United States v. 2020-11-18 | 19-56228 | CINDY CASTILLO V. BANK OF AMERICA, NA | precedential | opinion |

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

CINDY R. CASTILLO, individually and
on behalf of all others similarly
situated,
Plaintiff-Appellant,

v.

B
ANK OF AMERICA, NA, a North
Carolina Corporation; DOES, 1–10,
inclusive,
Defendants-Appellees.
No. 19-56228

D.C. No.
8:17-cv-00580-
DOC-KES

OPINION

Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding

Argued and Submitted September 3, 2020
Pasadena, California

Filed November 18, 2020

Before: Ronald M. Gould and Sandra S. Ikuta, Circuit
Judges, and David A. Ezra,
*
District Judge.

Opinion by Judge Gould

*
The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.

2 CASTILLO V. BANK OF AMERICA

SUMMARY
**

Class Certification

The panel affirmed the district court’s order denying a
plaintiff’s motion to certify a class regarding her overtime-
wage claim under California law against Bank of America,
N.A.

The plaintiff sought to certify a class of hourly-paid, non-
managerial call center workers. The panel held that she
established the requirements of commonality and typicality
under Fed. R. Civ. P. 23(a)(2)–(3), but not predominance
under Rule 23(b)(3) because the challenged Bank of
America policy either did not apply or did not cause injury
to many employees.

COUNSEL

Mitchell J. Murray (argued), James R. Hawkins, Gregory
Mauro, and Christina M. Lucio, James Hawkins APLC,
Irvine, California, for Plaintiff-Appellant.

Kathryn M. Barber (argued) and Matthew A. Fitzgerald,
McGuireWoods LLP, Richmond, Virginia; Matthew C.
Kane, McGuireWoods LLP, Los Angeles, California; Sylvia
J. Kim, McGuireWoods LLP, San Francisco, California; for
Defendants-Appellees.

**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

CASTILLO V. BANK OF AMERICA 3

OPINION
GOULD, Circuit Judge:
This appeal arises from a dispute regarding the proper
method of calculating overtime wages under California law.
Plaintiff Castillo sought to represent a class of more than
5,000 hourly-paid, non-managerial call center workers in
California for numerous wage and hour violations allegedly
committed by Defendant Bank of America, National
Association (“BOA”). As relevant to this appeal, Castillo
sought to certify a class regarding her overtime-wage claim.
BOA maintains that Castillo did not satisfy the mandatory
requirements of commonality and typicality, under Fed. R.
Civ. P. (FRCP) 23(a)(2)–(3), or the requirement, mandatory
in the circumstances here where it is the only basis asserted
for satisfying FRCP 23(b), of predominance of common
issues.
1
FRCP 23(b)(3).
In response to Castillo’s Motion for Class Certification,
the district court found that Castillo had satisfied the
requirements of commonality and typicality under FRCP
23(a)(2)–(3), but not predominance under FRCP 23(b)(3).
This appeal followed.
We hold that: (1) Castillo has established commonality;
(2) Castillo has established the typicality of her claim; but
that (3) Castillo has not established predominance, which
was essential to Castillo’s class action claim, because the
challenged BOA policy either did not apply or did not cause

1
See FRCP 23 and Zinser v. Accufix Rsch. Inst., 253 F.3d 1180 (9th
Cir. 2001).

4 CASTILLO V. BANK OF AMERICA

an injury to many employees.
2
Accordingly, we affirm the
district court’s denial of class certification.

2
Rule 23(b) provides that a class action can be maintained if one of
its elements is present, and the only 23(b) factor asserted by Castillo is
FRCP 23(b)(3), common issue predominance. The full text of Rule
23(b) reads:
(b) TYPES OF CLASS ACTIONS. A class action may
be maintained if Rule 23(a) is satisfied and if:
(1) prosecuting separate actions by or against
individual class members would create a risk of:
(A) inconsistent or varying adjudications with respect
to individual class members that would establish
incompatible standards of conduct for the party
opposing the class;
or
(B) adjudications with respect to individual class
members that, as a practical matter, would be
dispositive of the interests of the other members not
parties to the individual adjudications or would
substantially impair or impede their ability to protect
their interests;
(2) the party opposing the class has acted or refused to
act on grounds that apply generally to the class, so that
final injunctive relief or corresponding declaratory
relief is appropriate respecting the class as a whole; or
(3) the court finds that the questions of law or fact
common to class members predominate over any
questions affecting only individual members, and that
a class action is superior to other available methods for

