Filed 8/18/26 Montelongo v. Simpson Sandblasting and Special Coating CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
JOEL MONTELONGO, D088187
Plaintiff and Appellant,
v. (Super. Ct. No.
CIVSB2405807)
SIMPSON SANDBLASTING AND
SPECIAL COATING, INC. et al.,
Defendants and Respondents.
APPEAL from an order of the Superior Court of San Bernardino
County, Joseph T. Ortiz, Judge. Affirmed.
Young W. Ryu, Zachariah E. Moura, Kee S. Mah, Harley M. Phleger
and Guanchen Liu, for Plaintiff and Appellant.
Hackler Flynn & Associates and Elizabeth A. Ernster, for Defendants
and Respondents.
Joel Montelongo appeals an order granting Simpson Sandblasting and
Special Coatings, Inc. and Ryan Patrick Simpson’s (collectively, respondents)
renewed motion to dismiss under Code of Civil Procedure section 1008,
subdivision (b). We conclude the trial court did not abuse its discretion when
it considered respondents’ renewed motion to dismiss and the court did not
err in granting the motion to dismiss on the merits.
FACTUAL AND PROCEDURAL BACKGROUND
Respondents employed Montelongo as an industrial painter in 2022
and, as relevant here, again from July 25, 2023, until August 5, 2023, at a job
site in Eureka, California. During the period of employment in 2023,
Montelongo claims that respondents violated multiple Labor Code provisions,
including failure to provide meal and rest periods, to timely pay wages, and
to reimburse necessary business expenses. While employed by respondents,
Montelongo was a member of the Painters and Allied Trades District Council
No. 36 labor union.
On March 27, 2024, Montelongo filed his initial complaint alleging six
causes of action for Labor Code violations on a class action basis. He later
filed a First Amended Complaint (FAC) asserting a single cause of action
under the Private Attorneys General Act of 2004 (PAGA; Lab. Code,1 § 2698
et seq.)
Respondents filed a Motion to Dismiss Action.2 They claimed that,
during Montelongo’s 2023 employment with respondents, Montelongo was a
member of a union with which respondents had entered into a collective
bargaining agreement. Montelongo was subject to the terms of this
1 Further statutory references are to the Labor Code unless otherwise
indicated.
2 Respondents’ motion was titled “Motion to Dismiss Action . . . or, in the
Alternative, To Compel Arbitration.” The trial court concluded the
alternative motion was insufficiently set forth and, to be heard on the
alternative matter, respondents would need to pay a second filing fee as
required under San Bernardino Superior Court Local Rule 521.
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agreement, entitled “Painters and Allied Trades District Council No. 36
Master Labor Agreement,” which covered areas of Southern California where
respondents’ business was based. Respondents contended this Southern
California collective bargaining agreement (SCCBA) governed Montelongo’s
employment and met the requirements for dismissal under the construction
worker exemption to PAGA set forth in Labor Code section 2699.6,
subdivision (a).
The trial court denied respondents’ motion finding that the
construction worker exemption did not apply because the SCCBA did not
meet one of four provisions under section 2699.6, subdivision (a).
Specifically, the SCCBA did not expressly authorize the arbitrator to “ ‘award
any and all remedies’ otherwise available under the Labor Code” as required
under section 2699.6, subdivision (a)(3). Rather, under Article 17 of the
SCCBA, an award for an employee filing a wage grievance “shall be limited to
thirty (30) calendar days, four (4) one (1) week pay periods of back wages.”
By comparison, the Labor Code contained no such limitation “as the statute
of limitations on a PAGA claim runs a year back.” Because the SCCBA did
not authorize the arbitrator to award “any and all remedies” under the Labor
Code, the court found it could not satisfy the construction worker exemption.
(§ 2699.6, subd. (a).)
Respondents filed a renewed motion to dismiss under the Code of Civil
Procedure section 1008, subdivision (b), arguing the motion should be
reheard due to new facts and circumstances, namely, the discovery of a
different collective bargaining agreement that covered Northern California
(NCCBA). In support, respondents submitted declarations attesting they
discovered the NCCBA through discussions with the union and its attorney
after respondents’ first motion was denied. Respondents also argued that the
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NCCBA expressly met the requirements of the construction worker’s
exemption.
