SHEET METAL WORKERS’ INTERNATIONAL ASSOCIATION, LOCAL 104, Plаintiff and Respondent, v. JOHN C. DUNCAN, as Director, etc., et al., Defendants and Respondents; RUSS WILL MECHANICAL, INC., Real Party in Interest and Appellant.
No. A131489
Court of Appeal, First District, Division Three, California
Aug. 27, 2014
229 Cal. App. 4th 192
Sheppard Mullin Richter & Hampton, Richard M. Freeman and Matthew Scott McConnell for Real Party in Interest and Appellant.
Atkinson, Andelson, Loya, Ruud & Romo, Robert Fried and Thomas A. Lenz for National Precast Concrete Association, Precast/Pre-Stressed Concrete Manufacturers Association of California and Associated Builders & Contractors of California as Amici Curiae on behalf of Real Party in Interest and Appellant.
Cook Brown, Dennis B. Cook, Barbara A. Cotter and Meggi E. Wilson for Air Conditioning Trade Association, The California Counsel for Affordable Housing, The Modular Building Institute, Inc., and the Western Electrical Contractors Association, Inc., as Amici Curiae on behalf of Real Party in Interest and Appellant.
Altshuler Berzon, Peter D. Nussbaum and Anne Nelson Arkush for Plaintiff and Respondent.
No appearance for Defendants and Respondents.
McGUINESS, P. J.—California‘s prevailing wage law generally requires that workers employed on public works be paid the local prevailing wage for work of a similar character. (
Factual and Procedural Background
In 2005, a contractor entered into a public works contract with a community college district to modernize an administration building at a community college in Santa Clara County (the project). Real party in interest and appellant Russ Will Mechanical, Inc. (Russ Will), was the subcontractor for the heating, ventilation, and air conditioning (HVAC) component of the project. The subcontract provided that the project was to be built according to the specifications of the prime contract between the contractor and the community college district. Russ Will was required to “furnish all labor, materials, equipment, services and supplies necessary to complete” the HVAC work. The subcontract did not specify whether Russ Will was required to fabricate any material necessary to complete the HVAC work. A lengthy document that was part of the prime contract specified minimum requirements for all trades on the project. The requirements were not specific to Russ Will or any other particular subcontractor. Among other things, the general project requirements specified that ductwork was to be fabricated according to industry HVAC construction standards. The general requirements that formed part of the prime contract did not specify who was required to fabricate HVAC materials. The subcontract provided that the project was subject to prevailing wage requirements and required Russ Will to “pay not less than the [applicable prevailing wage] to all laborers, workmen, and mechanics employed by him at the project site in the execution of work hereunder.”
Since 1991, Russ Will has fabricated materials at a permanent offsite facility it operates in Hayward. The offsite facility was not established for the project at issue here but instead has been utilized to manufacture items for various private and public prоjects. Russ Will does not sell the materials it fabricates to the general public.
Steve Neves, an employee of Russ Will, filed a complaint with the Department of Industrial Relations, Division of Labor Standards Enforcement
DLSE issued a civil wage and penalty assessment against Russ Will for failing to pay prevailing wages for the fabrication work performed in its Hayward facility. Russ Will requested a review of the assessment pursuant to
The Department of Industrial Relations (department) issued a coverage determination in which it concluded that Russ Will was required to pay prevailing wages for the offsite fabrication work associated with the project. The department‘s determination turned on whether Russ Will was exempt from the prevailing wage law as a material supplier. To qualify for the material supplier exemption, the employer must sell supplies to the general public and its fabrication or manufacturing facility must not be established for the particular public works contract or be located at the site of the public work. (See O. G. Sansone Co. v. Department of Transportation (1976) 55 Cal.App.3d 434, 442 [127 Cal.Rptr. 799] (Sansone).) Because Russ Will does not sell supplies to the general public, the department concluded that Russ Will was properly characterized as a subcontractor under
In its decision on administrative appeal, the department reversed its initial coverage determination and concluded that the offsite fabrication performed by Russ Will was not subject to the prevailing wage law. Although the department again concluded that Russ Will was a subcontractor within the meaning of the prevailing wage law and did not qualify for the material supplier exemption, the department explained that this conclusion did not
Local 104 filed a petition for a writ of mandate in the superior court against the department and its director challenging the department‘s coverage decision.2 In its petition, Local 104 alleged that, unlike a material supplier that is exempt from the prevailing wage law, Russ Will‘s offsite facility fabricated customized sheet metal items in accordance with the specifications in the project‘s contract documents. According to Local 104, because the custom fabrication was an integral part of the project and was performed in the execution of a public works contract, the work should have been covered by the prevailing wage law.
