and major basis of our opposition i'd like to focus on the general supervision prong of the administrative action of my limited and the administrative exemption as a separate stand alone general supervision problem and this court has addressed that in campbell against price waterhouse coopers and made very clear that this is a highly factual question that should be submitted to the trier of fact to be decided there was a mountain of evidence in the record showing that the clients here were subject to more than general supervision and they did not get their day in court at staunch married to the conflicting evidence that's in the record that they should have been provided not only do they not get their day in court before trier fact these let's let's examine that a little bit i understand that the district court has a responsibility in a summary judgment if they're disputed issues to say willer disputed issues and you can do it on summary judgment on the other hand there are many times in district court where the other side says we'll take it on their evidence now the words we wouldn't say that's the evidence we'll just say whatever their evidence is we'll move for summary judgment on that because even with their best evidence all given their way they don't win or sometimes there's dispute undisputed evidence and my worry here is you don't dispute that your clients work along specialized or technical lines to you i don't and that's well and therefore the only issue then on general supervision is whether they work under only general supervision wouldn't you agree with that that's true so i guess i'm trying to figure out than the general supervision requirement is not in polluted in the said california has interpreted and it seems to me that we can find that appellant's exercise their discretion and independent judgment if there's undisputed evidence that they also work only under general supervision will you agree with that i do not agree with that your honor why because because i look at all  california law and it seems to me that if there is undisputed evidence that the developments also work under general supervision that then i have to look and see what they do and i look at the end dispute and i thought you were just saying that they did work only under general supervision absolutely no we are saying that their work was subject to far they have the authority to settle disputes within monetary limits they have authority to direct the litigation they have authority to investigate their own claims the only thing that we can say is the manager's audit periodic plea random case that's not sure your honor what else should i have in that litany of facts also to be added to the facts there are separate audits that are done on a random cases in addition he said although the managers can audit random cases periodically the managers editions audits there are mandatory diary reviews that take place every twelve every thirty every sixty every one hundred eighty days for all of the claims that are signed to both my clients and those are that's a caseload of one hundred sixty five cases so everything is reviewed it's not just a few here it's the you disputed they can settle disputes within their own monetary limits i dispute that that's done independently because there are procedures or you have to put it in a book but under their authority they can settle these disputes right now ok can they also direct the litigation they can direct the litigation can they also investigate their own planes they do investigation but not independently well what i understand you to say is they do all of these things independently but they have to write down what they've done and they thereafter have periodic random and i audit it's so therefore it's bigger than general supervision it's not just that they have to write down what they've done it's that in writing down what they've done it is supervised by the sea reviewed what i mean by supervisors what the defendant's own policies say is the supervisors have to put notes into the system showing that the reviewed it showing that there was no meaningful review of what if they've already directed the litigation what direction do they have if they are the ones who determine how to investigate their claims if all the supervisor does  i'm pretty i'm pretty anxious product is and i'm asking these questions because i was an insurance defense lawyer and i had an insurance agent who was looking over my back who is saying what i could do i had to send them and get their authority before i could do anything so i was even worse than these people i had they came in i audited my files they came in and did all this kind of stuff and yet you would say i didn't have supervision than i was under more than general supervision the interesting thing i mean i'm just trying to liken what you're trying to suggest to me to what i understand you're arguing and i find it interesting when there's an attempt to like an attorney to employees that are challenging to administrative exception because there's a separate professional exception i understand that i understand i'm just trying to understand what they did so i'll know whether it meets this pronger it doesn't absolutely professional exemption does not have a separate general super can i just segue from what my my brother says about this when the supervisors review the diary entries and so on can do they have the authority to  countermand any settlements or things that your clients have done or are they simply reviewing to determine whether mistakes were made well they absolutely have  put their stuff in the input into what they've identified my question let's take a case to your clients settle some case the supervisor comes and looks at the books says you know you just made a mistake there we're going to we're going to rescind that settlement because they do that i don't think they can do that but there's a kind of supervision that comes before there is even a chance to settle the case given review the twelve my day the fact that this is what judge smith has been talking about they can do all these things that he is delineated they seem to have to write down what they have that a prospective thing it's after the facts review it seems to me what you're saying is that that's all it is the supervisor come in and look can't say what you did was wrong therefore we're going to do it they can say you know you made a mistake there we don't want you to do that again but they can and do it right if not all after the fact review if they're going to try to take this simple step these are all facts when the inferences are drawn in the light most favorable to the nonmoving party that summary judgment absolutely cannot have been granted on this record and speaking well i was trying my best not to do that but you could are you could give me the business if you want to i mean all i was trying to say is i put all the evidence together by what they do and how it is quote unquote supervised and try to make that general determination under the general supervision brome you want to move to the independent judgment brong i will in the sense that  appreciate that your honor is put all the evidence together and looked at it in this way and the problem here is that the district judge didn't that the district judge ignored evidence that when viewed in the light most favorable to the non good morning your honour's may have please the court my name is christopher decker i represent the defendant in this company's or i comerica insurance company the district court properly granted