with this case where we must under california law that appellant was is presumed to be not exempt that this is a required presumption by california law it's important it has important policy reasons behind it for the  california law and the california labor code and specifically the application of the professional exemption which is the affirmative defense borne by the employer and the finding by the district court that that was established as a matter of law on summary judgment this is the summary judgment grant and i think it's important here to put  client was a registered dietitian it's important to put that in context here because registered dietitians are essentially the assist what factual information did description eighty five percent of what the registered dietitian did is in these four main responsibilities so we have the first one providing patient education well that sounds pretty sophisticated until you look at our evidence and our evidence was that meant handing the employer's hand out to the to the patient so it's a pre made handout prepared by the appellee that my client doesn't isn't involved in preparing they had to do  and nutritional statuses well the turns out there is a template prepared by the employer certain lab test results are in put it in there and a diet order is prepared it's the same diet order and fact my client explains it's the same diet order day in and day out they only help stage three renal patients it's the same diet they're not developing anything new they're not formulating policies when you break it down these these are flowery terms for monday in routine tasks well reported they get to decide ultimately sometimes without the assistance of the doctor how they can through that dietary plant crocked know there is a there is an established framework if you're magnesium to high then then you do this into the diet order and then the physician at the doctor's orders and i'll tell you this is that this is a quote from from the the company's pulses registered dieticians are prohibited from accepting writing transcribing or altering patient between bananas and apples i'm i'm sure it's it you know there is there are foods that they want certain renal patients to eat it's the same foods every time because the renal insufficient patients have the same type of  of deficiencies that need to be addressed through diet and were there several dieticians who had significant authority to decide those died her plans all all of them have the and i mean that gets to the classification issue and you know i view it as we don't really get to the classification issue unless my client has had has hazzard a court on on the on the questions of fact that we that we think are disputed in our material so i you know i concern myself primarily with my client i feel i feel though however the same policies and rules and constraints of both the business and plans she developed she did not need to seek anyone else's approval but rather use her training and knowledge to follow the real standards of practice so she initiated the choice of the particular foods which would be on the diet order the doctor had to approve but a key use for individual treating if i got a right to choose the food and that gets me back to what is that training it's in house training they take these employees they take them through a reno training plan here's what should orientation and that's e r thirteen seventy six out that's what they do you know it go it it it it provides all the detail that's necessary for there to perform the professional exemption the professional exemption is she's performing duties primarily from a prolonged source of academic instruction so that's a medical degree are registered nurses they go to they go to they get a college degree and then they have a nursing school that's still not considered to be a professional exempt individual and there's a there's a  reward for my sake i apologize but oh we'll lawyer goes to a see a leader sponsored by the bar association are you saying that there's a distinction between that situation and what you've just described up there degree it's not it's not and what she and even in that that's a general dietary course are some were general dietary courses and they do it's not what she's using in performing her duties now which is using to perform your duties now are the in house training people there's a lot of co morbidities there's diabetes generally hypertension this is in the record they may have a name and they may be suffering from cancer that dietitian needs to do use their background skill in training to make recommendations and counsel and educate the patients on what foods to choose and what diet to choose there's also an issue of i think a call conflating the diet order with a diet plan frequently physicians will set a diet or which would be a range of total caloric intake potassium levels sodium level the diet plan is left up to the discretion of the dietician in particular ms rosenberg here that's the evidence so what the trial court did on summary judgment they took the job description patients she even submitted a letter with other dieticians to the company saying what i do is essentially a master's degree and it helps physicians and i can make certain that determinations i think it was a great level of sophistication and to say that it's not i think it's disingenuous frankly and it's not belied by the record i also want to point out to the court's attention since we submitted our our briefing that it was about a year ago there's been a couple decisions by that by this court after our briefing was submitted supposed counsel it deals with the administrative exemption but a form awards of summary judgment or factual records were not unlike here and in fact lardo how the employee