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Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

STARVONNA HARRIS, et al.,

Plaintiffs,

v.

BEST BUY STORES, L.P.,

Defendant.

Case No. 17-cv-00446-HSG 

ORDER DENYING PLAINTIFF'S 

MOTION FOR CLASS 

CERTIFICATION, GRANTING 

DEFENDANT’S MOTION FOR LEAVE 

TO FILE A RESPONSE TO 

PLAINTIFF’S OBJECTIONS AND 

REQUEST TO EXCLUDE EVIDENCE, 

AND DENYING PLAINTIFF’S 

MOTIONS FOR RELIEF FROM 

ORDERS OF MAGISTRATE JUDGE

Re: Dkt. Nos. 85, 94, 95, 118

On January 25, 2018, the Court held a hearing on Jonathan Strickland and Starvona 

Harris’s motion for class certification and Defendant Best Buy Stores, L.P.’s (“Best Buy”) motion 

for summary judgment on Plaintiff Jonathan Strickland’s claims. See Dkt. Nos. 85 (“Mot.”), 91; 

see also Dkt. Nos. 97 (“Opp.”), 104 (“Reply”). The Court took the motions under submission, and 

granted Defendant’s motion for summary judgment. Dkt. No. 123 (“Strickland Summary 

Judgment Order”).1 Also in that order, the Court dismissed Plaintiff Harris’s seventh cause of 

action under the Private Attorneys General Act (“PAGA”). 

Because the Court’s summary judgment order altered the bases for class certification, on 

April 19, 2018 the Court heard further argument on Plaintiff Harris’s class certification motion. 

See id. at 20. After carefully considering the parties’ arguments, the Court DENIES the motion. 

 

1

The Strickland Summary Judgment Order set forth this litigation’s extensive procedural and 

factual history. This order incorporates those unchanged facts. In this order, the Court only 

discusses the facts and legal standards as necessary to address the issues raised by Plaintiff’s 

motion for class certification.
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I. LEGAL STANDARD

Plaintiff bears the burden of showing by a preponderance of the evidence that class 

certification is appropriate under Federal Rule of Civil Procedure 23. Wal-Mart Stores, Inc. v. 

Dukes, 564 U.S. 338, 351 (2011). Class certification is a two-step process. First, Plaintiff must 

establish that each of the four requirements of Rule 23(a) is met: numerosity, commonality, 

typicality, and adequacy of representation. Id. Second, Plaintiff must establish that at least one of 

the bases for certification under Rule 23(b) is met. Comcast Corp. v. Behrend, 569 U.S. 27, 33 

(2013). Where, as here, Plaintiff seeks to certify a class under Rule 23(b)(3), Plaintiff must show 

that “questions of law or fact common to class members predominate over any questions affecting 

only individual members, and that a class action is superior to other available methods for fairly 

and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3).

“[A] court’s class-certification analysis must be ‘rigorous’ and may ‘entail some overlap 

with the merits of the plaintiff’s underlying claim.’” Amgen Inc. v. Conn. Ret. Plans & Tr. Funds, 

568 U.S. 455, 465–66 (2013) (quoting Wal–Mart, 564 U.S. at 351). Nevertheless, Rule 23 does 

not permit “free-ranging merits inquiries at the certification stage.” Id. at 466. “Merits questions 

may be considered to the extent—but only to the extent—that they are relevant to determining 

whether the Rule 23 prerequisites for class certification are satisfied.” Id. If a court concludes 

that the moving party has met its burden of proof, the court has broad discretion to certify the 

class. Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1186 (9th Cir.), opinion amended on 

denial of reh’g, 273 F.3d 1266 (9th Cir. 2001).

II. ANALYSIS

Plaintiff’s putative class comprises “Defendant’s non-exempt employees who were 

employed in California during the period from four years prior to the filing of the Prior Federal 

Action (February 11, 2011) until this Court’s order granting class certification who fall within one 

or more of the following subclasses. . . .” Dkt. No. 55 (“SAC”) at 6–7.2 At the April 19 hearing, 

 

2

“The Prior Federal Action” refers to Harris’s first suit against Defendant, Case No. 4:15-cv00657-HSG. In the Prior Federal Action, the Court found that material disputes of fact precluded 

summary judgment on Plaintiff’s claim for “failure to provide itemized wage statements” in 

violation of California Labor Code Section 226, and her claim for “failure to pay wages within 
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the parties agreed that only two putative subclasses remained following the Strickland Summary 

Judgment Order: a “Wage Statement Subclass” and a “Waiting Time Subclass.” See id. The 

Wage Statement Subclass comprises:

[A]ll nonexempt individuals employed by DEFENDANT in 

California who received wage statements containing one or more 

“Previous Period Hrs” entries, (2) all members of the Overtime 

Wage Subclass, and (3) all non-exempt individuals employed by 

DEFENDANT in California who received wage statements listing 

hours worked that do not match the hours worked in their time 

records for the same pay periods [during the applicable limitations 

period].

