HHC also contends that it is a political subdivision of the State of New York, and therefore is exempt from Labor Law *1064§ 215. HHC points to the definitions provided in another section of the Labor Law, the <mask> Act, which specifically exempts “federal, state or municipal government or political subdivision thereof” from causes of action against them (Labor Law § 651 [5] [n]). Plaintiff responds that those definitions do not apply for claims brought under Labor Law § 215. The exemptions under Labor Law § 215 (c) (1) pertain only to “state or any municipal subdivisions or departments thereof”;* it makes no mention of political subdivisions.


Harold Baer, Jr., J. This proceeding is brought to set aside a ruling by the New York State Industrial Board of Appeals (IB A) that the Federal Fair Labor Standards Act (FLSA) (52 US Stat 1060; US Code, tit 29, § 201 et seq.) does not preclude New York State Department of Labor (DOL) officials from conducting on-premises inspections and interviews to ensure employer compliance with State <mask> and hour laws. Petitioner claims that the IBA erred as a matter of law.


‘ ‘ Application; special requirements. — a. The application for a license or for any renewal thereof to conduct a laundry shall be in writing and shall state the specific location where laundry work is processed and the maximum number of persons to be employed therein. The commissioner, before issuing any such license, shall cause an investigation to be made of the premises named and described in such application, for the purpose of determining whether the provisions of the sanitary code, building code, state industrial code, state <mask> law, local laws, regulations of municipal agencies and other requirements of this article are fully complied with.


Lainez opposed the motion. He declared that he had begun working for Jackpot prior to May 14, 2011, and that he was seeking compensation in the first cause of action for unpaid minimum wages prior to July 1, 2012. Lainez in his opposition agreed that each of the material facts identified in Jackpot's summary adjudication motion was undisputed. But Lainez argued that the safe harbor provision of section 226.2(b) did not offer a complete defense to Jackpot because the statute did not immunize the company against unpaid <mask> claims accruing prior to July 1, 2012.


“I regularly worked in excess of 40 hours per week and often worked as many as 60 hours per week selling home loans. Oftentimes I worked evenings, early mornings and weekends. My supervisors encouraged me and other loan officers to work long hours exceeding 40 hours in given workweeks because the more loan products I sold, the more profit Continental would make. Continental’s management would reprimand or terminate loan officers who were not working hard enough. But even these loan officers were working more than 40 hours per week. If loan officers wanted to remain in good standing with Continental’s management, they had to work more than 40 hours per week. “I was not paid overtime for the time I worked over 40 hours per week. I was not paid <mask>. *795“While employed by Continental, I worked with other loan officers who I observed on a daily basis. Like me, all these loan officers sold loans as their primary duty, regularly worked in excess of 40 hours per week, and were paid pursuant to the same or similar pay plan described above. I knew this because I personally observed other loan officers regularly working over 40 hours a week and was told by Continental that all of its loan officers were paid in the same or similar way. I learned from other loan officers that all of Continental’s loan officers were paid the same way. I was required to attend weekly meetings with other loan officers. During these meetings, Continental’s management reemphasized that our primary duty was selling home loans and that we would not receive payment unless we made sales, encouraged us to work long hours, and gave accolades to those loan officers putting in the most time. “Continental did not record the time I worked or the time worked by other loan officers. While I was employed, Continental did not have a time keeping system for its loan officers.”4


Relying on the documentation provided by plaintiff in his complaint, Jet Blue contends that it properly compensated plaintiff for all hours worked because, it argues, the reduced overtime rate in 12 NYCRR 142-2.2 should be calculated as the <mask> rate plus one half the minimum wage rate. *351However, in this case, plaintiff alleges that he was paid well over the minimum wage for all hours worked. Logic dictates that the Department of Labor would not penalize someone for earning above the minimum wage. Therefore, in a scenario such as this, where a plaintiff is earning more than minimum wage, yet is exempt from the FLSA, plaintiffs overtime pay under the reduced overtime provision of 12 NYCRR 142-2.2 should logically be calculated as equal to his regular pay rate plus one half times New York State’s minimum wage (but see Matter of Ray-mus [Roberts], 102 AD2d 154, 154 [3d Dept 1984] [noting the Wage Board’s decision to calculate the plaintiffs pay based on the 12 NYCRR 142-2.2 reduced overtime rate calculated as the current minimum wage rate plus one half times the minimum wage rate]).


The rule established by Armenta -that employees must be separately compensated at <mask> or above for all time worked-was subsequently applied by California courts to "piece-rate" compensation programs, in which employees do not receive an hourly wage but are paid based on the tasks they perform. In Gonzalez, supra, 215 Cal.App.4th 36, 155 Cal.Rptr.3d 18, automobile service technicians were paid on a piece-rate basis for their work. Specifically, technicians were "paid a flat rate ranging from $17 to $32, depending on the technician's experience, for each 'flag hour' a technician accrues." ( Id . at p. 41, 155 Cal.Rptr.3d 18.) Flag hours were assigned to every task that a technician performs and were intended to correspond to the actual amount of time a technician would need to perform the task. ( Ibid . ) A technician who completed a repair task accrued the number of flag hours assigned to that task, regardless of how long the technician actually took to complete the task. ( Ibid . ) A technician's pay for each 80-hour period was based on the number of flag hours accrued during that pay period multiplied by the technician's applicable flat rate. ( Ibid . ) The technicians accrued no flag hours for performing non-repair tasks, such as cleaning, obtaining parts and participating in training. ( Id . at p. 42, 155 Cal.Rptr.3d 18.) Thus, the employees were not directly compensated for non-repair time.


Dr. Krosnick explained his research involved "(1) drawing a sample of respondents to represent a population, (2) collecting data from those respondents, and (3) analyzing the data generated to answer the questions of interest." He and his team of researchers had obtained from plaintiffs' attorneys "the constructs to be measured in the survey," which he described as "(1) the amount of overtime worked, (2) the numbers of meal and rest breaks to which inspectors were entitled to take under California law but did not take (assuming that law applied to these individuals), (3) the amount of time inspectors spent performing specific tasks of relevance to the claimed <mask> violations, (4) the number of miles that inspectors drove to do their work, [and] (5) the amount of money that inspectors spent for other business expenses incurred in connection with their work."


California's general <mask> order ( Cal. Code Regs., tit. 8, § 11000, Order No. MW-2001) requires employers to pay wages of at least the minimum wage for "all hours worked." Wage Order 4-2001 ( Cal. Code Regs., tit. 8, § 11040 ) (Wage Order 4), applicable to those employed in professional, technical, clerical, mechanical, and similar occupations,6 likewise requires an employer to pay each employee wages of at least the minimum wage for "all hours worked." It defines "hours worked" as "the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so. Within the health care industry, the term 'hours worked' means the time during which an employee is suffered or permitted to work for the employer, whether or not required to do so, as interpreted in accordance with the provisions of the Fair Labor Standards Act." (Id ., subds. (2)(K), (4)(A).)


Thereafter, on January 1, 1964, an amendment to the State Constitution went into effect which broadened the powers of local governments to enact local legislation (N. Y. Const., art. IX). On the theory that this constitutional amendment rendered obsolete the prior decision that the city had no power to enact legislation fixing $1.50 per hour as a <mask> therein, the city adopted Local Law No. 45 of the year 1964, the statute whose constitutionality is presented for determination in this action. That local law, like the 1962 local law, fixes $1.50 per hour as the minimum wage in the city.


I need not now determine whether settlements of the claims in this case for liquidated damages were valid , because defendant has not pleaded any defense specifically based upon the settlement of such a claim, but has pleaded broadly a settlement of all claims, including therein any sums still due as minimum wages. As to the plaintiff Cassese, defendant may have a complete defense in line with the Guess case (supra), for according to the figures stated in the complaint Cassese has already received more than the full <mask> due him and is really claiming only liquidated damages. In the case of plaintiff Weinstock there would seem to be only a partial defense at best, for Weinstock alleges that the minimum wages earned by him have not been paid in full.


Section 1194.2, subdivision (a) provides: "In any action under Section ... 1194, or 1197.1 to recover wages because of the payment of a wage less than the <mask> fixed by an order of the [Industrial Welfare Commission] or by statute, an employee shall be entitled to recover liquidated damages in an amount equal to the wages unlawfully unpaid and interest thereon."


[petitioner], that the cost[s] of these proceedings [are] $3,595.68. Let me require— continue to require that [petitioner] pay that amount as cost[s] of these proceedings. Let me indicate that [petitioner], as I’ve indicated, has a GED certificate, that he has some work history when he was not in custody. The [c]ourt believes he has no physical or mental disabilities. That would allow him to at least be capable of work at a <mask> level. Let me indicate that [petitioner]—that 40 hours times $8.75 is $350.00 a week, multiplied by 4.3 is $1,505.00 gross. Let me indicate that a payment of $149.00 per month would be the amortization of those costs over a period of 24 months. So, the [c]ourt believes that [petitioner] is, in fact, capable of paying that amount over that two-year period and the [c]ourt will grant judgement against [petitioner] in favor of the State of West Virginia for the court costs in these matters and require that he pay those amounts over two years from his ultimate release from incarceration.


We explained in part III.B, ante , that the DAA cannot be liable for section 510, subdivision (a) overtime compensation when the DAA is an employee's joint employer with another entity. Further, neither of the two cases that we cited in Morales in support of our decision to remand the matter to permit the plaintiffs to amend their complaint to attempt to state a claim pursuant to the joint employment doctrine- Bonnette v. California Health & Welfare Agency (9th Cir. 1983) 704 F.2d 1465 ( Bonnette ) and Guerrero v. Superior Court (2013) 213 Cal.App.4th 912, 955, 153 Cal.Rptr.3d 315 ( Guerrero )-supports application of the doctrine in this context. Specifically, neither Bonnette nor Guerrero applied the joint employment doctrine to a public employer to require that the employer comply with a law that, as in this case, exempts its employees from the relevant law. Rather, in both cases, courts concluded that the public entity could be liable as a joint employer ( Bonnette , supra , at pp. 1469-1470 ; Guerrero , supra , at p. 955, 153 Cal.Rptr.3d 315 ), where the relevant public entity was not exempt from the relevant law. (See Bonnette , at p. 1472 [concluding that "the tenth amendment is not a bar to the application of the FLSA's <mask> provisions"]; Guerrero , at p. 955, 153 Cal.Rptr.3d 315 [interpreting wage order and stating "IWC did not intend to exempt public agencies or political subdivisions generally from [wage order's] provisions"].) Further, plaintiffs have not cited-in this case or in Morales -and our own research has not uncovered, any case in which a court has applied the joint employment doctrine in such an unorthodox manner. Under these circumstances, to reverse the trial court's ruling and permit the plaintiffs' action to proceed would constitute "a manifest misapplication of existing principles resulting in substantial injustice," ( Morohoshi , supra , 34 Cal.4th at pp. 491-492, 20 Cal.Rptr.3d 890, 100 P.3d 433 [outlining unjust decision exception to law-of-the-case doctrine] ).


