Filed 5/9/22 Del Fierro v. DynCorp International CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion 

has not been certified for publication or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

RAMON DEL FIERRO,

 Plaintiff and Appellant,

v.

DYNCORP INTERNATIONAL,

LLC,

 Defendant and Respondent.

2d Civil No. B312841

(Super. Ct. No. 56-2019-

00534888-CU-OE-VTA)

(Ventura County)

Plaintiff brought an action against his former employer 

under the Private Attorneys Generals Act (PAGA) (Lab. Code,

1

§ 2699) for violation of section 226, subdivision (a)(9). Plaintiff 

was employed by a private contractor on a United States military 

base. The trial court concluded that plaintiff’s action was barred 

by the federal enclave rule. (U.S. Const., art. I, § 8, cl. 17.) The 

court granted defendant judgment on the pleadings. We affirm. 

1 All statutory references are to the Labor Code unless 

otherwise stated.
2

FACTS

In 1954 the State of California ceded to the federal 

government the land occupied by the Point Mugu Naval Air 

Station (Point Mugu). Ramon del Fierro worked for DynCorp 

International, LLC (DynCorp) at Point Mugu servicing military 

jets from 2016 to 2019. Because he worked the evening shift, his 

union contract required that he be paid a shift differential of 

$1.85 per hour, later raised to $2.05 per hour.

Del Fierro’s wage statements showed the total amount of 

shift differential pay he received and the shift differential hourly 

rate. The wage statements did not show the total number of shift 

differential hours he worked. That amount could be easily 

calculated, however, by dividing the total shift differential pay by 

the hourly rate.

Complaint

Del Fierro brought this action against DynCorp on behalf of 

himself and others alleging that DynCorp violated section 226, 

subdivision (a)(9) requiring wage statements to show “all 

applicable hourly rates in effect during the pay period and the 

corresponding number of hours worked at each hourly rate.”

The complaint sought statutory penalties under sections 

226.3 and 2699, subdivision (f).

Section 226.3 provides, in part: “Any employer who 

violates subdivision (a) of Section 226 shall be subject to a civil 

penalty in the amount of two hundred fifty dollars ($250) per 

employee per violation in an initial citation and one thousand 

dollars ($1,000) per employee for each violation in a subsequent 

citation, for which the employer fails to provide the employee a 

wage deduction statement or fails to keep the records required in 

subdivision (a) of Section 226.”
3

Section 2699, subdivision (f) provides, in part: “For all 

provisions of this code except those for which a civil penalty is 

specifically provided, there is established a civil penalty for a 

violation of these provisions, as follows: . . . [¶] (2) If, at the time 

of the alleged violation, the person employs one or more 

employees, the civil penalty is one hundred dollars ($100) for 

each aggrieved employee per pay period for the initial violation 

and two hundred dollars ($200) for each aggrieved employee per 

pay period for each subsequent violation.”

Although the civil penalties are within the purview of the 

Labor and Workforce Development Agency, section 2699, 

subdivision (a) provides, in part: “(a) Notwithstanding any other 

provision of law, any provision of this code that provides for a 

civil penalty to be assessed and collected by the Labor and 

Workforce Development Agency . . . for a violation of this code, 

may, as an alternative, be recovered through a civil action 

brought by an aggrieved employee on behalf of himself or herself 

and other current or former employees . . . .”

Procedure

DynCorp demurred on the ground that section 226.3 limits 

civil penalties for the employer’s failure to provide the employee 

with “a wage deduction statement” or where the employer “fails 

to keep the records required in subdivision (a) of Section 226.” 

DynCorp pointed out that Del Fierro alleged neither violation in 

his complaint. The trial court overruled the demurrer.

After answering, DynCorp moved for judgment on the 

pleadings. DynCorp claimed that Point Mugu’s status as a 

federal enclave barred application of PAGA to actions by 

employees working at Point Mugu. The trial court denied the 

motion. 
4

DynCorp made a second motion for judgment on the 

pleadings, again arguing that PAGA could not be applied on a 

federal enclave. Thus, Del Fierro has no private right of action to 

enforce the penalties under section 226.3. This time the trial 

court agreed and granted the motion.