Id. at 7.3 Plaintiff’s Waiting Time Subclass includes, in relevant part: “all non-exempt individuals 

formerly employed by DEFENDANT in California who either did not receive their final hourly 

wages on the date their employment was terminated or within 72 hours of their resignation” during 

the applicable limitations period. Id. The Court addresses the adequacy of each putative subclass 

under Rule 23. 

A. Wage Statement Subclass

The parties generally agree on the systems and procedures that Defendant uses to produce

wage statements. To track employee hours worked, Best Buy maintains a time entry system called

the Time and Labor Center (“TLC”). Mot. at 2; Opp. at 10; see Dkt. No. 97-1 (“Compendium of 

Evidence” or “CE”) at 317. The TLC requires managers to approve certain time entries input by 

employees, referred to as “timesheet exceptions.” CE at 318–19. Timesheet exceptions can 

include manually input time entries and corrections to prior time entries. See id. Other timesheet 

exceptions include:

(1) [P]unching in 15 minutes early for a scheduled shift; (2) 

punching out more than one hour later than a scheduled shift; (3) 

missing a punch in sequence or punching out of sequence, such as 

when an employee accidentally hits a start meal button instead of a 

clock in button; (4) working a shift that was not scheduled; (5) 

 

[the] required time in violation of California Labor Code Sections 201, 202, and 203. See Dkt. 

No. 102 (“Harris Summary Judgment Order”), Case No. 4:15-cv-00657-HSG. In this litigation, 

Plaintiff seeks to represent subclasses corresponding to those claims. 

3 As mentioned, the Strickland Summary Judgment Order mooted Plaintiff’s Overtime Wage 

Subclass. The Court in this order therefore does not analyze that component of either Plaintiff’s 

Wage Statement Subclass, or her Waiting Time Subclass. 
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working when a Time Off Request Form is not submitted before a 

schedule is issued; (6) punching in or out or starting or ending a 

meal period using the wrong date; and (7) punching out at midnight 

and punching back in after midnight. 

See Mot. at 2; Opp. at 10–11; CE at 318–19. The TLC does not require managers to approve nontimesheet exceptions (i.e., those that can be input using buttons “to clock on for a shift, to clock 

out for a meal period, to clock in from a meal period and clock out at the end of a shift”). Mot. at 

2; CE at 318. 

TLC time entries determine how much an employee is paid and when. Best Buy’s pay 

periods are two weeks, and Best Buy’s work week is Sunday (12:00 am) to Saturday (11:59 pm). 

Opp. at 11; CE at 457. It is an employee’s responsibility to ensure that “their time records are 

complete, accurate and authorized by 5:00 pm (local time) on Sunday.” Opp. at 11; CE at 319–

320. If a timesheet exception lacks approval by 5:00 pm Central Time on the Monday following 

the end of a payroll week, the corresponding time entry will not be paid on the Friday pay date for 

that pay period. Opp. at 11; Mot. at 4; CE at 320. Those time entries appear on the following 

wage statement as “Previous Period Hrs.” Opp. at 11; Mot. at 4.

Plaintiff contends that the “Previous Period Hrs.” wage statement entry is misleading. 

According to Plaintiff, this entry prevents Best Buy employees from determining “whether the 

hours were worked and the wages were earned in the prior pay period or an earlier pay period.” 

Mot. at 4. Plaintiff claims that the TLC’s deficiencies are further compounded by other procedural 

inadequacies, including Best Buy’s failure to: (1) instruct employees to use automatic entry 

buttons and/or correct missing or inaccurate entries; (2) provide adequate instruction regarding 

which entries might trigger delayed approval; or (3) instruct mangers that they need to approve 

timesheet exceptions without delay. Id. at 3. 

