FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ARIANA MILES, 

Plaintiff-Appellant,

 v. 

KIRKLAND’S STORES INC.,

Defendant-Appellee.

No. 22-55522

D.C. No. 

5:18-CV-01559-

JWH-SHK

OPINION

Appeal from the United States District Court

for the Central District of California

John W. Holcomb, District Judge, Presiding

Argued and Submitted November 13, 2023

Pasadena, California

Filed January 8, 2024

Before: Barrington D. Parker,

*

Jay S. Bybee, and Kenneth 

K. Lee, Circuit Judges.

Opinion by Judge Lee

*

 The Honorable Barrington D. Parker, Jr., United States Circuit Judge 

for the U.S. Court of Appeals for the Second Circuit, sitting by 

designation.
2 MILES V. KIRKLAND’S STORES INC.

SUMMARY**

Class Certification

In a lawsuit alleging that two employee policies at 

Kirkland’s Stores violate California law, the panel reversed 

the district court’s order denying class certification for 

subclasses that rely on a Rest Break Claim, affirmed the 

denial of class certification for subclasses that rely on a Bag 

Check Claim, and remanded for further proceedings.

The Rest Break Claim challenged Kirkland’s policy 

requiring employees to take rest breaks on store property, 

and the Bag Check Claim challenged Kirkland’s policy 

requiring employees to surrender to bag checks when they 

ended their shift. The district court denied class certification 

because it found that common issues failed to predominate 

over individual ones under Fed. R. Civ. P. 23(b)(3).

The panel reversed the district court’s denial of class 

certification of the Rest Break Claim because the district 

court incorrectly found that Kirkland’s applied its rest break 

policy inconsistently during the proposed class period. The 

panel held that the overwhelming record evidence showed 

that the company consistently enforced its policy across all 

employees, and remanded for the district court to reassess 

the evidence and apply the remaining Rule 23 requirements 

to the Rest Break Claim.

The panel affirmed the district court’s denial of class 

certification of the Bag Check Claim because the evidence 

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

been prepared by court staff for the convenience of the reader.
MILES V. KIRKLAND’S STORES INC. 3

suggested that Kirkland’s enforced the bag check policy 

sporadically. Given the uneven enforcement of the policy, 

the district court would have to embark on a time-intensive 

mission to figure out the individual circumstances of each 

proposed class member, which is not amenable to class 

treatment. In addition, Kirkland’s implemented the bag 

check policy in different ways when they did enforce the 

policy.

COUNSEL

David C. Leimbach (argued), Scott L. Gordon, and Carolyn 

H. Cottrell, Schneider Wallace Cottrell Konecky LLP, 

Emeryville, California, for Plaintiff-Appellant.

Jack S. Sholkoff (argued) and Catherine L. Brackett, 

Ogletree Deakins Nash Smoak & Stewart PC, Los Angeles, 

California; Andrew J. Deddeh and Tracie Childs, Ogletree 

Deakins Nash Smoak & Stewart PC, San Diego, California; 

for Defendant-Appellee.
4 MILES V. KIRKLAND’S STORES INC.

OPINION

LEE, Circuit Judge:

When an employee challenges a company’s policy in a 

class action lawsuit, it may appear at first blush that liability 

can be determined on a class-wide basis if that policy applies 

to all employees. But like with so many facets of the law, 

the answer is—it depends. And this case provides two 

dueling and instructive examples of when a claim 

challenging a company’s policy can—and cannot—be 

certified.

The lawsuit alleges that two employee policies at 

Kirkland’s Stores violate California law: The first policy 

required employees to take rest breaks on store property (the 

“Rest Break Claim”), and the second one required them to 

surrender to bag checks when they ended their shift (the 

“Bag Check Claim”).

For the Rest Break Claim, the evidence shows that 

Kirkland’s applied its rest break policy uniformly across its 

stores. A few outlier examples of employees not following

the policy generally cannot by themselves defeat class 

certification. But for the Bag Check Claim, the record 

suggests that many employees did not abide by the bag check 

policy and that Kirkland’s did not consistently enforce it. 

