Johnny McFarland v. Guardsmark, LLC ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHNNY MCFARLAND, on behalf of 
himself and all others similarly
No. 08-16953
situated,
Plaintiff-Appellant,
 D.C. No.
3:07-cv-03953-PJH
v.
ORDER
GUARDSMARK, LLC,
Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding
Submitted November 6, 2009*
San Francisco, California
Filed December 9, 2009
Before: Procter Hug, Jr., Pamela Ann Rymer and
M. Margaret McKeown, Circuit Judges.
COUNSEL
Daniel H. Qualls, Robin G. Workman, Qualls & Workman,
San Francisco, California, for the plaintiff-appellant.
Martin D. Bern, Malcolm A. Heinicke, Munger, Tolles &
Olson LLP, San Francisco, California; Fred A. Rowley, Jr.,
*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
16015
16016 MCFARLAND v. GUARDSMARK
Munger, Tolles & Olson LLP, Los Angeles, California, for
the defendant-appellee.
ORDER
Johnny McFarland (“McFarland”) appeals from the district
court’s decision denying his motion for partial summary judg-
ment and granting partial summary judgment to Guardsmark,
LLC in this dispute arising under Cal. Labor Code § 512.
McFarland v. Guardsmark, LLC, 538 F. Supp. 2d 1209 (N.D.
Cal. 2008). The district court dismissed the remaining claims
upon stipulation of the parties. We affirm for the reasons set
out in the district court’s thorough decision.
McFarland raises for the first time on appeal the factual
issue of whether his signed employment agreement represents
an actual agreement to take two on-duty meal periods in a sin-
gle day. As McFarland did not raise this issue before the dis-
trict court, see id., we do not consider it here. See Smith v.
Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).
AFFIRMED.
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