AINA vs TONG, et al.

25CV027109: AINA vs TONG, et al. 08/19/2026 Hearing on Demurrer to First Amended Complaint in Department 8D

Tentative Ruling

NOTICE:

Consistent with Local Rule 1.06(B), any party requesting oral argument on any matter on this calendar must comply with the following procedure:

To request limited oral argument, on any matter on this calendar, you must call the Department 8D Oral Argument Request Line at (916) 874-7719 by 4:00 p.m. the Court day before the hearing and advise opposing counsel. At the time of requesting oral argument, the requesting party shall leave a voice mail message: a) identifying themselves as the party requesting oral argument; b) indicating the specific matter/motion for which they are requesting oral argument; and c) confirming that it has notified the opposing party of its intention to appear and that opposing party may appear via Zoom using the Zoom link and Meeting ID indicated below.

If no request for oral argument is made, the tentative ruling becomes the final order of the Court. Unless ordered to appear in person by the Court, parties may appear remotely either telephonically or by video conference via the Zoom video/audio conference platform with notice to the Court and all other parties in accordance with Code of Civil Procedure §367.75. Although remote participation is not required, the Court will presume all parties are appearing remotely for non-evidentiary civil hearings.

The Department 8D Zoom Link is https://saccourt-ca-gov.zoomgov.com/j/16113421868 and the Zoom Meeting ID is 161 1342 1868. To appear on Zoom telephonically, call (833) 568-8864 and enter the Zoom Meeting ID referenced above. NO COURTCALL APPEARANCES WILL BE ACCEPTED.

Parties requesting services of a court reporter will need to arrange for private court reporter services at their own expense, pursuant to Government code §68086 and California Rules of Court, Rule 2.956. Requirements for requesting a court reporter are listed on the Court Reporter Services webpage available on the Sacramento Superior Court website at https://saccourt.ca.gov/general-information/court-reporter-services-transcripts. Parties may contact Court- Approved Official Reporters Pro Tempore by utilizing the list of Court Approved Official Reporters Pro Tempore available at https://saccourt.ca.gov/home/showpublisheddocument/227/639084034465370000.

A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Court’s Approved Official Reporter Pro Tempore list.

Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver

25CV027109: AINA vs TONG, et al. 08/19/2026 Hearing on Demurrer to First Amended Complaint in Department 8D

and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will forward the form to the Court Reporter’s Office and an official reporter will be provided.

TENTATIVE RULING:

Defendants California State Teachers’ Retirement System’s (“CalSTRS”) and Steven Tong’s (“Tong”) (collectively “Defendants”) demurrer to Plaintiff in pro per Ibukunoluwa Aina’s (“Plaintiff”) First Amended Complaint (“FAC”) is ruled upon as follows.

This matter was originally set for hearing on July 15, 2026 but was continued to this date to permit the parties to meet and confer as required by Code of Civil Procedure section 430.41. Pursuant to this Court’s July 15, 2026 Order, Defendants’ counsel filed a declaration averring that he and Plaintiff took part in a 25-minute video conference on July 21, 2026, during which the parties discussed Defendants’ pending demurrer, but that this conversation did not resolve the “pleadings disputes.” (Supplemental Declaration of Christopher Beatty filed July 30, 2026 [“Beatty Supp. Decl.”], ¶¶ 2, 7.)

Accordingly, the Court finds that the parties have now complied with the meet-and-confer requirement and the Court now issues the following tentative ruling.

Defendants’ unopposed request for judicial notice is GRANTED for the limited purposes permitted for judicial notice. (See, Evid. Code § 451, subd. (a); §452, sub. (b)-(d); see also, Johnson & Johnson v. Superior Court (2011) 192 Cal.App.4th 757, 768 [court may take judicial notice of the existence of court documents but not to the truth of the statements contained therein]; Kilroy v. State of California (2004) 119 Cal.App.4th 140, 145-148; Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1569-70.)

Overview

This is an employment action. On February 13, 2026, Plaintiff filed his operative FAC against Defendant asserting causes of action for (1) National Origin Discrimination; (2) Racial Discrimination (based on disparate treatment and disparate impact), (3) Retaliation, (4) Breach of Fiduciary Responsibility, and (5) “Negligence, Complicity and Permitting the Breach of A Co- Fiduciary.”

