Filed 5/22/14 McDaniel-Guthrie v. Mechanical Analysis/Repair CA3
                                           NOT TO BE PUBLISHED



California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.



              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                    (San Joaquin)
                                                            ----



ANGIE M. MCDANIEL-GUTHRIE,                                                                   C071425

                   Plaintiff and Appellant,                                           (Super. Ct. No.
                                                                                 39-2012-00277983-CU-JR-
         v.                                                                                STK)

MECHANICAL ANALYSIS/REPAIR, INC.,

                   Defendant and Respondent.




         Plaintiff Angie M. McDaniel-Guthrie contends her former employer, defendant
Mechanical Analysis/Repair, Inc. (Martech) violated state labor law by purportedly not
paying her on her last day of work all of the commissions she had earned up to that day.
Although all of the commissions were subsequently paid except one on an ongoing
contract, she asserts the failure to pay on her last day of work entitles her to penalties for
the time she had to wait to receive her commissions (Lab. Code, §§ 201, 203), and that
Martech must also pay a commission to her on the ongoing contract.



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       A hearing officer for the Labor Commissioner determined Martech had paid
plaintiff all commissions owed her in a timely manner under the commission agreement
between plaintiff and Martech, and she denied plaintiff’s wage claim. Plaintiff appealed
her claim to the trial court, and that court affirmed the Labor Commissioner’s decision.
We, too, affirm the decision and find plaintiff is to take nothing ($0) on her claim.
       Plaintiff’s right to commissions is governed by the terms of her commission
agreement with Martech. (Nein v. HostPro, Inc. (2009) 174 Cal.App.4th 833, 853.) At
trial, the parties stipulated the commission agreement granted plaintiff her commissions
on three conditions: first, she was entitled to receive 20 percent of the final profit for the
accounts of the customers she secured as her commission; second, her commission was
payable on the first payroll of the third month after the customer invoice was created; and
third, her commission was payable on paid invoices only. Plaintiff was not entitled to
receive commissions until all of those conditions had been satisfied.
       Plaintiff understood the commission agreement to mean commissions were earned
upon issuance of the invoice, and that when the customer paid the invoice, she would be
paid her commission. So when she quit effective June 17, 2011, she expected a check in
her hand for commissions from all paid invoices she had procured in April, May, and
June of 2011, even though they were not payable to her until the third month after the
invoice was created. For those invoices that had not yet been paid, she expected a check
the moment they were paid.
       The express language of the commission agreement contradicts plaintiff’s
understanding, and it governs here. (Nein v. HostPro, Inc., supra, 174 Cal.App.4th at p.
853.) Plaintiff’s receipt of commissions was conditioned on Martech determining final
gross profit from the invoice, receiving payment on the invoice from the customer, and
paying the commissions on a set schedule. Except for a commission on an ongoing
contract, Martech paid plaintiff all of her earned commissions according to these
conditions, and thus is not liable for any wait penalties.

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       The sole outstanding commission is derived from an ongoing contract involving
work by Martech at Folsom Prison. The trial court correctly determined this commission
was not yet due. At trial, the parties stipulated that plaintiff brought the opportunity for
the Folsom Prison contract to Martech. Plaintiff procured the contract in March 2011,
but Martech did not begin to issue invoices for the project until December 2011. The
contract was scheduled to terminate on March 30, 2013. At trial in April 2012, plaintiff
admitted the final gross profit on that contract was not known because the contract had
not been completed. Thus, her commission could not be calculated under the formula
established by the commission agreement, and it was not due and payable. Plaintiff
nonetheless sought an estimated commission. Although Martech occasionally paid
commissions on such ongoing or progressive jobs as each invoice was paid, it never paid
commissions based on a project’s estimated profits, and nothing in the agreement
obligated it to do so. The trial court thus correctly determined it was impossible as of the
time of trial to determine final gross profit on the Folsom Prison contract, and plaintiff’s
commission on that contract was not yet due.
       Because plaintiff received all of the commissions to which she was entitled under
the commission agreement when she was entitled to receive them, she is not entitled to
wait penalties, and she is not entitled to any estimated commission on the Folsom Prison
contract.
       Plaintiff contends the trial court erred by ruling only on her claim for wait
penalties for the Folsom Prison contract. Ruling on plaintiff’s motion for new trial, the
trial court stated it had been unaware plaintiff was seeking a remedy against contracts
other than the Folsom Prison contract, but it determined plaintiff had suffered no
prejudice as evidence of the other contracts had been submitted and considered, and
plaintiff had properly received all of her commissions on those contracts according to the
terms of the commission agreement. Plaintiff thus suffered no prejudicial error.



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       Under a separate notice of appeal, plaintiff contends the trial court erred by
awarding attorney fees to Martech under Labor Code section 98.2, subdivision (c). That
statute requires a trial court to award attorney fees if the party appealing from a Labor
Commissioner’s decision is unsuccessful. An employee is unsuccessful if the court
awards no recovery ($0) to her.1
       Plaintiff asserts she was not unsuccessful because the stipulation made at trial, that
she brought the opportunity for the Folsom Prison contract to Martech, was an award to
her on her appeal from the Labor Commissioner of an amount greater than zero. The
stipulation was not such an award. Plaintiff was already entitled to a commission on the
Folsom Prison contract according to the terms of her commission agreement. The
stipulation did not add anything to that fact. Plaintiff received no recovery on her claim,
and the trial court correctly granted attorney fees under Labor Code section 98.2,
subdivision (c).
                                      DISPOSITION
       The judgment is affirmed. Costs on appeal are awarded to Martech. (Cal. Rules
of Court, rule 8.278(a).

                                                        NICHOLSON             , Acting P. J.

We concur:


      MAURO                 , J.


      DUARTE                , J.


1       Labor Code section 98.2, subdivision (c), reads: “If the party seeking review by
filing an appeal to the superior court is unsuccessful in the appeal, the court shall
determine the costs and reasonable attorney's fees incurred by the other parties to the
appeal, and assess that amount as a cost upon the party filing the appeal. An employee is
successful if the court awards an amount greater than zero.”

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