                                                                                FILED
                           NOT FOR PUBLICATION                                  MAR 06 2015

                                                                             MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                            U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


RICHARD B. MELBYE, AKA Brent                     No. 12-57220
Melbye,
                                                 D.C. No. 3:10-cv-02040-IEG-JMA
              Plaintiff - Appellee,

  v.                                             MEMORANDUM*

ACCELERATED PAYMENT
TECHNOLOGIES, INC., a Delaware
corporation,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Southern District of California
                Irma E. Gonzalez, Senior District Judge, Presiding

                      Argued and Submitted February 5, 2015
                               Pasadena, California

Before: PREGERSON, W. FLETCHER, and NGUYEN, Circuit Judges.

       Accelerated Payment Technologies (“APT”) appeals the district court’s

denial of its renewed motion for judgment as a matter of law. Reviewing the

district court’s denial of APT’s motion de novo and the jury’s verdict for


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
substantial evidence, see EEOC v. Go Daddy Software, Inc., 581 F.3d 951, 961

(9th Cir. 2009), we affirm.

      The jury’s finding that APT breached an oral or implied-in-fact contract

between Richard Melbye and Geoffrey Knapp for post-termination residual

commissions is supported by substantial evidence. APT argues that the employee

handbook was incorporated into the at-will employment agreement, and that the

handbook precludes post-termination commissions. We are unpersuaded. The

handbook was not incorporated into the employment agreement. But even if it

were, the handbook and the employment agreement did not constitute a fully

integrated contract because the handbook states that “[i]t does not contain the

complete terms or conditions of any of the company’s current benefit plans and

policies.” The jury could interpret the effect of the handbook and weigh extrinsic

evidence of the parties’ intent. See City of Hope Nat’l Med. Ctr. v. Genentech,

Inc., 43 Cal. 4th 375, 395 (2008) (“[W]hen, as here, ascertaining the intent of the

parties at the time the contract was executed depends on the credibility of extrinsic

evidence, that credibility determination and the interpretation of the contract are

questions of fact that may properly be resolved by the jury.”). And the record

contains ample evidence—including testimony of both Melbye and Knapp—that




                                          2
the handbook did not preclude the post-termination residual commissions to which

they had agreed.

      Nor did the Change of Control Agreement supersede the post-termination

commissions contract. The Change of Control Agreement states that it does not

“prevent or limit” Melbye’s “continuing or future participation in any benefit,

bonus, incentive or other plan or program provided by the Corporation.” And,

again, the record contains ample evidence that Melbye and Knapp did not intend

any conflict between the Change of Control Agreement and their post-termination

commissions contract.

      AFFIRMED.




                                         3
