Filed 5/14/18 (unmodified opinion attached)
                  CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                   SECOND APPELLATE DISTRICT

                               DIVISION TWO


ANDREW CASTILLO et al.,                         B278239

       Plaintiffs and Appellants,               (Los Angeles County
                                                Super. Ct. No. BC505602)
       v.
                                              ORDER MODIFYING
GLENAIR, INC.,                                OPINION, DENYING
                                              REHEARING, AND DENYING
       Defendant and                          REQUEST FOR JUDICIAL
       Respondent.                            NOTICE

                                              [NO CHANGE IN
                                              JUDGMENT]


THE COURT:


     It is ordered that the opinion filed herein on April 16, 2018,
be modified as follows:

      1. On page 1, the appearance for appellants is modified to
read as follows:
             Matern Law Group, Matthew J. Matern, Andrew
      Sokolowski, Tagore Subramaniam, Debra J. Tauger;
      Altshuler Berzon, Stacey Leyton, Eve H. Cervantez and
      Rebecca C. Lee for Plaintiffs and Appellants.

      2. On page 2, first sentence of the last paragraph, which
continues on page 3, an apostrophe is added to the name
“Castillos” so the sentence reads:
             The Castillos’ present claims against Glenair involve
      the same wage and hour claims, for the same work done,
      covering the same time period as the claims asserted in
      Gomez.

      3. On page 35, the following new subheading 7 and four
paragraphs shall be added after part 6 of the Discussion, before
the Disposition:
      7.     Petition for Rehearing
             Appellants filed a petition for rehearing, in which
      they make a number of arguments that mischaracterize our
      opinion or were never before made. We briefly address
      some here.
             First, appellants present an overbroad description
      and summary of DKN Holdings, supra, 61 Cal.4th 813. As
      discussed above, DKN Holdings does not preclude our
      conclusion here. Again, assuming Glenair and GCA are
      jointly and severally liable, we do not read DKN Holdings
      as creating an absolute bar against finding privity amongst
      parties who are also jointly and severally liable on a
      contract or as tortfeasors. Moreover, unlike DKN Holdings,
      this case does not involve a joint obligation on a contract,
      nor does it involve joint tortfeasors.




                                2
       Second, appellants make sweeping and inaccurate
statements as to the scope of our opinion. For example,
appellants mistakenly claim our opinion would bar Gomez
class members from bringing causes of action under
“entirely different wage and hour statutes not raised in the
Gomez complaint.” To the contrary, however, our opinion
states Glenair is in privity with GCA for specified purposes
only and does not purport to bar entirely new causes of
action based on violations of different wage and hour
statutes. Similarly, appellants incorrectly state our opinion
is “dangerously overbroad” because it creates privity
“whenever two or more persons engage in joint
wrongdoing.” Again, however, this greatly oversimplifies
our opinion, which requires more than “joint wrongdoing”
for a finding of privity. Appellants also incorrectly claim
our opinion would transform all service contracts into
agency relationships. Appellants overlook the requirement,
which is satisfied here, that an agent represents the
principal in dealings with third persons. (Civ. Code,
§ 2295.)
       Finally, appellants make new arguments in their
petition for rehearing. For example, appellants contend for
the first time that their claims against Glenair are not the
same as those asserted in Gomez, but instead “rest on
entirely different facts concerning independently wrongful
actions of Glenair and GCA.” Prior to their petition for
rehearing, appellants had not disputed Glenair’s repeated
assertion that the claims at issue here were the same as
the claims at issue in Gomez. Our opinion is based in part
on the claims here being the same as those released in




                          3
      Gomez. We decline to address an entirely new theory of the
      case supported by new allegations on a petition for
      rehearing. (Cornelius v. Los Angeles County etc. Authority
      (1996) 49 Cal.App.4th 1761, 1777–1778, fn. 7.) Appellants
      also make a new due process argument. Specifically,
      appellants argue the named plaintiffs in Gomez could not
      have been constitutionally adequate representatives of
      appellants’ claims against Glenair. Again, because
      appellants did not previously raise this argument, we
      decline to address it for the first time on a petition for
      rehearing. (Ibid.)



      There is no change in the judgment.

       On May 1, 2018, with newly added counsel, appellants
Andrew and David Castillo filed a petition for rehearing and a
request for judicial notice. At our request, Glenair filed an
answer to the petition for rehearing and a response to the request
for judicial notice. Subsequently, we granted appellants’ request
for leave to file a reply in support of their petition for rehearing.
The petition for rehearing and the request for judicial notice are
denied.




      LUI, P. J.            CHAVEZ, J.            HOFFSTADT, J.




                                 4
Filed 4/16/18 (unmodified version)
                  CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                   SECOND APPELLATE DISTRICT

                               DIVISION TWO


ANDREW CASTILLO et al.,                 B278239

       Plaintiffs and Appellants,       (Los Angeles County
                                        Super. Ct. No. BC505602)
       v.

GLENAIR, INC.,

       Defendant and
       Respondent.



     APPEAL from a judgment of the Superior Court of
Los Angeles County. John Shepard Wiley, Jr., Judge. Affirmed.
     Matern Law Group, Matthew J. Matern, Tagore
Subramaniam and Andrew Sokolowski, for Plaintiffs and
Appellants.
     Gibson, Dunn & Crutcher, Jesse A. Cripps, Sarah Zenewicz
and Elizabeth A. Dooley, for Defendant and Respondent.
          __________________________________________
       In a joint employer arrangement, can a class of workers
bring a lawsuit against a staffing company, settle that lawsuit,
and then bring identical claims against the company where they
had been placed to work. We answer no.
       This wage and hour putative class action involves the
relationship between a temporary staffing company (GCA
Services Group, Inc. (GCA)), its employees (appellants Andrew
and David Castillo), and its client company (respondent Glenair,
Inc.). The Castillos were employed and paid by GCA to perform
work on site at Glenair. Glenair was authorized to and did
record, review, and report the Castillos’ time records to GCA so
that the Castillos could be paid. The Castillos characterize GCA
and Glenair as joint employers. As explained below, the
undisputed facts of this case demonstrate both that Glenair and
GCA are in privity with one another for purposes of the Castillos’
wage and hour claims, and that Glenair is an agent of GCA with
respect to GCA’s payment of wages to its employees who
performed services at Glenair.
       These findings of privity and agency are significant. While
this case was pending, a separate class action brought against,
among others, GCA resulted in a final, court-approved settlement
agreement. (Gomez v. GCA Production Services, Inc. (Super. Ct.
San Bernardino County, 2014, No. CIVRS1205657 (Gomez).) The
Gomez settlement agreement contains a broad release barring
settlement class members from asserting wage and hour claims
such as those alleged here against GCA and its agents. The
Castillos are members of the Gomez settlement class and did not
opt out of that settlement.
       The Castillos present claims against Glenair involve the
same wage and hour claims, for the same work done, covering the




