Filed 2/22/21; modified and certified for partial publication (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

MARVIN JONES,

Plaintiff and Appellant, 

v.

QUALITY COAST, INC.,

Defendant and Respondent.

 B297425

 (Los Angeles County

 Super. Ct. No. BC573529)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Richard E. Rico, Judge. Affirmed.

Charlton Weeks, Bradley T. Weeks for Plaintiff and 

Appellant.

Magarian & Dimercurio, Mark D. Magarian and Krista L. 

Dimercurio for Defendant and Respondent.
2

Plaintiff and appellant Marvin Jones (Jones) sued Quality 

Coast, Inc. (Quality Coast), alleging the company’s decision not to 

hire him was the result of race and gender discrimination and a 

violation of the Displaced Janitor Opportunity Act (DJOA) (Lab. 

Code,1§ 1060 et seq.). A jury returned a defense verdict on the 

discrimination claims. The DJOA claim was decided by the trial

judge, who found Jones was not entitled to protection under that 

statute because he was a supervisory employee. The primary 

issue we are asked to decide is whether the trial court properly 

found Jones was a supervisory employee under the DJOA. We

also consider whether the trial court erred in giving the jury a 

modified instruction on the business judgment rule (a question

largely derivative of the DJOA issue presented) and in awarding 

costs to Quality Coast as the prevailing party on the DJOA claim.

I. BACKGROUND

In 2003, Jones began working as a janitor at an air traffic 

control facility in Palmdale, California that is administered by 

the Federal Aviation Administration (FAA). Jones was employed 

by CMI Janitorial (CMI), which contracted with the FAA to 

provide janitorial services at the Palmdale facility.

In 2009, NMS Management, Inc. (NMS) succeeded CMI as 

the provider of janitorial services for the Palmdale facility and 

hired Jones and all his co-workers to service the FAA contract. 

Quality Coast succeeded NMS as the janitorial service provider 

in 2014, and the company did not hire Jones.

1 Undesignated statutory references that follow are to the 

Labor Code.
3

Jones sued Quality Coast for (among other things) race and 

gender discrimination pursuant to the California Fair 

Employment and Housing Act (FEHA) (Gov. Code, § 12900 et 

seq.) and for violation of the DJOA. In his operative pleading, 

Jones alleged that under the DJOA Quality Coast was obligated 

to hire him for at least a 60-day period following termination of 

the FAA’s contract with NMS because Jones was “not employed 

in a bona fide supervisory capacity, was not paid on a salaried 

basis, did not spend a majority of his time engaged in the 

oversight and direction of other employees, . . . [and did not] 

perform the functions of an actual supervisor . . . . His true

capacity was analogous to a ‘team lead.’” The pertinent 

provisions of the DJOA do require such a 60-day hire, but only for 

“employees,” which the act defines (in language at the heart of 

this appeal) as any person working at least 15 hours per week 

who is not “a managerial, supervisory, or confidential employee, 

including those employees who would be so defined under the 

federal Fair Labor Standards Act [(FLSA)].” (§§ 1060, subd. (c),

1061, subd. (b)(1).)

Jones’s FEHA cause of action was tried to a jury, and the 

jury returned a defense verdict for Quality Coast by a vote of 9-3. 

Following the jury’s verdict, Jones advised the trial court he 

presented at trial all the evidence he would present as to the

DJOA cause of action. Quality Coast then moved for judgment on 

that cause of action. Quality Coast argued the evidence at trial—

including the “Supervisor” job classification given Jones on a list 

of employees NMS provided to Quality Coast when it took over 

the janitorial services contract—established Jones was a 

supervisor and, thus, not a protected employee under the DJOA.
4

In opposition, Jones argued the evidence established he

was not a supervisory employee under the FLSA definitions, as 

well as under definitions in other statutes, including FEHA and

California’s minimum wage law.2 In particular, Jones 

2 The FLSA grants the Secretary of Labor authority to 

promulgate regulations to “define[ ] and delimit [ ]” the scope of 

exemptions from overtime pay rules. (29 U.S.C. § 213, subd. 

