1

Filed 4/13/23

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

KELLY GOLA,

Plaintiff and Appellant,

v.

UNIVERSITY OF SAN 

FRANCISCO,

Defendant and Appellant.

 A161477

 (San Francisco County

 Super. Ct. No. CGC-18-565018)

KELLY GOLA,

Plaintiff and Respondent,

v.

UNIVERSITY OF SAN 

FRANCISCO,

Defendant and Appellant. 

 A162437

 (San Francisco County

 Super. Ct. No. CGC-18-565018)

Kelly Gola and members of the class she represents were adjunct 

faculty—part-time university professors engaged to teach on a semester-bysemester basis—at the University of San Francisco (the University). This 

consolidated appeal arises from Gola’s lawsuit challenging aspects of the 

University’s employment practices as violating California law.

The University appeals the trial court’s judgment, after a bench trial, 

awarding Gola penalties and attorneys’ fees in connection with the 

University’s failure to issue wage statements compliant with Labor Code 
2

section 226, subdivision (a) (section 226(a)).

1 We reject the University’s 

argument that newly enacted Labor Code section 515.7—permitting

employers to classify certain adjunct faculty as exempt from specified wage 

statement requirements—should be applied retroactively to the wage 

statements at issue here. We also reject the University’s arguments that the 

trial court erred in finding it liable for section 226 violations.

Gola cross-appeals the trial court’s dismissal of her claims for unpaid 

wages and waiting-time penalties as preempted by federal law. The federal 

Labor Management Relations Act (LMRA) (29 U.S.C. § 141 et seq.) preempts 

state courts from adjudicating claims requiring them to interpret or construe 

collective bargaining agreements (CBAs). Because we conclude that Gola’s 

claims cannot be resolved without interpreting the CBA between the 

University and the labor organization of its adjunct faculty, we agree with 

the trial court’s determination that federal law preempts Gola’s claims. We 

affirm the judgment.

BACKGROUND

During the period relevant here, the University’s practice with respect 

to adjunct faculty was to hire them to teach individual classes on a semesterby-semester basis. For each semester, the University would issue 

appointment letters offering employment to prospective adjunct professors 

during a specified assignment period that ran from the first day of that 

semester’s classes to the end of the semester. The appointment letters stated 

that the employment terms were “consistent with the terms of the Collective 

Bargaining Agreement” between the University and its adjunct faculty union 

and with University policies applicable to the teaching assignment. The 

1 Subsequent statutory references are to the Labor Code except as 

otherwise indicated.
3

letters provided a link to the CBA. They also specified a per-course salary, 

the number of credit units for the course, and an estimate of the number of 

hours the adjunct would work per week (which, trial evidence showed, was 

roughly 2.25 hours per credit unit).

Although the appointment letters specified the first day of classes each 

semester as the beginning of the adjunct’s work appointment and the end of 

the semester as the end of the appointment, adjunct professors were required 

to work outside of these time periods: they were expected to prepare a 

syllabus and final examination for the class before the start date of classes,

and they were obliged to submit students’ final grades after classes and final 

exams concluded. These obligations were set out in the CBA and in a “PartTime Faculty Policy Handbook.”

The appointment letters specified that adjuncts’ salary would be paid in 

installments, typically four per semester, in accordance with the University’s 

payroll schedule. Adjuncts received paystubs or wage statements with their 

pay. The wage statements reflected the amount of pay they received but did 

not show the number of hours they worked or an hourly rate of pay. Adjuncts 

were not asked to track the number of hours they worked. This had been the 

practice at the University for decades before Gola’s lawsuit.

Adjunct faculty at the University, of whom there are more than 600,

are represented by a labor organization: the “USF Part Time Faculty 

Association” (Association). The Association and the University have entered 

into a series of CBAs over the years governing the terms of adjunct faculty 

employment. For the time period covered by Gola’s lawsuit, two CBAs were 

in effect: one that took effect July 1, 2015, and another that is dated July 1, 

2018, and was finally executed on August 2, 2019. Both of those CBAs set 

out a salary schedule for adjunct faculty; both require adjuncts to submit 
4

syllabi before classes begin and to submit final grades “in a reasonable and 

timely manner”; and both state that the parties agree that the “terms of this 

Agreement (including pay for Association members) compl[y] with all federal, 

state and local wage laws.” The July 1, 2018 CBA added that the parties 

agreed “the classification of bargaining unit faculty are as professional 

employees.”

Gola filed a lawsuit against the University on March 15, 2018 and filed 

the operative complaint on July 19, 2018. As a first cause of action, the 

operative complaint alleged a claim for unpaid wages on behalf of Gola and a 

class of similarly situated adjuncts pursuant to sections 1194 and 1194.2. 

According to this claim, the assignment letters set out the terms of an 

employment contract only for the period specified in the letters, i.e., the 

teaching semester, and set a salary for that period only. Yet adjunct faculty 

were required to work outside that period to prepare syllabi and course 

materials before classes started, and to grade exams and submit final grades

after classes ended, and they were not paid for their time outside the 

assignment period. The same factual basis underlay the complaint’s third 

cause of action, failure to pay compensation at the time of discharge in 

violation of sections 201 through 203. Here, Gola and a similarly situated 

subclass contended that, because the University did not pay them for work 

outside of the assignment period, it also did not pay them all wages due on 

termination and was therefore liable for statutory waiting-time penalties.

As a second cause of action, the operative complaint alleged that the 

University failed to issue wage statements in compliance with section 226(a) 

because adjuncts’ wage statements did not include the total hours worked 

during the pay period and the effective hourly rate.
5

Gola’s operative complaint asserted two additional claims: as a fourth 

cause of action, she alleged violations of the Unfair Competition Law. (Bus. 

& Prof. Code, § 17200 et seq.) The trial court held after a bench trial that 

this claim was abandoned, and Gola does not appeal that determination, so 

we do not discuss it further. Finally, Gola asserted a derivative claim under 

the Private Attorneys General Act (PAGA) (§ 2698 et seq.) seeking civil 

penalties for the Labor Code violations asserted in counts one through three.

As an affirmative defense, the University asserted that Gola’s claims 

were preempted by the LMRA, which preempts all state-law claims that 

require interpretation of a CBA. This affirmative defense was bifurcated and 

tried to the court. Following the bench trial, the trial court issued a 

statement of decision holding that Gola’s first and third causes of action were 

indeed preempted because these claims could not be resolved without 

interpreting the CBA.

With respect to Gola’s second cause of action, the wage statement 

claim, the trial court determined this claim was not preempted by federal 

law. The wage statement claim proceeded to a bench trial on the merits, 

after which the trial court issued a second statement of decision. The factual 

findings in this statement of decision are not disputed on appeal. In brief, 

the trial court found that the wage statements the University issued to 

adjunct faculty did not include the “total hours worked by the employee” or 

the employee’s effective hourly rate. The court concluded that adjunct faculty 

were not exempt employees; in fact, the University made no argument at trial 

to the contrary. Instead, the University argued that it could not be liable for 

penalties because its section 226 violation was not knowing and voluntary.

The trial court rejected this argument, finding that the University was liable 

for penalties because it knew that facts existed bringing its actions or 
6

omissions within the provisions of section 226. The trial court found as a 

factual matter that “the evidence is not that the University had a good faith 

belief [that instructors were exempt under state law]; the evidence is that 

they never thought about it.” The trial court also rejected the University’s 

statutory defense that requiring it to list the hours adjunct faculty worked on 

their wage statements would be misleading and contrary to the purposes of 

section 226 because adjunct faculty were paid by the course, not by the hour, 

and the University did not track the number of hours adjuncts worked.

