The opinion
Filed 3/6/23 D.A. McCosker Construction v. Dept. of Water Resources CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
D.A. MCCOSKER CONSTRUCTION et al., C089969
Plaintiffs and Appellants, (Super. Ct. No. 34-2017-
00209945-CU-PT-GDS)
v.
DEPARTMENT OF WATER RESOURCES,
Defendant and Appellant.
The Department of Water Resources (DWR) and D.A. McCosker Construction
Co., doing business as Independent Construction Company (ICC), entered into a contract
for the construction of a reservoir near the City of Livermore. After ICC completed the
project, DWR sought to avoid paying ICC on the ground that ICC was an unlicensed
contractor at the time of the project. It based its argument on the Contractors’ State
1
License Law (Bus. & Prof. Code, § 7000 et seq.),1 which provides that a contractor may
not maintain any action to recover compensation for “the performance of any act or
contract” unless it was duly licensed “at all times during the performance of that act or
contract.” (§ 7031, subd. (a).)
ICC and its surety, Fidelity & Deposit Co. of Maryland (Fidelity), successfully
sought relief against DWR in arbitration—the required forum under the parties’
agreement. The arbitrator rejected DWR’s claim that ICC was unlicensed and awarded
ICC over $5,000,000 in damages. But a trial court later vacated the arbitrator’s award,
agreeing with DWR that ICC lost its license after it began the project. The court based its
conclusion on sections 7068 and 7068.1. Section 7068 allows a corporation, like ICC, to
qualify for a contractor’s license through a “responsible managing employee” who has
the necessary experience and knowledge to qualify for a contractor’s license in his or her
own right. Section 7068.1, in turn, in the trial court’s reading, requires a corporation’s
responsible managing employee to exercise direct supervision and control over all the
corporation’s construction operations. Applying this interpretation of section 7068.1, the
trial court concluded that ICC violated this statute because its responsible managing
employee failed to directly supervise and control the project in this case. It further
concluded that ICC’s license was automatically invalidated at the time this violation
occurred, leaving ICC unlicensed during the project.
On ICC’s and Fidelity’s appeal, we reverse. The trial court premised its
conclusion on the wrong version of section 7068.1. At the time of trial, the statute
required a responsible managing employee to “be responsible for exercising that direct
supervision and control of his or her employer’s or principal’s construction operations to
secure compliance with” state licensing laws. (Former § 7068.1; Stats. 2013, ch. 180,
1 Undesignated statutory references are to the Business and Professions Code.
2
§ 1.) The trial court relied on this language in its decision. But at the time of the project,
the relevant timeframe here, the statute read a little differently. It required the
responsible managing employee to “be responsible for exercising that direct supervision
and control of his or her employer’s or principal’s construction operations as is necessary
to secure full compliance with” state licensing laws. (Former § 7068.1, italics added;
Stats. 2006, ch. 106, § 2.) The “as is necessary” language is important. It shows that a
responsible managing employee’s obligation to exercise direct supervision and control
depends on the facts, refuting the trial court’s conclusion that a responsible managing
employee must always exercise direct supervision and control over the corporation’s
construction operations. We will remand the matter to the trial court for further
consideration under the applicable version of the statute.
BACKGROUND
I
The Dyer Project
The McCosker family formed D.A. McCosker Construction Co. over 80 years
ago. For the last 20 years, Brian McCosker (Brian) has served as its president and Kevin
McCosker (Kevin) has been its designated “responsible managing employee” within the
meaning of section 7068—a statute providing that a corporation can qualify for a
contractor’s license through a “responsible managing employee” who has the requisite
knowledge and experience to hold a contractor’s license in his or her own right. (§ 7068,
subd. (b)(3).) Kevin began serving as D.A. McCosker Construction Co.’s responsible
managing employee starting in 2001.
In 2009, DWR and D.A. McCosker Construction Co., doing business as ICC,
entered into a contract for the construction of a project known as the Dyer Reservoir,
South Bay Aqueduct Enlargement (the Dyer project). ICC, which served as the project’s
general contractor, completed the project three years later in 2012. Brian oversaw the
project. Kevin, although kept informed of the project, had no involvement with it.
3
According to the Contractors State License Board’s records, D.A. McCosker
Construction Co. was a licensed general contractor during the whole of the Dyer project.
II
First Arbitration Proceeding
Several months after the project’s completion, ICC and Fidelity (collectively, ICC)
filed a complaint against DWR in arbitration—the required forum for disputes under the
parties’ agreement and the State Contract Act (Pub. Contract Code, § 10100 et seq.).
(See Pub. Contract Code, § 10240.) ICC also joined several of its subcontractors,
including Monterey Mechanical Co., in the suit. ICC alleged it was owed additional
compensation for performing work above that required in the parties’ contract. It also
alleged that DWR improperly deducted liquidated damages from the amounts it owed
ICC and that, after DWR’s deduction of these amounts led to ICC’s subcontractors
(including Monterey Mechanical Co.) not getting paid, DWR withheld further payments
from ICC. ICC sought over $12,000,000 in damages.
DWR afterward filed a cross-complaint against ICC, alleging it was entitled to
deduct an additional $1,905,000 in liquidated damages because ICC untimely completed
the project. It also contended ICC’s claims failed for three reasons relevant to this
appeal. First, it alleged that ICC failed to exhaust the administrative remedies described
in the parties’ contract. Second, it argued that ICC’s damages calculation was flawed
because its damages expert, Gene Lash, relied on hearsay for his conclusions. And third,
after the close of evidence in the arbitration proceedings, it asserted that Kevin was a
“sham” responsible managing employee and did not supervise the Dyer project. Based
on this last argument, DWR argued that ICC’s license was invalid and that, as a result,
DWR was entitled to recover all amounts it had paid ICC for the Dyer project.
The arbitrator ruled largely in ICC’s favor. Starting with DWR’s arguments, he
found none of them persuasive. He found ICC sufficiently exhausted the administrative
procedures described in the parties’ contract. He found Lash relied on documents that
4
were admissible under the business records exception to the hearsay rule. And he
indicated that Kevin was a legitimate responsible managing employee who worked for
ICC, had been its responsible managing employee for years, and helped manage ICC.