Plaintiff, who alleges that he is black and “a first-generation immigrant from Nigeria,” alleges,

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

25CV027109: AINA vs TONG, et al. 08/19/2026 Hearing on Demurrer to First Amended Complaint in Department 8D

inter alia, that he “joined defendant CalSTRS sometime January 2020” and that “in the first two years of his employment in the investment officer cadre, he received numerous commendations, salary raises, passed several professional examinations, got a promotion and received incentive bonuses.” (FAC ¶¶ 12, 15.) Plaintiff further contends that “sometime around Q3 2022, he applied for an entry-level managerial position, a position for which he was well qualified ” (FAC ¶ 16.) Plaintiff alleges that about a month after his application was submitted, Defendant Tong (who was the former director of the Risk Mitigating Strategies unit in CalSTRS) informed Plaintiff that “a committee had requested his name be removed from the list of interviewees for the role.” (FAC ¶¶ 14, 17.)

Plaintiff contends that the position was readvertised after no candidate from the initial selection process was deemed suitable. (FAC ¶ 18.)

Plaintiff further alleges that sometime around Q4 2022, Plaintiff was:

invited to interview for the readvertised role of Associate Portfolio Manager, Strategy & Risk, and alleges based on information and belief that he may have experienced racial discrimination and retaliation, because the role was offered to a White employee who may have been comparable to the plaintiff, but considering all factors based on professional experience, qualifications, skill and ability to succeed on the role, may have been less qualified than the plaintiff.

(FAC, ¶ 20.)

Plaintiff also alleges, on the basis of information and belief, that “within a couple of weeks of the recruited employee’s resumption, [Tong] removed most of the responsibilities of risk management from the individual.” (FAC at ¶ 21.) Plaintiff further contends that, sometime in Q1 2023, Tong announced “he would be separating Risk Management from that role.” (Ibid.) Plaintiff contends that he:

again approached [Tong] to offer him the role, but on the basis of information and belief, alleges [Tong] may have racially discriminated and retaliated against him because he assigned the role to another White employee who may have been comparable to the plaintiff, but considering all factors based on professional experience, qualifications, skill and ability to succeed on the role, may have been less qualified than [P]laintiff.

(FAC, ¶ 22.)

Plaintiff alleges that another Associate Portfolio Manager position for Systemic Risk Premier opened up in the RMS unit sometime around July 2023, and that “based on based on information and belief, that [Tong] may have again racially discriminated and retaliated against him by using

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

25CV027109: AINA vs TONG, et al. 08/19/2026 Hearing on Demurrer to First Amended Complaint in Department 8D

derogatory mischaracterizations of his person and professional abilities, by regularly making remarks, that [P]laintiff could not be promoted because he lacked ‘Soft Skills.’” (FAC at ¶ 23.)

Plaintiff also contends that he applied for the position of Portfolio Manager, Strategic Initiatives, sometime around May 2024 and that, “on the basis of information and belief” Defendants “may have racially discriminated against him because a White employee who may have been comparable to plaintiff, but considering all factors may have been less qualified than [P]laintiff was offered the role.” (FAC at ¶ 25.)

In sum, plaintiff alleges that Tong “consistently undermined [P]laintiff’s professional work and credibility, rejecting his contributions, suggestions, and ideas of the management of the RMS portfolio” and that “ Tong’s actions of consistently rejecting risk warnings, credible suggestions and contributions of [P]laintiff may have cost the Teachers’ fund about $10 billion in investment losses and underperformance between late 2022 and mid-2025.” (FAC at ¶¶ 26, 27.)

Defendants now demur to the FAC on eleven (11) different grounds. Specifically, Defendants jointly and severally demur on the following grounds:

Demurrer to Third Cause of Action

1. The Third Cause of Action fails to state facts sufficient to constitute a cause of action. Plaintiff’s Labor Code section 1102.5 claim fails because it was not exhausted as required under the Government Claims Act.

Demurrer to Fourth Cause of Action

2. The Fourth Cause of Action fails to state facts sufficient to constitute a cause of action. Plaintiff’s Probate Code section 16420 claim fails because it was not exhausted as required under the Government Claims Act.