Israel Hernandez and Larry Michael Sharp brought a class action, on behalf of all Pacific Bell premises technicians. The complaint alleged plaintiffs and the class were not paid for all the time they were under Pacific Bell's control, because they were not paid for the time they were transporting equipment and tools in a company vehicle to and from the first and last jobs and for the time required to safeguard the equipment and tools. The complaint stated three causes of action--failure to pay the <mask>, failure to pay wages timely, and unfair business practices--all based on the failure to pay for the transporting time. The court certified the class except for the safeguarding equipment claim.


Plaintiffs claim defendant's piece-rate formulas failed to separately compensate drivers for "nonproductive time," and this violated the requirement that employees be compensated for all hours worked at either <mask> or the agreed contractual rate. They contend there is a common question regarding "whether [defendant] is required by California law to pay drivers separately for tasks not directly compensated by the piece rate," and this "legal question can be answered on a class wide basis by analyzing [section] 226.2, the Wage Order and case law."


After ruling that massage therapy, regardless of where it is performed, does not constitute “domestic service” (id.), the court found that plaintiff’s performance of some non-domestic services “does not necessitate that all of her work be treated as non-exempt.” (Id.) The court first found that the so-called “default rule” under the FLSA (29 CFR 780.11), which provides that if an employee in the same workweek performs both exempt and nonexempt work under the FLSA, then he is considered nonexempt, was inapplicable. While the default rule utilized the generic term “employee,” the court found that since it was included within part 780, which pertains only to *409employees engaged in agricultural work and work incidental thereto, it was inapplicable to domestic workers. Therefore, there was "no regulatory basis on which to deem a workweek that otherwise falls within the domestic services exemption non-exempt because of the performance of some non-exempt work.” (848 F Supp 2d at 443; see also 29 CFR 780.0 [“Purpose of interpretative bulletins in this part,” which limits that section’s meaning and applicability to the exemption of “certain employees from the <mask> or overtime pay requirements . . . when employed in agriculture or in certain related activities . . . with respect to agricultural or horticultural commodities”].)


Finding that a sound basic education encompasses preparation for employment begs the question: what level of employment? The Court of Appeals 1995 opinion does not explicitly address this issue. It is reasonable to assume that the Court of Appeals did not intend that the City’s high school graduates need only be prepared for low-level jobs paying the <mask>. On the other hand, the Court’s use of the “minimally adequate” standard indicates that a sound basic education does not require that most of the City’s public school graduates be accepted into elite four-year colleges and universities in preparation for lucrative careers. Some middle ground between these two extremes comports with the Court of Appeals’ emphasis on preparation for productive citizenship and its eschewal of a state of the art standard.


Section 218.5's two-way fee shifting provision is in contrast to the one-way fee shifting provision of section 1194. "[S]ection 1194 provides that employees who prevail in an action for any unpaid 'legal <mask> or ... legal overtime compensation' are entitled to recover attorney's fees." (Kirby, supra, 53 Cal.4th at p. 1248, 140 Cal.Rptr.3d 173, 274 P.3d 1160.) Subdivision (b) of section 218.5 states that section 218.5"does not apply to any cause of action for which attorney's fees are recoverable under Section 1194." Thus, "[p]revailing employers cannot obtain attorney's fees under section 218.5... if the employees could have obtained such fees under section 1194 had they prevailed." (Kirby, supra, at p. 1251, 140 Cal.Rptr.3d 173, 274 P.3d 1160.)


In Gonzalez , automotive service technicians were paid piece-rate compensation based on the completion of repair tasks. The plaintiffs in Gonzalez , a class of former technicians who had worked for the defendant employer, claimed that they should be paid a separate hourly <mask> for time spent during their workshifts waiting for vehicles to repair and *182performing other nonrepair tasks directed by the employer, even though the employer supplemented the technicians' compensation at the end of the pay period to cover any shortfall between the piece-rate compensation and minimum wage for all hours worked. ( Gonzalez , supra , 215 Cal.App.4th at p. 40, 155 Cal.Rptr.3d 18.) The Court of Appeal concluded the plaintiffs' legal position was correct and held that they were "entitled to separate hourly compensation for time spent waiting for repair work or performing other nonrepair tasks directed by the employer during their workshifts...." ( Id . at pp. 40-41, 155 Cal.Rptr.3d 18.) As explained in Gonzalez , even though the employer in that case paid its employees on a piece-rate basis rather than hourly, the employees' nonproductive work time that was not part of the compensated piece-rate activity of repairing cars had to be separately compensated to satisfy minimum wage law, since the minimum wage law applied to each hour worked.3 Accordingly, the employer's practice of averaging hourly wages at the end of the pay period (by dividing total *1005compensation paid by the total hours worked over the course of the pay period) was insufficient to show compliance with the law. ( Id . at pp. 40-42, 48-49, 155 Cal.Rptr.3d 18.)


In so holding, the Gonzalez court expressly relied on the reasoning of Armenta v. Osmose, Inc . (2005) 135 Cal.App.4th 314, 317-324, 37 Cal.Rptr.3d 460 ( Armenta ). ( Gonzalez , supra , 215 Cal.App.4th at pp. 40, 45-53, 155 Cal.Rptr.3d 18.) In Armenta , where an employer paid its employees hourly wages for specified "productive" work time only, and did not pay the employees for other "nonproductive" work time, the appellate court concluded that the employer's <mask> obligation could not be met by averaging wages over the total hours worked in the pay period; rather, the California minimum wage law attached to each hour worked by the employees, including the unpaid nonproductive hours. ( Armenta , supra , 135 Cal.App.4th at pp. 317, 321-324, 37 Cal.Rptr.3d 460.) In finding Armenta's analysis of California's minimum wage law to be persuasive, Gonzalez rejected the employer's argument that Armenta , as an hourly wage case, should not be applied to workers who are compensated on a piece-rate basis. Instead, Gonzalez directly applied Armenta to the piece-rate compensation system before it, following Armenta's rule that averaging an employee's wages for all hours spent on the job during the pay period (where the employee's work time included both paid/productive hours and unpaid/nonproductive hours) would not suffice to show compliance with the minimum wage law for each hour worked. ( Gonzalez , supra , 215 Cal.App.4th at pp. 40-41, 48-49, 155 Cal.Rptr.3d 18, also citing Cardenas v. McLane FoodServices, Inc . (C.D.Cal. 2011) 796 F.Supp.2d 1246, 1252 [holding that "a piece-rate formula *183that does not compensate directly for all time worked does not comply with California Labor Codes, even if, averaged out, it would pay at least minimum wage for all hours worked"; see also Vaquero v. Stoneledge Furniture, LLC, supra, 9 Cal.App.5th at p. 110, 214 Cal.Rptr.3d 661 [noting "[a]ll of the federal courts that have considered this issue of California law have reached a similar conclusion and have held employers must separately compensate employees paid by the piece for nonproductive work hours"].)


Plaintiffs sought civil penalties under PAGA, which permits recovery in a representative action of any civil penalties that otherwise may be assessed for violations of the Labor Code. (§ 2699.) Plaintiffs sought penalties for the meal period violations under section 558, and for the <mask> violations under section 1197.1. The trial court awarded penalties for the meal period violations, but found plaintiffs' claim for penalties under section 1197.1 "fails because it is based on [plaintiffs'] invalid claim for failure to pay minimum wages." Because we have found the trial court erred in finding no minimum wages were owed for time worked during the shortened meal periods, it necessarily follows that the trial court also erred in rejecting *659plaintiffs' claim for civil penalties for the payment of "a wage less than the minimum...." (§ 1197.1, subd. (a).)


3. Trial De Novo in Superior Court Gantman’s claim for unpaid wages was tried before the court on December 13 and 14, 2017. Both sides were represented by counsel during trial. Gantman, Stephan and three largely peripheral witnesses testified, and 50 documents from the joint exhibit list were admitted into evidence. The parties then submitted posttrial briefs. After taking the matter under submission, the court on March 21, 2018 issued its ruling in favor of SST. The court found Gantman was an employee of SST; the parties agreed Gantman would be paid for work he performed on behalf of SST’s clients, but there was no agreement on the amount Gantman would be paid for that work; there also was no agreement as to what, if anything, Gantman would be paid for activities other than performing accounting work for clients; and there was insufficient proof that any particular activities other than performing accounting work for clients constituted part of Gantman’s employment by SST. (The court explained those other activities may have been undertaken in anticipation of Gantman’s potential acquisition of an interest in SST or for Gantman’s own personal professional development.) With respect to Gantman’s compensation the court found the hourly rate by which Gantman’s pay would be calculated “was an ongoing subject of discussion (written and oral)” between Gantman and Stephan. Although Gantman sought to be paid $200 per hour, “defendant . . . never entered into such an agreement.” Accordingly, the court concluded, Gantman was entitled to be paid only at the applicable <mask> at the time ($9 per hour): “Since there was no agreed-upon rate of pay, the $9 minimum wage applied.” Putting aside whether SST’s


Lastly, all Plaintiffs have alleged that Defendants violated various provisions of the FLSA, DCMPWA, DCWPCL and ASSLA. Both the FLSA and DCMWA require employers to pay employees a certain <mask> and to compensate them at least one and one-half times an employee’s regular hourly rate for hours worked over forty hours per week. See 29 U.S.C. §§ 206(a)(1), 207(a)(1); D.C. Code § 32-1003(a)(5)(A)()-(v), (c). The DCWPCL requires employers to pay a discharged employee their wages “not later than the working day following such discharge.” D.C. Code § 32-1303(1). Lastly, the ASSLA requires employers to provide employees with paid safe and sick leave. D.C. Code § 32-531.02. Plaintiffs have pleaded that


In an attempt to comply with <mask> requirements, the employer kept track of all the time a technician spent at the work site, whether or not the technician was working on a repair order, and it divided the employee's total earnings over the pay period by the total hours worked to ensure that the employee's effective hourly rate was at least at the minimum wage. ( Gonzalez, supra, 215 Cal.App.4th at pp. 41-42, 155 Cal.Rptr.3d 18.) If the effective hourly rate was less than the minimum wage, the employer supplemented the technician's pay to reach an effective average hourly rate that equaled the minimum wage. ( Ibid . ) Applying the same analysis used in Armenta , Gonzalez concluded that under Wage Order 4 an "employer's method of averaging employees' hours worked in a given pay period in order to compute its minimum wage obligations violated the minimum wage law." ( Id . at p. 46, 155 Cal.Rptr.3d 18.) Technicians "were entitled to separate hourly compensation for time spent waiting for repair work or performing other non-repair tasks directed by the employer during their work shifts." ( Id . at. pp. 40-41, 155 Cal.Rptr.3d 18, italics added.) Gonzalez explained that the analysis in Armenta applied regardless of the fact that the employer "compensated its technicians on a piece-rate basis" rather than based on the payment of an hourly wage. ( Id . at p. 49, 155 Cal.Rptr.3d 18.)10


The City also misinterprets the Federal law regarding food stamp recipients. It argues that Federal law requires that the food stamp grant be divided by the <mask>. However, the provision relied on by the City provides only that the minimum wage is a floor, or the lowest amount by which the food stamp allowance may be divided to reach the maximum hours of work. (See, 7 USC § 2029 [b] [2] [A] [ii].) Thus, there is no Federal law or regulation that preempts New York State statutory law.