Turning to ICC’s claims, the arbitrator found DWR owed ICC additional funds for
certain costs incurred, improperly deducted liquidated damages, and improperly withheld
payments. After accounting for prejudgment interest and certain costs, he awarded ICC
over $5,000,000 in damages.
III
First Trial Court Proceeding
ICC and DWR later filed competing petitions with the trial court. ICC sought to
confirm the arbitrator’s award and named DWR and Monterey Mechanical Co. as
respondents. DWR, in turn, sought to vacate the award, raising the same type of
arguments it brought before the arbitrator: ICC failed to exhaust administrative remedies,
the arbitrator’s award was impermissibly based on hearsay, and ICC’s license was invalid
because Kevin failed to adequately supervise the Dyer project. It also raised an
additional ground for finding ICC’s license invalid: Kevin improperly held an active
contractor’s license in Nevada during the Dyer project, violating section 7068’s general
rule prohibiting a person who qualifies a corporation for a contractor’s license from
holding “any other active contractor’s license.”
After hearing from the parties, the trial court vacated the arbitration award and
remanded the matter to the arbitrator for further consideration. Although the court
rejected DWR’s contention that the award was impermissibly based on hearsay, it found
remand to the arbitrator appropriate to address part of DWR’s exhaustion argument. It
further found remand appropriate to allow the arbitrator to evaluate DWR’s new claim
about Kevin’s Nevada license and to provide greater clarity about Kevin’s role in ICC.
5
IV
Second Arbitration Proceeding
On remand, DWR expanded on its argument that ICC’s license was invalid. It
argued, as before, that Kevin failed to adequately supervise the Dyer project and held a
separate contractor’s license in Nevada. It then added a new ground for finding ICC’s
license invalid: ICC failed to show that Kevin was a bona fide employee, violating
section 7068’s requirement that the responsible managing employee be a “bona fide”
employee.
After hearing from the parties, the arbitrator again found in favor of ICC, though
without addressing DWR’s claim concerning Kevin’s Nevada license. It found ICC
exhausted all required administrative procedures required in the parties’ contract. It also
found Kevin “met the bona fide employment requirements to be [a responsible managing
employee] and provided ‘direct supervision and control’ [through] his work in managing
ICC in general and his continuing communication and consultation with Brian McCosker
related to Dyer and the project that he was directly supervising.”
V
Second Trial Court Proceeding
Following the arbitrator’s decision, ICC and DWR again filed competing petitions
with the trial court. ICC sought to confirm the arbitrator’s award, and DWR sought to
vacate the award. DWR argued that “ICC is disallowed from recovering compensation
from DWR and must disgorge amounts paid if ICC performed any portion of the Dyer
contract without full compliance with the licensing requirements of the [Contractors’
State License Law].” It then contended ICC violated this law for four reasons. DWR had
raised three of these reasons before: Kevin improperly held a separate contractor’s
license in Nevada, was not a bona fide employee of ICC, and failed to exercise direct
supervision and control over the Dyer project. It now offered a fourth reason: Kevin
improperly “qualified his own Nevada construction company” during the Dyer project,
6
violating section 7068.1’s general rule prohibiting a person who qualifies a corporation
for a contractor’s license from “act[ing] in the capacity of the qualifying person for an
additional individual or firm.”2
The trial court vacated the arbitrator’s award and, without a further remand,
largely resolved the case in DWR’s favor. Without resolving DWR’s claim that Kevin
was not a bona fide employee, the court found ICC violated the Contractors’ State
License Law in three respects: Kevin improperly held a separate active contractor’s
license during the Dyer project, Kevin improperly qualified a separate firm for a
contractor’s license during the Dyer project, and Kevin failed to exercise direct
supervision and control over the Dyer project. The court also, at least initially, found
“ICC was not a duly licensed contractor for the Dyer Project” because of these violations.
But in a later ruling, the court stopped short of finding that ICC lost its license
because of Kevin’s separate license and separate firm, finding it sufficient to focus on
Kevin’s inadequate supervision and control over the Dyer project. It found this latter
violation caused ICC’s license to be automatically invalidated at the time the violation
occurred, leaving ICC unlicensed at the time of the project. And because, per section
7031, a contractor that is unlicensed at any time during a project cannot maintain an
action for compensation for work performed on that project, the court concluded that ICC
could not pursue its action against DWR. The court also addressed DWR’s claim for
disgorgement. Although the court acknowledged that section 7031 allows a party to
maintain an action for disgorgement against an unlicensed contractor, it declined to order
2 DWR claims it raised this issue in the second arbitration proceeding. But while it
asserted the facts underlying this claim at that time, it does not appear to have raised the
claim itself until the second trial court proceeding.
7
disgorgement here, reasoning that “DWR has not properly brought an action for
disgorgement.”3
ICC timely appealed. DWR timely cross-appealed. The matter was fully briefed
on October 7, 2022, and assigned to this panel on October 31, 2022.
DISCUSSION
I
Standard of Review
The State Contract Act governs the parties’ contract in this case and describes the
standard of review for trial courts. It requires parties to pursue their claims in arbitration
in the manner described in Public Contract Code section 10240 et seq. It also, following
the arbitrator’s award, allows parties to petition the trial court to confirm, correct, or
vacate the award. (Pub. Contract Code, § 10240.12.) Unless the parties agree otherwise,
the trial “court shall vacate the award, or part thereof, if it determines either that the
award, or part thereof, is not supported by substantial evidence or that it is not decided
under or in accordance with the laws of this state.” (Ibid.)
On appeal from a trial court’s decision applying this standard, appellate courts
typically must evaluate the matter independently. That is because whether substantial
evidence supports an arbitrator’s finding and whether an arbitrator decided a matter
consistent with the law are both legal questions subject to independent review. (See
People v. Banks (2015) 61 Cal.4th 788, 804 [“the sufficiency of the evidence is
3 Following the trial court’s ruling, the Legislature amended section 7068.1 to allow
responsible managing employees to delegate their responsibility to exercise direct
supervision and control. (§ 7068.1, subds. (a), (c)(3).) The bill’s supporters believed the
change was “necessary to respond to recent litigation ‘wherein a judge in the Superior
Court of Sacramento found that the [responsible managing employee] was not
satisfactorily involved in a project, and as such, the contractor was operating as an
unlicensed contractor.’ ” (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading
analysis of Assem. Bill No. 830 (2021-2022 Reg. Sess.) as amended Sept. 3, 2021, p. 7.)