The superior court granted the petition and directed the issuance of a writ of mandate. The court reasoned that the department “applied an incorrect legal standard by relying exclusively on federal law.” According to the court, the correct legal standard for analyzing whether offsite work is covered by California‘s prevailing wage law is set forth in Williams v. SnSands Corp. (2007) 156 Cal.App.4th 742 [67 Cal.Rptr.3d 606] (Williams). The court remanded the matter to the department for reconsideration utilizing the legal standard set forth in Williams.
Following entry of judgment, Russ Will filed a timely notice of appeal. Although the department participated in the proceedings before the superior court, it did not participate in this appeal or file any briefs in this court.
1. Standard of Review
The department‘s coverage determination constitutes a quasi-legislative act that is subject to review by traditional mandate under
As a general matter, evidence outside the record before the administrative agency is inаdmissible in traditional mandate actions challenging quasi-legislative administrative decisions on the ground the agency did not proceed in the manner required by law. (See Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 576 [38 Cal.Rptr.2d 139, 888 P.2d 1268].) Consequently, our review is confined to facts established in the administrative record of the proceedings before the department.3
The issue raised on appeal requires us to consider whether and under what circumstances the prevailing wage law extends to work performed away from the site of a public works project. Our starting point is the language of the relevant statutes.
“The primary goal in construing a statute is to ascertain legislative intent so as to effectuate the purpose of the law. [Citation.] To do so, we first examine the language of the statute, giving the words their ordinary, commonsense meaning and according significance to all words used, if possible.” (Friends of Lagoon Valley v. City of Vacaville (2007) 154 Cal.App.4th 807, 825 [65 Cal.Rptr.3d 251]; accord, Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1386 [241 Cal.Rptr. 67, 743 P.2d 1323].) A specific statutory provision should be construed with reference to the entire statutory scheme in order to harmonize the various elements. (Cf. Bowland v. Municipal Court (1976) 18 Cal.3d 479, 489 [134 Cal.Rрtr. 630, 556 P.2d 1081].) This principle is particularly apt in the context of the prevailing wage law, portions of which have been described as “hardly a triumph of the drafter‘s art.” (State Building & Construction Trades Council of California v. Duncan (2008) 162 Cal.App.4th 289, 308 [76 Cal.Rptr.3d 507].)
California‘s prevailing wage law (
The purpose of the prevailing wage law is “to protect and benefit employees on public works projects.” (Lusardi Construction Co. v. Aubry (1992) 1 Cal.4th 976, 985 [4 Cal.Rptr.2d 837, 824 P.2d 643].) “This general objective subsumes within it a number of specific goals: to protect employees from substandard wages that might be paid if contractors could recruit labor from distant cheap-labor areas; to permit union contractors to compete with nonunion contractors; to benefit the public through the superior efficiency of well-paid employees; and to compensate nonpublic employees with higher wages for the absence of job security and employment benefits enjoyed by public employees.” (Id. at p. 987.) The lаw is to be liberally construed, although courts are not empowered to “‘interfere where the Legislature has demonstrated the ability to make its intent clear and chosen not to act.‘” (City of Long Beach, supra, 34 Cal.4th at p. 950.)