In response, Defendant contends that Plaintiff’s Wage Statement Subclass cannot satisfy 

Rule 23’s commonality and predominance requirements. To begin, Defendant claims that the 

“Previous Period Hrs.” entry does not itself violate California Labor Code Section 226. Opp. at 

13–14. Defendant stresses that Plaintiff cannot show, as she must, that Defendant’s violation was 

knowing and intentional. Id. at 15–16. Defendant argues that discerning the question of intent on 

these facts requires adjudicating “thousands of distinct decisions” made by Defendant’s employees 
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and managers with respect to when a timesheet exception was approved, and why that approval 

may have been delayed. Opp. at 13–16. 

The Court agrees with Defendant. As set forth in the Prior Federal Action, California 

Labor Code Section 226 “requires an employer at the time that wages are paid to provide an 

accurate itemized statement that contains nine items.” See infra n.2; Harris Summary Judgment 

Order at 13. Those nine categories of information include, in relevant part, gross wages earned, 

total hours worked, net wages earned, “the inclusive dates of the period for which the employee is 

paid,” and all “applicable hourly rates in effect during the pay period and the corresponding 

number of hours worked at each hourly rate by the employee . . . .” See Cal. Lab. Code § 226. 

“To recover under § 226(e), a plaintiff must show: (1) a violation of § 226(a) that (2) was knowing 

and intentional, and (3) an injury suffered as a result of the violation.” Harris Summary Judgment 

Order at 13. A “knowing and intentional violation” occurs when the employer actually knows that 

it has omitted from a pay statement any item required by § 226(a). See id. A knowing and 

intentional failure “does not include an isolated and unintentional payroll error due to a clerical or 

inadvertent mistake.” Cal. Lab. Code § 226(e)(3). 

Here, Plaintiff fails to set forth how she could show, on a classwide basis, that Best Buy 

managers knowingly and intentionally delayed their approval of timesheet exceptions. To meet 

Rule 23(a)’s commonality requirement, Plaintiff’s wage statement claim “must depend upon a 

common contention. . . 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.” Dukes, 564 U.S. at 349. As the Dukes Court stated, the commonality analysis is 

“rigorous.” Id. at 350. Plaintiff accordingly cannot assert “any common question”—rather, she

must define a question that “will produce a common answer” to the question driving the resolution 

of the litigation. Ellis v. Costco Wholesale Corp., 657 F.3d 970, 981 (9th Cir. 2011) (citing Dukes, 

564 U.S. at 349). That question in this case is whether Defendant’s managers knowingly and 

intentionally failed to timely approve timesheet exceptions. Notably, Plaintiff fails to show that 

Best Buy, as a corporate actor, knew or intended for timesheet exceptions to be approved late. 

Plaintiff also fails to present evidence demonstrating that Best Buy otherwise sought to mislead 
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employees as to their hours worked and wages earned through the Previous Period Hrs. entry. 

Partly as a consequence, answering Section 226’s liability inquiry requires individual 

examination of numerous context-specific factors. Those factors include the circumstances in

which an employee entered a timesheet exception, when the manager approved the exception, and

why the manager failed to timely approve the exception. To discern each of these factors, a 

factfinder needs to evaluate the mental state and conduct of, and perhaps even the relationship 

between, the relevant manager and employee. See Opp. at 16; Dukes, 564 U.S. at 351 (rejecting 

that a putative class member can “sue about literally millions of employment decisions at once”). 

Contributing to the difficulty of classwide proof is the decentralized nature of entering and 

approving hours worked at Best Buy. Considering that the TLC gives employees and managers 

some discretion in how to enter and approve timesheet exceptions, liability will in most cases

hinge on individualized assessments of the conduct of particular employees. As mentioned, 

Plaintiff fails to present evidence that Best Buy, at the corporate level, knowingly or intentionally 

administered the TLC so as to violate Labor Code Section 226. See Dukes, 564 U.S. at 353 

(noting that the plaintiffs lacked “significant proof” that the defendant operated under a generally 

unlawful policy). Defendant, in contrast, presents evidence that 99.6% of the checks issued during 

the class period did not include a Previous Period Hrs. entry. Time entries were accordingly 

approved without delay in the vast majority of cases. In “.14% of the total checks” issued during 

the class period (i.e., 2,177 out of 1,576,198 total checks), the Previous Period Hrs. entry appeared 

where an employee appropriately entered their time before the end of the pay period, but the 

manager failed to timely approve the entry. Mot. at 11; CE at 24, 32–33.

4

In the absence of evidence showing liability on a systematic basis, Plaintiff cannot satisfy 

Rule 23(a)’s commonality requirement. The Dukes court rejected the premise that providing 

“local supervisors” with discretion comprises a “uniform employment practice.” 564 U.S. at 356. 

