Sandra Garcia v. Sun Pacific Farming Cooperative , 359 F. App'x 724 ( 2009 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT NOV 13 2009
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
SANDRA GARCIA; ANTONIO POMPA No. 08-16815
AYON, On behalf of themselves and a
class of others similarly situated, D.C. No. 1:06-cv-00871-LJO-
TAG
Plaintiffs - Appellants,
v. MEMORANDUM *
SUN PACIFIC FARMING
COOPERATIVE, INC., A California
corporation; SUN PACIFIC FARMING
CO., Form Unknown,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Argued and Submitted November 4, 2009
Stanford, California
Before: RYMER, McKEOWN and N.R. SMITH, Circuit Judges.
Sandra Garcia and Antonio Pompa Ayon, two former employees of Sun
Pacific Farming Cooperative, Inc. (“Sun Pacific”), appeal from the district court’s
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
denial of their motion for class certification. Garcia and Ayon seek to certify a
class of Sun Pacific agricultural workers alleging various wage and hour violations
under federal and state law. Because Garcia and Ayon have not met the
requirements of commonality and typicality under Federal Rule of Civil Procedure
23(a), we affirm.
As the district court explained, the record evidence–in particular, the
conflicting employee declarations submitted by each party–does not establish
common wage and hour practices at Sun Pacific, but rather the “[in]consistent
application of the wage and hour laws between and among the various [work]
Crews.” Garcia and Ayon thus failed to demonstrate that proposed class members
“share[] legal issues with divergent factual predicates” or a “common core of
salient facts coupled with disparate legal remedies.” Hanlon v. Chrysler Corp., 150
F.3d 1011, 1019 (9th Cir. 1998). Similarly, the evidence at best showed that
Garcia and Ayon’s practice claims were typical–or “reasonably co-extensive,” id.
at 1020–with only some of the proposed class members, but atypical of others. It
was well within the district court’s discretion to deny class certification on this
basis. Although Garcia and Ayon also argue they established commonality and
typicality based on certain Sun Pacific policies–such as the speed limit on company
property–those arguments were never raised before the district court and are
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therefore waived. Whittaker Corp. v. Execuair Corp., 953 F.2d 510, 515 (9th Cir.
1992).
The district court also did not abuse its discretion in refusing to certify
subclasses as to particular alleged violations, such as the requirement that workers
wash their bins at home without pay, because Garcia and Ayon failed to request
partial certification on these issues. The district court is under no obligation to
reach the issue of partial certification sua sponte. See Lozano v. AT&T Wireless
Servs., Inc., 504 F.3d 718, 729-30 (9th Cir. 2007).
Finally, the district court did not abuse its discretion in refusing to reopen
discovery so that Garcia and Ayon could depose workers who submitted
declarations on Sun Pacific’s behalf. Garcia and Ayon argue that additional
discovery was warranted because one of Sun Pacific’s declarants recanted her
previous testimony. However, as noted by the district court, there was “no
evidence . . . that defense counsel’s conduct [in preparing the employee’s
declaration] was improper.” Thus, further discovery was not necessary to resolve
the issue of class certification. See Kamm v. Cal. City Dev. Co., 509 F.2d 205,
209-10 (9th Cir. 1975).
AFFIRMED.
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