Stonehocker v. Kindred Healthcare Operating, LLC

Opinion

SARAH STONEHOCKER, CASE NO. 19-cv-02494-YGR

Plaintiff, ORDER DENYING MOTION FOR SUMMARY vs. JUDGMENT

KINDRED HEALTHCARE OPERATING, LLC, Re: Dkt. No. 18 Defendant.

Plaintiff Sarah Stonehocker brings this putative class action against defendant Kindred Healthcare Operating, LLC alleging claims under California law for failure to pay overtime wages, failure to pay wages when due, and unlawful business practices. Defendant now moves for an early summary judgment on grounds that (i) plaintiff is bound by the judgment and dismissal entered in Cashon v. Kindred Healthcare Operating, Inc., et al., Case No. 3:16-cv-04889-RS (“Cashon”), and thus, plaintiff’s claims are barred by the doctrine of claim preclusion1; and (ii) plaintiff released her right to bring the claims asserted in this action through the Class Action Settlement Agreement and Stipulation approved by the court in Cashon. (Dkt. No. 18 (“MSJ”).) Having carefully reviewed the pleadings, the papers and evidence submitted, and oral argument, and for the reasons set forth more fully below, the Court DENIES defendant’s motion for summary judgment.

1 Although the parties’ briefing refers to this as the doctrine of “res judicata,” the Ninth Circuit has indicated that term is outdated. NTCH-WA, Inc. v. ZTE Corp., 921 F.3d 1175, 1178, n.1 (9th Cir. 2019) (“The terms ‘claim preclusion’ and ‘issue preclusion’ ‘have replaced a more confusing lexicon.’ . . . . The term ‘res judicata’ refers ‘collectively’ to claim and issue A. Plaintiff and the Present Action Plaintiff filed the instant wage-and-hour putative class action on February 14, 2019, asserting claims arising from defendant’s failure to pay wages and overtime to “skilled clinicians” who worked at defendant’s skilled nursing facilities (“SNFs”) throughout the state. (Dkt. No. 1-2; Dkt. No. 1-4 (“FAC”) ¶ 1.) More specifically, plaintiff alleges that defendant required skilled clinicians working at its SNFs to maintain minimum patient care ratios (“PCR”), pursuant to which they had to spend at least 87 percent of their shift time on “skilled direct patient care.” (FAC ¶¶ 8-9.) Plaintiff alleges that in order to meet these productivity requirements and complete certain necessary unskilled work, skilled clinicians “performed unpaid and undocumented overtime work.” (Id. ¶ 11.) In the FAC, plaintiff asserts causes of action against defendant for failure to pay overtime, failure to pay wages when due, and unlawful business practices, seeking to represent the following class: All individuals who worked for Kindred as skilled clinicians (including physical therapists, occupational therapists, and speech therapists) at Kindred skilled nursing facilities in California from four years preceding the initial filing of this action through the final disposition of this action. (Id. ¶¶ 14, 19-31.) Plaintiff herself worked as an occupational therapist for defendant in two capacities. First, plaintiff worked for Kindred Rehab Services, Inc. (“Kindred Rehab”) from approximately October 31, 2006 through October 16, 2016. (Dkt. No. 22-1, Plaintiff’s Responsive Separate Statement of Undisputed Material Facts (“UMF”), No. 2.) During this period, Kindred Rehab, a direct subsidiary of defendant, offered skilled clinician services at various of defendant’s SNFs. (Id., No. 3-4.) As an occupational therapist for Kindred Rehab, plaintiff was paid on an hourly basis. (Dkt. No. 22-3 (“Stonehocker Decl.”) ¶ 2.) Second, beginning approximately October 17, 2016, plaintiff worked for Professional Healthcare at Home, LLC (“PHH”), an indirect subsidiary of defendant offering skilled clinician services in the home healthcare setting. (UMF, No. 5-7.)2 As a home healthcare occupational therapist, plaintiff was compensated using a combination of a piece rate structure and other methods. (Stonehocker Decl. ¶ 4; Dkt. No. 23-1 (“VanRude Decl.”) ¶ 3.)3 B. The Cashon Action On August 24, 2016, Valerie Cashon filed a putative class action against defendant,4 also arising from defendant’s wage-and-hour practices. (UMF, No. 8.) In the operative second amended complaint (“SAC”), Cashon, who allegedly worked as an occupational therapist for defendant, asserted thirteen causes of action, including failure to pay piece rate employees for rest and meal breaks and nonproductive time, failure to pay for all hours worked, failure to pay minimum wage, failure to keep accurate payroll records, failure to pay overtime compensation, waiting time penalties, failure to reimburse for business expenses, and violation of the Private Attorney General Act of 2004 (“PAGA”). (Dkt. No. 18-7 (“RJN”), Ex. C, ¶¶ 31-105.)5 Cashon purported to bring these claims on behalf of herself and a class comprised of the following: All Clinicians and Piece Rate Employees who at any time during the four years preceding the filing of th[e] complaint and/or during its pendency were employed by [d]efendants in California. (Id. ¶ 2.) The SAC defined “Clinicians” as “Occupational Therapists, Occupational Therapist Assistants, Physical Therapists, Physical Therapy Assistants, Registered Nurses, License Vocational Nurses, Media Social Workers, Speech Therapists, and other Clinicians that are paid

