Harper v. Charter Communications, LLC ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 LIONEL HARPER, DANIEL SINCLAIR, No. 2:19-cv-00902 WBS DMC HASSAN TURNER, LUIS VAZQUEZ, and 13 PEDRO ABASCAL, individually and on behalf of all others 14 similarly situated and all ORDER RE: PLAINTIFFS’ MOTION aggrieved employees, TO MODIFY THE SCHEDULING 15 ORDER AND FOR LEAVE TO FILE A Plaintiffs, THIRD AMENDED COMPLAINT 16 v. 17 CHARTER COMMUNICATIONS, LLC, 18 Defendant. 19 20 21 ----oo0oo---- 22 Plaintiffs Lionel Harper, Daniel Sinclair, Hassan 23 Turner, Luis Vazquez, and Pedro Abascal (“plaintiffs”) brought 24 this putative class action against their former employer, Charter 25 Communications, alleging various violations of the California 26 Labor Code. Among other things, plaintiffs allege that Charter 27 misclassified them and other California employees as “outside 28 salespersons,” failed to pay them overtime wages, failed to 1 provide meal periods or rest breaks (or premium wages in lieu 2 thereof), and provided inaccurate wage statements. (See 3 generally Second Amended Complaint (“SAC”) (Docket No. 147).) 4 Plaintiffs now move to modify the scheduling order and for leave 5 to amend their complaint a third time. (Mot. for Leave to Amend 6 (Docket No. 174).) 7 I. Factual Background 8 Charter is a broadband connectivity company and cable 9 operator serving business and residential customers under the 10 Spectrum brand, among others. Plaintiffs Harper and Sinclair 11 worked as small/medium sized business Account Executives (“AEs”) 12 at Charter’s Redding, California location. (SAC at ¶¶ 5-6, 12.) 13 Plaintiffs Turner, Vazquez, and Abascal worked as Direct Sales 14 Representatives (“DSRs”) at Charter’s Irwindale, Bakersfield, and 15 Anaheim, California locations, respectively. (Id. at ¶¶ 7-9, 16 12.) Plaintiffs allege that Charter classifies AEs and DSRs as 17 “exempt” employees. (See id. at ¶ 13.) 18 Plaintiffs claim that Charter erroneously classified 19 them as exempt employees by mistakenly classifying them as 20 “outside salespersons.” (See id.; Cal. Code Regs. tit. 8, 21 § 11070.) Under California law, “outside salespersons” are 22 exempt from overtime, minimum wage, meal period, and rest period 23 requirements. See Cal. Lab. Code § 1171. Importantly, under 24 California case law, employees are only subject to the outside 25 salesperson exception if their employer actually had an 26 expectation that they spend more than half their time outside the 27 office engaged in sales activities, and if that expectation was 28 reasonable. See Ramirez v. Yosemite Water Co., 20 Cal. 4th 785, 1 790 (Cal. 1999). Plaintiffs’ claim is essentially that Charter 2 did not actually expect them to spend 50% of their time outside 3 of the office both during and after their training weeks, and 4 that even if it did, that expectation was unreasonable given the 5 number of tasks Charter expected them to complete that required 6 them to be in the office. (See generally SAC (Docket No. 147).) 7 Plaintiffs’ claims of failure to pay overtime wages, 8 failure to provide meal periods or rest breaks (or premium wages 9 in lieu thereof), and failure to provide accurate wage statements 10 are derivative of their misclassification claim. Because Charter 11 misclassified them, plaintiffs contend, Charter necessarily 12 failed to pay them overtime and failed to provide necessary rest 13 and meal breaks. (See id.) Plaintiffs further claim that 14 Charter failed to pay them commission wages to which they were 15 entitled and provided them with inaccurate and misleading wage 16 statements.1 (Id.) 17 Plaintiffs seek to represent two classes of Charter 18 employees: (1) all California employees who were classified as 19 exempt outside salespersons, and (2) all California employees who 20 were in positions eligible to earn commission wages. (See id. at 21 ¶ 19.) 