FOR PUBLICATION



### UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

KI A D A VI D S ON , individually, and on behalf of other m em

bers of the general public sim ilarly situated,

Plaintiff-Appellant
,

v

.
O’RE I L LY A U T O EN T E R P R I S E S , LLC, a Delaware corporation,

Defendant-Appellee. No. 18-56188

D.C. No. 5:17-cv-00603- RGK-AJW

OPINION

Appeal from

the United States District Court for the Central District of California R . Gary Klausner, District Judge, Presiding
Argued and Subm itted February 6, 2020 Pasadena, California
Filed August 3, 2020
Before: Danny J. Boggs, * Sandra S. Ikuta, and Morgan Christen, Circuit Judges.

O pinion by Judge Ikuta; P artial Concurrence and Partial Dissent by Judge Christen

* The Honorable Danny J. Boggs, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.D A VI D S ON V

. O’RE I L LY A UT O E N T E R S

. 2

SUMMARY * *

Class Certification

The panel affirm ed the d istrict court’s order d e n ying plaintiff’s m otion for class cert i fication in an action challenging the written rest-break policy of plaintiff’s form er
em ployer, O’Reilly Auto Enterprises, LLC.

In her procedural challenge, plaintiff argued that the district court abused its discretion by declining to extend the Septem ber 21 deadline for m oving to certify th e class, and this im peded plaintiff’s ability to obtain p re-certification disc overy of inform ation. The panel held that the district court d id not abus e its discretion by requiring plaintiff to

m eet the deadline for filing h er m otion f or class certification while at the sam e tim e g ranting her an a d d i t ional m onth to develop evidence and subm it a supplem ental brief.

In her substantive argum ent, p laintiff argued that the district court erred in refusing to certify a “rest break” class. The pane l h eld that plaintiff failed to show that “there are questions of law or fact comm on to the class,” which was o ne of the requirem ents for class certification under Fed. R

. Civ. P. 23(a)(2).

The panel held that plaintiff waived her right to appeal the dism issal of her wage-statem ent claim

. Th e panel held that in a stipulation, plaintiff p r eserved the right to appeal the denial of class certification and the ruling on th e mo t ion for

** This summ ary constitutes no part o f the opinion of the court. It h as been prepared by court staff for the convenience of the reader.D A VI D S ON V

. O’RE I L LY A UT O E N T E R S

. 3

summ ary judgme n t, but she did not preserve the right to appeal th e district court’s d ism issal of her wage-statem ent claim

. Concurring in p art and dissenting in part, Judge Christen agreed that plaintiff did not preserve her right to appeal the district court’s order dism issing her wa g e statem ent claim

. However, she would hold that the d istrict court erred in im posing an unworkable cl a s s c ertification deadline, and it abu s ed its discretion by denying p laintiff an opportunity to conduct p re-certification discovery. She also disagreed with the m ajority’s conclusion that plaintiff’s r es t b reak claim s failed for lack of comm onality pursuant to Rule 23(a)(2).

C OUNSEL

Liana Carter (argued), Ryan Wu, an d Ro bert Drexler, Capstone L aw APC, Los Angeles, Ca li fornia, for PlaintiffAppellant.

Jam es M. P eterson (argued), John Morris, Jason C. R oss, and Rachel E. Moffitt, Higgs Fletcher & Mack LLP, San Diego, California, for Defendant-Appellee.D A VI D S ON V

. O’RE I L LY A UT O E N T E R S

. 4

OPINION
IKUTA, Circuit Judge:

In this appeal from the stipulated dism issal of a putative class action, Kia Davidson claim s that the d istrict court abused its d iscretion in d eclining to e x tend a deadline for filing a m o tion for class certification. She also claim s that the district court erred on the m erits in declining to certify a class of em ployees based on h er em ployer’s written res t-break policy, which allegedly d id not com ply with California law. W e conclude that the d istrict court did n o t abuse its discretion in setting and enforcing a deadline. Nor did the court abuse its discretion in d enying Davidson’s m otion for class certification. Because D avidson f ailed to offer any evidence that the wri t t e n policy w as applied to em ployees, she was
un able to establish that there were questions of law o r fa ct

comm on to the class.

I
O’Reilly Auto Enterprises, LLC is an au t o

- p arts retailer that operat e s s o me 5 20 stores in C alifornia. Between June 2016 and July 2017, O’Re i l ly em ployed Kia D avidson as a delivery specialist at o ne of its stores in San Bernardino, California. Toward the end o f her tim e there, Davidson filed

an action against O ’Reilly o n her own behalf and on behalf o f

a class of persons “who worked for [O’Reilly] as a nonexem p t, h ourly-paid em

ployee in California within four years prior to the filing of this complaint until the date of trial.”

Davidson alleged three sets of claim s relevant to this app e a l. First, Davidson alleged that O’Reilly violated C alifo rn ia’s r e st-b reak req u irem e nts. A C alif

o rn ia regu latio n ,D A VI D S ON V

. O’RE I L LY A UT O E N T E R S

. 5

W age Order N o

. 7, p rovides that “[e]very em ployer shall authorize and p erm it all em ployees to take rest p eriods” and that “[t]he authorized res t period tim e shall be based on the tot al hours worked daily at the rate of ten (10) m inutes net rest tim e per four (4) h ours or m ajor fraction thereof.” 1 Cal. Code Reg s

. t it. 8, § 1 1 070(12)(A). Em ployees that work between six and eight hours are entitled to two ten-m inute rest breaks, o n e fo r the first four hours and a second for the

rem ainder. See id. 2 Em

ployees that do not receive these rest breaks are entitled to increased pay in the form of a rest-break prem ium : “one (1) hour o f pay at the em ployee’s regular rate of com pensation for each w ork day that the rest period is not provided.” C al. Code Regs. tit. 8, § 1107 0 (12)(B). According to Davidson, s h e an d o ther em ployees did not receive rest b reaks and O’Reilly did not pay (or underpaid) rest-break prem ium s.
Second, Davidson alleged that O’Reilly failed to provide

em ployees with wage s t a t em ents that identified “the nam e and address of the l egal entity that is the em ployer,” as required by s ection 226(a)(8) of the C alifornia Labor Code. According to Davidson, O’Reilly’s wage statem ents were
noncom pliant because they listed O’Reilly’s address as “PO BOX 1156, SPRINGFIELD, M O 65801,” instead o f

1 “Though not d efined i n the wage order, a ‘ m ajor fraction’ long h as been understood—legally, m athem atically, and l inguistically—to m ean a fraction greater than one-half.” Brinker Rest. Corp. v. S uperior Court
, 53 Cal. 4th 1 0 04, 1028 ( 2012). So a “m ajor fraction thereof” as applied to a “four-hour period” m ean s “a n y am o unt of tim e in excess of t wo hours.” Id. at 1029.

2 “[A] rest period need not b e authorized for em ploy e e s whose total daily work tim e is less than three and o ne -half (3 1⁄2) hours.” Cal. Code Regs. tit. 8, § 11070(12)(A).D A VI D S ON V

. O’RE I L LY A UT O E N T E R S

. 6
providing the street address of O’Reilly’ s c o rporate headquarters, “233 South Patterson Avenue, Springfield, MO 65802-2298.” Third, relying on these first two claim s, Davidson sought civil p enalties under California’ s Private Attorney General Act (PAGA). See Cal. Lab. Code § 2698, et seq

.
Davidson served O’Reilly with a first am ended com plaint

on June 2 3, 2 017. At the tim e, the d istrict court’s local rules provided that “[w]i th in 90 d ays after service of a p leading p urporting to comm ence a class action

. . . the propo n e n t of [a] class shall file a m otion for certification that the action is

m aintainable as a class action, unless otherwise ordered by the Court.” C.D. Cal. Local Rule 23-3 (Dec. 1
, 2013). The district court let stand the local rule’s filing deadline, and so Davidson had 90 days after service—until Septem ber 21—to

m ove for class certification.