Having found the University liable for section 226 violations, the trial 

court calculated statutory damages of $1,621,600 and PAGA penalties of 

$545,235. The trial court issued its judgment on August 20, 2020. The 

University timely appealed the judgment, and Gola cross-appealed. The trial 

court later issued an order awarding Gola $1,307,225.95 in attorneys’ fees 

and $21,510.23 in costs, and subsequently issued an amended judgment nunc 

pro tunc reflecting the award of fees and costs to Gola. The University timely 

appealed the amended judgment, and we consolidated the appeals.

 DISCUSSION

I. Wage Statement Claim

A. General Principles

“ ‘In reviewing a judgment based upon a statement of decision following 

a bench trial, we review questions of law de novo. [Citation.] We apply a 

substantial evidence standard of review to the trial court’s findings of fact. 

[Citation.] Under this deferential standard of review, findings of fact are 

liberally construed to support the judgment and we consider the evidence in 

the light most favorable to the prevailing party, drawing all reasonable 

inferences in support of the findings.’ (Thompson v. Asimos (2016) 6 
7

Cal.App.5th 970, 981.)” (Furry v. East Bay Publishing, LLC (2018) 30 

Cal.App.5th 1072, 1078 (Furry).)

As relevant here, section 226(a) requires an employer to provide a wage 

statement to its employees upon payment of wages. A wage statement means 

“an accurate itemized statement in writing showing” specified information 

about the employee’s work and pay, including “total hours worked by the 

employee” (id., subd. (a)(2)) and “all applicable hourly rates in effect during 

the pay period and the corresponding number of hours worked at each hourly 

rate by the employee” (id., subd. (a)(9)). Section 226, subdivision (e) (section 

226(e)) provides that an employee who does not receive a compliant wage 

statement “as a result of a knowing and intentional failure by an employer” 

to comply with the wage statement requirements is injured and can recover 

statutory penalties along with other remedies. Section 226, subdivision (e)(3) 

elaborates that “a ‘knowing and intentional failure’ does not include an 

isolated and unintentional payroll error due to a clerical or inadvertent 

mistake” and that the factfinder may consider an employer’s prior compliance 

with section 226 in deciding whether there has been a knowing and 

intentional failure. Finally, section 226, subdivision (j)(1) provides that a 

wage statement need not show total hours worked by the employee if “the 

employee’s compensation is solely based on salary and the employee is 

exempt from payment of overtime” under applicable Labor Code provisions or 

orders of the Industrial Welfare Commission (IWC). (Italics added.)

At the time of trial, and at the time the University issued the 

challenged wage statements to Gola and the subclass, there was no Labor 

Code provision or order of the IWC providing that adjunct faculty were 

exempt from payment of overtime. Accordingly, pursuant to section 226, 

subdivision (j)(1), the University was required to issue pay statements 
8

showing adjuncts’ total hours worked. After the trial court issued its 

statements of decision and judgment, however, the Legislature enacted

section 515.7, which provides that faculty at nonprofit higher education 

institutions “shall be exempt” from the provisions of section 226, subdivision 

(a)(2) and (9), provided they are employed in a professional capacity as 

defined in the statute, and provided they are paid a salary that meets at least 

one of three tests for minimum compensation (salary tests). (§ 515.7, subd. 

(a).) The three tests are as follows: (1) a “monthly salary equivalent to no 

less than two times the state minimum wage for employment in which the 

employee is employed for at least 40 hours per week” (id., subd. (a)(2)(A)); 

(2) a salary of at least $117 per classroom hour in 2020, $126 per classroom 

hour in 2021, $135 per classroom hour in 2022, and for subsequent years, an 

increase that is proportionate to the increase in the state minimum wage for 

that year (id., subds. (a)(2)(B) & (b)(1)); and (3) “[w]hen employed under a 

collective bargaining agreement, payment pursuant to that collective 

bargaining agreement, if the classification of employment in a professional 

capacity is expressly included in the collective bargaining agreement in clear 

and unambiguous terms” (id., subd. (a)(2)(C)). Introduced as Assembly Bill 

No. 736 (2019–2020 Reg. Sess.), this legislation was finally enacted 

September 9, 2020, and took effect the same day.

B. Section 515.7 is Not Retroactive

On appeal, the University does not contend that Gola and the section 

226 subclass were exempt employees at the time it issued the challenged 

wage statements, nor does it contest the trial court’s factual finding that the 

challenged wage statements failed to include hours worked and effective 

hourly rate. Rather, the University contends that newly enacted section 

515.7 should be applied retroactively to this case. If it is so applied, the 
9

University contends, Gola’s section 226 claims must fail because Gola and the 

subclass will be classified as exempt for the relevant period: from July 1, 

2018, through trial, the University argues that the CBA stated 

unambiguously that “the classification of bargaining unit faculty are as 

professional employees” and thus, any compensation pursuant to the CBA 

meets the third of the statute’s three salary tests, set out in section 515.7, 

subdivision (2)(C), for that time period.

2 And for the entire period of time 

covered by the trial court’s judgment, January 30, 2017, through December 

31, 2019, the University argues that it will be able to demonstrate on remand 

that adjunct faculty received pay that exceeded the second of the statute’s 

salary tests (§ 515.7, subd. (a)(2)(B)).3

Gola contends that this argument is not properly before us: the 

University, she contends, forfeited at trial any argument that adjunct faculty 

are exempt and accordingly cannot now make the argument. Because section 

515.7 was enacted after the trial and judgment, the University could not have 

relied on it in the trial court. And in any event, we would exercise our 

discretion to reach this question of law. (See, e.g., City of Clovis v. County of 

Fresno (2014) 222 Cal.App.4th 1469, 1477 [“The rule of forfeiture does not 

2 The second CBA, providing that faculty are classified as professional 

employees, states on its cover page that its effective date is July 1, 2018, but 

its preamble states that it is “entered into on 26 April 2019,” and it was not 

executed until August 2, 2019. Because we ultimately conclude that section 

515.7 does not apply to wage statements issued before the statute’s effective 

date of September 9, 2020, we need not determine the effective date of the 

CBA’s classification of adjuncts as professional employees.

3 As we discuss further below, the third salary test prescribes minimum 

salary benchmarks for 2020 and subsequent years but does not expressly 

include a benchmark for 2019 or prior years. The University does not specify 

what salary benchmark it would ask the trial court to apply to wage 

statements issued prior to 2020.
10

apply . . . to ‘noncurable defects of substance where the question is one of 

law’ ”].)

We turn now to the University’s argument. To evaluate it, we must 

address the effect of section 515.7 as of its effective date of September 9, 

2020: when it says that a university instructor “shall be classified” as a 

professional employee and “shall be exempt” from specified wage statement 

requirements, does that exemption extend to wage statements issued before 

the effective date of the statute? Or did the Legislature intend the exemption 

to apply only to wage statements issued after the statute’s effective date? 

The statute does not directly specify, but we conclude that the better reading 

of section 515.7 is that it operates prospectively and exempts only wage 

statements issued after September 9, 2020.

1.

“ ‘A retrospective law is one which affects rights, obligations, acts, 

transactions and conditions which are performed or exist prior to the 

adoption of the statute.’ ” (Aetna Casualty & Surety Co. v. Industrial 

Accident Commission (1947) 30 Cal.2d 388, 391.) Whether a statute operates 

retroactively “is, in the first instance, a policy question for the legislative 

body” and if it has spoken clearly then no further interpretation is required. 

(Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1206.) But if judicial 

construction is required, we begin with the “ ‘established canon of 

interpretation that statutes are not to be given a retrospective operation 

unless it is clearly made to appear that such was the legislative intent.’ ” (Id.

at p. 1207, quoting Aetna, at p. 393; see also McClung v. Employment 

Development Dept. (2004) 34 Cal.4th 467, 475 [“ ‘[A] statute may be applied 

retroactively only if it contains express language of retroactivity or if other 

sources provide a clear and unavoidable implication that the Legislature 
11

intended retroactive application’ ”]; Western Security Bank v. Superior Court

(1997) 15 Cal.4th 232, 243 [“A basic canon of statutory interpretation is that 

statutes do not operate retrospectively unless the Legislature plainly 

intended them to do so”].) The Labor Code in particular contains a general 

statutory provision that counsels against retroactive application of its 

sections. (§ 4; see also Evangelatos, at pp. 1207–1208 [identifying section 4 as 

a provision “reflect[ing] the common understanding that legislative 

provisions are presumed to operate prospectively”].) Our Supreme Court has 

also said that “statutes that affect an employee’s substantive rights are 

construed to operate prospectively” absent an express contrary intent. 