2 Kindred Rehab has been a direct subsidiary of defendant since at least August 24, 2012. (UMF, No. 4.) PHH was an indirect subsidiary of defendant from August 24, 2012 and April 20, 2018. (Id., No. 7.) 3 Plaintiff’s employment with PHH ended on December 28, 2019, and she is no longer employed by defendant or any entity affiliated with defendant. (Stonehocker Decl. ¶ 5.) 4 Cashon also named as a defendant Gentiva Certified Healthcare Corp., which is not a party to the instant action. 5 In support of its motion, defendant requests that the Court take judicial notice of certain pleadings and orders filed on the public docket in Cashon. (Dkt. No. 18-7.) Federal courts “may take judicial notice of court filings and other matters of public record.” Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746, n.6 (9th Cir. 2006) (citing Burbank–Glendale–Pasadena by Piece Rate.” (Id. ¶ 12.) The SAC further alleged that class members were assigned to work “in private homes and in facilities throughout California.” (Id. ¶ 23.) On April 20, 2018, Judge Richard Seeborg, the presiding judge in Cashon, granted preliminary approval of a class action settlement entered into by the parties. (UMF, No. 14.) The settlement agreement defined the class as follows: All persons who were employed by either Kindred Healthcare Operating, Inc. or Gentiva Certified Healthcare Corp. or one of its/their direct or indirect subsidiaries to provide skilled home health care services in California as Clinicians or piece rate employees at any time from August 24, 2012 through and including the date the Preliminary Approval Order is entered by the Court. (Id., No. 19.) “Clinicians” was defined as “per diem, part-time and full-time home health aides, occupational therapists, occupational therapist assistants, physical therapists, physical therapy assistants, registered nurses, licensed practical nurses, licensed vocational nurses, medical social workers, nursing assistants, speech/language pathologists, speech/language therapists, and other clinicians paid on an hourly or per visit basis.” (Id., No. 20.) The settlement period was defined as August 24, 2012 through the date of preliminary approval, which was April 20, 2018. (Id., No. 16.) Settling class members were to be compensated based on “[d]ays [w]orked” “in the home or hospice setting.” (Id., Nos. 50, 55.) The settlement agreement also contained the following release provision: As of the Effective Date and to the maximum extent permitted by law, the Plaintiff, and all Plaintiff Class Members (i.e., all Class Members who do not properly opt-out) and all persons purporting to act on the Plaintiff Class Members’ behalf or purporting to assert a claim under or through them, hereby do and shall be deemed to have fully, finally, and forever released, settled, compromised, relinquished and discharged any and all of the Released Parties of and from any and all of the following claims: a. all disputes, claims, and/or causes of action pleaded or which could have been pleaded in and arising from the facts, claims and/or allegations in the Complaint and Plaintiff’s August 23, 2016 and September 20, 2016 letters to the LWDA concerning Defendant(s), and all claims (including penalties arising from such claims) under Cal. Labor Code §§201-203, 226, 226.2, 226.3, 226.7, 218.5, 510, 512, 558, 1174, 1174.5, 1194, 1194.2, 1194.3, 1197, 1197.1, 2802, Cal. Civil Proc. Code § 1021.5, Cal. Bus. & Prof. Code §§ 17200 et seq., California IWC Wage Orders, the Minimum Wage Orders, the Fair Labor Standards Act, damages, penalties, interest, attorney’s fees, costs, and other amounts recoverable attorney’s fees and costs based in whole or in part on the allegations and/or claims in the Action during the Settlement Period; and b. all claims of any and every nature based on off-the-clock work, minimum wage, overtime, meal and rest break claims, paycheck-related claims, payroll records maintenance, wage statement claims, business expense reimbursement claims, waiting time penalties, California IWC Wage Order claims and Unfair Competition Law claims that arose during the Settlement Period. (Id., No. 15.)6 On June 4, 2018, the claims administrator mailed notices of settlement, claims forms, and checks to class members, including the plaintiff in the instant action. (Id., No. 22.) The notice stated in several places that only those who provided home health care services would be affected by the settlement. (Id., No. 51, 53-55.) Further, the claim form sent to plaintiff estimated that she performed work “as a Clinician or piece rate employee” for defendant “in the home health or hospice setting for 346 days between August 24, 2012 and April 20, 2018,” and accordingly, her estimated share of the settlement was $4,801.56. (Dkt. No. 18-1 (“Cita Decl.”), Ex. A.) Plaintiff did not object to or request exclusion from the settlement by the stated deadline of July 19, 2018. (UMF, No. 23-24.) Judge Seeborg granted final approval of the settlement on September 4, 2018. (Id., No. 14.) The claims administrator mailed plaintiff a check for her portion of the class settlement, in the amount of $6,790.83, on November 2, 2018. (Cita Decl. ¶ 9.) Thereafter, plaintiff cashed the check. (Id.)7 II. LEGAL STANDARD Summary judgment is appropriate where the pleadings, discovery, and affidavits demonstrate that there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Material facts are those that might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). On summary judgment, the court draws all reasonable factual inferences in favor of the nonmoving party. Id. at 6 The released parties included defendant and its current and former parents, subsidiaries, affiliated and related companies and entities. (UMF, No. 17.) 