                                2
same time period as the claims asserted in Gomez. Thus, because
Glenair is in privity with GCA (a defendant in Gomez) and is an
agent of GCA, the Gomez settlement bars the Castillos’ claims
against Glenair as a matter of law.
      The Castillos appeal the trial court’s grant of summary
judgment. As discussed below, however, we conclude summary
judgment was proper.
       FACTUAL AND PROCEDURAL BACKGROUND
      Unless otherwise indicated, the following facts are
undisputed. Beginning on an unknown date and until sometime
in 2011, the Castillos performed work for Glenair. The Castillos
were placed at Glenair by GCA, a temporary staffing service that
supplies workers to third party companies. Although the
Castillos performed work for Glenair under Glenair’s general
oversight and direction, GCA hired, fired and paid the Castillos.
GCA made payments to the Castillos based on time records
provided by Glenair. Glenair collected and reviewed for accuracy
the Castillos’ time records for services they provided at Glenair.
When Glenair no longer needed the Castillos’ services, Glenair so
advised GCA and the Castillos stopped performing work for
Glenair.
1.    The Gomez Settled Class Action
      a.     The Complaint
      In July 2012, Judith Gomez and Ernesto Briseno filed the
Gomez action, a putative class action against GCA, GCA
Production Services, Inc., and GCA Services Group of Texas, L.P.
The Gomez complaint alleged claims for unpaid minimum wages,
unpaid overtime wages, meal and rest break violations, Labor
Code sections 203 and 226 violations, and unfair business




                                3
practices under Business and Professions Code section 17200
et seq. Glenair was not a named defendant in Gomez.
      b.     The Gomez Settlement Agreement and Release
      In May 2014, the Gomez parties settled the class action and
executed a stipulation of class action settlement (settlement
agreement). The settlement agreement defined the settlement
class as “[a]ll current and former hourly-paid, non-exempt
persons employed in California by Defendants GCA Production
Services, Inc., GCA Services Group, Inc., and GCA Services
Group of Texas, L.P., at hourly wages during the Covered
Period.” The covered period was defined as July 19, 2008
through May 5, 2014. It is undisputed the Castillos were Gomez
settlement class members and did not opt out of the settlement
agreement.
      The settlement agreement included a broad release which
provided: “in exchange for the Maximum Settlement Amount,
Plaintiffs and the Settlement Class Members release the
Released Parties from the Released Claims for the Covered
Period. With respect to the Released Claims, the Plaintiffs and
Settlement Class Members stipulate and agree that, upon the
Effective Date, the Plaintiffs and Settlement Class Members
shall be deemed to have, and by operation of the final judgment
shall have, expressly waived and relinquished, to the fullest
extent permitted by law, the provisions, rights and benefits of
Section 1542 of the California Civil Code, or any other similar
provision under federal or state law, which Section provides: [¶]
A general release does not extend to claims which the creditor
does not know or suspect to exist in his or her favor at the time of
executing the release, which if known by him or her must have
materially affected his or her settlement with the debtor. [¶]




                                 4
Plaintiffs and the Settlement Class Members may hereafter
discover facts in addition to or different from those they now
know or believe to be true with respect to the subject matter of
the Released Claims, but upon the Effective Date, shall be
deemed to have, and by operation of the final judgment shall
have, fully, finally, and forever settled and released any and all of
the Released Claims, whether known or unknown, suspected or
unsuspected, contingent or non-contingent, which now exist, or
heretofore have existed, upon any theory of law or equity now
existing or coming into existence in the future, including, but not
limited to, conduct that is negligent, intentional, with or without
malice, or a breach of any duty, law or rule, without regard to the
subsequent discovery or existence of such different or additional
facts.”
       The settlement agreement defined “Released Claims” as
“all disputes, claims, and/or causes of action pleaded in the
operative complaint for the Covered Period, namely: (a) failure to
pay minimum wages, including Living Wage and Prevailing
Wage rates; (b) failure to pay overtime wages; (c) failure to
provide meal periods; (d) failure to provide rest periods;
(e) breach of contract for failure to pay wages regarding (a) thru
(d) above; (f) failure to timely pay all wages earned each pay
period; (g) failure to timely pay final wages; (h) failure to
reimburse business expenses; (i) failure to provide accurate
itemized wage statements; and (j) all damages, penalties, interest
and other amounts recoverable under said causes of action under
California law, to the extent permissible, including but not
limited to the California Labor Code, the applicable Wage Order,
California Unfair Competition Law, and Private Attorneys
General Act of 2004. The res judicata claim preclusion effect of




                                  5
any judgment pursuant to this settlement shall be the same as
the claim preclusion effect of the above Release.”
       And the settlement agreement defined “Released Parties”
as “Defendants GCA Services Group, Inc., GCA Production
Services, Inc. and GCA Services Group of Texas, LP, together
with their parent company(ies), subsidiaries, if any, together with
their respective current and former officers, directors, agents,
attorneys, successors, and/or assigns, and Defendants’ present
and current employees who are not Class Members.”
       On December 1, 2014, the trial court in Gomez entered its
order of final approval of the class action settlement. In its order,
the court ruled “that class members who did not timely exclude
themselves from the Settlement have released their claims
against Defendant [GCA] and other released parties as set forth
in the Settlement Agreement.”
2.     The Instant Action
       a.     The Complaints
       On April 11, 2013, less than a year after the Gomez
complaint was filed and more than a year and a half before entry
of the Gomez settlement agreement, counsel for the Castillos filed
the instant putative class action against Glenair. Plaintiffs’
counsel in this action was not class counsel in Gomez. At the
time the original complaint was filed, however, the named
plaintiff was in bankruptcy proceedings and, therefore, did not
have standing to bring the lawsuit. The trial court granted leave
to amend the complaint and, on February 14, 2014, counsel filed
a first amended complaint naming Roxana Rojas as the new
plaintiff. However, the court later granted defendants’ demurrer
to the first amended complaint because Rojas lacked standing as
to all but one of the alleged causes of action (because her claims




                                 6
were time-barred). The court again granted leave to amend and,
on September 12, 2014, counsel filed a second amended complaint
adding the Castillos as plaintiffs.1 The parties then stipulated,
and the court granted leave, to allow plaintiffs’ counsel to file a
third amended complaint.
       The third amended complaint was filed on January 7, 2015
(one month after final approval of the Gomez settlement
agreement) and is the operable complaint (complaint). According
to the complaint, the plaintiffs filed the lawsuit on behalf of
themselves and all current and former non-exempt employees of
Glenair (and Doe defendants 1 through 100) from April 11, 2009
through the conclusion of the lawsuit. GCA was not named as a
defendant in the complaint.
       Paragraph nine of the complaint (paragraph nine) alleged
the defendants were the “joint employers” of the plaintiffs and
class members. Paragraph nine also alleged Glenair and the Doe
defendants “were the alter egos, divisions, affiliates, integrated
enterprises, joint employers, subsidiaries, parents, principals,
related entities, co-conspirators, authorized agents, partners,
joint venturers, and/or guarantors, actual or ostensible, of each
other.”
       The complaint alleged the following seven causes of action,
all of which were the same “Released Claims” under the Gomez
settlement agreement: (i) failure to provide required meal
periods, (ii) failure to provide required rest periods, (iii) failure to
pay overtime wages, (iv) failure to pay minimum wage, (v) failure
to pay all wages due to discharged and quitting employees,

      1 Rojas remained a named plaintiff, joining only in one
cause of action against the defendants. Rojas is not a party to
this appeal.




