Fleeman v. County of Kern ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JUSTIN FLEEMAN, No. 1:20-cv-00321-NONE-JLT 12 Plaintiff, 13 v. ORDER ADOPTING IN FULL THE FINDINGS AND RECOMMENDATIONS 14 COUNTY OF KERN, et al., GRANTING DEFENDANT’S MOTION TO DISMISS 15 Defendants. (Doc. Nos. 11, 23) 16 17 18 Plaintiff Justin Fleeman is a former employee of the Kern County Sheriff’s Department and 19 was a candidate for sheriff in 2018. Following plaintiff’s election defeat, he was investigated for 20 disclosures made during the campaign and his employment was terminated. Plaintiff seeks to hold 21 the County liable for violating his civil rights under the First Amendment, retaliation for engaging 22 in political activity, whistleblower retaliation, wrongful discharge, and a violation of PAGA. The 23 County moved for dismissal of all claims arising under California law pursuant to Federal Rule of 24 Civil Procedure 12(b)(6). (Doc. No. 11.) Plaintiff opposed the motion to dismiss, asserting that he 25 complied with all pre-filing requirements and that the facts alleged in his complaint are sufficient 26 to support his state law claims. (Doc. No. 15.) Defendants filed a reply in support of the motion. 27 (Doc. No. 16.) 28 ///// 1 On January 14, 2021, the undersigned referred the pending motion to the assigned 2 magistrate judge for purposes of issuing findings and recommendations. (Doc. No. 21.) On 3 February 19, 2021 findings and recommendations were issued recommending that defendants’ 4 motion to dismiss be granted. (Doc. No. 23.) On March 5, 2021 plaintiff filed objections to the 5 pending findings and recommendations. Having carefully reviewed the file, including plaintiff’s 6 objections, for the reasons explained below the court finds the pending findings and 7 recommendations to be supported by the record and proper analysis and therefore will adopt the 8 recommendation and grant defendants’ motion to dismiss. 9 I. Findings of the Magistrate Judge 10 As an initial matter, the ma gistrate judge took judicial notice of a tort claim filed by 11 plaintiff Fleeman on February 28, 2019, which was denied on March 6, 2019. (Doc. No. 23 at 6– 12 7.) The magistrate judge observed that Fleeman “does not dispute that the government tort 13 claim—and the related denial notice—address facts alleged in the complaint.” (Id. at 7.) In 14 addition, the magistrate judge observed: 15 In the First Claim, Fleeman indicated that he intended to file suit for several causes of action, including “retaliation for engaging in 16 political activity in violation of California Government Code sections 3201 et seq., Labor Code sections 1101 and 1102 [and] 17 whistleblower retaliation in violation of Labor Code section 1102.5.[”] (Doc. 11-1 at 6[.]) Importantly, these claims are now 18 included in the complaint, which includes the following causes of action under state law: (1) retaliation for engaging in political 19 activity in violation of Cal. Lab. Code §§ 1101, 1102, 3201; whistleblower retaliation in violation of Cal. Lab. Code § 1102.5, and 20 “wrongful discharge for lawful off-duty conduct” in violation of Cal. Lab. Code § 96(k). (See Doc. 1 at 1, 11–14, emphasis omitted[.]) 21 The only distinction is that in the First Claim, Fleeman did not identify a cause of action under Section 96(k). (Compare Doc. 1 at 22 1 with Doc. 11-1 at 6[.]) 23 (Id. at 14.) 24 The magistrate judge noted that in the February 2019 tort claim, Fleeman identified 25 several acts that may constitute “adverse employment actions” to support his claims for 26 retaliation, including “the internal affairs investigation that began only weeks after he lost the 27 election, administrative leave, and removal of peace officer powers.” (Id.) Thus, the magistrate 28 judge opined that “Fleeman is unable to argue that his retaliation claims had not accrued prior to 1 the filing of the First Claim,” and “a new tort claim was not required prior to Fleeman filing suit 2 against the County, because there was no legal defect.” (Id. at 15 (citing Sofranek v. Cnty. of 3 Merced, 146 Cal. App. 4th 1238, 1249 (2007)).) The magistrate judge also found that plaintiff’s 4 February 2019 tort claim “governed any civil suit addressing Fleeman’s retaliation claims, and the 5 civil action should have been filed within six months of the denial of the First Claim, or no later 6 than September 6, 2019.” (Id. at 15.) Because plaintiff did not file his complaint in this action 7 until February 28, 2020, the magistrate judge concluded the complaint was untimely and 8 recommended dismissal of plaintiff’s retaliation claims arising under state law. (Id. at 15.) 