Judge Bruce G. Iwasaki, Case 20STCV43132 2022-07-29 Tentative Ruling

Tentative Ruling: The Demurrer is sustained as to all causes of action without leave to amend.

In this employment action, after the Court sustained a demurrer as to all causes of action on the First Amended Complaint, Plaintiff filed a Second Amended Complaint. The Second Amended Complaint has not cured the deficiencies of the previous pleading. Plaintiff, who remains employed by Defendant, alleges years of what he deems retaliatory conduct for what he characterizes as his advocacy for disabled students. In 2018, Defendant did take adverse action against Plaintiff within the limitations period, but the action was reversed through the administrative process, appears to have had nothing to do with his alleged advocacy, and in any case, Plaintiff does not seek redress for that action here. Rather, Plaintiff contends that his supervisors have engaged in campaign against him for what he views as his alleged protected activity in 2013. Because his complaint fails to allege a pattern of continuing violations, Plaintiff’s retaliation claims are barred by the statute of limitations. In addition, on the second, third, and fourth causes of action, he lacks standing because he did not suffer a statutory injury. The Court sustains the demurrer to the Second Amended Complaint without leave to amend.

Plaintiff Mark Yeoh (Plaintiff or Yeoh) filed a Second Amended Complaint (Complaint) against Defendant Los Angeles County Office of Education (LACOE) alleging causes of action for whistleblower retaliation, retaliation for opposing disability discrimination under the Rehabilitation Act and the California Education Code, and violation of the Bane Act.

Yeoh alleges that he was a Financial Operations Consultant at LACOE for the Southwest Special Education Local Plan Area (SELPA), which provides special education services for children within its boundaries. Plaintiff is still employed by LACOE. He alleges that school districts would occasionally seek to “take back” control of its programs from LACOE for funding and administration purposes. (Complaint, ¶ 11.)

During these “takebacks,” Yeoh alleges that certain executive officers provided favors for one another, which they used to leverage themselves into higher positions in other districts. (Id. at ¶ 13.) Plaintiff opposed these favors and believed it was unethical and illegal. (Id. at ¶ 14.)

Sometime between 2010 and 2013, John Vinke (then Chair of the Finance Committee of the Southwest SELPA) allegedly tried to replace LACOE with Lawndale Elementary School District as the administrative unit. (Id. at ¶ 19.) Plaintiff opposed this because he believed the takeback would harm disabled students by restricting their access to a free and appropriate public education. (Id. at ¶ 20.)

In 2013, after several meetings regarding Yeoh’s opposition to the Lawndale takeback, Pat Smith, Controller of LACOE, and Yeoh’s supervisor, Zak Memom, informed Yeoh that he was “immediately being replaced as FOC for Southwest SELPA” because he did not support Vinke regarding the takeback. (Complaint, ¶ 24.) In January 2014, Yeoh allegedly received a negative write-up from Memon for an unexcused absence, despite receiving prior approval for the absence. Memon reportedly informed Yeoh to “watch his back” because Pat Smith and Alex Cherniss (Chief Financial Officer) instructed Memon to write Plaintiff up without warning. (Id. at ¶ 26.) The Complaint alleges that Pat Smith was always “Plaintiff’s supervisor’s supervisor . . . regardless of who Plaintiff’s supervisor was.” (Id. at ¶ 21.)

On January 29, 2014, Plaintiff states he was transferred to the Division of Business Advisory Services despite not requesting or applying for a transfer. He asserts that this was adverse employment action because this position was a dead end with no opportunities for promotion. (Id. at ¶ 27.) After transferring, he was also given a written warning by the director, Marlene Dunn, which Yeoh asserts contained false allegations and was similar to his earlier write-up from Memom. (Id. at ¶ 28.)

In May 2014, Plaintiff was assigned to the Grants Project Management division where he assisted with the Beginning Teacher Program. (Complaint, ¶ 25.) He avers that he received no training in this program and was placed in a position in which he was expected to fail. (Id. at ¶ 37.) Within six months of working in the program, Plaintiff states a woman named “Bernadette,” who he believes worked under Pat Smith, chastised him for not billing enough hours. Plaintiff’s supervisor allegedly informed Plaintiff to work on other programs and falsely report those hours. (Id. at ¶ 40.) He believed this meeting was setting him up for allegations of misconduct. (Ibid.)