                                   7
(vi) failure to indemnify employees for necessary expenditures
incurred in discharge of duties, and (vii) unfair and unlawful
business practices. According to the complaint, the defendants
engaged in a “systematic course of illegal payroll practices and
policies.” Among other relief, the complaint sought statutory
penalties under Labor Code section 226 (section 226).
       b.     Glenair’s Motion for Summary Judgment
              i.    Initial Briefing
       In April 2015, Glenair moved for summary judgment or
summary adjudication. Glenair argued that, because the
Castillos had settled and released their Gomez causes of action,
res judicata barred the same causes of action asserted here.
Glenair argued the Castillos, therefore, lacked standing to bring
the class action. Glenair explained it was undisputed the claims
asserted in Gomez were the same as those asserted by the
Castillos here and the time period at issue here included that at
issue in Gomez. According to Glenair, as “members of the Gomez
class action lawsuit, which alleged the same Labor Code
violations at issue in this lawsuit, for the same work, during the
same time period, and which was fully and finally resolved” the
Castillos could not pursue the instant class action. Glenair also
argued the Castillos’ section 226 claim for penalties was barred
by the applicable statute of limitations.
       In its moving papers, Glenair did not squarely address the
issue of agency. In connection with its motion for summary
judgment, Glenair submitted supporting documents, including
the Gomez settlement agreement.
       The Castillos opposed summary judgment, arguing they
had not released their claims against Glenair. Specifically, the
Castillos argued their claims against Glenair were valid because




                                8
Glenair was not a named party in Gomez, Glenair was not listed
as a released party in the Gomez settlement agreement, and
Glenair did not contribute to the Gomez settlement. The
Castillos claimed, therefore, res judicata did not apply.
Nonetheless, the Castillos urged that, even if res judicata
applied, Glenair had failed to satisfy its burden on summary
judgment to show each element of res judicata, including that it
was either a party in Gomez or was in privity with a party in
Gomez, or that the claims in each action were the same. The
Castillos also asserted policy considerations weighed against
application of res judicata. Finally, the Castillos argued they
could amend, and should be granted leave to amend the
complaint to add a valid cause of action for damages (as opposed
to penalties) for violations of section 226. They stated a cause of
action for actual damages under that section had a longer statute
of limitations than their penalty claim and, therefore, would not
be barred.
       In opposing summary judgment, the Castillos did not
dispute any of the material facts Glenair included in its separate
statement of undisputed material facts. However, the Castillos
recited additional facts, including some related to the
relationship between Glenair and GCA and between Glenair and
the Castillos. For example, the Castillos stated Glenair
employees directed the services the Castillos performed for
Glenair; Glenair collected the time of workers “placed by GCA at
Glenair’s facility;” “[a] lead employed by Glenair would review
the time records of workers placed by GCA at Glenair’s facility to
ensure accuracy;” “leads employed by Glenair” oversaw and
generally directed the tasks to be accomplished; GCA did not
have a supervisor at the Glenair site; when Glenair no longer




                                 9
needed or wanted the services of the Castillos, a Glenair “lead”
advised GCA; and “[t]here is no shared ownership between GCA
and Glenair.” Glenair did not dispute those facts.
      The Castillos also asserted the following facts in opposition
to summary judgment, which Glenair disputed: David Castillo’s
Glenair supervisor did not accurately record David’s actual work
times, but instead recorded his scheduled work times; David
Castillo’s Glenair supervisor did not allow David to take his full
required rest or meal breaks; David Castillo’s Glenair supervisors
manipulated his timesheets to show meal breaks he did not
actually receive; and in order to take time off or to request
overtime, David Castillo was required to seek permission from
Glenair supervisors and not from anyone at GCA.
      In response to the Castillos’ arguments, Glenair claimed
the Castillos had admitted Glenair was an agent of GCA and,
therefore, a released party under the Gomez settlement
agreement. Glenair pointed to evidence the Castillos submitted
with their opposition to summary judgment indicating Glenair
performed tasks on behalf of GCA. And, in contrast to the
Castillos, Glenair argued policy considerations weighed in favor
of applying res judicata here. Finally, Glenair urged it would be
improper to allow the Castillos leave to amend to allege a new
cause of action for damages under section 226.
             ii.   First Hearing
      Prior to the hearing on Glenair’s motion for summary
judgment, the trial court issued a tentative ruling granting
summary judgment against the Castillos. In its tentative ruling,
the court stated: “Glenair performed tasks on behalf of GCA,
including collecting and reviewing employees’ time records and
transmitting the records to GCA for payment. . . . Glenair thus




                                10
acted as GCA’s agent for the Castillos’ employment. (Civ. Code
§ 2295 (‘ “Agent” defined. An agent is one who represents
another, called the principal, in dealings with third persons.’).)”
       At the hearing, counsel for the Castillos argued Glenair
was not an agent of GCA and disputed Glenair’s claim that they
had admitted an agency relationship. Instead, the Castillos
claimed the two companies were joint employers: “we presented
evidence showing that they . . . were joint employers or that even
though the staffing agency [GCA] hired and fired and paid the
workers that they placed workers at Glenair, Glenair controlled
working conditions, set schedules and everything like that.”
Counsel argued “joint employment is not the same as agency.”
The trial court understood the Castillos’ theory of the case was
that Glenair and GCA were joint employers, and stated “[t]hey
can’t change their position on that.”
       In summarizing the Castillos’ claims against Glenair,
counsel stated: “These employees didn’t get their meal periods.
They didn’t get their rest periods in accord with California law.
They didn’t get their final paycheck because their meal and their
rest period premiums weren’t paid. Their paychecks were not
properly in accord with California law, because they didn’t have
the meal period premiums on them and so on and so forth. [¶]
These are our claims. They’re very simple claims.”
       Counsel for the Castillos also argued at the hearing that
Glenair’s motion for summary judgment was procedurally
improper. Counsel claimed that, because Glenair not only failed
to address the agency issue until its reply brief, but also in doing
so relied on evidence the Castillos submitted in opposition to the
motion, Glenair had failed to carry its burden on summary
judgment.