8
ultimately a legal question”]; Haworth v. Superior Court (2010) 50 Cal.4th 372, 384
[questions of law are reviewed independently].) In both circumstances, the reviewing
court should grant no deference to the trial court’s determinations.
But in this case, the trial court did not simply consider whether the arbitrator’s
decision lacked evidentiary or legal support under Public Contract Code section
10240.12’s framework; it also allowed the parties to submit new evidence to support their
positions on the merits. The parties offer competing views on the propriety of this
approach and its effect on the standard of review. According to ICC, the court exceeded
its authority in allowing further factual development post-arbitration. But according to
DWR, the court acted consistent with existing case law authorizing trial courts to conduct
their own factfinding after an arbitrator’s factfinding in cases involving section 7031.
DWR adds that, in these circumstances, “the question is not whether the arbitrator’s
conclusions rested on substantial evidence but rather whether [the trial court’s]
conclusions do.” (Underscoring omitted.)
We need not resolve here, however, whether the arbitrator and the trial court could
both conduct factfinding on the same topics, though we acknowledge some case law
supports this approach. (See Ahdout v. Hekmatjah (2013) 213 Cal.App.4th 21, 38-40
[because “section 7031 constitutes an ‘explicit legislative expression of public policy,’ ”
a trial court must consider “ ‘all of the admissible evidence submitted to it regardless of
whether that evidence was before the arbitrator’ ”].) Nor need we resolve whether a trial
court’s doing so could change the relevant standard of review from one deferential to the
arbitrator’s factual findings to one deferential to the trial court’s factual findings. That is
because our decision here does not concern the trial court’s factual findings at all. It
instead, as shown below, concerns questions of fact that only the arbitrator considered
and questions of law. We will review de novo the trial court’s and arbitrator’s legal
conclusions and review for substantial evidence the arbitrator’s factual conclusions.
9
II
Direct Supervision and Control
ICC contends the trial court’s finding that it lacked a valid license at the time of
the Dyer project is wrong for three reasons. First, it asserts the trial court misconstrued
section 7068.1’s “direct supervision and control” requirement. While the court believed
this provision requires a firm’s responsible managing employee to exercise direct
supervision and control over each of the firm’s construction projects, ICC asserts it
instead requires the responsible managing employee to exercise direct supervision and
control over the firm’s construction operations “as a whole.” It then contends Kevin
satisfied this requirement. Second, even if Kevin violated this requirement, it asserts the
court had no authority to deem it unlicensed at the time the violation occurred. And third,
even if the court had this authority, it contends the court should nonetheless have found
its license remained in effect because it substantially complied with the law. Focusing on
ICC’s first point, we agree the trial court misconstrued section 7068.1, though not for the
reason ICC offers.
The Contractors’ State License Law “imposes strict and harsh penalties for a
contractor’s failure to maintain proper licensure.” (MW Erectors, Inc. v. Niederhauser
Ornamental & Metal Works Co., Inc. (2005) 36 Cal.4th 412, 418.) Section 7031,
subdivisions (a) and (b) describe the penalties relevant here. Under section 7031,
subdivision (a), a contractor that performs work without the required contractor’s license
generally cannot bring an action for the collection of compensation. And under section
7031, subdivision (b), a person who has paid an unlicensed contractor typically can bring
an action to recover “all compensation” paid to the contractor for work performed, even
if the work was performed properly. Section 7031 “ ‘ “represents a legislative
determination that the importance of deterring unlicensed persons from engaging in the
contracting business outweighs any harshness between the parties, and that such
deterrence can best be realized by denying violators the right to maintain any action for
10
compensation in the courts of this state.” ’ ” (MW Erectors, Inc., at p. 423, italics
omitted.) It thus “will be applied, regardless of equitable considerations, even when the
person for whom the work was performed has taken calculated advantage of the
contractor’s lack of licensure.” (Id. at p. 424.)
In this case, ICC qualified for a contractor’s license through its responsible
managing employee, Kevin, starting in 2001. But the trial court found ICC’s license was
later invalidated when Kevin violated section 7068.1’s “direct supervision and control”
requirement. Quoting the statute as written at the time of its decision, the court stated:
“[T]he ‘person qualifying on behalf of an individual or firm’ ‘shall be responsible for
exercising that direct supervision and control of his or her employer’s or principal’s
construction operations to ensure compliance with this chapter and the rules and
regulations of the board.’ ” (See former § 7068.1; Stats. 2013, ch. 180, § 1.) Considering
this language, the trial court concluded that a company’s responsible managing employee
must directly supervise and control all the company’s construction operations, including
its construction operations for each project. It then found that because Kevin failed to
exercise direct supervision and control over the Dyer project, ICC’s license was
automatically invalided at that time.
But at the time of the project, section 7068.1 read somewhat differently than the
trial court believed. As relevant here, it stated: “The person qualifying on behalf of an
individual or firm . . . shall be responsible for exercising that direct supervision and
control of his or her employer’s or principal’s construction operations as is necessary to
secure full compliance with the provisions of this chapter and the rules and regulations of
the board relating to the construction operations.” (Former § 7068.1, italics added; Stats.
2006, ch. 106, § 2.)4 While the focus has been on a slightly different version of the
4 A former regulation defined the phrase “direct supervision and control” at the time of
the project. It stated: “For purposes of Section 7068.1 of the [Business and Professions]
11
statute that went into effect after the Dyer project’s completion, our focus is on whether
Kevin complied with applicable law at the time of the Dyer project, not whether he
complied with a law that was not yet written. (See Evangelatos v. Superior Court (1988)
44 Cal.3d 1188, 1208 [“ ‘legislative enactments are generally presumed to operate
prospectively and not retroactively unless the Legislature expresses a different intention’
”].)5
Focusing on section 7068.1 as written at the time of the project, we reject the trial
court’s premise that a company’s responsible managing employee must directly supervise
and control each of the company’s projects. The relevant text of former section 7068.1,
again, required a company’s responsible managing employee to “exercis[e] that direct
supervision and control of . . . construction operations as is necessary to secure full
compliance” with the Contractors’ State License Law and associated regulations. (Stats.
