UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA ----oo0oo----

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.

----oo0oo---- Plaintiffs Lionel Harper, Daniel Sinclair, Hassan Turner, Luis Vazquez, and Pedro Abascal (“plaintiffs”) brought this putative class action against their former employer, Charter Communications, alleging various violations of the California Labor Code. Among other things, plaintiffs allege that Charter misclassified them and other California employees as “outside salespersons,” failed to pay them overtime wages, failed to provide meal periods or rest breaks (or premium wages in lieu thereof), and provided inaccurate wage statements. (See generally Second Amended Complaint (“SAC”) (Docket No. 147).) Plaintiffs now move to modify the scheduling order and for leave to amend their complaint a third time. (Mot. for Leave to Amend (Docket No. 174).) I. Factual Background Charter is a broadband connectivity company and cable operator serving business and residential customers under the Spectrum brand, among others. Plaintiffs Harper and Sinclair worked as small/medium sized business Account Executives (“AEs”) at Charter’s Redding, California location. (SAC at ¶¶ 5-6, 12.) Plaintiffs Turner, Vazquez, and Abascal worked as Direct Sales Representatives (“DSRs”) at Charter’s Irwindale, Bakersfield, and Anaheim, California locations, respectively. (Id. at ¶¶ 7-9, 12.) Plaintiffs allege that Charter classifies AEs and DSRs as “exempt” employees. (See id. at ¶ 13.) Plaintiffs claim that Charter erroneously classified them as exempt employees by mistakenly classifying them as “outside salespersons.” (See id.; Cal. Code Regs. tit. 8, § 11070.) Under California law, “outside salespersons” are exempt from overtime, minimum wage, meal period, and rest period requirements. See Cal. Lab. Code § 1171. Importantly, under California case law, employees are only subject to the outside salesperson exception if their employer actually had an expectation that they spend more than half their time outside the office engaged in sales activities, and if that expectation was reasonable. See Ramirez v. Yosemite Water Co., 20 Cal. 4th 785, 790 (Cal. 1999). Plaintiffs’ claim is essentially that Charter did not actually expect them to spend 50% of their time outside of the office both during and after their training weeks, and that even if it did, that expectation was unreasonable given the number of tasks Charter expected them to complete that required them to be in the office. (See generally SAC (Docket No. 147).) Plaintiffs’ claims of failure to pay overtime wages, failure to provide meal periods or rest breaks (or premium wages in lieu thereof), and failure to provide accurate wage statements are derivative of their misclassification claim. Because Charter misclassified them, plaintiffs contend, Charter necessarily failed to pay them overtime and failed to provide necessary rest and meal breaks. (See id.) Plaintiffs further claim that Charter failed to pay them commission wages to which they were entitled and provided them with inaccurate and misleading wage statements.1 (Id.) Plaintiffs seek to represent two classes of Charter employees: (1) all California employees who were classified as exempt outside salespersons, and (2) all California employees who were in positions eligible to earn commission wages. (See id. at ¶ 19.) II. Procedural Background Plaintiff Harper filed his initial complaint in Shasta

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 County Superior Court on May 3, 2019. Charter removed the case to this court on May 17, 2019. (Docket No. 1.) Harper sought leave to amend his complaint and add another named plaintiff, Daniel Sinclair, on October 30, 2019. (Docket No. 36.) The court granted Harper’s request on December 13, 2019. (See First Amended Complaint (Docket No. 45).) The two plaintiffs sought leave to again amend their complaint to add three additional named plaintiffs, Hassan Turner, Luis Vazquez, and Pedro Abascal, on April 16, 2021. (Docket No. 121.) The court granted their request on June 3, 2021. (Docket No. 146.) The court issued a pretrial scheduling order on October 9, 2019. (Docket No. 34.) The parties amended the scheduling order via stipulation on seven occasions: on January 29, May 4, June 25, September 17, and December 11, 2020, and again on January 29 and June 23, 2021. (Docket Nos. 49, 59, 69, 82, 91, 102, 158.) On December 18, 2020, Charter