Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC357420, James R. Dunn, Judge.
Law Offices of Humberto Guizar and Humberto Guizar for Plaintiff and Appellant.
Strumwasser & Woocher, Michael J. Strumwasser, Fredric D. Woocher, Gregory G. Luke, Aimee Dudovitz and Aparna Spridhar for Defendants and Respondents.
Kitching, J.
INTRODUCTION
Plaintiff and appellant Alberto Gutierrez was a teacher at San Fernando High School (SFHS). Defendants and respondents Jose Luis Rodriguez, Kelly Welsh, Kenneth Lee, and Deborah Jelin were administrators at SFHS. Gutierrez alleged in his third amended complaint that defendants retaliated against him for expressing his views regarding purported deficiencies at SFHS and the school district in off-campus public venues, and for participating in off-campus political activities. Defendants’ conduct, Gutierrez alleged, violated his rights under the First Amendment to the United States Constitution.
In his third amended complaint, Gutierrez asserted one cause of action for violation of civil rights pursuant to 42 U.S.C. §1983. Defendants filed a demurrer to the third amended complaint on the ground that it did not state facts sufficient to constitute a cause of action. The trial court sustained the demurrer without leave to amend, and then entered judgment in favor of defendants. Gutierrez appeals from that judgment. We reverse the judgment because we hold that the third amended complaint states sufficient facts to constitute a 42 U.S.C. § 1983 cause of action.
SUMMARY OF THE FACTUAL ALLEGATIONS IN GUTIERREZ’S THIRD AMENDED COMPLAINT
On appeal from a judgment following the sustaining of a demurrer without leave to amend, we assume the truth of properly pleaded facts alleged in the plaintiff’s complaint, as well the truth of the facts that reasonably can be implied or inferred from those expressly pleaded. (Curcini v. County of Alameda (2008) 164 Cal.App.4th 629, 633, fn. 3.) We also “ ‘construe the pleading in a reasonable manner and read the allegations in context.’ ” (SC Manufactured Homes, Inc. v. Liebert (2008) 162 Cal.App.4th 68, 82.) However, we need not accept as true the plaintiff’s contentions, deductions or conclusions of fact or law. (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6.) The following allegations appear in Gutierrez’s third amended complaint.
Gutierrez began working as a teacher for the Los Angeles Unified School District (LAUSD) in or about February 1997. In or about August 2002, Gutierrez was assigned to teach American history and social science courses at SFHS. For nearly 4 years, while working at SFHS, Gutierrez received either “very good” or “outstanding” marks in each of his regular evaluations.
During his tenure at SFHS, Gutierrez observed certain deficiencies at the school. From the fall of 2004 to the summer of 2007, Gutierrez expressed his views about these deficiencies to parents of students at SFHS, the press, local governmental officials, and others at off-campus public venues. In particular, Gutierrez was critical of the school’s deficiencies on numerous internet public discussion grounds. He also spoke about his concerns regarding SFHS on the following occasions:
Gutierrez claims: “(1) SFHS had a higher than average drop out rate among high schools in the LAUSD, particularly among students of Hispanic descent; [¶] (2) SFHS was being operated as a second rate school with inadequate school materials and with less teaching materials than was being made available to other LAUSD schools; [¶] (3) Students were allowed to loiter on the SFHS grounds during classroom sessions in the presence of school administrators; [¶] (4) Certain students were given preference to miss class and do as they pleased without teacher supervision; [¶] (5) Military recruiters were allowed to enter the SFHS grounds and enter classes in session without permission from the teachers; [¶] (6) Military personnel were allowed to enter SFHS for recruiting purposes at will; [¶] (7) Students at SFHS were allowed to attend rock concerts on campus that played vulgar and ‘R’ rated music without the required parental permission in violation of LAUSD policy; [¶] (8) Students were allowed to view ‘R’ rated films in the school library without the required parental permission in violation of LAUSD policy.”