2006, ch. 106, § 2.) The “as is necessary” language shows the need to exercise direct
supervision and control depends on the context. For some projects, direct supervision
and control may be necessary to secure compliance. But for other projects, it may not.
Code, ‘direct supervision and control ’ includes any one or any combination of the
following activities: supervising construction, managing construction activities by
making technical and administrative decisions, checking jobs for proper workmanship, or
direct supervision on construction job sites.” (Former Cal. Code Regs., tit. 16, § 823,
subd. (b).)
5 One amicus curiae explicitly discussed the “as is necessary” language. It wrote:
“[T]he ‘as is necessary’ modifier in . . . § 7068.1 underscores that the activities need not
occur all of the time, but only ‘as is necessary’ to secure [Contractors’ State License
Law] compliance. This could mean very little, if any, involvement in a particular project,
so long as ‘construction operations’ are adequately supervised.” DWR filed extensive
responses to the amici, including this amicus, but elected not to acknowledge or
otherwise address the “as is necessary” language in its response. And although, in a
response to a later amicus brief, it ultimately acknowledged that the 2007 version of
section 7068.1 controls, it still failed to discuss the import of the “as is necessary”
language. DWR, then, had multiple opportunities to provide its analysis of the operative
language but chose to forego these opportunities.
12
The context matters, including the type of project and the capabilities of the construction
staff.
Here, the record shows that Kevin did not directly supervise and control
construction operations for the Dyer project. But it shows he was at least kept apprised
of “what was happening” on the project through “regular if not daily” discussions with
Brian. It also shows that ICC appeared to employ capable staff for the Dyer project.
According to ICC’s evidence, Brian oversaw the project. He had been a licensed
contractor and, at the start of the Dyer project, had worked for ICC for about 25 years and
served as its president for about 15 years. An experienced ICC employee served as the
project’s general superintendent. At the start of the Dyer project, he had worked for ICC
for about 15 years, had served as a general superintendent for ICC for over five years,
and had previously worked on several other water projects. Lastly, among others, ICC
employed two project managers for the project. At the start of the Dyer project, one had
worked as a project manager for over 10 years and the other had worked with ICC for
over three years and had worked on at least one large public works project.
But the trial court, relying on the wrong version of section 7068.1, never
accounted for these facts in its ruling. It never, for instance, acknowledged ICC’s
undisputed contention that Brian had decades of construction experience and exercised
oversight over the Dyer project, including by stopping unsafe work on the project. Nor
did it consider whether, in light of Brian’s oversight, it was necessary for Kevin to
exercise further supervision over the Dyer project to secure full compliance with the law.
It instead, based on an inapplicable version of section 7068.1, concluded that as a matter
of law, Kevin needed to exercise direct supervision and control over the Dyer project—
even if his doing so was unnecessary to ensure compliance with the law. We reject that
conclusion.
We will remand the matter to the trial court for further consideration under the
applicable version of section 7068.1. The trial court, as appropriate, may then remand the
13
issue to the arbitrator for further review. (Pub. Contract Code, § 10240.12 [trial court
may “remand to the original arbitrator that portion of the dispute which the court
concludes the arbitrator failed to determine”].) Because we find the trial court’s reliance
on the wrong version of section 7068.1 requires reversal, we need not address ICC’s
other arguments in favor of reversal.
III
DWR’s Remaining Arguments
Having found unpersuasive the trial court’s stated ground for finding ICC’s
license invalid, we consider DWR’s alternative grounds for affirming the trial court’s
decision. First, it asserts the arbitrator had no jurisdiction to hear all, or at least some, of
ICC’s claims because ICC failed to exhaust the administrative procedures required in the
parties’ contract. Second, it contends ICC violated the Contractors’ State License Law
because Kevin held a Nevada contractor’s license and qualified a Nevada company for a
contractor’s license. Third, it asserts ICC further violated the Contractors’ State License
Law because Kevin was not a “bona fide employee.” And lastly, it contends the
arbitrator’s calculation of damages was based on impermissible hearsay. We find none of
its arguments support a ruling in its favor.
A. Exhaustion
We start with DWR’s claim that the arbitrator lacked jurisdiction to hear all, or at
least some, of ICC’s claims.
1. All Claims
DWR first argues the arbitrator lacked jurisdiction to hear all ICC’s claims
because ICC failed to complete the administrative process described in the parties’
contract before initiating arbitration. We reject the argument.
The parties’ contract described a three-step administrative process for resolving
ICC’s claims against DWR. First, if ICC objected to any DWR decision on the project, it
needed to provide “written notice of potential claim stating such objections” to DWR’s
14
chief engineer within 15 days of the issue arising. Second, if its claims remained
unresolved after being noticed, ICC needed to submit a written statement and supporting
documentation for any claims to DWR’s chief engineer no later than 30 days after “the
return of release on contract.” And third, to the extent ICC presented any claims, DWR’s
chief engineer needed to provide a written decision on these claims. The contract
explained that if ICC failed to timely submit the materials described in the contract, it
would be deemed to have waived its claims.
The parties’ contract also discussed the parties’ rights to pursue their claims in
arbitration under Public Contract Code section 10240 et seq. (See Pub. Contract Code,
§ 10240 [“The remedy for the resolution of claims arising under contracts made under the
provisions of this chapter shall be arbitration pursuant to this chapter.”].) One provision
in this part of the code, Public Contract Code section 10240.2, discusses a party’s need to
exhaust the administrative procedures described in the parties’ contract before proceeding
to arbitration. It states: “A failure by the claimant to pursue diligently and exhaust, as to
the claim, the required administrative procedures set forth in the contract under which the
claim arose shall be a bar to arbitration hereunder until there has been compliance
therewith. Subject to the preceding sentence, if more than 240 days have elapsed since
acceptance of the work by the department, the claimant is entitled to arbitration, even
though the procedures are not concluded.”
