                                                                           FILED
                            NOT FOR PUBLICATION
                                                                            JAN 20 2017
                     UNITED STATES COURT OF APPEALS                     MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ERIC STILLER; JOSEPH MORO, on                    No.   15-55361
behalf of themselves individually and all
others similarly situated,                       D.C. No.
                                                 3:09-cv-02473-GPC-BGS
              Plaintiffs-Appellants,

 v.                                              MEMORANDUM*

COSTCO WHOLESALE
CORPORATION,

              Defendant-Appellee.



ERIC STILLER; JOSEPH MORO, on                    No.   15-55691
behalf of themselves individually and all
others similarly situated,                       D.C. No.
                                                 3:09-cv-02473-GPC-BGS
              Plaintiffs,

 and

FLORA CASTOR; MICHAEL
DRENTEA; MICHAEL STEWART,
Proposed Intervenors,

              Applicants-in-intervention-
              Appellants,

       *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
 v.

COSTCO WHOLESALE
CORPORATION,

              Defendant-Appellee.


                   Appeal from the United States District Court
                     for the Southern District of California
                   Gonzalo P. Curiel, District Judge, Presiding

                     Argued and Submitted December 8, 2016
                              Pasadena, California

Before: CALLAHAN, BEA, and IKUTA, Circuit Judges.

      Joseph Moro brought a class action against Costco Wholesale Corporation

(“Costco”), alleging violations of the California Labor Code. Moro alleges that

certain of Costco’s policies and procedures operating in conjunction (together, the

“Alleged Policy”) resulted in employees who worked closing shifts being locked in

Costco’s warehouses and working off the clock without compensation while

managers completed tasks including till pulls and jewelry pulls. The district court

granted Costco’s motion for decertification of the class action. Moro settled his




                                          2
individual claims, stipulated to dismissal, and appealed. We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.1

      “We review the district court’s class certification order for abuse of

discretion and the findings of fact upon which it relied for clear error.” Torres v.

Mercer Canyons Inc., 835 F.3d 1125, 1132 (9th Cir. 2016) (citing Parsons v. Ryan,

754 F.3d 657, 673 (9th Cir. 2014)).

      Class certification is appropriate under Federal Rule of Civil Procedure

23(b)(3) when “questions of law or fact common to class members predominate

over any questions affecting only individual members.” Tyson Foods, Inc. v.

Bouaphakeo, 136 S. Ct. 1036, 1045 (2016) (quoting Fed. R. Civ. P. 23(b)(3)). “An

individual question is one where ‘members of a proposed class will need to present

evidence that varies from member to member,’ while a common question is one

where ‘the same evidence will suffice for each member to make a prima facie

showing [or] the issue is susceptible to generalized, class-wide proof.’” Id.

(quoting 2 William B. Rubenstein, Newberg on Class Actions § 4:50 (5th ed.

2012)) (alteration in original).



      1
             Because Moro has retained a sufficient personal stake in class
representation despite his settlement of his individual claims, he retains standing to
appeal the district court’s decertification order. Narouz v. Charter Commc’ns,
LLC, 591 F.3d 1261, 1264 (9th Cir. 2010).
                                           3
      Contrary to Moro’s contentions, the district court did not require that

common questions resolve liability for every class member, or impose a “one

hundred percent” predominance requirement. Instead, the district court looked to

the three elements of an “off-the-clock claim” under California law. See Jimenez v.

Allstate Ins. Co., 765 F.3d 1161, 1165 (9th Cir. 2014) (applying the test set forth

by Adoma v. Univ. of Phoenix, Inc., 270 F.R.D. 543 (E.D. Cal. 2010)). Because

Costco put forward sufficient evidence to show that the individual policies

comprising the Alleged Policy were not implemented and applied uniformly, the

court properly determined that proving that class members actually performed

unpaid work—as required to establish liability under the Adoma test—would

require class members to present evidence that varied from member to member.

As such, whether class members actually performed unpaid work was not a

common question capable of classwide resolution. See Tyson Foods, 136 S. Ct.

at 1045.

      The district court did not abuse its discretion in ruling that this

individualized issue would predominate over common issues such that the class

would not be “sufficiently cohesive to warrant adjudication by representation.”

Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623 (1997). Neither the district

court’s refusal to employ the two-stage burden-shifting procedure applicable in the


                                           4
Title VII context set forth in International Brotherhood of Teamsters v. United

States, 431 U.S. 324 (1977), nor its now-erroneous determination that

representative proof could never be used to establish liability, see Tyson Foods,

136 S. Ct. at 1046, change this result.

      AFFIRMED.2




      2
              Also on appeal is the district court’s denial of a motion for
intervention by proposed intervenor plaintiffs. The parties agreed at oral argument
that we need not reach the issues raised by the proposed intervenors’ appeal if we
find that Moro retains standing, and indeed, the proposed intervenors “do[] not
assert an interest that would allow [them] to contest the dismissal” of Moro’s
individual claims against Costco, see Leisnoi, Inc. v. United States, 313 F.3d 1181,
1184 (9th Cir. 2002). Accordingly, the proposed intervenors’ appeal, No. 15-
55691, and the pending motion for judicial notice are DISMISSED as moot.
                                          5