                                 11
       Based on the Castillos’ position that Glenair and GCA were
joint employers, counsel for Glenair asserted for the first time at
the hearing that paragraph nine doomed the Castillos’ case.
Specifically, Glenair argued that, through paragraph nine, the
Castillos necessarily had admitted Glenair and GCA were agents
of one another. Counsel explained paragraph nine alleged “that
in connection with that joint employment relationship, . . . those
joint employers are, quote, authorized agents of each other.”
Counsel for Glenair reasoned, therefore, that the “pleadings
define Glenair as an authorized agent of the other joint
employers. They’ve conceded that the only way Glenair is a
proper defendant in this action is as a joint employer and,
therefore, it must be an authorized agent by virtue of their
pleadings for . . . in the context of defining who’s an agent and
whether or not that agency [was] to be specifically defined.” The
trial court noted Glenair’s paragraph nine argument was “clever.”
       After hearing argument, the trial court ordered further
briefing on the issue of agency. The trial court agreed that the
Castillos (as opposed to Glenair) presented the evidence related
to agency in their opposition papers. The court stated, “It is true
that the material on agency came in in the opposition instead of
in the moving papers. . . . And you’re right; that is the burden of
the moving party asking for summary judgment to have a
complete package at the motion -- the moving paper stage.” The
court also noted the agency argument “was not debated in the
briefs. In other words, [counsel for the Castillos] never weighed
in on what is and what is not an agent because it came up in the
reply. [¶] As I say, that could make me think that further
briefing on this point is important because you have not had a
written chance to advance case authority or legal logic to dispute




                                12
the agency argument.” The court determined “there needs to be
some further briefing where the plaintiffs have a chance to say,
this agency argument is completely wrong and should not be
accepted.” Thus, the trial court ordered supplemental briefing on
the issue of agency and set the matter for further hearing.
              iii. Supplemental Briefing on Issue of Agency
       A few months later, the parties submitted supplemental
briefs on the issue of agency. The Castillos filed their brief first
and argued Glenair was not an agent of GCA because GCA did
not exercise the requisite control over either Glenair or the
workers GCA placed at Glenair. The Castillos also argued there
was no evidence GCA authorized Glenair to represent GCA in
dealings with third persons. In addition, the Castillos claimed
none of the other elements of agency (such as intent) was present
in the relationship between Glenair and GCA. To support their
position, the Castillos relied in part on an unreported California
case and a case from a federal district court in South Carolina.
Finally, in a footnote, the Castillos dismissed Glenair’s argument
made at the first hearing that paragraph nine constituted an
admission that Glenair and GCA were agents of one another.
The Castillos claimed the language of paragraph nine was merely
boilerplate language that could not be relied upon for such an
admission.
       In its supplemental brief, filed after the Castillos filed their
brief, Glenair reiterated its argument that, in paragraph nine,
the Castillos admitted Glenair was an agent of GCA. Beyond the
pleadings, Glenair also argued the undisputed facts
demonstrated it was the agent of GCA. Glenair claimed it was
undisputed that, by collecting and transmitting time records of
GCA employees and dictating when they could take rest and




                                  13
meal breaks, work overtime, and take time off, Glenair
represented GCA in the specific area of wage and hour matters.
Glenair also asserted policy considerations favored a finding that
the Gomez release applied here.
              iv.   Second Hearing and Order Granting
                    Summary Judgment
       The continued hearing on Glenair’s motion for summary
judgment was held September 21, 2016. Prior to the hearing, the
trial court issued a new tentative ruling. The court again
indicated it was granting summary judgment against the
Castillos, stating it “stands by its analysis” in its first tentative
ruling. In addition, the court addressed Glenair’s paragraph nine
argument, stating “Glenair noted the concession of agency in
paragraph nine of the Third Amended Complaint. The court
praised this argument . . . and called for further briefing. In this
further briefing the plaintiffs answered this point only in a
footnote, on logic this court rejects.”
       At the continued hearing, counsel for the Castillos
reiterated their position that Glenair’s motion for summary
judgment was procedurally defective. Counsel argued the trial
court should deny the motion because Glenair failed to include
the issue of agency in either its notice of motion, motion, or
separate statement of undisputed facts. Counsel also pointed out
the court-ordered supplemental briefing did not help because
Glenair filed the last brief (in which it claimed for the first time it
was a limited or special agent of GCA) to which the Castillos
could not respond. As a result, the Castillos asserted their due
process rights were violated. The Castillos also claimed a factual
dispute existed with respect to the alleged agency relationship
between Glenair and GCA. The Castillos pointed out the record




                                  14
did not include an agreement between Glenair and GCA, and
further claimed Glenair collected time records of the GCA
employees in order to protect itself against false claims by those
employees. (The record does not indicate counsel for Glenair
presented any argument on the issue of agency at the continued
hearing.)
       At the conclusion of the hearing, the trial court stated it
was “going to stand by my tentative ruling.”
       c.     Appeal
       On October 12, 2016, before judgment was entered, the
Castillos filed a notice of appeal from the trial court’s September
21, 2016 order granting summary judgment.
       d.     Judgment
       On April 12, 2017, the trial court entered judgment in favor
of Glenair and against the Castillos on their complaint. Notice of
entry of judgment was filed April 18, 2017.
                            DISCUSSION
1.     Status of Appeal
       Because the Castillos filed their notice of appeal before the
trial court entered judgment on its order granting summary
judgment, the notice of appeal was premature. Nonetheless, we
have jurisdiction to consider the appeal because the trial court
later filed a final judgment as to the Castillos. “The reviewing
court may treat a notice of appeal filed after the superior court
has announced its intended ruling, but before it has rendered
judgment, as filed immediately after entry of judgment.”
(Cal. Rules of Court, rule 8.104(d)(2).)




                                15
2.      Relevant Law and Standard of Review
        a.    Summary Judgment and Standard of Review
        “ ‘The purpose of the law of summary judgment is to
provide courts with a mechanism to cut through the parties’
pleadings in order to determine whether, despite their
allegations, trial is in fact necessary to resolve their dispute.’ ”
(Borders Online v. State Bd. of Equalization (2005) 129
Cal.App.4th 1179, 1187 (Borders Online).) Summary judgment is
appropriate “if all the papers submitted show that there is no
triable issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” (Code Civ. Proc.,
§ 437c, subd. (c) (section 437c).)
        “There is a triable issue of material fact only if ‘the
evidence would allow a reasonable trier of fact to find the
underlying fact in favor of the party opposing the motion in
accordance with the applicable standard of proof.’ [Citation.].
The party moving for summary judgment generally ‘bears an
initial burden of production to make a prima facie showing of the
nonexistence of any triable issue of material fact; if he carries his
burden of production, he causes a shift, and the opposing party is
then subjected to a burden of production of his own to make a
prima facie showing of the existence of a triable issue of material
fact.’ ” (Borders Online, supra, 129 Cal.App.4th at pp. 1187-
1188.) “ ‘ “ ‘A defendant seeking summary judgment has met the
burden of showing that a cause of action has no merit if that
party has shown that one or more elements of the cause of action
cannot be established [or that there is a complete defense to that
cause of action]. . . . Once the defendant’s burden is met, the
burden shifts to the plaintiff to show that a triable issue of fact




                                 16
exists as to that cause of action.’ ” ’ ” (Villacres v. ABM
Industries, Inc. (2010) 189 Cal.App.4th 562, 575 (Villacres).)
       “[W]e review the trial court’s grant of summary judgment
de novo, applying the same standards that governed the trial
court. [Citation.] We consider all of the evidence the parties
offered in connection with the motion, except that which the court
properly excluded, and the uncontradicted inferences the
evidence reasonably supports.” (Borders Online, supra,
129 Cal.App.4th at p. 1188.) “ ‘ “ ‘We must determine whether
the facts as shown by the parties give rise to a triable issue of
material fact. . . . In making this determination, the moving
party’s affidavits are strictly construed while those of the
opposing party are liberally construed.’ . . . We accept as
undisputed facts only those portions of the moving party’s
evidence that are not contradicted by the opposing party’s
evidence. . . . In other words, the facts alleged in the evidence of
the party opposing summary judgment and the reasonable
inferences therefrom must be accepted as true.” ’ ” (Villacres,
supra, 189 Cal.App.4th at p. 575.)
       b.     Res Judicata
       The doctrine of res judicata is applicable “ ‘if (1) the
decision in the prior proceeding is final and on the merits; (2) the
present proceeding is on the same cause of action as the prior
proceeding; and (3) the parties in the present proceeding or
parties in privity with them were parties to the prior
proceeding.’ ” (Villacres, supra, 189 Cal.App.4th at p. 577.) “A
court-approved settlement in a prior suit precludes subsequent
litigation on the same cause of action. Res judicata bars not only
issues that were raised in the prior suit but related issues that
could have been raised.” (Id. at p. 569.) “ ‘[R]es judicata will not




