                      FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 PEARL RANGEL, as an                          No. 16-56826
 individual and on behalf of all
 employees similarly situated,                 D.C. No.
            Plaintiff-Appellant,        2:16-cv-06119-DMG-SS

                 v.
                                                 OPINION
 PLS CHECK CASHERS OF
 CALIFORNIA, INC., a
 California corporation,
           Defendant-Appellee.


        Appeal from the United States District Court
           for the Central District of California
          Dolly M. Gee, District Judge, Presiding

              Argued and Submitted July 9, 2018
                    Pasadena, California

                       Filed August 16, 2018

  Before: Marsha S. Berzon and N. Randy Smith, Circuit
        Judges, and David C. Nye,* District Judge.

                      Opinion by Judge Berzon

    *
      The Honorable David C. Nye, United States District Judge for the
District of Idaho, sitting by designation.
2         RANGEL V. PLS CHECK CASHERS OF CALIF.

                            SUMMARY**


                             Labor Law

    The panel affirmed the district court’s dismissal, on res
judicata grounds, of a wage-and-hour action brought under
the Fair Labor Standards Act.

    The plaintiff conceded that she was subject to a state
class-action settlement that released all claims arising from
the allegations on which her FLSA action was predicated.
She argued that her FLSA claims nonetheless could not have
been released in the settlement because the settlement was the
product of an opt-out class asserting only state labor law
claims, but FLSA collective actions are opt-in actions.
Applying California law, the panel held that the FLSA action
was not excepted from the ordinary operation of res judicata
because the decision in the prior proceeding was final and on
the merits, the present proceeding was on the same cause of
action as the prior proceeding, and the parties in the present
proceeding were parties to the prior proceeding.


                             COUNSEL

Kevin Mahoney (argued), Katherine J. Odenbreit, Atoy H.
Wilson, and Dionisios Aliazis, Mahoney Law Group APC,
Long Beach, California, for Plaintiff-Appellant.




    **
       This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
        RANGEL V. PLS CHECK CASHERS OF CALIF.                 3

Ines M. Monte (argued) and Abby Bochenek, Littler
Mendelson P.C., Chicago, Illinois, for Defendant-Appellee.


                          OPINION

BERZON, Circuit Judge:

    Pearl Rangel appeals from the district court’s dismissal,
on res judicata grounds, of her wage-and-hour action brought
under the Fair Labor Standards Act (“FLSA”), 29 U.S.C.
§§ 201–19. Rangel concedes that she was subject to a state
class-action settlement that released all claims arising from
the allegations on which her FLSA action is predicated. She
nonetheless contends that the FLSA action is excepted from
the ordinary operation of res judicata. California law is to the
contrary. We therefore affirm.

                               I

    PLS Check Cashers of California (“PLS”) is a check
casher and payday lender with branches across California. In
early 2014, three PLS workers (not including Rangel) filed
suit against PLS and a related company, alleging violations of
several wage-and-hour and wage statement provisions of the
California Labor Code. In December 2014, the parties
reached a tentative settlement. Around the same time,
presumably in furtherance of that settlement, the three PLS
workers filed a consolidated class-action complaint spelling
out their claims and the subclasses for which relief was
sought. Specifically, the workers brought claims for failure
to provide meal periods, failure to provide rest breaks, failure
to pay overtime, failure to pay minimum wage, failure to pay
out accrued vacation, failure to make timely wage payments
4       RANGEL V. PLS CHECK CASHERS OF CALIF.

on termination, and failure to provide itemized wage
statements. The consolidated complaint also included a
generic claim for unfair or unlawful business practices under
California’s Unfair Competition Law, Cal. Bus. & Prof. Code
§§ 17200–10. The complaint did not bring any federal claims
and made no mention of the FLSA.

