Huy Nguyen, individually and on behalf of all others similarly situated v. Wells Fargo Bank, N.a.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HUY NGUYEN, individually and on behalf
of all others similarly situated,
Plaintiff-Appellee,
v.
WELLS FARGO BANK, N.A.,
Defendant-Appellant.
No. 17-17510
D.C. No. 3:15-cv-05239-JCS
MEMORANDUM*
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.
FILED
JUN 13 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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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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