Demurrer to Fourth Cause of Action

3. The Fourth Cause of Action fails to state facts sufficient to constitute a cause of action. Plaintiff’s Probate Code section 16420 claim fails because Defendants are immune from this form of liability.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

25CV027109: AINA vs TONG, et al. 08/19/2026 Hearing on Demurrer to First Amended Complaint in Department 8D

Demurrer to Fourth Cause of Action

4. The Fourth Cause of Action fails because the Plaintiff does not have the legal capacity. Plaintiff’s Probate Code section 16420 claim fails because Plaintiff lacks standing to assert this claim.

Demurrer to Fourth Cause of Action

5. The Fourth Cause of Action fails because the court has no jurisdiction of the subject of the cause of action alleged in the pleading.

Demurrer to Fifth Cause of Action

6. The Fifth Cause of Action fails to state facts sufficient to constitute a cause of action. Plaintiff’s common law negligence claim fails because Defendants are immune from this form of liability.

(Notice of Demurrer at 2:22-3:19.)

CalSTRS also separately demurs on the following ground:

Demurrer to Fourth Cause of Action

7. The Fourth Cause of Action fails to state facts sufficient to constitute a cause of action. Plaintiff’s Probate Code section 16420 claim fails because CalSTRS was specifically excluded from this form of liability.

(Notice of Demurrer at 3:21-24.)

Finally, Tong separately demurs on the following grounds:

Demurrer to First Cause of Action

8. The First Cause of Action fails to state facts sufficient to constitute a cause of action. Plaintiff’s National Origin Discrimination claim fails because Mr. Tong is not Plaintiff’s employer.

Demurrer to Second Cause of Action

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

25CV027109: AINA vs TONG, et al. 08/19/2026 Hearing on Demurrer to First Amended Complaint in Department 8D

9. The Second Cause of Action fails to state facts sufficient to constitute a cause of action. Plaintiff’s Racial Discrimination claim fails because Mr. Tong is not Plaintiff’s employer.

Demurrer to Third Cause of Action

10. The Third Cause of Action fails to state facts sufficient to constitute a cause of action. Plaintiff’s Labor Code Retaliation claim fails because Mr. Tong is not Plaintiff’s employer.

Demurrer to Fourth Cause of Action

11. The Fourth Cause of Action fails to state facts sufficient to constitute a cause of action. Plaintiff’s Probate Code section 16420 claim fails because it applies to trust relationships and not employers seeking to sue their former supervisors.

(Notice of Demurrer at 4:2-17.)

Legal Standard

The function of a demurrer is to test the sufficiency of the pleading it challenges by raising questions of law. (Salimi v. State Comp. Ins. Fund (1997) 54 Cal.App.4th 216, 219; Nordlinger v. Lynch (1990) 225 Cal.App.3d 1259, 1271.)

A demurrer “tests the pleadings alone and not the evidence or other extrinsic matters.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) The purpose of a demurrer is to test the legal sufficiency of a claim. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) For the purpose of determining the effect of a complaint, its allegations are liberally construed, with a view toward substantial justice. (Code Civ. Proc. §452; Amarel v. Connell (1988) 202 Cal.App.3d 137, 140-141; Quelimane Co. v.

Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 43, fn. 7.) In this respect, the Court treats the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law, and considers matters which may be judicially noticed. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1111-1112.) A general demurrer does not admit contentions, deductions, or conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice. (Blank, supra, 39 Cal.3d at p. 318; William S.

Hart Union High School Dist. v. Regional Planning Com. (1991) 226 Cal.App.3d 1612, 1616, fn. 2.)

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

25CV027109: AINA vs TONG, et al. 08/19/2026 Hearing on Demurrer to First Amended Complaint in Department 8D

A demurrer may be sustained only if the complaint lacks any sufficient allegations to entitle the plaintiff to relief. (Financial Corp. of America v. Wilburn (1987) 189 Cal.App.3d 764, 778.) “Plaintiff need only plead facts showing that he may be entitled to some relief . . . we are not concerned with plaintiff's possible inability or difficulty in proving the allegations of the complaint.” (Highlanders, Inc. v. Olsan (1978) 77 Cal.App.3d 690, 696-697.) “[Courts] are required to construe the complaint liberally to determine whether a cause of action has been stated, given the assumed truth of the facts pleaded.” (Picton v.

