Daniel Campbell v. City of Los Angeles

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DANIEL CAMPBELL; et al, * No. 15-56990

Plaintiffs-Appellants,

D.C. No.

v. 2:04-cv-08592-

AG-AJW

CITY OF LOS ANGELES,

Defendant-Appellee.

CESAR MATA, No. 16-55002

Plaintiff,

D.C. No.

and 2:07-cv-06782-

AG-AJW

RICHARD D. ALBA; et al.,

Plaintiffs-Appellants,

OPINION

v.

CITY OF LOS ANGELES,

Defendant-Appellee.

Appeal from the United States District Court

for the Central District of California

Andrew J. Guilford, District Judge, Presiding

*

Due to the number of parties in these appeals, the individual parties

are listed in the attached Appendix.

2 CAMPBELL V. CITY OF LOS ANGELES

Argued and Submitted November 8, 2017

Pasadena, California

Filed September 13, 2018

Before: Richard Linn, ** Marsha S. Berzon,

and Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Berzon

SUMMARY ***

Labor Law

The panel affirmed the district court’s decertification of

two related collective actions brought under the Fair Labor

Standards Act by officers of the Los Angeles Police

Department, alleging a pervasive, unwritten policy

discouraging the reporting of overtime.

The district court granted the City’s motion for

decertification and dismissed the officers without prejudice

to refiling their FLSA claims individually. The original

plaintiffs in the two decertified actions then reached

settlements with the City on their own claims, and the district

court entered final judgment. Although no longer plaintiffs

at that point, the officers filed timely appeals from final

**

The Honorable Richard Linn, United States Circuit Judge for the

U.S. Court of Appeals for the Federal Circuit, sitting by designation.

***

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

CAMPBELL V. CITY OF LOS ANGELES 3

judgment, challenging their decertification and dismissal.

Agreeing with the Eleventh Circuit, and disagreeing with the

Third Circuit, the panel held that the officers had standing to

appeal because opt-in plaintiffs are parties to the collective

action, and an order of decertification and dismissal disposes

of their statutory right to proceed collectively. They

therefore have standing to appeal and may do so after the

interlocutory decertification order to which they are adverse

merges with final judgment.

The panel further held that the collective actions were

properly decertified and the officers properly dismissed for

failure to satisfy the “similarly situated” requirement of the

FLSA. Rejecting other approaches to this requirement, the

panel held that party plaintiffs are similarly situated, and

may proceed as a collective, to the extent they share a similar

issue of law or fact material to the disposition of their FLSA

claims. Addressing post-discovery decertification, the panel

held that, when decertification overlaps with the merits of

the underlying FLSA claims, the summary judgment

standard applies. The panel concluded that the officers

failed, as a matter of law, to create a triable question of fact

regarding the existence of a department-wide policy or

practice. In the absence of such a policy or practice, and in

the absence of allegations of any other similarity of law or

fact material to the disposition of the officers’ claims, the

officers were not “similarly situated” within the meaning of

the FLSA.

4 CAMPBELL V. CITY OF LOS ANGELES

COUNSEL

Gregory Glenn Petersen (argued), Gregory G. Petersen A

Law Corporation, Santa Ana, California, for Plaintiffs-

Appellants.

Brian P. Walter (argued), Geoffrey S. Sheldon, David A.

Urban, and Danny Y. Yoo, Liebert Cassidy Whitmore, Los

Angeles, California; for Defendant-Appellee.

OPINION

BERZON, Circuit Judge:

The present appeal arises from the decertification of a

pair of related collective actions brought under the Fair

Labor Standards Act (“FLSA”), 29 U.S.C. § 207. Between

2004 and 2009, roughly 2,500 officers (“the Officers”) of the

Los Angeles Police Department (“the Department”) opted

into two collective actions alleging a pervasive, unwritten

policy discouraging the reporting of overtime. After notice

to potential collective action members and several years of

discovery, the government defendant, the City of Los

Angeles (“the City”), moved for decertification of the

collective actions on the ground that the Officers within each

were not “similarly situated” within the meaning of section

16(b) of the FLSA, 29 U.S.C. § 216(b). According to the

City, if any Officers were denied pay for their earned

overtime, it was due to unrelated instances of worksite- and

supervisor-specific misconduct, rather than a single,

Department-wide policy or practice.

The district court granted the City’s motion for

decertification and dismissed the Officers without prejudice

CAMPBELL V. CITY OF LOS ANGELES 5

to refiling their FLSA claims individually. 1 The original

plaintiffs in the two decertified actions then reached

settlements with the City on their own claims, and the district

court entered final judgment. Although no longer plaintiffs

at that point, the Officers filed timely appeals from final

judgment, challenging their decertification and dismissal.

We are asked first whether the Officers can appeal a

decertification order when they were dismissed from the

collective action before final judgment and without

prejudice to their individual FLSA claims. We hold that they

can. Opt-in plaintiffs are parties to the collective action, and

an order of decertification and dismissal disposes of their

statutory right to proceed collectively. They therefore have

standing to appeal and may do so after the interlocutory

decertification order to which they are adverse merges with

final judgment.

We are asked next whether the collective actions here

were properly decertified and the Officers properly

dismissed for failure to satisfy the “similarly situated”

requirement of the FLSA. We hold that they were.

Although the district court erred in its interpretation of the

“similarly situated” requirement and in the standard it

applied in evaluating decertification, a de novo review of the

record reflects that the Officers failed, as a matter of law, to

create a triable question of fact regarding the existence of a

Department-wide policy or practice. In the absence of such

a policy or practice, and in the absence of allegations of any

other similarity of law or fact material to the disposition of

1

The City filed a motion for decertification in each case. The

motions were identical, as were the orders granting them, so we refer to

them in the singular.

6 CAMPBELL V. CITY OF LOS ANGELES

the Officers’ claims, the Officers were not “similarly

situated” within the meaning of the FLSA.

I

Because much of this case turns on terminology and

procedures specific to the FLSA, we begin with a brief

explanation of 29 U.S.C. § 216(b) and the collective action

mechanism that arises from it. 2

The relevant language of section 216(b) is spare:

An action to recover the liability prescribed

in [this subsection] may be maintained

against any employer (including a public

agency) in any Federal or State court of

competent jurisdiction by any one or more

employees for and in behalf of himself or

themselves and other employees similarly

situated. No employee shall be a party

plaintiff to any such action unless he gives his

consent in writing to become such a party and

such consent is filed in the court in which

such action is brought. . . . The right

provided by this subsection to bring an action

by or on behalf of any employee, and the right

of any employee to become a party plaintiff

2

Section 216(b) also applies to actions under the Age

Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623,

because the ADEA “incorporates enforcement provisions of the

[FLSA]” and “provides that the ADEA shall be enforced using certain

of the powers, remedies, and procedures of the FLSA.” Hoffmann-La

Roche Inc. v. Sperling, 493 U.S. 165, 167 (1989). We here refer to the

collective action as an FLSA mechanism because the FLSA is the

originating statute, and because in this case only the FLSA is at issue.

CAMPBELL V. CITY OF LOS ANGELES 7

to any such action, shall terminate upon the

filing of a complaint by the Secretary of

Labor . . . .

29 U.S.C. § 216(b).

It is evident from the statute that workers may litigate

jointly if they (1) claim a violation of the FLSA, (2) are

“similarly situated,” and (3) affirmatively opt in to the joint

litigation, in writing. Id. It is evident also that the “right” to

litigate jointly has two permutations: The statute refers to

“[t]he right . . . to bring an action by or on behalf of any

employee,” and to “the right of any employee to become a

party plaintiff to any such action,” id. — that is, the right to

bring the collective litigation and the right to join it. But the

statute specifies little else. It does not prescribe terms for the

resulting proceeding. It does not provide a definition of

“similarly situated,” on which access to the collective

mechanism typically turns. It does not establish a process

for evaluating the propriety of a collective proceeding as

litigation unfolds — for example, it makes no mention of

“certification” or “decertification” of a collective action.

And it says nothing about the standard the district court

should apply when the collective mechanism is challenged.

Given these gaps, much of collective action practice is a

product of interstitial judicial lawmaking or ad hoc district

court discretion. In particular, although nothing in section

216(b) expressly compels it, it is now the near-universal

practice to evaluate the propriety of the collective

mechanism — in particular, plaintiffs’ satisfaction of the

“similarly situated” requirement — by way of a two-step

“certification” process. See 1 McLaughlin on Class Actions

8 CAMPBELL V. CITY OF LOS ANGELES

§ 2:16 (14th ed. 2017). 3 As this process most often

functions, plaintiffs will, at some point around the pleading

stage, move for “preliminary certification” of the collective

action, contending that they have at least facially satisfied

the “similarly situated” requirement. See 1 McLaughlin on

Class Actions § 2:16. Later, after the necessary discovery is

complete, defendants will move for “decertification” of the

collective action on the theory that the plaintiffs’ status as

“similarly situated” was not borne out by the fully developed

record. Id.

We will address in subsequent sections the propriety of

this two-step approach, as well as the proper means of

evaluating whether plaintiffs are entitled to litigate in a

collective action. As an initial matter, however, it is useful

to address certain common misconceptions about the

“preliminary certification” and “decertification” of

collective actions.

As noted, neither “certification” nor “decertification”

appears in text of section 216(b). The terms have instead

been adopted from Federal Rule of Civil Procedure 23,

which governs class actions in federal court. The underlying

assumption of that appropriation seems to be that collective

and class actions, which to a degree resemble one another,

must be handled in procedurally parallel ways. That

assumption is unfounded.

3

See e.g., Sandoz v. Cingular Wireless LLC, 553 F.3d 913, 915 n.2

(5th Cir. 2008); Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233,

1260 (11th Cir. 2008); Thiessen v. Gen. Elec. Capital Corp., 267 F.3d

1095, 1105 (10th Cir. 2001); Leuthold v. Destination Am., Inc.,

224 F.R.D. 462, 466–67 (N.D. Cal. 2004) (citing examples).

CAMPBELL V. CITY OF LOS ANGELES 9

Collective actions and class actions are creatures of

distinct texts — collective actions of section 216(b), and

class actions of Rule 23 — that impose distinct requirements.

See 7B Fed. Prac. & Proc. Civ. § 1807 (citing examples of

cases so observing). 4 The “expedient adoption of Rule 23

terminology with no mooring in the statutory text of

§ 216(b)” risks “inject[ing] a measure of confusion into the

wider body of FLSA jurisprudence” — and has likely

already done so. Symczyk v. Genesis HealthCare Corp.,

656 F.3d 189, 194 (3d Cir. 2011), rev’d on other grounds,

569 U.S. 66 (2013).

“Preliminary certification” of an FLSA collective action

— also known as “provisional” or “conditional” certification

— is an example of the confusion sown by the Rule 23

analogy. The term “certification” calls to mind an

affirmative decision by the district court, as in the Rule 23

context, to allow a collective action to go forward. See Fed.

R. Civ. P. 23(c)(1)(A). Yet, unlike in the Rule 23 context,

the district court in a collective action plays no such

gatekeeping role. Preliminary certification in the FLSA

context does not “produce a class with an independent legal

status[] or join additional parties to the action.” Genesis

Healthcare Corp. v. Symczyk, 569 U.S. 66, 75 (2013). “The

sole consequence” of a successful motion for preliminary

certification is “the sending of court-approved written

notice” to workers who may wish to join the litigation as

individuals. Id.

4

See, e.g., Calderone v. Scott, 838 F.3d 1101, 1104 (11th Cir. 2016);

O’Brien v. Ed Donnelly Enters., Inc., 575 F.3d 567, 584–85 (6th Cir.

2009), abrogated on other grounds by Campbell-Ewald Co. v. Gomez,

136 S. Ct. 663 (2016); Grayson v. K Mart Corp., 79 F.3d 1086, 1096

(11th Cir. 1996); Lusardi v. Lechner, 855 F.2d 1062, 1078 (3d Cir.

1988).

10 CAMPBELL V. CITY OF LOS ANGELES

Given its purpose, preliminary certification may take

place after the collective action has already begun. A

collective action is instituted when workers join a collective

action complaint by filing opt-in forms with the district

court. See id.; Rangel v. PLS Check Cashers of Cal., ___

F.3d ___, 2018 WL 3892987, at *2 n.1 (9th Cir. 2018); Smith

v. T-Mobile USA Inc., 570 F.3d 1119, 1122–23 (9th Cir.

2009); Sandoz, 553 F.3d at 919; Morgan, 551 F.3d at 1259.

Whether opt-in forms are filed after or before preliminary

certification is thus entirely up to the workers joining the

litigation; preliminary certification is “neither necessary nor

sufficient for the existence of a [collective] action.” Myers

v. Hertz Corp., 624 F.3d 537, 555 n.10 (2d Cir. 2010)

(emphasis added).

“Decertification” is another appropriation — and

another misappropriation — from the Rule 23 context.

Again, the term implies that a district court has some

threshold role in creating a collective action. But, once

more, section 216(b) does not provide for any “certification”

process in the ordinary sense. Under section 216(b), workers

have a “right” to bring or join a collective action, and may

create the collective action of their own accord by filing opt-

in forms. See 29 U.S.C. § 216(b); Symczyk, 569 U.S. at 75.

For a collective action to be “decertified,” then, means that

the plaintiffs cannot proceed collectively on the existing

complaint because they are not similarly situated, so the opt-

in plaintiffs must be dismissed.

Despite the imprecision, we will adhere to the terms

commonly used in collective action practice, as the terms are

now widespread. For the reasons we have explained, we do

not mean by the use of terms derived for the class action

context to imply that there should be any particular

CAMPBELL V. CITY OF LOS ANGELES 11

procedural parallels between collective and class actions.

See Symczyk, 656 F.3d at 194.

We turn now to the facts and procedural history of this

case.

II

Since at least 2000, the Officers have been subject to a

written, FLSA-compliant policy prohibiting off-the-clock

work. According to this policy, the Officers are required to

report all overtime accurately, in six-minute increments,

whether or not the overtime was approved in advance by a

supervisor. The written policy states that those who fail to

comply may be subject to discipline.

This overtime policy was widely known among the

Officers. Since at least 2000, the overtime policy has been

memorialized in the Officers’ collective-bargaining

agreements, in letters to the Officers from the Los Angeles

Chief of Police, and in the Department manual. No Officer

claims ignorance of the official obligation to report overtime

accurately.

The Officers contend, however, that the Department

follows an unwritten policy that dissuades, and as a practical

matter prevents, accurate time reporting. According to the

Officers, supervisors routinely require short blocks of extra

work — pre-shift work, post-shift work, or work through

meal breaks — yet discourage or reject overtime claims in

amounts of less than one hour.

The Officers’ allegations of an unwritten, Department-

wide policy served two purposes. First, it went to the merits

of the Officers’ FLSA claims. The FLSA requires covered

workers to be paid at least 1.5 times their normal rate for all

12 CAMPBELL V. CITY OF LOS ANGELES

work in excess of forty hours weekly, 29 U.S.C. § 207(a)(1),

provided the employer has actual or constructive knowledge

that the work is occurring. 29 C.F.R. § 785.11; Forrester v.

Roth’s I.G.A. Foodliner, Inc., 646 F.2d 413, 414 (9th Cir.

1981). Employers who violate this requirement are liable for

damages in the amount of the unpaid overtime, “an

additional equal amount as liquidated damages,” and

“reasonable attorney’s fee . . . and costs.” 29 U.S.C.

§ 216(b). An unwritten policy discouraging the reporting of

overtime, if proven at trial, would both lend credence to the

Officers’ claims that they incurred unpaid overtime and help

satisfy the element of knowledge. Second, credible

allegations of a Department-wide policy should suffice to

make the Officers similarly situated, as required to maintain

a collective action. See id.

The first of the two collective actions at issue in this

appeal, Alaniz v. City of Los Angeles, No. CV 04-8592 AG

(AJWx),5 was filed in 2004. By the end of 2007, the Alaniz

collective action had been joined by over 2,200 Officers.

The second of the collective actions, Mata v. City of Los

Angeles, No. CV 07-06782 AG (AJWx), was filed in 2007.

By the end of 2009, it had been joined by over 150 Officers.

The parties in Alaniz stipulated to preliminary

certification of the collective action in mid-2006. The

parties in Mata did not so stipulate. But the two cases were

related by the district court shortly after Mata was filed, and

thereafter proceeded on the same track, with overlapping

discovery. Discovery was extensive, lasted several years,

5

Alaniz has since been styled Johnson v. City of Los Angeles and

Campbell v. City of Los Angeles.

CAMPBELL V. CITY OF LOS ANGELES 13

and was complete for the purposes of decertification at the

time the City filed its decertification motion. 6

The City moved for decertification of both collective

actions in January 2014. In opposition, the Officers

submitted 232 declarations, each from a different Officer

claiming uncompensated overtime. These declarations were

largely identical, except for each declarant’s identifying

information and his or her estimate of the average time spent

each day in unscheduled pre-shift, post-shift, and meal-break

work. A small number of declarations referred to specific

instances of supervisors discouraging or rejecting overtime

reports for small increments of time.

