Jimmy Kuang v. Bel Air Mart, a California corporation and DOES, 1 to 50, inclusive

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JIMMY KUANG,
Plaintiff-Appellant,
v.
BEL AIR MART, a California corporation
and DOES, 1 to 50, inclusive,
Defendants-Appellees.
No. 16-16956
D.C. No.
2:15-cv-00160-JAM-EFB
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Argued and Submitted December 4, 2017
San Francisco, California
Before: M. SMITH and IKUTA, Circuit Judges, and BATES,** Senior District
Judge.
Jimmy Kuang appeals the district court’s order granting Bel Air Mart’s
motion for summary judgment. We have jurisdiction under 28 U.S.C. § 1291.
FILED
DEC 08 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable John D. Bates, Senior United States District Judge for
the District of Columbia, sitting by designation.

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Even if Kuang’s declaration and attachments were admissible, the district
court did not err in dismissing Kuang’s claim for breach of the Collective
Bargaining Agreement (CBA), because Kuang failed to exhaust the grievance
procedures required by the CBA. See Vaca v. Sipes, 386 U.S. 171, 184 (1967).
Because Kuang informed the district court, both orally and in his written
submissions, that he waived the argument that his failure to exhaust was excused
due to the union’s breach of its duty of fair representation, this argument is waived
on appeal and we do not reach it. See Blaisdell v. Frappiea, 729 F.3d 1237,
1241–42 (9th Cir. 2013). Because Kuang waived his hybrid claim, we do not
reach his remaining arguments.
AFFIRMED.
2

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