(Hoffman v. Board of Retirement (1986) 42 Cal.3d 590, 593.)

Section 515.7 is plainly intended to create a pathway to accord adjunct

faculty exempt professional status and relieve nonprofit universities of hour 

and pay reporting requirements for adjuncts, provided adjuncts’ pay meets 

one of the three salary tests. But the statute does not directly speak to 

whether it reaches back to hour and pay reporting obligations incurred before 

September 9, 2020. This silence in itself strongly indicates prospective 

application. Moreover, we find in the text of the statute itself an additional 

indication of prospective application: the second of the three salary tests set 

out in the statute only applies by its terms to 2020 and all subsequent years. 

(§ 515.7, subd. (b)(1).) That the Legislature did not set out a benchmark for 

minimum salary for 2019 or prior years before the statute’s enactment 

suggests that it did not see a need for one because it did not intend those 

applications. And the Legislature’s use of the phrases “shall be classified” 

and “shall be exempt” provides a further, albeit modest, suggestion of 

prospective application. (See San Francisco Sav. Union v. Reclamation Dist. 

No. 124 (1904) 144 Cal. 639, 647 [statutory language that a water 
12

reclamation district “ ‘shall be deemed organized and shall have power to sue 

and be sued’ ” “would seem to be intended to have a prospective operation 

only”]; Russell v. Superior Court (1986) 185 Cal.App.3d 810, 818–819 [“The 

phrase ‘shall be,’ to the commonsensical mind, connotes the future and 

implies the application of the subject under discussion to future events. The 

use of ‘shall be’ has been held to connote a legislative intent to apply a 

statutory amendment prospectively only”]; Seale v. Balsdon (1921) 

51 Cal.App. 677, 681 [“ ‘ “shall be” represents what will take place in future 

time. If the Legislature had intended to make the law retroactive, it would 

have been easy to express it by the use of the words has been or had been, in 

the present or past perfect tense, or other equivalent words’ ”].)

The University does not claim that the statute contains an express 

retroactivity provision, and it acknowledges the presumption against 

retroactivity. But the University argues that the legislative history and 

remedial purposes of section 515.7 overcome the presumption. We address, 

and ultimately reject, the University’s arguments here.

We first review the legislative history. Section 515.7 was proposed as 

Assembly Bill No. 736 (Assem. Bill 736 or the Bill), an “urgency statute” 

whose uncodified provision stated that it was necessary to go into effect 

immediately “[t]o ensure the continued ability for non-profit, independent 

institution of higher education to provide education and training in critical 

fields of employment.” (Assem. Bill 736 (2019–2020 Reg. Sess.) § 2.) The Bill 

information sheet from its Assembly sponsor stated that the Bill “clarifies 

that adjunct professors may be treated as exempt professionals.” The 

information sheet also noted “[a]mbiguity in current law” about whether 
13

adjunct faculty can be paid through flat rate compensation arrangements.4 It 

noted that some universities have shifted to hourly pay for adjuncts “in order 

to shield against wage-and-hour violation lawsuits” and that this shift 

created an administrative burden for universities “and is also strongly 

disliked by most adjuncts who want the flexibility, independence, and respect 

their position is traditionally granted.”

This statement of purpose was echoed and amplified by a letter in 

support of the Bill from representatives of the Association of Independent 

California Colleges and Universities and the Service Employees International 

Union. In particular, the letter stated the Bill “clarifie[d]” existing law. It 

also described “expensive litigation” that universities and colleges were 

facing: “These lawsuits, typically over technical infractions such as paystub 

information errors, are resulting six- or seven-figure financial losses, which 

redirects scarce institutional funds away from other important academic 

services . . . .” The letter stated that the Bill would allow nonprofit colleges 

and universities “to continue treating adjunct faculty as exempt employees.”

The University claims that section 515.7’s remedial purpose is to save 

institutions like it from expensive litigation and penalty awards, and that 

this intent is best served by giving the statute a retroactive effect. This 

argument overlooks that “such a remedial purpose does not necessarily 

indicate an intent to apply the statute retroactively. Most statutory changes 

are, of course, intended to improve a preexisting situation and to bring about 

a fairer state of affairs, and if such an objective were itself sufficient to 

4 Other analysis of Assembly Bill 736, however, describe it not as a 

clarification but a change to existing law because it added additional salary 

tests to qualify adjunct faculty for exempt professional status. (Sen. Rules 

Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill 736 

(2019–2020 Reg. Sess.) as amended Aug. 7, 2020, p. 5.)
14

demonstrate a clear legislative intent to apply a statute retroactively, almost 

all statutory provisions and initiative measures would apply retroactively 

rather than prospectively.” (Evangelatos v. Superior Court, supra, 44 Cal.3d 

at p. 1213; see also Aetna Casualty & Surety v. Industrial Accident 

Commission, supra, 30 Cal.2d at p. 395 [“legislative intent in favor of the 

retrospective operation of a statute cannot be implied from the mere fact that 

the statute is remedial and subject to the rule of liberal construction”].) Nor 

does the specter of litigation against universities and colleges persuade us, 

without clearer indication, that the Legislature intended section 515.7 to 

apply retroactively: the reference to litigation in the Bill sponsor’s 

information sheet does not make any such intent clear, and the Bill itself

makes no mention at all of the litigation.

5 It is reasonably apparent that the 

Legislature wanted to address the legal issues that led to university-adjunct 

litigation and provide a pathway to exempt status for adjuncts; it does not 

follow that the Legislature necessarily also wanted to extinguish any 

penalties that some colleges or universities had already accrued by failing to 

comply with existing law.

5 Indeed, the litigation is mostly emphasized in the letter submitted by 

private supporters of the Bill; their reasons for supporting the Bill are not 

necessarily the same as those of legislators. 

In a similar vein, the University has requested we take judicial notice 

of examples of litigation it argues section 515.7 was intended to abate: a 

series of complaints and settlement approvals involving other colleges and 

universities. There is no indication these documents were before the 

Legislature (indeed, some of them were filed after enactment of section

515.7), and they add nothing to our consideration of references to litigation in 

the legislative history already before us. We deny the request as to these 

documents. (See Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 

1063, overruled on other grounds by In re Tobacco Cases II (2007) 41 Cal.4th 

1257 [“Although a court may judicially notice a variety of matters [citation],

only relevant material may be noticed”].)
15

The University also urges us to find section 515.7 retroactive because it 

was enacted by an “urgency” measure that took effect immediately upon 

enactment, and because at least some portions of the legislative history 

indicate that the Legislature viewed the statute as a clarification of the law 

rather than a change to it. Our Supreme Court identified both factors as 

supporting retroactive application of a statute in Western Security Bank v. 

Superior Court, supra, 15 Cal.4th at pages 244–245. But the decision in that 

case was based on an examination of the legislation’s entire history, 

language, and context. (Id. at p. 245 [finding that Legislature’s retroactive 

intent was plain because the bill stated that it was intended to abrogate a

specific court of appeal holding and “ ‘confirm the expectation of the parties’ ” 

that an earlier interpretation of applicable law would apply].) The presence 

of urgency and clarification factors alone is not controlling. (See McClung v. 

