OSCAR MENDOZA, individually and as class representative, Appellant,
EXPERT JANITORIAL SERVICES, LLC, Defendant, FRED MEYER STORES, INC., Respondent.
has no ground to complain of unfairness when faced with a
consequence of obtaining the relief it requested and received
from the trial court. Here, having successfully obtained an
order excluding Oscar Mendoza and 68 of his fellow janitors
(the Mendoza janitors) from a prior class action
lawsuit (Espjnoza)-in which a group of janitors who worked in
Fred Meyer Stores, Inc. retail facilities throughout the
Puget Sound area sought to recover damages for violations of
Washington's Minimum Wage Act (MWA), chapter 49.46
RCW-Fred Meyer nevertheless seeks to avoid the consequences
of its choice by barring the Mendoza janitors from
pursuing this separate lawsuit.
Fred Meyer's contention that the Mendoza
janitors were virtually represented by the efforts of the
class in Espinoza from which they were excluded, the
trial court herein ruled that the Mendoza janitors were
collaterally estopped from bringing their claims under the
MWA against Fred Meyer. Because the Mendoza janitors
attempted to join but were, at Fred Meyer's urging,
excluded by court order from the class in Espinoza.
we hold both that the doctrine of virtual representation is
not applicable to the Mendoza janitors and that
application of collateral estoppel herein works an injustice.
Fred Meyer must accept the consequences of its decision to
successfully seek the exclusion of the Mendoza
janitors from the Espinoza lawsuit. Accordingly, we
Espinoza, a group of janitors who worked in Fred
Meyer stores in the Puget Sound area between September 2011
and September 2014 filed suit alleging violations of the MWA
by All American Janitorial LLC (AAJ), M.H. Janitorial LLC
(MHJ), Expert Janitorial Services, LLC (Expert), and Fred
Meyer. Fred Meyer contracted out its janitorial work to
Expert who-in turn- subcontracted the work to AAJ and MHJ,
who directly employed the Espinoza janitors.
September 2015, after the Espinoza lawsuit was
instituted but prior to the certification of the
Espinoza class, Expert sent putative class members
settlement agreements that offered compensation to those who
released their claims against Expert and Fred Meyer. The
Mendoza janitors are those who were a part of the
putative class but accepted these settlement offers. Later,
five of the Mendoza janitors submitted declarations
in support of a request for relief seeking to include all of
the Mendoza janitors as part of the class in
urging of Expert and Fred Meyer, the trial court, in its
order certifying the class in Espinoza, excluded the
Mendoza janitors because none of the class
representatives had signed the proffered 2015 agreement and
the trial court was concerned that their interests could
conflict with the Mendoza janitors' interests.
The Mendoza janitors subsequently filed this lawsuit
in August 2016, asserting many claims identical to those in
Espinoza, but also including allegations relating to
the validity of the 2015 settlement agreements.
Espinoza lawsuit was tried in January and February
2017. Following trial, the trial court concluded that AAJ,
MHJ, and Expert were liable for violations of the MWA. It
also ruled that Fred Meyer was not the Espinoza
janitors' joint employer under the MWA and was therefore
not liable to the janitors.
thereafter, the Espinoza and Mendoza
janitors learned that Expert was financially unable to pay
the wages owed. As a result of Expert's financial
difficulties, it settled with the Espinoza and
Mendoza janitors for $720, 000 in a settlement
approved by the trial court.
in July 2017, the trial court herein certified the class of
Mendoza janitors. Fred Meyer then moved for summary
judgment, asserting that the Mendoza janitors should
be collaterally estopped-by the Espinoza ruling that
Fred Meyer was not the janitors' joint employer under the
MWA-from bringing their claims against Fred Meyer under the
MWA. The trial court agreed, concluding that the
Mendoza janitors were collaterally estopped on the
issue of Fred Meyer's status as a joint employer under a
theory of virtual representation. The Mendoza
janitors appeal from the order dismissing their claims.
Mendoza janitors contend that the trial court erred
by dismissing their claims against Fred Meyer on summary
judgment. This is so, the Mendoza janitors assert,
because the trial court incorrectly concluded that collateral
estoppel barred their MWA claims against Fred Meyer.