On August 2, the parties filed a stipulation and proposed order seeking to extend the Septem ber 21 deadline by 67 days to Novem

ber 28. The parties gave sev e r a l r easons for reques t i n g the extension. First, Davidson intended to m o ve t o transfer venue, and the earliest d ate on which she could notice a h earing was Septem ber 18, just three days before the Septem ber 21 d eadline. N ext, Davidson claim ed she needed

m o re tim e to gather evidence to support her class-certif i catio n
m otion. The stipulation explained that Davidson had served interrogatories, docum ent requests, and deposition notices on O’Reilly, seeking “[t]he contact inform ation of putative class

m em bers,” the “[p]utative class m em ber t i me p unch and wage record s , ” and inform ation related to O’Reilly’s “labor policies.” Davidson claim ed this discovery was relevant for class certification because it w ould: (1) be used to interview putative class m em

b ers and obtain declarations, (2) allow herD A VI D S ON V

. O’RE I L LY A UT O E N T E R S

. 7

to analyze tim e and w age records for recorded instances o f potential Labor Code v iolations, (3) allo w her to inspect O’Reilly’s p olicies, which w ill show how hours of work, nonwork, and com

pensation are regulated, and (4) all ow h er to review comm

unications showing how O’Reilly im plem ented its policies. According to D avidson, “the putati v e class would be prejudiced without this discov e ry a t class

c e rtification” because “it b ears upon the comm onality an d predom inance of Labor Code issues am ong class m em bers as
a whole.” The stipulation also listed procedural s t e p s , such

as p roviding putative class m em bers with notice and opportu n i ty to opt-out from the disclosure of their contact inform ation, which would take p lace before discovery. The d istrict court summ arily denied the stipulation to exte n d th e Septem ber 21 deadline.

Over the next few m onths, the parties engaged in discovery. 3 Davidson reques ted m ultiple depositions from O’Reilly pursuant t o Ru l e 30(b)(6) of the Federal Rules o f Civil Procedure, which prov id e s that entities, including corporations, m

ust d esignate a k

nowledgeable per s on who

can testify on the subject m atter identified in a deposition

3 Although Davidson initially p ropounded discovery requests on June 30, 2017, her requests were prem ature because t he parties had not yet m et and conferred as required by Rule 26(f) of t he Fe d eral Rules of Civil Procedure. S

ee Fed. R. Civ. P. 26(d) (“A p a rty m ay not seek discovery from any source before the parties h ave conferred as requ ire d by Rule 26(f).”). Davidson accordingly re-propounded her discovery requests on Aug u s t 1, after the parties com pleted their Rule 26(f) conference. Davidson also filed a second am ended com plain t s h ortly thereafter, on August 7.D A VI D S ON V

. O’RE I L LY A UT O E N T E R S

. 8

notice. 4 Davidson’s Rule 30(b)(6) no tices so u g ht in form ation

on O’Reilly’s “re s t period p olicies, policy docum ents, procedures, or practices.” David s o n also propounded docum ent requests and interrogatories, including a request that O ’Reilly provide “the full n am e, identification numb e r, position, dates of em

p loym ent, last known a ddress, and last known telephone num

ber” for “each and e v ery ” p utative class

m em ber.

In response to these requests, O’Reilly provided answers t o D a v i d s o n ’ s i n t e rr o g a t o r i e s , p r o du c e d r e s p o n s i v e docum ents, and agreed to produce persons knowledg e ab le about the s ub

ject m atter identified in Davidson’s Rule 30(b)(6) notices. O’Reilly also agreed to provide a r an dom

sam pling of contact inform ation for p utative class m em bers, after providing them with notice and an opportunity to o b ject. Such notice is r e quired in state class actions to protect

em ployees’ privacy ri g h ts and is comm only referred to as a Belaire-West notice. See Belaire-West Landscape Inc. v. Superior Court , 149 Cal. App. 4th 554, 562 (2007).

4 Rule 30(b)(6) provides, in relevant part:

In i t s notice or subpoena, a party m ay nam e as the deponent a public or private corporation, a partnership,

an a s s o c iation, a governm ental agency, or other entity and m u st describe with reasonable particulari ty the

m atters for exam ination. The nam ed organization m u st then desig nate o ne or m ore o fficers, directors, o r
m anaging agents, or designate other p e rsons who

c o n s e n t to t estify on its b ehalf; and it m ay set out the

m atters on which each person des ignated will testify.
Fed. R. Civ. P. 30(b)(6).D A VI D S ON V

. O’RE I L LY A UT O E N T E R S

. 9

As discovery progressed, the parties a gain m oved to

e x t e nd the Septem

ber 21 deadline, this tim e by 14 day s , t o
accomm odate their schedule for Rule 3 0(b)(6 ) depositions. The district court denied the m otion, though in response to a subsequent m otion, it gave Davidson an opportunity to file a
s up plem ental brief that could incorporate the depositio n testim ony and any other newly discovered evidence.

On the Septem

ber 21 d eadline, Davidson filed her m otion for class certification along with a class-action trial p lan. The

m otion and trial plan explained Davidson’s theory regarding the rest-break claim

. According to the m otion, each o f O’Reilly’s policy docum ents required ten-m inute rest breaks for every f

our hours of work but did not include the language “or m ajor fraction thereof.” Davidson argu e d th at this

om ission created classwide issues, such as whether O’Reilly violated California law by failing t o “authorize or perm it” required rest breaks and whether O’Reilly’s “uniform written

r e st break policy violate[d] California law by failing to give full effect to W age Order N o. 7.” The evidence presented at trial “would include the text of every iteration o f O’Reilly’s written rest period policy, as well as O’Reilly’s corroborating party adm is si o ns expected in the deposition.” Because the rest-break policy applied to all class m em bers, “the comm on questions engendered b y that policy [could] be answered by

comm on proof.” The m otion wa s supported by Davidson’s declaration stating that she “recall[ed] som etim es working a shift between 6 and 8 hours in length” but was “not aware o f any rest period prem ium s being paid to [her].”

The m otion for class certification also addressed outstanding discovery m atters. Davidson stated that O’Reilly had not yet produced “all corresponding policy docum ents” and ha d n ot “yet been able to produce a Rule 30(b)(6)D A VI D S ON V

. O’RE I L LY A UT O E N T E R S

. 10
designated witness to testify in this m atter as to [O’Reilly’s] rest period p o l icies, policy d ocum ents, p rocedures o r practices.” But Davidson “expect[ed]” that O’Reill y would “provide further discovery regarding rest periods in tim e for supplem ental briefing.” Aside from this, David s o n d i d not state that there was a need for any additional discovery.
Along with her class-certification m otion, Davidson filed

a stipulated m otion and proposed order that would allow her to file a supplem ental brief o n October 20. T he m otion explained that Davidson had taken two depositions just two days before she filed th e class-certification m otion and that

one m ore deposition was “ anticipated to occur shortly.” Thus, Davidson sought an opportunity to support her m otion for class certification with any n ewly d iscovere d evidence. The district court granted the stipulated m otion and issued an
o rd er giving D avidson an additional m o nth to gather ev id e n ce to support class certification.

While Davidson was g athering additional evidence, the district court ruled on O’Reilly’s pending m otion to dism iss. The district court dism isse d Davidson’s wage-statem ent claim o n the ground that she failed to allege a viola t ion o f section 226(a)(8) of the Labor Code. The district court held that the word “ a d dress,” as used in section 226(a)(8), “encom passes both [a] physical street address and [a] m ailing address,” and so O’Reilly’s u se o f a P. O. b o x address “fulfilled the requirem ents of section 226(a)(8).”

On October 20, Davidson filed the supplem ental brief in support of her m otion for class certification, as perm itted by the district court. The b rief indicated that i t incorporated “testim ony given during [O’Reilly’s] Rule 30(b)(6) depositions

. . . and an additional docum ent pro du c ed b y”D A VI D S ON V

. O’RE I L LY A UT O E N T E R S

. 11
O’Reilly. Davidson expla i n ed that “[s]ince filing [her] Motion f

or Cl a ss Certification, [ she] ha[d] g athered additional docum entary and corporate Rule 3 0(b)(6) testim ony sup p o rting certification of h er rest period class.” A s in h e r class-certif

icatio n m o t io n , Davidson’s supplem ental brief did not raise a n eed f or additional discovery. Her reply in support of class certificati o n , fi l ed on Novem ber 20, also

m ade no m ention of a need for further discovery.

On Decem

ber 15, the district co urt d enied Davidson’s

m otion for class certification. B ecause the district court h ad alre a dy d ism issed the wage-statem ent claim
, it denied the request to certify a wage-statem ent class as mo ot. W ith respect to the rest-break class, the district c o urt stated that, although O’Reilly’s written policy w as inconsistent with Ca l ifornia law, Davidson had not shown that the writt e n policy was “consistently applied to all 21,000 proposed class

m em bers.” The dis tr i c t court noted that Davidson’s o wn declaration “does not even state that she was ever denied proper rest breaks.” By contrast, O’Reilly provided declarations from 310 em

ployees asserting that they received all rest breaks m andated by C alifornia law. Accordingly, the district co urt concluded that Davidson failed to show that O’Reilly im

p lem ented unlawful practices; the existence of a facially defective policy was not e n ou g h, standing alone, to show that comm on questions predom inated.

