                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUN 13 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

HUY NGUYEN, individually and on behalf          No.    17-17510
of all others similarly situated,
                                                D.C. No. 3:15-cv-05239-JCS
                Plaintiff-Appellee,

 v.                                             MEMORANDUM*

WELLS FARGO BANK, N.A.,

                Defendant-Appellant.

                   Appeal from the United States District Court
                      for the Northern District of California
                   Joseph C. Spero, Magistrate Judge, Presiding

                       Argued and Submitted April 19, 2019
                            San Francisco, California

Before: HAWKINS and M. SMITH, Circuit Judges, and LYNN,** District Judge.

      Wells Fargo appeals the grant of class certification on Huy Nguyen’s expense

reimbursement and late payment claims, both brought pursuant to the California

Labor Code. We have jurisdiction under 28 U.S.C. § 1292 and affirm.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Barbara M. G. Lynn, Chief United States District
Judge for the Northern District of Texas, sitting by designation.
      1. The court applied the correct legal standard in certifying a class to pursue

Nguyen’s expense reimbursement claim under California Labor Code Section 2802.

The court properly considered and applied the relevant factors set forth in Federal

Rule of Civil Procedure 23 and applied the correct standard of liability under Section

2802. See CAL. LAB. CODE § 2802(a); O’Hara v. Teamsters Union Local No.

856, 151 F.3d 1152, 1157 (9th Cir. 1998). Contrary to Wells Fargo’s contention, the

court did not read out of Section 2802 the requirement that an expense be necessarily

incurred in the discharge of an employee’s duties; it properly found that liability

“turn[ed] on whether the marking expenses at issue were reasonably necessary to the

discharge of the [employees’] duties.” Thus, we review for abuse of discretion.

O’Connor v. Uber Techs., Inc., 904 F.3d 1087, 1094 (9th Cir. 2018).

      There was no abuse of discretion in concluding that the claim was amendable

to class treatment. The court did not rely on an improper factor, omit a substantial

factor, or commit a clear error in judgment or its findings of fact.          See id.

Additionally, there was no abuse of discretion in declining to apply principles of

comity to follow Buchanan v. HomeServices Lending, LLC, a non-binding, factually

distinguishable case involving different parties. See No. 11cv0922 L(MDD), 2013

WL 1788579, at *1 (S.D. Cal. Apr. 25, 2013).

      2. The court did not err in certifying a class to pursue the late payment of

commissions claim under California Labor Code Section 204. The court properly


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considered and applied the applicable factors under Rule 23 and the correct legal

standard for liability for such a claim. Finally, the court did not commit clear error

in making its findings of fact or otherwise abuse its discretion in concluding that this

claim was amenable to class treatment.

      AFFIRMED.




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