filed in may two thousand and thirteen and we are here on appeal of two issues one the classification order and to the summary judgment order i address the classification first because summary judgment was granted with respect to damages issues and therefore i think it makes sense to talk about liability before we get into what her damages for the the district court denied certification solely on predominance and the only issue in this case  uniform policies and practices these are admitted policies and practices they are either legal or they are not individual inquiries are not required with the exception has two possibly damages which doesn't make sense and i mean yes i think it makes sense to me as to the route restriction policy because of the argument is if you if you if the employer retained too much control then there wasn't a break i'm summarizing but yes that's that makes sense to me that that would be a legal ruling right yes and then you have another argument about you know every x and i think that if the idea is that that that argument also makes sense to me that it could be classified as and even  too much control then any auto doc was going to be a problem and unlawful by your view but but the other argument about meal breaks i think you said it seems to come out a couple of different ways in the in the  briefing and it one point i think you say that if it doesn't comply across the board it's not that the written policy didn't comply with the law and if there was oral instructions oral and traction didn't a comply and that would be i think the problem for me because is there some allegation that the supervisors were giving directions about taking meal breaks while the allegation is that the supervisors the thirty six witness testified that all supervisors told employees to simply take a break whenever they wanted and that didn't change until two thousand and eleven and is it your argument that that would be insufficient yes your ok because our argument is that under brinker in order to authorize the break you must pacifically tallon ploys that they may take it before the and i think you rely on brinker for the follow up proposition which is that and i think this is what troubled the district court at least in part some of these folks got meal breaks at least some of the time yes right and so i think that's what he was tripping him up but that happened in brinker as well yes yes ok did you have any other questions on the promise ok and the only other thing i just wanted to highlight on the route restriction is there is no need there is no need to do an individualized inquiry as to whether or not people were controlled or felt controlled in the bondo case the california court of appeal held that if you were strict at the location of the of the meal period then you are as a matter of law not free of all duty so really it's just a question as to whether there's a break exactly as a matter of law it's not a break exactly it's ok so i ask another question what if we decide that the summary judgment was correctly granted on the individual claim but that that class was improperly denied certification well i i believe that he used to the class claim should still move forward because he  perhaps leave to put in another class representative but i do believe he is still harmed do you have authority for what we've done in other cases like that where we have we reminded and said here's here within a certain period of time given the district court direction to give you a period of time to get a class representative or decide whether you're going to go forward or have you thought through what you do is you're asking for in that regard no but i i read the summary judgment order really is an error as a matter of law ok you want to try again that's going to be a bigger all of his time records which show in black and white what his damages are the district court then ignored that and said simply because plaintive did not calculate in his rule twenty six disclosures the numbers in his time records there are no damages evidence which is literally mental gymnastics because there is damages evidence whether this time they're going to say is you know that it's not their burden to do the homework for you and figure out what what the calculations going to be that's going to be there ok so the case is filed and i think a background of the procedural history of this case does matter here the case is filed may fifteenth two thousand and thirteen defendants removed were assigned one case number that was case thirteen four three three five july eleventh two thousand and thirteen we have the rule twenty six conference we exchange disclosures plaintiff files a motion files a motion to dismiss remain and is granted we go back to state court and defendant removes again on october eighteenth two thousand and thirteen we receive a new case number so the first batch of discovery and disclosures are gone were it's a restart defendant serves discovery on october twenty fifth two thousand and thirteen before the rule twenty six conference on november twenty fifth two thousand and thirteen plaintiff objects including that we already had our rule twenty six we haven't had the rule twenty six conference again we exchanged the same motions plaintiff moves to remain and defendant moves to dismiss the case this time the district court and dismisses portions of the case sue is fine day remains the case ninth circuit appeal follows and we came before you the case was stayed between approximately november two thousand thirteen until april twenty to two thousand and sixteen when we got back into state court sorry federal court on july twenty one two thousand and sixteen the parties had the rule twenty six conference i