Davidson continued to litigate her rem aining claim s until, in June 2 018, the district court granted summ ary judgm ent in fav o r of O’Reilly o n D avidson’s PAGA claim

. S hortly thereafter, the parties entered into a stipulation wh er eby Davidson agreed that the district court would dism i s s wi th prejudice and enter judgm ent on each of her claim s, including (1) her PAGA claim (on which O’Re il l y had been grantedD A VI D S ON V

. O’RE I L LY A UT O E N T E R S

. 12

summ ary judgm ent), (2) her wage-stat em ent claim (previously d ism issed for failure to state a claim ), and (3) her rest-break claim (for which class cert i fication had been denied). The parties agreed that Davidson would preserve the right to appeal two rulings: the district court’s “[1] denial o f class certification (Dkt. No. 6 1) and [2] ruling on m o tion for

summ ary judgm ent (Dkt. No. 78).” The district court entered judgm ent as requested. This appeal followed.

II

On appeal, Davidson raises both a procedural and

s ub s t antive argum ent to support her claim that the district court abused its discretion in denying h er m otion f or class certification. W e consider each argum ent in turn.

A

W e begin with Davidson’ s procedural argum ent. She argues that the district court abused its d iscretion by d eclining to extend the Septem

ber 21 deadline for m oving to certify a class. A ccording to Davidson, this im peded h er ability to obtain pre-certification discovery of inform ation tha t wo uld have shown O’Reilly’s on-the-ground implem entation of its rest-break policy.

“District courts have broad discretion to control the class

c ertification process.” Vinole v. Countrywide Home Loans, Inc. , 571 F.3d 935, 942 (9th Cir. 2009). Rule 23(c)(1)(A) o f the Federal Rules of C ivil Procedure gives district courts discretion to set deadlines for when parties m ust m ov e fo rD A VI D S ON V

. O’RE I L LY A UT O E N T E R S

. 13

class certifica t i o n. See F ed. R. Civ. P

. 23(c)(1)(A). 5 The qu estion whether a district court abuses its discreti o n b y setting deadl in e s or lim iting p re-certification discovery is inherently fact intensive and m ust be d ecided bas ed o n the facts of each case. See, e.g. , Doninger v. Pac. Nw. Bell, Inc. , 564 F.2d 1304, 1313 (9th Cir. 1977).

Because “we rev i e w a district court’s case m anagem ent decisions for abuse of discretion,” G CB Commc’ns, Inc. v. U.S. S

. Commc’ns, Inc. , 650 F.3d 1257, 1262 (9th Cir. 2011),

we m ust affirm unless the decisio n was “illogical, im plausible, or without support in inferences that m ay be drawn from facts in the record,” United States v. Hinkson
, 585 F.3d 1 247, 1264 (9th Cir. 200 9 ) ( en banc). “[This] standard is d e fe r ential, and properly so, since the district

c o urt needs the authority to m anage the cases before i t efficiently and effectively.” Wong v. Regents of Univ. of Cal. , 410 F.3d 1052, 1060 (9th Cir. 2005).

A district court do e s not abuse its discretion b y actively

m anaging the p re-certification process—whether that m eans lim iting the tim e “to conduct discovery related to the question of class certification,” Vinole
, 571 F.3d at 942; accord K amm
v. Cal. City Dev. Co.
, 509 F.2d 2 05, 210 (9 th Ci r. 19 75), o r denying pre-certification discovery entirely, see Mantolete v. Bolger
, 767 F.2d 1416, 1424 (9 th Cir. 1985); Doninger , 564 F.2d at 1313. District courts m ay also exercise their discretion b y enforcing f

iling deadlines; they have “the power to establish reasonable tim es for the filing of docum ents” and

5 Rule 2 3(c)(1)(A) states, “At an early p racticable tim e after a person
sues or is sued as a class representative, the court m ust determ ine by order whether to certify the action as a class action.” Fed. R. Civ. P. 23(c)(1)(A).D A VI D S ON V

. O’RE I L LY A UT O E N T E R S

. 14

to evaluate the legitim acy of an excuse for failing to f ile on tim e. Grandson v. Univ. of Minn. , 272 F.3d 568, 574 (8th Cir. 2001) (citation o m itted); ac cord Fowler v. UPMC Shadyside
, 578 F.3d 203, 214 (3d Cir. 2009) (holding that the district court did not abuse its discretion “in denying a m otion for a class action determ ination which was untim ely under the local rule”). W e h ave recognized that disregarding a district court’s “decision to honor the term s of its binding scheduling order” can “undermi n e the court’s ability to control its docket.” Johnson v. Ma mmo th Recreations, Inc. , 975 F.2d 604, 610 (9th C ir. 1992). This is particularly true “[i]n these days of heavy caseloads,” when “trial court s in b oth federal and state system s routi n ely set schedules and establish deadlines to f

oster the efficient treatm ent and resolut i on o f

c a s es.” Wong , 410 F.3d at 1060. “Those efforts will b e successful only if the deadlines are taken seriously by the parties, and th e best way to encourage that is to enforce the deadlines.” Id.

While w e generally defer to a district court ’s casem anagem ent decisions, including in the class-certification process, see Campbell v. City of L os Angeles
, 903 F.3d 1090, 1110 (9th C ir. 2018), a district court m ay abuse its discretion if it unreasonably applies rules in a way that deprives a party of an opportunity to present class allegations or a m o tion for class certification, see ABS Entm’t, Inc. v

. CBS Corp.
, 908 F.3d 405, 426–27 (9th Cir. 201 8 )
, or denies a party a
rea s o nable opportunity to obtain a ruling on the m erits of a
m otion for class certificati on, see Pitts v. Terrible Herbst, Inc. , 653 F.3d 1081, 1092–93 (9th Cir. 2011). For instance, in ABS Entertainment , the plaintiff filed a putative class action in district court. 908 F.3d at 411. Th e p art i e s were subject to a local rule (the sam e one applicable here), which set a 90-day deadline for fi l ing a m otion for classD A VI D S ON V

. O’RE I L LY A UT O E N T E R S

. 15
certification, and they sought to e xtend the 90-day deadline to allow f or pre-certification discovery. Id. The district court refused to do so o n the g round that there wa s “ n o show o f

cau s e , l e t alone good cause,” id.
, w ithout “address[ing] the asserted need for pre-certification discovery,” id. at 426. The plaintiff tim ely m oved for class certification, but the district court identified two technical de fe ct s , 6 and then struck both the m otion and the class allegations in the com plaint as untim ely filed. Id. at 426. By striking the class allegations, the district court prevented the p laintiff from renewing the

m otion for class certification unless the plaintiff obtained approval to am end the com plaint. S

e e Fed. R. Civ. P. 23(d)(1)(D). 7

On appeal, we held that a district court’s “application and interpretati on of its Local Rules is entitled to ‘a large

m easure of discretion,’” but the district court’s application o f the local rule’s 90-day d eadli n e was so inflexible as to be

6 The m otion “set a hearing date for the m o tion beyond the 35-day period after service of process as required by the court’s standing orders

an d i t d i d n o t i n clude a statem ent pursuant to Local Rule 7-3 t hat a ‘conference o f counsel’ took p lace p rior to the filing of the m otion.” ABS Entm’t , 908 F.3d at 412.

7 Rule 2 3(d)(1)(D) provides that a district court m ay “ require that the pleadings be am ended to elim i na t e allegations about representation o f absent p ersons and that the action proceed accordingly.” Fed. R. Civ. P. 23(d)(1)(D). If the d i strict court does not strike the class allegations, parties m ay m ove a d i s tr ict court to alter or am end an order g ranting o r denying class certification at any tim e “before final judgm ent,” F ed. R. Civ. P. 23(c)(1)(C), m eaning th a t the d enial of a m otion for class

ce rt i fi cation “is inherently t entative,” Coopers & Lybrand v. Livesay , 437 U .S. 4 63, 469 n.11 (1978); see also McNamara v. Felderhof
, 410 F.3d 2 7 7 , 2 80 (5th Cir. 2005) (“A district court is free to reconsider its clas s certification order as often as necessary before judgm ent.”).D A VI D S ON V

. O’RE I L LY A UT O E N T E R S

. 16

“incom patible with Federal R

ule o f Civil Procedure 23.” A B S Entm’t
, 908 F.3d at 427 (citation om itted). T herefore, we agreed that the district court “abused its discretion in striking the tim ely filed m otion as a sanction for

. . . ‘trivial’

om issions in the notice,” and we reversed and r em anded so the d istrict court could consider the class-certification m otion

on the m erits, along w ith whether p re-certification discovery

was warrant ed. Id. ; see also Pitts , 6 53 F.3d at 1092–93 (holding that the district court abused its discretion wh en it failed to set a cl e ar d eadline f or f iling the class certification

m otion but nonetheless ruled that the plaintiff had m issed the deadlin e and c o uld n o longer f ile a tim ely m otion for class certification).

