                                                                             FILED
                            NOT FOR PUBLICATION
                                                                             JUN 08 2016
                     UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


NISHA BROWN and KATHY                             No. 12-17623
WILLIAMSON, individually and on
behalf of all others similarly situated,          D.C. No. 5:09-cv-03339-EJD

              Plaintiffs - Appellees,
                                                  MEMORANDUM*
  v.

WAL-MART STORES, INC.,

              Defendant - Appellant.


                    Appeal from the United States District Court
                      for the Northern District of California
                    Edward J. Davila, District Judge, Presiding

                              Argued December 2, 2013
                               Submitted June 8, 2016
                              San Francisco, California

Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.

       Wal-Mart Stores, Inc. appeals the district court’s order granting class

certification to all Wal-Mart cashiers in California. We affirm.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1.    The district court did not abuse its discretion by certifying the class. Wal-

Mart challenges the district court’s decision to certify the class with respect to its

conclusions on commonality, see Fed. R. Civ. P. 23(a)(2), and predominance,

see Fed. R. Civ. P. 23(b)(3). The commonality rule requires a plaintiff to show that

“there are questions of law or fact common to the class.” Wal-Mart Stores, Inc. v.

Dukes, 564 U.S. 338, 349 (2011) (quoting Fed. R. Civ. P. 23(a)(2)). Moreover,

such common questions of law or fact “must be of such a nature that it is capable

of classwide resolution.” Id. at 350. Rule 23(b)(3)’s predominance requirement

“is even more demanding than Rule 23(a).” Comcast Corp. v. Behrend, 133 S. Ct.

1426, 1432 (2013). “The Rule 23(b)(3) predominance inquiry tests whether

proposed classes are sufficiently cohesive to warrant adjudication by

representation.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 622 (1997).

      The district court did not abuse its discretion by concluding that the

proposed class met Rule 23(a)(2)’s commonality requirement. The district court

concluded that “Wal-Mart had a common policy of not providing seats for its

cashiers.” The district court also concluded that there was a common nature of

work among the proposed class, finding that (1) “Wal-Mart cashiers spent the




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majority of their time working at registers during the class period,”1 and (2) the

work done by cashiers at registers was generally the same across stores, register

locations and configurations, shifts, and physical activities. These findings support

the district court’s conclusion that “a trier of fact could determine whether these

common tasks could reasonably be performed while seated, and such a

determination would apply to all Wal-Mart cashiers at its California stores.” The

answer to this question would either establish a violation of California Wage Order

7-2001 § 14(A), or preclude finding one, for all class members. Likewise, the

district court did not abuse its discretion by concluding that the proposed class met

Rule 23(b)(3)’s predominance requirement. Based on the district court’s factual




      1
        By reviewing whether cashier’s spent the majority of their time working at
registers, the district court appears to have applied a “holistic approach” in
interpreting California Wage Order 7-2001 § 14(A). Such an interpretation is
inconsistent with the California Supreme Court’s recent guidance in Kilby v. CVS
Pharmacy, Inc., 368 P.3d 554 (Cal. 2016). However, this error does not undermine
the district court’s class certification decision, because the California Supreme
Court’s interpretation of the Wage Order appears to be more beneficial for
Plaintiffs than the holistic interpretation used by the district court.

                                          -3-
findings, individual issues will not predominate in determining whether Wal-Mart

has violated California Wage Order 7-2001 § 14(A).2

2.    California’s Private Attorneys General Act of 2004 (“PAGA”) does not

require individualized penalty inquiries that would defeat the commonality or

predominance requirements for purposes of class certification.3 PAGA specifies

civil penalties for violations of California’s Labor Code. See Cal. Labor Code

§ 2699(f). Although these civil penalties are “mandatory, not discretionary,” see

Amaral v. Cintas Corp. No. 2, 78 Cal. Rptr. 3d 572, 617 (Cal. Ct. App. 2008), “a

court may award a lesser amount than the maximum civil penalty . . . based on the

facts and circumstances of the particular case,” Cal. Labor Code § 2699(e)(2).

However, even if the district court decides to reduce the mandatory civil penalty,

section 2699(e)(2) calls for a case-wide (rather than individualized) inquiry. See



      2
       Wal-Mart asks us to take judicial notice of an Amicus Brief of the
California Labor Commissioner that addresses how the California Labor and
Workforce Development Agency interprets the Wage Order. In light of the
California Supreme Court’s recent guidance, this motion for judicial notice is
DENIED as moot.
      3
        We also note that PAGA’s system for determining civil penalties is readily
distinguishable from Hilao v. Estate of Marcos, 103 F.3d 767 (9th Cir. 1996). In
Hilao, we permitted the use of a statistical sample of a class to estimate damages.
Id. at 782–86. Such statistical sampling is not used to estimate penalties under
PAGA. Instead, PAGA establishes a specific penalty “for each aggrieved
employee.” Cal. Labor Code § 2699(f).

                                         -4-
Cal. Labor Code § 2699(a) (“[A]n aggrieved employee on behalf of himself or

herself and other current or former employees” may bring a civil action.); Thurman

v. Bayshore Transit Mgmt., Inc., 138 Cal. Rptr. 3d 130, 150 (Cal. Ct. App. 2012)

(applying section 2699(e)(2) to reduce the civil penalty based on the facts of the

case as a whole, as opposed to on an employee-by-employee basis).

3.     The district court did not abuse its discretion by excluding affidavits from

certain witnesses submitted by Wal-Mart in its response to Plaintiffs’ motion for

class certification. Wal-Mart was obliged under Federal Rules of Civil Procedure

26(a) and (e) to disclose these witnesses to Plaintiffs before relying on their

statements in response to Plaintiffs’ motion for class certification. Further, Wal-

Mart did not raise any issues with Plaintiffs’ request for discovery sanctions before

the district court and did not demonstrate that its failure to disclose was

substantially justified or harmless. Cf. Nursing Home Pension Fund, Local 144 v.

Oracle Corp. (In re Oracle Corp. Sec. Litig.), 627 F.3d 376, 386 (9th Cir. 2010)

(“[F]or Plaintiffs to fail to respond to Defendants’ objections, and to then challenge

the district court’s evidentiary rulings on appeal, is to invite the district court to err

and then complain of that very error. We cannot countenance such a tactic on

appeal.”).

       AFFIRMED.


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