                   FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


JAMES COLE, on behalf of               No. 17-55606
himself and all others
similarly situated,                      D.C. No.
           Plaintiff-Appellant,   5:08-cv-01570-VAP-SP

              v.
                                  ORDER CERTIFYING
CRST VAN EXPEDITED, INC.,         QUESTIONS TO THE
FKA CRST, Inc., an Iowa              CALIFORNIA
Corporation; DOES, 1–50,           SUPREME COURT
inclusive,
        Defendants-Appellees.


      Appeal from the United States District Court
           for the Central District of California
   Virginia A. Phillips, Chief District Judge, Presiding

        Argued and Submitted November 5, 2018
                 Pasadena, California

                   Filed August 1, 2019
2                COLE V. CRST VAN EXPEDITED

    Before: Johnnie B. Rawlinson and Andrew D. Hurwitz,
    Circuit Judges, and Stephen R. Bough,* District Judge.

                                 Order


                            SUMMARY**


      Certified Question to California Supreme Court

    The panel certified the following questions of state law to
the California Supreme Court:

         1) Does the absence of a formal policy
         regarding meal and rest breaks violate
         California law?

         2) Does an employer’s failure to keep
         records for meal and rest breaks taken by its
         employees create a rebuttable presumption
         that the meal and rest breaks were not
         provided?




     *
     The Honorable Stephen R. Bough, United States District Judge for
the Western District of Missouri, sitting by designation.
    **
       This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
              COLE V. CRST VAN EXPEDITED                     3

                          ORDER

    We certify the questions set forth in Part II of this order
to the California Supreme Court. The answers to these
questions are dispositive of this case, and are not answered by
clear California precedent. See Cal. R. Ct. 8.548. We
respectfully request that the California Supreme Court
exercise its discretion to resolve the certified questions
presented below. All further proceedings in this case are
stayed pending final action by the California Supreme Court,
and this case is withdrawn from submission until further
order of this court.

I. Administrative Information

The caption of this case is:

                        No. 17-55606

    JAMES COLE, on behalf of himself and all others
                similarly situated,

                     Plaintiff-Appellant,

                               v.

    CRST VAN EXPEDITED, INC., FKA CRST, Inc.,

                    Defendant-Appellee.
4             COLE V. CRST VAN EXPEDITED

The names and addresses of counsel are:

For Plaintiff-Appellant James Cole: Deepak Gupta, Gupta
Wessler PLLC, 1900 L Street, NW, Suite 312, Washington,
D.C. 20036, James R. Hawkins and Gregory E. Mauro, James
Hawkins APLC, Suite 200, 9880 Research Drive, Irvine,
California 92618, and Stanley D. Saltzman, Marlin &
Saltzman LLP, 29800 Agoura Road, Agoura Hills, California
91401.

For Defendant-Appellee CRST Van Expedited, Inc.: James H.
Hanson and R. Jay Taylor, Jr., Scopelitis, Garvin, Light,
Hanson & Feary P.C., Suite 1400, 10 West Market Street,
Indianapolis, Indiana 46204, and Christopher C. McNatt Jr.,
Scopelitis, Garvin, Light, Hanson & Feary, LLP, Suite 560,
2 North Lake Avenue, Pasadena, California, 91101.

II. Certified Questions

1. Does the absence of a formal policy regarding meal and
   rest breaks violate California law?

2. Does an employer’s failure to keep records for meal and
   rest breaks taken by its employees create a rebuttable
   presumption that the meal and rest breaks were not
   provided?

    Our phrasing of these questions should not restrict the
California Supreme Court’s consideration of the issues
involved. See Cal. R. Ct. 8.548(f)(5). We will accept and
follow the decision of the California Supreme Court. See Cal.
R. Ct. 8.548(b)(2).
                 COLE V. CRST VAN EXPEDITED                   5

III.      Statement of Pertinent Facts

    In his second amended putative class action complaint,
James Cole (Cole) alleged that he was employed by CRST
Van Expedited, Inc. (CRST) as a truck driver in California.
Cole sought to represent himself and other CRST drivers who
did not receive the meal or rest breaks required under
California law. Cole alleged that “CRST Non-Exempt truck
drivers were not provided rest periods for work periods of
four hours or major fractions thereof or meal periods for work
days in excess of five (5) and ten (10) hours . . .” Cole also
asserted that CRST drivers “were required to work through
their daily rest periods and meal period(s), or work an on-
duty meal period,” “were severely restricted in their ability to
take a meal period,” and “were required to work through their
second meal period(s), or work a second on-duty meal
period.” (internal quotation marks omitted). Cole maintained
that CRST “neither permitted nor authorized [Cole] and Class
Members to take lawful meal and rest periods.”