In this case, ICC submitted several notices of its potential claims to DWR’s chief
engineer, as required at the first step of the contract’s administrative process. But it never
submitted a written statement for its claims, as mentioned at the second step of this
process. DWR contends ICC consequently failed to exhaust the required administrative
procedures described in the parties’ contract. It then argues ICC was barred from
pursuing arbitration as a result, citing to the first sentence in Public Contract Code section
10240.2, which again, requires a claimant to exhaust the contract’s administrative
procedures before proceeding to arbitration.
15
But the parties’ contract and the whole of Public Contract Code section 10240.2
undercut this argument. Starting with the parties’ contract, although ICC never submitted
a written statement for its claims, it never had to. The contract required ICC to submit its
written statement “not later than 30 days after the return of release on contract,” but as
DWR staff testified, DWR never provided this release. So although ICC never submitted
a written statement for its claims, it still complied with the contract’s administrative
procedures to the extent required.
Turning to Public Contract Code section 10240.2, although the statute’s first
sentence generally bars a claimant from pursuing arbitration until it completes “the
required administrative procedures set forth in the contract,” the statute’s second sentence
provides an exception. Again, it states: “Subject to the preceding sentence, if more than
240 days have elapsed since acceptance of the work by the department, the claimant is
entitled to arbitration, even though the procedures are not concluded.” Here, ICC
petitioned for arbitration more than 270 days after DWR accepted the work. Because
more than 240 days had elapsed since DWR accepted ICC’s work, and because ICC
complied with the contract’s administrative procedures to the extent required, ICC was
“entitled to arbitration” under Public Contract Code section 10240.2’s plain text.
Although DWR counters that Public Contract Code section 10240.2’s second
sentence is inapplicable, we find differently. DWR contends the statute’s second
sentence, in allowing the claimant to pursue arbitration “even though the procedures are
not concluded” (Pub. Contract Code, § 10240.2), “presupposes that the administrative
procedures were begun in the first place.” It then asserts that because ICC never began
the administrative process, it cannot claim the benefit of the statute’s second sentence.
But even accepting DWR’s premise that this statute “presupposes that the administrative
procedures were begun in the first place,” we still reject DWR’s conclusion that ICC
never began this process. Under the parties’ contract, the first step in the administrative
process is the submittal of a timely notice of a potential claim. And here, with a few
16
exceptions that we will turn to next, DWR does not dispute that ICC timely submitted its
notices of potential claims.
2. Two Claims
DWR alternatively argues the arbitrator lacked jurisdiction to hear two of ICC’s
claims because ICC failed to provide sufficient notice of these claims during the
administrative process. We reject this argument too.
ICC filed 16 claims in arbitration, two of which are relevant here. In one claim,
ICC alleged it was owed $1,116,000. It reasoned that DWR wrongly assessed liquidated
damages in this amount based on ICC’s alleged failure to make timely progress on the
project. In another claim, ICC alleged it was owed $2,153,998.97, asserting that project
delays caused it to incur additional costs in this amount for overhead and erosion control.
DWR contends both claims fail because ICC never provided the notice required in the
parties’ contract—which again, required ICC to provide notice of potential claims to
DWR’s chief engineer within 15 days of the claims arising.
a. ICC’s Claim Involving Liquidated Damages
DWR starts with ICC’s claim concerning the liquidated damages. ICC submitted
several notices of potential claim to DWR’s chief engineer that it alleged supported this
claim. But DWR argues that all but one of these notices failed to mention liquidated
damages and were submitted too late, “many months after DWR had assessed liquidated
damages.” It further argues that the one notice “that even mentions liquidated damages
. . . was submitted prior to the withholding of any liquidated damages” and so “does not
meet the contractual definition of [a notice of potential claim], i.e., an ‘objec[tion] to any
decision, determination, order, directive, instruction, notice, action, or omission of
engineer.’ ”
DWR’s argument, however, omits several important details that undermine its
argument. First, we accept that ICC submitted the notice mentioning liquidated damages
before DWR deducted liquidated damages from ICC’s pay. But ICC still submitted the
17
notice after DWR wrote a letter accusing ICC of being untimely—which, per the parties’
contract, was ground for DWR to deduct liquidated damages. The contract, in particular,
allowed DWR to deduct liquidated damages from ICC’s pay “[i]f work is not completed,
as determined by Engineer, within the time specified or any adjustments thereof . . . .”
ICC submitted the notice, then, after DWR made the determination triggering its right to
deduct liquidated damages. Second, we agree that the remaining notices never explicitly
mentioned liquidated damages. But we still find it sufficiently clear that they all
concerned liquidated damages. As the arbitrator found, and which DWR never disputes,
these notices concerned DWR’s refusal to grant requested time extensions that, if
granted, “would have negated the imposed liquidated damages.”
Apart from omitting these details, DWR also fails to provide an adequate record to
evaluate its claim. DWR, again, argues that most of ICC’s notices—which were
submitted between September 2011 and May 2013—were submitted too late. It reasons
that it withheld the $1,116,000 in liquidated damages months beforehand, between
February 2011 and May 2011, and cites for factual support one of ICC’s briefs in the
arbitration proceedings. Although courts can treat a “factual statement in a brief . . . as an
admission . . . when adverse to the party making it” (Moore v. Powell (1977) 70
Cal.App.3d 583, 586, fn. 2), the cited brief never asserted that DWR withheld the
$1,116,000 in liquidated damages between February 2011 and May 2011. While it noted
that DWR withheld some liquidated damages within this time period, it then said that
DWR withheld the $1,116,000 in liquidated damages on later dates, stating: “[F]rom
July 2011 to December 2016 [DWR] withheld the total liquidated damages amount of
$1,116,000.” Because we lack any further detail about the particulars of these later
withholdings, we cannot say that ICC’s notices submitted between September 2011 and
May 2013 were all untimely.
18
b. ICC’s Claim for Overhead and Erosion Control Costs
DWR turns next to ICC’s claim concerning the costs it incurred for overhead and
erosion control. ICC submitted three notices of potential claim to DWR’s chief engineer
that it alleged supported this claim. The first mentioned additional office overhead costs
incurred because of DWR’s continued extension of the project. The second asserted that
DWR’s planned delay in conducting a required inspection would delay project
completion. And the third, which ICC submitted over a year after the other two,
purported to combine the two prior notices. ICC alleged in the combined notice that
DWR’s delays caused it to incur additional costs for overhead, site maintenance, and
erosion control. Challenging the sufficiency of these notices, DWR contends the first
two notices were inadequate because neither mentioned erosion control costs—and in
fact, concerned “wholly-unrelated issues”—and the combined notice was inadequate
because it was untimely.