Moreover, there are common questions relating to the relevant law governing the value of hours that the WEP participants work. (See, CPLR 901 [a] [2].) In particular, the City is wrong that class certification is inappropriate because different statutes and regulations apply to ADC and HR recipients. The issues pressed by plaintiffs apply to both groups and, in its administration of WEP, the City generally treats both groups in the same manner. For example, the City policy manuals for WEP apply to ADC and HR recipients, and the City uses the Federal <mask> to calculate the WEP hours of both groups.


Specifically, 12 NYCRR 142-2.2 states that, where an FLSA exemption applies, i.e., where an employee is not entitled to IV2 times his regular hourly rate, an employee is still entitled to “overtime at a wage rate of one and one-half times the basic minimum hourly rate” (12 NYCRR 142-2.2; see Manliguez v Joseph, 226 F Supp 2d 377, 389 [ED NY 2002] [holding that an exempt employee under the FLSA was still entitled to IV2 times the New York State <mask> rate under 12 NYCRR 142-2.2]; see also Ballard v Community Home Care Referral Serv., 264 AD2d 747 [2d Dept 1999] [interpreting 12 NYCRR 142-2.2 and a FLSA exemption for domestic employees together to hold that a home health care aide was exempt under the FLSA and not entitled to overtime at IV2 times her regular rate]).


Further, regardless of whether the State Traffic Commission might fix speed by “ order, rule or regulation ” the State Traffic Commission is still required to file such “ order, rule or regu*672lation ” with the Department of State before it becomes effective. This is so even though the constitutional provision requires filing of “ rules or regulations ”, for the reason that our appellate courts have held that an order of a State department, board, bureau, authority or commission comes within the purview of the constitutional provision requiring filing of ‘1 rules and regulations ”. See Wirtz v. Lobello (1 A D 2d 416) wherein the Appellate Division, Fourth Department held that a <mask> “ order ” of the Industrial Commissioner of the State of New York came within the contemplation of the words “ rules and regulations ” as the same is used in section 8 of article IV of the New York State Constitution.


In Martinez v. Combs (2010) 49 Cal.4th 35, 64, 109 Cal.Rptr.3d 514, 231 P.3d 259, the Supreme Court looked to the definitions contained within wage orders and held that wage orders encompass three alternative definitions of "employ." Under the broadest (relevant here) " '[e]mploy' " means to "suffer, or permit to work." ( Cal. Code Regs., tit. 8, § 11090, subd. 2(D) ; Martinez, at pp. 57-58, 109 Cal.Rptr.3d 514, 231 P.3d 259.) This definition derives from child labor laws, which sought to extend beyond the common law master-servant relationship and target "the defendant's failure to exercise reasonable care to prevent child labor from occurring." ( Martinez, at p. 58, 109 Cal.Rptr.3d 514, 231 P.3d 259.) Applied to modern-day wage and hour claims, "[a] proprietor who knows that persons are working in his or her business without having been formally hired, or while being paid less than the <mask>, clearly suffers or permits that work by failing to prevent it, while having the power to do so." ( Id. at p. 69, 109 Cal.Rptr.3d 514, 231 P.3d 259.)


Plaintiffs (other than Tubac) claim that they are entitled to $8,837.60 in unpaid regular and overtime wages.” See id. at 7. The FLSA requires employers to pay non-exempt employees at least $7.25 per hour, 29 U.S.C. § 206(a)(1). Under the FLSA, state and local laws may set a <mask> higher than that provided by the Act, which becomes the operative FLSA minimum wage. /d. § 218(a). Accordingly, the relevant minimum standard is set by DCMWA’s hourly wage rate, which from July 1, 2017 to July 1, 2020 increased in annual increments to $12.50, $13.25, $14.00, and $15.00, respectively. See D.C. Code § 32-1003(a)(5)(A)()—-(v).. In addition to its requirement of payment at a minimum regular hourly rate, the FLSA requires employers to pay at least one and one-half times an employee’s regular hourly rate for any hours worked over forty hours per week. 29 U.S.C. § 207(a)(1). The DCMWA similarly provides that employees be compensated “at a rate not less than 1 1/2 times the regular rate at which the employee is employed” for any hours worked beyond the 40-hour statutory maximum work week. D.C. Code § 32-1003(c). The DCWPCL also applies, as it provides for damages equal to an employee’s unpaid wages. See Ventura v. Bebo Foods, Inc., 738 F. Supp. 2d 8, 29-30 (D.D.C. 2010) (Ventura IT’); D.C. Code § 32-1303.


As pointed out by the City, it is true the Supreme Court has countenanced procedural laws encroaching on local authority more readily than substantive measures like the <mask> law at issue here. (See Seal Beach, supra , 36 Cal.3d at pp. 600-601 & fn. 11, 205 Cal.Rptr. 794, 685 P.2d 1145 ; Baggett, supra , 32 Cal.3d at pp. 139-140, 185 Cal.Rptr. 232, 649 P.2d 874 ; Professional Fire Fighters, supra , 60 Cal.2d at pp. 294-295, 32 Cal.Rptr. 830, 384 P.2d 158.) However, the distinction between substantive and procedural measures is not determinative, and substantive laws displacing local authority over municipal affairs have been upheld by the courts. (See Healy, supra , 41 Cal.2d at p. 122, 258 P.2d 1 [upholding Legislature's "complete system of workmen's compensation which obviously is a subject of state-wide concern"]; Jauregui, supra , 226 Cal.App.4th at pp. 788, 799-801, 172 Cal.Rptr.3d 333 [upholding application of California Voting Rights Act of 2001 to enjoin certification of at-large city council election results on basis of statewide concerns of race-based vote dilution and local election integrity].)


In contrast, in both of the statutes at issue here, in the language of the Reynolds opinion, the Legislature did "manifest[ ] its intent more clearly than by mere silence." (See Reynolds , supra , 36 Cal.4th at p. 1088, 32 Cal.Rptr.3d 483, 116 P.3d 1162.) With regard to violations of the state's overtime laws, "[a ]ny ... person acting on behalf of an employer who violates, or causes to be violated" such laws "shall be subject to a civil penalty" as set forth elsewhere in the statute. ( § 558(a), italics added.) With regard to violations of the state's <mask> laws, "[a ]ny ... person acting either individually or as an officer, agent, or employee of another person, who pays or causes to be paid to any employee" less than the minimum wage "shall be subject to a civil penalty, restitution of wages, liquidated damages payable to the employee, and any applicable penalties imposed pursuant to Section 203" as set forth elsewhere in the statute. ( § 1197.1, subd. (a), italics added.) Thus, for violations of overtime laws, the "other person" liable for the civil penalties must have been "acting on behalf of" the employer ( § 558(a) ); whereas for violations of minimum wage laws, there is no requirement that the "other person" liable for the civil penalties have any relationship to the employer, so long as that person pays or causes to be paid less than the prescribed minimum wage ( § 1197.1(a) ).


*257“This language (and the equivalent language in the other contracts) is clear. Without limitation it conveys all of plaintiffs’ rights in these recordings to the [r]ecord [c]ompanies, including the right to exploit the recordings by any method whatsoever, whether known at the time or ‘hereafter to become known.’ ” (Chambers, 123 F Supp 2d at 200.) Plaintiffs claim that, somehow, the fact that the recording contracts here were subject to AFTRA union contracts or “phono codes” distinguishes their situation from that of the Ronettes in Greenfield is not persuasive. The phono codes are a series of fair practices agreements between AFTRA and the record companies which govern <mask> and fee compensation and terms, including minimal payments for benefits to welfare funds and conditions for the engagement of artists making phonograph recordings. They do not affect the broader contractual provisions that convey the artists’ property rights to the record companies. In fact, the language of some of the AFTRA agreements or the phono codes specifically permits copying of master recordings on “microgroove recordings or tape or any other similar or dissimilar device now or hereafter devised.” (1962 AFTRA contract, provision 8; see also Chambers, 123 F Supp 2d at 201 [rejecting the claim that AFTRA contracts affect the recording contracts; thus the breach of contract claims must be dismissed].)


I think that the requirements of the Fair Labor Standards Act of 1938 (U. S. Code, tit. 29, § 201 et seq.) may not be circumvented by a mere recital in the release that the employee releases the employer of liability for sums due under the statute in order to “ induce ” the latter “ to enter into a contract *346with Local 32-K ” governing future labor relations between the employer and his employees. This is certainly no better consideration than a cash payment of less than the <mask> due to the employee. Nothing less than full payment of such minimum wage, no other consideration, will satisfy the requirements of the statute.


Prior to 2002, there was little doubt that the Fair Labor Standards Act (29 USC §§ 201-219 [FLSA]), and its New York equivalent (Labor Law §§ 650-665), would have required the defendant to pay at least <mask>, regardless of the plaintiffs immigration status, and that failure to pay any wage was a failure to pay minimum wage. (Patel v Quality Inn S., 846d 700 [11th Cir 1988].) In 2002, however, the United States Supreme Court made the issue somewhat more complicated.


