FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KIA DAVIDSON, individually, and on

behalf of other members of the

general public similarly situated,

Plaintiff-Appellant,

v.

O’REILLY AUTO ENTERPRISES, 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 Submitted February 6, 2020

Pasadena, California

Filed August 3, 2020

Before: Danny J. Boggs,* Sandra S. Ikuta, and

Morgan Christen, Circuit Judges.

Opinion by Judge Ikuta;

Partial 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.
2 DAVIDSON V. O’REILLY AUTO ENTERS.

SUMMARY**

Class Certification

The panel affirmed the district court’s order denying

plaintiff’s motion for class certification in an action

challenging the written rest-break policy of plaintiff’s former

employer, O’Reilly Auto Enterprises, LLC.

In her procedural challenge, plaintiff argued that the

district court abused its discretion by declining to extend the

September 21 deadline for moving to certify the class, and

this impeded plaintiff’s ability to obtain pre-certification

discovery of information. The panel held that the district

court did not abuse its discretion by requiring plaintiff to

meet the deadline for filing her motion for class certification

while at the same time granting her an additional month to

develop evidence and submit a supplemental brief.

In her substantive argument, plaintiff argued that the

district court erred in refusing to certify a “rest break” class. 

The panel held that plaintiff failed to show that “there are

questions of law or fact common to the class,” which was one

of the requirements for class certification under Fed. R. Civ.

P. 23(a)(2). 

The panel held that plaintiff waived her right to appeal the

dismissal of her wage-statement claim. The panel held that

in a stipulation, plaintiff preserved the right to appeal the

denial of class certification and the ruling on the motion for

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
DAVIDSON V. O’REILLY AUTO ENTERS. 3

summary judgment, but she did not preserve the right to

appeal the district court’s dismissal of her wage-statement

claim.

Concurring in part and dissenting in part, Judge Christen

agreed that plaintiff did not preserve her right to appeal the

district court’s order dismissing her wage statement claim. 

However, she would hold that the district court erred in

imposing an unworkable class certification deadline, and it

abused its discretion by denying plaintiff an opportunity to

conduct pre-certification discovery. She also disagreed with

the majority’s conclusion that plaintiff’s rest break claims

failed for lack of commonality pursuant to Rule 23(a)(2).

COUNSEL

Liana Carter (argued), Ryan Wu, and Robert Drexler,

Capstone Law APC, Los Angeles, California, for PlaintiffAppellant.

James M. Peterson (argued), John Morris, Jason C. Ross, and

Rachel E. Moffitt, Higgs Fletcher & Mack LLP, San Diego,

California, for Defendant-Appellee.
4 DAVIDSON V. O’REILLY AUTO ENTERS.

OPINION

IKUTA, Circuit Judge:

In this appeal from the stipulated dismissal of a putative

class action, Kia Davidson claims that the district court

abused its discretion in declining to extend a deadline for

filing a motion for class certification. She also claims that the

district court erred on the merits in declining to certify a class

of employees based on her employer’s written rest-break

policy, which allegedly did not comply with California law. 

We conclude that the district court did not abuse its discretion

in setting and enforcing a deadline. Nor did the court abuse

its discretion in denying Davidson’s motion for class

certification. Because Davidson failed to offer any evidence

that the written policy was applied to employees, she was

unable to establish that there were questions of law or fact

common to the class.

I

O’Reilly Auto Enterprises, LLC is an auto-parts retailer

that operates some 520 stores in California. Between June

2016 and July 2017, O’Reilly employed Kia Davidson as a

delivery specialist at one of its stores in San Bernardino,

California. Toward the end of her time there, Davidson filed

an action against O’Reilly on her own behalf and on behalf of

a class of persons “who worked for [O’Reilly] as a nonexempt, hourly-paid employee in California within four years

prior to the filing of this complaint until the date of trial.”

Davidson alleged three sets of claims relevant to this

appeal. First, Davidson alleged that O’Reilly violated

California’s rest-break requirements. ACalifornia regulation,
DAVIDSON V. O’REILLY AUTO ENTERS. 5

Wage Order No. 7, provides that “[e]very employer shall

authorize and permit all employees to take rest periods” and

that “[t]he authorized rest period time shall be based on the

total hours worked daily at the rate of ten (10) minutes net

rest time per four (4) hours or major fraction thereof.”1 Cal.

Code Regs. tit. 8, § 11070(12)(A). Employees that work

between six and eight hours are entitled to two ten-minute

rest breaks, one for the first four hours and a second for the

remainder. See id.2 Employees that do not receive these rest

breaks are entitled to increased pay in the form of a rest-break

premium: “one (1) hour of pay at the employee’s regular rate

of compensation for each work day that the rest period is not

provided.” Cal. Code Regs. tit. 8, § 11070(12)(B). 

According to Davidson, she and other employees did not

receive rest breaks and O’Reilly did not pay (or underpaid)

rest-break premiums.

Second, Davidson alleged that O’Reilly failed to provide

employees with wage statements that identified “the name

and address of the legal entity that is the employer,” as

required by section 226(a)(8) of the California Labor Code. 

According to Davidson, O’Reilly’s wage statements were

noncompliant because they listed O’Reilly’s address as “PO

BOX 1156, SPRINGFIELD, MO 65801,” instead of

1

“Though not defined in the wage order, a ‘major fraction’ long has

been understood—legally, mathematically, and linguistically—to mean a

fraction greater than one-half.” Brinker Rest. Corp. v. Superior Court,

53 Cal. 4th 1004, 1028 (2012). So a “major fraction thereof” as applied

to a “four-hour period” means “any amount of time in excess of two

hours.” Id. at 1029.

2

“[A] rest period need not be authorized for employees whose total

daily work time is less than three and one-half (3 1⁄2) hours.” Cal. Code

Regs. tit. 8, § 11070(12)(A).
6 DAVIDSON V. O’REILLY AUTO ENTERS.

providing the street address of O’Reilly’s corporate

headquarters, “233 South Patterson Avenue, Springfield, MO

65802-2298.” Third, relying on these first two claims,

Davidson sought civil penalties under California’s Private

Attorney General Act (PAGA). See Cal. Lab. Code § 2698,

et seq.

Davidson served O’Reilly with a first amended complaint

on June 23, 2017. At the time, the district court’s local rules

provided that “[w]ithin 90 days after service of a pleading

purporting to commence a class action . . . the proponent of

[a] class shall file a motion for certification that the action is

maintainable 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 September 21—to

move for class certification.