spent the time working as a fact question reviewed for clear air and then the legal conclusion is were reviewed to noble and i think what we have here is a very clear factual record there's no declarations that try to controvert her deposition testimony she agreed that the job description her duties were consist with the job description and then she testified at great length to the autonomy she had and the independence she had as a dietitian so i submit at this point time your honor that the court was well within your  believe on a banana rappel she could make diet recommendations diet she could counsel the patient on the dietary plan the foods that the patient should consume or may want to avoid it you need to go to the doctor for that there's no there's no evidence that i diet or was signed off but again the distinction between the diet order and the plan i think is critically important the diet orders are something this is the patient this is the range i want that patient to be in their guidelines they can waver from that but when you go down to the dietician they have the autonomy and the skill set to recommend a diet plan for that individual and the analogy of the nurse i've wholly don't understand your honor in fact nurses that we've put on the re i say the only reason they're not under california law and the four desh two thousand one wage order is because there was a conscientious effort made the legislature to say that nurses and i believe pharmacists are not  nature the diet plan is the plan for that individual developed by the dietitian the doctor doesn't develop the type plan that i think most of us know going to a doctor that's that's really not within their time and what they do so the diet plan was developed by and if you look back behind the curtain if you will look at the record evidence that's not the case that whole it's a very dynamic very fluid situation that involves someone otherwise anyone could be a dietitian we could all do it we could have a car that's not what the record evidences that  theory that was a spouse but when you pull it back and you look at it that's not what happens and that's not how the field works to you have occasion of the exemption you believe that's the case here absolutely just that i think there's an immaterial fact question that that would prohibit and i think the district court got it right when they ruled and i think case law in this circuit is consistent if you look at some of the other cases distinguish their cases the one case to case they said is bottles a case more of a guy was not unconstrained he had constant interaction with a supervisor who was not free to make decisions choices the other cases whether you look at the powell case or the i was the case out of the fifth circuit where there's athletic trainers or guidelines the important thing that touched on was they had independence in the building to make recommendations big decisions counsel that's what happened here and that's what the record i think supports and and demonstrate ms rosenberg presented as part of evidence on motion summary judgment an expert who could or that the ridges are dietitians employed by your client have quote no material fact yes your honor that's correct she testified to no material fact thank you thank you and just briefly have a few minutes remaining i believe and i want to just briefly the lottery aerotech marwar u p s you always have to look and drill down and see what the people are doing it's not enough to just rely on a uniform policy and there was diversity here there were variances what people did and under duke's and the misclassification cases out of the circuit you can't just rely on a uniform policy and that be it that's not enough you have to look at what you have to do a fact intensive inquiry and see what people are actually doing and i think the district court was absolutely correct in its motion to deny classification i don't think is going to dispute about that in fact the cases that are cited by the appellant are waging our cases which i distinguish misclassification cases where there may be a policy that no meal break they rely in those type of cases they don't rely importantly on misclassification cases so i think for all the factors and there were a number of factors  said there were some factual basis for showing that they did not have any autonomy there was a regulation that said that each person who has potassium deficit must eat a banana every day and nothing else then there would be a basis to conclude there was no autonomy does the day order yes and then has to approve the diet plan is that it gets kicked out from the template the computerized template when you put in testing workers are here then it kicks out explaining that that they're on page twenty four and in the e r at one twenty three to six she she details the foundation for her her opinion her conclusion that they lack the auton and i think it's important that the yet pieces are often often decided on summary judgment by the battle of the experts i mean that's that's it's the jury's province to resolve that dispute and and if he convinces the jury that my expert doesn't know what  talking about then that goes to weight and and the jury can follow his expert not mine but that's a jury that's a jury question and i just want to dress these these two decisions on the only aware of them because  office worked on i wasn't personally involved in the the appellate process they're entirely different entirely different professions and you don't you don't evaluate one profession by looking at the other  policies for the state and and they provide you know they encourage encourage people to be employed they encourage people not to work long hours and if they do they're compensated for it and that's what my