ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS [Docket No. 5]

JOSEPH SPERO, Magistrate Judge

I. INTRODUCTION

On Friday, August 13, 2004, at 9:30 a.m., Defendant's Motion to Dismiss ("the Motion") came on for hearing. For the reasons stated below, the Motion is GRANTED in part and DENIED in part.

II. BACKGROUND A. Facts

The University of California at Berkeley ("the University") hired Plaintiff Kimmie Dao on approximately August 13, 2001, as an Accounting Assistant III, with the understanding that her probationary period would last for six months, or until approximately February 12, 2002. (First Amended Complaint ("FAC") at ¶¶ 9,15.) Plaintiff has an MBA in Finance and over 20 years' experience as an accountant. ( Id. at ¶ 9.) During her first few months of employment with the University, she was promoted twice to Accountant I and Accountant II, and given "substantial promotional salary increases." Id.

On approximately January 7, 2002, the University was served with a deposition subpoena/notice of taking deposition before the Worker's Compensation Appeals Board (WCAB) in connection with Plaintiff's worker's compensation claim against her previous employer, California Nevada Methodist Homes, where Plaintiff believes she developed chronic tendonitis. ( Id. at ¶¶ 10-11.) Upon receiving the subpoena, Plaintiff's supervisor, Winnie Ng, "ordered plaintiff into her office and was visibly upset" with her disability and WCAB claim. ( Id. at ¶ 12.) Plaintiff alleges that "Defendants were concerned that plaintiff would file a similar disability claim or complaint against the university at some point in the future" and that three days after the meeting, Ms. Ng began a "concerted attempt" to retaliate and discriminate against Plaintiff on the basis of her disability, including fabrication of performance-related documents to establish that Plaintiff was a poor performer. ( Id. at ¶¶ 13-14.) According to Plaintiff, Ms. Ng's ultimate purpose was to terminate her employment. ( Id. at ¶ 14.)

In late January or early February 2002, Ms. Ng informed Human Resources that Plaintiff would be "released" from her employment before her six-month probationary status expired on or about February 12, 2002. ( Id. at ¶ 15.) On February 12, 2002, however, Plaintiff was informed that she would be terminated rather than "released," on the basis that she was a "poor performer" who "could not keep up with the computer workload." ( Id. at ¶ 16.) Although Plaintiff was told that her termination was effective "immediately," she "was not separated from the University until February 28, 2002." ( Id.)

On March 8, 2002, Plaintiff sent a letter to UC Berkeley Chancellor Berdahl regarding her termination. ( Id. at ¶ 18.) Chancellor Berdahl responded in a letter dated April 1, 2002, informing Plaintiff that she was a probationary employee and so not entitled to a hearing or any other due process protections. (FAC at ¶ 18.) Specifically, the Chancellor wrote, "[U]nder Policy 61 of the Personnel Policies for Staff Members, probationary employees may be released at any time at the discretion of the University." (Plaintiff's Request for Judicial Notice, Ex. A.) Plaintiff further alleges that the University "has consistently taken the position that plaintiff was a probationary employee that was not entitled to any . . . protections under its policies and procedures, including but not limited to any hearing before a neutral fact-finder." (FAC at ¶ 18.)

B. Procedural history

Plaintiff filed an administrative complaint with the Department of Fair Employment and Housing and/or the Equal Employment Opportunity Commission, and has received a right-to-sue letter. (FAC at 2:17-20.) On February 10, 2003, she filed a complaint with the Superior Court of the State of California in Alameda County, asserting claims for discrimination and retaliation under Fair Employment and Housing Act (FEHA), California Government Code §§ 12940 et seq. Complaint. The case was set for trial on May 7, 2004. (Opposition at 3:24.)

On April 16, 2004, three weeks before trial, Defendant The Regents of the University of California ("the Regents") provided additional discovery documents that "established that plaintiff had actually defaulted from a probationary employee to a regular career status employee prior to her official separation." ((Memorandum of Points and Authorities in Support of Defendant's 12(b)(6) Motion to Dismiss ("PA") at 3:24-28.) Based on these documents, Plaintiff determined that she could assert new causes of action based on the fact that she was not afforded access to the grievance procedures that are available for permanent University employees. ( Id. at 4:1-3.) The Superior Court granted Plaintiff leave to amend her complaint and continued the trial date until August 16, 2004. ( Id. at 4:3-5.)