On August 2, the parties filed a stipulation and proposed

order seeking to extend the September 21 deadline by 67 days

to November 28. The parties gave several reasons for

requesting the extension. First, Davidson intended to move

to transfer venue, and the earliest date on which she could

notice a hearing was September 18, just three days before the

September 21 deadline. Next, Davidson claimed she needed

more time to gather evidence to support her class-certification

motion. The stipulation explained that Davidson had served

interrogatories, document requests, and deposition notices on

O’Reilly, seeking “[t]he contact information of putative class

members,” the “[p]utative class member time punch and

wage records,” and information related to O’Reilly’s “labor

policies.” Davidson claimed this discovery was relevant for

class certification because it would: (1) be used to interview

putative class members and obtain declarations, (2) allow her
DAVIDSON V. O’REILLY AUTO ENTERS. 7

to analyze time and wage records for recorded instances of

potential Labor Code violations, (3) allow her to inspect

O’Reilly’s policies, which will show how hours of work, nonwork, and compensation are regulated, and (4) allow her to

review communications showing how O’Reilly implemented

its policies. According to Davidson, “the putative class

would be prejudiced without this discovery at class

certification” because “it bears upon the commonality and

predominance of Labor Code issues among class members as

a whole.” The stipulation also listed procedural steps, such

as providing putative class members with notice and

opportunity to opt-out from the disclosure of their contact

information, which would take place before discovery. The

district court summarily denied the stipulation to extend the

September 21 deadline.

Over the next few months, the parties engaged in

discovery.3 Davidson requested multiple depositions from

O’Reilly pursuant to Rule 30(b)(6) of the Federal Rules of

Civil Procedure, which provides that entities, including

corporations, must designate a knowledgeable person who

can testify on the subject matter identified in a deposition

3 Although Davidson initially propounded discovery requests on June

30, 2017, her requests were premature because the parties had not yet met

and conferred as required by Rule 26(f) of the Federal Rules of Civil

Procedure. See Fed. R. Civ. P. 26(d) (“A party may not seek discovery

from any source before the parties have conferred as required by

Rule 26(f).”). Davidson accordingly re-propounded her discovery

requests on August 1, after the parties completed their Rule 26(f)

conference. Davidson also filed a second amended complaint shortly

thereafter, on August 7.
8 DAVIDSON V. O’REILLY AUTO ENTERS.

notice.4 Davidson’s Rule 30(b)(6) notices sought information

on O’Reilly’s “rest period policies, policy documents,

procedures, or practices.” Davidson also propounded

document requests and interrogatories, including a request

that O’Reilly provide “the full name, identification number,

position, dates of employment, last known address, and last

known telephone number” for “each and every” putative class

member.

In response to these requests, O’Reilly provided answers

to Davidson’s interrogatories, produced responsive

documents, and agreed to produce persons knowledgeable

about the subject matter identified in Davidson’s Rule

30(b)(6) notices. O’Reilly also agreed to provide a random

sampling of contact information for putative class members,

after providing them with notice and an opportunity to object. 

Such notice is required in state class actions to protect

employees’ privacy rights and is commonly 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 its notice or subpoena, a party may name as the

deponent a public or private corporation, a partnership,

an association, a governmental agency, or other entity

and must describe with reasonable particularity the

matters for examination. The named organization must

then designate one or more officers, directors, or

managing agents, or designate other persons who

consent to testify on its behalf; and it may set out the

matters on which each person designated will testify.

Fed. R. Civ. P. 30(b)(6).
DAVIDSON V. O’REILLY AUTO ENTERS. 9

As discovery progressed, the parties again moved to

extend the September 21 deadline, this time by 14 days, to

accommodate their schedule for Rule 30(b)(6) depositions. 

The district court denied the motion, though in response to a

subsequent motion, it gave Davidson an opportunity to file a

supplemental brief that could incorporate the deposition

testimony and any other newly discovered evidence.

On the September 21 deadline, Davidson filed her motion

for class certification along with a class-action trial plan. The

motion and trial plan explained Davidson’s theory regarding

the rest-break claim. According to the motion, each of

O’Reilly’s policy documents required ten-minute rest breaks

for every four hours of work but did not include the language

“or major fraction thereof.” Davidson argued that this

omission created classwide issues, such as whether O’Reilly

violated California law by failing to “authorize or permit”

required rest breaks and whether O’Reilly’s “uniform written

rest break policy violate[d] California law by failing to give

full effect to Wage Order No. 7.” The evidence presented at

trial “would include the text of every iteration of O’Reilly’s

written rest period policy, as well as O’Reilly’s corroborating

party admissions expected in the deposition.” Because the

rest-break policy applied to all class members, “the common

questions engendered by that policy [could] be answered by

common proof.” The motion was supported by Davidson’s

declaration stating that she “recall[ed] sometimes working a

shift between 6 and 8 hours in length” but was “not aware of

any rest period premiums being paid to [her].”

The motion for class certification also addressed

outstanding discovery matters. Davidson stated that O’Reilly

had not yet produced “all corresponding policy documents”

and had not “yet been able to produce a Rule 30(b)(6)
10 DAVIDSON V. O’REILLY AUTO ENTERS.

designated witness to testify in this matter as to [O’Reilly’s]

rest period policies, policy documents, procedures or

practices.” But Davidson “expect[ed]” that O’Reilly would

“provide further discovery regarding rest periods in time for

supplemental briefing.” Aside from this, Davidson did not

state that there was a need for any additional discovery.

Along with her class-certification motion, Davidson filed

a stipulated motion and proposed order that would allow her

to file a supplemental brief on October 20. The motion

explained that Davidson had taken two depositions just two

days before she filed the class-certification motion and that

one more deposition was “anticipated to occur shortly.” 

Thus, Davidson sought an opportunity to support her motion

for class certification with any newly discovered evidence. 

The district court granted the stipulated motion and issued an

order giving Davidson an additional month to gather evidence

to support class certification.

While Davidson was gathering additional evidence, the

district court ruled on O’Reilly’s pending motion to dismiss. 

The district court dismissed Davidson’s wage-statement

claim on the ground that she failed to allege a violation of

section 226(a)(8) of the Labor Code. The district court held

that the word “address,” as used in section 226(a)(8),

“encompasses both [a] physical street address and [a] mailing

address,” and so O’Reilly’s use of a P.O. box address

“fulfilled the requirements of section 226(a)(8).”

On October 20, Davidson filed the supplemental brief in

support of her motion for class certification, as permitted by

the district court. The brief indicated that it incorporated

“testimony given during [O’Reilly’s] Rule 30(b)(6)

depositions . . . and an additional document produced by”
DAVIDSON V. O’REILLY AUTO ENTERS. 11

O’Reilly. Davidson explained that “[s]ince filing [her]

Motion for Class Certification, [she] ha[d] gathered

additional documentary and corporate Rule 30(b)(6)

testimony supporting certification of her rest period class.” 

As in her class-certificationmotion,Davidson’s supplemental

brief did not raise a need for additional discovery. Her reply

in support of class certification, filed on November 20, also

made no mention of a need for further discovery.

On December 15, the district court denied Davidson’s

motion for class certification. Because the district court had

already dismissed the wage-statement claim, it denied the

request to certify a wage-statement class as moot. With

respect to the rest-break class, the district court stated that,

although O’Reilly’s written policy was inconsistent with

California law, Davidson had not shown that the written

policy was “consistently applied to all 21,000 proposed class

members.” The district court noted that Davidson’s own

declaration “does not even state that she was ever denied

proper rest breaks.” By contrast, O’Reilly provided

declarations from 310 employees asserting that they received

all rest breaks mandated by California law. Accordingly, the

district court concluded that Davidson failed to show that

O’Reilly implemented unlawful practices; the existence of a

facially defective policy was not enough, standing alone, to

show that common questions predominated.

