Leopoldo Pena Mendoza; v. Fonseca McElroy Grinding Co., Inc; Granite Rock Company

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LEOPOLDO PENA MENDOZA; et al.,
Plaintiffs-Appellants,
v.
FONSECA MCELROY GRINDING CO.,
INC; GRANITE ROCK COMPANY,
Defendants-Appellees.
No. 17-15221
D.C. No. 3:15-cv-05143-WHO
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
William Horsley Orrick, District Judge, Presiding
Argued and Submitted November 13, 2018
Submission Withdrawn January 15, 2019
Resubmitted October 22, 2021
San Francisco, California
Before: W. FLETCHER and M. SMITH, Circuit Judges, and BUCKLO,** District
Judge.
Plaintiffs appeal the district court’s order granting summary judgment in favor
of Fonseca McElroy Grinding Company and Granite Rock Company. We have
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Elaine E. Bucklo, United States District Judge for the
Northern District of Illinois, sitting by designation.
FILED
OCT 26 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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jurisdiction pursuant to 28 U.S.C. §§ 1331, 1367, and 1291. Because the parties are
familiar with the facts, we do not recount them here, except as necessary to provide
context to our ruling.
Plaintiffs Leopoldo Pena Mendoza, Elviz Sanchez, and Jose Armando Cortes
allege that Defendants underpaid them for offsite mobilization work performed “in
the execution of [a] contract for public work” pursuant to California Labor Code §
1772. The parties both moved for summary judgment, and the district court granted
Defendants’ motion and denied Plaintiffs’ motion because it concluded that
Plaintiffs’ offsite mobilization work was not performed in the execution of a contract
for public work.
After Plaintiffs appealed, we certified the following question to the California
Supreme Court, and agreed to accept and follow the court’s decision:
Is operating engineers’ offsite “mobilization work”—including the
transportation to and from a public works site of roadwork grinding
equipment—performed “in the execution of [a] contract for public
work,” Cal. Lab. Code § 1772, such that it entitles workers to “not less
than the general prevailing rate of per diem wages for work of a similar
character in the locality in which the public work is performed”
pursuant to section 1771 of the California Labor Code?
The California Supreme Court answered the question as follows:
Section 1772 does not expand the categories of public work that trigger
the obligation to pay at least the prevailing wage under section 1771.
Here there is no contention that mobilization qualifies as defined
“public work.” Under the circumstances, section 1772 does not provide
a basis for requiring plaintiffs to be paid the prevailing wage for that
work.

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Mendoza v. Fonseca McElroy Grinding Co., 492 P.3d 993, 1011 (Cal. 2021).
Therefore, we affirm the district court’s order granting Defendants’ motion for
summary judgment and denying Plaintiffs’ motion.
AFFIRMED.

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