Kia Davidson v. O'Reilly Auto Enterprises, LLC

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

KIA DAVIDSON, individually, and on No. 18-56188
behalf of other members of the
general public similarly situated, D.C. No.
Plaintiff-Appellant, 5:17-cv-00603-
RGK-AJW
v.

O’REILLY AUTO ENTERPRISES, LLC, OPINION
a Delaware corporation,
Defendant-Appellee.

Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding

Argued and Submitted February 6, 2020
Pasadena, California

Filed August 3, 2020

Before: Danny J. Boggs,* Sandra S. Ikuta, and
Morgan Christen, Circuit Judges.

Opinion by Judge Ikuta;
Partial Concurrence and Partial Dissent by Judge Christen

*
The Honorable Danny J. Boggs, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
2 DAVIDSON V. O’REILLY AUTO ENTERS.

SUMMARY**

Class Certification

The panel affirmed the district court’s order denying
plaintiff’s motion for class certification in an action
challenging the written rest-break policy of plaintiff’s former
employer, O’Reilly Auto Enterprises, LLC.

In her procedural challenge, plaintiff argued that the
district court abused its discretion by declining to extend the
September 21 deadline for moving to certify the class, and
this impeded plaintiff’s ability to obtain pre-certification
discovery of information. The panel held that the district
court did not abuse its discretion by requiring plaintiff to
meet the deadline for filing her motion for class certification
while at the same time granting her an additional month to
develop evidence and submit a supplemental brief.

In her substantive argument, plaintiff argued that the
district court erred in refusing to certify a “rest break” class.
The panel held that plaintiff failed to show that “there are
questions of law or fact common to the class,” which was one
of the requirements for class certification under Fed. R. Civ.
P. 23(a)(2).

The panel held that plaintiff waived her right to appeal the
dismissal of her wage-statement claim. The panel held that
in a stipulation, plaintiff preserved the right to appeal the
denial of class certification and the ruling on the motion for

**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 DAVIDSON V. O’REILLY AUTO ENTERS. 3

summary judgment, but she did not preserve the right to
appeal the district court’s dismissal of her wage-statement
claim.

Concurring in part and dissenting in part, Judge Christen
agreed that plaintiff did not preserve her right to appeal the
district court’s order dismissing her wage statement claim.
However, she would hold that the district court erred in
imposing an unworkable class certification deadline, and it
abused its discretion by denying plaintiff an opportunity to
conduct pre-certification discovery. She also disagreed with
the majority’s conclusion that plaintiff’s rest break claims
failed for lack of commonality pursuant to Rule 23(a)(2).

COUNSEL

Liana Carter (argued), Ryan Wu, and Robert Drexler,
Capstone Law APC, Los Angeles, California, for Plaintiff-
Appellant.

James M. Peterson (argued), John Morris, Jason C. Ross, and
Rachel E. Moffitt, Higgs Fletcher & Mack LLP, San Diego,
California, for Defendant-Appellee.
4 DAVIDSON V. O’REILLY AUTO ENTERS.

OPINION

IKUTA, Circuit Judge:

In this appeal from the stipulated dismissal of a putative
class action, Kia Davidson claims that the district court
abused its discretion in declining to extend a deadline for
filing a motion for class certification. She also claims that the
district court erred on the merits in declining to certify a class
of employees based on her employer’s written rest-break
policy, which allegedly did not comply with California law.
We conclude that the district court did not abuse its discretion
in setting and enforcing a deadline. Nor did the court abuse
its discretion in denying Davidson’s motion for class
certification. Because Davidson failed to offer any evidence
that the written policy was applied to employees, she was
unable to establish that there were questions of law or fact
common to the class.

I

O’Reilly Auto Enterprises, LLC is an auto-parts retailer
that operates some 520 stores in California. Between June
2016 and July 2017, O’Reilly employed Kia Davidson as a
delivery specialist at one of its stores in San Bernardino,
California. Toward the end of her time there, Davidson filed
an action against O’Reilly on her own behalf and on behalf of
a class of persons “who worked for [O’Reilly] as a non-
exempt, hourly-paid employee in California within four years
prior to the filing of this complaint until the date of trial.”

Davidson alleged three sets of claims relevant to this
appeal. First, Davidson alleged that O’Reilly violated
California’s rest-break requirements. A California regulation,
 DAVIDSON V. O’REILLY AUTO ENTERS. 5

Wage Order No. 7, provides that “[e]very employer shall
authorize and permit all employees to take rest periods” and
that “[t]he authorized rest period time shall be based on the
total hours worked daily at the rate of ten (10) minutes net
rest time per four (4) hours or major fraction thereof.”1 Cal.
Code Regs. tit. 8, § 11070(12)(A). Employees that work
between six and eight hours are entitled to two ten-minute
rest breaks, one for the first four hours and a second for the
remainder. See id.2 Employees that do not receive these rest
breaks are entitled to increased pay in the form of a rest-break
premium: “one (1) hour of pay at the employee’s regular rate
of compensation for each work day that the rest period is not
provided.” Cal. Code Regs. tit. 8, § 11070(12)(B).
According to Davidson, she and other employees did not
receive rest breaks and O’Reilly did not pay (or underpaid)
rest-break premiums.

Second, Davidson alleged that O’Reilly failed to provide
employees with wage statements that identified “the name
and address of the legal entity that is the employer,” as
required by section 226(a)(8) of the California Labor Code.
According to Davidson, O’Reilly’s wage statements were
noncompliant because they listed O’Reilly’s address as “PO
BOX 1156, SPRINGFIELD, MO 65801,” instead of

1
“Though not defined in the wage order, a ‘major fraction’ long has
been understood—legally, mathematically, and linguistically—to mean a
fraction greater than one-half.” Brinker Rest. Corp. v. Superior Court,
53 Cal. 4th 1004, 1028 (2012). So a “major fraction thereof” as applied
to a “four-hour period” means “any amount of time in excess of two
hours.” Id. at 1029.
2
“[A] rest period need not be authorized for employees whose total
daily work time is less than three and one-half (3 ½) hours.” Cal. Code
Regs. tit. 8, § 11070(12)(A).
6 DAVIDSON V. O’REILLY AUTO ENTERS.

providing the street address of O’Reilly’s corporate
headquarters, “233 South Patterson Avenue, Springfield, MO
65802-2298.” Third, relying on these first two claims,
Davidson sought civil penalties under California’s Private
Attorney General Act (PAGA). See Cal. Lab. Code § 2698,
et seq.

Davidson served O’Reilly with a first amended complaint
on June 23, 2017. At the time, the district court’s local rules
provided that “[w]ithin 90 days after service of a pleading
purporting to commence a class action . . . the proponent of
[a] class shall file a motion for certification that the action is
maintainable as a class action, unless otherwise ordered by
the Court.” C.D. Cal. Local Rule 23-3 (Dec. 1, 2013). The
district court let stand the local rule’s filing deadline, and so
Davidson had 90 days after service—until September 21—to
move for class certification.