The trial court stated it erred in denying DynCorp’s first 

motion for judgment on the pleadings because it did not 

understand that Del Fierro’s claims depended on PAGA. The 

court concluded that PAGA did not apply to Point Mugu because 

Point Mugu was ceded to the federal government decades prior to 

the enactment of PAGA. 

DISCUSSION

I

Application of PAGA in a Federal Enclave

The United States Constitution gives Congress the power 

to exercise exclusive legislation “over all Places purchased by the 

Consent of the Legislature of the State in which the Same shall 

be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, 

and other needful Buildings.” (U.S. Const., art. I, § 8, cl. 17.)

When an area in a state becomes a federal enclave, only the 

state law in effect at the time of the transfer continues in force, 

and, going forward, the state law does not apply to the enclave. 

(Parker Drilling Management Services, Ltd. v. Newton (2019) __ 

U.S. __ [139 S.Ct. 1881, 1890].)

Del Fierro’s complaint alleges that he worked at Point 

Mugu from 2016 to 2019. It is undisputed that Point Mugu 

became a federal enclave in 1954. PAGA became effective on 

January 1, 2004. (Stats. 2003, ch. 906, § 2.)

Del Fierro argues that PAGA is procedural; it simply allows 

an employee to act as an agent of the state in collecting civil 
5

penalties. (Citing Julian v. Glenair, Inc. (2017) 17 Cal.App.5th 

853, 871.) But PAGA also has a substantive part. Section 2699, 

subdivision (f) provides for civil penalties for violation of the 

Labor Code. Del Fierro’s complaint requests those civil penalties. 

Having arisen decades after Point Mugu became a federal 

enclave, the federal enclave rule bars the imposition of such 

penalties here.

In apparent recognition that the penalties under section 

2699, subdivision (f) are barred, Del Fierro focuses his appeal on 

section 226. He claims that section 226 was enacted in 1943, 

before Point Mugu became a federal enclave. But a code section 

number is not the law; the law is contained in the text of the code 

section. Del Fierro makes no effort to show that section 226 as it 

existed prior to 1954 contained the text of the law on which he 

relies. 

As first enacted in 1943, section 226 required only that 

employers provide written statements of any deductions from an 

employee’s pay. (Ward v. United Airlines, Inc. (2020) 9 Cal.5th 

732, 745.) The only amendment prior to 1954 required that the 

statement be a detachable part of the pay check. (Stats. 1945, ch. 

1140, § 1.) The Legislature did not add the requirement to 

section 226 that a wage statement provide “all applicable hourly 

rates in effect during the pay period and the corresponding 

number of hours worked at each hourly rate by the employee,” 

the provision on which Del Fierro relies, until 2000. (Stats. 2000, 

ch. 876, § 6, capitalization omitted.) Moreover, section 226.3, the 

statute that establishes the civil penalties Del Fierro’s complaint 

seeks, was not enacted until 1979. (Stats. 1979, ch. 1050, § 3.) 

Del Fierro’s reliance on Paul v. United States (1963) 371 

U.S. 245 is misplaced. In Paul, the question was whether price 
6

control on milk enacted by the state of California applied on 

various military bases in the state. The Supreme Court 

concluded, “[T]he current price controls over milk are applicable 

to [milk sales], provided the basic state law authorizing such 

control has been in effect since the times of these [military base] 

acquisitions.” (Id. at p. 269.)

The term “basic state law” as used in Paul must be 

narrowly interpreted to prevent the prior state law exception 

from overwhelming the federal enclave constitutional rule. (See 

Allison v. Boeing Laser Technical Services (10th Cir. 2012) 689 

F.3d 1234, 1243 [changes in state labor law related to wrongful 

termination not applicable in federal enclave].) Paul allowed 

only administrative changes to the price of milk under a 

legislative program that began prior to the establishment of a 

federal enclave. Paul did not contemplate substantive legislative 

changes to the program itself. That there would be 

administrative changes in the price of milk was an essential part 

of the original state program.

Here we are not concerned with administrative changes 

contemplated by the original statute. We are concerned with 

substantive change to the statute itself. The statutory provision 

on which Del Fierro’s case depends did not exist prior to 1954 

when Point Mugu became a federal enclave.

