Cynthia Flores v. Supervalu, Inc. , 509 F. App'x 593 ( 2013 )

FILED
NOT FOR PUBLICATION FEB 15 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
CYNTHIA FLORES, individually, and on No. 11-56075
behalf of other members of the general
public similarly situated, D.C. No. 2:07-cv-05326-JHN-E
Plaintiff - Appellant,
MEMORANDUM *
v.
SUPERVALU, INC., et al.
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Jacqueline H. NGUYEN, District Judge, Presiding
Submitted February 7, 2013 **
Pasadena, California
Before: CALLAHAN, IKUTA, and HURWITZ, Circuit Judges.
Cynthia Flores appeals the district court’s denial of class certification for three
subclasses of employees whom she claims suffered because of her employer’s alleged
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
violations of California law. We have jurisdiction under 28 U.S.C. § 1291 and we
affirm. 1.
1. The district court appropriately concluded that Flores failed to establish that
“questions of law or fact common to class members predominate over any questions
affecting only individual members,” Fed. R. Civ. P. 23(b)(3), as to the proposed meal
break and rest break subclasses. Flores claimed that although her employer’s written
meal and rest break policies were facially lawful, the demeanor of some supervisors
implicitly compelled employees to forego or interrupt breaks to help customers. The
district court correctly found that this claim required examination of “a number of
human factors and individual idiosyncrasies” having “little to do with an overarching
policy,” and thus failed to satisfy Rule 23(b)(3). See In re Wells Fargo Home Mortg.
Overtime Pay Litig., 571 F.3d 953, 959 (9th Cir. 2009) (holding that class certification
may be denied when “a fact-intensive inquiry into each potential plaintiff’s
employment situation” is required) (internal quotation marks omitted). Flores’s claim
that the district court abused its discretion in disallowing statistical studies and surveys
also fails because the district court could reasonably conclude that in light of the
1.
Flores’s briefs make no argument about the dismissal of her claims against Save
Mart and Lucky Stores. She has thus waived any attack on that portion of the
judgment. See Miller v. Fairchild Indus., Inc., 797 F.2d 727, 738 (9th Cir. 1986).
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idiosyncratic conduct Flores described, Flores could not prove the employer’s liability
through extrapolation from statistics.
2. The district court did not abuse its discretion in denying the motion for class
certification of the overtime compensation (“regular rate”) subclass because Flores,
having never been denied appropriate overtime compensation, was not a member of
that class and therefore did not have standing. See Lierboe v. State Farm Mut. Auto.
Ins. Co., 350 F.3d 1018, 1022 (9th Cir. 2003) (stating that “if none of the named
plaintiffs purporting to represent a class establishes the requisite case or controversy
with the defendants, none may seek relief on behalf of himself or any other member
of the class.”).
3. We decline Flores’s invitation to remand in light of Brinker Restaurant
Corp. v. Superior Court, 273 P.3d 513 (Cal. 2012). The denial of class certification
did not turn on the substantive California employment law issues addressed in
Brinker. “In determining the propriety of a class action, the question is not whether
the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but
rather whether the requirements of Rule 23 are met.” Eisen v. Carlisle & Jacquelin,
417 U.S. 156, 178 (1974) (internal quotation marks omitted). Even if substantive law
were implicated, Brinker’s holding, that an employer must provide meal breaks but
“need not ensure that no work is done,” see id. at 521, does not weigh in favor of
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concluding that the meal and rest break subclasses should be certified. Therefore,
remand is unnecessary.
AFFIRMED.
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