The Officers also submitted 50 declarations, each from a

different Officer, listing types of uncompensated tasks and

stating, generally, that workplace “culture and policy”

discouraged accurate time reporting. These declarations —

also largely identical, except for each declarant’s list of tasks

— stated that supervisors were aware of off-the-clock work

and knew that the Department benefitted from it, but did not

insist that the Officers report it. The declarations also stated

that the declarants learned from their first days with the

Department that, notwithstanding written rules to the

contrary, overtime in amounts of less than one hour was not

to be reported.

In support of its motion for decertification, the City

submitted an analysis of the overtime that was reported.

This analysis, uncontroverted by the Officers, revealed

roughly 6.6 million overtime reports between 2001 and

6

Fact discovery was reopened in October 2013, with a new cutoff

of April 2014. No party has suggested that the reopened discovery was

relevant to the decertification question.

14 CAMPBELL V. CITY OF LOS ANGELES

2014. Of these 6.6 million reports, 330,000 reports were for

overtime of less than one hour, and 112,000 were for

overtime of less than 30 minutes. Of the reports claiming

less than an hour of overtime, 64,000 were filed by plaintiffs

in the Alaniz and Mata actions.

The City also submitted uncontroverted evidence

demonstrating the Officers’ dissimilarity in tasks and in

geographic assignments. According to the declaration

submitted by the Department’s FLSA compliance manager,

the Officers worked at seven different ranks and within each

of the Department’s 31 divisions. The Officers had at least

hundreds of different supervisors among them.

To determine whether, in light of this evidence, the

Officers were “similarly situated” within the meaning of the

FLSA, the district court applied a three-prong test widely

used in district courts both within this circuit and without,

although it has not been endorsed by this court:

First, the district court considered the “factual

and employment setting” of the Officers.

According to the district court, the

“boilerplate” nature of the Officers’

declarations called into question their

evidentiary value, whereas the City’s

uncontroverted evidence reflected

widespread compliance with the overtime

reporting policy, even for fairly short periods

of overtime. As a result, the officers could

not have been subject to a uniform policy

preventing the reporting of overtime period

of less than one hour. In the absence of such

a policy, the district court concluded, the

Officers’ claims were necessarily tied to

discrete worksites and supervisors, and

CAMPBELL V. CITY OF LOS ANGELES 15

unsuited to a collective of the scale the

Officers sought.

Second, the district court considered the defenses

available to the City. The district court found many of these

defenses — lack of actual or constructive knowledge, good

faith, the de minimis nature of the alleged overtime

violations — situation-specific, and thus difficult to address

on a collective basis.

Finally, the district court considered “fairness and

procedural considerations,” and concluded that there was no

benefit to the court or to the parties in attempting to litigate

collectively.

As all three factors weighed in favor of decertification,

the district court granted the City’s motion and dismissed the

Officers without prejudice. Shortly thereafter, the original

plaintiffs, who had been left behind after decertification,

settled their individual FLSA claims with the City. The

district court entered judgment, and the present appeals

followed.

III

Whether opt-in plaintiffs can appeal a decertification

order is a question of first impression in this circuit. The

City raises several objections to appellate jurisdiction and to

the Officers’ standing to appeal — that the opt-in plaintiffs

are not “parties,” that the decertification was interlocutory,

and that the dismissal was without prejudice. None has

merit.

16 CAMPBELL V. CITY OF LOS ANGELES

A

The FLSA leaves no doubt that “every plaintiff who opts

in to a collective action has party status.” Halle v. W. Penn

Allegheny Health Sys. Inc., 842 F.3d 215, 225 (3d Cir. 2016)

(quoting Wright & Miller, 7B Fed. Prac. & Proc. Civ. § 1807

(3d ed. 2018)). Under the FLSA, an opt-in plaintiff’s action

is deemed “commenced” from the date her opt-in form is

filed with the district court. 29 U.S.C. § 256. From that

point on, there is no statutory distinction between the roles

or nomenclature assigned to the original and opt-in

plaintiffs. See Mickles v. Country Club Inc., 887 F.3d 1270,

1278 (11th Cir. 2018). The FLSA does not use the terms

“original” or “opt-in” plaintiff at all; the FLSA instead refers

to all plaintiffs in a collective action as “party plaintiff[s].”

29 U.S.C. § 256(a). 7 Where necessary to distinguish

7

The section reads, in full:

In determining when an action is commenced for the

purposes of section 255 of this title, an action

commenced on or after May 14, 1947 under the Fair

Labor Standards Act of 1938, as amended, the Walsh-

Healey Act, or the Bacon-Davis Act, shall be

considered to be commenced on the date when the

complaint is filed; except that in the case of a

collective or class action instituted under the Fair

Labor Standards Act of 1938, as amended, or the

Bacon-Davis Act, it shall be considered to be

commenced in the case of any individual claimant —

(a) on the date when the complaint is filed, if he is

specifically named as a party plaintiff in the complaint

and his written consent to become a party plaintiff is

filed on such date in the court in which the action is

brought; or

CAMPBELL V. CITY OF LOS ANGELES 17

between the party plaintiffs who brought the suit and those

who joined after its filing, the FLSA speaks only of the party

plaintiffs “specifically named . . . in the complaint” and

those “not so” named. 8 29 U.S.C. § 256(a)–(b). The natural

parallel is to plaintiffs initially named or later added under

the ordinary rules of party joinder. See Fed. R. Civ. P.

20(a)(1).

The contrast with class action practice is instructive.

Rule 23 allows for representative actions in which class

members’ interests are litigated by the named plaintiff. In

part because of the due process concerns inherent such a

proceeding, the district court must initially approve the

creation of a class and the appointment of an adequate

representative. See Phillips Petroleum Co. v. Shutts,

472 U.S. 797, 811–12 (1985); Hanlon v. Chrysler Corp.,

150 F.3d 1011, 1024 (9th Cir. 1998); Blackie v. Barrack,

524 F.2d 891, 910 (9th Cir. 1975). Proceeding as a class

action is thus conditioned on the court’s approval and results

in a less active role in the litigation for members of the class

than if litigating individually.

A collective action, on the other hand, is not a

comparable form of representative action. Just the opposite:

Congress added the FLSA’s opt-in requirement with the

(b) if such written consent was not so filed or if his

name did not so appear--on the subsequent date on

which such written consent is filed in the court in

which the action was commenced.

29 U.S.C. § 256.

8

As shorthand, we refer to the party plaintiffs originally named in

the complaint as the “original plaintiffs,” and the party plaintiffs who

join as the “opt-in plaintiffs.”

18 CAMPBELL V. CITY OF LOS ANGELES

express purpose of “bann[ing]” such actions under the

FLSA. Portal-to-Portal Act of 1947, Pub. L. No. 80-49,

§ 5(a), 61 Stat. 84, 87; Hoffmann-La Roche Inc. v. Sperling,

493 U.S. 165, 173 (1989). A collective action is more

accurately described as a kind of mass action, in which

aggrieved workers act as a collective of individual plaintiffs

with individual cases — capitalizing on efficiencies of scale,

but without necessarily permitting a specific, named

representative to control the litigation, except as the workers

may separately so agree. See Abraham v. St. Croix

Renaissance Grp., L.L.L.P., 719 F.3d 270, 272 n.1 (3d Cir.

2013). The opt-in plaintiffs thus choose whether and when

to “become parties to a collective action only by filing a

written consent with the court.” Symczyk, 569 U.S. at 75;

see also Kinney Shoe Corp. v. Vorhes, 564 F.2d 859, 862

(9th Cir. 1977), abrogated on other grounds by Hoffmann-

La Roche, 493 U.S. 165. And the result of joining the

collective is “the same status in relation to the claims of the

lawsuit as [that held by] the [original] named plaintiffs.”

Prickett v. DeKalb County, 349 F.3d 1294, 1297 (11th Cir.

2003) (per curiam).

Given this structure, the dismissal of the opt-in plaintiffs

before the entry of final judgment — “decertification” — has

no impact on their party status for purposes of appeal. Party

status does not depend on being present in the district court

litigation from the moment it began or at the moment it

ended. All “those that properly become parties[] may appeal

an adverse judgment.” Marino v. Ortiz, 484 U.S. 301, 304

(1988); Mickles, 887 F.3d at 1278.

Nor, contrary to the City’s position, did their dismissal

as opt-in plaintiffs before the entry of judgment prevent the

Officers in this case from being “bound” by the judgment

and thus eligible to challenge it on appeal. A decertification

CAMPBELL V. CITY OF LOS ANGELES 19

order disposes only of the right to proceed collectively as the

collective was defined in the complaint; it leaves the original

plaintiff to continue litigating. Such an order is therefore

interlocutory, see Ray Haluch Gravel Co. v. Cent. Pension

Fund of Int’l Union of Operating Eng’rs & Participating

Emp’rs, 571 U.S. 177, 183 (2014), and, like interlocutory

orders generally, merges with final judgment. Hook v. Ariz.

Dep’t of Corr., 107 F.3d 1397, 1401 (9th Cir. 1997); see also

Mickles, 887 F.3d at 1278–79.

The City argues that opt-in plaintiffs, even if competent

to appeal from a final judgment generally, cannot appeal an

order dismissing them without prejudice. It is unclear

whether the City intends this argument as a challenge to the

finality of the order appealed from as a basis for this court’s

appellate jurisdiction, or to the Officers’ appellate standing.

In either case, the City is mistaken.

As to appellate jurisdiction, the City confuses finality,

which is a condition of appealability under 28 U.S.C. § 1291,

with an adverse disposition on the merits, which is not.

“That [a] dismissal is without prejudice and the litigation

may be renewed [in a new action] does not affect . . .

appealability . . . .” Thompson v. Potashnick Constr. Co.,

812 F.2d 574, 576 (9th Cir. 1987). The touchstone for

finality is that the particular action filed is fully disposed of,

without the possibility of being resurrected through

amendment. See, e.g., Griffin v. Arpaio, 557 F.3d 1117,

1119 (9th Cir. 2009); Montes v. United States, 37 F.3d 1347,

1350 (9th Cir. 1994). Applying these standards, whether a

dismissed party to the action could litigate the same merits

issue by filing a different case does not matter. The

judgment entered here plainly qualifies as final and so

appealable.

20 CAMPBELL V. CITY OF LOS ANGELES

As to appellate standing, the Officers were, as noted,

parties to the action at the time they opted in, and parties to

the action at the time they were dismissed. Although the

dismissal was without prejudice to the merits of the Officers’

individual FLSA claims, it removed them from the action

they chose to join and disposed of their statutory right to

proceed in a collective as that collective was defined in the

complaint. See 29 U.S.C. § 216(b). The City, citing

McElmurry v. U.S. Bank National Ass’n, 495 F.3d 1136,

1138–39 (9th Cir. 2007), contends no such right exists, but

it does not attempt to square this assertion with the plain

language of the FLSA, which twice uses the term “right.”

We did not hold in McElmurry that the FLSA provides no

“right” to a collective action. We held only that the risk of

losing that right because of a limitations problem did not

justify applying the collateral-order doctrine to ensure

immediate review of a denial of preliminary certification.

Id. at 1139–41.

In short, the dismissal of the Officers removed them from

the litigation, an ouster they maintain violated their right

under the FLSA to pursue their claims collectively. The

dismissal order then merged into the final judgment.

Nothing more is needed for appellate jurisdiction or for

standing. See, e.g., Ramirez v. Fox Television, Inc., 998 F.2d

743, 747 (9th Cir. 1993) (noting that any “order which

effectively sends a party out of court is appealable” (quoting

United States v. Lee, 786 F.2d 951, 956 (9th Cir. 1986)));

Norwest Bank Minn., N.A. v. Sween Corp., 118 F.3d 1255,

1257 n.1 (8th Cir. 1997) (noting that a party dismissed before

a ruling on the merits may appeal the dismissal to which it

was a party, but not the merits ruling to which it was not).

CAMPBELL V. CITY OF LOS ANGELES 21

B

We recognize that the Third Circuit recently confronted

similar issues in Halle v. West Penn Allegheny Health

System, 842 F.3d 215 (3d Cir. 2016), and reached a

somewhat different conclusion.

In Halle, an opt-in plaintiff, after being dismissed from a

collective action, refiled his FLSA claims as the original

plaintiff of a new collective action. Id. at 221–22. Other

opt-in plaintiffs dismissed from the first iteration of the case

then promptly joined, and the defendant moved for

decertification. Id. The district court granted the

decertification motion on preclusion grounds, treating the

decertification order from the first case as collaterally

estopping a collective action in the second. Id. at 222. The

original plaintiff in the second suit then settled, and a group

of opt-in plaintiffs — now twice-dismissed — appealed. Id.

The Third Circuit concluded, as have we, that

“[a]ppellate review of th[e] interlocutory decertification

decision [was] available by proceeding to a final judgment

on the merits of [the original plaintiff’s] individual claims.”

Id. at 228. The Third Circuit then determined, however, that

only the original plaintiff had the authority to seek appellate

review. According to the Third Circuit, dismissal of the opt-

in plaintiffs deprived them of party status, and thus deprived

them of the ability to appeal their dismissal after final

judgment. Id. at 229.

In so holding, the Third Circuit contrasted the opt-in

plaintiffs’ position with that of Rule 23 class members

appealing from approval of a class settlement. Id. Whereas

class members who do not opt out are parties to the

settlement and bound by it, opt-in plaintiffs dismissed from

an FLSA collective action are not parties to the original

22 CAMPBELL V. CITY OF LOS ANGELES

plaintiff’s post-decertification settlement of her individual

claims. Id. According to the Third Circuit, the opt-in

plaintiffs were therefore “not subject to a final decision

disposing of their rights from which they may file an appeal

under § 1291.” Id.

We disagree. The Third Circuit’s approach rests on a

flawed understanding of the scope of a final judgment. A

final judgment is not limited to orders disposing of claims on

their merits, nor is it limited to orders affecting the plaintiffs

originally named in the complaint or still remaining at the

time the case is fully resolved. Opt-in plaintiffs become

parties to an FLSA action upon opting into it. 29 U.S.C.

§ 216(b). They are therefore parties to the order decertifying

the collective action and dismissing them from the suit —

which is of course the only reason the district court in Halle

was able to dismiss the opt-in plaintiffs from the second

collective action on issue-preclusion grounds. As Halle

acknowledged, a decertification order is interlocutory.

Halle, 842 F.3d at 226–27. It therefore merges with final

judgment, such that the parties affected by it may appeal at

that time. See id. at 228.

In the context of a voluntary dismissal — the path to

settlement in the present cases — appeal is permitted from

“a voluntary dismissal which imposes a condition that

creates sufficient prejudice in a legal sense.” Coursen v.

A.H. Robins Co., 764 F.2d 1329, 1342 (9th Cir. 1985)),

opinion corrected, 773 F.2d 1049; see also Concha v.

London, 62 F.3d 1493, 1507 (9th Cir. 1995). Where the

original plaintiff’s voluntary dismissal results in a final

judgment disposing of other, non-settling plaintiffs’

statutory right to proceed collectively, that standard is met.

See also Espenscheid v. DirectSat USA, LLC, 688 F.3d 872,

877–78 (7th Cir. 2012) (concluding that the original plaintiff

CAMPBELL V. CITY OF LOS ANGELES 23

in a collective action may appeal a decertification order after

voluntarily dismissing his FLSA claims). So, although

choosing to settle claims may prevent the settling plaintiff

from appealing, for the non-settling plaintiffs, it is

immaterial that the settling plaintiff cannot be a party to the

appeal. Particularly if, as the Third Circuit assumed, the

decertification order is issue-preclusive as to the availability

of a collective action against all plaintiffs dismissed as a

result of it, it cannot be that only the original plaintiff is

competent to appeal.

We are not the first circuit to reject the appealability

reasoning in Halle. Although it did not describe itself as

creating a split in authority, the Eleventh Circuit in Mickles

concluded that opt-in plaintiffs could appeal a denial of

preliminary certification after the entry of final judgment.

Mickles, 887 F.3d at 1278–79. It so concluded because, even

though the opt-in plaintiffs were “not bound by the final

order approving settlement” between the original plaintiff

and the employer, they were bound by the final judgment

into which earlier interlocutory orders merged. Id. at 1279.

Mickles dealt with a different interlocutory order than we do

— a denial of preliminary certification, rather than a grant of

decertification — but its reasoning tracks our own, and is

equally inconsistent with that in Halle.

C

The City argues, in the alternative, that the terms of the

Officers’ opt-in forms prevent them from appealing, because

the forms entrusted all “certification” questions to the

original plaintiff. Again, the City relies heavily on Halle,

which adopted the City’s view based on the opt-in language

at issue in that case.

24 CAMPBELL V. CITY OF LOS ANGELES

First, nothing inherent in the opt-in process requires

waiving the right or delegating the responsibility to appeal a

decertification order. The spare language of the FLSA

regarding the opt-in form refers only to a “consent in writing

to become . . . a party.” 29 U.S.C. § 216(b). Accordingly, if

the members of a collective reach their own agreement to

delegate litigation duties, such an agreement marks a

deviation from the statute’s default assumption of coequal

status.