And the very nature of Kirkland’s bag check policy—with 

the inherent variations in employees’ circumstances—may 

require highly individualized inquiries.

We thus reverse the district court’s denial of class 

certification for the Rest Break Claim, affirm the denial of 

certification for the Bag Check Claim, and remand for 

further proceedings consistent with this opinion.
MILES V. KIRKLAND’S STORES INC. 5

BACKGROUND

I. Ariana Miles sues Kirkland’s, challenging the 

store’s employee rest break and bag check 

policies.

Ariana Miles worked for Kirkland’s, a chain of home 

décor stores, from about February 2011 to July 2018. She

alleges that Kirkland’s unlawfully required employees to (1) 

remain in the stores during their rest breaks, and (2) work 

off-the-clock by getting their bags checked after they had 

clocked out. Based on these two claims, Miles sought class 

certification for various subclasses for the class period from 

May 2014 to the present.

A. Miles’ Rest Break Claim

Under California law, employers may not require 

employees to work during rest periods. Cal. Lab. Code 

§ 226.7(b). California’s Supreme Court has interpreted 

Section 226.7(b) to mean that employers must “relinquish

any control over how employees spend their break time.” 

Augustus v. ABM Sec. Servs., Inc., 385 P.3d 823, 826 (Cal. 

2016) (citing Brinker Rest. Corp. v. Superior Court, 273 

P.3d 513, 535–36 (Cal. 2012)).

From 2014 to at least 2020, Kirkland’s rest break policy 

expressly stated that employees could not leave store 

premises during working hours without their supervisor’s 

permission, except for meal breaks. For example, the 2016 

policy stated: “Rest breaks are scheduled and must be noted 

and signed off on the Daily Game Plan. Employees are not 

to leave the store premises during scheduled working hours 

without permission of their supervisor, with the exception of 

meal periods.” (Other versions of the handbook in the record 

reflect the same policy, even if the precise language varies). 
6 MILES V. KIRKLAND’S STORES INC.

Miles argues that this policy violates California labor law

because it prevented employees from taking breaks away 

from the store.

B. Miles’ Bag Check Claim

Under California law, employers must pay employees

for all hours worked. Cal. Lab. Code § 1194(a).

Between 2014 and 2019, Kirkland’s bag check policy

stated that “all employees will be subject to a VISUAL 

inspection of all personal belongings in their possession any 

time they leave the store premises (i.e., end of work shifts, 

breaks, store errands).” The policy also required that the 

inspection “be conducted by a manager at the store entrance, 

inside of the store.” Employees, however, clock in and out 

at the register, not at the store entrance. Miles argues that 

Kirkland’s failed to pay employees for the small sliver of 

time between when employees clocked out at the register

and walked to the store entrance to get their bag checked.

II. The district court denied class certification for

both classes.

The district court denied class certification because it 

found that common issues failed to predominate over 

individual ones under Rule 23(b)(3) of the Federal Rules of 

Civil Procedure for both the Rest Break and Bag Check 

Claims.

For the Rest Break Claim, the district court assumed in 

part that on-premises rest breaks do not automatically violate 

California law. It then held that in the “absence of evidence 

that Kirkland’s Stores’ rest period policy, as implemented 

class-wide, violates California law,” it “‘would have to 

conduct individualized inquiries’ into whether each Subclass 
MILES V. KIRKLAND’S STORES INC. 7

member was denied a duty-free rest break while being 

required to stay on premises.”

And for the Bag Check Claim, the district court denied 

certification because “there is insufficient evidence to 

demonstrate a general practice across Kirkland’s Stores’ 

California facilities of unlawful bag checks that 

predominates over individualized inquiries.”

STANDARD OF REVIEW

We review a district court’s denial of class certification 

for abuse of discretion. Parra v. Bashas’, Inc., 536 F.3d 975, 

977 (9th Cir. 2008). A legal error “is a per se abuse of 

discretion.” Abdullah v. U.S. Sec. Assocs., Inc., 731 F.3d 

952, 956 (9th Cir. 2013) (citing Yokoyama v. Midland Nat. 

