                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 9 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

JUAN PEREZ, on behalf of himself and            Nos. 17-55082
those similarly situated,                            17-55318

                Plaintiff-Appellant,            D.C. No.
                                                2:13-cv-07741-R-FFM
 v.

ALTA-DENA CERTIFIED DAIRY, LLC, a               MEMORANDUM*
Delaware Limited Liability Company,

                Defendant-Appellee.

                   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.
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



                                           2                                    17-55082
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.



                                           3                                    17-55082
      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).

                                          4                                    17-55082
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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