Here, we cannot say that the district court abused its discretion b y r e quiring Davidson to m eet the deadline for filing her m otion for class certification while at the sam e tim e granting her an additional m onth to develop evidence and subm it a supplem ental brief. F irst, the district court h ere set

a clear deadline for filing the m otion for class certification, unlike the situ a t i o n in Pitts , 653 F.3d at 1092–93. While adheri ng t o this deadline, the court was not inflexible; it allowed David s o n an extra m onth to engage in additional discovery and the opportunity to f ile a supplem ental brief after doing so. Cf. Skidmore v. Led Zeppelin
, 952 F.3d 1051, 1077 (9th Cir. 2020) (en b anc) (holding that the district court did not abuse its d iscretion by “lim iting trial tim e b y being up front about the lim its and th e n be ing f lexible at counsel’s request”). David s o n was not prevented from reasonably d eveloping her claim s. Nor did the court prevent David s o n from obtaining a ruling on h er m otion for class certification; rather, it considered Davidson’s briefing and evidence before i s s u i n g its o rder. Thus, Davidson was afforded “an opp ortunity to present evidence as to whether a class actionD A VI D S ON V

. O’RE I L LY A UT O E N T E R S

. 17

was m aintainable.” Vinole
, 571 F.3d at 9 4 2 ( quoting Doninger , 564 F.2d at 1313). D espite denying the m otion for class certification, the district court did not strike Davidson’s class allegations, which left her free to renew the m o tion after obtaining further evidence in pre-trial discovery. See Fed. R. Civ. P. 23(c)(1)(C); Coopers & Lybrand
, 437 U.S. at 469 n.11. Under these facts, w e co n c lu d e that the district court did not abuse its discretion i n s e tting and enforcing a deadline, and we therefore decline to “underm ine the court’s ability to control its docket.” Mammoth Recreations , 975 F.2d at 610.
Arguing against this conclusion, Davidson contends that the district court’s adherence to the Septem ber 21 dea d l i n e
was unreasonable because it deprived her of suffi c i ent tim e to obtain necessary disco very regarding O’Reilly’s on-theground im

plem entat i on of its rest-break policy. This argum ent fails f

or se v e r a l reasons. Most im portant, it is belied b y the record. As a review o f the tim eline m akes clear, Davidson elected not to d evelop her rest-break claim s based

on policy im

plem entati o n , but instead based this claim on eviden c e th a t O’Reilly had a written policy for rest breaks that did not com

ply with W age Order No. 7. Al th o u gh the parties’ first stipulation m entioned D avidson’s inter e s t in obtaining the contact inform ation of putative class m em bers to conduct interviews, Davidson did not p ur s u e this line o f discovery. Instead, D avidson focused on t a k i n g Rule 30(b)(6) depositions to establish th a t O’Reilly’s written policy was defective; indeed, the parties’ second stipulation to extend the Septem

ber 21 deadline was b a s e d solely on a need to accomm odate the Rule 30(b)(6) depositions.

The record shows that Davidson could have pursued the

o n

- t h e

- g r o u n d i n f

o r m a t i o n r e g a r d i n g O ’ R e i l l y ’ sD A VI D S ON V

. O’RE I L LY A UT O E N T E R S

. 18

im plem entation of its rest-break p o l icy. O’Reilly agreed to provide David s o n with a random sam pling of contact inform ation for putative class m em bers, subject to u s in g a Belaire-West notice to provide notice and an opportunit y t o opt-out. Davidson did not follow up on this offe r

. Sh e attem p ts to excuse her failure to do so on the ground that she would not have had tim e to interview the em ployees be fore the f iling dead l ine, because it would have required a “m inimum of 30 days to p rovide pu ta t i ve class m em bers

n ot ice and opportunity to o pt-out.” This argum ent has no support. There is no federal requirem ent that partie s u se a Belaire-West notice, m

uch less th at putative class m em bers b e g iven 30 d ays to respond. In fact, district courts have frequently opted for “a protective order, in lieu of a BelaireWest notice,” Goro v. F

lowers Foods, Inc. , No. 17-cv-02580, 201 8 WL 3956018, at *9 (S.D. Cal. Aug. 17, 2018), particularly when “there [was] not sufficient tim e to allow for [the] [n]otice,” Thomas-Byass v. Michael Kors S tores (Cal.)

, I n c. , No. EDCV 15-00369, 2 015 W L 5 568609, at *5 (C.D. Ca l

. Sept. 22, 2015). Davidson could have raised thi s alternative with O’Reilly or m oved to com pel a response to her discovery requests, but she chose not to.

The dissent concedes th a t th e parties could have u sed a protective order in lie u o f a Belaire-West notice, but argues that this alternative would have b een “fut i l e in Davidson’s case” b ecause Davidson could not m ove to com pel discovery, receive a favorable ruling, and interview putative class

m em bers before the S eptemb e r 21 deadline. Dissent at 29 n.3. This argum ent is based on the unsupported assum ptions that O’Reilly would h ave refused to provide discovery absent

a court order; that the d istrict court would not have provided an expeditious ruling, despite the f act that it ruled on a p rior discovery m otion in just four days; and that Davidson wouldD A VI D S ON V

. O’RE I L LY A UT O E N T E R S

. 19

hav e been required to interview putative class m em bers before Septem

ber 21, even though Davidson had until October 2 0 to file a supplem ental brief. W e decline to engage in these speculations given that Davidson did n o t even attem p t to pur s ue on-the-ground inform ation regarding O’Reilly’s rest-break policy.

Not only does Davidson’s argum ent that she needed m ore tim e for discovery lack support, she waived it by not raising it “sufficiently for the trial court to rule on.” I n re E

. R. Fegert, Inc. , 8 8 7 F. 2 d 955, 957 (9th Cir. 1989). After the first stipulation, none of Davidson’s filings m entioned a need to conduct em

ployee interviews or explain e d how evidence from these interviews would support class certi fication; indeed, she did not m ention a desire to interview employees regarding their rest-brea k experiences the entire tim e her

m otion fo r class certification was pending. Nor did she attem p t to raise the issue w ith the district court after it refused to certify a rest-break class on the ground that she had not

s h own that O ’Reilly’s written p olicy was “consistentl y applied to al l 2 1 ,000 proposed class m em bers.” Only

now—on appeal and after stipulating to the dism issal of her claim s—does Davidson contend that m ore di s covery would have allowed her to develop an alternative theory of the case
an d changed the outcom e below. D avidson’s argume n t

com es too late; we routinely “prevent[] p arties from sandbagging their opponents [and the district court] with new argum ent s on appeal,” Dream Palace v. Cty. of Maricopa , 384 F.3d 990, 1005 (9th Cir. 2004), as Davidson attem p ts to do here.

Davidson also raises a second argum ent as to wh y the d istrict court abused its d iscretion by failing to g rant an
e x t ension. She claim s (and the dissent agrees) that ABSD A VI D S ON V

. O’RE I L LY A UT O E N T E R S

. 20

Entertainment

created a per se rule that denying a m otion to

e x t end a local rule’s 90-day deadline for m oving for c l a s s certification i s an abuse o f discretion. Dissent at 32. W e disagree. C onsistent with our fact-intensive r e v iew, see Doninger , 564 F.2d at 1313, ABS considered the specific facts of the case before it and concluded that the d i s tr i ct court’s inflexible application of the 90-day deadline—in conjunction with striking the class-certification m ot ion f or technical defects—deprived the plaintiff of a ruling on the m erits on its

mo t i o n for class certification and w as “incom patible with Federal Rule of Civil Procedure 23,” 908 F.3d at 427. Despite claim ing to “see no principled way to distinguish the procedural posture of this case from

. . . A BS,” Dissent at 32, the dissent does n ot acknowledge, m uch less address, that the plaintiff in A BS was deprived of a ruling on the m erits of its class-certification m otion, 9 0 8 F

. 3 d at 4 2 7 , wh ereas D av id so n
was not. Nor did ABS purport to eli mi n a t e district courts’ broad discretion in setting an d en f orcing deadlines, see Wong , 410 F.3d at 1060; Mammoth R ecreations , 975 F .2d at 6 10; cf. Skidmore
, 952 F.3d at 1 077; rather, the distr i c t court’s error
was its inflexibility, not its decision t o s e t a deadline. The district court in this case evinced no such inflexibility and did not deprive Davidson of fa i r c onsideration o f her m otion. Accordingly, we d ecline to conclude that the district c o urt abused its discretion. 8

8 The dissent asserts that t

his decision “will likely cause confusion f o r the local bench and bar.” Dissent at 32. This argum ent is m eritles s f o r two reasons. First, the Central District of California am ended Local Rule 23-3 to eliminate the requirem ent th a t a m otion for class certification be filed within 90 days after service of t he c o m plaint purporting to

comm ence a class action. Moreover, even prior to the effective date of the

am endm ent, judges in the Central D istrict of California re c ognized t hat ABS did not “invalidate or strike [ Local Rule 23-3],” Winebarger v. Pa. Higher Educ. Assistance Agency
, 411 F. Supp. 3d 1070, 1084 (C.D. Cal.D A VI D S ON V

. O’RE I L LY A UT O E N T E R S

. 21

B

As to the m erits, Davidson argues that the d i s tri ct court erred in refusing to certify a “rest break” class. Again, we disagree.