Montelongo opposed the renewed motion, arguing respondents
presented no new information that, with the exercise of reasonable diligence,
could not have been produced before filing the original motion. On the
merits, Montelongo argued the construction worker exemption still did not
apply because, like the SCCBA, the NCCBA failed to meet the requirement of
section 2699.6 subdivision (a). Although Montelongo acknowledged that the
NCCBA expressly authorized an arbitrator to award “any and all remedies”
available under the Labor Code, he argued that this provision conflicted with
another NCCBA provision limiting wage claims to “the last thirty (30)
calendar days worked.” He contended the conflict was irreconcilable and that
the ambiguity should therefore be construed against respondents as the
drafters of the agreement. The court disagreed and granted respondents’
motion to dismiss.
DISCUSSION
A. The Trial Court Properly Considered the Renewed Motion
Montelongo contends the trial court abused its discretion in considering
respondents’ renewed motion to dismiss because, had respondents exercised
the requisite due diligence, they would have discovered the NCCBA and its
applicability before the initial hearing.
1. Renewed motions under California Code of Civil Procedure Section
1008, subdivision (b)
“Section 1008, which governs applications for reconsideration and
renewed applications, appears in a chapter of the Code of Civil Procedure
(pt. 2, tit. 14, ch. 4, §§ 1003–1008) setting out rules generally applicable to
motions and orders.” (Even Zohar Construction & Remodeling, Inc. v.
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Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 839 (Even Zohar).) The
provision at issue here, subdivision (b), allows “ ‘[a] party who originally
made an application for an order which was refused in whole or part’ ” to
“ ‘make a subsequent application for the same order upon new or different
facts, circumstances, or law’ ” set forth in an accompanying affidavit. (Global
Protein Products, Inc. v. Le (2019) 42 Cal.App.5th 352, 362.) The affidavit
must contain this information: (1) what application was made before;
(2) when and to what judge; (3) what order or decisions were made; (4) what
new facts, circumstances, or law are claimed to be shown. (Code Civ. Proc.,
§ 1008, subd. (b).) Critically, section 1008 “require[s] a party filing . . . a
renewed application to show diligence with a satisfactory explanation for not
having presented the new or different information earlier.” (Even Zohar,
supra, 61 Cal.4th at p. 839.)
Code of Civil Procedure section 1008 is jurisdictional. (Id., subd. (e).)
Thus, if a party moving for reconsideration or renewal does not show new or
different facts, circumstances or legal authorities that were not previously
presented in the original motion, the court lacks jurisdiction to entertain the
request for reconsideration. (Le Francois v. Goel (2005) 35 Cal.4th 1094,
1104, 1108; Kerns v. CSE Ins. Group (2003) 106 Cal.App.4th 368, 391.)
We review the trial court’s ruling on a motion for reconsideration under
the abuse of discretion standard. (Lucas v. Santa Maria Public Airport Dist.
(1995) 39 Cal.App.4th 1017, 1027–1028.) Thus, whether respondents
presented new or different facts sufficient to satisfy the requirements of Code
of Civil Procedure section 1008, subdivision (b), is a “question confided to the
sound discretion of the trial court, with the exercise of which [the appellate
court] will not interfere absent an obvious showing of abuse.” (Graham v.
Hansen (1982) 128 Cal.App.3d 965, 971.)
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2. Analysis
Montelongo argues respondents did not exercise proper diligence to
justify a grant of the renewed motion. Specifically, respondents knew or
should have known: (1) he worked in Northern California; (2) the terms of
the SCCBA subjected the employer to other collective bargaining agreements
when work was performed outside the geographic jurisdiction of the SCCBA;
and (3) the NCCBA was publicly available online.. He contends respondents
failed to sufficiently explain why they did not discover the NCCBA prior to
the hearing on the initial motion to dismiss, therefore, they cannot
demonstrate diligence. We disagree and conclude the court did not abuse its
discretion in considering the renewed motion.
First, respondents’ motion complied with the four statutory
requirements of Code of Civil Procedure section 1008, subdivision (b).
Respondents provided an affidavit from their counsel, Nida L. Henderson,
which identified the prior application made, the original motion to dismiss,
the judge and date upon which the application was made, the decision made,
and the new facts—the discovery and applicability of the NCCBA—which
supported their request for reconsideration.
