FILED
NOT FOR PUBLICATION
JAN 10 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LORETTA APODACA, individually and No. 14-56126
on behalf of all others similarly situated,
D.C. No. 2:12-cv-05664-DSF-E
Plaintiff - Appellant,
v.
COSTCO WHOLESALE CORP., MEMORANDUM*
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Argued and Submitted June 8, 2016
Pasadena, California
Before: RAWLINSON and BEA, Circuit Judges, and EATON,** Judge.
Appellant Loretta Apodaca appeals from interlocutory and final orders of the
district court granting partial summary judgment in favor of Appellee Costco
Wholesale Corporation (Costco) as to Appellant’s: California Labor Code section
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
Richard K. Eaton, Judge of the United States Court of International
Trade, sitting by designation.
226(a)(9) claims and requests for injunctive relief; request for class certification
under California Labor Code section 226; claims alleging inaccurate wage
statements under California Labor Code section 226; continuing wage claims under
section 203; unfair competition under the California Business & Professions Code;
civil penalties under California’s Private Attorneys General Act (PAGA); and
objection to the exclusion of expert witness testimony. We affirm the district
court’s findings.
The court has jurisdiction under 28 U.S.C. § 1291. We review the district
court’s conclusions of state law de novo and its factual determinations for clear
error. Salve Regina Coll. v. Russell, 499 U.S. 225, 231 (1991); Plumber,
Steamfitter & Shipfitter Indus. Pension Plan & Tr. v. Siemens Bldg. Techns. Inc.,
228 F.3d 964, 968 (9th Cir. 2000). “In the absence of a controlling decision from a
state supreme court, a federal court must interpret state law as it believes the state’s
highest court would.” Dias v. Elique, 436 F.3d 1125, 1129 (9th Cir. 2006);
Gravquick A/S v. Trimble Navigation Int’l Ltd., 323 F.3d 1219, 1222 (9th Cir.
2003).
To establish a section 226 claim, the plaintiff must demonstrate both a
violation of subsection 226(a) and an injury under subsection 226(e). See Cal.
Lab. Code §§ 226(a)(2), (9), 226(e). The district court determined that Costco’s
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wage statements did not violate section 226 because Apodaca did not show Costco
knowingly and intentionally issued the allegedly-defective wage statement in
violation of section 226(e). This court finds, however, that the wage statements
satisfied the statutory requirements of section 226(a) and, therefore, we need not
determine whether Costco’s actions caused injury under subsection 226(e). Id.
§ 226(a).
Apodaca argues that she is entitled to relief as a result of Costco’s “knowing
and intentional” failure to list on the wage statement the total hours and the
separate hourly rates for vacation pay and vacation pay at the overtime rate (float
overtime) on the line labeled “vacation pay/nonexempt salaried vacation or float
overtime.” In response, Costco argues it was in compliance with section 226(a)
because it listed the total hours worked, provided corresponding hourly rates, and
that any alleged violation of section 226(a) was not “knowing and intentional”
under the statute’s injury provision, section 226(e).
Importantly, when constructing California’s labor statutes, “words are to be
given their plain and commonsense meaning.” Murphy v. Kenneth Cole Prods.,
Inc., 155 P.3d 284, 289 (Cal. 2007). The Labor Code provisions at issue require
that the employer provide an accurate itemized wage statement listing “total hours
worked by the employee,” Cal. Lab. Code § 226(a)(2), and “all applicable hourly
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rates in effect during the pay period and the corresponding number of hours
worked at each hourly rate by the employee,” id. § 226(a)(9). The district court
correctly concluded that the line at issue, “vacation pay/nonexempt salaried
vacation or float overtime,” does not reflect “total hours worked,” but instead
represents paid time-off. Id. § 226(a). Here, in the line “vacation pay/nonexempt
salaried vacation or float overtime,” Costco included additional information not
required by statute, i.e., information regarding paid vacation, and therefore did not
violate section 226(a).
Costco’s wage statements satisfy the requirements of section 226(a) because
they list the total hours worked and the corresponding hourly rates. It is
undisputed that the total hours worked can be calculated based on the wage
statement alone by adding the “REGULAR PAY” hours to the “OVERTIME”
hours. It is also undisputed that the applicable hourly rate for these worked hours
can be calculated based on the wage statement alone by dividing the amount paid
by the hours worked. See Morgan v. United Retail Inc., 186 Cal. App. 4th 1136,
1148–49 (2010); Price v. Starbucks, Corp., 192 Cal. App. 4th 1136, 1142–43
(2011). Because the hours worked and hourly rate can be “promptly and easily
determine[d] from the wage statement alone,” we affirm the district court’s denial
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of class certification and its rejection of Apodaca’s individual claims premised on
sections 226(a)(2), 226(a)(9), and 226(e).
Relatedly, because Appellant has not established a section 226 claim, the
district court properly denied Appellant’s request for class certification and
injunctive relief under this provision. The district court properly found that
Apodaca failed to prove claims sufficient to recover under California Labor Code
section 203 for civil penalties. Cal. Lab. Code § 203. As a result, Appellant’s
derivative claims under California Labor Code section 2699 and California
Business & Professions Code section 17200 also fail. See Iskanian v. CLS Transp.
L.A., LLC, 327 P.3d 129, 133 (Cal. 2014); Arias v. Super. Ct., 209 P.3d 923, 934
(Cal. 2009). Last, the district court acted within its discretion when tentatively
excluding Apodaca’s expert’s testimony. See Kumho Tire Co., Ltd. v. Carmichael,
526 U.S. 137, 148–49 (1999). Apodaca did not attempt to put her expert on the
stand at trial. Therefore the court’s tentative exclusion of the testimony, without
more, is not a basis to vacate the judgment in favor of Costco. See Tennison v.
Circus Circus Enters. Inc., 244 F.3d 684, 689 (9th Cir. 2001) (quoting Walden v.
Georgia-Pac. Corp., 126 F.3d 506, 518 (3d Cir. 1997)) (“[W]here a district court
makes a tentative in limine ruling excluding evidence, the exclusion of that
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evidence may only be challenged on appeal if the aggrieved party attempts to offer
such evidence at trial.”).
AFFIRMED.
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