F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

K I A D A V I D S O N , individually , and on behalf of other members of the
g eneral public similarly

situated, Plaintiff-Appellant

,

v

.

O’R E I L L

Y A U T O E N T E R

P R I S E S , L L C, a Delaware corporation,

Defendant-Appellee. N o. 18-56188

D.C. No. 5:17-cv-00603- RGK-AJ W

OPI NI ON

A ppeal from the United States District Court for the Central District of California R. Gary Klausner, District J udg e, Presiding

A rg ued and Submitted F ebruary 6, 2020 Pasadena, California

F iled Aug ust 3, 2020

B efore: Danny

J . B og g s, * Sandra S. I kuta, and Morg an Christen, Circuit J udg es.

Opinion by

J udg e I k uta; Partial Concurrence and Partial Dissent by J udg e Christen

* T h e Ho n o rab le Dan n y J

. B o g g s, Un ited States Circu it J u d g e f o r th e U.S. Co u rt o f

A p peals f o r th e Six th

Circu it, sittin g b y

d esig n atio n

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SUMMARY * *

C lass Certif

ication

The panel affirmed the district court’s order deny i ng plaintiff’s motion for class certification i n a n action challeng ing the written rest-break policy of plaintiff’s f ormer employ e r, O’Reilly

Auto Enterprises, L L C.

I n her procedural challeng e , plaintiff arg ued that t h e district court abused its discretion by declining to ex tend the September 21 deadline for moving to certify the clas s , a n d this impeded plaintiff’s ability to obtain pre-certification discovery of information. The panel h eld that the district
court d id n ot abuse its discretion by requiring plaintiff to meet the deadline for f

iling her motion for class c ertification while at the same time g ranting her an addition a l m onth to develop evidence and submit a supplemental brief.

I n her substan t i v e arg ument, plaintiff arg u ed that the district c ourt erred in refusing to certify a “rest break” c lass. The panel h eld that p laintiff fail e d t o show that “there a re questions of law or fact common to the class,” which was o ne of the requirements for class certification under F ed. R. Civ. P. 23(a)(2).

The panel held that plaintiff waived her rig ht to appeal the dismissal o f her wag e-statement claim. The panel held that in a stipulation, plaintiff preserved the rig ht to a ppeal the denial of class certific ation and the ruling on the motion for

** T h is su m m ary co n stitu

t es n o p art o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.D A V I D S O N V

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summary judg ment, but she did not preserve the rig ht to appeal the d istrict court’s dismis s a l of her wag e-statement claim.

Concurring in p art and dissenting in part, J udg e Christen
ag reed that plaintiff did not preserve h er rig ht to appe a l t h e district court’s or d er dismissing h er wag e statement c laim. Howeve r , s h e would h old that the district court erred in imposing an unworkable class c ertification deadline, and it abused its discretion by deny ing p l a intiff an opportunity to conduct p re-certification discovery

. She also d isag r eed with the majority ’s conclus ion that plaintiff’s rest b reak c laims failed for lack of commonality pursuant to Rule 23(a)(2).

COUNSEL

L iana Carter (arg

ued), Ry an W u , and Robert Drex ler, Capstone L aw APC, L os Ang eles, California, fo r PlaintiffAppellant.

J ames M. Peterson (arg

ued), J ohn Morris, J ason C. Ross, a nd Ra c h e l E. Moffitt, Hig g s F letcher & Mack L L P, San Dieg o, California, for Defendant-Appellee.D A V I D S O N V

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OP INION

I KUTA, Circuit J udg e:

I n this appeal from the stipulated dismissal of a put at ive class action, Kia Davidso n claims that the d istrict court abused its d iscretion in declining to ex tend a deadline for filing a motion for class certification. She also claims that the district c ourt e rred on the merits in declining to certify a class

o f employ ees based on her e mploy er’s written rest-br e a k policy

, which alleg edly did not comply with California law. W e conclude that the d istrict court did not abuse its discretion in setting and enforcing a deadline

. Nor did the court abuse its discr e t i on in deny ing Davidson’s motion for class certification. B ecause Davidson f ailed to offer any evidence that the written policy was applied to employ ees, she was

u n a b le to establish that there were questions of law or f a ct common to the class.

I

O’Reilly Auto E n terprises, L L C is an auto-parts r e t a i ler that operates some 520 stores in Ca l i f o rnia. B etween J u ne 2016 and J ul y 2 0 17, O’Reilly employ ed Kia Davidson as a delivery specialist at o n e o f its stores in San B e rnardino, California. Toward the end of her time there, Davidson filed

an action ag ainst O’Reilly on her own behalf and on behalf o f

a class o f persons “ who worked f o r [ O’ R eilly ] as a nonex e mpt, hourly -paid employ e e in California within four y ears prior to the filing of this complaint until the date of trial.”

Davidson alleg ed three sets of c l a i m s relevant to this
ap p e a l

. F irst, Davidson alleg ed that O’Reilly v iolated California’s rest-break requirement s

. A C a l i f o r n i a r e g ulation,D A V I D S O N V

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W a g e Or d e r N o

. 7, provides that “[ e] v ery employ er shall authoriz e and permit all employ ees to take rest periods” a nd that “[ t] he authoriz ed rest period time shal l b e based on the
to t a l h o u rs worked d aily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof.” 1 Cal. Code Reg s. tit. 8, § 11070(12)(A )

. Employ ees that work between six a

nd eig h t hours are e ntitled to two ten

- m i n u te rest breaks, one for the first f our h o urs and a second for the remainder. See id. 2 Employ e es that do n ot receive these r e st breaks are entitled to increased pay in the form of a rest-break premium: “one (1) hour of pay at the employ ee’s reg ular rate of compensation for each work day that the rest p eriod is not provided.” Cal. Code Reg s. tit. 8, § 11070(12) (B ). According to D a vidson, she and other employ ees did not receive rest breaks and O’Reilly d id not pay (or under p a id) rest-break premiums.

Second, Davidson a lleg ed that O’Reilly failed to provide employ e es with wag e statements that identified “the name and address of the leg al entity that is t h e e m p loy er,” a s required by section 226(a)(8) of the C a l i fornia L abor Code. According to D av i d son, O ’Reilly ’s w ag e statements were noncompliant because they listed O’Reilly ’s address as “PO B OX 1156, SPRINGF I EL D, MO 65801,” instead o f

1 “ T h o u g h n o t d ef

in ed in th e w ag e o rd er, a ‘ m aj o r f ractio n ’ lo n g h as b een u n d ersto o d

—leg ally

, m ath em atically

, an d lin g u istically —to m ean a f ractio n g reater t h an o n e- h alf .” Brin ker Rest. Co rp

. v. S u p erio r Co u rt , 5 3 Cal. 4 t h 1 0 0 4 , 1 0 2 8 (2 0 1 2 ). So a “ m aj o r f ractio n th ereo f ” as ap p lied
to a “ f o u r- h o u r p erio d ” m ean s “ an y am o u n t o f tim e i n ex cess o f tw o h o u rs.” Id

. at 1 0 2 9

.

2 “ [A ] rest p erio d n eed n o t b e au th o rized f o r em p lo y ees w

h o se t o t al d aily w o rk tim e is l ess th an th ree an d o n e- h alf (3 1⁄2) h o u rs.” Cal. Co d e Reg s. tit. 8 , § 1 1 0 7 0 (1 2 )(A ).D A V I D S O N V

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providing the street a d d r ess o f O’Reilly ’s corporate headquarters, “233 South Patterson Avenue, Spring field, MO 65802-2298.” Thi r d

, r ely ing o n these first two claims, Davidson soug ht civil penalties u nder California’s Pri v a te Attorney General Act ( PAGA). See Cal. L ab. Code § 2698, et seq

.

Davidson served O’Reilly with a first amended complaint

on J une 23, 2017. At the time, the district court’s local rules provided t h a t “ [ w] ithin 90 day s after service of a pleading purporting to commence a cl a s s action

. . . the proponent o f [ a] class shall file a motion for certification that the action is

m a i n t a i nable as a class action, unless otherwise ordered b y the Court.” C.D. Cal. L ocal Rule 23-3 (Dec. 1, 2013). T he district court let stand the local rule’s filing deadline, and so Davidson had 90 day s after service—until September 21—to move for class certification.