Life Ins. Co., 594 F.3d 1087, 1091 (9th Cir. 2010)). A 

district court also “abuses its discretion if it (1) relies on an 

improper factor, (2) omits a substantial factor, or (3) 

commits a clear error of judgment in weighing the correct 

mix of factors.” Id. Lastly, “[w]e review the district court’s 

findings of fact under the clearly erroneous standard, 

meaning we will reverse them only if they are (1) illogical, 

(2) implausible, or (3) without ‘support in inferences that 

may be drawn from the record.’” Id. (quoting United States 

v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009)).

ANALYSIS

We hold that the district court erred in denying class 

certification of the Rest Break Claim, but that it properly 

denied certification of the Bag Check Claim.
8 MILES V. KIRKLAND’S STORES INC.

I. Rule 23 requires the district court to engage in a 

rigorous analysis before certifying a class.

Rule 23 is designed to promote “efficiency and economy 

of litigation.” Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538, 

553 (1974). “The Rule 23(b)(3) predominance inquiry tests 

whether proposed classes are sufficiently cohesive to 

warrant adjudication by representation.” Amchem Prods. 

Inc. v. Windsor, 521 U.S. 591, 623 (1997). Individual 

questions require each class member “to present evidence 

that varies from member to member,” while common 

questions can be answered by “the same evidence . . . for 

each member . . . [or] the issue is susceptible to generalized, 

class-wide proof.” Tyson Foods v. Bouaphakeo, 577 U.S. 

442, 453 (2016) (internal quotation marks and citation 

omitted).

Importantly, a party cannot plead or speculate her way to 

class certification. She must marshal facts showing, by a 

preponderance of the evidence, that class issues 

predominate. See Olean Wholesale Grocery Coop., Inc. v. 

Bumble Bee Foods LLC, 31 F.4th 651, 664–65 (9th Cir. 

2022) (en banc). She must “show that the common question 

relates to a central issue in [her] claim.” Id. at 665 (citing 

Wal-Mart Stores Inc. v. Dukes, 564 U.S. 338, 349–50 

(2011)). When determining whether common questions 

predominate, the court must focus on “important questions 

apt to drive the resolution of the litigation.” Ruiz Torres v. 

Mercer Canyons Inc., 835 F.3d 1125, 1134 (9th Cir. 2016).

But a party opposing class certification can “invoke 

individualized issues and provide sufficient evidence that the 

individualized issues bar recovery on at least some claims, 

thus raising the spectre of class-member-by-class-member 

adjudication of the issue.” Van v. LLR, Inc., 61 F.4th 1053, 
MILES V. KIRKLAND’S STORES INC. 9

1067 (9th Cir. 2023) (citing True Health Chiropractic, Inc. 

v. McKesson Corp., 896 F.3d 923, 932 (9th Cir. 2018)).

For a wage and hour claim, an employer’s official 

policies “are relevant to the Rule 23(b)(3) analysis,” but a 

district court abuses its discretion by “rely[ing] on such 

policies to the near exclusion of other relevant factors 

touching on predominance.” In re Wells Fargo Home 

Mortg. Overtime Pay Litig., 571 F.3d 953, 955 (9th Cir. 

2009). Indeed, a district court must engage in a “rigorous 

analysis” of all the evidence—including how the policies 

were enforced, implemented and followed—in determining 

whether to certify a class. Wal-Mart, 564 U.S. at 350–51 

(quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160 

(1982)).

II. The district court erred in denying class 

certification of the Rest Break Claim.

We reverse the district court’s denial of class 

certification of the Rest Break Claim because it incorrectly 

found that Kirkland’s applied its rest break policy

inconsistently during the proposed class period from May 

2014 to the present.

