Ariana Miles v. Kirkland's Stores, Inc. ( 2024 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARIANA MILES, No. 22-55522
Plaintiff-Appellant, D.C. No.
5:18-CV-01559-
v. JWH-SHK
KIRKLAND’S STORES INC.,
OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
John W. Holcomb, District Judge, Presiding
Argued and Submitted November 13, 2023
Pasadena, California
Filed January 8, 2024
Before: Barrington D. Parker,* Jay S. Bybee, and Kenneth
K. Lee, Circuit Judges.
Opinion by Judge Lee
*
The Honorable Barrington D. Parker, Jr., United States Circuit Judge
for the U.S. Court of Appeals for the Second Circuit, sitting by
designation.
2 MILES V. KIRKLAND’S STORES INC.
SUMMARY**
Class Certification
In a lawsuit alleging that two employee policies at
Kirkland’s Stores violate California law, the panel reversed
the district court’s order denying class certification for
subclasses that rely on a Rest Break Claim, affirmed the
denial of class certification for subclasses that rely on a Bag
Check Claim, and remanded for further proceedings.
The Rest Break Claim challenged Kirkland’s policy
requiring employees to take rest breaks on store property,
and the Bag Check Claim challenged Kirkland’s policy
requiring employees to surrender to bag checks when they
ended their shift. The district court denied class certification
because it found that common issues failed to predominate
over individual ones under Fed. R. Civ. P. 23(b)(3).
The panel reversed the district court’s denial of class
certification of the Rest Break Claim because the district
court incorrectly found that Kirkland’s applied its rest break
policy inconsistently during the proposed class period. The
panel held that the overwhelming record evidence showed
that the company consistently enforced its policy across all
employees, and remanded for the district court to reassess
the evidence and apply the remaining Rule 23 requirements
to the Rest Break Claim.
The panel affirmed the district court’s denial of class
certification of the Bag Check Claim because the evidence
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
MILES V. KIRKLAND’S STORES INC. 3
suggested that Kirkland’s enforced the bag check policy
sporadically. Given the uneven enforcement of the policy,
the district court would have to embark on a time-intensive
mission to figure out the individual circumstances of each
proposed class member, which is not amenable to class
treatment. In addition, Kirkland’s implemented the bag
check policy in different ways when they did enforce the
policy.
COUNSEL
David C. Leimbach (argued), Scott L. Gordon, and Carolyn
H. Cottrell, Schneider Wallace Cottrell Konecky LLP,
Emeryville, California, for Plaintiff-Appellant.
Jack S. Sholkoff (argued) and Catherine L. Brackett,
Ogletree Deakins Nash Smoak & Stewart PC, Los Angeles,
California; Andrew J. Deddeh and Tracie Childs, Ogletree
Deakins Nash Smoak & Stewart PC, San Diego, California;
for Defendant-Appellee.
4 MILES V. KIRKLAND’S STORES INC.
OPINION
LEE, Circuit Judge:
When an employee challenges a company’s policy in a
class action lawsuit, it may appear at first blush that liability
can be determined on a class-wide basis if that policy applies
to all employees. But like with so many facets of the law,
the answer is—it depends. And this case provides two
dueling and instructive examples of when a claim
challenging a company’s policy can—and cannot—be
certified.
The lawsuit alleges that two employee policies at
Kirkland’s Stores violate California law: The first policy
required employees to take rest breaks on store property (the
“Rest Break Claim”), and the second one required them to
surrender to bag checks when they ended their shift (the
“Bag Check Claim”).
For the Rest Break Claim, the evidence shows that
Kirkland’s applied its rest break policy uniformly across its
stores. A few outlier examples of employees not following
the policy generally cannot by themselves defeat class
certification. But for the Bag Check Claim, the record
suggests that many employees did not abide by the bag check
policy and that Kirkland’s did not consistently enforce it.
And the very nature of Kirkland’s bag check policy—with
the inherent variations in employees’ circumstances—may
require highly individualized inquiries.
We thus reverse the district court’s denial of class
certification for the Rest Break Claim, affirm the denial of
certification for the Bag Check Claim, and remand for
further proceedings consistent with this opinion.
MILES V. KIRKLAND’S STORES INC. 5
BACKGROUND
I. Ariana Miles sues Kirkland’s, challenging the
store’s employee rest break and bag check
policies.
Ariana Miles worked for Kirkland’s, a chain of home
décor stores, from about February 2011 to July 2018. She
alleges that Kirkland’s unlawfully required employees to (1)
remain in the stores during their rest breaks, and (2) work
off-the-clock by getting their bags checked after they had
clocked out. Based on these two claims, Miles sought class
certification for various subclasses for the class period from
May 2014 to the present.
