In re: WALGREEN CO. WAGE AND HOUR LITIGATION, DOLORES ZAMORA, Class member v. Walgreen Co.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: WALGREEN CO. WAGE AND
HOUR LITIGATION,
______________________________
DOLORES ZAMORA, Class member,
Plaintiff in state court proceeding,
Appellant,
v.
WALGREEN CO.,
Defendant-Appellee.
No. 17-56049
D.C. No.
2:11-cv-07664-PSG-FFM
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Argued and Submitted December 5, 2018
Pasadena, California
Before: TASHIMA, WARDLAW, and PAEZ, Circuit Judges.
Dolores Zamora appeals the district court’s order granting Walgreen Co.’s
(Walgreens) motion to enforce a prior wage and hour class action settlement and to
enjoin her California state court action, which asserts a Private Attorneys General
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
JAN 9 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Act, Cal. Lab. Code §§ 2698–2699.5, (PAGA) representative claim for failure to
provide suitable seating under California Wage Order 7, Cal. Code Regs. tit. 8,
§ 11070. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review a district
court’s decision to enforce a settlement agreement for abuse of discretion, and will
reverse “only if the district court based its decision on an error of law or clearly
erroneous findings of fact.” Wilcox v. Arpaio, 753 F.3d 872, 875 (9th Cir. 2014)
(internal quotation marks and citation omitted). We reverse and vacate the
injunction.
1. The district court erred by concluding that the wage and hour
settlement release barred Zamora’s state court action. Though the release is
broadly written, it is enforceable only as to subsequent claims “based on the
identical factual predicate as that underlying the claims in the settled class action.”
Hesse v. Sprint Corp., 598 F.3d 581, 590 (9th Cir. 2010) (citation omitted); see
also Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 748–49 (9th Cir.
2006). The release’s language encompasses Zamora’s state court action because it
released any PAGA claim and included a covenant not to participate in a PAGA
action. But the release is not enforceable as to Zamora’s state court action because
the two actions do not share an identical factual predicate. The wage and hour
litigation concerned Walgreens’s provision of meal and rest periods, payment of
wages and overtime compensation, provision of accurate wage statements, and

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reimbursement of business expenses. That litigation omitted any allegations
regarding Walgreens’s failure to provide its cashiers with suitable seating. That
both actions use the same legal mechanisms to assert claims––California Labor
Code § 1198 and PAGA––says nothing about the factual predicate for each case.
See Hesse, 598 F.3d at 591 (“[A] superficial similarity between the two class
actions is insufficient to justify the release of the later claims by the settlement of
the former.”).1
2. Nor does the district court’s injunction fall within the relitigation
exception to the Anti-Injunction Act. 28 U.S.C. § 2283; see Sandpiper Vill.
Condo. Ass’n, Inc. v. La.-Pac. Corp., 428 F.3d 831, 847–48 (9th Cir. 2005). An
injunction may issue under the relitigation exception “if res judicata would bar the
state court proceedings.” Blalock Eddy Ranch v. MCI Telecomms. Corp., 982 F.2d
371, 375 (9th Cir. 1992) (citation omitted). Here, res judicata does not apply
because the two actions do not “involve the same claim or cause of action.”
Mpoyo v. Litton Electro-Optical Sys., 430 F.3d 985, 987 (9th Cir. 2005).2 The two
actions do not arise from the same transactional nucleus of facts, involve the
purported infringement of the same right, or require substantially the same
1 Because we conclude that the wage and hour settlement release does not bar
Zamora’s state court action, it is unnecessary to address Zamora’s alternative
argument that the release is an unenforceable pre-dispute waiver of PAGA rights
under Iskanian v. CLS Transp. L.A., LLC, 59 Cal. 4th 348 (2014).
2 The district court did not reach this issue.

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evidence, as each action concerns factually distinct violations of the different
Wage Order provisions. See id. at 988 (noting that this court has “often held the
common nucleus criterion to be outcome determinative” as to whether two actions
involve the same claim or cause of action); see also Chick Kam Choo v. Exxon
Corp., 486 U.S. 140, 148 (1988) (“[A]n essential prerequisite for applying the
relitigation exception is that the claims or issues which the federal injunction
insulates from litigation in state proceedings actually have been decided by the
federal court.”).3
Zamora shall recover her costs of appeal from Walgreens.
REVERSED; INJUNCTION VACATED.
3 Because we vacate the district court’s injunction, we need not address
whether the district court erred in denying Zamora’s request to substitute a
different PAGA representative into her state court action.

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