filed a motion for summary judgment. (Docket No. 93.) The court denied most of Charter’s motion on February 16, 2021, holding that triable issues of fact existed as to the majority of plaintiffs’ claims, including whether plaintiffs were misclassified as “outside salespersons.” (See Docket No. 111.) After withdrawing their initial motion for class certification pursuant to the court’s order granting plaintiffs leave to file the Second Amended Complaint (Docket No. 146), plaintiffs filed a renewed motion for class certification on June 14, 2021. (Docket No. 149.) Defendant then filed a motion to compel arbitration against plaintiff Harper on July 9, 2021 (Docket No. 162), a partial motion to dismiss on the same day (Docket No. 163), and a motion to compel arbitration against plaintiffs Turner, Vazquez, and Abascal on August 6, 2021 (Docket No. 165). On August 30, 2021, plaintiffs filed the instant motion to modify the scheduling order and for leave to file a Third Amended Complaint (“TAC”), (see Mot. for Leave to Amend (Docket No. 174)), and the court heard oral argument on October 4, 2021. Plaintiffs’ motion seeks to make various changes to the complaint, namely adding allegations related to the PAGA claims; adding plaintiffs Sinclair, Turner, Vazquez, and Abascal as proposed PAGA representatives; adding proposed arbitration subclasses; adding allegations relating to plaintiffs’ UCL claim; and adding allegations relating to tolling and relation back of various claims. (See generally id.) III. Discussion Once the district court has issued a pretrial scheduling order pursuant to Federal Rule of Civil Procedure 16, which establishes a timetable for amending pleadings, that rule’s standards control the court’s analysis of whether leave to amend a pleading should be granted. See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607–08 (9th Cir. 1992). Under Rule 16, “[a] schedule may be modified only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). “Unlike [Federal Rule of Civil Procedure] 15(a)’s liberal amendment policy which focuses on the bad faith of the party seeking to interpose an amendment and the prejudice to the opposing party, Rule 16(b)’s ‘good cause’ standard primarily considers the diligence of the party seeking the amendment.” Johnson, 975 F.2d at 609. “If that party was not diligent, the inquiry should end.” Id. Although “the focus of the inquiry is upon the moving party’s reasons for seeking modification,” a court may also consider prejudice to the opposing party in making its determination. Id. Once a party seeking amendment has shown “good cause,” it must also show that the amendment is proper under Rule 15. See id. at 608 (citations omitted). Under that rule, “[t]he court should freely give leave [to amend] when justice so requires.” Fed. R. Civ. P. 15(a)(2); see also Johnson, 975 F.2d at 607 (Rule 15 embodies a “liberal amendment policy”). However, leave should not be granted under Rule 15 if amendment (1) would cause prejudice to the opposing party, (2) is sought in bad faith, (3) creates undue delay, or (4) is futile. Chudacoff v. Univ. Med. Ctr. of S. Nev., 649 F.3d 1143, 1153 (9th Cir. 2011) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). “Because Rule 16(b)’s ‘good cause’ inquiry essentially incorporates the first three factors, if a court finds that good cause exists, it should then deny a motion for leave to amend only if such amendment would be futile.” J & J Sports Prods., Inc. v. Maravilla, 2:12-cv-02899 WBS EFB, 2013 WL 4780764, at *1 (E.D. Cal. Sept. 5, 2013); see also Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir. 2004) (“Futility alone can justify the denial of a motion for leave to amend.”). A. PAGA Amendments Plaintiffs seek leave to amend the Second Amended Complaint to (1) add allegations regarding amended PAGA notices they subsequently submitted to California’s Labor Workforce Development Agency (“LWDA”), which they updated to include plaintiffs Sinclair, Turner, Vazquez, and Abascal, and add those plaintiffs as proposed PAGA representatives in this action; and (2) add alleged violations of Labor Code section 432.5, which were also submitted to the LWDA through the amended notices. (Mot. for Leave to Amend at 2-3 (Docket No. 174); Docket No. 174- 2, Exh. 1.) Charter opposes plaintiffs’ motion, arguing that because plaintiffs Sinclair, Turner, Vazquez, and Abascal joined those amended notices after PAGA’s one-year statute of limitations had run and this litigation had commenced -- and because the amended notices added other claims and allegations after the statute of limitations had run -- the amended notices cannot serve as predicates for the PAGA allegations plaintiffs seek to add to their complaint. (See Opp. to Mot. for Leave to Amend at 9-14 (Docket No. 188).) Accordingly, Charter contends, plaintiffs’ requested amendments do not demonstrate the requisite diligence, are futile, or both. (See id.) For the following reasons, the court agrees. 