A. Miles’ Rest Break Claim
Under California law, employers may not require
employees to work during rest periods. Cal. Lab. Code
§ 226.7(b). California’s Supreme Court has interpreted
Section 226.7(b) to mean that employers must “relinquish
any control over how employees spend their break time.”
Augustus v. ABM Sec. Servs., Inc., 385 P.3d 823, 826 (Cal.
2016) (citing Brinker Rest. Corp. v. Superior Court, 273
P.3d 513, 535–36 (Cal. 2012)).
From 2014 to at least 2020, Kirkland’s rest break policy
expressly stated that employees could not leave store
premises during working hours without their supervisor’s
permission, except for meal breaks. For example, the 2016
policy stated: “Rest breaks are scheduled and must be noted
and signed off on the Daily Game Plan. Employees are not
to leave the store premises during scheduled working hours
without permission of their supervisor, with the exception of
meal periods.” (Other versions of the handbook in the record
reflect the same policy, even if the precise language varies).
6 MILES V. KIRKLAND’S STORES INC.
Miles argues that this policy violates California labor law
because it prevented employees from taking breaks away
from the store.
B. Miles’ Bag Check Claim
Under California law, employers must pay employees
for all hours worked. Cal. Lab. Code § 1194(a).
Between 2014 and 2019, Kirkland’s bag check policy
stated that “all employees will be subject to a VISUAL
inspection of all personal belongings in their possession any
time they leave the store premises (i.e., end of work shifts,
breaks, store errands).” The policy also required that the
inspection “be conducted by a manager at the store entrance,
inside of the store.” Employees, however, clock in and out
at the register, not at the store entrance. Miles argues that
Kirkland’s failed to pay employees for the small sliver of
time between when employees clocked out at the register
and walked to the store entrance to get their bag checked.
II. The district court denied class certification for
both classes.
The district court denied class certification because it
found that common issues failed to predominate over
individual ones under Rule 23(b)(3) of the Federal Rules of
Civil Procedure for both the Rest Break and Bag Check
Claims.
For the Rest Break Claim, the district court assumed in
part that on-premises rest breaks do not automatically violate
California law. It then held that in the “absence of evidence
that Kirkland’s Stores’ rest period policy, as implemented
class-wide, violates California law,” it “‘would have to
conduct individualized inquiries’ into whether each Subclass
MILES V. KIRKLAND’S STORES INC. 7
member was denied a duty-free rest break while being
required to stay on premises.”
And for the Bag Check Claim, the district court denied
certification because “there is insufficient evidence to
demonstrate a general practice across Kirkland’s Stores’
California facilities of unlawful bag checks that
predominates over individualized inquiries.”
STANDARD OF REVIEW
We review a district court’s denial of class certification
for abuse of discretion. Parra v. Bashas’, Inc., 536 F.3d 975,
977 (9th Cir. 2008). A legal error “is a per se abuse of
discretion.” Abdullah v. U.S. Sec. Assocs., Inc., 731 F.3d
952, 956 (9th Cir. 2013) (citing Yokoyama v. Midland Nat.
Life Ins. Co., 594 F.3d 1087, 1091 (9th Cir. 2010)). A
district court also “abuses its discretion if it (1) relies on an
improper factor, (2) omits a substantial factor, or (3)
commits a clear error of judgment in weighing the correct
mix of factors.” Id. Lastly, “[w]e review the district court’s
findings of fact under the clearly erroneous standard,
meaning we will reverse them only if they are (1) illogical,
(2) implausible, or (3) without ‘support in inferences that
may be drawn from the record.’” Id. (quoting United States
v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009)).
ANALYSIS
We hold that the district court erred in denying class
certification of the Rest Break Claim, but that it properly
denied certification of the Bag Check Claim.
8 MILES V. KIRKLAND’S STORES INC.
I. Rule 23 requires the district court to engage in a
rigorous analysis before certifying a class.
Rule 23 is designed to promote “efficiency and economy
of litigation.” Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538,
553 (1974). “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, 623 (1997). Individual
questions require each class member “to present evidence
that varies from member to member,” while common
questions can be answered by “the same evidence . . . for
each member . . . [or] the issue is susceptible to generalized,
class-wide proof.” Tyson Foods v. Bouaphakeo, 577 U.S.
442, 453 (2016) (internal quotation marks and citation
omitted).
Importantly, a party cannot plead or speculate her way to
class certification. She must marshal facts showing, by a
preponderance of the evidence, that class issues
predominate. See Olean Wholesale Grocery Coop., Inc. v.