The term “public works” is defined in
Local 104 claims the reach of the prevailing wage law is broad and without geographical limitation because of language in
For its part, Russ Will contends that Local 104‘s legal position is based on an unsupported and overly expansive interpretation of the phrase “in the execution of” in
Russ Will argues that the limiting principle is found in statutory language specifying that prevailing wages apply to workers “employed on public works.” (
Further, the language of California‘s prevailing wage law differs from the language of the federal Davis-Bacon Act, which plainly imposes a geographical limitation on the application of the federal prevailing wage law. The Davis-Bacon Act applies to “mechanics and laborers employed directly on the site of the work.” (
Local 104 claims it is significant that the California Legislature chose not to adopt the Davis-Bacon Act‘s “directly on the site” coverage language. It relies on the principle that “[t]he omission of a provision contained in a foreign statute providing the model for action by the Legislature is a strong indication that the Legislature did nоt intend to import such provision into the state statute.” (J. R. Norton Co. v. General Teamsters, Warehousemen & Helpers Union (1989) 208 Cal.App.3d 430, 442 [256 Cal.Rptr. 246].) As support for its view, Local 104 cites a litany of out-of-state cases in which courts have concluded that a state prevailing wage law that omits the words “directly” or “at the site of the work” should be interpreted more broadly than the Davis-Bacon Act. (See Sharifi v. Young Brothers, Inc. (Tx.Ct.App. 1992) 835 S.W.2d 221, 223; Everett Concrete Products, Inc. v. Department of Labor & Industry (1988) 109 Wn.2d 819 [748 P.2d 1112, 1115-1116]; Long v. Interstate Ready-Mix (Mo.Ct.App. 2002) 83 S.W.3d 571, 578.)
Moreover, Local 104‘s contention that the prevailing wage law contains no geographical restriction is belied by references in various statutes to the jobsite or the site of the public work. For example,
3. California Case Law Addressing Offsite Work—Sansone and Williams
Our analysis is guided by two published California decisions that address whether an employee is entitled to prevailing wages for work performed away from the site of the public work—Sansone, supra, 55 Cal.App.3d 434, and Williams, supra, 156 Cal.App.4th 742. As Russ Will points out, these are “hauling” cases, which means they involve drivers who haul materials to or from the site of a public works project. They do not involve the manufacture or fabrication of materials at a permanent offsite facility.
In Sansone, the court addressed whether drivers who hauled materials onto a public works site should be treated as subcontractors and therefore subject to the prevailing wage law. (Sansone, supra, 55 Cal.App.3d at p. 441.) In determining that the drivers were entitled to prevailing wages, the court was guided by the reasoning applied in the context of the Davis-Bacon Act by the United States Court of Claims in H.B. Zachry Co. v. U.S. (Ct.Cl. 1965) 344 F.2d 352 [170 Ct.Cl. 115] (Zachry). (Sansone, supra, at p. 442.) The court in Zachry noted that bona fide material suppliers (also referred to as “materialmen“) that sell building materials to a contractor engaged in a public works project had long been excluded from coverage under the Davis-Bacon Act. (Zachry, supra, at p. 359.) To qualify for this material supplier exemption, the material suppliers had to be selling supplies to the general public, the plant could not be established specially for the particular public works contract, and the plant could not be located at the project site. (Ibid.) The Zachry court concluded that a trucker‘s employees that delivered building materials to a project site were not covered by the Davis-Bacon Act because the function the trucking company performed—the delivery of standard matеrials—was a “function which is performed independently of the contract construction activities.” (Zachry, at p. 361.) The court reasoned that its decision was a “logical extension” of the congressional intent to exclude material suppliers from coverage under the Davis-Bacon Act. (Zachry, at p. 361.)
Whereas Sansone concerned “on-hauling” materials onto the site of public works project, the other relevant California case, Williams, supra, 156 Cal.App.4th at page 749, specifically аddressed removing or “off-haul[ing]” construction materials from a site. (Italics omitted.) The Williams court focused on the meaning of the “in the execution of” language in
There is substantial disagreement concerning the role that Sansone and Williams should play in our analysis. Russ Will dismisses them as “hauling cases” that are limited to their facts. Similarly, although the department considered Sansone and Williams in reaching its decision, it noted that the decisions did not address the specific issue posed by this case. By contrast, the superior court concluded that the proper legal standard for analyzing this dispute is set forth in Williams, and Local 104 contends that any attempt to discount Sansone or Williams simply as a hauling case is myopic.
Sansone and Williams are relevant to our analysis to the extent they set forth a general framework for considering whether certain functions are
The specific factors considered by the courts in Sansone and Williams are less helpful to our analysis. In Sansone, the court‘s decision turned on factors specific to the delivery of materials onto a jobsite. (See Williams, supra, 156 Cal.App.4th at p. 752 [setting forth factors considered in Sansone, including whether hauled materials were immediately distributed onto the jobsite].) Although the court in Williams cited the factors relied upon by Sansone, it determined that the “off-hauling” question had to be considered anew. (Williams, supra, at p. 752.) The court set forth the following three factors to be considered in assessing off-hauling activities: “whether the transport was required to carry out a term of the public works contract; whether the work was performed on the project site or another site integrally connected to the project site; whether work that was performed off the actual construction site was nevertheless necessary to accomplish or fulfill the contract.” (Ibid.)