Employment Development Dept., supra, 34 Cal.4th at pp. 475–476 [despite 

statute’s provision that it clarified existing law, “We see nothing here to 

overcome the strong presumption against retroactivity”]; Gallo v. Superior 

Court (1988) 200 Cal.App.3d 1375, 1379 [declining to find retroactive 

application of statute in view of legislative silence on retroactivity, 

notwithstanding urgency designation]; Estate of Messner (1987) 190 

Cal.App.3d 818, 821 [same].) We conclude those factors are insufficient here 

to overcome the strong presumption against retroactivity, especially given 

the plain language of the statute that frames one of the salary tests as

applicable in years 2020 and beyond.

2.

The University advances a second argument for the retroactive 

application of section 515.7 in reliance on the abatement doctrine. The 

abatement doctrine provides that, “Although the courts normally construe 
16

statutes to operate prospectively, the courts correlatively hold under the 

common law that when a pending action rests solely on a statutory basis, and 

when no rights have vested under the statute, ‘a repeal of such a statute 

without a saving clause will terminate all pending actions based thereon.’ ” 

(Governing Board v. Mann (1977) 18 Cal.3d 819, 829.) This doctrine applies, 

however, only in “limited circumstances.” (Rankin v. Longs Drug Stores 

California, Inc. (2009) 169 Cal.App.4th 1246, 1253.) Where a statute does 

not “wholly repeal but merely revises existing law, so that the statutory cause 

of action in modified form remains, no abatement occurs.” (3 Witkin, Cal. 

Procedure (6th ed. 2022) Actions, § 20.) The test for repeal in the abatement 

cases has sometimes been articulated as whether the new legislation 

“constitutes ‘a substantial reversal of legislative policy’ that represents ‘the 

adoption of an entirely new philosophy’ vis-à-vis the prior enactment.” 

(Zipperer v. County of Santa Clara (2005) 133 Cal.App.4th 1013, 1025.)

Applying that test for repeal, we reject the University’s argument that 

the abatement doctrine applies to this case. With section 515.7, the 

Legislature narrowed the applicability of specified subdivisions of section 226

to adjunct faculty. But those subdivisions were not repealed entirely, nor 

were they even repealed as to adjuncts. Rather, the Legislature modified and 

expanded the conditions that nonprofit higher education institutions could 

satisfy to avoid wage-statement liability. Some adjuncts may still be able to 

obtain relief under section 226, but they must make a different and more 

demanding showing to do so. Under these circumstances, we conclude that 

this is an adjustment to an existing cause of action rather than a repeal of it. 

Accordingly, the abatement doctrine does not apply, and we apply the 

ordinary rule of prospective statutory construction.
17

Our conclusion is consistent with Krause v. Rarity (1930) 210 Cal. 644, 

and with Thurman v. Bayshore Transit Management, Inc. (2012) 203 

Cal.App.4th 1112, overruled on other grounds in Z.B., N.A. v. Superior Court

(2019) 8 Cal.5th 175. In Krause, our high court considered a law that 

repealed an existing statutory cause of action for wrongful death of a guest in 

a vehicle arising from negligence and replaced it with a new statute providing 

for recovery only in cases of intoxication, willful misconduct, or gross 

negligence of the driver. (Krause, at pp. 651–652.) The California Supreme 

Court rejected the abatement theory because the statute under which the 

claim was brought was not “repealed entirely” and guest liability was not 

abolished but merely narrowed. (Id. at p. 655.) Because the abatement 

theory was inapposite, the ordinary rule of statutory construction—that 

statutes operate prospectively unless their retrospective effect is clearly 

apparent—continued to apply. Similarly, in Thurman, a PAGA case, the 

Fourth District Court of Appeal considered a new statute that required 

PAGA plaintiffs to exhaust administrative remedies before bringing suit. 

(Thurman, at p. 1152.) Rejecting the argument that the new exhaustion 

statute abated existing unexhausted cases by removing their statutory basis, 

Thurman concluded that the exhaustion statute “did not constitute a 

substantial reversal of the legislative policy underlying the PAGA” but rather 

a modification intended to refine and improve it. (Ibid.) Here, a statutory 

cause of action for adjunct faculty to challenge the omission of information 

from their wage statements remains, albeit in narrower form, as in the 

statutes at issue in Krause and Thurman.
18

We acknowledge that cases applying the abatement doctrine are not 

wholly consistent.

6 There is considerable well-reasoned argument on both 

sides of this issue, as our dissenting colleague’s separate opinion illustrates. 

On balance, however, in addition to the reasoning and authority we have just 

set out, we think that declining to apply abatement doctrine in a close case 

like this one advances the enterprise of statutory construction. To explain:

the abatement doctrine creates an exception to the ordinary and strong rule 

that statutes apply prospectively unless the Legislature’s retroactive intent is 

apparent. (See ante, at pp. 11–12.) Yet, like the nonretroactivity

presumption, abatement is a doctrine that supplies a rule of decision when

the Legislature is silent about the effect of its enactment on pending cases, 

i.e., when it does not include a saving clause that directs courts to maintain 

pending cases. Where two statutory construction tools operate in similar 

contexts and result in opposite outcomes, it is unsurprising that the 

6 For instance, in People v. Bank of San Luis Obispo (1910) 159 Cal. 65, 

our Supreme Court recited the abatement doctrine in considering the 

retroactive effect of a repealed statute that previously allowed the Attorney 

General to seek a decree declaring a bank insolvent. The Supreme Court 

declined to abate the Attorney General’s action because the appeal was not a 

direct appeal of a judgment but rather a collateral appeal from a denial of 

new trial, noting of the abatement doctrine that its “general expressions . . . 

are to be read in each case in the light of the facts which are there disclosed.” 

(Id. at p. 79.) Moreover, in some cases purporting to rely on the abatement 

doctrine, this reliance was unnecessary because the statutory language 

included legislative commands about the effective date of the statute’s 

provisions. For example, the University relies on Governing Board v. Mann, 

supra, 18 Cal.3d at page 831, which states that a school district’s pending 

action to terminate a teacher for a marijuana-related conviction was abated 

by passage of a new law that repealed its right to bring such an action. But 

the new law itself stated that termination actions could be brought only for 

marijuana-related conduct “ ‘occurring prior to January 1, 1976,’ ” a date long 

past the teacher’s conviction in Mann. (Id. at p. 827.)
19

abatement cases demonstrate inconsistency. But an inconsistent tool of 

statutory construction is a poor tool; canons of construction are “ ‘aids to

ascertaining probable legislative intent’ ” (Ferra v. Loews Hollywood Hotel, 

LLC (2021) 11 Cal.5th 858, 879) and are therefore most useful when the 

Legislature can fairly predict their applicability. This supplies an additional 

reason to reject abatement here: declining to apply the abatement doctrine in 

close cases creates greater consistency and predictability, and thus permits 

courts to adhere more faithfully to the Legislature’s intent. 7

C. No Error in “Knowing and Intentional” Finding

An employer’s violation of the wage statement provisions must be 

“knowing and intentional” for an employee to recover penalties. (§ 226, subd. 

(e)(1).) The University contends that the trial court erred in finding its 

violations here to be knowing and intentional.

The trial court found that “the evidence is not that the [U]niversity had 

a good faith belief [that adjunct instructors were exempt under state law]; the 

evidence is that they never thought about it.” This factual finding is entitled 

to deference on review (Furry, supra, 30 Cal.App.5th at p. 1078), and the 

University does not challenge it as unsupported by substantial evidence. 