       Cole sought to represent the following class:

          All of [CRST’s] California based drivers who
          are employed or have been employed by
          [CRST] in the State of California during the
          relevant time period who have performed
          work within California.

Cole sought to represent various subclasses of CRST drivers
who were not provided the requisite meal and rest breaks, or
compensation in lieu of the breaks.

    The meal and rest period claims brought on behalf of the
putative class depend on the provisions of Cal. Labor Code
6               COLE V. CRST VAN EXPEDITED

§ 226.7 and Industrial Welfare Commission (IWC) Wage
Order 9.

    In his deposition, Cole related that he would sometimes
purchase food from truck stops while refueling. Cole
estimated that, on a daily basis, he averaged more than fifty
miles per hour.1 Cole agreed that it was up to him and his co-
driver to decide the number of miles they traveled each day.
CRST kept in contact with its drivers and monitored their
progress through an onboard Qualcomm system, which
permitted CRST to ascertain the truck’s location at all times.
Cole stated that CRST wanted him to “keep the truck
moving.”

    Cole confirmed that “no one from CRST told [him] when
to stop,” and acknowledged that he could take a ten-minute
break whenever he wanted. However, Cole expressed that he
was unable to take meal and rest breaks because he needed to
“keep the wheels rolling” in order to remain timely on his
deliveries and receive payment. Nevertheless, Cole admitted
that it was his choice to not stop, and that CRST did not
prohibit him from taking meal or rest breaks.

      According to Cole, CRST did not instruct him that he
could not take a thirty- minute meal break, but he was “just
thinking about money, keeping the truck moving.” Cole
testified that he was able to take a ten-minute break and have
a snack when he stopped to use the restroom. Cole conveyed
that, if he wanted to stop and take a break, he could “always
. . . do that.”


    1
      According to CRST’s Professional Driver’s Handbook, a driver
“must average 50 mph including all stops for fuel, driver swaps, meals,
breaks, showers, weigh stations, traffic, etc.”
               COLE V. CRST VAN EXPEDITED                      7

     In a declaration submitted subsequent to his deposition,
Cole averred that he “was required to pick up the CRST truck
at the Fontana Terminal [in California] and eventually return
the truck back to the Fontana Terminal.” Cole related that he
lacked “authority to change the assigned pickup and delivery
times when planning a trip, even when the delivery deadline
orders did not allow enough time for meal and rest periods.”
Cole maintained that, if he rejected a load because he was
unable to schedule meal and rest breaks, he “would be
reprimanded, placed at the bottom of the available trucks for
dispatch list, and the refusal would be documented in [his]
driver performance file.” According to Cole, “[o]n many
occasions, CRST’s delivery deadline orders and transit time
rules did not permit [him] to take [his] meal and rest breaks.”
Cole explained that CRST had no written policy for meal
breaks, and did not schedule meal breaks for him. In
addition, CRST took no “actions to relieve [him] of all duty
[for] each shift that [he] qualified for meal and rest breaks.”

     In his deposition, Randy Kopecky (Kopecky), CRST’s
designee under Federal Rule of Civil Procedure 30(b)(6),
testified that it was CRST’s policy for its drivers “to run their
trip and take their breaks appropriately when they need to and
when they feel the need to.” Kopecky explained that a driver
“appropriately” takes a break whenever the driver needs to
eat, use the restroom, do laundry, or make personal calls.
According to Kopecky, CRST informed its drivers that they
should not drive for over five hours without taking a break.
Kopecky related that CRST drivers “can stop any time they
choose,” and “[t]he breaks are completely up to the driver.”

   Kopecky stated that California’s policies concerning meal
and rest breaks were posted on a bulletin board at the Fontana
Terminal. Kopecky explained that the drivers’ orientations
8             COLE V. CRST VAN EXPEDITED

were conducted at the Fontana Terminal, and the drivers’
lounge was located there.

    In her deposition, Barbara Dixon (Dixon), a CRST driver,
stated that she took breaks during the course of her deliveries.
According to Dixon, she stopped at a rest area and took a ten-
minute break “every four hours.” She could take a break
longer than ten minutes “[d]epending on the time of day.”
Dixon testified that she had been cautioned by a dispatcher
not to take a break when her delivery was behind schedule.

    In his deposition, Alan Long (Long), another CRST
driver, stated that he took breaks when he needed to use the
restroom or when he became fatigued. He also took breaks
to walk around and get something to eat. Long explained that
he sometimes planned for breaks when he devised his pre-trip
plan. He had meals “[t]hroughout the day or [during] a fuel
stop.” Long conveyed that it was his decision when to take
breaks, and it was not “the company’s choice.” Long testified
that it was “ultimately up to [him]” to take a meal break.