Between 2014 to 2016, Plaintiff avers that he had to do the work of two positions because staff were on long-term leave. He believes that Pat Smith could have alleviated his work and her failure to do so was setting him up to fail. (Complaint, ¶¶ 31-33.) Some time in mid-2015, Plaintiff also avers that Ms. Smith’s office deprived his division of a necessary support accountant. (Id. at ¶ 41.) However, his performance evaluations for the next several years showed no performance issues. (Id. at ¶ 42.) The Complaint further alleged that Smith retaliated against other employees who “opposed her intentions” and changed any procedures that she initiated. (Complaint, ¶ 39.)

The only allegations within the statute of limitations commence at paragraph 44 of the Second Amended Complaint. On May 25, 2018, Plaintiff was escorted out of LACOE with no reason provided. (Id. at ¶ 44.) He was formally terminated on November 20, 2018, for reportedly violating the “cash handling” protocol, which Smith had previously established. (Id. at ¶¶ 46-47.) After filing an administrative appeal, Plaintiff was reinstated sometime after August 1, 2019, albeit under a different title because Smith eliminated his prior position. (Id. at ¶¶ 51, 53.)

Plaintiff alleged that the “series of write-ups, transfers, and eventual termination, and subsequent transfer . . . were conducted to create a false ‘paper trail’ of discipline, and falsely portray Plaintiff as a bad employee, in order to wrongfully terminate his employment.” (Id. at, ¶ 56.) He asserts that LACOE continues to assign him duties outside the scope of his regular duties, falsely accuse him of malfeasance, and continues to transfer him to undesirable assignments. (Id. at ¶ 57.)

This is the second demurrer and both parties make virtually identical arguments as in the first demurrer: Defendant demurred to all causes of action for insufficient facts. Plaintiff opposed, arguing that the continuing violations doctrine applied and that sufficient facts are pled.[1] Defendant replied, arguing that the allegations stem from Plaintiff’s work in the Grants Project Management division, which is separate from his work in the Southwest SELPA in 2013.

Defendant’s counsel states that he e-mailed Plaintiff’s counsel, but no response was provided. (Dumont Decl., ¶ 4.) Plaintiff’s counsel does not challenge this requirement.

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The court “ ‘ “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . . .” ’ ” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) The court liberally construes the complaint to determine whether a cause of action has been stated. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

Because all liability under the Government Claims Act is statutory, “the general rule that statutory causes of action must be pleaded with particularity is applicable.”¿(Susman¿v. City of Los Angeles¿(1969) 269 Cal.App.2d 803, 809.)¿Thus, “to state a cause of action every fact essential to the existence of statutory liability must be pleaded with particularity, including the existence of a statutory duty.”¿(Searcy v. Hemet Unified School District¿(1986) 177 Cal.App.3d 792, 802.) “Since the duty of a government agency can only be created by statute…the statute… claimed to establish the duty must at the very least be identified.” (Ibid.)¿¿

First cause of action – whistleblower retaliation under Labor Code section 1102.5

On a demurrer, a defendant bears the initial burden of proving that a plaintiff’s claims are barred by the statute of limitations. (Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1197.) The burden then shifts to plaintiff “to demonstrate his claims survive based on one or more nonstatutory exceptions to the basic limitations period,” which include the continuing violation doctrine. (Ibid.)

Defendant LACOE argues that the whistleblower retaliation claim is based on Plaintiff’s opposition to the SELPA takebacks and subsequently being reassigned in 2013. Defendant has met its burden that the retaliation claim is barred by the three-year statute of limitations. (Code Civ. Proc., § 338, subd. (a).) The burden now shifts to Plaintiff to show that claims or retaliatory conduct survive despite occurring more than three years before he brought suit in November 2020. He has failed to do so.

The Second Amended Complaint does not sufficiently allege continuing violations.