9 Although the magistrate judge found that plaintiff’s claim for whistleblower retaliation 10 was untimely filed, she also determ ined plaintiff had failed to allege facts sufficient to support his 11 claim under California Labor Code § 1102.5. (Id. at 15–21.) The magistrate judge determined 12 that plaintiff failed “to provide sufficient information in his complaint to support a conclusion that 13 he made disclosures related to activity he believed to be in violation of federal or state statute to 14 law enforcement agents.” (Id. at 17.) In addition, the magistrate judge noted: “To the extent 15 Plaintiff alleges he made statements about the ‘known’ conduct of Sheriff Department employees 16 engaging in ‘inappropriate sexual conduct,’ known conduct may not support his claim because 17 California courts have indicated the word ‘disclosure’ under Section 1102.5 ‘means to reveal 18 something that was hidden and not known.’” (Id. at 17 n.4 (citations omitted).) The magistrate 19 judge ultimately concluded that plaintiff Fleeman failed to state a cognizable claim under § 20 1102.5(b) because he did not “identify a specific statute, rule, or regulation that he believed the 21 County violated—or provide a legal foundation for this belief in the complaint . . .” (Id. at 20– 22 21.) Therefore, the magistrate judge recommended that the claim also be dismissed on this 23 ground. 24 The magistrate judge found that plaintiff’s fourth cause of action for wrongful termination 25 in violation of California Labor Code § 96(k) failed because “[c]ourts have established that 26 Section 96(k) did not create a private right of action.” (Id. at 22.) Although plaintiff asserted that 27 “Labor Code Sections 244 and 98.7(g) permit employees to sue in court for violations of Labor 28 Code Section 96(k),” the magistrate judge observed the fourth claim was not based upon §§ 244 1 and 98.7(g), but rather upon “Cal. Lab. Code § 96(k), standing alone.” (Id. at 22–23.) Thus, the 2 magistrate judge recommended that plaintiff’s fourth cause of action be dismissed without leave 3 to amend, but nevertheless recommended that plaintiff be granted leave to amend “to state a 4 wrongful termination claim, if he can state a claim under a different state statute.” (Id. at 26.) 5 Finally, the magistrate judge determined that plaintiff’s fifth cause of action for a violation 6 of PAGA failed because plaintiff “intended to bring the claim on his own behalf” and did not state 7 a cause of action for any other aggrieved employees. (Id. at 25.) Because “this Court and others 8 have concluded a plaintiff cannot bring a PAGA claim only on his own behalf,” the magistrate 9 judge recommended that plaintiff’s PAGA claim be dismissed. (Id.) 10 II. Objections to the Finding s and Recommendations 11 The parties were granted fourteen days to file any objections to the findings and 12 recommendations and were “advised that failure to file objections within the specified time may 13 waive the right to appeal the District Court’s order.” (Doc. No. 23 at 27 (citing Martinez v. Ylst, 14 951 F.2d 1153 (9th Cir. 1991); Wilkerson v. Wheeler, 772 F.3d 834, 834 (9th Cir. 2014)).) 15 Plaintiff timely filed objections on March 5, 2021. (Doc. No. 25.) 16 Plaintiff asserts in his objections that the magistrate judge erred both in recommending 17 dismissal of his claims for retaliation as untimely, and in finding that his “first tort claim stated a 18 claim.” (Id. at 12–19; see also id. at 14.) He asserts: “As an entirely new cause of action arose at 19 the time Plaintiff was terminated, [he] complied with the California Tort Claims Act and sued 20 within the appropriate deadline.” (Id. at 12 (emphasis omitted).) Plaintiff contends that the 21 second tort claim denial he received made “it clear that any issues/allegations/claims not 22 addressed in the First Claim but addressed in the Second Claim, including any 23 issues/allegations/claims which occurred after the filing of the First Claim, apply and relate to the 24 Second Claim, not the First Claim.” (Id. at 12.) Plaintiff maintains he “fully complied with the 25 Tort Claims Act and his claims based on retaliatory termination of employment are timely.” (Id. 26 at 13.) 27 According to plaintiff, the magistrate judge erred in recommending dismissal of his claim 28 brought pursuant to California Labor Code § 96(k) claim “[a]s Labor Code Sections 244 and 1 98.7(g) permit employees to sue in court for violations of Labor Code Section 96(k).” (Id. at 19 2 (emphasis omitted).) Plaintiff asserts that he also states a cognizable claim under § 96(k) because 3 it “provides a remedy for violation of established constitutional rights,” and he has “allege[d] 4 termination in violation of his right to free speech under the Constitution.” (Id. at 20.) 