Davidson continued to litigate her remaining claims until,

in June 2018, the district court granted summary judgment in

favor of O’Reilly on Davidson’s PAGA claim. Shortly

thereafter, the parties entered into a stipulation whereby

Davidson agreed that the district court would dismiss with

prejudice and enter judgment on each of her claims, including

(1) her PAGA claim (on which O’Reilly had been granted
12 DAVIDSON V. O’REILLY AUTO ENTERS.

summary judgment), (2) her wage-statement claim

(previously dismissed for failure to state a claim), and (3) her

rest-break claim (for which class certification had been

denied). The parties agreed that Davidson would preserve the

right to appeal two rulings: the district court’s “[1] denial of

class certification (Dkt. No. 61) and [2] ruling on motion for

summary judgment (Dkt. No. 78).” The district court entered

judgment as requested. This appeal followed.

II

On appeal, Davidson raises both a procedural and

substantive argument to support her claim that the district

court abused its discretion in denying her motion for class

certification. We consider each argument in turn.

A

We begin with Davidson’s procedural argument. She

argues that the district court abused its discretion by declining

to extend the September 21 deadline for moving to certify a

class. According to Davidson, this impeded her ability to

obtain pre-certification discovery of information that would

have shown O’Reilly’s on-the-ground implementation of its

rest-break policy.

“District courts have broad discretion to control the class

certification process.” Vinole v. Countrywide Home Loans,

Inc., 571 F.3d 935, 942 (9th Cir. 2009). Rule 23(c)(1)(A) of

the Federal Rules of Civil Procedure gives district courts

discretion to set deadlines for when parties must move for
DAVIDSON V. O’REILLY AUTO ENTERS. 13

class certification. See Fed. R. Civ. P. 23(c)(1)(A).5 The

question whether a district court abuses its discretion by

setting deadlines or limiting pre-certification discovery is

inherently fact intensive and must be decided based on the

facts of each case. See, e.g., Doninger v. Pac. Nw. Bell, Inc.,

564 F.2d 1304, 1313 (9th Cir. 1977).

Because “we review a district court’s case management

decisions for abuse of discretion,” GCB Commc’ns, Inc. v.

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

we must affirm unless the decision was “illogical,

implausible, or without support in inferences that may be

drawn from facts in the record,” United States v. Hinkson,

585 F.3d 1247, 1264 (9th Cir. 2009) (en banc). “[This]

standard is deferential, and properly so, since the district

court needs the authority to manage the cases before it

efficiently and effectively.” Wong v. Regents of Univ. of

Cal., 410 F.3d 1052, 1060 (9th Cir. 2005).

A district court does not abuse its discretion by actively

managing the pre-certification process—whether that means

limiting the time “to conduct discovery related to the question

of class certification,” Vinole, 571 F.3d at 942; accord Kamm

v. Cal. City Dev. Co., 509 F.2d 205, 210 (9th Cir. 1975), or

denying pre-certification discovery entirely, see Mantolete v.

Bolger, 767 F.2d 1416, 1424 (9th Cir. 1985); Doninger,

564 F.2d at 1313. District courts may also exercise their

discretion by enforcing filing deadlines; they have “the power

to establish reasonable times for the filing of documents” and

5 Rule 23(c)(1)(A) states, “At an early practicable time after a person

sues or is sued as a class representative, the court must determine by order

whether to certify the action as a class action.” Fed. R. Civ.

P. 23(c)(1)(A).
14 DAVIDSON V. O’REILLY AUTO ENTERS.

to evaluate the legitimacy of an excuse for failing to file on

time. Grandson v. Univ. of Minn., 272 F.3d 568, 574 (8th

Cir. 2001) (citation omitted); accord 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 motion

for a class action determination which was untimely under the

local rule”). We have recognized that disregarding a district

court’s “decision to honor the terms of its binding scheduling

order” can “undermine the court’s ability to control its

docket.” Johnson v. Mammoth Recreations, Inc., 975 F.2d

604, 610 (9th Cir. 1992). This is particularly true “[i]n these

days of heavy caseloads,” when “trial courts in both federal

and state systems routinely set schedules and establish

deadlines to foster the efficient treatment and resolution of

cases.” Wong, 410 F.3d at 1060. “Those efforts will be

successful only if the deadlines are taken seriously by the

parties, and the best way to encourage that is to enforce the

deadlines.” Id.

While we generally defer to a district court’s casemanagement decisions, including in the class-certification

process, see Campbell v. City of Los Angeles, 903 F.3d 1090,

1110 (9th Cir. 2018), a district court may abuse its discretion

if it unreasonably applies rules in a way that deprives a party

of an opportunity to present class allegations or a motion for

class certification, see ABS Entm’t, Inc. v. CBS Corp.,

908 F.3d 405, 426–27 (9th Cir. 2018), or denies a party a

reasonable opportunity to obtain a ruling on the merits of a

motion for class certification, 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. The parties were

subject to a local rule (the same one applicable here), which

set a 90-day deadline for filing a motion for class
DAVIDSON V. O’REILLY AUTO ENTERS. 15

certification, and they sought to extend the 90-day deadline

to allow for pre-certification discovery. Id. The district court

refused to do so on the ground that there was “no show of

cause, let alone good cause,” id., without “address[ing] the

asserted need for pre-certification discovery,” id. at 426. The

plaintiff timely moved for class certification, but the district

court identified two technical defects,

6

and then struck both

the motion and the class allegations in the complaint as

untimely filed. Id. at 426. By striking the class allegations,

the district court prevented the plaintiff from renewing the

motion for class certification unless the plaintiff obtained

approval to amend the complaint. See Fed. R. Civ. P.

23(d)(1)(D).7

On appeal, we held that a district court’s “application and

interpretation of its Local Rules is entitled to ‘a large

measure of discretion,’” but the district court’s application of

the local rule’s 90-day deadline was so inflexible as to be

6 The motion “set a hearing date for the motion beyond the 35-day

period after service of process as required by the court’s standing orders

and it did not include a statement pursuant to Local Rule 7-3 that a

‘conference of counsel’ took place prior to the filing of the motion.” ABS

Entm’t, 908 F.3d at 412.

7 Rule 23(d)(1)(D) provides that a district court may “require that the

pleadings be amended to eliminate allegations about representation of

absent persons and that the action proceed accordingly.” Fed. R. Civ. P.

23(d)(1)(D). If the district court does not strike the class allegations,

parties may move a district court to alter or amend an order granting or

denying class certification at any time “before final judgment,” Fed. R.

Civ. P. 23(c)(1)(C), meaning that the denial of a motion for class

certification “is inherently tentative,” Coopers & Lybrand v. Livesay,

437 U.S. 463, 469 n.11 (1978); see also McNamara v. Felderhof, 410 F.3d

277, 280 (5th Cir. 2005) (“A district court is free to reconsider its class

certification order as often as necessary before judgment.”).
16 DAVIDSON V. O’REILLY AUTO ENTERS.