22 II. Procedural Background 23 Plaintiff Harper filed his initial complaint in Shasta 24 1 Plaintiffs also claim that Charter failed to pay them 25 all wages owed upon termination, failed to provide them with employment records, and violated the California UCL. (See 26 generally SAC (Docket No. 147).) Plaintiff Harper also brings a 27 representative claim under PAGA on behalf of aggrieved employees, including plaintiffs, alleging the same aforementioned Labor Code 28 1 County Superior Court on May 3, 2019. Charter removed the case 2 to this court on May 17, 2019. (Docket No. 1.) Harper sought 3 leave to amend his complaint and add another named plaintiff, 4 Daniel Sinclair, on October 30, 2019. (Docket No. 36.) The 5 court granted Harper’s request on December 13, 2019. (See First 6 Amended Complaint (Docket No. 45).) The two plaintiffs sought 7 leave to again amend their complaint to add three additional 8 named plaintiffs, Hassan Turner, Luis Vazquez, and Pedro Abascal, 9 on April 16, 2021. (Docket No. 121.) The court granted their 10 request on June 3, 2021. (Docket No. 146.) 11 The court issued a pretrial scheduling order on October 12 9, 2019. (Docket No. 34.) The parties amended the scheduling 13 order via stipulation on seven occasions: on January 29, May 4, 14 June 25, September 17, and December 11, 2020, and again on 15 January 29 and June 23, 2021. (Docket Nos. 49, 59, 69, 82, 91, 16 102, 158.) On December 18, 2020, Charter filed a motion for 17 summary judgment. (Docket No. 93.) The court denied most of 18 Charter’s motion on February 16, 2021, holding that triable 19 issues of fact existed as to the majority of plaintiffs’ claims, 20 including whether plaintiffs were misclassified as “outside 21 salespersons.” (See Docket No. 111.) 22 After withdrawing their initial motion for class 23 certification pursuant to the court’s order granting plaintiffs 24 leave to file the Second Amended Complaint (Docket No. 146), 25 plaintiffs filed a renewed motion for class certification on June 26 14, 2021. (Docket No. 149.) 27 Defendant then filed a motion to compel arbitration 28 against plaintiff Harper on July 9, 2021 (Docket No. 162), a 1 partial motion to dismiss on the same day (Docket No. 163), and a 2 motion to compel arbitration against plaintiffs Turner, Vazquez, 3 and Abascal on August 6, 2021 (Docket No. 165). 4 On August 30, 2021, plaintiffs filed the instant motion 5 to modify the scheduling order and for leave to file a Third 6 Amended Complaint (“TAC”), (see Mot. for Leave to Amend (Docket 7 No. 174)), and the court heard oral argument on October 4, 2021. 8 Plaintiffs’ motion seeks to make various changes to the 9 complaint, namely adding allegations related to the PAGA claims; 10 adding plaintiffs Sinclair, Turner, Vazquez, and Abascal as 11 proposed PAGA representatives; adding proposed arbitration 12 subclasses; adding allegations relating to plaintiffs’ UCL claim; 13 and adding allegations relating to tolling and relation back of 14 various claims. (See generally id.) 15 III. Discussion 16 Once the district court has issued a pretrial 17 scheduling order pursuant to Federal Rule of Civil Procedure 16, 18 which establishes a timetable for amending pleadings, that rule’s 19 standards control the court’s analysis of whether leave to amend 20 a pleading should be granted. See Johnson v. Mammoth 21 Recreations, Inc., 975 F.2d 604, 607–08 (9th Cir. 1992). Under 22 Rule 16, “[a] schedule may be modified only for good cause and 23 with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). 24 “Unlike [Federal Rule of Civil Procedure] 15(a)’s 25 liberal amendment policy which focuses on the bad faith of the 26 party seeking to interpose an amendment and the prejudice to the 27 opposing party, Rule 16(b)’s ‘good cause’ standard primarily 28 considers the diligence of the party seeking the amendment.” 