5 Plaintiff also contends that “PAGA authorizes suits in cases where there is only one 6 aggrieved employee.” (Id. at 21.) In this regard he argues: “No authority requires the state – nor, 7 by extension, a PAGA plaintiff – to seek penalties for violations involving employees other than 8 the PAGA litigant himself or herself.” (Id.) Plaintiff contends that if PAGA claims were limited 9 to those brought on behalf of more than one individual, “had the LWDA sought to investigate and 10 intervene in this case, it would not have been able to pursue penalties for violations of Labor 11 Code sections 96(k), 1101, 1102, and 1102.5 – even though Labor Code section 2699.5 expressly 12 identifies those provisions as statutory violations subject to civil penalties - merely because a 13 second employee was not also fired for running a political campaign against Sheriff 14 Youngblood.” (Id. at 24.) Therefore, plaintiff requests that the court deny defendants’ motion to 15 dismiss as to his PAGA claim. (Id. at 25.) 16 Finally, plaintiff requests leave to amend “to allege that Defendant is estopped from 17 arguing claims arising from events occurring after Plaintiff filed his first tort claim are time 18 barred.” (Id. at 17.) To the extent the court adopts the recommendations for dismissal of his 19 claims, plaintiff also requests leave to file an amended complaint, “which clarifies Plaintiff is only 20 seeking damages for his termination and not for any adverse employment actions that occurred 21 prior to termination.” (Id. at 26.) 22 III. Discussion 23 A district judge may “accept, reject or modify, in whole or in part, the findings and 24 recommendations . . .” 28 U.S.C. § 636(b)(1). If objections to the findings and recommendations 25 are filed, “the court shall make a de novo determination of those portions of the report or specified 26 proposed finding or recommendations to which objection is made.” Id. A de novo review 27 requires the court to “consider[] the matter anew, as if no decision had been rendered.” Dawson 28 v. Marshall, 561 F.3d 930, 932 (9th Cir. 2009). 1 A. Timeliness of the Retaliation Claims 2 Under the California Tort Claims Act, no suit for “money or damages” may be brought 3 against a public entity until a written claim has been presented to the public entity and the claim 4 either has been acted upon or is deemed to have been rejected. Cal. Gov’t Code, §§ 905, 945.4. 5 Claims must be presented to the appropriate agency no later than six months after the accrual 6 of the cause of action. Cal. Gov’t Code § 911.2(a). The claim need only allege sufficient detail to 7 reasonably enable the public entity to make an adequate investigation. Blair v. Superior Ct., 218 8 Cal. App. 3d 221, 225 (1990). When “a plaintiff relies on more than one theory of recovery . . ., 9 each cause of action must have been reflected in a timely claim” and the factual basis for each 10 claim must be “fairly reflected in t he written claim.” Nelson v. State of Cal., 139 Cal. App. 3d 72, 11 79 (1982). “The filing of a claim is a condition precedent to the maintenance of any cause of 12 action against the public entity and is therefore an element that a plaintiff is required to prove in 13 order to prevail.” DiCampli-Mintz v. Cnty. of Santa Clara, 55 Cal. 4th 983, 990 (2012). 14 On February 28, 2019, plaintiff submitted a tort claim against Kern County, indicating that 15 his claims included “retaliation for engaging in political activity in violation of Labor Code 16 sections 1101 and 1102, [and] whistleblower retaliation in violation of Labor Code section 17 1102.5.” (Doc. No. 11-1 at 6.) Plaintiff described statements made by Sheriff Youngblood and 18 alleged that the sheriff “repeatedly disclosed his retaliatory animus to the press.” (Id. at 6–7.) 19 Plaintiff also noted that an internal affairs investigation targeting him began shortly after he lost 20 the election and that a “Notice of Administrative Leave/Revocation of Peace Officer Powers” was 21 issued on September 20, 2018. (Id. at 8.) On March 7, 2019, the County issued a “Notice of 22 Action Taken on Claim,” indicating the tort claim “was not acted upon by the Board” and was 23 “deemed rejected on its merits.” (Id. at 14.) 