NOT FOR PUBLICATION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 grant ing Walgreen Co.’s (Walgreens) motion to enforce a prior wage and hour class action settlement an d to enjoin her California state cou rt action, which asserts a Private Attorney s 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, CLER K U.S. COURT OF APPEAL S2

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 s ettled 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 , 74 8

– 4 9 ( 9th Cir. 2006). The release ’s language encompasses Zamora’s state court action because it
release d any PAGA claim and included a covenant not to participate in a PAGA
action

. But t

he release is not enforceable as to Zamora’s state court action because
the two actions do not share an identical factual predicate . T he wage and hour litigation concerned Walgreens’ s provision of meal and rest periods, payment of wages and overtime compensation, provision of accurate wage statements, and3

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 mechanism s to assert clai ms

–– California Labor Code § 1198 and P AGA

– – 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 with in the relitigation except ion to the Anti

- Injunction Act. 28 U.S.C. § 2283; see Sandpiper Vill

. Condo. Ass’n, Inc. v. L a
. - Pac. Corp. , 428 F.3d 831, 847

– 48 (9th Cir. 2005)

. A n injunction may issue under the relitigation exception “if res judicata would b ar the

state court proceedings. ” Blalock Eddy Ranch v. MCI Telecomms. Corp. , 982 F.2d 371, 375 (9t h 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 unen forceable pre - dispute waiver of PAGA rights under Iskanian v. CLS Transp. L.A. , LLC , 59 Cal. 4th 348 (2014 )

. 2 T he district court did not reach this issue.4

evidence, as each action concerns factually disti nct violations of the different Wage Order provisions

. S ee 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 Ka m 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 substit ute a different PAGA representative into her state court action

.