Modification: K & S Staffing Solutions v. The Western Surety Co.

K & S STAFFING SOLUTIONS, INC.,

Plaintiff and Appellant,

v.

THE WESTERN SURETY COMPANY et al.,

Defendants and Respondents.

Nos. C096705, C097987

(Super. Ct. No. STK-CV-UCC-2017-0011949)

California Court of Appeal

Third Appellate District

Filed January 19, 2024

MODIFICATION OF OPINION AND DENIAL OF PETITION FOR REHEARING

[NO CHANGE IN JUDGMENT]

APPEAL from a judgment of the Superior Court of San Joaquin County, Jayne Chong-Soon Lee, Judge. Affirmed.

Downey Brand, Matthew J. Weber, Alexandra K. LaFountain and Jennifer L. Williams for Plaintiff and Appellant.

Brunn & Flynn, Gerald E. Brunn, John K. Peltier and Drexwell M. Jones for Defendants and Respondents.

THE COURT:

Appellant filed a petition for rehearing with this court. It is hereby ordered that the petition for rehearing is denied.

It is also ordered that the opinion filed herein on January 2, 2024, be modified as follows:

1. On page 7, at the end of the last paragraph of part I of the Discussion, add as footnote 3 the following footnote, which will require renumbering of all subsequent footnotes:

³ In a petition for rehearing, K&S raises four points. First, while acknowledging the text of the mechanics' lien law has changed over time, it contends the Legislature intended the law to continue covering the same types of claimants mentioned in the older cases. But nothing in our opinion says any differently. We, again, find only that K&S cannot obtain the relief it seeks by characterizing itself as a "laborer" under section 9100. Second, K&S reads section 8024 to define laborer to mean both (1) any person who, acting as an employee, performs labor on a project, and (2) any person who bestows skill or other necessary services on a project. We disagree. The statute's plain terms speak only of a "person who, acting as an employee," does certain things; it does not reference some persons who are, and others who are not, acting as an employee. Third, citing Government Code section 68081, K&S claims it is entitled to a rehearing because we interpreted the term "laborer" differently than the parties had briefed. But the cited provision applies only when the court renders a decision based on an "issue" that was not proposed or briefed (Gov. Code, § 68081); and here, we based on our decision on the very issue---and indeed, the very statute---the parties raised. Lastly, K&S claims we should grant it relief under section 9100, subdivision (a)(1). That provision describes one of the categories of persons who may assert a claim against a payment bond---namely, "[a] person that provides work for a public works contract, if the work is authorized by a direct contractor, subcontractor, architect, project manager, or other person having charge of all or part of the public works contract." (§ 9100, subd. (a)(1).) But K&S never discussed this particular provision in its initial briefing, nor has it shown that it satisfied the distinct procedural requirements for seeking relief under this provision. (See §§ 9300, 9560.) We thus reject this belatedly raised and insufficiently supported claim. (People ex rel. Dept. of Public Works v. Mascotti (1962) 206 Cal.App.2d 772, 779 [" 'points not previously argued will not be considered where raised for the first time on petition for rehearing' "].)

This modification does not change the judgment.

FOR THE COURT:

HULL, Acting P. J.

BOULWARE EURIE, J.

MESIWALA, J.