On August 2, the parties filed a stipulation and proposed
order seeking to extend the September 21 deadline by 67 days
to November 28. The parties gave several reasons for
requesting the extension. First, Davidson intended to move
to transfer venue, and the earliest date on which she could
notice a hearing was September 18, just three days before the
September 21 deadline. Next, Davidson claimed she needed
more time to gather evidence to support her class-certification
motion. The stipulation explained that Davidson had served
interrogatories, document requests, and deposition notices on
O’Reilly, seeking “[t]he contact information of putative class
members,” the “[p]utative class member time punch and
wage records,” and information related to O’Reilly’s “labor
policies.” Davidson claimed this discovery was relevant for
class certification because it would: (1) be used to interview
putative class members and obtain declarations, (2) allow her
 DAVIDSON V. O’REILLY AUTO ENTERS. 7

to analyze time and wage records for recorded instances of
potential Labor Code violations, (3) allow her to inspect
O’Reilly’s policies, which will show how hours of work, non-
work, and compensation are regulated, and (4) allow her to
review communications showing how O’Reilly implemented
its policies. According to Davidson, “the putative class
would be prejudiced without this discovery at class
certification” because “it bears upon the commonality and
predominance of Labor Code issues among class members as
a whole.” The stipulation also listed procedural steps, such
as providing putative class members with notice and
opportunity to opt-out from the disclosure of their contact
information, which would take place before discovery. The
district court summarily denied the stipulation to extend the
September 21 deadline.

Over the next few months, the parties engaged in
discovery.3 Davidson requested multiple depositions from
O’Reilly pursuant to Rule 30(b)(6) of the Federal Rules of
Civil Procedure, which provides that entities, including
corporations, must designate a knowledgeable person who
can testify on the subject matter identified in a deposition

3
Although Davidson initially propounded discovery requests on June
30, 2017, her requests were premature because the parties had not yet met
and conferred as required by Rule 26(f) of the Federal Rules of Civil
Procedure. See Fed. R. Civ. P. 26(d) (“A party may not seek discovery
from any source before the parties have conferred as required by
Rule 26(f).”). Davidson accordingly re-propounded her discovery
requests on August 1, after the parties completed their Rule 26(f)
conference. Davidson also filed a second amended complaint shortly
thereafter, on August 7.
8 DAVIDSON V. O’REILLY AUTO ENTERS.

notice.4 Davidson’s Rule 30(b)(6) notices sought information
on O’Reilly’s “rest period policies, policy documents,
procedures, or practices.” Davidson also propounded
document requests and interrogatories, including a request
that O’Reilly provide “the full name, identification number,
position, dates of employment, last known address, and last
known telephone number” for “each and every” putative class
member.

In response to these requests, O’Reilly provided answers
to Davidson’s interrogatories, produced responsive
documents, and agreed to produce persons knowledgeable
about the subject matter identified in Davidson’s Rule
30(b)(6) notices. O’Reilly also agreed to provide a random
sampling of contact information for putative class members,
after providing them with notice and an opportunity to object.
Such notice is required in state class actions to protect
employees’ privacy rights and is commonly referred to as a
Belaire-West notice. See Belaire-West Landscape Inc. v.
Superior Court, 149 Cal. App. 4th 554, 562 (2007).

4
Rule 30(b)(6) provides, in relevant part:

In its notice or subpoena, a party may name as the
deponent a public or private corporation, a partnership,
an association, a governmental agency, or other entity
and must describe with reasonable particularity the
matters for examination. The named organization must
then designate one or more officers, directors, or
managing agents, or designate other persons who
consent to testify on its behalf; and it may set out the
matters on which each person designated will testify.

Fed. R. Civ. P. 30(b)(6).
 DAVIDSON V. O’REILLY AUTO ENTERS. 9

As discovery progressed, the parties again moved to
extend the September 21 deadline, this time by 14 days, to
accommodate their schedule for Rule 30(b)(6) depositions.
The district court denied the motion, though in response to a
subsequent motion, it gave Davidson an opportunity to file a
supplemental 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 class-action trial plan. The
motion and trial plan explained Davidson’s theory regarding
the rest-break claim. According to the motion, each of
O’Reilly’s policy documents required ten-minute rest breaks
for every four hours of work but did not include the language
“or major fraction thereof.” Davidson argued that this
omission created classwide issues, such as whether O’Reilly
violated California law by failing to “authorize or permit”
required rest breaks and whether O’Reilly’s “uniform written
rest break policy violate[d] California law by failing to give
full effect to Wage Order No. 7.” The evidence presented at
trial “would include the text of every iteration of O’Reilly’s
written rest period policy, as well as O’Reilly’s corroborating
party admissions expected in the deposition.” Because the
rest-break policy applied to all class members, “the common
questions engendered by that policy [could] be answered by
common proof.” The motion was supported by Davidson’s
declaration stating that she “recall[ed] sometimes working a
shift between 6 and 8 hours in length” but was “not aware of
any rest period premiums being paid to [her].”

The motion for class certification also addressed
outstanding discovery matters. Davidson stated that O’Reilly
had not yet produced “all corresponding policy documents”
and had not “yet been able to produce a Rule 30(b)(6)
10 DAVIDSON V. O’REILLY AUTO ENTERS.

designated witness to testify in this matter as to [O’Reilly’s]
rest period policies, policy documents, procedures or
practices.” But Davidson “expect[ed]” that O’Reilly would
“provide further discovery regarding rest periods in time for
supplemental briefing.” Aside from this, Davidson did not
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 allow her
to file a supplemental brief on October 20. The motion
explained that Davidson had taken two depositions just two
days before she filed the class-certification motion and that
one more deposition was “anticipated to occur shortly.”
Thus, Davidson sought an opportunity to support her motion
for class certification with any newly discovered evidence.
The district court granted the stipulated motion and issued an
order giving Davidson an additional month to gather evidence
to support class certification.

While Davidson was gathering additional evidence, the
district court ruled on O’Reilly’s pending motion to dismiss.
The district court dismissed Davidson’s wage-statement
claim on the ground that she failed to allege a violation of
section 226(a)(8) of the Labor Code. The district court held
that the word “address,” as used in section 226(a)(8),
“encompasses both [a] physical street address and [a] mailing
address,” and so O’Reilly’s use of a P.O. box address
“fulfilled the requirements of section 226(a)(8).”

On October 20, Davidson 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 given during [O’Reilly’s] Rule 30(b)(6)
depositions . . . and an additional document produced by”
 DAVIDSON V. O’REILLY AUTO ENTERS. 11

O’Reilly. Davidson explained that “[s]ince filing [her]
Motion for Class Certification, [she] ha[d] gathered
additional documentary and corporate Rule 30(b)(6)
testimony supporting certification of her rest period class.”
As in her class-certification motion, Davidson’s supplemental
brief did not raise a need for additional discovery. Her reply
in support of class certification, filed on November 20, also
made no mention of a need for further discovery.

On December 15, the district court denied Davidson’s
motion for class certification. Because the district court had
already dismissed the wage-statement claim, it denied the
request to certify a wage-statement class as moot. With
respect to the rest-break class, the district court stated that,
although O’Reilly’s written policy was inconsistent with
California law, Davidson had not shown that the written
policy was “consistently applied to all 21,000 proposed class
members.” The district court noted that Davidson’s own
declaration “does not even state that she was ever denied
proper rest breaks.” By contrast, O’Reilly provided
declarations from 310 employees asserting that they received
all rest breaks mandated by California law. Accordingly, the
district court concluded that Davidson failed to show that
O’Reilly implemented unlawful practices; the existence of a
facially defective policy was not enough, standing alone, to
show that common questions predominated.