“W e review a district court’s denial of class certification for abuse of discretion,” Zinse r v. Accufix Research Inst., Inc. , 253 F.3d 1180, 1186 (9th Cir. 2 001) (citation om itted), and “m ay affirm the District Court’s decision on any basis the

re c ord supports, including one the District C ourt did not reach,” Immigrant Assistance Project of Los A ngeles Cty. Fed’n of Labor (AFL-CIO) v. INS
, 306 F.3d 842, 856 n.12 (9th C ir. 2002). Parties see k i n g c lass certification bear the burden o f satisfying each of the fo ur requirem ents o f Rule 23(a) o f th e Federal Rules of Civil Procedure and at least one of the requirem ents of Rule 23(b). Wal-Mart Stores, I n c

. v

. Dukes
, 564 U.S. 338, 3 45 (2011). “[C]ertification i s p ro p er only if ‘the trial court is satisfied, after a rigorous analysis, that the prerequi sites of Rule 23(a) have been satisfied.’” I

d

. a t 350–51 (quoting Gen. Tel. Co. of Sw. v. Falc on , 457 U.S. 147, 161 (1982)). 9 “Frequently that rigorous analysis will entail som e overlap w ith the m erits o f

2019), and they continued to apply that rule when, in their view, doing so
was consistent with Rule 2 3 of the Federal Rules of Civil Procedure, see id. ; Rothman v. Optima A dvocates, Inc. , N o. CV 1 8-8341-R, 2 019 W L 2610960, at *1 (C.D. Cal. Apr. 19, 2019).

9 Under Rule 23(a), a party m ust dem onstrate that : “(1 ) th e class is

so num erous that joinder of a ll m em bers is im

p racticable; (2) t

h ere are questions of law o r fact comm on to the class; ( 3) the claim s or defenses of the represen t a t ive parties are typical of the claim s or defenses o f the class; and (4) the representative p arties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a).D A VI D S ON V

. O’RE I L LY A UT O E N T E R S

. 22

the plaintiff’s underlying claim ” b ecause “ th e class determ ination generally involve s c onsiderations that are
enm eshed in the factual and legal issues com p rising the plaintiff’s cause of action.” Id. (cleaned up) (quoting F alcon
, 457 U.S. at 160).

Here, Davidson failed to show that “there are questions o f law or fact comm on to the class,” o n e of the requirem ents o f Rule 23(a). Fed. R. Civ. P. 23(a)(2). The Suprem e Court has held that “[c]om

m onality requires the p laintiff to dem onstrate that the class m em

b ers ‘have s u ffered the sam e injury.’” Dukes
, 564 U.S. at 350 (quoting Falcon
, 457 U.S. at 157); see also Ellis v. C

o stco Wholesale Corp.
, 657 F.3d 970, 983 (9th Cir. 2 011) (“If there is no e vi d ence that the entire class was subject to the sam e [ unlawful] practice, there is no question

comm on to the class.”). Davidson failed to show that

em ployees suffered the comm on injury of being deprived o f rest-period premi um s to which they were legally entitled. Even Davidson’s own declaration does no t s h ow that she suffered this inj ury

. Although she states that she worked shifts b etween six and eight hour s in length and did not receive rest-period prem ium s, Davidson would be entitled to rest-period prem ium s o nly if, during those shifts, she did not receive two ten-m inute rest breaks. See Cal. Code Regs. tit. 8, § 11070(12)(A). Her declarati o n i s silent on that point. Although Davidson argued that O’Reilly’s written rest-break p o licy w as inconsistent with C alifornia law b ecau se it o m itted the phrase “or m ajor fraction thereof,” she did not show that th e p o licy was applied to em ployees in a way that violate d California law. Because there was no evidence that a class o f

em ployees “suffered the sam e injury,” Dukes
, 564 U.S. at 350 (quoting Falcon
, 457 U.S. at 1 57), Davidson did n ot establish

comm onality.D A VI D S ON V

. O’RE I L LY A UT O E N T E R S

. 23

The dissent contends that Davidson did, in fact, com e forward with evidence that the “entire class was subject to the

same [unlawful] practice.” Dissent at 34. Not so. Like Davidson, the dissent m erely identifies d ocum ents that do not

c ontain the phrase “or m ajor faction thereof,” Dissent at 3 4
, and tacitly concedes that Davidson presented n o ev id e n ce th at she or any other putative class m em ber was ever denied a rest break in v iolation of California law. 1 0 W ithout any such evidence, Davidson has n ot “affirm atively dem onstrate[d]

. . . that there are in fact

. . . comm on que s t ions of law or f act.” Dukes
, 564 U.S. at 3 50. Put another way, the m ere existence of a facially defective written policy—without any evidence that it wa s im

plem ented in an unlawful m anner—does not constitute “[s]ignificant proof,” id. at 354, that a cl a s s o f

em ployees were subject to an unlawful practice. The dissent’s reliance on Jimenez v. Allstate I n s u rance C

o. , is

m isplaced, be c au s e i n that case the district court found that the plaintiff “presented sufficient evidenc e t o establish

. . . comm on questions,” such as “whether class m em bers

10 The d issent states that Davidson “identified evidence p r oduced b y O’Reilly in a related class action concerning the sam e rest break policy, including

. . . Rule 30 (b )(6 ) testim ony confirm ing that O’Reilly only provided one rest period per four hours of work.” Dissent at 34–35. Even

assum ing that this deposition from an earlier action is adm issible here, see Fed. R. Civ. P. 32(a )(8 ); H u b v. Sun Valley Co.
, 682 F.2d 7 7 6, 778 (9th Cir. 1982), the dissent’s statem ent is m isleading. The d eponent in t hat

case testified that, under California law, if an em pl o y e e w o rk s a shift o f four hours, h e is entitled to a ten-m inute rest break, but if the “shift is less than three and a half [hours],” the em ployee is not entitled to a rest break. This explanation is consistent with California law. See Cal. Code Regs. tit. 8, § 11070(12)(A). The deponent did not state or suggest that O’Reilly failed t o provide an a d d i tional r est break to em ployees who worked between six and eight hours. Accordingly, the testim o n y o n which the dissent relies does not show that O ’Reilly violated California law; in fact, it tends to prove the opposite.D A VI D S ON V

. O’RE I L LY A UT O E N T E R S

. 24
generally worked o vertim e wi thout receiving com pensation

as a result of Defendan t ’s unofficial policy of discouraging reporting of such overtim e.” 765 F.3d 1161
, 1 1 6 3

– 64 (9th Cir. 2014) ( emp h a s is added). H ere, in contrast, the district court m ade no such finding; as the district court recognized, Davidson’s evidence “ fail[ed] to im plicate any illegal practice.” Accordingly, we concl u de th at the district court did not abuse its discretion in d enying Davidson’s m otion for class c e rt ification because Davidson did not establish

comm onality. See Fed. R. Civ. P. 23(a)(2).

III

Next, we turn to Da v i d son’s challenge to the district court’s dism issal of her wage-statem ent claim

. O’Rei lly

c o n t e n ds that Davidson waived the right to appeal the dism issal of this claim . W e agree.