On Aug ust 2, the parties filed a stipulation and proposed order seeking to ex tend the September 21 deadline by 6 7 day s to November 28. Th e parties g a ve several reasons for requesting the ex tension. F irst, D avidson intended to move to transfer v enue, and the ear l i e s t date on which she could notice a hearing was September 18, just three day s b efore the September 21 deadline. N ex t, Davidson claimed she needed

more time to g ather evidence to support her class-certification motion. The stipulation ex plained that Davidson had served interrog atories, document requests, and deposition notices on O’Reilly

, seeking “[ t] he contact information of putative class members,” the “[ p ] utative class member time p unch a nd
wag e records,” and information related to O’Reilly ’s “labor policies.” Davidson claimed this discovery was relevant for class c ertification because it would: (1) be used to interview putative class members and o btain declarations, (2) allow herD A V I D S O N V

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t o analy z e time and wag e records for r ecorded instances o f potential L abor Code v i o l a tions, (3) allow her to inspect O’Reilly ’s policies, which will show how hours of work, nonw o r k, and compensation are reg ulated, and (4) allow he r t o review communications showing how O’Reilly implemented its p olicies. According t o D avidson, “the putative class would b e prejudiced without this discovery at class certification” because “it b e a r s upon the commonality a nd predominance of L abor Code issues among class members a s

a whole.” T he stipulation also listed procedural steps, such

as providing putative c l a ss members with notice a nd
oppo r t u n i ty to opt-out from the disclosure of their contact information, w hich would take place before di s c o v e r y

. The district c ourt summarily den i e d t he stipulation to ex tend the September 21 deadline.

Over the nex t few months, the par t i es eng ag e d in discovery

. 3 Davidson requested multiple de positions from O’Reilly p ursuant to Rule 30(b)(6) of t h e Fe d e ral Rules o f Civil Procedure, which provides that entit i e s , including

c orporations, must desig nate a knowledg eable person w h o

can testify on the subject matter identified in a deposition

3 A lth o u g h Dav i d so n in itially p ro p o u n d ed d i sco v ery req u ests o n J u n e 3 0
, 2 0 1 7
, h er req u ests w ere p rem atu re b ecau se th e p arties h ad n o t y et m et

an d co n f erred as req u ired b y R

u l e 2 6 (f ) o f th e Fed eral R

u les o f Civ i l P ro ced u re. S

ee F ed

. R. Civ

. P. 2 6(d ) (“ A p arty m ay n o t s e e k disco v ery f ro m an y so u rce b ef

o re th e pa r t i e s h av e co n f erred as req u ired b y R u l e 2 6 (f ).”). Dav id so n acco rd i n g ly re- p ro p o u n d ed h er d i s co v e r y req u ests o n A u g u s t 1
, af ter th e p arties co m

p leted th eir Ru l e 2 6 (f

)

co n f eren ce. D av id so n also f i l e d a seco n d am en d ed co m p l ain t sh o rtly th ereaf ter, o n A u g u s t 7

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

on O’Reilly ’s “rest period policies, policy documents, procedures, or practices.” D avidson also p r o pounded document requests and interrog atories, including a req u e s t that O’Reilly p rovide “the full name, identification number, position, dates of employ ment, last known address, and last known telephone number” for “each and e very ” p u tative class member.

I n response to these requests, O’Reilly provided answers t o D a v i d s o n ’ s i n t e r r o g a t o r i e s , p r o d u c e d r e s p o n s i v e d o c uments, and ag reed to produce persons knowledg eab l e about the subject matter identified in Davidson’s Rule 3 0 (b)(6) notices. O’Reilly also a g reed to provide a rand o m sampling of contact information for putative class members, after providing them with notice and an opportunity to object. Such n otice is required in state cla s s a ctions to protect employ e es’ privacy rig hts and is commonl y referred to as a Belaire-W

est notice. See Belaire-W est Landscape Inc. v

. Superior Court , 149 Cal. App. 4th 554, 562 (2007).

4 Ru l e 3 0 (b )(6 ) p ro v id es, in relev an t p art:

In its n o tice o r su

b p o en a, a p arty m ay n am e as th e d ep o n en t a p u

b lic o r priv ate co rp o ratio n , a p artn ersh ip

, an asso ciatio n , a g o v ern m en ta l a g en cy , o r o th er en tity

an d m u s t d escrib e w i th reaso n ab le p articu larity th e

m atters f o r ex am in atio n

. T h e n am ed o rg an izatio n m u st th en d e si g n ate o n e o r m o re of f icers, d irecto rs, or

m an ag in g ag en ts, o r d esig n ate o th er p erso n s w h o

c o n s e n t to testif

y on its beh alf

; an d it m ay set o u t th e

m atters o n

w h ich each p erso n

d esig n ated w ill testif

y

.

Fed . R. Civ . P . 3 0 (b )(6 ).D A V I D S O N V

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As discovery prog ressed, the parties ag ain m o v ed to

e x t e n d the September 2 1 d eadline, this time by 14 day s, t o accommodate their sche d u l e for Rule 30(b)(6) depositions. The district court d enied the motion, thoug h in response to a subsequent motion, it g ave Davidson an opportunity to file a

s upplemental 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 c lass-action trial plan. The motion and trial plan ex plained Davidson’s theory reg arding the r es t

- b re a k claim. According to the motion, each o f O’Reilly ’s p olicy documents r equired ten-minute rest breaks for every four h ours of work but did not include the lang uag e “or major fraction the re o f

. ” Davidson arg ued that this omission created classwide issues, such as whether O’Reilly violated California law by failing to “authoriz e or permit” required rest breaks and whether O’Reilly ’s “uniform written
rest break policy violate[ d] California law by failing to g ive full effect to W ag e Order N o. 7.” T h e evidence presented at trial “would include the tex t of every iterat i o n o f O’Reilly ’s written rest period policy

, as w ell as O ’Reilly ’ s corroborating party admissions ex pected in the de p o sition.” B ecause the rest-break policy applied to a ll class members, “the common questions eng endered by that poli cy [ could] be answered b y

common proof.” The motion was supported b y Davidson’s declaration stating that she “recall[ ed] sometimes working a shift between 6 and 8 hours in leng th” but was “not aware o f
any rest period premiums being paid to [ her] .”

The motion f

o r class certification also addressed outstanding d iscovery matters. Davidson stated that O’Reilly had not y et produced “all c o r responding policy docum e n t s” and had not “y et been able to p r oduce a Rule 3 0(b)(6)D A V I D S O N V

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desig nated witness to testify in this matter as to [ O’Reilly ’s]
rest p e r iod policies, policy d ocuments, procedures o r practices.” B ut Davidson “ e x pect[ ed] ” that O’Reilly wo u l d “provide further discovery reg a r ding rest periods in time for

s u pplemental briefing .” Aside from this, Davidson di d n o t 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 a llow her
t o f i l e a supplemental brief on October 20. The mot i o n

ex p lained that Davidson had taken two depositio ns just two day s before she filed the class-certificat ion motion and that

one more dep o s i tion was “anticipated to occur shortly

. ” Thus, Davidson soug h t a

n opportunity to support her motion f or class certification with any newly discovered evid e n c e. The district court g ranted the stipulated motion and issued an order g iving Davidson an additional month to g a ther evidence to support class certification.

W h ile Davi d s o n was g athering additional e vidence, the district court r

uled on O’Reilly ’s pending motion to dismiss. The district c o urt dismissed Davidson’s wag e-statement claim on the g round that sh e failed to alleg e a violation o f section 226(a)(8) of the L abor Code. The district court held that the word “address,” as used in s ection 226(a)(8), “encompasses both [ a] phy sical street a ddress a nd [a] mailing address,” and so O’R e i l l y ’s use of a P.O. box address “fulfilled the requirements of section 226(a)(8).”

On October 20, D avidson 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 g iven during [ O’Reilly ’ s] Rule 3 0(b)(6) depositions

. . . and an additional d ocument produced by ”D A V I D S O N V

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O’Reilly

. Davidson ex plained that “ [ s] ince filing [her] Motion for Class Certification, [ she] ha[ d] g athered additional d ocumentary and corporate Rule 30(b) (6) testimony supporting certification of h er rest period class.” As in her class-certification m o t i o n , D a v i d son’s supplemental brief did not raise a need for additional d iscovery

. Her reply in support of cl a s s certification, filed on November 20, also made no mention of a need for further discovery

.

On December 15, t he district court denied Davidson’s motion for c lass certification. B ecause the district court h ad already dismissed the wag e-stat e m e nt claim, it denied the request to c ertify a w a g e-statement c lass as moot. W ith respect to the rest-break class, the district court stated that, althoug h O’Reilly ’s written p olicy was inconsistent with California law, Davidson ha d not shown that the written policy was “consistently applied to all 21,000 proposed class members.” T he district c ourt n oted that Davidson’s o wn declaration “ does not e v en state that s h e w as ever denied
proper rest breaks.” B y contrast, O’Reilly provided declarations from 310 employ ees asserting that they received all rest breaks mandated by California law. According ly

, the district court concluded that David s o n failed to show that O’Reilly implemented unlawful practices; the ex istence of a facially defectiv e p olicy was not enoug h, standing alone, to show that common questions predominated.

Davidson continued to litig ate her remaining claims u ntil, in J une 2018, the district c o urt g ranted summary judg ment in favor of O’Reilly on Davidso n ’s PAGA claim. Shortly thereafter, the parties entered into a stipulation whereby Davidson ag reed that the d i s t r ict court would dismiss with prejudice and enter judg ment on e ach of her claims, including (1) her PAGA claim (on which O’Reilly had be e n g rantedD A V I D S O N V

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s ummary judg ment), (2) her wag e-statement c l a i m (previously dismissed for failure to state a claim), and (3) her rest-break claim ( for which class c ertification had been denied). The parties ag reed that D avidson would preserve the rig ht to appeal two ruling s: the d istrict court’s “[ 1 ] denial o f class certification (Dkt. No. 61) and [ 2 ] r uling on motion for
summary judg ment (Dkt. No. 78).” T he district court entered judg ment as requested. This appeal followed.