Second, in addition to the statutory requirements, the respondents
provided affidavits explaining why the NCCBA was not presented in their
original motion. (See Even Zohar, supra, 61 Cal.4th at p. 839 [requiring a
satisfactory explanation for not having presented the new or different
information earlier].) In an affidavit, Ryan Patrick Simpson states the union
provided him with the NCCBA after the original motion was denied, which is
why it was not presented in the original motion. In the Henderson affidavit,
counsel states she received the NCCBA after the denial of the original
motion, when she began discussions with the union’s counsel. Having
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considered the respondents’ affidavits attesting to their lack of knowledge
about a separate collective bargaining agreement, their new discussions with
union counsel, and their subsequent acquisition of the NCCBA, the court
found their explanation for why the NCCBA was not presented earlier to be
satisfactory.
In reaching this conclusion the trial court found instructive Mink v.
Superior Court (1992) 2 Cal.App.4th 1338 and considered the parties’ mutual
mistake of fact at the time of the hearing. In Mink, the court dismissed
several causes of action because the 10-year statute of limitations had run by
a few days. After dismissal, plaintiffs discovered that the statute had not run
because of an intervening weekend and court holiday, and they moved for
reconsideration. The court denied plaintiff’s motion to reconsider, finding
that counsel’s failure to discover the mistake before summary adjudication
was inexcusable. The court of appeal disagreed, holding that plaintiffs were
entitled to relief since all parties were operating under the same mistaken
assumption that the statute of limitations had run, when in fact it had not
run. Similarly, the parties in this case based their arguments on the
mistaken presumption that the SCCBA was the operative agreement.
Here, the mutual mistake was not readily apparent at the time of the
initial hearing. Montelongo contends that the pleadings clearly identified
Eureka, California, as the worksite and therefore put respondents on notice
that the SCCBA was not the governing agreement. The record, however, is
not so clear. Although the initial complaint and the FAC referenced Eureka,
California once, both complaints repeatedly indicated that the operative
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events occurred in San Bernardino County, including allegations that:
(1) Montelongo was living and working in San Bernardino County; (2) claims
took place and business was transacted in San Bernardino County; (3) venue
was proper because respondents’ place of business was located in San
Bernardino County. Also, the FAC was filed in the Superior Court for the
County of San Bernardino. The SCCBA itself identifies San Bernardino
County as within its geographic coverage. In addition, the record included
union benefit statements identifying the title of the SCCBA—not the
NCCBA—and reflecting the union dues respondents paid on behalf of
Montelongo and other employees. Viewed as a whole, the pleadings and
record evidence did not make it readily apparent that any agreement other
than the SCCBA governed merely because the FAC contained a single
reference to Eureka, California.
Had it been apparent, either party would have presumably advised the
court of the mistake. (See, e.g., Levine v. Berschneider (2020) 56 Cal.App.5th
916, 921 [duty of candor includes an affirmative duty to inform the court
when a material statement of fact or law has become false or misleading in
light of subsequent events]). Here, as neither party had any awareness that
the NCCBA controlled, we find the court’s reliance on Mink appropriate.
Montelongo does not point to any authority precluding the court from
considering respondents’ discovery of a mutual mistake as a new fact for a
renewed motion under Code of Civil Procedure section 1008.
Montelongo relies on New York Times Co. v. Superior Court (2005)
135 Cal.App.4th 206 (New York Times) arguing respondents’ proffered
explanation as to why they did not discover the NCCBA earlier was
insufficient to show diligence. In New York Times, the court of appeal
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concluded the trial court abused its discretion in granting a motion for
reconsideration of summary judgment where the motion was based on
evidence known to or available to the moving party before the summary
judgment hearing. (Id. at pp. 213–214.)
We find New York Times distinguishable. There, a newspaper obtained
summary judgment on its breach of contract cross-complaint against an
advertising company. The advertising company moved for reconsideration,
seeking to introduce deposition testimony obtained two days before the
summary judgment hearing. The advertising company admitted, however,
that it had not presented the testimony because it believed the existing
evidence was sufficient to defeat summary judgment. (New York Times,
supra, at p. 214.) Although the trial court granted reconsideration, the court
of appeal directed the trial court to vacate its order, concluding that the
deposition testimony did not constitute “new” evidence because it existed
before the hearing, yet the advertising company neither presented it nor
sought a continuance to do so. (Id. at pp. 210, 215.) The court of appeal also
rejected the advertising company’s reliance on Mink, concluding that, unlike
in Mink, there was no mutual mistake of fact. (Id. at p. 214.)
