and request this court to reverse the district court's order denying certification of the running time late statement regular rate and waiting time classes this court should reverse the district court's order because it committed it abuses discretion in multiple ways regarding the rounding time that this food court improperly reached the merits of pla for an improperly applied khalaf well settled california law on what constitutes hours worked regarding the wage statement class the district court again misinterpreted california law and therefore committed if per se abuse of discretion regarding the regular rate and waiting time cos the district court improperly refused to consider evidence clearly before it which would the district there are two alternative bases to reverse the district court's ruling first the district court reached the plane the plaintiffs the merits of playing to strongly time claim when actually prove that they were actually working during the rounded time in order for it to be compensable under california law men ask a question on this rounding time so is it your position that it's a legal question whether or not this time on either side of the clock is considered time under the control of the employer know you and i it's a factual question well if it's a factual question then how is it that some people show up and they don't actually have to work but they might just be hanging around the break room or chatting and other people might be working so that then if it's purely factual it seems like every employee has a different set up which would counsel against the basically having an underlying sufficiently under the control of the employer when that is a question of fact for the jury to decide did they could they question the question of whether they were actually working that actually working meant you're going to have to ask each reason he found that individual issues predominate was because he that you're going to have to determine make a factual determination that where they're going after you punch down you are actually articulated better and that was if that's really a legal question when are you under control then that would seem to be an issue that would predominate for everyone but now i'm somewhat confused because you're telling me it's a factual issue and i think what i was confused was the the rationale behind the court underlying court ruling was that in order for and i guess we should take a step back because one of the reasons why the district court's ruling is incorrect legally is because its underlying premise its underlying premise was that in order for work to be compensable they have to be actually working which is not the rule of law in california under california law under morning on the california supreme court said held that there are two events a trigger two events that convert time into compensable time that when the employee is under the control or the employee is permitted or suffered permitted to work with all this or whether or not to do so in neither in neither the court's ruling the supreme court's ruling in in more yonder the court said they have to be actually working in fact in late july then the question just to be clear is that whether they're under the employer's control is a legal question correct yes ok yes  as this court stated in all can tar it would ask too much of plaintiffs at the class or at the cation stage to establish whether or not the employees were actually under their employer's control when the goal of class certification is merely to establish whether plaintiffs or to ask the question whether plaintiffs presented a common question capable of class white resolution and in this case the plaintiffs have counsel i want stage and that is whether or not district courts can consider only admissible evidence or whether they can consider non admissible evidence so what's your position on that point yes your honor and that goes to to produce admissible evidence is there some case that you can cite to the court that indicates that it would be that this circuit requires admissible evidence may be admitted to establish typicality and in addition your honor well i mean once the a circuit also has i believe is the server plex plumbing and in that case the eighth circuit said look what we're dealing with here as district court judges are dealing early in the discovery process they don't have all the information they don't have everything that they would need to make that full  addition to passing i cited ninth circuit court precedents in specifically blackie vs iraq in which this circuit health that allegations in the complaint alone are sufficient to satisfy the requirements of rule twenty three and not the district court can request from the parties additional information from which the parties tend get to the court to make an informed decision lead plaintiff having to demonstrate that you mean rule twenty three through evidentiary proof so i suppose there's some ambiguity as to whether evidentiary proof means what you're talking about or whether it means admissible evidence for a proof you have a position on that i think your honor based on the law based on certain nights for good law all you have to produce is sufficient material and that's that's taken from black you versus versus iraq sufficient material sufficient evidence to establish typicality and the requirements this is not a trial this is not a trial on the merits otherwise we will convert and as the u s supreme court said an engine otherwise we are going to convert classification into many trials on the merits why don't i want to give you some time for rebuttal but i've another question could you address the payslip issue or that wage issue and the commonality there yes sure so just so that i can address that before you accurate the wage statement is by by itself defective and therefore the employee is deemed to supper injury and i'm a employees are getting the same wage statement non neutral running time policy the correct rate regular rate of pay and the incorrect name of the employer that employed them that's common why prove we presented a common contention capable of class w those wage and some of those wage statements to the district court so we could see that they were on the same yes rather we did and i guess in some ways that the defect in the wage statement on the hours worked is derivative of the rounding claim and i mean that part of it absolutely you are right absolutely did you want to save some time for rebuttal yes i do thank