DWR portrays the costs incurred for project delays and the costs incurred for
erosion control as “wholly-unrelated issues,” but they are not. The record shows that ICC
incurred the costs for erosion control because of the project delays. An ICC witness
testified, and the arbitrator ultimately found, that ICC would not have incurred these costs
had the project not been delayed. DWR never disputes these facts. Under these
circumstances, we are satisfied that ICC’s objection to the project delays sufficed to
preserve its claim for the costs that flowed from these delays. Per the parties’ contract,
after all, ICC only needed to state its “objections” to DWR’s decision in a timely written
notice of potential claim. ICC did that here.
B. Kevin’s Nevada License and Nevada Business
We consider next DWR’s contention that Kevin held a Nevada contractor’s
license in violation of section 7068, subdivision (e) and qualified a Nevada company for
a contractor’s license in violation of section 7068.1, subdivision (a).
19
Section 7068, subdivision (e) generally prohibits a responsible managing
employee from “hold[ing] any other active contractor’s license while acting in the
capacity of a qualifying individual.” Section 7068.1, subdivision (a), in turn, as relevant
here, generally prohibits a responsible managing employee for one individual or firm
from “act[ing] in the capacity of the qualifying person for an additional individual or
firm.” Considering these requirements, and finding no applicable exceptions, the trial
court found Kevin violated these provisions because he held an active Nevada
contractor’s license and qualified a Nevada business for a contractor’s license. Although
the court stopped short of holding that these violations caused ICC to lose its license,
DWR contends they had this effect.
But even assuming ICC violated sections 7068 and 7068.1 for these reasons, we
find these violations provide insufficient grounds for deeming ICC’s license invalid at the
time the violations occurred. Neither section 7068 nor section 7068.1, significantly,
purports to automatically suspend a contractor’s license for a violation of their terms.
Many other provisions in the Contractors’ State License Law, on the other hand, do
impose this penalty. Under section 7068.2, subdivision (a), for example, a corporation’s
license will be automatically suspended if its responsible managing employee
disassociates and is not replaced within 90 days. Under section 7085.6, subdivision
(a)(1), as another example, a contractor’s license will be automatically suspended if the
contractor fails to comply with an arbitration award rendered under section 7085 et seq.
And under section 7090.1, subdivision (a)(1), as one last example, a contractor’s license
will be automatically suspended if the contractor, among other things, fails to pay a civil
penalty. (See also §§ 7076.2, subd. (a) [imposing the penalty of automatic license
suspension], 7071.17, subd. (b)(1) [same], 7125, subd. (e)(2) [same].)
All these provisions demonstrate that the Legislature knows how to impose the
penalty of automatic license suspension when it deems it inappropriate. So too does the
history of section 7068.1. In a 1991 amendment to the statute, the Legislature added an
20
“automatic suspension” provision when a responsible managing employee qualifies more
than three firms in any one-year period. Under those circumstances, the provision
provided that the responsible managing employee’s conduct “shall result in the
disassociation of the qualifying individual and automatic suspension of the licensee’s
contractor’s license.” (Former § 7068.1; Stats. 1991, ch. 145, § 1.) But the Legislature
removed this provision in 2006, years before the Dyer project began. (Former § 7068.1;
Stats. 2006, ch. 106, § 2.) And since that time, the Legislature has included no similar
penalty in either section 7068 or section 7068.1. Its declining to do so is telling, as we
“ ‘ “must assume that the Legislature knew how to create a[] [penalty] if it wished to do
so.” ’ ” (DiCampli-Mintz v. County of Santa Clara (2012) 55 Cal.4th 983, 992; see also
Ball v. Steadfast-BLK (2011) 196 Cal.App.4th 694, 702 [“While the Legislature could
have specified that a license is automatically suspended or otherwise invalidated where a
contractor does business in a name other than that set forth in its license, it did not.”].)
Applying the scheme the Legislature drafted, rather than the one DWR prefers, we will
not read an “automatic suspension” requirement into the text of sections 7068 and
7068.1.
DWR counters that adequate authority nonetheless supports a finding that ICC’s
license was automatically suspended when it violated these licensing requirements.
Citing sections 7106 and 7106.5, it first contends the Contractors’ State License Law
“expressly provides that statutes providing for automatic suspension/revocation represent
only one route to a determination that a contractor is not properly licensed.”
(Underscoring omitted.) But neither of these statutes supports its position. Section 7106
states: “The suspension or revocation of license as in this chapter provided may also be
embraced in any action otherwise proper in any court involving the licensee’s
performance of his legal obligation as a contractor.” DWR appears to believe this
provision authorizes courts to deem a license automatically suspended whenever they
think it appropriate. But section 7106 gives courts jurisdiction to determine whether
21
suspension or revocation of a license “as in this chapter provided” is appropriate, not
authority to develop new grounds for finding a license automatically suspended at the
time a violation occurs.
Section 7106.5 also provides no help to DWR. It provides: “The expiration,
cancellation, forfeiture, revocation, or suspension of a license by operation of law or by
order or decision of the registrar [of contractors] or a court of law, or the voluntary
surrender of a license by a licensee, shall not deprive the registrar of jurisdiction to
proceed with any investigation of or action or disciplinary proceeding against the license,
or to render a decision suspending or revoking the license.” Although this statute,
consistent with section 7106, clearly contemplates that courts could suspend licenses, it
does not purport to grant courts any authority at all. It instead “gives the registrar
‘jurisdiction to proceed with any investigation’ even though the matter is pending in a
court.” (Judson Pacific-Murphy Corp. v. Durkee (1956) 144 Cal.App.2d 377, 385.)
Turning to non-statutory considerations, DWR claims it is absurd to deem a
license automatically suspended only in situations when the Legislature specifically said
so. It reasons that because the Legislature provided for automatic suspension of a license
when a licensee fails to provide workers’ compensation insurance (see § 7125, subd.