1. PAGA Background and Requirements California’s Private Attorney General Act (“PAGA”), Cal. Lab. Code §§ 2698 et seq., was enacted to remedy systemic underenforcement of worker protections. Williams v. Super. Ct., 3 Cal. 5th 531, 545 (2017). To achieve this goal, PAGA allows an employee to bring a civil action against an employer for violations of the Labor Code. See Cal. Lab. Code § 2699(a). In doing so, PAGA “deputiz[es] employees harmed by labor violations to sue on behalf of the state,” in part for the benefit of “other affected employees.” Williams, 3 Cal. 5th at 545. A deputized employee “act[s] as [a] private attorney[ ] general, . . . with the understanding that labor law enforcement agencies . . . retain primacy over private enforcement efforts.” Arias v. Super. Ct., 46 Cal. 4th 969, 980 (2009); see also Kim v. Reins Int’l Cal., Inc., 9 Cal. 5th 73, 86 (2020) (“The Legislature’s sole purpose in enacting PAGA was to augment the limited enforcement capability of the [LWDA] by empowering employees to enforce the Labor Code as representatives of the Agency. Accordingly, a PAGA claim is an enforcement action between the LWDA and the employer, with the PAGA plaintiff acting on behalf of the government.”) (internal quotations and citations omitted, alterations in original). The LWDA safeguards this primacy through PAGA’s notice requirement. “First, . . . the employee must give ‘written notice . . . to the [LWDA] and the employer of the specific provisions . . . alleged to have been violated, including the facts and theories to support the alleged violation.’” Alcantar v. Hobart Serv., 800 F.3d 1047, 1056 (9th Cir. 2015) (quoting Cal. Lab. Code § 2699.3(a)(1)); see Arias, 46 Cal. 4th at 981 (same). Then, if the LWDA notifies the employee and employer within 60 days that it does not intend to investigate the alleged violation(s), or if no notice is provided within 65 days, the employee may bring a PAGA action to recover civil penalties. Cal. Lab. Code §§ 2699.3(a)(2)(A), 2699(a). PAGA’s notice requirement was implemented to “allow[ ] the [LWDA] to act first on more serious violations such as wage and hour violations and give employers an opportunity to cure less ‘serious’ violations.” Dunlap v. Super. Ct., 142 Cal. App. 4th 330, 338-39 (2d Dist. 2006) (quoting Cal. S. Rules Comm., Off. of S. Floor Analyses, Bill Analysis for SB1809, at 5-6 (Aug. 27, 2004)); see also Alcantar, 800 F.3d at 1057 (notice requirement exists “to allow the [LWDA] to intelligently assess the seriousness of the alleged violations” and “permit the employer to determine what policies or practices are being complained of so as to know whether to fold or fight”); Williams, 3 Cal. 5th at 545-46 (purpose of LWDA notice requirement “is to afford . . . the LWDA[ ] the opportunity to decide whether to allocate scarce resources to an investigation, a decision better made with knowledge of the allegations an aggrieved employee is making and any basis for those allegations”). To effectuate these goals, courts adjudicating PAGA claims require that plaintiffs serving as PAGA representatives have “compl[ied] with the statute’s notice requirements” before bringing suit. See Alcantar, 800 F.3d at 1056; Brown v. Ralphs Grocery Co., 28 Cal. App. 5th 824, 834-36 (2d Dist. 2018); Khan v. Dunn-Edwards Corp., 19 Cal. App. 5th 804, 808-810 (2d Dist. 2018). 