Johnny McFarland v. Guardsmark, LLC

Filing 920091209


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FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JOHNNY MCFARLAND, on behalf of himself and all others similarly situated, Plaintiff-Appellant, v. GUARDSMARK, LLC, Defendant-Appellee. No. 08-16953 D.C. No. 3:07-cv-03953-PJH ORDER Appeal from the United States District Court for the Northern District of California Phyllis J. Hamilton, District Judge, Presiding Submitted November 6, 2009* San Francisco, California Filed December 9, 2009 Before: Procter Hug, Jr., Pamela Ann Rymer and M. Margaret McKeown, Circuit Judges. COUNSEL Daniel H. Qualls, Robin G. Workman, Qualls & Workman, San Francisco, California, for the plaintiff-appellant. Martin D. Bern, Malcolm A. Heinicke, Munger, Tolles & Olson LLP, San Francisco, California; Fred A. Rowley, Jr., *The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 16015 16016 MCFARLAND v. GUARDSMARK Munger, Tolles & Olson LLP, Los Angeles, California, for the defendant-appellee. ORDER Johnny McFarland ("McFarland") appeals from the district court's decision denying his motion for partial summary judgment and granting partial summary judgment to Guardsmark, LLC in this dispute arising under Cal. Labor Code 512. McFarland v. Guardsmark, LLC, 538 F. Supp. 2d 1209 (N.D. Cal. 2008). The district court dismissed the remaining claims upon stipulation of the parties. We affirm for the reasons set out in the district court's thorough decision. McFarland raises for the first time on appeal the factual issue of whether his signed employment agreement represents an actual agreement to take two on-duty meal periods in a single day. As McFarland did not raise this issue before the district court, see id., we do not consider it here. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999). AFFIRMED. PRINTED FOR ADMINISTRATIVE OFFICE--U.S. COURTS BY THOMSON REUTERS/WEST--SAN FRANCISCO The summary, which does not constitute a part of the opinion of the court, is copyrighted 2009 Thomson Reuters/West.

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