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MICHAEL R. SIMMONDS (SBN 96238)

msimmonds@snllp.com

TOMIO B. NARITA(CA SBN 156576)

tnarita@snllp.com

JENNIFER L. YAZDI (SBN 301868)

jyazdi@snllp.com

RISHI GUPTA (SBN 313079)

rgupta@snllp.com

SIMMONDS & NARITA LLP

44 Montgomery Street, Suite 3010

San Francisco, CA 94104-4816

Telephone: (415) 283-1000

Attorneys for Defendant

Libre By Nexus, Inc.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

JUAN QUINTANILLA VASQUEZ

and GABRIELA PERDOMO ORTIZ,

and VICTOR HUGO CATALAN

MOLINA, individually and on behalf

of all others similarly situated,

Plaintiffs,

vs.

LIBRE BY NEXUS, INC. and JOHN

DOES 1-50,

Defendants.

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CASE NO.: 4:17-cv-00755-CW

DEFENDANT’S NOTICE OF

MOTION AND MOTION TO

DISMISS COUNTS V AND VI OF

THE SECOND AMENDED

COMPLAINT; MEMORANDUM OF

POINTS AND AUTHORITIES IN

SUPPORT

Date: August 29, 2017

Time: 2:30

Courtroom: TBD

VASQUEZ, et. al. v. LIBRE BY NEXUS, INC. (CASE NO.: 4:17-cv-00755-CW)

DEFENDANT LIBRE BY NEXUS, INC.’S MOTION TO DISMISS SECOND AMENDED COMPLAINT

Case 4:17-cv-00755-CW Document 34 Filed 07/10/17 Page 1 of 13
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TO THE COURT, ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE THAT on August 29, 2017, at 2:30 p.m. in a

courtroom in the above Court to be assigned for the hearing, at 1301 Clay Street,

Oakland, CA 94612, the Honorable Claudia A. Wilken presiding, defendant Libre By

Nexus, Inc. ("Defendant") will and hereby does move this Court, pursuant to Rule

12(b)(6) of the Federal Rules of Civil Procedure, for an Order dismissing Counts V

and VI of the Second Amended Complaint. 

This motion is made on the grounds that Plaintiffs have failed to state a claim

upon which relief can be granted under 15 U.S.C. § 1692, et seq., the Fair Debt

Collections Practices Act (“FDCPA”), or under California Civil Code § 1632 et seq.,

the California Translation Act, because Plaintiffs have failed to plead sufficient facts

to constitute a valid claim for relief.

The Motion will be based on this Notice of Motion and Motion, the

Memorandum of Points and Authorities in Support of the Motion, and such other and

further evidence or argument as the Court may allow.

DATED: July 10, 2017 SIMMONDS & NARITA LLP

MICHAEL R. SIMMONDS

TOMIO B. NARITA

JENNIFER L. YAZDI

RISHI GUPTA

 

By: /s/ Rishi Gupta 

 Rishi Gupta

Attorneys for Defendant

Libre By Nexus, Inc.

VASQUEZ, et. al. v. LIBRE BY NEXUS, INC. (CASE NO.: 4:17-cv-00755-CW)

DEFENDANT LIBRE BY NEXUS, INC.’S MOTION TO DISMISS SECOND AMENDED COMPLAINT 1

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TABLE OF CONTENTS

I. INTRODUCTION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. ALLEGATIONS OF THE SECOND AMENDED COMPLAINT. . . . . . . . . . 2

III. ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

A. Standards Governing Motions To Dismiss . . . . . . . . . . . . . . . . . . . . . . 3

B. Plaintiffs Have Not Plead A Valid Claim Under The FDCPA. . . . . . . . 4

C. Plaintiff's Claim Under Section 1632 Of The California Civil Code Is

Barred By The One-Year Statute of Limitations. . . . . . . . . . . . . . . . . . . 6

IV. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

VASQUEZ, et. al. v. LIBRE BY NEXUS, INC. (CASE NO.: 4:17-cv-00755-CW)

DEFENDANT LIBRE BY NEXUS, INC.’S MOTION TO DISMISS SECOND AMENDED COMPLAINT i

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TABLE OF AUTHORITIES

FEDERAL CASES

Ashcroft v. Iqbal, 

556 U.S. 662 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Amelina v. Manufacturers & Traders Trust Co., 

2015 WL 1138345 (S.D. Cal. Mar. 12, 2015).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Bell Atl. Corp. v. Twombly, 

