                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JAN 12 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ROBERT DURAN, an individual,                     No.   15-55536

              Plaintiff-Appellant,               D.C. No.
                                                 2:14-cv-00511-BRO-FFM
 v.

STOCK BUILDING SUPPLY WEST,                      MEMORANDUM*
LLC, a Delaware corporation, Erroneously
Sued As Stock Building Supply West, Inc.,

              Defendant-Appellee.


                   Appeal from the United States District Court
                       for the Central District of California
                 Beverly Reid O’Connell, District Judge, Presiding

                           Submitted January 10, 2017**
                              Pasadena, California

Before: TALLMAN and FRIEDLAND, Circuit Judges, and FABER,*** Senior
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).
      ***
             The Honorable David A. Faber, Senior United States District Judge
for the Southern District of West Virginia, sitting by designation.
      Plaintiff Robert Duran appeals the district court’s adverse summary

judgment ruling in his lawsuit against his former employer, Stock Building Supply

West, LLC (“Stock”), a California corporation. Duran alleges that Stock interfered

with his rights to take protected family leave to care for his ailing father and

terminated him in retaliation for taking protected leave, in violation of the

California Family Rights Act (CFRA), Cal. Gov’t Code § 12945.2. Duran also

brings claims against Stock for failure to take reasonable steps to prevent

retaliation and for wrongful termination in violation of public policy, and he

appeals the district court’s award of costs to Stock. We have jurisdiction under 28

U.S.C. § 1332 and 28 U.S.C. § 1291. We affirm summary judgment for Stock on

all of Duran’s claims.

      1. Stock did not interfere with Duran’s exercise of his CFRA rights for

failure to provide adequate notice. Stock Human Resources Representative Angela

Rosales timely responded to Duran’s request for information about leave benefits.

See Cal. Code Regs. tit. 2 § 7297.4(a)(6).1 Rosales’s email attachments provided

information about CFRA/FMLA benefits and eligibility criteria and about the

possibility of using CFRA/FMLA leave concurrently with paid sick leave or



      1
       All citations to CFRA and FMLA regulations are to the regulations in force
in 2012.
                                           2
accrued vacation time. Rosales instructed Duran that to request “any leave,” he

would need to fill out Stock’s Leave of Absence (LOA) form and obtain

certification through Stock’s third-party administrator, Sedgwick. See Cal. Code

Regs. tit. 2 § 7297.4(a)(1), (a)(6). By declining to fill out the LOA form or apply

for leave through Sedgwick, Duran did not “comply with the employer’s usual and

customary notice and procedural requirements for requesting leave,” 29 C.F.R.

§ 825.303(c), and he cannot now complain that his leave should have been CFRA-

protected. See Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236, 1244 (9th

Cir. 2014).

      Nor did Stock interfere with Duran’s CFRA rights because Rosales’s email

was allegedly “misleading.” While the subject line and body of Rosales’s email

referred only to “kin care leave,” or California Paid Family Leave (CPFL), the

email and its attachments as a whole provided information about both CPFL and

CFRA, and the attachments explained the distinct benefits available under each.2

      Stock also did not interfere with Duran’s CFRA rights for failing to

designate Duran’s leave as CFRA-protected. Stock did not have a duty to



      2
         Because we do not find Rosales’s email and email attachments were
misleading, we do not find that the district court abused its discretion by refusing
to apply equitable estoppel. See United States v. Georgia-Pacific Co., 421 F.2d 92,
96 (9th Cir. 1970).
                                          3
designate Duran’s leave as CFRA-qualifying because Duran never filled out

Stock’s LOA form or sought to certify his leave through Sedgwick. See 29 C.F.R.

§ 825.300(d)(1).

      Duran’s interference claim based on a persistent contact theory also fails.

Duran initiated all but one contact with Stock employees during his time away

from work. Duran received a single missed call from his supervisor, but his

supervisor did not otherwise indicate that he expected Duran to stay in touch while

Duran was on leave.

      2. Duran cannot make a prima facie CFRA retaliation claim because he has

not shown that he “exercised [his] right to take leave for a qualifying CFRA

purpose.” See Avila v. Cont’l Airlines, Inc., 82 Cal. Rptr. 3d 440, 455 (Cal. Ct.

App. 2008).

      3. Because Duran’s remaining claims—failure to take reasonable steps to

prevent retaliation and wrongful termination in violation of public policy—are

derivative of his interference and retaliation claims, those claims also fail.

      4. Duran incorrectly asserts that Williams v. Chino Valley Independent Fire

District, 347 P.3d 976 (Cal. 2015), rendered the award of costs “substantive” for

purposes of Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938). Under Federal




                                           4
Rule of Civil Procedure 54(d)(1), which governs here, Stock was entitled to costs

as the prevailing party.

      The parties shall bear their own costs on appeal.

      AFFIRMED.




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