Anderson Union High School Dist. (1996) 50 Cal.App.4th 726.) A demurrer admits the truth of all material facts properly pled and the sole issue raised by a general demurrer is whether the facts pled state a valid cause of action – not whether they are true. (Serrano v. Priest (1971) 5 Cal.3d 584, 591.)

Discussion

As a threshold matter, the Court notes that on August 3, 2026 Plaintiff filed a “Supplemental Opposition to Defendant’s Supplemental Declaration Regarding Demurrer.” The Court did not consider this filing as it was not authorized by Code of Civil Procedure section 1005 and since Plaintiff did not otherwise seek or obtain leave of court to file the same. The Court notes that, even if it considered the filing, it would not affect the outcome of the Court’s ruling

Fourth Cause of Action (Breach of Fiduciary Responsibility)

As mentioned, Defendants’ grounds 2-5, 7 and 11 for demurrer target Plaintiff’s fourth cause of action for breach of fiduciary duty. In doing so, Defendants’ notice of demurrer and moving memorandum of points and authorities characterize Plaintiff’s fourth cause of action as “Plaintiff’s Probate Code section 16420 claim.” (See, e.g., Notice of Demurrer at 3:2-4; 3:6-8; 3:10-12; 3:14-15; 3:22-24; 4:15-17; Moving MPA at 8:9-12; 9:14-15; 9:22-24; 12:8-14; 12:21- 22; 12:25-28; 13:2-4; 13:25-26; 13:26-14:9; 14:10-26; 15:2-9.)

In opposition, Plaintiff argues that “Defendants cite Probate Code section 16420 dozens of times in their memorandum, yet that statute is not pleaded in the FAC. This is not a minor framing issue; it confirms Defendants are demurring to a claim Plaintiff did not assert. To the extent the demurrer depends on importing unpled statutory elements or extrinsic “facts” to create an exhaustion or immunity defense, it constitutes an improper speaking demurrer and must be rejected.” (Opposition at 2:2-6.)

Indeed, in reply, Defendants explain that:

Plaintiff’s original complaint alleged a breach of fiduciary responsibility claim based on the Probate Code section 16420. (See Complaint for Damages, 11/07/2025, ¶¶ 86-108.) In his amended complaint, Plaintiff also alleges a breach of fiduciary responsibility claim.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

25CV027109: AINA vs TONG, et al. 08/19/2026 Hearing on Demurrer to First Amended Complaint in Department 8D

(See First Amended Complaint (“FAC”), 02/13/2026, ¶¶ 115-122.) As a result, counsel for the California State Teacher’s Retirement System (CalSTRS) inadvertently thought that Plaintiff’s breach of the fiduciary responsibility claim in the first amended complaint was based on the Probate Code.

(Reply at 2:3-9.)

Defendants go on to argue, that despite this inadvertent error, “CalSTRS’s pleading challenges to the first amended complaint are valid and completely bar Plaintiff’s third (retaliation), fourth (breach of fiduciary responsibility) and fifth (negligence) claims. (Id., at 2:9-11.) Further, in his supplemental declaration, Defendants’ counsel once more acknowledges that he made “ a drafting error on the demurrer and labelled Plaintiff’s fourth claim as being based on the Probate Code because that was the case in his original complaint” (Beatty Supp. Decl., ¶ 4), further contends that he had explained the drafting error to Plaintiff, and that he also “explained to Plaintiff, Defendant’s demurrer to this claim clearly challenges Plaintiff’s Fourth Cause of Action because it was not properly exhausted as required under the Government Claims.” (Ibid.)

The Court OVERRULES Defendants’ demurrer as to grounds 2-5, 7 and 11—all of which target Plaintiff’s fourth cause of action. There is a fundamental notice and due process issue where a ground for a demurrer is aimed at a non-existent cause of action—here a Probate Code 16420 claim. Again, both Defendants’ Notice of Demurrer as well as Defendants’ moving memorandum of points and authorities consistently characterize the targeted fourth cause of action as “Plaintiff’s Probate Code section 16420 claim” despite the fact that the FAC does not even mention the Probate Code section once, much less that specific section. [1] Indeed, Plaintiff argues avidly in opposition that Defendants’ demurrer must fail because it repeatedly analyzes and invokes an unpled statute—Probate Code section 16420. (See, e.g., Opposition at 2:2-8; 6:21-26; 7:3-4;7:20-21; 8:11-18.)