1. In the fall of 2005, Gutierrez was a speaker at the Mexican American Political Association Conference, which was attended by university professors, community organizers, students, parents and teachers;
2. In November 2006, Gutierrez spoke as a guest on a Spanish radio talk show;
3. In December 2006, Gutierrez attended an event in Northern California organized by the Los Angeles Community College District (LACCD) Chancellor’s office relating to students dropping out of high school;
4. In February 2007, Gutierrez participated in a panel discussion on military recruitment in schools sponsored by The League of Woman Voters; and
5. Gutierrez addressed an audience at an off-campus town hall meeting attended by public officials, parents, teachers and school administrators.
In an effort to improve SFHS, Gutierrez “joined the Mayor, Antonio Villaraigosa, in the Mayoral political campaigning efforts to change the structure of the LAUSD, so that it would have to be accountable to the Mayor’s office.” At the town hall meeting, Gutierrez publicly stated that Mayor Villaraigosa should be a decision maker at LAUSD. Gutierrez was appointed by Mayor Villaraigosa to the Children Youth and Family Services Commission.
As administrators employed by LAUSD at SFHS, defendants opposed the mayor’s policies toward the LAUSD and believed that their jobs were threatened by the mayor’s activities. Defendants also opposed and objected to Gutierrez’s public statements in support of the mayor and his statements critical of SFHS at off-campus events. Defendant Rodriguez went so far as to order Gutierrez “to stop such activities as it made him, the principal look bad to the parents of SFHS students.” On one occasion, defendants Welsh and Lee pulled students out of Gutierrez’s classroom and interrogated them regarding what they knew of Gutierrez’s participation in the December 2006 LACCD conference.
Defendant Rodriguez was a school principal at SFHS. Defendant Lee was also a school principal at SFHS, and apparently was Rodriguez’s successor. Defendants Welsh and Jelin were employed, respectively, as a vice principal and assistant vice principal at SFHS.
In order to retaliate against Gutierrez for his political activities and public statements critical of SFHS, and to prevent him from “exposing” SFHS deficiencies, defendants “closed ranks” and “took aggressive actions” against Gutierrez. These actions were designed to make Gutierrez’s job so intolerable, he would be forced to leave.
Specifically, Rodriquez “fabricated allegations that Plaintiff’s activities in his classroom were not being performed in accordance with the LAUSD content and curricular standards, and he placed negative reviews into Plaintiff’s personnel file in order to make Plaintiff appear on paper as a problem teacher.” Welsh, too, “placed numerous memorandums [sic] into Mr. Gutierrez’s personnel file chastising him for his objective and truthful methods and manner of teaching.” Rodriguez and Welsh placed “false negative writings” in Gutierrez’s personnel file “with the specific intent to affect Plaintiff’s opportunity for future promotion and job benefits within the LAUSD.” Rodriguez also convinced Lee and Jelin “to fabricate false allegations against Plaintiff’s teaching performance, and to document such false allegations.”
In addition, Rodriguez, Welsh and Jelin “surreptitiously” met with students, parents, and teachers and “attempted” to convince these individuals “to fabricate false complaints against Plaintiff related to his teaching abilities.” “The defendants further conspired with other school administrators and school personnel to intentionally deny Plaintiff with the required teaching materials and proper ventilation for his classroom.” Rodriguez, Lee and Welsh also “were monitoring Plaintiff’s class rooms more [often than] other teachers.” Finally, Gutierrez was “humiliated and embarrassed” when Jelin would not allow him “to step onto the football field, meanwhile the same administrator allowed other people, some not even teachers to be on the football field.”
Defendants’ harassment caused Gutierrez’s working conditions to became so intolerable that he was “constructively discharged” and forced to resign in 2007. As a result of defendants’ conduct, Gutierrez lost earnings and employment benefits, and suffered from emotional distress. Further, defendants’ actions caused Gutierrez to suffer a “loss of reputation in the community, and loss of future promotion and work related benefits.”
