                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                           APR 20 2016
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
NASHONNA COLEMAN, an individual,                 No. 14-55821

              Plaintiff - Appellant,             D.C. No. 3:11-cv-01301-BAS-
                                                 DHB
 v.

JENNY CRAIG, INC., a Delaware                    MEMORANDUM*
corporation,

              Defendant - Appellee.


                    Appeal from the United States District Court
                       for the Southern District of California
                    Michael M. Anello, District Judge, Presiding

                        Argued and Submitted April 6, 2016
                               Pasadena, California

Before: FARRIS, TYMKOVICH**, and M. SMITH, Circuit Judges.

      Nashonna Coleman filed a class action lawsuit against Jenny Craig, Inc., her

former employer. In support of her motion for class certification, Coleman alleged

that Jenny Craig had a common policy of forcing its hourly employees to miss

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Timothy M. Tymkovich, Chief Circuit Judge for the
U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
meal breaks or take short or late meal breaks, in violation of California Labor Code

sections 226.7 and 512. Coleman also alleged that Jenny Craig’s payroll system

only paid the required wage premium when an employee’s time-card showed an

entirely missed meal break, but did not pay a premium when the time-card showed

a short or late meal break. See Cal. Lab. Code. § 226.7(c).

      The district court found that the lawsuit did not meet the commonality

requirement for class certification, and denied the motion. See Fed. R. Civ. Pro.

23(a)(2). The court found that Jenny Craig did not have a common policy of

forcing employees to miss meal breaks or take short or late meal breaks. The court

also found that Jenny Craig did not have a common policy of not paying wage

premiums for short or late meal breaks.

      Coleman filed a motion for reconsideration. The motion argued that

commonality had been shown by Jenny Craig’s failure to create and disseminate a

policy for paying wage premiums for short or late meal breaks. The district court

denied the motion for reconsideration.

      Coleman now appeals the district court’s denial of class certification and the

denial of the motion for reconsideration, solely on the issue of whether Jenny

Craig’s wage premium policies, or lack thereof, are sufficient to show

commonality.


                                          2
      We have jurisdiction under 28 U.S.C. § 1292(e) and Federal Rule of Civil

Procedure 23(f). We affirm.

      Coleman’s class action complaint alleged that Jenny Craig violated

California Labor Code sections 226.7 and 512. However, the failure to pay a wage

premium is not a freestanding violation of these Labor Code sections. Kirby v.

Immoos Fire Prot., Inc., 274 P.3d 1160, 1167–68 (Cal. 2012). These sections of

the Labor Code are violated when an employer forces its employees to take short

or late meal breaks. Kirby, 274 P.3d at 1168. The wage premium is the remedy for

this violation. Id.

      In order to show commonality for these claims then, Coleman had to show a

common practice of forcing employees to take short or late meal breaks. See Ugas

v. H & R Block Enters., No. CV 09-6510 CAS (SHx), 2012 WL 5230297, at *4

(C.D. Cal. July 9, 2012). A common practice of not paying wage premiums is not

sufficient to show commonality for claims under these statutes. The failure to pay

wage premiums is not a freestanding violation of the statutes. See id. Coleman has

not challenged the district court’s finding that Jenny Craig did not have a common

policy of forcing employees to take short or late meal breaks. The district court

was correct to find that Coleman had not shown commonality.




                                          3
      Our decision is unaffected by the recent California Court of Appeal case

Safeway, Inc. v. Superior Court, 238 Cal. App. 4th 1138 (2015). In Safeway, the

claim being certified for class status was a claim under California’s Unfair

Competition Law. Id. at 1155. The complaint alleged that the defendant’s policy

of not paying wage premiums was, by itself, a violation of the Unfair Competition

Law. Id. at 1160–61. Here, the failure to pay a wage premium is not, by itself, a

violation of the Labor Code. Therefore, unlike in Safeway, class certification is not

appropriate.

      AFFIRMED.




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