I I

On appeal, Davidson raises b oth a procedural a nd

s ubstantive a

rg ument to support h er claim that the district

c o u r t abused its discretion in deny ing her motion f or c la s s certification. W e consider each arg ument in turn.

A

W e beg in with Davidson’s procedural arg ument. She
arg ues that the district c ourt abused its discretion by declining
to ex tend the September 21 deadline fo r m o v ing to certify a class. A ccording to Davidson, this i m p eded her ability to obtain pre-certification discovery of information that would have shown O’Reilly ’s on-the-g r ound implementation of its rest-break policy

.

“District c ourts have broad discretion to control the class certification process.” Vinol e v

. Countrywide Home Loans, Inc.
, 571 F .3d 935, 942 (9th Cir. 2009). Rule 2 3(c)(1)(A) o f the F ederal Rules of Civil P ro c edure g ives district courts discretion to set deadlines f or when parties must move forD A V I D S O N V

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class certification. See F ed. R. Civ. P. 23(c)(1)(A). 5 The question whether a district court abuses its discretion b y setting d e adlines o r limiting pre-certification discovery is i n h e r ently fact intensive and must be decided based on t h e facts of each case. See, e.g. , Doninger v. Pac. Nw. Bell, Inc.
, 564 F .2d 1304, 1313 (9th Cir. 1977).

B e cause “ w e r eview a district court’s case manag ement decisions for abuse o f discr e tion,” G CB Commc’ns, Inc. v

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

we must affirm u n l e ss the decision was “illog ical, implausible, or w ithout support i n i n ferences that may be drawn from facts in the record,” U nited State s v. Hinkson

, 585 F .3d 1247, 12 6 4 ( 9th Cir. 2 009) (en banc). “[ This] standar d is deferential, and properly so, since the district
court needs the authority to manag e the cases before it efficiently a

nd effectively .” W

ong v. R e g e n t s of Univ. of Cal.

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

A district court does not abuse its di s c r e t ion by actively
manag ing the pre-certification process—whether that means limiting the time “to c onduct discovery r elated to the question of class certification,” Vinole

, 5 71 F .3d at 942; accord Kamm

v. Cal. City Dev. Co.
, 5 0 9 F. 2d 205, 210 (9th Cir. 1975), o r deny ing p re-certification discovery entirely

, see Mantolete v

. Bolger

, 767 F .2d 1416, 1 424 (9th Cir. 1985 ) ; D o ninger
, 564 F .2d at 1 313. District cou r t s m a y also ex ercise their discretion by enforcing filing deadlines; they have “the power to establish reasonable times for the filing of documents” a nd

5 Ru le 2 3(c)(1 )(A ) states, “ A t an early p racticab le tim e af ter a p erso n

su es o r is su ed as a class rep resen tativ e, th e co u rt m u st d eterm in e b y o rd er

w h eth er t o certif

y th e actio n as a class actio n .” Fed

. R

. Civ

. P . 2 3 (c)(1 )(A ).D A V I D S O N V

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to evaluate the leg itimacy of an ex c use f o r failing to f

ile on time. Grandson v. Un i v

. o f Minn.
, 272 F

. 3 d 568, 574 (8th Cir. 2001) (citation omitted); accord Fowle r v

. UPMC Shadyside

, 578 F .3d 203, 214 (3d Cir. 2009) (holding that the district court did not abuse its discretion “in deny ing a motion for a class action determination which was untimely under the local rule”). We have recog niz ed that disreg arding a district court’s “ decision to honor the terms o f its binding scheduling order” ca n “ u ndermine the court’s ability to control its docket.” Jo hnson v. Mammoth Recreations, I nc. , 975 F .2d 604, 610 (9th Cir. 1992). This is particularly true “[ i] n these day s of heavy caseload s ,” when “trial c ourts in b oth federal and state sy s tems routinely set schedules and establish deadlines to foster the effi c i e nt treatment and resolution o f cases.” W

ong , 410 F .3d a t 1 060. “ Those efforts will be successful o nly if the deadlines are taken seriousl y b y t h e parties

, a n d t h e best w ay to encourag e that is to e nforce the deadlines.” Id.

W h ile we g enerally def e r t o a district court’s casemanag ement decisions, including in th e class-certification
process, see Campbell v

. City o f Los Angeles

, 903 F .3d 1090, 1110 ( 9th Cir. 2018), a district court may abuse its discretion if it unreasonably a

pplies rules in a w ay that d eprives a party of an opportunity to present class alleg ations or a motion for class certification, see ABS Entm’t, Inc. v. CBS Corp.
, 908 F .3d 405, 426–27 (9th Cir. 2018), or denie s a p a r t y a

re asonable opportunity to obtain a ruling on the merits of a motion f or class certification, see Pitts v. T e r r i ble Herbst, Inc. , 653 F .3d 1081, 1092–93 (9th Cir. 2011). F or instance, in ABS Entertainment
, the p l a i n t iff filed a putative class action in district court

. 9 0 8 F .3d at 411. The parties were subject to a local rule ( the same one a pplicable here), which
set a 90-day d e a d l i ne f or filing a motion f

or classD A V I D S O N V

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certification, an d they soug ht to ex tend the 90-day deadline
to allow for pre-certification discovery

. I d. The district court refused to do so on th e gr o u n d that there was “no show o f

ca u s e , l et alone g ood cause,” id.

, without “address[ ing ] the asserted need for pre-certification discovery

, ” id. at 4 26. The plaintiff timely moved for class certification, but the district
court identified t w o technical defects, 6 a nd then struck both the mo t i o n and the class alleg ations in the complaint a s untimely f

iled. Id. at 4 2 6

. By striking the class a lleg ations, the district court prevented the p laintiff from renewing the motion for class certificat i o n u nless the plaintiff obtained approval to amend the c omplaint. S e e F ed. R

. C i v. P. 23(d)(1)(D). 7

On a ppeal, we held that a district court’s “application a nd interpretation of its L ocal Rules i s e n t i tled to ‘a larg e

measure of discretion,’” but the district court’s application o f the local rule’s 90-day deadline was so infle x ible as to be

6 T h e m o tio n “ set a h earin g date f o r th e m o tio n b ey o n d th e 3 5

- d ay p erio d af ter serv ice o f

p ro cess as req u ired b y

th e co u rt’ s stan d in g o rd ers

a n d it d id n o t in clu d e a statem en t p u rsu an t to L ocal Ru le 7

- 3 t h at a

‘ co n f eren ce o f co u n sel’ to o k place p rio r to th e f i lin g o f th e m o tio n .” ABS En tm’t , 9 0 8 F.3 d at 4 1 2.

7 Ru le 2 3(d )(1 )(D) p ro v id es th at a district co u rt m ay “ req u ire th at th e p lead in g s b e am en d ed to elim in ate alleg atio n s ab o u t rep resen tatio n of ab sen t p erso n s an d t

h at t h e actio n p ro ceed acco rd in g ly .” Fed . R. Civ

. P

. 2 3 (d )(1 )(D). If th e d istrict co u rt d o es n o t str i k e t h e c lass alleg atio n s, p arties m ay m o v e a d istrict co u rt t o alter o r am en d an o rd er g ran tin g or d e n y in g class certif

icatio n at an y tim e “ b ef

o re f in al j u d g m en t,” Fed

. R

. Civ

. P

. 2 3 (c)(1 ) ( C), m ean in g th at t h e d en ial o f a m o tio n f o r class certif icatio n “ is in h eren tly ten tativ e,” Co op ers & Lyb ra n d v. Livesa y , 4 3 7 U .S. 4 6 3
, 4 6 9 n .1 1 (1 97 8 ); see a lso McNa ma ra v. Feld erh of

, 4 10 F.3 d 2 7 7
, 28 0 (5 th C ir. 2 0 0 5 ) (“ A d istrict c o u r t i s f ree to reco n sid er its class certif icatio n o rd er as o f

ten as n ecessary

b ef o re j u d g m en t.”).D A V I D S O N V

. O’R E I L L

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. 16

“incompatible with F ederal Rule of Civil Procedure 2 3.” A B S E n t m’t
, 908 F .3d at 427 (citation omitted). Therefore, w e ag reed that the district court “abused its discretion in striking the timely filed motion a s a s anction for

. . . ‘trivial’ omissions in the notice, ” a nd we reversed and remanded so the d istrict court could consider the c lass-certification motion

on the merits, along with whether p re-certification discovery

was wa rranted. Id. ; see also Pitts
, 653 F .3d at 1092–93 (holding that the district co u r t a b u sed its discretion when it failed to set a clear deadline for filing t h e cl a s s c ertification motion b ut nonetheless ruled that the plaintiff h ad missed the dead l i n e a n d could no long er file a timely motion for class certification).

