Alma Yadira; v. JESUS FERNANDEZ, DBA Flamingo Nightclub, DBA Maria’s Nightclub, DBA Tony’s Pool Hall

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALMA YADIRA; et al.,
Plaintiffs - Appellants,
v.
JESUS FERNANDEZ, DBA Flamingo
Nightclub, DBA Maria’s Nightclub, DBA
Tony’s Pool Hall,
Defendant - Appellee.
No. 13-17083
D.C. Nos. 5:08-cv-05721-RMW
5:08-cv-05722-RMW
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Ronald M. Whyte, Senior District Judge, Presiding
Submitted October 21, 2015**
San Francisco, California
Before: BLACK,*** CLIFTON, and N.R. SMITH, Circuit Judges.
FILED
OCT 29 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).
*** The Honorable Susan H. Black, Senior Circuit Judge for the U.S.
Court of Appeals for the Eleventh Circuit, sitting by designation.

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Florencia Mondragon appeals the district court’s judgment that Mondragon
was an exempt employee, not entitled to recover overtime wages from her
employer. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
California law generally entitles employees to overtime pay for “[a]ny work
in excess of eight hours in one workday and any work in excess of 40 hours in any
one workweek,” Cal. Lab. Code § 510(a), unless the employee qualifies for a
statutory exemption from the state’s overtime laws, § 515. However, Wage Order
No. 5-2001 (Wage Order 5) exempts from overtime compensation “persons
employed in administrative, executive, or professional capacities.” Cal. Code
Regs. tit. 8 § 11050(1)(B). To meet the overtime exception for employment in an
executive capacity, an employee must be “primarily engaged in duties which meet
the test of the exemption.” § 11050(1)(B)(1)(e). “Primarily” engaged “means
more than one-half [of] the employee’s work time” is spent on exempt duties.
§ 11050(2)(O).
California law requires courts to “consider, first and foremost, how the
employee actually spends his or her time.” Ramirez v. Yosemite Water Co., 978
P.2d 2, 13 (Cal. 1999). California law does not require an employer to “literally
count the number of hours the employee spent on the exempt duties.” Although
many California cases interpreting the “primarily engaged in” requirement do
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focus on the actual allocation of time and counting of hours, see, e.g., Combs v.
Skyriver Commc’ns, Inc., 72 Cal. Rptr. 3d 171, 190 (Ct. App. 2008), not all cases
have found it necessary to require such a detailed hour counting exercise,
especially when an employer “set[s] forth a representative sample of the job duties
. . . [consisting of] an accurate reflection of the work [the employee] actually
performed,” In re United Parcel Serv. Wage & Hour Cases, 118 Cal. Rptr. 3d 834,
846 (Ct. App. 2010).
In reviewing the judgment, we review “the district court’s findings of fact
for clear error.” Price v. U.S. Navy, 39 F.3d 1011, 1021 (9th Cir. 1994).
Therefore, we review the district court’s factual finding that Mondragon was an
exempt employee for clear error. Nordquist v. McGraw-Hill Broad. Co., Inc., 38
Cal. Rptr. 2d 221, 224-25 (Ct. App. 1995).
The district court did not clearly err in determining that Mondragon was
primarily engaged in exempt work, based on the evidence presented in the bench
trial. Witnesses testified that Mondragon’s work tasks and responsibilities were
nearly all exempt under Wage Order 5. In contrast, hardly any of Mondragon’s
work tasks and responsibilities were non-exempt. Evidence further supported the
determination that “quantitatively, Mondragon[] spent more than 50% of her time
performing managerial duties.”
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Defendant-Appellee’s Motion to Strike Appellant’s Opening Brief and
Excerpts of Record is denied.
AFFIRMED.
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