    The parties reached a final settlement in April 2015. This
settlement — the so-called Dieguez settlement — covered
“all Class Members who do not timely send a . . . valid Opt-
Out Request.” The Dieguez settlement defined the class
members as “all hourly paid or non-exempt employees who
worked at a Defendant store within the state of California”
between January 6, 2010 and April 10, 2015. The settlement
included a broad release provision, which encompassed

        all claims that were or could have been pled
        based on the factual allegations in the
        Complaint . . . while in a Covered Position
        and during the Class Period, including without
        limitations claims for unpaid wages and
        overtime, untimely final paychecks, record-
        keeping violations, itemized wage statements,
        meal and rest period wages and premiums,
        unpaid and/or untimely vacation wages, and
        restitution and penalties under the Private
        Attorneys General Act.

The language of the Dieguez settlement made clear that it was
“made in compromise of disputed claims” and “for the sole
purpose of settling” the class action. PLS reiterated in the
settlement that it “den[ied] all claims as to liability, damages,
penalties, interest, fees, restitution, injunctive relief and all
other forms of relief as well as the class allegations asserted.”
          RANGEL V. PLS CHECK CASHERS OF CALIF.                             5

    The Superior Court certified the class for settlement
purposes and granted preliminary approval of the settlement
in June 2015. The Superior Court also approved notice to
class members, which included information on opting out of
the settlement. After a fairness hearing, the Court granted
final approval under California Code of Civil Procedure
section 382, California’s counterpart to Federal Rule of Civil
Procedure 23, and entered judgment. The judgment stated
that “Class Members shall take nothing from Defendants . . .
except as expressly set forth in the Joint Stipulation of
Settlement and Release.”

    In August 2016, Pearl Rangel, a PLS worker covered by
the Dieguez settlement, brought a putative collective action
under the FLSA in the Central District of California. Rangel
brought claims for violations of the FLSA’s minimum wage
provision, 29 U.S.C. § 206(a), and overtime provision,
29 U.S.C. § 207, and proposed a separate FLSA collective for
each.1 According to Rangel, PLS “instituted a policy and
practice against its employees wherein the minimum wage
was not paid in accordance with [f]ederal law.” PLS
allegedly also required its workers to “work[] extra hours on
the graveyard shift, exceeding 40 hours in a week,” but
without “properly pa[ying] for . . . overtime hours.”

   PLS promptly moved to dismiss on res judicata grounds.
PLS argued that the Dieguez settlement resulted in a final

    1
      A collective is not formed until other plaintiffs file consent forms
with the court joining (that is, “opting into”) the original named plaintiff’s
case. Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 75 (2013);
Smith v. T-Mobile USA Inc., 570 F.3d 1119, 1122–23 (9th Cir. 2009). No
plaintiffs joined Rangel’s putative collective action before it was
dismissed, so no collective was ever formed. It follows that the only
claims at issue in the present appeal are Rangel’s individual FLSA claims.
6        RANGEL V. PLS CHECK CASHERS OF CALIF.

judgment in state court on the merits of Rangel’s minimum
wage and overtime claims. PLS also argued that the Dieguez
settlement, which expressly released all claims that could
have been brought based on the same factual predicate,
functioned as a waiver coextensive with the scope of res
judicata.

    In opposition to PLS’s motion to dismiss, Rangel took the
position that her FLSA claims could not have been released
in the Dieguez settlement because the settlement was the
product of an opt-out class asserting only state law labor
claims. FLSA collective actions, unlike Rule 23(b)(3) class
actions and their state law analogues, are strictly opt-in
actions. See 29 U.S.C. § 216(b). Workers cannot become
plaintiffs to a collective action unless they first file a written
consent with the court expressly joining the litigation. See id.
According to Rangel, this unique requirement of the FLSA
prevented the opt-out class settlement from releasing FLSA
claims, and thus prevented the state court’s judgment from
having any preclusive effect with respect to those claims.

    Applying federal preclusion law, the district court sided
with PLS. The district court found the elements of res
judicata met, and noted that class settlements, in the interest
of finality, routinely release related claims that were not pled
in the operative complaint. The district court dismissed the
action with prejudice, and Rangel filed a timely appeal.