As in Dukes, Plaintiff here has not presented evidence of a “common mode of exercising 

discretion that pervades the entire company.” Id. Rather, it will be up to the trier of fact to find on 

 

4

Plaintiff’s objection to the Reardon Report, see Dkt. No. 108 at 1, is addressed below.
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a case-by-case basis why a Best Buy manager failed to timely approve an employee’s timesheet 

exception. See Opp. at 12-13.5 In that regard, Defendant presents numerous examples of

unintentional late approvals arising, for instance, from miscommunication between managers and 

employees, unexplained absences, human error, vacation, sickness, and confusion among 

managers as to who was responsible for approving a particular time entry. See CE at 672, 677, 

703, 707, 723, 736, 749, 779, 784. Other California district courts have rejected class claims in 

analogous circumstances. Lanzarone v. Guardsmark Holdings, Inc., No. CV06-1136 RPLAX, 

2006 WL 4393465, at *4 (C.D. Cal. Sept. 7, 2006) (finding that the “bulk of the issues” “truly in 

dispute” were “inherently individualized” because there was no evidence to support that the 

defendant had an unlawful “systematic policy or practice,” and because the “precise manner and 

circumstances” in which the defendant administered the relevant policy could “vary from account 

to account”).

Plaintiff does not expressly dispute that late approvals can result from error or 

unintentional conduct. Rather, Plaintiff argues that this conclusion requires the Court to make an 

inappropriate finding on the merits. But Dukes clarified that a rigorous commonality analysis 

“will entail some overlap with the merits of the plaintiff’s underlying claim.” 564 U.S. at 351. 

Though Plaintiff claims that the commonality showing is “minimal,” virtually all of the authorities 

cited Plaintiff predate Dukes. See Mot. at 13.

Even if Plaintiff’s putative subclass could satisfy Rule 23’s commonality requirement, it 

would not survive under its predominance requirement. Under Rule 23(b)(3), “the separate 

adjudication of each class member’s individual claim or defense” renders certification 

inappropriate. Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1189 (9th Cir.), opinion 

amended on denial of reh’g, 273 F.3d 1266 (9th Cir. 2001) (finding causation and damage 

determinations could present “triable individualized issues” unsuitable for class treatment despite 

the possibility of common issues pertaining to the defendant’s liability). “[T]he main concern in 

 

5

Plaintiff claims that 5,012 employees entered timesheet exceptions before the Monday cutoff but 

failed to get timely approval. See Mot. at 5–6. Even if the Court accepted Plaintiff’s statistic, 

Plaintiff’s claim would still fail for lack of common proof as to Defendant’s intent. 
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the predominance inquiry” is “the balance between individual and common issues. In re Wells 

Fargo Home Mortg. Overtime Pay Litig., 571 F.3d 953, 959 (9th Cir. 2009) (finding that the 

district court abused its discretion in certifying a class based on a uniformly applied exemption 

policy, by disregarding “the existence of other potential individual issues that may make class 

treatment difficult if not impossible”). In striking that balance, the Court searches for some 

“common proof” to dispose of “otherwise individualized issues,” and thereby facilitate judicial 

economy. Id. at 958. 

As mentioned, Plaintiff does not present evidence suggesting that Best Buy knowingly or 

intentionally instructed or encouraged managers to unlawfully delay their approval of timesheet 

exceptions. See Pryor v. Aerotek Scientific, LLC, 278 F.R.D. 516, 531 (C.D. Cal.2011) (collecting 

cases, and concluding that “[t]he predominance requirement is more likely to be satisfied when the 

conduct complained of is the result of a common practice by the employer, and when the 

individualized inquiries that will be required concern class members’ damages if the employer is 

found liable”). Contrary to Plaintiff’s suggestion, nothing about the TLC system on its own is 

unlawful or inadequate under Section 226. See Mot. at 21. Rather, “the questions susceptible of 

classwide proof” (for instance, whether an employee’s pay statement includes the Previous Period 

Hrs. entry) offer limited answers as to Defendant’s liability. See Pryor, 278 F.R.D. at 533. 

Plaintiff provides no aggregate method for determining the issue of intent, which Defendant’s 

records cannot show on their own. Thus, the factfinder will need to determine in each case the 

conduct and circumstances giving rise to a delayed approval. 