Plaintiff submits that Paragraphs 24-28, 30-35, 37, 39-41, and 44-48 in the Second Amended Complaint demonstrates a continuing violation. The question is whether his allegations of violations within the limitations period are sufficiently linked to the claimed retaliatory conduct outside the limitations period.

Under the continuing violation doctrine, an employer’s allegedly discriminatory acts are a continuing violation if the unlawful actions are “(1) sufficiently similar in kind – recognizing… that similar kinds of unlawful employer conduct, such as acts of harassment or failures to reasonably accommodate disability, may take a number of different forms [citation]; (2) have occurred with reasonable frequency; (3) and have not acquired a degree of permanence.” (Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 823.)

The Second Amended Complaint added conclusions of law and conjectural detail that did not address this Court’s previous finding that the continuing violations doctrine was inapplicable. Plaintiff contends that in retaliation for speaking out against the SELPA takebacks in 2013, Pat Smith was behind a series of unlawful conduct including re-assignments, false write-ups, lack of support, undermining of authority, and eventual termination.

The Court previously found that the alleged unlawful actions were not similar in kind, noting that “it is unclear why [Pat] Smith harbored any animus against Yeoh, given that Yeoh was opposed to John Vinke and Alex Cherniss’ plans for a takeback, not her own.” Plaintiff failed to address this issue and it is still unclear the nexus between Smith and Vinke, such that Plaintiff’s actions in opposition to Vinke would somehow implicate Smith.

Furthermore, it appears that the alleged retaliation against Plaintiff in opposing the SELPA takebacks in 2013 is separate and distinct from the later allegedly retaliatory acts for opposing and modifying Pat Smith’s implemented procedures. In other words, Plaintiff does not allege that he continued to oppose the takebacks after 2013 – in fact, Paragraph 39 of the Complaint, Plaintiff asserts that Pat Smith retaliated against employees who “opposed her intentions” or changed a procedure that she implemented. On the face of the Complaint then, it appears that Plaintiff was retaliated against – if at all – for a different reason in 2018: opposing Pat Smith’s procedures for handling cash in the Beginning Teacher Program. (Complaint, ¶ 38, 39, 47, 55.)

Notwithstanding these defects, even if the Court were to assume these violations were similar and that they were all implemented by Pat Smith, the Second Amended Complaint still fails to allege that they occurred with reasonable frequency.

In the first demurrer, the Court had concerns because there was a four-year gap between the January 2014 negative write-up and the May 25, 2018 “walk-out” date. The Second Amended Complaint adds allegations that between 2014 and 2016, he was forced to work “the equivalent of two positions.” (Complaint, ¶ 33.) Further, in mid-2015, Pat Smith’s office allegedly blocked Plaintiff’s division from hiring a particular candidate, “which resulted in work being backed up which negatively reflected on Plaintiff.” (Id. at ¶ 41.)

Neither of these allegations satisfy the continuing violation exception. The unlawful actions must occur with reasonable frequency. (Richards, supra, 26 Cal.4th at p. 823.) The added allegations are not alleged to be unlawful and Plaintiff’s contention that Pat Smith “would have necessarily known about this staffing issue . . . and could have remedied the situation had she chosen to do so” is speculative. (Complaint, ¶ 33.)

Accordingly, the Court does not find that the continuing violation doctrine applies.

Under Labor Code section 1102.5, subdivision (b), protected activity is defined as “disclosing information, or [when] the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee's job duties.”

Plaintiff’s first cause of action is premised upon a finding that the continuing violation doctrine applies because the purported whistleblowing occurred in 2013, when he opposed the takebacks. As Defendant has met its burden of showing that Plaintiff’s claims are barred under the statute of limitations, the burden now shifts to Plaintiff to establish an exception.

The Second Amended Complaint’s alleged protected action occurred in 2013 and the retaliation occurred in May 2014, when Plaintiff was transferred. Plaintiff filed his complaint in November 2020, over six years later. The first cause of action is therefore untimely, and the Court does not find that the continuing violations doctrine applies.