(e)(2)), courts should also be able to automatically suspend a license “where the
[responsible managing employee] has nothing to do with the owner’s project or is off
opening his business in another state.” While DWR may believe it sound policy to
automatically suspend a company’s license when the company’s responsible managing
employee improperly holds a separate license or qualifies a second business for a license,
it is the Legislature’s job, not ours, to determine appropriate policy. (See Werner v.
Southern Cal. etc. Newspapers (1950) 35 Cal.2d 121, 129 [“It is for the Legislature . . . to
choose between conflicting policies”].)
Lastly, DWR suggests that a contractor at least acts “ ‘outside its license’ ”—even
if its license is not fully suspended—whenever it fails to comply with any requirement in
22
the Contractors’ State License Law. So under DWR’s position, for instance, if a
licensee’s responsible managing employee improperly holds a separate license, then the
licensee is effectively working outside its license and must disgorge all amounts it has
been paid for ongoing projects. So it is too, under DWR’s position, if the licensee
violates any other provision in the Contractors’ State License Law. We disagree. A
licensee acts outside the scope of its license when it operates in a capacity for which it is
not licensed—as would be true, for example, if a contractor licensed to install roofs (see
Cal. Code Regs., tit. 16, § 832.39) built a skyscraper—not simply because it failed to
satisfy some aspect of the state licensing law. (See Ball v. Steadfast-BLK, supra, 196
Cal.App.4th at pp. 702-703 [while the contractor may have failed to comply with state
licensing requirements, these failures were “at most, grounds for disciplinary action” and
did not trigger § 7031]; cf. Waters v. Bourhis (1985) 40 Cal.3d 424, 436 [a medical
provider operates outside the scope of his or her license when operating “in a capacity for
which he [or she] is not licensed -- for example, when a psychologist performs heart
surgery”].)
Although we find DWR’s arguments on this topic unpersuasive, none of this is to
say that a responsible managing employee’s failure to comply with the Contractors’ State
License Law is without consequences. Section 7115, for instance, states that a failure to
comply with this law “in any material respect . . . constitutes a cause for disciplinary
action.” But we find no authority, statutory or otherwise, that deems a license
automatically suspended simply because a responsible managing employee improperly
holds a separate license or improperly qualifies a second business for a license. While
that type of conduct may provide grounds for discipline, even perhaps license suspension,
it does not result in the license being automatically suspended at the moment the conduct
occurs.
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C. Bona Fide Employee
We turn next to DWR’s claim that Kevin was not a “bona fide employee” within
the meaning of section 7068, subdivision (c)—which in DWR’s telling, provides an
additional ground for finding that ICC operated without a valid license.
At the start of the Dyer project, and as relevant here, former section 7068,
subdivision (c) stated: “A responsible managing employee for the purpose of this chapter
shall mean an individual who is a bona fide employee of the applicant and is actively
engaged in the classification of work for which that responsible managing employee is
the qualifying person in behalf of the applicant.” (Stats. 2004, ch. 865, § 9.) A former
regulation defined the phrase “bona fide employee” at the time of the project. It stated:
“For purposes of Section 7068 of the [Business and Professions] Code, ‘bona fide
employee’ of the applicant means an employee who is permanently employed by the
applicant and is actively engaged in the operation of the applicant’s contracting business
for at least 32 hours or 80% of the total hours per week such business is in operation,
whichever is less.” (Former Cal. Code Regs., tit. 16, § 823, subd. (a).)
The arbitrator here found Kevin met these criteria, citing, in support, Brian’s
declaration, Kevin’s declaration, ICC’s accounting expert’s testimony, and tax records.
Substantial evidence in the record supports the arbitrator’s finding. Brian, for instance,
said Kevin worked “full-time for ICC” during the Dyer project and said he believed
Kevin came to work “every day.” Both Brian and Kevin, moreover, said that Kevin
oversaw a levee rehabilitation project for ICC at the time of the Dyer project and that the
brothers spoke regularly about ICC’s projects during this time. Both added that Kevin
was an employee of ICC during the Dyer project. Consistent with their statements,
Kevin’s W-2s from 2009 to 2012 confirm that ICC paid him during the time of the Dyer
project. This evidence sufficiently established that Kevin was a “bona fide employee” of
ICC during the time of the Dyer project.
24
In challenging the arbitrator’s decision, DWR ignores all but the tax records. It
claims “[t]here was no substantial evidence . . . that Kevin met the criteria of a bona fide
employee, and ample evidence that he did not.” Then, in support, it notes that Kevin had
only limited involvement with the Dyer project, that ICC’s produced documents in
arbitration (over 60,000 in total) showed Kevin’s name only four times, that Brian said he
could not recall Kevin’s job responsibilities at ICC between 2009 and 2012, and that
Kevin’s income tax withholdings between 2008 and 2011 were “roughly half (or less) of
the amount withheld in 2007, which suggests that Kevin was less than full-time during
Dyer.”
But in challenging the sufficiency of the evidence, DWR needed to “cite the
evidence in the record supporting the judgment and explain why such evidence is
insufficient as a matter of law”—not ignore this evidence and simply focus on evidence
favorable to its position. (Rayii v. Gatica (2013) 218 Cal.App.4th 1402, 1408.) As other
courts have explained, an appellant “who cites and discusses only evidence in [his or] her
favor fails to demonstrate any error and waives the contention that the evidence is
insufficient to support the judgment.” (Ibid.; see also Foreman & Clark Corp. v. Fallon
(1971) 3 Cal.3d 875, 881.) So it is here.
DWR’s offered evidence, moreover, is not particularly persuasive in any event.
First, although Kevin had limited involvement with the Dyer project, that does not itself
establish that Kevin was not a bona fide employee of ICC. Perhaps DWR believes that
the Dyer project was ICC’s only project at the time; and so to the extent Kevin was not
working on that project, he was not working for ICC at all. But as both Kevin and Brian
stated, Kevin oversaw a levee rehabilitation project for ICC at the time of the Dyer
project. Second, while Kevin’s name appeared in few of ICC’s produced documents in
arbitration, that means little without knowing the documents DWR requested. And
because DWR never reveals the documents it requested, we take nothing from this detail.