7 On May 30, 2019, this Court issued a sua sponte order of referral to Judge Seeborg to 255. “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge[.]” Id. However, conclusory and speculative testimony does not raise genuine issues of fact and is insufficient to defeat summary judgment. See Thornhill Publ’g Co., Inc. v. GTE Corp., 594 F.2d 730, 738-39 (9th Cir. 1979). The party moving for summary judgment has the initial burden of demonstrating the absence of a genuine issue of material fact as to an essential element of the nonmoving party’s claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 330-331 (1986). Once the movant has made this showing, the burden shifts to the nonmoving party to identify specific evidence showing there is a genuine issue of material fact for trial. Id. at 332, n.3. If the nonmoving party cannot do so, the movant “is entitled to . . . judgment as a matter of law because the nonmoving party has failed to make a sufficient showing on an essential element of her case.” Id. at 323 (internal quotations omitted). Defendant claims it is entitled to summary judgment because (1) plaintiff’s claims are barred by claim preclusion in light of the Cashon litigation and settlement; and (2) plaintiff’s claims are barred by the terms of the release contained in the Cashon settlement agreement. The Court addresses each argument in turn. A. Claim Preclusion First, the Court must determine whether plaintiff is barred by the doctrine of claim preclusion from asserting her claims in this action. The doctrine of claim preclusion “precludes parties or their privities from relitigating a cause of action that has been finally determined by a court of competent jurisdiction.” See Acuna v. Regents of Univ. of Cal., 56 Cal. App. 4th 639, 648 (1997) (citation omitted).8 For the doctrine to apply, the following requirements must be met: (1) the decision in the prior proceeding is final and on the merits; (2) the present action is based on the same cause of action as the prior proceeding; and (3) the parties in the present action or parties in privity with them were parties to the prior proceeding. See Rangel v. PLS Check Cashers of Cal., Inc., 899 F.3d 1106, 1110 (9th Cir. 2018); Mycogen Corp. v. Monsanto Co., 28 Cal. 4th 888, 896-97 (2002). If the requirements are met, claim preclusion bars the litigation of issues that were or could have been raised in the prior proceeding. Bullock v. Philip Morris USA, Inc., 198 Cal. App. 4th 543, 557 (2011). Even if the requirements are established, however, claim preclusion “will not be applied if injustice would result or if the public interest requires that relitigation not be foreclosed.” Consumer Advocacy Group, Inc. v. ExxonMobil Corp., 168 Cal. App. 4th 675, 686 (2008) (internal quotations omitted). Here, the parties agree that the first and third requirements are satisfied, that is, Cashon resulted in a final decision on the merits and the parties in this case were parties to or in privity with the parties in Cashon. (Motion at 9, 11-12; Opp. at 11.) Thus, the only issue before the Court is whether this case is based on the same cause of action as Cashon, such that the second requirement is satisfied. Under California law, courts use the “primary rights” doctrine to ascertain whether two cases involve the same cause of action. See Villacres v. ABM Indus. Inc., 189 Cal. App. 4th 562, 575-76 (2010); Manufactured Home Cmtys. v. City of San Jose, 420 F.3d 1022, 1031 (9th Cir. 2005). Under the primary rights doctrine, a “cause of action” is “comprised of a ‘primary right’ of the plaintiff, a corresponding ‘primary duty’ of the defendant, and a wrongful act by the defendant constituting a breach of that duty.” Mycogen, 28 Cal.4th at 904 (internal quotation and alterations omitted). The “determinative factor” in the primary rights analysis is “the harm suffered,” rather than the legal theory advanced or the remedy sought. Villacres, 189 Cal. App. 4th at 576-77. Moreover, “even though two suits involve the same nucleus of facts, they do not necessarily raise the same cause of action under California law.” Maldonado v. Harris, 370 F.3d 945, 953 (9th Cir. 2004) (citing Morris v. Blank, 94 Cal.App.4th 823 (2001)). “If the ‘primary right’ sought to be vindicated in a subsequent suit is the same as that in an earlier suit, the second action will be precluded under California law.” Id. at 952.9

