                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           OCT 29 2015
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ALMA YADIRA; et al.,                             No. 13-17083

              Plaintiffs - Appellants,           D.C. Nos.    5:08-cv-05721-RMW
                                                              5:08-cv-05722-RMW
  v.

JESUS FERNANDEZ, DBA Flamingo                    MEMORANDUM*
Nightclub, DBA Maria’s Nightclub, DBA
Tony’s Pool Hall,

              Defendant - Appellee.


                  Appeal from the United States District Court
                     for the Northern District of California
                Ronald M. Whyte, Senior District Judge, Presiding

                           Submitted October 21, 2015**
                             San Francisco, California

Before: BLACK,*** CLIFTON, and N.R. SMITH, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 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 Susan H. Black, Senior Circuit Judge for the U.S.
Court of Appeals for the Eleventh Circuit, sitting by designation.
      Florencia Mondragon appeals the district court’s judgment that Mondragon

was an exempt employee, not entitled to recover overtime wages from her

employer. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

      California law generally entitles employees to overtime pay for “[a]ny work

in excess of eight hours in one workday and any work in excess of 40 hours in any

one workweek,” Cal. Lab. Code § 510(a), unless the employee qualifies for a

statutory exemption from the state’s overtime laws, § 515. However, Wage Order

No. 5-2001 (Wage Order 5) exempts from overtime compensation “persons

employed in administrative, executive, or professional capacities.” Cal. Code

Regs. tit. 8 § 11050(1)(B). To meet the overtime exception for employment in an

executive capacity, an employee must be “primarily engaged in duties which meet

the test of the exemption.” § 11050(1)(B)(1)(e). “Primarily” engaged “means

more than one-half [of] the employee’s work time” is spent on exempt duties.

§ 11050(2)(O).

      California law requires courts to “consider, first and foremost, how the

employee actually spends his or her time.” Ramirez v. Yosemite Water Co., 978

P.2d 2, 13 (Cal. 1999). California law does not require an employer to “literally

count the number of hours the employee spent on the exempt duties.” Although

many California cases interpreting the “primarily engaged in” requirement do


                                         2
focus on the actual allocation of time and counting of hours, see, e.g., Combs v.

Skyriver Commc’ns, Inc., 72 Cal. Rptr. 3d 171, 190 (Ct. App. 2008), not all cases

have found it necessary to require such a detailed hour counting exercise,

especially when an employer “set[s] forth a representative sample of the job duties

. . . [consisting of] an accurate reflection of the work [the employee] actually

performed,” In re United Parcel Serv. Wage & Hour Cases, 118 Cal. Rptr. 3d 834,

846 (Ct. App. 2010).

      In reviewing the judgment, we review “the district court’s findings of fact

for clear error.” Price v. U.S. Navy, 39 F.3d 1011, 1021 (9th Cir. 1994).

Therefore, we review the district court’s factual finding that Mondragon was an

exempt employee for clear error. Nordquist v. McGraw-Hill Broad. Co., Inc., 38

Cal. Rptr. 2d 221, 224-25 (Ct. App. 1995).

      The district court did not clearly err in determining that Mondragon was

primarily engaged in exempt work, based on the evidence presented in the bench

trial. Witnesses testified that Mondragon’s work tasks and responsibilities were

nearly all exempt under Wage Order 5. In contrast, hardly any of Mondragon’s

work tasks and responsibilities were non-exempt. Evidence further supported the

determination that “quantitatively, Mondragon[] spent more than 50% of her time

performing managerial duties.”


                                           3
      Defendant-Appellee’s Motion to Strike Appellant’s Opening Brief and

Excerpts of Record is denied.

      AFFIRMED.




                                       4
