FILED

NOT FOR PUBLICATION

APR 1 2021

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAMES COLE, on behalf of himself and No. 17-55606 all others similarly situated, D.C. No. Plaintiff-Appellant, 5:08-cv-01570-VAP-SP

v.

MEMORANDUM*

CRST VAN EXPEDITED, INC., FKA

CRST, Inc., an Iowa Corporation

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California Virginia A. Phillips, District Judge, Presiding

Argued and Submitted November 5, 2018 Pasadena, California Submission Deferred August 1, 2019 Resubmitted March 25, 2021

Before: RAWLINSON and HURWITZ, Circuit Judges, and BOUGH,** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Stephen R. Bough, United States District Judge for the Western District of Missouri, sitting by designation. James Cole (Cole) appeals the district court’s orders granting summary

judgment in favor of Appellee CRST Van Expedited, Inc. (CRST), and granting

CRST’s motion to decertify Cole’s meal and rest break subclasses. Cole contends

that the district court erred in holding that CRST satisfied its obligations under

California law to provide meal and rest breaks to its truck drivers. Cole further

asserts that the district court erred in decertifying his meal and rest break

subclasses due to a failure to satisfy the predominance requirement under Federal

Rule of Civil Procedure 23(b)(3).

The district court correctly applied California law in granting summary

judgment in favor of CRST because Cole failed to demonstrate that CRST

precluded its drivers from taking the mandated meal and rest breaks. See Brinker

Rest. Corp. v. Superior Ct., 273 P.3d 513, 537 (Cal. 2012) (explaining that “the

employer is not obligated to police meal breaks and ensure no work thereafter is

performed” because “[b]ona fide relief from duty and the relinquishing of control

satisfies the employer’s obligations” ). Under the circumstances of this case,

involving discretion afforded to CRST truck drivers to plan their trips and take

breaks, the district court properly held that CRST fulfilled its obligations under

California law. In his deposition, Cole related that, if he wanted to stop and take a

break, he could “always . . . do that,” and confirmed that CRST did not instruct

2 him not to take breaks. Cole’s description of his ability to take meal and rest

breaks was consistent with the testimonies of other CRST drivers. Although Cole

contends that CRST’s mileage requirements precluded the taking of breaks, his

deposition testimony, as well as that of other CRST drivers, undermined that

assertion. Summary judgment was warranted because the evidence reflects that

CRST “relieve[d] its employees of all duty, relinquishe[d] control over their

activities and permit[ted] them a reasonable opportunity to take an uninterrupted

30-minute break, and [did] not impede or discourage them from doing so.”

Brinker, 273 P.3d at 536-37; see also Rodriguez v. Taco Bell Corp., 896 F.3d 952,

956 (9th Cir. 2018) (applying Brinker and holding that the employer satisfied meal

break requirements because it “relieve[d] employees of all duty and relinquish[ed]

control over their activities”).1 As a result, Cole failed to raise a material issue of

fact regarding CRST’s compliance with the mandated rest and meal breaks. See

Momox-Caselis v. Donohue, 987 F.3d 835, 841 (9th Cir. 2021) (explaining that

“[t]he nonmoving party must produce specific facts, by affidavit or other

1 Cole also asserts that a material factual dispute exists concerning whether CRST’s posting of a copy of the IWC wage order at its Fontana Terminal satisfied the requirements of California Labor Code § 1183(d). However, the undisputed deposition testimony of Randy Kopecky, a CRST representative, that meal and rest break requirements were posted in the “main classroom facilities” and “in the maintenance facility” at the Fontana Terminal forecloses this contention. 3 evidentiary materials, to show that there is a genuine issue for trial”) (citation

omitted) (emphasis in the original).

The district court did not abuse its discretion in decertifying the meal and

rest period subclasses because Cole was unable to satisfy the predominance

requirement imposed by Federal Rule of Civil Procedure 23(b)(3). Based on the

deposition testimonies of CRST drivers, the district court properly concluded that

individualized inquiries predominated regarding the multitude of reasons that

CRST drivers may or may not have taken the entire meal and rest periods afforded

under California law and provided by CRST. See Payton v. CSI Elec. Contractors,

Inc., 27 Cal. App. 5th 832, 842 (2018) (affirming denial of class certification

premised on rest break violations because “plaintiffs may not simply allege a

uniform policy or practice, but must present substantial evidence that proving both

the existence of the defendant’s uniform policy or practice and the alleged illegal

effects of that policy or practice could be accomplished efficiently and manageably

within a class setting”) (citation and internal quotation marks omitted).

Additionally, Cole failed to demonstrate that the absence of a formal meal and rest

break policy supports class certification because, as discussed, CRST drivers were

able to take breaks unimpeded by the lack of a formal policy. See id. (opining that

“a class plaintiff’s theory of common proof must be more than wishful thinking; it

4 must have a foundation in the evidence”); see also McCleery v. Allstate Ins. Co.,

37 Cal. App. 5th 434, 451-52 (2019) (holding that, although the California

Supreme Court has not decided whether the mere absence of a formal meal and rest

break policy is sufficient to establish liability, class certification was improper due

to predominance of individualized inquires and insufficient evidence of

violations).2

AFFIRMED.

2 We certified to the California Supreme Court questions as to whether the absence of a formal meal and rest break policy and the employer’s failure to keep records violate California law. See Cole v. CRST Van Expedited, Inc., 932 F.3d 871, 873 (9th Cir. 2019). The California Supreme Court denied our request to address these questions. 5