you good morning and may it please the current my name is christina hayes and i represent the defendant a pal even if matter this court recognizes that the district court denial of classification is entitled to broad deference and may only be overturned abuse of discretion here that deference requires affirming the district court's opinion on all grounds in its reasoned decision the district court provided three independent and alternative grounds for denying classification of plaintiff claims first with respect to all of plaintiff propose subclasses the district court found the plaintiffs failed to carry their burden of establishing typicality under rule twenty three a three second and again with respect to the district court additionally denied certification on the independent grounds the plane to sail to carry their burden of establishing predominance under rule twenty three b three let's go to your to big challenge the argument and should the court have considered the supreme court said which is that rule twenty three requires a rigorous analysis and plaintiffs here have proposed that simply the complaint itself was sufficient but the supreme court has made clear that rule twenty three is not your say evidence or would it ultimately be inadmissible a trial the only evidence that was before the district court was the declaration of plaintiff's counsels paralegal harvey or reed and the district court noted that there were no multiple eviden issues with this report it wasn't simply hearsay the there was no way to verify the results there was no date context entire periods in years were missing from plaintiff's ollie's records a class three went back to two admissible evidence at this stage not necessarily only admissible evidence that as we were just discussing there is in must be evidentiary proof and so the district court was certainly within its discretion to evaluate the did not phrase it as admissible evidence the district court fully evaluated the ruiz declaration and determined that it simply was not even competent evidence so this was not evidence that could be relied on to affirmatively establish plaintiff's burden to prove to khalidi and that was the only evidence before the district court there was no sworn testimony from either of the name plaintiffs establishing that their injuries were similar to the rest of the class and again that is something the plaintiff have the burden  prove they were required to establish that their injuries were typical of the rest of the class and the district court had no competent evidence not just admissible evidence it had no competent evidence before it to prove that basic requirement and if somebody could come into the court in simply what based on their complaint or completely unreliable evidence established the power eddy there were not conducting that rigorous analysis that the supreme court requires we do at the rule twenty deposition on the ground that it was attorney client and work product privilege that we were not actually able to depose mr isa basically the how much discovery chip place before the classification motion was filed  dmitted decoration and when you were denied the opportunity to depose did you then follow up with the district court judge we did not at that time and the reason for that was so you know obviously you have a very limited amount of time when you are when you're preparing your opposition to the classification mission so plaintiff had a doctor they made it very clear that they would not be producing mysteries for a deposition at that point based on the numerous evidentiary deficiencies that we saw in the ruiz declaration we made the decision to strike it on those grounds including the fact that it was improper opinion testimony it was unreliable it was hearsay there were numerous evidence or deficiencies if you look at the charts that were submitted council isn't that exactly the witnesses hasn't been fully fully gone through that i mean i think district courts would be a loss if they wouldn't they be at a loss if they were only to consider admissible at this stage and again in this particular case there's been a twenty percent sampling of all time in payroll records there had been approximately ten depositions taken this was not a case where plaintiff lacked looked at position testimony from the name plaintiffs he simply was just decided and the initial paper submitted in chambers by the judge with oral argument and so who knew that his stage what exactly the judge was what level of evidence the judge was to require and it does seem that they were given they have the information it doesn't seem that they were given the opportunity to provide it just because of how this was decided well certainly they could have provided declarations or deposition testimony with their moving elements of twenty three and what level of proof is required and it seems like it's fairly unsettled on or there was no evidence of such a colony with his moving papers again he did not present any deposition or declaration testimony from the they're not and if they're not that that is actionable well then again you're out of there but we're talking about a class action and it's not as though the wage in our laws are exempt from the requirements under rule twenty three they still rounding up practice right so it rounds up and down so that for example if an employee were to clock in three minutes late the employees time with them be rounded down in the employee would get the benefit of that time even though they were not clocked in so if that isn't rights argument now you're making a merits argument because it's the same practice with respect to every single member of the class absolutely not your honor so yes the practice is the same  whether or not employees were under the control of their employer whether or not they were working and i know there's been a lot of talk about where that actually working language and whether that was appropriate the reason that is in another statistic or put that in quotes and the reason for that is that is what the federal regulation and the fees can the taste out of california that's the language they use is whether or not the in play with ravishingly word on it is being under the control of the imports so the district court actually doesn't use the control standard in two different places in his opinion if you look at the excerpts of record at page seven their district court notes that punch times are only indicative time actually worked if are and are working and under the