CASTILLO V. BANK OF AMERICA 5

I
This case arises from a dispute regarding the proper
method of calculating overtime wages under California law.
Under California law, employers must pay non-exempt
employees who work overtime a premium on top of their
“regular rate of pay.” Cal. Labor Code § 510(a); see also
Alvarado v. Dart Container Corp. of Cal., 411 P.3d 528, 533
(Cal. 2018).
Castillo worked as an hourly employee at a BOA call
center until September 2016. BOA operates thirteen call
centers in California where, from March 2013 to September
2018, BOA employed 5,031 employees to handle calls
regarding banking and investment services offered by BOA.
During this period, employees could receive a flat-sum,
nondiscretionary incentive bonus ranging from $350 to
$2,100 per month. If employees worked overtime and
received a bonus during the same period, BOA would apply
the bonus to the employee’s straight pay to calculate the

fairly and efficiently adjudicating the controversy. The
matters pertinent to these findings include:
(A) the class members’ interests in individually
controlling the prosecution or defense of separate
actions;
(B) the extent and nature of any litigation concerning
the controversy already begun by or against class
members;
(C) the desirability or undesirability of concentrating
the litigation of the claims in the particular forum; and
(D) the likely difficulties in managing a class action.

6 CASTILLO V. BANK OF AMERICA

employee’s regular rate of pay for purposes of overtime
premiums.
BOA’s methods of payment can be divided into two
separate periods. These periods are distinguished by both
the time period and the way bonuses were calculated and
paid.
During the first period, BOA “divided the incentive pay
amount by the number of total hours worked in the previous
two pay periods, even if those two pay periods did not
coincide with the month for which the incentive pay
compensated, then multiplied that amount by the overtime
hours worked in those pay periods.”
For the second period, BOA used another method.
Under this second method, BOA “divide[d] the month’s
incentive pay by weekdays in the month regardless of how
many days an employee actually worked that month.” BOA
then “multiplie[d] that number by five, representing the days
worked in a week, regardless of how many days an employee
actually worked.” BOA then divided “that number by total
hours worked instead of only non-overtime hours worked.”
Finally, BOA would then divide “that number by two to get
the new overtime ‘half rate,’ which it multiplied by the
overtime hours worked to retroactively pay the underpaid
overtime amount.”
In March 2017, Castillo filed a Class Action Complaint
against Defendant-Appellee BOA. After several
amendments and motions to dismiss, including one that was
granted in part and denied in part, Castillo filed her Fifth
Amended Complaint. Castillo alleged three claims for
(1) “failure to pay minimum wages,” (2) “failure to
accurately pay overtime wages,” and (3) “failure to provide
second meal periods.” Castillo also made several additional

CASTILLO V. BANK OF AMERICA 7

claims (the Fifth, Sixth, and Seventh Causes of Action) that
were derivative of the three substantive claims.
Castillo moved for class certification in May 2019. In
opposition to class certification, BOA submitted several
evidentiary objections and a motion to strike certain
evidence, which the district court denied, stating that it
would “not engage with such frivolous objections at the class
certification stage.” However, the district court refused to
consider a supplemental expert report filed with Plaintiff’s
Reply to Defendant’s Opposition, on the basis of which
Castillo argued that she was undercompensated by $14.99.
The district court reasoned that the belated proffer of new
opinions and data were improper.
The district court denied class certification. For both the
first and third claims—the minimum wage claim and the
meal break claim—the district court found no commonality,
no typicality, and no predominance. On the second claim—
the overtime-wage claim—the district court found
commonality and typicality, but found that there was not
predominance.
Challenging only the denial of the second claim—the
overtime-wage claim—and any claims derivative of it,
Castillo timely appealed. FRCP 23(f). The district court had
jurisdiction under 28 U.S.C. §§ 1331, 1332(d)(2), & 1367,
and we have jurisdiction under 28 U.S.C. § 1292(e).
II
“A district court’s class certification ruling is reviewed
for abuse of discretion.” Pulaski & Middleman, LLC v.
Google, Inc., 802 F.3d 979, 984 (9th Cir. 2015); see also
Zinser, 253 F.3d at 1186. A district court’s decision
certifying a class or denying class certification will be