Third, while Brian could not recall “offhand” Kevin’s job responsibilities at the time of
25
the Dyer project during his deposition—which took place years after the Dyer project and
before DWR even claimed Kevin was not a bona fide employee—he still said Kevin
worked “full-time for ICC” and said he believed Kevin came to work “every day.” He
also later, as mentioned, explained that Kevin oversaw a levee rehabilitation project at the
time of the Dyer project. And fourth, although Kevin’s income tax withholdings between
2008 and 2011 were far less than his withholding in 2007, the record reveals a ready
explanation for the drop—the Great Recession. As Kevin declared, at the time of the
Dyer project, “[t]he Great Recession was in full force and was impacting the construction
industry and the work available to the company.”
Apart from citing this unpersuasive evidence, DWR also claims Kevin’s and
Brian’s failure to say that Kevin worked at least 32 hours a week during the Dyer project
“is powerful proof” that he did not. But again, DWR ignores that Brian testified that
Kevin worked “full-time for ICC” during the Dyer project. Brian may never have
explicitly said that Kevin worked at least 32 hours or 80 percent of the weekly hours ICC
was in operation, but the arbitrator reasonably could have concluded that his testimony—
together with all the other evidence of Kevin’s work for ICC—demonstrated that Kevin
was a “bona fide employee” of ICC during the time of the Dyer project. (See South
Coast Framing, Inc. v. Workers’ Comp. Appeals Bd. (2015) 61 Cal.4th 291, 303
[substantial evidence is evidence that is “ ‘reasonable in nature, credible, and of solid
value such that a reasonable mind might accept it as adequate to support a
conclusion’ ”].)6
6 DWR’s claim that Kevin was not a bona fide employee of ICC is the last of its reasons
for attacking the validity of ICC’s license. Because we reject each of its arguments on
this topic, we also reject DWR’s claim for disgorgement in its cross-appeal, which is
premised on our finding that ICC operated without a license.
26
D. Hearsay
Lastly, we consider DWR’s contention that the arbitrator relied solely on
inadmissible hearsay when calculating damages.
California Code of Regulations, title 1, section 1300 et seq. describes the
admissibility of evidence in arbitration proceedings of the type here. (See Cal. Code
Regs., tit. 1, §§ 1300, 1387.) As relevant here, it provides: “Any relevant evidence,
including hearsay, shall 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, provided, however, hearsay evidence
even though not objected to shall not be sufficient in itself to support a finding unless it
would be admissible over objection in civil actions.” (Id., § 1387, subd. (c).)
In this case, ICC’s expert, Gene Lash, testified about the damages ICC suffered on
the Dyer project. He explained that he reviewed all ICC’s claims and supporting
documentation, interviewed several ICC experts, reviewed DWR’s expert’s testimony
and work papers, and interviewed several ICC employees (including Brian, ICC’s project
foremen for the Dyer project, and ICC’s chief financial officer). Based on his
investigations, and relying in particular on four boxes of “work papers and records,” he
determined that ICC was owed over $9,000,000 in damages. DWR objected on hearsay
grounds both to the documents in these boxes and to Lash’s testimony. But the arbitrator,
rejecting these objections, found the documents fell within the business records exception
to the hearsay rule and then relied on Lash’s testimony in calculating part of the damages
owed ICC.
Renewing its objection on appeal, DWR contends Lash’s testimony relied solely
on hearsay and “was effectively ICC’s only evidence on the existence of its alleged
damages.” It asserts that while Lash said he reviewed the four boxes of documents, these
documents contained hearsay and were not admissible under the business records
27
exception. And it contends that while Lash said he interviewed several ICC employees,
all but one of these employees had no involvement in preparing ICC’s notices of potential
claim and, as to that one employee who was involved, he indicated he had only limited
involvement in preparing one of these notices and offered no detail about his role. For
these reasons, DWR argues that the arbitrator relied “solely on hearsay evidence for
which no exception applies” and that no part of its award can stand. (Underscoring
omitted.)
We reject its argument for two reasons. First, for most of the arbitration award,
the arbitrator does not appear to have relied on Lash’s testimony. The arbitrator, again,
awarded ICC over $5,000,000 in damages. The calculation for most of this amount—
over $3,200,000—was established independent of Lash’s testimony. That included the
arbitrator’s awarding ICC $1,116,000 for improperly withheld liquidated damages,
$1,616,190.09 for additional improperly withheld amounts, and nearly $500,000 in
prejudgment interest for these amounts. Although Lash briefly noted that DWR withheld
certain amounts in his testimony, DWR itself acknowledged it withheld these amounts,
stating it withheld $1,116,000 in liquidated damages and $1,616,190.09 for other
purposes. For most of the arbitration award, then, DWR has not shown that Lash’s
testimony played any meaningful role.
Second, although the arbitrator explicitly relied on Lash’s testimony for part of the
award, DWR has not shown that the arbitrator relied “solely on hearsay evidence for
which no exception applies” for this portion of the award. DWR, again, contends Lash
relied on four boxes of documents that contained hearsay and that were not admissible
under the business records exception. These documents included, according to the
arbitrator, “[t]he cost and other related documents, the Daily Inspections Reports of
DWR, and the Daily [R]eports of ICC.” But although DWR contends these materials
contained inadmissible hearsay, it never cites where these records appear in the record, if
at all. And without being able to review these records, we cannot properly evaluate
28
DWR’s reasons for arguing these records contain inadmissible hearsay. Nor can we
properly evaluate DWR’s vague claim that “many of the documents on which Mr. Lash
relied” are inadmissible because “they were prepared by ICC for purposes of advancing
its claims in arbitration.” DWR never explains which documents would be inadmissible
for this reason, nor explains why it believes these documents were prepared in
anticipation of litigation. Because DWR has left us unable to effectively review its claim,
we find its argument forfeited.
DISPOSITION
The order vacating the arbitration award is reversed. The matter is remanded to
the trial court for further consideration under the applicable version of section 7068.1.
ICC is entitled to recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a).)
/s/
BOULWARE EURIE, J.
We concur:
/s/
ROBIE, Acting P. J.
/s/
DUARTE, J.
29