The circumstances here are materially different. Respondents neither
possessed the NCCBA nor had actual notice of its existence or applicability
when the initial motion was heard. By contrast, the movants in New York
Times had the “new” evidence before the hearing but made a strategic
decision not to present it because they believed it unnecessary. Moreover, in
New York Times, the parties had already completed the discovery process,
allowing them to obtain and review all relevant evidence. Here, discovery
was not complete, and the parties were still in the process of gathering
evidence. Accordingly, Montelongo’s reliance on New York Times is
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unpersuasive, and we conclude the trial court did not abuse its discretion in
considering respondents’ renewed motion to dismiss.
B. The Trial Court Did Not Err in Concluding the Construction Worker
Exemption to PAGA Applied
Montelongo contends the NCCBA did not satisfy the requirements of
the construction worker exemption to justify dismissal of his PAGA claim.
1. Construction worker exemption to PAGA
“PAGA allows employees, acting on behalf of the state, to bring civil
actions to redress Labor Code violations.” (Oswald v. Murray Plumbing &
Heating Corporation (2022) 82 Cal.App.5th 938, 943 (Oswald); §§ 2699,
subd. (a), 2699.3, 2699.5.) “The right to file a PAGA action generally cannot
be waived by contract.” (Oswald, supra, at p. 941.) In 2018, however, the
Legislature carved out an exception to the rule, exempting construction
workers from PAGA if a collective bargaining agreement covers wages, hours
and working conditions and (1) has a grievance and arbitration procedure to
redress Labor Code violations; (2) clearly waives PAGA; and (3) authorizes
the arbitrator to award any and all remedies available under the Labor Code.
(§ 2699.6, subd. (a); Oswald, supra, at p. 941.) Here, the parties do not
dispute that the NCCBA meets elements (1) and (2). The sole issue is
whether the NCCBA authorizes the arbitrator to award “any and all”
remedies available under the Labor Code.
We review a trial court’s interpretation of an arbitration agreement de
novo. (DMS Services, LLC v. Superior Court (2012) 205 Cal.App.4th 1346,
1352.)
2. Analysis
Montelongo argues the construction worker exemption does not apply
because the terms of the NCCBA do not provide for “any and all remedies”
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under the Labor Code, as required under section 2699.6, subdivision (a)(3).
He does not dispute that the language of Article 15 in the NCCBA, expressly
authorizes the arbitrator “to award any and all remedies . . . under the Labor
Code,” as required for the exemption. Instead, he argues Article 10,
Section 11 of the NCCBA contradicts the Article 15 language because it limits
wage dispute claims to “the last thirty (30) calendar days worked,” whereas
elsewhere in the Labor Code, a successful employee in an action to recover
unpaid wages is entitled to recover the entire amount of unpaid wages within
a three-year statutory period as liquidated damages, plus interest. (Lab.
Code, § 1194.2.) Thus, he maintains that the NCCBA fails to provide for at
least two remedies mandated under the Labor Code: three years of
liquidated damages and interest on those damages. He argues the NCCBA,
therefore, does not actually authorize the arbitrator to award “any and all”
remedies available under the Labor Code, and thus, cannot satisfy the
construction worker exemption under section 2699.6 subdivision (a)(3). We
are not persuaded.
First, the text of the NCCBA, Article 15, Section 9 closely tracks the
statutory language of the construction worker exemption set forth in Labor
Code section 2699.6, subdivision (a)(3). Specifically, in its arbitration
provision, the NCCBA “expressly authorizes” the arbitrator to award “any
and all remedies otherwise available under the California Labor Code, except
the award of penalties under PAGA that would be payable to the Labor and
Workforce Development Agency.” That the language in NCCBA echoes the
language in section 2699.6, subdivision (a)(3), demonstrates that the NCCBA,
on its face, satisfies the statutory requirement that the arbitrator be
authorized to award “any and all” Labor Code remedies.
