NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FRANK GALLARDO, an individual on

behalf of himself, and on behalf of all

persons similarly situated,

 Plaintiff - Appellant,

 v.

AIG DOMESTIC CLAIMS, INC., a

Delaware corporation; CHARTIS

CLAIMS, INC., a Delaware corporation,

 Defendants - Appellees.

No. 13-56358

D.C. No. 8:12-cv-01107-CJC-AN

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

Cormac J. Carney, District Judge, Presiding

Submitted October 22, 2015** 

Pasadena, California

FILED

OCT 28 2015

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

 * This disposition is not appropriate for publication and is not precedent

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

 ** The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).
Before: PREGERSON and TROTT, Circuit Judges and STAFFORD,*** Senior

District Judge.

 

Appellant Frank Gallardo (“Gallardo”) appeals the district court’s grant of

summary judgment in favor of appellee AIG Domestic Claims (“AIG Claims”).1

Specifically, Gallardo appeals (1) the district court’s finding that Gallardo—a

hearing representative for AIG Claims—was properly classified as an exempt

administrative employee; and (2) the district court’s refusal to admit into evidence

Gallardo’s expert report. We have jurisdiction pursuant to 28 U.S.C. § 1291, and

we affirm.

I. Gallardo Is An Exempt Administrative Employee

We review grants of summary judgment de novo. Bothell v. Phase Metrics,

Inc., 299 F.3d 1120, 1124 (9th Cir. 2002). What Gallardo did as an employee is a

question of fact we review for clear error, but whether Gallardo’s activities

exempted him from overtime benefits is a question of law we review de novo. Id. 

We must determine if the evidence, viewed in the light most favorable to the

nonmoving party, raises any genuine issues of material fact. Id. at 1124. Here, the

 *** The Honorable William H. Stafford, Jr., Senior District Judge for the

U.S. District Court for the Northern District of Florida, sitting by designation.

1

 AIG Domestic Claims, Inc., a subsidiary of American International Group,

changed its corporate name to Chartis in July 2009.

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district court properly found that there were no genuine issues of material fact, nor

did the court err in holding that AIG Claims had established as a matter of law that

Gallardo was properly classified as an exempt administrative employee.

Gallardo’s job duties meet all five elements required to satisfy the test for

administrative exemption. See Campbell v. PricewaterhouseCoopers, LLP, 642

F.3d 820, 831 (9th Cir. 2011) (citing Cal. Code Regs. tit. 8, § 11040(1)(A)(2)

(codified version of Wage Order No. 4-2001, § (1)(A)(2))).2 First, Gallardo

performed work directly related to AIG’s management policies or business

operations, i.e., his work was qualitatively administrative and of substantial

importance to the company. See § 11040(1)(A)(2)(a)(I); Harris, 53 Cal. 4th at

181–82. Here, Gallardo represented AIG Claims in hearings before the Workers’

Compensation Appeals Board; conducted depositions of witnesses, physicians, and

workers; provided recommendations regarding the value of claims, which AIG

Claims generally followed; and negotiated settlements. See Harris 53 Cal. 4th at

189.

2

 Wage Order 4-2001 should be understood in light of FLSA regulations

effective as of the date of the order: 29 C.F.R. Sections 541.201–205,

541.207–208, 541.210, and 541.215. Harris v. Superior Court, 53 Cal. 4th 170,

180 (2011). However, more recent regulations are also instructive because newer

regulations “were intended to be consistent with the old regulations.” Id. at 189

n.8.

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Second, Gallardo customarily and regularly exercised discretion and

independent judgment. See § 11040(1)(A)(2)(b). For each matter, Gallardo

personally decided how best to present the facts and to frame the issues; how best

to present a defense; and how best to respond to questions posed by the judge

during hearings. He independently reviewed the case file to determine the type of

injury at issue and what admission of facts he might want to solicit from the

witness or injured party during depositions. He used preformatted templates in

taking depositions and he was given authority for settlement ranges, but none of

these diminishes his independent judgment or discretion. See 29 C.F.R. §

541.207(e)(1) (2000).

Third, Gallardo did specialized work “under only general supervision.” See

§ 11040(1)(A)(2)(d). Although Gallardo contends that he needed approval for

virtually every decision he made, the undispusted facts show that Gallardo spent

most of his time working independently with little day-to-day oversight. Overall,

he spent the majority of his time conducting independent case analysis, making

recommendations to his superiors, or appearing alone at settlement conferences,

trials, and arbitration hearings. He decided how to present issues he argued at

hearings, how to frame depositions, and how best to reach settlement within the

authority given to him. Although Gallardo was required to report to a claims

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adjuster, the adjuster did not dictate how Gallardo was to conduct himself during

hearings. The majority of Gallardo’s work provided significant freedom and

latitude to act.

Gallardo does not contest the remaining two elements of the administrative

test. See §§ 11040(1)(A)(2)(f), (g). Because there are no genuine issues of

material fact as to any of the elements regarding the administrative exemption, we

affirm the district court’s grant of summary judgment to AIG Claims.

II. The District Court Did Not Abuse Its Discretion in Excluding

Gallardo’s Expert Report

The district court’s decision regarding the admissibility of expert testimony

is reviewed for an abuse of discretion. See United States v. Sepulveda-Barraza,

645 F.3d 1066, 1070 (9th Cir. 2011). We use a two-step inquiry to determine if

such an abuse has occurred: (1) we determine de novo if the district court used the

correct legal rule when excluding the expert testimony; and (2) if so, whether the

court’s application of the legal standard was “illogical, implausible, or without

support in inferences that may be drawn from facts in the record.” United States v.

Redlightning, 624 F.3d 1090, 1110 (9th Cir. 2010).

Here, the district court identified the correct legal standard for determining

whether an expert’s testimony is admissible, i.e., Fed. R. Evid. 702. In addition,

we cannot say that the district court’s application of this standard was without

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support from the facts in the record. The undisputed facts do not require expert

analysis. Moreover, the expert provided a bare legal conclusion that was properly

excluded by the district court. See Aguilar v. Int’l Longshoremen’s Union Local

No. 10, 966 F.2d 443, 447 (9th Cir. 1992). The district court had sufficient support

from the record to draw the inference that the expert testimony was not helpful to

the trier of fact. Thus, the district court did not abuse its discretion in excluding

the expert testimony. 

AFFIRMED

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