9 Plaintiff contends that in addition to the primary rights approach, courts in the Ninth Defendant avers that this action and Cashon both arise from the same primary right of defendant’s clinicians to be “pa[id] all wages owed for total hours worked, including overtime compensation” and “pa[id] all wages due at termination.” (Motion at 11; Reply at 4.) Plaintiff counters that Cashon and this action involve separate, distinct primary rights, emphasizing that the cases arise from work performed by different putative classes, in different settings, for different direct employers, using different pay structures. (Opp. at 15.) To resolve this dispute, the Court must compare the complaints in the two actions, focusing on “the facts pleaded and the injuries alleged.” Adam Bros. Farming v. Cty. of Santa Barbara, 604 F.3d 1142, 1149 (9th Cir. 2010). The first amended complaint in this case, like the operative complaint in Cashon, alleges that defendant failed to pay due wages to members of the class, which includes physical therapists, occupational therapists, and speech therapists. (FAC ¶ 1.) The complaints diverge, however, on other critical allegations. For example, unlike Cashon, this action “arises from [defendant]’s strict and impracticable minimum Patient Care Ratio (“minimum PCR”) productivity standard,” which allegedly resulted in systemic failure to pay for overtime hours worked and to pay wages when due. (Id.) Plaintiff alleges that members of the class were “typically required to see seven to twelve patients during their scheduled eight-hour shifts,” during which they performed “skilled direct care” and “unskilled ancillary work.” (Id. ¶ 8.) The complaint further alleges that in order to maintain the “minimum PCR,” which was “rigorously enforced,” plaintiffs “perform[ed] unpaid and undocumented overtime work.” (Id. ¶ 10.) Cashon made no mention of PCRs. Further, the Court is not persuaded by defendant’s assertion that the Cashon class encompasses the putative class in this action. The clinicians here worked in defendant’s “skilled nursing facilities.” (See id. ¶ 14.) The Cashon complaint defined the class to include “[a]ll Clinicians and Piece Rate Employees employed by defendants,” with “Clinicians” defined as “Occupational Therapists, Occupational Therapist Assistants, Physical Therapists, Physical