control of their employer whenever they are punched into work but walking in and clocking out a practice then you can get into the factual issues of whether there was or wasn't and it may be a summary judgment but it seems to me that if you are under the control of the employer and you clock in early then you might not be getting paid on the other hand if you're not necessarily under the control then maybe no harm no foul well and that's the factual issue though and that's what precludes classification so for example we have declaration testimony from employees who with park their cars clock and get back into their cars and go into the parking lot and park there are certainly free to use that time for their own purposes which is what the standard is for under the employer's control so that employee is not engaging in compensable activities during that time another employee might clock in and immediately begin working even though their time is being rounded and that was what the district court noted is that you have all of these different factual issues some employees well it seems to me that begs the whole question of the question of whether whether in fact you're under the control of the employer and isn't that really a legal question to be resolved maybe based on undisputed facts no your honor because there was no policy preventing employees from using time during the grace period for their own purposes so we have no common place of that sort of begs the question of whether you're still under the control but again that's an individualized question because i employees of some employees are a free to use and there is no actual absolutely no policy or requirement that employees use that time for the purposes of the employer and so and it's very clear from the declaration testimony that many employees were not using that time that they were free to use that time for their own purposes and did in fact use that time for their own purposes engage in personal pursuits and that's what the district court noted not that necessarily some employees won't ultimately be found to have engaged in compensable activities but it's going to be different and it requires an individualized increase in to each and every employee as to what they were doing as to whether they were free to use that time for their own purposes and that's what the district court determined it did not reach the merits in fact it specifically declined to reach the merits and that the issue was not whether this policy is lawful or unlawful is whether you can even make that determination based on common proof for example time records here you can't use the time records because they don't actually show what the employees were doing and whether they were under the employer's control during those times this side this little grace actually working the way you're using the term even though during the twelve hours they're under the control of the employed some employees are going to be on your computer ordering personal items or browsing movies are out and others are going to be actually in the emergency room so you can then who are you and can be said about any any period of time and and the fact that you're making that argument as to the grace period doesn't changes from a question of law to a question of in this particular case because rounding is lawful if it does not alter mentally under compensate the employee we do have to look at whether the employees were being under compensated and the only way to do that is to engage in this individualized inquiry into what those employees were doing and that's to determine liability and that's what this whole question is is tenure determine liability based on common proof and so in this particular case especially we don't just have employees sitting at their computers we have employees who are out in the parking lot who have left the premises these are not employees who are subject to the employer's control in those particular instances and that's the evidence that the district court consider and that's the evidence that the district court relied on if the court hasn't questions about that i'm happy to answer them i think that's pretty well briefed ok thank you very much  your honor what's your response to her claim that there is no policy so therefore you can't have a uniform determination of when an employee is under the control you know your honor that is the defendant's argument is the argument that was raised in morley on and that you california's supreme court utterly rejected that argument that just because you can engage in personal activity such as reading or listening to music or drinking coffee does not eliminate the type of control that an employer exercised on an employee that was rejected because control could be exercised in many different ways for example in the meal period classes if a if if the employer has a policy preventing employees from leaving the premises that's control so so once we get into the merits stage we've right now what we've established is a common contention capable of classified resolution the defendant has a policy a practice that under compensates employees do it's rounding time practice now we can go into the merits and determine whether or not that employer exercised sufficient control to deem that time compensable and this is nothing new right ar circuit in jimenez confirmed that represented evidence can be used to establish lie billion damages look at tyson foods where the u s supreme court confirmed a two point nine million dollars verdict on a dawning and doffing off case through statistical sampling from an expert this can be done and so your honor just just to close  last question about your paralegals excursion into the data if you say that the paralegal can't be deposed because you have attorney client and yet europe relying on that data as representative of the class i am seeing some collision in that position on your part your honor we thought it was unnecessary when we left i thought it was the difference between the actual time and the rounding time basic math the court of the court ruled that it was hearsay and not only hearsay but constituted expert testimony and our argument was how does subtracting actual time versus rounding time to determine whether or not they were harmed by the wrong time practice requires expert so you're saying that they only added and subtracted they didn't manipulate the data in any other way exactly is it that when that is exactly it it's just basic math math that my eleven year old could do