Here, we c annot say t h a t 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
g ranting her an additional month to d e v elop evidence a nd submit a supplemental brief. F irst, the district court here set

a clear d eadline for filing the motion for class certification, unlike the situation in Pitts
, 6 53 F

. 3 d at 1092–93. W hile adhering to this deadline, the c o urt was n o t inflex ible; it allowed D avidson an ex tra month to e ng ag e in additional discovery and the o pportunity to f i l e 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 l i m i t s and then being f lex ible at counsel’s request”)

. D a vidson was not prevented from reasonably developing her claims. Nor did the court prevent D avidson from obtaining a ruling on her motion for class certification; rather, it considered D avidson’s b riefing and evidence before i s s u i n g its order. Thus, Davidson was afforded “an opportunity to present evidence as to whether a class actionD A V I D S O N V

. O’R E I L L

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. 17

was maintainable.” V

i n o le

, 571 F .3d at 942 (quoting Doninger
, 564 F .2d at 1313). Despite d eny ing the motion for class certification, the district court did not strike Davidson’s class alleg ations, which left her free to renew the motion a fter obtaining further evidence in pre-trial d iscovery

. See F ed. R. Civ. P. 23(c)(1)(C); Coopers & L y brand

, 437 U.S. at 469 n.11. Under the s e facts, we c onclude that the district court did not abuse its discretion in setting an d e nforcing a deadline, and w e therefore decline to “ undermine the court’s ability to control its doc ket.” Mammoth Recreations
, 975 F .2d at 610.

Arg u ing ag ainst this conclusion, Davidson contends that
t h e d istrict court’s adherence to the September 21 deadli n e

was unreasonable because it deprived her of sufficient time
to obtain necessary discovery reg arding O’Reilly ’s on-theg round implementation of its rest-br e ak policy

. This
arg ument fails f

or several reasons. Most important, it is belied b y 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 ba s e d t h is claim on evidence that O’Reilly had a writ t e n policy for rest breaks that did n ot comply with W a g e Order No. 7. Although t he parties’ first stipulation m e n tioned Davidson’s interest in obtaining the contact information of putative class members
to conduct interviews

, Davidson did not pursue this line o f discovery

. I nstead, Davidson focused on taking Rule 30(b)(6) depositions to establish that O’Reilly ’s written policy was defective; indeed, the parties’ se c o n d stipulation
to ex tend the September 21 deadline was based sol e l y o n a need to accommodate the Rule 30(b)(6) depositions.

The record shows that D avidson could have pursued the

o n

- t h e

- g r o u n d i n f

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

. O’R E I L L

Y A U T O E N T E R S

. 18

implementation of i ts r est-break policy

. O’Reilly ag reed to provide Davidson with a random sampling of contact i nformation for p u tative class members, subject to u sin g a Belaire-W

est notice to provi d e n o tice and an opportunity to opt-out. Davidson d id not follow up on this offer. She attempts to ex cuse h er failure to do so on the g round that she would not have had time to i n t erview the employ ees before the fili n g deadline, because it would have required a “minimum o f 30 da y s to provide putative class members notice and opportunity to opt

- out.” This arg ument has no support. There is no f

eder a l requirement that parties u se a Belaire-W

est notice, much less that putative c l as s members b e g iven 30 day s to respond. I n f act, district courts have frequently opted for “a protective order, in lieu of a BelaireW est notice,” Goro v. Flowers Foods, I nc. , No. 17-cv-02580, 20 1 8 W L 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.)

, I n c

. , No. EDCV 15-00369, 2015 W L 5568609, at *5 (C.D. C a l

. Sept. 2 2, 2 015). D avidson could have raised this alternative with O’Reilly or moved to c o mpel a response to her discovery

requests, but she chose not to.

The dissent c o n c e d es that the parties could have u sed a protective order in lieu of a Belaire-W est notice, but arg ues that this alternative w o u l d have been “futile in Davidson’s case” because D avidson could not move to compel discovery

, receive a favorable ruling

, and interview putative class members befor e t h e S eptember 21 deadline. Dissent at 29 n.3. This arg u ment is b ased o n the u n supported assumptions that O’Reilly would have refused to provide discovery absent

a court order; that the district court w ould not have provided

an ex peditious ruling

, d espite the fact that it ruled on a prior discovery motion in just four day s; and that Davidson wouldD A V I D S O N V

. O’R E I L L

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. 19

have been r equired to intervi e w p utative class members before S ep tember 21, even thoug h D avidson h ad until October 2 0 to file a supplemental brief. W e decline to eng ag e in these speculations g iven that Davidson did n ot even attempt to pursue on-the-g round in fo r mation reg arding O’Reilly ’s rest-break policy

.

Not only does Davidson’s arg ument that she needed more time for discovery lack support, she waived it by not r aising it “ sufficiently for the trial court to rule on.” In re E

. R. Fegert, In c

. , 8 8 7 F .2d 9 5 5, 957 (9th Cir. 1989). After the first stipulation, n one of Davidson’s filing s mentioned a need
to conduct employ ee i n t e rviews o r ex plained how evidence from these interviews wo uld support class certification; indeed, she d id not mention a d esire to interview employ ees reg arding their rest-break ex periences the e n t i re time her motion for class certification wa s pending

. Nor did she attempt to r a ise the issue w ith the district court after it refused
to certify a rest-break class on the g round tha t s h e had not shown that O’Reilly ’s written policy was “consistently applied to all 21,000 proposed cl a s s members.” Only

now—on appeal and after stipulati n g to the dismissal of her claims—does Davidson c o n t end that more discovery would have allowed h er to d evelop an alternative theory of the case

a nd chang ed the o utcome below. Davidson’s arg umen t

comes too late; we routinely “preven t [ ] parties from sandbag g ing their o pponents [ a nd the district court] with new arg uments on appeal,” Dream P alace v. Cty. of Maricopa
, 384 F

. 3d 990, 1005 (9th Cir. 2004), as D avidson attempts to do here.

D av i dson also raises a second a rg u ment as to why t h e d i s trict court abused its discretion b y failing to g rant an

ex tension. She claims (and t h e d i s sent ag rees) that A B SD A V I D S O N V

. O’R E I L L

Y A U T O E N T E R S

. 20

Entertainment created a per se rule that deny ing a motion to

ex tend a local rule’s 90-day deadline for moving for c la ss certifi c a t i o n is an abuse of discretion. Dissent at 32. W e disag ree. Consistent w ith our fact-intensive review, see Doninger
, 564 F .2d at 1313, ABS considered the specific facts of the case before it a n d concluded that the district court’s inflex ible a

pplication of the 90-day deadline—in conjunction with striking the class-certification motion f or t e chnical defects—deprived the plaintiff of a ruling on the merits on its motion for class certificatio n and w as “incompatible with F ederal Rule of Civil Procedure 2 3, ” 908 F .3d at 427. Despite c laiming to “see no principled way to disting uish the procedural posture of this case from

. . . ABS ,” Dissent a t 32, the dissent does n ot acknowledg e, much less address, that the plaintiff in ABS was deprived of a ruling on the merits of its class-certific a

t i o n m o t ion, 9 08 F

. 3d at 427, whereas D avidson

was n ot. N or did ABS purport to eliminate distr i c t c o u rts’ broad discretion in setting and enforcing d eadlines, see W ong , 410 F .3d at 1060; Mammoth Recreations
, 975 F .2d a t 610; c f. Skidmore

, 952 F

. 3d at 1 077; rather, the district court ’ s er r o r

was its inflex ibility

, not its decision to set a dea d l i n e

. The district c ourt in this case e vinced no such inflex ibility and did
not deprive Davidson of fair consideration of her motion. According ly

, we decline to c o nclude that the district court abused its discretion. 8

8 T h e d issen t asserts th at th is d ecisio n “ w i ll lik ely cau se co n f u sio n f or th e lo cal b en ch an d b ar.” D issen t a t 3 2

. T h is arg u m en t i s m eritless f or tw o reaso n s. First, t

h e Cen tral District o f Calif o rn ia am en d ed L ocal Ru le 2 3

- 3 to elim in ate th e req u irem en t th at a m o tio n f o r class certif

icatio n b e f iled w ith in 9 0 d ay s af ter serv ice of t

h e co m p lain t p u rp o rtin g to

co m m en ce a class actio n

. Mo reo v er, ev en p rio r to th e ef f ectiv e d ate o f th e

am en d m en t, j u dg es in th e Cen tral District o f Calif o rn ia reco g n iz ed th at ABS d id n o t “ in v a l i d ate o r s trik e [L o cal Ru le 2 3

- 3 ],” W in eb a r g er v. Pa

. Hig h er Ed

u c. Assista n ce Ag en cy , 4 1 1 F. S u p p

. 3 d 1 0 7 0
, 1 0 8 4 (C.D. Cal.D A V I D S O N V

. O’R E I L L

Y A U T O E N T E R S

. 21

B

As to the merits, Davi d s o n arg ues that the district court erred in refusing to c ertify a “rest b r e a k” class. Ag a in, we disag ree.