                               II

    In California, “[r]es judicata applies if (1) the decision in
the prior proceeding [was] 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
          RANGEL V. PLS CHECK CASHERS OF CALIF.                        7

parties in privity with them were parties to the prior
proceeding.”2 Fed’n of Hillside & Canyon Ass’ns v. City of
Los Angeles, 126 Cal. App. 4th 1180, 1202 (2004). All three
elements are satisfied here.

                                   A

    It is well-settled that a class settlement resulting in final
judgment is sufficient to meet the “final and on the merits”
element of res judicata, and “is as conclusive a bar as a
judgment rendered after trial.” Citizens for Open Access to
Sand & Tide, Inc. v. Seadrift Ass’n, 60 Cal. App. 4th 1053,
1065, 1067 (1998) (alterations omitted) (quoting Johnson v.
Am. Airlines, Inc., 157 Cal. App. 3d 427, 431 (1984)). That
a settlement may not specifically resolve liability as to all
released claims is immaterial. For res judicata purposes, all
that matters is that a claim was in fact settled, rather than
reserved for future litigation, such that it was in some sense
within the judgment approving of the class settlement.3 See


    2
      The district court erred in applying federal preclusion law. The
judgment giving rise to preclusion issued in a California court, so it is
California law that determines the judgment’s preclusive effect. See
Manufactured Home Communities Inc. v. City of San Jose, 420 F.3d 1022,
1031 (9th Cir. 2005). But this error alone is not reason to reverse. We
review a dismissal on preclusion grounds de novo, see Robi v. Five
Platters, Inc., 838 F.2d 318, 321 (9th Cir. 1988), and so may affirm on a
de novo application of the correct standard.
    3
       Because the res judicata effect of a settlement tends to be a
bargained term of the settlement agreement — and because a settlement
agreement is simply a contract, see Folsom v. Butte Cty. Ass’n of Gov’ts,
32 Cal. 3d 668, 677 (1982) — res judicata in the settlement context tends
to resemble waiver or release. California courts occasionally obscure the
distinctions between doctrines. See, e.g., Seadrift Association, 60 Cal.
App. 4th at 1065–66 (describing “final and on the merits” — the first
8         RANGEL V. PLS CHECK CASHERS OF CALIF.

Louie v. BFS Retail & Commercial Operations, LLC,
178 Cal. App. 4th 1544, 1555–57 (2009).

    Here, the class settlement covered “all claims” that “could
have been pled based on the factual allegations in the
Complaint.” Rangel’s FLSA claims, which were direct
federal law counterparts to the state law claims settled in
Dieguez, easily qualify. Rangel suggests that her FLSA
claims could not have been pled in the original state action
because that action was opt-out only, and therefore
inconsistent with the opt-in mechanism used for FLSA
claims. See 29 U.S.C. § 216(b). But the release provision in
the Dieguez settlement refers to factually related claims —
those related “based on the factual allegations in the
Complaint.” (Emphasis added.) It does not limit itself to
those claims that class members were functionally capable of
bringing in Dieguez itself. Settlements of this breadth are
common and unobjectionable. See Villacres v. ABM Indus.
Inc, 189 Cal. App. 4th 562, 586–90 (2010).

                                    B

    Under California’s “primary rights” approach to res
judicata, “cause of action” refers to “the right to obtain
redress for a harm suffered, regardless of the specific remedy
sought or the legal theory (common law or statutory)
advanced.” Boeken v. Philip Morris USA, Inc., 48 Cal. 4th


element of res judicata — as both “collateral estoppel” and a manifestation
of “the intent of the parties to be bound by the Settlement Agreement”).
However, as California courts have expressly invoked res judicata in the
settlement context, and as the outcome in this case is the same regardless,
we adhere to a res judicata analysis. See Ryman v. Sears, Roebuck and
Co., 505 F.3d 993, 995 (9th Cir. 2007).
          RANGEL V. PLS CHECK CASHERS OF CALIF.                            9

788, 798 (2010). “Even where there are multiple legal
theories upon which recovery might be predicated, one injury
gives rise to only one claim for relief.” Id. “Hence a
judgment . . . is a bar to a subsequent action . . . based on the
same injury to the same right, even though [the plaintiff]
presents a different legal ground for relief.” Slater v.
Blackwood, 15 Cal. 3d 791, 795 (1975) (citation and
emphasis omitted).