(a)(1).) “To qualify as an exempt executive, administrative or 

professional employee . . . , an employee must be compensated on 

a salary basis . . . .” (29 C.F.R. § 541.600(a).) For each 

exemption, the United States Department of Labor has identified 

objective, multi-element definitions that can be used to determine 

whether an employee is exempt or nonexempt. For example, in 

the context of the executive exemption, where the primary duty is 

“management” of the enterprise or one of its constituent 

departments or subdivisions (29 C.F.R. § 541.100), the 

regulations provide the following non-exhaustive list of work 

responsibilities that qualify as management-related duties: 

“interviewing, selecting, and training of employees; setting and 

adjusting their rates of pay and hours of work; directing the work 

of employees; maintaining production or sales records for use in 

supervision or control; appraising employees’ productivity and 

efficiency for the purpose of recommending promotions or other 

changes in status; handling employee complaints and grievances; 

disciplining employees; planning the work; determining the 

techniques to be used; apportioning the work among the 

employees; determining the type of materials, supplies, 

machinery, equipment or tools to be used or merchandise to be 

bought, stocked and sold; controlling the flow and distribution of 

materials or merchandise and supplies; providing for the safety 

and security of the employees or the property; planning and 

controlling the budget; and monitoring or implementing 

compliance measures.” (29 C.F.R. § 541.102.)
5

maintained he could not be considered a supervisory employee 

under FLSA, and by extension the DJOA, because he was not a 

salaried employee and because his primary duty at the Palmdale 

plant was “janitorial labor.”

A. Jones’s Status as a Supervisory Employee, as 

Established by the Evidence Presented at Trial

While working for CMI (the first of the three janitorial 

service providers), Jones handled administrative tasks in 

addition to his cleaning duties. For example, when a CMI coworker wanted to change his or her schedule or go on vacation, or 

if the FAA requested special janitorial work such as “high 

dusting,” or if additional cleaning supplies were needed in 

Palmdale, Jones would relay the request to his CMI supervisor 

located in Long Beach, California, who would then approve or 

disapprove the request. 

When NMS took over from CMI, Jones’s role did not 

change: he continued to perform as the site’s “go to” intermediary 

and facilitator in addition to his cleaning work. Jones was given 

access to an office and a computer and provided with an FAA 

email address—something the other NMS janitors were not. 

Jones was paid on an hourly basis, and eventually, NMS formally 

designated Jones as its “site supervisor” at Palmdale and 

increased his hourly pay from $14.50 to $14.75. Jones did not, 

however, have authority to hire, fire, transfer, suspend, 

discipline, or promote any of the other janitorial staff. 

The other janitors at the Palmdale FAA facility uniformly 

testified Jones was their supervisor. Linda Bailey, an FAA 

employee who frequently interacted with Jones, similarly 

testified he was the only NMS supervisor at the facility and the 
6

liaison to the FAA. As site supervisor, Jones had the authority to

direct his coworkers to remedy dirty conditions at the facility 

identified by FAA personnel. Maria Lainez, who worked with 

Jones during his five years with NMS, testified he acted as the 

intermediary between the janitors and NMS’s management, 

including by passing change of schedule requests to the NMS 

home office, which then approved or disapproved the requests. 

Alba Ortega, another janitor, testified Jones would give her 

“orders” and she and other janitors would tell Jones when they 

needed cleaning supplies and he was responsible for ordering 

them.

After the FAA selected Quality Coast to succeed NMS, 

NMS gave Quality Coast a list of its eight Palmdale employees. 

The list classified Jones as the on-site “Supervisor.” When

Quality Coast interviewed Jones for a janitorial position at the 

Palmdale facility, Jones identified himself as NMS’s site 

supervisor. Specifically, Jones’s notes of the interview, which 

were admitted as an exhibit at trial, read: “[A Quality Coast 

representative] introduced himself as Richard the owner of

[Quality Coast] and [said] you are the supervisor for NMS right? 

I said yes.”

Before Quality Coast began its work at the FAA facility, 

company representatives toured the location with a FAA 

administrator. The administrator said she considered Jones to be 

an ineffective supervisor in light of the dirty conditions at the 

facility. Based on the FAA administrator’s comments and their 

own observations of conditions at the facility, Quality Coast’s 

principals decided to bring in one of their own supervisoremployees to oversee the work at the Palmdale facility. Although 

Quality Coast’s principals eliminated Jones early on from 
7

consideration as their on-site supervisor, they did consider 

retaining him as one of their Palmdale janitors and interviewed 

him for that position. But they ultimately decided not to hire 

Jones as a janitor because of concerns over how he treated the 

other employees. 

B. The Trial Court Finds Jones Was a Supervisory 

Employee

On January 18, 2019, after hearing argument and taking 

the matter under submission, the trial court granted Quality 

Coast’s motion for judgment on the DJOA cause of action. The 

court’s written ruling found it was undisputed Jones that was a 

supervisor, relying on a dictionary definition of the term. The 

court explained Jones referred to himself as a supervisor, his coworkers and FAA administrators at the Palmdale facility 

described him as a supervisor, NMS categorized him as a 

supervisor in the transition paperwork it provided to Quality

Coast, and Jones “acted as the intermediary between NMS and 

the other janitorial employees, directing the work of the other 

janitors and ordering supplies.” The trial court believed the issue 

was “[Quality Coast]’s state of mind at the time it made its 

decision not to hire [Jones.] From that standpoint everything 

[Quality Coast] knew at the time indicated that [Jones] was a 

supervisory employee.” In reaching its decision, the trial court 

did not discuss or reference FLSA standards for determining 

whether an employee is a supervisor.