Even assuming the continuing violations doctrine applied, Plaintiff’s “protected activity” in 2013 was opposing the takebacks based upon potential conflicts of interest. It is unclear how opposing such takebacks was related to the later alleged misconduct of Smith terminating him in 2018, especially because the Complaint alleged that Plaintiff opposed John Vinke, and not Pat Smith, in the proposed takebacks. The Court finds that this is too attenuated and sustains the demurrer as to the first cause of action without leave to amend.

The other causes of action are similarly barred by the statute of limitations.

Although the parties do not address the statute of limitation issue for the other three causes of action, because each of them is founded on a claim of continuing retaliation, they are each subject to the same statute of limitations defect. Indeed, the limitations period for these other claims is shorter. As to the second cause of action, the Rehabilitation Act does not specify its own limitations period. Thus courts “borrow” one from an analogous state cause of action. (Alexander v. Washington Metropolitan Area Transit Authority (D.C. 2016) 826 F.3d 544, 551.) A district court in California has applied a two-year limitations period to section 794 claims under the Rehabilitation Act. (J.W. v. Fresno Unified School Dist. (E.D. Cal. 2008) 570 F.Supp. 1212, 1222.)

The third cause of action invokes Education Code section 56046, which also appears not to have a specific time limit for filing suit. It does provide for an administrative remedy. The most analogous statute would appear to be the two-year limitations period for seeking administrative relief regarding special education cases in Education Code section 56505, subdivision (l).

The fourth cause of action under Civil Code section 52.1 is subject to the two-year limitations period under Code of Civil Procedure section 335.1. (Gatto v. County of Sonoma (2002) 98 Cal.App.4^th 744, 760.)

Thus, because no conduct by the Defendant can fairly claim to be retaliatory occurred after November 2018 – two years before suit was filed – these claims also are time barred.

Second cause of action – retaliation for opposing disability discrimination in education under the Rehabilitation Act 29 U.S.C. § 794(a)

Plaintiff offers no new facts to support the second cause of action and continues to rely on the federal case of Barker v. Riverside County Office of Educ. (9th Cir. 2009) 584 F.3d 821 for his position that he has standing.

The Rehabilitation Act states that “No otherwise qualified individual with a disability in the United States, as defined in section 7(20) [29 USCS § 705(20)], shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.” (29 U.S.C. § 794(a).) 29 U.S.C. § 794a, subdivision (a)(2) incorporates the remedies in the Civil Rights Act, which “shall be available to any person aggrieved by any act or failure to act by any recipient of Federal assistance.”

The Civil Rights Act states that “No recipient or other person shall intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by Section 601 of [the Civil Rights] Act or this part, or because he has made a complaint, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this part. (34 C.F.R. § 100.7(e), italics added.)

This Court previously ruled that Barker is factually distinguishable because the plaintiff in that case was an “itinerant Resource Specialist Program teacher” who regularly consulted with colleagues “in regard to special education issues with students.” (Barker, supra, 584 F.3d at p. 823.) In contrast, Mr. Yeoh is a Financial Operations Consultant and is not alleged to have direct interaction with students. (Complaint, ¶ 8.)

Yeoh argues that, based on the statute’s language, he does not need to be disabled, a teacher, or family member of the disabled student. “In construing a statute, our task is to ascertain the intent of the Legislature so as to effectuate the purpose of the enactment. [Citation.] We look first to the words of the statute, which are the most reliable indications of the Legislature's intent. [Citation.] We construe the words of a statute in context, and harmonize the various parts of an enactment by considering the provision at issue in the context of the statutory framework as a whole.” (Cummins, Inc. v. Superior Court (2005) 36 Cal.4th 478, 487.)

Plaintiff focuses on the words “any individual” and “participated in any manner,” but ignores the entirety of 34 C.F.R. § 100.7(e). The regulation confers standing only if he has made a “complaint, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this part.” (34 C.F.R. § 100.7(e); Barker, supra, 584 F.3d at p. 823 [filing a “class discrimination complaint with the U.S. Department of Education’s Office for Civil Rights”].) Plaintiff does not allege that he has made any complaint or is otherwise involved with an “investigation, proceeding, or hearing” under the Federal Department of Education.

