                                                                             FILED
                              NOT FOR PUBLICATION                               NOV 30 2009

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




                              FOR THE NINTH CIRCUIT



DORIS MILLER,                                     No. 08-56088

                Plaintiff - Appellant,            D.C. No. 2:07-cv-04587-GW-AJW

  v.
                                                  MEMORANDUM *
THE REGIS CORPORATION; et al.,

                Defendants - Appellees.



                      Appeal from the United States District Court
                         for the Central District of California
                       George H. Wu, District Judge, Presiding

                        Argued and Submitted November 6, 2009
                                 Pasadena, California

Before: BRIGHT, ** BYBEE, and M. SMITH, Circuit Judges.

       Plaintiff-Appellant Doris Miller appeals the district court’s grant of

summary judgment in favor of Defendants-Appellees Regis Corporation and

Supercuts Corporate Shops, Inc. (erroneously sued as Supercuts Corporate Stores,


            *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9 TH C IR. R. 36-3.

       **    The Honorable Myron H. Bright, Senior United States Circuit Judge
for the Eighth Circuit, sitting by designation.
Inc.). As the facts and procedural history are familiar to the parties, we do not

recite them here except as necessary to explain our decision. This court has

jurisdiction under 28 U.S.C. § 1291. We review the district court’s application of

its local rules for an abuse of discretion, Prof’l Programs Group v. Dep’t of

Commerce, 29 F.3d 1349, 1353 (9th Cir. 1994), and we review de novo the grant

of summary judgment, Leever v. Carson City, 360 F.3d 1014, 1017 (9th Cir. 2004).

We affirm.

      Plaintiff did not timely object to the district court’s ruling accepting

Defendants’ statement of material facts as admitted. As a result, Plaintiff has

waived her right to appeal that ruling. See Bias v. Moynihan, 508 F.3d 1212, 1224

(9th Cir. 2007) (ruling that plaintiff waived her right to appeal district court’s

admission of evidence on summary judgment). Nevertheless, because Plaintiff

failed to controvert Defendants’ statement of material facts by filing her own

statement of genuine issues, a declaration, or other written evidence, the district

court properly exercised its discretion under its local rules in deeming Defendants’

statement of material facts “admitted to exist without controversy.” C.D. C AL. R.

56-3. See also United States v. Warren, 601 F.2d 471, 474 (9th Cir. 1979) (per

curiam) (“Only in rare cases will we question the exercise of discretion in

connection with the application of local rules.”).


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      The district court did not err in granting summary judgment to Defendants.

Plaintiff argues that Defendants’ compensation system violates California law

because it calculates employee overtime compensation by using a “regular rate of

pay” based on a 15-day pay period, rather than a single workweek. Because

Defendants moved for summary judgment, they had the initial burden of showing

the absence of a genuine issue of material fact as to whether their method of

calculating the regular rate of pay complies with California law. See Bhan v. NME

Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991). Defendants carried their

burden, submitting multiple declarations from their Director of Payroll explaining

in detail how the challenged compensation system complies with state law.

      As a result, the burden shifted to Plaintiff. Bhan, 929 F.2d at 1409. To carry

her burden, Plaintiff was required to “produce specific evidence, through affidavits

or admissible discovery material, to show that the dispute exists” as to whether

Defendants’ method of calculating the regular rate of pay violates California law.

Id. (citing F ED. R. C IV. P. 56(e)). In opposition to Defendants’ motion for

summary judgment, Plaintiff submitted only unauthenticated copies of a few pay

stubs. But those pay stubs, standing alone, do not reveal how Defendants’ method

of calculating the regular rate of pay violates California law. Plaintiff has also




                                          -3-
presented a host of mathematical calculations, but has not substantiated those

figures with a declaration or affidavit from an expert witness.

      Whether an employer’s method of calculating an employee’s regular rate of

pay on a 15-day pay period complies with California law might present a valid

legal question in a case where evidence proves that such a method actually results

in unpaid overtime pay. Nonetheless, in light of Plaintiff’s failure to create a

genuine issue of material fact as to whether Defendants failed to pay her overtime

compensation in accordance with California law, we need not reach that question

here. See Avila v. Travelers Ins. Co., 651 F.2d 658, 660 (9th Cir. 1981) (“As a

federal court we are hesitant to express our construction of a novel question of state

law when it is not necessary to do so.”).

      AFFIRMED.




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