“incompatible with Federal Rule ofCivil Procedure 23.” ABS

Entm’t, 908 F.3d at 427 (citation omitted). Therefore, we

agreed that the district court “abused its discretion in striking

the timely filed motion as a sanction for . . . ‘trivial’

omissions in the notice,” and we reversed and remanded so

the district court could consider the class-certification motion

on the merits, along with whether pre-certification discovery

was warranted. Id.; see also Pitts, 653 F.3d at 1092–93

(holding that the district court abused its discretion when it

failed to set a clear deadline for filing the class certification

motion but nonetheless ruled that the plaintiff had missed the

deadline and could no longer file a timely motion for class

certification).

Here, we cannot say that the district court abused its

discretion by requiring Davidson to meet the deadline for

filing her motion for class certification while at the same time

granting her an additional month to develop evidence and

submit a supplemental brief. First, the district court here set

a clear deadline for filing the motion for class certification,

unlike the situation in Pitts, 653 F.3d at 1092–93. While

adhering to this deadline, the court was not inflexible; it

allowed Davidson an extra month to engage in additional

discovery and the opportunity to file a supplemental brief

after doing so. Cf. Skidmore v. Led Zeppelin, 952 F.3d 1051,

1077 (9th Cir. 2020) (en banc) (holding that the district court

did not abuse its discretion by “limiting trial time by being up

front about the limits and then being flexible at counsel’s

request”). Davidson was not prevented from reasonably

developing her claims. Nor did the court prevent Davidson

from obtaining a ruling on her motion for class certification;

rather, it considered Davidson’s briefing and evidence before

issuing its order. Thus, Davidson was afforded “an

opportunity to present evidence as to whether a class action
DAVIDSON V. O’REILLY AUTO ENTERS. 17

was maintainable.” Vinole, 571 F.3d at 942 (quoting

Doninger, 564 F.2d at 1313). Despite denying the motion for

class certification, the district court did not strike Davidson’s

class allegations, which left her free to renew the motion 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, we conclude that the district court

did not abuse its discretion in setting and enforcing a

deadline, and we therefore decline to “undermine 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 September 21 deadline

was unreasonable because it deprived her of sufficient time

to obtain necessary discovery regarding O’Reilly’s on-theground implementation of its rest-break policy. This

argument fails for several reasons. Most important, it is

belied by the record. As a review of the timeline makes clear,

Davidson elected not to develop her rest-break claims based

on policy implementation, but instead based this claim on

evidence that O’Reilly had a written policy for rest breaks

that did not comply with Wage Order No. 7. Although the

parties’ first stipulation mentioned Davidson’s interest in

obtaining the contact information of putative class members

to conduct interviews, Davidson did not pursue this line of

discovery. Instead, Davidson focused on taking Rule

30(b)(6) depositions to establish that O’Reilly’s written

policy was defective; indeed, the parties’ second stipulation

to extend the September 21 deadline was based solely on a

need to accommodate the Rule 30(b)(6) depositions.

The record shows that Davidson could have pursued the

on-the-ground information regarding O’Reilly’s
18 DAVIDSON V. O’REILLY AUTO ENTERS.

implementation of its rest-break policy. O’Reilly agreed to

provide Davidson with a random sampling of contact

information for putative class members, subject to using a

Belaire-West notice to provide notice and an opportunity to

opt-out. Davidson did not follow up on this offer. She

attempts to excuse her failure to do so on the ground that she

would not have had time to interview the employees before

the filing deadline, because it would have required a

“minimum of 30 days to provide putative class members

notice and opportunity to opt-out.” This argument has no

support. There is no federal requirement that parties use a

Belaire-West notice, much less that putative class members

be given 30 days to respond. In fact, district courts have

frequently opted for “a protective order, in lieu of a BelaireWest notice,” Goro v. Flowers Foods, Inc., No. 17-cv-02580,

2018 WL 3956018, at *9 (S.D. Cal. Aug. 17, 2018),

particularly when “there [was] not sufficient time to allow for

[the] [n]otice,” Thomas-Byass v. Michael Kors Stores (Cal.),

Inc., No. EDCV 15-00369, 2015 WL 5568609, at *5 (C.D.

Cal. Sept. 22, 2015). Davidson could have raised this

alternative with O’Reilly or moved to compel a response to

her discovery requests, but she chose not to.

The dissent concedes that the parties could have used a

protective order in lieu of a Belaire-West notice, but argues

that this alternative would have been “futile in Davidson’s

case” because Davidson could not move to compel discovery,

receive a favorable ruling, and interview putative class

members before the September 21 deadline. Dissent at 29

n.3. This argument is based on the unsupported assumptions

that O’Reilly would have refused to provide discovery absent

a court order; that the district court would not have provided

an expeditious ruling, despite the fact that it ruled on a prior

discovery motion in just four days; and that Davidson would
DAVIDSON V. O’REILLY AUTO ENTERS. 19

have been required to interview putative class members

before September 21, even though Davidson had until

October 20 to file a supplemental brief. We decline to engage

in these speculations given that Davidson did not even

attempt to pursue on-the-ground information regarding

O’Reilly’s rest-break policy.

Not only does Davidson’s argument that she needed more

time for discovery lack support, she waived it by not raising

it “sufficiently for the trial court to rule on.” In re E.R.

Fegert, Inc., 887 F.2d 955, 957 (9th Cir. 1989). After the

first stipulation, none of Davidson’s filings mentioned a need

to conduct employee interviews or explained how evidence

from these interviews would support class certification;

indeed, she did not mention a desire to interview employees

regarding their rest-break experiences the entire time her

motion for class certification was pending. Nor did she

attempt to raise the issue with the district court after it refused

to certify a rest-break class on the ground that she had not

shown that O’Reilly’s written policy was “consistently

applied to all 21,000 proposed class members.” Only

now—on appeal and after stipulating to the dismissal of her

claims—does Davidson contend that more discovery would

have allowed her to develop an alternative theory of the case

and changed the outcome below. Davidson’s argument

comes too late; we routinely “prevent[] parties from

sandbagging their opponents [and the district court] with new

arguments on appeal,” Dream Palace v. Cty. of Maricopa,

384 F.3d 990, 1005 (9th Cir. 2004), as Davidson attempts to

do here.

Davidson also raises a second argument as to why the

district court abused its discretion by failing to grant an

extension. She claims (and the dissent agrees) that ABS
20 DAVIDSON V. O’REILLY AUTO ENTERS.

Entertainment created a per se rule that denying a motion to

extend a local rule’s 90-day deadline for moving for class

certification is an abuse of discretion. Dissent at 32. We

disagree. Consistent with our fact-intensive review, see

Doninger, 564 F.2d at 1313, ABS considered the specific facts

of the case before it and concluded that the district court’s

inflexible application of the 90-day deadline—in conjunction

with striking the class-certification motion for technical

defects—deprived the plaintiff of a ruling on the merits on its

motion for class certification and was “incompatible with

Federal Rule of Civil Procedure 23,” 908 F.3d at 427. 

Despite claiming to “see no principled way to distinguish the

procedural posture of this case from . . . ABS,” Dissent at 32,

the dissent does not acknowledge, much less address, that the

plaintiff in ABS was deprived of a ruling on the merits of its

class-certification motion, 908 F.3d at 427, whereas Davidson

was not. Nor did ABS purport to eliminate district courts’

broad discretion in setting and enforcing deadlines, see Wong,

410 F.3d at 1060; Mammoth Recreations, 975 F.2d at 610; cf.

Skidmore, 952 F.3d at 1077; rather, the district court’s error

was its inflexibility, not its decision to set a deadline. The

district court in this case evinced no such inflexibility and did

not deprive Davidson of fair consideration of her motion. 

