NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 5 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BILL TAYLOR, No. 18-55053
Plaintiff-Appellant, D.C. No.
2:16-cv-01915-CJC-JPR
v.
COX COMMUNICATIONS MEMORANDUM*
CALIFORNIA, LLC, Erroneously Sued As:
CoxCom, Inc., and CoxCom, LLC; COX
COMMUNICATIONS, INC.; DOES, 1
through 50 inclusive,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Argued and Submitted August 16, 2019
Pasadena, California
Before: CALLAHAN and CHRISTEN, Circuit Judges, and CHEN,** District
Judge.
Plaintiff-appellant, Bill Taylor (“Taylor”), represents a certified class of field
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Edward M. Chen, United States District Judge for the
Northern District of California, sitting by designation.
technicians employed by defendant-appellee, Cox Communications California,
LLC (“Cox”), in this diversity wage-and-hour class action. Cox field technicians
travel in company vehicles to customer residences to install and repair Cox’s
television and internet services. Some Cox field technicians participate in an
employee program known as Home Start, which permits them to keep their
company vehicles at home during non-working hours and commute directly to
their field assignments from home, rather than from the company depot.
According to Taylor, Cox violated California law by not compensating its Home
Start field technicians for their time spent commuting home from their last field
assignments in company vehicles. The district court granted summary judgment in
favor of Cox, which Taylor now appeals. We have jurisdiction under 28 U.S.C.
§ 1291 and affirm the district court’s summary judgment order.
Because the parties are familiar with the facts of this case, we do not discuss
them at length here. Taylor alleges that the time Cox’s Home Start field
technicians spend commuting home in their company vehicles qualifies as
compensable “hours worked” under California law. To prevail on this claim,
Taylor must demonstrate either that, during this commute time, (1) the field
technicians were “subject to the control” of Cox, or (2) they were “suffered or
permitted to work.” See Morillion v. Royal Packing Co., 995 P.2d 139, 143-46
(Cal. 2000). The district court found that Taylor was unable to present a genuine
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issue of material fact as to either claim. We agree.
First, Taylor fails to present a genuine issue of material fact as to whether
Cox’s Home Start field technicians were “subject to the control” of Cox during
their commutes home. To satisfy this element, Taylor must show that Cox
exercised a sufficient level of “control” over its field technicians during their
commute, and that Cox also required its field technicians to drive to and from
home in their company vehicles. See Alcantar v. Hobart Serv., 800 F.3d 1047,
1054-55 (9th Cir. 2015) (“[T]o prevail at trial [plaintiff] must prove not only that
Hobart’s restrictions on him during his commute in Hobart’s vehicle are such that
he is under Hobart’s control, but also that, despite Hobart’s profession that use of
its vehicles is voluntary, employees are, as a practical matter, required to commute
in Hobart’s vehicles.”); Morillion, 995 P.2d at 147 (“Time employees spend
traveling on transportation that an employer provides but does not require its
employees to use may not be compensable as ‘hours worked.’”). Here, the record
shows no genuine dispute that Cox did not require its field technicians to commute
home in company vehicles because Home Start is a voluntary program. As an
alternative to Home Start, Cox’s field technicians have the option to participate in
Office Start, which allows them to commute between home and the company depot
in their personal vehicles (time which is not compensated), and drive their
company vehicles from the depot to their work assignments for the day. Because
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Taylor failed to present any genuine dispute as to this fact, the district court did not
err in granting summary judgment on the “subject to the control” element of his
claim.
Second, Taylor also has not shown that the district court erred in concluding
that, because Home Start participants “do not engage in any additional work-
related tasks and the transportation of tools and equipment does not add any time
to their commutes[,] . . . no reasonable juror could find that the class members here
were ‘suffered or permitted to work’ during their commutes home.” We find
Taylor’s argument that the district court erroneously relied on federal, rather than
California, law unavailing in light of Hernandez v. Pacific Bell Telephone Co., 239
Cal. Rptr. 3d 852 (Cal. Ct. App. 2018), review denied (Feb. 13, 2019), wherein the
California Court of Appeal addressed identical issues on a similar set of facts and
reached the same conclusions as the district court in this case. “In the absence of
any decision on this issue from the California Supreme Court, we are bound by . . .
the ruling of the highest state court issued to date.” Poublon v. C.H. Robinson Co.,
846 F.3d 1251, 1266 (9th Cir. 2017); see also Miller v. Cty. of Santa Cruz, 39 F.3d
1030, 1036 n.5 (9th Cir. 1994), as amended (Dec. 27, 1994) (“A state appellate
court’s announcement of a rule of law is a datum for ascertaining state law which
is not to be disregarded by a federal court unless it is convinced by other
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persuasive data that the highest court of the state would decide otherwise.”
(citation and quotation marks omitted)).
The district court’s grant of summary judgment is AFFIRMED.
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