II. DISCUSSION

We shall affirm the judgment because there is ample 

evidence Jones was a supervisory employee for the purposes of 
8

the DJOA and his remaining assignments of error are meritless. 

Though the trial court’s ruling includes an odd turn of phrase 

about the significance of Quality Coast’s “state of mind,” the focus 

of the court’s findings was on the evidence bearing on whether 

Jones exercised supervisory authority over others at his work site

at the time Quality Coast took over servicing the FAA facility. 

There was strong evidence he did, as the trial court found. He 

was designated a supervisor by the outgoing janitorial company, 

he described himself as “the supervisor,” other janitors and an 

FAA employee described him as the site supervisor, and he 

occupied a leadership role among all the janitorial staff—

including by giving orders and directions and by serving as the 

liaison to FAA personnel at the facility. That is supervisory in 

just about any sense of the word, and certainly for purposes of a 

statute that applies only to janitorial company employees. 

Jones’s claim of instructional error is predicated on his belief that 

the trial court’s DJOA finding was error; it was not, and the 

instructional error claim fails for that reason. Finally, Jones’s 

costs argument is meritless because the general costs statute 

applies to the DJOA (non-FEHA-based) cause of action and 

Quality Coast was the prevailing party.

A. The Trial Court Correctly Found Jones Is a 

Supervisory Employee for DJOA Purposes

1. Standard of review

Under Code of Civil Procedure section 631.8, “a court acting 

as trier of fact may enter judgment in favor of the defendant if 

the court concludes that the plaintiff failed to sustain its burden 

of proof. [Citation.] In making the ruling, the trial court assesses 

witness credibility and resolves conflicts in the evidence.” (People 
9

ex rel. Dept. of Motor Vehicles v. Cars 4 Causes (2006) 139 

Cal.App.4th 1006, 1012.)

When a trial court issues a judgment pursuant to Code of 

Civil Procedure section 631.8, the standards of appellate review 

are the same as if the court had rendered a judgment after a 

completed bench trial. (Orange County Water Dist. v. MAG 

Aerospace Industries, Inc. (2017) 12 Cal.App.5th 229, 239.) The 

trial court’s findings of fact are reviewed under the substantial 

evidence standard and its determinations of questions of law, 

such as the proper interpretation of a statute, are subject to 

independent review. (Id. at 240.)

2. The Pertinent DJOA Provisions

The DJOA requires contractors who are awarded contracts 

for janitorial or building maintenance services at a particular site 

to retain certain employees working for the terminated contractor 

for a 60-day transition employment period, and to offer those 

workers continued employment if their performance during the 

60-day period is satisfactory.

3

(§ 1061, subds. (b)(1) & (f).) As we 

3 The legislative history of the DJOA indicates it was 

designed to protect vulnerable janitorial workers from a labor 

market in which they can lose their jobs with little or no warning. 

(Sen. Rules Com., Off. of Sen. Floor Analyses, Rep. on Sen. Bill 

No. 20 (2001-2002 Reg. Sess.) Sept. 6, 2001, pp. 4-5.) The act was 

based on ordinances adopted by the following cities to protect 

displaced contract workers: Washington, D.C., San Francisco, 

California, and Philadelphia, Pennsylvania. (See, e.g., Sen. Rules 

Com., Off. of Sen. Floor Analyses, Rep. on Sen. Bill No. 20 (2001-

2002 Reg. Sess.) May 16, 2001, p. 3; Sen. Rules Com., Off. of Sen. 

Floor Analyses, Rep. on Sen. Bill No. 20 (2001-2002 Reg. Sess.) 
10

have already stated, the act defines an “employee” as a person 

who works at least 15 hours per week providing janitorial or 

building maintenance services but who is not a “managerial, 

supervisory, or confidential employee, including those employees 

who would be so defined under the federal Fair Labor Standards 

Act.” (§ 1060, subd. (c).) Significantly, and to implement these 

provisions just referenced, the DJOA requires a terminated 

contractor to provide the name, date of hire, and job classification 

of each employee employed at the site to the successor contractor 

within three working days after receiving notice that its contract 

has been terminated. (§ 1061, subd. (a).) 