550 U.S. 544 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Conley v. Gibson, 

355 U.S. 41 (1957). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Davis v. HSBC Bank Nevada, N.A., 

691 F.3d 1152 (9th Cir. 2012).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Esoimeme v. Wells Fargo Bank, 

2011 WL 3875881 (E.D. Cal. Sept. 1, 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Gutenmakher v. Select Portfolio Servicing, Inc., 

2016 WL 6495378 (C.D. Cal. Oct. 31, 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Henson et al. v. Santander Consumer USA Inc., 

2017 WL 2507342 (U.S. June 12, 2017). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Johnson v. Riverside Healthcare Sys., L.P., 

534 F.3d 1116 (9th Cir. 2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Kanady v. GMAC Mortg., LLC, 

2010 WL 4010289 (E.D. Cal. Oct. 13, 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Legrama v. Fremont Inv. & Loan, 

2010 WL 5071600 (N.D. Cal. Dec. 7, 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 7

Moss v. United States Secret Serv., 

572 F.3d 962 (9th Cir. 2009).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

O’Connor v. Capital One, N.A., 

2014 WL 2216270 (N.D. Cal. May 29, 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Orozco v. DHI Mortg. Co. LTD., L.P., 

2010 WL 2757285 (S.D. Cal. July 13, 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Rupisan v. JP Morgan Chase Bank, NA, 

2012 WL 3764022 (E.D. Cal. Aug. 29, 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Schlegel v. Wells Fargo Bank, NA, 

720 F.3d 1204 (9th Cir. 2013).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

VASQUEZ, et. al. v. LIBRE BY NEXUS, INC. (CASE NO.: 4:17-cv-00755-CW)

DEFENDANT LIBRE BY NEXUS, INC.’S MOTION TO DISMISS SECOND AMENDED COMPLAINT ii

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FEDERAL STATUTES

15 U.S.C. § 1692, et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

15 U.S.C. § 1692a(6).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Fed. R. Civ. P. 12(b)(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

STATE STATUTES

Cal. Civ. Code § 1632 et seq.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Cal. Civ. Code § 1632(b).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Cal. Code Civ. Proc. § 340(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

VASQUEZ, et. al. v. LIBRE BY NEXUS, INC. (CASE NO.: 4:17-cv-00755-CW)

DEFENDANT LIBRE BY NEXUS, INC.’S MOTION TO DISMISS SECOND AMENDED COMPLAINT iii

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I. INTRODUCTION

The Second Amended Complaint (“SAC”) filed by Plaintiffs Juan Quintanilla

Vasquez, Gabriela Jamileth Perdomo-Ortiz, and Victor Hugo Catalan Molina

(collectively “Plaintiffs”) does not plead facts sufficient to support a valid claim for

relief against Defendant Libre by Nexus (“LBN”) under the Fair Debt Collection

Practices Act (the "FDCPA"), 15 U.S.C. §1692 et seq., or under the California

Translation Act, California Civil Code § 1632 et seq (“section 1632”). Plaintiffs

cannot plausibly amend these claims, so dismissal with prejudice is warranted. 

The FDCPA claim (Count VI) fails because Plaintiffs have not, and cannot,

allege facts to show that LBN is a “debt collector” as defined by that statute. 

Nothing alleged in the SAC suggests that the principal purpose of LBN’s business is

to collect debts, or that LBN regularly collects or attempts to collect debts due to

another. To the contrary, Plaintiffs contend that LBN is in the business of leasing

GPS tracking units to undocumented immigrant detainees and charging fees for the

leases. The only alleged collection efforts by LBN relate to recovery of fees that

LBN allegedly charged to Plaintiffs. Assuming these facts are true, LBN is

collecting only as an incidental part of its business, not as its principal purpose, and

is collecting obligations owed to itself, not to another. The FDCPA does not apply. 

The section 1632 claim (Count V) also fails as a matter of law because it is

time-barred. Plaintiffs allege LBN violated section 1632 by negotiating lease

agreements for GPS tracker devices in Spanish, and then entering into contracts

written in English. As this Court has recognized, however, section 1632 has a oneyear statute of limitations that begins on the date of signing the contract.