W e follow the “practice of looking at the language of [ a] consent judgm ent and other evidence in the r e c o r d to determ ine whether a party m ay appeal following an o r d er entered by consent.” Blair v. Shanahan
, 38 F.3d 1514, 1521 (9th Cir. 1994) (citing Christian Sci. Reading Room Jointly Maintained v. City & Cty. of S an Francisco , 784 F.2d 1010, 1017 (9th Cir. 1986)). A part y relinquishes the right to appeal a claim by stipulating that judgm ent should be entered

o n the claim “in accordance with” an adverse ruling an d without reserving the right to appeal. Id

. a t 1 5 18 (citation

om itted); see also Am. Ba n kers Mortg. Corp. v. Fed. Home Loan Mortg. Corp.
, 75 F.3d 1401, 1 413 (9 th Cir. 1 996) (holding that an appeal of the m erits o f a claim was im proper because “it w as dism issed with prejudice by stipulation of the parties as part of an agreem ent”).D A VI D S ON V

. O’RE I L LY A UT O E N T E R S

. 25

Here, Davidson relinquished her righ t to appeal the dism issal of her wage-statem ent claim

. The district c ourt dism issed the claim with prejud ice. In a stipulation, Davidson and O’Reilly agreed that the d istrict court sh o u ld “dism iss with prejudice and enter judgm ent on the c l a im s alleged on an individual basis b y [Davidson] i n h er S econd Am ended C om

plaint, ” i ncluding the wage-statem ent claim

. Davidson preserved the right to appeal two decisions: the district court’s “[1] denial of class certification (Dkt. No. 61)

and [2] ruling on m otion f or summ ary judgm ent (Dkt

. No

. 78).” But she did not preserve the right to appeal the district court’s “Order Re: D efendants’ Mot i on t o Dism iss” (Dkt. No. 56), which disposed of her wage-state me nt claim

. In

sum , D av i dson agreed that the district court should enter judgm ent on h er wage-statem ent claim in accordance with its order dism issing the claim
, and the right to appeal that order “was not a term of the agreem ent.” Bl a ir , 38 F.3d at 1518. Thus, Davidson relinquished the right to appeal the dism issal of her wage-stateme n t c l aim

. See id. ; Am. Bankers Mortg. Corp. , 75 F.3d at 1413.

Davidson argues that review o f th e order denying class certification “neces sarily encom passes” review of the dism issal of her wage-statem ent claim
, because the di s tr i ct court refused to certify a wage-statem ent class on the ground that the w age-statem ent claim ha d already been dism issed. This argum ent fails. Davidson could not appeal the dism issal of her wage-statem ent claim unless she reserved the right to appeal the order disposing of th a t claim

. See Blair
, 38 F.3d

a t 1518. Reserving the right to appeal another order th at

m akes reference to the order d ism issi n g the claim is not enough to show that the p arties agreed that Davidso n could challenge the dis mi s s al of the wage-statem ent claim

.D A VI D S ON V

. O’RE I L LY A UT O E N T E R S

. 26

Acc o r d i n g ly, we hold that Davidson waived the right to appeal her wage-statem ent claim

. 1 1

AFFIRMED

.

CHRISTEN, Circuit Judge, concurring in part and d issenting in part:

I agree that Davidson did not preserve her right to appeal the district court’s o rd er d ismissing her wage statem ent claim

. But I conclude the district court erred when it rigidly adhered to the unworkable deadline im posed by now-abrog ated Central District o f California Local Rule 23-3, thereby p recluding Davidson from o btainin g e s s e nt i a l p r e

certification d iscovery

. The district court ruled b efore we issued ABS Entertainment, Inc. v. CBS Corp.
, 9 08 F.3d 405 (9th Cir. 2018), but that precedential opinion h o l d s , at a
m inimum , that a district court abuses its discretion wh e n i t adheres t o now-abrogated L ocal R ule 23-3 without

11 Because w e do not reach the m erits of Davidson’s wage-statem ent claim
, w e express no view as to whether “ address,” as used in section 226(a)(8) o f the California Lab o r Code, covers a P.O. box address and therefore deny D avidson’s Motion for Judicial Notice (ECF No. 12), which seeks judicial notice of docum ents related to section 226(a)(8). See Flores v. Cty. of Los Angeles , 758 F.3d 1154, 1159 n.11 (9th Cir. 2014).

W e also decline Davidson’s re qu e s t to issue an advisory opinion to clarify the district court’s order granting partial summ ary j udgm ent on her PA G A c l a i m

. See Aetna Life Ins. Co. of Hartford, Conn. v. Haworth
, 300 U.S. 227, 241 (1937) (holding that we m ay not issue “an o p i nion advising what the law would be upon a hypothetical state of facts”).D A VI D S ON V

. O’RE I L LY A UT O E N T E R S

. 27
considering the need f

or pre-certification discovery. I see no way to fairly distinguish A BS from this case.

Nor do I agree that Davidson’s rest break cla im fa i ls for lack of comm onality pursuant to Fed. R. Civ. P. 2 3(a)(2). Th e d istrict court did not reach comm onality, b u t my colleagues affirm the district court’s orde r denying class certification on that basis. I n d o ing so, the m ajority im properly conflates the answer to a comm on question with th e existence of a comm o n contention. Here, Davids o n clearly identified evidence of a comm on rest b reak policy, and that was sufficient to establish com m onality at the class certification stage. Because A BS control s the situation presented h ere, and bec ause Davidson satisfied the

c o mm onality requirem ent of Rule 23(a)(2), I respectfu ll y dissent.

I

Less than two years ago, o ur court consid e r e d the previous version of L ocal Rule 23-3 in ABS
, and held that the Rule’s bright-line 90-day deadline to f ile a class certification motion was “incom

patible with Federal Rule of Ci vi l Procedure 23” and “im

practic a [l].” 908 F.3d at 427. Our court cautioned that Federal Rule o f Civil Procedure 23 dem anded a m ore flexible approach, and th a t d i strict courts

m ust carefully consider the need for pre-ce rt ification discovery, rather than adh e r i n g to an arbitrary deadline. Id. ( c i t i n g Kamm v. C

al. City Dev. Co.
, 509 F.2d 205, 210 (9th Cir. 1975)). In ABS
, we held that “distric t c ourt’s summ ary and unexpla i ned denial of the parties’ joint stipulation to extend the 90-day deadl i n e based on the need for prec e rt ification d iscovery” required rem and, with the explici tD A VI D S ON V

. O’RE I L LY A UT O E N T E R S

. 28

direction for the district court to “re consider[]

. . . whether pre-certification discovery [was] warranted.” Id.

In the wake of A BS
, the Central District of Ca l i fo rnia

a mended Local Rule 23-3. The new rule becam e effecti v e less than a year ago, on Decem ber 1, 2019. When the district court ruled in this case, it did not have the benefit of ABS
, and the court therefore operated under the now-abrogated v ersion of Local Rule 23- 3

. Th e r ecord leaves no doubt that the d is tr ict court adhered to the bright-line 90-day deadline imp o s ed b y that rule w ithout regard f or the need for precertification discovery. Under our precedent, this was plainly an abuse of discretion.

Davidson served her first am ended com plaint o n June 23, 201 7, an d her initial discovery requests one week later. O’Reilly declined to treat Davidson’s discovery requests as operative until a m o nth after that, when the parties had their Rule 26(f) discovery conference on July 28, 2017. See Fed. R. Civ. P. 26(d). On Au gust 1, 2017, Davidson served her initial discovery requests again. T h e very next day, August 2, Davidson and O’Reilly filed a joint stipulation to extend the class certi fication d eadline im posed b y operation of Local Rule 23-3, and specifically cited the n e e d to conduct interviews o f putative class m em b ers. 1 The joint stipulation outlined the significan t t i m e required for this logistically intensive process, and expressly identified the 30-day period required to allow putative class m em bers to o pt out after they

1 My colleagues assert t

hat the court set a deadline for filing the

m otion for class certification. This is not correct. The deadline here was im posed solely by operation of Local Rule 23-3.D A VI D S ON V

. O’RE I L LY A UT O E N T E R S

. 29

received notice o f the action. 2 The requested extension (to which the p arties m

utually agreed) was 67 days. On August 4, 2017, the court denied the joint stipulation without explanation. The district court m ade no findings that s h ed light on its r e a s o n s f

or d enying the parties’ joint request for

m ore tim e.
O’Reilly served its discovery responses on August 31, the last possible day, and offered to provide contact inform ation for a yet-to-be-negotiated random sam p ling of class m em

bers after the parties negotiated and sent o ut a Belaire-West n o tice. This was an em

pty prom ise, as there was already insufficient tim e to com

plete the process associated w ith interviewing the class m em

bers. Even if the parties h ad b een able to negotiate

an d send out a Belaire-West notice the sam e day O’Rei ll y served its discovery responses, the notice requires a waiting period to allow class m em b ers to o pt out. After that waiting period, the parties would have h a d t o negotiate a sam ple o f

em ployees, assem

ble a contact list, send out notices, contact witnesses, interview them
, and prepare declarations. Those steps could not be taken until the part i e s knew which

m em bers of the putative cl a s s would opt o ut. 3 W ith the

2 O’Reilly consist e nt ly asser t e d t h at it would “ only provide the contact inform ation for p utative class m em bers subject to” the notice and opt-out procedure described in B elaire-West Landscape Inc. v. Superior Court
, 57 Cal. Rptr. 3d 197, 203 (Ct. App. 2007). (Em phasis added).

