Frank Gallardo, an individual on behalf of himself v. AIG DOMESTIC CLAIMS, INC., a Delaware corporation

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANK GALLARDO, an individual on
behalf of himself, and on behalf of all
persons similarly situated,
Plaintiff - Appellant,
v.
AIG DOMESTIC CLAIMS, INC., a
Delaware corporation; CHARTIS
CLAIMS, INC., a Delaware corporation,
Defendants - Appellees.
No. 13-56358
D.C. No. 8:12-cv-01107-CJC-AN
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Submitted October 22, 2015**
Pasadena, California
FILED
OCT 28 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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Before: PREGERSON and TROTT, Circuit Judges and STAFFORD,*** Senior
District Judge.
Appellant Frank Gallardo (“Gallardo”) appeals the district court’s grant of
summary judgment in favor of appellee AIG Domestic Claims (“AIG Claims”).1
Specifically, Gallardo appeals (1) the district court’s finding that Gallardo—a
hearing representative for AIG Claims—was properly classified as an exempt
administrative employee; and (2) the district court’s refusal to admit into evidence
Gallardo’s expert report. We have jurisdiction pursuant to 28 U.S.C. § 1291, and
we affirm.
I. Gallardo Is An Exempt Administrative Employee
We review grants of summary judgment de novo. Bothell v. Phase Metrics,
Inc., 299 F.3d 1120, 1124 (9th Cir. 2002). What Gallardo did as an employee is a
question of fact we review for clear error, but whether Gallardo’s activities
exempted him from overtime benefits is a question of law we review de novo. Id.
We must determine if the evidence, viewed in the light most favorable to the
nonmoving party, raises any genuine issues of material fact. Id. at 1124. Here, the
*** The Honorable William H. Stafford, Jr., Senior District Judge for the
U.S. District Court for the Northern District of Florida, sitting by designation.
1 AIG Domestic Claims, Inc., a subsidiary of American International Group,
changed its corporate name to Chartis in July 2009.
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district court properly found that there were no genuine issues of material fact, nor
did the court err in holding that AIG Claims had established as a matter of law that
Gallardo was properly classified as an exempt administrative employee.
Gallardo’s job duties meet all five elements required to satisfy the test for
administrative exemption. See Campbell v. PricewaterhouseCoopers, LLP, 642
F.3d 820, 831 (9th Cir. 2011) (citing Cal. Code Regs. tit. 8, § 11040(1)(A)(2)
(codified version of Wage Order No. 4-2001, § (1)(A)(2))).2 First, Gallardo
performed work directly related to AIG’s management policies or business
operations, i.e., his work was qualitatively administrative and of substantial
importance to the company. See § 11040(1)(A)(2)(a)(I); Harris, 53 Cal. 4th at
181–82. Here, Gallardo represented AIG Claims in hearings before the Workers’
Compensation Appeals Board; conducted depositions of witnesses, physicians, and
workers; provided recommendations regarding the value of claims, which AIG
Claims generally followed; and negotiated settlements. See Harris 53 Cal. 4th at
189.
2 Wage Order 4-2001 should be understood in light of FLSA regulations
effective as of the date of the order: 29 C.F.R. Sections 541.201–205,
541.207–208, 541.210, and 541.215. Harris v. Superior Court, 53 Cal. 4th 170,
180 (2011). However, more recent regulations are also instructive because newer
regulations “were intended to be consistent with the old regulations.” Id. at 189
n.8.
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Second, Gallardo customarily and regularly exercised discretion and
independent judgment. See § 11040(1)(A)(2)(b). For each matter, Gallardo
personally decided how best to present the facts and to frame the issues; how best
to present a defense; and how best to respond to questions posed by the judge
during hearings. He independently reviewed the case file to determine the type of
injury at issue and what admission of facts he might want to solicit from the
witness or injured party during depositions. He used preformatted templates in
taking depositions and he was given authority for settlement ranges, but none of
these diminishes his independent judgment or discretion. See 29 C.F.R. §
541.207(e)(1) (2000).
Third, Gallardo did specialized work “under only general supervision.” See
§ 11040(1)(A)(2)(d). Although Gallardo contends that he needed approval for
virtually every decision he made, the undispusted facts show that Gallardo spent
most of his time working independently with little day-to-day oversight. Overall,
he spent the majority of his time conducting independent case analysis, making
recommendations to his superiors, or appearing alone at settlement conferences,
trials, and arbitration hearings. He decided how to present issues he argued at
hearings, how to frame depositions, and how best to reach settlement within the
authority given to him. Although Gallardo was required to report to a claims
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adjuster, the adjuster did not dictate how Gallardo was to conduct himself during
hearings. The majority of Gallardo’s work provided significant freedom and
latitude to act.
Gallardo does not contest the remaining two elements of the administrative
test. See §§ 11040(1)(A)(2)(f), (g). Because there are no genuine issues of
material fact as to any of the elements regarding the administrative exemption, we
affirm the district court’s grant of summary judgment to AIG Claims.
II. The District Court Did Not Abuse Its Discretion in Excluding
Gallardo’s Expert Report
The district court’s decision regarding the admissibility of expert testimony
is reviewed for an abuse of discretion. See United States v. Sepulveda-Barraza,
645 F.3d 1066, 1070 (9th Cir. 2011). We use a two-step inquiry to determine if
such an abuse has occurred: (1) we determine de novo if the district court used the
correct legal rule when excluding the expert testimony; and (2) if so, whether the
court’s application of the legal standard was “illogical, implausible, or without
support in inferences that may be drawn from facts in the record.” United States v.
Redlightning, 624 F.3d 1090, 1110 (9th Cir. 2010).
Here, the district court identified the correct legal standard for determining
whether an expert’s testimony is admissible, i.e., Fed. R. Evid. 702. In addition,
we cannot say that the district court’s application of this standard was without
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support from the facts in the record. The undisputed facts do not require expert
analysis. Moreover, the expert provided a bare legal conclusion that was properly
excluded by the district court. See Aguilar v. Int’l Longshoremen’s Union Local
No. 10, 966 F.2d 443, 447 (9th Cir. 1992). The district court had sufficient support
from the record to draw the inference that the expert testimony was not helpful to
the trier of fact. Thus, the district court did not abuse its discretion in excluding
the expert testimony.
AFFIRMED
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