2. Addition of PAGA Representatives As noted above, an aggrieved employee bringing a PAGA claim does so on behalf of the state and for the benefit of other aggrieved employees. (See also SAC at ¶¶ 98-99 (establishing that plaintiff Harper seeks to pursue “representative PAGA claims” “on behalf of all class members who are also aggrieved employees under PAGA”) (Docket No. 147).) Accordingly, and as counsel for plaintiffs conceded at oral argument, it would be redundant to have multiple employees serve as PAGA representatives here, given that doing so would not expand the PAGA action’s scope. At the outset, this indicates that plaintiffs lack good cause to amend the complaint to add plaintiffs Sinclair, Turner, Vazquez, and Abascal as PAGA representatives.2 Further, although neither the parties nor the court have identified precedent addressing whether plaintiffs may add PAGA representatives to an existing action based on late-filed amendments to another, current representative’s original LWDA notice, available precedent and the legislative intent behind PAGA’s notice requirement suggest that they cannot. “Proper notice under [Labor Code] section 2699.3 is a ‘condition’ of a PAGA lawsuit,” Brown, 28 Cal. App. at 835 (quoting Williams, 3 Cal. 5th at 545), i.e., a requirement that must be satisfied before a plaintiff may bring a civil PAGA action. See Brown, 28 Cal. App. at 841 (noting “the intent of the Legislature to require compliance with administrative procedures as a condition to filing an action” under PAGA); Mazzei v. Regal Ent. Grp., SACV 13-1284-DOC (AGRx), 2013 WL 6633079, at *5 (C.D. Cal. Dec. 13, 2013) (describing “PAGA’s administrative exhaustion requirements” as a “condition

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 precedent” to suit) (citation omitted). To enable the LWDA to decide whether to investigate alleged violations itself, and as a condition of the LWDA’s delegation of enforcement authority to individual employees, “proper notice” under PAGA requires that employees seeking to serve as PAGA representatives in civil actions first notify the LWDA within one year of an alleged Labor Code violation. See Brown, 28 Cal. App. 5th at 839. Plaintiffs Sinclair, Turner, Vazquez, and Abascal did not do so. Rather, although their terms of employment with Charter ended in April 2017, October 2018, March 2020, and January 2020, respectively, (SAC at ¶¶ 6-9 (Docket No. 147)), Sinclair did not join plaintiff Harper’s LWDA notice via amendment until September 2020, (see id., Ex. 1), and Turner, Vazquez, and Abascal did not do so until June 2021, (see Mot. for Leave to Amend, Ex. 2 (Docket No. 174-2)), well after this PAGA action had commenced. None filed a notice prior to these amendments. (See SAC (Docket No. 147).) Accordingly, these plaintiffs have not satisfied PAGA’s administrative exhaustion requirements, and therefore amending the Second Amended Complaint’s PAGA claim to add them as additional PAGA representatives would be futile. This conclusion receives support from prior decisions by courts in California, which have repeatedly dismissed PAGA claims or denied amendments thereto where plaintiffs had not notified the LWDA within one year of the violations they sought to challenge in court and before bringing a PAGA action. See Brown, 28 Cal. App. 5th at 839-44; Briggs v. OS Rest. Servs., LLC, LA CV18-08457 JAK (AFMx), 2020 WL 6260001, at *9 (C.D. Cal. Aug. 26, 2020); Mazzei, 2013 WL 6633079, at *5; Wong v. AT&T Mobility Servs. LLC, CV 10-8869-GW (FMOx), 2012 WL 8527485, at *2 (C.D. Cal. July 2, 2012). Plaintiffs argue that, notwithstanding these deficiencies, equitable tolling and relation back principles allow them to tether the amended notices to the original notice Harper submitted, such that they too may be considered to have given timely and proper notice to the LWDA. (See Mot. for Leave to Amend at 12-14 (Docket No. 174).) While Federal Rule of Civil Procedure 15 allows plaintiffs to amend pleadings in civil suits when the amendment “relates back” to the date of the original, see Fed. R. Civ. P. 15(c), California courts have made clear that the relation-back doctrine cannot be used as an end-run around PAGA’s administrative exhaustion requirement, nor can equitable tolling. See Esparza v. Safeway, Inc., 36 Cal. App. 5th 42, 62- 63 (2019); Brown, 28 Cal. App. 5th at 840-42. Although Williams v. Veolia Transportation Services, Inc., upon which plaintiffs rely, (see Pl’s Reply at 8-9 (Docket No. 190)), applied equitable tolling to an LWDA notice, see CV 08-2582-GW(AGRx), 2012 WL 12960640, at *2 (C.D. Cal. June 28, 2012), the California Court of Appeal has since specifically rejected that decision’s approach, noting its failure to “consider the legislative intent” behind PAGA’s notice requirement. See Brown, 28 Cal. App. 5th at 841.3