DISCUSSION
“ ‘We independently review the ruling on a demurer and determine de novo whether the pleading alleges facts sufficient to state a cause of action.’ ” (SC Manufactured Homes, Inc. v. Liebert, supra, 162 Cal.App.4th at p. 82.) Gutierrez’s sole cause of action was for damages pursuant to 42 U.S.C. § 1983 arising from defendants’ alleged violation of his First Amendment rights. “ ‘ “To make out a cause of action under section 1983, plaintiffs must plead that (1) the defendants acting under color of state law (2) deprived plaintiffs of rights secured by the Constitution or federal statutes.” ’ ” (Thomas v. Carpenter (9th Cir. 1989) 881 F.2d 828, 829.)
Defendants do not dispute that Gutierrez alleged sufficient facts showing that they were acting under color of law. Thus the issue we decide is whether the third amended complaint states sufficient facts showing that defendants deprived Gutierrez of his rights secured by the First Amendment. Because defendants contend that they are entitled to qualified immunity even if they deprived Gutierrez of his constitutional rights, we must also address defendants’ qualified immunity argument.
Gutierrez contends that defendants retaliated against him for exercising his First Amendment rights. Where, as here, a teacher at a public school asserts such a claim, the court must “arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” (Pickering v. Board of Education (1968) 391 U.S. 563, 568 (Pickering).)
“In the forty years since Pickering, First Amendment retaliation law has evolved dramatically, if sometimes inconsistently. Unraveling Pickering’s tangled history reveals a sequential five-step series of questions: (1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or public employee; (3) whether the plaintiff’s protected speech was a substantial or motivating factor in the adverse employment action; (4) whether the state had an adequate justification for treating the employee differently from other members of the general public; and (5) whether the state would have taken the adverse employment action even absent the protected speech.” (Eng v. Cooley (9th Cir. 2009) 552 F.3d 1062, 1070 (Eng).)
1. The Third Amended Complaint States Sufficient Facts Showing That an Adverse Employment Action Was Taken
Defendants contend that Gutierrez’s claims fails at the third stage of the analysis because the third amended complaint did not state facts showing that Gutierrez was subject to an adverse employment action. The trial court agreed with this contention. We reject the argument.
“The precise nature of the retaliation is not critical to the inquiry in First Amendment retaliation cases. The goal is to prevent, or redress, actions by a government employer that ‘chill the exercise of protected’ First Amendment rights. [Citation.] Various kinds of employment actions may have an impermissible chilling effect. Depending on the circumstances, even minor acts of retaliation can infringe on an employee’s First Amendment rights. [Citation.]” (Coszalter v. City of Salem (9th Cir. 2003) 320 F.3d 968, 974-975 (Coszalter).)
“To constitute an adverse employment action, a government act of retaliation need not be severe and it need not be of a certain kind. Nor does it matter whether an act of retaliation is in the form of removal of a benefit or the imposition of a burden.” (Coszalter, supra, 320 F.3d at p. 975.) If the plaintiffs “can establish that the actions taken by the defendants were ‘reasonably likely to deter [them] from engaging in protected activity [under the First Amendment,]’ they will have established a valid claim under § 1983.” (Id. at p. 976.)
“Any sanction imposed for the exercise of protected First Amendment conduct must be viewed as having a chilling effect on speech and on the right of teachers to engage in those activities which are protected by the First Amendment. Lesser penalties than dismissal can effectively silence teachers and compel them to forego exercise of the rights guaranteed them by our Constitution.” (Adcock v. Board of Education (1973) 10 Cal.3d 60, 66 (Adcock).)
The courts have repeatedly held that a written reprimand placed in an employee’s personnel file can constitute an adverse employment action for purposes of a First Amendment retaliation claim. This is particularly true where, as here, the reprimand harms the plaintiff’s reputation and employment prospects. For example, in Ulrich v. City and County of San Francisco (9th Cir. 2002) 308 F.3d 968, a physician at a public hospital asserted a First Amendment retaliation claim after the hospital subjected him to an investigation, threatened to revoke his clinical privileges, refused to rescind his resignation, and “filed an adverse action report against him, marring his employment record.” (Id. at p. 977.) The court held: “Although these decisions by the hospital could have been taken for a number of reasons, if they were in retaliation for his protected speech activity then the First Amendment was violated.” (Ibid.)