In the amended complaint, Plaintiff asserted a claim under FEHA against the University (Claim One), two new state law causes of action against the University for wrongful termination and violations of the California Constitution (Claims Two and Three), and a claim under 42 U.S.C. § 1983 against her supervisors, Ms. Ng and John Ellis (Claim Four). Because the amended complaint included a federal cause of action, Defendants Ellis and Ng removed this action to federal court. (Opposition at 4:5-6.)

The Regents has filed a Rule 12(b)(6) motion to dismiss, arguing: (1) Plaintiff's claims for wrongful termination and violation of the California Constitution (Claims Two and Three) are barred by her failure to exhaust internal administrative remedies provided by the University's grievance procedures; (2) in the alternative, if Plaintiff's letter to the Chancellor was sufficient to exhaust her administrative remedies, all of her claims against the University (Claims Two, Three and Four) are barred by her failure to seek judicial mandamus review of the administrative decision; and (3) The Regents is immune from the claim of wrongful termination (Claim Two) because under Cal. Gov't Code § 815(a), a public entity is not liable for injury arising from its employees' acts or omissions except as otherwise provided by statute.

Plaintiff raises five counterarguments: (1) the exhaustion doctrine does not apply to a direct action by an employee under California Constitution Article I, Section 7, for violations of her due process rights; (2) even if the exhaustion doctrine does apply to constitutional claims, she has adequately exhausted her remedies under PPSM 70; (3) The Regents is estopped from raising the exhaustion defense because the Chancellor told Plaintiff she did not have a right to a hearing or the other grievance procedures provided for permanent employees; (4) Code of Civil Procedure § 1094.5 and the doctrine of exhaustion of judicial remedies does not apply in this case; (5) Government Code § 815.2 does not bar her common law wrongful termination claim because while public entities are immune from common law tort actions, they are nonetheless liable for their employees' actions under the doctrine of respondeat superior.

III. ANALYSIS A. Legal Standard

Dismissal of a complaint under Rule 12(b)(6) is appropriate where "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Such a finding may be based upon either a "lack of a cognizable legal theory" or "the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988). For purposes of resolving the motion, courts accept all allegations of material fact as true and construe the complaint in the light most favorable to the nonmoving party. Nat'l Wildlife Fed'n v. Espy, 4 F.3d 1337, 1380 (9th Cir. 1995).

B. Requests for Judicial Notice

The Regents requests that the Court take judicial notice of four matters outside the pleadings: (1) a letter written by Plaintiff to Chancellor Berdahl on March 8, 2002; (2) the University of California's Personnel Policies for Staff Members ("PPSM") 70, which outlines procedures for complaint resolution; (3) the Declaration of Howard Lewis, Labor Relations Advocate at UC Berkeley, who testifies to the veracity of the letter and PPSM excerpt that are attached to his declaration as Exhibits A and B, and asserts that Plaintiff's letter was not considered a grievance under PPSM 70 nor processed as one; and (4) the Declaration of Susan Combs, Manager of the Chancellor's Communication and Resource Center at UC Berkeley, who declares that the handwritten notion, "*grievance, staff," found on the Chancellor's copy of Plaintiff's letter is a keyword for internal use only and has nothing to do with any grievance procedure available to Plaintiff under University policy. (Request for Judicial Notice ("RJN"); Combs Decl.)

In her turn, Plaintiff asks the Court to take judicial notice of "governmental documents," specifically, Plaintiff's March 8, 2002 letter to the Chancellor and the Chancellor's April 1, 2002 response. (Plaintiff's Request for Judicial Notice ("PRJN"), Ex. A. These letters carry markings by the Chancellor's office (in contrast to the copy of Plaintiff's letter to the Chancellor offered by Defendant, which carries no notations or markings) and appear to have been produced by The Regents in response to Plaintiff's requests for documents. The documents are attached to Plaintiff's Request for Judicial Notice as Exhibit A.

