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

NOT FOR PUBLICATION FILED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))).
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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.
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AFFIRMED.
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