on the amount of
the change order. Whether or not this is true does not affect our analysis.
Regardless of motives, substantial evidence supports the finding that Anton’s
failed to properly classify its workers and thus underpaid them.
Separate from the Torrey pine work, Anton’s argues that its clearing
and grubbing involved removal of a “small palm tree” that should qualify as
Tree Maintenance work. This assertion and much of Anton’s related
3 Anton’s single record citation does not support its assertion that the
trunk of the tree was outside of the project area.
13
arguments rely on evidence outside of the record, which we will not
consider.4
2. Voltaire Street Project Classification
Anton’s also fails to demonstrate that the Director erred by finding
Anton’s misclassified workers on the Voltaire Street Project. The Voltaire
Street Project involved renovating an overpass, and Anton’s was contracted
to “[r]emov[e] [a] bridge sidewalk, railing, and edge concrete.” Anton’s fails to
cite any evidence in the administrative record supporting its claim that its
work on this project involved any tree maintenance or removal at all. Anton’s
provides no basis to assess the nature of the alleged tree-related work and
thus no grounds to conclude that the Director erred.
Relatedly, Anton’s has failed to support and thus forfeited other
arguments concerning the Voltaire Street Project, including that the work
“was outside the geographical area of the” Voltaire Street Project area and
thus, it was not subject to public works laws.5 Many of the statements
4 Anton’s also argues, in the “Summary of the Significant Facts”
section of its opening brief, that it erroneously claimed to have worked on the
Torrey Pines Road Project on April 16, 2018, in its certified payroll reports.
“ ‘Failure to provide proper headings forfeits issues that may be discussed in
the brief but are not clearly identified by a heading.’ ” (Bitner v. Department
of Corrections & Rehabilitation (2023) 87 Cal.App.5th 1048, 1065.) In any
case, Anton’s stipulated in the administrative proceedings that its “certified
payroll reports [citation] accurately reflect the hours worked by, and amounts
Anton’s paid to, its employees on both projects.”
5 We note that Anton’s did not make this argument in proceedings before
the Director, and in fact stipulated that the “work subject to the Assessments
was performed on public works and required the employment of apprentices
and the payment of prevailing wages under the California Prevailing Wage
Law . . . .”
14
Anton’s makes regarding the Voltaire Street Project in the “Summary of the
Significant Facts” section of its opening brief are not supported by any record
citations in violation of California Rules of Court, rule 8.204, subdivision
(a)(1)(C). (Ibid. [an appellate brief must “[s]upport any reference to a matter
in the record by a citation to the volume and page number of the record where
the matter appears”].) “We are not required to search the record to ascertain
whether it contains support for [Anton’s] contentions.” (Mansell v. Board of
Administration (1994) 30 Cal.App.4th 539, 545.) With one immaterial
exception,6 the limited evidence Anton’s cites in this portion of the brief is
outside of the administrative record, and (as discussed above) not cognizable
in these proceedings. In light of these deficiencies, we decline to further
address the merits of Anton’s arguments regarding the Voltaire Street
Project misclassification.
C. Penalties under Section 1775
Under section 1775, subdivision (a)(1), a subcontractor “shall . . . forfeit
not more than two hundred dollars ($200) for each calendar day . . . for each
worker paid less than the prevailing wage.”
“(A) The amount of the penalty shall be determined by the
Labor Commissioner based on consideration of both of the
following:
“(i) Whether the failure of the contractor or subcontractor
to pay the correct rate of per diem wages was a good faith
mistake and, if so, the error was promptly and voluntarily
corrected when brought to the attention of the contractor or
subcontractor.
6 Anton’s cites to the administrative record for the proposition that it
“started demolition work on the Voltaire Project on February 21, 2018.”
15
“(ii) Whether the contractor or subcontractor has a prior
record of failing to meet its prevailing wage obligations.”
(§ 1775, subd. (a)(2)(A).)
“[I]n reviewing the penalty imposed by an administrative body, . . . an
appellate court is [not] free to substitute its own discretion as to the matter.”
(Nightingale v. State Personnel Board (1972) 7 Cal.3d 507, 515.)
Anton’s suggests it should not be liable for penalties because it acted in
a good-faith belief that it was properly classifying its workers, citing its legal
arguments in this appeal as support. As we have discussed, Anton’s
arguments in this appeal are unsupported by either appropriate factual
citations, relevant legal authority, or both. We cannot agree that the
arguments presented demonstrate that the misclassification was a good-faith
mistake.