                                17
be applied “if injustice would result or if the public interest
requires that relitigation not be foreclosed.” ’ ” (Id. at p. 577.)
       For purposes of both res judicata (claim preclusion) and
collateral estoppel (issue preclusion), the concept of “privity” has
expanded with time. More than 75 years ago, our Supreme Court
described the principle of privity: “Under the requirement of
privity, only parties to the former judgment or their privies may
take advantage of or be bound by it. . . . A privy is one who, after
rendition of the judgment, has acquired an interest in the subject
matter affected by the judgment through or under one of the
parties, as by inheritance, succession, or purchase.” (Bernhard v.
Bank of America (1942) 19 Cal.2d 807, 811.) Over time, courts
have embraced a somewhat broader, more practical concept of
privity. “ ‘[T]o maintain the stability of judgments, insure
expeditious trials,’ prevent vexatious litigation, and ‘to serve the
ends of justice,’ courts are expanding the concept of privity
beyond the classical definition to relationships ‘ “sufficiently close
to afford application of the principle of preclusion.” ’ ” (Cal Sierra
Development, Inc. v. George Reed, Inc. (2017) 14 Cal.App.5th 663,
672 (Cal Sierra).) For example, more recently our Supreme Court
explained the basic tenents of privity in broader terms: “As
applied to questions of preclusion, privity requires the sharing of
‘an identity or community of interest,’ with ‘adequate
representation’ of that interest in the first suit, and
circumstances such that the nonparty ‘should reasonably have
expected to be bound’ by the first suit. [Citation.] A nonparty
alleged to be in privity must have an interest so similar to the
party’s interest that the party acted as the nonparty’s ‘ “ ‘virtual
representative’ ” ’ in the first action.” (DKN Holdings LLC v.
Faerber (2015) 61 Cal.4th 813, 826 (DKN Holdings).)




                                 18
       Thus, for purposes of privity, “ ‘[t]he emphasis is not on a
concept of identity of parties, but on the practical situation. The
question is whether the non-party is sufficiently close to the
original case to afford application of the principle of preclusion.’ ”
(Alvarez v. May Dept. Stores Co. (2006) 143 Cal.App.4th 1223,
1236-1237 (Alvarez).) Put another way, privity, “ ‘as used in the
context of res judicata or collateral estoppel, does not embrace
relationships between persons or entities, but rather it deals with
a person’s relationship to the subject matter of the litigation.’ ”
(Cal Sierra, supra, 14 Cal.App.5th at p. 674.)
       c.    Agency
       “An agent is one who represents another, called the
principal, in dealings with third persons.” (Civ. Code, § 2295.) “A
representative is ‘[o]ne who stands for or acts on behalf of
another.’ (Black’s Law Dict. (7th ed.1999) p. 1304, col. 2.)”
(Borders Online, supra, 129 Cal.App.4th at p. 1189.) “An agency
relationship ‘may be implied based on conduct and
circumstances.’ ” (Ibid.) An agent may be a general agent or a
special agent. A special agent is “[a]n agent for a particular act
or transaction . . . . All others are general agents.” (Civ. Code,
§ 2297.)
       “An agent . . . is anyone who undertakes to transact some
business, or manage some affair, for another, by authority of and
on account of the latter, and to render an account of those
transactions.” (2B Cal.Jur.3d (2015) Agency, § 1, p. 149.) “ ‘ “The
chief characteristic of the agency is that of representation, the
authority to act for and in the place of the principal for the
purpose of bringing him or her into legal relations with third
parties. [Citations.]” [Citation.] “The significant test of an
agency relationship is the principal’s right to control the




                                 19
activities of the agent. [Citations.] It is not essential that the
right of control be exercised or that there be actual supervision of
the work of the agent; the existence of the right establishes the
relationship.” ’ ” (Violette v. Shoup (1993) 16 Cal.App.4th 611,
620.)
3.     Glenair is entitled to judgment as a matter of law
       because res judicata applies and bars the Castillos’
       claims against Glenair.
       We begin with the undisputed material facts. The parties
do not dispute the following: (i) GCA is a staffing company that
supplies employees, such as the Castillos, to the operations of
third party companies, such as Glenair, (ii) the work the Castillos
performed for Glenair was performed through GCA, (iii) Glenair
employees generally directed and oversaw the services the
Castillos performed for Glenair, (iv) there was no GCA supervisor
on site at the Glenair facility during the relevant time,
(v) Glenair collected the time for workers GCA placed at Glenair,
(vi) to ensure accuracy, a Glenair employee reviewed the time
records of workers GCA placed at Glenair, (vii) there is no shared
ownership between Glenair and GCA, (viii) the Castillos were
class members in Gomez, (ix) the Castillos did not opt out of the
Gomez class settlement, (x) the Castillos’ complaint here asserts
the same causes of action as those asserted in Gomez, (xi) the
court in Gomez granted final approval of the settlement in that
case, and (xii) the Gomez settlement included a broad release
that released GCA and its agents from the same wage and hour
claims at issue here.
       In addition to the above undisputed facts, the parties also
agree the Gomez settlement acts as a final judgment on the




                                20
merits for purposes of res judicata.2 (Villacres, supra,
189 Cal.App.4th at p. 569.) And it cannot be disputed that the
Castillos’ claims here relate to the work they performed at
Glenair during the same time period at issue in Gomez.
       Thus, two of the three elements of res judicata are met.
The Gomez settlement was final and on the merits. And the
causes of action here are the same as those at issue in Gomez.
       The dispute then centers on the third and final element of
res judicata, namely whether the undisputed material facts
demonstrate Glenair was either a party or in privity with a party
in Gomez. As discussed below, we conclude based on the
undisputed facts that Glenair was both in privity with GCA (a
party in Gomez) with respect to the subject matter of this
litigation, as well as itself a released party in Gomez.
       a.    Glenair is in privity with GCA with respect to
             the subject matter of the litigation.
       Although the parties touched on the issue of privity in their
briefs on appeal, we requested supplemental briefing to address
the question whether Glenair and GCA were in privity with one
another. (Gov. Code, § 68081.) While the Castillos argued no
privity exists between the parties, Glenair argued the opposite.
We agree with Glenair.