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 Moreover, even if plaintiffs could properly add additional PAGA representatives via plaintiff Harper’s amended notices, they have already foregone at least one opportunity to do so. Plaintiff Sinclair was named in plaintiffs’ First Amended Notice, submitted to the LWDA on September 9, 2020. (See SAC, Ex. 1 (Docket No. 147).) After accounting for the mandatory 65- day post-notice waiting period before a plaintiff may bring a PAGA action, see Cal. Lab. Code § 2699.3(a)(2)(A), nearly seven months passed before plaintiffs filed the Second Amended Complaint, in which they did not include Sinclair as a proposed PAGA representative. (See SAC (Docket No. 147).) Plaintiffs had ample opportunity to add him as one at that time, which would have obviated the need for another amendment. Because the instant motion fails to explain why they did not, it fails to show the requisite diligence to justify further leave to amend. Similarly, plaintiffs first sought leave to add Turner, Vazquez, and Abascal as plaintiffs to this action on April 16, 2021, 49 days before they filed the Second Amended Complaint. (Docket Nos. 121, 147.) Given that Harper and Sinclair undoubtedly knew of their intention to seek leave to add the other plaintiffs to this action in advance of doing so, it is not clear why plaintiffs could not have filed an amended notice with

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 the LWDA seeking to add them at that time, such that plaintiffs could then have added them as proposed PAGA representatives in the Second Amended Complaint as well. Notwithstanding the futility issues discussed above, this suggests that plaintiffs were insufficiently diligent to warrant a third round of amendments, which would further delay resolution of pending motions. See Johnson, 975 F.2d at 609 (noting that parties’ failure to adhere to the scheduling order “undermine[s] the court’s ability to control its docket” and “disrupt[s] the agreed-upon course of the litigation”). Because plaintiffs have not shown the good cause required to gain leave to amend to add plaintiffs Sinclair, Turner, Vazquez, and Abascal as PAGA representatives, and because such amendment would be futile, the court will not grant leave to do so. 3. Addition of Labor Code Section 432.5 Allegations Plaintiffs also seek leave to amend the complaint to add alleged violations of Labor Code section 432.5 to Harper’s PAGA claim. (See Mot. for Leave to Amend at 10 (Docket No. 174).) They do so to challenge Charter’s assertion of an arbitration agreement against them in May 2021, relying on an amended notice from June 11, 2021, which notified the LWDA of these alleged violations. (See id.; Pl’s Reply at 11 (Docket No. 190).) Whether or not this amendment was timely submitted within PAGA’s statute of limitations, a point on which the parties disagree, (see Opp. to Mot. for Leave to Amend at 12-13 (Docket No. 188); Pl.’s Reply at 11 (Docket No. 190)), it was not submitted prior to commencement of this PAGA suit. As discussed above, “proper notice” under PAGA requires that an employee notify the LWDA of an alleged Labor Code violation before commencing a civil PAGA suit in which they assert that claim. See Esparza, 36 Cal. App. 5th at 62-63; Brown, 28 Cal. App. 5th at 840; Wong, 2012 WL 8527485, at *2. Because plaintiffs did not do so here, the court concludes that the amendment they seek to make would be futile, and therefore denies them leave to amend to add the alleged section 432.5 violations to their PAGA claim. The court recognizes that plaintiffs allege that the section 432.5 violations occurred in June 2021, well after plaintiff Harper initiated this PAGA action, meaning it was impossible for them to have notified the LWDA of these alleged violations prior to the current action. However, “PAGA claims are different from conventional civil suits,” Kim, 9 Cal. 5th at 86, and unlike private causes of action created by other Labor Code provisions, it is not a vehicle by which an employee may freely challenge any alleged Labor Code violation they have experienced. See id. (“[C]ivil penalties recovered on the state’s behalf are intended to ‘remediate present violations and deter future ones,’ not to redress employees’ injuries.”) (quoting Williams, 3 Cal. 5th at 546). Rather, as discussed above, proper compliance with PAGA’s notice requirements, including the requirement that such notice be given before filing suit, is an express condition of the LWDA’s grant of authority to aggrieved employees to enforce the Labor Code on the state’s behalf. See Brown, 28 Cal. App. 5th at 835; Williams, 3 Cal. 5th at 545; Kim, 9 