8 CASTILLO V. BANK OF AMERICA

upheld unless it “identified [or] applied the [in]correct legal
rule” or its “resolution of the motion resulted from a factual
finding that was illogical, implausible, or without support in
inferences that may be drawn from the facts in the record.”
United States v. Hinkson, 585 F.3d 1247, 1263 (9th Cir.
2009) (en banc). Moreover, a district court’s class
certification decision may be affirmed on any ground
supported by the record. Hanon v. Dataproducts Corp.,
976 F.2d 497, 508 (9th Cir. 1992).
III
A. Commonality
“The requirement of ‘commonality’ means that the class
members’ claims ‘must depend upon a common contention’
and that the ‘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.’” Vaquero v. Ashley Furniture Indus.,
Inc. 824 F.3d 1150, 1153 (9th Cir. 2016) (quoting Wal-Mart
Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011)). Even a
single common question of law or fact that resolves a central
issue will be sufficient to satisfy this mandatory requirement
for all class actions. Id. at 359.
In its response, BOA argues that the district court
improperly found commonality, and that the district court’s
decision not to certify the class should be affirmed on that
alternative ground. BOA contends that there are no common
questions because the proposed class’s claim involves two
separate pay policies, over two different time periods, which
raise separate questions of liability.

CASTILLO V. BANK OF AMERICA 9

But Castillo counters that “each policy applied uniformly
to all putative class members employed during the period in
which the policy was in effect.” So, all putative class
members were subject to one of the two policies for
calculating overtime wages during the two periods that they
were in effect. The alleged defect, that “BOA continued to
use all hours worked in the divisor,” was “equally applicable
to all Class Members.” Castillo argues that the differences
between the policies do not defeat commonality, and she
relies on the district court’s holding that BOA had not
provided evidence that its calculation of overtime wages
“was not universal throughout the California locations.” In
conclusion, Castillo argues that the question of whether or
not BOA’s policy for calculating overtime wages using total
hours worked in the divisor is lawful under California law
presents a purely legal question that is clearly capable of
class wide resolution.
We agree with Castillo’s interpretation. Here, Castillo’s
overtime-wage claim presents at least one common question
central to her claim: whether BOA’s policy of calculating
overtime wages by using total hours worked in the divisor is
lawful.
Although there are differences between the two policy
periods, a common question remains regarding the
lawfulness of BOA’s using total hours worked in the divisor.
It is true that BOA may have used different inputs, and the
policies may have applied differently because of different
employees’ various fact situations during two different time
periods. But a common legal question exists central to
determining liability.
We agree with the district court’s conclusion that “[a]t
least as to commonality, Plaintiff has shown that whether

10 CASTILLO V. BANK OF AMERICA

Defendant’s formula was unlawful is a common question
that can be answered on a classwide basis.”
B. Typicality
“The typicality prerequisite of Rule 23(a) is fulfilled if
‘the claims or defenses of the representative parties are
typical of the claims or defenses of the class.’” Hanlon v.
Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998)
(quoting FRCP 23(a)(3)), overruled on other grounds by
Dukes, 564 U.S. at 338). “Under the rule’s permissive
standards, representative claims are ‘typical’ if they are
reasonably co-extensive with those of absent class members;
they need not be substantially identical.” Id.
In its decision, the district court decided that Castillo’s
claims were typical of the class. The district court held that
the submission of the expert report was improper. But the
court held that “regardless of the improper filing, Plaintiff
had already established standing to assert this claim.” The
district court noted that Castillo had included evidence in her
motion regarding her typicality in this regard, “i.e., that
Plaintiff received a bonus and worked overtime in the same
pay periods.” The court held that this demonstrated
“[p]laintiff was subject to Defendant’s policies regarding its
inclusion of bonuses in the regular rate of pay for purposes
of calculating overtime and suffered injury therefrom.”
In its response, BOA argues that Castillo’s claims were
not typical of the proposed class. BOA also argues that
Castillo did not properly provide evidence of typicality,
including that Castillo improperly filed a Supplemental
Expert Report. Finally, BOA argues that even if Castillo had
shown she had experienced an injury under the 2016 policy,
she did not suffer any injury under the 2017 policy.

