morning honors may please the court carol gillum on behalf of plaintiffs appellants we represent two women who sought to be class representatives for over four hundred bus any of the sub classes there were four we saw it here to focus on one of those where such classes and that was the fourth one which was the wage statement by aleisha and this court  granted us leave and so we are here today what first student did here is to make it nearly impossible for these bus drivers many of whom barely have a high school education to figure out whether they got paid for all the hours they worked they covered one period of time on the pay and statement and a different period of time on the payroll spreadsheet that they used and why in the world would they do that it appears to me as with most things in this case that if you follow the money you find the answer the first student is very concerned with billing school districts for every revenue dollar they can and paying drivers for every hour they must came in second so what we did here is submit declarations from a number of people who talked about how confusing it was to try to figure out you could never determine your pay accurately by looking at the pay stub you had to look at least one other document the spreadsheet and you had to look at one from a previous pay period because only nine days of one pay period were being covered this is something that is pretty egregious violation of the law section two to six requires certain information on pay stubs including the hours work the day work the deductions and so forth and in this case first student failed to do that and they failed for years and years only a long while after we were into this litigation did they finally change their practices was thinking i was going to ask does that section two to six do you think provide for the remedy of that violation if there is a violation of section two to six then what is the  the remedy there are three remedies provided for in the statute one is the penalty statutory penalties of one hundred dollars for every parry period after the first up to a maximum of four thousand dollars secondly you can recover actual damages which in this case could be wages and third you can seek injunctive relief and we pled all three of those in the underlying complaint what the complaints allege with regard to the name plaintiffs personal injury or from this i'm sorry can you speak while the complaint allege with regard to the name plaintiffs in particular in particular it does allege that they when they received their pay  stubs would try to go to management and complain that they appear they were not being paid for all the hours that were worked and one of them in particular miss him as was very vocal and went to management numerous times trying to get the situation straightened out all tonight does are they alleging particularized i understand all to me this question comes in this issue at least intersects with the in many of the statues to include a personal injury where they alleging per se injuries or actual injuries on their own well the complaint alleges both and of course the complaint was brought on their behalf as well as on behalf of a class so each one each person's injuries while the number of dollars would be different if they're readily determinable when you get somebody like an economist that's what it took air for someone to figure out what was going on the economists went through and found that every single one of over five thousand instances where he compared the pay stub to the spreadsheet they were all wrong because they were counting different days different hours but presumably ultimately i guess the kind the defendants claim that there is limitations problem with regard to all but one year right they claim that yes and there are and that there are incorrect in that your honor because we have a wage claim and a seven thousand two hundred claim and therefore we can go back and look for four years worth of damages injun applies to the penalty while attaching the statute the what the amendment did was say that injury is presumed asked to the penalty well that that's certainly true that it is as to the penalty that it is presumed not asked any other sort of but i'm not so no i'm not certain that the amendment was limited exclusively to the statutory powell to the amendment was to make clear that you should not be looking narrowly at these claims as a couple of courts said done and of course in this case those are the cases that were cited by first student and they had to know better littler had to know that the law was amended and thirteen and that there were a whole slew of cases since then two in the california intermediate courts of appeal and a number of federal district court cases all of whom held that it was clarifying and retroactive it's not even called retroactive  clarifying and so there was not an actual change around the council yes your honor does the record show why the defendant was doing this i don't believe that they admitted to the reason why they were doing it in the record they admitted they were doing it the yard manager in the record says these are two different periods that's true that these wage statements are never accurate so we have that in the record that their motivation i believe we developed in some other instances to show why managers were incentivized to suppress wage claims to deny people who came into the office but we limited this appeal to just the wage statement claim  if you don't have any other further questions i'll reserve the rest of my tell if your suggestion at this point that we hold that it was a proper class or that sufficiently developed you can certify the class here on your own well i don't remember our city i mean if in fact there were some limitation of the class based on time periods either because of the preceeding our filing it would go from two thousand and fifteen through the present really so and we had to know that there are four hundred and it's in the record that yes it typically they have at least two hundred good morning david dow representing defendant appellee first student i think what i'd like to to pick up and begin with is the question of to the extent this court determines that the district court failed to give due consideration to this particular theory of liability in this particular subclass what's the appropriate remedy and i think it begins with the proceedings that took place before the district court the the the plaintiffs did identify this fourth subclass as the wage statement subclass but they didn't in their notice of motion given give any indication that the theory of liability for the this wage statement subclass was different than the same theory of liability for the main and the other subclasses which was off the clock work and when you look through their opening brief before the district court i use the as a different area of liability because the violation is of a different strategy it typically the section two to six  derivative claims in other words the theory is drivers work off the clock so there is there is unpaid time and there's unpaid time that's missing from the wage statements and so the off the clock claim created and  complaint head then and was so much alleging that was missing from the two to six subsections e m f and based on defendant's conduct as alleged here in which only alleged off the clock work the class members including plaintiffs are entitled to fifty dollars for the news oh i'm sorry i mean the wrong paragraph during the class period defendants have routinely failed to provide class members including plaintiffs with timely and accurate wage and hour statements