California law in support of this proposition, however, and Villacres indicates that the primary Therapy Assistants, Registered Nurses, License Vocational Nurses, Media Social Workers, Speech Therapists, and other Clinicians that [we]re paid by Piece Rate.” (RJN, Ex. C., ¶¶ 2, 12, emphasis supplied.) These definitions contain redundancies, and as a result, are ambiguous as to whether the Cashon plaintiff sought to represent all clinicians and all piece rate employees, or a more limited class of clinicians who were paid by piece rate. In light of this ambiguity in the complaint, it is appropriate to consider the class definition as set forth in the settlement. The settlement class, unlike the class alleged in the complaint, includes employees compensated on a piece rate, hourly, or per visit basis, but notably, is limited to clinicians who “provide[d] skilled home health care services.” (UMF, No. 19, emphasis supplied.)10 Critically, this settlement class definition excludes the putative class in this action, who worked in an SNF setting rather than a home or hospice setting.11

10 Defendant notes that the Cashon complaint refers to “nursing centers” and “facilities,” suggesting that this Court should therefore interpret the complaint as including within its scope clinicians’ work at SNFs. However, the Cashon complaint mentions “nursing centers” only in the context of describing defendant’s full range of services and does not expand the scope of plaintiff’s claims. (See RJN, Ex. C, ¶ 15 (“Defendant Kindred is a Delaware corporation, headquartered in Kentucky, and is a nationwide healthcare services company that through various subsidiaries operates transitional care hospitals, inpatient rehabilitation hospitals, nursing centers, assisted living facilities, a contract rehabilitation services business, and a home health and hospice business.”).) Further, at the hearing on the motion, defendant’s counsel clarified that the Cashon settlement was paid to employees who worked in SNFs only if they also provided home health care services. 11 The Court notes that plaintiff worked as a clinician in defendant’s SNFs until October 16, 2016, at which time plaintiff began working as a clinician in the home healthcare setting. Thus, the time period during which plaintiff’s claims in this action arose (pre-October 16, 2016) is entirely separate from the time period for which plaintiff recovered in the Cashon settlement (i.e. post-October 16, 2016). Indeed, plaintiff was compensated for only 346 days of work during the nearly six-year Cashon class period, corresponding to the time when she worked in the home healthcare setting. (Cita Decl., Ex. A.) Relatedly, plaintiff contends that Cashon and this action involve different employers because plaintiff worked for Kindred Rehab until October 16, 2016, after which she worked for PHH. (See Opp. at 15.) However, both actions name and make allegations as to Kindred Healthcare Operating, Inc. (now known as Kindred Healthcare Operating, LLC), without specifically referencing any of defendant’s subsidiaries. Because the Court’s primary rights inquiry must focus on the allegations in the complaints, Adam Bros., 604 F.3d at 1149, unpleaded Prieto v. U.S. Bank Nat. Ass’n, No. CIV S-09-901 KJM EFB, 2012 WL 4510933 (E.D. Cal. Sept. 30, 2012), on which plaintiff relies, is illustrative. There, defendant sought to bar a plaintiff’s wage-and-hour claims based on a prior class action settlement also involving wage and hour claims. Prieto, 2012 WL 4510933, at *9. In the prior case, brought by defendant’s hourly employees, plaintiffs alleged that they were deprived of meal and rest periods and were not paid for off-the-clock work. Id. In the case before the court, the complaint alleged that the defendant had a policy of classifying certain employees as exempt, which resulted in defendant failing to pay for meal and rest periods and overtime. Id. The court concluded that, although there was “much overlap in the two actions, starting with the similarity of the facts and the Labor Code violations presented through the requests for payment of lost wages,” the cases involved different primary rights. Id. The court reasoned that in the prior case, the harm “flowed from defendant’s refusal to pay hourly employees’ wages due under the provisions of the Labor Code,” whereas in Prieto, the harm “flowed from defendant’s alleged misclassification of plaintiff and could have occurred even if it honored all its obligations . . . to hourly employees.” Id. Thus, “[t]he harm in [Prieto] [wa]s the misclassification, which led to the alleged failure to pay, while the harm in [the prior case] was the failure to pay. Id.12 Likewise, Cashon and the action presently before this Court involve different primary rights: While Cashon sought to redress defendant’s failure to pay wages owed to clinicians working in the home and hospice setting, the instant case seeks to redress defendant’s enforcement of productivity standards that resulted in clinicians at its SNFs being denied wages. Accordingly, actions allege harm caused by the same parent entity. 12 Defendant argues that Prieto’s holding is “inconsistent with the primary right doctrine under California law, which does not require claims to have the same factual underpinnings to find that they are the ‘same.’” (Reply at 5-6.) Defendant’s argument fails to persuade. The Prieto court specifically noted that it reached its “primary rights” determination in spite of similarities in the factual basis for the two actions at issue, focusing on differences in the harms alleged. Prieto, the second claim preclusion requirement has not been met.13 The doctrine of claim preclusion does not bar plaintiff from proceeding with her claims.14 B. Cashon Settlement Release Next, the Court must determine whether defendant is entitled to summary judgment because the Cashon settlement released plaintiff’s claims. As a threshold matter, the Court must resolve a dispute between the parties regarding the applicable law for analyzing the release. Defendant argues that California contract law applies and urges the Court to disregard Ninth Circuit law, as articulated in Hesse v. Sprint Corp., 598 F.3d 581 (9th Cir. 2010), which limits the enforceability of releases. (Reply at 12-13.) Plaintiff contends that Ninth Circuit law governs, and in any event, California courts have articulated comparable principles. (Opp. at 20.) The Court finds that the relevant California and Ninth Circuit laws are reconcilable, and both apply to the Court’s analysis in this case. A class action release is a contract, and contract interpretation is ordinarily a question of state law. See Navarro v. Mukasey, 518 F.3d 729, 733 (9th Cir. 2008). Under California law, a contract “must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting[.]” Id. at 734 (quoting Cal. Civ. Code § 1636). In determining the parties’ intention, courts consider the writing itself, as well

