Juan Perez, on behalf of himself and those similarly situated v. ALTA-DENA CERTIFIED DAIRY, LLC, a Delaware Limited Liability Company

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN PEREZ, on behalf of himself and
those similarly situated,
Plaintiff-Appellant,
v.
ALTA-DENA CERTIFIED DAIRY, LLC, a
Delaware Limited Liability Company,
Defendant-Appellee.
Nos. 17-55082
17-55318
D.C. No.
2:13-cv-07741-R-FFM
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued and Submitted June 5, 2018
Pasadena, California
Before: FERNANDEZ and CHRISTEN, Circuit Judges, and BENNETT,** District
Judge.
Appellant Juan Perez was a delivery driver for Appellee Alta-Dena Certified
Dairy, L.L.C., from approximately 2005 to 2013. Perez alleges that, from 2008 to
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Mark W. Bennett, United States District Judge for the
Northern District of Iowa, sitting by designation.
FILED
JUL 9 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2011, Alta-Dena violated state wage-and-hour laws by subjecting him and the
members of a putative class to a route-restriction policy/practice, a non-compliant
meal and rest break policy/practice, and a policy/practice of “auto-deducting” for
meal breaks whether or not drivers took those breaks. The district court denied
Perez’s motion to certify a class and later granted summary judgment on his
individual claims. Perez appeals both rulings.
1. We review a district court’s class certification decision for abuse of
discretion. Sali v. Corona Reg’l Med. Ctr., 889 F.3d 623, 629 (9th Cir. 2018). We
conclude that the district court abused its discretion in denying class certification
under Rule 23(b)(3) for lack of “predominance” of common class issues over
individual ones. Id. at 635 (explaining the “predominance” requirement).
As to Perez’s meal break timing theory, at least three common issues
predominate over individual issues: (1) whether Alta-Dena’s written policy was
unlawful on its face; (2) whether supervisors permitted timely breaks; and (3)
whether Alta Dena’s route scheduling made timely breaks unavailable in practice.
The district court erred by focusing on the drivers’ actions and preferences,
because the critical questions turn on what Alta-Dena did or did not do.
The same is true of Perez’s route restriction theory. Under this theory, two
key questions are common to the claims of all putative class members: (1) what, if
anything, did Alta Dena’s route restriction policy require of the drivers; and (2) did

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the policy vitiate Alta-Dena’s ostensible relinquishment of control during meal
times? See Brinker Rest. Corp. v. Super. Ct., 273 P.3d 513, 536–37 (Cal. 2012).
The district court’s focus on individual questions, such as whether some drivers
preferred to eat in their trucks, was misplaced; if Alta-Dena never sufficiently
relinquished control of its drivers, the drivers’ individual preferences regarding
things like where they ate lunch, and why, would be ancillary issues.
Perez’s auto-deduction theory is derivative of the route restriction theory, as
the district court correctly recognized. Because we conclude that the route
restriction theory satisfies Rule 23(b)(3)’s predominance requirement, we conclude
that the auto-deduction theory does also. Although individual damages
calculations will invariably be required, they do not defeat a finding of
predominance. Leyva v. Medline Indus. Inc., 716 F.3d 510, 513–14 (9th Cir.
2013).
In sum, the district court erred with respect to Perez’s meal break timing
theory and his route restriction theory because the district court focused on largely
irrelevant factors to the exclusion of the critical ones. Sali, 889 F.3d at 629, 637-
38. The district court also erred with respect to Perez’s derivative auto-deduction
theory. We express no view on whether any of Perez’s proposed subclasses
ultimately should be certified; we hold only that the district erred in its assessment
of predominance.

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2. We review de novo a district court’s grant of summary judgment.
Sierra Med. Servs. All. v. Kent, 883 F.3d 1216, 1222 (9th Cir. 2018). We agree
with the district court that Perez did not present a calculation of his damages.1
Contrary to Perez’s contention, calculation of his damages from “raw” time and
pay records required more than “simple math.” We cannot assume that time
records showing no breaks meant that Perez took no breaks, where the undisputed
evidence was that the XATA system did not always permit drivers to record breaks
and drivers sometimes forgot to record them. Summary judgment was appropriate
on Perez’s individual claims. Sierra Med. Servs. All., 883 F.3d at 1222 (summary
judgment standard).
3. The district court did not have an opportunity to address whether the
putative class action can proceed after summary judgment against Perez, and we
decline Alta-Dena’s invitation to reach the question in the first instance. Alta-
Dena may renew its argument on remand.
4. Perez argues that, if this case is remanded, it should be reassigned to a
different district judge. We disagree. This is not a case involving such “unusual
circumstances” or the need to “preserve the interests of justice” by reassigning it to
a different district judge on remand. United States v. Wells, 879 F.3d 900, 938 (9th
1 We also agree that the district court did not abuse its discretion in
denying Perez’s request for leave to file a sur-reply. Preminger v. Peake, 552 F.3d
757, 769 n.11 (9th Cir. 2008) (standard of review).

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Cir. 2018). None of the district judge’s decisions are so unexplainable as to
suggest actual bias or seriously call into question the appearance of justice. Id.
Furthermore, reassignment would entail waste and duplication out of proportion to
any gain in preserving the appearance of fairness. Id.
The parties shall bear their own costs on appeal.
REVERSED IN PART, AFFIRMED IN PART, AND REMANDED.

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