Kirkland’s admitted that it had a “uniform employee 

handbook policy requiring employees to remain on premises 

during their 10-minute paid rest breaks until sometime in 

2018.” That rest break policy states: “Rest breaks are 

scheduled and must be noted and signed off on the Daily 

Game Plan. Employees are not to leave the store premises 

during scheduled working hours without the permission of 

their supervisor.” In other words, it is undisputed that 

Kirkland’s rest break policy (at least from May 2014 until 
10 MILES V. KIRKLAND’S STORES INC.

sometime in 2018) expressly barred employees from leaving 

the stores during their rest break.1

But a company’s policy by itself—even if it remains 

constant during the class period—is not an elixir that turns 

canned allegations in a complaint into a pot of class action 

gold. We still need to look at evidence of whether the 

company consistently implemented and enforced the policy 

across all employees during the class period. See Wal-Mart, 

564 U.S. at 350 (“Rule 23 does not set forth a mere pleading 

standard. [A party must] prove that there are in fact”

commonality and predominance of common issues). The 

parties here dispute how Kirkland’s enforced this policy with 

each side submitting dueling declarations from employees 

and managers. Miles submitted eight declarations from 

employees who stated that Kirkland’s required employees to 

stay on store property during rest breaks from May 2014 to 

sometime in 2018. Meanwhile Kirkland’s offered nine 

declarations that purportedly show the opposite.

The district court, after examining these declarations, 

determined that it “would have to conduct individualized 

inquiries into whether each Subclass member was denied a 

duty-free rest break while being required to stay on 

premises.”

But the district court appears to have misinterpreted 

those declarations. The declarations cited by the district 

court only discuss store conditions in 2021, not the entire 

1 Miles’ proposed subclass consists of employees from “2014 to final 

judgment.” But sometime in 2018—around the time Miles sued—

Kirkland’s stopped enforcing the rest break policy uniformly, even 

though the 2018-2020 handbooks still appear to require on-premises rest 

breaks. Miles appears to concede this fact, so any proposed class period 

should not extend beyond sometime in 2018.
MILES V. KIRKLAND’S STORES INC. 11

class period from 2014 to the present. These declarations do 

not establish that Kirkland’s employees could have left the 

store premises for their rest breaks from 2014 to 2018. For 

example, Heather Macaulay’s declaration dated June 6, 

2021, states that “[e]mployees are free to leave the store for 

their 10-minute rest break but most remain in the store.”

(emphasis added). It says nothing about the policy from 

2014 to 2018. The Carrie Hebert, Tina Oldaker, and Katrina

Flora declarations all suffer from the same flaw. None of 

these declarations counter the evidence that, from 2014 to 

2018, Kirkland’s—in its policy and practice—barred 

employees from leaving the store during rest breaks. And 

Brian Klagenberg’s declaration submitted by Kirkland’s 

appears to support Miles’ contention that employees from 

2014 to 2018 could not leave the stores during their break:

When I first started employees were free to 

leave the store, this lasted for about two 

years. Then for about four years the policy 

changed so that employees were limited to 

where they could go off the store property for 

rest breaks – they could go wherever they 

wanted on the store property. This changed 

again about two to three years ago. 

Employees are once against free to leave the 

store for their 10-minute rest break.

In sum, the district court erred in holding that individual 

issues would predominate over common ones for the Rest 

Break Claim—at least based on the record before us—

because the evidence shows that (i) Kirkland’s written policy 

expressly forbid employees from taking breaks away from 

the store and (ii) Kirkland’s consistently enforced that policy 

across its stores from at least May 2014 to sometime in 2018.
12 MILES V. KIRKLAND’S STORES INC.

To be sure, Kirkland’s provided a few declarations that 

some employees left the store during their rest breaks. But a 

smattering of examples involving a few isolated cases does

not automatically defeat class certification if, as here, the 

overwhelming evidence shows that the company 

consistently enforced its policy across all employees. See 

Senne v. Kansas City Royals Baseball Corp., 934 F.3d 918, 

938 (9th Cir. 2019) (“Predominance in employment cases is 

rarely defeated on the grounds of differences among 

employees so long as liability arises from a common practice 

or policy of an employer.”) (citation and quotation marks 

omitted).