Thus, some debate does remain about compensation of undocumented workers for hours they actually worked, especially when the workers used false documents to procure the employment. However, no court has fully addressed the issue of unpaid wages for work that undocumented aliens have performed when the undocumented aliens have also tendered false documents. In dicta, Ulloa stated, “The court also notes in passing that, if there had been proof in this case that the plaintiff had obtained his employment by tendering false documents (activity that is explicitly unlawful under IRCA), Hoffman would require that the wage claim be disallowed in its entirety.” (Id.) But, because Judge Howard S. Miller of the Nassau District Court made that remark, this court is in no way obliged to concur. Moreover, the Appellate Term, Second Department, has already discounted Ulloa-. “We find unpersuasive the holding of Ulloa . . . that no award above <mask> is permissible because of the ‘illegality’ of the employment agreements involved, since there is no basis for any such limitation whether the theory of recovery is Labor Law § 198 or under common-law contract.” (Garcia, 11 Misc 3d at 3.) This court therefore prefers to extrapolate from federal and New York State public policy (see A and B, supra) a *190basis for undocumented workers to claim unpaid wages for work they have already performed, even if like plaintiffs here they allegedly proffered fraudulent documents to obtain employment.


The court refused to appoint either Mother or Father as a possessory conservator of the children because it found that "such appointment would not be in the best interest of the children." The trial court entered additional orders with respect to Mother. It required her to "complete a psychological evaluation and follow any and all recommendations"; to "maintain legal and verifiable employment"; to "refrain from engaging in any illegal criminal activities"; to "remain in contact or meet with caseworker at least one time per month to provide an update on services, child well-being, etc." throughout the time DFPS remained permanent managing conservator of the children; if available, to "complete a special needs parenting class in Spanish that is at least six to eight weeks in length," or to "identify and participate in a volunteer program through a nonprofit organization and/or medical facility aimed at assisting and/or caring for special needs children," and to complete twenty-five hours of volunteer service with that organization, with either program to be completed by July 15, 2016; to "attend all non-emergency medical visits for her children," including "medical appointments with any specialists and routine doctor visits"; to "obtain, pay for and maintain appropriate housing" and to provide all pertinent information necessary to assess its appropriateness to her caseworker as provided in the order; to "continue participating in family therapy sessions until successfully discharged by her therapist"; to "attend any and all scheduled visitations with the subject children"; to "develop a support system of at least three individuals"; to "contact the children at least one time per week on the phone number provided by the foster parents"; and to "provide <mask> child support according to the guidelines set forth in the Texas Family Code to the children." Each of these provisions contained detailed instructions for its performance.


Miner Liner Plate Tunnel $2.82 Miners Helper Liner Plate Tunnel 2.62% Mucker Liner Plate Tunnel 2.62% Tunnel Laborer Liner Plate Tunnel 2.62% Electrician Liner Plate Tunnel 3.25 and specifically stating that these classifications and <mask> rates superseded those established by the Industrial Commissioner and contained in the bid proposal and requiring that the new schedule form a part of the specifications for the work prior to the advertisement for bids and pointing’ out the penalties for failure to comply.


For nearly a century, California law has guaranteed wage and hour protection to employees and class actions, as fashioned by the Legislature, provide a practical vehicle for vindicating those rights where common issues *1247of law and fact predominate. ( Brinker Restaurant Corp. v. Superior Court, supra , 53 Cal.4th 1004, 139 Cal.Rptr.3d 315, 273 P.3d 513 ; Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 17 Cal.Rptr.3d 906, 96 P.3d 194.) Code of Civil Procedure section 382 authorizes class actions "when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court ...." Indeed, "[t]his state's public policy supports the use of class actions to enforce California's <mask> and overtime laws for the benefit of workers." ( Bradley v. Networkers Internat., LLC (2012) 211 Cal.App.4th 1129, 1141, 150 Cal.Rptr.3d 268.) The parties seeking class certification have the burden of establishing a well-defined community of interest among class members. ( Sav-on Drug Stores, Inc. v. Superior Court, supra , at p. 326, 17 Cal.Rptr.3d 906, 96 P.3d 194.)


"(A) Each workday an employee is required to report for work and does report, but is not put to work or is furnished less than half said employee's usual or scheduled day's work, the employee shall be paid for half the usual or scheduled day's work, but in no event for less than two (2) hours nor more than four (4) hours, at the employee's regular rate of pay, which shall not be less than the <mask>.


The Legislature under AB 1513 codified the Gonzalez / Bluford decisions requiring employers to separately compensate piece-rate workers for rest/NP time periods at or above <mask>. As explained by the Legislative Counsel's Digest: "This bill would require the itemized statement provided to employees compensated on a piece-rate basis to also separately state the total hours of compensable rest and recovery periods, the rate of compensation, and the gross wages paid for those periods during the pay period, and the total hours of other nonproductive time, as specified, the rate of compensation, and the gross wages paid for that time during the pay period. The bill would require those employees to be compensated for rest and *13recovery periods and other nonproductive time at or above specified minimum hourly rates, separately from any piece-rate compensation." (Legis. Counsel's Dig., Assem. Bill No. 1513 (2015-2016 Reg. Sess.) Stats. 2015, Summary Dig., p. 5609.) In addition, the new legislation "until January 1, 2021, would provide that an employer shall have an affirmative defense to any claim or cause of action for recovery of wages, damages, liquidated damages, statutory penalties, or civil penalties based solely on the employer's failure to timely pay the employee the compensation due for rest and recovery periods and other nonproductive time for time periods prior to and including December 31, 2015, if, by no later than December 15, 2016, the employer complies with specified requirements, subject to specified exceptions." (Ibid ; see also Fowler Packing Company, Inc. v. Lanier (9th Cir. 2016) 844 F.3d 809, 812 ["[t]o protect California businesses from unforeseen liability arising from Gonzalez and Bluford , ... AB 1513 also created a 'safe harbor' that provided employers with an affirmative defense against claims alleging failure to pay previously for nonproductive work time ... so long as they pay, no later than December 15, 2016, any minimum wage deficiencies occurring between July 1, 2012, and December 31, 2015"].)


Likewise, the IWC's definition of "Employer" in wage order No. 4-2001, set forth at footnote 8, ante , is not helpful. First, the parties do not dispute the identity of Plaintiffs' employer; it was Pama, a corporation. (See fn. 4, ante .) Second, Pedrazzani's liability for the civil penalties is not based on a finding that he was Plaintiffs' "employer," but rather, under the specific statutes at issue ( §§ 558(a), 1197.1(a) ), that he was a person other than the employer who violated or caused to be violated certain overtime pay and <mask> laws. Finally, the issue on appeal under the applicable statutes has nothing to do with identifying the employer; the issue is whether someone other than the employer can be liable for these civil penalties.


Plaintiffs are organizations that claim to represent thousands of California employers in the agricultural and construction industries. Many of plaintiffs' member employers pay their employees on a piece-rate basis because that method of compensation creates incentives for higher productivity. Under a piece-rate system, employees are not paid by the hour, but rather are compensated based on activities, tasks, or units of production completed (see Vaquero v. Stoneledge Furniture, LLC (2017) 9 Cal.App.5th 98, 109, fn. 7, 214 Cal.Rptr.3d 661 ; Jackpot Harvesting Co ., Inc. v. Superior Court (2018) 26 Cal.App.5th 125, 135, 237 Cal.Rptr.3d 1 ( Jackpot Harvesting ) ), such as the quantity of produce picked, the number of yards of carpet installed, or the number of miles driven. Plaintiffs point out there are numerous studies showing that piece-rate systems which reward employee productivity generally lead to higher pay for employees, significantly increased productivity, and cost savings to consumers. Plaintiffs allege that their " 'members' employees regularly earn through piece-rate compensation sums that far exceed <mask> or what they could expect to earn through hourly compensation." California has long recognized that wages may be paid on a piece-rate basis. (§ 200 [defining "wages" as including all amounts for labor performed by employees "whether the amount is fixed or ascertained by the standard of time, task, piece, commission basis, or other method of calculation"].)


Plaintiff Tubac claims that he is entitled to $4,259.00 in unpaid minimum wages. See Pls.’ Mot. Default J. at 8. As discussed in the previous section, the FLSA and the DCMWA each require employers to pay non-exempt employees a certain minimum regular hourly rate. See 29 U.S.C. § 206(a)(1); D.C. Code § 32-1003(a)(5)(A)(v). To reiterate, under the FLSA, state and local laws may set a <mask> higher than that provided by the Act, which becomes the operative FLSA minimum wage. /d. § 218(a). Accordingly, the relevant minimum standard at all relevant times was set by DCMWA’s hourly wage rate, which from July 1, 2017 to July 1, 2020 increased in annual increments to $12.50, $13.25, $14.00, and $15.00, respectively. See D.C. Code § 32-1003(a)(5)(A)Gi)-(V).


Finally, any doubt in this area " 'must be resolved in favor of the legislative authority of the state.' " ( City of Vista, supra , 54 Cal.4th at p. 582, 143 Cal.Rptr.3d 529, 279 P.3d 1022 ; accord, California Fed. Savings, supra , 54 Cal.3d at p. 24, 283 Cal.Rptr. 569, 812 P.2d 916 ["we defer to legislative estimates regarding the significance of a given problem and the responsive measures that should be taken toward its resolution"].) Considered in light of the Legislature's goal of ensuring workers earn a sufficient wage to provide the necessities of life and raise them above the poverty level, we *576conclude the <mask> law addresses a statewide concern "that 'justif[ies]' the state's interference in what would otherwise be a merely local affair." ( City of Vista , at p. 560, 143 Cal.Rptr.3d 529, 279 P.3d 1022 ; accord, California Fed. Savings , at p. 18, 283 Cal.Rptr. 569, 812 P.2d 916.)


Plaintiffs filed their original class action complaint in January 2009. Plaintiffs' second amended complaint, the operative complaint at trial, named UT and various other entities as defendants and included causes of action under the Labor Code for (1) failure to pay <mask> and overtime wages; (2) failure to provide meal breaks or compensation in lieu thereof; (3) failure to provide rest periods or compensation in lieu thereof; (4) failure to reimburse for reasonable business expenses ( § 2802 );6 (5) unlawful deductions from wages; (6) failure to provide itemized wage statements; and (7)


Indeed, a prevailing wage law has a greater impact on local control than the <mask> law because by requiring payment of wages prevailing in an industry locally, the law is "effectively a salary setting statute." ( San Francisco Labor Council , supra , 26 Cal.3d at p. 790, 163 Cal.Rptr. 460, 608 P.2d 277.) By contrast, the minimum wage requirement does not effectively determine the wage for all employment relationships it regulates, but rather, sets as a floor the lowest permissible hourly rate of compensation.10 Thus, the impact of the minimum wage law is consistent with the Supreme Court's conclusion "the Legislature may regulate as to matters of statewide concern even if the regulation impinges 'to a limited extent' " on local control of municipal affairs. ( County of Riverside, supra , 30 Cal.4th at p. 287, 132 Cal.Rptr.2d 713, 66 P.3d 718 ; accord, Professional Fire Fighters, supra , 60 Cal.2d at pp. 294-295, 32 Cal.Rptr. 830, 384 P.2d 158.)