CASTILLO V. BANK OF AMERICA 11

We conclude that the district court properly found that
Castillo established typicality. The district court excluded
the improperly submitted Supplemental Expert Report and
did not consider it for purposes of its decision. Instead, the
district court found that Castillo submitted evidence showing
typicality among her claims and the claims of other class
members. Castillo has shown that she “was subject to
Defendant’s policies regarding its inclusion of bonuses in the
regular rate of pay for purposes of calculating overtime and
suffered injury therefrom.”
Although there are differences between the two policies,
the evidence demonstrated that Castillo was subject to
BOA’s policies and suffered injuries. Castillo’s claims arise
from the same allegedly unlawful policy of using total hours
worked in the divisor. For this reason, Castillo’s claims are
“reasonably co-extensive” with the putative class members,
and so Castillo has satisfied the requirement of typicality.
C. Predominance
“Under Rule 23(b)(3), a plaintiff must demonstrate the
superiority of maintaining a class action and show ‘that the
questions of law or fact common to class members
predominate over any questions affecting only individual
members.’” Mazza v. Am. Honda Motor Co., Inc., 666 F.3d
581, 596 (9th Cir. 2012) (quoting FRCP 23(b)(3)). “[T]he
focus of the predominance inquiry” is whether “a proposed
class is ‘sufficiently cohesive to warrant adjudication by
representation.’” Amgen Inc. v. Conn. Ret. Plans & Tr.
Funds, 568 U.S. 455, 469 (2013) (quoting Amchem Prods.,
Inc. v. Windsor, 521 U.S. 591, 623 (1997)). But the rule
“does not require a plaintiff seeking class certification to
prove that each element of their claim is susceptible to
classwide proof,” so long as one or more common questions
predominate. Id. (alterations and internal quotations marks

12 CASTILLO V. BANK OF AMERICA

omitted); see also Tyson Foods, Inc. v. Bouaphakeo, 136 S.
Ct. 1036, 1045 (2016).
Individual differences in calculating the amount of
damages will not defeat class certification where common
issues otherwise predominate. Vaquero, 824 F.3d at 1155.
However, “[i]f the plaintiffs cannot prove that damages
resulted from the defendant’s conduct, then the plaintiffs
cannot establish predominance.” Id. at 1154. This general
rule goes to the crux of the issue on appeal here.
To ensure that common questions predominate over
individual ones, the court must “ensure that the class is not
defined so broadly as to include a great number of members
who for some reason could not have been harmed by the
defendant’s allegedly unlawful conduct.” Torres v. Mercer
Canyons Inc., 835 F.3d 1125, 1138 (9th Cir. 2016) (citation
omitted). If many class members have no claim whatsoever
because they “were never exposed to the challenged conduct
to begin with,” the class does not satisfy Rule 23(b)(3). Id.
at 1136; see also Moore v. Apple Inc., 309 F.R.D. 532, 542
(N.D. Cal. 2015) (“The inclusion of class members whom,
by definition, could not have been injured is . . . indicative
of the individualized inquiries that would be necessary to
determine whether a class member has suffered any injury in
the first place.”).
BOA contends that Castillo has not established
predominance because she has sought to certify a class that
would require highly individualized inquiries to determine
whether class members have suffered an injury in the first
place. Although Castillo contends that Alvarado, 411 P.3d
at 528 establishes liability, making all of the alleged
individualized inquiries mere questions of damages (and not
liability), BOA has persuasively argued that Castillo has not
properly established predominance. Those employees who