Davidson continued to litigate her remaining claims until,
in June 2018, the district court granted summary judgment in
favor of O’Reilly on Davidson’s PAGA claim. Shortly
thereafter, the parties entered into a stipulation whereby
Davidson agreed that the district court would dismiss with
prejudice and enter judgment on each of her claims, including
(1) her PAGA claim (on which O’Reilly had been granted
12 DAVIDSON V. O’REILLY AUTO ENTERS.

summary judgment), (2) her wage-statement claim
(previously dismissed for failure to state a claim), and (3) her
rest-break claim (for which class certification had been
denied). The parties agreed that Davidson would preserve the
right to appeal two rulings: the district court’s “[1] denial of
class certification (Dkt. No. 61) and [2] ruling on motion for
summary judgment (Dkt. No. 78).” The district court entered
judgment as requested. This appeal followed.

II

On appeal, Davidson raises both a procedural and
substantive argument to support her claim that the district
court abused its discretion in denying her motion for class
certification. We consider each argument in turn.

A

We begin with Davidson’s procedural argument. She
argues that the district court abused its discretion by declining
to extend the September 21 deadline for moving to certify a
class. According to Davidson, this impeded her ability to
obtain pre-certification discovery of information that would
have shown O’Reilly’s on-the-ground implementation of its
rest-break policy.

“District courts have broad discretion to control the class
certification process.” Vinole v. Countrywide Home Loans,
Inc., 571 F.3d 935, 942 (9th Cir. 2009). Rule 23(c)(1)(A) of
the Federal Rules of Civil Procedure gives district courts
discretion to set deadlines for when parties must move for
 DAVIDSON V. O’REILLY AUTO ENTERS. 13

class certification. See Fed. R. Civ. P. 23(c)(1)(A).5 The
question whether a district court abuses its discretion by
setting deadlines or limiting pre-certification discovery is
inherently fact intensive and must be decided based on the
facts of each case. See, e.g., Doninger v. Pac. Nw. Bell, Inc.,
564 F.2d 1304, 1313 (9th Cir. 1977).

Because “we review a district court’s case management
decisions for abuse of discretion,” GCB Commc’ns, Inc. v.
U.S. S. Commc’ns, Inc., 650 F.3d 1257, 1262 (9th Cir. 2011),
we must affirm unless the decision was “illogical,
implausible, or without support in inferences that may be
drawn from facts in the record,” United States v. Hinkson,
585 F.3d 1247, 1264 (9th Cir. 2009) (en banc). “[This]
standard is deferential, and properly so, since the district
court needs the authority to manage the cases before it
efficiently and effectively.” Wong v. Regents of Univ. of
Cal., 410 F.3d 1052, 1060 (9th Cir. 2005).

A district court does not abuse its discretion by actively
managing the pre-certification process—whether that means
limiting the time “to conduct discovery related to the question
of class certification,” Vinole, 571 F.3d at 942; accord Kamm
v. Cal. City Dev. Co., 509 F.2d 205, 210 (9th Cir. 1975), or
denying pre-certification discovery entirely, see Mantolete v.
Bolger, 767 F.2d 1416, 1424 (9th Cir. 1985); Doninger,
564 F.2d at 1313. District courts may also exercise their
discretion by enforcing filing deadlines; they have “the power
to establish reasonable times for the filing of documents” and

5
Rule 23(c)(1)(A) states, “At an early practicable time after a person
sues or is sued as a class representative, the court must determine by order
whether to certify the action as a class action.” Fed. R. Civ.
P. 23(c)(1)(A).
14 DAVIDSON V. O’REILLY AUTO ENTERS.

to evaluate the legitimacy of an excuse for failing to file on
time. Grandson v. Univ. of Minn., 272 F.3d 568, 574 (8th
Cir. 2001) (citation omitted); accord Fowler v. UPMC
Shadyside, 578 F.3d 203, 214 (3d Cir. 2009) (holding that the
district court did not abuse its discretion “in denying a motion
for a class action determination which was untimely under the
local rule”). We have recognized that disregarding a district
court’s “decision to honor the terms of its binding scheduling
order” can “undermine the court’s ability to control its
docket.” Johnson v. Mammoth Recreations, Inc., 975 F.2d
604, 610 (9th Cir. 1992). This is particularly true “[i]n these
days of heavy caseloads,” when “trial courts in both federal
and state systems routinely set schedules and establish
deadlines to foster the efficient treatment and resolution of
cases.” Wong, 410 F.3d at 1060. “Those efforts will be
successful only if the deadlines are taken seriously by the
parties, and the best way to encourage that is to enforce the
deadlines.” Id.

While we generally defer to a district court’s case-
management decisions, including in the class-certification
process, see Campbell v. City of Los Angeles, 903 F.3d 1090,
1110 (9th Cir. 2018), a district court may abuse its discretion
if it unreasonably applies rules in a way that deprives a party
of an opportunity to present class allegations or a motion for
class certification, see ABS Entm’t, Inc. v. CBS Corp.,
908 F.3d 405, 426–27 (9th Cir. 2018), or denies a party a
reasonable opportunity to obtain a ruling on the merits of a
motion for class certification, see Pitts v. Terrible Herbst,
Inc., 653 F.3d 1081, 1092–93 (9th Cir. 2011). For instance,
in ABS Entertainment, the plaintiff filed a putative class
action in district court. 908 F.3d at 411. The parties were
subject to a local rule (the same one applicable here), which
set a 90-day deadline for filing a motion for class
 DAVIDSON V. O’REILLY AUTO ENTERS. 15

certification, and they sought to extend the 90-day deadline
to allow for pre-certification discovery. Id. The district court
refused to do so on the ground that there was “no show of
cause, let alone good cause,” id., without “address[ing] the
asserted need for pre-certification discovery,” id. at 426. The
plaintiff timely moved for class certification, but the district
court identified two technical defects,6 and then struck both
the motion and the class allegations in the complaint as
untimely filed. Id. at 426. By striking the class allegations,
the district court prevented the plaintiff from renewing the
motion for class certification unless the plaintiff obtained
approval to amend the complaint. See Fed. R. Civ. P.
23(d)(1)(D).7

On appeal, we held that a district court’s “application and
interpretation of its Local Rules is entitled to ‘a large
measure of discretion,’” but the district court’s application of
the local rule’s 90-day deadline was so inflexible as to be

6
The motion “set a hearing date for the motion beyond the 35-day
period after service of process as required by the court’s standing orders
and it did not include a statement pursuant to Local Rule 7-3 that a
‘conference of counsel’ took place prior to the filing of the motion.” ABS
Entm’t, 908 F.3d at 412.
7
Rule 23(d)(1)(D) provides that a district court may “require that the
pleadings be amended to eliminate allegations about representation of
absent persons and that the action proceed accordingly.” Fed. R. Civ. P.
23(d)(1)(D). If the district court does not strike the class allegations,
parties may move a district court to alter or amend an order granting or
denying class certification at any time “before final judgment,” Fed. R.
Civ. P. 23(c)(1)(C), meaning that the denial of a motion for class
certification “is inherently tentative,” Coopers & Lybrand v. Livesay,
437 U.S. 463, 469 n.11 (1978); see also McNamara v. Felderhof, 410 F.3d
277, 280 (5th Cir. 2005) (“A district court is free to reconsider its class
certification order as often as necessary before judgment.”).
16 DAVIDSON V. O’REILLY AUTO ENTERS.