Accordingly, we decline to conclude that the district court

abused its discretion.8

8 The dissent asserts that this decision “will likely cause confusion for

the local bench and bar.” Dissent at 32. This argument is meritless for

two reasons. First, the Central District of California amended Local Rule

23-3 to eliminate the requirement that a motion for class certification be

filed within 90 days after service of the complaint purporting to

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

amendment, judges in the Central District of California recognized that

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.
DAVIDSON V. O’REILLY AUTO ENTERS. 21

B

As to the merits, Davidson argues that the district court

erred in refusing to certify a “rest break” class. Again, we

disagree.

“We review a district court’s denial of class certification

for abuse of discretion,” Zinser v. Accufix Research Inst.,

Inc., 253 F.3d 1180, 1186 (9th Cir. 2001) (citation omitted),

and “may affirm the District Court’s decision on any basis the

record supports, including one the District Court did not

reach,” Immigrant Assistance Project of Los Angeles Cty.

Fed’n of Labor (AFL-CIO) v. INS, 306 F.3d 842, 856 n.12

(9th Cir. 2002). Parties seeking class certification bear the

burden of satisfying each of the four requirements of

Rule 23(a) of the Federal Rules of Civil Procedure and at

least one of the requirements of Rule 23(b). Wal-Mart Stores,

Inc. v. Dukes, 564 U.S. 338, 345 (2011). “[C]ertification is

proper only if ‘the trial court is satisfied, after a rigorous

analysis, that the prerequisites of Rule 23(a) have been

satisfied.’” Id. at 350–51 (quoting Gen. Tel. Co. of Sw. v.

Falcon, 457 U.S. 147, 161 (1982)).9“Frequently that

rigorous analysis will entail some overlap with the merits of

2019), and they continued to apply that rule when, in their view, doing so

was consistent with Rule 23 of the Federal Rules of Civil Procedure, see

id.; Rothman v. Optima Advocates, Inc., No. CV 18-8341-R, 2019 WL

2610960, at *1 (C.D. Cal. Apr. 19, 2019).

9 Under Rule 23(a), a party must demonstrate that: “(1) the class is

so numerous that joinder of all members is impracticable; (2) there are

questions of law or fact common to the class; (3) the claims or defenses

of the representative parties are typical of the claims or defenses of the

class; and (4) the representative parties will fairly and adequately protect

the interests of the class.” Fed. R. Civ. P. 23(a).
22 DAVIDSON V. O’REILLY AUTO ENTERS.

the plaintiff’s underlying claim” because “the class

determination generally involves considerations that are

enmeshed in the factual and legal issues comprising the

plaintiff’s cause of action.” Id. (cleaned up) (quoting Falcon,

457 U.S. at 160).

Here, Davidson failed to show that “there are questions of

law or fact common to the class,” one of the requirements of

Rule 23(a). Fed. R. Civ. P. 23(a)(2). The Supreme Court has

held that “[c]ommonality requires the plaintiff to demonstrate

that the class members ‘have suffered the same injury.’” 

Dukes, 564 U.S. at 350 (quoting Falcon, 457 U.S. at 157); see

also Ellis v. Costco Wholesale Corp., 657 F.3d 970, 983 (9th

Cir. 2011) (“If there is no evidence that the entire class was

subject to the same [unlawful] practice, there is no question

common to the class.”). Davidson failed to show that

employees suffered the common injury of being deprived of

rest-period premiums to which they were legally entitled. 

Even Davidson’s own declaration does not show that she

suffered this injury. Although she states that she worked

shifts between six and eight hours in length and did not

receive rest-period premiums, Davidson would be entitled to

rest-period premiums only if, during those shifts, she did not

receive two ten-minute rest breaks. See Cal. Code Regs. tit.

8, § 11070(12)(A). Her declaration is silent on that point. 

Although Davidson argued that O’Reilly’s written rest-break

policywas inconsistent with California lawbecause it omitted

the phrase “or major fraction thereof,” she did not show that

the policy was applied to employees in a way that violated

California law. Because there was no evidence that a class of

employees “suffered the same injury,” Dukes, 564 U.S. at 350

(quoting Falcon, 457 U.S. at 157), Davidson did not establish

commonality.
DAVIDSON V. O’REILLY AUTO ENTERS. 23

The dissent contends that Davidson did, in fact, come

forward with evidence that the “entire class was subject to the

same [unlawful] practice.” Dissent at 34. Not so. Like

Davidson, the dissent merely identifies documents that do not

contain the phrase “or major faction thereof,” Dissent at 34,

and tacitly concedes that Davidson presented no evidence that

she or any other putative class member was ever denied a rest

break in violation of California law.10 Without any such

evidence, Davidson has not “affirmatively demonstrate[d] . . .

that there are in fact . . . common questions of law or fact.” 

Dukes, 564 U.S. at 350. Put another way, the mere existence

of a facially defective written policy—without any evidence

that it was implemented in an unlawful manner—does not

constitute “[s]ignificant proof,” id. at 354, that a class of

employees were subject to an unlawful practice. The

dissent’s reliance on Jimenez v. Allstate Insurance Co., is

misplaced, because in that case the district court found that

the plaintiff “presented sufficient evidence to establish . . .

common questions,” such as “whether class members

10 The dissent states that Davidson “identified evidence produced by

O’Reilly in a related class action concerning the same rest break policy,

including . . . Rule 30(b)(6) testimony confirming that O’Reilly only

provided one rest period per four hours of work.” Dissent at 34–35. Even

assuming that this deposition from an earlier action is admissible here, see

Fed. R. Civ. P. 32(a)(8); Hub v. Sun Valley Co., 682 F.2d 776, 778 (9th

Cir. 1982), the dissent’s statement is misleading. The deponent in that

case testified that, under California law, if an employee works a shift of

four hours, he is entitled to a ten-minute rest break, but if the “shift is less

than three and a half [hours],” the employee 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 to provide an additional rest break to employees who worked

between six and eight hours. Accordingly, the testimony on which the

dissent relies does not show that O’Reilly violated California law; in fact,

it tends to prove the opposite.
24 DAVIDSON V. O’REILLY AUTO ENTERS.

generally worked overtime without receiving compensation

as a result of Defendant’s unofficial policy of discouraging

reporting of such overtime.” 765 F.3d 1161, 1163–64 (9th

Cir. 2014) (emphasis added). Here, in contrast, the district

court made no such finding; as the district court recognized,

Davidson’s evidence “fail[ed] to implicate any illegal

practice.” Accordingly, we conclude that the district court

did not abuse its discretion in denying Davidson’s motion for

class certification because Davidson did not establish

commonality. See Fed. R. Civ. P. 23(a)(2).

III

Next, we turn to Davidson’s challenge to the district

court’s dismissal of her wage-statement claim. O’Reilly

contends that Davidson waived the right to appeal the

dismissal of this claim. We agree.