1 Johnson, 975 F.2d at 609. “If that party was not diligent, the 2 inquiry should end.” Id. Although “the focus of the inquiry is 3 upon the moving party’s reasons for seeking modification,” a 4 court may also consider prejudice to the opposing party in making 5 its determination. Id. 6 Once a party seeking amendment has shown “good cause,” 7 it must also show that the amendment is proper under Rule 15. 8 See id. at 608 (citations omitted). Under that rule, “[t]he 9 court should freely give leave [to amend] when justice so 10 requires.” Fed. R. Civ. P. 15(a)(2); see also Johnson, 975 F.2d 11 at 607 (Rule 15 embodies a “liberal amendment policy”). However, 12 leave should not be granted under Rule 15 if amendment (1) would 13 cause prejudice to the opposing party, (2) is sought in bad 14 faith, (3) creates undue delay, or (4) is futile. Chudacoff v. 15 Univ. Med. Ctr. of S. Nev., 649 F.3d 1143, 1153 (9th Cir. 2011) 16 (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). 17 “Because Rule 16(b)’s ‘good cause’ inquiry essentially 18 incorporates the first three factors, if a court finds that good 19 cause exists, it should then deny a motion for leave to amend 20 only if such amendment would be futile.” J & J Sports Prods., 21 Inc. v. Maravilla, 2:12-cv-02899 WBS EFB, 2013 WL 4780764, at *1 22 (E.D. Cal. Sept. 5, 2013); see also Nunes v. Ashcroft, 375 F.3d 23 805, 808 (9th Cir. 2004) (“Futility alone can justify the denial 24 of a motion for leave to amend.”). 25 A. PAGA Amendments 26 Plaintiffs seek leave to amend the Second Amended 27 Complaint to (1) add allegations regarding amended PAGA notices 28 they subsequently submitted to California’s Labor Workforce 1 Development Agency (“LWDA”), which they updated to include 2 plaintiffs Sinclair, Turner, Vazquez, and Abascal, and add those 3 plaintiffs as proposed PAGA representatives in this action; and 4 (2) add alleged violations of Labor Code section 432.5, which 5 were also submitted to the LWDA through the amended notices. 6 (Mot. for Leave to Amend at 2-3 (Docket No. 174); Docket No. 174- 7 2, Exh. 1.) 8 Charter opposes plaintiffs’ motion, arguing that 9 because plaintiffs Sinclair, Turner, Vazquez, and Abascal joined 10 those amended notices after PAGA’s one-year statute of 11 limitations had run and this litigation had commenced -- and 12 because the amended notices added other claims and allegations 13 after the statute of limitations had run -- the amended notices 14 cannot serve as predicates for the PAGA allegations plaintiffs 15 seek to add to their complaint. (See Opp. to Mot. for Leave to 16 Amend at 9-14 (Docket No. 188).) Accordingly, Charter contends, 17 plaintiffs’ requested amendments do not demonstrate the requisite 18 diligence, are futile, or both. (See id.) For the following 19 reasons, the court agrees. 20 1. PAGA Background and Requirements 21 California’s Private Attorney General Act (“PAGA”), 22 Cal. Lab. Code §§ 2698 et seq., was enacted to remedy systemic 23 underenforcement of worker protections. Williams v. Super. Ct., 24 3 Cal. 5th 531, 545 (2017). To achieve this goal, PAGA allows an 25 employee to bring a civil action against an employer for 26 violations of the Labor Code. See Cal. Lab. Code § 2699(a). 27 In doing so, PAGA “deputiz[es] employees harmed by 28 labor violations to sue on behalf of the state,” in part for the 1 benefit of “other affected employees.” Williams, 3 Cal. 5th at 2 545. A deputized employee “act[s] as [a] private attorney[ ] 3 general, . . . with the understanding that labor law enforcement 4 agencies . . . retain primacy over private enforcement efforts.” 