CASTILLO V. BANK OF AMERICA 13

did not work overtime or did not earn a bonus during the
same period in 2016 or 2017 can have no claim for
compensation based on an erroneous method of overtime-
rate calculation.
Castillo and BOA disagree over the importance of
Alvarado. BOA notes, correctly, that Alvarado says nothing
about class certification or predominance (under Rule 23 or
otherwise). But Alvarado is not irrelevant. Rather, Alvarado
could be an important part of Castillo’s case for proving
BOA’s liability. Alvarado focuses on the proper way to
calculate the per-hour value of a flat sum bonus earned by
weekend workers. Alvarado, 411 P.3d at 537; see also id.
at 539 n.6 (“We limit our decision to flat sum bonuses
comparable to the attendance bonus at issue here.”).
Alvarado arose from allegations by employees that Dart was
improperly calculating “attendance bonuses.” Id. at 530. As
part of the challenged calculation, Dart would use total hours
(including overtime hours) in the divisor. Id. at 543.
In its opinion, the Supreme Court of California held that
this method was improper under California Law. Id. The
Supreme Court of California held that the proper method of
calculating these bonuses under California law is to use only
non-overtime hours in the divisor. Id. at 544.
But while Alvarado could bear on the lawfulness of
BOA’s use of total hours worked in the divisor of its
overtime formulas, it is not sufficient to establish
predominance where a large portion of the proposed class
either (1) did not work overtime or did not receive a bonus
in the same period, and thus could not have been exposed to
BOA’s overtime formulas in the first place; or (2) if they
were exposed to a formula, they were not underpaid and thus
were not injured. Alvarado does not allow Castillo to
demonstrate that the court could decide, on a classwide

14 CASTILLO V. BANK OF AMERICA

basis, issues of liability for all class members. Instead,
determining liability for all class members would require
complicated individualized inquiries. Although this method
of calculation has been deemed improper, the use of the
method to calculate overtime wages is not evidence of harm
in every instance to all employees, for those who did not
work overtime or receive a bonus in the same period, as well
as those who were overpaid for it have no actual injury and
hence have no claim.
Castillo’s interpretation of Vaquero is also flawed.
Vaquero, 824 F.3d at 1154. It is true that Vaquero stands for
the proposition that individualized damages calculations do
not defeat predominance. Id. But this does not rebut BOA’s
argument that the question of whether the putative class
members were ever “subject to [BOA’s] overtime
calculation policy and ever underpaid as a result goes to
liability rather than damages.”
Vaquero involved a question of whether sales employees
were paid for non-sales work. Id. at 1152. This question
could be uniformly resolved. Id. If the defendant did not
pay for non-sales work, the remaining question of how much
should have been paid was a damages question which would
not defeat predominance. Id. at 1155.
Tyson Foods is also instructive. Tyson Foods held that a
plaintiff can show that representative evidence “is a
permissible method of proving classwide liability” if “each
class member could have relied on that sample to establish
liability if he or she had brought an individual action,” and
the representative evidence “could have sustained a
reasonable jury finding” as to a key issue of liability. 136 S.
Ct. at 1046–47. In Tyson Foods, employees sued Tyson
Foods for a policy of not paying them for time spent
“donning and doffing” protective gear. Id. at 1042. The

CASTILLO V. BANK OF AMERICA 15

policy alone was not enough to establish liability, though all
employees were exposed to it. Id. at 1046. Rather, class
member had to demonstrate that each of them had worked
more than forty hours in a week to show they were owed
wages for time spent donning and doffing and that Tyson
Foods was liable due to the injury caused by the policy. Id.
To determine liability would have required
individualized inquiries, like in this case. But in Tyson
Foods the plaintiffs overcame this by submitting
representative evidence of the hours class members worked.
Id. at 1046. This common method of proof allowed the
plaintiffs to establish Tyson Foods’ “classwide liability.” Id.
Later, damages could be decided individually.
This case differs from Tyson Foods because Castillo
cannot provide a common method of proof to establish
BOA’s classwide liability. Unlike in Tyson Foods, here
there is no common proof of liability, because a large portion
of the proposed class was never exposed to the challenged
formulas or was not underpaid, and thus could not have been
injured by those formulas in the first place. The holding in
Tyson Foods highlights Castillo’s disagreement with the
holding of the district court. Castillo contends that the
district court erred by considering BOA’s “predominance
attack” to be a question of liability, and not damages. This
is wrong. The issue is not that Castillo is unable to prove the
extent of the damages suffered by each individual plaintiff
at this stage. Instead, it is that Castillo has been unable to
provide a common method of proving the fact of injury and
any liability. Unlike in Tyson Foods, proof of liability in this
case would require highly individualized inquiries. But
Castillo has provided no common method of proof, or
representative evidence of proving classwide liability on
which each employee could have relied. Castillo has sought