1

 All three

1

See, e.g., Legrama v. Fremont Inv. & Loan, 2010 WL 5071600, *11 (N.D. Cal.

Dec. 7, 2010) (“California Civil Code section 1632 does not expressly provide a statute

of limitations; however, it has been interpreted as one year from the date of origination

of the loan in question . . . [t]he Court thus finds that Plaintiffs' claim is barred by the

one-year statute of limitations.”)

VASQUEZ, et. al. v. LIBRE BY NEXUS, INC. (CASE NO.: 4:17-cv-00755-CW)

DEFENDANT LIBRE BY NEXUS, INC.’S MOTION TO DISMISS SECOND AMENDED COMPLAINT 1

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Plaintiffs entered into contracts with LBN more than one year before this case was

filed February 15, 2017. 

Accordingly, the Court should dismiss Counts V and VI of the SAC pursuant

to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim

on which relief can be granted. Because Plaintiffs cannot plausibly amend these

claims, the dismissal should be with prejudice and without leave to amend.

II. ALLEGATIONS OF THE SECOND AMENDED COMPLAINT

The SAC alleges that LBN “exploit[ed] [ ] Spanish-speaking migrant detainees

with so-called ‘lease agreements’ for GPS trackers.” See SAC ¶ 1. Plaintiffs allege

that LBN “preys on detainees’ vulnerability and limited understanding of English to

foist crushing financial terms and GPS shackles on detainees in exchange for the

‘service’ of arranging for a third party to post detainees’ bonds.” Id. at ¶ 3. LBN is

alleged to be “in the business of leasing GPS trackers under false pretenses.” Id.

Plaintiffs say that “[d]etainees’ lack of knowledge about immigration bail bond

offerings and limited English-language ability are the bedrock of [LBN]’s business

. . . [u]sing targeted English-language misrepresentations and omissions,” LBN

“appends GPS monitors onto the bodies of detainees, and levies exorbitant fees . . . .” 

Id. at ¶ 4. Plaintiffs claim that “LBN is part of Nexus Services,” which “is engaged

in the business of, among other things, providing electronic monitoring services in

connection with immigrant bond securitization.” Id. at ¶ 18. 

Plaintiffs do not allege facts suggesting that LBN collects debts owed to

another. The SAC has one sentence that simply parrots the FDCPA by alleging that

LBN "regularly collects or attempts to collect, directly or indirectly, debts owed or

due or asserted to be owed or due another." Id. at ¶ 178. The remaining allegations

and the attachments to the complaint, however, make clear that LBN is allegedly

attempting to collect amounts that are due to itself. Plaintiffs allege that the fees

LBN charges are represented to be “payments for the provision of the GPS tracker.” 

VASQUEZ, et. al. v. LIBRE BY NEXUS, INC. (CASE NO.: 4:17-cv-00755-CW)

DEFENDANT LIBRE BY NEXUS, INC.’S MOTION TO DISMISS SECOND AMENDED COMPLAINT 2

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Id. at ¶ 21. Plaintiffs repeatedly refer to the payments as “rental” fees under the

“lease agreement” between LBN and Plaintiffs. See, e.g., SAC ¶¶ 68, 116, 119, 120. 

In fact, Plaintiffs explicitly allege that “a massive portion of the GPS rental fee is

meant to excessively compensate [LBN] for its role, as middleman, in indemnifying

the immigration bonds it arranges for with third parties.” Id. at ¶ 68. 

Regarding the dates that Plaintiffs entered into their contracts with LBN, the

SAC attachments reflect that Plaintiff Juan Quintanilla-Vasquez (“Vasquez”) signed

the LBN agreements on February 10, 2016, Plaintiff Gabriela Jamileth PerdomoOrtiz (“Ortiz”) signed on June 4, 2015, and Plaintiff Victor Hugo Catalan Molina

(“Molina”) signed on February 11, 2016. Id. at Exs. A, B, C. 

III. ARGUMENT

A. Standards Governing Motions To Dismiss

Dismissal is proper under Rule 12(b)(6) of the Federal Rules of Civil

Procedure where a complaint fails "to state a claim upon which relief can be

granted." Fed. R. Civ. P. 12(b)(6). The plain language of Rule 12 provides little

guidance on what a plaintiff must do to "state a claim" for relief, other than Rule 8,

which says that a complaint must set forth a "short and plain statement of the claim

showing that the pleader is entitled to relief." Id.

