                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 17 2010

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




                            FOR THE NINTH CIRCUIT



CARLOS VILLACRES, individually and               No. 09-55864
on behalf of other members of the general
public similarly situated,                       D.C. No. 2:07-cv-05327-VAP-OP

              Plaintiff - Appellant,
                                                 MEMORANDUM *
  v.

ABM INDUSTRIES INCORPORATED, a
Delaware corporation; et al.,

              Defendants - Appellees.



                   Appeal from the United States District Court
                       for the Central District of California
                   Virginia A. Phillips, District Judge, Presiding

                             Submitted June 10, 2010 **
                               Pasadena, California

Before: D.W. NELSON and GOULD, Circuit Judges, and GWIN, District Judge.***



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
            The Honorable James S. Gwin, United States District Judge for the
Northern District of Ohio, sitting by designation.
       Carlos Villacres appeals the district court’s order denying his motion for

class certification and granting the motion for summary judgment brought by

Defendants ABM Industries, et al. We have jurisdiction under 28 U.S.C. § 1291,

and we affirm.

       “A grant of summary judgment is reviewed de novo.” In re Apple Computer

Sec. Litig., 886 F.2d 1109, 1112 (9th Cir. 1989). The overall standard of review

for a district court’s class certification decision is abuse of discretion, but if the

district court’s determination is premised on a legal error, this court will find a per

se abuse of discretion. Yokoyama v. Midland Nat’l Life Ins. Co., 594 F.3d 1087,

1090–91 (9th Cir. 2010). The district court’s determination of questions of law are

accorded no deference and reviewed de novo. Id. at 1091.

       The relief set forth at section 226(e) of the California Labor Code is

available to “[a]n employee suffering injury as a result of a knowing and

intentional failure by an employer to comply with” section 226(a) of that code,

which governs the information that must be provided on pay stubs. Cal. Labor

Code §§ 226(a), (e). Villacres conceded in his deposition that he experienced no

harm as a result of his employer’s alleged violations of section 226(a), and that the

alleged violations had no consequences. Nor did he show that members of his



                                             2
proposed class experienced harm or other consequences due to any allegedly

improper pay stubs.

      Villacres argues that violations of section 226(a) in and of themselves are

injuries sufficient to make section 226(e) relief available to him and his proposed

class. This is not how California courts typically have defined “injury.” See

Steketee v. Lintz, Williams & Rothberg, 38 Cal. 3d 46, 54 (1985) (“‘Wrongful act’

and ‘injury’ are not synonymous. The word ‘injury’ signifies both the negligent

cause and the damaging effect of the alleged wrongful act and not the act itself.”)

(citations omitted); Lueter v. California, 115 Cal. Rptr. 2d 68, 81 (Cal. Ct. App.

2002) (“Although the words ‘injury’ and ‘damage’ often are used interchangeably,

a distinction may be made. ‘Injury’ refers to the fact of harm suffered by the

plaintiff due to the defendant’s conduct. ‘Damages’ refers to the monetary sum

that the plaintiff may be awarded as compensation for injury.”). We have no

reason to believe that the California Supreme Court would interpret section 226(e)

differently. The district court did not err when it held that section 226(e) relief was

unavailable to Villacres and his proposed class.

      AFFIRMED.




                                           3
