                                                                           FILED
                           NOT FOR PUBLICATION                               JUL 28 2015

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


WENDI BERNDT, et al.,                            No. 13-56142

              Plaintiffs - Appellants,           D.C. No. 2:11-cv-08579-GAF-
                                                 AJW
 v.

CITY OF LOS ANGELES,                             MEMORANDUM*

              Defendant - Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                     Gary A. Feess, District Judge, Presiding

                        Argued and Submitted July 9, 2015
                              Pasadena, California

Before: W. FLETCHER, PAEZ, and BERZON, Circuit Judges.

      The plaintiffs (“Berndt” or “the Officers”) appeal the district court’s grant of

summary judgment to the City of Los Angeles dismissing Berndt’s claims that the

City violated the Fair Labor Standards Act (FLSA). We affirm.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      1. The FLSA, as interpreted by Department of Labor (DOL) regulations,

permits the City’s practice of compensating its employees’ “gap time” with

compensatory time off (CTO).

      The regulations expressly classify CTO “earned and accrued by an employee

for employment in excess of a nonstatutory (that is, non-FLSA) requirement” as

“other” CTO not subject to the statutory overtime rate. 29 C.F.R. § 553.28. “For

example, a collective bargaining agreement may provide that compensatory time

be granted to employees for hours worked in excess of 8 in a day . . . .” § 553.28(a)

The City’s use of CTO to compensate “gap time” is specifically provided for by

the collective bargaining agreement under which the Officers are employed. Their

challenge to the City’s use of CTO for gap time therefore fails.

      2. The City has established that there is no genuine issue of material fact for

trial by showing that the Officers have failed to present competent evidence of a

fact that they bear the burden of establishing. Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986). That fact is whether the Officers performed work for which they

were not properly compensated. See Brock v. Seto, 790 F.2d 1446, 1447–48 (9th

Cir. 1986) (“An employee seeking to recover unpaid minimum wages or overtime

under the FLSA ‘has the burden of proving that he performed work for which he




                                          2
was not properly compensated.’” (quoting Anderson v. Mt. Clemens Pottery Co.,

328 U.S. 680, 687 (1946)).

      Under the FLSA, employees “in law enforcement activities” are exempt

from the statute’s 40-hour workweek requirement. 29 U.S.C. § 207(k). The criteria

governing which employees qualify for this exemption are laid out in DOL

regulations. See 29 C.F.R. § 553.211(a). The City bears the burden of proving that

the Officers performed law enforcement activities. See Cleveland v. City of L.A.,

420 F.3d 981, 988 (9th Cir. 2005).

      The City has established that its officers generally fall within the 207(k)

exemption, as provided for in the memorandum of understanding (“MOU”)

between the City and the Officers’ union. The MOU gives rise to the inference that

the City’s police officers, through their collective bargaining representative,

recognize that they meet the 207(k) criteria. With one exception — the declaration

by plaintiff Alfredo Flores — Berndt’s evidence does not provide any facts

suggesting that the Officers’ work consisted of non-law-enforcement activities.

      The Flores declaration states that Flores’s “peace officer powers were

suspended” and that he “was required to work in an administrative role.” The

regulatory criteria for the 207(k) exemption do not, however, focus on the work the

individual officer is actually performing, but, instead, on the officer’s training,


                                            3
assignment to a “body of officers” with law enforcement authority, and endowment

with the “power to arrest.” 29 C.F.R. § 553.211(a). Flores’s conclusory declaration

does not address any of these specific criteria. Moreover, Flores did not state that

he worked overtime during the period in which his peace officer powers were

suspended. The declaration therefore does not raise a disputed issue of fact

regarding whether Flores worked overtime while in a non-exempt status, and

consequently was due additional compensation.

      As Berndt has not provided any other documentation in support of her

contention that the Officers worked overtime while inappropriately classified under

§ 207(k), she has not created a “genuine issue of material fact” on the

compensation question. See Nissan Fire & Marine Ins. Co. v. Fritz Companies,

210 F.3d 1099, 1102–03 (9th Cir. 2000). The district court’s grant of summary

judgment to the City was thus appropriate.

      3. Berndt’s claims under state law are waived due to insufficient argument.

      Berndt makes two cursory state law arguments in a single paragraph in her

opening brief. First, Berndt asserts that the City’s CTO practice violates the

principle that wages are due on payday. But the only authority Berndt cites for this

principle discusses generally when a cause of action for unpaid wages accrues, not

when CTO may be paid. See Cuadra v. Millan, 17 Cal. 4th 855, 859 (1998). As


                                           4
Berndt has done “little more than cite” a case without clear application to the

instant case, “we are left to guess precisely what [Berndt] meant to argue,” and

“may not consider the question.” San Diego Unified Port Dist. v. Gianturco, 651

F.2d 1306, 1319 n.36 (9th Cir. 1981). Similarly, Berndt’s second state law claim,

that the City may not use CTO as compensation unless it is “affirmatively

authorized by law,” is not supported by any authority. Such a “bare assertion” is

insufficient to present the issue for meaningful appellate review. Greenwood v.

F.A.A., 28 F.3d 971, 977 (9th Cir. 1994).

      Even if Berndt’s state law arguments were not waived, they would fail on

the merits. California’s “home rule” doctrine holds that the compensation of public

employees is generally a matter of local concern, and that most state wage laws

therefore do not apply to the employees of charter cities. See, e.g., Curcini v. Cnty.

of Alameda, 164 Cal. App. 4th 629, 643 (2008); Dimon v. Cnty. of Los Angeles,

166 Cal. App. 4th 1276 (2008) (declining to apply state meal period laws to county

probation officers); cf. Sonoma Cnty. Org. of Pub. Emps. v. Cnty. of Sonoma, 23

Cal. 3d 296, 317 (1979). State law may apply to charter cities when the law deals

with matters of “statewide concern.” State Bldg. & Const. Trades Council of Cal.,

AFL-CIO v. City of Vista, 54 Cal. 4th 547, 556 (2012). But Berndt has not

demonstrated that the present case implicates a matter of statewide concern.


                                            5
Jernagin v. City of L.A., No. B241411, 2013 WL 2336342, at *1 (Cal. Ct. App.

May 29, 2013), which Berndt raised for the first time at oral argument, did not

concern municipal law enforcement employees or the use of CTO, and so does not

support application of the statewide concern exception here.

      AFFIRMED.




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