Instead, the University argues that the trial court made a mistake of law in 

applying the “predicate facts” test, an interpretation of section 226, 

subdivision (e)(1) adopted by two of our sister divisions in this appellate 

district. (Furry, at p. 1085; Kao v. Holiday (2017) 12 Cal.App.5th 947, 961–

962.) Pursuant to the “predicate facts” test, if the employer knew facts 

7 Because we find that section 515.7 does not apply to Gola’s claims, we 

express no view of her further argument that the University would not 

qualify for the exemption section 515.7 creates because adjunct faculty pay 

was conditioned on sufficient enrollment in their classes and was thus not a 

“salary” within the meaning of the statute. 
20

existed that triggered its obligation to issue a wage statement, then its 

failure to comply was knowing and intentional within the meaning of section 

226, subdivision (e)(1) regardless of whether it believed it had to comply or 

whether its belief was reasonable. (Furry, at p. 1085; Kao, at pp. 961–962.) 

The University urges us to reject this test and instead apply a “good faith” 

test, applied by some federal district courts, and by the Second District Court 

of Appeal in a recent decision,8 that allows an employer to escape liability for 

wage statement violations where a court finds that the employer should have 

issued compliant wage statements but had a good faith belief that its 

practices were lawful.

We conclude that the trial court applied the correct legal test. Section

226, subdivision (e)(3) makes clear that the term “ ‘knowing and intentional’ ” 

does not include “an isolated and unintentional payroll error due to a clerical 

or inadvertent mistake,” and an employer’s compliance with section 226 in 

the past can shed light on whether its current failure is knowing and 

intentional. These clarifications indicate that the Legislature intended to 

exclude only truly errant or mistaken violations from the reach of 

section 226’s penalty provisions, not competing legal interpretations. The 

predicate-facts test appropriately reflects this intent.

Moreover, we are not persuaded by the cases adopting a different test 

that the University urges us to follow. Some have adopted the “good-faith” 

test because they have equated section 226, subdivision (e)(1) with section

203, the penalty statute for employers who fail to timely pay employees. (See 

Chavez v. Converse, Inc. (N.D.Cal., Mar. 13, 2020, No. 15-CV-03746-NC) 2020 

U.S. Dist. LEXIS 44097, pp. *3–6; Magadia v. Wal-Mart Associates, Inc. 

8 Naranjo v. Spectrum Security Services, Inc. (2023) 88 Cal.App.5th 937

(Naranjo).
21

(N.D.Cal. 2019) 384 F.Supp.3d 1058, 1084, revd. in part, vacated in part on 

other grounds (9th Cir. 2021) 999 F.3d 668.) But the words used by the 

Legislature in section 226, subdivision (e)(1) and section 203 are significantly 

different. Section 203 imposes penalties where “an employer willfully fails to 

pay” wages due, and an implementing regulation further explains that an 

employer who presents a defense, other than one that is “unsupported by any 

evidence, [is] unreasonable, or [is] presented in bad faith,” is not liable for 

penalties even if its defense is ultimately unsuccessful. (§ 203, subd. (a); Cal. 

Code Regs., tit. 8, § 13520.) Unlike section 203, the Legislature did not use 

the word “willful” in section 226, subdivision (e)(1); instead, it chose the 

words “knowing and intentional,” indicating a different scienter test. (Cf. 

Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1117 

[“Where different words or phrases are used in the same connection in 

different parts of a statute, it is presumed the Legislature intended a 

different meaning”].) And providing a good-faith defense to employers 

accused of failing to pay wages is consonant with the scope of the employer’s 

obligation: “In case of a dispute over wages, the employer shall pay, without 

condition . . . all wages, or parts thereof, conceded by him to be due, leaving to 

the employee all remedies he might otherwise be entitled to as to any balance 

claimed.” (§ 206, subd. (a), italics added.) There is no comparable provision 

in section 226 that excuses employers from providing disputed wage 

statements.

We acknowledge that with Naranjo, a sister Court of Appeal has now 

adopted the good-faith test. (Naranjo, supra, 88 Cal.App. 5th at p. 951 [“a 

good faith dispute over whether an employer is in compliance with section 

226 precludes a finding of a knowing and intentional violation”].) We note, 

however, that even under the test as set out in Naranjo, the University would 
22

not prevail on this argument. Naranjo holds that the question of whether an 

employer acted in good faith is a fact question that is subject to substantial

evidence review on appeal. (Ibid. [“substantial evidence supports the trial 

court’s finding that Spectrum presented defenses in the first phase of trial in 

good faith”].) Here, the trial court found that the University did not present 

evidence at trial of a good-faith dispute over the applicability of section 226. 

The University has not challenged this factual finding as unsupported by 

substantial evidence and accordingly cannot prevail on this contention even 

applying the test that Naranjo adopts.

D. Purpose of Section 226

As a final argument for reversal, the University argues that it cannot 

be liable here because section 226(a) “requires an accurate itemized 

statement” of wages. The University contends that it would be inaccurate 

and misleading to inform adjuncts of an effective hourly rate of pay on their 

wage statements because that was not the actual basis of their pay; instead,

they were paid per course, on a salary schedule set by the CBA. The 

University thus effectively contends that we should disregard the clear

statutory language requiring the wage statements of non-exempt employees 

to include “total hours worked by the employee” (id., subd. (a)(2)) and “all 

applicable hourly rates in effect during the pay period” (id., subd. (a)(9)). In 

other words, the University contends that we should give no effect to text of 

the statute because that text does not serve the statute’s purpose of providing 

employees with accurate wage information.

Even if we were persuaded by the University’s purpose arguments, we 

are not free to disregard the statute’s text. “ ‘ “ ‘[U]nder the guise of 
23

construction, a court should not rewrite the law . . . [or] omit from it what has 

been inserted[.]’ ” ’ ” (Soto v. Motel 6 Operating, L.P. (2016) 4 Cal.App.5th 

385, 393.) The Legislature is well aware that wage statements for nonexempt employees who are not paid by the hour must nonetheless show an 

effective hourly rate; it expressly added that requirement to section 226 in 

2001 by deleting language limiting this requirement to the wage statements 

of employees who received hourly compensation. (Assem. Bill No. 2509 

(1999–2000 Reg. Sess.) § 10.) And in any event, the University’s purpose 

argument is not persuasive. We can readily conceive a benefit in requiring 

employees who are not paid by the hour to report their hours and then 

disclosing to them their effective hourly rate; it enables employees to 

understand their compensation in a way that allows them to compare their 

pay to other job opportunities.

II. Federal Preemption of Failure to Pay 

and Waiting Time Claims

Gola’s first cause of action for failure to pay wages, and her third cause 

of action for failure to pay wages upon dismissal, depend on the same factual 

premise: according to Gola, the assignment letters she and all adjuncts 

received set out the start and end dates of their employment for each 

semester, as well as their salary for work within that period, and only within 

that period. But, Gola contends, adjuncts were required to work before and 

after the assignment period, and the salary named in the assignment letters 

did not cover that work. The trial court determined that these causes of 

action could only be resolved by construing the CBA, including whether its 

salary schedule included compensation for before- and after-semester work. 

Accordingly, the trial court determined that Gola’s first and third causes of 

action were preempted by federal law, and Gola cross-appeals those 
24

determinations. Our review is de novo. (See Farm Raised Salmon Cases

(2008) 42 Cal.4th 1077, 1089, fn. 10.)

“Section 301(a) of the Labor Management Relations Act, 1947 

(29 U.S.C. § 185(a)) . . . provides: ‘Suits for violation of contracts between an 

employer and a labor organization representing employees in an industry 

affecting commerce . . . may be brought in any district court of the United 

States . . . .’ ” (Melendez v. San Francisco Baseball Associates LLC (2019) 7 

Cal.5th 1, 7.) In order to “ ‘promot[e] arbitration and the uniform 

interpretation of collective bargaining agreement provisions,’ ” section 301 of 

the LMRA has been construed by the United States Supreme Court to cover 

and preempt state-law actions seeking to enforce the CBA itself and those 

state-law claims that “ ‘ “require interpretation or construction of a labor 

agreement.” ’ ” (Melendez, at p. 8.) But determining whether interpretation 

of a labor agreement is required presents an exercise in judgment: “the bare 

fact that a collective-bargaining agreement will be consulted in the course of 

state-law litigation plainly does not require the claim to be extinguished[.]” 