5 Arias v. Super. Ct., 46 Cal. 4th 969, 980 (2009); see also Kim v. 6 Reins Int’l Cal., Inc., 9 Cal. 5th 73, 86 (2020) (“The 7 Legislature’s sole purpose in enacting PAGA was to augment the 8 limited enforcement capability of the [LWDA] by empowering 9 employees to enforce the Labor Code as representatives of the 10 Agency. Accordingly, a PAGA claim is an enforcement action 11 between the LWDA and the employer, with the PAGA plaintiff acting 12 on behalf of the government.”) (internal quotations and citations 13 omitted, alterations in original). 14 The LWDA safeguards this primacy through PAGA’s notice 15 requirement. “First, . . . the employee must give ‘written 16 notice . . . to the [LWDA] and the employer of the specific 17 provisions . . . alleged to have been violated, including the 18 facts and theories to support the alleged violation.’” Alcantar 19 v. Hobart Serv., 800 F.3d 1047, 1056 (9th Cir. 2015) (quoting 20 Cal. Lab. Code § 2699.3(a)(1)); see Arias, 46 Cal. 4th at 981 21 (same). Then, if the LWDA notifies the employee and employer 22 within 60 days that it does not intend to investigate the alleged 23 violation(s), or if no notice is provided within 65 days, the 24 employee may bring a PAGA action to recover civil penalties. 25 Cal. Lab. Code §§ 2699.3(a)(2)(A), 2699(a). 26 PAGA’s notice requirement was implemented to “allow[ ] 27 the [LWDA] to act first on more serious violations such as wage 28 and hour violations and give employers an opportunity to cure 1 less ‘serious’ violations.” Dunlap v. Super. Ct., 142 Cal. App. 2 4th 330, 338-39 (2d Dist. 2006) (quoting Cal. S. Rules Comm., 3 Off. of S. Floor Analyses, Bill Analysis for SB1809, at 5-6 (Aug. 4 27, 2004)); see also Alcantar, 800 F.3d at 1057 (notice 5 requirement exists “to allow the [LWDA] to intelligently assess 6 the seriousness of the alleged violations” and “permit the 7 employer to determine what policies or practices are being 8 complained of so as to know whether to fold or fight”); Williams, 9 3 Cal. 5th at 545-46 (purpose of LWDA notice requirement “is to 10 afford . . . the LWDA[ ] the opportunity to decide whether to 11 allocate scarce resources to an investigation, a decision better 12 made with knowledge of the allegations an aggrieved employee is 13 making and any basis for those allegations”). To effectuate 14 these goals, courts adjudicating PAGA claims require that 15 plaintiffs serving as PAGA representatives have “compl[ied] with 16 the statute’s notice requirements” before bringing suit. See 17 Alcantar, 800 F.3d at 1056; Brown v. Ralphs Grocery Co., 28 Cal. 18 App. 5th 824, 834-36 (2d Dist. 2018); Khan v. Dunn-Edwards Corp., 19 19 Cal. App. 5th 804, 808-810 (2d Dist. 2018). 20 2. Addition of PAGA Representatives 21 As noted above, an aggrieved employee bringing a PAGA 22 claim does so on behalf of the state and for the benefit of other 23 aggrieved employees. (See also SAC at ¶¶ 98-99 (establishing 24 that plaintiff Harper seeks to pursue “representative PAGA 25 claims” “on behalf of all class members who are also aggrieved 26 employees under PAGA”) (Docket No. 147).) Accordingly, and as 27 counsel for plaintiffs conceded at oral argument, it would be 28 redundant to have multiple employees serve as PAGA 1 representatives here, given that doing so would not expand the 2 PAGA action’s scope. At the outset, this indicates that 3 plaintiffs lack good cause to amend the complaint to add 4 plaintiffs Sinclair, Turner, Vazquez, and Abascal as PAGA 5 representatives.2 6 Further, although neither the parties nor the court 7 have identified precedent addressing whether plaintiffs may add 8 PAGA representatives to an existing action based on late-filed 9 amendments to another, current representative’s original LWDA 10 notice, available precedent and the legislative intent behind 11 PAGA’s notice requirement suggest that they cannot. 