NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS SEP 5 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

BILL TAYLOR, No. 18-55053

Plaintiff-Appellant, D.C. No. 2:16-cv-01915-CJC-JPR v.

COX COMMUNICATIONS MEMORANDUM*

CALIFORNIA, LLC, Erroneously Sued As: CoxCom, Inc., and CoxCom, LLC; COX

COMMUNICATIONS, INC.; DOES, 1

through 50 inclusive,

Defendants-Appellees.

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

Argued and Submitted August 16, 2019 Pasadena, California

Before: CALLAHAN and CHRISTEN, Circuit Judges, and CHEN,** District Judge.

Plaintiff-appellant, Bill Taylor (“Taylor”), represents a certified class of field

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Edward M. Chen, United States District Judge for the Northern District of California, sitting by designation. technicians employed by defendant-appellee, Cox Communications California,

LLC (“Cox”), in this diversity wage-and-hour class action. Cox field technicians

travel in company vehicles to customer residences to install and repair Cox’s

television and internet services. Some Cox field technicians participate in an

employee program known as Home Start, which permits them to keep their

company vehicles at home during non-working hours and commute directly to

their field assignments from home, rather than from the company depot.

According to Taylor, Cox violated California law by not compensating its Home

Start field technicians for their time spent commuting home from their last field

assignments in company vehicles. The district court granted summary judgment in

favor of Cox, which Taylor now appeals. We have jurisdiction under 28 U.S.C.

§ 1291 and affirm the district court’s summary judgment order.

Because the parties are familiar with the facts of this case, we do not discuss

them at length here. Taylor alleges that the time Cox’s Home Start field

technicians spend commuting home in their company vehicles qualifies as

compensable “hours worked” under California law. To prevail on this claim,

Taylor must demonstrate either that, during this commute time, (1) the field

technicians were “subject to the control” of Cox, or (2) they were “suffered or

permitted to work.” See Morillion v. Royal Packing Co., 995 P.2d 139, 143-46

(Cal. 2000). The district court found that Taylor was unable to present a genuine

2 issue of material fact as to either claim. We agree.

First, Taylor fails to present a genuine issue of material fact as to whether

Cox’s Home Start field technicians were “subject to the control” of Cox during

their commutes home. To satisfy this element, Taylor must show that Cox

exercised a sufficient level of “control” over its field technicians during their

commute, and that Cox also required its field technicians to drive to and from

home in their company vehicles. See Alcantar v. Hobart Serv., 800 F.3d 1047,

1054-55 (9th Cir. 2015) (“[T]o prevail at trial [plaintiff] must prove not only that

Hobart’s restrictions on him during his commute in Hobart’s vehicle are such that

he is under Hobart’s control, but also that, despite Hobart’s profession that use of

its vehicles is voluntary, employees are, as a practical matter, required to commute

in Hobart’s vehicles.”); Morillion, 995 P.2d at 147 (“Time employees spend

traveling on transportation that an employer provides but does not require its

employees to use may not be compensable as ‘hours worked.’”). Here, the record

shows no genuine dispute that Cox did not require its field technicians to commute

home in company vehicles because Home Start is a voluntary program. As an

alternative to Home Start, Cox’s field technicians have the option to participate in

Office Start, which allows them to commute between home and the company depot

in their personal vehicles (time which is not compensated), and drive their

company vehicles from the depot to their work assignments for the day. Because

3 Taylor failed to present any genuine dispute as to this fact, the district court did not

err in granting summary judgment on the “subject to the control” element of his

claim.

Second, Taylor also has not shown that the district court erred in concluding

that, because Home Start participants “do not engage in any additional work-

related tasks and the transportation of tools and equipment does not add any time

to their commutes[,] . . . no reasonable juror could find that the class members here

were ‘suffered or permitted to work’ during their commutes home.” We find

Taylor’s argument that the district court erroneously relied on federal, rather than

California, law unavailing in light of Hernandez v. Pacific Bell Telephone Co., 239

Cal. Rptr. 3d 852 (Cal. Ct. App. 2018), review denied (Feb. 13, 2019), wherein the

California Court of Appeal addressed identical issues on a similar set of facts and

reached the same conclusions as the district court in this case. “In the absence of

any decision on this issue from the California Supreme Court, we are bound by . . .

the ruling of the highest state court issued to date.” Poublon v. C.H. Robinson Co.,

846 F.3d 1251, 1266 (9th Cir. 2017); see also Miller v. Cty. of Santa Cruz, 39 F.3d

1030, 1036 n.5 (9th Cir. 1994), as amended (Dec. 27, 1994) (“A state appellate

court’s announcement of a rule of law is a datum for ascertaining state law which

is not to be disregarded by a federal court unless it is convinced by other

4 persuasive data that the highest court of the state would decide otherwise.”

(citation and quotation marks omitted)).

The district court’s grant of summary judgment is AFFIRMED.

5