13 Because the claim preclusion requirements have not been met, the Court need not consider whether public interest factors preclude application of the claim preclusion doctrine. See Consumer Advocacy Group, Inc. v. ExxonMobil Corp., 168 Cal. App. 4th 675, 686 (2008) (public interest may preclude application of claim preclusion even if the threshold requirements are established). 14 The key cases on which defendant relies in arguing claim preclusion applies are distinguishable because in each, the court found that the plaintiff could have brought its claims in the prior action. See Shine v. Williams-Sonoma, Inc., 23 Cal. App. 5th 1070 (Ct. App. 2018); Harris v. Best Buy Stores, L.P., 2018 WL 984220 (N.D. Cal. Feb. 20, 2018); Villacres v. ABM Indus. Inc., 189 Cal. App. 4th 562 (2010). In Villacres, for example, the court declined to decide whether “every Labor Code violation and PAGA penalty involves a separate primary right,” and instead found that under “the unique circumstances of th[e] case,” the plaintiff’s claims were within the scope of the prior litigation such that plaintiff “could have attempted to assert his [] claims as a member of the class” in the prior case. 189 Cal. App. 4th 562, 581, 584 (2010). Here, as the circumstances under which it was made and the matter to which it relates. See Pac. Gas & Elec. Co. v. G. W. Thomas Drayage & Rigging Co., 69 Cal. 2d 33, 38-39. More specifically, under California law, releases that purport to cover all claims that were or could have been raised in an action “must be given comprehensive scope.” Villacres, 189 Cal. App. 4th at 589 (citation omitted). “The rule for releases is that absent special vitiating circumstances, a general release bars claims based upon events occurring prior to the date of the release.” Id. (quoting Johnson, Drake & Piper, Inc. v. United States, 531 F.2d 1037, 1047 (1976)). Even when applying California law to analyze a release, however, Ninth Circuit law dictates that “[a] settlement agreement may preclude a party from bringing a related claim in the future . . . only where the released claim is ‘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) (quoting Williams v. Boeing Co.,517 F.3d 1120, 1133 (9th Cir. 2008)); see also Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 748 (9th Cir. 2006) (settlement release bars subsequent claims if they arise from an “identical factual predicate” as claims asserted by the settling party in the prior action).15 “[S]uperficial similarit[ies]” between the actions are insufficient to justify release. Hesse, 598 F.3d at 591. Rather, the Court’s inquiry must focus on whether the claims in each action depend on the same set of facts. Id. at 590-91. In analyzing a release, courts also consider whether the named plaintiff in the prior action was an adequate representative for the claims asserted by the plaintiff in the subsequent action. Id. at 588.16

15 Defendant cites Reyn’s to argue that “even the Ninth Circuit has found that [] alleged wrongdoings do not need to be identical for one action to extinguish the other.” (Reply at 14.) Reyn’s, however, does not support defendant’s assertion. There, the Ninth Circuit held that although the legal theories in the relevant actions were different, the “price-fixing predicate (price- fixing interchange rates) and the underlying injury [we]re identical.” Reyn’s, 442 F.3d at 749. Thus, contrary to defendant’s assertion, the Reyn’s court did consider whether the two actions were predicated on the same alleged facts. 16 Defendant argues that Hesse does not apply for the additional reason that in that case, the Ninth Circuit applied the “identical factual predicate” standard only because the claims sought to be released were not presented and might not have been presentable in the settled action.” (Motion at 15-16, n.7.) No where in Hesse, however, does the Ninth Circuit so limit its holding. Accordingly, the Cashon release must be interpreted to effectuate the intent of the parties in the context of the overall action, while applying Ninth Circuit law regarding limitations on enforceability of releases.17 Under the terms of the Cashon release, settling class members are barred from pursuing “all disputes, claims, and/or causes of action pleaded or which could have been pleaded in and arising from the facts, claims and/or allegations in the [Cashon] [c]omplaint . . . during the Settlement Period,” as well as “all claims of any and every nature based on off-the- clock work, minimum wage, overtime, . . . waiting time penalties, California IWC Wage Order claims and Unfair Competition Law claims that arose during the Settlement Period.” (UMF, No. 15.) Defendant avers that this release “expressly includes and releases all of the causes of action at issue in this action,” and because plaintiff failed to object to, intervene in, or opt out of the Cashon settlement, she is therefore barred from asserting her claims in this case. (Motion at 14.) Plaintiff counters that the release does not bar her claims because the “subject matter of the two cases is fundamentally different.” (Opp. at 21.)