Under Rule 12(b)(6), if "matters outside the pleading are presented to and not excluded by the court, the [12(b)(6)] motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such motion by Rule 56." Fed.R.Civ.P. 12(b). However, under the "incorporation by reference" rule, "documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6) motion to dismiss." Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994), overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002). Paragraph 18 of the complaint references Plaintiff's letter to Chancellor Berdahl, as well as the Chancellor's response. As neither party disputes the authenticity of the documents submitted, the Court takes judicial notice of these documents. The Court does not, however, take judicial notice of the notations on the copies of these documents provided by Plaintiff, as these notations were not referenced in the complaint.

The Court also takes judicial notice of PPSM 70 on the basis that it is a record of an administrative body. See Mack v. South Bay Beer Distributors, Inc., 798 F.2d 1279, 1282 (9th Cir. 1986) (holding that courts may also take judicial notice of the "records and reports of administrative bodies"); Regents of the Univ. of Cal. v. Doe, 519 U.S. 425 (1997) (holding that The Regents is an "arm of the state"); Ishimatsu v. Regents of the Univ. of Cal., 266 Cal. App. 2d 854, 864 (1968) (holding that "[T]he University is a statewide administrative agency"). The Court notes in addition that Plaintiff does not object to Defendant's request for judicial notice of PPSM 70 or challenge its authenticity.

On the other hand, the Court rejects Defendant's request for judicial notice of the Lewis and Combs declarations. See United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) (holding that "[a]ffidavits and declarations . . . are not allowed as pleading exhibits unless they form the basis of the complaint"); see also Erlich v. Glasner, 374 F.2d 681 (9th Cir. 1967) (finding reversible error where a court took judicial notice of an affidavit outside of the pleadings without converting the motion to dismiss into a motion for summary judgment). Plaintiff's complaint does not reference these declarations, which may not be considered on a 12(b)(6) motion.

Accordingly, the Court takes judicial notice of the following documents: 1) Plaintiff's March 8, 2002 letter to Chancellor Berdahl (absent notations and markings; 2) Chancellor Berdahl's April 1, 2002 response (absent notations and markings); and 3) PPSM 70.

C. Exhaustion of Administrative Remedies

The Regents argues that Plaintiff's claims for (1) violation of the California Constitution and (2) wrongful termination should be dismissed because Plaintiff failed to exhaust her administrative remedies, namely, the internal grievance procedures outlined in PPSM 70. Because Plaintiff has alleged facts that may establish that the University is estopped from asserting a defense based on the exhaustion requirement, dismissal of these claims on a 12(b)(6) motion is inappropriate.

Generally, the rule of exhaustion precludes judicial intervention until a plaintiff exhausts all administrative remedies. Roth v. City of Los Angeles, 53 Cal. App. 3d 679, 688 (1975). The California Supreme Court has ruled that this doctrine requires plaintiffs to exhaust internal grievance procedures, Westlake Cmty. Hosp. v. Superior Court, 17 Cal. 3d 465, 485 (1976), including any internal appeals mechanism, Edgren v. Regents of the Univ. of Cal., 158 Cal. App. 3d 515, 523 (1984). This requirement serves a three-fold purpose: first, it allows an organization to minimize or eliminate damages by giving it an opportunity to quickly determine if it has committed an error and remedy the problems; second, courts accord recognition to the "expertise" of the organization's quasi-judicial tribunal, and third, even if resort to the courts is ultimately necessary, the internal procedures "promote judicial efficiency by unearthing the relevant evidence and by providing a record which the court may review." Westlake, supra, 17 Cal. 3d at 476.

1. The Exhaustion Doctrine's Applicability to Constitutional Causes of Action

In what she describes as a case of first impression, Plaintiff asserts that the doctrine of exhaustion of administrative remedies does not apply to Claims Two and Three because both claims arise under the California Constitution. Specifically, Claim Two, for wrongful termination, is based on the "fundamental policy of the State of California that government employees cannot be deprived of their Liberty interest in the Due Process Clauses of the United States and California Constitutions, without being provided with procedural due process, including notice and an adequate hearing to determine the validity of the charges." FAC ¶ 27. Claim Three, for violation of the California Constitution, is based on Article I, Section 7, which provides that "a public entity may not take a property interest without due process of law." FAC ¶ 34. According to Plaintiff, because these are " direct actions" arising under the California Constitution, rather than constitutional challenges to the administrative procedures themselves, there is no exhaustion requirement. The Court disagrees.

