                                                                            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                           NOT FOR PUBLICATION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




                                     Page 5 of 6
evidence may only be challenged on appeal if the aggrieved party attempts to offer

such evidence at trial.”).

      AFFIRMED.




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