Second, nothing about the opt-in forms in this case —

which differ substantially from those in Halle — suggests

that the Officers delegated their authority to appeal an order

ousting them from the case. The consent forms here at issue

state only, “I . . . authorize the filing and prosecution of the

action in my name.” The district court’s decertification

order in essence negated that consent, by dismissing the opt-

in plaintiffs from the suit; no longer could the action be

prosecuted in their names. So, to the extent there was a

delegation here, it was not a delegation that survived the

decertification.

IV

As there is no obstacle to appellate review in this case,

we turn to the district court’s decertification order. The

Officers challenge the order both on its interpretation of the

FLSA and on its application of the FLSA to the record.

A

Beginning with the district court’s interpretation of the

FLSA, we note that neither the FLSA nor the case law of this

circuit offers much express guidance on collective action

practice. As previously discussed, it is clear from the

language of section 216(b) that (1) workers may join a

CAMPBELL V. CITY OF LOS ANGELES 25

collective action if they claim a violation of the FLSA, are

“similarly situated” to the original plaintiff, and

affirmatively opt in; and (2) participation in the collective

action is a statutory “right” held equally and individually by

each party plaintiff, whether originally appearing in the

complaint or later opting in. 29 U.S.C. § 216(b).

However, the FLSA leaves the collective action

procedures — beyond the requirement of a written opt-in —

open. As here relevant, the FLSA does not establish a

process for evaluating the propriety of the collective

mechanism as litigation proceeds. It does not provide a

definition of “similarly situated” — the requirement that

largely determines the viability of a collective action. And

it says nothing about the standard the district court should

apply when the collective mechanism is challenged.

We address each question in turn.

1

In the absence of statutory or case law guidance, the

district courts, both within this circuit and without, have

arrived at a loose consensus as to the proper procedure for

determining whether the collective mechanism is

appropriate. See 1 McLaughlin on Class Actions § 2:16

(14th ed. 2017); see also Leuthold, 224 F.R.D. at 466–67

(citing examples).

First, at or around the pleading stage, plaintiffs will

typically move for preliminary certification. 1 McLaughlin

on Class Actions § 2:16; 7B Fed. Prac. & Proc. Civ. § 1807.

Preliminary certification, as noted, refers to the

dissemination of notice to putative collective members,

conditioned on a preliminary determination that the

collective as defined in the complaint satisfies the “similarly

26 CAMPBELL V. CITY OF LOS ANGELES

situated” requirement of section 216(b). Symczyk, 569 U.S.

at 75. At this early stage of the litigation, the district court’s

analysis is typically focused on a review of the pleadings but

may sometimes be supplemented by declarations or limited

other evidence. See, e.g., Sheffield v. Orius Corp.,

211 F.R.D. 411, 413 (D. Or. 2002). The level of

consideration is “lenient,” Camesi v. Univ. of Pittsburgh

Med. Ctr., 729 F.3d 239, 243 (3d Cir. 2013); Anderson v.

Cagle’s, Inc., 488 F.3d 945, 953 (11th Cir. 2007) —

sometimes articulated as requiring “substantial allegations,”

sometimes as turning on a “reasonable basis,” but in any

event loosely akin to a plausibility standard, commensurate

with the stage of the proceedings. See, e.g., Halle, 842 F.3d

at 224; Morgan, 551 F.3d at 1260 n.38; Thiessen, 267 F.3d

at 1105; Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1214

(5th Cir. 1995), overruled on other grounds by Desert

Palace, Inc. v. Costa, 539 U.S. 90 (2003); cf. Fed. R. Civ. P.

12(b)(6); Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

A grant of preliminary certification results in the

dissemination of a court-approved notice to the putative

collective action members, advising them that they must

affirmatively opt in to participate in the litigation.

1 McLaughlin on Class Actions § 2:16; 7B Fed. Prac. &

Proc. Civ. § 1807; see also Hoffmann-La Roche, 493 U.S. at

170–71. A denial of preliminary certification precludes

dissemination of any such notice. Denial of preliminary

certification may be without prejudice and may be revisited

by the district court after further discovery. Halle, 842 F.3d

at 225; see, e.g., D’Anna v. M/A-COM, Inc., 903 F. Supp.

889, 894 (D. Md. 1995). Or it may be with prejudice, in

which case, if premised on the party plaintiffs’ failure to

satisfy the “similarly situated” requirement of section

216(b), it functions as an unfavorable adjudication of the

right to proceed in a collective. Mickles, 887 F.3d at 1280;

CAMPBELL V. CITY OF LOS ANGELES 27

see also Sandoz, 553 F.3d at 915 n.2. In such cases, if opt-

in plaintiffs have already joined, they will be dismissed

without prejudice to the merits of their individual FLSA

claims, and the original plaintiff will be left to litigate alone.

Mickles, 887 F.3d at 1280 (citing examples).

Assuming the collective action has survived its earlier

scrutiny, the second stage will come at or after the close of

relevant discovery. See Hipp v. Liberty Nat’l Life Ins. Co.,

252 F.3d 1208, 1218 (11th Cir. 2001) (per curiam). The

employer can move for “decertification” of the collective

action for failure to satisfy the “similarly situated”

requirement in light of the evidence produced to that point.

1 McLaughlin on Class Actions § 2:16; 7B Fed. Prac. &

Proc. Civ. § 1807. The district court will then take a more

exacting look at the plaintiffs’ allegations and the record.

Anderson, 488 F.3d at 953; Thiessen, 267 F.3d at 1102–03.

Because of its purpose and timing, decertification can

resemble a motion for partial summary judgment on the

“similarly situated” question, and may be combined with

cross-motions for summary judgment. See, e.g., Sargent v.

HG Staffing, LLC, 171 F. Supp. 3d 1063, 1070 (D. Nev.

2016).

If the motion for decertification is granted, the result is a

negative adjudication of the party plaintiffs’ right to proceed

in a collective as that collective was defined in the

complaint. The opt-in plaintiffs are dismissed without

prejudice to the merits of their individual claims, and the

original plaintiff is left to proceed alone. Hipp, 252 F.3d at

1218. If the motion for decertification is denied, the

collective proceeds toward trial, at least on the questions

justifying collective treatment. Id.

In determining, as a matter of first impression in this

circuit, how to evaluate a motion for decertification, we first

28 CAMPBELL V. CITY OF LOS ANGELES

must confirm that the district court was correct in

considering decertification at the point it did, and on the

record then available. We conclude that it was.

The two-step approach has been endorsed by every

circuit that has considered it. 9 See Myers, 624 F.3d at 554–

55 (2d Cir.); Camesi, 729 F.3d at 243 (3d Cir.); White, 699

F.3d at 877 (6th Cir.); Thiessen, 267 F.3d at 1105 (10th Cir.);

Morgan, 551 F.3d at 1260 (11th Cir.). There is good reason

for this consensus. In the absence of any statutory directive,

the proper means of managing a collective action — the form

and timing of notice, the timing of motions, the extent of

discovery before decertification is addressed — is largely a

question of “case management,” Hoffmann-La Roche,

493 U.S. at 174, and thus a subject of substantial judicial

discretion. See GCB Commc’ns, Inc. v. U.S. S. Commc’ns,

Inc., 650 F.3d 1257, 1262 (9th Cir. 2011); see also, e.g.,

Myers, 624 F.3d at 555 n.10; Comer v. Wal-Mart Stores,

Inc., 454 F.3d 544, 546 (6th Cir. 2006). There are of course

limits to that discretion. In some cases, it may be that a

district court abuses its discretion in refusing to allow notice

to putative collective action members, or in decertifying too

early or too late. See, e.g., Woods v. N.Y. Life Ins. Co.,

686 F.2d 578, 580 (7th Cir. 1982) (observing that, in a valid

collection action, “forbid[ding] the sending of notice

altogether” would be an abuse of discretion). But as a

general rule, the two-step process, culminating in a

decertification motion on or after the close of relevant

discovery, has the advantage of ensuring early notice of

plausible collective actions, then eliminating those whose

promise is not borne out by the record.

9

Neither the City nor the Officers have objected to the use of the

two-step process.

CAMPBELL V. CITY OF LOS ANGELES 29

The present case fits this mold well. Notice was

provided to putative collective action members upon

preliminary certification. Discovery was extensive, and the

relevant record was complete at the time of the district

court’s ruling on the decertification motion. The district

court did not abuse its discretion in considering the validity

of the collective mechanism as it did, by way of the City’s

post-discovery motion for decertification. 10

2

We turn next to the meaning of the statutory term

“similarly situated.” As the question is one of statutory

construction, we proceed de novo. In re Mitchell, 977 F.2d

1318, 1320 (9th Cir. 1992).

There is no established definition of the FLSA’s

“similarly situated” requirement, nor is there an established

test for enforcing it. See Thiessen, 267 F.3d at 1102. This

absence of authority is surprising, as being “similarly

situated” is the key condition for proceeding in a collective,

and thus the issue on which a grant or denial of

decertification generally depends. Nonetheless, broadly

speaking, two approaches to the “similarly situated”

requirement have emerged. See Mooney, 54 F.3d at 1214.

10

The district court did, however, overstate the extent of its

discretionary authority. The district court took the view that it had the

same discretion in considering a motion for decertification as it had on

preliminary certification. It did not. Preliminary certification, to the

extent it relates to the approval and dissemination of notice, is an area of

substantial district court discretion. Post-discovery decertification is not

an inquiry into the propriety of notice, and so operates under a different

standard. See infra Part IV.A.3.

30 CAMPBELL V. CITY OF LOS ANGELES

a. The minority approach

The minority approach is to treat a collective as an opt-

in analogue to a Rule 23(b)(3) class. See Mooney, 54 F.3d

at 1214; see also, e.g., Shushan v. Univ. of Colo. at Boulder,

132 F.R.D. 263, 265 (D. Colo. 1990). District courts

following the minority approach tend to expect a collective

to satisfy the requirements of numerosity, commonality,

typicality, adequacy, predominance, and superiority. Fed. R.

Civ. P. 23(b)(3); see Thiessen, 267 F.3d at 1103. 11

No circuit court has adopted the minority approach in

toto. See 7B Fed. Prac. & Proc. Civ. § 1807 (collecting

examples). The Seventh Circuit has imported the

“predominance” requirement of Rule 23(b)(3) into section

216(b). Alvarez v. City of Chicago, 605 F.3d 445, 449 (7th

Cir. 2010). It is unclear whether it would similarly import

the other requirements of Rule 23. In Espenscheid v.

DirectSat USA, LLC, 705 F.3d 770 (7th Cir. 2013), the

Seventh Circuit did suggest that the section 216(b) and Rule

23 standards are already “largely merged . . . , though with

some terminological differences.” Id. at 772. But

Espenscheid’s depiction of section 216(b) reflects the

Seventh Circuit’s desire for “[s]implification” more than the

text of the FLSA. Id.

All other circuits to have considered the issue —

including the Tenth Circuit, which Espenscheid inaccurately

11

The Supreme Court recently declined an opportunity to delve into

this issue. See Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1045

(2016) (“The parties do not dispute that the standard for certifying a

collective action under the FLSA is no more stringent than the standard

for certifying a class under the Federal Rules of Civil Procedure. This

opinion assumes, without deciding, that this is correct.”).

CAMPBELL V. CITY OF LOS ANGELES 31

cites as supportive, see Thiessen, 267 F.3d at 1105 — have

rejected the analogy to Rule 23. See, e.g., Monroe v. FTS

USA, LLC, 860 F.3d 389, 405–06 (6th Cir. 2017), cert.

denied, 138 S. Ct. 980 (2018); Grayson v. K Mart Corp.,

79 F.3d 1086, 1096 (11th Cir. 1996). We agree with the

consensus view that the minority approach rests improperly

on an analogy to Rule 23 lacking in support in either the

FLSA or the Federal Rules of Civil Procedure. 12

First, in language and structure, section 216(b) and Rule

23 bear little resemblance to one another. 13 The limited

12

We reached this conclusion once before, in Kinney Shoe v.

Vorhes, 564 F.2d 859 (9th Cir. 1977), abrogated on other grounds by

Hoffmann-La Roche, 493 U.S. 165, in which we noted that “[t]he clear

weight of authority holds that Rule 23 procedures are inapplicable for

the prosecution of [collective] actions under [section] 216(b).” Id. at

862. However, we were not concerned in Kinney Shoe with the

requirements for proceeding in a class or collective action, and our

reasoning in that case rested in part on the later-rejected notion that class

and collective actions are not just distinct, but “mutually exclusive.” Cf.

Busk v. Integrity Staffing Solutions, Inc., 713 F.3d 525, 530 (9th Cir.

2013) (holding that a collective action and an opt-out class can proceed

in tandem), rev’d on other grounds, 135 S. Ct. 513 (2014); Calderone,

838 F.3d at 1104 (“An FLSA collective action and a Rule 23(b)(3) class

action may be fundamentally different creatures, but they are not

‘irreconcilable’ . . . .”). We therefore address the present question

afresh.

13

Rule 23 provides, in relevant part, as follows:

(a) Prerequisites. One or more members of a class may

sue or be sued as representative parties on behalf of all

members only if:

(1) the class is so numerous that joinder of all members

is impracticable;

32 CAMPBELL V. CITY OF LOS ANGELES

statutory requirements of a collective action are

“independent of, and unrelated to, the requirements for class

action under Rule 23,” Grayson, 79 F.3d at 1096 n.12, and,

by omitting most of the requirements in Rule 23 for class

certification, necessarily impose a lesser burden, see

Calderone, 838 F.3d at 1104. See also LaChapelle v.

Owens-Ill., Inc., 513 F.2d 286, 289 (5th Cir. 1975). For

example, section 216(b) does not mention predominance or

superiority. Monroe, 860 F.3d at 397. And as

nonrepresentative actions, collective actions have no place

for conditions such as adequacy or typicality. This gap

between the requirements of collective and class

proceedings is to be expected, as many of the rules specific

to class actions have evolved to protect the due process rights

of absent class members, a consideration not pertinent under

the post-1947 FLSA. See Portal-to-Portal Act, § 5(a);

McElmurry, 495 F.3d at 1139; Espenscheid, 705 F.3d at 772.

(2) there are questions of law or fact common to the

class;

(3) the claims or defenses of the representative parties

are typical of the claims or defenses of the class; and

(4) the representative parties will fairly and adequately

protect the interests of the class.

(b) Types of Class Actions. A class action may be

maintained if Rule 23(a) is satisfied and if: . . .

(3) the court finds that the questions of law or fact

common to class members predominate over any

questions affecting only individual members, and that

a class action is superior to other available methods for

fairly and efficiently adjudicating the controversy.

CAMPBELL V. CITY OF LOS ANGELES 33

Second, as other circuits have noted, the FLSA not only

imposes a lower bar than Rule 23, it imposes a bar lower in

some sense even than Rules 20 and 42, which set forth the

relatively loose requirements for permissive joinder and

consolidation at trial. Fed. R. Civ. P. 20(a) 14; Fed. R. Civ.

P. 4215; O’Brien, 575 F.3d at 584–85; Grayson, 79 F.3d at

1096; Lusardi, 855 F.2d at 1078. Whereas Rules 20 and 42

allow district courts discretion in granting joinder or

consolidation, In re EMC Corp., 677 F.3d 1351, 1360 (9th

Cir. 2012), the FLSA, which declares a right to proceed

14

Rule 20(a) establishes the process for permissive joinder of

parties:

Persons Who May Join or Be Joined.

(1) Plaintiffs. Persons may join in one action as

plaintiffs if:

(A) they assert any right to relief jointly, severally, or

in the alternative with respect to or arising out of the

same transaction, occurrence, or series of transactions

or occurrences; and

(B) any question of law or fact common to all plaintiffs

will arise in the action.

15

Rule 42 establishes the process for consolidation:

(a) Consolidation. If actions before the court involve

a common question of law or fact, the court may:

(1) join for hearing or trial any or all matters at issue

in the actions;

(2) consolidate the actions; or

(3) issue any other orders to avoid unnecessary cost or

delay.

34 CAMPBELL V. CITY OF LOS ANGELES

collectively on satisfaction of certain conditions, does not.

See 29 U.S.C. § 216(b); Grayson, 79 F.3d at 1096–97.

Furthermore, Rule 20 requires, in addition to a common

question of law or fact, that the plaintiffs assert a right to

relief arising from “the same transaction[] [or] occurrence,”

Fed. R. Civ. P. 20(a)(1)(A), a condition with no parallel in

the FLSA. See Hipp, 252 F.3d at 1219.

Third, unlike Rule 23, the collective action mechanism

is, in effect, tailored specifically to vindicating federal labor

rights. The FLSA is a remedial statute with broad worker-

protective aims. See Hoffmann-La Roche, 493 U.S. at 173;

Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687

(1946); Monroe, 860 F.3d at 396, 402–03, 405–06. The

collective action mechanism is a means of serving these

aims. See Hoffmann-La Roche, 493 U.S. at 173; Monroe,

860 F.3d at 396–97; O’Brien, 575 F.3d at 586. Rule 23, by

contrast, is neither a creation of statute nor a provision of

specific applicability to certain substantive rights or

remedial schemes.