“W e review a district court’s denial of class c ertification for abuse of dis c r e tion,” 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 t h e D istrict Court did not reach,” Immigrant A ssistance Project of Los Angeles Cty. Fed’n of Lab o r (A FL -CIO) v

. I NS
, 306 F .3d 842, 856 n.12 (9th Cir. 2002). Parties seeking c lass c ertif i c a tion bear the burden o f satisfy i n g each o f the four requirements o f Rule 23(a) of the F ederal Rules o f C i v i l Procedure and at least one of the requirements of Rule 23(b). W al-Mart Stores, I n c

. v

. Dukes

, 564 U.S. 3 38, 345 (2011). “[ C] ertification is
proper only if ‘the trial court is satisfied, after a r ig orous analy sis, that the prerequisites o f Rule 23(a) have been satisfied.’” Id. at 350–51 (quoting G e n

. T e l

. Co. of Sw. v

. Fa l c o n , 457 U.S. 147, 161 ( 1982)). 9 “F requently that rig orous analy sis will entail some overlap with the merits of

2 0 1 9 ), an d th ey co n t in

u ed to ap p ly th at ru le w

h en , in th eir v iew

, d o in g so

w as co n sisten t w ith

Ru le 2 3 o f

th e Fed eral Ru les o f

Civ il P ro ced u re, see id

. ; Ro th m a n v. Op t ima A d vo ca tes, In c. , No

. CV 1 8

- 8 3 4 1

- R, 20 1 9 W L 2 6 1 0 9 6 0 , at * 1 (C.D. Cal. A p r. 1 9 , 2 0 19 ).

9 Un der Ru l e 2 3 (a), a party m u st dem o n s trate th at: “( 1 ) t h e class is

so n u m ero u s th a t j o in d er o f all m em b ers is im p racticab le; (2 ) t

h ere are q u estio n s o f law o r f

act co m m o n to t h e class; (3 ) th e claim s o r d ef en ses

o f th e r e p r e sen tativ e p arties are t y p ical o f th e claim s o r d ef en ses of th e class; an d (4 ) th e rep resen tativ e p arties w ill f airly an d ad eq u ately p ro t ect th e in terests o f

th e class.” Fed . R. Civ . P . 2 3 (a).D A V I D S O N V

. O’R E I L L

Y A U T O E N T E R S

. 22

the plaintiff’s under l y i ng claim” because “ the class determination g enerally involves considerati ons that a re enmeshed in the f

a ct u a l a n d leg al issues comprising the plaintiff’s cause o f action.” Id. (cleaned up) (quoting F a lcon

, 457 U.S. at 160).

Here, Davidson failed to show that “there are questions o f law or fact common to the class,” one of the requirements o f Rule 23(a). F ed. R. Civ. P. 23(a)(2). The Supreme Court has held that “[ c] ommonality requires the plaintiff to demonstrate that the class m e m b ers ‘have suffered the same injury .’” Dukes

, 5 64 U.S. at 350 (quoting F alcon

, 457 U.S. a t 157); see also E llis v

. Costco W

holesale Corp.
, 657 F .3d 970, 9 83 (9th Cir. 2011) (“I f there is no evidence that the e n t i r e class was subject to the same [ unlawful] practice, there is no question

common to the c lass.”). Da v i dson failed to show that employ e es suffered the common injury of being d e prived of rest-period premiums to which they we r e leg ally entitled. Even D avidson’s own d eclaration does not show that she suffered this injury

. Althoug h she st a t es that she worked shifts between six and eig ht hours in leng th 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 Reg s. tit. 8, § 11070(12)(A)

. He r d eclaration is silent on that point. Althoug h Davidson arg ued that O’Reilly ’s written rest-break policy was inconsistent with California law because i t o m itted the phrase “or major fraction thereof,” she did not show that the p olicy was applied to emp l o y ees in a way that v iolated California law. B ecause there w as no evidence that a class o f employ e es “ suffered the same injury ,” Dukes

, 564 U .S. at 350 (quoting Falcon

, 457 U.S. a t 1 57), D avidson did n ot establish commonality

.D A V I D S O N V

. O’R E I L L

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. 23

T h e d issent contends that Davidson did, in fact, co m e forward with evidence that the “entire c lass was subject to the

same [unlawful] practi c e

. ” Dissent at 34. Not so. L ike Davidson, the d issent merely identifies documents that do not contain the phrase “or major f a c t i on thereof,” Dissent a t 34, and tacitly concedes that Davidson presented no evidence that she or any other putative class member was ever d e nied a r e st break in violati o n o f California law. 1 0 W ithout any such evidence, D avidson has not “affirmatively demonstrate[ d]

. . . that there are in fa c t

. . . common questions of law or fact.” Dukes

, 564 U.S. at 350. Put another way , the mere ex istence of a facially

defective written policy

—without any evidence that it was implemented in an unlawful manner—does not constitute “[ s] ig nificant pr o o f,” id. a t 3 54, that a class o f employ e es were subj ec t t o an unlawful practice. The dissent’s reliance on Jimenez v. Allstate Insurance Co.
, is misplac e d

, b e cause in that case the district c ourt found that the plaintiff “present e d s u fficient evidence to establish

. . . comm o n questions,” such as “ whether class members

10 T h e d issen t states t

h at D av i d so n “ id en tif

ied ev id en ce p ro d u ced b y O’ Reilly in a related c l a s s a ctio n co n cern in g th e sam e rest b reak p olicy

, in clu d in g

. . . Ru le 3 0 (b )(6 ) t estim o n y co n f ir m in g th at O’ Reilly o n ly
p ro v id ed o n e rest p erio d p er f o u r h o u rs o f w o rk .” Dissen t at 3 4

– 3 5

. Ev en

assu m in g th at th is d ep o sitio n f ro m an earlier actio n is ad m issib le h ere, see Fed

. R. Civ

. P

. 3 2 (a)(8 ); Hu b v. S un Va lley Co

. , 6 8 2 F.2 d 7 7 6
, 7 7 8 (9 th Cir. 1 98 2 ), th e dissen t’ s statem en t is m islead i n g

. T h e d ep o n en t in th at

case testif ied th at, u n d er C a lif

o rn ia law

, if an em

p lo y ee w o rk s a sh if

t of f o u r h o u rs, h e is en titled to a ten

- m in u t e rest b reak

, b u t if th e “ sh if t is less th an th ree an d a h alf [h o u rs],” th e em plo y ee is n o t en titled t o a rest b reak

. T h is ex p lan atio n is co n sisten t w ith Calif o rn ia law

. S

ee Cal. C od e Re g s

. tit. 8
, § 1 1 0 70 (1 2 )(A ). T h e dep o n en t d id n o t state o r su g g est th at O’ Reilly f ailed to pro v id e an ad d itio n al rest b reak t o e m p l o y ees w

h o w o rk ed b e t w een s ix an d eig h t h o u rs. A cco rd in g ly

, th e testim o n y o n w h i c h t h e d issen t relies d oes n o t sh o w th at O’ Reilly v io l ated Calif o rn ia law ; in f

act, it ten d s to p ro v e th e o p p o site.D A V I D S O N V

. O’R E I L L

Y A U T O E N T E R S

. 24

g enerally worked overtime without receivi n g compensation

as a r e sult of D efendant’s unofficial p olicy of discourag ing reporting of such overtime.” 765 F .3d 1161, 1163–64 (9th Cir. 2014) (emphasis added). Here, i n c o n trast, the district court made no such finding ; as the district court recogniz ed, Davidson’s e v idence “fail[ ed] to implicate any illeg al practice.” According ly

, we conclude that the d istrict court did not abuse its discretion in deny ing Davidson’s motion for class c ertification because D avidson did not establish commonality

. See F ed. R. Civ. P. 23(a)(2).

I I I

Nex t, we turn to Davidson’s challeng e to the district court’s dismissal of her wa ge -s t atement claim. O’Reilly contends that Davidson waiv e d t h e rig ht to appeal the dismissal of this claim. W e ag ree.

