                                                                           FILED
                             NOT FOR PUBLICATION                            FEB 21 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



SAUL DELEON, individually, and on                No. 11-56699
behalf of other members of the general
public similarly situated,                       D.C. No. 2:10-cv-02468-AG-RNB

               Plaintiff - Appellant,
                                                 MEMORANDUM *
  v.

TIME WARNER NY CABLE LLC, a
Delaware limited liability company,

               Defendant - Appellee.



                    Appeal from the United States District Court
                       for the Central District of California
                    Andrew J. Guilford, District Judge, Presiding

                       Argued and Submitted January 10, 2013

                                 Pasadena, California

Before:        O’SCANNLAIN and W. FLETCHER, Circuit Judges, and
               HELLERSTEIN, Senior District Judge.**




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The Honorable Alvin K. Hellerstein, Senior United States District
Judge for the Southern District of New York, sitting by designation.
      Plaintiff Saul Deleon appeals from the district court’s order granting

summary judgment to defendant Time Warner NY Cable LLC (“Time Warner”).

We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

      The district court’s grant of summary judgment is reviewed de novo. Clicks

Billiards, Inc. v. Sixshooters, Inc., 251 F.3d 1252, 1257 (9th Cir. 2001). Summary

judgment is appropriate if Time Warner, the moving party, “shows that there is no

genuine dispute as to any material fact and [it] is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). The court must view the evidence presented in the

light most favorable to Deleon, the non-moving party, and draw all justifiable

inferences in his favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255

(1986).

      Time Warner is entitled to summary judgment on Deleon’s meal and rest

break claims. The evidence is undisputed that Time Warner scheduled breaks at

appropriate intervals and encouraged its employees to take their breaks at the

scheduled times. Time Warner did not have a duty to police its employees and

ensure that they actually took their breaks as scheduled. See Brinker Rest. Corp. v.

Superior Court, 273 P.3d 513, 537 (Cal. 2012). The fact that Deleon took late

breaks on some occasions is insufficient, by itself, to show a violation of California

law. See id.


                                           2
      Deleon argues that Time Warner’s policy requiring employees to complete

phone calls before beginning their breaks sometimes forced him to take late meal

breaks. If this were true, then Time Warner’s policy might fall within Brinker’s

prohibition on “imped[ing] or discourag[ing]” employees from taking timely

breaks. Id. However, the available call records do not demonstrate that Deleon

was forced to stay on duty because of lengthy calls. Instead the records suggest

that Deleon decided on his own to continue working through his scheduled breaks.

      Deleon’s remaining claims on appeal are derivative of his meal and rest

break claims. We affirm summary judgment on those claims as well.

      AFFIRMED.




                                         3
