                                                                           FILED
                           NOT FOR PUBLICATION                              MAY 14 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



SONYA WILLIAMS, individually, and on             No. 09-56031
behalf of other members of the general
public similarly situated,                       D.C. No. 2:08-cv-02582-GW-
                                                 AGR
             Plaintiff - Appellant,

  v.                                             MEMORANDUM *

VEOLIA TRANSPORTATION
SERVICES, INC., a Maryland
corporation,

             Defendant - Appellee.



                    Appeal from the United States District Court
                       for the Central District of California
                     George H. Wu, District Judge, Presiding

                        Argued and Submitted May 3, 2010
                              Pasadena, California

Before: O’SCANNLAIN and TALLMAN, Circuit Judges, and LEFKOW, **
District Judge.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
            The Honorable Joan H. Lefkow, United States District Judge for the
Northern District of Illinois, sitting by designation.
      Plaintiffs-Appellants Sonya Williams and Carmen Hita (collectively

“Plaintiffs”) appeal the denial of their motion for class certification. In the

underlying action, Plaintiffs allege that Defendant-Appellee Veolia Transportation

Services, Inc. unlawfully deprived its employees of rest periods. The district court

denied class certification after finding that the proposed class and alternative sub-

class did not meet the requirements of Federal Rule of Civil Procedure (“Rule”)

23(b)(3). We have jurisdiction under 28 U.S.C. § 1292(e) and Rule 23(f), and we

affirm.

      The district court properly focused on the balance between the individual

and common issues presented in this case and did not abuse its discretion in

finding that the individual issues predominated. Plaintiffs contend that all that is

necessary to warrant class certification is a showing that Veolia deprived each

purported class member of only one rest period and that the district court erred in

failing to address this argument. This argument oversimplifies the relevant

inquiry. Analyzing the predominance requirement necessitates looking at both the

substantive issues of the underlying claim and the proof relevant to each issue. In

re Wells Fargo Home Mortgage Overtime Pay Litig., 571 F.3d 953, 959 (9th Cir.

2009). Here, the substantive issue is common to all purported class members:

whether they were unlawfully deprived of a rest period. However, this common


                                            2
issue “does nothing to facilitate common proof of the otherwise individualized

issues” of what route and type of service Veolia operates and whether Veolia in

fact deprived each of its employees of rest periods. Id.

      Consequently, the district court did not abuse its discretion when it looked

past the question of whether each putative class member suffered an injury and

instead focused on the proof necessary to show a violation of Industrial Welfare

Commission Order 9-2001. See Vinole v. Countrywide Home Loans, Inc., 571

F.3d 935, 947 (9th Cir. 2009) (examining the individual inquiries that will arise in

the plaintiffs’ effort to prove the employer’s allegedly unlawful action).

      Similarly, the district court did not abuse its discretion when conducting the

superiority analysis. The district court properly weighed the four factors listed in

Rule 23(b)(3) and did not make a clear error of judgment in concluding that class

certification was not the superior method of resolving the issues in this case. See

Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1190–92 (9th Cir. 2001).

      Dukes v. Wal-Mart Stores, Inc. is inapplicable because it analyzes class

certification pursuant to Rule 23(b)(2), which was not the basis for class

certification in this case. Nos. 04-16688, 04-16720, 2010 WL 1644259, at *41

(9th Cir. Apr. 26, 2010) (en banc) (directing the district court to address in the first

instance class certification under Rule 23(b)(3) on remand).


                                            3
AFFIRMED.




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