“incompatible with Federal Rule of Civil Procedure 23.” ABS
Entm’t, 908 F.3d at 427 (citation omitted). Therefore, we
agreed that the district court “abused its discretion in striking
the timely filed motion as a sanction for . . . ‘trivial’
omissions in the notice,” and we reversed and remanded so
the district court could consider the class-certification motion
on the merits, along with whether pre-certification discovery
was warranted. Id.; see also Pitts, 653 F.3d at 1092–93
(holding that the district court abused its discretion when it
failed to set a clear deadline for filing the class certification
motion but nonetheless ruled that the plaintiff had missed the
deadline and could no longer file a timely motion for class
certification).

Here, we cannot say that 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
granting her an additional month to develop evidence and
submit a supplemental brief. First, the district court here set
a clear deadline for filing the motion for class certification,
unlike the situation in Pitts, 653 F.3d at 1092–93. While
adhering to this deadline, the court was not inflexible; it
allowed Davidson an extra month to engage in additional
discovery and the opportunity to file 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 limits and then being flexible at counsel’s
request”). Davidson was not prevented from reasonably
developing her claims. Nor did the court prevent Davidson
from obtaining a ruling on her motion for class certification;
rather, it considered Davidson’s briefing and evidence before
issuing its order. Thus, Davidson was afforded “an
opportunity to present evidence as to whether a class action
 DAVIDSON V. O’REILLY AUTO ENTERS. 17

was maintainable.” Vinole, 571 F.3d at 942 (quoting
Doninger, 564 F.2d at 1313). Despite denying the motion for
class certification, the district court did not strike Davidson’s
class allegations, which left her free to renew the motion after
obtaining further evidence in pre-trial discovery. See Fed. R.
Civ. P. 23(c)(1)(C); Coopers & Lybrand, 437 U.S. at 469
n.11. Under these facts, we conclude that the district court
did not abuse its discretion in setting and enforcing a
deadline, and we therefore decline to “undermine the court’s
ability to control its docket.” Mammoth Recreations,
975 F.2d at 610.

Arguing against this conclusion, Davidson contends that
the district court’s adherence to the September 21 deadline
was unreasonable because it deprived her of sufficient time
to obtain necessary discovery regarding O’Reilly’s on-the-
ground implementation of its rest-break policy. This
argument fails for several reasons. Most important, it is
belied by 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 based this claim on
evidence that O’Reilly had a written policy for rest breaks
that did not comply with Wage Order No. 7. Although the
parties’ first stipulation mentioned Davidson’s interest in
obtaining the contact information of putative class members
to conduct interviews, Davidson did not pursue this line of
discovery. Instead, Davidson focused on taking Rule
30(b)(6) depositions to establish that O’Reilly’s written
policy was defective; indeed, the parties’ second stipulation
to extend the September 21 deadline was based solely on a
need to accommodate the Rule 30(b)(6) depositions.

The record shows that Davidson could have pursued the
on-the-ground information regarding O’Reilly’s
18 DAVIDSON V. O’REILLY AUTO ENTERS.

implementation of its rest-break policy. O’Reilly agreed to
provide Davidson with a random sampling of contact
information for putative class members, subject to using a
Belaire-West notice to provide notice and an opportunity to
opt-out. Davidson did not follow up on this offer. She
attempts to excuse her failure to do so on the ground that she
would not have had time to interview the employees before
the filing deadline, because it would have required a
“minimum of 30 days to provide putative class members
notice and opportunity to opt-out.” This argument has no
support. There is no federal requirement that parties use a
Belaire-West notice, much less that putative class members
be given 30 days to respond. In fact, district courts have
frequently opted for “a protective order, in lieu of a Belaire-
West notice,” Goro v. Flowers Foods, Inc., No. 17-cv-02580,
2018 WL 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.),
Inc., No. EDCV 15-00369, 2015 WL 5568609, at *5 (C.D.
Cal. Sept. 22, 2015). Davidson could have raised this
alternative with O’Reilly or moved to compel a response to
her discovery requests, but she chose not to.

The dissent concedes that the parties could have used a
protective order in lieu of a Belaire-West notice, but argues
that this alternative would have been “futile in Davidson’s
case” because Davidson could not move to compel discovery,
receive a favorable ruling, and interview putative class
members before the September 21 deadline. Dissent at 29
n.3. This argument is based on the unsupported assumptions
that O’Reilly would have refused to provide discovery absent
a court order; that the district court would not have provided
an expeditious ruling, despite the fact that it ruled on a prior
discovery motion in just four days; and that Davidson would
 DAVIDSON V. O’REILLY AUTO ENTERS. 19

have been required to interview putative class members
before September 21, even though Davidson had until
October 20 to file a supplemental brief. We decline to engage
in these speculations given that Davidson did not even
attempt to pursue on-the-ground information regarding
O’Reilly’s rest-break policy.

Not only does Davidson’s argument that she needed more
time for discovery lack support, she waived it by not raising
it “sufficiently for the trial court to rule on.” In re E.R.
Fegert, Inc., 887 F.2d 955, 957 (9th Cir. 1989). After the
first stipulation, none of Davidson’s filings mentioned a need
to conduct employee interviews or explained how evidence
from these interviews would support class certification;
indeed, she did not mention a desire to interview employees
regarding their rest-break experiences the entire time her
motion for class certification was pending. Nor did she
attempt to raise the issue with the district court after it refused
to certify a rest-break class on the ground that she had not
shown that O’Reilly’s written policy was “consistently
applied to all 21,000 proposed class members.” Only
now—on appeal and after stipulating to the dismissal of her
claims—does Davidson contend that more discovery would
have allowed her to develop an alternative theory of the case
and changed the outcome below. Davidson’s argument
comes too late; we routinely “prevent[] parties from
sandbagging their opponents [and the district court] with new
arguments on appeal,” Dream Palace v. Cty. of Maricopa,
384 F.3d 990, 1005 (9th Cir. 2004), as Davidson attempts to
do here.

Davidson also raises a second argument as to why the
district court abused its discretion by failing to grant an
extension. She claims (and the dissent agrees) that ABS
20 DAVIDSON V. O’REILLY AUTO ENTERS.

Entertainment created a per se rule that denying a motion to
extend a local rule’s 90-day deadline for moving for class
certification is an abuse of discretion. Dissent at 32. We
disagree. Consistent with our fact-intensive review, see
Doninger, 564 F.2d at 1313, ABS considered the specific facts
of the case before it and concluded that the district court’s
inflexible application of the 90-day deadline—in conjunction
with striking the class-certification motion for technical
defects—deprived the plaintiff of a ruling on the merits on its
motion for class certification and was “incompatible with
Federal Rule of Civil Procedure 23,” 908 F.3d at 427.
Despite claiming to “see no principled way to distinguish the
procedural posture of this case from . . . ABS,” Dissent at 32,
the dissent does not acknowledge, much less address, that the
plaintiff in ABS was deprived of a ruling on the merits of its
class-certification motion, 908 F.3d at 427, whereas Davidson
was not. Nor did ABS purport to eliminate district courts’
broad discretion in setting and enforcing deadlines, see Wong,
410 F.3d at 1060; Mammoth Recreations, 975 F.2d at 610; cf.
Skidmore, 952 F.3d at 1077; rather, the district court’s error
was its inflexibility, not its decision to set a deadline. The
district court in this case evinced no such inflexibility and did
not deprive Davidson of fair consideration of her motion.
Accordingly, we decline to conclude that the district court
abused its discretion.8

8
The dissent asserts that this decision “will likely cause confusion for
the local bench and bar.” Dissent at 32. This argument is meritless for
two reasons. First, the Central District of California amended Local Rule
23-3 to eliminate the requirement that a motion for class certification be
filed within 90 days after service of the complaint purporting to
commence a class action. Moreover, even prior to the effective date of the
amendment, judges in the Central District of California recognized that
ABS did not “invalidate or strike [Local Rule 23-3],” Winebarger v. Pa.
Higher Educ. Assistance Agency, 411 F. Supp. 3d 1070, 1084 (C.D. Cal.
 DAVIDSON V. O’REILLY AUTO ENTERS. 21

B

As to the merits, Davidson argues that the district court
erred in refusing to certify a “rest break” class. Again, we
disagree.