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Second, the NCCBA unambiguously reflects the parties’ mutual intent
to invoke the construction worker exemption. The title itself is instructive,
expressly stating “California Private Attorneys General Act Preclusion.”
Article 15, Section 9 of the NCCBA states that “it is mutually agreed” that
the agreement prohibits violations redressable under PAGA and “the parties
hereby expressly and unambiguously waive the provisions of PAGA.” In
interpreting a contract, our task is to give effect to the parties’ mutual intent
as expressed in the contractual language. (Civ. Code, § 1636.) The language
of Article 15, Section 9 leaves no doubt that the parties agreed to apply the
PAGA construction worker exemption and resolve covered claims through
arbitration.
We read the NCCBA as a whole, giving effect to all of its provisions
whenever “reasonably practicable.” (Iqbal v. Ziadeh (2017) 10 Cal.App.5th 1,
10–11.) “[T]he intention of the parties must be ascertained from the
consideration of the entire contract, not some isolated portion.” (County of
Marin v. Assessment Appeals Bd. (1976) 64 Cal.App.3d 319, 325 (italics
omitted).) Read together, Articles 10 and 15 of the NCCBA serve different
functions: Article 10 establishes procedures for contractual wage disputes,
while Article 15, Section 9 governs arbitration of statutory Labor Code claims
and expressly excludes PAGA claims. Nothing in Article 10 incorporates its
procedural limitations into Article 15 or restricts an arbitrator’s authority in
Article 15. Even if Article 10 could be read to conflict with Article 15,
Section 9, that interpretation cannot override the parties’ express intent to
exclude PAGA actions. (Civ. Code, § 1653 [contract terms inconsistent with
the parties’ main intent must be rejected].)
To interpret Article 10 of the NCCBA as negating the parties’ express
mutual intent in Article 15 would lead to absurd results. We must avoid
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interpretations that render a contract “extraordinary, harsh, unjust,
inequitable or which would result in absurdity.” (County of Marin v.
Assessment Appeals Bd., supra, 64 Cal.App.3d at p. 325 (italics omitted).)
Rather, a contract “must receive such an interpretation as will make it
lawful, operative, definite, reasonable, and capable of being carried into
effect, if it can be done without violating the intention of the parties.” (Civ.
Code, § 1643.) Reading Articles 10 and 15 harmoniously gives effect to both
provisions and preserves the parties’ expressed intent.
Moreover, even if a future conflict were to arise between these
provisions, the NCCBA establishes a mechanism for resolving any
interpretive dispute. Under Article 15, Section 9, the arbitrator is
“prohibited from interpreting [the NCCBA].” If the arbitrator, however,
“determines that the resolution of a statutory claim requires the
interpretation of [the NCCBA],” the arbitrator “shall certify a question to the
Union and Employer seeking an interpretation of the relevant Section(s).”
Thus, the parties that negotiated the NCCBA—the union and the employer—
retain the authority to resolve any question concerning the proper
interpretation of potentially conflicting provisions.
Finally, we address the respondents’ argument that any error in
granting the motion is moot because Montelongo’s recovery is limited to
12 days’ wages regardless of whether the exemption applies. Respondents
forfeited this argument by failing to raise it before the trial court. (People v.
Stowell (2003) 31 Cal.4th 1107, 1114, [“ ‘[Generally,] an appellate court will
not consider claims of error that could have been—but were not— raised in
the trial court.’ ”].) Nevertheless, this argument is inapposite because it
overlooks the nature of a PAGA claim. In a PAGA action, the real party in
interest is the state, not the employee. (Kim v. Reins International
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California, Inc., (2020) 9 Cal.5th 73, 81.) “A PAGA claim is legally and
conceptually different from an employee’s own suit for damages and statutory
penalties.” (Ibid.) Thus, focusing only on Montelongo’s individual recovery
ignores the state’s independent interest in recovering civil penalties. Upon
de novo review, we conclude the trial court did not err in granting the motion
to dismiss because the construction worker exemption to PAGA applied and
precluded Montelongo from pursuing his claim before the trial court.
DISPOSITION
The trial court’s order is affirmed. Respondents are entitled to costs on
appeal.
MCCONNELL, P. J.
WE CONCUR:
O’ROURKE, J.
CASTILLO, J.
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