Enrique Gonzalez v. Nefab Packaging, Inc. , 637 F. App'x 310 ( 2016 )


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  •                              NOT FOR PUBLICATION                         FILED
    UNITED STATES COURT OF APPEALS                      FEB 11 2016
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    ENRIQUE F. GONZALEZ, Individually            No. 13-57116
    and on behalf of other Persons similarly
    situated,                                    D.C. No. 2:13-cv-04499-JAK-SS
    Plaintiff - Appellant,
    MEMORANDUM*
    v.
    NEFAB PACKAGING, INC., a New
    Hampshire Corporation; AP & CO., INC.,
    DBA On-Call Staffing Services of Carson
    California,
    Defendants - Appellees.
    Appeal from the United States District Court
    for the Central District of California
    John A. Kronstadt, District Judge, Presiding
    Submitted February 3, 2016**
    Pasadena, California
    Before: PREGERSON, WARDLAW, and HURWITZ, Circuit Judges.
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    **
    The panel unanimously concludes this case is suitable for decision without
    oral argument. See Fed. R. App. P. 34(a)(2).
    Enrique F. Gonzalez appeals the dismissal of his amended complaint in this
    putative class action against Nefab Packaging, Inc. (“Nefab”) and On-Call Staffing
    Services (“On-Call”). We affirm.
    1. The amended complaint asserted five claims against both Nefab and On-
    Call. The district court granted Nefab’s Rule 12(b)(6) motion as to Gonzalez’s
    claims under California Labor Code §§ 1197, 226, and 203.             The court later
    dismissed the remaining two claims against Nefab without prejudice at Gonzalez’s
    request. Neither order mentioned On-Call. Gonzalez appealed the dismissal of his
    Labor Code §§ 1197, 226, and 203 claims. Nefab argues that we lack appellate
    jurisdiction because two of the claims against it were dismissed without prejudice
    and no claims against On-Call were dismissed.
    2. Nefab’s argument would be well-founded but for subsequent events.
    Because we lacked appellate jurisdiction over Gonzalez’s appeal when filed, we
    ordered a limited remand to allow the district court to enter final judgment on all
    claims as to all parties. The district court did so, and we therefore have jurisdiction
    under 
    28 U.S.C. § 1291
    . See Cato v. Fresno City, 
    220 F.3d 1073
    , 1074 (9th Cir.
    2000) (per curiam) (“[W]e can assume jurisdiction based on a prematurely filed
    notice of appeal when ‘subsequent events can validate the prematurely filed
    appeal.’” (alteration omitted) (quoting Anderson v. Allstate Ins. Co., 
    630 F.2d 677
    ,
    681 (9th Cir. 1980))).
    2
    3. Gonzalez’s primary claim is that the defendants violated Labor Code
    § 1197 by paying him less than the minimum wage. Specifically, he contends that
    Section 9(B) of California Industrial Welfare Commission Wage Order 1-2001
    requires that he be paid twice the otherwise-applicable minimum wage because he
    was required to bring his own tools to work.
    4. We reject the argument. Section 9(B) provides:
    When tools or equipment are required by the employer or are necessary to the
    performance of a job, such tools and equipment shall be provided and
    maintained by the employer, except that an employee whose wages are at least
    two (2) times the minimum wage provided herein may be required to provide
    and maintain hand tools and equipment customarily required by the trade or
    craft.
    This provision plainly requires the employer to provide tools to certain employees,
    and exempts from that requirement those earning at least two times the minimum
    wage. It does not impose a new minimum wage as a remedy for the employer’s
    failure to provide the tools. As the district court recognized, California law instead
    requires the employer to indemnify employees for “all necessary expenditures or
    losses incurred . . . .” 
    Cal. Lab. Code § 2802
    (a).
    5. Gonzalez’s other two claims were also properly dismissed. The only
    basis for Gonzalez’s allegation that his wage statements were inaccurate in violation
    of Labor Code § 226 is his claim to twice the minimum wage. Likewise, because
    he was not owed additional pay, he failed to state a Labor Code § 203 claim for non-
    payment of wages.
    3
    AFFIRMED.
    4
    

Document Info

Docket Number: 13-57116

Citation Numbers: 637 F. App'x 310

Filed Date: 2/11/2016

Precedential Status: Non-Precedential

Modified Date: 1/13/2023