Anton’s also argues its good faith is evidenced by the fact that its
classification of workers was against its own interests, suggesting that it
would not have intentionally underpaid workers because it could have passed
along higher costs to the City and increased its own profit margin. Anton’s
adds that it properly classified and paid workers on portions of each project.
Anton’s ignores the countervailing evidence that bears directly on the
statutorily mandated considerations: Anton’s failure to “promptly and
voluntarily correct[]” its underpayment in connection with these projects and
a prior record of prevailing wage violations and penalties under section 1775.
In sum, Anton’s fails to show that the Director’s decision is not supported by
substantial evidence.
16
D. Liquidated Damages on the Torrey Pines Road Project
Anton’s argues the Director improperly imposed liquidated damages
under section 1742.1, which provides:
“(a) After 60 days following the service of a civil wage
and penalty assessment under Section 1741 or a notice of
withholding under subdivision (a) of Section 1771.6, the
affected contractor, subcontractor, and surety on a bond or
bonds issued to secure the payment of wages covered by
the assessment or notice shall be liable for liquidated
damages in an amount equal to the wages, or portion
thereof, that still remain unpaid. If the assessment or
notice subsequently is overturned or modified after
administrative or judicial review, liquidated damages
shall be payable only on the wages found to be due and
unpaid. Any liquidated damages shall be distributed to
the employee along with the unpaid wages. . . .
“(b) Notwithstanding subdivision (a), there shall be no
liability for liquidated damages if the full amount of the
assessment or notice, including penalties, has been
deposited with the Department of Industrial Relations,
within 60 days following service of the assessment or
notice, for the department to hold in escrow pending
administrative and judicial review. . . .”
It claims that, because Hazard withheld $36,626.30 from Anton’s and
transmitted those funds to the City under section 1727, subdivision (b), no
“wages . . . remain[ed] unpaid” for purposes of section 1742.1, subdivision (a).
Anton’s claims that “if the amount of the assessment is paid by anyone to any
proper governmental body,” a party cannot be liable for liquidated damages.
We do not agree.
Statutory interpretation is “a question of law that we review de novo.”
(Bruns v. E–Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 724.) “Our
fundamental task in interpreting a statute is to determine the Legislature’s
intent so as to effectuate the law’s purpose. We first examine the statutory
17
language, giving it a plain and commonsense meaning. We do not examine
that language in isolation, but in the context of the statutory framework as a
whole in order to determine its scope and purpose and to harmonize the
various parts of the enactment.” (Coalition of Concerned Communities, Inc. v.
City of Los Angeles (2004) 34 Cal.4th 733, 737.) “If the language is clear, [we]
must generally follow its plain meaning unless a literal interpretation would
result in absurd consequences the Legislature did not intend.” (Ibid.)7
Under a plain and commonsense meaning, withholding money due
under a contract is not the payment of “wages.” While Anton’s correctly notes
that section 1742.1, subdivision (a), does not explicitly direct the payment of
“wages” to any particular party, a “wage” is “[p]ayment for labor or services.”
(E.g., Black’s Law Dict. (12th ed. 2024) p. 1898, col. 1.) The phrase “wages
that still remain unpaid” makes clear that the money must be paid to the
workers who should have already received it.
This provision is not satisfied by the contractor withholding funds
from the responsible subcontractor under section 1727, subdivision (b),
which provides: “If the awarding body has not retained sufficient money
under the contract to satisfy a civil wage and penalty assessment based on a
subcontractor’s violations, the contractor shall, upon the request of the Labor
Commissioner, withhold sufficient money due the subcontractor under the
contract to satisfy the assessment and transfer the money to the awarding
body. These amounts shall not be disbursed by the awarding body until
receipt of a final order that is no longer subject to judicial review.” The funds
withheld from the subcontractor are not “paid” to anyone until after final
7 The DLSE seeks judicial notice of certain aspects of the legislative
history of section 1742.1. Finding the language clear, we need not rely on
these materials. The request is therefore denied.
18
review. Thus, they remain “unpaid.” Nothing in the language of section
1742.1 suggests that a subcontractor’s liability for liquidated damages can be
avoided by the contractor’s withholding of funds under section 1727,
subdivision (b). Section 1742.1 contains no reference to section 1727 and by
its terms specifies only one way to avoid liability for liquidated damages
other than paying the workers: depositing the full amount of the assessment
or notice, including penalties, with the Department.
Anton’s nonetheless claims its position is supported by the clause
specifying: “If the assessment or notice subsequently is overturned or
modified after administrative or judicial review, liquidated damages shall be
payable only on the wages found to be due and unpaid.” (§ 1742.1, subd. (a).)