The court further noted that the policy favoring delegation in the case before it was bolstered by the same factors it considered persuasive in Privette . It explained: " Privette noted that the cost of workers' compensation insurance for an independent contractor's employees is presumably included in the contract price the hirer pays to the contractor, and therefore the hirer indirectly pays for that insurance. ( Privette , at p. 699, 21 Cal.Rptr.2d 72, 854 P.2d 721.) Privette further noted that workers' compensation guarantees compensation for injured workers, 'spreads the risk created by the performance of dangerous work to those who ... benefit from such work,' and 'encourages <mask>.' ( Id . at p. 701, 21 Cal.Rptr.2d 72, 854 P.2d 721.) Also, in light of the limitation that the workers' compensation law places on the independent contractor's liability *1090shielding the latter from tort liability), it would be unfair to permit the injured employee to obtain full tort damages from the hirer of the independent contractor-damages that would be unavailable to employees who did not happen to work for a hired contractor. This inequity would be even greater when, as is true here, the independent contractor had sole control over the means of performing the work. [Citation.] In sum, we see no reason to limit our holding in Privette simply because the tort law duty, if any, that the hirer owes happens to be one based on a statute or regulation." ( SeaBright , supra , 52 Cal.4th at p. 603, 129 Cal.Rptr.3d 601, 258 P.3d 737.)


"The interpretation of a regulation, like the interpretation of a statute, is, of course, a question of law" and is therefore subject to our de novo review. ( Carmona v. Division of <mask> (1975) 13 Cal.3d 303, 310, 118 Cal.Rptr. 473, 530 P.2d 161 ( Carmona ).) Accordingly, while an administrative agency's interpretation of its own regulation is entitled to deference appropriate to the circumstances, "the ultimate resolution of such legal questions rests with the courts." ( Ibid. ; Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 7-8, 11-13, 78 Cal.Rptr.2d 1, 960 P.2d 1031 ( Yamaha ) [An agency's interpretation of a regulation is contextual and is only one among several tools available to the court: "Depending on the context, it may be helpful, enlightening, even convincing. It may sometimes be of little worth."].) When interpreting an administrative regulation, we follow the same rules of construction that apply to statutes. ( County of Sacramento v. State Water Resources Control Bd. (2007) 153 Cal.App.4th 1579, 1586, 64 Cal.Rptr.3d 302 ( Sacramento County ).) Thus, our fundamental objective is to ascertain and effectuate the intent of the agency issuing the *101regulation. ( New Cingular Wireless PCS, LLC v. Public Utilities Com. (2016) 246 Cal.App.4th 784, 795, 201 Cal.Rptr.3d 652 ( New Cingular ); see also DeLa Torre v. California Horse Racing Bd. (2017) 7 Cal.App.5th 1058, 1066, 213 Cal.Rptr.3d 255 ( De La Torre ); Katz v. Los Gatos-Saratoga Joint Union High School Dist. (2004) 117 Cal.App.4th 47, 54, 11 Cal.Rptr.3d 546 ( Katz ).)


. UNR Industries, Inc. (filed in 1982), Johns-Manville Co. (1982), Ama-tex Corp. (1982), Waterman Steamship Corp. (1983), Wallace & Gale Co. (1984), Forty-Eight Insulations, Inc. (1985), PACOR (1986), Prudential Lines, Inc. (1986), Standard Insulations, Inc. (1986), U.S. Lines (1986), Nicolet, Inc. (1987), Gatke Corp. (1987), Todd Shipyards (1987), Chemetron Corp. (1988), Raytech (1989), Delaware Insulations (1989), Celotex Corp. (1990), Hillsbor-ough Holdings (1990), National Gypsum Co. (1990), Standard Asbestos Mfg. & Insul. (1990), Eagle-Picher (1991), H.K. Porter Co. (1991), Cassiar Mines (1992), Kentile Floors (1992), Keene Corp. (1993), American Shipbuilding, Inc. (1993), Lykes Brothers Steamship (1995), Rock Wool Mfg. (1996), SGL Carbon (1998), M.H. Detrick (1998), Brunswick Fabricators (1998), Fuller-Austin Insul. (1998), Harmschfeger Corp. (1999), Joy Technologies (1999), Rutland Fire & Clay (1999), Babcock & Wilcox (2000), Pittsburgh Coming (2000), Bums & Roe Enterprises (2000), E.J. Bartells (2000), Owens Coming (2000) , Armstrong World Industries (2000), G-l Holdings (GAF Corp.) (2001), W.R. Grace (2001), Skinner Engine Co. (2001), USG (US Gypsum) Corp. (2001) , Federal Mogul (2001), Eastco <mask> Corp. (2001), Washington Group Int’l, Inc. (2001), Bethlehem Steel (2001), North American Refractories (NARCO) (2002), Kaiser Aluminum (2002), Plibrico Refractories (2002), Porter-Hayden (2002), American Club (2002), Huxley Development Corp. (2002), Harbison-Walker Refractories Co. (2002), Continental Producers Corp. (2002), A.P. Green Indus. (2002), Shook & Fletcher (2002), Atra Group, Inc. (Synkoloid) (2002), and ACandS, Inc. (2002).


In its 1993 decision in Privette , supra , 5 Cal.4th 689, 21 Cal.Rptr.2d 72, 854 P.2d 721, the California Supreme Court held that the peculiar risk doctrine did not apply to injured employees of independent contractors. Privette concerned a roofing contractor's employee who was injured when he fell off a ladder and was burned by hot tar. The employee sued the owner of the home he had been roofing, contending that the homeowner was liable for his injuries under the doctrine of peculiar risk. ( Id . at pp. 692-693, 21 Cal.Rptr.2d 72, 854 P.2d 721.) The Supreme Court held that while the homeowner would be liable to an "innocent bystander" ( id . at p. 701, 21 Cal.Rptr.2d 72, 854 P.2d 721 ) injured by the independent contractor's negligence, he was not liable to the independent contractor's *600employee. The court explained: "[T]he peculiar risk doctrine seeks to ensure that injuries caused by contracted work will not go uncompensated, that the risk of loss for such injuries is spread to the person who contracted for and thus primarily benefited from the contracted work, and that *1087adequate safety measures are taken to prevent injuries resulting from such work. [Citation.] But in the case of on-the-job injury to an employee of an independent contractor, the workers' compensation system of recovery regardless of fault achieves the identical purposes that underlie recovery under the doctrine of peculiar risk. It ensures compensation for injury by providing swift and sure compensation to employees for any workplace injury; it spreads the risk created by the performance of dangerous work to those who contract for and thus benefit from such work, by including the cost of workers' compensation insurance in the price for the contracted work; and it encourages <mask>." ( Ibid. ) Thus, the court concluded, "when considered in light of the various goals that the workers' compensation statutes seek to achieve, [the conclusion] that peculiar risk liability should extend to the employees of the independent contractor, does not withstand scrutiny." ( Id . at pp. 701-702, 21 Cal.Rptr.2d 72, 854 P.2d 721.)


Although the agency's interpretation of a statute or ordinance is given deference by the court ( MHC Operating Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 219, 130 Cal.Rptr.2d 564 ), and "an administrative agency's interpretation of its own regulation ... deserves great weight [citation]" ( Carmona v. Division of <mask> (1975) 13 Cal.3d 303, 310, 118 Cal.Rptr. 473, 530 P.2d 161.), it is ultimately " ' "for the courts, not for administrative agencies, to lay down the governing principles of law." ' " ( Garamendi v. Mission Ins. Co. (2005) 131 Cal.App.4th 30, 41, 31 Cal.Rptr.3d 395 ( Garamendi ).) "Courts must ... independently judge the text of the statute, taking into account and respecting the agency's interpretation of its meaning, of course, whether embodied in a formal rule or less *354formal representation. Where the meaning and legal effect of a statute is the issue, an agency's interpretation is one among several tools available to the court." ( Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 7-8, 78 Cal.Rptr.2d 1, 960 P.2d 1031 ( Yamaha Corp. ).)


accidents, see id. at 914, the extent to which employees demand protective equipment, see Owens-Corning, 659 F.2d at 1289, and the obviousness of the hazard, see S&H Riggers, 659 F.2d at 1282– 83. Our requirements for “actual knowledge” are illustrated in three decisions of our predecessor circuit. In Cotter & Co. v. Occu- pational Safety & Health Review Commission, our predecessor cir- cuit reversed an order of the Commission holding an employer li- able under section 1910.132(a) for failing to require employees to wear steel-toed shoes on a shipping and receiving dock. 598 F.2d at 912. There, the employer had a program through which employees could voluntarily buy steel-toed shoes, but the shoes were not re- quired in the workplace. Id. In the two years preceding the Admin- istration’s inspection, “[o]nly one injury . . . would have been pre- vented or mitigated by steel-toed shoes.” Id. at 914. The court de- termined that the company did not have actual knowledge because it found “no evidence in the record of a specific, confirmed knowledge on the employer’s part regarding a hazard warranting a steel-toed shoe requirement.” Id. at 915. The court also warned against “the folly of discouraging an employer, by expanding the scope of his liability beyond what it would otherwise be, from ex- horting employees to take every possible safety precaution in the development of a superior <mask> program.” Id. In Owens-Corning Fiberglass Corp. v. Donovan, our prede- cessor circuit affirmed an order of the Commission holding an em- ployer liable for failing to require employees to wear gloves when USCA11 Case: 20-11789 Date Filed: 01/13/2022 Page: 10 of 15


In September of 1974, the State commenced repair work on the Buffalo Skyway, a limited access highway which passes over a portion of the lots utilized by the claimants for their commercial parking operations. Shortly thereafter, the State Labor Department, Division of <mask>, ordered that a portion of what is designated by the Agreement as lot 3 be barricaded off to prevent the hazard that could ensue from falling debris. Subsequent to this order, a barricade was erected preventing usage of a portion of lot 3. Claimants contend that this barricade was erected on or about October 1, 1974 and remained in place until September 30, 1976, the date *831their contract with the State expired. Arguing that the barricade deprived them of the use of approximately 20 parking spaces during this period, the claimants filed a claim with this court on September 29, 1977, seeking compensation for a de facto, temporary, partial appropriation of an interest in land by the State.