24 On August 28, 2019, plaintiff submitted a second tort claim, in which he again expressed 25 an intent to sue for claims that included “retaliation for engaging in political activity in violation 26 of California Government Code sections 3201 et seq., Labor Code sections 1101 and 1102, [and] 27 whistleblower retaliation in violation of Labor Code section 1102.5.” (Doc. No. 1 at 21.) 28 Plaintiff again summarized all the events he had presented in his first tort claim and merely added 1 that he had been fired by the County for “false and unsubstantiated reasons.” (Id. at 30.) Plaintiff 2 asserted he “was terminated for his general reference and expressed desire to put an end to sexual 3 impropriety and misconduct within the Department.” (Id. at 29.) Further, he stated his 4 termination was “because he ran against Sheriff Youngblood and lost.” (Id. at 30.) 5 Notably, as the magistrate judge observed, claims for retaliation under California Labor 6 Code §§ 1101, 1102, and 1102.5 do not require termination as an element. (Doc. No. 23 at 14.) 7 To state a cognizable claim under these statutes, a plaintiff must allege only that: “(1) he engaged 8 in a protected activity, (2) the employer subjected him to an adverse employment action, and (3) 9 there is a causal link between the two.” (Id. (quoting Armendariz v. City of Burbank, 2016 WL 10 6875918 (Cal. App. Nov. 22, 2016 )).) However, the “protected activity” varies under the 11 different statutes. (Id.) In his tort claim submitted in February 2019, plaintiff indicated he had 12 engaged in protected speech and as a result had been subjected to adverse employment actions 13 that included an internal affairs investigation beginning only weeks after he lost the election, 14 being placed on administrative leave, and the removal of his peace officer powers. (See Doc. No. 15 11-1 at 7–11.) Thus, it is apparent that the findings and recommendations correctly concluded 16 that plaintiff’s first tort claim was sufficient to give the County notice of his claims for retaliation 17 and whistleblower retaliation. 18 Moreover, plaintiff’s objections fail to acknowledge the fact that while a claim for 19 wrongful termination did not arise until he was fired, his claims as stated both in his tort claims 20 and in the complaint filed in this action were for retaliation. Under a claim for retaliation, 21 termination would add to the adverse actions committed and be relevant as to damages, but 22 termination is not a necessary element of a claim for retaliation. Because plaintiff’s first tort 23 claim was sufficient to give the County notice of his claim for retaliation, any civil action for 24 retaliation was required to be filed within six months of the date the tort claim was denied. On 25 the other hand, any civil action for wrongful termination—raised for the first time in plaintiff’s 26 tort claim submitted in August 2019—was required to be filed within six months of the denial of 27 plaintiff’s second tort claim. Plaintiff filed his complaint in this action on February 28, 2020, 28 which was more than six months after his first tort claim was denied. Therefore, plaintiff’s 1 retaliation causes of action asserted in this action were untimely filed. See Sofranek, 146 2 Cal.App.4th at 1249 (if the first tort claim was proper, a new tort claim “was not a necessary 3 predicate to filing a lawsuit”). Accordingly, the findings and recommendations recommending 4 that plaintiff’s retaliation claims be dismissed as untimely will be adopted and defendants’ motion 5 to dismiss the retaliation claims will be granted. 6 B. Sufficiency of the Whistleblower Retaliation Claim 7 To state a claim for whistleblower retaliation under California Labor Code § 1102.5, a 8 plaintiff must allege that “[he] engaged in protected activity, that [he] was thereafter subjected to 9 adverse employment action by [his] . . . employer, and there was a causal link between the two.” 10 Robles v. Agreserves, Inc., 158 F. Supp. 3d 952, 1008 (E.D. Cal. 2016) (quoting Soukup v. Law 11 Offices of Herbert Hafif, 39 Cal. 4th 260, 287–88 (2006)); see also Patten v. Grant Joint Union 12 High Sch. Dist., 134 Cal. App. 4th 1378, 1384 (2005). 