The Supreme Court decisions in Bell Atl. Corp. v. Twombly, 550 U.S. 544

(2007) ("Twombly"), and Ashcroft v. Iqbal, 556 U.S. 662 (2009) ("Iqbal"), however,

reflected a significant shift in the analytical framework courts must use when

evaluating motions to dismiss. In Twombly, the Court expressly rejected the "no set

of facts" test that had been articulated in Conley v. Gibson, 355 U.S. 41, 45-46

(1957). See Twombly, 550 U.S. at 562-63. There must be sufficient facts pled to

state a claim for relief that is “plausible on its face.” Id. at 570. Dismissal is proper

under Rule 12(b)(6) where a court finds either: 1) the lack of a cognizable legal

theory; or 2) the absence of sufficient facts alleged under a cognizable legal theory. 

VASQUEZ, et. al. v. LIBRE BY NEXUS, INC. (CASE NO.: 4:17-cv-00755-CW)

DEFENDANT LIBRE BY NEXUS, INC.’S MOTION TO DISMISS SECOND AMENDED COMPLAINT 3

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See Johnson v. Riverside Healthcare Sys., L.P., 534 F.3d 1116, 1121 (9th Cir. 2008). 

In making this finding, courts not only consider the allegations of the complaint and

exhibits attached thereto, but also documents whose contents are alleged in the

complaint and whose authenticity are not questioned. See Davis v. HSBC Bank

Nevada, N.A., 691 F.3d 1152, 1159-60 (9th Cir. 2012). As the Ninth Circuit has

observed: "In sum, for a complaint to survive a motion to dismiss, the nonconclusory factual content, and reasonable inferences from that content, must be

plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. United States

Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (internal quotation marks omitted). 

B. Plaintiffs Have Not Plead A Valid Claim Under The FDCPA

Count VI the SAC should be dismissed because Plaintiffs fail to provide any

factual allegations suggesting the FDCPA applies. To the contrary, the SAC makes

clear that LBN is not a "debt collector" under the FDCPA.

The FDCPA defines the term "debt collector" in two ways: (1) any person

"who uses any instrumentality of interstate commerce or the mails in any business

the principal purpose of which is the collection of any debts" or (2) any person "who

regularly collects or attempts to collect, directly or indirectly, debts owed or due or

asserted to be owed or due another." 15 U.S.C. § 1692a(6). Plaintiffs have not

alleged, and cannot allege in good faith, facts to support an inference that LBN is a

“debt collector” under either definition. 

Plaintiffs allege nothing to suggest the “principal purpose” of LBN's business

is the collection of debts. Rather, the SAC alleges LBN is part of Nexus Services

which is allegedly “engaged in the business of, among other things, providing

electronic monitoring services in connection with immigrant bond securitization.” 

See SAC ¶ 18. Plaintiffs describe LBN’s business as “leasing GPS trackers” in

exchange for fees. Id. at 3.

VASQUEZ, et. al. v. LIBRE BY NEXUS, INC. (CASE NO.: 4:17-cv-00755-CW)

DEFENDANT LIBRE BY NEXUS, INC.’S MOTION TO DISMISS SECOND AMENDED COMPLAINT 4

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Even if Plaintiffs alleged that debt collection formed some portion of LBN's

business, this would not be enough to make LBN a “debt collector” under the first

definition of that term. Debt collection must be the principal purpose of a

defendant’s business. See Schlegel v. Wells Fargo Bank, NA, 720 F.3d 1204 (9th

Cir. 2013) (allegation that Wells Fargo "is in the business of collecting debts and

uses instrumentalities of interstate commerce in that business" was insufficient, as it

alleged only that debt collection was a part of the bank’s business, and not that it was

the bank’s "principal purpose").2

Nor does the SAC allege any facts to establish that LBN is a "debt collector"

under the second definition. At one point, Plaintiffs quote the wording of the statute,

alleging in conclusory fashion that LBN "regularly collects or attempts to collect,

directly or indirectly, debts owed or due or asserted to be owed or due another." See

SAC at ¶ 178. This legal conclusion must be disregarded, however, in light of the

other allegations which make it clear that the fees LBN allegedly seeks to collect are

sums due to LBN, and not “debts” due to another entity. See, e.g., SAC ¶ 21. 