We follow the “practice of looking at the language of [a]

consent judgment and other evidence in the record to

determine whether a party may appeal following an order

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 San Francisco, 784 F.2d 1010,

1017 (9th Cir. 1986)). A party relinquishes the right to

appeal a claim by stipulating that judgment should be entered

on the claim “in accordance with” an adverse ruling and

without reserving the right to appeal. Id. at 1518 (citation

omitted); see also Am. Bankers Mortg. Corp. v. Fed. Home

Loan Mortg. Corp., 75 F.3d 1401, 1413 (9th Cir. 1996)

(holding that an appeal of the merits of a claim was improper

because “it was dismissed with prejudice by stipulation of the

parties as part of an agreement”).
DAVIDSON V. O’REILLY AUTO ENTERS. 25

Here, Davidson relinquished her right to appeal the

dismissal of her wage-statement claim. The district court

dismissed the claim with prejudice. In a stipulation,

Davidson and O’Reilly agreed that the district court should

“dismiss with prejudice and enter judgment on the claims

alleged on an individual basis by [Davidson] in her Second

Amended Complaint,” including the wage-statement 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 motion for summary judgment (Dkt. No.

78).” But she did not preserve the right to appeal the district

court’s “Order Re: Defendants’ Motion to Dismiss” (Dkt.

No. 56), which disposed of her wage-statement claim. In

sum, Davidson agreed that the district court should enter

judgment on her wage-statement claim in accordance with its

order dismissing the claim, and the right to appeal that order

“was not a term of the agreement.” Blair, 38 F.3d at 1518. 

Thus, Davidson relinquished the right to appeal the dismissal

of her wage-statement claim. See id.; Am. Bankers Mortg.

Corp., 75 F.3d at 1413.

Davidson argues that review of the order denying class

certification “necessarily encompasses” review of the

dismissal of her wage-statement claim, because the district

court refused to certify a wage-statement class on the ground

that the wage-statement claim had already been dismissed. 

This argument fails. Davidson could not appeal the dismissal

of her wage-statement claim unless she reserved the right to

appeal the order disposing of that claim. See Blair, 38 F.3d

at 1518. Reserving the right to appeal another order that

makes reference to the order dismissing the claim is not

enough to show that the parties agreed that Davidson could

challenge the dismissal of the wage-statement claim. 
26 DAVIDSON V. O’REILLY AUTO ENTERS.

Accordingly, we hold that Davidson waived the right to

appeal her wage-statement claim.

11

AFFIRMED.

CHRISTEN, Circuit Judge, concurring in part and dissenting

in part:

I agree that Davidson did not preserve her right to appeal

the district court’s order dismissing her wage statement claim. 

But I conclude the district court erred when it rigidly adhered

to the unworkable deadline imposed by now-abrogated

Central District of California Local Rule 23-3, thereby

precluding Davidson from obtaining essential precertification discovery. The district court ruled before we

issued ABS Entertainment, Inc. v. CBS Corp., 908 F.3d 405

(9th Cir. 2018), but that precedential opinion holds, at a

minimum, that a district court abuses its discretion when it

adheres to now-abrogated Local Rule 23-3 without

11 Because we do not reach the merits of Davidson’s wage-statement

claim, we express no view as to whether “address,” as used in section

226(a)(8) of the California Labor Code, covers a P.O. box address and

therefore deny Davidson’s Motion for Judicial Notice (ECF No. 12),

which seeks judicial notice of documents related to section 226(a)(8). See

Flores v. Cty. of Los Angeles, 758 F.3d 1154, 1159 n.11 (9th Cir. 2014).

We also decline Davidson’s request to issue an advisory opinion to

clarify the district court’s order granting partial summary judgment on her

PAGA claim. See Aetna Life Ins. Co. of Hartford, Conn. v. Haworth,

300 U.S. 227, 241 (1937) (holding that we may not issue “an opinion

advising what the law would be upon a hypothetical state of facts”).
DAVIDSON V. O’REILLY AUTO ENTERS. 27

considering the need for pre-certification discovery. I see no

way to fairly distinguish ABS from this case.

Nor do I agree that Davidson’s rest break claim fails for

lack of commonality pursuant to Fed. R. Civ. P. 23(a)(2). 

The district court did not reach commonality, but my

colleagues affirm the district court’s order denying class

certification on that basis. In doing so, the majority

improperly conflates the answer to a common question with

the existence of a common contention. Here, Davidson

clearly identified evidence of a common rest break policy,

and that was sufficient to establish commonality at the class

certification stage. Because ABS controls the situation

presented here, and because Davidson satisfied the

commonality requirement of Rule 23(a)(2), I respectfully

dissent.

I

Less than two years ago, our court considered the

previous version of Local Rule 23-3 in ABS, and held that the

Rule’s bright-line 90-day deadline to file a class certification

motion was “incompatible with Federal Rule of Civil

Procedure 23” and “impractica[l].” 908 F.3d at 427. Our

court cautioned that Federal Rule of Civil Procedure 23

demanded a more flexible approach, and that district courts

must carefully consider the need for pre-certification

discovery, rather than adhering to an arbitrary deadline. Id.

(citing Kamm v. Cal. City Dev. Co., 509 F.2d 205, 210 (9th

Cir. 1975)). In ABS, we held that “district court’s summary

and unexplained denial of the parties’ joint stipulation to

extend the 90-day deadline based on the need for precertification discovery” required remand, with the explicit
28 DAVIDSON V. O’REILLY AUTO ENTERS.

direction for the district court to “reconsider[] . . . whether

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

In the wake of ABS, the Central District of California

amended Local Rule 23-3. The new rule became effective

less than a year ago, on December 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 version

of Local Rule 23-3. The record leaves no doubt that the

district court adhered to the bright-line 90-day deadline

imposed by that rule without regard for the need for precertification discovery. Under our precedent, this was plainly

an abuse of discretion.

Davidson served her first amended complaint on June 23,

2017, and her initial discovery requests one week later. 

O’Reilly declined to treat Davidson’s discovery requests as

operative until a month after that, when the parties had their

Rule 26(f) discovery conference on July 28, 2017. See Fed.

R. Civ. P. 26(d). On August 1, 2017, Davidson served her

initial discovery requests again. The very next day, August 2,

Davidson and O’Reilly filed a joint stipulation to extend the

class certification deadline imposed by operation of Local

Rule 23-3, and specifically cited the need to conduct

interviews of putative class members.1 The joint stipulation

outlined the significant time required for this logistically

intensive process, and expressly identified the 30-day period

required to allow putative class members to opt out after they

1 My colleagues assert that the court set a deadline for filing the

motion for class certification. This is not correct. The deadline here was

imposed solely by operation of Local Rule 23-3.
DAVIDSON V. O’REILLY AUTO ENTERS. 29

received notice of the action.2 The requested extension (to

which the parties mutually agreed) was 67 days. On

August 4, 2017, the court denied the joint stipulation without

explanation. The district court made no findings that shed

light on its reasons for denying the parties’ joint request for

more time.

O’Reilly served its discovery responses on August 31, the

last possible day, and offered to provide contact information

for a yet-to-be-negotiated randomsampling of class members

after the parties negotiated and sent out a Belaire-West notice. 