     CRST driver Arthur Clemmons (Clemmons) similarly
explained during his deposition that he was able to take
breaks of “[a]bout a half hour” during stops for refueling.
According to Clemmons, he drove four to five hours, and
then stopped because it was “a rule” that he take a break and
eat.

    In his declaration, Daniel Jeffers (Jeffers), a CRST safety
trainer, stated that, during its orientation for new drivers,
CRST teaches “the importance of taking breaks to rest, eat,
and attend to personal matters. After their orientation is
concluded, CRST continues to remind drivers about the
importance of taking breaks.”
              COLE V. CRST VAN EXPEDITED                     9

    The record also contains a document entitled “Trip
Planning and Customer Service,” delineating the basic
elements of trip planning for CRST drivers. The document
states that a key element of trip planning is to schedule
“Planned stops. (Fuel, driver swaps, meals, showers, breaks,
etc.).”

    The district court granted summary judgment in favor of
CRST. Relying on Brinker Rest. Corp. v. Superior Court,
273 P.3d 513 (Cal. 2012), the district court concluded that
CRST satisfied its obligations to provide rest and meal breaks
by providing a reasonable opportunity for its employees to
take the mandated break periods. The district court
determined that Cole failed to raise a material factual dispute
regarding whether CRST posted the rules for its drivers to
view at the Fontana Terminal. The district court observed
that Cole attempted to create a triable issue of fact based on
a declaration that was somewhat inconsistent with his
deposition testimony. The district court noted that Cole did
not present any evidence apart from his declaration that
CRST compelled its employees to skip break periods based
on its load or average speed requirements. The district court
emphasized that Cole failed “to identify a single trip he took
where he skipped a break due to [CRST’s] delivery deadlines
and transition time rules.” (emphasis in the original).
According to the district court, there was “ample evidence in
the record that [CRST] did, in fact, encourage [Cole] to take
breaks.”

    The district court also granted CRST’s motion to decertify
the meal and rest break classes. The district court reasoned
that decertification of the classes was proper because Cole
was unable to demonstrate that CRST imposed a policy that
prevented its drivers from taking the mandated rest and meal
10              COLE V. CRST VAN EXPEDITED

breaks. The district court observed that there was “evidence
in the record of drivers taking meal and rest breaks without
interference from [CRST],” and that “individualized inquiries
predominate.” The district court reasoned that “[i]n order to
determine why some drivers took meal and rest breaks while
others did not requires individualized inquiries as to each
driver.” The district court concluded that Cole was unable to
satisfy the predominance requirement of Fed. R. Civ. P.
23(b).

      Cole filed a timely notice of appeal.

IV.      Explanation of Certification

    Cole maintains that the district court erroneously
concluded that CRST complied with California law simply
because it did not prevent its employees from taking breaks.
Cole asserts that California law mandates that the employer
affirmatively provide breaks by adopting a policy authorizing
them. Cole emphasizes that CRST did not have such a
policy, did not record meal breaks on its payroll statements,
and did not pay its drivers for rest breaks.

    In Brinker, the California Supreme Court clarified an
employer’s duties in providing mandated breaks to its
employees. The Court articulated that “an employer must
relieve the employee of all duty for the designated [meal]
period, but need not ensure that the employee does no work,”
and that “[a]n off-duty meal period . . . is one in which the
employee is relieved of all duty during the 30-minute period
meal period.” 273 P.3d at 532–33 (emphasis in the original)
(citation, alteration, and internal quotation marks omitted),
              COLE V. CRST VAN EXPEDITED                     11

    Under Brinker, an employer satisfies its obligation to
provide meal periods “if it relieves its employees of all duty,
relinquishes control over their activities and permits them a
reasonable opportunity to take an uninterrupted 30-minute
break, and does not impede or discourage them from doing
so.” Id. at 536–37. The California Supreme Court
emphasized that “[w]hat will suffice may vary from industry
to industry, and we cannot in the context of this class
certification proceeding delineate the full range of approaches
that in each instance might be sufficient to satisfy the law.”
Id. at 537. Nevertheless, “the employer is not obligated to
police meal breaks and ensure no work thereafter is
performed.” Id. “Bona fide relief from duty and the
relinquishing of control satisfies the employer’s obligations,
and work by relieved employee during a meal break does not
thereby place the employer in violation of its obligations.”
Id.

    The California Supreme Court did not directly address in
Brinker whether the absence of a policy providing for meal
and rest breaks constitutes a violation of California labor law.
However, in Duran v. U.S. Bank Nat’l Ass’n, 325 P.3d 916,
933 n.28 (Cal. 2014), the California Supreme Court observed
that “[i]n regard to other wage and hour claims, some courts
have held that the absence of a uniform policy supports
[class] certification if such a policy is required by law. We
express no opinion on this question.” (emphasis in the
original).

