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McFarland v. Guardsmark

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT


December 9, 2009

JOHNNY MCFARLAND, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF-APPELLANT,
v.
GUARDSMARK, LLC, DEFENDANT-APPELLEE.

Appeal from the United States District Court for the Northern District of California Phyllis J. Hamilton, District Judge, Presiding. D.C. No. 3:07-cv-03953-PJH.

FOR PUBLICATION

Submitted November 6, 2009*fn1 -- San Francisco, California.

Before: Procter Hug, Jr., Pamela Ann Rymer and M. Margaret McKeown, Circuit Judges.

ORDER

Johnny McFarland ("McFarland") appeals from the district court's decision denying his motion for partial summary judgment 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 single day. As McFarland did not raise this issue before the district court, see id., we do not consider it here. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).


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