Khan et al v. K2 Pure Solutions, LP
Filing
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ORDER by Judge Hamilton granting 34 Motion to Dismiss (pjhlc2, COURT STAFF) (Filed on 5/28/2013)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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IMTIAZ KHAN, et al.,
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v.
No. C 12-5526 PJH
ORDER GRANTING MOTION TO
DISMISS
K2 PURE SOLUTIONS, LP, et al.,
Defendants.
_______________________________/
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For the Northern District of California
United States District Court
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Plaintiffs,
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Defendants’ motion to dismiss the third, sixth, seventh, and eighth causes of action
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of plaintiffs’ first amended complaint came on for hearing before this court on May 22,
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2013. Plaintiffs Imtiaz Khan, Tim Morris, Rick Seisinger, and Neelesh Shah (“plaintiffs”)
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appeared through their counsel, Troy Valdez. Defendants K2 Pure Solutions LP, K2 Pure
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Solutions Nocal LP, and K2 Pure Solutions Pittsburg LP (“defendants”) appeared through
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their counsel, Julie Capell. Having read the papers filed in conjunction with the motion and
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carefully considered the arguments and the relevant legal authority, and good cause
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appearing, the court hereby GRANTS defendants’ motion, for the reasons stated at the
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hearing and as follows.
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Plaintiffs’ eighth cause of action asserts a claim under California’s Private Attorney
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General Act (“PAGA”), and is based on defendants’ alleged violation of Cal. Labor Code
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§ 432.5, which prohibits an employer from requiring an employee to agree in writing to any
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term or condition that is known to be prohibited by law. Plaintiffs claim that they were
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required to agree to a non-competition provision that is void under California law. However,
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the latest of these agreements was signed on November 30, 2010, almost two years before
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this suit was filed on October 15, 2012 and before plaintiffs first asserted a PAGA claim
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through the administrative process on November 6, 2012. The statute of limitations for
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PAGA claims is one year. Cal. Code Civ. Proc. § 340. Plaintiffs argue that their claim
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should be governed by the three-year statute of limitations applicable to violations of Labor
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Code § 432.5, but plaintiffs have not persuaded the court that the three-year limitations
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period should trump the one-year limitations period applicable to PAGA claims. See, e.g.,
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Thomas v. Home Depot USA, Inc., 527 F.Supp.2d 1003, 1007 (N.D. Cal. 2007) (“the court
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is unpersuaded that the operative statute of limitations for PAGA claims is the statute of
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limitations that applies to the underlying claims and not the one-year statute of limitations
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that applies to ‘penalties’ under CCP § 340(a).”). Nor does the court find merit in plaintiffs’
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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
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For the Northern District of California
United States District Court
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employer’s requirement that an employee agree in writing to a prohibited term or condition.
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Thus, the limitations period begun when defendants so required. And as stated above, the
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latest of these agreements was signed on November 30, 2010, more than one year before
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plaintiffs filed suit and more than one year before plaintiffs asserted their PAGA claim
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through the administrative process. Thus, plaintiffs’ PAGA claim is time-barred and is
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DISMISSED with prejudice.
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Plaintiffs’ third, sixth, and seventh causes of action all allege that defendants did not
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pay all wages that were owed to plaintiffs, and all three causes of action rely on the
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allegation that plaintiffs were wrongfully classified as exempt employees. However,
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plaintiffs’ allegations regarding their exempt status are largely conclusory, and more
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importantly, do not differentiate between the plaintiffs at all. Instead, the first amended
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complaint (“FAC”) makes the blanket allegation that “each of the plaintiffs were prevented
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from exercising independent judgment and discretion in performing their duties such that
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they were not primarily engaged in exempt duties,” and that “[c]onsequently, plaintiffs were
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non-exempt employees.” FAC, ¶ 22. Plaintiffs cannot rely on such conclusory statements
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to support its claims, and for that reason, the third, sixth, and seventh causes of action are
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DISMISSED with leave to amend. Plaintiffs have until June 19, 2013 to file a second
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amended complaint in accordance with this order. No new claims or parties may be added
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without leave of court or defendants’ written consent. Defendants have until July 10, 2013
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to answer or otherwise respond to the second amended complaint.
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IT IS SO ORDERED.
Dated: May 28, 2013
______________________________
PHYLLIS J. HAMILTON
United States District Judge
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For the Northern District of California
United States District Court
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