“We review a district court’s denial of class certification
for abuse of discretion,” 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 the District Court did not
reach,” Immigrant Assistance Project of Los Angeles Cty.
Fed’n of Labor (AFL-CIO) v. INS, 306 F.3d 842, 856 n.12
(9th Cir. 2002). Parties seeking class certification bear the
burden of satisfying each of the four requirements of
Rule 23(a) of the Federal Rules of Civil Procedure and at
least one of the requirements of Rule 23(b). Wal-Mart Stores,
Inc. v. Dukes, 564 U.S. 338, 345 (2011). “[C]ertification is
proper only if ‘the trial court is satisfied, after a rigorous
analysis, that the prerequisites of Rule 23(a) have been
satisfied.’” Id. at 350–51 (quoting Gen. Tel. Co. of Sw. v.
Falcon, 457 U.S. 147, 161 (1982)).9 “Frequently that
rigorous analysis will entail some overlap with the merits of

2019), and they continued to apply that rule when, in their view, doing so
was consistent with Rule 23 of the Federal Rules of Civil Procedure, see
id.; Rothman v. Optima Advocates, Inc., No. CV 18-8341-R, 2019 WL
2610960, at *1 (C.D. Cal. Apr. 19, 2019).
9
Under Rule 23(a), a party must demonstrate that: “(1) the class is
so numerous that joinder of all members is impracticable; (2) there are
questions of law or fact common to the class; (3) the claims or defenses
of the representative parties are typical of the claims or defenses of the
class; and (4) the representative parties will fairly and adequately protect
the interests of the class.” Fed. R. Civ. P. 23(a).
22 DAVIDSON V. O’REILLY AUTO ENTERS.

the plaintiff’s underlying claim” because “the class
determination generally involves considerations that are
enmeshed in the factual and legal issues comprising the
plaintiff’s cause of action.” Id. (cleaned up) (quoting Falcon,
457 U.S. at 160).

Here, Davidson failed to show that “there are questions of
law or fact common to the class,” one of the requirements of
Rule 23(a). Fed. R. Civ. P. 23(a)(2). The Supreme Court has
held that “[c]ommonality requires the plaintiff to demonstrate
that the class members ‘have suffered the same injury.’”
Dukes, 564 U.S. at 350 (quoting Falcon, 457 U.S. at 157); see
also Ellis v. Costco Wholesale Corp., 657 F.3d 970, 983 (9th
Cir. 2011) (“If there is no evidence that the entire class was
subject to the same [unlawful] practice, there is no question
common to the class.”). Davidson failed to show that
employees suffered the common injury of being deprived of
rest-period premiums to which they were legally entitled.
Even Davidson’s own declaration does not show that she
suffered this injury. Although she states that she worked
shifts between six and eight hours in length 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 Regs. tit.
8, § 11070(12)(A). Her declaration is silent on that point.
Although Davidson argued that O’Reilly’s written rest-break
policy was inconsistent with California law because it omitted
the phrase “or major fraction thereof,” she did not show that
the policy was applied to employees in a way that violated
California law. Because there was no evidence that a class of
employees “suffered the same injury,” Dukes, 564 U.S. at 350
(quoting Falcon, 457 U.S. at 157), Davidson did not establish
commonality.
 DAVIDSON V. O’REILLY AUTO ENTERS. 23

The dissent contends that Davidson did, in fact, come
forward with evidence that the “entire class was subject to the
same [unlawful] practice.” Dissent at 34. Not so. Like
Davidson, the dissent merely identifies documents that do not
contain the phrase “or major faction thereof,” Dissent at 34,
and tacitly concedes that Davidson presented no evidence that
she or any other putative class member was ever denied a rest
break in violation of California law.10 Without any such
evidence, Davidson has not “affirmatively demonstrate[d] . . .
that there are in fact . . . common questions of law or fact.”
Dukes, 564 U.S. at 350. Put another way, the mere existence
of a facially defective written policy—without any evidence
that it was implemented in an unlawful manner—does not
constitute “[s]ignificant proof,” id. at 354, that a class of
employees were subject to an unlawful practice. The
dissent’s reliance on Jimenez v. Allstate Insurance Co., is
misplaced, because in that case the district court found that
the plaintiff “presented sufficient evidence to establish . . .
common questions,” such as “whether class members

10
The dissent states that Davidson “identified evidence produced by
O’Reilly in a related class action concerning the same rest break policy,
including . . . Rule 30(b)(6) testimony confirming that O’Reilly only
provided one rest period per four hours of work.” Dissent at 34–35. Even
assuming that this deposition from an earlier action is admissible here, see
Fed. R. Civ. P. 32(a)(8); Hub v. Sun Valley Co., 682 F.2d 776, 778 (9th
Cir. 1982), the dissent’s statement is misleading. The deponent in that
case testified that, under California law, if an employee works a shift of
four hours, he is entitled to a ten-minute rest break, but if the “shift is less
than three and a half [hours],” the employee is not entitled to a rest break.
This explanation is consistent with California law. See Cal. Code Regs.
tit. 8, § 11070(12)(A). The deponent did not state or suggest that O’Reilly
failed to provide an additional rest break to employees who worked
between six and eight hours. Accordingly, the testimony on which the
dissent relies does not show that O’Reilly violated California law; in fact,
it tends to prove the opposite.
24 DAVIDSON V. O’REILLY AUTO ENTERS.

generally worked overtime without receiving compensation
as a result of Defendant’s unofficial policy of discouraging
reporting of such overtime.” 765 F.3d 1161, 1163–64 (9th
Cir. 2014) (emphasis added). Here, in contrast, the district
court made no such finding; as the district court recognized,
Davidson’s evidence “fail[ed] to implicate any illegal
practice.” Accordingly, we conclude that the district court
did not abuse its discretion in denying Davidson’s motion for
class certification because Davidson did not establish
commonality. See Fed. R. Civ. P. 23(a)(2).

III

Next, we turn to Davidson’s challenge to the district
court’s dismissal of her wage-statement claim. O’Reilly
contends that Davidson waived the right to appeal the
dismissal of this claim. We agree.