W e follow the “practice of looking at the lang uag e of [ a]
consent judg ment a

nd o t h er evidence in the record to determine whether a party may appeal following an or der entered by consent.” Blair v. Shanahan

, 38 F .3d 1 514, 1521 (9th Cir. 1994) (citing Christ i a n Sci. Reading Room Jointly Maintained v. City & Cty. of San Francisco , 784 F .2d 1010, 1017 ( 9th Cir. 1986)). A party relinquishes the rig ht to appeal a claim by stipulating that judg ment should be entered

on the claim “ in a ccordance w i t h ” a n adverse ruling a

nd without r e serving the rig ht to appeal. Id. at 1518 ( c i t a t i on omitted); see also Am. Bankers Mortg. Corp. v. Fed. Home Loan M ortg. Corp.
, 75 F .3d 1401, 1413 (9th Cir. 1 9 9 6 ) (holding that an appeal of the merits of a claim was improper because “it was dismissed with prejudice by stipulation o f the parties as part of an ag

reement”).D A V I D S O N V

. O’R E I L L

Y A U T O E N T E R S

. 25

Here, Davidson relinquished h er rig ht to app e al the d ismissal of her wag e-statement claim. The district cou r t dismissed the claim with prejudice. I n a s t ipulation, Davidson a

nd O’Reilly a g reed that the d istrict court should

“ d i s miss with prejudice and enter judg ment on the cla i m s alleg ed on an individual basis by [Davidson] in her S e co nd Amended Complaint,” including the wage

- s tatement c laim. Davidson preserved the rig ht to appeal two decisio n s : the district court’s “[ 1] denial of class certification (Dkt. No. 61) and [ 2] ruling on motion for summary judg ment (Dkt. No. 78).” B ut she did not preserve the rig ht to appeal the district court’s “Order Re: Defendants’ Motion to Dismiss” (Dkt. No. 56), w hich dispos e d o f her wag e -statement claim. I n sum, Davidson a g reed that the dis t r i ct court should enter judg ment on her wag e-statement claim in accordance with its order dismissing the c laim, and the rig ht to appeal that order “was not a term of the ag reement.” Blair

, 38 F

. 3 d at 1518. Thus, D avidson relinquished the rig ht to appeal the d ismissal of her wag e-statement claim. See id. ; A m. Bankers Mortg. Corp. , 75 F .3d at 1413.

Davidson arg ue s t hat review of the order deny ing class certification “necessarily encompasse s ” r eview of the dismissal of her wag e-state m en t claim, because the district
court refused to certify a wag e-statement class on the g r ound that the wag e-statement claim had a lready bee n d ismissed. This arg ument fails. Davidson could not appeal the d ismissal of her w ag e-statement claim unless she reserved the rig h t to appeal the order disposing of that claim. Se e B l a i r , 38 F .3d
at 1518. Reserving the rig h t to appeal another order that makes reference to t h e order d ismissing the claim is not enoug h to show that the parties ag reed that Davidson could challeng e t he dismissal of the wag e-statement c laim.D A V I D S O N V

. O’R E I L L

Y A U T O E N T E R S

. 26

According ly

, we hold that Dav idson w aived the rig ht to appeal her wag e-statement claim. 1 1

AF F IRMED

.

CHRI STEN, Circuit J udg e, concurring in part and dissenting in part:

I ag r ee that Davidson did not preserve her rig ht to appeal the district court’s order dismissing h e r wag e statement c laim. B ut I c onclude the district court erred when it rig idly adhered
to the unworkable deadli n e imposed by now-abrog ated Central District of California L ocal Rule 23-3, thereby precluding Davids o n f r o m o b t a i n i ng essential precertificatio n d i s c overy

. The district court ruled before we issued ABS E

ntertainment, Inc. v. CBS Corp.
, 908 F .3 d 405 (9th Cir. 2018), but that precedential opinion holds, at a minimum, that a district court abuses its discretion when it adheres to now-abrog ated L oc a l Rule 23-3 without

11 B ecau se w e d o n o t reach th e m erits o f Dav id so n ’ s w ag e- statem en t claim

, w e ex p ress n o v iew as t o w h eth er “ ad d ress,” as u se d i n s e c t i on 2 2 6 (a)(8 ) o f t h e C a l i f

o rn ia L ab o r Co de, co v ers a P .O. b o x ad d ress an d th eref o re d en y Dav id so n ’ s Mo t i o n fo r Ju d icial No tice (ECF No

. 1 2 ),

w h ich seek s j u d i cial n o tice o f d ocu m en t s related to sectio n 2 2 6 (a)(8 ). S ee Flo res v. Cty. o

f Lo s An g eles

, 7 5 8 F.3 d 1 1 54
, 1 15 9 n .1 1 (9 t h Cir. 2 0 1 4 ).

W e also d eclin e Dav id so n ’ s req u est to issu e an ad v iso ry o p in io n to clarif y th e d istrict co u rt’ s o rd er g ran tin g p artial su m m ary j u d g m en t o n h er P AG A c l aim

. See Aetn a L ife In s. Co

. o f Ha rtfo rd

, Co n n

. v. Ha wo rth

, 3 0 0 U.S. 22 7
, 2 4 1 (1 9 3 7 ) (h o l d in g th at w e m ay n o t issu e “ an o p in io n ad v isin g w

h at th e law

w o u ld b e u

p o n a h y p o th etical state o f

f acts”).D A V I D S O N V

. O’R E I L L

Y A U T O E N T E R S

. 27

considering the need for pre-certification discovery

. I see no way to fairly disting uish ABS from this case.

Nor d o I a g ree that Davidson’s rest break claim fails for lack of commonality purs u ant to F ed. R. Civ. P. 23(a)(2). The d istrict court d id not reach commonality

, but my colleag ues affirm the district c ourt’s order deny in g class certification on that basis. I n doing so, t h e majority improperly conflates the answer to a common question with the e xistence of a common c o n tention. Here, D avidson clearly identified e v idence of a common rest br e ak policy

, and that was sufficient to e stablish commonality at the class certification stag e. Be c ause A B S controls the situation presented he re , and because Davidson satisfied the commonality r equirement of Rule 23(a)(2), I respectfully dissent.

I

L ess than two y ears ag o, our court considered the previous version of L o cal Rule 23-3 in ABS
, and held that the Rule’s brig ht-line 90-day deadline to f ile a class c ertification motion was “incompatible wi t h F ederal Rule of Civil Procedure 23” and “impractica[ l] .” 908 F .3 d a t 427. Our
court cautioned t h a t Federal Rule of Civil Procedure 23 demanded a more flex i b l e approach, and that district courts must carefully consider the need f or p re-certific a t i on discovery

, rather than adhering to an arbitr a r y deadline. Id. (citing Kamm v. Cal. City Dev

. C o

. , 509 F .2d 205, 210 (9th Cir. 1975)). I n A B S
, w e held that the “district court’s
summary and unex p lained denial of the p a rt ies’ joint stipulation to ex tend the 90-day deadline based on the need for pre-certification dis c o v ery ” required remand, with theD A V I D S O N V

. O’R E I L L

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. 28

e x p licit d irection f

or the district court to “reconsider[ ]

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

I n the wake of A BS
, the Central District of Califo r nia amended L ocal Rule 23-3. T h e new rule became effective less than a y e ar ag o, on December 1, 2019. W hen the district
court ruled in this c a se, it did not have the benefit of ABS
, a nd the court therefore operated under the now-abrog ated v ersion of L ocal R u l e 2 3 -3. T h e r ecord leaves no doubt that the district court adhered to the b r i g ht-line 90-day deadline imposed by that rule without r ega r d f or the need for precertification discovery

. Under our precedent, this w as plainly an abuse of discretion.

Davidson served her f

irst amended complaint on J une 23, 2017, and her initial discover y requests one week later. O’Reilly declined to treat Davidson’s discovery requests a s operative until a month after that, when the parties had their Rule 26(f) discovery conference on J uly 28
, 2 017. See F ed. R. Civ. P. 26(d). O n Aug ust 1, 2017, Da v i d s on served her initial discovery requests ag ain. T h e very nex t day

, Aug ust 2, Davidson and O’Reilly

filed a joint stipulation to ex tend the class certification deadline impose d b y operation o f L ocal Rule 23-3, a

nd specifically cited the need to conduct interviews o f p utative class members. 1 The joint stipulation outlined the sig nificant time required for this log istically intensive process, and ex pressly identified the 30-day period required to allow putative class members to opt out after they

1 M y co lleag u es assert th at th e co u rt set a d ead lin e f o r f i l in g th e

m o tio n f o r class certif

icatio n

. T h i s is n o t co rrect. T h e d ead lin e h ere w as im p o s ed so lely

b y o p eratio n

o f L o cal Ru le 2 3

- 3

.D A V I D S O N V

. O’R E I L L

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. 29

received notice of the action. 2 T h e r e q uested ex tension ( to which t h e p arties mutually ag reed) was 67 d ay s. On Aug ust 4, 2017, the court denied the joint stipulation without

ex p lanation. The district co u r t made no finding s that shed lig ht on its reasons for deny ing the parties’ joint request for more time.

O’Reilly served its discovery responses on A ug ust 31, the last possible day

, and offered to provide contact information for a y et-to-be-neg o tiated random sampling of class members after the parties neg otiated a nd sent o u t a Belaire-W

est notice. This was an empty promise, as there was already insufficient time to c omplete the process associated with interviewing the class members. Even if the parties had been able to neg otiate and send out a Belaire-W est n o t i c e the same day O’Reilly served its dis covery responses, the notice requires a waiting period to allow class members to opt out. After that waiting period, the parties would h ave had to neg otia t e a s ample o f employ e es, assemble a contact list, send out notices, contact witnesses, interview them, and prepare declarations. Those steps could not be t a k en until the parties knew which members of the putative class would opt o u t

. 3 W ith the

2 O ’ Reilly co n sisten tly asserted th at it w ou ld “ o n ly p ro v id e th e co n t act in f o rm atio n f

o r pu tativ e class m em

b ers su b j ect to ” th e n o tice an d o p t- o u t p ro ced u re d escrib ed in Bela ire-W est La n d s ca p e In c. v

. S

u p erio r Co u rt , 5 7 Cal. Rp tr. 3 d 1 9 7 , 2 0 3 (Ct. A p p. 2 0 0 7 ). (Em p h asis ad d ed ).