Lastly, as section 216(b) makes no mention of “class”

proceedings, one can surmise that the distinction between

collective and class proceedings reflects an affirmative

congressional choice “not to have the Rule 23 standards

apply to [collective] actions.” Thiessen, 267 F.3d at 1105.

That choice was made clear upon introduction of the opt-in

provision in 1947, which Congress accomplished without

importing class-action requirements or terminology into the

FLSA. 16 See Calderone, 838 F.3d at 1105; O’Brien,

575 F.3d at 584. And it was recognized and reinforced by

the Advisory Committee on Rules in 1966, when Rule 23

16

The first version of Rule 23 took effect in 1938. See Neale v.

Volvo Cars of N. Am., LLC, 794 F.3d 353, 363 (3d Cir. 2015).

CAMPBELL V. CITY OF LOS ANGELES 35

was amended with the caveat that “present provisions of

29 U.S.C. § 216(b) are not intended to be affected.” Fed. R.

Civ. P. 23 advisory committee notes to 1966 amendment; see

also Calderone, 838 F.3d at 1106; Knepper v. Rite Aid

Corp., 675 F.3d 249, 257 (3d Cir. 2012).

For all these reasons, mimicking the Rule 23 standards

in evaluating section 216(b) collective actions is not

appropriate.

b. The majority approach

The majority approach to the “similarly situated”

requirement — the approach followed by the district court in

this case, and by far the more common option 17 — is a

flexible inquiry into the factual differences between the party

plaintiffs and the desirability of collective treatment. See

Morgan, 551 F.3d at 1260 n.38. Under this approach, often

called — not very helpfully — the “ad hoc” test, the district

court applies a three-prong test that focuses on points of

potential factual or legal dissimilarity between party

plaintiffs. First, the district court considers the “disparate

17

See, e.g., Sargent, 171 F. Supp. 3d at 1079 (D. Nev.); Pelayo v.

Platinum Limousine Servs., Inc., No. CV 15-00023 DKW-BMK, 2015

WL 9581801, at *5 (D. Haw. Dec. 30, 2015); Scott v. Sawmill, No. 6:14-

CV-01337-MC, 2015 WL 2095294, at *2 (D. Or. May 4, 2015);

Peterson v. Alaska Commc’ns Sys. Grp., Inc., No. 3:12-CV-00090-TMB,

2014 WL 12696527, at *3 (D. Alaska Dec. 17, 2014); Stiller v. Costco

Wholesale Corp., 298 F.R.D. 611, 631 (S.D. Cal. 2014); Villarreal v.

Caremark LLC, 66 F. Supp. 3d 1184, 1190 (D. Ariz. 2014); Espinoza v.

County of Fresno, 290 F.R.D. 494, 501 (E.D. Cal. 2013); Khadera v.

ABM Indus. Inc., No. C08-417RSM, 2011 WL 3651031, at *1 (W.D.

Wash. Aug. 18, 2011); Beauperthuy v. 24 Hour Fitness USA, Inc., 772 F.

Supp. 2d 1111, 1118 (N.D. Cal. 2011); Reed v. County of Orange,

266 F.R.D. 446, 449 (C.D. Cal. 2010).

36 CAMPBELL V. CITY OF LOS ANGELES

factual and employment settings of the individual plaintiffs.”

Thiessen, 267 F.3d at 1103. Second, the district court

considers “the various defenses available to defendants

which appear to be individual to each plaintiff.” Id. Third,

the district court considers “fairness and procedural

considerations.” 18 Id.

The ad hoc test is the only one that has been fully

endorsed at the circuit level. See Morgan, 551 F.3d at 1260

n.38 (collecting examples). And that test is a significant

improvement over the Rule 23 analogy. In omitting

conditions with no grounding in the FLSA, the ad hoc test

better accommodates the party plaintiffs’ broad right to

proceed collectively. O’Brien, 575 F.3d at 585. But the ad

hoc test has two major flaws.

First, although the ad hoc test is properly aimed at

gauging whether party plaintiffs are legally or factually

“similarly situated,” it does so at such a high level of

abstraction that it risks losing sight of the statute underlying

it. As it stands, the ad hoc test offers no clue as to what kinds

of “similarity” matter under the FLSA. It is, in effect, a

balancing test with no fulcrum.

The Third Circuit, for example, has offered a list of

potentially salient considerations in ADEA cases —

“whether the plaintiffs are employed in the same corporate

department, division and location; [whether they] advanced

18

Other, similar sets of factors are sometimes listed, although less

often. See, e.g., Rodolico v. Unisys Corp., 199 F.R.D. 468, 482

(E.D.N.Y. 2001) (considering “(1) the alleged activities of the defendant;

(2) the similarities among the members of the proposed collective action;

and (3) the extent to which members of the proposed action will rely on

common evidence to prove the alleged discrimination”).

CAMPBELL V. CITY OF LOS ANGELES 37

similar claims of age discrimination . . . [;] [whether they]

had similar salaries and circumstances of employment” —

but notes that none is necessarily dispositive in a given case,

or even necessary to consider in every instance. 19 See Ruehl

v. Viacom, Inc., 500 F.3d 375, 388 n.17 (3d Cir. 2007). The

key question, then, is one the ad hoc test does not answer:

what it means to be “similarly situated” specifically for the

purposes of section 216(b).

The abstractness of the ad hoc standard reflects the

circuits’ focus on providing “tests” for applying the

“similarly situated” standard rather than beginning with the

term’s meaning. See Mooney, 54 F.3d at 1213. In doing so,

the ad hoc approach tends to “explain[] what the term

[‘similarly situated’] does not mean — not what it does.”

Morgan, 551 F.3d at 1260 & n.38; see also Mooney, 54 F.3d

at 1213.

The natural answer to the proper inquiry — what

“similarly situated” means — is, in light of the collective

action’s reason for being within the FLSA, that party

plaintiffs must be alike with regard to some material aspect

of their litigation. That is, the FLSA requires similarity of

the kind that “allows . . . plaintiffs the advantage of lower

individual costs to vindicate rights by the pooling of

resources.” Hoffmann-La Roche, 493 U.S. at 170; see also

Halle, 842 F.3d at 223–24. That goal is only achieved —

19

The ad hoc test did not originate as an interpretation of the

“similarly situated” requirement in section 216(b); it originated as an

application of section 216(b) to a particular situation. See Lusardi v.

Xerox Corp., 118 F.R.D. 351, 364–72 (D.N.J. 1987). In summarizing its

reasons for decertifying the collective, which were specific to the record

in that ADEA case, the district court in Lusardi listed three factors, which

later courts adopted wholesale as the definitive test of the statute’s

meaning.

38 CAMPBELL V. CITY OF LOS ANGELES

and, therefore, a collective can only be maintained — to the

extent party plaintiffs are alike in ways that matter to the

disposition of their FLSA claims. See Hall, 842 F.3d at 226.

If the party plaintiffs’ factual or legal similarities are

material to the resolution of their case, dissimilarities in

other respects should not defeat collective treatment. Cf.

Aragon v. Republic Silver State Disposal, Inc., 292 F.3d 654,

659–60 (9th Cir. 2002) (applying Title VII’s “similarly

situated” standard, and looking for evidence of similarities

material to the plaintiff’s specific allegation of

discrimination).

In considering the “similarly situated” requirement in

this case, both the City and the Officers rely heavily on the

Supreme Court’s assessment, in Wal-Mart Stores, Inc. v.

Dukes, 564 U.S. 338 (2011), of the commonality

requirement of Rule 23. 20 The analogy is not entirely

misplaced. The “common question” requirement within

Rule 23, like the similarly phrased requirements within

Rules 20 and 42, bears a close resemblance to the “similarly

situated” requirement of section 216(b). See Fed. R. Civ. P.

23(a)(2); see also Fed. R. Civ. P. 20(a)(1)(B); Fed. R. Civ.

P. 42(a). All these requirements serve comparable ends;

their purpose is not simply to identify shared issues of law

or fact of some kind, but to identify those shared issues that

will collectively advance the prosecution of multiple claims

in a joint proceeding. As the Supreme Court stated in Dukes,

“[w]hat matters . . . is not the raising of common ‘questions’

— even in droves — but, rather the capacity of a classwide

proceeding to generate common answers apt to drive the

20

Rule 23 provides, in relevant part, that “members of a class may

sue or be sued as representative parties on behalf of all members only if

. . . there are questions of law or fact common to the class.” Fed. R. Civ.

P. 23(a).

CAMPBELL V. CITY OF LOS ANGELES 39

resolution of the litigation.” Dukes, 564 U.S. at 350

(emphasis omitted) (quoting Nagareda, Class Certification

in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 132

(2009)). Similarly, in the collective action context, what

matters is not just any similarity between party plaintiffs, but

a legal or factual similarity material to the resolution of the

party plaintiffs’ claims, in the sense of having the potential

to advance these claims, collectively, to some resolution.

See Calderone, 838 F.3d at 1103; Symczyk, 656 F.3d at 199–

200.

However, for the reasons discussed above, broad

reliance on Dukes and other class action case law remains

unwise in the collective action context, as it risks importing

into the FLSA, contrary to its terms, the “rigorous analysis”

uniquely applied under Rule 23 to purely representative

litigation, Dukes, 564 U.S. at 350–51, as well as factors —

for example, adequacy, superiority, predominance — with

no foundation in the language of section 216(b). See 7B Fed.

Prac. & Proc. Civ. § 1807 (observing that district courts have

“uniformly” rejected the argument that Dukes affects the

FLSA’s “similarly situated” requirement). Under section

216(b), if the party plaintiffs are similar in some respects

material to the disposition of their claims, collective

treatment may be to that extent appropriate, as it may to that

extent facilitate the collective litigation of the party

plaintiffs’ claims. District courts have ample experience

managing cases in this way. For example, Rule 42, which

offers a closer analogy to the collective mechanism than

Rule 23, already provides for the possibility of partial

consolidation for trial, to the extent separate actions involve

common questions of law or fact. Fed. R. Civ. P. 42(a)(1).

The second flaw of the ad hoc test lies in its “fairness and

procedural considerations” prong. Such an open-ended

40 CAMPBELL V. CITY OF LOS ANGELES

inquiry into the procedural benefits of collective action

invites courts to import, through a back door, requirements

with no application to the FLSA — for example, the Rule

23(b)(3) requirements of adequacy of representation,

superiority of the group litigation mechanism, or

predominance of common questions. Again, the FLSA does

not give district courts discretion to reject collectives that

meet the statute’s few, enumerated requirements. Zavala v.

Wal Mart Stores Inc., 691 F.3d 527, 535 (3d Cir. 2012). To

the contrary, the FLSA gives party plaintiffs the power to

decide in what form they wish to proceed, for “Congress has

stated its policy that [party] plaintiffs should have the

opportunity to proceed collectively.” Hoffmann-La Roche,

493 U.S. at 170.

That is not to say that “procedural considerations” can

never justify decertification. A “collective” action in which,

as a practical matter, no material dispute truly could be heard

on a collective basis would hardly be consistent with the

FLSA’s remedial purpose. But if the party plaintiffs’ FLSA

right to choose collective litigation has any force,

“procedural considerations” must mean more than the

inconvenience, from the court’s or defendant’s viewpoint, of

the party plaintiffs’ choice. Importantly, the theoretical

alternative to collective litigation is the possible proliferation

of individual actions — in the present case, thousands of

individual actions — litigated seriatim. See Morgan,

551 F.3d at 1265. Accordingly, at this second step of the ad

hoc test, decertification of a collective action of otherwise

similarly situated plaintiffs cannot be permitted unless the

collective mechanism is truly infeasible.

c. The district court’s analysis

The district court’s approach to decertification in the

present case offers a useful example of both flaws of the ad

CAMPBELL V. CITY OF LOS ANGELES 41

hoc test. The Officers’ position was that there was a tacit,

Department-wide policy discouraging the reporting of

earned overtime. If that allegation were adequately

supported by the record, the “similarly situated” requirement

would have been met. The Officers would have been alike

in a way material to their litigation, as proving (or failing to

prove) the existence of such a Department policy would have

affected the ultimate findings regarding the occurrence of

unpaid overtime and the City’s knowledge of it, see

29 C.F.R. § 785.11, thus collectively advancing the

litigation.

In applying the ad hoc test, however, the district court

focused less on whether there was adequate evidentiary

support for the posited policy and more on the overall

sameness of the Officers’ employment circumstances. For

example, the district court emphasized that Officers worked

on different tasks, in different divisions, and under different

supervisors. Those distinctions would not have mattered to

the determination of liability if it were proven, as claimed,

that the Department had an overall policy against submitting

small overtime claims. See Morgan, 551 F.3d at 1264. A

systemic policy is no less common across the collective if

those subject to it are affected at different times, at different

places, in different ways, or to different degrees. See, e.g.,

Klimchak v. Cardrona, Inc., No. CV-09-04311 (SJF)(ARL),

2011 WL 1120463, at *5 (E.D.N.Y. Mar. 24, 2011) (“[I]f

defendants had a policy or practice of not paying overtime

compensation to any of its laborers, whether full-time or

part-time, union member or non-union member, all of those

employees would be similarly situated for purposes of this

analysis.”).

The district court emphasized also that the Officers

worked different hours and claimed overtime of different

42 CAMPBELL V. CITY OF LOS ANGELES

amounts, including some amounts that might have been de

minimis. But those distinctions go to the individualized

calculation of damages or the individualized application of

defenses. Such distinctions do not preclude collective

treatment for the purpose of resolving the common issue that

does exist, and that must be answered in the first instance.

See, e.g., Bouaphakeo v. Tyson Foods, Inc., 765 F.3d 791,

797 (8th Cir. 2014), aff’d, 136 S. Ct. 1036 (2016).

Nor are individualized damages calculations inherently

inconsistent with a collective action. In the wage-and-hour

context, if a common question regarding the employer’s

liability is answered in the plaintiffs’ favor, individualized

calculations of work hours may readily be addressed with

any of the practices developed to deal with Rule 23 classes

facing similar issues. See Jimenez v. Allstate Ins. Co.,

765 F.3d 1161, 1167 (9th Cir. 2014). “[T]he amount of

damages is invariably an individual question and does not

defeat class action treatment.” Leyva v. Medline Indus. Inc.,

716 F.3d 510, 514 (9th Cir. 2013) (quoting Blackie, 524 F.2d

at 905). Individual damages amounts cannot defeat

collective treatment under the more forgiving standard of

section 216(b) either.

In effect, using the ad hoc test, with its focus on

differences rather than similarities among the party

plaintiffs, improperly led the district court into an approach

that treats difference as disqualifying, rather than one that

treats the requisite kind of similarity as the basis for allowing

partially distinct cases to proceed together.

In sum, we reject both extant approaches to the FLSA’s

“similarly situated” requirement. We reject the minority

approach because it is founded on an untenable analogy to

class action practice and Rule 23. We reject the majority

CAMPBELL V. CITY OF LOS ANGELES 43

approach — at least as it is typically articulated 21 — because

it inadequately accounts for the meaning of “similarly

situated” in the FLSA context and improperly sanctions the

decertification of collective actions the district court finds

procedurally challenging. Party plaintiffs are similarly

situated, and may proceed in a collective, to the extent they

share a similar issue of law or fact material to the disposition

of their FLSA claims. The district court may be able to

decertify where conditions make the collective mechanism

truly infeasible, but it cannot reject the party plaintiffs’

choice to proceed collectively based on its perception of

likely inconvenience.

3

We turn to the standard the district court should apply in

evaluating a post-discovery motion for decertification.

Determining the proper legal standard is a question of law,

21

We do not intend to preclude the district courts from employing,

if they wish, a version of the ad hoc test modified so as to account for the

flaws we have identified. Nor do we intend to preclude the district courts

from employing any other, differently titled or structured test that

otherwise gives full effect to our understanding of section 216(b).

We also note, without expressing an opinion as to the merits of such

an approach, that the Tenth Circuit recently approved a district court’s

use, in the collective action context, of an analogy to the defunct

procedure for “spurious” class actions. In re Chipotle Mexican Grill,

Inc., No. 17-1028, 2017 WL 4054144, at *2 (10th Cir. Mar. 27, 2017)

(unpublished). Spurious class actions, which were available under the

pre-1966 version of Rule 23, allowed plaintiffs to litigate en masse if

they asserted a “several” right, shared a “common question of law or fact

affecting the several rights,” and sought “common relief.” Fed. R. Civ.

P. 23(a)(3) (1965). Such class actions were “spurious” in the sense that,

unlike true class actions, but similar to collective actions, they required

each plaintiff to join the litigation individually. See Kinney Shoe,

564 F.2d at 862.

44 CAMPBELL V. CITY OF LOS ANGELES

so we proceed de novo. United States v. Hinkson, 585 F.3d

1247, 1261–62 (9th Cir. 2009) (en banc).

Because preliminary certification is not challenged in

this case, we address only the standard the district court

should apply to post-discovery decertification. We conclude

that, in a case such as this one, in which decertification

overlaps with the merits of the underlying FLSA claims, the

summary judgment standard is the appropriate one.