In addition, while the Second Amended Complaint alleges that Mr. Yeoh raised concerns that the students and their families would not be provided with a free appropriate public education, this is couched in conditional statements: “Plaintiff spoke repeatedly . . . about his personal belief that there were students who would be negatively affected, as would their families, by not being provided with a free, appropriate public education (FAPE).” (Complaint, ¶ 20, italics added.) These statements speculate about potential future harm. Plaintiff has not alleged that any student, because of his or her disability, was actually “excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.” (29 U.S.C. § 794(a).) For both of these reasons, Yeoh has not shown standing to invoke the Rehabilitation statute in his employment claim.

Accordingly, the Court sustains the demurrer as to the second cause of action without leave to amend.

Third cause of action – Retaliation for opposing disability discrimination pursuant to Education Code section 56046

Education Code section 56046, subdivision (a) states: “An employee of a local educational agency shall not directly or indirectly use or attempt to use the official authority or influence of the employee for the purpose of intimidating, threatening, coercing, or attempting to intimidate, threaten, or coerce, any person, including, but not limited to, a teacher, a provider of designated instruction and services, a paraprofessional, an instructional aide, a behavioral aide, a health aide, other educators or staff of the local educational agency, a private individual or entity under contract with the local educational agency, or a subordinate of the employee, for the purpose of interfering with the action of that person at any time, to assist a parent or guardian of a pupil with exceptional needs to obtain services or accommodations for that pupil.” (Italics added.)

Apart from whether this provision creates a private right of action, and whether administrative remedies must first be exhausted, this education statute was not intended to grant Yeoh a claim for damages against his employer.

Yeoh identifies Pat Smith as the “employee of a local educational agency” who shall not use her authority to intimidate, threaten, or coerce other employees, such as himself, “for the purpose of interfering with the action of that person at any time to assist a parent or guardian of a pupil with exceptional needs to obtain services or accommodations for that pupil.” (Ed. Code, § 56046.)

However, Plaintiff does not specify how he assisted or attempted to assist “a parent or guardian of a pupil with exceptional needs to obtain services or accommodations for that pupil.” Yeoh’s argument that he opposed SELPA takebacks that could potentially harm disabled students and their families is too vague. (Complaint, ¶¶ 57, 85.)

Despite the broad statutory language, the legislative history demonstrates that this section was enacted to prohibit employees of school districts or county office of education from taking any action “to discourage, prevent or punish specified educators from taking reasonable action…to assist parents or guardians in obtaining the appropriate variety and level of educational and related services needed by an individual with exceptional needs.” (Assem. Com. on Educ., analysis of Assem. Bill No. 1895 (2001-2002 Reg. Sess.) as amended Apr. 29, 2002, p. 1, italics added.) The arguments in support of the bill indicate “plenty of anecdotal information that teachers are discouraged in a variety of ways and intensities to minimize their assistance to parents and pupils who need an IEP and special education services. There is no protection for teachers in this area.” (Id. at p. 2, italics added.)

Plaintiff is not an educator or teacher. (Complaint, ¶ 8.) Therefore, he lacks standing to bring an action under this section. At the heart of his Complaint, Plaintiff is alleging employment retaliation. This statute is not designed to vindicate his rights in this context.

Accordingly, the Court sustains the demurrer as to the third cause of action without leave to amend.

Fourth cause of action – civil rights violation under California Constitution article I, section 2; violation of Bane Act, Civil Code section 52.1

Plaintiff does not assert new facts under this cause of action and primarily relies on federal authorities for this claim. He cites to Plummer v. City of Richmond (N.D.Cal. Apr. 1, 2015 No. 14-cv-03962-VC) 2015 U.S.Dist.Lexis 43268 for the requirement that coercive conduct need not be violent or contain “threats of violence” to come within the statute. However, he fails to provide any applicable state law authority. Federal district court cases are not binding on a state trial court. (Rubin v. Ross (2021) 65 Cal.App.5th 153, 163.)

