1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 MIKE EINSTEIN, Case No. 21-cv-00300-CRB

9 Plaintiff, ORDER GRANTING MOTION TO 10 v. DISMISS CLAIMS 4 AND 5

11 RADIO THERMOSTAT COMPANY OF AMERICA INC., et al., 12 Defendants. 13 Plaintiff Mike Einstein is suing his former employer Defendants Radio Thermostat 14 Company of America, Inc., Tim Simon, Inc., and Tim Simon, alleging eight claims. In 15 Claim 4, Einstein alleges that Defendants “knowingly misclassif[ied] [its workers] as 16 independent contractors, in violation of California Labor Code Section 226.8.” Compl. 17 (dkt. 1) ¶ 41. In Claim 5, he seeks civil penalties, alleging that Defendants failed to furnish 18 accurate paystubs, in violation of Labor Code § 226(a). Id. ¶¶ 44, 46–47. 19 Simon moved to dismiss these two claims. Mot. to Dismiss (dkt. 29); see Fed. R. 20 Civ. P. 12(b)(6). Einstein does not oppose. Statement of Non-Opposition (dkt. 36). 21 The Court agrees that both claims lack “a cognizable legal theory.” Godecke v. 22 Kinetic Concepts, Inc.,

(9th Cir. 2019). Claim 4 fails because Labor 23 Code § 226.8 does not create a private right of action. Noe v. Superior Court,

App. 4th 316, 334 (2015). Claim 5 fails because Einstein’s employment ended in 2019, so 25 the one-year statute of limitations forecloses the recovery of civil penalties. See Compl. 26 ¶ 23;

. Amendment of either claim would be futile. See 27 Leadsinger, Inc. v. BMG Music Pub.,

(9th Cir. 2008). 1 For the foregoing reasons, the Court dismisses Claims 4 and 5 with prejudice. 2 IT IS SO ORDERED. 3 Dated: October 27, 2021 Zz = CHARLES R. BREYER 4 United States District Judge 5 6 7 8 9 10 11 12

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