United States District Court, S.D. California
Gina BALASANYAN; Nune Nalbandian, on behalf of themselves all others similarly situated, Plaintiffs,
NORDSTROM, INC., a Washington corporation; and Does 1-100, inclusive, Defendants. Gino Maraventano; and Neesha Kurji, Plaintiffs,
Nordstrom, Inc., a Washington corporation; and Does 1-100, inclusive, Defendants.
Darcy R. Harris, Jeff D. Neiderman, Kathryn Lee Boyd, Sherli Shamtoub, Schwarcz Rimberg Boyd and Rader LLP, Los Angeles, CA, Steven M. Barnhill, Maxim Vaynerov, Barnhill & Vaynerov LLP, Beverly Hills, CA, Matthew Archbold, David Douglas Deason, Deason & Archbold, Newport Beach, CA, for Plaintiffs.
Joshua D. Levine, Julie A. Dunne, Lara K. Strauss, Litter Mendelson, San Diego, CA, Michael G. Leggieri, Littler Mendelson, P.C., Sacramento, CA, for Defendants.
ORDER GRANTING THE MOTION FOR SUMMARY JUDGMENT ON BALASANYAN'S FAIR LABOR STANDARDS ACT CLAIM AND DENYING THE MOTIONS FOR SUMMARY JUDGMENT ON ALL OTHER CLAIMS
JEFFREY T. MILLER, District Judge.
On October 8, 2012, Nordstrom, Inc. (" Nordstrom" ) filed two motions for summary judgment against two proposed class action law suits, Case No. 3:11-cv-2609 (" Balasanyan " ) and Case No. 3:10-cv-2671 (" Maraventano " ) (and together with the Balasanyan Plaintiffs, " Plaintiffs" ). The Balasanyan complaint was originally filed in Los Angeles Superior Court on April 5, 2011, then removed to federal court, and later transferred to this district on November 9, 2011, 2011 WL 5520051. The Maraventano complaint was originally filed in San Diego Superior Court, North County, in October 2010 and was removed to this court in December 2010. For the reasons stated below, the motion for summary judgment is GRANTED for Balasanyan's Fair Labor Standards Act claim, but is DENIED for all other claims.
Nordstrom's salespeople work on commission rather than per hour. Nordstrom calculates each salesperson's commissions at the end of each period and compares their commissions with the guaranteed minimum that they would have received had they been working at an hourly rate. Maraventano Motion for Summary Judgment (" MMSJ" ) at 4; Balasanyan Motion for Summary Judgment (" BMSJ" ) at 3-6. If a given employee's commissions per selling hour equaled or exceeded their guaranteed minimum, Nordstrom paid commissions. MMSJ at 4-5; BMSJ at 4-5. If their commissions did not equal or exceed the guaranteed minimum, Nordstrom paid the employee's commission plus the amount necessary to bring them to the guaranteed minimum draw rate  for all selling time. MMSJ at 4-5; BMSJ at 4-5. Selling time includes 30 minutes of daily stocking assignments as well as up to 40 minutes of pre-opening and post-closing time.  MMSJ at 4-5; BMSJ at 4-5.
Nordstrom separately paid employees an hourly rate for all non-sell time, which consists of stock assignments in excess of 30 minutes and pre-opening and post-closing assignments in excess of 40 minutes. MMSJ at 6; BMSJ at 5-6. According to Nordstrom, the average hourly salary received ranged from $10.85 to $73.39 for Balasanyan, $10.85 to $43.17 for Nalbandian, $10.85 to $35.38 for Maraventano, and $11.31 to $17.02 for Kurji. BMSJ at 9; MMSJ at 22.
The named Balasanyan Plaintiffs are both salespeople at Nordstrom stores in Los Angeles County. Balasanyan Second Amended Complaint (" BSAC" ) ¶¶ 5, 6. Plaintiffs and members of the proposed Balasanyan class are paid on commission based on net sales. The Balasanyan complaint alleges that Nordstrom has underpaid its salespeople across the country by only compensating them for time spent on stocking assignments, pre-opening, and post-closing periods through commissions earned, which they believe can only be used to compensate for commission producing activities. Id. ¶¶ 13, 14. The non-commission producing activities include performing marketing activities such as contacting customers to inform them of new product lines. Id. According to the BSAC, " [t]he combined time [Balasanyan] Plaintiffs and Class Members are required to engage in non-commission producing activities totals at least one (1) hour and thirty (30) minutes per work shift" for which there is no compensation. Id. ¶ 16. The BSAC states six causes of action: (1) Nonpayment of Wages under Cal. Labor Code § 1194; (2) Nonpayment of Wages under 29 U.S.C. § 206 (the Fair Labor Standards Act, or " FLSA" ); (3) Breach of Contract; (4) Declaratory Relief under Cal. Civ.Code Proc. § 1060; (5) Unfair Business Practices under Cal Bus. & Prof. Code § 17200; and (6) a PAGA claim under Cal. Labor Code § 2699.
Unlike Balasanyan, the proposed Maraventano class only consists of California employees. Plaintiff Maraventano was an employee of Nordstrom in San Diego County and Plaintiff Kurji was an employee in Orange County. The Maraventano First Amended Complaint (" MFAC" ) alleges that Nordstrom did not pay employees for " stocking time ... unless they failed to meet their minimum commission draw." MFAC ¶ 21. It states four causes of action: (1) Violation of Cal. Labor Code § 1197; (2) Violation of Cal. Labor Code §§ 201-203; (3) Willful violation of Cal. Labor Code § 226; (4) Unfair Business Practices under Cal. Bus. & Prof. Code § 17200. Unlike the Balasanyan Plaintiffs, the Maraventano Plaintiffs did not assert a FLSA claim.
II. LEGAL STANDARD
A moving party is entitled to summary judgment where " there is no genuine issue as to any material fact ...." Fed.R.Civ.P. 56(c); Prison Legal News v. Lehman, 397 F.3d 692, 698 (9th Cir.2005). The court must examine the evidence in the light most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962). While Rule 56 contains " no express or implied requirement ... that the moving party support its motion with affidavits or other similar materials negating the opponent's claim,"
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), " the moving party bears the burden of proof at trial, [and] it must come forward with evidence which would entitle it to a directed verdict if the evidence were uncontroverted at trial.' " Houghton v. South, 965 F.2d 1532, 1536 (9th Cir.1992).
If the moving party meets its initial burden of production, the burden shifts to the non-moving party to go beyond the pleadings by citing materials in the record to show a genuine issue for trial. Celotex, 477 U.S. at 324, 106 S.Ct. 2548 (citation omitted). The opposing party also may not rely solely on conclusory allegations unsupported by factual data. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989). Nevertheless, the ultimate burden of persuasion on the motion remains with the moving party. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir.2000). Doubt as to the ...