We follow the “practice of looking at the language of [a]
consent judgment and other evidence in the record to
determine whether a party may appeal following an order
entered by consent.” Blair v. Shanahan, 38 F.3d 1514, 1521
(9th Cir. 1994) (citing Christian Sci. Reading Room Jointly
Maintained v. City & Cty. of San Francisco, 784 F.2d 1010,
1017 (9th Cir. 1986)). A party relinquishes the right to
appeal a claim by stipulating that judgment should be entered
on the claim “in accordance with” an adverse ruling and
without reserving the right to appeal. Id. at 1518 (citation
omitted); see also Am. Bankers Mortg. Corp. v. Fed. Home
Loan Mortg. Corp., 75 F.3d 1401, 1413 (9th Cir. 1996)
(holding that an appeal of the merits of a claim was improper
because “it was dismissed with prejudice by stipulation of the
parties as part of an agreement”).
 DAVIDSON V. O’REILLY AUTO ENTERS. 25

Here, Davidson relinquished her right to appeal the
dismissal of her wage-statement claim. The district court
dismissed the claim with prejudice. In a stipulation,
Davidson and O’Reilly agreed that the district court should
“dismiss with prejudice and enter judgment on the claims
alleged on an individual basis by [Davidson] in her Second
Amended Complaint,” including the wage-statement claim.
Davidson preserved the right to appeal two decisions: the
district court’s “[1] denial of class certification (Dkt. No. 61)
and [2] ruling on motion for summary judgment (Dkt. No.
78).” But she did not preserve the right to appeal the district
court’s “Order Re: Defendants’ Motion to Dismiss” (Dkt.
No. 56), which disposed of her wage-statement claim. In
sum, Davidson agreed that the district court should enter
judgment on her wage-statement claim in accordance with its
order dismissing the claim, and the right to appeal that order
“was not a term of the agreement.” Blair, 38 F.3d at 1518.
Thus, Davidson relinquished the right to appeal the dismissal
of her wage-statement claim. See id.; Am. Bankers Mortg.
Corp., 75 F.3d at 1413.

Davidson argues that review of the order denying class
certification “necessarily encompasses” review of the
dismissal of her wage-statement claim, because the district
court refused to certify a wage-statement class on the ground
that the wage-statement claim had already been dismissed.
This argument fails. Davidson could not appeal the dismissal
of her wage-statement claim unless she reserved the right to
appeal the order disposing of that claim. See Blair, 38 F.3d
at 1518. Reserving the right to appeal another order that
makes reference to the order dismissing the claim is not
enough to show that the parties agreed that Davidson could
challenge the dismissal of the wage-statement claim.
26 DAVIDSON V. O’REILLY AUTO ENTERS.

Accordingly, we hold that Davidson waived the right to
appeal her wage-statement claim.11

AFFIRMED.

CHRISTEN, Circuit Judge, concurring in part and dissenting
in part:

I agree that Davidson did not preserve her right to appeal
the district court’s order dismissing her wage statement claim.
But I conclude the district court erred when it rigidly adhered
to the unworkable deadline imposed by now-abrogated
Central District of California Local Rule 23-3, thereby
precluding Davidson from obtaining essential pre-
certification discovery. The district court ruled before we
issued ABS Entertainment, Inc. v. CBS Corp., 908 F.3d 405
(9th Cir. 2018), but that precedential opinion holds, at a
minimum, that a district court abuses its discretion when it
adheres to now-abrogated Local Rule 23-3 without

11
Because we do not reach the merits of Davidson’s wage-statement
claim, we express no view as to whether “address,” as used in section
226(a)(8) of the California Labor Code, covers a P.O. box address and
therefore deny Davidson’s Motion for Judicial Notice (ECF No. 12),
which seeks judicial notice of documents related to section 226(a)(8). See
Flores v. Cty. of Los Angeles, 758 F.3d 1154, 1159 n.11 (9th Cir. 2014).

We also decline Davidson’s request to issue an advisory opinion to
clarify the district court’s order granting partial summary judgment on her
PAGA claim. See Aetna Life Ins. Co. of Hartford, Conn. v. Haworth,
300 U.S. 227, 241 (1937) (holding that we may not issue “an opinion
advising what the law would be upon a hypothetical state of facts”).
 DAVIDSON V. O’REILLY AUTO ENTERS. 27

considering the need for pre-certification discovery. I see no
way to fairly distinguish ABS from this case.

Nor do I agree that Davidson’s rest break claim fails for
lack of commonality pursuant to Fed. R. Civ. P. 23(a)(2).
The district court did not reach commonality, but my
colleagues affirm the district court’s order denying class
certification on that basis. In doing so, the majority
improperly conflates the answer to a common question with
the existence of a common contention. Here, Davidson
clearly identified evidence of a common rest break policy,
and that was sufficient to establish commonality at the class
certification stage. Because ABS controls the situation
presented here, and because Davidson satisfied the
commonality requirement of Rule 23(a)(2), I respectfully
dissent.

I

Less than two years ago, our court considered the
previous version of Local Rule 23-3 in ABS, and held that the
Rule’s bright-line 90-day deadline to file a class certification
motion was “incompatible with Federal Rule of Civil
Procedure 23” and “impractica[l].” 908 F.3d at 427. Our
court cautioned that Federal Rule of Civil Procedure 23
demanded a more flexible approach, and that district courts
must carefully consider the need for pre-certification
discovery, rather than adhering to an arbitrary deadline. Id.
(citing Kamm v. Cal. City Dev. Co., 509 F.2d 205, 210 (9th
Cir. 1975)). In ABS, we held that the “district court’s
summary and unexplained denial of the parties’ joint
stipulation to extend the 90-day deadline based on the need
for pre-certification discovery” required remand, with the
28 DAVIDSON V. O’REILLY AUTO ENTERS.

explicit direction for the district court to “reconsider[] . . .
whether pre-certification discovery [was] warranted.” Id.

In the wake of ABS, the Central District of California
amended Local Rule 23-3. The new rule became effective
less than a year ago, on December 1, 2019. When the district
court ruled in this case, it did not have the benefit of ABS, and
the court therefore operated under the now-abrogated version
of Local Rule 23-3. The record leaves no doubt that the
district court adhered to the bright-line 90-day deadline
imposed by that rule without regard for the need for pre-
certification discovery. Under our precedent, this was plainly
an abuse of discretion.

Davidson served her first amended complaint on June 23,
2017, and her initial discovery requests one week later.
O’Reilly declined to treat Davidson’s discovery requests as
operative until a month after that, when the parties had their
Rule 26(f) discovery conference on July 28, 2017. See Fed.
R. Civ. P. 26(d). On August 1, 2017, Davidson served her
initial discovery requests again. The very next day, August 2,
Davidson and O’Reilly filed a joint stipulation to extend the
class certification deadline imposed by operation of Local
Rule 23-3, and specifically cited the need to conduct
interviews of putative class members.1 The joint stipulation
outlined the significant time required for this logistically
intensive process, and expressly identified the 30-day period
required to allow putative class members to opt out after they

1
My colleagues assert that the court set a deadline for filing the
motion for class certification. This is not correct. The deadline here was
imposed solely by operation of Local Rule 23-3.
 DAVIDSON V. O’REILLY AUTO ENTERS. 29

received notice of the action.2 The requested extension (to
which the parties mutually agreed) was 67 days. On
August 4, 2017, the court denied the joint stipulation without
explanation. The district court made no findings that shed
light on its reasons for denying the parties’ joint request for
more time.