Bumble Bee Foods LLC, 31 F.4th 651, 664–65 (9th Cir.
2022) (en banc). She must “show that the common question
relates to a central issue in [her] claim.” Id. at 665 (citing
Wal-Mart Stores Inc. v. Dukes, 564 U.S. 338, 349–50
(2011)). When determining whether common questions
predominate, the court must focus on “important questions
apt to drive the resolution of the litigation.” Ruiz Torres v.
Mercer Canyons Inc., 835 F.3d 1125, 1134 (9th Cir. 2016).
But a party opposing class certification can “invoke
individualized issues and provide sufficient evidence that the
individualized issues bar recovery on at least some claims,
thus raising the spectre of class-member-by-class-member
adjudication of the issue.” Van v. LLR, Inc., 61 F.4th 1053,
MILES V. KIRKLAND’S STORES INC. 9
1067 (9th Cir. 2023) (citing True Health Chiropractic, Inc.
v. McKesson Corp., 896 F.3d 923, 932 (9th Cir. 2018)).
For a wage and hour claim, an employer’s official
policies “are relevant to the Rule 23(b)(3) analysis,” but a
district court abuses its discretion by “rely[ing] on such
policies to the near exclusion of other relevant factors
touching on predominance.” In re Wells Fargo Home
Mortg. Overtime Pay Litig., 571 F.3d 953, 955 (9th Cir.
2009). Indeed, a district court must engage in a “rigorous
analysis” of all the evidence—including how the policies
were enforced, implemented and followed—in determining
whether to certify a class. Wal-Mart, 564 U.S. at 350–51
(quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160
(1982)).
II. The district court erred in denying class
certification of the Rest Break Claim.
We reverse the district court’s denial of class
certification of the Rest Break Claim because it incorrectly
found that Kirkland’s applied its rest break policy
inconsistently during the proposed class period from May
2014 to the present.
Kirkland’s admitted that it had a “uniform employee
handbook policy requiring employees to remain on premises
during their 10-minute paid rest breaks until sometime in
2018.” That rest break policy states: “Rest breaks are
scheduled and must be noted and signed off on the Daily
Game Plan. Employees are not to leave the store premises
during scheduled working hours without the permission of
their supervisor.” In other words, it is undisputed that
Kirkland’s rest break policy (at least from May 2014 until
10 MILES V. KIRKLAND’S STORES INC.
sometime in 2018) expressly barred employees from leaving
the stores during their rest break.1
But a company’s policy by itself—even if it remains
constant during the class period—is not an elixir that turns
canned allegations in a complaint into a pot of class action
gold. We still need to look at evidence of whether the
company consistently implemented and enforced the policy
across all employees during the class period. See Wal-Mart,
564 U.S. at 350 (“Rule 23 does not set forth a mere pleading
standard. [A party must] prove that there are in fact”
commonality and predominance of common issues). The
parties here dispute how Kirkland’s enforced this policy with
each side submitting dueling declarations from employees
and managers. Miles submitted eight declarations from
employees who stated that Kirkland’s required employees to
stay on store property during rest breaks from May 2014 to
sometime in 2018. Meanwhile Kirkland’s offered nine
declarations that purportedly show the opposite.
The district court, after examining these declarations,
determined that it “would have to conduct individualized
inquiries into whether each Subclass member was denied a
duty-free rest break while being required to stay on
premises.”
But the district court appears to have misinterpreted
those declarations. The declarations cited by the district
court only discuss store conditions in 2021, not the entire
1
Miles’ proposed subclass consists of employees from “2014 to final
judgment.” But sometime in 2018—around the time Miles sued—
Kirkland’s stopped enforcing the rest break policy uniformly, even
though the 2018-2020 handbooks still appear to require on-premises rest
breaks. Miles appears to concede this fact, so any proposed class period
should not extend beyond sometime in 2018.
MILES V. KIRKLAND’S STORES INC. 11
class period from 2014 to the present. These declarations do
not establish that Kirkland’s employees could have left the
store premises for their rest breaks from 2014 to 2018. For
example, Heather Macaulay’s declaration dated June 6,
2021, states that “[e]mployees are free to leave the store for
their 10-minute rest break but most remain in the store.”