3 T h e m aj ority asserts th at d istrict co u rts h av e f req u en tly o p ted f

o r a p ro tectiv e o rd er in l ieu

o f a Bela ire-W

est n otice, p articu larly

w h en th ere is n o t su f f icien t tim e to allo w f

o r th e n otice an d o p t- o u t perio d. S ee, e.g

. , Th o ma s-Bya ss v. Mich a el Ko rs S to res ( Ca l.) In c. , No

. 1 5

- cv

- 0 0 3 6 9
, 2 0 1 5 W L 5 5 6 8 6 0 9 , at * 5 (C.D. Cal. Sep t. 2 2
, 2 01 5 ). T h is is tru e, b u t en tirely f u tile in Dav id so n ’ s case. W ith t h e class certif

icatio n d ead lin e o n l y th ree

w eek s aw ay , it is m an if

estly u n reaso n ab le to ex

p ect th at Dav id so n

co u ld file a m o tio n to co m

p el, receiv e a f

av o rab le ru lin g o n th a t m o t i o n ,D A V I D S O N V

. O’R E I L L

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. 30

deadline of September 21 for filing a class c ertification motion looming just three weeks away , it was impossible for Davidson to cond u ct d iscovery into the putative class members before filing

her motion for class certification.

The parallels between thi s case and ABS are striking

. I n ABS
, the parties filed two joint stipulations t o ex tend L ocal Rule 23-3’s r ig id 90-day deadline. 908 F .3d at 426. After the district court d enied the first stipulation for failure to show
g ood cause, the parties filed a second stipulation t h at specifically cited the n eed for pre-certification discovery

. Id. The district court denied that stipulation without ex p lanation, and did “ not addr es s the a sserted need for pre-certification discovery .” I

d. Our court co ncluded that the district court

was not permitted to rely on the brig ht-line deadline in L ocal Rule 23-3, a

nd remanded with direction to “reconsider[ ]

. . . whether pre-certification discovery [ w as] warranted.” Id. at 427.

Here, the parties filed a joint stipula t i o n to ex tend L ocal Rule 23-3’s automatic 9 0-day deadline, specifically citing the time needed to conduct p re-certification discove r y

. The district c ourt d enied that stipulation without ex planation, a nd

never addressed the n eed f or pre-certificat i on discovery

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

case be remanded f

or the district court to reconsider whether pre-certification discovery was warranted.

Contrary to my colleag u es’ assertion, Davidson p reserved this issue f

or appeal. S

ee In re E.R. Fe

g e r t
, I nc. , 887 F .2d

n eg o tiate t

h e f orm o f a p ro tectiv e o rd er, an d receiv e a resp o n se t o h er d isco v ery req u ests, all w ith en o u g h tim e to sch ed u le an d o b tain in terv iew s f ro m class m em

b ers.D A V I D S O N V

. O’R E I L L

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. 31

955, 957 ( 9th Cir. 1989)

. Nothing in the record supports the supposition that Davidson e ver abandoned her request to interview p utative class members. Davidson req u e s t ed an

ex tension of the d eadline imposed by L o cal Rule 23-3 so she could conduct interviews, but the district court denied that request. B y the time Davidson received O ’Reilly ’s discovery
responses on Aug ust 31, she had no c hoice b ut to forg e ahead with h e r o t h e r available methods of discovery

. W hat the majority calls “abandonment” is more ty pically described as compliance with a court order. The majority faults D avidson for not re-filing the same request, but there was no reason to think that the court w o uld have made a different decision if Davidson had re-filed her initial r equest for time to interview putative class members. After all, the first request was denied even thoug h O’Reilly had stipulated to it. D av i d s on

wa s n o t required to repeatedly request an ex tension that the district court had a lready denie d

. See Y amada v. Nobel Biocare Holding AG
, 825 F .3d 536, 5 43 (9th Cir. 2 016) (“[ W ] hen a party

takes a position and the district court rules

on it, there is no waiver.”); W

. W aters h e d s P roject v. U

.S. Dep’t of Interior , 677 F .3d 922, 925 (9th Cir. 2012).

T h e subsequent events in the record show only t h at Davidson faced further d i f f iculties in obtaining the limited discovery that was available to her. O’Reilly did not make its Rule 30(b)(6 ) w itnesses available in time for h er to include their testimony in her motion for class certification. Thus, the parties filed a stipulation to ex tend the class cert i fi c ation motion deadline by 14 d ay s, which was ag ain denied without

ex p lanation. The parties also filed a stipulation t o f ile a supplemental brief a f

ter the class certification deadline, which w as g r anted, but this narrow request was related solely
to Davidson obtaining corporate testimony pursuant to Rule 30(b)(6). I n the stipulation for a 1 4 -day ex te n s ion, theD A V I D S O N V

. O’R E I L L

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. 32

parties specifically r ecog n iz ed that t h e district c ourt h ad already deni e d t h eir previous stipulation requesting time to interview class members, and n oted that they were seeking a much shorter ex tension in or d e r to address the narrow issue of procuring t e stimony f rom O’Reilly ’s Rule 3 0(b)(6) witnesses. A s for interviews of putative class members, that ship had already

sailed.

The district court a dhered to the deadline in L ocal Ru le 23-3 without considering whether D avidson h ad sufficient means to conduct p re-certification discovery

. This is p recisely the circumstance that required remand in ABS
, with ex plicit instructions to r econsider whether precertification discovery was warra n t e d

. The court’s order deny ing pre-certification discovery is particularly concerning because the court later d enied clas s certification on the
g rounds that D avidson failed to advance sufficie n t evidence supporting certification. Davidson was faulted for failing to collect the very evidence the court’s o r d e r s prevented her from g athering

.

I can see no principled way to disting uish the procedural posture of this case from the d e c i s i o n we published in ABS
, and as a thr e e -judg e panel, we are bound by o ur circuit precedent. S

ee Miller v. Gammie
, 335 F

. 3d 889, 899 ( 9th Cir. 2003) ( en b anc). An appellate decision that flip-flops so soon after ABS was publ i s h e d will likely cause confusion for the local bench and bar. See Payne v. Tennessee , 501 U.S. 808, 827 (1991) (observing that re s p e ct for precedent “promotes the evenhanded, predictable, a n d consistent development o f leg al principles, fosters reliance on judicial decisions, a nd contributes to the actual and perceived integ rity of the judicial process”).D A V I D S O N V

. O’R E I L L

Y A U T O E N T E R S

. 33

II

B e cause I would hold that the district court abused its discretion by d eny ing Davidson an opportunity to c o n d uct pre-certification discove r y , I would not reach the question whether Davidson satisfied the requirements of F ed. R. Civ. P. 23. B ut my c olleag ues do, and b y affirming the district court’s class certification decision on the b asis o f commonality

, t hey decide in the first instance an issue the district court never reached. 4 I n the majority ’s v iew, Davidson failed to show tha t t he putative class suffered the

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

r est break p olicy was actually applied to O’Reill y ’s employ e es. This r e s u l t is also contrary to controlling authority

.

The Rule 23(a)(2) requirement of commonality demands that claims “must depend upon a common contention .” W a lMart Stores

, I

n c

. v

. Dukes

, 5 64 U.S. 338, 350 (2011) (emphasis a d d ed). That “common contention, moreover, must be o f such a nature that it is capable o f c l a s s wide resolution—which means that determination o f its truth or falsity will resolve an issue that i s c entral to the validity o f each one of the claims in one stroke.” Id. (emphasis added). “W h a t matters to class certification

. . . [ is] the capacity of a classwide proceeding to g enerate common an s w e r s apt to drive the resolution of the litig ation.” Id. (quoting Richard A

. Nag areda, Class Certification in the Ag e of Ag g reg ate Proof, 84 N.Y.U. L . Rev. 97, 132 (2009)).

4 T h e d istrict co u rt rested i t s d e n i al o f class certif icatio n on p red o m in an ce, s ee Fed

. R. C iv

. P

. 2 3 ( b ) ( 3 )

, w ith o u t ad d ressin g an y Ru le 2 3 (a) req u i rem en ts.D A V I D S O N V

. O’R E I L L

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. 34

To be sure, W

al-Mart confirmed that the “ ri go r ous analy sis” under Rule 23(a) “sometimes [requires] the court to probe behind the p l e ading s before coming to rest on the certificatio n q u e s t i o n.” I d. ( quoting Gen. Tel. Co. o f Sw. v

. Falcon

, 457 U.S. 147, 160 (1982)). And we have recog niz ed that “a district court m ust consider the merits” if they overlap with the r equirements of Rule 23(a). Ellis v. Costc o W holesale Corp.
, 6 57 F .3d 970, 981 (9th Cir. 2011)

. After all, “if there is no evidence that the entire class w as subject to t h e same alleg edly discriminatory practice, there is n o question common to the class.” Id. at 983 (emphasis added). B ut here, Davidson c ame forward with evidence of precisely this v ariety

. Thus, this c ase is c learly disting uishab l e from W al-Mart and Ellis

, where claims o f g ender discrimination failed t o satisfy commonality because the plaintiffs did not demonstrate the ex istence of a uniform policy

.