(Livadas v. Bradshaw (1994) 512 U.S. 107, 124.) Instead, “Preemption occurs 

when a claim cannot be resolved on the merits without choosing among 

competing interpretations of a collective bargaining agreement and its 

application to the claim.” (Melendez, at p. 9.) If the state court must answer 

“questions relating to what the parties to a labor agreement agreed” when 

they adopted the CBA, then the claim is preempted. (Allis-Chalmers Corp. v. 

Lueck (1985) 471 U.S. 202, 211.) 

The “ ‘touchstone’ for [LMRA] section 301 preemption analysis is the 

nature of the plaintiff’s underlying claim.” (Levy v. Skywalker Sound (2003) 

108 Cal.App.4th 753, 763.) Reviewing Gola’s claim, as alleged in the 

operative complaint, we conclude that resolution of the factual dispute that 
25

underlies the first and third causes of action—whether adjuncts’ salary 

covered only the teaching semester, or whether it covered work before and 

after the semester as well—cannot be resolved without interpreting the CBA.

Gola’s operative complaint contends that adjuncts’ work dates were the 

semester start and end dates set out in their assignment letters. In her trial 

brief on the LMRA section 301 preemption issue, Gola attached the 

assignment letters containing the dates. Each of the assignment letters 

includes a link to the CBA and states that “[t]he terms of the appointment 

are consistent with the terms of the [CBA].” To resolve the issue of whether 

Gola was unpaid for work she performed before and after the semester, a 

factfinder would have to resolve whether the assignment letters incorporated 

the CBA, and what effect the CBA had on the terms of Gola’s employment. 

Other questions about the interpretation of the CBA would also arise. For 

instance, article 11.2 of the CBA provides that written notification of an 

appointment—which, a factfinder could find, refers to the appointment 

letters that Gola relies on—“shall include the beginning and ending dates of 

appointment” as well as the salary. This provision supports Gola’s 

interpretation of the period of her employment, yet the CBA also sets out the 

before- and after-semester work that adjuncts must perform. Article 20 of

the CBA states that whatever compensation the parties have agreed on is the 

“total compensation” for adjuncts’ work, and article 23 of the CBA states that 

its wage provisions comply with state law. These latter provisions support 

the University’s interpretation that the term of employment goes beyond the 

semester itself. A factfinder adjudicating Gola’s claims would have to decide 

how to interpret these potentially conflicting CBA provisions in order to 

decide what period of time the salary covered. We express no view on the 

correct resolution of these questions, but the fact that they are questions 
26

about “what the parties to a labor agreement agreed” when they adopted the 

CBA means that federal law preempts state courts’ resolution of them. (AllisChalmers Corp. v. Lueck, supra, 471 U.S. at p. 211.)

Gola offers two primary arguments against this conclusion. She 

contends first that federal preemption does not lie where a CBA 

interpretation issue is raised exclusively by a defendant and not by a plaintiff 

in stating her claim. Gola relies on Caterpillar Inc. v. Williams (1987) 482 

U.S. 386 for this argument, but the CBA interpretation issue in that case was 

integral to the affirmative defense of waiver. Here, by contrast, an 

interpretation of the CBA is required not to resolve an affirmative defense,

but the very claims Gola has pled. (See Deschene v. Pinole Point Steel Co. 

(1999) 76 Cal.App.4th 33, 40–41 [“To determine whether a state claim will be 

preempted by section 301 of the LMRA because it would require 

interpretation of the CBA we look to the elements of the claim, the terms of 

the agreement, the facts which plaintiff believes support the cause of action 

and those the defendant may assert in his defense”].) Nothing in Caterpillar

requires us to consider only plaintiff’s contentions, or to accept without 

question plaintiff’s characterization of the scope of her claims. And in any 

event, the CBA is referenced in the assignment letters that Gola herself relies 

on to frame the assignment period her claims concern.

Second, Gola contends that even if the CBA must be consulted in this 

case, it need not be interpreted, and the University has pointed to no 

ambiguities in the CBA that a court would have to resolve to decide her 

claims. It is true that Gola’s claims do not turn on the disputed meaning of 

an individual word or phrase in the CBA; rather, a factfinder would have to 

discern the intent and effect of several provisions of the CBA and the extent 

to which they were incorporated into the assignment letters the University 
27

sent to adjuncts, as we have described above. That is no less a task of 

interpretation than selecting among different definitions of an individual 

word or phrase.

Because Gola’s first and third causes of action are preempted by section 

301 of the LMRA, we affirm the trial court’s dismissal of these claims.

III. Attorneys’ Fees

The trial court awarded attorneys’ fees and costs to Gola because of her 

success on the section 226 cause of action. The University appeals the fee 

award based on its contention that the section 226 claim was incorrectly 

decided, but it does not contend that the trial court abused its discretion in 

setting the amount of fees. Because we have affirmed the section 226 

judgment, we affirm the trial court’s award of fees and costs.

DISPOSITION

The judgment is affirmed. Each party shall bear its own costs on 

appeal.
28

_________________________

Van Aken, J.*

I concur:

_________________________

Stewart, P.J.

Gola v. University of San Francisco (A161477, A162437)

* Judge of the San Francisco Superior Court, assigned by the Chief 

Justice pursuant to article VI, section 6 of the California Constitution.
1

Gola v. University of San Francisco, A161477, A162437

Concurring and Dissenting Opinion of Miller, J.

I respectfully dissent from part I.B.2 of the majority opinion regarding 

the application of the abatement doctrine. As I explain, I would vacate the 

judgment and remand to the trial court to consider whether some or all of the 

Labor Code section 226, subdivision (a)1 wage statement claims are now 

abated by virtue of section 515.7, enacted after judgment was entered in this 

case.

Plaintiff Kelly Gola and the members of the class she represents are 

adjunct professors. They sued the University of San Francisco (University) in 

part because their wage statements did not comply with the strict 

requirements of section 226. After a bench trial, the court found the wage 

statements did not include the adjunct professors’ total hours worked during 

the pay period and the effective hourly rate, as then required by the statute. 

For this violation of sections 226, subdivisions (a)(2) and (a)(9), the trial court 

awarded statutory damages of $1,621,600 and PAGA penalties of $545,235, 

plus attorney fees in excess of $1.3 million, and more than $21,500 in costs.

But after the trial court issued its statement of decision and after 

judgment was entered, the Legislature enacted section 515.7 which, as the 

majority opinion explains, exempts faculty at nonprofit higher education 

institutions such as the University from the wage statement requirements of 

section 226, subdivisions (a)(2) and (a)(9), provided they are employed in a 

professional capacity as defined in the statute and paid a salary that meets at 

least one of three tests for minimum compensation. I focus on the third of the 

three tests, because it is the one that in my view may result in the abatement 

1 All statutory references are to the Labor Code except as noted.
2

of some or all of Gola’s section 226, subdivision (a) claims: “[w]hen employed 

under a collective bargaining agreement, payment pursuant to that collective 

bargaining agreement, if the classification of employment in a professional 

capacity is expressly included in the collective bargaining agreement in clear 

and unambiguous terms.” (§ 515.7, subd. (a)(2)(C) (the “third test”).) 

We know from the record that the adjunct faculty members at the 

University (more than 600 people) are represented by a labor association and 

that for the time period covered by Gola’s lawsuit, two collective bargaining 

agreements (CBA’s) were in effect, one that took effect on July 1, 2015, and 

another dated July 1, 2018 and executed on August 2, 2019. Among other 

things, the July 1, 2018 CBA expressly states that the parties agreed “the 

classification of bargaining unit faculty are as professional employees.” 