(emphasis added). It says nothing about the policy from
2014 to 2018. The Carrie Hebert, Tina Oldaker, and Katrina
Flora declarations all suffer from the same flaw. None of
these declarations counter the evidence that, from 2014 to
2018, Kirkland’s—in its policy and practice—barred
employees from leaving the store during rest breaks. And
Brian Klagenberg’s declaration submitted by Kirkland’s
appears to support Miles’ contention that employees from
2014 to 2018 could not leave the stores during their break:
When I first started employees were free to
leave the store, this lasted for about two
years. Then for about four years the policy
changed so that employees were limited to
where they could go off the store property for
rest breaks – they could go wherever they
wanted on the store property. This changed
again about two to three years ago.
Employees are once against free to leave the
store for their 10-minute rest break.
In sum, the district court erred in holding that individual
issues would predominate over common ones for the Rest
Break Claim—at least based on the record before us—
because the evidence shows that (i) Kirkland’s written policy
expressly forbid employees from taking breaks away from
the store and (ii) Kirkland’s consistently enforced that policy
across its stores from at least May 2014 to sometime in 2018.
12 MILES V. KIRKLAND’S STORES INC.
To be sure, Kirkland’s provided a few declarations that
some employees left the store during their rest breaks. But a
smattering of examples involving a few isolated cases does
not automatically defeat class certification if, as here, the
overwhelming evidence shows that the company
consistently enforced its policy across all employees. See
Senne v. Kansas City Royals Baseball Corp., 934 F.3d 918,
938 (9th Cir. 2019) (“Predominance in employment cases is
rarely defeated on the grounds of differences among
employees so long as liability arises from a common practice
or policy of an employer.”) (citation and quotation marks
omitted).
We thus remand to the district court to reassess the
evidence and apply the remaining Rule 23 requirements to
the Rest Break Claim, consistent with this opinion.2
2
We also note that district court appears to have assumed that on-
premises rest breaks do not violate California law so long as the
employees are not tasked with any responsibilities. But cf. Augustus, 385
P. 3d at 832 (“employees must not only be relieved of work duties, but
also be freed from employer control over how they spend their time”);
Rest Periods / Lactation Accommodation,
https://www.dir.ca.gov/dlse/faq_restperiods.htm (April 2021)
(California Division of Labor Standards Enforcement interpreting
Augustus to mean that on-premises rest breaks were unlawful). That is
a merits question that should be left for summary judgment or trial, not
at class certification. See Edwards v. First Am. Corp., 798 F.3d 1172,
1178 (9th Cir. 2015) (“A court, when asked to certify a class, is merely
to decide a suitable method of adjudicating the case and should not turn
class certification into a mini-trial on the merits.” (internal quotations
and citation omitted)).
MILES V. KIRKLAND’S STORES INC. 13
III. The district court correctly denied class
certification of Miles’ Bag Check Claim.
During the proposed class period, Kirkland’s bag check
policy stated that “all employees will be subject to a
VISUAL inspection of all personal belongings in their
possession any time they leave the store premises. . . . [to]
be conducted by a manager at the store entrance, inside of
the store.” Miles argues that Kirkland’s shortchanged its
employees because the bag checks were conducted off-the-
clock—that is, the employees should have been paid for the
short time between when they “clocked out” at the register
and when they had their bags checked at the store entrance
before leaving.
The parties agree that Kirkland’s had a uniform bag
check policy during the class period. But “the mere
existence” of a company policy—with little evidence that it
was implemented or enforced uniformly—does “not
constitute significant proof that a class of employees were
subject to an unlawful practice.” See Davidson v. O’Reilly
Auto Enters., LLC, 968 F.3d 955, 968 (9th Cir. 2020)
(quoting Wal-Mart, 564 U.S. at 353) (cleaned up). And here,
the district court did not clearly err in finding that Kirkland’s
did not uniformly enforce and implement the bag check
policy. Indeed, the very nature of Kirkland’s bag check
policy likely lends itself to highly individualized inquiries.
Again, the parties offered competing evidence on
whether the bag check policy was applied uniformly with
seven declarations from Miles and nearly two dozen from
14 MILES V. KIRKLAND’S STORES INC.
Kirkland’s.3 The district court found ample reasons why
Miles failed to show a systematic practice of bag checks that
would be well-suited to a class-wide challenge.
Unlike the rest break policy—which appears to have
been enforced uniformly except for a few isolated
examples—the evidence suggests that Kirkland’s enforced
the bag check policy sporadically.4 Given the uneven
enforcement of the policy, the court would have to embark
on a time-intensive mission to figure out the individual
circumstances of each proposed class member: which stores
and managers enforced the bag check policy, what days this
policy was enforced, which employees were subjected to
them, and so on. This type of individualized analysis is not
amenable to class treatment. See Zinser v. Accufix Rsch.