13 A plaintiff engages in protected activity under § 1102.5 “if the employee has reasonable 14 cause to believe that the information discloses a violation of state or federal statute, or 15 a violation of or noncompliance with a local, state, or federal rule or regulation.” Cal. Lab. Code 16 § 1102.5(a), (b). In this regard, state and federal courts alike have determined that a plaintiff must 17 identify a specific state or federal statute, rule, or regulation he believed was violated. Carter v. 18 Escondido Union High Sch. Dist., 148 Cal. App. 4th 922, 933 (2007); Fitzgerald v. El Dorado 19 Cnty., 94 F. Supp. 3d 1155, 1172 (E.D. Cal. 2015) (“the employee must be able to point to some 20 legal foundation for his suspicion—some statute, rule or regulation which may have been violated 21 by the conduct he disclosed”); Love v. Motion Indus., Inc., 309 F. Supp. 2d 1128, 1135 (N.D. Cal. 22 2004) (without citing to “any statute, rule or regulation that may have been violated by the 23 disclosed conduct,” the plaintiff lacked “any foundation for the reasonableness of his belief”). 24 Notably, plaintiff does not address the conclusion reached in the pending findings and 25 recommendations that the allegations of his complaint are insufficient to support an inference or 26 conclusion that he engaged in protected activity under § 1102.5. (See generally Doc. No. 25 at 27 11–26.) Specifically, in his complaint plaintiff alleges: 28 ///// 1 One of Mr. Fleeman’s campaign messages was to the effect that, if elected, Mr. Fleeman would put a stop to employees engaging in 2 sexually inappropriate conduct – including extra-marital sexual relationships with other Deputies’ spouses, sexual relations with 3 subordinates, engaging in sexual relations while on duty, and engaging in inappropriate sexual relations with Sheriff’s Activities 4 League participants. Numerous Sheriff’s Department employees were known to previously engage in such inappropriate sexual 5 conduct on numerous occasions. Mr. Fleeman understood and reasonably believed that amongst the biggest problems facing the 6 Sheriff’s Department was the seemingly rampant, unbecoming, and potentially illegal and inappropriate sexual conduct occurring within 7 the Department. During the campaign, Mr. Fleeman criticized Mr. Youngblood for turning a blind eye to such conduct and failing to 8 take adequate and appropriate action to deter such conduct. 9 (Doc. 1 at 3 ¶ 14.) However, there are no allegation in plaintiff’s complaint regarding what 10 statements were allegedly made o r to whom in giving his “campaign messages.” Plaintiff’s 11 complaint also fails to identify what statute, rule, or regulation that he believed the County 12 violated, nor do its allegations provide the legal foundation for this belief in that regard. 13 Consequently, the facts alleged in plaintiff’s complaint are insufficient to support a whistleblower 14 retaliation claim under California Labor Code § 1102.5. Therefore, defendants’ motion to dismiss 15 plaintiff’s third cause of action will be granted as well. 16 C. Plaintiff’s Claim under California Labor Code § 96(k) 17 Plaintiff’s fourth cause of action is for “termination for lawful, off-duty conduct” in 18 violation of California Labor Code § 96(k). (Doc. No. 1 at 14 (emphasis omitted).) As noted 19 above, plaintiff argues that the magistrate judge erred in recommending dismissal of this cause of 20 action because “Labor Code Sections 244 and 98.7(g) permit employees to sue in court for 21 violations of Labor Code Section 96(k).” (Doc. No. 25 at 19 (emphasis omitted).) However, as 22 the magistrate judge correctly observed, this cause of action as asserted in the complaint is based 23 solely upon § 96(k). (See Doc. No. 1 at 14.) 24 Significantly, both state and district courts alike have determined § 96(k) provides only a 25 procedure for the Labor Commissioner and does not provide for a private right of action. See, 26 e.g., Barbee v. Household Auto. Finance Corp., 113 Cal. App. 4th 525, 535 (2003) (stating § 96 27 “simply outlines the types of claims over which the Labor Commissioner shall exercise 28 jurisdiction”); Grinzi v. San Diego Hospice Corp., 120 Cal. App. 4th 72 (2004) (stating § 96(k) 1 “does not set forth an independent public policy that provides employees with any substantive 2 rights, but rather, merely establishes a procedure by which the Labor Commissioner may assert, 3 on behalf of employees, recognized constitutional rights”); see also Newson v. Walmart, Inc., No. 4 CV-F-09-663 OWW/GSA, 2009 WL 1844351, at *7–8 (E.D. Cal. June 23, 2009) (finding no 5 private cause of action under § 96(k), and dismissing the plaintiff’s causes of action for violations 6 of § 96(k)); Howe v. Target Corp., No. 20-cv-252-MMA (DEB), 2020 WL 5630273, at *11 (S.D. 7 Cal. Sept. 19, 2020) (dismissing a bad faith and wrongful termination claim brought under § 8 96(k)). 