summary judgment here and i think the focus of the panel during appellant's argument was exactly where it should be which is on the evidence itself this is a summary judgment ruling and the question is whether or not the evidence in the record that was identified in the moving and the opposition papers reveals a tribal dispute of material fact not just any dispute but a dispute of material fact and i would like to address the general supervision element which is what seems to have garnered the most attention and i want to begin by pointing out that the general supervision element is not unique to california law that is in fact recy in the appellants position twenty nine c f r five four one point two which is the definition of the administrative exemption under federal law quite express a lascaux case does address this perhaps not as fully as we might like but those alaska court does and this is identified in our brief does talk about the general supervision prong and construe it  as effectively synonymous with free from immediate direction control and the language of the wage order very much supports that because if you look at the language of the wage order it begins with the overarching that an employee is exempt under the administrative test if the following elements are met it then list of series of elements all of which have to do with the nature of the work and then there are two additional elements one is that the employee is primarily engaged in exempt duties and then the second one asked to deal with the amount of remuneration and then in the california wage order goes on to say that the duties constituting exempt work shall be construed in accordance with the federal regulations so right and those federal regulation regulations talk in great depth about what does and doesn't constitute exempt work well the key language there in the wage order is a zent work which i think can only be read as referring to all of the different descriptions of what constitutes exempt duties and that includes where i wanted to get him i'm i'm some concern and so i ask you the question do you really believe that unless i adopt the law or regulations as it relates to listen and don't go with the california law that i come out in a different place no i think the wage order is quite explicit that it is attempting to follow and to incorporate federal law at least with respect to the type of work that is considered administrate of in nature where california law departs from federal law is with respect to two elements that are not disputed here and the first one is the primarily engage test we all know that under federal law you don't necessarily have to show that you spend the majority of your time on exempt duties under california law you quite clearly do but that's not disputed here and the second element is the salary basis test  level of salary that's required to meet the administrative exemption under california law is different from federal law but the statement in the wage order that the type of work constituting exempt work shall be construed in accordance with and then it identifies the two thousand one federal regulations by number seems to me a very clear indication and this is exactly how the california supreme court viewed the matter in harris a very clear indication that california law is meant to be in harmony it's meant to be consistent with federal law with respect to the type of work that's considered to be administrative all right so how do you respond to claimants if you will responses to me  general supervision pro news know man well i think we need to look at the evidence and i think the patent your characterization of the evidence in your questioning is accurate i think that the overall picture that emerges when you put it all together is that the supervision that is given is after the fact quality you know if you will a quality check to make sure things are being done properly and if they're not being done properly to give pro specht of guidance and prospect of advice so that they will be done properly the next time and of course if there's no improvement then you know supervisor might have to use more drastic means  e seven employees rather well it all depends on how much time they're spending on supervision as opposed to other duties and that there's no evidence in the record on that question the evidence that is in the record that i think is the most probative comes from their declarations the declarations of alberto rodrigue as who have supervised ms buckland and the declaration of patrick clicker who supervised miss burton and they say that when you put it all together all the different types of audits and checks and so on diary entries all of that when you put it all together and you take into account all of the other duties that they had they claims were frequently handled for two to three months at a time without them even looking at it that was common when they would sit down to look at a claim it was common they hadn't looked at it for two to three months and when they did get around to looking at it they're examining things that have already been done claims that have already been settled reserves that have already been set depositions that have already been taken and they're devoting at most not on average they say at most ten minutes and this is just not enough time to conduct a didn't novo review necessarily they are relying on their subordinates to work up the claim to investigate the facts to resolve the conflicts in the evidence to make decisions and for the most part what they're checking is to see whether or not deadlines are being met procedures are being followed because in ten minutes without conducting an overview that's about all you can do the only the reviews th done like cases or the like there is no evidence in the record whatsoever that that ever happened it is true that certain decisions required prior approval we concede that we stated it  as one of our undisputed facts but it's pretty limited yes those are well to deny a claim as they point out to set reserves or to settle a case in excess of authority there was slightly different testimony from the two adjusters which may well reflect slightly different supervisory practices but there was some testimony that in some cases a referral to the fraud or the subrogation unit might require a prior approval and in certain circumstances it might require prior approval to put an attorney to assign an attorney to a case but reserves within authority settlements within authority directions to the attorney regarding litigation strategy conducting your own investigation might sometimes be required to get prior approval to put an outside investor gaiter on a case but all of those things are squarely within their authority there is no requirement to seek pradip of all and they don't seek prior approval the supervisor doesn't find out about it until two three months later quite often and at that point it's a it's been done but if they want to do something outside the parameters generally speaking absolutely there are limitations and constraints on their authority i think the relevant question is not whether there are constraints even you know the c e o of the biggest company in the world operates under some constraints the question is how much authority do they have what's left over and does that amount to an exercise of independent judgment discretion with respect to matters of significance and on that question we have the guidance of the ninth circuit in the miller versus pharmacy surance exchange case that says absolutely