Inst., Inc., 253 F.3d 1180, 1189 (9th Cir. 2001) (“[I]f the
main issues in a case require the separate adjudication of
each class member’s individual claim or defense, a
Rule 23(b)(3) action would be inappropriate” (alteration in
original) (quoting 7A Charles Alan Wright & Arther R.
Miller, Federal Practice & Procedure § 1778 at 535–39 (2d
ed. 1986))).
Not only did Kirkland’s often fail to enforce the bag
check policy, but its stores also implemented it in different
3
We emphasize that evaluating competing declarations is not a mere
bean-counting exercise. Both the quantity and quality of the declarations
matter. District courts thus must rigorously analyze the content of the
declarations and weigh their persuasiveness.
4
For example, Hayley Cocchiarella’s declaration states: “When I was
first hired we did bag checks sporadically. We didn’t always conduct
bag checks because there really wasn’t a need… No one that I know
brings big bags… Some employees stopped bringing bags into the store
so there was no need for a bag check.”
MILES V. KIRKLAND’S STORES INC. 15
ways when they did enforce the policy. At many stores, the
bag checks were not necessarily conducted off the clock.5
Miles assumes that an employee would clock out at the
register, and then have his or her bag checked later at the
entrance of the store. But the evidence shows that many
employees’ bags were checked at the same place and time
that they clocked out. A court would thus have to inquire
into the individual practices of each store, manager, and
employee—something that would not allow a court to
resolve the issue in “one stroke.” Wal-Mart, 564 U.S. at 350.
We have denied class certification in similar cases
implicating highly individualized inquiries into each
proposed class member, despite a facially uniform policy.
For example, in Castillo, the plaintiffs challenged the
employer’s overtime formulas. Castillo v. Bank of America,
NA, 980 F.3d 723, 727 (9th Cir. 2020). This Court found
that common issues about the legality of the formulas were
outweighed by “complicated questions of who was ever
exposed to [the] policies, and whether those who were
exposed were harmed in a way giving rise to liability.” Id.
at 733. Here, there are similarly individualized questions,
and common issues do not predominate over individual
ones.
Even if the bag check policy had been enforced
uniformly, we would still likely be mired in individualized
inquiries here—unlike with the Rest Break Claim. Some
5
Hayley Cocchiarella’s declaration also states: “If a bag check was
conducted, it would only take a second and would be a glance as the
employee was clocking out.” Similarly, Dawn Sanchez’s declaration
states: “The bag checks were supposed to be done in front of a camera
but since our cash rap is by the front door we were able to do the bag
check right by the cash rap and walk out.”
16 MILES V. KIRKLAND’S STORES INC.
policies by their nature may implicate each proposed class
member’s personal preferences, practices, or proclivities,
casting doubt on the viability of class treatment. Kirkland’s
bag check policy is a prime example. For example, not all
employees underwent a bag check because not every
employee brought a bag to work.6 Kirkland’s presumably
has no record of which employees brought a bag or on what
days. A court would thus likely have to engage in highly
individualized analysis of each proposed class member to
see if he or she brought a bag to work, and if so, on what
days. See Id. at 731 (affirming the denial of class
certification when “determining liability for all class
members would require complicated individualized
inquiries”). Such a fact-intensive inquiry into each class
member’s conduct and practice would mean that individual
issues would overwhelm common ones.
Further, employees could use time adjustment logs to
record uncompensated time if they believed that their bags
had been checked after clocking out.7 A court would have
to scour through and analyze individual records to figure out
if someone belongs to the class, undermining the efficiency
of class adjudication.
These individual questions are not the sort of “plug-and-
play” determinations that we have held may not defeat class
certification. Cf. Levya v. Medline Indus., Inc., 716 F.3d 510(9th Cir. 2013) (holding that simple individualized damages
6
Both Brian Klagenberg and Dawn Sanchez stated: “Many employees
don’t come in with anything.”
7
In her deposition, Janis Warnement said that if bag checks happened
after employees clocked out, “they should have put time on the time
adjustment log to record any time worked.”
MILES V. KIRKLAND’S STORES INC. 17
calculations do not defeat predominance). Rather, these
individualized questions would have to be resolved through
a series of mini-trials, undermining the “efficiency and
economy” that Rule 23 was designed to promote. Am. Pipe
& Constr. Co., 414 U.S. at 553.
CONCLUSION
We REVERSE the district court’s denial of class
certification for the subclasses that rely on the Rest Break
Claim and REMAND for further proceedings consistent
with this opinion. We AFFIRM the district court’s denial
of class certification for the subclasses that rely on Miles’
Bag Check Claim.