O’Reilly served its discovery responses on August 31, the
last possible day, and offered to provide contact information
for a yet-to-be-negotiated random sampling of class members
after the parties negotiated and sent out a Belaire-West notice.
This was an empty promise, as there was already insufficient
time to complete the process associated with interviewing the
class members. Even if the parties had been able to negotiate
and send out a Belaire-West notice the same day O’Reilly
served its discovery responses, the notice requires a waiting
period to allow class members to opt out. After that waiting
period, the parties would have had to negotiate a sample of
employees, assemble a contact list, send out notices, contact
witnesses, interview them, and prepare declarations. Those
steps could not be taken until the parties knew which
members of the putative class would opt out.3 With the

2
O’Reilly consistently asserted that it would “only provide the contact
information for putative class members subject to” the notice and opt-out
procedure described in Belaire-West Landscape Inc. v. Superior Court,
57 Cal. Rptr. 3d 197, 203 (Ct. App. 2007). (Emphasis added).
3
The majority asserts that district courts have frequently opted for a
protective order in lieu of a Belaire-West notice, particularly when there
is not sufficient time to allow for the notice and opt-out period. See, e.g.,
Thomas-Byass v. Michael Kors Stores (Cal.) Inc., No. 15-cv-00369, 2015
WL 5568609, at *5 (C.D. Cal. Sept. 22, 2015). This is true, but entirely
futile in Davidson’s case. With the class certification deadline only three
weeks away, it is manifestly unreasonable to expect that Davidson could
file a motion to compel, receive a favorable ruling on that motion,
30 DAVIDSON V. O’REILLY AUTO ENTERS.

deadline of September 21 for filing a class certification
motion looming just three weeks away, it was impossible for
Davidson to conduct discovery into the putative class
members before filing her motion for class certification.

The parallels between this case and ABS are striking. In
ABS, the parties filed two joint stipulations to extend Local
Rule 23-3’s rigid 90-day deadline. 908 F.3d at 426. After the
district court denied the first stipulation for failure to show
good cause, the parties filed a second stipulation that
specifically cited the need for pre-certification discovery. Id.
The district court denied that stipulation without explanation,
and did “not address the asserted need for pre-certification
discovery.” Id. Our court concluded that the district court
was not permitted to rely on the bright-line deadline in Local
Rule 23-3, and remanded with direction to “reconsider[] . . .
whether pre-certification discovery [was] warranted.” Id.
at 427.

Here, the parties filed a joint stipulation to extend Local
Rule 23-3’s automatic 90-day deadline, specifically citing the
time needed to conduct pre-certification discovery. The
district court denied that stipulation without explanation, and
never addressed the need for pre-certification discovery.
Adherence to our precedent requires, at a minimum, that this
case be remanded for the district court to reconsider whether
pre-certification discovery was warranted.

Contrary to my colleagues’ assertion, Davidson preserved
this issue for appeal. See In re E.R. Fegert, Inc., 887 F.2d

negotiate the form of a protective order, and receive a response to her
discovery requests, all with enough time to schedule and obtain interviews
from class members.
 DAVIDSON V. O’REILLY AUTO ENTERS. 31

955, 957 (9th Cir. 1989). Nothing in the record supports the
supposition that Davidson ever abandoned her request to
interview putative class members. Davidson requested an
extension of the deadline imposed by Local Rule 23-3 so she
could conduct interviews, but the district court denied that
request. By the time Davidson received O’Reilly’s discovery
responses on August 31, she had no choice but to forge ahead
with her other available methods of discovery. What the
majority calls “abandonment” is more typically described as
compliance with a court order. The majority faults Davidson
for not re-filing the same request, but there was no reason to
think that the court would have made a different decision if
Davidson had re-filed her initial request for time to interview
putative class members. After all, the first request was
denied even though O’Reilly had stipulated to it. Davidson
was not required to repeatedly request an extension that the
district court had already denied. See Yamada v. Nobel
Biocare Holding AG, 825 F.3d 536, 543 (9th Cir. 2016)
(“[W]hen a party takes a position and the district court rules
on it, there is no waiver.”); W. Watersheds Project v. U.S.
Dep’t of Interior, 677 F.3d 922, 925 (9th Cir. 2012).

The subsequent events in the record show only that
Davidson faced further difficulties in obtaining the limited
discovery that was available to her. O’Reilly did not make its
Rule 30(b)(6) witnesses available in time for her to include
their testimony in her motion for class certification. Thus, the
parties filed a stipulation to extend the class certification
motion deadline by 14 days, which was again denied without
explanation. The parties also filed a stipulation to file a
supplemental brief after the class certification deadline,
which was granted, but this narrow request was related solely
to Davidson obtaining corporate testimony pursuant to
Rule 30(b)(6). In the stipulation for a 14-day extension, the
32 DAVIDSON V. O’REILLY AUTO ENTERS.

parties specifically recognized that the district court had
already denied their previous stipulation requesting time to
interview class members, and noted that they were seeking a
much shorter extension in order to address the narrow issue
of procuring testimony from O’Reilly’s Rule 30(b)(6)
witnesses. As for interviews of putative class members, that
ship had already sailed.

The district court adhered to the deadline in Local
Rule 23-3 without considering whether Davidson had
sufficient means to conduct pre-certification discovery. This
is precisely the circumstance that required remand in ABS,
with explicit instructions to reconsider whether pre-
certification discovery was warranted. The court’s order
denying pre-certification discovery is particularly concerning
because the court later denied class certification on the
grounds that Davidson failed to advance sufficient evidence
supporting certification. Davidson was faulted for failing to
collect the very evidence the court’s orders prevented her
from gathering.

I can see no principled way to distinguish the procedural
posture of this case from the decision we published in ABS,
and as a three-judge panel, we are bound by our circuit
precedent. See Miller v. Gammie, 335 F.3d 889, 899 (9th Cir.
2003) (en banc). An appellate decision that flip-flops so soon
after ABS was published will likely cause confusion for the
local bench and bar. See Payne v. Tennessee, 501 U.S. 808,
827 (1991) (observing that respect for precedent “promotes
the evenhanded, predictable, and consistent development of
legal principles, fosters reliance on judicial decisions, and
contributes to the actual and perceived integrity of the judicial
process”).
 DAVIDSON V. O’REILLY AUTO ENTERS. 33

II

Because I would hold that the district court abused its
discretion by denying Davidson an opportunity to conduct
pre-certification discovery, I would not reach the question
whether Davidson satisfied the requirements of Fed. R. Civ.
P. 23. But my colleagues do, and by affirming the district
court’s class certification decision on the basis of
commonality, they decide in the first instance an issue the
district court never reached.4 In the majority’s view,
Davidson failed to show that the putative class suffered the
same injury because she did not show that O’Reilly’s written
rest break policy was actually applied to O’Reilly’s
employees. This result is also contrary to controlling
authority.

The Rule 23(a)(2) requirement of commonality demands
that claims “must depend upon a common contention.” Wal-
Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011)
(emphasis added). That “common contention, moreover,
must be 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.” Id. (emphasis added).
“What matters to class certification . . . [is] the capacity of a
classwide proceeding to generate common answers apt to
drive the resolution of the litigation.” Id. (quoting Richard A.
Nagareda, Class Certification in the Age of Aggregate Proof,
84 N.Y.U. L. Rev. 97, 132 (2009)).

4
The district court rested its denial of class certification on
predominance, see Fed. R. Civ. P. 23(b)(3), without addressing any
Rule 23(a) requirements.
34 DAVIDSON V. O’REILLY AUTO ENTERS.