HR Mobile supplied Double Diamond with several new human resources documents, including employee safety policy documents. HR Mobile requested Boretti, Inc., one of its vendors, to provide a form of injury and illness prevention plan (IIPP). HR Mobile asserts that when it obtained the IIPP from Boretti, Inc., it believed the IIPP complied with California's basic statutory and regulatory requirements for dairy IIPP's and was based on current occupational and health standards and requirements and on accepted <mask> and health principles and practices. Plaintiffs contend HR Mobile's belief was not reasonable because, among other things, HR Mobile neglected to analyze the dairy's previous IIPP or the one obtained from Boretti, Inc. to ensure the new IIPP complied with occupational and health standards and requirements. Plaintiffs assert the subsequent citations issued by California's Division of Occupational Safety and Health (CalOSHA) establish the IIPP was not compliant.


"The policy [underlying this system] is that workers do not have to prove fault, adjudication is swift, but the benefits are smaller than might be obtained as tort damages. [Citations.] The law: (1) spreads the cost of industrial *468injuries to goods and services; (2) provides prompt, limited compensation to injured workers, regardless of fault; (3) increases <mask>; and (4) insulates employers from tort liability." ( Fremont Comp. Ins. Co. v. Sierra Pine (2004) 121 Cal.App.4th 389, 395, 17 Cal.Rptr.3d 80 ( Fremont ).)


In In re A.C. (533 A2d 611 [DC App]), the District of Columbia Court of Appeals held that a mother’s penumbral privacy right against bodily intrusion was properly subordinated to the interests of the unborn child and State. A fetal protection policy was found to be reasonably necessary to <mask> in International Union, United Auto., Aerospace & Agric. Implement Workers (886d 871, revd on other grounds 499 US 187), in that the employer did not establish that sex was a bona fide occupational qualification and the policy was facially discriminatory.


Petitioner also argues that the Department approved of Plans prior to sending out the letters in question, which limited the types of abortions covered to those necessary to protect the life or health of the mother.6 However, we do not assume that the current interpretation is wrong because the Department previously made an incorrect interpretation. The interpretation of the statute and the regulation is a question that rests with the courts. ( Carmona v. Division of <mask> (1975) 13 Cal.3d 303, 310, 118 Cal.Rptr. 473, 530 P.2d 161.) The Department's past interpretation was simply incorrect.


The Department's letters contain the correct statutory construction, and the Department is now bound by the court's opinion. Our conclusion necessarily follows for all the reasons that the letters are the only legally tenable interpretation of the law. The question here does not turn on "the application of administrative expertise in the first instance." ( Morning Star, supra , 38 Cal.4th at p. 341, 42 Cal.Rptr.3d 47, 132 P.3d 249.) Resolving whether the term "medically necessary" must exclude "voluntary" health care services does not require the Department's particular expertise. Even though the Department's interpretation of its own regulation deserves great weight, the interpretation is ultimately a question of law, and in this instance this court is in as good a position as the Department to interpret the statute and the regulation. ( Id. at pp. 340-341, 42 Cal.Rptr.3d 47, 132 P.3d 249 ; Carmona v. Division of <mask> , supra , 13 Cal.3d at p. 310, 118 Cal.Rptr. 473, 530 P.2d 161.)


It disputes the charge that plaintiff paid the men’s salaries, of those employed regularly, but admits payment for <mask> 'for which plaintiff says it was reimbursed by Dispatch. Checks are attached showing payment by Dispatch to named persons, as well as copies of unemployment insurance contributions, Federal and State, by Dispatch for its employees. Plaintiff asserts also that Dispatch carried its own workmen’s compensation.


<mask> is a right shared jointly by a child and a noncustodial parent. (Weiss v Weiss, 52 NY2d 170.) Eleanor C. has vigorously pursued visitation rights. During the pendency of the neglect and custody proceeding, the Department of Social Services was directed to afford her weekly visitation with Cassandra. The final order of disposition in the neglect proceeding directs the Department of Social Services to arrange visitation between Cassandra and Eleanor C. during the mother’s incarceration. Upon Eleanor C.’s release from confinement, supervised visitation was scheduled. The court finds that visitation between Cassandra and her mother, under conditions to be determined by the Department of Social Services, is in Cassandra’s best interests and is vital toward achieving the statutorily mandated goal of safely reuniting mother and child. Award of custody to the paternal grandmother herein, who resides at a location so distant as to foreclose any meaningful visitation, would not be in Cassandra’s best interests.


Concerning that branch of defendant’s motion for supervised <mask>, a previous application for the same relief was denied by order of this court (Honorable Anthony L. Parga) dated November 17, 1999, in which the court stated that defendant had not complied with a forensic evaluator’s recommendation for therapy, as well as the fact that criminal proceedings were still pending at that time. Orders of protection had previously been issued in both Family Court and District Court, where this defendant husband pleaded guilty to two charges, one a violation of harassment and the other a class B misdemeanor, in satisfaction of four original dockets. These guilty pleas resulted from plea bargaining and, it appears, neither plea involved a crime of sexual assault.


Jason Roush and Tambre Qualheim are the biological parents of SR (born 9/28/10). In 2011, Jason and Tambre were divorced by order of the Poinsett County Circuit Court.1 In 2012, Jason married April. In 2015, the circuit court awarded Jason legal custody of SR and granted Tambre <mask> subject to her submission to drug testing. On February 15, 2017, the Roushes filed a petition for adoption in the Craighead County Circuit Court requesting that April be named the parent of SR.2 In the petition, the Roushes asserted that Tambre's consent to adoption was not necessary because she had abandoned SR and that for a period of at least one year, Tambre had failed significantly and without justification to communicate with SR or provide for her care and support. The Roushes contended that because Tambre had abandoned SR, she was unreasonably *11withholding consent to adoption. On the same day, the summons regarding the petition for adoption was issued. The summons stated that Tambre had thirty days to respond with a written answer or motion and that failure to respond would result in a default judgment. Proof of service was returned showing that the complaint and summons were hand delivered to Tambre on February 21, 2017.


For the foregoing reasons respondent’s motion to vacate the September 14, 1944, order for' “ Constancia’s ” support is hereby denied, as a matter of law and discretion; and another hearing has been scheduled for February 20,1946, at 10:00 a.m., for determination, by the justice then sitting, of (1) the amount of arrears, (2) what, if any, portion thereof should be cancelled, upon petitioner’s consent or in invitum (under N. Y. City Dom. Rel. Ct. Act, % 92, subd. 10), (3) the manner of payment of any arrears so fixed, (4) the continuance of that order, or such modification or suspension thereof as may be consistent with current circumstances and (5) <mask>.


Section 72 of the Domestic Relations Law recites “Where either or both of the parents of a minor child, residing within this state, is or are deceased, or where circumstances show that conditions exist which equity would see fit to intervene, a grandparent or the grandparents of such child may apply to the supreme court for a writ of habeas corpus to have such child brought before such court; and on the return thereof, the court, by order, after due notice to the parent or any other person or party having the care, custody and control of such child, to be given in such manner as the court shall prescribe, may make such directions as the best interest of the child may require, for <mask> rights for such grandparent or grandparents in respect to such child.” Section 651 of the Family Court Act grants the Family Court the same powers as Supreme Court in visitation matters.


In finding that grandparent <mask> was in Child's best interests, the trial court relied on Herndon v. Tuhey , 857 S.W.2d 203 (Mo. 1993), and Blakely v. Blakely , 83 S.W.3d 537 (Mo. 2002), for the conclusion that the grandparent visitation statute reflects the state's interest in maintaining child-grandparent contact so as to provide the child with the opportunity to benefit from the child-grandparent relationship. In Herndon , the Missouri Supreme Court held that "If a grandparent is physically, mentally, and morally fit, then a grandchild will ordinarily benefit from contact with the grandparent." 857 S.W.2d at 210. The trial court noted that the relationship between Grandmother and Child was particularly important in this case because Father is deceased and "Grandmother provides an opportunity for Child to maintain *697contact with" Father's side of Child's extended family.


*904In reply, Ed and Yvonne argued they had standing to seek <mask> under California law providing for nonparent visitation. They additionally contended the court had discretion under section 3100 to grant visitation to nonparents who have an interest in the child's welfare; they had standing to seek visitation under California Rules of Court, rule 5.24(c)(1),(2) and (e)(1)(A),(B) given Zachary's consent to their visitation request; and they could seek visitation as de facto parents.


There are no siblings, nor does there appear to be any significant extended family members other than paternal grandmother and Child's older half-sister, which Child currently sees on nearly a weekly basis. While Mother argues that if she moves to New Jersey, she will be closer to her adult daughter, Child's half- sister and, the move would make <mask> even easier, it is also clear that between daughter's vislts to Bangor and Mother's visits to New Jersey, there is frequent contact with her half-sister now.


opportunity to revisit the no-contact order with the juvenile court during subsequent hearings, which includes the parties’ upcoming six-month review hearing set for January 2022. Mother may also file a section 388 petition to request to modify the no-contact order. Indeed, any party in the proceedings can move for the modification of a <mask> order pursuant to section 388 based on a change of circumstance or new evidence, and where it appears that the best interests of the child may be promoted by the proposed modification. (§ 388, subds. (a)(1) and (d).) Thus, the reunification process affords “ample opportunity” for the juvenile court to reconsider the appropriateness of the no-contact order. (See T.M., supra, 4 Cal.App.5th at p. 1220.) Mother also contends that the no-contact order dooms her opportunity for reunification because while under the no-contact order, she is unable to complete various aspects of the Agency’s case plan. She notes that that the case plan requires her to attend one-on-one visits and therapeutic visits with J.P., as well as provide him with emotional care during in-person and telephone visits. Mother’s argument, however, neglects other aspects of the case plan that are not premised on her having direct contact with J.P. For instance, the case plan describes general service objectives for Mother, which include showing her ability to understand J.P.’s feelings and give emotional support; paying attention to and monitoring J.P.’s health, safety, and well-being; and showing her ability and willingness to have custody of J.P. The case plan further provides that Mother “will apply what she learns about parenting youth with mental health needs, and consult with [J.P.’s] service providers to better understand what J.P. is going through and his emotional needs.” These aspects of the case plan, which rely on her cooperation with the social


The strongest judicial endorsement of postadoption contact is found in People ex rel. Sibley v Sheppard (54 NY2d 320 [1981]). In that case the Court of Appeals construed parallel language in Domestic Relations Law § 72 to confer Standing to a biological grandparent to apply for postadoption <mask>. A decade later, however, the United States Supreme Court decided Troxel v Granville (530 US 57 [2000]), which must weigh heavily in our deliberation in the current case. In Troxel, the Court was called upon to determine the constitutionality of a Washington state statute that permitted any person to seek visitation with a child regardless of relationship, with “best interest of the child” as the standard for determining such applications. (Wash Rev Code Ann § 26.10.160 [3].) This “breathtakingly broad” statute (Troxel, 530 US at 67) was found uncohstitutional as applied. Although the justices differed in their analyses — there were two concurring opinions and three dissents-j — the case nevertheless sounds a strong note of caution against interference with the fundamental Fourteenth Amendment liberty interest of parents in the care, custody and control of their children. As Justice O’Connor noted in the plurality opinion, “if a fit parent’s decision of the kind at issue here becomes subject to judicial review, the court must accord at least some special weight to the *821parent’s own determination.” (Troxel, 530 US at 70.) The respondents in the case at bar, who are adoptive parents, have no lesser rights than biological parents would have; through the unconditional adoption order, respondents acquired full parental rights and responsibilities in respect to Kamila and Jamila (Domestic Relations Law § 110).