In Baca v. Sklar (10th Cir. 2005) 398 F.3d 1210, an employee of a public university alleged that his supervisor retaliated against him for exercising his First Amendment rights. The plaintiff claimed that the defendant reprimanded him in violation of university protocol, used the charge to demand plaintiff’s resignation, and deprived the plaintiff of an opportunity to supervise another employee whom he had recruited. (Id. at p. 1221.) The court held: “These allegations, if true, could be found to constitute adverse employment actions in the First Amendment context.” (Ibid.)
Similarly, in Coszalter, city workers sued a city under 42 U.S.C. § 1983 for allegedly violating their First Amendment rights by retaliating against them for publicly disclosing health and safety hazards. The court held: “Under the ‘reasonably likely to deter’ test, some, perhaps all, of the following acts, considered individually, were adverse employment actions for purposes of plaintiffs’ First Amendment retaliation suit:... a reprimand containing a false accusation....” (Coszalter, supra, 320 F.3d at p. 976; see also Harris v. Victoria Independent School Dist. (5th Cir. 1999) 168 F.3d 216, 221 [“we have repeatedly held that reprimands and demotions constitute adverse employment decisions”]; Morris v. Lindau (2nd Cir. 1999) 196 F.3d 102, 110 [“Adverse employment actions include... reprimand”].)
Turning to the allegations in this case, the third amended complaint alleges that defendants placed negative “reviews,” memoranda, and “writings” in his personnel files that consisted of fabricated allegations against him. Defendants’ false reports, coupled with their attempts to coax students, parents and teachers to file false reports, allegedly hurt Gutierrez’s reputation in the community and his future job prospects. These allegations, if true, could be found to constitute adverse employment actions.
Gutierrez argues that defendants’ other alleged acts of harassment constitute adverse employment actions. We do not reach the issue because we hold that defendants’ written reprimands, as described in the third amended complaint, were adverse employment actions.
Defendants’ reliance on Lybrook v. Members of Farmington Mun. Schools Bd. (2000) 232 F.3d 1334 (Lybrook) is misplaced. There a teacher contended that her supervisor’s act of placing her on a “Professional Development Plan, which required her to ‘[s]trive to create an atmosphere that will nurture collaboration with all colleagues’ and to ‘conduct affairs with a conscious concern for the highest standards of professional commitment,’ ” constituted an adverse employment action. (Id. at p. 1339.) The court held that while the plan and the requirement that the plaintiff attend certain meetings may have been “unwelcomed” to the plaintiff, they were of insufficient gravity to premise a First Amendment violation. (Id. at p. 1341.)
Lybrook is distinguishable from this case because the teacher there did not receive a written reprimand or false negative report, as Gutierrez allegedly did here. Indeed, the Lybrook court contrasted its facts with the facts of another case, wherein the employee was subject to “a formal written reprimand that referred to her speech.” (Lybrook, supra, 232 F.3d at p. 1341; see also Nunez v. City of Los Angeles (9th Cir. 1998) 147 F.3d 867, 875 [contrasting plaintiff’s claim that he was “bad-mouthed” with false reports and official reprimands].)
Defendants also argue at length that Gutierrez was not “constructively discharged” under California employment law. We need not address this issue because Gutierrez is not required to show an adverse employment action as severe as termination in order to maintain his First Amendment retaliation claim. (See Adcock, supra, 10 Cal.3d at p. 66; Coszalter, supra, 320 F.3d at pp. 974-975.) Defendants’ alleged conduct was sufficient to chill the exercise of Gutierrez’s First Amendment rights, which is all that is required to constitute an adverse employment action. Accordingly, the trial court’s ruling that the third amended complaint did not contain sufficient facts showing an adverse employment action was erroneous.
2. The Facts Alleged in the Third Amended Complaint Do Not Show that Defendants Have Qualified Immunity as a Matter of Law
Defendants contend that as a matter of law they have qualified immunity from liability under 42 U.S.C. § 1983. The trial court agreed with this contention. We hold that based on the facts alleged in the third amended complaint, defendants do not have qualified immunity as a matter of law.