12 “Proper notice under [Labor Code] section 2699.3 is a 13 ‘condition’ of a PAGA lawsuit,” Brown, 28 Cal. App. at 835 14 (quoting Williams, 3 Cal. 5th at 545), i.e., a requirement that 15 must be satisfied before a plaintiff may bring a civil PAGA 16 action. See Brown, 28 Cal. App. at 841 (noting “the intent of 17 the Legislature to require compliance with administrative 18 procedures as a condition to filing an action” under PAGA); 19 Mazzei v. Regal Ent. Grp., SACV 13-1284-DOC (AGRx), 2013 WL 20 6633079, at *5 (C.D. Cal. Dec. 13, 2013) (describing “PAGA’s 21 administrative exhaustion requirements” as a “condition 22 23 2 Plaintiffs argue that the court should grant their motion because, among other reasons, PAGA allows multiple 24 employees to serve as PAGA representatives in one action. (See Pl.’s Reply at 11-12 (citing Julian v. Glenair, Inc., 17 Cal. 25 App. 5th 853, 873 (2d Dist. 2017)) (Docket No. 190).) Even if multiple employees may jointly file a PAGA action, however, in 26 determining whether to grant plaintiffs leave to file a Third 27 Amended Complaint, the operative question is whether they have good cause to do so. See Fed. R. Civ. P. 16; Johnson, 975 F.2d 28 1 precedent” to suit) (citation omitted). To enable the LWDA to 2 decide whether to investigate alleged violations itself, and as a 3 condition of the LWDA’s delegation of enforcement authority to 4 individual employees, “proper notice” under PAGA requires that 5 employees seeking to serve as PAGA representatives in civil 6 actions first notify the LWDA within one year of an alleged Labor 7 Code violation. See Brown, 28 Cal. App. 5th at 839. 8 Plaintiffs Sinclair, Turner, Vazquez, and Abascal did 9 not do so. Rather, although their terms of employment with 10 Charter ended in April 2017, October 2018, March 2020, and 11 January 2020, respectively, (SAC at ¶¶ 6-9 (Docket No. 147)), 12 Sinclair did not join plaintiff Harper’s LWDA notice via 13 amendment until September 2020, (see id., Ex. 1), and Turner, 14 Vazquez, and Abascal did not do so until June 2021, (see Mot. for 15 Leave to Amend, Ex. 2 (Docket No. 174-2)), well after this PAGA 16 action had commenced. None filed a notice prior to these 17 amendments. (See SAC (Docket No. 147).) 18 Accordingly, these plaintiffs have not satisfied PAGA’s 19 administrative exhaustion requirements, and therefore amending 20 the Second Amended Complaint’s PAGA claim to add them as 21 additional PAGA representatives would be futile. This conclusion 22 receives support from prior decisions by courts in California, 23 which have repeatedly dismissed PAGA claims or denied amendments 24 thereto where plaintiffs had not notified the LWDA within one 25 year of the violations they sought to challenge in court and 26 before bringing a PAGA action. See Brown, 28 Cal. App. 5th at 27 839-44; Briggs v. OS Rest. Servs., LLC, LA CV18-08457 JAK (AFMx), 28 2020 WL 6260001, at *9 (C.D. Cal. Aug. 26, 2020); Mazzei, 2013 WL 1 6633079, at *5; Wong v. AT&T Mobility Servs. LLC, CV 10-8869-GW 2 (FMOx), 2012 WL 8527485, at *2 (C.D. Cal. July 2, 2012). 3 Plaintiffs argue that, notwithstanding these 4 deficiencies, equitable tolling and relation back principles 5 allow them to tether the amended notices to the original notice 6 Harper submitted, such that they too may be considered to have 7 given timely and proper notice to the LWDA. (See Mot. for Leave 8 to Amend at 12-14 (Docket No. 174).) While Federal Rule of Civil 9 Procedure 15 allows plaintiffs to amend pleadings in civil suits 10 when the amendment “relates back” to the date of the original, 11 see Fed. R. Civ. P. 15(c), California courts have made clear that 12 the relation-back doctrine cannot be used as an end-run around 13 PAGA’s administrative exhaustion requirement, nor