For the first time in his reply brief, Del Fierro contends 

DynCorp is barred by collateral estoppel from claiming section 

226 is not enforceable at Point Mugu. In a parallel federal class 

action, the federal district court denied DynCorp’s motion for 

judgment of the pleadings. DynCorp’s motion was based on the 

contention that the federal enclave rule barred the application of 

section 226. The court denied the motion on the ground that 
7

section 226 was enacted before Point Mugu became a federal 

enclave.

Del Fierro’s contention lacks merit for a number of reasons.

First, we do not ordinarily consider matters raised for the 

first time in the reply brief. (Baugh v. Garl (2006) 137 

Cal.App.4th 737, 746.) Del Fierro referred to the case under the 

facts in his opening brief, but did not raise the contention that it 

had a preclusive effect. Del Fierro provides no reason why he did 

not raise the issue in his opening brief. The issue has been 

waived.2

Second, collateral estoppel requires a final decision on the 

merits in a prior action. (In re Marriage of Furie (2017) 16 

Cal.App.5th 816, 828.) A motion for judgment on the pleadings is 

the equivalent of a demurrer. (Hardy v. America’s Best Home 

Loans (2014) 232 Cal.App.4th 795, 802.) Del Fierro cites no 

authority that supports its claim that the denial of a motion for 

judgment on the pleadings or an order overruling a demurrer is 

sufficiently determinative to constitute a final decision on the 

merits.

Finally, as we have explained above, the district court’s 

ruling was wrong.

II

Section 226.3 Does Not Apply

By its terms section 226.3 provides civil penalties for an 

employer who “fails to provide the employee a wage deduction 

statement or fails to keep the records required in subdivision (a) 

of Section 226.”

2 DynCorp’s motion to strike the issue, filed February 22, 

2022, is granted.
8

That is not what Del Fierro is alleging. He is alleging that 

DynCorp failed to provide the hourly rates and the corresponding 

number of hours worked at each hourly rate. By the plain 

wording of section 226.3, it does not apply to the alleged violation 

of section 226. (See Gunther v. Alaska Airlines, Inc. (2021) 72 

Cal.App.5th 334, 354-355 [limiting the application of section 

226.3 to failure to provide wage deduction statement and keep 

required records; disapproving of Raines v. Coastal Pacific Food 

Distributors, Inc. (2018) 23 Cal.App.5th 667, 675, applying 

section 226.3 to all violations of section 226].)

III

DynCorp’s Second Motion for Judgment on the Pleadings

Del Fierro contends the trial court erred in allowing 

DynCorp’s second motion for judgment on the pleadings.

Del Fierro argues DynCorp’s second motion did not satisfy 

the requirements of Code of Civil Procedure section 1008 that a 

motion for reconsideration be based on different facts, 

circumstances, or law.

Code of Civil Procedure section 1008, subdivision (a) gives 

the trial court the power to deny a second motion for failure to 

show different facts, circumstances, or law. But the court has the 

inherent power to correct its errors. (Le Francois v. Goel (2005) 

35 Cal.4th 1094, 1107 [Code of Civil Procedure section 1008 does 

not limit the court’s ability on its own motion to correct errors].) 

If the court believes one of its interim orders was erroneous, the 

court is able to correct the error no matter how it came to acquire 

that belief. (Le Francois, at p. 1108.) Thus, the trial court did 

not err in granting DynCorp’s second motion for judgment on the 

pleadings.
9

The judgment is affirmed. Costs are awarded to 

respondent.

NOT TO BE PUBLISHED.

GILBERT, P. J.

We concur:

PERREN, J.

TANGEMAN, J.
10

Ronda J. McKaig, Judge

Superior Court County of Ventura

______________________________

Diversity Law Group, Larry W. Lee; Law Offices of Choi & 

Associates, Edward W. Choi; Polaris Law Group, William L. 

Marder; Hyun Legal and Dennis S. Hyun for Plaintiff and 

Appellant.

Constangy, Brooks, Smith & Prophete and Stephen B. Katz

for Defendant and Respondent.