establishes any liability contravene the predominance requirement under rule twenty three v three a plain text of rule twenty three dollars b three requires that the or find that common issues are dominate over individual issues not that there be no individual issues at all nd the district court finding the defendant for dominance argument is an issue of liability and not damages conflates rule twenty three certification location and all of the fuss members the senate takes issue with the fact that some class members may not have been in their words exposed or subjected to the overtime policy because they did not work overtime and receive an honest or in the same day period however that is ultimately going to be an issue that is decided that damages phase and is relevant to the class certification issues if the court wants to  right you're on the way i understand the banks argument is the definitive argument that the liability stems from damages not the words there is a percentage of the class that did not suffer damage but the the liability in this case flows from subclass for example of only the nonexempt employees who worked overtime and earn a profit you  the amount of damages doesn't have to be proven to get a sort of but why am i am i am correct in thinking that some injury at some level overtime hours worked necessarily caused because members injury into your question about the damages this court stated in torres versus mercer canyon that even a well defined may inevitably contains some individuals  based on the deposition testimony of america's nd witness plaintiffs worked overtime and received a bonus during the same period and necessarily suffered harm they're there for the court with without uniformly establishes and the line below the this is a creative argument but it's not supported by rule thirty give me role twenty three jurisprudence i firmly in the district court's order this court would be reading a new requirement and a rule twenty that presently doesn't exist under nicer can be only two requirement but the core is required to find on the twenty three b three predominant inquiry is whether there are questions of law or facts come into class members predominate over any questions affecting only individual members and to whether a class action is a subsidiary or method for faily fairly and officially adjudicating the controversy here plan to put forth an controverted common evidence that all class members were subject to this same common policies for calculating over time adjust and one of us a member received a bonus and worked overtime during the same a the common question of whether defendant's overtime policies complied with california law including all varada to present the predominant question that can be resolved for all class members and this single adjudication  the should have been certified of a twenty three dollars b three class now plaintiffs can use to be plaintiff can try this case entirely based on the common proof using  the employee's time and payroll records but just expert can determine class wide damages using mathematical calculations without the need for any member testimony in fact the entire universe of evidence necessary to calculate  it and in the way be clean as well as several derivative claims only part of the district court decision and miss challenges here is a denial of her overtime right claim but the district court got that part of the decision have two distinct policies and we have and they apply to many class members who were never exposed to either of them and for this court to reverse on the basis that the classes should be created  point an additional predominant issue which is that many class members any talk of those who were exposed to either policy and again that may be two thirds of the proposed class is that they many of them may overpaid rather than underpaid would require additional individualized review by the district court or the trier of fact there would have to be review of everything will cost members pay rather than wage statement and it would be a different by the number of weekdays in the mons way back accounting for the fact that some convert might have worked on a six or seven the day of that multiple weeks but that is one example where you can see how a hot summer might have been if exposed were uniformly underpaid as a result if case is unique because of the number of members who were not i never subject to either policy and who if they were subject did policy and that every class member who was exposed to that policy did not in fact can pay faster into her overtime premiums and then likely was overpaid as a result we have just respect to judges who question regarding whether or not there is any evidence in the record of an actual overpayment i think that's critical here because defendants argument that under the overtime polic member may potentially have been overpaid is exactly that attorney argument there is no evidence whatsoever that you will find in a record that any member suffered an actual overpayment as a result of the policies the with respect to the calculation on how defendant is arriving at these hypothetical overpayments i'll note that the defendant does not address the issue of how an overpayment would result from using total hours worked as opposed to monitor time hours of work the defendant wants to talk about the two steps when you're when you're predominance and this is something that is easily rectified by the formation of a subclass which the district court is within its discretion to do at any time and to because the two policies share a common nucleus and that both policies used total hours worked and the divisor as opposed to non overtime hours worked which is they clear violation of all rhonda and one which which is simply not true because once we've determined whether or not the policies violate california law by improperly taxing the overtime in our act can simply calculate a slight damages i using the