                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                            FILED
                            FOR THE NINTH CIRCUIT
                                                                            DEC 08 2017
                                                                         MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
JIMMY KUANG,                                     No.   16-16956

              Plaintiff-Appellant,               D.C. No.
                                                 2:15-cv-00160-JAM-EFB
 v.

BEL AIR MART, a California corporation           MEMORANDUM*
and DOES, 1 to 50, inclusive,

              Defendants-Appellees.


                    Appeal from the United States District Court
                        for the Eastern District of California
                     John A. Mendez, District Judge, Presiding

                     Argued and Submitted December 4, 2017
                            San Francisco, California

Before: M. SMITH and IKUTA, Circuit Judges, and BATES,** Senior District
Judge.

      Jimmy Kuang appeals the district court’s order granting Bel Air Mart’s

motion for summary judgment. We have jurisdiction under 28 U.S.C. § 1291.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              The Honorable John D. Bates, Senior United States District Judge for
the District of Columbia, sitting by designation.
      Even if Kuang’s declaration and attachments were admissible, the district

court did not err in dismissing Kuang’s claim for breach of the Collective

Bargaining Agreement (CBA), because Kuang failed to exhaust the grievance

procedures required by the CBA. See Vaca v. Sipes, 386 U.S. 171, 184 (1967).

Because Kuang informed the district court, both orally and in his written

submissions, that he waived the argument that his failure to exhaust was excused

due to the union’s breach of its duty of fair representation, this argument is waived

on appeal and we do not reach it. See Blaisdell v. Frappiea, 729 F.3d 1237,

1241–42 (9th Cir. 2013). Because Kuang waived his hybrid claim, we do not

reach his remaining arguments.

      AFFIRMED.




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