can equitable 14 tolling. See Esparza v. Safeway, Inc., 36 Cal. App. 5th 42, 62- 15 63 (2019); Brown, 28 Cal. App. 5th at 840-42. Although Williams 16 v. Veolia Transportation Services, Inc., upon which plaintiffs 17 rely, (see Pl’s Reply at 8-9 (Docket No. 190)), applied equitable 18 tolling to an LWDA notice, see CV 08-2582-GW(AGRx), 2012 WL 19 12960640, at *2 (C.D. Cal. June 28, 2012), the California Court 20 of Appeal has since specifically rejected that decision’s 21 approach, noting its failure to “consider the legislative intent” 22 behind PAGA’s notice requirement. See Brown, 28 Cal. App. 5th at 23 841.3 24 3 In seeking leave to amend the complaint to add these 25 plaintiffs as PAGA representatives, plaintiffs also cite a provision in the PAGA statute enabling plaintiffs to amend 26 complaints to add causes of action under PAGA as a matter of 27 right. (See Pl’s Reply at 12 n.9 (citing Cal. Lab. Code § 2699.3(a)(2)(C)) (Docket No. 190).) However, that provision 28 1 Moreover, even if plaintiffs could properly add 2 additional PAGA representatives via plaintiff Harper’s amended 3 notices, they have already foregone at least one opportunity to 4 do so. Plaintiff Sinclair was named in plaintiffs’ First Amended 5 Notice, submitted to the LWDA on September 9, 2020. (See SAC, 6 Ex. 1 (Docket No. 147).) After accounting for the mandatory 65- 7 day post-notice waiting period before a plaintiff may bring a 8 PAGA action, see Cal. Lab. Code § 2699.3(a)(2)(A), nearly seven 9 months passed before plaintiffs filed the Second Amended 10 Complaint, in which they did not include Sinclair as a proposed 11 PAGA representative. (See SAC (Docket No. 147).) Plaintiffs had 12 ample opportunity to add him as one at that time, which would 13 have obviated the need for another amendment. Because the 14 instant motion fails to explain why they did not, it fails to 15 show the requisite diligence to justify further leave to amend. 16 Similarly, plaintiffs first sought leave to add Turner, 17 Vazquez, and Abascal as plaintiffs to this action on April 16, 18 2021, 49 days before they filed the Second Amended Complaint. 19 (Docket Nos. 121, 147.) Given that Harper and Sinclair 20 undoubtedly knew of their intention to seek leave to add the 21 other plaintiffs to this action in advance of doing so, it is not 22 clear why plaintiffs could not have filed an amended notice with 23 24 60 days of the time periods specified in [section 2699.3],” a requirement plaintiffs have not satisfied here. See Cal. Lab. 25 Code § 2699.3(a)(2)(C); see also, e.g., Hoang v. Vinh Phat Supermarket, Inc., 2:13-cv-704 WBS GGH, 2013 WL 4095042, at *6-8 26 (E.D. Cal. Aug. 13, 2013) (finding plaintiffs cured failure to 27 notify LWDA before filing suit by doing so ten days after filing and by amending complaint within statutory period provided by 28 1 the LWDA seeking to add them at that time, such that plaintiffs 2 could then have added them as proposed PAGA representatives in 3 the Second Amended Complaint as well. Notwithstanding the 4 futility issues discussed above, this suggests that plaintiffs 5 were insufficiently diligent to warrant a third round of 6 amendments, which would further delay resolution of pending 7 motions. See Johnson, 975 F.2d at 609 (noting that parties’ 8 failure to adhere to the scheduling order “undermine[s] the 9 court’s ability to control its docket” and “disrupt[s] the 10 agreed-upon course of the litigation”). 