                                                                            FILED
                            NOT FOR PUBLICATION                              AUG 17 2012

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



SUSAN J. PEABODY,                                No. 10-56846

              Plaintiff - Appellant,             D.C. No. 2:09-cv-06485-AG-RNB

  v.
                                                 MEMORANDUM *
TIME WARNER CABLE, INC.,

              Defendant - Appellee.



                   Appeal from the United States District Court
                      for the Central District of California
                   Andrew J. Guilford, District Judge, Presiding

                        Argued and Submitted July 11, 2012
                               Pasadena, California

Before: TALLMAN and N.R. SMITH, Circuit Judges, and BURGESS, District
Judge.**

       Susan Peabody appeals the district court’s summary judgment in favor of

Time Warner Cable, Inc. (“TWC”) in Peabody’s putative class action on behalf of




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Timothy M. Burgess, District Judge for the U.S.
District Court for Alaska, sitting by designation.
current and former employees of TWC who held the position of “account

executive.” Peabody alleges violations of California’s wage and overtime laws.

The case was removed to federal court under the Class Action Fairness Act, 28

U.S.C. § 1332(d), and diversity jurisdiction. We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm the district court’s conclusion that TWC did not

retroactively change commission payments owed to Peabody.

      Under California law, “contractual terms must be met before an employee is

entitled to a commission.” Steinhebel v. Los Angeles Times Commc’n, 126 Cal.

App. 4th 696, 705 (2005). Here, Peabody admitted that under the terms of her

contract, she was not entitled to any commissions until the advertising aired,

regardless of when the customer paid. Therefore, TWC was entitled to pay

Peabody under the new commission rate for advertising that aired after the rate

changed, and Peabody’s argument that TWC retroactively reduced her

compensation is unavailing. There is also no evidence that TWC changed the

commission rate in bad faith.

      As to the other four issues Peabody here appeals, we have filed

contemporaneously herewith a certification order to the Supreme Court of

California to determine whether commission payments can be equitably allocated

over the pay period in which they are earned. This underlying question is


                                          2
necessary for this panel to resolve the remaining issues. We will wait to resolve

these issues until hearing further from the California Supreme Court.

      AFFIRMED.




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