Under the DJOA, an employee of the terminated contractor 

who was not offered employment by the successor contractor may 

sue the successor for back pay, including the value of any lost 

employment benefits. (§ 1062, subd. (a).) If the employee is the 

prevailing party, the trial court “shall award the employee 

reasonable attorney’s fees and costs as part of the costs 

recoverable.” (§ 1062, subd. (c).) The act is silent about awards 

of fees and costs to a prevailing defendant.

3. Analysis

The text of the DJOA does not indicate the Legislature 

used the term “supervisory employee” in any technical sense 

different from its common understanding. (Pineda v. WilliamsSonoma Stores, Inc. (2011) 51 Cal.4th 524, 529 [in interpreting a 

statute, words should be given their “usual and ordinary 

meaning”]; see also People v. Andrade (2000) 85 Cal.App.4th 579, 

Sept. 6, 2001, p. 3.) Each of these ordinances define “employee” 

in terms similar to the DJOA.
11

587 [considering the plain meaning of a statute where there was 

no indication the Legislature intended the phrase to have a 

technical or special meaning].) Yes, section 1060 does make 

reference to employees who would be defined as “managerial, 

supervisory, or confidential” under the FLSA, but it does so only 

by using the word “including,” which is not a word of limitation. 

To the contrary, with section 1060, subdivision (c)’s syntax 

(“‘Employee’” does not include a person who is a managerial, 

supervisory, or confidential employee, including those employees 

who would be so defined under the [FLSA]”) the Legislature 

necessarily intended those employees considered “supervisory” 

would extend beyond those employees who would be managerial 

or exempt under the FLSA. 

Jones fits the common understanding of the word 

“supervisor.” That is even how the relevant parties here used the 

word: Jones himself, the terminated janitorial company NMS, the 

FAA employee with whom Jones frequently interacted, and the 

other janitors at the FAA facility all described Jones as the site

supervisor. And they did so with good reason: Jones had a 

leadership role as compared to the other janitors. He was the 

only one to liaise with the FAA, he was the only one who had his 

own office, he was the person to whom the janitors would go if 

they needed more supplies, he would distribute work schedules, 

and he would give directions and orders to the others. That is 

supervision not only in the common sense but even as defined in 

a Government Code statute, cited by Jones, that applies in a 

different context (state employer-employee relations). (Gov. 

Code, § 3513, subd. (g) [“‘Supervisory employee’ means any 

individual, regardless of the job description or title, having 

authority, in the interest of the employer, to hire, transfer, 
12

suspend, lay off, recall, promote, discharge, assign, reward, or 

discipline other employees, or responsibility to direct them, or to 

adjust their grievances, or effectively to recommend this action, 

if, in connection with the foregoing, the exercise of this authority 

is not of a merely routine or clerical nature, but requires the use 

of independent judgment”], italics added.) 

B. It Was Not Error to Give the Modified Business 

Judgment Rule Instruction at Trial

During the jury trial on Jones’s discrimination claim, 

Quality Coast proposed that the jury be instructed with CACI No. 

2513, Business Judgment. The pattern instruction provides: “In 

California, employment is presumed to be ‘at will.’ That means 

that an employer may [discharge/[other adverse action]] an 

employee for no reason, or for a good, bad, mistaken, unwise, or 

even unfair reason, as long as its action is not for a 

[discriminatory/retaliatory] reason.”

Jones’s attorney argued the instruction’s reference to “at 

will” employment was not consistent with the facts of the case 

because Jones was not an “at will” employee under the DJOA. 

The trial court agreed to modify the instruction by removing the 

“at will” language and gave the jury this modified instruction: 

“An employer may refuse to hire an employee for no reason or for 

a good, bad, mistaken, unwise or even unfair reason, as long as 

its action[ ] is not for a discriminatory reason.”

The sole argument Jones now makes for why giving this 

instruction was error is the argument he made in the trial court: 

the instruction was a misstatement of law because Quality Coast 

had to hire Jones for at least 60 days under the DJOA and he 

therefore was not an at-will employee. We have already rejected 
13

Jones’s DJOA argument and that fatally undermines the key 

premise of his instructional error claim. We therefore need not 

analyze the issue further.

C. The Trial Court’s Costs Award Is Not Erroneous

There is no disputing Quality Coast was the prevailing 

party under the generally applicable costs statute. (Code Civ. 

Proc., § 1032, subd. (a)(4) [“‘Prevailing party’ includes the party 

with a net monetary recovery, a defendant in whose favor a 

dismissal is entered, a defendant where neither plaintiff nor 

defendant obtains any relief, and a defendant as against those 

plaintiffs who do not recover any relief against that defendant”].) 