“The doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ [Citation.] Qualified immunity balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” (Pearson v. Callahan (2009) __ U.S. __ [129 S.Ct. 808, 815] (Pearson).)
“Because qualified immunity is ‘an immunity from suit rather than a mere defense to liability... it is effectively lost if a case is erroneously permitted to go to trial.’ ” (Pearson, supra, 129 S.Ct. at p. 815.) It is therefore important to resolve immunity questions at the earliest possible stage in litigation. (Ibid.) However, it is often difficult to resolve qualified immunity issues at the pleading stage because “the precise factual basis for the plaintiff’s claim or claims may be hard to identify.” (Id. at p. 819.)
Government officials have qualified immunity if (1) taken in the light most favorable to the plaintiff, the facts show that the official’s conduct did not violate a constitutional right; or (2) if there was a violation of the plaintiff’s constitutional rights, it was not “clearly established” at the time of the official’s alleged misconduct. (See Eng, supra, 552 F.3d at p. 1067; Pearson, supra, 129 S.Ct. at pp. 815-816.) For the reasons stated herein, defendants are not entitled to qualified immunity based on the facts alleged in the third amended complaint.
A. The Third Amended Complaint Alleges Facts That Show Defendants’ Conduct Violated the First Amendment
As stated, the Eng court set forth a five-step series of questions we must answer in order to adjudicate a First Amendment retaliation claim. The first question is “whether the plaintiff spoke on a matter of public concern[.]” (Eng, supra, 552 F.3d at p. 1070.) “Speech involves a matter of public concern when it can fairly be considered to relate to ‘any matter of political, social, or other concern to the community.’ ” (Johnson v. Multnomah County, Or. (9th Cir. 1995) 48 F.3d 420, 422.)
Here, the speech alleged in Gutierrez’s third amended complaint was of public concern. Gutierrez spoke about alleged problems at a public high school, including uncontrolled access of military recruiters on campus. The issues raised by Gutierrez were of sufficient public interest that he was invited to speak about them on a radio show and at professional and political conferences. Further, Gutierrez claims that he publicly supported efforts by Mayor Villaraigosa to reform LAUSD.
The second question is “whether the plaintiff spoke as a private citizen or public employee[.]” (Eng, supra, 552 F.3d at p. 1070, 1071.) Defendants argue that Gutierrez alleged “that it was his curricular speech—rather than the noncurricular speech... that caused Defendants to take the challenged actions.” Although Gutierrez alleged that defendant Rodriguez “fabricated allegations that Plaintiff’s activities in his classroom were not being performed in accordance with the LAUSD content and curricular standards,” he did not allege that defendants retaliated against him for statements he made in the classroom. When read fairly, the third amended complaint alleges that Gutierrez was subject to retaliation for statements he made as a private citizen off campus, not for statements he made as a teacher on campus.
Defendants rely heavily on Garcetti v. Ceballos (2006) 547 U.S. 410 (Garcetti). In Garcetti, a deputy district attorney alleged that his employer retaliated against him after he wrote a memorandum to his supervisor. The Supreme Court held that because the plaintiff’s expressions were made pursuant to his official duties, he was not speaking as a citizen for First Amendment purposes. (Id. at p. 421.) In this case, by contrast, there are no facts alleged in the third amended complaint indicating that Gutierrez was speaking pursuant to his official duties as a teacher. Garcetti therefore lends no support to defendants’ position.
Even if Gutierrez spoke in his official capacity, it is unclear whether his claim would be barred by Garcetti. The Garcetti court favorably cited Givhan v. Western Line Consol. School Dist. (1979) 439 U.S. 410 (Givhan) (see Garcetti, supra, 547 U.S. at p. 421), and stated: “We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.” (Garcetti, at p. 425, italics added.) In Givhan, the Supreme Court held that a junior high teacher’s private statements to a school administrator regarding school matters could, under certain circumstances, be protected by the First Amendment. (Givhan, at p. 413.)