The Court agrees. Because grounds 2-5, 7, and 11 target a cause of action which is not pleaded in the FAC, the Court OVERRULES Defendants’ demurrer on these grounds.

The Court further notes that Defendants argue for the first time in reply, and its supplemental declaration regarding meet and confer, that its demurrer still properly challenges the fourth cause of action because Plaintiff’s “breach of the fiduciary responsibility cause of action” is still barred because it was not exhausted pursuant to the Government Claims act. The Court, in its discretion, declines to consider these arguments. It is elementary that points raised for the first time in a reply brief are not considered by the Court, as Plaintiff would have no opportunity to respond to the issues raised. (See St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 783; Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn. 3.) Again, there is also a fundamental notice and due process issue

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

25CV027109: AINA vs TONG, et al. 08/19/2026 Hearing on Demurrer to First Amended Complaint in Department 8D

raised where a ground for demurrer was not set forth in the Notice. (Cal. Rules of Court, rule 3.1320(a) [“Each ground of demurrer must be in a separate paragraph and must state whether it applies to the entire complaint, cross-complaint, or answer, or to specified causes of action or defenses.”].)

Third Cause of Action (Labor Code § 1102.5)

As indicated above, Defendants’ first jointly demur to Plaintiff’s third cause of action for retaliation pursuant to Labor Code section 1102.5 on the ground that that this cause of action fails because it was not exhausted as required under the Government Claims Act (“GCA”). (Notice of Demurrer at 2:22-25.) In opposition, Plaintiff argues that:

Defendants’ Government Claims Act argument fails at the threshold because it is not tethered to any defect apparent on the face of the FAC. To the extent Defendants contend Plaintiff was required to present a claim under Government Code section 945.4, Defendants must show from the FAC (or judicially noticeable matters) that the particular causes of action seek “money or damages” from a public entity (Gov. Code, § 905) or from an employee for acts within the course and scope of employment (Gov. Code, § 950.2). Defendants have not made that showing on this demurrer.

(Opposition at 5:24-6:2.)

The GCA applies to Labor Code section 1102.5 claims. (Le Mere v. Los Angeles Unified School Dist. (2019) 35 Cal.App.5th 237, 245-247.) Generally, no suit for money or damages may be brought against a public entity or public employee until a written claim has been presented to the entity and either acted upon or deemed rejected. (Gov. Code §§ 945.4, 950.2.) “Compliance with the claims statute is mandatory, and failure to file a claim is fatal to the cause of action.” (Pacific Tel. & Tel. Co. v. Cnty. Of Riverside (1980) 106 Cal.App.3d 183, 188.)

Compliance with the GCA is an element of a cause of action for damages against a public entity or public employee. (State v. Superior Court (2004) 32 Cal.4th 1234, 1244.) “Timely claim presentation is not merely a procedural requirement, but rather, a condition precedent to a plaintiff’s maintaining an action against a defendant, and thus, an element of the plaintiff's cause of action.” (K.J. Arcadia Unified School Dist. (2009) 172 Cal.App.4th 1229, 1238.) The GCA requires the timely presentation of a written claim for money or damages directly to a public entity, and the rejection of that claim, as a condition precedent to a tort action against either the public entity or an individual public employee acting within the scope of his or her employment. (Gov. §§ 911.2, 945.4, 950.2; State of California v.

Superior Court (Bodde) (2004) 32 Cal.4th 1234, 1239.) Failure to plead facts showing compliance with the GCA or an excuse for

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

25CV027109: AINA vs TONG, et al. 08/19/2026 Hearing on Demurrer to First Amended Complaint in Department 8D

noncompliance subjects the complaint to demurrer. (State of California, supra, 32 Cal.4th at 1245.)