LCCYS scheduled a video call with Father so that [Child] could meet him in late May or early June, but received no answer to the video call or a subsequent phone call. The caseworker testified he sent Father an email with the link for the video call by Zoom. The caseworker testified that prior to his appearance at the dependency hearing, the Agency had minimal contact with Father. The caseworker could recall two conversations with Father by phone. Father testified that he attempted to contact the caseworker numerous times and finally received a call back after contacting two supervisors. In addition to maintaining regular visits with [Child], Father’s remaining permanency goal is to take an age-appropriate parenting class. Father testified that his parents had overnight care of [Child] while he was present, but he has not had overnight care of her on his own. Father’s mother has expressed interest in being a resource for [Child], but not for [Child’s] sibling. LCCYS conducted a homestudy of paternal grandparents’ home, but the kinship approval had not been finalized at the time of the Dependency Hearing. [Child] does not have a preexisting relationship with Paternal Grandmother and the Agency intends to work on <mask> and establishing a connection with both Father and Paternal Grandmother before seeking placement. Father testified he understands coming to live with him would be “a drastic lifestyle change” for [Child] and he is willing to work with LCCYS to facilitate such a transition.


We view Father's four isolated, brief, and supervised interactions with Child as merely incidental <mask> rather than typical visitation by a non-custodial parent. STANDARD OF REVIEW Appellate courts review the factual findings of the family court de novo. Stoney v. Stoney, 422 S.C. 593, 594, 813 S.E.2d 486, 486 (2018). The appellant has the burden to show that the preponderance of the evidence is against the finding of the family court. Id. at 595, 813 S.E.2d at 487.


“ The sole decision which has been presented on behalf of the plaintiffs on this question is Matter of Prime (136 N. Y. 347), in which the New York Court of Appeals held that where an exemption was given by statute to charitable corporations from certain taxation, the exemption applied only to domestic and not to foreign corporations, the court saying: ‘We are of opinion that a statute of a State granting powers and privileges to corporations must, in the absence of plain indications *13to the contrary, be held to apply only to corporations created by the state, and over which it has the power of <mask> and control. ’ This decision is, of course, not directly in point since it involves the application of a statute rather than of a rule of common law, but the stress upon the absence of the power of visitation and control is significant. Under the circumstances, it becomes necessary to determine the question upon principle alone. * * *


The statutory provision of the law, Domestic Relations Law § 117 (1) (a), which state's in relevant part that “[a]fter the making of an order of adoption the natural parents of the adoptive child shall be relieved of all parental duties”, appears to *640mandate that the adoption sever the tie to the biological parent. In contrast to Domestic Relations Law § 117, Social Services Law § 383-c specifically permits the biological parent to surrender the child for adoption yet reserve the right to post-adoption communication and <mask> with the child. However, the surrender specifically reserves the postadoption right in the surrender instrument. Social Services Law § 383-c (2) reads as follows: “[s]uch guardianship shall be in accordance with the provisions of this article and the instrument shall be upon such terms and subject to such conditions as may be agreed upon by the parties thereto and shall comply with subdivision five of this section”. Subdivision (5) (b) (2) provides, inter alia, that the surrender instrument shall provide “that the parent is giving up all rights to have custody, visit with, speak with, write to or learn about the child, forever, unless the parties have agreed to different terms pursuant to subdivision two of this section, and unless such terms are written in the surrender”.


Gloria’s claim of change in circumstance due to the passage of time is disingenuous. Although two years have passed from the time of the trial, this action was brought only six weeks after the Court of Appeals rendered its decision denying her motion for leave to appeal. Furthermore, the court was well aware of the ages of the children and the litigants when it denied the previous petition. Denial of <mask> with the grandchildren was a natural consequence of the court’s decision.


Corona was confused about the origin of the criminal protective order, and the court explained that the criminal "court in Alhambra made that order ... for three years. I am not going to make another order on that mitigating the same thing." The court said that if the parties wanted to change the no-contact aspect of that order, "you probably need to go back to Alhambra and show a copy of the agreement for <mask> and see if they will change that so you can have some kind of communication." Lugo asked if the family court could reduce the protective order from three years to one year, and the court said, "The only person that can change that order ... out of [the] Alhambra court is the Alhambra judge. I can't change it." The court continued, "So I am denying the restraining order due to the fact that you have a criminal protective order that was for three years. I will sign the agreement on visitation." The court noted that the family court case would remain active to address any custody issues, and stated, "But the only way you can change that other order is to go back to Alhambra."


Upon the trial, defendant testified that in February, 1961 plaintiff upon learning of her pregnancy by Richard Marchesini, demanded that unless she pay him the sum of $3,500 he would commence an action to invalidate her marriage to Marchesini. She further testified that when she refused this proposition plaintiff began a course of harassment and threats to remove their son from her custody; that on November 7, 1961 the plaintiff and his former attorney had a conference with the defendant at the office of her attorney, at which time the parties agreed to discontinue the instant action if his <mask> rights as contained in the separation agreement were liberalized, but plaintiff reneged shortly thereafter and substituted his present attorneys. Plaintiff admitted to this conference and in fact substantiated defendant’s testimony with respect thereto. Further evidence was offered on the part of defendants and other witnesses on their behalf to the effect that plaintiff had been seen on several *345occasions entering the apartment occupied by a Mrs. B and not leaving until the early hours of the morning. Plaintiff and Mrs. B both admitted that plaintiff subsequently visited and stayed overnight regularly in the latter’s apartment and on numerous occasions the four-year-old son of the parties was present. Mrs. B maintained that she is merely an old friend of plaintiff and nothing more.


We conclude that the juvenile court erred in finding Michael to be a presumed parent. Because Welfare and Institutions Code section 316.2 grants exclusive jurisdiction over paternity issues to the juvenile court upon the filing of a dependency petition, the family court order on which the juvenile court relied, issued subsequent to the filing, was void. The same reasoning applies to the designation of Joel as a presumed parent. We vacate the juvenile court's designation of Michael and Joel as presumed parents and remand to the juvenile court for an independent determination of their requests for presumed parent status. We find no error in the designation of Donald as a presumed parent, which was supported by substantial evidence. Finally, we vacate the juvenile court's order denying <mask> to Michael and remand for reconsideration of his request in the event the court designates Michael as a presumed parent.


In Strnad v. Strnad (194 Misc. 743) the defendant moved to adjudge the plaintiff in contempt for removing the child of the parties from the State in violation of the judgment granting the defendant certain rights of <mask>. Service of the papers, pursuant to a provision in that regard contained in the order to show cause, was upon the attorney. It was there held by Mr. Justice Greenberg that such service was sufficient to give the court jurisdiction. But the decision is not helpful here, because the respondent in that case appeared generally and contested the motion on the merits. Precedents closer to the point are Wulff v. Wulff (74 Misc. 213, affd. 151 App. Div. 22) and Keller v. Keller (100 App. Div. 325), álso motions to punish for contempt, where the attorney upon whom service was made stated that he was without authority to appear on the motion or that he had not been for some time prior to, and was not at the time of, service, attorney for the accused party. It was held that the requirement of due notice had not been met. But I cannot believe that that necessarily disposes of the present issue — and for what are, to me, two good reasons.


(1) There is a contrary body of Federal case law holding that <mask> of inmates is a matter of privilege and not of right. (See Oxendine v Williams, 509d 1405 — a prisoner has no constitutional right to physical contact with his family; McCray v Sullivan, 509d 1332, 1334 — visitation privileges are a matter subject to the discretion of prison officials; Feazell v Augusta County Jail, 401 F Supp 405 — denial to a prisoner of a visit from his girlfriend "does not present a federal claim”; Henry v State of Delaware, 368 F Supp 286 — pretrial detainees have no Federal constitutional or statutory right to visitation privileges; Collins v Schoonfield, 344 F Supp 257, 279, supra — denial of contact visits to pretrial detainees "does not rise to the level of cruel and unusual punishment”; see also People v Von Diezelski, 78 Misc 2d 69, holding that various habeas corpus claims of a pretrial detainee in the Nassau County Jail, one being the lack of contact visits, did not render his detention unconstitutional or otherwise illegal.)


attending 12-Step meetings; he had completed a 52-week certified batterer’s program; he had rented a room from his nephew that was a suitable home for the minor; he was fully employed; he had regularly visited the minor; and after one such visit, the caregiver had sent an e-mail transcribing a message from the minor to father stating “ ‘[a]fter my visit today, I felt sad because I’m afraid I wouldn’t be able to see you. I wish I could see you every day. . . .’ ” The Department submitted a report in which it opposed father’s 388 petition. The court set a contested hearing on father’s 388 petition, as amended. The contested hearing took place on January 13, 2021. H. Report for Section 366.26 Hearing The Department reported that during the reporting period, “[father had] started calling the drug testing line, Monday through Friday, to conduct random drug testing, twice a week.” Father had not missed any phone calls or tests, and he had received normal test results for the five tests reported (from December 21, 2020 to January 4, 2021). Father continued to participate in regular supervised visits with the minor, either in-person, or (due to the COVID-19 pandemic) through video calls. During the visits, the minor tended to be relatively quiet but listened to what father told her. Since the last reporting period, the Department reported that the minor “continue[d] to appear more and more attached to her current caregivers.” Social worker Barrientos observed that during in-person visits and video calls, the minor was strongly attached to her caregivers, and the child continued to seek the caregivers’ comfort and affection during times of sadness or distress. The Department advised that the minor’s needs continued to be met by her caregivers. They took time off from work whenever the minor was ill, and they transported her to supervised <mask> with her parents. The Department’s assessment was that father had struggled with his methamphetamine use throughout the dependency proceedings notwithstanding the 16 months of services the Department had provided. Father was making efforts to


Two weeks after the dependency petition was filed, on April 15, the family court issued a statement of decision, findings and order, and two judgments in the consolidated custody and paternity actions, finding both Joel and Michael to be presumed parents of the minor.3 Although recognizing that Michael's voluntary declaration of paternity could be set aside, the family court declined to do so because the minor "has formed an attachment and strong relationship with [Michael] in his first years of life" and Michael "seeks to continue his relationship with the child," which the court found to be in the minor's "best interest." The court found that Joel was the minor's biological father and noted that through weekly visits Joel had formed a companionable relationship with the minor. The court declined to choose between them, finding the minor would suffer detriment if either was not declared to be a *645presumed parent. (§ 7612, subd. (c).) The court also reinstated Michael's supervised <mask> and entered judgments designating both men as the minor's father. So far as we are aware, none of the family court rulings were appealed.