showing gross hours earned the total hours worked all deductions made net wages earned the name and address of the legal entity employing the school bus drivers and all the political hourly rates in effect during each pay period and the corresponding number of hours worked at each hour really rate so there was nothing in the complaint that said we received where our wage statements are confusing or that says we receive a payroll spreadsheet that has a different time period than is reflected on the wage statements so so that theory wasn't alleged in the complaint getting back to the motion for classification the plaintiffs devoted only two paragraphs or actually four paragraphs in certification standards and so it's not that the district court just completely shirked its duty as in the no rues and rodriguez cases which have been cited it's that the district court failed to pick this particular theory out from among the weeds in the entirety of the class certification motion and so for that reason we think that to the extent there was  case should be remanded for consideration by the district court the other question that i want to address is this notion of injury and damages the plaintiffs have sort of been a moving target on what their theory of liability is here sometimes they're arguing the wage statements are incorrect because they don't accurately report hours that worked and sometimes the theory is that the wage statements don't show the correct time period the reality is that the time period that but i thought their argument was that they couldn't because it didn't show the correct time period then they couldn't decipher whether they were getting paid for the correct hours that they were that they worked yes understand that well the  the drivers received a payroll spreadsheet which showed each day that they worked the number of hours that they worked and the amount of pay for each day and then that all totaled up at the bottom of the spreadsheet because this actually ultimately goes to the question of damages which is what the court was focused on earlier in the assassins doing now know that at least for the post two thousand and thirteen at least for the thirteen it has been widely accepted right i don't know that that widespread acceptance is necessarily correct and here is why the cases that have been cited that applied  section the injury requirement before two thousand and thirteen found that the plaintiffs in needed to show an actual injury i saw him something i haven't seen any that said that showing of injury wasn't required as a shoving a printer is required but the question is whether or not getting the report in the proper report is an injury know some cases that said it was i'm not aware of those cases i didn't see them that the only cases that i we were able to locate were the case that said just not having the information on a wage statement isn't an injury it it requires something more not necessarily a whole lot more but something more and so when this statute is amended in two thousand and thirteen that says injury is deemed to have been sustained in the just by virtue of the fact that information is missing and or is incorrect that's a change in the statute because now instead of having to show injury plaintiffs no longer need to do that injury is instead presumed to exist and that's a change assuming i'm correct the question of damages comes up to the extent the plaintiffs are trying to seek actual damages in this case their expert found and really what was taking place is that the actual pay period the drivers were being paid for was slightly different than the pay period that was reflected on the wage statement so to the extent there was any inaccuracy in the wage statement it was that it didn't list the correct pay period that it doesn't necessarily follow that the plaintiff sustained any damages their own expert concluded based on his analysis that if you look at the actual pay period that was being paid the drivers received all of their wages and so there is no there are no damages because the drivers were ultimately paid everything that they were owed and if their claim is that they are that they did suffer damages then that's why we have to look at that in order to figure out whether this should be classified as a class correct yes and my argument is yes their claim is that they suffered damages but even their own expert economists statistician ultimately concluded they didn't because they've been paid all the wages of they were owed if we were to bring him in and say so what wages haven't they been paid his answer would have to be nothing they've been paid everything so what time period should the class have been certified for and whether or not there are any damages to the extent the plaintiffs are seeking damages as opposed to the statutory penalties in our position is if there are no damages in their experts artie said there are no damages then the whole damages question falls out of play and it's not something that needs to be considered or relied upon for purposes of class certification whether it's certifying the class or deciding how far back into the past the class should extend to see thank you ok and i think unless there are questions that was what i had to say  period do you agree with that i believe that is likely the correct answer the deemed injured piece clarification must be applying penalty then you have to prove actual damages to prove actual damages you have to prove an actual injury you know let me say one thing when he was saying that the economists found there were no damages that is not correct i don't want to know  answer to my question how would you feel in what circumstances could there be actual damages without an actual injury either any damages without an injury you said yes well the deemed injury if you didn't injure a us you get a penalty but you don't get anything else you get yes you get a penalty for the deemed injury right but you don't get so therefore with regard to the actual damages part of the to mean that everything that was available under the statute post twenty thirteen was also available back as far as you can go and that it did not only now show i understand that you can you can go back  but without the clarifying amendment because it to you can go back to what the clarifying amendment is your position but only the only remedy then is a penalty you can go back with without the deemed injured clarification if you get actual damages which means an actual injury you could yes you could always go back four years for that ok so then the question becomes so that kind of peaceably issue whether the actual injury piece of it creates a class action problem because predominance and become an issue and so on this is that would really be a merits and damages issue to me that where we're talking about here is there uniform practices drive one answer to a question that's commonly  common to everyone in the class and yes that sounds right whether it was a improper practice right so all you have to do here really is say the workers could not determine their accurate pay just by looking at their wage statements and that's the end of the question we said the class went back to two thousand and eleven but that was four years before we filed if the suggestion that the statutory penalty is only a year that goes back from the time one year prior to filing all the way forward so would have gone from twenty fourteen through the process and presumably the district court i mean man can figure that out where's the how far back just a classic yes presumably that can happen although i am suggesting that with the authority you have you can figure it