3 T he m ajority asserts that district courts have frequently opted for a protective order in lieu of a Belaire-West n otice, particularly when there is not sufficient tim e to allow for the notice and opt-out period. See, e.g. , Thomas-Byass v. Michael Kors Stores ( Cal.) Inc. , No. 15-cv-00369, 2015 W L 5568609, at *5 (C.D. Cal. Sept. 22, 2015). This is true, but entirely futile in Davidson’s case. W ith t he class certification deadline only three weeks away, i t is m anifestly unreasonable to expect that Davidson could file a m otion to com

pel, r eceive a f

avorable rul i n g o n that m otion,D A VI D S ON V

. O’RE I L LY A UT O E N T E R S

. 30

deadline of Septem

ber 21 for filing a c lass certification

m otion loom ing just three w eeks away, it was im possible for Davidson to conduct discovery i nt o the putative class

m em bers before filing her m otion for class certification.
The parallels between this case and ABS are striking. In ABS
, the parties filed two joint stipulations to extend Local Rule 23-3’s rigid 90-day deadline. 908 F.3d at 426. After the district court d enied the f irst stipulation for fail ur e t o show good cause, the parties filed a second stipulati o n that specifically cited the need for p re-certification discovery. Id. The district court denied that stipulation without explanation, and did “not address the asserted n eed for p re-certification discovery.” Id. Our court concluded that the district c ourt

was not perm itted to rely on the bright-line deadline in Local Rule 23-3, and rem anded with direction to “reconsider[] . . . whether pre-certificati o n discovery [was] warranted.” Id. at 427.

Here, the parties fi l e d a joint stipulation to extend Local Rule 23-3’s autom atic 90-day d eadline, specifically citing the tim e needed to conduct pre-certificatio n d i scovery. The district court d enied that stipulation without explanation, and

never addressed the need for pre-certification discovery. Adherence to o ur precedent requires, at a m inimum , that this

case be rem anded for the district court to reconsider whether pre-certification discovery was warranted.

Contrary to my colleagues’ a ssertio n , D av id so n p reserved this issue for appeal. See In re E.R. Fegert, Inc. , 887 F.2d

negotiate the form of a protective order, and receive a re sp o n se t o her discovery requests, all with enough tim e to schedule and obtain i nterviews from class m em

bers.D A VI D S ON V

. O’RE I L LY A UT O E N T E R S

. 31

955, 957 (9th Cir. 1989)

. Nothing in the record supports the supposition that Davids o n ever abandoned her request to interview p utative class m em bers. Dav i d s on requested an extension of the d eadline im posed by Local R

ule 2 3-3 so she could conduct interviews, but the district court deni e d that request. By the tim e Davidson received O ’Reilly’s discovery responses on August 31, she had no choice but to forge ahead with h er other available m ethods of discovery. Wh at the

m ajority calls “abandonm ent” is m ore typically described as
com pliance with a court order. The m ajority faults D avidson for not re-filing the sam e request, but there was no reason to think that the court would have m ade a diffe rent decision if Davidson had re-filed her initial request for tim e to interview putative c l as s m em

bers. After all, the first request was denied even though O’Reilly had stipulated to it. D avidson

was n o t required to repeatedly request an extension that the district c o urt had already denied. See Yamada v. Nobel Biocare Holding AG
, 8 25 F.3d 5 36, 54 3 ( 9th Cir. 2 016) (“[W ]hen a party takes a p osition and the district court rules

on it, there is no waiver.”); W. Watersheds Project v. U .S. Dep’t of Interior , 677 F.3d 922, 925 (9th Cir. 2012).

The subsequent events in the record show on l y that Davidson f

aced further difficulties in obtaining the lim ited discovery that was available to her. O’Reilly d id not m ake its Rule 30(b)(6) witnesses a vailable in tim e for her to include their testim ony in her m o tion for class certification. Thus, the parties filed a stipulation to extend the c l a ss certification

m otion deadline by 14 d ays, which w as again denied without explanation. The parties also filed a stip ulation to f ile a supplem ental brief after the class certification dead line, which was granted, but this narrow request was related solely to D avidson obtaining corporate testim ony pursuant to Rule 30(b)(6). In the stipulation for a 14-day extension, theD A VI D S ON V

. O’RE I L LY A UT O E N T E R S

. 32
parties specifi c a l l y recognized that the district court h ad already denied their pr e v io us stipulation requesting tim e to interview class m em

bers, and noted that they were seeking a
mu ch shorter extension in order to address the narrow i s su e of procuring testim ony fr om O’Reilly’s Rule 30(b)(6) witnesses. A s for interviews of putative class m em bers, that ship had already sailed.

The district court adhered to the deadli n e i n Local Rul e 23-3 without considering whether D avidson h ad sufficient m eans to conduct pre-certification discovery. This is precisely the circum stance tha t required rem and in ABS
, wi th explicit instructions to reconsider whether p re

certific a ti on d iscovery was warranted. The court’s order denying pre-certif

icatio n discovery is p articularly concerning because the c o urt later denied class certification on the grounds that Davidson failed to advance sufficient evidence supporting certification. D avidson was faulted for failing to collect the very ev i d ence the court’s orders prevented her from gathering.

I can see n o principled way to distinguish the procedural p os ture of this case from the decision we published in ABS
, and as a three-judge panel, w e are bound by our circuit precedent. See Miller v. Gammie
, 335 F.3d 889, 899 (9th Cir. 2003) (en banc). An appellate d ecision that flip-flops so soon after ABS was published will likely c au se confusion for the local b ench and b ar. See Payne v. Tennessee , 501 U.S. 808, 8 27 (1991) (observing that respect f or precedent “prom o te s the evenhanded, predictable, and consistent developm ent o f l egal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process”).D A VI D S ON V

. O’RE I L LY A UT O E N T E R S

. 33

II

Because I would hold that the district court abused its discretion by denying D avidson an opportunity to conduct pre-certification discovery, I would not reach th e question whether Davidson satisfied the requirem ents of Fed. R. Civ. P. 23. B ut my colleagues do, and by affirm ing the district court’s class certification decision on the b asis o f

comm onality, they decide in the first instance an issue the d istrict court never reached. 4 In the m ajority’s v iew, Davidson failed to show that the putative class suffe r ed the

sam e injury b ecause she did not show that O’Reilly’s written rest break p olicy was actually applied to O’Re i l ly’s

em ployees. This result is also c o n trary to controlling authority.

The Rule 23(a)(2) requirem ent of comm onality dem ands that claim s “m

ust depend upon a comm o n contention .” WalMart Stores, Inc. v. Du kes , 564 U.S. 338, 350 (2011) (em phasis added). That “comm on contention, m oreover,
m ust be of such a nature that it i s c apable of classwide resolution—which m eans that determ ination of its truth or falsi t y wi l l resolve an issue that is central to the validity o f each one of the claim s in one stroke.” Id. (em phasis added). “What m atters to class certification . . . [is] the capacity of a classwide proceeding to gener a t e comm on answers apt to drive the resolution o f the litigation.” Id. (quoting Richard A

. Nagareda, Class Certification in the Age of A ggregate P roof, 84 N.Y.U. L. Rev. 97, 132 (2009)).

4 The district court rested its denial of class certification o n predom in ance, see Fed. R. Civ. P. 23(b)(3), without addressing any Rule 23(a) requirem ents.D A VI D S ON V

. O’RE I L LY A UT O E N T E R S

. 34

To be sure, Wal-Mart confirm ed th a t the “rigorous analysis” under Rule 23(a) “som etim es [requires] the court to probe behind the pleadings before com ing to rest on the certification question. ” I d. (quoting Gen. T

el. Co. o f Sw. v. Falcon
, 4 57 U.S. 147, 160 (1982)). And we have recognized that “a district court must consider the m erits” if they overlap with the requirem ents o f Rule 23(a). Ellis v. Cos tc o Wholesale Corp.
, 657 F.3d 970, 981 (9th Ci r

. 2011). After all, “if there is no evidence that the entire class was subject to the same allegedly discrim inatory practice, ther e is no question comm on to the class.” Id. at 983 (em p h asis added). But here, Davidson cam e f orward w ith evidence of precisely this variety. Thus, this case is clearly disti n g u is hable from Wal-Mart and Ellis
, where claim s of gender discrim ination failed to sat isfy comm onality because the plaintiffs did not dem onstrate the existence of a uniform policy.

