United States District Court, E.D. California
matter is before the court on defendant’s motion to
dismiss or strike plaintiff’s requests for damages,
civil penalties, and injunctive relief in connection with his
fifth claim, for failure to provide notice of paid sick leave
in violation of California Labor Code section
246(h). ECF No. 9. Plaintiff opposes in part the
motion. ECF No. 11. The court held a hearing and initial
scheduling conference on May 18, 2016, at which the court
granted the parties leave to submit supplemental briefing.
Specifically, the court allowed the parties seven days to
file supplemental briefing “(1) addressing whether
plaintiff’s PAGA claim is barred by Cal. Lab. Code
sections 2699.3 and 2699.5, and (2) responding to
plaintiff’s citation of Willis v. California,
22 Cal.App.4th 287 (1994), for the first time at
hearing.” Minutes, May 18, 2016, ECF No. 14.
25, 2016, the parties each filed a supplemental brief.
Pl.’s Suppl. Brief, ECF No. 15; Def.’s Suppl.
Brief, ECF No. 16. Both briefs go beyond the scope of the
briefing allowed by the court, as follows. Plaintiff
improperly argues that he has standing to pursue injunctive
relief under sections 226 and 248.5. Pl.’s Suppl. Brief
at 4-5 (“Section II.C”); see
Def.’s Objections & Mot. Strike, ECF No. 17 (moving
to strike Section II.C). Defendant, in turn, improperly
raises the new argument that plaintiff’s claim for
civil penalties for the alleged violation of section 246(h)
is barred by section 2699(g)(2). Def.’s Suppl. Brief at
1-3. Although defendant attempts to connect this argument to
its previous argument that plaintiff’s claim is barred
by section 2699.3 and 2699.5, see Def.’s
Suppl. Brief at 1, section 2699(g)(2) provides an independent
basis for barring a claim, which was not previously discussed
in the briefing or at hearing. The court has discretion to
disregard these unauthorized arguments. See
generally E.D. Cal. L.R. 230; cf. Fox v. Citicorp
Credit Servs., Inc., 15 F.3d 1507, 1514 n.6 (9th Cir.
1994); Stewart v. Wachowski, No. 03-2873, 2004 WL
2980783, at *11 (C.D. Cal. Sept. 28, 2004). However, in the
interest of resolving defendant’s motion to dismiss on
the merits, the court will instead allow each party to file
further supplemental briefing responding to these arguments.
foregoing reasons, the court ORDERS the following:
fourteen days of the issuance of this order, defendant may
file a supplemental brief responding to Section II.C of
plaintiff’s May 25, 2016 brief as to plaintiff’s
standing to pursue injunctive relief under California Labor
Code sections 226 and 248.5. Defendant’s objection and
motion to strike Section II.C of plaintiff’s May 25,
2016 brief, ECF No. 17, is overruled. Within the same
fourteen day period, plaintiff may file a supplemental brief
responding to defendant’s new argument in its May 25,
2016 brief that plaintiffs claim for civil penalties for the
alleged violation of section 246(h) is barred by section
2699(g)(2). Supplemental briefing, if any, shall not exceed
five pages. If the parties’ supplemental briefing again
goes beyond the scope of the briefing allowed by the court,
the court will disregard such briefing and may issue other
addition, within fourteen days of the issuance of this order,
the parties are ORDERED to identify any state laws other than
the Private Attorneys General Act of 2004, Cal. Lab. Code
§ 2698 et seq., that allow a private person to
enforce the Healthy Workplaces, Healthy Families Act of 2014
(“the Act”), Cal. Lab. Code §§ 245-49,
on behalf of the public. See Cal. Lab. Code §
248.5(e) (limiting the relief available to a private person
enforcing the Act “on behalf of the public as provided
for under applicable state law”). The parties shall
submit a list of authorities, if any, without accompanying
plaintiff is ORDERED to show cause within fourteen days of
the issuance of this order why the court should not dismiss
the “Doe” defendants.
 The Ninth Circuit provides,
“‘[Plaintiffs] should be given an opportunity
through discovery to identify  unknown
defendants’” “in circumstances . . .
‘where the identity of the alleged defendant [is] not
 known prior to the filing of a complaint.’”
Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir.
1999) (quoting Gillespie v. Civiletti, 629 F.2d 637,
642 (9th Cir. 1980)) (modifications in original). Federal
Rule of Civil Procedure 4(m), as recently amended, provides
for dismissal of defendants not served within ninety days of
filing of the complaint unless plaintiff shows good cause.
See Glass v. Fields, No. 09-00098, 2011 U.S. Dist.
LEXIS 97604 (E.D. Cal. Aug. 31, 2011); Hard Drive Prods.
v. Does, No. 11-01567, 2011 U.S. Dist. LEXIS 109837, at
*2-4 (N.D. Cal. Sept. 27, 2011). Plaintiff will be ordered to
show cause why the court should not dismiss the
 All statutory citations are to the
California Labor Code unless otherwise ...