FILED
NOT FOR PUBLICATION FEB 01 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
WILLIAM MARR, No. 11-16308
Plaintiff - Appellant, D.C. No. 3:09-cv-05978-WHA
v.
MEMORANDUM *
BANK OF AMERICA, NA,
Defendant - Appellee.
Appeal from the United States District Court
for the Northern District of California
William Alsup, District Judge, Presiding
Argued and Submitted January 15, 2013
San Francisco, California
Before: WALLACE, FARRIS, and BYBEE, Circuit Judges.
William Marr appeals from the district court’s grant of summary judgment
to Bank of America on his claim under § 221 of the California Labor Code and his
derivative claim under § 17200 of the California Business and Professions Code.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
We have jurisdiction under 28 U.S.C. § 1291, see James v. Price Stern Sloan, Inc.,
283 F.3d 1064, 1065–67 (9th Cir. 2002), and we affirm.
The California courts have held that it is illegal under § 221 and other state
statutes and regulations for employers to take deductions for general business
expenses from commissions that are based on an individual employee’s sales. See
Kerr’s Catering Serv. v. Dep’t of Indus. Relations, 369 P.2d 20, 24–27 (Cal. 1962);
Hudgins v. Neiman Marcus Grp., Inc., 41 Cal. Rptr. 2d 46, 51–55 (Ct. App. 1995);
Quillian v. Lion Oil Co., 157 Cal. Rptr. 740, 742–45 (Ct. App. 1979). Deductions
from such commissions are permitted, however, when (1) the deductions are tied to
the employee’s sales rather than general business expenses, and (2) the employee
agrees to the deductions by contract. See Koehl v. Verio, Inc., 48 Cal. Rptr. 3d
749, 760–67 (Ct. App. 2006); Steinhebel v. L.A. Times Commc’ns, LLC, 24 Cal.
Rptr. 3d 351, 356–62 (Ct. App. 2005); Prudential Ins. Co. of Am. v. Fromberg, 49
Cal. Rptr. 475, 476–79 (Ct. App. 1966). The California Supreme Court’s 2008
decision in Prachasaisoradej v. Ralphs Grocery Co., 165 P.3d 133 (Cal. 2007), did
not alter this framework.
The deductions taken in calculating Marr’s commissions were tied to his
specific sales; they were not deductions taken for the types of general business
expenses deemed troublesome by the California courts. Marr contractually agreed
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that the deductions would be taken in calculating his commissions. Under
California law, the district court was thus correct to grant summary judgment in
Bank of America’s favor on Marr’s claim under § 221. Because Marr’s claim
under § 17200, as relevant for this appeal, was derivative of his claim under § 221,
the district court was also correct in granting summary judgment on the § 17200
claim to the extent appealed.
AFFIRMED.
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FILED
Marr v. Bank of America, 11-16308 FEB 01 2013
MOLLY C. DWYER, CLERK
WALLACE, Senior Circuit Judge, dissenting: U .S. C O U R T OF APPE ALS
Although I would join the majority on the merits if I could, I respectfully
dissent from the majority’s jurisdiction analysis. It is clear to me that this court lacks
jurisdiction to hear this appeal.
Generally, we may only hear appeals from final decisions of the district court.
28 U.S.C. § 1291. Appellant Marr purports in his Notice of Appeal to take this appeal
from the district court’s March 8, 2011 order granting in part and denying in part cross
motions for partial summary judgment. That order is not a final judgment as it plainly
contemplates that the case remains before the district court and expressly states that
the “action will proceed” on those claims as to which the district court had yet to enter
judgment. See Digital Equipment Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867
(1994); Way v. Cnty. of Ventura, 348 F.3d 808, 810 (9th Cir. 2003).
Marr points to the district court’s April 27, 2011 order, which granted the
parties’ joint stipulation regarding dismissal and entry of judgment, as providing
jurisdiction for this appeal. Even disregarding that Marr’s Notice of Appeal was from
the March 8 order and not the April 27 order, I am still not convinced that jurisdiction
is proper here.
This court explained in Concha v. London, 62 F.3d 1493 (9th Cir. 1995), that
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a plaintiff may not “appeal from a joint stipulation to voluntary dismissal, entered
unconditionally by the court pursuant to a settlement agreement.” Id. at 1507; see also
Plasterers Local Union No. 346 v. Wyland Enters. Inc., 819 F.2d 217, 218-19 (9th Cir.
1987); Seidman v. City of Beverly Hills, 785 F.2d 1447, 1448 (9th Cir. 1986).
Although Concha unfortunately held that this court may exercise jurisdiction over a
voluntary dismissal pursuant to a stipulation even where that stipulation did not make
clear that dismissal was with prejudice, Concha emphasized that jurisdiction in such
a situation is appropriate “where the plaintiff is not acting pursuant to a settlement
agreement.” 62 F.3d at 1507 (emphasis added).
Here, the parties did not merely stipulate to voluntary dismissal. The district
court explained that the parties “ostensibly settled” the case. Thus, as the district court
warned the parties, Concha’s bright-line rule as to settlement agreements deprives this
court of jurisdiction. No case has been cited supporting the notion that the parties’
subjective intent as to the effect of a settlement agreement can provide jurisdiction for
appeal. I thus conclude that under Concha, our court lacks jurisdiction to hear this
appeal.
Seeking to avoid Concha, Marr contends that our court’s decision in James v.
Price Stern Sloan, Inc., 283 F.3d 1064 (9th Cir. 2002), provides us with jurisdiction.
In James, we held that “when a party that has suffered an adverse partial judgment
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subsequently dismisses remaining claims without prejudice with the approval of the
district court, and the record reveals no evidence of intent to manipulate our appellate
jurisdiction, the judgment entered after the district court grants the motion to dismiss
is final and appealable under 28 U.S.C. § 1291.” Id. at 1070. Because Marr seeks
review of a partial summary judgment following a “voluntary dismissal,” and because
the record reveals no “intent to manipulate” this court’s appellate jurisdiction, Marr
contends that jurisdiction is appropriate here.
While I think it is an open issue whether the parties attempted to “manipulate”
our jurisdiction through their settlement agreement—indeed, the district court hinted
as much in its April 27 order—James did not involve a voluntary dismissal pursuant
to a settlement agreement. Moreover, James does not attempt to distinguish Concha’s
language that voluntary dismissal pursuant to a settlement agreement does not provide
this court jurisdiction. To hold there is jurisdiction under James, the majority must
stretch the holding of James—a case that already stretched the traditional limits of
federal jurisdiction—to avoid Concha. Such a reading of James would amount to one
three-judge panel overruling an earlier three-judge panel—and that is not allowed. I
thus conclude that James cannot supply jurisdiction here. I would therefore dismiss
this appeal and not reach the merits.
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