      2 On appeal, the Castillos discuss the doctrine of issue
preclusion and argue the court in Gomez did not decide the
identical issues raised here. Issue preclusion is not relevant,
however, because we are concerned with res judicata, or claim
preclusion. “It is important to distinguish these two types of
preclusion because they have different requirements.” (DKN
Holdings, supra, 61 Cal.4th at p. 824.)




                                21
       As noted above, the concept of privity has expanded over
the years and today involves a practical analysis. (Alvarez,
supra, 143 Cal.App.4th at p. 1236; Cal Sierra, supra, 14
Cal.App.5th at p. 672.) In the recent Cal Sierra decision, the
court relied on the principle that, rather than focusing on the
relationship between the parties, privity “ ‘deals with a person’s
relationship to the subject matter of the litigation.’ ” (Cal Sierra,
at p. 674.) In Cal Sierra, the plaintiff mining company (Cal
Sierra) had previously received an arbitration decision partly in
its favor and against another mining company (Western
Aggregates) whose licensee had erected an asphalt plant in a
problematic location on the land Cal Sierra and Western
Aggregates shared. (Id. at p. 668.) After its partially successful
arbitration against Western Aggregates, Cal Sierra filed a
lawsuit against the licensee and its parent company based on the
same facts and raising the same or similar causes of action as
those raised in the arbitration. (Ibid.) The trial court held res
judicata applied and entered judgment in favor of the licensee.
(Ibid.)
       The court of appeal affirmed. (Cal Sierra, supra,
14 Cal.App.5th at p. 667.) The court explained that, although
Western Aggregates and its licensee were separate companies
with a licensor-licensee relationship, that did not preclude a
finding of privity for purposes of claim preclusion. (Id. at p. 673.)
Rather, because the “subject matter of the litigation . . . was the
same as that at the center of the arbitration dispute: the
placement of the asphalt plant and whether it infringed on
Cal Sierra’s mining rights,” Western Aggregates and its licensee
“had an identical interest” as to that issue and were “adversely
and similarly impacted by the propriety (or impropriety) of the




                                 22
plant’s location.” (Id. at p. 674.) Thus, because Western
Aggregates and its licensee shared the same relationship to the
subject matter of the arbitration and litigation, privity existed
and res judicata applied. (Ibid.)
       With this in mind, it is clear Glenair and GCA are in
privity for present purposes. The subject matter of this litigation
is the same as the subject matter of the Gomez litigation—
namely, both cases involve the same wage and hour causes of
action arising from the same work performed by the same GCA
employees (the Castillos) at GCA’s client company Glenair.
Based on the undisputed facts, it is apparent Glenair and GCA
share the same relationship to the Castillos’ claims here. Both
Glenair and GCA were involved in and responsible for payment of
the Castillos’ wages. Glenair was authorized by GCA and
responsible for recording, reviewing and transmitting the
Castillos’ time records to GCA. GCA paid the Castillos based on
those time records. And, by virtue of the Gomez settlement, the
Castillos were compensated for any errors made in the payment
of their wages. Thus, with respect to the Castillos’ wage and
hour causes of action, the interests of Glenair and GCA are so
intertwined as to put Glenair and GCA in the same relationship
to the litigation here. Accordingly, we conclude they are in
privity for purposes of the instant litigation.
       To be clear, however, our conclusion does not necessarily
place Glenair and GCA in privity for all purposes. By way of
example only, if the Castillos were to allege claims against
Glenair based on injuries they sustained or discrimination they
experienced while working at Glenair, it is by no means a
foregone conclusion that GCA would be in privity with Glenair in
that case. In such a case, it is not clear that Glenair and GCA




                                23
would share the same relationship to the subject matter of the
litigation. In contrast here, because the subject matter of the
litigation directly implicates the interdependent and close
relationship of Glenair and GCA with respect to payment of
wages, they are in privity for present purposes.
       Relying on DKN Holdings, supra, 61 Cal.4th 813, the
Castillos contend that, “where parties were jointly and severally
liable on an obligation, a judgment against one of such parties
will not act as res judicata as to claims against the other party.”
The Castillos overstate the reasoning in DKN Holdings. In DKN
Holdings, our Supreme Court explained that “[j]oint and several
liability alone does not create such a closely aligned interest
between co-obligors.” (Id. at p. 826, italics added.) This case is
distinguishable because, assuming Glenair and GCA are jointly
and severally liable, our finding of privity does not rely on any
such relationship. Rather, as explained above, Glenair and GCA
are in privity for present purposes based both on their
interdependent relationship with respect to payment of the
Castillos’ wages as well as on the fact that this litigation revolves
around alleged errors in the payment of the Castillos’ wages.
DKN Holdings does not preclude our conclusion here.
       Similarly, McCray-Key v. Sutter Health Sacramento Sierra
Region (E.D.Cal. 2015) 2015 WL 6703585, on which the Castillos
rely, does not change our conclusion. First, we are not bound by
an unpublished district court order. Second, although
superficially similar, the facts of that case are distinguishable
from those presented here. For example, in McCray-Key, the first
action was brought against a staffing company as a putative class
action. As part of the plaintiff’s settlement of that first action,
however, the class claims were dismissed and plaintiff’s




                                 24
individual claims were remanded to superior court. (Id. at p. *1.)
There is no indication there was a final, court-approved class
action settlement defining a settlement class in McCray-Key.
And, in McCray-Key, although the settlement in the first case
included a restriction on future claims brought by the plaintiff,
that restriction was applicable only to the staffing company and
not, for example, to its agents. (Id. at p. *4.) Thus, unlike here,
there was no broad release of claims in McCray-Key.
       Because Glenair and GCA are in privity for purposes of the
Castillos’ claims here, the third and final element of res judicata
is satisfied. Accordingly, the Castillos’ claims against Glenair are
barred and summary judgment was proper.3
       b.     Glenair was an agent of GCA and, therefore, a
              released party.
       In addition, we conclude the undisputed facts demonstrate
Glenair was an agent for GCA with respect to GCA’s payment of
its employees, such as the Castillos. We conclude a reasonable
trier of fact could not find otherwise. Accordingly, Glenair was a
released party under the Gomez settlement agreement. Thus, on
this ground as well, the third and final element of res judicata is
satisfied and summary judgment was proper.
       Although the issue of agency is typically a question of fact,
when “ ‘the evidence is susceptible of but a single inference,’ ”
summary judgment is not precluded. (Borders Online, supra,
129 Cal.App.4th at p. 1189, italics omitted.) Here, the
undisputed evidence is susceptible of only one conclusion, namely

      3  Although the trial court did not directly address the issue
of privity, we may affirm its judgment if correct on any applicable
legal theory. (Le Bourgeois v. Fireplace Manufacturers, Inc.
(1998) 68 Cal.App.4th 1049, 1057, fn. 10.)




