the same rights as suitable seating claims for purposes of california resident caught him off apparently california courts have not addressed the issue despite best effort of appellant could not locate any published or unpublished case directly on that issue however at two thousand and nineteen this court directly addressed the issue in a meth memorandum called re walgreens this court that no they do not address the same rights she filed her subsequent claim for suitable seating pursuant to the pa and state court the district court enjoined her from doing so presume it to the terms of the settlement agreement however this court reversed  by the claims or as the california supreme court has held the determinant factor is the harm in a draft now and in rate while dream that court addresses both claims specifically the court how respray claim do not involve the same claim or causes of action because they do not arise from the same transactional nucleus a fact or it involved a purported infringement of the same right this court already made the analysis the wage and hour and the rest break claim to address different rights than suitable seating claims for purposes of rescue caught in california and the court was right the court and white rain water and got it right because just from a common sens the st claim was brought in federal court the subsequent claim was brought in california state court and this court of address both had which it addresses both the nucleus of fact which is federal and the primary right it we do not look the statute we don't look to the legal theory being advanced whether it's statutory or common law we look to the harms being addressed there are separate harm even neon rest break claims address their right to  be employees right to take no rest breaks after a certain time period into their shift where as soon as seeing claims address and employees rights not have to be subjected to standing the entire shift they're just different right that from that scene from a common sense damn point the fact that they fall under the same statute and they both fall under the conditions of the workplace kind of leads to a in a less than a logical fallacy it's basically saying that all cats are mammals all dogs are mammals and therefore all dogs or cats their not the same and so and for this court to make such a ruling would require a broad sweeping ruling and with every claim that under the under the wage claims that actually involve wages all under the same primary right you know so it's possible if certain wage claims are brought and you try to bring a later wage claim that you would be that you would be so great you caught a record but it sounds like your view is that the same thing is a necessarily true for non wage in our employment claims you view those as all is all different each one saw you under that wage or seven so you obviously have your seeding you have  they come under different thoughts actions but i would say that they those two claims address the same primary rights the fenian title either to be an intact and employee being having the right to take a break or be entitled to premium wages and those breaks were either interrupted or missed and so under that situation both of those those claims are the same even though they don't follow the same statute i would i mean are you so are you saying that because of  credit that court declined to make such a broad vision that court declined to address the issue of all whether all these claims are the same harm same rights or if it's just that the additional claims and then all of a so i need to talk i mean it's a tough it's tough to know what to do with it but as you can imagine telling us to just ignore it when it seems to be the most the closest certain age paga claim based on a alleged violation wage over seven but that plaintiffs and the state of california already received compensation from that lawsuit before we jump into  the legal issues i think it's important to take a step back and look at the bigger picture affleck finding for plaintiffs here would only run afoul of california contract law and rest  judicata application but it will open the floodgates to successive wage an hour lawsuits where an employer has already settled a case now there may be a healthy debate as to whether the merits and perceived benefits certainly serious drawbacks of wage our class actions but there's no dispute that once a lawsuit is settled monies are paid and that is after a court if district court or in this we're going to allow employees to bring wage and hour class actions then that the rules have to allow employers to five piece without that the whole system crumbles like a house of cards and getting to the merits of  the issues before the court st i want to look over the fact that we don't even have to get into a rescue cost analysis the court can affirm the district court purely on contractual grounds where it is on a big us on its face the court only need to look at what is the contract say here section twenty four dollars of the pas settlement is unequivocal that's releasing all claims of four paga civil penalties don't we don't even have to jump to rescue to caught although we certainly will get there but purely and contractual grounds for section twenty four of the settlement along with section thirty seven the more the longer before final approval there was no dispute here in the evidence although curiously in the reply brief there's an allegation that perhaps the plaintive didn't receive notice of the possible minute we know that not to be true because her own declaration doesn't say that the declaration from the rd party claims of mr rader is on point that it not only was a notice sent to the plaintiff but also a check was received by the bank but certainly parties can and in this case they did have an explicit carve out of the settlement and in the pas case the explicit carve out concerned an issue of the calculation of the regular rate of pay and nuanced issue of overtime determinations so that is there now a pall just settlement of course your honour's and section twenty four dollars of the release it is pretty profound that the trial court the superior court had the