Sali v. Corona Regional Medical Center

          D.C. No. 5:14-cv-00985-PSG-JPR

          Before: M. Margaret McKeown and Kim McLane Wardlaw, Circuit Judges, and Salvador Mendoza, Jr., ^[*] District Judge.

         SUMMARY ^[**]

         Class Certification

         The 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.

         Judge 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 issue.

          ORDER

         The panel has voted to deny the petition for panel rehearing.

         The 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.

         The petition for panel rehearing and the petition for rehearing en banc are DENIED.

          BEA, Circuit Judge, joined by BYBEE, CALLAHAN, IKUTA, and BENNETT, Circuit Judges, dissenting from the denial of rehearing en banc:

         I 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.^[1] 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^[2]-that the plaintiffs have damages typical of the class sought to be certified.

         This doesn't pass the straight-face test.

         It is 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 guidance.

         I

         This 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 ...