Thus, it appears that the University’s conduct would no longer violate 

the wage statement requirements of section 226, subdivision (a), by virtue of 

the Legislature’s enactment of section 515.7.2 In that case, there would be no 

statutory penalties under the Labor Code or under PAGA and no attorney 

fees to recover.

The doctrine of abatement was designed for consideration in this 

circumstance.

My colleagues correctly state the principle underlying the abatement 

doctrine, as articulated by our Supreme Court in Governing Board v. Mann

(1977) 18 Cal.3d 819, 829 (Governing Board): “Although the courts normally 

2 Gola’s counsel eventually conceded at oral argument that if there is a 

CBA containing the clear language required by the third test in section 515.7, 

and another adjunct professor were to approach him today with the same 

section 226 claim as Gola’s (i.e., that the wage statements did not include the 

total hours worked during the pay period and the effective hourly rate), he 

would advise against filing that claim. 
3

construe statutes to operate prospectively, the courts correlatively hold under 

the common law that when a pending action rests solely on a statutory basis, 

and when no rights have vested under the statute, ‘a repeal of [such] a 

statute without a saving clause will terminate all pending actions based 

thereon.’ ” 

As the court in Zipperer v. County of Santa Clara (2005) 133 

Cal.App.4th 1013 (Zipperer) went on to amplify, “In other words, where ‘the 

Legislature has conferred a remedy and withdraws it by amendment or 

repeal of the remedial statute, the new statutory scheme may be applied to 

pending actions without triggering retrospectivity concerns. . . .’ (Brenton v. 

Metabolife Internat., Inc. (2004) 116 Cal.App.4th 679, 690.) Furthermore, 

legislative action ‘can effect a partial repeal of an existing statute.’ (Ibid.) 

‘ “The justification for this rule is that all statutory remedies are pursued 

with full realization that the legislature may abolish the right to recover at 

any time.” ’ (Governing Board, at p. 829.) That common law principle has 

been codified in California, as follows: ‘Any statute may be repealed at any 

time, except when vested rights would be impaired. Persons acting under 

any statute act in contemplation of this power of repeal.’ (Gov. Code, § 9606.) 

The substance of the legislation determines whether it constitutes a repeal. 

(Southern Service Co., Ltd. v. Los Angeles (1940) 15 Cal.2d 1,13.)” (Zipperer, 

at p. 1023.)

Where I part company with my colleagues is in the application of the 

abatement doctrine to this case. 

Zipperer sets out a four-factor test for abatement: (1) “the statutory 

nature of the plaintiffs’ claim”; (2) “the unvested nature of plaintiffs’ claimed 

rights;” (3) “the timing of the elimination of those rights”; and (4) “the nature 

of the mechanism by which the right of action was eliminated.” (Zipperer, 
4

supra, 133 Cal.App.4th at p. 1023.) Considering the four-factor test on this 

record, my view is that the case must be remanded.

Applying the Zipperer factors here is straightforward. First, the 

section 226 claim is wholly statutory; the right of an employee to a certain 

form of wage statement did not exist in common law. Second, the plaintiff’s 

rights to statutory penalties under section 226 has not yet vested. (See 

Zipperer, supra, 133 Cal.App.4th at p. 1024 [“ ‘ “No person has a vested right 

in an unenforced statutory penalty or forfeiture.” ’ [Citations.] Until it is 

fully enforced, a statutory remedy is merely an ‘ “inchoate, incomplete, and 

unperfected” ’ right, which is subject to legislative abolition”]; Willcox v. 

Edwards (1912) 162 Cal. 455, 466-467 [“ ‘A statute which wholly repeals an 

earlier one, either expressly or by implication, without any saving clause, 

makes it ineffectual to support any proceedings, whether not yet begun, or 

pending at the time of its passage, and not already prosecuted to final 

judgment vesting absolute rights’ ” (italics added)].) Third, section 515.7 was 

enacted before this case has become final. (See Zipperer, at p. 1024 

[“Whenever the Legislature eliminates a statutory remedy ‘before a judgment 

becomes final,’ the legislative act ‘destroys the right of action’ ”].) 

Fourth, when certain conditions of section 515.7 are met (relevant here, 

a CBA that meets the requirements of the third “test”), an employee cannot 

maintain a wage statement claim based on Labor Code section 226, 

subdivisions (a)(2), (3), and (9). Although employers such as the University 

still must provide wage statements to their covered employees under section 

515.7, they are no longer statutorily required to provide the precise 

information that is the subject of this lawsuit. In effect, the wage statement 

requirements at issue in this case have been repealed for certain employers 
5

(including the University) with respect to certain employees, including 

adjunct professors who meet the third test.

Even if section 515.7 does not effect a wholesale repeal of all employees’ 

rights to bring a claim under section 226 for wage statements that lack 

required information, section 515.7 is sufficient to trigger abatement if the 

employer can show that an employee is seeking to recover unvested statutory 

wage statement penalties for which their employers are now exempt (here, 

because of a CBA that meets the requirements of the third test). The case of 

Rankin v. Longs Drug Stores, Inc. (2009) 169 Cal.App.4th 1246 (Rankin) 

illustrates the point.

In Rankin, a plaintiff sued Longs Drug Stores alleging that Longs 

violated sections 432.7 and 432.8 by asking on an employment application 

whether the job applicant had been convicted during the last seven years of a 

felony, a crime involving use or possession of illegal drugs, or any 

misdemeanor which resulted in imprisonment. Rankin sought statutory 

penalties. The trial court granted Rankin’s class certification motion and 

defined the class period for certain dates between 2003 and 2005. But after 

the lawsuit was filed, Congress enacted a statute that permitted retail 

pharmacies to ask job applicants if they had ever been convicted of a crime 

involving or related to controlled substances, notwithstanding any state law. 

(Rankin, supra, 169 Cal.App.4th at p. 1251.) As here, the Labor Code 

statutes did not go away; but if a defendant could establish it was a retail 

pharmacy then the enactment of another law (the federal statute) operated to 

abate plaintiff’s class action under the Labor Code. After a trial, the trial 

court entered a judgment of dismissal under abatement principles, and 

Rankin appealed.
6

The court in Rankin acknowledged that the “familiar rule” is that when 

the Legislature is silent on its intent, the new statutory scheme is ordinarily 

construed to operate prospectively. (Rankin, supra, 169 Cal.App.4th at p. 

1253.) “However, different considerations are implicated in the limited 

circumstances in which the Legislature enacts a statute that completely 

reverses substantive law by effectively permitting previously prohibited 

conduct.” Those enactments, when devoid of an express savings clause, “have 

led the courts to apply the common law principle of abatement to conclude all 

still pending actions brought under the old statute must be abated and 

dismissed.” (Id. at p. 1253.) The Rankin court discussed the breadth of this 

principle in civil and criminal cases, and, surveying cases (including 

Zipperer), wrote, “[w]hen a pending action seeks recovery based on a 

statutorily-based obligation, and that statutory provision is repealed by 

legislation not containing an express saving clause, the California courts 

have consistently concluded the pending actions should be abated.” (Rankin,

at p. 1256.) The Rankin court recognized that the federal statute here 

“effect[ed] a partial repeal of the [California] remedial statute that forms the 

basis for this action.” Finding that, as in Zipperer, plaintiffs had no vested 

right in maintaining their statutory claim, and that their unenforced 

statutory remedy was “ ‘ “ ‘inchoate, incomplete, and unperfected’ ” ’ ” and 

subject to “ ‘legislative abolition,’ ” the Rankin court concluded the “pending 

action to enforce the repealed statutory remedy” was abated. (Rankin, at p. 

1262.) 

My colleagues view the fact that section 515.7 does not wholly repeal 

specific subdivisions of section 226 to adjunct faculty as a stumbling block to 

finding abatement; they were not “repealed entirely, nor were they even 

repealed as to adjuncts.” (Maj. opn. at p. 17.) But this is not a requirement 
7

imposed by the case law. In Rankin, section 432.7 was not repealed entirely; 

but under certain circumstances and in specific cases (for example, particular 

questions to job applicants at retail pharmacies), abatement was required. 

