Saul Deleon v. Time Warner Ny Cable Llc , 510 F. App'x 545 ( 2013 )

FILED
NOT FOR PUBLICATION FEB 21 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
SAUL DELEON, individually, and on No. 11-56699
behalf of other members of the general
public similarly situated, D.C. No. 2:10-cv-02468-AG-RNB
Plaintiff - Appellant,
MEMORANDUM *
v.
TIME WARNER NY CABLE LLC, a
Delaware limited liability company,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Andrew J. Guilford, District Judge, Presiding
Argued and Submitted January 10, 2013
Pasadena, California
Before: O’SCANNLAIN and W. FLETCHER, Circuit Judges, and
HELLERSTEIN, Senior District Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Alvin K. Hellerstein, Senior United States District
Judge for the Southern District of New York, sitting by designation.
Plaintiff Saul Deleon appeals from the district court’s order granting
summary judgment to defendant Time Warner NY Cable LLC (“Time Warner”).
We have jurisdiction under 28 U.S.C. § 1291 and we affirm.
The district court’s grant of summary judgment is reviewed de novo. Clicks
Billiards, Inc. v. Sixshooters, Inc., 251 F.3d 1252, 1257 (9th Cir. 2001). Summary
judgment is appropriate if Time Warner, the moving party, “shows that there is no
genuine dispute as to any material fact and [it] is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). The court must view the evidence presented in the
light most favorable to Deleon, the non-moving party, and draw all justifiable
inferences in his favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986).
Time Warner is entitled to summary judgment on Deleon’s meal and rest
break claims. The evidence is undisputed that Time Warner scheduled breaks at
appropriate intervals and encouraged its employees to take their breaks at the
scheduled times. Time Warner did not have a duty to police its employees and
ensure that they actually took their breaks as scheduled. See Brinker Rest. Corp. v.
Superior Court, 273 P.3d 513, 537 (Cal. 2012). The fact that Deleon took late
breaks on some occasions is insufficient, by itself, to show a violation of California
law. See id.2
Deleon argues that Time Warner’s policy requiring employees to complete
phone calls before beginning their breaks sometimes forced him to take late meal
breaks. If this were true, then Time Warner’s policy might fall within Brinker’s
prohibition on “imped[ing] or discourag[ing]” employees from taking timely
breaks. Id. However, the available call records do not demonstrate that Deleon
was forced to stay on duty because of lengthy calls. Instead the records suggest
that Deleon decided on his own to continue working through his scheduled breaks.
Deleon’s remaining claims on appeal are derivative of his meal and rest
break claims. We affirm summary judgment on those claims as well.
AFFIRMED.
3