spoke with counsel we filed rule twenty six report nowhere in any of these discussions or the rule twenty six report that is jointly filed by both counsel to defendant ever say hey we don't know what your calculations are we need your calculations we're missing your calculations you're deficient they waited until summary judgment to suddenly say we've been harmed and the truth is the defendant hasn't been harmed because in their removal they calculate it his missing breaks and  plaintiff's calculations on opposing summary judgment our calculation is actually even less than the removal so there is no harm it's information that they have had this whole time i think if you do ever answer their damage  exactly where you want me to go that is the strongest support for that for the notion that posing counsel knew what your damages yes what are those who just give me one minute your honor you've got plenty of minutes  one more moment i have a couple more for you actually maybe i am putting on the spot why don't you go ahead and finish your argument you can you'll have a chance on revolver cop and give us those records but for at least from my notes that'll be important and i wish you well so i think for me the overall arching issue is that rule thirty seven is if you do not disclose evidence you are the you may be sanctioned if it's willful by not being able to use that evidence there's been no evidence withhe all you think there was a sanction is that you read the order yes because we did submit evidence as to damages in summary judgment we put his time records in the record and we cited to them and those records show in black reasoning his reasoning was that he quote plaintiff has not provided competent evidence and we did provide evidence that the time records are evidence and i did provide a calculation in the opposition to the summary judgment motion it was in my presentation should fall the way we present it in our brief due to that ninth circuit precedent on the issue of summary judgment there are few answers to the arguments made about the timing and the concept that the case restarts when there remain and then removal if that argument proves too much to let me explain why if it does that there is no rule twenty six disclosure whatsoever in the record the rule twenty six disclosure they relied upon in this case is the one that they served were as part of our opposition the motion of remained and that's the role record and they had that in november of two thousand and thirteen rule twenty six self executing there is no obligation for a defendant to come forward and file a motion to compel the so that's that's point one i agree with you would you have a response to her other point i haven't looked at it i don't like i don't think i have an issue well but she's decided to a joint rule twenty six statement that she said i think she characterize it as saying that there where we agreed to use all the other discovery in the prior case the day look we have a case in this case for efficiency purposes so that goes to show the argument that all the old discovery goes away is kind of a gotcha when the whole procedure here was to promote effici and rely on prior discovery taken in the case consul if you thought the lack of the answers to your damage in iraq or jurors were insufficient wasn't the proper remedy then the file a motion to compel rather than do nothing and we followed up with a deposition of the plaintiff rather than having the lawyer craft in a rocketry that gets signed we followed up the deposition and at the deposition we asked the questions on the spot and the witness answered i don't know i don't know here rule twenty six that says i'll give you a computation later and that's a self executing obligation by a plaintiff we have in iraq a tories with blanket objections and these are simple in iraq restate your mount of damages and those objections are worth a read to see the position the pla was taking and then with follow up with a deposition where the answer is i don't know that's our defense that the plaintiff has failed to satisfy his burden of proof we did the right thing by filing a motion for summary judgment on no damages that exact position affirmed in the weinberg case which is a landowner case and then in the opposition brief on summary judgment below plainest main argument is is that doctrine of the burden of proof of damages doesn't apply in a wa contacts that's also not true that's not supported by the plain language of rule fifty six or sell a text and then we cite the hoffman case from the ninth circuit that context was a motion in limine a to exclude damages but at the same concept that the plaintiff has the burden if they haven't disclose or damages calculation or computation throughout the case they think they have no damages they can't satisfy their burden so the procedure here was appropriately filed i don't think it's really an ascent of any way you want to force the defendant to draw out what the plaintiff says damages models are that's the whole point of rule twenty six and why the advisory committee notes state itself executed and by the way and it's a point you alluded to in your question  is the case is over because you have no case in controversy you don't the court shouldn't wrestle is the term used in one of the ninth circuit decisions i think that's the boil versus madigan case for making seventy four there's no occasion to wrestle with classification second to this day you can comb through the entire brief and all the record there's never been a request by the plaintiff even on appeal of any other alternative relief that request is waived to the case so that you're referring to let's when we're in the district court in if we're on the plane aside