NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 1 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DELORES HUMES; DIANE ABELLA, on No. 17-17072
behalf of themselves and all others similarly
situated, D.C. No. 1:15-cv-01861-BAM
Plaintiffs-Appellants,
MEMORANDUM*
v.
FIRST STUDENT, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Barbara McAuliffe, Magistrate Judge, Presiding
Argued and Submitted December 21, 2018
San Francisco, California
Before: GOULD and BERZON, Circuit Judges, and MÁRQUEZ ** District Judge.
Named plaintiffs Delores Humes and Diane Abella (collectively “Humes”)
filed suit in state court on behalf of a putative class of First Student, Inc. (“First
Student”) bus drivers who worked out of a Fresno location and allegedly suffered a
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Rosemary Márquez, United States District Judge for
the District of Arizona, sitting by designation.
range of state labor violations. The district court denied class certification in full.
Humes appeals only the denial of the fourth subclass (“the Subclass”), Fresno
drivers who received deficient wage statements in violation of California Labor
Code § 226 “at any time from October 28, 2011, and continuing to the present.”
Because the district court provided no explanation as to why it denied certification
of the Subclass, “the class certification decision ‘is not entitled to the traditional
deference given to such a determination.’” Narouz v. Charter Commc’ns, LLC, 591
F.3d 1261, 1266 (9th Cir. 2010) (quoting Local Joint Exec. Bd. of
Culinary/Bartender Tr. Fund v. Las Vegas Sands, Inc., 244 F.3d 1152, 1161 (9th
Cir. 2001)).1
1. The Subclass easily meets the commonality requirement of Federal Rule
of Civil Procedure 23(a)(2)—that “there are questions of law or fact common to
the class.” Fed. R. Civ. P. 23(a)(2). The putative class members’ “claims . . .
depend upon a common contention . . . of such a nature that it is capable of
classwide resolution—which means that determination of its truth or falsity will
resolve an issue that is central to the validity of each one of the claims in one
stroke.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011); see also Mazza
v. Am. Honda Motor Co., Inc., 666 F.3d 581, 588 (9th Cir. 2012). To meet this
1
On appeal, First Student does not argue that the Subclass fails to meet Rule 23’s
adequacy of representation or numerosity requirements, so we do not address those
requirements here.
2
standard, the class members must not only “have all suffered a violation of the
same provision of law” but must “have suffered the same injury.” Dukes, 564 U.S.
at 350.
There is no question that all class members’ claims “depend upon [the]
common contention,” id., that First Student provided deficient wage statements in
violation of § 226. The harder question is whether all putative members suffered
the same injury.
A 2013 amendment to the California Labor Code clarified that “an employee
is deemed to suffer injury for purposes of [§ 226] if the employer fails to provide
accurate and complete information as required” and “the employee cannot
promptly and easily determine from the wage statement alone” the mandated
disclosures. Cal. Lab. Code § 226(e)(2)(B)(i) (emphasis added). The Subclass
includes claims that arose prior to 2013. But the two divisions of the state Court of
Appeal that have considered the question concluded that the 2013 amendment
clarified existing law and thus is applicable to pre-2013 cases brought pursuant to §
226. See Lopez v. Friant & Assocs., LLC, 15 Cal. App. 5th 773, 783-84 (App. 1st
2017); Lubin v. Wackenhut Corp., 5 Cal. App. 5th 926, 959 (App. 2d 2016); cf.
McClung v. Emp’t Dev. Dep’t, 34 Cal. 4th 467, 471-73 (2004). Federal courts
“must follow the decisions of intermediate state courts in the absence of
convincing evidence that the highest court of the state would decide differently.”
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Stoner v. N.Y. Life Ins. Co., 311 U.S. 464, 467 (1940); see also Klingebiel v.
Lockheed Aircraft Corp., 494 F.2d 345, 346 n.2 (9th Cir. 1974). As we have no
such evidence, we adopt the interpretation of the law endorsed by the state Courts
of Appeal.
Because the amendment applies to all class members’ claims, all members
will “have suffered the same injury.” Id. As a result, there are “questions of law or
fact common to the class,” Fed. R. Civ. P. 23(a)(2), and Rule 23(a)(2) is satisfied.
2. For similar reasons, the proposed Subclass meets the typicality
requirement of Rule 23(a)(3). A proposed class merits certification where “the
claims or defenses of the representative parties are typical of the claims or defenses
of the class.” Fed. R. Civ. P. 23(a)(3). “The test of typicality ‘is whether other
members have the same or similar injury, whether the action is based on conduct
which is not unique to the named plaintiffs, and whether other class members have
been injured by the same course of conduct.’” Hanon v. Dataproducts Corp., 976
F. 2d 497, 508 (9th Cir. 1992) (quoting Schwartz v. Harp, 108 F.R.D. 279, 282
(C.D. Cal. 1985)); see also Hanlon v. Chrysler Corp., 150 F.3d 1101, 1020 (9th
Cir. 1998). Because class members are deemed injured by the receipt of a deficient
wage statement, Humes has alleged class-wide injury suffered by all, including the
named plaintiffs, and thus has established typicality sufficient for class
certification.
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3. Humes contends that the proposed class satisfies Rule 23(b)(3), which
requires both that “questions of law or fact common to the members of the class
predominate over any questions affecting only individual members,” and that “a
class action is superior to other available methods for fair and efficient
adjudication of the controversy.” Fed. R. Civ. P. 23(b)(3). Where key aspects of
the claims of each class member “will prevail or fail in unison,” Rule 23(b)(3) is
satisfied because “[i]n no event will the individual circumstances of particular class
members bear on the inquiry.” Amgen, Inc. v. Conn. Ret. Plans & Tr. Funds, 568
U.S. 455, 460 (2013); see also Hanlon, 150 F.3d at 1022. Reviewing a similar
class certification denial, this court in Sali v. Corona Regional Medical Center
explained that “[b]ecause the Code specifies that a violation of § 226 is a per se
injury, there is no individualized issue of [injury]” for purposes of predominance.
909 F.3d 996, 1011 (9th Cir. 2018). Sali controls here on the predominance issue.
4. In its supplemental briefing, First Student raised for the first time the
possibility that some putative members’ claims might be time-barred. Claims for
statutory penalties pursuant to § 226(e) are subject to a one-year statute of
limitations. Cal. Civ. Proc. Code § 340(a). But Subclass members’ claims for other
remedies available under § 226 —including actual damages and injunctive relief—
are not. Because these matters were raised only briefly in supplemental briefing,
we decline to resolve them at this juncture. Instead, we remand to the district court
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to determine the proper time limitations, if any, applicable to members of the
Subclass, and, if appropriate, to redefine the Subclass so that it is limited to
individuals with non-time-barred claims.
REVERSED and REMANDED
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