According to the Mendoza janitors, the application
of collateral estoppel to them was improper because they were
not parties to, nor in privity with parties to, the
Espinoza lawsuit, and because application of the
equitable doctrine would work an injustice. We agree.
review de novo a trial court's grant of summary judgment.
Greensun Grp.. LLC v. City of Bellevue, 7 Wn.App. 2d
754, 767, 436 P.3d 397, review denied, 193Wn.2d 1023
(2019). We affirm an order granting summary judgment only
"if there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of
law." Woods View II, LLC v. Kitsap County, .
188 Wn.App. 1, 18, 352 P.3d 807 (2015). On review, we
"conduct the same inquiry as the trial court and view
all facts and their reasonable inferences in the light most
favorable to the nonmoving party." Greensun
Grp., 7 Wn.App. 2d at 767 (citing Pac. Nw. Shooting
Park Ass'n v. City of Sequim, 158 Wn.2d 342, 350,
144 P.3d 276 (2006)).
doctrine of collateral estoppel applies when the following
four factors are present: "(1) identical issues; (2) a
final judgment on the merits; (3) the party against whom the
plea is asserted must have been a party to or in privity with
a party to the prior adjudication; and (4) application of the
doctrine must not work an injustice on the party against whom
the doctrine is to be applied." Malland v. Dep't
of Ret. Sys., 103 Wn.2d 484, 489, 694 P.2d 16 (1985).
"Whether collateral estoppel applies to preclude
relitigation of an issue is a question of law that we review
de novo." Lemond v. Dep't of Licensing, 143
Wn.App. 797, 803, 180 P.3d 829 (2008) (citing State v.
Vasquez, 109 Wn.App. 310, 314, 34 P.3d 1255 (2001));
accord Weaver v. City of Everett, No. 96189-1, slip
op at 6 (Wash. Oct. 17, 2019),
Mendoza janitors first contend that they were not
parties to, nor were they in privity with parties to, the
Espinoza lawsuit such that they should be
collaterally estopped from asserting that Fred Meyer is their
joint employer under the MWA. Fred Meyer concedes that the
Mendoza janitors were not actual parties to the
Espinoza lawsuit, but asserts that they nevertheless
satisfy the party or party in privity requirement under the
virtual representation doctrine. In. response, the
Mendoza janitors assert that (1) the virtual
representation doctrine is not applicable in the class action
context when the party against whom the doctrine is applied
attempted to join but was denied membership in the prior
class action lawsuit, and (2) even if the doctrine was
generally applicable to such cases it does not support the
application of collateral estoppel to the Mendoza
Washington law, the virtual representation doctrine provides
an exception to the collateral estoppel "requirement
that one be a party or in privity with a party to the prior
litigation." Hackler v. Hackler, 37 Wn.App.
791, 795, 683 P.2d 241 (1984); accord Bacon v.
Gardner, 38 Wn.2d 299, 229 P.2d 523 (1951); Briggs
v. Madison, 195 Wash. 612, 82 P.2d 113 (1938);
Howard v. Mortensen, 144 Wash. 661, 258 P. 853
(1927). This doctrine is applied cautiously so as to avoid
unjustly depriving a nonparty of his or her day in court.
Garcia v. Wilson. 63 Wn.App. 516, 520, 820 P.2d 964
(1991). To this end, we have previously identified four
factors that courts should consider before applying the
(1) "whether the nonparty in some way participated in
the former adjudication, for instance as a witness," (2)
"[t]he issue must have been fully and fairly litigated
at the former adjudication," (3) "the evidence and
testimony will be identical to that presented in the former
adjudication," and (4) "there must be some sense
that the separation of the suits was the product of some
manipulation or tactical maneuvering, such as when the
nonparty knowingly decline the opportunity to intervene but
presents no valid reason for doing so."
Dillon v. Seattle Deposition Reporters. LLC, 179
Wn.App. 41, 66, 316 P.3d 1119 (2014) (alteration in original)
(quoting Garcia, 63 Wn.App. at 521). A court may
apply the virtual representation doctrine when a sufficient
number of these factors are present to ensure that
application of the doctrine is fair to the party against whom