In two cases cited by Defendant, Roth v. City of Los Angeles, 53 Cal. App. 3d 679 (1975) and Bockover v. Perko, 28 Cal. App. 4th 479 (1994), California courts have held that the exhaustion doctrine applies to challenges to administrative procedures. In Roth, the plaintiffs challenged the constitutionality of a statutory abatement scheme that required them to submit their complaint to an administrative hearing process, arguing that the process violated the plaintiffs' due process rights. Roth, supra, 53 Cal. App. at 683. The court held that the claim was barred because the plaintiffs failed to exhaust their administrative remedies. Id. at 688. In Bockover, the plaintiff brought an action for back pay and argued that her employer's internal grievance procedures — which the plaintiff did not utilize — were unconstitutional because they did not comport with due process. Bockover, 28 Cal. App. 4th 479, 485-89 (1994). The court held that the plaintiff could not bring suit without first exhausting her administrative remedies, noting that "[t]he general rule of exhaustion forbids a judicial action when administrative remedies have not been exhausted, even as to constitutional challenges." Id. at 486 (citations omitted).

Plaintiff, however, attempts to distinguish Roth and Bockover on the basis that these cases involve challenges to the constitutionality of specific statutes or procedures, whereas Plaintiff does not challenge the constitutionality of the grievance procedures themselves but only the University's failure to afford Plaintiff the benefit of those procedures. Such a distinction is not supported by any authority. To the contrary, California courts have held that the exhaustion doctrine applies not only to challenges to statutes and procedures but also to direct constitutional actions such as those asserted by Plaintiff here. See, e.g., Tiernan v. Trustees of the Cal. State Univ. and Colleges, 33 Cal. 3d 211, 217 (1982) (holding that a temporary employee's failure to exhaust her administrative remedies barred her judicial claim that the university had violated her First Amendment rights when it failed to reappoint her as an archivist); Griswold v. Mt. Diablo Unified Sch. Dist., 63 Cal. App. 3d 648, 652-53 (1978) (holding that a teacher's claim that his First Amendment rights were violated when he was discharged from position as chairman of English department was barred because he failed to exhaust his administrative remedies).

Finally, the Court rejects Plaintiff's assertion that it should apply the reasoning of Patsy v. Bd. of Regents, 547 U.S. 496, 516 (1982), to Claims Two and Three. In Pasty, the Court held that exhaustion of state administrative remedies is not a prerequisite to a federal civil rights action under 42 U.S.C. § 1983. In so ruling, the Court concluded from its review of the legislative history that Congress had not intended for the exhaustion doctrine to apply to section 1983 claims. Id. at 507. Because the present case does not raise similar issues of legislative intent, the rationale in Patsy is inapplicable.

Therefore, the Court concludes that in order to prevail on Claims Two and Three, Plaintiff must satisfy the requirements of the exhaustion doctrine.

2. Whether the March 8, 2002 Letter Exhausted Plaintiff's Administrative Remedies

Alternatively, Plaintiff argues that she has exhausted her administrative remedies because her March 8, 2002 letter to Chancellor Berdahl meets the requirements of a written request for formal review under PPSM 70. This argument fails because merely filing a grievance is not sufficient to exhaust Plaintiff's remedies under PPSM 70. See PPSM, Steps II and III (providing for appointment of fact finder and for appeal). Moreover, Plaintiff's letter does not address the issue raised in Claims Two and Three, namely, the alleged failure to of the University to afford Plaintiff due process before terminating her. See Edgren v. The Regents of the Univ. of Cal., 158 Cal. App. 3d 515, 520 (1984) (holding that "[before seeking judicial review a party must show that he has made a full presentation to the administrative agency upon all issues of the case and at all prescribed stages of the administrative proceedings"). Therefore, the Court rejects Plaintiff's assertion that she has exhausted her administrative remedies.

3. Equitable Estoppel

Plaintiff asserts that she has alleged facts which, if true, establish that The Regents is barred under the doctrine of estoppel from raising the defense of failure to exhaust administrative remedies. In particular, Plaintiff cites to the University's "ongoing position" that Plaintiff was a probationary employee and thus not entitled to a hearing or any due process to challenge her termination. The Court agrees.