opportunity under the paga statute under the california legislature had given superior court the opportunity to review a class action settlement and a pog a settlement in fact a superior court has all tim carte blanche in reviewing and determining the sufficiency of a settlement of a promise of a that is what happened here and in signing off on the settlement a class action settlement pas including the  here again my colleagues on the other side both at the district court and in the papers before your honor's has conflated the federal test of factual identical factual predicates as with the undermined by how much money was devoted to penalty the vast majority of the amount of the settlement was state that went to the the settlement class numbers in excess of seven hundred thousand dollars which for penalt and that that seems to me to be the difficulty with california's armory rice analysis is very malleable i think i found some there's some language from in the course of cells but it depends on you keep calling it the conditions of employment which is a very you know it is a bad but it's a very broad view of what is the primary right i think your your opponent would consider the primary right to be the right to have seating when it's not a core part of you know standing is a core part of your job so this depends on how broadly you define the primary right so here's it seems to me if that's right i think it is and when it's there when it kind of turns on is what the california courts have thought as far as how probably we should define that pri this contest i guess and that's i'd like to hear both of you talk about that because at the end of day you can boast and talk past each other about no it's a big problem right now it's a little private right but at the end of the day when the california courts say about the judge they was just expressing a concern about claims under the fair employment and housing act or other sections that apply to employees and the employer relationship it covered the wage an hour the purview of wage in hours which includes suitable seating that the statute the st case there was no salamon up of paga there was no mention of paga and and yet yet the court of appeal said we see this all as the same underlying claims both wage claims and penalty claims in addition the shi'a in view williams sonoma case another california case that is is is very much on point to the question of c less a bride's settlement when a claim was not before it and there in shine relying on numerous circuit decisions found absolutely that's the whole point of a class  finality means that when judge cohn in san bernardino superior court last the pas settlement and signed off on it granting final approval that is are i had the right to rely on that at all wage in our claims all claims under the wage order because they're running out of time but if i may there's more a case as your honour's pointed out not only doesn't do an analysis of a frankly in my book particularly misses and ignores the of i guess cropped out the language as beneficial to them but the as a whole the language of the language of the release that happened with that all of these claims are going to be released based on the fact as violations of hotness so that term is invalid on its face it but more importantly the release is just limited to the claims that were alleged in the action no suitable seeding claims were alleged in that action  therefore the even that even the district court didn't buy the argument that there was some type of released soon as a madonna's claims and that argument just fails to the weight by i didn't want to address  california finding authority comes from the same appellate district but if it is that ruling comes from the federal one that when that ruling is just merely persuasive it is not by counsel if you're in california courts but how do we buy that like you know kata which here it's the broken hate the voting case came down at the same time and bill a craft vote in in vote in the court said there were right when we are when courts are looking to the primary rights of the two planes which is really the issue here not whether or not whether these claims came under the same statute or not whether the violations happened at the same time not whether plaintiff was a name member of the former class it's not whether she the to obtain exuding we look at the rights to obtain redress for the harm stumper regardless of the specific remedies box or the legal theory the determine it factor is the harm suffered and that the analysis analysis that should have tied to the harm suffered the problem with that is that it depends on how you how you sort of how you characterize harm suffered if you characterize the harm suffered as i think you would like us to do understandably the as not as being able to have seating then obviously that's a different primary right but if you characterize the right as have a lawful conditions of employment obviously if you're going to like it to do all he's doing is just it just depends on how general you make it so the problem with so i understand why everybody's like focusing on the fire right but that doesn't answer the question for me of how broadly should we do it in this context and on that i guess when i read the villagers i don't know if i'm in the case in my or not but i read that case whether it's binding or not what it seems to be saying to me is that it's it identifies the primary white pretty broadly in this context and it does sell precisely for all the reasons that you're on it is for them pounding on which is you know they cut across the claim  we want the settlements to work except for all those we might call policy reasons are reasons it seems the court identifies the primary right broadly but it's just only in the villagers cases and so what what should we do with that i don't don't tell me ignore it press court that simply put the press product claims were within the quote of the former litigation and were related to the subject matter and the issue in the action which were the payment of wages in the penalties by that same employer from both sides for their spirited and well prepared for arguments at this point