We thus remand to the district court to reassess the 

evidence and apply the remaining Rule 23 requirements to 

the Rest Break Claim, consistent with this opinion.2

2 We also note that district court appears to have assumed that onpremises rest breaks do not violate California law so long as the 

employees are not tasked with any responsibilities. But cf. Augustus, 385 

P. 3d at 832 (“employees must not only be relieved of work duties, but 

also be freed from employer control over how they spend their time”); 

Rest Periods / Lactation Accommodation, 

https://www.dir.ca.gov/dlse/faq_restperiods.htm (April 2021) 

(California Division of Labor Standards Enforcement interpreting 

Augustus to mean that on-premises rest breaks were unlawful). That is 

a merits question that should be left for summary judgment or trial, not 

at class certification. See Edwards v. First Am. Corp., 798 F.3d 1172, 

1178 (9th Cir. 2015) (“A court, when asked to certify a class, is merely 

to decide a suitable method of adjudicating the case and should not turn 

class certification into a mini-trial on the merits.” (internal quotations 

and citation omitted)).
MILES V. KIRKLAND’S STORES INC. 13

III.The district court correctly denied class 

certification of Miles’ Bag Check Claim.

During the proposed class period, Kirkland’s bag check 

policy stated that “all employees will be subject to a 

VISUAL inspection of all personal belongings in their 

possession any time they leave the store premises. . . . [to] 

be conducted by a manager at the store entrance, inside of 

the store.” Miles argues that Kirkland’s shortchanged its 

employees because the bag checks were conducted off-theclock—that is, the employees should have been paid for the 

short time between when they “clocked out” at the register 

and when they had their bags checked at the store entrance 

before leaving.

The parties agree that Kirkland’s had a uniform bag 

check policy during the class period. But “the mere 

existence” of a company policy—with little evidence that it 

was implemented or enforced uniformly—does “not 

constitute significant proof that a class of employees were 

subject to an unlawful practice.” See Davidson v. O’Reilly 

Auto Enters., LLC, 968 F.3d 955, 968 (9th Cir. 2020) 

(quoting Wal-Mart, 564 U.S. at 353) (cleaned up). And here, 

the district court did not clearly err in finding that Kirkland’s

did not uniformly enforce and implement the bag check 

policy. Indeed, the very nature of Kirkland’s bag check 

policy likely lends itself to highly individualized inquiries. 

Again, the parties offered competing evidence on 

whether the bag check policy was applied uniformly with 

seven declarations from Miles and nearly two dozen from 
14 MILES V. KIRKLAND’S STORES INC.

Kirkland’s.

3

 The district court found ample reasons why 

Miles failed to show a systematic practice of bag checks that 

would be well-suited to a class-wide challenge.

Unlike the rest break policy—which appears to have 

been enforced uniformly except for a few isolated 

examples—the evidence suggests that Kirkland’s enforced 

the bag check policy sporadically.4 Given the uneven 

enforcement of the policy, the court would have to embark 

on a time-intensive mission to figure out the individual 

circumstances of each proposed class member: which stores 

and managers enforced the bag check policy, what days this 

policy was enforced, which employees were subjected to 

them, and so on. This type of individualized analysis is not 

amenable to class treatment. See Zinser v. Accufix Rsch. 

Inst., Inc., 253 F.3d 1180, 1189 (9th Cir. 2001) (“[I]f the 

main issues in a case require the separate adjudication of 

each class member’s individual claim or defense, a 

Rule 23(b)(3) action would be inappropriate” (alteration in 

original) (quoting 7A Charles Alan Wright & Arther R. 

Miller, Federal Practice & Procedure § 1778 at 535–39 (2d 

ed. 1986))).

Not only did Kirkland’s often fail to enforce the bag 

check policy, but its stores also implemented it in different 

3 We emphasize that evaluating competing declarations is not a mere 

bean-counting exercise. Both the quantity and quality of the declarations

matter. District courts thus must rigorously analyze the content of the 

declarations and weigh their persuasiveness.

