656 Fed.Appx. 835 (9th Cir. 2016), 14-55944, Wright v. Renzenberger, Inc.

• Citation: 656 Fed.Appx. 835
• Party Name: RODERICK WRIGHT; FERNANDO OLIVAREZ; MARCUS HAYNES, Jr., On Behalf of Themselves and Others Similarly Situated, Plaintiffs - Appellants, v. RENZENBERGER, INC., a Kansas corporation, Defendant - Appellee
• Attorney: For RODERICK WRIGHT, FERNANDO OLIVAREZ, MARCUS HAYNES, Jr., On Behalf of Themselves and Others Similarly Situated, Plaintiff - Appellants: Kye D. Pawlenko, Matthew Bryan Hayes, Esquire, Attorney, Hayes Pawlenko LLP, Pasadena, CA. For RENZENBERGER, INC., a Kansas corporation, Defendant - Appellee:...
• Judge Panel: Before: FISHER, M. SMITH, and NGUYEN, Circuit Judges.
• Case Date: July 21, 2016
• Court: United States Courts of Appeals, U.S. Court of Appeals — Ninth Circuit

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656 Fed.Appx. 835 (9th Cir. 2016)

RODERICK WRIGHT; FERNANDO OLIVAREZ; MARCUS HAYNES, Jr., On Behalf of Themselves and Others Similarly Situated, Plaintiffs - Appellants,

v.

RENZENBERGER, INC., a Kansas corporation, Defendant - Appellee

No. 14-55944

United States Court of Appeals, Ninth Circuit

July 21, 2016

Argued and Submitted, Pasadena, California May 5, 2016.

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 32.1)

Appeal from the United States District Court for the Central District of California. D.C. No. 2:13-cv-06642-GAFAGR. Gary A. Feess, District Judge, Presiding.

AFFIRMED in part, REVERSED in part, and VACATED in part.

For RODERICK WRIGHT, FERNANDO OLIVAREZ, MARCUS HAYNES, Jr., On Behalf of Themselves and Others Similarly Situated, Plaintiff - Appellants: Kye D. Pawlenko, Matthew Bryan Hayes, Esquire, Attorney, Hayes Pawlenko LLP, Pasadena, CA.

For RENZENBERGER, INC., a Kansas corporation, Defendant - Appellee: Leah Suzanne Strickland, Attorney, William V. Whelan, Esquire, Attorney, Solomon Ward Seidenwurm & Smith, LLP, San Diego, CA.

Before: FISHER, M. SMITH, and NGUYEN, Circuit Judges.

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MEMORANDUM^[*]

Plaintiffs-Appellants Roderick Wright, Fernando Olivarez, and Marcus Haynes, Jr. appeal from the district court's denial

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of their motion for class certification. We affirm in part, reverse in part, vacate in part, and remand for further proceedings.

Defendant-Appellee Renzenberger, Inc. (Renzenberger) employed Appellants as drivers to transport railroad crews between and within railroad yards. In the operative complaint, Appellants alleged that Renzenberger failed to comply with laws concerning rest breaks and compensation. Appellants moved for certification of five classes. The district court granted certification as to the one class not opposed by Defendant, the Separate Pay Class, but denied certification as to the other four classes. We do not disturb the ruling concerning the Separate Pay Class, and address the remaining proposed classes in turn. At the outset, we note a district court can resolve merits questions at the class certification stage " only to the extent . . . that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied." Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 133 S.Ct. 1184, 1195, 185 L.Ed.2d 308 (2013). The district court erred in determining merits issues best left for a motion to dismiss or motion for summary judgment.

I. The Rest Break Class

The proposed Rest Break Class alleged Renzenberger's rest break policies failed to " authorize and permit" rest breaks as required under California law. The district court denied class certification for lack of commonality, reasoning that " [b]ecause Renzenberger's policies plainly comply with [California law], Plaintiffs have not demonstrated the possibility of any common injury or any common resolution."

This was an abuse of discretion. Commonality turns on whether class treatment will " 'generate common answers apt to drive the resolution of the litigation.'" Ellis v. Costco Wholesale Corp., 657 F.3d 970, 981 (9th Cir. 2011) (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011)). Whether Renzenberger's policies complied with the law was a common question, whatever its merits. See

Stockwell v. City & County of San Francisco, 749 F.3d 1107, 1113-14 (9th Cir. 2014) (" [T]he district court erred in denying class certification because of its legal error of evaluating merits questions, rather than focusing on whether the questions presented, whether meritorious or not, were common to the members of the putative class." ).

However, " Rule 23(b)(3) requires a showing that questions common to the class predominate." Amgen, 133 S.Ct. at 1191 (emphasis omitted). And here, the common question of the policies' legality does not predominate. Renzenberger's rest break policy in its July 10, 2011 handbook stated: " Drivers are provided one paid 10-minute rest break for every four hours worked. Drivers should aim to take their rest breaks during the middle of each four hour period. Waiting time and time in between yard moves will be counted as rest breaks." Renzenberger's rest break policy in its January 2, 2014 handbook stated: " Drivers are provided one paid and uninterrupted 10-minute rest break for every four hours worked, or major fraction of four hours. . . . Drivers should aim to take their rest breaks during the middle of each four hour period. Rest breaks should be taken during waiting time and time in between yard moves."

Appellants argue that these policies fail to provide the statutorily required rest breaks because " Renzenberger does not guarantee any minimum amount of 'waiting time' or 'time in between yard moves' and makes no effort to know in advance whether 'waiting time' or 'time in between

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yard moves' will actually occur, when it will occur, or how long it will last." Because the policies on their face permit rest breaks, Appellants can establish liability only by showing that, by operation of the policies, they were not permitted to take ten consecutive minutes of break per four hours.

But as Appellants conceded below, " [t]he amount of 'waiting time' and 'time in between yard moves' varies each day depending on numerous variables, such as the number of drivers, the number of trains, how far a driver has to travel, the number of vans available, whether there was a train derailment, and traffic." Mem. P. & A. in Supp. of Pls.' Mot. for Class Certification at 6 (Mar. 10, 2014) (ECF 26). Unlike the policy at issue in Brinker Restaurant Corp. v. Superior Court, 53 Cal.4th 1004, 139 Cal.Rptr.3d 315, 273 P.3d 513, 531 (Cal. 2012), Renzenberger's policies do not uniformly deprive employees of rest breaks; the effect of the policies depends instead on their interaction with these variables, which differ for each class member. Because these individualized determinations predominate over the common questions, we affirm the denial of certification of the Rest Break Class.

II. The Pay Averaging Class

The proposed Pay Averaging Class challenged the legality of a policy that ensured an employee's average hourly rate for the workweek was at or above minimum wage, instead of ensuring that each hour was separately compensated at no less than minimum wage. Renzenberger's January 2012 road payroll policy provided:

The Fair Labor Standards Act requires employers to compensate non-exempt employees at a minimum hourly wage. The unit of measure used...