The third question is “whether the plaintiff’s protected speech was a substantial or motivating factor in the adverse employment action[.]” (Eng, supra, 552 F.3d at p. 1070.) As we have explained, defendants’ alleged written reprimands constituted adverse employment actions. The third amended complaint alleges Gutierrez’s protected speech was the motivating factor for these actions. For purposes of reviewing defendants’ demurrer, we must accept that allegation as true.
The fourth question is “whether the state had an adequate justification for treating the employee differently from other members of the general public[.]” (Eng, supra, 552 F.3d at p. 1070.) This inquiry, known as the Pickering balancing test, weighs the interests of the government employee against the interests of the state. In the context of speech by a public school teacher, the government has an interest in prohibiting speech that impedes “the teacher’s proper performance of his daily duties in the classroom or... interfere[s] with the regular operation of the schools generally.” (Pickering, supra, 391 U.S. at p. 572-573, fn. omitted.)
In the present case, there are no facts alleged in the third amended complaint indicating that the Gutierrez’s off-campus statements impeded his proper performance as a teacher or interfered in any way with the operation of SFHS. Accordingly, defendants’ interest in limiting Gutierrez’s opportunities to contribute to the public debate was not significantly greater than their interest in limiting a similar contribution by any member of the general public. (See Pickering, supra, 391 U.S. at p. 573.) Defendants therefore had no right under the Pickering balancing test to take adverse employment actions against Gutierrez in retaliation for his public statements regarding public issues.
Finally, the fifth question is “whether the state would have taken the adverse employment action even absent the protected speech.” (Eng, supra, 552 F.3d at p. 1070.) Defendants argue Gutierrez would have been disciplined for his alleged inappropriate statements in the classroom regardless of any statements he made off-campus. Nothing in the third amended complaint, however, supports this argument. At this time, we must accept the allegations in that pleading as true.
B. Defendants’ Alleged Conduct Violated Clearly Established Law
“For a constitutional right to be clearly established, ‘its contours “must be sufficiently clear that a reasonable official would understand that what he is doing violates that right” ’ at the time of his conduct. [Citations.] If a plaintiff’s constitutional rights were not clearly established at the time of the violation, then qualified immunity should be granted.” (Eng, supra, 552 F.3d at p. 1075.)
At the time of defendants’ alleged misconduct, from 2004 through 2007, it was sufficiently clear to reasonable school administrators that defendants’ alleged actions violated Gutierrez’s First Amendment rights. Defendants allegedly placed false reports about Gutierrez’s teaching performance in his personnel file in order to discourage him from speaking off-campus about issues of public concern. There are no facts in the third amended complaint indicating that Gutierrez’s statements violated any school policy, were contrary to an established curriculum, disrupted school activities, or hindered Gutierrez’s teaching performance. Defendants have not cited, and we have not found, any case indicating that under these circumstances they are entitled to qualified immunity.
Defendants argue that they were acting reasonably because they were simply “counseling” Gutierrez and “monitoring” his activities. A fair reading of the third amended complaint, however, shows that Gutierrez alleges that defendants did much more than that.
C. We Cannot Determine from the Face of the Third Amended Complaint That Defendants Were Motivated at Least in Part by Lawful Considerations
In Stanley v. City of Dalton, GA. (11th Cir. 2000) 219 F.3d 1280 (Stanley), the court held that a defendant is entitled to qualified immunity “only where, among other things, the record indisputably establishes that the defendant in fact was motivated, at least in part, by lawful considerations.” (Id. at p. 1296, citing Foy v. Holston (11th Cir. 1996) 94 F.3d 1528, 1535 (Foy).) Defendants contend that they were motivated at least in part to take adverse employment actions against Gutierrez by lawful considerations, namely his alleged “curricular” statements inside the classroom. Thus, defendants argue, they are entitled to qualified immunity under Stanley and Foy.
Assuming, without deciding, that Gutierrez’s in-classroom statements were a “lawful consideration” for the adverse employment actions taken by defendants, defendants’ argument still fails. The fatal flaw in defendants’ argument is that we cannot determine from the face of the third amended complaint that defendants were indeed motivated at least in part by Gutierrez’s in-classroom statements. Thus the record does not “indisputably” establish the facts necessary to support defendants’ argument.