Here, the Court finds that Plaintiff was required to allege proper compliance with the GCA and that Plaintiff has failed to do so. In this regard, the Court rejects Plaintiff’s argument in opposition that Defendants failed to demonstrate that that the third cause of action seeks “money or damages.” (Opposition at 5:24-6:2.) Rather, Plaintiff’s FAC prays for money damages against Defendants in relation to the third cause of action. (See FAC at ¶ 142-148.)

Thus, the Court finds that the GCA applies to the third cause of action and, as a result, Plaintiff was required to allege compliance with the GCA. Because the FAC contains no allegations regarding compliance (or excuse for noncompliance) with the GCA, the demurrer as to the third cause of action must be SUSTAINED. However, because the Court is not yet persuaded that Plaintiff is unable to state facts to support his third cause of action, the Court grants leave to amend.

Because Defendants demurrer to the third cause of action must be sustained on this basis, the Court need not, and does not, reach the additional grounds for demurrer directed at the third cause of action.

Fifth Cause of Action (Negligence, Complicity, and Permitting the Breach of a Co-Fiduciary)

Defendants also jointly demur to Plaintiff’s fifth cause of action for negligence, complicity, and permitting the breach of co-fiduciary on the ground that Defendants are immune from this form of liability. (Notice of Demurrer at 3:17-19.) Defendants more precisely argue that there is no statute that specifically makes CalSTRS liable for a common law negligence claim and thus the claim is barred pursuant to governmental immunity. (Moving MPA at 13:2-4.) Defendants further contend that Plaintiff is unable to allege this common law negligence claim against Tong because the gravamen of Plaintiff’s claim is to challenge the hiring and promotion practice of CalSTRS directly and through Tong; thus, argues Defendants, governmental immunity covers these alleged actions because they were actions of CalSTRS. (Id., at 13:12-16.)

In opposition, Plaintiff rejoins that “an immunity defense supports a demurrer only where it is established as a matter of law on the face of the FAC or by judicially noticeable facts” and that Defendants failed to make that showing. (Opposition at 7:16-21.)

Government Code section 815 provides that a public entity, such as CalSTRS here, 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,” unless as otherwise provided by statute. (Gov. Code, § 815 subd. (a).) This statute operates to abolish all common law or judicially declared forms of

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

25CV027109: AINA vs TONG, et al. 08/19/2026 Hearing on Demurrer to First Amended Complaint in Department 8D

liability for public entities except when provided by statute or the state or federal constitutions. (See, e.g., Becerra v. County of Santa Cruz (1988) 68Cal.App.4th 1450, 1457.)

Here, there is no dispute that CalSTRS is a public entity. Accordingly, CalSTRS is only liable for a common law negligence claim if provided by statute. Because Plaintiff fails to allege any statute which confers liability, or to argue the existence of any such statute in its opposition, the fifth cause of action must fail as to CalSTRS.

The Court also finds that the fifth cause of action, as currently pled, must fail as to Tong. While Government Code section 820 subdivision (a) provides that a public employee is liable for injury caused by their act or omission to the same extent as a private person, when (as argued by Defendants) the specific injurious conduct at issue can only be committed by the public entity in its own right, not by the individual employee, then the employee cannot be personally liable, and the entity cannot be held vicariously liable. (See Miklosy v.

Regents of University of California (2008) 44 Cal.4th 876, [superseded by statute on other grounds as stated in Taswell v. The Regents of the University of California (2018) 23 Cal.App.5th 343, 358]; see also Yee v. Superior Court (2019) 31 Cal.App.5th 26, 40.) Indeed, Plaintiff does not respond to this argument in his opposition which the Court construes as a concession on the merits. (D.I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, 728, n.4 [A party’s failure to oppose an argument is construed as a concession on the merits of that argument].)

Accordingly, the Court SUSTAINS Defendants’ joint demurrer as to the fifth cause of action. However, because the Court is not yet persuaded that Plaintiff is unable to state facts to support his fifth cause of action, the Court grants leave to amend.