This was an empty promise, as there was already insufficient

time to complete the process associated with interviewing the

class members. Even if the parties had been able to negotiate

and send out a Belaire-West notice the same day O’Reilly

served its discovery responses, the notice requires a waiting

period to allow class members to opt out. After that waiting

period, the parties would have had to negotiate a sample of

employees, assemble a contact list, send out notices, contact

witnesses, interview them, and prepare declarations. Those

steps could not be taken until the parties knew which

members of the putative class would opt out.3 With the

2 O’Reilly consistently asserted that it would “only provide the contact

information for putative class members subject to” the notice and opt-out

procedure described in Belaire-West Landscape Inc. v. Superior Court,

57 Cal. Rptr. 3d 197, 203 (Ct. App. 2007). (Emphasis added).

3 The majority asserts that district courts have frequently opted for a

protective order in lieu of a Belaire-West notice, particularly when there

is not sufficient time 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

WL 5568609, at *5 (C.D. Cal. Sept. 22, 2015). This is true, but entirely

futile in Davidson’s case. With the class certification deadline only three

weeks away, it is manifestly unreasonable to expect that Davidson could

file a motion to compel, receive a favorable ruling on that motion,
30 DAVIDSON V. O’REILLY AUTO ENTERS.

deadline of September 21 for filing a class certification

motion looming just three weeks away, it was impossible for

Davidson to conduct discovery into the putative class

members before filing her motion 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 denied the first stipulation for failure to show

good cause, the parties filed a second stipulation that

specifically cited the need for pre-certification discovery. Id.

The district court denied that stipulation without explanation,

and did “not address the asserted need for pre-certification

discovery.” Id. Our court concluded that the district court

was not permitted to rely on the bright-line deadline in Local

Rule 23-3, and remanded with direction to “reconsider[] . . .

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

at 427.

Here, the parties filed a joint stipulation to extend Local

Rule 23-3’s automatic 90-day deadline, specifically citing the

time needed to conduct pre-certification discovery. The

district court denied that stipulation without explanation, and

never addressed the need for pre-certification discovery. 

Adherence to our precedent requires, at a minimum, that this

case be remanded for the district court to reconsider whether

pre-certification discovery was warranted.

Contrary to my colleagues’ assertion, Davidson preserved

this issue for appeal. See In re E.R. Fegert, Inc., 887 F.2d

negotiate the form of a protective order, and receive a response to her

discovery requests, all with enough time to schedule and obtain interviews

from class members.
DAVIDSON V. O’REILLY AUTO ENTERS. 31

955, 957 (9th Cir. 1989). Nothing in the record supports the

supposition that Davidson ever abandoned her request to

interview putative class members. Davidson requested an

extension of the deadline imposed by Local Rule 23-3 so she

could conduct interviews, but the district court denied that

request. By the time Davidson received O’Reilly’s discovery

responses on August 31, she had no choice but to forge ahead

with her other available methods of discovery. What the

majority calls “abandonment” is more typically described as

compliance with a court order. The majority faults Davidson

for not re-filing the same request, but there was no reason to

think that the court would have made a different decision if

Davidson had re-filed her initial request for time to interview

putative class members. After all, the first request was

denied even though O’Reilly had stipulated to it. Davidson

was not required to repeatedly request an extension that the

district court had already denied. See Yamada v. Nobel

Biocare Holding AG, 825 F.3d 536, 543 (9th Cir. 2016)

(“[W]hen a party takes a position 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 only that

Davidson faced further difficulties in obtaining the limited

discovery that was available to her. O’Reilly did not make its

Rule 30(b)(6) witnesses available in time for her to include

their testimony in her motion for class certification. Thus, the

parties filed a stipulation to extend the class certification

motion deadline by 14 days, which was again denied without

explanation. The parties also filed a stipulation to file a

supplemental brief after the class certification deadline,

which was granted, but this narrow request was related solely

to Davidson obtaining corporate testimony pursuant to

Rule 30(b)(6). In the stipulation for a 14-day extension, the
32 DAVIDSON V. O’REILLY AUTO ENTERS.

parties specifically recognized that the district court had

already denied their previous stipulation requesting time to

interview class members, and noted that they were seeking a

much shorter extension in order to address the narrow issue

of procuring testimony from O’Reilly’s Rule 30(b)(6)

witnesses. As for interviews of putative class members, that

ship had already sailed.

The district court adhered to the deadline in Local

Rule 23-3 without considering whether Davidson had

sufficient means to conduct pre-certification discovery. This

is precisely the circumstance that required remand in ABS,

with explicit instructions to reconsider whether precertification discovery was warranted. The court’s order

denying pre-certification discovery is particularly concerning

because the court later denied class certification on the

grounds that Davidson failed to advance sufficient evidence

supporting certification. Davidson was faulted for failing to

collect the very evidence the court’s orders prevented her

from gathering.

I can see no principled way to distinguish the procedural

posture of this case from the decision we published in ABS,

and as a three-judge panel, we are bound by our circuit

precedent. See Miller v. Gammie, 335 F.3d 889, 899 (9th Cir.

2003) (en banc). An appellate decision that flip-flops so soon

after ABS was published will likely cause confusion for the

local bench and bar. See Payne v. Tennessee, 501 U.S. 808,

827 (1991) (observing that respect for precedent “promotes

the evenhanded, predictable, and consistent development of

legal principles, fosters reliance on judicial decisions, and

contributes to the actual and perceived integrity of the judicial

process”).
DAVIDSON V. O’REILLY AUTO ENTERS. 33

II

Because I would hold that the district court abused its

discretion by denying Davidson an opportunity to conduct

pre-certification discovery, I would not reach the question

whether Davidson satisfied the requirements of Fed. R. Civ.

P. 23. But my colleagues do, and by affirming the district

court’s class certification decision on the basis of

commonality, they decide in the first instance an issue the

district court never reached.4In the majority’s view,

Davidson failed to show that the putative class suffered the

same injury because she did not show that O’Reilly’s written

rest break policy was actually applied to O’Reilly’s

employees. This result is also contrary to controlling

authority.

The Rule 23(a)(2) requirement of commonality demands

that claims “must depend upon a common contention.” WalMart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011)

(emphasis added). That “common contention, moreover,

must be of such a nature that it is capable of classwide

resolution—which means that determination of its truth or

falsity will resolve an issue that is central to the validity of

each one of the claims in one stroke.” Id. (emphasis added). 

“What matters to class certification . . . [is] the capacity of a

classwide proceeding to generate common answers apt to

drive the resolution of the litigation.” Id. (quoting Richard A.

Nagareda, Class Certification in the Age of Aggregate Proof,

84 N.Y.U. L. Rev. 97, 132 (2009)).

4 The district court rested its denial of class certification on

predominance, see Fed. R. Civ. P. 23(b)(3), without addressing any

Rule 23(a) requirements.
34 DAVIDSON V. O’REILLY AUTO ENTERS.

To be sure, Wal-Mart confirmed that the “rigorous

analysis” under Rule 23(a) “sometimes [requires] the court to

probe behind the pleadings before coming to rest on the

certification question.” Id. (quoting Gen. Tel. Co. of Sw. v.