The three factors cited by the Williams court have a more general application than the ones relied upon by the Sansone court. Nevertheless, the factors arose and were applied in the context of off-hauling and necessarily were tailored to that activity. Hauling and fabrication are distinct activities that give rise to different concerns in the context of the prevailing wage law. Among other things, hauling activities necessarily have at least a limited geographical connection to the public works site. By contrast, offsite fabrication could theoretically take place anywhere in the world. Further, fabrication could take place in a permanent offsite facility that has an existence and operation wholly independent of the public works project, or it could take place in a facility specifically designed for the project. These facts bear upon whether a particular operation forms an integral part of the flow of the construction process. The factors cited in Williams do not necessarily address issues unique to offsite fabrication.
Moreover, Local 104‘s application of the factors in Williams demonstrates their limitations in the context of offsite fabrication. Local 104 seems to ignore the first two factors—which presumably are not satisfied under the facts of this case—and instead focuses almost exclusively on the third—whether offsite work was “necessary to accomplish or fulfill the contract.” (Williams, supra, 156 Cal.App.4th at p. 752.) Considered alone, this factor provides little or no more guidance than the language of
While we conclude that Sansone and Williams contain useful general guidelines for considering whether offsite work is covered under the prevailing wage law, the specific concerns addressed in those cases are not dispositive of the issue raised here.
4. The Department‘s Long-standing Approach to the Issue of Offsite Fabrication
Although the ultimate responsibility for the construction of a statute rests with the court, we accord great weight and respect to the construction of the statute by the agency charged with administering the statute. (Sharon S. v. Superior Court (2003) 31 Cal.4th 417, 436 [2 Cal.Rptr.3d 699, 73 P.3d 554]; Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 12 [78 Cal.Rptr.2d 1, 960 P.2d 1031].) Deference to an administrative agency‘s interpretation is situational and depends on a complex of factors. (Yamaha Corp. of America v. State Bd. of Equalization, supra, at p. 12.) An agency‘s interpretation is entitled to greater weight when “the agency has special expertise and its decision is carefully considered by senior agency officials . . . .” (Sharon S. v. Superior Court, supra, at p. 436.)
An agency‘s interpretation is also given greater credit when it is consistent and long-standing, whereas a vacillating position is not entitled to deference by the courts. (Yamaha Corp. of America v. State Bd. of Equalization, supra, 19 Cal.4th at p. 13.) A long-standing and consistent interpretation should generally not be disturbed unless it is clearly erroneous. (Id. at p. 21 (conc. opn. of Mosk, J.).) Because the Legislature is presumed to be aware of a long-standing administrative practice, the failure to substantially modify a statutory scheme is a strong indication that the administrative practice is consistent with the Legislature‘s intent. (Id. at p. 22 (conc. opn. of Mosk, J.).)
The department‘s interpretation of the law as it relates to offsite fabrication arises in the context of coverage determinations under the prevailing wage law. Although the department has determined that its coverage determinations do not have precedential value, the determinations nonetheless constitute administrative interpretations entitled to considerable deference. As the superior court recognized, the department has special expertise in administering the prevailing wage law. Coverage determinations typically result from adversarial proceedings, and the determinations—which are issued by the director of the department—are plainly the product of careful consideration by senior members of the administrative agency.
As early as 1984, the department determined that offsite fabrication work performed at a permanent facility was not subject to prevailing wage
More recently, in 2008, the department determined that the prevailing wage law did not apply to modular units to be installed at a school site, because the units were fabricated at a permanent offsite facility that was not integrаlly connected to the project site. (Wasco Union High School Dist. (May 5, 2008) Dept. Pub. Works, case No. 2007-009.) Likewise, in another 2008 decision, the department determined that the prevailing wage law did not apply to the fabrication of construction materials at a permanent offsite facility. (Sunset Garden Apartments (May 28, 2008) Dept. Pub. Works, case No. 2008-008.) In both cases, the offsite facility also sold supplies to other contractors.
