Khan et al v. K2 Pure Solutions, LP

Filing 40

ORDER by Judge Hamilton granting 34 Motion to Dismiss (pjhlc2, COURT STAFF) (Filed on 5/28/2013)

1
2

UNITED STATES DISTRICT COURT

3

NORTHERN DISTRICT OF CALIFORNIA

4
5
6

IMTIAZ KHAN, et al.,

7
8
9

v.

No. C 12-5526 PJH
ORDER GRANTING MOTION TO
DISMISS

K2 PURE SOLUTIONS, LP, et al.,
Defendants.
_______________________________/

11
For the Northern District of California

United States District Court

10

Plaintiffs,

12

Defendants’ motion to dismiss the third, sixth, seventh, and eighth causes of action

13

of plaintiffs’ first amended complaint came on for hearing before this court on May 22,

14

2013. Plaintiffs Imtiaz Khan, Tim Morris, Rick Seisinger, and Neelesh Shah (“plaintiffs”)

15

appeared through their counsel, Troy Valdez. Defendants K2 Pure Solutions LP, K2 Pure

16

Solutions Nocal LP, and K2 Pure Solutions Pittsburg LP (“defendants”) appeared through

17

their counsel, Julie Capell. Having read the papers filed in conjunction with the motion and

18

carefully considered the arguments and the relevant legal authority, and good cause

19

appearing, the court hereby GRANTS defendants’ motion, for the reasons stated at the

20

hearing and as follows.

21

Plaintiffs’ eighth cause of action asserts a claim under California’s Private Attorney

22

General Act (“PAGA”), and is based on defendants’ alleged violation of Cal. Labor Code

23

§ 432.5, which prohibits an employer from requiring an employee to agree in writing to any

24

term or condition that is known to be prohibited by law. Plaintiffs claim that they were

25

required to agree to a non-competition provision that is void under California law. However,

26

the latest of these agreements was signed on November 30, 2010, almost two years before

27

this suit was filed on October 15, 2012 and before plaintiffs first asserted a PAGA claim

28

through the administrative process on November 6, 2012. The statute of limitations for

1

PAGA claims is one year. Cal. Code Civ. Proc. § 340. Plaintiffs argue that their claim

2

should be governed by the three-year statute of limitations applicable to violations of Labor

3

Code § 432.5, but plaintiffs have not persuaded the court that the three-year limitations

4

period should trump the one-year limitations period applicable to PAGA claims. See, e.g.,

5

Thomas v. Home Depot USA, Inc., 527 F.Supp.2d 1003, 1007 (N.D. Cal. 2007) (“the court

6

is unpersuaded that the operative statute of limitations for PAGA claims is the statute of

7

limitations that applies to the underlying claims and not the one-year statute of limitations

8

that applies to ‘penalties’ under CCP § 340(a).”). Nor does the court find merit in plaintiffs’

9

argument that the limitations period did not begin until the termination of plaintiffs’
employment. Instead, section 432.5 makes clear that the prohibited behavior is the

11
For the Northern District of California

United States District Court

10

employer’s requirement that an employee agree in writing to a prohibited term or condition.

12

Thus, the limitations period begun when defendants so required. And as stated above, the

13

latest of these agreements was signed on November 30, 2010, more than one year before

14

plaintiffs filed suit and more than one year before plaintiffs asserted their PAGA claim

15

through the administrative process. Thus, plaintiffs’ PAGA claim is time-barred and is

16

DISMISSED with prejudice.

17

Plaintiffs’ third, sixth, and seventh causes of action all allege that defendants did not

18

pay all wages that were owed to plaintiffs, and all three causes of action rely on the

19

allegation that plaintiffs were wrongfully classified as exempt employees. However,

20

plaintiffs’ allegations regarding their exempt status are largely conclusory, and more

21

importantly, do not differentiate between the plaintiffs at all. Instead, the first amended

22

complaint (“FAC”) makes the blanket allegation that “each of the plaintiffs were prevented

23

from exercising independent judgment and discretion in performing their duties such that

24

they were not primarily engaged in exempt duties,” and that “[c]onsequently, plaintiffs were

25

non-exempt employees.” FAC, ¶ 22. Plaintiffs cannot rely on such conclusory statements

26

to support its claims, and for that reason, the third, sixth, and seventh causes of action are

27

DISMISSED with leave to amend. Plaintiffs have until June 19, 2013 to file a second

28
2

1

amended complaint in accordance with this order. No new claims or parties may be added

2

without leave of court or defendants’ written consent. Defendants have until July 10, 2013

3

to answer or otherwise respond to the second amended complaint.

4
5

IT IS SO ORDERED.
Dated: May 28, 2013
______________________________
PHYLLIS J. HAMILTON
United States District Judge

6
7
8
9

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3