11 Because plaintiffs have not shown the good cause 12 required to gain leave to amend to add plaintiffs Sinclair, 13 Turner, Vazquez, and Abascal as PAGA representatives, and because 14 such amendment would be futile, the court will not grant leave to 15 do so. 16 3. Addition of Labor Code Section 432.5 Allegations 17 Plaintiffs also seek leave to amend the complaint to 18 add alleged violations of Labor Code section 432.5 to Harper’s 19 PAGA claim. (See Mot. for Leave to Amend at 10 (Docket No. 20 174).) They do so to challenge Charter’s assertion of an 21 arbitration agreement against them in May 2021, relying on an 22 amended notice from June 11, 2021, which notified the LWDA of 23 these alleged violations. (See id.; Pl’s Reply at 11 (Docket No. 24 190).) 25 Whether or not this amendment was timely submitted 26 within PAGA’s statute of limitations, a point on which the 27 parties disagree, (see Opp. to Mot. for Leave to Amend at 12-13 28 (Docket No. 188); Pl.’s Reply at 11 (Docket No. 190)), it was not 1 submitted prior to commencement of this PAGA suit. As discussed 2 above, “proper notice” under PAGA requires that an employee 3 notify the LWDA of an alleged Labor Code violation before 4 commencing a civil PAGA suit in which they assert that claim. 5 See Esparza, 36 Cal. App. 5th at 62-63; Brown, 28 Cal. App. 5th 6 at 840; Wong, 2012 WL 8527485, at *2. Because plaintiffs did not 7 do so here, the court concludes that the amendment they seek to 8 make would be futile, and therefore denies them leave to amend to 9 add the alleged section 432.5 violations to their PAGA claim. 10 The court recognizes that plaintiffs allege that the 11 section 432.5 violations occurred in June 2021, well after 12 plaintiff Harper initiated this PAGA action, meaning it was 13 impossible for them to have notified the LWDA of these alleged 14 violations prior to the current action. However, “PAGA claims 15 are different from conventional civil suits,” Kim, 9 Cal. 5th at 16 86, and unlike private causes of action created by other Labor 17 Code provisions, it is not a vehicle by which an employee may 18 freely challenge any alleged Labor Code violation they have 19 experienced. See id. (“[C]ivil penalties recovered on the 20 state’s behalf are intended to ‘remediate present violations and 21 deter future ones,’ not to redress employees’ injuries.”) 22 (quoting Williams, 3 Cal. 5th at 546). 23 Rather, as discussed above, proper compliance with 24 PAGA’s notice requirements, including the requirement that such 25 notice be given before filing suit, is an express condition of 26 the LWDA’s grant of authority to aggrieved employees to enforce 27 the Labor Code on the state’s behalf. See Brown, 28 Cal. App. 28 5th at 835; Williams, 3 Cal. 5th at 545; Kim, 9 Cal. 5th at 86. 1 Although this may mean that in certain cases employees are unable 2 to add new alleged violations to existing PAGA claims in a 3 previously filed case, California has imposed these notice 4 requirements so that it may “retain primacy over private 5 enforcement efforts,” Arias, 46 Cal. 4th at 980, a goal that 6 would be undermined were these requirements not enforced. 7 B. Arbitration Subclasses 8 Plaintiffs also seek leave to amend the Second Amended 9 Complaint to add proposed arbitration subclasses, which would 10 include members of each proposed class whom “Charter contends are 11 bound by a JAMS and/or Solution Channel arbitration agreement.” 12 (Mot. for Leave to Amend at 2 (Docket No. 174); Proposed TAC 13 Redline at ¶ 19 (Docket No. 174-3).) 14 It is unclear to the court what plaintiffs think they 15 would accomplish by such an amendment. However, in their motion, 16 plaintiffs acknowledge that “amending a complaint to plead 17 updated proposed class and subclass definitions is unnecessary.” 18 (Mot. for Leave to Amend at 7 n.1 (Docket No. 174).) By doing 19 so, they concede that they lack the good cause required to obtain 20 leave to make these amendments. See Fed. R. Civ. Proc. 16(b)(4). 21 Accordingly, the court will deny the motion as to the proposed 22 arbitration subclasses. 