These coverage determinations as well as others cited by the parties to this appeal establish that the department has followed a consistent and long-standing practice with regard to offsite fabrication. The department has determined that fabrication work performed at a permanent offsite facility not exclusively dedicated to the public works project is not covered by the prevailing wage law, whereas fabrication work performed at a temporary facility that is dedicated to the project is covered. Local 104 argues that the department‘s prior decisions on offsite fabrication turn on an application of thе three-part material supplier exemption and do not address the specific issue here—i.e., whether an employee who fabricates materials at a permanent offsite facility is covered by the prevailing wage law when the employer does not sell supplies to the general public and therefore does not satisfy one of the criteria to qualify for the material supplier exemption. We agree that the prior determinations of the department do not address this specific issue or involve a fact pattern identical to the one presented here. Nonetheless, the department‘s coverage determinations establish a consistent pattern of exempting fabrication work performed at permanent offsite facilities from the scope of the prevailing wage law.
Local 104 contends the department‘s interpretation is entitled to no deference because the department has been inconsistent in its approach to the issue of offsite fabrication. We disagree. Local 104 cites the fact that the deрartment initially determined in this case that Russ Will was required to pay prevailing wages for the offsite fabrication work associated with the project. Of course, that decision was overturned on appeal. Local 104 also relies on two coverage determinations from 2003 in which the department concluded that offsite fabrication at a permanent facility was covered by the prevailing wage law. (See Cuesta College (Mar. 4, 2003) Dept. Pub. Works, case No. 2000-027;
5. Assessing Whether the Department‘s Coverage Determination Was Erroneous
Our analysis to this point leads us to the same conclusion reached by the department—that there is a lack of clear and authoritative guidance concerning whether fabrication is subject to the prevailing wage law when performed in a permanent offsite facility of a contractor or subcontractor that does not sell supplies to the general public. The statutory framework, existing case law, and prior coverage determinations do not provide a definitive answer to this question.
In determining that the offsite fabrication performed by Russ Will was not subject to the prevailing wage law, the department reasoned that the existence and location of Russ Will‘s permanent offsite shop did not turn on a particular public works contract or project. As support for its conclusion, the department relied upon a federal regulation defining the “site of the work” as used in the Davis-Bacon Act. The relevant regulation provides that the “site of the work” under the Davis-Bacon Act does not include “permanent . . . fabrication plants . . . of a contractor or subcontractor whose location and continuance in operation are determined wholly without regard to a particular Federal or federally assisted contrаct or project.” (
Local 104‘s primary complaint on appeal is that the director erred in relying on a federal regulation instead of applying the standard set forth in
In assessing the scope of coverage under the prevailing wage law, California cоurts have turned to the Davis-Bacon Act for guidance on issues not clearly answered by California authority. (See City of Long Beach, supra, 34 Cal.4th at p. 954.) As our Supreme Court has stated, “California‘s prevailing wage law is similar to the federal act and share its purposes.” (Ibid.) “Read as a unit [the prevailing wage law] and [the Davis-Bacon Act] set out two separate, but parallel, systems regulating wages on public contracts.” (Southern Cal. Lab. Management etc. Committee v. Aubry (1997) 54 Cal.App.4th 873, 883 [63 Cal.Rptr.2d 106].) Thus, unless the Davis-Bacon Act is fundamentally inconsistent with the portions of the prevailing wage law that one seeks to interpret, the approach taken under the Davis-Bacon Act may provide useful guidance.