Anton’s argues, “The unpaid wages that was [sic] overturned by the Court
were certainly not ‘paid to the workers,’ yet, there is no imposition of
liquidate[d] damages for the overturned amount. This demonstrates that
there is no requirement that the money be actually paid to the workers.”
The language quoted by Anton’s merely clarifies that liquidated damages
may only be assessed on the wages found to be unpaid upon review. That is
in no way inconsistent with the understanding that “wages” remain “unpaid”
until they are actually paid to the workers who earned them.
We appreciate that automatically withholding money from a
subcontractor under section 1727 would seem to make it harder for that
party to satisfy section 1742.1, subdivision (a), by paying workers.8 It
may similarly make it more difficult for that party to insulate itself from
liquidated damages by making a deposit in accordance with section 1742.1,
8 There is no evidence that these are the circumstances in this case, as
Anton’s asserts that it gave money to Hazard to satisfy the withholding
under section 1727.
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subdivision (b). But these are policy concerns for the Legislature to weigh,
not this court when faced with the application of clear statutory language.
(See, e.g., Standon Co. v. Superior Court (1990) 225 Cal.App.3d 898, 904
[“Unless the plain language of a statute leads to absurdity, a court may not
so construe it as to substitute its wisdom for that of the legislature.”].) We
are not at liberty to rewrite the plain language of section 1742.1 by creating a
new exception to its liquidated damages provision for cases in which the
contractor has withheld funds under section 1727. “Where, as here, the
Legislature has not created an exception, a court may not insert one into the
statute.” (Mamer v. Weingarten (2025) 108 Cal.App.5th 169, 174.)
Anton’s also suggests that, because sections 1727 and 1742.1,
subdivision (b), serve similar purposes, a subcontractor should not be held
liable for liquidated damages if the contractor has withheld funds and
transmitted them to the awarding body. As Anton’s observes, section 1742,
subdivision (f), provides that money withheld under section 1727 is released
to the Department in the event the assessment is affirmed. Thus, under both
statutes, money is eventually sent to the Department.
However, the Legislature chose only to insulate a party from liability
for liquidated damages if it deposits money directly with the Department,
and it is not unreasonable to respect the distinction between these statutes.
Requiring withholding by the contractor or awarding body secures funds for
the payment of the assessment and penalties regardless of the offending
subcontractor’s actions or status, including possible bankruptcy or inability to
pay. The Legislature also could have considered redundancy appropriate to
cover interest on the unpaid wages. (See § 1741, subd. (b).) As noted by the
DLSE, multiple “statutes guaranteeing timely payment of progress and
retention amounts . . . permit[] the owner or direct contractor to withhold up
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to 150 percent of the amount in dispute from the contractor or subcontractor,
respectively.” (United Riggers & Erectors, Inc. v. Coast Iron & Steel Co.
(2018) 4 Cal.5th 1082, 1088 [collecting statutes].) We do not think it absurd
that sections 1727 and 1742.1 may result in the parties setting aside up to
200 percent of the assessment prior to review.9 Nor do we need to decide how
the parties would recoup any overage after the proceedings have concluded.
Anton’s argues the DLSE should be “equitably estopped” from pursuing
liquidated damages because it directed Hazard to transfer the withheld
money to the City. Under section 1727, subdivision (b), “upon the request of
the Labor Commissioner, [the contractor shall] withhold sufficient money due
the subcontractor under the contract to satisfy the assessment and transfer
the money to the awarding body.” Anton’s fails to explain how following the
language of the statute supports estoppel.
Anton’s also briefly raises a constitutional argument, but fails to
explain its theory or provide supportive authority. “We are not bound to
develop appellants’ arguments for them. [Citation.] The absence of cogent
legal argument or citation to authority allows this court to treat the
contentions as [forfeited].” (In re Marriage of Falcone & Fyke (2008) 164
Cal.App.4th 814, 830 (Falcone).)
Anton’s remaining arguments iterate on these contentions and fail to
change our view of the relevant statutes. Again, while there appears to be
some redundancy built into the statutory scheme, we do not see any absurd
9 Anton’s argument that the statutes may result in interested parties
withholding, depositing, or paying 900 percent of the assessment lacks
foundation. Any party who may be liable for liquidated damages can either
pay workers their unpaid wages within 60 days or deposit the entire amount
of the assessment with the Department of Industrial Relations. (§ 1742.1.)
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results that would warrant a departure from the plain language of section
1742.1.
