Marlyn Sali and Deborah Spriggs, on behalf of themselves, all others similarly situated and the general public, Plaintiffs-Appellants,
Corona Regional Medical Center; UHS of Delaware Inc., Defendants-Appellees.
Before: M. Margaret McKeown and Kim McLane Wardlaw, Circuit
Judges, and Salvador Mendoza, Jr., [*] District Judge.
panel filed an order denying a petition for panel rehearing
and a petition for rehearing en banc, in a case in which the
panel reversed the district court's denial of class
certification in a putative class action.
Bea, joined by Judges Bybee, Callahan, Ikuta, and Bennett,
dissented from the denial of rehearing en banc because he
would hold that the panel erred in concluding that expert
opinion testimony need not be admissible evidence in order to
be considered at the class certification stage. Judge Bea
wrote that the panel's decision goes against the
court's own binding precedent, the law of four other
circuits, and the Supreme Court's clear guidance on the
panel has voted to deny the petition for panel rehearing.
full court was advised of the petition for rehearing en banc.
A judge requested a vote on whether to rehear the matter en
banc. The matter failed to receive a majority of votes of the
nonrecused active judges in favor of en banc consideration.
Fed. R. App. P. 35.
petition for panel rehearing and the petition for rehearing
en banc are DENIED.
Circuit Judge, joined by BYBEE, CALLAHAN, IKUTA, and BENNETT,
Circuit Judges, dissenting from the denial of rehearing en
regret that we decided not to rehear this case en banc
because we could have corrected our own errors. Rather than
do that, we have established a rule that undermines the
purpose of the class certification proceeding. We have been
instructed by the Court that facts necessary to establish the
elements of a class cannot simply be those that meet a
pleading standard. But the panel has reduced the requirements
of class certification below even a pleading
standard. It has accepted the undisputedly inadmissible
opinion of plaintiffs' paralegal-not even that
of an attorney who is subject to certain pleading
standards-that the plaintiffs have damages typical
of the class sought to be certified.
doesn't pass the straight-face test.
no surprise the panel's holding that expert opinion
testimony need not be admissible at the class certification
stage is contrary to our own precedent, but also contrary to
decisions of four other circuits and clear Supreme Court
case arises out of a wage and hour class action under
California law. Sali v. Corona Reg'l Med. Ctr.,
889 F.3d 623 (9th Cir. 2018). The two named plaintiffs,
Marlyn Sali and Deborah Spriggs ("Plaintiffs"), are
Registered Nurses ("RNs") who were formerly
employed by Corona Regional Medical Center
("Corona"). Id. at 627. Plaintiffs brought
a putative class action alleging that, during their
employment by Corona, they and other nurses were subject to a
number of policies and practices that violated