Civil Code section 52.1 (the “Bane Act”) allows an individual to sue for damages if a person or persons “interferes by threat, intimidation, or coercion, or attempts to interfere by threat, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state….”¿ (Civ. Code, § 52.1, subds. (a), (b).)¿¿“ ‘The essence of a Bane Act claim is that the defendant, by the specified improper means (i.e.,¿“threat[], intimidation or coercion”), tried to or did prevent the plaintiff from doing something he or she had the right to do under the law or to force the plaintiff to do something that he or she was not required to do under the law.’ ”¿ (King v. State of Cal.¿(2015) 242 Cal.App.4th 265, 294; Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 883.) “The statute requires¿a showing of threatening conduct independent from the alleged interference or violation of a civil right.¿[Citations.]” (Doe v. State of California¿(2017) 8 Cal.App.5th 832, 842–843.)

[Pat Smith’s alleged retaliatory acts] did not prevent Plaintiff from doing anything he had the right to do under law or force him to do something he [w]as not required to do under law. (See Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 67 [focus of a claim under the Bane Act is the use of the threats, intimidation, and coercion in order to interfere with a plaintiff’s state or federal constitutional or legal right”].) In other words, Plaintiff fails to show “threatening conduct independent from the alleged interference or violation of a civil right.” (Doe v. State of California, supra, 8 Cal.App.5th at pp. 842-843.) Plaintiff alleges that the coercion, or threatening conduct, constitute the retaliatory acts. However, he fails to show the alleged interference or violation of a civil right.

In addition, the Bane Act was passed primarily as hate crime legislation (Jones v. Kmart Corp (1998) 17 Cal.4th 329, 338) and was meant to narrowly supplement the Ralph Act to deter violence. (Stamps v. Superior Court (2006) 136 Cal.App.4th 1441, 1447.) “These statutes were designed to stem the number of hate crimes which the Legislature recognized had grown to an alarming proportion. [Citations.] (Stamps, supra, 136 Cal.App.4th at p. 1457.) While such claims are not limited to conduct that would constitute a hate crime, the Court does not agree that this creates a new general cause of action for employment retaliation. (See Venegas v. County of Los Angeles (2004) 32 Cal.4th 820, 843 [“Civil Code section 52.1 does not extend to all ordinary tort actions because its provisions are limited to threats, intimidation, or coercion that interferes with a constitutional or statutory right.”]

Whether violence or threat of violence is required is irrelevant to the current analysis. In context, the statutory framework of section 52.1 “indicates that the Legislature meant the statute to address interference with constitutional rights involving more egregious conduct than mere negligence.” (Shoyoye v. County of Los Angeles) (2012) 203 Cal.App.4th 947, 958. “[T]he statute was intended to address only egregious interferences with constitutional rights, not just any tort.” (Id. at p. 959.) “The act of interference with a constitutional right must itself be deliberate or spiteful.” (Ibid.)

The Court does not find that the Complaint alleges such conduct here, especially in the context of an employee voicing opposition to his employer on policy matters. There are no allegations of any sort of hate crime or actions that would implicate the Bane Act. Plaintiff’s allegations tie back to Defendant’s conduct that was in retaliation for his reporting on the unethical conduct. For those reasons, the demurrer is sustained.

Plaintiff still does not assert any “threatening conduct independent from the alleged interference or violation of a civil right.” Because Plaintiff has failed to add additional facts to address these concerns, the Court sustains the demurrer without leave to amend.

Plaintiff also requests leave to amend to add a claim under 42 U.S.C. § 1983 as an alternative should the Court sustain the demurrer against this cause of action. Yeoh does not explain why he did not seek leave to add the cause of action to his amended complaint before filing his Second Amended Complaint.

The court finds the request for leave improper on opposition to a demurrer. Plaintiff must seek leave to amend by filing a motion and complying with the procedural requirements. (See Hataishi v. First American Home Buyers Protection Corp. (2014) 223 Cal.App.4th 1454, 1461; Cal. Rules of Court, rule 3.1324(a)–(b).)

Accordingly, Defendant’s demurrer to the Second Amended Complaint is sustained without leave to amend.

[1] Plaintiff did not request for an increase in page limit as to the opposition to the demurrer. The opposition is over the 15-page limit as stated in California Rules of Court Rule 3.1113(d). The Court will consider the arguments, but Plaintiff is admonished to properly comply with the Rules of Court.