Davidson established c o mmonality with the 2010 a nd 2013 versions of O’Reilly ’s store opera t i o n s manual, a nd testimony f

rom O’Reilly ’s Rule 3 0(b)(6) corporate d esig nee, Mr. David Vanden B os. Vanden B o s authenticated numerous O’Reilly do cu m e nts from the class period concerning O’Reilly ’s rest break policy

— e.g

. , a t r a ining ag e nda and a

memo to manag ers. None o f O’Reilly ’s documents included the “major f

raction thereof” lang

uag e required by

California law. See Brinker Rest. Corp. v. Superior Cou rt , 273 P.3d 513, 528–29 (Cal. 2012); Cal. C o d e Reg s. tit. 8, § 11070(12)(A). Davidson also identified evidence produced by O’Reilly in a related class action concerning the same r e st break policy

, including two internal O’Reilly p olicy documents indicating th e s a me non-compliant rest break policy

, and Rule 30(b)(6) testimony confirming that O’ReillyD A V I D S O N V

. O’R E I L L

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. 35

only provided one rest period f or every four hours o f work. 5 The majority supposes that the Rule 30(b)(6) deponent’s testimony sug g ests O’Reilly followed a lawful r e s t break practice. B ut it is not cl e ar t his is so. The written policies identified by Davidson are not consistent with California law, and the deponent’s testimony is ambig uous about the practice that was actually

followed.

Plainly

, D avidson demonstrated the ex istence of a uniform p olicy

, which if implemented w o u l d cause class members t o s u f

fer the same injury

. The “rig orous analy sis” required by W

al-Mart does not allow fo r “an in-depth

ex a mination of the u n derly ing merits” of the c ase—for

ex a mple, “whether [ an employ er] was in fact discriminating
ag ainst women,” Ell i s , 6 5 7 F

. 3d at 9 83 n.8, or whether O’Reilly w as in fact depriving its e mploy e es of leg ally

m a n d ated rest breaks. The purpose of class c ertification i s “not to a djudicate the case,” but merely “to select the method best suited to adjudication of the con t r o v e rsy fairly a nd efficiently

. ” Amgen Inc. v. Conn. Ret

. P l a n s & Tr. Funds

,

5 Dav id so n

req u ested j u dicial n o tice o f th ese m aterials b ecau se th ey h ad b een f iled o n t h e p u b l ic d ock et i n related litig atio n in v o lv in g O’ Reilly

. S ee Reyn ’s Pa sta Bella

, LLC v. Visa U S A, In c. , 4 4 2 F.3 d 7 4 1
, 7 4 6 n .6 (9 th Cir. 2 00 6 ) (co u

rt f ilin g s are p ro perly

th e su b j ect o f j u d icial n o tice). T h e d istrict co u rt ref

u sed to co n sid er th is ev id en ce, ru l in g th at Dav id so n im p ro p erly req u ested j u d i cial n o tice o f f in d i n g s of f

act f ro m an o th er case. B u t Dav id so n d id n o t seek j u d icial n o tice of an y fi n d i n g s. Sh e s o u g h t

n o ti c e o f th e p o licies O’ Reilly in t ro d u ced in th e p arallel litig atio n

. W h eth er th e cited ev id en ce in fa ct ref lected O’ Reilly ’ s p ractice i s su b j ect to reaso n ab le d is p u te, an d th u s n o t th e p ro p er s u b j ect o f j u d icial n o tice. B u t th e f act th at th ese w

ritten p o l icies ex i st an d w ere p ro d u ced b y O’ Reilly can n o t b e co n tested

. Lee v. City o f Lo s An g eles , 2 5 0 F.3 d 6 6 8
, 6 9 0 (9 th Cir. 2 00 1 ). T h e co u rt w as f ree to tak e j u d icial n otice o f t h e

ex isten ce o f O’ Re i lly ’ s p o l icy d o cu m en ts, j u st n o t th e v eracity o f an y d isp u ted f acts co n tain ed th erein

. S

ee id

.D A V I D S O N V

. O’R E I L L

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. 36

568 U .S. 455, 460 (2013) ( alteration a nd qu otation marks omitted); see also Stockwell v. City & Cty. of San Francisco
, 749 F .3d 1107, 111 2 (9th Cir. 2014) (“[ D] emonstrating

c o m m onality d oes not require proof that the putative c la s s will prevail on whatever co m m o n questions it identifies.”); Ellis

, 6 57 F .3d at 983 n .8 (observing that “whether class members could actually prevail o n the merits of their claims” is not the proper inquiry). A nd the identification of a “a fatal similarity —[ an a lleg e d ] failure of proo f as to an element o f the plaintiff’s claim”—is “inappropriate at the certificat ion stag e.” A l c a n tar 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 p oint. There, the plaintiffs raised an off-the-clock work claim that re q u i r ed proof that: (1) plaintiffs p erformed w ork for which they did
not receive compensation; ( 2) d efendant s knew or should have known that plaintiffs did so; and (3) defendants stood b y idly

. Id. at 1 165. As to the first q u estion, th e p l aintiffs
arg ued that class members had worked unpaid overtime as a result of the defendant’s unofficia l policy of discourag ing reporting o f such overtime. Id. The d e f e n d ant arg ued its formal p olicies were lawful, “ a n d that the alleg ed informal ‘policy -to-violate-the-policy ’ d[ id] not ex ist.” Id. at 1165 n.5. W e concluded that “[ p] roving at trial w hether such informal

or unofficial policies ex isted will drive resolution of [the first question]

. ” Id. at 1166. As t o d efendant’s arg ument concerning the ex istence of the policy

, we observed that “[ t] his arg ument is appropriately made at trial or a t the
summary judg ment stage,” b ecause “[ w] hether any of these

commo n q uestions are ultimately resolved in favor o f either side is immaterial a t the class certification stag e.” I d

. at 1165 n.5. After all, “if a d e f

endant has a strong arg ument a g ainstD A V I D S O N V

. O’R E I L L

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. 37

classwide liability

, it ‘should welcome class certification’ as that allows it the opportunity to resolve claims o f a l l class members at once.” Id. (quoting In re W hirlpool Corp. F

rontLoading W

a sher Prods. Liab. Litig.
, 722 F .3d 838, 857 (6th C i r

. 2 0 1 3)); see also R idgeway v

. W almart Inc.
, 946 F .3 d 1066, 1078–82 (9th Cir. 2 0 2 0) (observing it was jury ’s role “to decide whether Wal

- M a rt implemented the written policies” concerning

control over employ ees).

H ere, Davidson arg ued O’Reilly had a policy of unlawfully deny ing class members leg ally -mandat e d r e st breaks. O’Reilly did n ot deny that it had a uniform rest break policy

. Nor did it i n s i s t that the r esolution of Davidson’s

c l a i m s w o u l d r e q u i r e n u m e r o u s i n d i v i d u a l i z e d determinations. See

, e .g. , W al-Mart

, 564 U

. S. at 355 (concluding plaintiffs failed to alleg e a uniform employ ment practice b e cause employ

ment decisions w ere left to discretion of local supervisors). O’Reilly inste a d a rg ued that the unlawful policy identified by Davidson w as not in fact implemented, a

nd that its actual rest b reak policy

— as a pplied throug hout California—was lawful. B ut whether or not the unlawful policy was actually implemented is p recisely the
sort of question that s a t i s f ies commonality

. J

imenez
, 765 F

. 3d at 1165–66; see also Torres v. Mercer Canyons Inc.
, 835 F .3d 1125, 1134 ( 9th Cir. 2016) ( concluding that whether the d efendant “had a ‘ common p o licy or pract i c e o f withholding information’” was a common question that would “help to drive resolution of the l i t i gation for all class members”).

The district court’s conclusion on predominance, thoug h
not addressed by the majority

, s u ffered from a similar infirmity

. Rule 23(b)(3) “ asks the court to make a g lobal determination of whether common questions prev ail overD A V I D S O N V

. O’R E I L L

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. 38

individualiz ed ones.” Torres
, 835 F .3d at 1134. This “requires a showing that questions com m o n to the class
p redominate, n ot that those questions w ill be answered, o n the m e r i t s , i n favor of the class.” Amgen
, 568 U.S. at 459. B ecause g e neral iz e d evidence of the sort advanced b y Davidson will provide an answer to the question whether the challeng ed 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.

F or these reasons, I

respectfully

dissent.