Decertification, in the sense the term is typically used,

comes after relevant discovery is complete, and in that

respect resembles a motion for summary judgment. See

Mickles, 887 F.3d at 1276; Anderson, 488 F.3d at 953;

Thiessen, 267 F.3d at 1102–03. “At this point, the district

court has a much thicker record than it had at the notice [i.e.,

preliminary certification] stage,” so, as with a post-discovery

dispositive motion, “the plaintiff bears a heavier burden.”

Morgan, 551 F.3d at 1261. The circuit courts have generally

not described that burden in any detail, emphasizing only

that decertification is “more demanding” than preliminary

certification, Mickles, 887 F.3d at 1277, “more closely

examine[d],” White, 699 F.3d at 877, and subject to a

“stricter standard,” Thiessen, 267 F.3d at 1103. However,

the district courts have gradually tended to coalesce around

a standard they refer to as “substantial evidence.” 22

22

This approach is widely used within this circuit. See, e.g.,

Sargent, 171 F. Supp. 3d at 1079; Stiller, 298 F.R.D. at 631;

Beauperthuy, 772 F. Supp. 2d at 1118; Reed, 266 F.R.D. at 449; Smith

v. Micron Elecs., Inc., No. CV-01-244-SBLW, 2005 WL 5336571, at *2

(D. Idaho Feb. 4, 2005). And it is widely used elsewhere. See, e.g., Blair

v. TransAm Trucking, Inc., 309 F. Supp. 3d 977, 1001 (D. Kan. 2018);

White v. 14051 Manchester Inc., 301 F.R.D. 368, 374 (E.D. Mo. 2014)

(quoting Martin v. Citizens Fin. Grp., Inc., No. CIV.A. 10-260, 2013 WL

CAMPBELL V. CITY OF LOS ANGELES 45

The “substantial evidence” standard is not well-

explained, nor are the reasons for its adoption. However,

given the parallels between post-discovery decertification

and partial summary judgment on the question of entitlement

to the collective action mechanism, the standard has a certain

logic. As it normally manifests itself in district court,

substantial evidence is the standard for denying judgment as

a matter of law during or after trial. See Wallace v. City of

San Diego, 479 F.3d 616, 624 (9th Cir. 2007). “Substantial

evidence is such relevant evidence as reasonable minds

might accept as adequate to support a conclusion even if it is

possible to draw two inconsistent conclusions from the

evidence.” Reese v. County of Sacramento, 888 F.3d 1030,

1047 (9th Cir. 2018) (quoting Landes Const. Co. v. Royal

Bank of Canada, 833 F.2d 1365, 1371 (9th Cir. 1987)). The

standard is therefore a mid- or post-trial analogue to the test

applied at summary judgment, which asks, pretrial, whether

sufficient evidence exists to preclude a judgment as a matter

of law because, viewing the competent evidence in the light

most favorable to the nonmoving party, the trier of fact could

properly find for the nonmoving party. See Fed. R. Civ. P.

56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250

(1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

The Third Circuit, uniquely, has identified a different

standard for evaluating decertification motions. In Zavala v.

Wal Mart Stores Inc., 691 F.3d 527 (3d Cir. 2012), the Third

Circuit concluded that a preponderance-of-the-evidence

1234081, at *3 (E.D. Pa. Mar. 27, 2013)); Creely v. HCR ManorCare,

Inc., 920 F. Supp. 2d 846, 857 (N.D. Ohio 2013); Frye v. Baptist Mem’l

Hosp., No. CIV. 07-2708, 2010 WL 3862591, at *2 (W.D. Tenn. Sept.

27, 2010), aff’d, 495 F. App’x 669 (6th Cir. 2012); Brooks v. BellSouth

Telecomms., Inc., 164 F.R.D. 561, 566 (N.D. Ala. 1995), aff’d, 114 F.3d

1202 (11th Cir. 1997).

46 CAMPBELL V. CITY OF LOS ANGELES

standard, the default standard in civil actions, should apply.

Id. at 537. However, at least as applied to the present

context, where the decertification question and the merits

overlap, Zavala is unpersuasive. A preponderance of the

evidence is, as Zavala noted, the default standard in a civil

case. Herman & MacLean v. Huddleston, 459 U.S. 375, 387

(1983). But more precisely, it is the default civil standard

for the plaintiffs’ “ultimate burden of proof.” Costa v.

Desert Palace, Inc., 299 F.3d 838, 857 (9th Cir. 2002), aff’d,

539 U.S. 90 (2003); see Huddleston, 459 U.S. at 387. It does

not follow that pretrial motions need be evaluated under a

preponderance-of-the-evidence standard. Plaintiffs satisfy

their “burden” at the pleading stage with allegations that

“plausibly give rise to an entitlement to relief.” Iqbal,

556 U.S. at 679. They satisfy their “burden” at summary

judgment with evidence creating a genuine dispute of

material fact, see Nissan Fire & Marine Ins. Co. v. Fritz

Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000), such that a

trier of fact could properly find for the nonmoving party once

the preponderance-of-the-evidence standard is applied at

trial. Accordingly, to the extent decertification and summary

judgment on the merits present the same question, it should

be the ordinary summary judgment standard, rather than a

preponderance-of-the-evidence standard, that applies.

Here, for instance, the Officers’ allegations of an

unwritten, Department-wide policy discouraging the

reporting of overtime do double duty. They provide a basis

for collective treatment, as they raise a similarity of fact or

law whose disposition would advance the litigation of the

Officers’ FLSA claims. And, relatedly, they go directly to

the merits of the individual Officers’ claims, as proving the

policy at trial is essential to the Officers’ FLSA theory,

including their satisfaction of the FLSA’s knowledge

requirement. See 29 C.F.R. § 785.11. It follows that, in this

CAMPBELL V. CITY OF LOS ANGELES 47

case, a post-discovery decertification motion does double

duty as well. It is, in effect, indistinguishable from a motion

for partial summary judgment limited to the question of

whether an unwritten, Department-wide policy existed. See

Fed. R. Civ. P. 56(a).

Put differently, to the extent overlap exists between the

availability of the collective action mechanism and the

merits of the underlying claim, challenges to the former are

no different from challenges to the latter, and so should be

analyzed under the same standard. In the present posture of

this case — a post-discovery decertification motion — that

standard is summary judgment. If it were otherwise, a

decertification motion could become an end run around the

submission of factual disputes to the trier of fact.

It follows that, to the extent decertification overlaps with

the merits, a district court cannot weigh the evidence, as

ordinary summary judgment practice precludes doing so.

The collective mechanism is meant to ensure that party

plaintiffs have the option of benefitting from the efficiencies

of collective litigation — including, in cases presenting

genuine disputes of material fact, collective access to trial.

That principle is not consistent with allowing district courts

to break apart the collective based on their own resolution of

merits questions otherwise reserved to the trier of fact. If

there is a merits dispute that would survive summary

judgment on which the disposition of decertification also

depends, the merits dispute should be tried. Whether the

question will be answered favorably or unfavorably is for the

trier of fact. See, e.g., Johnson v. Big Lots Stores, Inc.,

561 F. Supp. 2d 567, 567, 579–80 (E.D. La. 2008)

(decertifying a collective action premised on a “uniform

policy or practice” after a trial on that and other questions).

48 CAMPBELL V. CITY OF LOS ANGELES

In sum, to the extent the decertification issues overlap

with the merits, we agree with the district courts’ widely held

view that the standard on a post-discovery decertification

motion is effectively the summary judgment standard. See

supra note 22. We emphasize, however, that as with a

motion formally styled as summary judgment, the district

court may not, on a merits-dependent decertification motion,

weigh evidence going to the merits. If collective treatment

is premised on a genuine dispute of material fact as to the

merits of the party plaintiffs’ FLSA claims, the collective

action cannot be decertified unless the factual dispute is

resolved against the plaintiffs’ assertions by the appropriate

factfinder.

B

We turn now to the substance of the district court’s

decertification order.

As an initial matter, the district court’s approach to

decertification was legally incorrect in two respects. First,

as already discussed, the district court applied an overly

demanding test of the FLSA’s “similarly situated”

requirement. See supra Part IV.A.2.c. Second, although the

district court recited the substantial-evidence standard,

which is an adequate statement of the summary judgment

analysis, it weighed evidence regarding the existence of a

Department-wide policy. 23

As with a motion styled summary judgment, however,

we need not remand for reconsideration when the district

23

The district found, for example, that the largely “boilerplate”

nature of the Officers’ declarations “call[ed] into question the

declarations’ credibility.”

CAMPBELL V. CITY OF LOS ANGELES 49

court applies an improper standard, as our review is de novo.

United States v. City of Tacoma, 332 F.3d 574, 578 (9th Cir.

2003). Under de novo review, we may affirm if we

conclude, as a matter of law, that the record does not reveal

a genuine dispute of material fact as to the existence of a

Department-wide policy discouraging the reporting of

overtime. We do so conclude.

The key problem for the Officers in providing evidence

of the Department-wide policy they allege is one of scale.

That the policy is Department-wide is essential to the

viability of the collective action, as it is the sole justification

advanced for a Department-wide collective. Yet the

evidence in the record is simply not probative of an

unwritten overtime policy of that breadth.

The Officers’ primary contention appears to be that there

exists a kind of tacit policy that operates top-down, such that

an inference may be drawn that the policy applies

Department-wide. As the district court noted, however, the

evidence the Officers have produced — a mass of individual

declarations, mostly containing rote recitations of hours

worked and bare assertions of a certain Department “culture”

— has a fundamentally different focus. The Officers’

declarations speak of immediate supervisors at discrete

worksites. And even then the evidence is not of a uniform

practice from which one might infer direction from a higher

level, but of variable practices variably applied. Critically,

there is no evidence of any directives, incentives,

conversations, emails, or actions (such as denials of

promotions) by Department leadership that could have

communicated to local supervisors, implicitly or otherwise,

a uniform policy against reporting small amounts of

overtime.

50 CAMPBELL V. CITY OF LOS ANGELES

Furthermore, there is no evidence to suggest that the

declarants’ vaguely reported experiences are in fact

representative of the experiences of the party plaintiffs

Department-wide; the only evidence in the record is that they

are not.

First, the Officers offer no sampling or expert statistical

evidence tying the declarants’ statements to the experiences

of the party plaintiffs or of the workforce generally. The

declarations are too limited in individual detail to support an

inference that failure to report specific instances of overtime

was tied to a policy from above. Nor have the Officers

presented evidence — lay or expert, anecdotal or statistical

— that the City’s overtime claims process, or the

enforcement of it, was somehow structurally inadequate, or

implemented Department-wide in a way that inhibited the

accurate reporting of overtime. Furthermore, as the district

court noted, many of the declarants who claim they were first

taught not to report overtime during their training at the

Police Academy “were members of Academy classes that

substantially pre-date[] the [D]epartment’s promulgation of

the current [written] overtime policy.”

Second, although the Officers’ declarations are

creditable evidence of instances of unpaid overtime, when it

comes to the issue of a Department-wide policy, they run up

against the City’s overwhelming evidence of widespread

FLSA compliance. It is undisputed that 330,000 overtime

claims in amounts of less than one hour were filed during the

relevant period, including 64,000 by the party plaintiffs

themselves. Confronted with that contradiction, lacking

affirmative evidence of a structural problem, and in light of

the Department’s widely disseminated written policy

requiring that overtime claims be filed, no reasonable trier of

CAMPBELL V. CITY OF LOS ANGELES 51

fact could conclude that the City fostered or tolerated a tacit

policy of noncompliance.

V

Absent substantial evidence that the City fostered or

tolerated a tacit, systemic policy against the reporting of

overtime, there is no genuine dispute of fact as to the only

allegation the party plaintiffs have cited as a basis for

proceeding in a Department-wide collective. The collective

action was therefore correctly decertified and the opt-in

plaintiffs correctly dismissed.

AFFIRMED.

52 CAMPBELL V. CITY OF LOS ANGELES

APPENDIX

Campbell v. City of Los Angeles, No. 15-56990

Plaintiffs-Appellants: Daniel Campbell; Michael Fox;

Ruzanna Luledzhyan; Humberto Jaime; Jerritt Severns;

Joanna Linfield; Donald Linfield; David J. Tavizon;

Christopher J. Luma; Marco A. Rodriguez; Russell Kilby;

Christopher J. Kunz; Terry Johns; Michael P. Flynn; Randall

Allen Garrett; Kenneth M. Montague; Kit Anthony Stajcar;

Timothy E. Kohl; John C. Flores; Richard Gabaldon; Joseph

M. Payton; Robin R. Brown; Billy Joe; Stacey Seymkowiak;

Inge Yolanda Bowman; Manning; Velasco; Heather A.

Gageby; Gerardo J. Davila; Adrian E. Koval; Agnos

Amarantos; Jeffrey Stewart; Lopez; Mitchell G. Lambdin;

Eric Hernandez; Michael Moriah Knoke; Manuel Madren;

Megan D. Glaister; James H. Williams; Brett M. Clark;

Roger Fontes; Ouahdi Monlacktena; Jude Washington; John

Banelos; Ramon Martinez; Oscar Gamino; Mell Hogg;

Richard J. Lopez; Jaime Zarate; George Chavez; Andrew

Moody; Michael O’Connor; Eric Holguin; Jeremy Allen

Escamilla; Cedric Washington; Asatur Mkrtchyan; Jason M.

Burcham; John Shin; Peter Bueno; Anthony Ortiz; Christian

Rueda; Philip Thompson; Richard Suvlate; Warren Pulley;

James Quinones; Minh Nguyen; Joseph Yamzon; Theodore

P. Maillett; Shawn Massey; Peter Lee; Fred C. Starkey, Jr.;

Jude T. Washington; Steven Marin; Yvette Perez; Letricia

Lopez; Leanna Rosenkild; Patricia Batts; Angelo Stewart;

Jesus Bazan; Todd Behrens; Sonny Garcia; Solve Loken;

Juan Gonzalez; Angela R. McGee; Michael Williams; Rick

M. Roy; Michael A. Pytel; Andre Wright; A. Wright; Tanya

Eppenger-Campbell; Morris Batts; Charles Tizano; Albert

C. Mora; Charles A. Howard; Stephanie Tuller; Manuel

Segura; Darryl Bernard McGreggor; Tarriel Hopper; Phillip

R. Watson; Renee A. Minnick; Francine Spada; Erin

CAMPBELL V. CITY OF LOS ANGELES 53

Gabaldon; Carlos R. Ortega; Ramiro Cabrera; James A.

McSorley; Alberto Del Valle; Elizabeth Boccanfuso;

Giovanni Boccanfuso; Efren J. Corrac; Yasir Gillani; Joseph

Pudelwitts; Jane Elizabeth Russom; Robert Casimiro; Angie

Whetstone; Mike D. Nelson; Heather McLean; Nina Brown;

Nelson D. Scroggins; Benedict J. Fernandes; Christopher

Formby; David Jamieson; Ken Cabrera; Charles Garcia;

Rogelio Ramirez; Catarino Perez; Rudy Chavez; Mario

Gamez; Ackley Kane Mayer-Tucker; James D. Crawford;

M. Rene Chavez; Issac Lowe; Carlos E. Ayala; Lisa Moore-

Crawford; Edward P. Castro; David Manriquez; Philip

Alaniz, Jr.; Aaron Skiver; Michael Yoro; Alonso Ramirez;

Lisa Ruegg; Russell Long; Angel Salvador Bonilla;

Alexander R. Alvarez; Karla Barraza; Vincent J. Correa;

Donna J. Watkins; Richard Melendez; Darryl Brown;

Charles Wunder; Luis Alvarado; Joseph Ciancanelli;

Christopher Blankenship; Alejandro Arredondo; William M.