Plaintiff’s own authorities recognize that these “individualized inquiries” are inappropriate 

for certification under Rule 23(b)(3), and would “bog down the action in a series of ‘mini-trials.’” 

See Mot. at 20 (citing cases); Torres v. Air to Ground Servs., Inc., 300 F.R.D. 386, 403 (C.D. Cal. 

2014) (quoting Pryor, 278 F.R.D. at 536). For instance, in Torres, the court found that Rule 

23(a)’s commonality requirement was satisfied because the liability inquiry reduced to whether the 

defendant’s uncompensated time off policy complied with a municipal living wage ordinance. See 

300 F.R.D. at 403. Nonetheless, the court concluded that certification of this class claim was 

inappropriate under Rule 23(b)(3) because “whether a given Class member suffered any injury due 
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the policy, in the event it is found unlawful, [would require] an individualized assessment.” Id. 

That injury assessment would, as here, necessitate inquiry “into whether each member was denied 

uncompensated time off, the reasons for the Class member’s request, whether the reason for the 

request was sufficiently related to illness, when the request was made, and the context in which the 

request was presented to the supervisor.” Id.6 Plaintiff’s other authorities likewise presume the 

existence of some common proof, which is absent here. Cf. Taylor v. Fedex Freight, Inc., No. 13-

CV-1137-LJO-BAM, 2015 WL 2358248, at *15 (E.D. Cal. May 15, 2015) (holding that the

predominance requirement was satisfied by evidence of the defendant’s “uniform piece-rate 

compensation policy that fail[ed] to separately compensate truck drivers for required activities”); 

Romero v. Producers Dairy Foods, Inc., 235 F.R.D. 474, 490 (E.D. Cal. 2006) (certifying a class 

in part because deciding any individual issues could “likely be determined with reference to 

timecards and payroll records” and would therefore be “relatively straightforward”). Given that 

individual liability issues will predominate over common concerns, the Court concludes that

certification of the Wage Statement Subclass is inappropriate. 

B. Waiting Time Subclass

The Court turns next to Plaintiff’s putative Waiting Time Subclass. As set forth in the 

Prior Federal Action, there are three key provisions of the California Labor Code. Section 201 

states: “If an employer discharges an employee, the wages earned and unpaid at the time of 

discharge are due and payable immediately.” Cal. Lab. Code § 201(a). Section 202 continues: “If 

an employee not having a written contract for a definite period quits his or her employment, his or 

her wages shall become due and payable not later than 72 hours thereafter . . . .” Id. § 202(a). 

Finally, California Labor Code § 203 provides:

If an employer willfully fails to pay, without abatement or reduction, 

in accordance with Sections 201, 201.3, 201.5, 201.9, 202, and 

205.5, any wages of an employee who is discharged or who quits, 

the wages of the employee shall continue as a penalty from the due 

 

6

Though the Torres court proceeded to find that the plaintiffs’ claim for inaccurate wage 

statements satisfied Rule 23, the court (1) did not consider the question of intent, and (2) found 

that putative class members could provide common proof to support their alleged wage statement 

claim in the form of the defendant’s payroll records. See 300 F.R.D. at 403–04. For the reasons 

discussed, Defendant’s payroll records here are insufficient to show intent. 
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date thereof at the same rate until paid or until an action therefor is 

commenced; but the wages shall not continue for more than 30 days. 

Cal. Lab. Code § 203 (emphasis added). In analyzing Harris’s individual claim for untimely 

payment, the Court in the Prior Federal Action concluded that there were genuine factual disputes 

as to whether: (1) Harris resigned voluntarily or was terminated; (2) Harris timely received her 

wages on September 15, 2014, or received them late on September 16, 2014; and (3) there was a 

good faith dispute regarding wages owed that would preclude Harris’s ability to recover. Harris 

Summary Judgment Order at 11–12. 

With respect to this putative subclass, the parties at least agree that the following 

procedures govern the termination of Best Buy employees. For involuntary terminations, the 

responsible manager contacts an individual from Defendant’s Employee Relations (“ER”) 

department to issue an “Involuntary Separation Notice” (“ISN”). The ISN provides a termination 

date, the reasons for the employee’s termination, and signature and signature date lines for the 

manager and employee. Mot. at 8; see CE at 256. An online “Manual Pay Request” (“MPR”) is 

then created for the employee’s final wages. Id. The MPR draws time entries from the TLC. CE 

at 256. ER therefore asks the responsible manager to ensure that all time in the TLC is up to date 

through the date of the MPR. Id. The MPR provides: (1) whether the termination was involuntary 

or voluntary; (2) the termination date; and (3) whether the final payment would be made by direct 

deposit or paper check and, if the latter, where the paper check would be mailed. Id. The MPR is 

sent to Defendant’s Payroll Department. Id. A manager then obtains the requisite signatures for 

the ISN and faxes the completed ISN to ER. Mot. at 8; CE at 257. Following that, an ER 

Coordinator enters the termination date into Oracle. Id. 

