FILED

NOT FOR PUBLICATION FEB 01 2013

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

WILLIAM MARR, No. 11-16308

Plaintiff - Appellant, D.C. No. 3:09-cv-05978-WHA

v.

MEMORANDUM *

BANK OF AMERICA, NA,

Defendant - Appellee.

Appeal from the United States District Court for the Northern District of California William Alsup, District Judge, Presiding

Argued and Submitted January 15, 2013 San Francisco, California

Before: WALLACE, FARRIS, and BYBEE, Circuit Judges.

William Marr appeals from the district court’s grant of summary judgment

to Bank of America on his claim under § 221 of the California Labor Code and his

derivative claim under § 17200 of the California Business and Professions Code.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. We have jurisdiction under 28 U.S.C. § 1291, see James v. Price Stern Sloan, Inc.,

283 F.3d 1064, 1065–67 (9th Cir. 2002), and we affirm.

The California courts have held that it is illegal under § 221 and other state

statutes and regulations for employers to take deductions for general business

expenses from commissions that are based on an individual employee’s sales. See

Kerr’s Catering Serv. v. Dep’t of Indus. Relations, 369 P.2d 20, 24–27 (Cal. 1962);

Hudgins v. Neiman Marcus Grp., Inc., 41 Cal. Rptr. 2d 46, 51–55 (Ct. App. 1995);

Quillian v. Lion Oil Co., 157 Cal. Rptr. 740, 742–45 (Ct. App. 1979). Deductions

from such commissions are permitted, however, when (1) the deductions are tied to

the employee’s sales rather than general business expenses, and (2) the employee

agrees to the deductions by contract. See Koehl v. Verio, Inc., 48 Cal. Rptr. 3d

749, 760–67 (Ct. App. 2006); Steinhebel v. L.A. Times Commc’ns, LLC, 24 Cal.

Rptr. 3d 351, 356–62 (Ct. App. 2005); Prudential Ins. Co. of Am. v. Fromberg, 49

Cal. Rptr. 475, 476–79 (Ct. App. 1966). The California Supreme Court’s 2008

decision in Prachasaisoradej v. Ralphs Grocery Co., 165 P.3d 133 (Cal. 2007), did

not alter this framework.

The deductions taken in calculating Marr’s commissions were tied to his

specific sales; they were not deductions taken for the types of general business

expenses deemed troublesome by the California courts. Marr contractually agreed

2 that the deductions would be taken in calculating his commissions. Under

California law, the district court was thus correct to grant summary judgment in

Bank of America’s favor on Marr’s claim under § 221. Because Marr’s claim

under § 17200, as relevant for this appeal, was derivative of his claim under § 221,

the district court was also correct in granting summary judgment on the § 17200

claim to the extent appealed.

AFFIRMED.

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FILED

Marr v. Bank of America, 11-16308 FEB 01 2013

MOLLY C. DWYER, CLERK

WALLACE, Senior Circuit Judge, dissenting: U .S. C O U R T OF APPE ALS

Although I would join the majority on the merits if I could, I respectfully

dissent from the majority’s jurisdiction analysis. It is clear to me that this court lacks

jurisdiction to hear this appeal.

Generally, we may only hear appeals from final decisions of the district court.

28 U.S.C. § 1291. Appellant Marr purports in his Notice of Appeal to take this appeal

from the district court’s March 8, 2011 order granting in part and denying in part cross

motions for partial summary judgment. That order is not a final judgment as it plainly

contemplates that the case remains before the district court and expressly states that

the “action will proceed” on those claims as to which the district court had yet to enter

judgment. See Digital Equipment Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867

(1994); Way v. Cnty. of Ventura, 348 F.3d 808, 810 (9th Cir. 2003).

Marr points to the district court’s April 27, 2011 order, which granted the

parties’ joint stipulation regarding dismissal and entry of judgment, as providing

jurisdiction for this appeal. Even disregarding that Marr’s Notice of Appeal was from

the March 8 order and not the April 27 order, I am still not convinced that jurisdiction

is proper here.

This court explained in Concha v. London, 62 F.3d 1493 (9th Cir. 1995), that

1 a plaintiff may not “appeal from a joint stipulation to voluntary dismissal, entered

unconditionally by the court pursuant to a settlement agreement.” Id. at 1507; see also

Plasterers Local Union No. 346 v. Wyland Enters. Inc., 819 F.2d 217, 218-19 (9th Cir.

1987); Seidman v. City of Beverly Hills, 785 F.2d 1447, 1448 (9th Cir. 1986).

Although Concha unfortunately held that this court may exercise jurisdiction over a

voluntary dismissal pursuant to a stipulation even where that stipulation did not make

clear that dismissal was with prejudice, Concha emphasized that jurisdiction in such

a situation is appropriate “where the plaintiff is not acting pursuant to a settlement

agreement.” 62 F.3d at 1507 (emphasis added).

Here, the parties did not merely stipulate to voluntary dismissal. The district

court explained that the parties “ostensibly settled” the case. Thus, as the district court

warned the parties, Concha’s bright-line rule as to settlement agreements deprives this

court of jurisdiction. No case has been cited supporting the notion that the parties’

subjective intent as to the effect of a settlement agreement can provide jurisdiction for

appeal. I thus conclude that under Concha, our court lacks jurisdiction to hear this

appeal.

Seeking to avoid Concha, Marr contends that our court’s decision in James v.

Price Stern Sloan, Inc., 283 F.3d 1064 (9th Cir. 2002), provides us with jurisdiction.

In James, we held that “when a party that has suffered an adverse partial judgment

2 subsequently dismisses remaining claims without prejudice with the approval of the

district court, and the record reveals no evidence of intent to manipulate our appellate

jurisdiction, the judgment entered after the district court grants the motion to dismiss

is final and appealable under 28 U.S.C. § 1291.” Id. at 1070. Because Marr seeks

review of a partial summary judgment following a “voluntary dismissal,” and because

the record reveals no “intent to manipulate” this court’s appellate jurisdiction, Marr

contends that jurisdiction is appropriate here.

While I think it is an open issue whether the parties attempted to “manipulate”

our jurisdiction through their settlement agreement—indeed, the district court hinted

as much in its April 27 order—James did not involve a voluntary dismissal pursuant

to a settlement agreement. Moreover, James does not attempt to distinguish Concha’s

language that voluntary dismissal pursuant to a settlement agreement does not provide

this court jurisdiction. To hold there is jurisdiction under James, the majority must

stretch the holding of James—a case that already stretched the traditional limits of

federal jurisdiction—to avoid Concha. Such a reading of James would amount to one

three-judge panel overruling an earlier three-judge panel—and that is not allowed. I

thus conclude that James cannot supply jurisdiction here. I would therefore dismiss

this appeal and not reach the merits.

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