Wrongful termination in violation of public policy is a California common law claim that provides "when an employer's discharge of an employee violates fundamental principles of public policy, the discharged employee may maintain a tort action and recover damages traditionally available in such actions." Ferretti v. Pfizer Inc., 855 F. Supp. 2d 1017, 1024 (N.D. Cal. 2012) (quoting Tameny v. Atl. Richfield Co., 27 Cal. 3d 167, 170, 164 Cal.Rptr. 839, 610 P.2d 1330 (1980)). The public policy at issue must be: "(1) delineated in either constitutional or statutory provisions; (2) 'public' in the sense that it 'insures to the benefit of the public' rather than serving merely the interests of the individual; (3) well established at the time of discharge; and (4) substantial and fundamental."

Wrongful termination against public policy is a common law cause of action in California. See Ferretti v. Pfizer, Inc., 855 F.Supp.2d 1017, 1024 (N.D. Cal. 2012); Miklosy v. Regents of Univ. of Cal., 44 Cal.4th 876, 898 (2008);

And a retaliatory termination under California Labor Code Section 6310 constitutes wrongful termination in violation of public policy. Freund, 347 F.3d at 758; Ferretti v. Pfizer Inc., 855 F. Supp. 2d 1017, 1028 (N.D. Cal. 2012). Additionally, violations of the FEHA based on racial discrimination are issues of fundamental state public policy.

"Wrongful termination in violation of public policy is a California common law cause of action providing that 'when an employer's discharge of an employee violates fundamental principles of public policy, the discharged employee may maintain a tort action and recover damages traditionally available in such actions.'" Ferretti v. Pfizer Inc., 855 F. Supp. 2d 1017, 1024 (N.D. Cal. 2012) (citing Tameny v. Atl. Richfield Co., 27 Cal. 3d 167 (1980); Freund v. Nycomed Amersham, 347 F.3d 752, 758 (9th Cir. 2003)). "The elements of a claim for wrongful discharge in violation of public policy are (1) an employer-employee relationship, (2) the employer terminated the plaintiff's employment, (3) the termination was substantially motivated by a violation of public policy, and (4) the discharge caused the plaintiff harm."

District courts have followed the same approach for motions to strike claims for attorneys' fees. See, e.g., Steines v. Crown Media United States, LLC, No. CV 18-09293-CJC (FFMx), 2018 WL 6330600, at *9 (C.D. Cal. Dec. 4, 2018) (declining to strike allegations that Plaintiff was entitled to attorneys' fees under California Code of Civil Procedure § 1021.5); J & J Sports Prods., Inc. v. Nguyen, No. 13-CV-02008-LHK, 2014 WL 60014, at *9 (N.D. Cal. Jan. 7, 2014) (same); Ferretti v. Pfizer Inc., 855 F. Supp. 2d 1017, 1029 (N.D. Cal. 2012) (same).

Section 1102.5 is a "whistleblower" protection statute. Ferretti v. Pfizer, Inc., 855 F. Supp. 2d 1017, 1023 (N.D. Cal. 2012). The purpose of the statute is to "encourag[e] workplace whistle-blowers to report unlawful acts without fearing retaliation." Green v. Ralee Eng'g Co., 19 Cal. 4th 66, 77 (1998).

A number of other courts, however, reached the opposite conclusion, finding that Campbell did not resolve the application of § 98.7 and finding that because the language of § 98.7 is permissive, it does not itself require exhaustion. See Melgar v. CSK Auto, Inc., No. 13-cv-3769-EMC, 2014 WL 546915, *2 (N.D. Cal. Feb. 7, 2014) ("The majority of federal district courts to address this question have held that a plaintiff must file a complaint with the Labor Commissioner under section 98.7(a) before filing a lawsuit alleging a violation under Labor Code sections 98.6 or 1102.5."); See also Miller v. Sw. Airlines, Co., 923 F.Supp. 2d 1206, 1210 (N.D. Cal. 2013); Ferretti v. Pfizer Inc., 855 F.Supp. 2d 1017, 1023 (N.D. Cal. 2013).

Reynolds v. City and Cnty. of S.F., Case No. 09-0301, 2011 WL 4808423, at *1 (N.D. Cal. Oct. 11, 2011) (emphasis in original) (quoting Campbell, 35 Cal. 4th at 329). Furthermore, Defendants correctly note that this Court, along with the majority of federal courts to consider the question, has held that exhaustion before the Labor Commissioner is required in order to pursue statutory claims under the Labor Code. Ferretti v. Pfizer, 855 F. Supp. 2d 1017, 1024 (N.D. Cal. 2012) (citing prior cases); see also, e.g., Federico v. Overland Contracting, Case No. 12-2588, 2013 WL 5516187, at *19 (N.D. Cal. Oct. 4, 2013); Miller v. Southwest Airlines, 923 F. Supp. 2d 1206, 1210 (N.D. Cal. 2013); Papillon v. S.F. Unified Sch. Dist., Case No. 12-01847, 2012 WL 4892429, at *7 (N.D. Cal. Oct. 12, 2012); Morrow v. City of Oakland, Case No. 11-02351, 2012 WL 2133755, at *21 (N.D. Cal. June 12, 2012); Reynolds, 2011 WL 4808423, at *1. In response, Quinlan fails to address whether he exhausted his administrative remedy before the Labor Commissioner prior to bringing a Section 1102.5(c) claim in this Court.

Lloyd's persuasive reasoning and interpretation of section 98.7 is adopted. See Pinder v. Employment Dev. Dep't, CIV. S-13-817 LKK/AC, 2013 WL 4482955, at *11 (E.D. Cal. Aug. 20, 2013) (finding no exhaustion requirement under section 98.7 and distinguishing Campbell); Turner v. City & Cnty. of San Francisco, 892 F.Supp.2d 1188, 1202 (N.D. Cal. 2012) (same); but see e.g., Vasile v. Flagship Fin. Grp., LLC, 2:12-CV-02912-KJM, 2013 WL 4482914, at *6 (E.D. Cal. Aug. 19, 2013) (finding section 98.7 requires exhaustion); Ferretti v. Pfizer Inc., 855 F.Supp.2d 1017, 1023-24 (N.D. Cal. 2012) (same). Since section 98.7 "merely provides the employee with an additional remedy, which the employee may choose to pursue, " this portion of the motion is denied.

Lloyd's persuasive reasoning and interpretation of section 98.7 is adopted. See Pinder v. Employment Dev. Dep't, CIV. S-13-817 LKK/AC, 2013 WL 4482955, at *11 (E.D. Cal. Aug. 20, 2013) (finding no exhaustion requirement under section 98.7 and distinguishing Campbell); Turner v. City & Cnty. of San Francisco, 892 F. Supp. 2d 1188, 1202 (N.D. Cal. 2012) (same); but see e.g., Vasile v. Flagship Fin. Grp., LLC, 2 : 12-CV-02912-KJM, 2013 WL 4482914, at *6 (E.D. Cal. Aug. 19, 2013)(finding section 98.7 requires exhaustion); Ferretti v. Pfizer Inc., 855 F. Supp. 2d 1017, 1023-24 (N.D. Cal. 2012)(same). Since section 98.7 "merely provides the employee with an additional remedy, which the employee may choose to pursue," this portion of the motion is denied.