This disposition is not appropriate for publication and is not *

precedent except as provided by 9th Cir. R. 36-3.

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STUDIO TRANSPORTATION

DRIVERS, LOCAL #399 OF THE

INTERNATIONAL BROTHERHOOD

OF TEAMSTERS, on behalf of

members formerly employed by

defendants; BERNARD ANGELES,

JR.; JAMES DEPUE; MICHAEL

DEPUE; BURT MELCHER; and

CRAIG WALENDY, 

Plaintiffs–Appellants/Cross-Appellees,

 v.

HAPPY HOURS PRODUCTIONS,

LLC, a Nevada limited liability

company; et al.,

Defendants,

 and

ENTERTAINMENT MEDIA

SPECIALISTS, INC., a Florida

corporation, 

Defendant–Appellee/Cross-Appellant.

Nos. 09-56947 & 09-56997

D.C. No. 08-CV-01117-JVS

MEMORANDUM*

FILED

MAR 04 2011

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
 

 The Honorable Carlos F. Lucero, United States Circuit Judge for the Tenth **

Circuit, sitting by designation.

2

Appeals from the United States District Court

for the Central District of California

James V. Selna, District Judge, Presiding

Argued and Submitted February 14, 2011 

Pasadena, California

Before: KLEINFELD, LUCERO, and GRABER, Circuit Judges. ** 

Studio Transportation Drivers, Local 399 of the International

Brotherhood of Teamsters (“Local 399”)—and five of its members appeal a

grant of summary judgment in favor of Entertainment Media Specialists,

Inc. (“EMS”). EMS cross-appeals the denial of its motion to disqualify

counsel for the appellants. Exercising jurisdiction under 28 U.S.C. § 1291,

we affirm.

Local 399 and several individual plaintiffs brought suit against EMS

to recover unpaid wages stemming from a film production. Plaintiffs

alleged that EMS, the payroll company for the production, was their

employer. Plaintiffs also claimed that EMS adopted a collective bargaining

agreement by its conduct and is liable for breach of that agreement. 

The district court correctly held that EMS was not an employer under
3

California law and is therefore not liable for wages. In Futrell v. Payday

California, Inc., 119 Cal. Rptr. 3d 513 (Ct. App. 2010), the California

Court of Appeal held that a similar payroll company was not an employer. 

Appellants provide no reason to depart from that conclusion.

Appellants also challenge the district court’s denial of their motion

for leave to file a second amended complaint and the court’s grant of

attorney fees to EMS as the prevailing party. However, appellants concede

that these rulings were correct to the extent that EMS was not an employer. 

Having affirmed the district court’s conclusion on that score, these

arguments necessarily fail. 

With respect to their collective bargaining claim, appellants were

given an opportunity below to advance the argument they assert on appeal

but affirmatively declined to do so. They have therefore abandoned the

issue. See BankAmerica Pension Plan v. McMath, 206 F.3d 821, 826 (9th

Cir. 2000).

Finally, we conclude that the district court permissibly declined to

disqualify counsel for appellants. Because “the district court has primary

responsibility for controlling the conduct of attorneys practicing before it,”

we will not reverse a district court’s ruling on a motion to disqualify
4

“unless the court either misperceives the relevant rule of law or abuses its

discretion.” Paul E. Iacono Structural Eng’r, Inc. v. Humphrey, 722 F.2d

435, 438 (9th Cir. 1983) (citations omitted). The district court identified

the correct legal standard for disqualification, the preservation of “public

trust in the scrupulous administration of justice and the integrity of the

bar.” People ex rel. Dep’t of Corps. v. Speedee Oil Change Sys., Inc., 980

P.2d 371, 378 (Cal. 1999). Further, the district court’s application of this

standard was supported by the record. 

AFFIRMED.