FILED
NOT FOR PUBLICATION JAN 21 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSEPH PEREZ, on behalf of himself and No. 12-55657
others similarly situated,
D.C. No. 2:10-cv-08653-RGK-
Plaintiff - Appellant, FFM
v.
MEMORANDUM*
SAFELITE GROUP INC,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted December 5, 2013
Pasadena, California
Before: D.W. NELSON, WARDLAW, and RAWLINSON, Circuit Judges.
Joseph Perez appeals from the district court’s denial of his class certification
motion. We have jurisdiction under 28 U.S.C. § 1291, and we vacate the denial of
class certification and remand for further proceedings.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Perez, wishing to engage in discovery prior to class certification, stipulated
with Safelite to extend the class certification deadline. The district court denied the
stipulation without reasoning. Perez then moved to continue the class certification
deadline in order to engage in precertification discovery. The district court denied
the motion without reasoning. Perez then filed a timely motion to certify the class,
and again stated that precertification discovery was appropriate. The district court
denied the class certification motion because there was insufficient evidence to
establish the job duties performed by class members other than Perez. The district
court did not address the need for precertification discovery.
The district court abused its discretion when it failed to grant Perez’s
requests for precertification discovery for two reasons. First, the plaintiff in a class
action “bears the burden of . . . showing that . . . discovery is likely to produce
substantiation of the class allegations.” Mantolete v. Bolger, 767 F.2d 1416, 1424
(9th Cir. 1985). Once this showing is made, it is an abuse of discretion to deny
precertification discovery. Id. (citing Doninger v. Pac. Nw. Bell, Inc., 564 F.2d
1304, 1313 (9th Cir. 1977)). Perez submitted documentation and testimony
concerning his employment with Safelite, and has met his burden to show that
discovery is likely to substantiate the class allegations by showing that Perez’s
experiences are common to those of other employees with the same job title.
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Second, failing to allow precertification discovery where it is necessary to
determine the existence of a class is an abuse of discretion. Kamm v. Cal. City
Dev. Co., 509 F.2d 205, 210 (9th Cir. 1975). The district court denied class
certification because Perez did not have evidence about other employees with his
job title, which shows that discovery is necessary to determine the existence of a
class in this case. Perez is therefore entitled to precertification discovery on
remand.
Perez’s challenge to Central District of California Local Rule 23-3 is without
merit because the timing of class certification is committed to the discretion of the
district judge and Rule 23-3 allows extension of the 90-day certification deadline
by order of the court. See Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 1092-94
(9th Cir. 2011).
Costs are awarded to appellant.
VACATED and REMANDED.
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