Defendant’s system for processing voluntary terminations differs slightly. Upon learning

of a resignation, a manager processes the MPR. Mot. at 8; CE at 258. The MPR states the nature 

of the termination (voluntary or involuntary), the termination date or final day worked, and the 

form of final payment (direct deposit or check by mail). Id. The manager also completes a 

Voluntary Separation Notice (“VSN”), which is similar to an ISN. Id. The MPR is transmitted to 

the Payroll Department. The date of termination entered in Oracle is the date last worked (or the 
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resignation date) listed in the MPR. Mot. at 8; CE at 258.

As for issuing final pay, the same general process pertains to voluntary and involuntary 

terminations. Those MPRs received between noon on business day one and business day two are 

processed for payment on business day two. Opp. at 18. The paydate recorded in the payroll 

system is business day three. Id.; see CE at 458–59. Direct deposit instructions are delivered on 

the evening of business day two. Id. If the employee has requested a live check, the check is 

overnight mailed on business day two for receipt on the next calendar day. Id. 

According to Plaintiff, the aforementioned procedures are deficient in that they “do not 

inform managers and other employees when final wages must be paid to employees. . . .” Id. at 7. 

Plaintiff asserts that understaffing contributes to Defendant’s poor record keeping practices, and 

has “resulted in hundreds of employees not receiving timely final wages.” Mot. at 14; Reply at 

13. In response, Defendant claims that its training to managers is adequate and complies with 

California law. Opp. at 18. Defendant submits evidence, including employee declarations and 

training materials, to show that it instructs managers on the following three pay requirements: (1) 

involuntary terminations must be paid immediately; (2) voluntary terminations with 72 hours’ 

notice must be paid immediately; and (3) any other voluntary termination must be paid within 72 

hours of receiving notice. See id.; CE at 255–56, 287, 736. Defendant contends that its actual pay 

practices reflect those instructions. Opp. at 18.7 

 

7

Plaintiff filed two related requests for exclusion of evidence submitted by Defendant. See Dkt. 

Nos. 108, 109. In her second request, Plaintiff asks the Court to exclude all of Defendant’s 

evidence relating to ISNs, VSNs, and Manual Pay Requests (“MPRs”) due to Defendant’s alleged 

failure to produce or disclose these documents during discovery. See Dkt. No. 109 at 1. 

Defendant requested leave to respond to Plaintiff’s request to exclude this evidence, Dkt. No. 118. 

The Court GRANTS Defendant’s request, and DENIES Plaintiff’s request. Plaintiff had 

adequate notice of the relevant declarants such that Plaintiff was not prejudiced by Defendant’s 

submission of related evidence in its supplemental disclosures. See Dkt. No. 118-1 at 2-3, 5-6; 

Dkt. No. 118-2 (providing the names of specific Best Buy managers); Intel Corp. v. VIA Techs., 

Inc., 204 F.R.D. 450, 452 (N.D. Cal. 2001) (“[W]hen a fact witness is disclosed, all parties are on 

notice that the disclosing side contends the witness has relevant knowledge. . . . All parties are 

free to contact the fact witness and obtain their own statements.”). The Court, moreover, agrees 

with Defendant that this ruling (finding that the questions posed by Plaintiff are too individualized 

to warrant classwide treatment) would not change were certain employee-specific documents 

excluded. See Dkt. No. 118-1 at 4. Furthermore, Plaintiff acknowledges that Magistrate Judge 

Westmore already ruled on these issues during discovery. Dkt. No. 109 at 1. To that end, the 

Court finds Judge Westmore’s rulings on Defendant’s need to produce all MPRs, Dkt. Nos. 89, 

and employee contact information well-reasoned and not clearly erroneous or contrary to law. See 
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This putative subclass also fails under Rule 23(a). Plaintiff does not identify a general 

policy maintained by Best Buy that resulted in late payments, or some method for sampling 

records to provide common proof that individual Best Buy managers acted unlawfully on a 

systemic basis. See Dukes, 564 U.S. at 351. “While commonality may be established based on a 

pattern of officially sanctioned illegal behavior, merely pointing to a pattern of harm, untethered to 

the defendant’s conduct, is insufficient.” Civil Rights Educ. & Enf’t Ctr. v. Hosp. Properties Tr., 