Although estoppel was unavailable against the government at common law, California courts hold that estoppel may be asserted against the government "where justice and right require it." Shuer v. County of San Diego, 117 Cal. App. 4th 476, 486 (2004) (citing Lentz v. McMahon, 49 Cal. 3d 393, 399 (1989)). Estoppel is appropriate when (1) the party to be estopped was apprised of the facts, and intended that its conduct be acted upon or acted in such a manner that the party asserting the estoppel had a right to believe it was so intended; and (2) the party asserting estoppel was ignorant of the true state of facts, and relied on the conduct to its injury. Id. The existence of an estoppel is a question of fact. Aetna Cas. Surety Co. v. Humboldt Loaders, Inc., 202 Cal. App. 3d 921, 930 (1988).

A government entity may be estopped from asserting a defense of failure to exhaust administrative remedies where it provided "misleading and mistaken information concerning the availability of an administrative remedy." Sheer, 117 Cal. App. 4th at 486. In Sheer, the County dismissed Sheer, a psychiatrist, during her probationary period. Id. at 480. Subsequently, the Executive Officer of the Civil Service Commission informed Sheer that she could contest her termination at a hearing only if she alleged violation of her liberty interest, which meant showing that she was dismissed because of extreme misconduct, i.e. criminal, or possibly if she alleged discrimination. Id. Because Sheer did not believe that she fell into one of those two categories, she failed to file a complaint with the commission. Id. at 481. The court rejected the County's defense that Sheer had not exhausted her administrative remedies, for "a government entity will be estopped from asserting as a defense a failure to exhaust administrative remedies when a government agent has negligently or intentionally caused a party to fail to comply with a procedural precondition to recovery." Id. at 486.

Here, as in Sheer, Plaintiff alleges she was misled about the protections and procedures available to her. In particular, the Chancellor wrote in reply to Plaintiff's letter, "I can certainly understand your being upset about being released for the reason for `poor performance.' However, under Policy 61 of thePersonnel Policies for Staff Members, probationary employees may be released at any time at the discretion of the University." (Plaintiff's Request for Judicial Notice, Ex. A.) Plaintiff further alleges that The Regents "has consistently taken the position that plaintiff was a probationary employee that was not entitled to any such protections under its policies and procedures." (FAC at 5:16-18.) If true, these allegations may be sufficient to estop the University from asserting a defense based on failure to exhaust administrative remedies. Therefore, the Court declines to dismiss Claims Two and Three at this stage of the case. D. Exhaustion of Judicial Remedies

Alternatively, The Regents argues that if Plaintiff's March 8, 2002 Letter is deemed a "grievance," Plaintiff's state law claims and her FEHA claim against the University are barred because Plaintiff did not challenge the Chancellor's rejection of her grievance in a mandamus action, as required under the doctrine of judicial estoppel. The Court disagrees.

Under the doctrine of judicial estoppel, "[u]nless a party to a quasi-judicial proceeding challenges the agency's adverse findings made in that proceeding, by means of mandamus action in superior court, those findings are binding in later civil actions." Johnson v. City of Loma Linda, 24 Cal 4th 61, 69-70 (2000). The availability and scope of mandamus proceedings are governed by California Code of Civil Procedure § 1094.5, which provides:

Where the writ is issued for the purpose of inquiring into the validity of any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal, corporation, board, or officer, the case shall be heard by the court sitting without a jury. . . . The inquiry in such a case shall extend to the questions whether the respondent has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.

Cal. Civ. Proc. § 1094.5(a)-(b).

The requirement that plaintiffs overturn adverse administrative decisions through mandamus proceedings is grounded in the doctrine of collateral estoppel, or issue preclusion, which "bars the relitigating of issues which were previously resolved in an administrative hearing by an agency acting in a judicial capacity." Knickerbocker v. City of Stockton, 199 Cal. App. 3d 235, 241-42 (1988). "Traditionally, collateral estoppel has been found to bar relitigation of an issue decided at a previous proceeding `if (1) the issue necessarily decided at the previous [proceeding] is identical to the one which is sought to be relitigated; (2) the previous [proceeding] resulted in a final judgment on the merits; and (3) the party against whom collateral estoppel is asserted was a party or in privity with a party at the prior [proceeding].'" Id. at 244 (quoting People v. Sims, 32 Cal. 3d 468, 484 (1982)). Thus, collateral estoppel "is not a complete bar to the maintenance of another action between the parties. . . . [I]t operates only as an estoppel or conclusive adjudication as to those issues in the second proceeding which were actually litigated and determined in the first proceeding." Id. at 245 (quoting Henn v. Henn, 26 Cal. 3d 323, 329-30 (1980)).

