Jose Angel Ramirez; v. XPO CARTAGE, INC., FKA Pacer Cartage, Inc.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE ANGEL RAMIREZ; et al.,
Plaintiffs-Appellees,
v.
XPO CARTAGE, INC., FKA Pacer Cartage,
Inc.,
Defendant-Appellant.
No. 17-55848
D.C. Nos.
2:15-cv-03830-WDK-AGR
2:15-cv-06059-WDK-AGR
2:15-cv-06062-WDK-AGR
2:15-cv-06064-WDK-AGR
2:15-cv-06065-WDK-AGR
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
William D. Keller, District Judge, Presiding
Submitted February 15, 2019**
Pasadena, California
Before: CALLAHAN and OWENS, Circuit Judges, and KORMAN,*** District
Judge.
XPO Cartage, Inc., formerly known as Pacer Cartage, Inc. (“Pacer”), appeals
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
FILED
FEB 20 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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from the district court’s judgment, after a four-day bench trial, awarding damages
in favor of truck drivers Jose Ramirez, Jose Alba, Jose Peraza, Mario Alba, and
Mauricio Rodriguez (“the Drivers”), who alleged that Pacer misclassified them as
independent contractors instead of employees. As the parties are familiar with the
facts, we do not recount them here. We decline to reach the sole issue raised on
appeal due to waiver and affirm the district court judgment.
Pacer presents a single issue on appeal: Whether California Labor Code
section 2802 is preempted by the federal Truth in Leasing (“TIL”) regulations, 49
C.F.R. § 376.12(e)-(j). Pacer asserts that the Drivers, even as employees, are not
entitled to damages under section 2802, which mandates that employers reimburse
employees “for all necessary expenditures” incurred by employees in the discharge
of their duties. Cal. Lab. Code § 2802(a). Pacer argues that the TIL regulations
guarantee a zone of “free play” where motor carriers and owner-operator truck
drivers may decide how to allocate costs between them without any regulatory
interference. Thus, according to Pacer, section 2802 and the TIL regulations
unavoidably conflict.
“As a general rule, an appellate court will not hear an issue raised for the
first time on appeal.” Whittaker Corp. v. Execuair Corp., 953 F.2d 510, 515 (9th
Cir. 1992). Although there is no “bright line rule” to determine whether an issue
was properly raised below, “[a] workable standard . . . is that the argument must be

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raised sufficiently for the trial court to rule on it.” Id. (citation omitted).
Here, Pacer did not sufficiently raise the issue before the district court.
Pacer mentioned the possibility of the TIL regulations preempting section 2802 in
one sentence in a brief early in the litigation, and the district court copied this
sentence in a pre-trial conference order summarizing Pacer’s defenses. But Pacer
never raised the issue again, even when the district court repeatedly pressed Pacer
to explain its preemption arguments and requested that Pacer address whether the
Drivers were entitled to reimbursement under section 2802. See Foti v. City of
Menlo Park, 146 F.3d 629, 637-38 (9th Cir. 1998) (concluding that an issue was
waived when a party “failed to present complete arguments” after the court “noted
that it needed fuller explanations”), amended on denial of reh’g (July 29, 1998).
Thus, Pacer “effectively abandoned” the issue. Walsh v. Nev. Dep’t of Human
Res., 471 F.3d 1033, 1037 (9th Cir. 2006) (“Without any ‘overture to the district
court to suggest that [the party] had a continuing interest in pursuing [the claim] . .
. the district court had no reason to consider the contention . . . .’” (citation
omitted)).
Pacer argues that the TIL regulations were discussed during the trial, but
these references to the regulations concerned the separate issue of whether the
Drivers were independent contractors or employees under California common law.
On appeal, Pacer does not challenge the district court’s conclusion that the Drivers

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are employees. See Moreno Roofing Co. v. Nagle, 99 F.3d 340, 343 (9th Cir.
1996) (determining that an issue was waived, even though the party referenced the
relevant statutory provision before the district court, because the party made a
different argument based on the provision on appeal).1
AFFIRMED.
1 The Drivers’ motion to dismiss the appeal (Dkt. Nos. 32 and 34) is
now moot.

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