9 Moreover, plaintiff’s alleged termination in violation of the Constitution does not cure this 10 pleading defect. The Southern Di strict of California recently rejected a similar argument 11 advanced by a plaintiff who stated a claim for wrongful termination grounded upon § 96(k). 12 Howe, 2020 WL 5630273, at *10–11. There, the plaintiff asserted that her wrongful termination 13 claim under § 96(k) should not be dismissed because she also alleged a violation of her right to 14 privacy. Id. at *10. The court rejected this argument because § 96(k) provided only a procedure 15 for the Labor Commissioner to employ, not a substantive right. Id. at *11. Therefore, the 16 plaintiff’s claim for wrongful termination premised on § 96(k) was dismissed. Id. Similarly, 17 plaintiff has based his wrongful termination claim solely upon § 96(k). Thus, his claim fails as a 18 matter of law, and the recommendation for dismissal of plaintiff’s fourth cause of action will be 19 adopted. 20 D. Individual PAGA Claim 21 Plaintiff asserts the pending findings and recommendations erroneously conclude that he 22 is unable to state a cognizable claim under PAGA as an individual. (Doc. No. 25 at 19.) Notably, 23 however, plaintiff relies only on his arguments previously presented and fails to acknowledge the 24 authorities cited in the findings and recommendations. (See id. at 19–24.) As the magistrate 25 judge observed, this court and others have determined that “[t]he plain language of the statute 26 permitting PAGA actions states that a plaintiff must bring such an action ‘on behalf of himself or 27 herself and other current or former employees.’” Ortiz v. Hobby Lobby Stores, Inc., 52 F. Supp. 28 3d 1070, 1088 (E.D. Cal. 2014) (quoting Cal. Lab. Code § 2699(a) (emphasis added)); Reyes v. 1 Macy’s, Inc., 202 Cal. App. 4th 1119, 1123 (2011); see also Machado v. M.A.T. & Sons 2 Landscape, Inc., No. 2:09-cv-00459 JAM JFM, 2009 WL 2230788, at *2 (E.D. Cal. July 23, 3 2009) (“a PAGA claim must be brought as a representative action”); Mutchler v. Circle K Stores, 4 Inc., No. 20cv1239-GPC (BGS), 2020 WL 5511985, at *4 (S.D. Cal. Sept. 14, 2020) (“[a] single 5 plaintiff cannot state an individual claim for PAGA penalties”). 6 Plaintiff unequivocally indicated in his LWDA Notice with respect to the PAGA claim 7 that he was “mak[ing] this complaint on behalf of himself for violations of the California Labor 8 Code.” (Doc. No. 1 at 49 (emphasis added).) Because plaintiff’s LWDA Notice indicated he was 9 the only aggrieved employee, his claim under PAGA fails. See Ortiz, 52 F.Supp.3d at 1088; 10 Reyes, 202 Cal.App.4th at 1123. A ccordingly, the court will also adopt the recommendation that 11 defendants’ motion to dismiss be granted as to plaintiff’s fifth cause of action with leave to 12 amend also being granted. 13 E. Leave to Amend 14 Despite the pleading deficiencies identified above, plaintiff may be able to state a cause of 15 action for wrongful termination under a different statute. Plaintiff may also be able to state a 16 PAGA claim on behalf of others. Accordingly, the court will grant plaintiff leave to file an 17 amended complaint to attempt to cure these identified pleading deficiencies. 18 IV. Conclusion 19 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Britt v. Simi Valley 20 Unified School Dist., 708 F.2d 452, 454 (9th Cir. 1983), the undersigned has conducted a de novo 21 review of the case. Having carefully reviewed the file, including plaintiff’s objections to the 22 pending findings and recommendations, the court finds the findings and recommendations are 23 supported by the record and proper analysis. Accordingly, 24 1. The findings and recommendations dated February 19, 2021 (Doc. No. 23), are 25 adopted in full and defendants’ motion to dismiss is granted; 26 2. Plaintiff’s second cause of action for retaliation is dismissed without leave to 27 amend; 28 ///// 1 3. Plaintiff's third cause of action for whistleblower retaliation is dismissed without 2 leave to amend; 3 4, Plaintiffs fourth cause of action for violation of California Labor Code § 96(k) is 4 dismissed without leave to amend; 5 5. Plaintiff's fifth cause of action under PAGA is dismissed with leave to amend, 6 provided plaintiff can state a PAGA cause of action within the confines of Federal 7 Rule of Civil Procedure 11; 8 6. Plaintiff is also granted leave to amend to attempt to state a wrongful termination 9 claim; and 10 7. Any amended complaint which plaintiff elects to file, if any, shall be filed within 11 thirty (30) days of the date of this order. 12 | IT IS SO ORDERED. 8 Dated: _ March 31, 2021 al, A “7 14 UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12