Young; David Redd; Antonino Giambruno; Andres Cruz;

Rene Zavala; Matthew Saenz; Adrian Chin; Marlon Fields;

Henry Colebrooke; Ritchie Tijerina; Marco Vargas; Sonia

Rimkunas; John Lawrence; Gary Eagleson; Dennis Lada;

Anthony Aceves; Terry Keefer; Angel Cervantes; Douglas

Workman; Anthony Perez; Michael Williamson; Gina

Chovan; David Abdalian; Diosdado Coronel; Robert

Andreno; Robert Williamson; Jorge Cruz; Victor Suapaia;

Sean Meade; Brian Malneritch; Gregory Fuqua; Gerardo

Vazquez; Victor Alvarez; Jaime Roussett; Carlos Mercado;

Patrick Marmolejo; Ryan Whiteman; Richard Romney;

Scott Koegel; Yvonne Whiteman; Wallace Wall; Pavel

Gomez; Dave McDowell; Lisa Gallegos; Jesse James; Shon

Wells; Vincent Stroway; Michael Pauley; Roberto San

Roman; Steve Griffith; Timothy T. Rolsen; Peter Vasquez;

Alan Aldegarie; Ralph Camarillo; Ray Denton; Neal

Peterson; Robert Gonzalez; Jeremy Duncan; Ray

Hallenbeck; Robert Cosner; Peter Sanchez; Will Munoz;

54 CAMPBELL V. CITY OF LOS ANGELES

Efren Acosta; Alan Little; Jesse Sanchez; Rigo Bonilla;

Marvin Brent; Lori Sanchez; Sunti Singhanate; Pedro

Cordero; Abe Rangel; Mark Dimitt; Robert Aguilar; Patricia

Smith; Alejandro Izquierdo; Bryce Verna; Joanne Needham;

Catherine Massey; Frank Bancalari; Julio Umana; Patrick

O’Dea; Ray Jeter; Jaime McBride; Miguel Barajas; John

Bigrigg; Gina Meza; Maggie Sherman; Mario Ontiveros;

Jeffrey Leu; Patricia Guessferd; Fernando Ochoa; Javier

Sanchez; Leonard Johnson; Willian Proctor; Lamont Jerrett;

Jacob Snow; Douglas Panameno; Steve Zavala; James Vena;

Robert Deamer; Phillip Carr; Darell Matthews; Oscar Prado;

Daniel Odoh; Robian Tango; Anthony Perez; Don

Montelibano; Demetrio Mendoza; Regina Nares; William

Gutierrez; Gary Nanson; Peter Laundelius; Barry Bottai;

Randal Bowman; Raffi Khandikian; Benjamin Zuckerman;

Hilton Henry; Rudy Gonzales; Richard Oke; Kelly Edwards;

David Ham; Lane Bragg; Angelo Castro; Dan McCoole;

Justin Mudgett; Paul Menchaca; John Chilstrom; Jimmy

Martinez; Richard Krynsky; Cameron Carrillo; Edward

Rocha; Michael Belmonte; Carolyn Coward; Timothy

Wunderlich; Jason Armendariz; Claudia Gray; Emerson

Holder; Mark Pompano; Paul Floge; Anthony Ramos;

Cynthia Gomez; Osacar Villarreal; Robert Takanashi; Mark

Ramirez; Michael Shea; Shawn Stevens; David Rosenthal;

Matt Jacobik; Stephanie Southerland; John Key; Eloy

Ochoa; Dennis Nelson; Oscar Lopez; Robert Knight; Ernie

Schoop; Rolf Knuth; John Kim; Robert Gallegos; John

Gomperz; Rodolfo Lemos; Scott Blackman; Issac Lowe;

David Cueto; Adrian Ferns; David Tello; Chad Costello;

Thomas Bergren; Patrick Beighley; Jennie Wong; Kyle Lee;

Kris Davis; Daniel Gregg; Albert Gonzalez; Gonzalez;

Barry Brooks; Steven Cohen; Greg Andrachick; Joseph

Satow; Linda Thompson; Jonathan Goode; Peter Hopkins;

Michael Rex; Bradley Schumacher; Paul Clements; Robert

Yanez; Rene Acosta; William Heider; Martin Martinez; Juan

CAMPBELL V. CITY OF LOS ANGELES 55

Zarate; Jose Ortega; Frank Montelongo; Antonio De La

Torre; Jackie Fort; Jose Diaz-Ibarra; David Armas; Anthony

Smith; Todd Carpenter; Robert Ruiz; Paul Waymire;

Andrew Chase; Sandra Magdaleno; James Sterling; Jose

Mireles; Mary Culpepper; Juan Cruz; Oscar Cansino;

Dennis Clifford; Maryann Bunag; Michael Rippe; Michael

Rubin; George Bashai; Matthew Bakotich; David Benioff;

Ronald McNally; Jeffri Norat; Jose Verdin; Yvette Perrodin;

Mike Gilbert; Emery Newsom; Holland Holland; Alexander

Kordis; Jerry Lucio; James Mark Arenas; Todd Bridges;

Ruben Gutierrez; Leonard Garza; Andre Dixon; Richard

Compton; Greg Bruce; Anthony Cole; Darryl Danaher;

Osmund Bouligny; Ron Lagrassa; Ruzanna Luledzyan;

Terry Saleono; Victor Mencias; Michael Knoke; Guadalupe

Alaniz; Kenneth Buscarino; Canales Canales; Kevin Cotter;

Cominic Counts; Guy Faltinowski; Carlos Lozano; Ramon

Mejia; Valentine Reyes; David Salcedo; Anthony Tejada;

Thomas Wicks; Clarence Williams; Stephen Winter;

Theodore Williams; Frank C. Montelongo; Christopher

Clark; Bruce Murdoch; Song Suh; Paul Avila; Randy

Peterson; Gregory Probst; Christine Wycoff; Len Lai;

Travonne Dixon; Kristan Zalokar; Arnold Porter; Cathy

Luke; Pedro Benavides; Stacy Pierce-Rogers; Chiquita

Brown; John Porras; Tom Gracey; Alan Bone; Stephen

Gordon; Edmond Yagubyan; Money Scott; Steve Vera;

Anthony Magaleno; Robert Martinez; Robert Vasquez;

Chris Chavez; Antonio Rodriguez; Edward Silva; Carlos

Quintero; Michelle Thomas; Nicholas Sysak; Cynthia

Barlow; Henry Mendoza; Merita Woodle; Joseph Terena;

Brian Koren; Richard Roberts; Ivan Vintimilla; Gary Verge;

Dean Monteleone; Traci Grundland; Douglas Kirkland;

Scott Teubert; Debbie Luker; Murrell Pettway; John

Pasquariello; Tim Olsen; Rossum; Lupe Palomares; Jerry

Kowalsky; James Chong; Javier Vargas; Andres Gallagher;

Andrew Gallagher; Arthur Grein; Jason Zapatka; Robert

56 CAMPBELL V. CITY OF LOS ANGELES

Lewis; Julie Browne; Derek Sledge; Jose Salcedo; Michael

Saghera; Ramiro Ruezga; Gil Padilla; Tony Fitzsimmons;

David Carbajal; Suzan Nelson; Jeff Nelson; Tim Galli;

Rodrigo Rodriguez; Stanley Schott; Dale Ziesmer; Ronald

De Wyke; Kenneth Richard Vanhooser II; Virgil Casstor;

Kenneth Hurley; Mayda Espinoza; David Kong; Bobbie

Covington; Ronald Wyke; Maria Morrison; Becky Strong;

Jennifer Vass; Neil Wank; Melvin Durant; Catherine

Durant; Larry Covington; Javier Borrego; Lonnie Benson;

Frank Amador, Jr.; Joseph Morrison; Arturo Yanez;

Christopher Campagna; Gilbert Murillo; Fred De La Cerda;

Karena Rowan; Vickie Nguyen; Edward Yoon; Gregory

White; Adam Hollands; Sal Ogaz; Robert Quezada; Marston

Taylor; Robert Golden; Robert Murray; Susan Willis;

Salvador Jaramillo; Woon Chong; Lisa Gropp; Mauricio

Vargas; Martha Jaime; William Driver; Omar Cedre; Laura

Curtin; Young Honor; Robin Jones; Roberto R. Lopez;

David Love; Richard Mossler; Tim O’Gorman; Michael

Stalnecker; William Snowden; Alex Tellez; Paul Von

Lutzow; Pedro Machuca; Owen Mills; Don Sasaki; Marc

Tessier; Alfonso Villaneda; Gary Weller; David Stirling;

Jeff Merlo; George Mejia; Elliott King; Frank Garcia;

Raphael Ferrer; James Eldridge; John Downey; Gerardo

Davila; Raquel Cruz; Mike Cassetta; Fred Brignoni; Paul

Bowser; Andre Baydaline; Ralph Barone; Raymond Ygual;

Doug Gallaher; Timothy Dacus; Gerardo Madera; Manuel

Sierra; Frank Lopez II; Terence Klafke; Benjamin Hetzler;

Vincent Deglinnocenti; John Cordova; Martin Franco; Gary

Bean; Brandon Mamrot; Jeffrey Tint; Charles Hawley;

Danny Roman; Francisco Gonzalez; Daniel Robinson;

Jamie Smerdel; Alan Thatcher; Reggie Dickerson; Dana

Grant; Nicholas Milazzo; James Poon; Belinda Robinson;

Ignacio Mijares; Liavaa Moevao; Juan C. Campos; Donald

Richards; Monica Quijano; Steven Muirhead; Jaime

Anchondo; Tanza Smalls; Raymond Hernandez; Jay

CAMPBELL V. CITY OF LOS ANGELES 57

Mastick; Nelson Ramaya; Adam Altamirano; Paul Lawson;

Scott Engedal; George Bowens, Jr.; Jesus Ravega; Tina

Glenn; Steven Stear; Scott Murachver; Javier Montenegro;

Peggy Moseley; Juli Dawn Munson; Tracie L. Noggle;

James Noss; Christopher O’Donnell; Christy Donorovich-

O’Donnell; Ralph Brown; Stephen Bucher; Kimberly Cisco;

Arno Clair; Kelly Clark; Richard Davis; Leonard Drayton;

Arthur Duran; Paul Espinoza; Arldwin Flores; Hugh

O’Gara; Elipido Orozco; Maria Orta; Timothy Gallick;

Brian Gan; Michael Goldstein; James Goodwin; Robert

Guevara, Esquire, Attorney; Oscar Gutierrez; Nicholas

Hartman; Ryan Hicks; Kevin Holland; George Hoopes;

Leonel Borja; Lee Jensen; Christopher Jordan; Charles

Joseph; Ho Kim; Denny Leopoldo; Ernest London; Robert

Lopez; Robert Luna; Richard Luskleet; Raymond Madrid;

Saul Carrillo; Kelly Chrisman; Joseph Dominguez; Yolanda

Echols; Robert Felix; Robert Fernandez; Edgar Magat;

James Mankey; William Marbley; Chris Marshall; Gabriel

Martinez; David Mascarenas; Matthew Meneses; Pablo

Monterrosa; Stacey Morris; Edward McGowan, Jr.; Paul

McKechnie; James Onthank, Jr.; William Orndorff II; Isaias

Ornelas; Adam O’Neill; Robert Paterson; Scarlett Paterson;

Joseph Pelayo; Floro Pinzon; Jary Quinones; Luis Robles;

Guadalupe Ruiz; Terry Mattox Ruppel; Richard J. Russell;

Kristine Salazar; Dean Schram; Robert Snedden; S. Owens;

Jeffrey Pelczar; David Podesta; Annette Potts; James H.

Quinlan; Bobby Ramero; Steven Rausch; Frank Schweitzer;

Jeffrey Stapleton; Jeffrey X. Vach; Paul Valencia; Abraham

Vidriezca; Matthew Vocke; Terrell West; Gregory Owens;

James Rahm; Osbaldo Ramos; Stephen Redd; Anthony

Reitz; John Rice; Michael Rimkunas; Johnny Sanchez; Erik

Schick; Jerry Siel; John Smith; Michael Smith; Steven

Smith; Terry Shelley; Gloria Snipes; Ronald Stamps; Kelly

Sullivan; Peter Waack; Richard Wall; David Wren; Maria

Yamamoto; Fred Yamamoto; William Young; William F.

58 CAMPBELL V. CITY OF LOS ANGELES

Justice; Trevor Jackson; Margaret Henry; Crystal Hayes;

Richard J. Garibay; Mauricio Garcia; Lisa Garcia; Gilbert

Garcia; Ernest Eskridge; Angel Domenech; Marlo V. Cross;

Robert F. Chavira; Felicia Ann Bailey; Roger G.

Archambault; Fernando Alvarez; Julio Benavides; Jennifer

Lee Hammer; Richard Gurrola II; Stephen Glick; Robert Jon

Duke; Daniel Chilson; Kenneth Richard Lewis; Michael J.

Lorenz; Justin Malcuit; Robert Martin; Gorgonio Medina;

Juvey Mejia; David Harris; Mark Henry Hernandez;

Raymond M. Hernandez; Michael W Hill; Enrico P. Hizon;

Woravoth Iddhibhakdibongse; Michael Jolicoeur; Yolanda

Caterino-Clair; Anderson Boyce; Carl Barnhart; Joyce M.

Banuelos; Sandra Valle; Joseph Taylor; Eddie N. Solomon;

Carlos Savedra; Brian Reynolds; Daniel Putnam; Joseph

O’Donnell; James Swift III; Victor Nunez; Season Nunez;

Emigdio Neri; Tyrone Moore; Christopher Martinez; Joseph

Linares; Gregg Webber; Michael Seguin; Fredger A.

Alexander; Mark Aragon; Marlene Arguello; Ralph Arzate;

Rudolph Baca; Keith Washington; Steven Bishop; Eric

Bixler; Edward Viadaillet; Gerardo Vejar; Michael

Tomelloso; Clarence Speer; Mage Gene Simerskey; Amy

Wong; Douglas Roller; Mario Ramirez, Jr.; Perry Moore;

Brent McGuyre; James C. Marshall; Corinne L. Malinka;

James MacDonald; Joan Leuck; Antonio Lacunza; Rayney

L. Arnold; Juan C. Amancio; Iris Santin; James Redman;

Kulin Patel; Ryan Nguyen; Kevin McNamee; Kevin Malm;

Kenneth Kuntuzos; Robert White; Jeff Lutzow; John

Richardson; Ernesto Munoz; Ramon Muniz; Francisco H.

Hurtado; Michael Huff; Teresa Hernandez; Jose Contreras;

Osvaldo J. Castillo; John Bart Juarez; Charles Hicks; Cheryl

Gonzalez; Ricardo Feria; Mario Cruz; Michael Amado;

Jason Abner; Dale Lopez; Danny Jiminez; Irsie Lee Henry;

Shawn Havican; Nathaniel Hampton; Victor Gutierrez; Joe

Galindo; Dimitrius Connor; Michael Arteaga; Juan R.

Arenas; Bill J. Wilson; Anthony Vilardo; Michael Valencia;

CAMPBELL V. CITY OF LOS ANGELES 59

Lon Truong; Alan Sorkness; Rick Rodgers; Engelbert

Quechenberger; Cesar Leal; Sharon J. Kroger; Michael

Karatsonyi; Roscoe Jolla; Rudy De La Fuente; Victor

Corral; Laura Cook; Jose Carias; Mitchel S. Windsor; Dale

Washburn; Warren Tojong; Jeffrey Tiffin; Kandis Schmidt;

Raymond L. Rangel; Lisa Phillips; Christopher Paterson;

Steven Moody; Jose Maldonado; Mark Campell; Donna

Wheeler; Vincent Vicari; Matthew L. Vannatter; Michael

Valdes; Stephen Underwood; Michael Samuel Tirella;

Rosibel Smith; Henry Servin; Julie Rodriguez; Tanya

Rodda; Raul Porras; Richard L. Platzer; Michael E. Oppelt;

Hector Olivera; Joseph Napolitano; Angelean Montero;

Lawrence Martinez; James K. Lenoue; Ronald Von Gober;

Paul Glascow; Deborah Fetters; David Dimeglio; Napoleon

Curry; John Cook; Thomas E. Cleary; Todd Burns; Timothy

Branley; Miguel Aguayo; Thomas E. Kirk; Jorge A.

Gutierrez; Enrique R. Gutierrez; Jack A. Giroud; John D.

Gardner; Lisette Garcia; Ken Furuta; Peter Durham; Jason

Duplantis; Oscar Duenas; Cynthia J. Dragun; Carlton M.

Brown; Lisa Wernli; Karen J. Smith; Howard Silverstein;

Michael R. Pelletier; James J. Panek; Michael K. Ozaki;

Scott Ogata; Ray Moreno; Roderick Miller; Connor Mac

Ivor; Joshua Lukaszwski; Alfonso Alfaro; Miguel

Arambula; Martin Barocio; Francis J. Bolan; James R.

Browning; George Bush II; Wallace Carr; Jin Cho; Elva

Coats; Robert W. Coats; Vic Corella; Rickey Crowder, Jr.;

Ricky Davis; Robin L. Downey; David Herskowitz; Gary

Holbrook; Eric O. Jones; Kenneth V. Koch; Lauro R.

Larrinua; Hipolita Lizarraga; Manuel Alvarez; Maribel

Arambula; Richard Aston; John J. Avalos; Ruben Banuelos;

Alexander Bautista; Christopher Borunda; Paul Choung;

John Coffey; David Corbet; Thomas Davoren; Tracye

Fields; Michael Friesenhahn; Randolph D. Fukui; Sean

Gonzalez; Jennifer A. Grasso; Joseph G. Graves III; Manuel

Antonio Ibarra; Eric M. Johnson; Andrew J. Lassak; Daniel

60 CAMPBELL V. CITY OF LOS ANGELES

Lee; Thomas F. Lee; Don Magers; Alma Mark; Claire

Smith; Jonathan E. Smith; Gregory R. Staats; Joseph Marx;

Raymond W. Mauss; Kenneth K. Moore; Daryl Ordone;

John Padilla; Steven Stranak; Michael Switzer; Cinthia

Tapia; Tony Trusk; Ryan Verna; Laura Windsor; Larry

Wright; Robert Yanez; Del Bourgeois; Gregory Hancock;

Cecilia Cleveland; Kurt Miles; Jeff Mares; Jerry Liggett;

Rocael Rodriguez; Jose J. Perez; Carias Warner; Shawtrice

Watkins; Reynaldo Perez, Jr.; Richard Plows; Terry L. Pratt;

Richard M. Prindle; Sallyann S. Procaccini; Kenneth

Quigley; Tyrhone Ragland; Mark W. Reed; Robert Rivera;

Alex Gabriel Rodriguez; John D. Rodriguez; Sergio Ruedas;

Timothy Ruiz; Timothy S. Schey; Daniel A. Schmidt;

Ramon Argulles; Debra Winter; Manuel Vides; George

Torres; Kelvin Scott; Andrea Sanfillippo; Alfredo

Rodriguez; Thomas Malloy; Edward Maciel, Jr.; Marlon

Prodigalidad; Brenda Morales; Sandra Lopez; John

Knighton; Mark Griego; Richard Gordon; Jeanette Flores;

Phillip Tate; Danny Jones; Jaroen Hitanukulkit; James R.