Here, none of the issues raised in Plaintiff's claims against the University were previously decided by the University. Specifically, as to Claims Two and Three, based on the alleged denial of Plaintiff's right to due process, Plaintiff did not raise in her letter to Chancellor Berdahl the arguments she now raises because she herself was not aware at the time she wrote the letter that she might be entitled to the protections contained in PPSM 70. In the words of Defendant:

Plaintiff's new state claims are based on her allegations that she "defaulted" to a career employee and was therefore entitled to due process before being terminated. . . . Plaintiff's letter does not even mention this claim or the facts upon which it is based.

Reply at 4. Having conceded that the primary issue raised in Claims Two and Three was not raised by Plaintiff in her letter to the Chancellor, Defendant cannot now argue that that very issue was decided by Defendant in the Chancellor's April 1, 2002 letter. Indeed, there is no reference to this particular issue in the Chancellor's letter.

Similarly, the Chancellor does not in his April 1, 2002 letter address Plaintiff's allegation in her FEHA claim (Claim One) that the University discriminated against her on the basis of disability. The letter does not mention Plaintiff's alleged disability, let alone make any findings as to whether Plaintiff's disability was a factor in her termination. Rather, the Chancellor cites to the fact that Plaintiff was a "probationary employee," and, therefore, could be "released at any time at the discretion of the University." Plaintiff's Request for Judicial Notice, Ex. A.

Because Plaintiff's claims against the University do not amount to challenges to the validity of any final determinations of a quasi-judicial body, the doctrine of judicial mandamus does not apply.

E. Immunity from Wrongful Termination Claim (Claim Two)

The Regents argues that Plaintiff's claim for wrongful termination is barred because it is immune from such claims. The Court agrees.

The Regents is a public entity pursuant to Cal. Gov. Code § 811.2 (providing that "`Public entity' includes the State, [and] the Regents of the University of California"). As such, the University is immune from liability arising out of common law tort claims under California Government Code § 815, which provides as follows:

Except as otherwise provided by statute: (a) A public entity is not liable for any injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.

Cal. Gov. Code § 815(a). This provision applies to claims for wrongful discharge in violation of public policy because the claim is considered is a common law tort under California law. See Palmer v. Regents of the Univ. of Cal., 107 Cal. App. 4th 899, 911-12 (2003) (holding that claim for wrongful termination in violation of public policy against the University of California was barred under § 815(a) because the University is a public entity). Accordingly, Plaintiff's wrongful termination claim is barred by § 815(a).

Moreover, the Court rejects Plaintiff's assertion that the University may be liable for wrongful termination under Cal. Gov't Code § 815.2(a). That section provides that a:

public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.

Cal. Gov't Code § 815.2(a). Section 815.2(a) does not apply to Plaintiff's wrongful termination claim against the University because, under California law, individual employees may not be sued for wrongful discharge in violation of public policy. See Khajavi v. Feather River Anesthesia Med. Group, 84 Cal. App. 4th 32, 53 (2003) ("As a matter of law, only an employer can be liable for the tort of wrongful termination in violation of public policy."); Phillips v. Gemini Moving Specialists, 63 Cal. App. 4th 563, 576-77 (1998) (reviewing relevant cases and concluding that plaintiff may not sue his employer's paymaster for wrongful discharge, because the tort of wrongful discharge "has its basis in the employer-employee relationship and [the paymaster] was not plaintiff's employer); Jacobs v. Universal Dev. Corp., 53 Cal. App. 4th 692, 704 (1997) ("Only an employer can be liable for tortious discharge, and fellow employees cannot be held accountable for tortious discharge on a conspiracy theory.").

Therefore, Plaintiff's wrongful termination claim must be dismissed. IV. CONCLUSION

For the reasons stated above, the Motion is GRANTED as to Claim Two, which is dismissed with prejudice. The Motion is DENIED as to all other claims.

IT IS SO ORDERED.