Under Code of Civil Procedure section 1032, “[e]xcept as 

otherwise expressly provided by statute, a prevailing party is 

entitled as a matter of right to recover costs in any action or 

proceeding.” (Code Civ. Proc., § 1032, subd. (b).)

FEHA is an example of a scenario where another rule does 

expressly provide otherwise. Under FEHA, costs may be 

awarded to a prevailing defendant only if the plaintiff’s action 

was objectively without foundation. (Gov. Code, § 12965, subd. 

(b) [“In civil actions brought under this section, the court, in its 

discretion, may award to the prevailing party . . . reasonable 

attorney’s fees and costs . . . except that, notwithstanding Section 

998 of the Code of Civil Procedure, a prevailing defendant shall

not be awarded fees and costs unless the court finds the action 

was frivolous, unreasonable, or groundless when brought, or the 

plaintiff continued to litigate after it clearly became so”]; 

Williams v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th

97, 115 (Williams).) The FEHA rule applies only to FEHA causes 

of action, however, and a trial court may still award costs, 
14

pursuant to the generally applicable costs statute, to non-FEHA

causes of action litigated with FEHA claims. (Arave v. Merril 

Lynch, Pierce, Fenner, & Smith, Inc. (2018) 19 Cal.App.5th 525, 

548 [“[T]he holding in Williams does not preclude defendants 

from obtaining ordinary costs on [the plaintiff’s] wage claim” that 

was brought in conjunction with FEHA causes of action].) As 

Jones does not contest the amount of costs awarded, only the fact 

that costs were awarded at all, we need not discuss the issue 

further. Costs were appropriately awarded to Quality Coast 

under Code of Civil Procedure section 1032 for (and only for) 

prevailing on Jones’s DJOA claim—there is no statute that 

expressly provides otherwise.
15

DISPOSITION

The judgment is affirmed. Quality Coast shall recover its 

costs on appeal.

BAKER, Acting P. J.

We concur:

MOOR, J.

KIM, J.
1

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

MARVIN JONES,

Plaintiff and Appellant, 

v.

QUALITY COAST, INC.,

Defendant and Respondent.

 B297425

 (Los Angeles County

 Super. Ct. No. BC573529)

ORDER MODIFYING

OPINION AND

CERTIFYING OPINION 

FOR PARTIAL

PUBLICATION

It is ordered that the opinion filed February 21, 2021, be 

modified as follows:

On page 2, the fifth sentence of the first paragraph 

(beginning “We also consider . . . .”) is deleted.

On page 3, in the second sentence, “that under the DJOA” 

is deleted, “the DJOA obligated” is inserted between “alleged” 

and “Quality Coast,” and “was obligated” is deleted so the 

sentence as revised begins: “In his operative pleading, Jones 

alleged the DJOA obligated Quality Coast to hire him for at least 

a 60-day period . . . .”

On page 6, in the first sentence of the second full 

paragraph, “a FAA administrator” is revised to read “an FAA 

administrator”

On page 8, the following two sentences are deleted: 

“Jones’s claim of instructional error is predicated on his belief 

Filed 3/23/21
2

that the trial court’s DJOA finding was error; it was not, and the 

instructional error claim fails for that reason. Finally, Jones’s 

costs argument is meritless because the general costs statute 

applies to the DJOA (non-FEHA-based) cause of action and 

Quality Coast was the prevailing party.”

On page 9, the capitalization in the subheading is revised 

to read: 2. The pertinent DJOA provisions

On page 9, in the last sentence of footnote three, “define” is 

revised to read “defines”

On page 11, the second full sentence is revised to read: To 

the contrary, section 1060, subdivision (c)’s syntax (“‘Employee’ 

does not include a person who is a managerial, supervisory, or 

confidential employee, including those employees who would be 

so defined under the [FLSA]”) indicates the Legislature 

necessarily intended those employees considered “supervisory” to 

extend beyond those employees who would be managerial or 

exempt under the FLSA.

On page 14, “Merril” in the citation is revised to read 

“Merrill” and the comma after “Fenner” is deleted.

So modified, and pursuant to California Rules of Court, 

rules 8.1105(b) and 8.1110, it is ordered that all parts of the 

opinion other than Parts II.B and II.C are certified for 

publication. Insofar as the March 11, 2021, request for 

publication of the opinion submitted by Krista L. DiMercurio, 

counsel for Quality Coast, Inc., requests publication of the 

opinion in full, the request is denied.

There is no change in judgment.

BAKER, Acting P. J. MOOR, J. KIM, J.