Hays, Jr.; Gabriel Ferreras; Michael Briano; Steven M.

Takeshita; Jose Santiago; Manuel R. Ramirez; Alfred Pasos;

Blanca Pasos; Robert Longdon; Keith A. Green; Michael

Joseph Diaz; Theresa Coyle; Andre Abrams; Andres

Cardenas; Terry Barclay; Meghan Aguilar; Mario Aguilar;

Dean Watts; Daniel Vasquez; Dionne Watts; Kimberly

Snyder; Orlando Smith; James Muniz; Maria Montoya; Paul

Miller; Leonardo McKenzie; Chun Yim; William

Yarbrough; Eduardo B. Trinidad; Anthony A. Razo; Samuel

Williams, Jr.; Stanley Wiedenhaupt; Christopher Walter;

Ramirez; Karen Owens; Ralph Mendoza; Gerald Mears;

Marlon Marrache; Miguel Lopez; John Gidowski; Neal

Fine; Rodolfo Ramirez; Robert Valencia; Gerardo Velasco;

Derek Sykes; Thomas Small; Singh; John Richardson;

Richard J. Ramirez, Jr.; Pierre Olega; Alejandro Nava;

Nicholas Lee; Marcos Villanueva; James Hutchins; Robert

CAMPBELL V. CITY OF LOS ANGELES 61

Holcomb; Robert Hillard; Shelley Gallegos; Teresa Akune;

Warner Carias; J. Padilla; Kenneth Nitschke; Jose A.

Ferreira; Shawn Duke; Carlos Diaz; Duc Dao; Gary Cusick;

Matthew Cundiff; James Clifford; Mark Cleary; Maurice

Brunel; Raymond Broker; Edward Maciel; Joey Yanez;

Edward E. Wheelis; Edison Z. Vistar; Hugo Valez; Julia

Peat; Valentin Montesdeoca; Scott Moffitt; Adriana Bravo;

Anthony Balderama; Sherwin Vigilant; Brandon Tuccillo;

John L. Thomas; James Sands; Raul Rodriguez; Jason M.

Pedro; Nicholas Noles; Daniel Mendoza; James Lopez;

Keith Horeczko; Mustaffa Hassanzai; Joseph Gryder;

Thomas Dawson; Jing Choa; Steven Beumer; Criselda

Pedro; Marty Cotwright; Phillip J. Wright; Thomas W.

Stone; Alex A. Pozo; Richard Mendoza; Rebecca Martinez;

Hal Dexter Jones; Randy Hoffmaster; Jesus Hernandez-

Soto; John J. Hatfield; Rebecca Martin; David Harrison;

Matthew Fleming; Michael W Dunn; Howard Chan; Ernest

Avila; Fred Tredy; Brent Josephson; Carlton Jeter; Jose D.

Hurtado; Michael Hofmeyer; James Choi; David Sanchez-

Soissons; John Licata, Jr.; David Lin; Josephine Mapson;

Salvador Martinez; John M. Ray; Brodie Seagrave; Stephen

Showler; Gregory Elias Trejo; Todd Costello; Jose Delgado;

Charles Dickinson; Alma Burke; Salvador Flores; Sean

Hansen; George Leiva; Louie Lozano; Georgia Odom; Alan

Parra; Daniel Putz; Jose Salazar; Catherine Rymzsa Leon;

Darren Stauffer; Rosa A. Torres; Teddy Amstone; Carlos

Barrios; Maria Muro; Josue Merida; Michael Woodings;

Donovan Michael Lyons; Earl Williams; Charles Urso;

Heidi Stoecklein; Maurice Stewart; Daryl Scoggins; Rodney

Rodriguez; Kyle B. Remolino; Paul Mosley; Armando

Monarrez; Samer Issa; Paul Hong; Raymond Galluccio;

Juan Arroyo; Donald Estrada; Randall Cordobes; Ryan

Bellows; John Ayala; Richard Acosta; Jason Wesley; Brent

Johnson; Samnal Hong; Rosemelinda Gutierrez; Fidel

Gonzalez; Randy Garcia; Joe Flores; Ferdinand Faustino,

62 CAMPBELL V. CITY OF LOS ANGELES

Jr.; Corinne Ernst; Manuel Delgado; Daniel Davis; John

Caraveo; Michael Boylls; Doug McCombs; Antonio Martin;

Ryan Marshall; Hector Lomelin; Victor Perez; Martin

Perello; Michael Pavelka; Ricardo Oliva; Boris Oliva; Steve

Nunez; Michael Morales; Bill Miller; Edward Tsai; Erik

Sundstrom; Charles Strong; Charles Spicer III; Eric Spear;

George Rock; David Solis; Gary Shanahan; Richard Sauer;

Paul Sanfillipo; Teri Robinson; Miguel Gutierrez; Brian

Zavala; John Zambri; Raymond Valois; Ray Robinson; Leon

Ortega; Kimberly Mole; Sean Laule; Lashawna Pugh; Guy

Juneau; Brian Joachimstaler; Damon Hogan; Michael Flynn;

Alfredo Flores; Marie Farrell; David M. Escoto; John

Chrispens; Leroy Block; Danny Shry; Kristopher Rollins;

Alfonso Reyes; Robert Orlando; Steve Morris; Roger

Morgan; Christopher Merrin; Craig Markel; Jeffrey

Anderson; Ruben Martinez; Andre Louis; Jeanette

Lawrence; Gonzala Lara; Michael Kozak; Lyle P Knight;

Michael Hall; Jimmy Grayson; Alejandro Galvan; Hector

Esparza; Joseph Dudas; Keith Davis; Jack Davenport, Jr.;

Timothy Colomey; George M. Castro; Warner A. Castillo;

William O. Batista; Michael K. Barz; Siamone

Bangphraxay; Ruben Arellano; Michel A. Kozak; Alan

Ramirez; Dwayne Wilson; Chris Scott; Luis Reyes; Juan

Santos; Danny Odom; Stephen Merrin; Garry McQueen;

Christopher McPheeters; Ben McPheeters; Kevin Lowe;

William Larkin; Ricky Johnson; Richard Hoefel; Robert

Harris; Gerardo Gutierrez; Jaime Gonzalez; Consuleo

Gonzalez; Steve Garcia; Gary Ferrato; Ruben De La Torre;

Ronald Cade; David Berumen, Jr.; Roy Ballesteros; Ashur

Agena; Eri Poss; Marc Pooler; Carlos Velez; Michael

Mitchell; Telly Epperson; Francisco Diaz, Sr.; Mario

Arrizon; Christian Urbina; Richard Tamez; Richard Ramos;

Randy Yoshioka; Carlos Sutton; Clancy Maihori; Amber

McCallum; Gerald Legaspi; William Flannery; Jose De

Leon; Lenning Davis III; Jose Covarrubias; Trevor Ziemba;

CAMPBELL V. CITY OF LOS ANGELES 63

Jason Witt; Constance White; Sonya Tiefenbacher; John

Stieglitz; Eugene Smith; Gabe Rodriguez; Luis Rodarte;

Patrick Rimkunas; Edgar Ramos; Roseanne Parino; Joseph

Avila; George Selleh; Ignacio Maurillo; Maria C. Marquez;

Robert Lona, Jr.; Hsin-Yi Lo; Yin Y. Leung; Charles J.

Garcia; David M. Fatool; Nelson Enamorado; Jason Curtis;

Henry Covarrubias; Eric Campos; Anthony Ares; Pamela

Ventura; Suzanna Lowry; Chris Giargiari; Matthew

McNulty; Esteban Olivares; David Morales; Pedro Llanes;

Shondie Jackson; Ted Reyland; Steven Ralph; Enrique

Chavez; Elvis Hernandez; Tarek Ismail; Marcela Garcia;

Steven Angulo; Robert Vargas; Carla Taylor; Christopher

Razo; Jonathan Tippet; James Hagerty; George Goodyear;

Emily Delph; Timothy Crabtree; Andrew Buesa; Ricardo

Verduzco; Sandra Zamora; Carl E. Taylor; Christina L.

Reppucci; Jesus Garcia; Scott Fairchild; Ricky Brown;

Johnny Garcia; Felipe Benavidez, Jr.; Eddie Badillo; Cheryl

Amour; Jose Vazquez; Terence Turner; Maria Tippet;

Arlene Padilla; Peter Verschueren; Ruben Quintanar; Johny

Onyshko, Jr.; Peter Mah; Teresa Lincoln; Walter Hanna;

James A. Erwin III; Jorge De Los Reyes; Gregorio R. De La

Rosa; Miguel A. Contreras; Nestor D. Ayson; Lilia Velasco;

Darren Scira; Paul R. Sciarrillo, Jr.; Joel J. Ruiz; Andrew

Rowe; Robert Rodriguez; Ray L. Rodriguez; Eric Obrecht;

Lizabett Mesa; Peter M. Lopez; Myra M. Kellum; Timothy

H. Hope; Joel Hernandez; Orlando T. Green II; Michael

Gannon; Celeste Dula; David H. Chung; Jorge A. Cervantes,

Jr.; Robert A. Canizales; Daniel J. Calderon; Robert A.

Brophy; Lonya C. Britton; Jorge L. Arellano; Ricardo

Acosta; Benny Abucejo; Alfredo Delgado; William Kipp;

Elbert W. Hughes, Jr.; John Hankins; Jeri De La Torre;

Antonio De La Torre; John P. Castillo; Jesus Zaragoza-

Nunez; Van Thompson; Susan R. Solley; Eric M. Reade;

Bridget Pickett; Sean Patcheak; Eloy Navarro; Michelle

Lopez; Debbie Lopez; Jean L. Jimenez; Todd Holmberg;

64 CAMPBELL V. CITY OF LOS ANGELES

Hugo Fanfassian; Lifernando Garcia; Chriatian J.

Christensen; Dino Campodonico; James Agnole; Timothy

B. Stack; Marsha Reyes; Robin Petillo; Richard Parks; Danh

Ngo; Tina Matsushita; Marvin Sigfrido Mancia; Scarlett M.

Nuno; Carlos Zaragoza; Fabio Taglieri; Thomas Ty Lo;

Stephen Wilson; Robert E. Wade; Paul Rumer; Paul A.

Ricchiazzi; Laura Preasmyer; Jeff S. Nolte; James Lumpkin;

Ryuichi Ricky Ishitani; Victor E. Fain; Eddie Diaz; Mario

Cubillos; Rosalyn E. Clark; Jefferey Booker; Michael

Beloud; Thomas A. Willers; Raymond Terrones; Larry

Oliande; Mark Maldonado; R. Maggie Luquin; Carlos

Lozano; Tim M. Lai; Tai Kingi; David L. Hovey; Samuel

Davis; Mark R. Cronin; Anthony Puchi; Michael

Munjekovich; David A. Loera; Steven Lecours; Ronald G.

Lopez; David R. Ortiz; Alex Delieuze; Diane Hawking;

Patrick L. Murphy; Charles Surh; Ernest L. Sparkman;

Donald Singer; Michael James Paris; Joseph Oseguera;

Joseph Mueller; Mario Morales; Michael Miracle; William

Joyce; Alicia Maria Hollenback; Thomas A. Burris; Robert

Bermudez; Cynthia Bello; Rudy Avelar; Esther B. Vasquez;

Kevin E. Love; Craig Allen; Erick Yepes; James Wallace;

Gene Sur; William Romanelli; Randy Rico; Huy Quach;

Brian L. Preston; Andrew A. Paredes; Kent Lau; Christopher

Ralph Landry; Joe Kim; James Alan Harper; Angel Miguel

Guerra; Rebecca Levy Gallegos; Jorge De Jesus III; Jeffrey

D. Collado; Camille R. Armstead; Marcello Sabbatella;

Leroi O’Brien; Gerardo Morales; Leonard Miller; Timothy

C. Ledingham; Frank Dominguez III; Troy S. Abordo;

Hector Aceves; Julio Alfonso; Arnel Asuncion; Andre

Wright; William Arthur Segee; Jeffrrey B Pailet; Roger

Michel; Richard R. Larson III; Paul Hendry; Carmen M.

Gutierrez; Steven Grimmer; Efrain Contreras; Peter M.

Cabral; Kristen Yeager; Raul Ramos; David Nunez; Philip

Steven Clarke; Karolin Clarke; Adrian Gonzales; Mark

Anthony Preciado; Byron Anthony Barnes; Michael

CAMPBELL V. CITY OF LOS ANGELES 65

Estrada; Cezar Orozco; David James Hance; Federico Celis;

Ramon Hernandez; Vaotupua Sefo Feula; Gerry R.

Chamberlain; Matthew Lee Stuart; Philip James Ruiz; Juan

Paz; Chatherine M. Sobieski; Paul Richard Bernd; Nicholas

A. Titirigg; Richard McCauley; Walter A. Leiva; Craig

Kojima; Eric Fukute; Gilbert Escontrias; Carlos Escobar;

Clint S. Dona; Eric T. Briggs; Casey W. Cox; Anthony

Gonzalez; Omar Veloz; Darius Lee; Edward J. Kim; Alicia

Cordona Gilmer; Alan W. Gilmer; Blaca E. Desormaux;

Nadya P. Bennyworth; Ronald E. Weaver; Jonathan Daniel

Roman; Mark Miraglia; Milan A. Ayers; Steve W. Griffin;

Martha Plata; Delaney Jones; Michael Apodaca; George

Thomas Wilson, Jr.; William B. Limtiaco; Kevin Dunigan;

Rex S. Wells; Deen Alcaraz; Lawrence Harold Mullaly;

Richard M. Wells; Peter Paul Acosta; Merri Dallas; Mitchell

Dan Lowlen; John F. Martinez; Anthony W. T. Kong; Carlos

Alberto Ocegueda; Ramon Martinez; Joshua Nicholas

Riggs; Travis Kupka; John Hovig Jizmejian; Michael D.

Sledd; Carlos Medina Valdez; Richard Mark Carney;

Timothy John Wienckowski; Alma Angelina Skefich;

Rafael R. Mora; Mario Jacinto; Steven Gus Juarez;

Stephanie L. Kraychur; Robert Joseph Crupi; Theodore

Robert McHenry; Rhonda Howard; Ray Nimn Guerrero;

Joshua Daniel Sewell; Angela Nicole Wittman; Sean Patrick

Hart; Rachel Lynn Rodriguez; James C. Stoa; Ismael

Contreras; Frank Ciezadlo; Sheila Congboy Rizzolo;

Theresa Maria Stanford; Sonia Banuelos; Ruben Cardenas;

Celia Komathy; Jeff Chiantaretto; Louis E. Lozano; Todd

Baldwin; David Bambrick; Robert J. Bishop; Alicia Elliott;

Darrell Hinson; Zoutan Mako; Mark Guardado; Arthur

Antonio; Joshua Chong; Kelene Dale Gibson; Miguel

Gomez; Michael Chapman; James Zourek; Brian Gingras;

Teresa M. Velez; Dennis J. Duran; Brian Thayer; Art

Talamante; Todd Chaney; Sandra J. Carlisle; Corey Dillard;

Trasia R. Figueira; Carlos M. Figueira; John Collyer; Kevin

66 CAMPBELL V. CITY OF LOS ANGELES

B. Study; Matthew Calleros; John B. Wilson; William Perez;

James Townsend II; Vincent Aguirre; James M. Kaiser;

Nicholas Rothemich; Robert Smey; Aaron Andrew Fougere;

Anthony Charles Hotchkiss; Anthony F. Saenz; Michael

Johnson; Brett Robinson; Blake Budai; Talya Andrel Higgs;

David A. Akins; Joseph McDowell; Maria E. Heissel;

Rogelio Perez; Andy A. Azodi; Pamela Green; Hurley Glenn

Criner II; Daniel R. Del Valle; William J. McDonald; Sean

Dempsey; David Krumer; John Brett Hayes; Ron Berdin;

Francisco Javier Lopez; Christopher No; Steve Park; Joel

Perez; Mike Richardson; Marie Tucker; Ya-May Christle;

Roland J. Ramirez; Francisco Banuelos; Steven E. Johnson;

John E. Campos; Gilberto Gaxiola; Frank Higareda; Zoutan

Mako; James C. Grace; Sean M. Karmody; Christian H.

Wecker; Stephen Nassief; Renee McAlonis; Jesse J. Estrada,

Jr.; Daniel Logan; Patricia L. Blake; Greg Ortiz; Clinton T.

Popham II; Guilermo Henry Mixer; Mark Allen; Stephen F.

