                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                              NOV 13 2009

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

SANDRA GARCIA; ANTONIO POMPA                     No. 08-16815
AYON, On behalf of themselves and a
class of others similarly situated,              D.C. No. 1:06-cv-00871-LJO-
                                                 TAG
             Plaintiffs - Appellants,

  v.                                             MEMORANDUM *

SUN PACIFIC FARMING
COOPERATIVE, INC., A California
corporation; SUN PACIFIC FARMING
CO., Form Unknown,

             Defendants - Appellees.


                   Appeal from the United States District Court
                       for the Eastern District of California
                   Lawrence J. O’Neill, District Judge, Presiding

                     Argued and Submitted November 4, 2009
                              Stanford, California

Before: RYMER, McKEOWN and N.R. SMITH, Circuit Judges.

       Sandra Garcia and Antonio Pompa Ayon, two former employees of Sun

Pacific Farming Cooperative, Inc. (“Sun Pacific”), appeal from the district court’s


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
denial of their motion for class certification. Garcia and Ayon seek to certify a

class of Sun Pacific agricultural workers alleging various wage and hour violations

under federal and state law. Because Garcia and Ayon have not met the

requirements of commonality and typicality under Federal Rule of Civil Procedure

23(a), we affirm.

      As the district court explained, the record evidence–in particular, the

conflicting employee declarations submitted by each party–does not establish

common wage and hour practices at Sun Pacific, but rather the “[in]consistent

application of the wage and hour laws between and among the various [work]

Crews.” Garcia and Ayon thus failed to demonstrate that proposed class members

“share[] legal issues with divergent factual predicates” or a “common core of

salient facts coupled with disparate legal remedies.” Hanlon v. Chrysler Corp., 150

F.3d 1011, 1019 (9th Cir. 1998). Similarly, the evidence at best showed that

Garcia and Ayon’s practice claims were typical–or “reasonably co-extensive,” id.

at 1020–with only some of the proposed class members, but atypical of others. It

was well within the district court’s discretion to deny class certification on this

basis. Although Garcia and Ayon also argue they established commonality and

typicality based on certain Sun Pacific policies–such as the speed limit on company

property–those arguments were never raised before the district court and are


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therefore waived. Whittaker Corp. v. Execuair Corp., 953 F.2d 510, 515 (9th Cir.

1992).

      The district court also did not abuse its discretion in refusing to certify

subclasses as to particular alleged violations, such as the requirement that workers

wash their bins at home without pay, because Garcia and Ayon failed to request

partial certification on these issues. The district court is under no obligation to

reach the issue of partial certification sua sponte. See Lozano v. AT&T Wireless

Servs., Inc., 504 F.3d 718, 729-30 (9th Cir. 2007).

      Finally, the district court did not abuse its discretion in refusing to reopen

discovery so that Garcia and Ayon could depose workers who submitted

declarations on Sun Pacific’s behalf. Garcia and Ayon argue that additional

discovery was warranted because one of Sun Pacific’s declarants recanted her

previous testimony. However, as noted by the district court, there was “no

evidence . . . that defense counsel’s conduct [in preparing the employee’s

declaration] was improper.” Thus, further discovery was not necessary to resolve

the issue of class certification. See Kamm v. Cal. City Dev. Co., 509 F.2d 205,

209-10 (9th Cir. 1975).

      AFFIRMED.




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