McDaniel-Guthrie v. Mechanical Analysis/Repair CA3

Filed 6/10/14 McDaniel-Guthrie v. Mechanical Analysis/Repair CA3 NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin) ----

ANGIE M. MCDANIEL-GUTHRIE, C071425

Plaintiff and Appellant, (Super. Ct. No. 39-2012-00277983-CU-JR- v. STK)

MECHANICAL ANALYSIS/REPAIR, INC., ORDER MODIFYING OPINION AND DENYING Defendant and Respondent. REHEARING [NO CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the opinion filed herein on May 22, 2014, be modified as follows:

1. In the paragraph on page 1, omit the citation to Labor Code section 201 and replace it with a citation to Labor Code section 202.

1

2. Omit the second paragraph on page 2 and replace it with the following paragraph:

Plaintiff’s right to commissions is governed by the terms of her commission agreement with Martech. (Nein v. HostPro, Inc. (2009) 174 Cal.App.4th 833, 853.) At trial, the parties stipulated the commission agreement granted plaintiff her commissions on three conditions: first, she was entitled to receive 20 percent of the final gross profit for the accounts of the customers she secured as her commission; second, her commission was payable on the first payroll of the third month after the customer invoice was created; and third, her commission was payable on paid invoices only. Plaintiff was not entitled to receive commissions until all of those conditions had been satisfied.

3. Omit the last paragraph on page 2 and replace it with the following:

The express language of the commission agreement contradicts plaintiff’s understanding, and it governs here. (Nein v. HostPro, Inc., supra, 174 Cal.App.4th at p. 853.) Plaintiff’s receipt of commissions was conditioned on Martech determining final gross profit from the invoice, receiving payment on the invoice from the customer, and paying the commissions on a set schedule. Except for a commission on an ongoing contract, Martech paid plaintiff all of her earned commissions according to these conditions. Plaintiff admits she was not entitled to commissions until at least the customer paid its invoice, but she contends the condition she receive payment of her commission according to the set schedule (payment on the first payroll of the third month after the invoice was created) violates Labor Code section 202’s requirement to pay all wages on the last day of employment and subjects Martech to wait penalties under Labor Code section 203. In this instance, we disagree with her contention.