867 F.3d 1093, 1104 (9th Cir. 2017) (concluding that the district court did not abuse its discretion 

in finding that a class lacked commonality because the plaintiff failed to set forth evidence of a 

non-compliant policy) (internal quotations and alterations omitted). Not only does Defendant 

present sufficient proof that its training program is adequate, but also shows that individual and

unintentional payroll discrepancies preclude the type of common proof required for class 

certification. See Opp. at 19. For instance, Oracle termination dates and payroll records can 

differ, obscuring when a terminated employee received his or her final pay. Id. at 19–20; see CE 

at 262–64. Discrepancies can also arise where a manager forgets to remove an employee from the 

TLC system after ER inputs their ISN. See Opp. at 18–19; CE at 256–258. In those instances, 

employees receive a duplicate payment for hours already paid. Id. Defendant claims, and Plaintiff 

does not dispute, that Best Buy would not be liable for late payment in those cases. Opp. at 18–

19. Furthermore, Defendant provides numerous examples of duplicative payments, or allegedly 

late payments that were actually paid on time. Id. 

 

Fed. R. Civ. P. 72(a); see also 28 U.S.C. § 636(b)(1)(A). The Court accordingly DENIES 

Plaintiff’s motions for relief from these non-dispositive orders, see Dkt. Nos. 94-95. To the extent 

that Plaintiff raises other evidentiary objections, Dkt. No. 108, the Court DENIES Plaintiff’s 

request. Declarants Laura Flint and Bonnie Nelson possess personal knowledge of the subjects 

opined upon in their respective statements. See Dkt. No. 97-4 (“Flint Decl.”); Dkt. No. 97-7 

(“Nelson Decl.”). Though Plaintiff identifies one hearsay statement in Nelson’s declaration, the 

Court does not rely on that statement. See Dkt. 108 at 3; CE 458 ¶ 7 (“[W]e hear, however, that 

some institutions deposit as early as Wednesday. . . .”). Plaintiff does not specifically identify any 

hearsay statements in Flint’s declaration. See Dkt. No. 108 at 2. With regard to Plaintiff’s 

objections to the Reardon Report, Dkt. No. 108 at 1, Plaintiff does not explain her objections or 

provide any corresponding line citations. The Court finds that the limited portions relied upon are 

not improper. The Court’s ruling does not depend on the remainder of the evidence that Plaintiff 

cites as objectionable. In addition to Plaintiff’s objections, Defendant also objected to evidence 

submitted by Plaintiff. See Dkt. Nos. 98, 99, 100. The Court does not rely on this evidence in 

reaching its ruling, and DENIES AS MOOT Defendant’s requests to exclude this evidence. 
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These examples illustrate that resolving each allegation will require an individualized 

assessment of each employee’s time records, wage statements, and deposition testimony. See CE 

at 257, 262–63. California district courts have rejected requests for certification on similar 

grounds. See Washington v. Joe’s Crab Shack, 271 F.R.D. 629, 641 (N.D. Cal. 2010) (denying 

certification because the defendant maintained a “facially compliant policy” and the plaintiff’s 

putative class required “individualized assessment of why employees did or did not take meal 

breaks”); Pedroza v. PetSmart, Inc., No. ED CV 11-298-GHK, 2013 WL 1490667, at *8 (C.D. 

Cal. Jan. 28, 2013) (declining to certify a class despite the existence of a common training 

program in part because the defendant’s records provided “only piecemeal information” of the 

alleged wrongdoing). To the extent that Best Buy’s payroll records contain discrepancies, that 

itself is not evidence of non-compliance with any particular labor code section. Plaintiff cites no 

authority suggesting that Best Buy is liable under California Labor Code Sections 201, 202, or 203 

for these individual errors, or for allegedly understaffing the relevant processing departments. 

Even if Plaintiff could present a common question to satisfy Rule 23(a), the Court 

concludes that individual issues predominate over common ones pursuant to Rule 23(b)(3). 

