Frank Noori v. Vivint, Inc.

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 13, 2018
• Docket: 16-56459
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 13 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

FRANK NOORI, on behalf of himself and No. 16-56459 all others similarly situated, D.C. No. Plaintiff-Appellant, 2:16-cv-05491-PA-FFM

v. MEMORANDUM* VIVINT, INC., a foreign corporation doing business in California and DOES, 1 through 10, inclusive,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Percy Anderson, District Judge, Presiding

Argued and Submitted February 13, 2018 Pasadena, California

Before: McKEOWN and WARDLAW, Circuit Judges, and QUIST,** District Judge.

Frank Noori (“Noori”) appeals the district court’s order granting Vivint,

Inc.’s (“Vivint”) motion to dismiss for failure to state a claim. Noori argues that

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Gordon J. Quist, United States District Judge for the Western District of Michigan, sitting by designation. Vivint violated California employment laws by requesting court records regarding

Noori’s expunged conviction and then terminating him. We have jurisdiction

pursuant to 28 U.S.C. § 1291. We affirm.

California law generally prohibits employers from asking about or taking

employment actions based on expunged criminal convictions. Cal. Labor Code

§ 432.7(a)(1). That general prohibition is inapplicable, however, when an

employer is “required by law to obtain information regarding the conviction of an

applicant.” Id. § 432.7(m)(1).

The district court correctly dismissed Noori’s claims against Vivint because

Vivint was “required by law” to determine whether Noori was a registered alarm

agent before assigning him to work. California’s Alarm Company Act is clear:

“Any alarm agent employee assigned to work must carry either a temporary

application for registration or a valid registration.” Cal. Bus. & Prof. Code

§ 7598.7(a). Noori did not have a valid registration when he was scheduled to

begin work with Vivint. Although Noori had completed a temporary application

for registration, “an employee who has been convicted of a crime prior to applying

for registration shall not be issued a temporary application for registration and shall

not be assigned to work as an alarm agent until the bureau issues a permanent

registration card.” Cal. Bus. & Prof. Code § 7598.7(b). No temporary registration

shall issue when “the applicant for registration has disclosed the conviction to the

2 bureau on his or her application form . . . .” Id. Noori had disclosed the conviction

to the registration bureau on his application form, which expressly required

disclosure of expunged convictions.

Applying the plain language of the Alarm Company Act, Vivint could not

lawfully employ Noori as an alarm agent unless and until the registration bureau

issued him a permanent registration card.1 Hence, Vivint was “required by law” to

not employ Noori on his start date.2 And Vivint’s employment offer was

“contingent upon” Noori obtaining an alarm agent license. Vivint therefore did not

violate the law when it requested court records for Noori’s expunged conviction

and fired him for being “[u]nable to get licensed.”

AFFIRMED.3

1 Other provisions of the Alarm Company Act support that “conviction”—as used in the Act—includes an expunged conviction. For example, one section grants the bureau broad discretion to deny an applicant’s registration: “[A]ny action which the bureau is permitted to take following the establishment of a conviction may be taken . . . irrespective of a subsequent [expungement].” Cal. Bus. & Prof. Code § 7591.10(a)(2). Another provides that the bureau director “shall give special consideration to applicants whose convictions have been dismissed pursuant to [expungement].” Id. § 7593.16(b)(1). 2 Persons who violate the Alarm Company Act or knowingly engage an unlicensed alarm company operator are guilty of a misdemeanor and subject to criminal fines and/or imprisonment. Cal. Bus. & Prof. Code § 7592.2. 3 Noori did not appeal the dismissal of his claim for wrongful termination in violation of public policy or his claim under the Fair Credit Reporting Act so we need not address them here.