                                25
that Glenair was an agent of GCA for the purpose of collecting,
reviewing, and providing GCA’s employee time records to GCA so
that GCA could properly pay its employees. The evidence is
undisputed that GCA authorized Glenair to collect, review, and
transmit GCA employee time records to GCA. Thus, Glenair was
authorized to represent, and did represent, GCA in its dealings
with third parties, specifically GCA’s payment of wages to its
employees placed at Glenair. (Civ. Code, § 2295; Borders Online,
supra, at p. 1189; see also Garcia v. Pexco, LLC (2017)
11 Cal.App.5th 782, 788 [in concluding the plaintiff employee’s
claims must be arbitrated, court considered “alleged joint
employers” staffing company and its client company “agents of
each other in their dealings with” the plaintiff].)
      The Castillos argue there can be no finding of agency
because there is no evidence that GCA possessed the requisite
control over Glenair. We disagree. The undisputed evidence
demonstrates GCA had the requisite control over Glenair. It
need not be shown that GCA generally controlled Glenair.
Rather, it must be shown that GCA had the right to control
Glenair with respect to the specific agency at issue, namely
Glenair’s role in collecting, reviewing, and providing time records
to GCA. Indeed, “ ‘ “[i]t is not essential that the right of control
be exercised or that there be actual supervision of the work of the
agent; the existence of the right establishes the relationship.” ’ ”
(Violette v. Shoup, supra, 16 Cal.App.4th at p. 620.)
      Here, GCA authorized Glenair to perform certain
timekeeping-related tasks on behalf of GCA and the only
reasonable inference is that GCA required Glenair to perform
those tasks. Had Glenair failed to perform those timekeeping
tasks, GCA would not have been able to pay its employees.




                                 26
       Thus, because the undisputed facts demonstrate Glenair
was an agent of GCA—specifically an agent with respect to GCA’s
payment of wages to its employees—Glenair was a released party
under the Gomez settlement agreement. Accordingly, the
Castillos’ complaint against Glenair is barred and summary
judgment was proper.
4.     Remaining Issues Related to the Finding of Agency
       a.      The “Golden Rule” of summary judgment did
               not preclude the trial court from considering
               the Castillos’ evidence presented in opposition
               to Glenair’s motion.
       The Castillos assert the trial court erred in considering any
evidence, disputed or undisputed, that was not included in
Glenair’s separate statement of undisputed material facts. As
support for their position, the Castillos rely in large part on this
district’s decision in United Community Church v. Garcin (1991)
231 Cal.App.3d 327. There, the court cited the so-called “Golden
Rule” of summary adjudication and summary judgment, which
states “if it is not set forth in the separate statement, it does not
exists.” (Id. at p. 337.)
       However, as other courts have held and Glenair correctly
points out, the trial court is not absolutely prohibited from
considering evidence that was not included in the moving party’s
separate statement, but was otherwise submitted with the
parties’ papers on summary judgment. In San Diego Watercrafts,
Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 315–316
(San Diego Watercrafts, Inc.), the court held the trial court has
discretion to consider evidence not included in the moving party’s
separate statement and to grant summary judgment despite an
inadequate separate statement. (Id. at p. 315.) This




                                 27
understanding comports with section 437c, the governing statute,
which states that the failure of the moving party to comply with
the separate statement requirement “may in the court’s
discretion constitute a sufficient ground for denying the motion.”
(§ 437c, subd. (b)(1); San Diego Watercrafts, Inc., supra, at
pp. 315–316.) Moreover, section 437c also provides summary
judgment “shall be granted if all the papers submitted show that
there is no triable issue,” and the court “shall consider all of the
evidence set forth in the papers” except that to which objections
have been sustained. (§ 437c, subd. (c).) This unqualified
reference to “all the papers” before the court, without limitation
to documents submitted with the original motion, supports the
conclusion that the trial court should consider all admissible
evidence of which the opposing party has had notice and the
opportunity to respond. (Weiss v. Chevron, U.S.A., Inc. (1988)
204 Cal.App.3d 1094, 1098.)
       We agree with San Diego Watercrafts, Inc. and its progeny,
including from this district, that “we may not mechanically
conclude, as the ‘Golden Rule’ would have us do, that the court
should never consider evidence not referenced in the separate
statement. The statute is permissive, not mandatory . . . .
Whether to consider evidence not referenced in the moving
party’s separate statement rests with the sound discretion of the
trial court, and we review the decision to consider or not consider
this evidence for an abuse of that discretion.” (San Diego
Watercrafts, Inc., supra, 102 Cal.App.4th at pp. 315–316;
Zimmerman, Rosenfeld, Gersh & Leeds LLP v. Larson (2005)
131 Cal.App.4th 1466, 1478 (Zimmerman).) This is not a case
where the party opposing summary judgment was blindsided by
evidence not referenced in the moving party’s separate




                                28
statement. Indeed, it was the Castillos who referenced and
included the facts they now argue the trial court should not have
considered in granting summary judgment. Presumably, the
Castillos referenced those facts in an effort to demonstrate a
disputed issue of material fact such that summary judgment was
not proper. However, as it turned out, those facts either were not
material or did not demonstrate a dispute but rather supported
the finding of agency and, therefore, summary judgment. We
conclude the trial court did not abuse its discretion in considering
all the evidence the parties submitted in connection with their
summary judgment papers.
       Similarly, and despite the Castillos’ claims to the contrary,
the trial court properly considered all the evidence submitted by
the parties in determining whether Glenair had met its initial
burden of proof on its motion for summary judgment. (Villa v.
McFerren (1995) 35 Cal.App.4th 733, 750-751.)
       b.     The trial court afforded the Castillos ample
              opportunity to brief and address the issue of
              agency.
       The Castillos also argue summary judgment must be
reversed because the trial court did not give them a sufficient
opportunity to address the issue of agency and, therefore, their
due process rights were violated. We disagree.
       As the Castillos explain, the issue of agency did not come
into focus until after they filed their opposition to Glenair’s
motion for summary judgment. Glenair first addressed the issue
of agency in its reply brief. At the first hearing on Glenair’s
motion for summary judgment, however, the trial court
recognized the Castillos had not had a sufficient opportunity to
address the agency issue. The court acknowledged the agency




                                29
argument “was not debated in the briefs. In other words,
[counsel for the Castillos] never weighed in on what is and what
is not an agent because it came up in the reply. [¶] As I say, that
could make me think that further briefing on this point is
important because you have not had a written chance to advance
case authority or legal logic to dispute the agency argument.”
Thus, the trial court ordered further briefing specifically on the
issue of agency and set the matter for a second hearing. Other
than limiting the supplemental briefing to the issue of agency,
the court did not limit the scope of the parties’ briefing on agency.
       The Castillos now take issue with the fact that Glenair
argued in its court-ordered supplemental brief that it was a
“special agent” of GCA. Although Glenair did not use the term
“special agent” when it first addressed the issue of agency in its
reply brief on summary judgment, but only later used that term
in its supplemental brief, we conclude this is a distinction
without a difference. The trial court requested that the parties
brief the issue of agency. The court did not limit the parties to
addressing “general agency” only. In addition, the core elements
of a special agency are the same as those for a general agency,
namely the agent, whether special or general, represents the
principal in dealings with third parties and the principal
exercises control over the agent. We conclude the trial court’s
directive to file further briefs on the issue of “agency” allowed the
parties to address either or both general and special agency and
the Castillos’ due process rights were not violated.
       c.    Glenair’s argument based on paragraph nine of
             the complaint is not persuasive.
       As noted above, we review the trial court’s decision to grant
summary judgment de novo. “This means ‘ “we are not bound by