you may ask for leave to find a new class representative for example if there's an adequacy problem and in fact that happened in the delicate way the case with opposing counsel the antecedent case to this case which and class or was denied because that prior plaintiff was deemed inadequate so then they filed a new case and that's how it gets removed and that's where we are now there's never been there's not one prequels despite knowing about the procedure ever including in this cour citation that is on all fours i think you've given me the one you want to rely upon and i appreciate that i'm a little nervous that it by the court's reaction to you that there's a concern it's not on all fours i think the principles the trick question is that you know i understand i think recently i think that's the more you know case the that said i don't want this emphasis of the summary judgment firmness to take away from our strong belief that if the court addresses classification that classification should be afoot it is important that the standard of review is obviously considered here its abuse of discretion and factual findings have to be considered under a clear error standard and here the factual findings for which there is no clear error that determining the effect of what's called the rubber strips first of existence and we take one step back it's important to keep in mind in this case the lawyers theory of liability and the witnesses theory of liability and what the actual class represented this said in his deposition mr presses i've never read the employee handbook i have no idea about the route restriction policy i've never been i've never wanted to go on mile and a half away from my truck to have a meal and been denied that opportunity what he said is the pressure of my job and servicing customers and putting them first causes me to miss breaks that's his allegation job pressure so the argument that the rat restriction policy can be is a uniform policy it applies to everyone is fundamentally flawed based on the facts of this case the district court found that the plaintiff didn't read the policy taylor but a sure you it's not the same one he says i could leave my truck and go anywhere my wife could pick me up we could drive five miles we have declarations that were submitted in the record for which it would it is not clearer to have found that all these drivers some of them like to stop in and out burger on their route or stop at a mcdonald's they name he's restaurants one of them likes to stop at a particular restaurant because it's near where his mother lives and that's where he wants to visit with her for a meal  long haul truck drivers that drive vast distances and they are the boss of their own day that's their own testimony so the effect of the policy has to be determined on a case by case basis and the ninth circuit has warned given strict instructions in the weighing vs chinese daily news case and the in right wells fargo overtime case i understand those are exemption cases but the language in those cases state it is a busa discretion to look at a policy in isolation the word isolation is in the decisions from other factors and here the court did exactly that they didn't say he did exactly what his discretion permits he looked at the other factors others prefer to eat in their truck there's testimony of restriction theory and he goes through the records and shows that numerous plain numerous drivers including the plaintiff himself as he testified sometimes forgot to swipe for a meal there was one instance where he actually testified about it in the other drivers who give testimony in the record that is also admitted in and it's a factual finding and it's not clearly erroneous that they forgot to swipe work there would be fog or they'd be parking under one witness testified about how he would deliver the milk underground at  hospitals garage facilities in the g p s wouldn't work and they were swiped issues and the court said all of those issues together you have to can analyze the raw data you have to look at the why you have to look at the web and what's the reason for the missing break and that's not sufficient most two are individualized issues that would swamp the case all of those factual findings are appropriate and they were appropriately balanced and weighed in the core properly exercised its discretion to conclude the class should be certified and so  i think on the issue of millbrae timing the court also found it's properly that it's a discretionary policy taken meal when you want to and then it drives testified i took it before the fifth hour like i like taking it later  witness testified he liked to go to his niece's sweet sixteen party so he could leave work early if he took his meal at the end of the day or skip it completely again those are all case by case issues that the district court properly balance we had testimony from thirty five percent of the punitive class all of which varied all across the board about different vignettes and stories about their day to day holy experiences and the district court balance that appropriately applied the proper legal standard and those two should be affirmed if for any as far as calculating specific dollars and cents bradley vs networkers international which we cited in our brief is under california law evidence of your damages in a way generic case is either going to be testimony or time records it is up to the judge or the jury then to calculate or you could provide an expert and simply because we didn't provide an expert to add one plus one equals two doesn't take away from the fact that at the summ judgment stage we did provide the evidence of one and one and it was up to the judge to understand that at that point a jury