                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 22 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

DEBORAH ANDERSON,                               No.    19-55207

                Plaintiff-Appellant,            D.C. No.
                                                2:18-cv-03759-SVW-RAO
 v.

EQUINOX HOLDINGS, INC., a Delaware              MEMORANDUM*
corporation,

                Defendant-Appellee,

and

EQUINOX FITNESS GLENDALE, INC.; et
al.,

                Defendants.

                   Appeal from the United States District Court
                       for the Central District of California
                   Stephen V. Wilson, District Judge, Presiding

                              Submitted July 10, 2020**
                                Pasadena, California

Before: PAEZ and BADE, Circuit Judges, and GORDON,*** District Judge.

      *
             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).
      Plaintiff Deborah Anderson appeals the district court’s judgment in favor of

Defendant Equinox Holdings, Inc. (“Equinox”), and the district court’s subsequent

order partially granting Anderson’s motion for attorneys’ fees. Because Anderson

filed a notice of appeal within thirty days after entry of the judgment and an

amended notice of appeal within thirty days after entry of the fees order, the appeal

is timely. See Fed. R. App. P. 4(a); Whitaker v. Garcetti, 486 F.3d 572, 585 (9th

Cir. 2007) (explaining that a party wishing to challenge a post-judgment order

awarding attorneys’ fees must file a separate notice of appeal or an amended notice

of appeal). We have jurisdiction under 28 U.S.C. § 1291. We affirm.

      1.     Anderson argues that the district court erred in concluding that she did

not meet her burden to show a reasonable estimate of any off-the-clock work.

Where an employer fails to maintain accurate employment records, a plaintiff has

only an initial burden to produce “sufficient evidence to show the amount and

extent of that work as a matter of just and reasonable inference.” Anderson v. Mt.

Clemens Pottery Co., 328 U.S. 680, 687 (1946); Brock v. Seto, 790 F.2d 1446,

1448 (9th Cir. 1986); Hernandez v. Mendoza, 245 Cal. Rptr. 36, 40 (Ct. App.

1988). “The burden then shifts to the employer to show the precise number of

hours worked or to present evidence sufficient to negate ‘the reasonableness of the



      ***
              The Honorable Andrew P. Gordon, United States District Judge for
the District of Nevada, sitting by designation.

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inference to be drawn from the employee’s evidence.’” Brock, 790 F.2d at 1448

(quoting Mt. Clemens, 328 U.S. at 688). Where the employer fails to make such a

showing, the court may then award damages (even if only approximate) to the

employee. Id.

      Here, assuming Mt. Clemens’s burden-shifting framework applies, the

district court did not err in concluding that Anderson failed to meet her initial

burden. Initially, the district court did not clearly err in determining that

Anderson’s testimony regarding any off-the-clock work was not credible. See

Brennan v. Elmer’s Disposal Serv., Inc., 510 F.2d 84, 88 (9th Cir. 1975) (“The

credibility of witnesses is best determined by the judge at trial.”). Apart from her

testimony, Anderson did not present any accounting of her off-the-clock time, nor

did she not provide the court with any way to determine a reasonable estimate of

the extent of such work using the exhibit evidence admitted at trial. Thus,

Anderson failed to show the amount of any off-the-clock work “as a matter of just

and reasonable inference.” Mt. Clemens, 328 U.S. at 687.

      Further, the district court did not clearly err in finding that Anderson failed

to demonstrate that Equinox knew or should have known that she was working off

the clock, an element of her claim. Brinker Rest. Corp. v. Superior Court, 273

P.3d 513, 544 (Cal. 2012). An employer’s general ability to discover employees’

off-the-clock work is insufficient to prove it should have known about any specific


                                           3
employee’s work. See White v. Starbucks Corp., 497 F. Supp. 2d 1080, 1083–85

(N.D. Cal. 2007), cited with approval in Brinker, 273 P.3d at 544; Jong v. Kaiser

Found. Health Plan, Inc., 171 Cal. Rptr. 3d 874, 880 (Ct. App. 2014) (explaining

that evidence must “meet the ‘should have known’ requirement, as opposed to

‘could have known’”).

      2.     Anderson’s claim for indemnity related to unreimbursed cell phone

expenses fails for similar reasons. Here, too, the district court did not clearly err in

finding that Anderson’s testimony on this issue was not credible. Assuming Mt.

Clemens’s burden-shifting framework applies, Anderson did not provide a

reasonable estimate of any unreimbursed cell phone expenses.

      3.     Anderson’s meal and rest break claims also fail. The district court did

not clearly err in finding that Anderson’s testimony regarding meal and rest break

interruptions was not credible. In light of the remaining evidence and testimony,

the district court did not clearly err in finding that Equinox did not require

Anderson to work through meal and rest breaks and did not otherwise interrupt her

breaks. See Brinker, 273 P.3d at 520–21 (“[A]n employer’s obligation is to relieve

its employee of all duty, with the employee thereafter at liberty to use the meal

period for whatever purpose he or she desires, but the employer need not ensure

that no work is done.”).

      4.     Anderson’s derivative claims for failure to provide itemized wage


                                           4
statements, failure to pay wages when due, and unfair business practices all

necessarily fail along with the claims discussed above.

      5.     Because all of Anderson’s substantive claims fail, Anderson’s

challenge to the district court attorneys’ fees order fails as well.

      AFFIRMED.




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