17 Defendant avers that it is not aware of any California case law applying the “identical factual predicate” standard to analyzing the enforceability of a release, and plaintiff has not cited to any such case law. (Reply at 12.) Notably, however, numerous courts in this circuit have applied the standard when analyzing releases governed by California law. See, e.g., Raquedan v. Volume Servs., Inc., No. 18-CV-01139-LHK, 2018 WL 3753505, at *6 (N.D. Cal. Aug. 8, 2018) (“Even if the Thompson release attempts to reach claims not based on an identical factual predicate, Ninth Circuit law explicitly limits the release to claims based on the identical factual predicate.”); Cancilla v. Ecolab Inc., No. C 12-03001 CRB, 2014 WL 2943237, at *7 (N.D. Cal. June 30, 2014) (“Release will depend on whether the present claim is based on the ‘identical factual predicate as that underlying the claim’ in the previous settled class action.”); Feller v. Transamerica Life Ins. Co., No. 216CV01378CASAJWX, 2016 WL 6602561, at *6 (C.D. Cal. Nov. 8, 2016) (“Although neither party relies upon a California state court decision addressing the ‘identical factual predicate’ test, federal courts have applied the test to determine the scope of settlement releases under California law.”). In several such cases, courts have expressly applied both California and Ninth Circuit law. See, e.g., Schroeder v. Envoy Air, Inc., No. CV 16-04911- MWF-KS, 2016 WL 11520388, at *7 (C.D. Cal. Sept. 27, 2016) (citing Villacres for proposition that release of “all claims and causes of action” must be given a comprehensive scope and applying the Hesse “identical factual predicate” standard); Nangle v. Penske Logistics, LLC, No. 11CV807-CAB (BLM), 2012 WL 12996852, at *2 (S.D. Cal. Oct. 30, 2012) (“Unlike Villacres, the claims here arise out of a completely different policy, and are thus permitted to go forward since they are not based on the “identical factual predicate” as those that were settled[.]”); Prieto v. U.S. Bank Nat. Ass’n, No. CIV S-09-901 KJM EFB, 2012 WL 4510933, at *6 (E.D. Cal. Sept. 1 Defendant’s argument fails to persuade. For the reasons discussed above, the evidence 2 shows that Cashon and this case arise from different factual predicates: namely, the Cashon 3 settlement concerns defendant’s compensation of clinicians working in the home healthcare 4 } setting, whereas this action defendant’s compensation of clinicians working in the SNF setting. 5 Both parties have submitted evidence indicating that the nature of the work and the pay structures 6 differed in each of these settings. (See Stonehocker Decl. □□ 2-4, 6; VanRude Decl. §] 3.) 7 Moreover, the Cashon complaint does not contain a single allegation regarding PCRs, which are a 8 focus of plaintiffs allegations here, while plaintiff's complaint does not address piece rate 9 employees, which were a focus of the Cashon complaint. In addition, the class notice stated in 10 several places that only those who provided home health care services would be affected by the 11 settlement, meaning plaintiff was a member of a class of SNF clinicians who did not receive 12 notice that they were releasing claims. (UMF Nos. 51, 53-55.) These two groups may not be 13 conflated for purposes of barring plaintiff's claims in this action. 14 Such differences in the factual predicates underlying each action are significant. 15 Accordingly, the Court finds that the Cashon release does not preclude plaintiff from pursuing her 16 claims in this action. 17 IV. CONCLUSION 18 For the reasons stated above, the Court DENIES defendant’s motion for summary judgment. 19 This Order terminates Docket Number 18. 20 IT Is SO ORDERED. 21

74 YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE 24 25 26 27 28