                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 31 2014

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



                            FOR THE NINTH CIRCUIT

SUSAN J. PEABODY,                                No. 10-56846

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

TIME WARNER CABLE ENTERPRISES                    MEMORANDUM*
LLC,
        Defendant - Appellee.

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

                 Argued July 11, 2012, Resubmitted July 31, 2014
                              Pasadena, California

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

       On August 17, 2012, we (1) filed a memorandum disposition affirming the

district court’s grant of summary judgment in favor of Time Warner Cable, Inc.

(TWC) on Peabody’s claim that TWC retroactively reduced her compensation; and

(2) certified the following question to the California Supreme Court: “To satisfy


        *
             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 the District of Alaska, sitting by designation.
California’s compensation requirements, whether an employer can average an

employee’s commission payments over certain pay periods when it is equitable and

reasonable for the employer to do so.” Peabody v. Time Warner Cable, Inc., 689

F.3d 1134, 1135 (9th Cir. 2012).

      On July 14, 2014, the California Supreme Court responded “that an

employer satisfies the minimum earnings prong of the commissioned employee

exemption only in those periods in which it actually pays the required minimum

earnings. An employer may not satisfy the prong by reassigning wages from a

different pay period.” Peabody v. Time Warner Cable, Inc., No. 2S04804, 2014

WL 3397770 at *4, — P.3d — (Cal. July 14, 2014).

      Therefore, we REVERSE the district court’s grant of summary judgment in

favor of TWC on the remaining four issues1 on appeal and REMAND for




      1
          These issues are:

      1) whether Peabody qualified for the commissions paid exemption of
      Section 3(D) of Wage Order 4–2001; 2) whether Peabody was owed
      additional minimum wage payments under Wage Order 4–2001 4(B);
      3) whether Time Warner Cable, Inc. (“TWC”) was exempt from
      providing wage statements under California Labor Code Section
      226(a); and 4) whether TWC owes Peabody any late wage payments
      under California Labor Code Section 203.

Peabody, 689 F.3d at 1135.

                                       -2-
reconsideration consistent with the foregoing interpretation of California law. Each

party shall bear its own costs.




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