   The California Supreme Court pointed to two decisions
by the California Court of Appeal—Benton v. Telecom
Network Specialists, Inc., 220 Cal. App. 4th 701 (2013), and
Bradley v. Networkers Int’l, LLC, 211 Cal. App. 4th 1129
12            COLE V. CRST VAN EXPEDITED

(2012)—as holding that absence of a uniform policy may
support class certification. Duran, 325 P.3d at 933 n.28.

     In Benton, the California Court of Appeal held that the
trial court erred in failing to certify a class premised on the
plaintiffs’ “theory of legal liability” that the employer
“violated wage and hour requirements by failing to adopt a
policy authorizing and permitting its [employees] to take
meal or rest break periods.” 220 Cal. App. 4th at 724–25
(citation omitted). In Bradley, the California Court of Appeal
similarly concluded that class treatment was appropriate
because “plaintiffs’ theory of recovery is based on [the
employer’s] (uniform) lack of a rest and meal break policy
and its (uniform) failure to authorize employees to take
statutorily required rest and meal breaks. The lack of a
meal/rest break policy and the uniform failure to authorize
such breaks are matters of common proof.” 211 Cal. App.
4th at 1150.

    In Brinker, Justice Werdegar noted that “[i]f an
employer’s records show no meal period for a given shift
over five hours, a rebuttable presumption arises that the
employee was not relieved of duty and no meal period was
provided.” 273 P.3d at 545 (Werdegar, J., concurring). The
California Court of Appeal has adopted divergent approaches
in addressing this concurring opinion. In Safeway, Inc. v.
Superior Court, 238 Cal. App. 4th 1138, 1159–60 (2015), the
California Court of Appeal cited the presumption with
approval. See also Esparza v. Safeway, Inc., 247 Cal. Rptr.
3d 875, 885–86 (Cal. Ct. App. 2019), as modified
(acknowledging prior application of presumption at class
certification stage). However, the California Court of Appeal
has also declined to apply the presumption because it was
articulated in a concurring opinion. See, e.g., Torres v.
              COLE V. CRST VAN EXPEDITED                    13

Goodwill Indus. of San Diego Cnty., No. D072271, 2018 WL
3454932, at *10 (Cal. Ct. App. July 18, 2018) (unpublished)
(explaining that the presumption did not apply because “a
statement in a concurring opinion is not binding precedent”)
(citation omitted); see also Silva v. See’s Candy Shops, Inc.,
7 Cal. App. 5th 235, 253–54 (2016) (implying that the
presumption applies, if at all, in the class certification
context, but not for summary judgment proceedings).

    The California Supreme Court’s statement in Duran does
not clearly indicate whether the Court is inclined to hold that
an employer violates the California Labor Code because it
lacks a formal policy for meal and rest breaks. It is also
unclear whether the California Supreme Court would apply
the presumption suggested by Justice Werdegar in Brinker.

    Cole’s appeal is dependent on whether CRST’s lack of a
policy providing for legally required rest and meal breaks
violates California law. If the California Supreme Court
accepts certification of the certified questions, the court’s
decision will “determine the outcome” of this appeal. Cal. R.
Ct. 8.548(a)(1). No controlling California Supreme Court
precedent directly answers the certified questions. See Cal.
R. Ct. 8.548(a)(2); see also McCleery v. Allstate Ins. Co., No.
B282851, — Cal. Rptr. 3d —, 2019 WL 3072621, at *10
(Cal. Ct. App. July 15, 2019) (noting that the California
Supreme Court “has not yet ruled” on the issue of the failure
to “adopt affirmative meal or rest period policies”). As a
result, we are persuaded that the California Supreme Court is
best suited to determine whether CRST violated California
labor laws by not having a policy for rest and meal breaks,
and whether a presumption arises that CRST is liable for
California Labor Code violations based on its failure to keep
records of its employees’ rest and meal breaks.
14             COLE V. CRST VAN EXPEDITED

    Due to the importance of these legal issues in resolving
the present appeal and in uniformly applying California law,
we conclude that certification of these issues to the California
Supreme Court is the proper course of action.

V. Accompanying Materials

     The clerk of the court is directed to file in the California
Supreme Court, under official seal of the United States Court
of Appeals for the Ninth Circuit, copies of the briefs and
excerpts of record, and an original and ten copies of this order
and request for certification, along with certification on the
parties, pursuant to California Rules of Court 8.548(c) and
(d).

    This case is withdrawn from submission. Further
proceedings in this case before our court are stayed pending
final action by the California Supreme Court. The Clerk is
directed to administratively close this docket, pending further
order. The parties shall notify this court within fourteen days
of the California Supreme Court’s acceptance or rejection of
certification, and, if certification is accepted, within fourteen
days of the California Supreme Court’s issuance of a
decision.

     IT IS SO ORDERED.