4

 For example, Hayley Cocchiarella’s declaration states: “When I was 

first hired we did bag checks sporadically. We didn’t always conduct 

bag checks because there really wasn’t a need... No one that I know 

brings big bags... Some employees stopped bringing bags into the store 

so there was no need for a bag check.”
MILES V. KIRKLAND’S STORES INC. 15

ways when they did enforce the policy. At many stores, the 

bag checks were not necessarily conducted off the clock.5 

Miles assumes that an employee would clock out at the 

register, and then have his or her bag checked later at the 

entrance of the store. But the evidence shows that many 

employees’ bags were checked at the same place and time 

that they clocked out. A court would thus have to inquire 

into the individual practices of each store, manager, and 

employee—something that would not allow a court to 

resolve the issue in “one stroke.” Wal-Mart, 564 U.S. at 350.

We have denied class certification in similar cases 

implicating highly individualized inquiries into each 

proposed class member, despite a facially uniform policy. 

For example, in Castillo, the plaintiffs challenged the 

employer’s overtime formulas. Castillo v. Bank of America, 

NA, 980 F.3d 723, 727 (9th Cir. 2020). This Court found 

that common issues about the legality of the formulas were 

outweighed by “complicated questions of who was ever 

exposed to [the] policies, and whether those who were 

exposed were harmed in a way giving rise to liability.” Id. 

at 733. Here, there are similarly individualized questions, 

and common issues do not predominate over individual 

ones.

Even if the bag check policy had been enforced 

uniformly, we would still likely be mired in individualized 

inquiries here—unlike with the Rest Break Claim. Some 

5

 Hayley Cocchiarella’s declaration also states: “If a bag check was 

conducted, it would only take a second and would be a glance as the 

employee was clocking out.” Similarly, Dawn Sanchez’s declaration 

states: “The bag checks were supposed to be done in front of a camera 

but since our cash rap is by the front door we were able to do the bag 

check right by the cash rap and walk out.”
16 MILES V. KIRKLAND’S STORES INC.

policies by their nature may implicate each proposed class 

member’s personal preferences, practices, or proclivities, 

casting doubt on the viability of class treatment. Kirkland’s 

bag check policy is a prime example. For example, not all 

employees underwent a bag check because not every 

employee brought a bag to work.6 Kirkland’s presumably 

has no record of which employees brought a bag or on what 

days. A court would thus likely have to engage in highly 

individualized analysis of each proposed class member to 

see if he or she brought a bag to work, and if so, on what 

days. See Id. at 731 (affirming the denial of class 

certification when “determining liability for all class 

members would require complicated individualized 

inquiries”). Such a fact-intensive inquiry into each class 

member’s conduct and practice would mean that individual 

issues would overwhelm common ones.

Further, employees could use time adjustment logs to 

record uncompensated time if they believed that their bags 

had been checked after clocking out.7 A court would have 

to scour through and analyze individual records to figure out 

if someone belongs to the class, undermining the efficiency 

of class adjudication.

These individual questions are not the sort of “plug-andplay” determinations that we have held may not defeat class 

certification. Cf. Levya v. Medline Indus., Inc., 716 F.3d 510

(9th Cir. 2013) (holding that simple individualized damages 

6

 Both Brian Klagenberg and Dawn Sanchez stated: “Many employees 

don’t come in with anything.”

7

 In her deposition, Janis Warnement said that if bag checks happened 

after employees clocked out, “they should have put time on the time 

adjustment log to record any time worked.”
MILES V. KIRKLAND’S STORES INC. 17

calculations do not defeat predominance). Rather, these 

individualized questions would have to be resolved through 

a series of mini-trials, undermining the “efficiency and 

economy” that Rule 23 was designed to promote. Am. Pipe 

& Constr. Co., 414 U.S. at 553.

CONCLUSION

We REVERSE the district court’s denial of class 

certification for the subclasses that rely on the Rest Break 

Claim and REMAND for further proceedings consistent 

with this opinion. We AFFIRM the district court’s denial 

of class certification for the subclasses that rely on Miles’

Bag Check Claim.