Plaintiffs do not allege the payments for the GPS unit are “debts” and instead

repeatedly refer to them as “rental” fees under the “lease agreement.” See, e.g.

SAC ¶¶ 68, 116, 119, 120. They explicitly allege the “GPS rental fee is meant to

excessively compensate [LBN] for its role, as middleman, in indemnifying the

immigration bonds it arranges for with third parties.” Id. at ¶ 68. There are no facts

2

 See, e.g., Amelina v. Manufacturers & Traders Trust Co., 2015 WL 1138345,

at *7 (S.D. Cal. Mar. 12, 2015) (by alleging defendant “is a creditor who demanded

money and property,” plaintiffsfailed to allege factsto draw a reasonable inference that

the principal purpose of defendant’s business is the collection of debt); Gutenmakher

v. Select Portfolio Servicing, Inc., 2016 WL 6495378, at *7 (C.D. Cal. Oct. 31, 2016)

(plaintiff failed to provide a sufficient factual basis to allege an FDCPA claim, because

she alleged no facts beyond her contention that defendant is the servicer of the loan);

O'Connor v. Capital One, N.A., 2014 WL 2216270, at *5 (N.D. Cal. May 29, 2014)

(complaint did not expressly state the “principal purpose” of defendant's business was

debt collection).

VASQUEZ, et. al. v. LIBRE BY NEXUS, INC. (CASE NO.: 4:17-cv-00755-CW)

DEFENDANT LIBRE BY NEXUS, INC.’S MOTION TO DISMISS SECOND AMENDED COMPLAINT 5

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alleged which suggest that LBN regularly collects debts owed to someone other than

LBN. Nor could Plaintiffs make such allegations in good faith.

The United States Supreme Court recently held that when deciding if an entity

is a “debt collector” under this second definition, “[a]ll that matters is whether the

target of the lawsuit regularly seeks to collect debts for its own account or does so for

‘another.’” Henson et al. v. Santander Consumer USA Inc., 2017 WL 2507342, *3

(U.S. June 12, 2017). Companies like LBN – who allegedly collect debts owed to

themselves – are not “debt collectors” under this definition. Id. 

Here, accepting the factual allegations of the SAC as true, LBN is expressly

excluded from the definition of "debt collector" and is not subject to the FDCPA. 

The claim must be dismissed, without leave to amend.

C. Plaintiff's Claim Under Section 1632 Of The California Civil Code

Is Barred By The One-Year Statute of Limitations

Count V the SAC, which purports to allege a violation of section 1632 of the

California Civil Code, is barred by the one-year statute of limitations and should be

dismissed without leave to amend. 

Plaintiffs allege that their agreements with LBN are subject to section 1632,

which provides that any person who negotiates certain specific types of contracts

primarily in Spanish, Chinese, Tagalog, Vietnamese, or Korean, must also provide a

translation of the contract in the language that it was negotiated.

3

 The limitations

3 The statute provides, in relevant part, asfollows: “Any person engaged in a trade

or business who negotiates primarily in Spanish, Chinese, Tagalog, Vietnamese, or

Korean, orally or in writing, in the course of entering into any of the following, shall

deliver to the other party to the contract or agreement and prior to the execution thereof,

a translation of the contract or agreement in the language in which the contract or

agreement was negotiated, that includes a translation of every term and condition in that

contract or agreement: . . . .” See Cal. Civ. Code § 1632(b). Thisintroductory language

in section 1632(b) is then followed by seven enumerated types of contracts that come

within the statute. See §§ 1632(b)(1) through (b)(7). The SAC alleges that LBN’s

contracts are subject to section 1632(b)(2) (“a loan or extension of credit”). SAC ¶ 170. 

VASQUEZ, et. al. v. LIBRE BY NEXUS, INC. (CASE NO.: 4:17-cv-00755-CW)

DEFENDANT LIBRE BY NEXUS, INC.’S MOTION TO DISMISS SECOND AMENDED COMPLAINT 6

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period for a section 1632 claim is one year, under section 340(a) of the California

Code of Civil Procedure, which provides that “an action upon a statute for a penalty

or forfeiture, if the action is given to an individual, or to an individual and the state,

except if the statute imposing it prescribes a different limitation” shall be brought

within one year. See Cal. Code Civ. Proc. § 340(a). 