Plaintiff does not dispute that her expert, to assess the number of untimely payments, simply 

identified instances in which an employee’s Oracle termination date occurred before their final 

payout as recorded by Best Buy’s Payroll Department. See Opp. at 24; Reply at 12–15. Based on 

that analysis, Plaintiff claims that “[o]ne simply needs to compare the termination date with the 

final payment date” for common proof of untimely payments. Reply at 14. Plaintiff’s position 

ignores numerous other factual findings required to show liability, including: (1) whether the 

employee voluntarily or involuntarily resigned; (2) the information in the employees’ ISN or VSN

and their MPR; (3) the day of the week the final payment was due; (4) what days were actually 

worked and when; (5) when the final pay was processed, how that pay was delivered, and, if the 

payment was a direct deposit, when the individual’s financial institution deposited that pay. See 

id. 

Harris’s claim in the Prior Federal Action is exemplary in this respect. As the Court 

observed there, a claim for untimely payment under these circumstances entails evaluating how 
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much Defendant owed that employee for hours worked, when they were paid, how many hours the 

employee actually worked, whether the employee was voluntarily or involuntarily terminated, and 

the method of payment. See Harris Summary Judgment Order at 13. Individual testimony will in 

many instances be required to assess the claim of each putative subclass member. Plaintiff 

accordingly fails to provide “common evidence to support extrapolation from individual 

experiences to a class wide judgment that is not merely speculative.” Marlo v. United Parcel 

Serv., Inc., 639 F.3d 942, 945 (9th Cir. 2011) (holding that the district court did not abuse its 

discretion in decertifying a class where the plaintiff failed to provide common proof to support his 

allegation that 1200 employees were unlawfully misclassified as exempt). Plaintiff’s authorities 

can be distinguished based on this lack of common policy or proof. See Reply at 14–15; cf. 

Moreno v. AutoZone, Inc., 251 F.R.D. 417, 426 (N.D. Cal. 2008), vacated, No. CV 05-4432 CRB, 

2009 WL 3320489 (N.D. Cal. Oct. 9, 2009), aff’d, 410 F. App’x 24 (9th Cir. 2010) (certifying a 

timely payment class partly because the plaintiff planned to challenge a general practice “of not 

cutting final checks until after an employee’s shift,” and liability could be determined by reference 

to the defendant’s records); Romero, 235 F.R.D. at 490 (approving a class because key liability 

questions could be resolved with “reference to a sample of several employees” “given the 

purported uniformity of [employees’] activities”). 

For instance, in Brewer v. General Nutrition Corp., the district court certified a timely pay 

subclass based on evidence of “a policy suggesting that [the defendant] was willful in its efforts to

circumvent [a] statute’s requirements of immediate payment at the time of discharge by including

a period of suspension to allow its payroll department to prepare a final paycheck.” 2014 U.S.

Dist. LEXIS 159380, *35. Considering that evidence, and statistics showing a systematic failure

by the defendant to pay upon discharge, the court concluded that “the liability question for

involuntary terminations presents a corporate-level issue amenable to class treatment.” Id.

(quotations omitted); see Reply at 15. But here, the only “uniform policies or practices” to which 

Plaintiff expressly refers pertain to Defendant’s failure to pay overtime on Monthly STI bonuses, a 
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claim that Harris lacks standing to bring.8 And even if Plaintiff is correct that employees 

terminated from 2015 to 2017 received late payments in in one third of cases (“approximately 

3,000 out of 10,750 employees”), Plaintiff presents no way of aggregating these accounts to 

provide proof susceptible to class wide treatment. Reply at 13. Determining whether Defendant’s 

managers timely authorized individual payments will require discrete determinations that fail to 

achieve the judicial economy benefits of class actions. The Court declines to certify the Waiting 

Time Subclass under Rule 23(b)(3). 

III. CONCLUSION

For these reasons, the Court DENIES Plaintiff’s motion for class certification, GRANTS 

Defendant’s motion for leave to file a response to Plaintiff’s objections and request to exclude 

evidence, and DENIES Plaintiff’s requests for relief from the non-dispositive orders of Magistrate 

Judge Westmore. The Court SETS a further case management conference (“CMC”) for Tuesday, 

September 11, 2018 at 2:00 p.m. to discuss remaining issues and a case schedule. A joint CMC 

statement is due by Tuesday, September 4, 2018. 

IT IS SO ORDERED.

Dated:

______________________________________

HAYWOOD S. GILLIAM, JR.

United States District Judge

 

8 As mentioned, the Court in the Prior Federal Action granted summary judgment on Harris’s 

claim for failure to pay overtime wages. See Dkt. No. 124. 

8/16/2018