Falcon, 457 U.S. 147, 160 (1982)). And we have recognized

that “a district court must consider the merits” if they overlap

with the requirements of Rule 23(a). Ellis v. Costco

Wholesale Corp., 657 F.3d 970, 981 (9th Cir. 2011). After

all, “if there is no evidence that the entire class was subject to

the same allegedly discriminatory practice, there is no

question common to the class.” Id. at 983 (emphasis added). 

But here, Davidson came forward with evidence of precisely

this variety. Thus, this case is clearly distinguishable from

Wal-Mart and Ellis, where claims of gender discrimination

failed to satisfy commonality because the plaintiffs did not

demonstrate the existence of a uniform policy.

Davidson established commonality with the 2010 and

2013 versions of O’Reilly’s store operations manual, and

testimony from O’Reilly’s Rule 30(b)(6) corporate designee,

Mr. David Vanden Bos. Vanden Bos authenticated numerous

O’Reilly documents from the class period concerning

O’Reilly’s rest break policy—e.g., a training agenda and a

memo to managers. None of O’Reilly’s documents included

the “major fraction thereof” language required by California

law. See Brinker Rest. Corp. v. Superior Court, 273 P.3d

513, 528–29 (Cal. 2012); Cal. Code Regs. tit. 8,

§ 11070(12)(A). Davidson also identified evidence produced

by O’Reilly in a related class action concerning the same rest

break policy, including two internal O’Reilly policy

documents indicating the same non-compliant rest break

policy, and Rule 30(b)(6) testimony confirming that O’Reilly
DAVIDSON V. O’REILLY AUTO ENTERS. 35

only provided one rest period for every four hours of work.5

The majority supposes that the Rule 30(b)(6) deponent’s

testimony suggests O’Reilly followed a lawful rest break

practice. But it is not clear this is so. The written policies

identified by Davidson are not consistent with California law,

and the deponent’s testimony is ambiguous about the practice

that was actually followed.

Plainly, Davidson demonstrated the existence of a

uniform policy, which if implemented would cause class

members to suffer the same injury. The “rigorous analysis”

required by Wal-Mart does not allow for “an in-depth

examination of the underlying merits” of the case—for

example, “whether [an employer] was in fact discriminating

against women,” Ellis, 657 F.3d at 983 n.8, or whether

O’Reilly was in fact depriving its employees of legallymandated rest breaks. The purpose of class certification is

“not to adjudicate the case,” but merely “to select the method

best suited to adjudication of the controversy fairly and

efficiently.” Amgen Inc. v. Conn. Ret. Plans & Tr. Funds,

5

 Davidson requested judicial notice of these materials because they

had been filed on the public docket in related litigation involving O’Reilly. 

See Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 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 that Davidson

improperly requested judicial notice of findings of fact from another case. 

But Davidson did not seek judicial notice of any findings. She sought

notice of the policies O’Reilly introduced in the parallel litigation. 

Whether the cited evidence in fact reflected O’Reilly’s practice is subject

to reasonable dispute, and thus not the proper subject of judicial notice. 

But the fact that these written policies exist and were produced by

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 judicial notice of the

existence of O’Reilly’s policy documents, just not the veracity of any

disputed facts contained therein. See id.
36 DAVIDSON V. O’REILLY AUTO ENTERS.

568 U.S. 455, 460 (2013) (alteration and quotation marks

omitted); see also Stockwell v. City & Cty. of San Francisco,

749 F.3d 1107, 1112 (9th Cir. 2014) (“[D]emonstrating

commonality does not require proof that the putative class

will prevail on whatever common questions it identifies.”);

Ellis, 657 F.3d at 983 n.8 (observing that “whether class

members could actually prevail on the merits of their claims”

is not the proper inquiry). And the identification of a “a fatal

similarity—[an alleged] failure of proof as to an element of

the plaintiff’s claim”—is “inappropriate at the certification

stage.” Alcantar v. Hobart Serv., 800 F.3d 1047, 1053 (9th

Cir. 2015) (quoting Amgen, 568 U.S. at 470).

Our prior decision in Jimenez v. Allstate Ins. Co.,

765 F.3d 1161 (9th Cir. 2014) is directly on point. There, the

plaintiffs raised an off-the-clock work claim that required

proof that: (1) plaintiffs performed work for which they did

not receive compensation; (2) defendants knew or should

have known that plaintiffs did so; and (3) defendants stood by

idly. Id. at 1165. As to the first question, the plaintiffs

argued that class members had worked unpaid overtime as a

result of the defendant’s unofficial policy of discouraging

reporting of such overtime. Id. The defendant argued its

formal policies were lawful, “and that the alleged informal

‘policy-to-violate-the-policy’ d[id] not exist.” Id. at 1165 n.5. 

We concluded that “[p]roving at trial whether such informal

or unofficial policies existed will drive resolution of [the first

question].” Id. at 1166. As to defendant’s argument

concerning the existence of the policy, we observed that

“[t]his argument is appropriately made at trial or at the

summary judgment stage,” because “[w]hether any of these

common questions are ultimately resolved in favor of either

side is immaterial at the class certification stage.” Id. at 1165

n.5. After all, “if a defendant has a strong argument against
DAVIDSON V. O’REILLY AUTO ENTERS. 37

classwide liability, it ‘should welcome class certification’ as

that allows it the opportunity to resolve claims of all class

members at once.” Id. (quoting In re Whirlpool Corp. FrontLoading Washer Prods. Liab. Litig., 722 F.3d 838, 857 (6th

Cir. 2013)); see also Ridgeway v. Walmart Inc., 946 F.3d

1066, 1078–82 (9th Cir. 2020) (observing it was jury’s role

“to decide whether Wal-Mart implemented the written

policies” concerning control over employees).

Here, Davidson argued O’Reilly had a policy of

unlawfully denying class members legally-mandated 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

claims would require numerous individualized

determinations. See, e.g., Wal-Mart, 564 U.S. at 355

(concluding plaintiffs failed to allege a uniform employment

practice because employment decisions were left to discretion

of local supervisors). O’Reilly instead argued that the

unlawful policy identified by Davidson was not in fact

implemented, and that its actual rest break policy—as applied

throughout California—was lawful. But whether or not the

unlawful policy was actually implemented is precisely the

sort of question that satisfies commonality. Jimenez,

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 defendant “had a ‘common policy or practice of

withholding information’” was a common question that

would “help to drive resolution of the litigation for all class

members”).

The district court’s conclusion on predominance, though

not addressed by the majority, suffered from a similar

infirmity. Rule 23(b)(3) “asks the court to make a global

determination of whether common questions prevail over
38 DAVIDSON V. O’REILLY AUTO ENTERS.

individualized ones.” Torres, 835 F.3d at 1134. This

“requires a showing that questions common to the class

predominate, not that those questions will be answered, on

the merits, in favor of the class.” Amgen, 568 U.S. at 459. 

Because generalized evidence of the sort advanced by

Davidson will provide an answer to the question whether the

challenged policy was implemented, and that answer will

cause the whole class to “prevail or fail in unison,” id. at 460,

Rule 23(b)(3)’s predominance requirement was satisfied.

For these reasons, I respectfully dissent.