To be sure, Wal-Mart confirmed that the “rigorous
analysis” under Rule 23(a) “sometimes [requires] the court to
probe behind the pleadings before coming to rest on the
certification question.” Id. (quoting Gen. Tel. Co. of Sw. v.
Falcon, 457 U.S. 147, 160 (1982)). And we have recognized
that “a district court must consider the merits” if they overlap
with the requirements of Rule 23(a). Ellis v. Costco
Wholesale Corp., 657 F.3d 970, 981 (9th Cir. 2011). After
all, “if there is no evidence that the entire class was subject to
the same allegedly discriminatory practice, there is no
question common to the class.” Id. at 983 (emphasis added).
But here, Davidson came forward with evidence of precisely
this variety. Thus, this case is clearly distinguishable from
Wal-Mart and Ellis, where claims of gender discrimination
failed to satisfy commonality because the plaintiffs did not
demonstrate the existence of a uniform policy.

Davidson established commonality with the 2010 and
2013 versions of O’Reilly’s store operations manual, and
testimony from O’Reilly’s Rule 30(b)(6) corporate designee,
Mr. David Vanden Bos. Vanden Bos authenticated numerous
O’Reilly documents from the class period concerning
O’Reilly’s rest break policy—e.g., a training agenda and a
memo to managers. None of O’Reilly’s documents included
the “major fraction thereof” language required by California
law. See Brinker Rest. Corp. v. Superior Court, 273 P.3d
513, 528–29 (Cal. 2012); Cal. Code Regs. tit. 8,
§ 11070(12)(A). Davidson also identified evidence produced
by O’Reilly in a related class action concerning the same rest
break policy, including two internal O’Reilly policy
documents indicating the same non-compliant rest break
policy, and Rule 30(b)(6) testimony confirming that O’Reilly
 DAVIDSON V. O’REILLY AUTO ENTERS. 35

only provided one rest period for every four hours of work.5
The majority supposes that the Rule 30(b)(6) deponent’s
testimony suggests O’Reilly followed a lawful rest break
practice. But it is not clear this is so. The written policies
identified by Davidson are not consistent with California law,
and the deponent’s testimony is ambiguous about the practice
that was actually followed.

Plainly, Davidson demonstrated the existence of a
uniform policy, which if implemented would cause class
members to suffer the same injury. The “rigorous analysis”
required by Wal-Mart does not allow for “an in-depth
examination of the underlying merits” of the case—for
example, “whether [an employer] was in fact discriminating
against women,” Ellis, 657 F.3d at 983 n.8, or whether
O’Reilly was in fact depriving its employees of legally-
mandated rest breaks. The purpose of class certification is
“not to adjudicate the case,” but merely “to select the method
best suited to adjudication of the controversy fairly and
efficiently.” Amgen Inc. v. Conn. Ret. Plans & Tr. Funds,

5
Davidson requested judicial notice of these materials because they
had been filed on the public docket in related litigation involving O’Reilly.
See Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th
Cir. 2006) (court filings are properly the subject of judicial notice). The
district court refused to consider this evidence, ruling that Davidson
improperly requested judicial notice of findings of fact from another case.
But Davidson did not seek judicial notice of any findings. She sought
notice of the policies O’Reilly introduced in the parallel litigation.
Whether the cited evidence in fact reflected O’Reilly’s practice is subject
to reasonable dispute, and thus not the proper subject of judicial notice.
But the fact that these written policies exist and were produced by
O’Reilly cannot be contested. Lee v. City of Los Angeles, 250 F.3d 668,
690 (9th Cir. 2001). The court was free to take judicial notice of the
existence of O’Reilly’s policy documents, just not the veracity of any
disputed facts contained therein. See id.
36 DAVIDSON V. O’REILLY AUTO ENTERS.

568 U.S. 455, 460 (2013) (alteration and quotation marks
omitted); see also Stockwell v. City & Cty. of San Francisco,
749 F.3d 1107, 1112 (9th Cir. 2014) (“[D]emonstrating
commonality does not require proof that the putative class
will prevail on whatever common questions it identifies.”);
Ellis, 657 F.3d at 983 n.8 (observing that “whether class
members could actually prevail on the merits of their claims”
is not the proper inquiry). And the identification of a “a fatal
similarity—[an alleged] failure of proof as to an element of
the plaintiff’s claim”—is “inappropriate at the certification
stage.” Alcantar 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 point. There, the
plaintiffs raised an off-the-clock work claim that required
proof that: (1) plaintiffs performed work for which they did
not receive compensation; (2) defendants knew or should
have known that plaintiffs did so; and (3) defendants stood by
idly. Id. at 1165. As to the first question, the plaintiffs
argued that class members had worked unpaid overtime as a
result of the defendant’s unofficial policy of discouraging
reporting of such overtime. Id. The defendant argued its
formal policies were lawful, “and that the alleged informal
‘policy-to-violate-the-policy’ d[id] not exist.” Id. at 1165 n.5.
We concluded that “[p]roving at trial whether such informal
or unofficial policies existed will drive resolution of [the first
question].” Id. at 1166. As to defendant’s argument
concerning the existence of the policy, we observed that
“[t]his argument is appropriately made at trial or at the
summary judgment stage,” because “[w]hether any of these
common questions are ultimately resolved in favor of either
side is immaterial at the class certification stage.” Id. at 1165
n.5. After all, “if a defendant has a strong argument against
 DAVIDSON V. O’REILLY AUTO ENTERS. 37

classwide liability, it ‘should welcome class certification’ as
that allows it the opportunity to resolve claims of all class
members at once.” Id. (quoting In re Whirlpool Corp. Front-
Loading Washer Prods. Liab. Litig., 722 F.3d 838, 857 (6th
Cir. 2013)); see also Ridgeway v. Walmart Inc., 946 F.3d
1066, 1078–82 (9th Cir. 2020) (observing it was jury’s role
“to decide whether Wal-Mart implemented the written
policies” concerning control over employees).

Here, Davidson argued O’Reilly had a policy of
unlawfully denying class members legally-mandated rest
breaks. O’Reilly did not deny that it had a uniform rest break
policy. Nor did it insist that the resolution of Davidson’s
claims would require numerous individualized
determinations. See, e.g., Wal-Mart, 564 U.S. at 355
(concluding plaintiffs failed to allege a uniform employment
practice because employment decisions were left to discretion
of local supervisors). O’Reilly instead argued that the
unlawful policy identified by Davidson was not in fact
implemented, and that its actual rest break policy—as applied
throughout California—was lawful. But whether or not the
unlawful policy was actually implemented is precisely the
sort of question that satisfies commonality. Jimenez,
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 defendant “had a ‘common policy or practice of
withholding information’” was a common question that
would “help to drive resolution of the litigation for all class
members”).

The district court’s conclusion on predominance, though
not addressed by the majority, suffered from a similar
infirmity. Rule 23(b)(3) “asks the court to make a global
determination of whether common questions prevail over
38 DAVIDSON V. O’REILLY AUTO ENTERS.

individualized ones.” Torres, 835 F.3d at 1134. This
“requires a showing that questions common to the class
predominate, not that those questions will be answered, on
the merits, in favor of the class.” Amgen, 568 U.S. at 459.
Because generalized evidence of the sort advanced by
Davidson will provide an answer to the question whether the
challenged 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.

For these reasons, I respectfully dissent.