23 C. Tolling and Relation Back 24 Plaintiffs also seek leave to amend the Second Amended 25 Complaint to add allegations regarding tolling and relation back 26 principles with respect to various claims, including plaintiff 27 Harper’s PAGA claim. (Mot. for Leave to Amend at 2 (Docket No. 28 174).) The inapplicability of these doctrines in the PAGA 1 context is discussed above, rendering these amendments futile to 2 the extent that they are intended to support Harper’s PAGA claim. 3 To the extent that the amendments are intended to 4 support other claims, plaintiffs do not contend that they were 5 unable to include these allegations in the recently filed Second 6 Amended Complaint. Rather, they simply contend that they assumed 7 their original allegations were adequate because Charter did not 8 challenge their sufficiency until its recent motion to dismiss, 9 and they indicate that the proposed amendments are intended to 10 preempt that motion. (Id. at 9-10; see Mot. to Dismiss (Docket 11 No. 163).) 12 To allow plaintiffs leave to amend each time a 13 defendant alleges a deficiency in the most recent amended 14 complaint, before the court can evaluate that alleged deficiency, 15 would be to set up “a continually moving target.” Kane v. 16 Chobani, Inc., 973 F. Supp. 2d 1120, 1136 (N.D. Cal. 2014), 17 vacated on other grounds sub nom. Kane v. Chobani, LLC, 645 F. 18 App’x 593, 594 (9th Cir. 2016). The court has already granted 19 plaintiffs leave to file the Second Amended Complaint -- after 20 deciding a motion for summary judgment, and after plaintiffs 21 filed a motion for class certification -- and barely four months 22 have elapsed since then. Plaintiffs cannot continue to amend 23 their complaint indefinitely, particularly this late in this 24 case. “[A]t some point, the litigation must be resolved.” Id. 25 Because plaintiffs’ request for leave to amend to 26 include these allegations does not demonstrate diligence, the 27 28 1 court will deny the motion as to these amendments.4 2 D. UCL Claim 3 Lastly, plaintiffs seek to amend the Second Amended 4 Complaint to allege, for purposes of their UCL claim, that they 5 lack an adequate remedy at law for wages owed for a period prior 6 to the expiration of the Labor Code’s statute of limitations, as 7 well as for violations of Labor Code provisions that do not 8 create a private right of action. (Mot. for Leave to Amend at 2 9 (Docket No. 174); Proposed TAC Redline at ¶ 98 (Docket No. 174- 10 3).) Again, plaintiffs admit that these proposed amendments are 11 in response to Charter’s motion to dismiss, which they here seek 12 to preempt. (Mot. for Leave to Amend at 9 (Docket No. 174).) 13 As indicated above, the court will not grant plaintiffs 14 leave to amend so that they may evade an already filed motion to 15 dismiss, particularly where they have not shown that it was not 16 possible or practicable to include such amendments in the Second 17 Amended Complaint. At this late stage, the time to cure any 18 deficiencies challenged in defendant’s motion would be after 19 resolution thereof, if the court permits plaintiffs to do so. 20 Because plaintiffs have not shown good cause for leave to amend 21 their UCL claim, the court declines grant it at this time. 22 23 24 25 4 Moreover, as with their request to amend to add 26 arbitration subclasses, plaintiffs here also admit that the 27 amendments are unnecessary. (See Mot. for Leave to Amend at 10 (Docket No. 174).) If that is plaintiffs’ position, it is hard 28 ee EEE I IIR EE IEE IE IEE OS IRIE SCONE IR EE ee 1 IT IS THEREFORE ORDERED that plaintiffs’ motion to 2] modify the scheduling order and for leave to file a Third Amended 3 Complaint (Docket No. 174) be, and the same hereby is, DENIED. 4 Dated: October 12, 2021 he bleom (hi.te— ° WILLIAMB.SHUBB }}}©. | 6 UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19