Thus, even assuming for purposes of argument that section 1632 applied to

Plaintiff’s agreements, their claims would be subject to a one-year limitations period

which begins to run at the time they signed their contracts. See, e.g., Legrama v.

Fremont Inv. & Loan, 2010 WL at *11 (N.D. Cal. Dec. 7, 2010) (“California Civil

Code section 1632 does not expressly provide a statute of limitations; however, it has

been interpreted as one year from the date of origination of the loan in question . . .

[t]he Court thus finds that Plaintiffs' claim is barred by the one-year statute of

limitations.”); Esoimeme v. Wells Fargo Bank, 2011 WL 3875881, *5 (E.D. Cal.

Sept. 1, 2011) (“Plaintiff's claim under section 1632 is also subject to a one-year

statute of limitations pursuant to California Civil Code 340(a) and is likewise time

barred.”); Rupisan v. JP Morgan Chase Bank, NA, 2012 WL 3764022, *7-8 (E.D.

Cal. Aug. 29, 2012) (“[C]laims under California Civil Code § 1632 are subject to

one-year statute of limitations pursuant to California Code of Civil Procedure §

340(a) . . . [s]ince the notices and translations required by section 1632 are to be

provided prior to the execution of the agreement, the statute of limitations has run on

Plaintiffs' twelfth claim for relief and that claim is now time barred.); Kanady v.

GMAC Mortg., LLC, 2010 WL 4010289, *9 (E.D. Cal. Oct. 13, 2010) (Defendant

correctly argued that “a section 1632 claim [is] barred by the one-year limitation

period of California Code of Civil Procedure section 340(a) (‘an action upon a

statue.’); Orozco v. DHI Mortg. Co. LTD., L.P., 2010 WL 2757285, *6 (S.D. Cal.

LBN denies that its contracts with Plaintiffs fall within section 1632(b)(2). The Court

need not address that issue, however, as the claims are time-barred. 

VASQUEZ, et. al. v. LIBRE BY NEXUS, INC. (CASE NO.: 4:17-cv-00755-CW)

DEFENDANT LIBRE BY NEXUS, INC.’S MOTION TO DISMISS SECOND AMENDED COMPLAINT 7

Case 4:17-cv-00755-CW Document 34 Filed 07/10/17 Page 12 of 13
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July 13, 2010) (“[t]he statute of limitations on a claim under section 1632 is one year

. . . Plaintiff entered into her loan agreement on December 17, 2006 and did not file

suit in this case until August 31, 2009. Thus, Plaintiff's claim under section 1632 is

time barred.”) (citations omitted). 

All three of the Plaintiffs signed their agreements more than a year before this

suit was filed. Vasquez signed the agreements on February 10, 2016, Molina signed

on February 11, 2016, and Ortiz on June 4, 2015. The original Complaint was filed

on February 15, 2017, more than a year after the last Plaintiff signed. The section

1632 claims are untimely and must be dismissed without leave to amend. 

IV. CONCLUSION

For each of the foregoing reasons, LBN respectfully requests that the Court

issue an order dismissing Counts V and VI of the SAC pursuant to Rule 12(b)(6) of

the Federal Rules of Civil Procedure. The deficiencies in these claims cannot be

cured by amendment. The claims should be dismissed with prejudice and without

leave to amend.

DATED: July 10, 2017 SIMMONDS & NARITA LLP

MICHAEL R. SIMMONDS

TOMIO B. NARITA

JENNIFER L. YAZDI

RISHI GUPTA

By: /s/ Rishi Gupta 

 Rishi Gupta

Attorneys for Defendant

Libre By Nexus, Inc.

VASQUEZ, et. al. v. LIBRE BY NEXUS, INC. (CASE NO.: 4:17-cv-00755-CW)

DEFENDANT LIBRE BY NEXUS, INC.’S MOTION TO DISMISS SECOND AMENDED COMPLAINT 8

Case 4:17-cv-00755-CW Document 34 Filed 07/10/17 Page 13 of 13