JIMMY KUANG V. BEL AIR MART, No. 16-16956 (9th Cir. 2017)

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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT DEC 08 2017 MOLLY C. DWYER, CLERK JIMMY KUANG, No. Plaintiff-Appellant, 16-16956 U.S. COURT OF APPEALS D.C. No. 2:15-cv-00160-JAM-EFB v. BEL AIR MART, a California corporation and DOES, 1 to 50, inclusive, MEMORANDUM* Defendants-Appellees. Appeal from the United States District Court for the Eastern District of California John A. Mendez, District Judge, Presiding Argued and Submitted December 4, 2017 San Francisco, California Before: M. SMITH and IKUTA, Circuit Judges, and BATES,** Senior District Judge. Jimmy Kuang appeals the district court’s order granting Bel Air Mart’s motion for summary judgment. We have jurisdiction under 28 U.S.C. § 1291. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable John D. Bates, Senior United States District Judge for the District of Columbia, sitting by designation. Even if Kuang’s declaration and attachments were admissible, the district court did not err in dismissing Kuang’s claim for breach of the Collective Bargaining Agreement (CBA), because Kuang failed to exhaust the grievance procedures required by the CBA. See Vaca v. Sipes, 386 U.S. 171, 184 (1967). Because Kuang informed the district court, both orally and in his written submissions, that he waived the argument that his failure to exhaust was excused due to the union’s breach of its duty of fair representation, this argument is waived on appeal and we do not reach it. See Blaisdell v. Frappiea, 729 F.3d 1237, 1241–42 (9th Cir. 2013). Because Kuang waived his hybrid claim, we do not reach his remaining arguments. AFFIRMED. 2

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