doing what claims adjusters typically do when you're handling a large volume of claims even if each claim is relatively small in farmers it was  little as three thousand dollars per claim evaluating the claims setting the reserves resolving the claim that's an exercise of independent judgment discretion with respect to matters of significance that's administrative in nature and you know they're so explicit this to say that says it all that language is that sentence from the opinion i think really jumps out as far as we're concerned that says it all and we go one further it seems to me that suggesting that our if you will involvement in this problem to this extent and really we only involved in this prone because that's the one he said he wanted doc about we got all  it is more than the district court did the district court really did not focus on that which he should have been making the summary judge suggesting then he needs another shot what is your response well i think he's getting his other shot right now that's what appeals are are for this is a while but what he's really saying is it doesn't you haven't got anything in the district court record to suggest where you're going judge even if you're going there well i think the entire record is before this court this is appeal from order granting summary judgment so the novo and this court can and should review the evidentiary record and come to its conclusion as to whether or not there is a material dispute regarding an issue of fact and i i think actually the district court's order does address this and it's very well reasoned the district court says with respect to general supervision that the same evidence that demonstrates that the plaintiffs exercised independent judgment discretion free from immediate direction or supervision also a stablish is that they operated under only general supervision and i think that's exactly correct because that's the evidence we've been talking about today it's the same evidence it's what is the level of what degree of authority do they have and how much supervision is there and how much can they do free from supervision at what point does the supervision kick in and how extensive is it and what is the result of that supervision the same evidence goes to both questions and that's the evidence that the district court referred to and it just doesn't to my mind make a whole lot of sense to say that you know once we've determined that you're exercising independent judgment discretion free from immediate direction and control now there's this entirely separate inquiry as to whether you're performing your duties under only general supervision and i don't think the language of the wage order requires that because the language of the wage order as i previously previously explained says to determine whether or not the work is exempt look at the federal regulations federal regulations talk at great length about what constitutes being free from immediate direction and supervision and i think the district court rightly concluded the same way that the so lascaux court could conclude and that's a california case that yeah the same the same question what that the cases be published i'm not sure what that means in this context except that it's not precedential but doesn't that make some sense that  true that the court should apply the wage order and the relevant regulations to the actual experience of these employees which would indicate that a trial with actually hearing the witnesses would be a better way to resolve this case well i agree with everything you're saying except for the final conclusion that it would require a trial the language of the wage orders and of the federal regulations is a little bit on satisfactory it doesn't give us precisely the guidance we would like and in some cases it is admittedly difficult to draw the line and i agree completely not all advising representing or the like constitutes exempt work but the panel doesn't need to figure out where to draw the line in every case only in this case and for this case there is an abundance of guidance and authority that says that the type of work that insurance claims adjusters do is the type of advising negotiating representing that constitutes exempt work now there may well be another case another context where the type of advising a negotiator representing that the employees do doesn't but that's not this case and in this case we have the authority we need  record showing that these claims adjusters performed work that was so so different from all of the published cases and authorities and deal well opinion letters that it warranted a fresh look but the evidence in the record is actually that the type of duties they perform are exactly the duties that were described in the miller case exactly what's described in the deal opinion letters exactly what's described in all the other stories we cite to in our brief so that they may come but it's not this case you very much counsel  fact and what would you ask the jury to decide they can't decide where that line is drawn well i suspect fully this court is organs that it is for the jury just five or the line is drawn for the general supervision pron because of the dearth of authority on the subject and campbell against pricewaterhouse coopers and this court has already said that when you're talking about the quantitative prong of the directly related test that it is for the jury decide because it's difficult for the court to draw the line and that's based on the regulations that were incorporated into the wage order at the time that in two thousand convo with respect  correct me if i'm wrong on this i i thought that what your folks did was in the record essentially i'm contradicted i didn't understand the insurance company to claim that they did something different they just said what they did is boilerplate standard issue exempt for all the reasons that he indicated if we only have one version of the facts of what they did what's there for the jury to decide isn't it pretty straightforward there's not just one version of the facts there's also facts that weren't even considered by the district court like the seven one supervisor ratio that her honor brought up earlier but if they're not if they're not in the record they can't be considered are you just saying they weren't considered because nobody mentioned them in the order i'm saying they weren't considered because it wasn't in the border that they are in that understands right was in the record right it is in the record and it should have been considered by the district court and we're at a point where we are weighing evidence which the supreme court in andersen can liberty lobby's that is not the judge's function to do seventy one supervisory ratio goes against the factual argument that there's less than general supervision seven days a week that's one whole day per each employee of the supervisors supervising sure it's only ten minutes per claim but when you have a hundred sixty five claims that's sixteen hundred fifty ms that's twenty seven hours per employee that's intense supervision and there's more to this idea the general in the district inbox counts going into their emails to see if they have new emails that they haven't responded to than twenty four hours that's more than general supervision this idea that it's only after the fact is completely invented in this court have the opportunity to saying campbell well after the facts are provision that's ok you can still be exempt but the score didn't and so everything somewhat after the fact you always