could add those two numbers together and make an award there was evidence of the damages  this isn't one of those cases where well the restriction it's simple if the route restriction is found to violate then every shift he worked it he is entitled to his our premium pay and that's easy if it's the missed meal breaks then it's every day in which he does not have a meal breaks white in his time records and that also under california law is cited in our prefuse of defendants requirement to keep adequate employment records and if they don't then a rebuttal pro presumption creates for the plaintiff that the meal break was not taken so all in this case we are stipulating to defendants records we are not challenging defendants records we are saying that damages or altitude his records show and that is fair evidence and it it is the ninth circuit has made clear that a defendant cannot come back in especially a certification and i wouldn't understand why in summary judgment and say our own records don't count as evidence for some reason it is evidence  regarding the issue of the adequacy of the representative this case has a long history and it's that becoming a comedy of errors but we didn't move for leave to add another class representative because by the time we got to summ judgment class certification had been dismissed and was pending review here and we asked this court for emergency relief to stay summary judgment so the classification decision could be addressed and that relief was denied and therefore we couldn't try and change classification because that ruling had been made and at so at that point the summary judgment ruling was issued it was an individual action but opposing counsel's argument is that nowhere have you made a request that  judgment is affirm that you'd be given leave to substitute it didn't appear to be pursued surely possible to do it since the order of the rulings the way they came down in the appeal i'm talking about even in the ninth circuit where both issues are before us i think that's what he was talking about anyway well i i guess it's not clear but obviously we would ask the case to go forward as we've as we've requested the certification be reverse and then turning to the notion that rule twenty six is a self executing punishment rule thirty seven c one makes clear that yes itself executing but it's not to be used if it's substantially justified or harmless and truly this is a harmless error if it even is an error that plaintiff was required to perform the specific calculations at the summary judgment day sage and not simply a deuce evidence which again under california law wage an hour it is the plaintiff's job to use evidence of damages defendant is not harmed at all they have had their it's their own records they have had these records for many many years this case has been litigated for many many years defendant knows exactly what the damages are if it's the route restriction it's every shift worked and if it's the missed meal periods it's every day where there is no meal period on his time sheet it's evidence that they've had anything because everything's been produced there is no evidence collection that's the judges think we're refrain that and the defendants are saying the same thing you didn't calculate it for us we don't know what you are right and what we said in opposition to summary judgment was you know sorry we didn't calculate it you have the records all the time it's on your records and here's the calculation in composition the summary judgment my declarations that these are the number of missing male periods and again the irony is my number on the same records for whatever reason came out to anything the only thing was again the notion that some people may have liked the route restriction policy and liked eating in their truck and reading a newspaper is nice but also does not change the fact of whether or not the policy is lawful or not and there was a recent case it's it came out after the briefing but i'll just give you the cite a b m industries overtime cases nineteen cal at fifty to seventy seven fifty to seventy seven that explains again it's the question is not how individual people perceive the policy for class certification the question is does the policy exist and is it uniformly applied and the answer to both out on our record is yes but just in summary on the summary judgment motion yes the court says that we were asked multiple times arbitrary that rule twenty six is self executing it they asked your client it is deposition and so that's several times and your best response is the in iraq victoria was propounded before rule twenty six and plaintiff did neglect to supplement after being stayed for three years and no one ever called and said hey we're missing you're in iraq atory response that goes to your good faith that goes to the good faith and that's not rule twenty six self executing that's discovery response and the the proper procedure for discovery responses is to make a motion to compel was there evidence summary judgment is do you have evidence do you have evidence is there a dispute and summary judgment they said there is no damages and we sit here his pay records that is responding to statement yes one request and there wasn't there were several that was well the the rule twenty six we said oh sorry one and one other thing is rule twenty six does not require supplementing if the information has since been produced in discovery and it was later produced in discovery that information so they had the information which would lead technically relieved plaintiff of the requirement of supplementing the rule twenty six disclosures and they asked him at his deposition did you missed meal breaks and he said a lot of them and