16 CASTILLO V. BANK OF AMERICA

to certify a class but cannot show that questions of law or
fact common to class members predominate.
Castillo’s misunderstanding of Vaquero and Tyson
Foods lies at the heart of the issue in this case. Put simply,
Castillo has sought to certify a class that fails predominance,
because many of its members were never exposed to the
challenged formulas or, if they were, were never injured by
them. Some of the putative class members were (1) not
exposed to one or both overtime policies, (2) paid adequately
by one or both overtime polices, or even (3) overpaid by one
or both of the overtime policies.
When attempting to certify the class, Castillo sought to
add every call center employee who worked during the class
period. She did not filter the putative class members to
exclude those who were never exposed to either policy.
3
So,
the instant case is unlike cases involving non-payment of
minimum wages, for instance, where by not being paid
minimum wages, all putative class members who were not
paid minimum wages suffered an injury. Instead, this case
raises complicated questions of who was ever exposed to one
or both policies, and whether those who were exposed were
harmed in a way giving rise to liability. See, e.g., Torres,
835 F.3d at 1138 (“In sum, pursuant to Rule 23, the court’s
task at certification is to ensure that the class is not defined
so broadly as to include a great number of members who for

3
In fact, a bank expert estimated that roughly 35.2% of putative
class members employed by BOA before January 2017 either never
received an incentive payment, or never worked overtime during a period
for which they received a bonus. Further, BOA has estimated that around
41.7% of those in the Bank’s sample never received a bonus or never
worked overtime during a period for which they received a bonus. A
large portion of the proposed class was therefore never exposed to the
challenged policy.

CASTILLO V. BANK OF AMERICA 17

some reason could not have been harmed by the defendant’s
allegedly unlawful conduct.”).
Castillo has not provided a common method of proof to
determine liability and has not rebutted evidence that many
of the class members were not affected by BOA’s overtime
policies. For these reasons, Castillo has not established
predominance.
Also, Castillo’s arguments regarding an alleged
“negation” defense by BOA are misplaced. Plaintiff cites
several cases rejecting employer attempts to “average” out
underpayment in one period with over payment in another.
Armenta v. Osmose, Inc., 135 Cal. App. 4th 314, 319 (Cal.
Ct. App. 2005); Ferrell v. ConocoPhillips Pipe Line Co.,
2010 WL 1946896, at *8 (C.D. Cal. May 12, 2010); Morse
v. ServiceMaster Global Holdings Inc., 2011 WL 2470252,
at *3–4 (N.D. Cal. June 21, 2011). But the issue is not
whether BOA can “average” out previous underpayment by
later overpayment. Rather, BOA gives the following
example:
For example, if the Bank’s calculation of
overtime wages for one period resulted in a
“net overpayment” of overtime to an
employee for that period, then that overall
overpayment “offsets” any purported dilution
or underpayment within that particular
period’s overtime calculation. And because
of that net overpayment for that period, the
Bank never incurred liability for an
underpayment.
BOA does not argue that it can “negate” underpayment
from prior periods with overpayment in later periods.
Instead, BOA argues that because of the varying facts

18 CASTILLO V. BANK OF AMERICA

underlying the calculation, it is possible that employees
could have been underpaid for sub-parts of a period but
overpaid overall throughout the period. BOA does not argue
that it can “negate” past underpayment with later
overpayment, but that total overpayment “negates”
underpayment within the same period. This feature of the
policy—allowing employees to be ostensibly underpaid for
part of a pay period without ultimately incurring harm—
further complicates and individualizes the calculation
needed to determine liability.
IV
For the above reasons, we affirm the holding of the
district court denying class certification.
AFFIRMED.