    Rangel’s FLSA claims, as federal versions of the state law
claims asserted in the Dieguez action, are typical examples of
claims invoking “the same injury to the same right” litigated
in a prior case. Boeken, 48 Cal. 4th at 798. Rangel does not
disagree on this point, but instead argues a different one: Her
FLSA claims must be distinguished from the California Labor
Code claims released in Dieguez because the FLSA claims
could not have been litigated through an opt-out class.
Rangel is not wrong in her premise; the collective action and
opt-out class mechanisms do differ. See McElmurry v. U.S.
Bank Nat. Ass’n, 495 F.3d 1136, 1139 (9th Cir. 2007).4 But
she is wrong about the import of that distinction for res
judicata purposes. The mechanism of litigation has no impact
on the California primary rights analysis. The same injuries
to the same rights are at issue in both cases.



    4
      The mechanisms are in tension in that a single adjudication cannot
be both fully opt-in and fully opt-out. But there are ways of
accommodating the different mechanisms within a single case. For
example, it is not uncommon to allow an opt-in FLSA collective action to
proceed in tandem with an opt-out Rule 23 class action, with the same
discovery and the same notice to affected workers, but with the former
covering the federal labor claims and the latter the state labor claims. See
Busk v. Integrity Staffing Sols., Inc., 713 F.3d 525, 528–30 (9th Cir. 2013),
rev’d on other grounds, 135 S. Ct. 513 (2014).
10        RANGEL V. PLS CHECK CASHERS OF CALIF.

                                   C

    Finally, it is beyond dispute that Rangel was a party to
Dieguez, because she did not opt out. She was therefore a
party to the settlement and bound by the resulting judgment.
As in Richardson v. Wells Fargo Bank, N.A., where the Fifth
Circuit applied California law in very similar circumstances,
the plaintiff “became part[y] to the [opt-out] settlement
because [she] did not opt out,” and thus “became bound by
the settlement terms, including the release of [her] FLSA
claims.” 839 F.3d 442, 451–52 (5th Cir. 2016).

    Rangel notes, correctly, that because she never opted into
Dieguez, she would not have been a party to the action if it
were brought as an FLSA collective action, and so she would
not have been bound by any resulting settlement. She objects
to the notion that a plaintiff can pretermit the FLSA’s
statutorily mandated opt-in requirement by first bringing state
law labor claims in an opt-out class action, then reaching a
settlement that extends to the FLSA.

     But the question presently before us is not the wisdom of
the state court proceeding as it did. Rangel discusses in her
res judicata argument, for example, whether allowing an opt-
out settlement to release opt-in FLSA claims was proper,5 or
whether the notice given to class members regarding the
waiver contained in the settlement was sufficiently specific.
See, e.g., Cotter v. Lyft, Inc., No. 13-cv-04065-VC, 2017
1033527, at *2 (N.D. Cal. Mar. 16, 2017). But we are not


     5
      See, e.g., Myles v. AlliedBarton Sec. Servs., LLC, No. 12-CV-05761-
JD, 2014 WL 6065602, at *3 (N.D. Cal. Nov. 12, 2014); Tijero v. Aaron
Bros., Inc., No. C 10-01089 SBA, 2013 WL 60464, at *7–8 (N.D. Cal.
Jan. 2, 2013).
          RANGEL V. PLS CHECK CASHERS OF CALIF.                        11

here reviewing the settlement or the notice, which are issues
courts have addressed with varying results. The way to raise
such issues was by objecting to the settlement. Here we are
asked only whether a settlement to which Rangel did not
object, and to which we are obligated to give effect,
28 U.S.C. § 1738,6 extends to her current claims. It plainly
does.

    AFFIRMED.




    6
      Rangel has forfeited any argument that the FLSA operates as an
implied partial repeal of 28 U.S.C. § 1738 by failing to raise the issue in
her opening brief. Balser v. Dep’t of Justice, 327 F.3d 903, 911 (9th Cir.
2003).
