Alma YADIRA; et al., Plaintiffs-Appellants, v. Jesus FERNANDEZ, dba Flamingo Nightclub, dba Maria's Nightclub, dba Tony's Pool Hall, Defendant-Appellee, 621 F. App'x 470

MEMORANDUM 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.” CaLCode 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(l)(B)(l)(e). “Primarily” engaged “means more than one-half [of] the employee’s work time” is spent on exempt duties. § 11050(2)(0).

California law requires courts to “consider, first and foremost, how the employee actually spends his or her tifhe.” Ramirez v.Yosemite Water Co., 20 Cal.4th 785, 85 Cal.Rptr.2d 844, 978 P.2d 2, 13 (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 focus on the actual allocation of time and counting of hours, see, e.g., Combs v.

Skyriver Commc’ns, Inc., 159 Cal.App.4th 1242, 72 Cal.Rptr.3d 171, 190 (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, 190 Cal.App.4th 1001, 118 Cal.Rptr.3d 834, 846 (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., 32 Cal.App.4th 555, 38 Cal.Rptr.2d 221, 224-25 (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.” Defendant-Appellee’s Motion to Strike Appellant’s Opening Brief and Excerpts of Record is denied. AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.