Davidson established comm onality with the 2010 and 2013 versions of O’Re illy’s store operations m anual, and testim ony f

rom O’Reilly’s Rule 30(b)(6) corporate designee, Mr. David Vanden Bos. Vanden Bos authenticated num erous O’Reilly docum ents fr o m the class period concerning O’Reilly’s rest break policy—e.g., a training agenda and a
m em o to m anagers. None of O’Reilly’s docum ents included the “m ajor fraction thereof” language required by California law. See Brinker R est. Corp. v. S u p e r ior C ourt , 273 P.3d 513, 528–29 ( Ca l

. 2012); C al. Code Regs. tit. 8, § 11070(12)(A). Davidson also identified evidence produced by O’Reilly in a related class action concerning the sam e rest bre a k policy, including two internal O’Reilly policy docum ents indicating the sam e non-com pliant r es t break policy, and Rule 30(b)(6) testim ony confirm ing that O’ReillyD A VI D S ON V

. O’RE I L LY A UT O E N T E R S

. 35
only provided one rest period for every four hours of work. 5 The m ajority supposes that the Rule 30(b)(6) deponent’s testim ony suggests O’Reilly followed a l awful rest break practice. But it is not clear this is so. The wri t t e n p o l ic i es identified by Davidson are not consistent with California law, and the deponent’s testim ony is am biguous about the practice that was actually followed.
Plainly, Da v i dson d em onstrated the existence of a uniform policy, which if im p lem ented would cause class

m em bers to su ffer the sam e injury. The “rigorous analysis” required by Wal-Mart do e s n o t allow for “an in-depth

e x a mination of the underlying m erits” of the case—fo r
exam p le, “whether [an em

p loyer] was in fact discrim inating against w om en,” Ellis
, 657 F.3d at 98 3 n

. 8
, or whether O’Re i l ly was in fact depriving its em ployees of legallym andated rest breaks. The p urpose of class certifica ti on i s “not to adjudicate the case,” but m erely “to select the m ethod best suited to adj u d ication of the controversy fairly and efficiently.” Amg en I

n c. v. Conn. Ret. Plans & Tr. Funds
,

5 Davidson requested judicial notice of these m aterials because they had b een filed on the public docket in related litigation involving O’Reilly. See Reyn’s Pasta Bella, LLC v. Visa USA, Inc. , 4 42 F.3d 741, 746 n.6 (9th Cir. 2006) (court filings are properly the subject of judicial notice). The district court refused to consider this evidence, ruling t hat Dav id s on im properly requested judicial notice of findings of fact from another case. But Davidson d id not seek j u di c i a l notice o f any findings. She sought notice of the policies O’Reilly introduced in the parallel litigation. W hether the cited evidence in f act reflected O’Reilly’s practice i s subject to reasonable dispute, and thus no t the proper subject of judicial notice. But the f act that these written policies exist and w ere produced b y O’Reilly cannot be contested. Lee v. City of Los Angeles , 250 F.3d 668, 690 ( 9th Cir. 2001). The court was free to take judicia l n o t i c e of the existence of O ’Reilly’s policy doc um en ts, just not the veracity of any disputed facts contained therein. See id.D A VI D S ON V

. O’RE I L LY A UT O E N T E R S

. 36

568 U.S. 455, 460 (2013) (alte r ation and quotation m arks

om itted); see also Stockwell v. City & Cty. of San Francisco , 749 F.3d 1 107, 1112 (9th Cir. 2014) ( “[D]em onstrating

comm onality d oes not require proof that the putative c l a s s will prevail on whatever comm on questions it identifie s

. ”); El l is , 657 F.3d at 983 n.8 (observing that “whether cl a s s
m em bers could actually prevail on the m erits of their claim s” is not the proper inquiry). And the identification of a “a fatal similarity—[an all e g ed] failure of p roof as to an elem ent o f the p laintiff’s claim ”—is “inappropriate at the certifi c a tion stage.” A lcantar v. Hobart Serv.
, 800 F .3d 1047, 1053 (9th Cir. 2015) (quoting Amgen , 568 U.S. at 470).

Our prior decision in J ime n ez v. Allstate Ins. Co.
, 765 F.3d 1161 (9th C ir. 2014) is directly on point. There, the plaintiffs raised an off-the-clock work claim that required proof that: (1) plaintiffs perform ed work for which they d id not receive com

pensatio n ; (2) defendants knew or should have known that plaintiffs did so; and (3) defendants stood by idly. Id. at 1165. As to the first qu e s t i o n , the plaintiffs argued that class m em

bers had worked unpaid o vertim e as a result o f the defendant’s unofficial policy of discouraging reporting of suc h o v e rt i m e. Id. The defendant argued its fo rma l policies were lawful, “and that the alleged inform al ‘policy-to-violate-the-policy’ d[id] n o t ex ist. ” Id

. at 1165 n.5. W e concluded that “[p]roving at trial whether such inform al

or unofficial policies existed will drive resolution of [ the first question]. ” Id. at 1166. A s to defendant’s argum ent concerning the existence of th e policy, we observed that “[t]his argum ent is appropriately m ade at trial or at the

summ ary judgm ent stage,” because “[w]hether any of these

comm on que stions are u ltim ately resolved in favor of either side is imm aterial at the class certification stage.” Id. at 1165 n.5. After all, “if a defendant h as a strong argum ent againstD A VI D S ON V

. O’RE I L LY A UT O E N T E R S

. 37

classwide liability, it ‘should welcom e class certification’ as that allows it the opportunity to resolve claim s of all class

m em bers at o nce.” Id. (quoting In re Whirlpool Corp. FrontLoading Washer Prods. Liab. Litig. , 722 F.3d 838, 857 ( 6 th Cir. 2013)); see also Ridgeway v. Walmart Inc. , 946 F

. 3 d 1066, 1078–82 (9th Cir. 2020) (observing it was jury’ s role “to decide whether W al-Mart im plem ented the wr i tten policies” concerning control over em ployees).

Here, Davidson argued O ’Reilly had a policy o f unlawfully d enying class m em bers legally

- m andated rest breaks. O’Reilly did not deny that it had a uniform rest break policy. Nor did it insist that the resolution of Davidson’s

c l a i m s w o u l d r e q u i r e n u m e r o u s i n d i v i d u a l i z e d determ inations. See, e.g. , Wal-Mart
, 564 U.S. at 355 (concluding plaintiffs f

ailed to allege a uniform em ploym ent practice because em

p lo ym ent d ecisio n s w ere lef t to discretion of local supervisors )

. O’Reilly instead argued that the unlawful p olicy identified b y Davidson was n o t i n fact im plem ented, and that its actual rest break policy—as applied throughout California—was l awful. But whether or not the unlawful policy was actually imp l e m ented is p recisely the sort of question that satisfies comm onality. Ji me n ez , 765 F.3d at 1165–66; see also Torres v. Mercer Canyons Inc. , 835 F.3d 1125, 1134 (9th Cir. 2016) (concluding that whether the d efendant “had a ‘comm on p o licy or practice o f withholding inform ation’” was a comm on questio n that would “help to dr i v e r esolution of the litigation for all class

m em bers”).

The district court’s conclusion on p redom inance, though not addres s e d b y the m ajority, suffered from a sim ilar infirm ity. Rule 2 3(b)(3) “asks the court to m ake a gl o b al determ ination of whether comm on questions prevail overD A VI D S ON V

. O’RE I L LY A UT O E N T E R S

. 38

individu al i z e d ones.” Torres , 835 F.3d at 1 134. This “requires a showing that questions comm on to the class predom inate, not that those questions will be answered, o n the m erits, in favor of the class.” Amgen
, 568 U.S. at 459. Because generalized evidence o f the sort advanced by Davidson will provide an answer to the question whether the challenged policy was i mp l e m ented, and that answer will

cause the whole class to “prevail or fail in unison,” id. at 460, Rule 23(b)(3)’s predom inance requirem ent was satisfied.
For these reasons, I respectfully dissent.