3. The Allegations in the Third Amended Complaint Are Not Necessarily Inconsistent with the Allegations in Gutierrez’s Prior Pleadings
Defendants contend that in his complaint, first amended complaint, and second amended complaint, Gutierrez made certain “judicial admissions” that are allegedly inconsistent with the allegations in his third amended complaint. In particular, defendants argue that Gutierrez initially alleged that defendants retaliated against him because of his statements against the Iraq war. In his third amended complaint, by contrast, Gutierrez alleged that defendants retaliated against him because of his statements regarding the deficiencies of SFHS and his support for the mayor. Defendants argue that we should disregard such inconsistent allegations and, on that basis, affirm the judgment.
The premise of defendants’ argument is incorrect. The facts alleged in Gutierrez’s prior pleadings are not necessarily inconsistent with the facts alleged in his third amended complaint. For example, defendants could have been motivated to retaliate against Gutierrez because of his views about the Iraq war and his statements off-campus about the alleged deficiencies at SFHS. We cannot determine from the face of the pleadings that the facts alleged in the third amended complaint are false and should be disregarded.
The proper procedure to attack false allegations in a pleading is a motion to strike. (Code Civ. Proc., § 436, subd. (a).) Defendants filed such a motion. However, the trial court denied the motion as moot because it sustained defendants’ demurrer.
The cases cited by defendants are distinguishable from this case. For example, in Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379 (Owens), the plaintiff was injured when a car rolled forward and crushed his legs against his car. The plaintiff alleged in two pleadings that he was injured in the public street adjacent to the premises of the defendant’s supermarket. Only when it became apparent that this allegation was fatal to plaintiff’s premises liability suit, did plaintiff amend his pleading to allege that the injury occurred on the defendant’s premises. (Id. at p. 384.)
The critical fact in Owens is that only one incident caused the plaintiff’s injury. The incident either occurred on the public street or it occurred on the defendant’s property; both could not be true. The plaintiff’s second amended complaint therefore contained allegations wholly inconsistent with the plaintiff’s prior pleadings. As we have explained, the same is not true here.
Similarly, in Kenworthy v. Brown (1967) 248 Cal.App.2d 298 (Kenworthy), the plaintiffs initially alleged that they entered into a contract with the defendants on May 15, 1961. The date the parties entered into the contract was important because the statute of limitations period for the plaintiffs’ conspiracy to induce breach of contract claim began to run on that date. To circumvent the statute of limitations, the plaintiffs amended their complaint to vaguely state that the contract was entered into sometime “ ‘after April 18, 1961.’ ” (Id. at p. 302.)
The court rejected the plaintiffs’ gamesmanship, and stated: “Plaintiffs had full knowledge that the date of May 15, 1961, was the exact date upon which defendants and the State contracted together as the alleged culmination of the conspiracy described by plaintiffs, and plaintiffs’ obvious subterfuge in their second amended complaint, by referring to such event as having occurred ‘after April 18, 1961,’ is far too obvious to be overlooked by this court.” (Kenworthy, supra, 248 Cal.App.2d at p. 302.)
We cannot determine from the face of the pleadings that Gutierrez obviously pleaded around a fatal defect in his case. Gutierrez contends that after he filed his initial complaint on August 23, 2006, he amended his pleadings to add additional facts “that developed and occurred while this action was pending.” This contention is supported by the allegations of the third amended complaint itself, which refer to events after August 23, 2006.
Gutierrez also candidly acknowledges that he amended his pleadings in recognition of the trial court’s rulings that restrict his First Amendment claim “to those activities that occurred outside of the class room and not related to” his duties as a teacher. There is nothing inappropriate per se about a plaintiff omitting allegations in an amended pleading that the plaintiff acknowledges do not support his or her claim, while adding new allegations that do.
DISPOSITION
The judgment is reversed. Gutierrez is awarded costs on appeal.
We concur: KLEIN, P. J., ALDRICH, J.