So too in Zipperer.

3 

In my view, my colleagues also misplace their focus when they apply as 

the test for repeal whether the new legislation is a “ ‘ “substantial reversal of

legislative policy” ’ ” that represents “ ‘ “the adoption of an entirely new 

philosophy.” ’ ” (Maj. opn. at p. 17.) These phrases come from People v. One 

1953 Buick 2-Door (1962) 57 Cal.2d 358 (One 1953 Buick), a case involving a 

forfeiture proceeding after the seizure of a car used to unlawfully transport 

narcotics. The opinion itself does not mention abatement. And read in 

context, these phrases do not articulate the criteria for whether abatement 

should apply, nor do they define a new test. 

The only question to be determined on appeal in One 1953 Buick was 

whether, as the State argued, the former code provisions on forfeiture that 

were in effect when the car was seized should have been applied, or whether, 

as the commercial credit company that was the legal owner of vehicle argued, 

the trial court was correct in applying the amended statutes that went into 

effect after the seizure but before the forfeiture proceeding commenced. In 

3 In Zipperer, the plaintiffs brought a claim against Santa Clara County 

based on a provision in the Solar Shade Control Act limiting a property 

owner’s ability to grow trees and shrubs that cast shadows on another 

property owner’s solar collector. The county, however, exempted itself from 

this provision, which it was permitted to do under the act. The Solar Shade 

Control Act was not repealed by the county’s legislative act, but the Zipperer

court nonetheless concluded that abatement applied. The Zipperer plaintiffs 

still had rights under the Solar Shade Control Act, but the county’s 

legislative act had the effect of permitting conduct by the county that 

previously was prohibited. Plaintiffs, therefore, could no longer bring a claim 

against the county. 
8

essence, the former law required a bona fide lien holder who sought to assert 

its rights in a forfeiture action to establish that it had undertaken an 

investigation into the “moral responsibility, character, and reputation” of the 

purchaser and that it was “without any knowledge” that the vehicle would be 

used for the unlawful purposes (here, unlawful transportation of a narcotic) 

referred to in another statute (Health & Saf. Code, § 11610). The former law 

was repealed, and new language was added to various statutes permitting a 

bona fide lien holder in a forfeiture proceeding to show “that he acquired his 

interest without actual knowledge” that the vehicle was to be used for the 

purposes referred to in section 11610. (One 1953 Buick, supra, 57 Cal.2d at 

pp. 361-362.)

The Supreme Court in One 1953 Buick described as the “governing 

rule” that “ ‘it has been held in a long line of cases that the repeal of a statute 

creating a penalty, running either to an individual or the state, at any time 

before final judgment, extinguishes the right to recover the penalty,’ ” and 

further that “a forfeiture of this nature ‘is a penalty to induce performance of 

[a] duty,’ and its penal character being obvious, the repeal of the statute 

authorizing the forfeiture extinguishes the right of forfeiture.” (One 1953 

Buick, supra, 57 Cal.2d at pp. 362-363, quoting Lemon v. Los Angeles 

Terminal Ry. Co. (1940) 38 Cal.App.2d 659, 670, 671.) Having stated the 

rule, its application to the facts of this forfeiture case was clear: the trial 

court was correct.

But the Supreme Court went on to explain how this case presented “an 

excellent example of the wisdom of the rule” it had just stated, noting how 

the statutory requirement that every prospective lien claimant make a 

reasonable investigation into the moral responsibility, character, and 

reputation of the purchaser had been in the law since 1933, and had once 
9

been described as having the “purpose of . . . ‘requir[ing] one who finances the 

purchase of an automobile to aid in the prevention of crime.’ ” (One 1953 

Buick, supra, 57 Cal.2d at p. 363.) So when the legislature repealed the law 

in 1959, “this was not only a change in the ‘terms and conditions’ of forfeiture 

but was also a substantial reversal of legislative policy and represented the 

adoption of an entirely new philosophy relative to the rights of a bona fide 

lienholder in a forfeited vehicle,” as reflected in the repeal and in the 

amended statutes making it easier for lienholders to defend against 

forfeiture. The Supreme Court concluded that it was “thus clear that it is the 

present legislative conclusion that public policy does not require the 

forfeiture” of a legal owner’s interest in a car that was used to transport 

narcotics where that owner failed to make an investigation into the moral 

responsibility and character of the purchase. And because the “only purpose” 

of that condition of forfeiture had been to “induce” legal owners into making 

such investigations, and “since the Legislature has now determined that 

public policy does not require such an investigation,” the court concluded that 

“it is difficult to conceive of any public purpose which could be served at this 

date by forfeiting the legal owner’s interest in the automobile for his failure to 

make this investigation.” (Id.at pp. 363-364, italics added.)

As I read One 1953 Buick, the test of abatement (a word not mentioned 

in the opinion itself) is not how substantial was the reversal in legislative 

policy, or whether a measurable philosophical change was afoot. Indeed, in 

many cases that information may not even be knowable. Instead, the rule 

was straightforward, and the facts of One 1953 Buick were but an “excellent 

example” of the wisdom of the rule. I read the opinion as providing helpful 

expression as to why the doctrine of abatement applies to the matter before 

us. Paraphrasing One 1953 Buick, if the purpose of section 226, subdivision 
10

(a) is to enumerate the requirements of wage statements to induce employers 

to meet them or face statutory penalties, and now that the Legislature has 

determined that section 226, subdivision (a) is not violated if the third test 

(the CBA) of section 515.7 applies, “it is difficult to conceive of any public 

purpose which could be served at this date” by requiring the University to 

pay the multi-million dollar judgment without first remanding to the trial 

court to consider whether the application of the statute to this case requires 

abatement of some or all of Gola’s section 226, subdivision (a) cause of 

action.4

Because the trial court did not have an opportunity to consider the 

evidence in this light, and there may be additional evidence or argument 

pertinent to the issue, I would vacate the judgment and remand to the trial 

court to consider whether the wage statement claims are abated by section 

515.7 for some or all of the class period at issue.5 

For these reasons, I respectfully dissent from the majority’s decision to 

affirm the judgment.

4 Given my view of the applicability of the abatement doctrine, I do not 

see this as a “close case,” and therefore cannot agree with the majority that 

declining to consider the doctrine here “advances the enterprise of statutory 

construction.” Under the majority’s reasoning, it seems that abatement 

would always yield to the contrary “nonretroactivity presumption.” (Maj. 

opn. at p. 20.) But our Supreme Court has long recognized the “wisdom of the 

rule” that “ ‘the repeal of a statute creating a penalty, running either to an 

individual or the state, at any time before final judgment, extinguishes the 

right to recover the penalty.’ ” (One 1953 Buick, supra, 57 Cal.2d at p. 363.) 

5 As the majority notes, the second CBA states on its cover page that its 

effective date is July 1, 2018, but we have not determined the effective date of 

the CBA’s classification of adjuncts as professional employees. (Maj. opn. at 

pp. 9-10, fn. 2.) Further, a finding of abatement would affect the statutory 

damages, PAGA penalties and potentially attorneys’ fees and costs. 
11

__________________________

Miller, J.
12

Trial Court: San Francisco County Superior Court

Trial Judge: Hon. Curtis Karnow

Attorneys for Plaintiff and Goldstein, Borgen, Dardarian & Ho

Appellant: Morris J. Baller

Katz, Marshall & Banks, LLP

Daniel B. Edelman

Pro Hac Vice

Hammondlaw, P.C.

Julian Hammond

Polina Brandler

Ari Cherniak

Arie Michelsohn

Pro Hac Vice

Attorneys for Defendant Vartain Law Group, P.C.

And Respondent: Michael J. Vartain

Ross J. Vartain