                                 30
the trial court’s stated reasons or rationales.” ’ [Citation.] In
other words, ‘[t]he trial court’s stated reasons for granting
summary judgment are not binding on us because we review its
ruling, not its rationale.’ [Citation.] Indeed, in our review, ‘we
are not concerned with the findings actually made by the trial
court in support of its ruling.’ ” (Zimmerman, supra, 131
Cal.App.4th at p. 1485.) Below Glenair argued, and the trial
court seemed to agree, that paragraph nine constituted a judicial
admission that Glenair was an agent of GCA. Although Glenair
presses this same argument on appeal, we are not persuaded.
       As noted above, paragraph nine included boilerplate
language citing a laundry list of legal relationships, some or all of
which are alleged to exist between Glenair and the Doe
defendants. In order to make its argument work, Glenair must
convince us of two leaps of faith. First, we must agree GCA—
which is not a named defendant—is a Doe defendant in this case.
Second, we must agree paragraph nine necessarily admits
Glenair is an agent of GCA. Assuming we make the first leap of
faith and agree GCA is a defendant, we cannot make the second
leap. Paragraph nine states all the defendants were, among
other things, “the alter egos, . . . joint employers, . . . authorized
agents, . . . and/or guarantors, actual or ostensible, of each other.”
Glenair overlooks a crucial component of paragraph nine, namely
the words “and/or.” Because of those two words, and assuming
boilerplate language in a complaint is meaningful (a position on
which the parties disagree), paragraph nine cannot be read to
admit Glenair is necessarily an agent of any other defendant. At
most, paragraph nine can be read to admit Glenair shares any
one of the many listed legal relationships with the other




                                 31
defendants. Accordingly, summary judgment is not proper on the
basis of Glenair’s paragraph nine argument.
       d.    Serrano v. Aerotek, Inc.
       Following oral argument, counsel for the Castillos filed a
notice of new authority advising the court that the First District
recently ordered published its opinion in Serrano v. Aerotek, Inc.
(Mar. 9, 2018, No. A149187) __ Cal.App.5th __ [2018 WL
1452237] (Serrano). Although the Castillos assert Serrano bears
on the issues of both agency and privity, Serrano addresses
agency only.
       The plaintiff in Serrano brought a putative class action
against both a temporary staffing company (Aerotek, Inc.) and its
client Bay Bread. (Serrano, 2018 WL 1452237, at p. *3.) Aerotek
had placed the plaintiff at Bay Bread to perform services there.
(Ibid.) The plaintiff alleged Aerotek and Bay Bread failed to
provide required meal breaks. (Ibid.) The facts demonstrated
that Aerotek trained the employees it placed at Bay Bread, like
the plaintiff, on Aerotek’s employment policies, including its meal
break policies. (Id. at p. *1.) Aerotek also employed an on-site
manager at Bay Bread who reviewed time records of the
temporary employees placed there and sent those records to
Aerotek for payroll processing. (Id. at p. *2.) The on-site
manager was not responsible, however, for reviewing temporary
employee meal breaks. (Ibid.) The facts also revealed the
plaintiff did not believe Aerotek affirmatively prevented her from
taking proper meal breaks, but she believed Aerotek may have
failed to ensure Bay Bread implemented appropriate meal break
policies. (Id. at p. *3.)
       The Court of Appeal affirmed summary judgment in
Aerotek’s favor. (Serrano, 2018 WL 1452237, at p. *1.) First, the




                                32
court held Aerotek satisfied its own obligation to provide meal
breaks. (Id. at pp. *4–*5.) Next, the court rejected the argument
that, as a joint employer with Bay Bread, Aerotek was vicariously
liable for Bay Bread’s alleged meal break violations. (Id. at
pp. *5–*6.) Relying on this district’s decision in Noe v. Superior
Court (2015) 237 Cal.App.4th 316,4 the Serrano court stated,
“whether an employer is liable for a co-employer’s violations
depends on the scope of the employer’s own duty under the
relevant statutes, not ‘principles of agency or joint and several
liability.’ ” (Serrano, at p. *6.)
       Although similar in some respects, we conclude Serrano is
procedurally, factually and legally distinct from the instant case.
Unlike here, the plaintiff in Serrano sued both the staffing
company and client company together in the same lawsuit. And
again in contrast to the instant case, Serrano did not involve a
pre-existing final judgment releasing the same claims alleged in
the Serrano complaint. In addition, unlike GCA here, Aerotek
did not authorize its client company to represent Aerotek with
respect to its employment policies. Rather Aerotek not only
provided training on its employment policies but also employed
an on-site manager who was responsible for time records.
Moreover, it does not appear that the parties in Serrano raised
the same arguments at issue here; and likewise the parties here
did not raise many of the arguments made in Serrano. Thus,
Serrano does not affect our decision here.




      4 Noe v. Superior Court addressed Labor Code section
226.8, which is not at issue in this appeal.




                                33
5.     Public policy favors the application of res judicata
       here.
       Policy considerations are relevant to the res judicata
analysis. “Even if [the] threshold requirements are established,
res judicata will not be applied ‘if injustice would result or if the
public interest requires that relitigation not be foreclosed.’ ”
(Citizens for Open Access etc. Tide, Inc. v. Seadrift Assn. (1998)
60 Cal.App.4th 1053, 1065 (Citizens for Open Access).) Despite
the Castillos’ arguments to the contrary, we conclude the public
interest favors the application of res judicata here.
       As Glenair points out, if the Castillos were permitted to
pursue their causes of action here, they would undermine the
finality of the bargained-for and court-approved Gomez
settlement, waste judicial resources, and potentially obtain a
double recovery on their already-settled claims. In addition,
Glenair indicates that, if the Castillos were successful on their
underlying claims, Glenair could seek indemnification from GCA,
thus reopening the same wage and hour claims GCA settled in
Gomez. Although the Castillos correctly note the Gomez
settlement did not award the plaintiffs there (including the
Castillos) the full value of their claims and the court here could
offset any potential double recovery in this case, their position
overlooks the significance of the Gomez parties’ bargained-for
finality of the settlement agreement. Thus, in our view, “two
fundamental policy considerations—promotion of judicial
economy and protection of litigants from unnecessary litigation—
are furthered by imposing res judicata as a bar to [the Castillos’]
present action.” (Citizens for Open Access, supra, 60 Cal.App.4th
at p. 1075.)




                                 34
6.     Leave to Amend
       Finally, the Castillos argue the trial court erred when it
refused to grant their request for leave to amend the complaint.
Although the Castillos concede the applicable statute of
limitations bars their requested section 226 penalties, they
contend they have a valid section 226 claim for actual damages
and should have been permitted to amend the complaint to add
that damages claim. However, because we conclude the Castillos’
alleged causes of action are barred as a result of the Gomez
settlement, we need not and do not reach this issue related to the
relief the Castillos seek on their causes of action.




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                       DISPOSITION
     The judgment is affirmed. Glenair, Inc. is awarded its costs
on appeal.
     CERTIFIED FOR PUBLICATION.




                                         LUI, P. J.
We concur:




     CHAVEZ, J.




     HOFFSTADT, J.




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