E. Apprenticeship Violations on the Torrey Pines Road Project
Anton’s was held liable for three apprenticeship-related violations:
(1) failure to give timely notice of the Torrey Pines Road Project; (2) failure
to employ a sufficient number of apprentices; and (3) failure to request
apprentices from local committees. With regard to the first violation, Anton’s
does not dispute that it failed to submit contract award information to any
apprenticeship program before starting work on the Torrey Pines Road
Project. Instead, Anton’s argues it was not required to do so “because Anton’s
hires and trains its own apprentices.” Anton’s cites no authority for this
proposition, and there is no such carve-out in section 1777.5, subdivision (e),
which provides: “Before commencing work on a contract for public works,
every contractor shall submit contract award information to an applicable
apprenticeship program that can supply apprentices to the site of the public
work.” (Italics added.)
Second, Anton’s fails to show it employed an adequate number of
apprentices on the Torrey Pines Road Project. (See § 1777.5, subd. (i); Cal.
Code Regs., tit. 8, § 230.1, subd. (a).) Anton’s claims, “only straight time
hours count toward the minimum ratio. Several days worked on the Torrey
Pines [Road] Project were Saturday or overtime shifts due to the emergent
nature of the project. Thus, Anton’s ratio [of journeymen to apprentices] was
correct.” As with other arguments, Anton’s fails to provide any legal support
or appropriate citation to the record. Accordingly, this argument is forfeited.
(See Falcone, supra, 164 Cal.App.4th at p. 830.)
Third, Anton’s does not dispute that it failed to request the dispatch of
apprentices from appropriate committees. (Cal. Code Regs., tit. 8, § 230.1,
22
subd. (a).) It asserts it did not need to do so because it “has ongoing approval
to train apprentices.” A contractor need only request apprentices if it is “not
already employing sufficient registered apprentices” to meet the required
ratio. (Ibid.) As Anton’s has not shown it already employed sufficient
apprentices, the fact it could have done so is not relevant.
Next, Anton’s challenges the DLSE’s imposition of penalties under
section 1777.7, subdivision (a)(1), which provides for penalties up to $100
per day for a contractor who “knowingly violate[s] Section 1777.5.” “[A]
contractor knowingly violates Labor Code 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, § 231, subd. (h).)
Anton’s fails to argue that its violations of section 1777.5 were not
“knowing[],” instead reiterating its argument that it did not violate section
1777.5. For the reasons explained above, we conclude otherwise.
Moreover, Anton’s does not address the Director’s finding that there
was an “irrebuttable presumption that Anton’s knew or should have known
of the apprenticeship requirements of section 1777.5 . . . because Anton’s
was issued prior assessments for apprenticeship violations and because the
contract for the Torrey Pines Road Project notified Anton’s of its obligation to
comply with prevailing wage requirements.” Under California Code of
Regulations, title 8, section 231, subdivision (h), “There is an irrebuttable
presumption that a contractor knew or should have known of the
requirement of Section 1777.5 if the contractor had previously been found to
have violated that Section, or the contract and/or bid documents notified the
contractor of the obligation to comply . . . .” By failing to challenge this
23
finding, Anton’s has forfeited its arguments. (See, e.g., Asaro, supra, 103
Cal.App.5th at p. 728, fn. 4.)
Finally, Anton’s claims it should not be liable for underpaying workers
due to excessive payment to apprenticeship funds. Anton’s fails to provide
any record citations for its factual assertions or any authority for its
arguments, which are thus forfeited. (See Falcone, supra, 164 Cal.App.4th at
p. 830.)
DISPOSITION
The judgment is affirmed. Respondents are entitled to costs on appeal.
BUCHANAN, J.
WE CONCUR:
McCONNELL, P. J.
O’ROURKE, J.
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Filed 11/18/25
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
ANTON’S SERVICES INC., D084833
Appellant,
v. (Super. Ct. No. 37-2023-
00021117-CU-WM-CTL)
KATRINA S. HAGEN, as Director, etc.,
et al.,
Respondents; ORDER CERTIFYING
OPINION FOR PUBLICATION
DIVISION OF LABOR STANDARDS
ENFORCEMENT,
Real Party in Interest and
Respondent.
THE COURT:
The opinion in this case filed October 23, 2025 was not certified for
publication. It appearing the opinion meets the standards for publication
specified in California Rules of Court, rule 8.1105(c), the request pursuant to
rule 8.1120(a) for publication is GRANTED.
IT IS HEREBY CERTIFIED that the opinion meets the standards for
publication specified in California Rules of Court, rule 8.1105(c); and
ORDERED that the words “Not to Be Published in the Official Reports”
appearing on page one of said opinion be deleted and the opinion herein be
published in the Official Reports.
McCONNELL, P.J.
Copies to: All parties
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