Local 104 claims that such an inconsistency exists here because the Davis-Bacon Act limits its application to the site of the work whereas the prevailing wage law contains no such geographical limitation. We are not convinced that any such difference precludes turning to the Davis-Bacon Act for guidance, at least with respect to the treatment of work performed at permanent offsite fabrication facilities. As explained above, the prevailing wage law is ambiguоus concerning its geographic scope. There is no clear indication the Legislature rejected some geographical restriction on its application, particularly in the face of statutes that refer to the site of the work. Moreover, the case law that Local 104 claims provides the standard for assessing offsite work—Sansone and Williams—is premised in significant part upon the material supplier exemption under the Davis-Bacon Act. (Sansone, supra, 55 Cal.App.3d at pp. 442-443; Williams, supra, 156 Cal.App.4th at pp. 750-751.) The material supplier exemption derives from the legislative history of the Davis-Bacon Act and not from any specific statutory authority in the prevailing wage law. (See Zachry, supra, 344 F.2d at p. 358.) In addition, the material supplier exemption turns on the geographic location of the plant. (Id. at p. 359 [“the plant is not located at the site of the work“].) Thus, California law already relies upon the Davis-Bacon Act for guidance concerning offsite work and also incorporates criteria based upon the site of the work. Furthermore, the approach taken under federal law to permanent offsite fabrication facilities is consistent with the long-standing
Wholly apart from the question of whether the department properly relied upon a federal regulation promulgated under the Davis-Bacon Act, the department‘s coverage determination is consistent with the principles set forth in Sansone and Williams. Work performed at a permanent, offsite, nonexclusive, manufacturing facility does not constitute an integral part of the process of construction at the site of the public work. Fabrication performed at a permanent offsite facility is independent of the performance of the construction contract because the facility‘s existence and operations do not depend upon a requirement or term in the public works contract. By contrast, a temporary facility set up specifically to service a public works contract could be characterized as an integral part of the construction process. Such a temporary facility‘s existence and purpose is driven entirely by the needs of the public works project.
Local 104 urges that the focus for purposes of deciding whether offsite fabrication is subject to the prevailing wage law should be upon whether the fabricated items are standard or customized. Presumably, Local 104 would argue that items fabricated to custom specifications are more closely integrated in the process of construction than standard items. The facts of this case demonstrate why any attempt to distinguish between customized and standard items may produce greater confusion than clarity. According to Russ Will, it could have purchased at least some of the fabricated sheet metal items from standard industry catalogs. Other items were considered custom because of the nonstandard dimensions. Plainly, the standard items are not considered custom simply because Russ Will chose to fabricate them in-house instead of purchasing them from an outside supplier. Further, if the determination of coverage under the prevailing wage law turns on whether fabricated items are custom or standard, the question remains whether the fabrication work is subject to the prevailing wage law simply because some portion of the fabricated items is made to custom specifications. In short, determining whether fabricated items are custom or standard may prove to be a difficult task and may have little bearing on whether fabrication is integrated into the flow of construction.
In this case, Russ Will would have qualified as an exempt material supplier but for the fact that it does not sell supplies to the general public.9 The question arises why coverage under the prevailing wage law in this case should turn on whether Russ Will sells products to the public at large. The sale of products to the public does not bear upon whether the fabrication performed at a permanent facility is integral to the flow of the construction process. If we were to accept Local 104‘s position, an offsite facility that meets the three-part material supplier test would be exempt from the prevailing wage law but another facility that is similar in all respects except for the sale of supplies to the public would be subject to the requirements of the prevailing wage law. There is no basis to make this distinction if the critical consideration under California law is whether the offsite operation is integral to the construction process.
The position taken by the department here provides certainty and clarity. As the court еxplained in McIntosh v. Aubry, supra, 14 Cal.App.4th at page 1593, “[p]arties must be able to predict the public-works consequences of their actions under reasonably precise criteria and clear precedent.” A nebulous standard or set of factors governing whether offsite work is covered by the prevailing wage law would create confusion and uncertainty.
If Local 104 seeks to expand the coverage of the prevailing wage law, the issue and the associated public policy questions are best left to the Legislature. As explained by the department in the action below, “the California legislature has long been aware of the industry custom and administrative interpretation [governing offsite fabrication], and has not seen fit to mandate coverage for off-site fabrication in permanent shops, despite numerous
We conclude that the department did not err in issuing the coverage determinatiоn in this case. Offsite fabrication is not covered by the prevailing wage law if it takes place at a permanent offsite manufacturing facility and the location and existence of that facility is determined wholly without regard to the particular public works project. Because the offsite fabrication at issue here was conducted at Russ Will‘s permanent offsite facility, and that facility‘s location and continuance in operation were determined wholly without regard to the project, the work was not done “in the execution” of the contract within the meaning of
In light of our conclusion, it is unnecessary to address any additional contentions that Russ Will raises in its appeal.
Disposition
The judgment is reversed and the matter is remanded with directions to enter a new order denying the petition for writ of mandate. Appellant shall recover its costs on appeal.
Pollak, J., and Jenkins, J., concurred.
The petition of plaintiff and respondent for review by the Supreme Court was denied November 19, 2014, S221696.