Accordingly, sole legal and physical custody of Scarlet should be awarded to the father. The mother should be granted meaningful interaction and regular <mask>, and we remand for a determination as to appropriate visitation. For the same reasons, we vacate the court’s award to the mother of final decision-making authority with respect to the selection of the children’s therapist and medical and educational issues relating to Pascal, now 17, and award the father sole legal and physical custody of Pascal. Sole legal and physical custody of Tallulah shall remain with the mother.


However, the <mask> disputes continued unabated. The Brittains and Goodlett each moved to hold the other in contempt for alleged violations of the visitation order. Following a hearing, the trial court again passed the motions for contempt, and entered an order resetting the break-in period of the visitation order. The court orally advised the Brittains that the visitation was for them alone, with no other family members present. Thereafter, Goodlett filed a notice of appeal from this order.


Abdtjs-Salaam, J. These two cases call upon us to assess the continued vitality of the rule promulgated in Matter of Alison D. v Virginia M. (77 NY2d 651 [1991])—namely that, in an unmarried couple, a partner without a biological or adoptive relation to a child is not that child’s “parent” for purposes of standing to seek custody or <mask> under Domestic Relations Law § 70 (a), notwithstanding their “established relationship with the child” *14(77 NY2d at 655). Petitioners in these cases, who similarly lack any biological or adoptive connection to the subject children, argue that they should have standing to seek custody and visitation pursuant to Domestic Relations Law § 70 (a). We agree that, in light of more recently delineated legal principles, the definition .of “parent” established by this Court 25 years ago in Alison D. has become unworkable when applied to increasingly varied familial relationships. Accordingly, today, we overrule Alison D. and hold that where a partner shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together, the non-biological, non-adoptive partner has standing to seek visitation and custody under Domestic Relations Law § 70.


The record does not demonstrate "countervailing circumstances” sufficient to justify disturbing the established custody arrangement. At the time of the hearing, petitioner was living in a two-bedroom apartment with a married man with five children of his own. She had an out-of-wedlock son by that man. She had exercised sporadic <mask> with her daughter over the years. She acknowledged that, when her daughter was in California with respondent for over six months, she never telephoned her daughter and wrote her only one letter.


Jeanette and Sam married in 2008 and separated in 2014. A son was born of the union. Sam filed for divorce in September 2014. After an extensive period of discovery and motion practice, the matter came on for final hearing on March 21, 2016. The trial court entered its findings of fact, conclusions of law and decree of dissolution of marriage on May 12, 2016. The decree granted the parties joint custody of their son with a "2-2-3" <mask> schedule,1 designated neither party as primary residential parent, restored the parties their nonmarital assets, and divided the marital estate. Dissatisfied with the division of assets and the timeshare arrangement, Jeanette moved to alter, amend or vacate the decree pursuant to CR 2 59.05. The trial court denied the motion, and this appeal followed.


Numerous studies have found no risk of HIV infection through cióse personal contact or sharing of household functions. (See, Curran et al., Epidemiology of HIV Infection and AIDS in United States, 239 Sci 610, 615, n 45 [Feb 5, 1988]; e.g., Lawrence, HTLV-III/LAV Antibody Status of Spouses and Household Contact Assisting in Home Infusion of Hemophilia Patients, 66 Blood 703, 704-705 [1985].) These studies have figured prominently in decisions by Federal and State courts upholding the rights of HIV-infected children to attend public schools (see, e.g., Ray v School Dist. of Desoto County, 666 F Supp 1524, 1530-1532 [MD, Fla 1987]; Thomas v Atascadero Unified School Dist., 662 F Supp 376, 380 [CD, Cal *2201987]; District 27 Community School Bd. v Board of Educ., 130 Misc 2d 398 [Sup Ct, Queens County 1986]; cf, Jane W. v John W., 137 Misc 2d 24 [Sup Ct, Kings County 1987] [father suffering from AIDS not precluded from <mask> with 1½-year-old daughter]).


The children were detained from mother and father and placed with paternal grandmother. Father’s <mask> was to be monitored, while mother was permitted to have unmonitored visitation, on the condition that mother submit to weekly random drug testing, and that father was not allowed to visit with her. At the September 11, 2019 detention hearing, both mother and father completed “Notification of Mailing Address” forms providing the same Inglewood address, and their current mobile numbers. The Judicial Council form (JV–140) provides that the court and Department will use the designated address “unless you notify the court or the social worker . . . of your new mailing address. [¶] Notice of the new mailing address must be provided in writing.” The court confirmed on the record that the information was accurate, and admonished mother and father to update their information if it changed. The court ordered the Department to provide mother and father with referrals, including weekly drug testing, parenting classes, and individual counseling. The Department attempted to schedule a meeting with father. Father initially did not understand why a meeting was required, believing that he did not have an open case with the Department. Father also complained he had gone to court on October 15, 2019, but that there was no hearing that day. He told the social worker mother had told him there was a hearing, even though no hearing was scheduled. The social worker told father he would receive notices of hearings in the mail, and confirmed that he had hearings scheduled for October 23 and November 18. Father agreed to meet with the Department on October 18, 2019, but he did not show up, and he did not answer or return the Department’s phone calls or text messages.


On November 15, 2017, the court terminated dependency jurisdiction and issued a family law exit order.7 The court granted mother and father joint legal custody of G.B., with mother receiving sole physical custody of the child. The court awarded father unmonitored visits with G.B. every Friday evening to Saturday morning, with any additional <mask> to be negotiated by the parents.


Here, the trial court properly considered the factors outlined in Section 452.340.1 when rebutting the Form 14 as unjust and inappropriate. Specifically, the trial court considered the financial resources and needs of Husband when it considered Husband's new responsibility to fully support Emma, and his expenses related to the ownership, operation, and maintenance of Sophie and Stella's vehicles. See Section 452.340.1(2). In considering Wife's text messages to the children about giving Husband more custody, spending the child support payments on herself, and that groceries would be slim, the trial court took into account the amount of time the children spend with each parent and the reasonable expenses associated with the custody or <mask> arrangements. See Section 452.340.1(5).


Mr. W. pleaded guilty to several crimes including robbery in the first degree on July 7, 1992 in the Steuben County Court. Sentencing was set for August 10, 1992 and a sentence promise had been given of no more than 4Vi years minimum to 9 years maximum. At the sentencing on August 10, 1992 Mr. W. was sentenced to 4 Vi years to 9 years in a New York State correctional facility. Mr. W. will receive credit for the time that he has spent in the Steuben County Jail from August 7, 1991. At the hearing on August 5, 1992 Mr. W. set forth a plan wherein the child, Kyle, would live with Mr. W.’s aunt, until his release from the correctional facility. Ms. S. testified that the child could reside with her if she were to have custody until Mr. W. was able to assume custody, and further testified that the child could be placed on her husband’s health insurance policy. Ms. S. is employed at a local hospital which provides day care. Mr. W. included in the plan for the care of his child that his mother, Mrs. W., would transport the child to the correctional facility in order that he may visit with the child. Mrs. W. testified that she would take the child anywhere in the State at least once a month. She further testified that if her son was placed at either Southport or Elmira Correctional Facilities she would transport the child to see his father twice a week. Also, there was testimony that Mr. W.’s daughter, Nicole, born on July 21, 1978 has had an acceptable relationship with her father in that he has exercised his right to <mask> pursuant to a Family Court order and also has visitation with Nicole two to three weeks in the summer. Nicole has been visiting with her father at the Steuben County Jail and has had an ongoing relationship with him.


The writ is accordingly sustained solely to the extent of awarding custody of the child to the petitioner, to live in the one-family house in Yonkers, New York, with the petitioner and the petitioner’s sister and brother-in-law and the latter’s twin daughters, for a trial period of six months from the date of the entry and service of this order, at the end of which period application for complete custody thereafter may be made, upon proof of the conditions affecting the child’s Avelfare as they then exist. The order to be entered hereon shall provide for such <mask> rights to the respondent as the parties may agree upon, or in the event of disagreement, the court will determine and fix such visitation rights.


The mother and counsel for D. are asking this court to drastically reduce the father’s access to his son based entirely on the only “material information” at its disposal, namely, what the child claims occurred. “A noncustodial parent is entitled to meaningful <mask>, and denial of that right is so drastic that it must be based on substantial evidence that visitation would be detrimental to the welfare of the child.” (Matter of Lane v Lane, 68 AD3d 995, 996-997 [2d Dept 2009].) It would be inappropriate as well as fundamentally unfair to base a decision to curtail the father’s meaningful visitation on the child’s out-of-court hearsay statements corroborated in an in camera proceeding that also would be based on the child’s untested statements.


In answering this question, our role is "simply to ascertain and declare what the statute contains, not to change its scope by reading into it language it does not contain or by reading out of it language it does. We may not rewrite the statute to conform to an assumed intention that does not appear in its language." ( *919Vasquez v. State of California (2008) 45 Cal.4th 243, 253, 85 Cal.Rptr.3d 466, 195 P.3d 1049.) Section 3104 expressly provides that a "grandparent of a minor child" can petition the court for <mask> rights. ( § 3104, subd. (a).) As Ed and Yvonne point out, neither section 3104 nor the Family Code more generally define the term grandparent, so we look to its ordinary dictionary meaning, which is "a parent's parent" (Webster's 3d New Internat. Dict. (2002) p. 988, col. 2) or "a parent of one's father or mother" (Webster's Collegiate Dict. (11th Ed. 2003) p. 544). This plain and ordinary meaning of the term grandparent would not extend to Ed and Yvonne, who are not parents but grandparents of the parent in this case.