First Cause of Action (National Origin Discrimination) and Second Cause of Action (Racial Discrimination)

Finally, Tong demurs to the first cause of action for national origin discrimination and the second cause of action for racial discrimination on the ground that these claims fail because Tong is not Plaintiff’s employer. Defendants argue that a plaintiff cannot sue an individual defendant under the FEHA for discrimination because those claims are limited to employers. (Moving MPA at 11:19-23.) Defendants thus argue that because Tong was only Plaintiff’s supervisor, and not his employer, Plaintiff is unable to maintain his FEHA discrimination claims against Tong. (Id., at 11:24-27.) In opposition, Defendant argues that:

As to the FEHA causes of action, the FAC pleads discrimination and retaliation claims against the employer and seeks appropriate injunctive, statutory and equitable relief. FEHA liability for discrimination and retaliation runs against the employer, not individual supervisors. (Reno v. Baird (1998) 18 Cal. 4th 640,

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

25CV027109: AINA vs TONG, et al. 08/19/2026 Hearing on Demurrer to First Amended Complaint in Department 8D

663—664 [no individual liability for discrimination]; Jones v. The Lodge at Torrey Pines Partnership (2008) 42 Cal. 4th 1158, 1173 [no individual liability for retaliation].) FEHA does, however, allow individual liability for harassment and for aiding and abetting discrimination, i.e., discriminatory and retaliatory conduct that is malicious and persistent, with any semblance of conspiracy and abuse of authority. (Gov. Code, § 12940, subd. (j)(3).)

(Opposition at 4:26-5:5; see also 6:3-14)

In reply, Defendants contend that Plaintiff’s opposition concedes that his discrimination claims cannot be asserted against Tong because Tong was merely Plaintiff’s supervisor. (Reply at 4:17- 19.) In regards to Plaintiff’s contention that harassment claims are available against supervisors, Defendants argue that such a contention is “beside the point because his allegations about not being promoted do not constitute harassment as a matter of law.” (Id., at 5:1-3.)

The Court agrees with Defendants. Discrimination in violation of FEHA and Title VII is limited to employers, only, with no personal liability against an individual supervisor or coworker. (See Code Civ. Proc., § 12940 subdivision (a) and (d); 42 U.S.C. § 2000e(b); see also Miller v. Maxwell’s Intern. Inc. (9th Cir. 1993) 991 F.2d 583, 587; Reno v. Baird (1998) 18 Cal.4th 640.) Indeed, it appears that Plaintiff’s opposition concedes this point. The Court also agrees with Defendants, that to the extent Plaintiff contends he has viable harassment claims which can be asserted against Tong, such an argument is misplaced as the FAC does not currently allege a cause of action for harassment. To the extent that Plaintiff seeks to amend his complaint to allege a cause of action for harassment, Plaintiff must seek leave to do so.

Accordingly, for the foregoing reasons, Tong’s demurrer as to the first and second causes of action are SUSTAINED. However, because the Court is not yet persuaded that Plaintiff is unable to state facts to support his first and second causes of action, the Court grants leave to amend.

Disposition

For the reasons explained above, Defendants’ demurrer to the FAC is OVERRULED in part and SUSTAINED in part.

Specifically, Defendants’ demurrer to the FAC’s fourth cause of action is OVERRULED. Defendants’ demurrer to the FAC’s third and fifth causes of action is SUSTAINED. Finally, Tong’s demurrer to the first and second causes of action is SUSTAINED.

Where leave to amend is granted, Plaintiff may file and serve a second amended complaint (“SAC”) by no later than September 3, 2026, response to be filed and served within 30 days

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

25CV027109: AINA vs TONG, et al. 08/19/2026 Hearing on Demurrer to First Amended Complaint in Department 8D

thereafter, 35 days if the SAC is served by mail. (Although not required by any statute or rule of court, Plaintiff is requested to attach a copy of the instant minute order to the SAC to facilitate the filing of the pleading.)

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc., § 1019.5; Cal. Rules of Court, rule 3.1312.)

[1] While the Court notes that the Notice of Demurrer for ground 5 does not expressly

reference Probate Code 16420, the Memorandum of Points and Authorities expressly provides, “This Court Lack [sic] Jurisdiction Over Plaintiff’s Probate Code Section 16420 Claim.” (Memorandum of Points & Authorities at p. 15:1-2.) As such, the Court finds that ground 5 also suffers from the fundamental notice and due process issue found herein.