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 ...
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