Slinsky; Ronny C. Mosley; David Hernandez; George

Melvin McNeill; Manuel Ray Zapata; Andreas An; Gloria

Jean Wood; Oscar Ontiveros; Michael Joseph Barrios; Perry

Miguel Alvarez; A. J. Debellis; Victoria Collete Debellis;

Wendi Leigh Berndt; Jeffrey John Martin; Juan Manuel

Contreras; Donald Ernest Muniz; Rick Michael Rafter;

Adrian Alexander Rios; Bryan Gary Gregson; Anthony R.

Ochoa; Christopher Wayne Allen; David Alfredo Navas;

Ignacio Rojas; Stephen Michael Musso; Orlando Martinez;

Mark Pravongviengkham; Mitchell Allen Norling; Florence

Estella Johnson; William F. Willis; Mary J. Fencl; Howard

Choy; Juan Alfredo Ceja; Derek Richard Mousseau; Kathy

Joyce Simpson; John Dennis Carey; Lawrence Phillip Jones;

Pedro Zapata Reyes; Ralph Edward Emard; Philip Anthony

Walters; Bradley Warren Mossie; Darrell Edward Sancho;

Gregg Arthur Jacobus; Robert Arellano; Ian Carbonell;

James Nicholas Rivera; Scott Edward Thielman; Douglas R.

Long; Richard Antonio Lugo; Pedro Torres; Jesus David

CAMPBELL V. CITY OF LOS ANGELES 67

Flores; Andy Joshua Leuridan; Jose Antonio Arellano;

Gerardo Hernandez; John Elio Moreno; Fred L. Williams;

Dewayne Davis; Joyce Ann Davis; Antonio Zamora;

Charles Kevin Blomeley; Christina Marie Higuera; Timothy

John McLaughlin; John Manuel Calzada; Bryan Harold

Millner; Cory Phillip Meisner; Patrick Vincent Roman;

Anthony Shane Solis; John Walter Davis; Bruce Parnell

Stallworth; Brett Deoliveira; Dwight Christopher Nolan;

Manuel A. Perez; David Manuel Romero; Clement Ruben

Toscano; Paul Fedynich; Martin Robles; Tony Im; Jorge

Martinez; Alan C. Henry; Brian Eric Brown; Wayne Albert

Devey; Gregory Alan Glodery; Gilbert Pedregon; Lanita

Elias; Paul Larry Skinner; Doreen Wilson; Osvaldo Ozzie

Delgadillo; David Miner; Richard Ramos; Malcolm A.

Thomas; Karen Crawford; Eric Christopher Johnson; Cari

M. Long; Victor M. Eguez; Michael Villareal; Eric

Alexander Melendez; Roy Reza, Jr.; Tony Di Paolo; John

Carlo Blondo; Joseph Pollack; Michael Christopher

Alexander-Fuller; Kerry Jon Suprenant; Julio Cezar

Martinez; Angel Sambrano; David Alan Burrus; Francisco

Eduardo Dominguez; Steven Frederick Gross; John X Vach,

Jr.; Thomas Marvin Redshaw; Aldwin Vicencio; Julie R.

McInnis; Brent A. Smith; William Waldo Sanders; John

Stephen Enos; Elizabeth Luz Gudino; Jose Luis Padilla;

Ellen Helene Cameron; Paul Joseph Wenter; Hector Manuel

Urena; Daniel Anthony Suarez; Luis Angel Santiago, Jr.;

Richard Philip Perez; Bradley Coulter Nielson; Richard

Wayne Lockett; Thomas S. Lee; David Allen Javier; Susan

Grizelda Inverno; Shawn Ryan Holguin; Thomas Carl

Gustafson; Cheri Marie Doolittle; Jamal Esam Dawoudi;

Medrardo Carranza; Hector Steven Carbajal; Antonio

Vargas; Brent W. Riederich; Danny Steve Mendez; Gustavo

Ariel Martinez; Cesar Rene Gonzalez; Gil James Cardinez;

Samuel Joseph Briggs; Manuel Andujo; Richard Lance

Adair; Bonnie Lynn Lehigh; Brian James McDonald; Travis

68 CAMPBELL V. CITY OF LOS ANGELES

James Curtin; Mark Stephen Hubert; Charles Dwight

Thomas; Patrick Shepard Robinson; Spiro John Roditis;

George Timothy Leonard; David Ruben Cordova; Eva Jean

Perry; Juan Gabriel Aguilar; Oswaldo A. Pedemonte; Sergio

Dario Driotez; Vincent Neglia; Gerald M. Tomic; John

Poland; Rudy Barrigan; Daniel M. Drulias; Corey Harmon;

Ginger Harrison; Eric Lee Windham; Allen M. Kamal; Jim

Tumbeird; Robert Alvarado; Gary Sales; Taylor Jordan

McLaws; Felicia Spring McAdams; Sheldon J. Williams;

Esther Nyape Reyes; Juan Octavio Reyes; Thomas Ewell

Bibbs; Enrique Jurado; James Deric Carroll; Adam

Niebergall; Antonia Serna; Thomas George Ralph; David

John Hopkins; Sergio Ivan Sanchez; David Gene Ross; Jose

Manuel Herrera; Kenneth Michael Snowden; Angela Doren

Wienckowski; Victor Samuel Medrano; Brian Kelly;

Stanley Alvin Kane; Jeffrey Campagna; Bret Andrew

Banachowski; Leah Marie Baxter; Gerard Joseph Gibson;

Teresa Y. Alonzo; Paul Sherney Williams; Adam Sockis

Moore; Brian Jeffrey Campagna; Amie A. Guardado; Mark

Austin Johnson; Sean Ramon McGee; Luis Enrique Jurado;

Annissa Elaine Harsma; Gary Eugene Ross; Arthur Lee

Simms, Jr.; Walter O. Lopez; Jae Hyun Sung; Eugene

Sebatian Olea; James Craig Ferrell; Hector Guzman; Jerome

Calhoun; Joseph Lee Gonzalez; Steven Douglas Sieker;

Michael James Harrington; Michel Bonilla; Joe Quezada;

Ricardo Gutierrez; Shane David Bua; Carlos Rodriguez;

Timothy Jerome Morris; Kenneth Lee Price; Tyrone Roberto

Acosta; Joseph Henry Cruz; William Mirza Simonoff; Louis

Eduardo Marin; David Houlihan; Sophia Renee Castaneda;

Christy Madera Chavarria; Maricela Ibanez; Bruce Leland

Coss; Kathy K. Roditis; Mark Darin Lauderdale; Nguyen T.

Do; Juan Carlos Rodriguez; Luis Michel Bonilla; Juan Israel

Zendejas; Lisa Michelle Kelly; Matthew William Jones;

Benjamin David Gutierrez; David James Craig; Rudolph

Rivera, Jr.; Enrique Robledo, Jr.; John Ammons; Arturo

CAMPBELL V. CITY OF LOS ANGELES 69

Mares; Roger I. Watson; Veronica Padilla; Anthony Green;

Luz Elba Montero; Unneyung Kevin Ree; Willard David

Thomason; Brian Michael Corwin; Michael Thomas Judge;

Alan C. Henry; Jennifer Susanne Howlett; Eric Alan Hurd;

Tom Leo Chavez; Jimmy Chong; Shawn David Crabbe;

Teresa L. Evans; Jennifer Nicole Blomeley; Thomas

Anthony Bojorquez; Arthur Anthony Castro; Evannry Maria

Arocho; David Gibson Ashley; Lance Adam Blake; Sally

Elizabeth Santamaria; Feliciano Tyrone Wilson; Claudia

Carmen Castruita; Nathan Paul Ewert; Ignacio Guitnon; Eric

Hernandez; Lisa Marie Duran; Daniel Adam Garcia;

Michael Joseph Sullivan; Larry Brown; Teresa Lynn

Anderson; Howard D. Mathews; James J. May; Michael

Kilpatrick; Michael Lopez; Mark Manuel Mascareno;

Kennith Joseph Ferro; Valendine Scot Flores; Ronald

Harrell; Adam Senall Green; Eric Sean Mollinedo; Steve

Soon Chung; Edan Michael Sheklow; Bobby Romo; Omar

Lamont Davis; Crystal Nova Davis; Matthew Kevin Murray;

Maligi Agatonu Nua; Oscar Alejandro Ordonez; Jeremy Jay

Paciokowski; Leo Perez; Leopoldo Rey; Corbin Joseph

Rheault; Arthur Reyna; Joaquin Rodriquez, Jr.; Jose Romo;

Sergio Navarro Salas; Diana M. Salcido; Robert Louis

Schlesinger; Darius Ian Trugman; Christopher Albert

Vasquez; Sharlon Kojro Wampler; David Wayne Yep; Ryan

V. Icagan; Michael Anthony Thompson; James Joseph

Dickson; David Rodriguez; Carlos Enrique Torres; Jonathan

David Pasillas; Adrianna Marie Prado; Ivan Guillermo;

Donni Lynn Ellison; Freddie Robert Ackerley; Joseph

Pollack; James Michael Bland; Garardo Loza; Adam

Benjamin Loo; Kevin L. Giberson, Jr.; Dong S. Park; Steven

Aguilar III; Michael W. Schneider; Raymona K. Moussa;

Francois Joseph Wise; Diana Zamora; Carlos Alberto

Figueroa; Cesar Ignacio Guitnon; Ruben Orlando Vega;

Marlon Gomez; Oscar Alejandro Castellanos; Leeann Jones;

Omar Franco; John Thomas Strasner; Robert Joseph

70 CAMPBELL V. CITY OF LOS ANGELES

Martinez; Luis Navarette; Troy Orion Zeeman; Teresa

Renae Pikor; Darlene Myree Shelley; Michael Clark Blake;

Jorge Arturo Alfaro; Thomas Anthony Garcia; Jesse Joe

Reyes; Juan Carlos Chavez; Brian Wayne Wilson; Richard

J. Knopf; Dennis John Shaw; Raymond G. Wong; Gisselle

Espinoza; Martin M. Espinoza; Brian Anthony Harris; Marc

Michael Ferris; Brent Alan Smith; Michael Patrick Flannery;

Theodore Jara; Ezequiel Barraza; John Manuel Cuenca;

Christopher Smythe; Mario E. Figueroa, Jr.; William

Chester Lantz; Miguel Alfonso Terrazas; Jose Lujan Reyes,

Jr.; Douglas Daniel Roach; Joseph Eric Chavez; Victor

Manuel Arrelano; Curtis L. Davis; Berzon Angcao Distor;

Mark Brian Stratton; Michelle Rachel Eskridge; Jeffrey

Brian Beacham; Jeremy Marshall Olson; Eric Craig

Williams; Peter John Jack; Magdaleno Gomez; Sam Saul

Salazar; Craig Stephen Adams; Gregory Coronado Trevino;

Rudy Jose Quintanilla; Phillip Lawrence Miller; Ray John

Martinez; Raymona Villalobos; Ronald Wayne Gray; Gary

Edward Leffew; Ara Vidal Hollenback; Carlos Olmos; Steve

Sainz; Richard Keith Larimer; Salvador Lizarraga; Gabriel

Rivas; Jeff Paul Quinton; Marco Antonio Munoz; Wayne

Kerry Guillary; Benjamin Martin Tran; Todd H. Bracht;

Lester M. Freeman; Spendora Rene Hadnot-Ricks; Cedric

Raynard Ingram; Young Woo Jheon; Leonard Roland Perez;

David Nabil Habibi; Timothy Jason Bohac; Sonny Kynoi

Patsenhann; Steven Costas Kotsinadelis; Oscar Alberto

Garza; Phillip Henry Zalba; Gilbert Sanchez; Gina M.

Bracht; Michael Solis; Samuel Adam Arnold; Edward

Beltran Zamora; Laura Gerritsen; Caesar David Gonzalez;

Darren Hill; Brian W. Tyndall; Cesar I. Guitron; Kevin W.

Pierce; Sidney Dean Hodges; Lisa M. Duran; Timothy R.

McRath; Adrianna Prado; Cesar Mata; Taaj Muhammad;

Roy Reza, Jr.; Jeffrey S. Mulheim; David Riddick; Francisco

Macias; Omar L. Davis; James Franciscus Martinez;

Alfonso Cisneros; Alex Hoffmaster; Patricia A. Stout; Jaime

CAMPBELL V. CITY OF LOS ANGELES 71

Chacon; Stephen Yurochko; Timothy Hwan Kim; Edward

Richard Petterez; Robert Carlos Celaya; James A. Kukkok;

Robert Michael Villalobos; Edward N. Acosta; Stacie Lynn

French; Randolph Clifford Agard; James A. Stout; Daniel

Garrett Thompson; Kenneth Steven Bartnicki; Scott Donald

Brown; Randy Scott Goens; Keely C. Coleman; Jason

George Jacobson; Larry Lee Johnson; Jeramie Andrel

Schulze; Dontae Phillips; Manuel Esqueda; Luke Baxter

Walden; Pedro Topete Cabunoc, Jr.; Miguel Angel Nunez;

Del Jester; Audrie Parrillo; Eric Wayne Holyfield; Lori A.

Lee; Ronald F. Grijalba; Michael B. Calhoun; Dino Angelo;

Kurt D. Thurston; Francisco Carrillo; Mario Aldo Parrillo;

Frank Preciado; Veronica Inez Saucedo; Scott Michael

Vostad; Lolita Bermudez; Michael Tolmaire; Tamara A.

Baumann; Juan P. Silva; Silvia Corral; Gabriel Holguin;

Vincent Henson; Teresa Zundel; Jim Tumbeiro; Edward L.

Kellogg; Benjamin E. Aguilera; Samuel Y. Cho; Dennis

Nguyen; Hyong S. Perkins; James P. Moon, Esquire,

Attorney; Jonathan M. Kincaid; Rufus R. Ward; Ronnie M.

Romero; Edward Heredia; Joseph Adragna; Hector Ibarra;

Bennie Boatwright; Kevin W. Smith; Matthew Casalicchio;

Spree Desha; Divinity; Eric Jennings; Steve Grimes; Heath

Adams; Robert Brogelman; Jay Vargas; James Edwards;

Luis Delacruz; Robert Worrall; Robert Scutaru; Lorna

Cavin; Peter Ponich; Robert Olmos; Augusto Mariano;

Jeremy Fink; Donald Bender; Hector Chaidez; Alfredo

Rosales; John Long; Mika Kuroiwa; Christopher Cortijo;

Habib Munoz; Deshaun Hall; Dominick Fuentes; Chris

Kliever; Osvaldo Gonzalez; Sandra Garcia; Ralph Alvarez;

Rafael Tobar; Timothy Tully Scott I; Kenneth Santolla;

David Perry; Ruthann Scott; Alexander Villalpando; Marian

Bausley; Daniel Rios; Gustavo Camacho; Jonathan Miller;

Susan Herold; Patrick Higa; Brian Peel; Arca; Salvatore De

Bella; Roy Agbanawag; Earnest Williams; Steve Morales;

Rudy Gonzalez; Michael Quezada; Ricardo Rivera; Alan

72 CAMPBELL V. CITY OF LOS ANGELES

Kreitzman; Steven Lemmer; Christopher Green; Claudia

Mendoza; David Brandstetter; Sunny Sasajima; Michael

Graham; Horacin Aguirre; Suzanne Vukovic; William

Monahan; Clinton T. Weir; Edgar Cruz; John E. Redican;

Pernell Taylor; John Armando Warren; Hugo Trujillo; Jesus

Ramirez; Dennis P. Kilcoyne; Keith H. Spencer; Caesar

David Gonzalez; James T. Willis; Binh Nguyen; Charles

Giuliani; Grace Garcia.

Defendant-Appellee: City of Los Angeles.

Mata v. City of Los Angeles, No. 16-55002

Plaintiff: Cesar Mata

Plaintiffs-Appellants: Richard D. Alba; Jose Angulo;

Francisco Arredondo; Jay G. Batson; Albert Bertieri; Jeffrey

Burnley; Robert Calzadillas; Jose Carias; Lucen A. Daigle;

Miguel Dominguez; Jess H. Faber; Austin B. Fernald; Mario

Flores; Daniel Garcia; Joseph Getherall; Steven Gomez; Eric

Hermann; Nahan R. Hernandez; Patrick A. Higa; Gregory

Jacks; Ruben S. Jimenez; Allan Krish; Irma E. Krish; Darryl

L. Lee; Rafael Lomeli; Michael McLann; Alonso Menchaca;

Bryan Mivglaz; Trisha Mivlgaz; Abel Munoz; Donald R.

Ornelas; Dana Ouiatt; Young W. Pak; Lee Perry, Jr.; David

Petersen; Michael R. Peterson; Ryan S. Powell; Pablo A.

Rivera; Henry Romero; Manuel L. Rumion; David Sabedra;

Darrell Sanomo; Brian T. Schneider; Ruthann Scott; Sven

Steffensen; Shad Stilkey; Patricia Suarez; Jonathan Sugam;

John Talbot; Fred A. Tredy; Adan Urena; Onam Urena;

Miguel Vaca; Miguel A. Vallejo; Rita Vallejo; D. Michael

Vrolyks; Neil Warren,; Matthews O’Williams; Joe R. Witty.

Defendant-Appellee: City of Los Angeles.