Cal. 5th at 86. Although this may mean that in certain cases employees are unable to add new alleged violations to existing PAGA claims in a previously filed case, California has imposed these notice requirements so that it may “retain primacy over private enforcement efforts,” Arias, 46 Cal. 4th at 980, a goal that would be undermined were these requirements not enforced. B. Arbitration Subclasses Plaintiffs also seek leave to amend the Second Amended Complaint to add proposed arbitration subclasses, which would include members of each proposed class whom “Charter contends are bound by a JAMS and/or Solution Channel arbitration agreement.” (Mot. for Leave to Amend at 2 (Docket No. 174); Proposed TAC Redline at ¶ 19 (Docket No. 174-3).) It is unclear to the court what plaintiffs think they would accomplish by such an amendment. However, in their motion, plaintiffs acknowledge that “amending a complaint to plead updated proposed class and subclass definitions is unnecessary.” (Mot. for Leave to Amend at 7 n.1 (Docket No. 174).) By doing so, they concede that they lack the good cause required to obtain leave to make these amendments. See Fed. R. Civ. Proc. 16(b)(4). Accordingly, the court will deny the motion as to the proposed arbitration subclasses. C. Tolling and Relation Back Plaintiffs also seek leave to amend the Second Amended Complaint to add allegations regarding tolling and relation back principles with respect to various claims, including plaintiff Harper’s PAGA claim. (Mot. for Leave to Amend at 2 (Docket No. 174).) The inapplicability of these doctrines in the PAGA context is discussed above, rendering these amendments futile to the extent that they are intended to support Harper’s PAGA claim. To the extent that the amendments are intended to support other claims, plaintiffs do not contend that they were unable to include these allegations in the recently filed Second Amended Complaint. Rather, they simply contend that they assumed their original allegations were adequate because Charter did not challenge their sufficiency until its recent motion to dismiss, and they indicate that the proposed amendments are intended to preempt that motion. (Id. at 9-10; see Mot. to Dismiss (Docket No. 163).) To allow plaintiffs leave to amend each time a defendant alleges a deficiency in the most recent amended complaint, before the court can evaluate that alleged deficiency, would be to set up “a continually moving target.” Kane v. Chobani, Inc., 973 F. Supp. 2d 1120, 1136 (N.D. Cal. 2014), vacated on other grounds sub nom. Kane v. Chobani, LLC, 645 F. App’x 593, 594 (9th Cir. 2016). The court has already granted plaintiffs leave to file the Second Amended Complaint -- after deciding a motion for summary judgment, and after plaintiffs filed a motion for class certification -- and barely four months have elapsed since then. Plaintiffs cannot continue to amend their complaint indefinitely, particularly this late in this case. “[A]t some point, the litigation must be resolved.” Id. Because plaintiffs’ request for leave to amend to include these allegations does not demonstrate diligence, the

court will deny the motion as to these amendments.4 D. UCL Claim Lastly, plaintiffs seek to amend the Second Amended Complaint to allege, for purposes of their UCL claim, that they lack an adequate remedy at law for wages owed for a period prior to the expiration of the Labor Code’s statute of limitations, as well as for violations of Labor Code provisions that do not create a private right of action. (Mot. for Leave to Amend at 2 (Docket No. 174); Proposed TAC Redline at ¶ 98 (Docket No. 174- 3).) Again, plaintiffs admit that these proposed amendments are in response to Charter’s motion to dismiss, which they here seek to preempt. (Mot. for Leave to Amend at 9 (Docket No. 174).) As indicated above, the court will not grant plaintiffs leave to amend so that they may evade an already filed motion to dismiss, particularly where they have not shown that it was not possible or practicable to include such amendments in the Second Amended Complaint. At this late stage, the time to cure any deficiencies challenged in defendant’s motion would be after resolution thereof, if the court permits plaintiffs to do so. Because plaintiffs have not shown good cause for leave to amend their UCL claim, the court declines grant it at this time.

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 }}}©. | UNITED STATES DISTRICT JUDGE