Nein v. HostPro, Inc., 174 Cal. App. 4th 833 (2009)

Randy Nein was employed by HostPro as a salesperson. In December 2000, he approached AT&T and suggested that HostPro provide web-hosting services to some of AT&T’s business customers. The transaction was still being negotiated a year later when Nein’s employment was terminated. He filed this lawsuit to recover commissions associated with the AT&T transaction, which was completed shortly after Nein’s termination. The trial court granted summary judgment to HostPro on the ground that Nein was not a licensed business opportunity broker and because his termination cut off his right to receive any additional commission payments under the plain language of the written employment agreement. The Court of Appeal affirmed summary judgment on the second but not the first ground, holding that the employment agreement clearly provided that Nein would “be eligible for commission pay…so long as [he] remains employed with the Company as a Sales Representative.” Accordingly, the Court affirmed dismissal of Nein’s claims for breach of contract, breach of the implied covenant of good faith and fair dealing, violation of Labor Code §§ 2926, 206 and the Unfair Competition Law. Finally, the Court affirmed an award of attorney’s fees in favor of HostPro.