Filed 3/5/14 Crum v. Compton Unif. School Dist. CA2/2

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     SECOND APPELLATE DISTRICT
                                                  DIVISION TWO

CARRIE CRUM,                                                            B246985

                   Plaintiff and Appellant,                             (Los Angeles County
                                                                        Super. Ct. No. BC481903)
         v.

COMPTON UNIFIED SCHOOL DISTRICT
et al.,

                   Defendants and Respondents.




         APPEAL from a judgment of the Superior Court of Los Angeles County. Susan
Bryant-Deason and Joseph R. Kalin, Judges. Affirmed.


         Akudinobi & Ikonte and Emmanuel C. Akudinobi for Plaintiff and Appellant.


         Declues, Burkett & Thompson, Patricia A. Lynch and Gregory A. Wille for
Defendants and Respondents.
       Carrie Crum (appellant) appeals from a judgment entered after the trial court
sustained without leave to amend the demurrers of Compton Unified School District
(District) and Ruth Dickens (Dickens) (collectively “respondents”) to appellant’s causes
of action for retaliation in violation of Labor Code section 1102.5 and retaliation in
violation of her First Amendment rights under title 42, section 1983 of the United States
Code (section 1983).
                                        CONTENTIONS
       Appellant contends that the trial court erred in sustaining without leave to amend
the District’s demurrer to her cause of action for retaliation in violation of Labor Code
section 1102.5 because she stated a prima facie case for retaliation and properly pled
compliance with the applicable provisions of the Government Claims Act (Gov. Code,
§ 900 et seq.) (hereafter “the Act”).
       Appellant further contends that the trial court erred in sustaining respondents’
demurrer without leave to amend to her cause of action for retaliation in violation of her
First Amendment rights under section 1983 because she stated a prima facie case for such
a violation.
       Appellant argues that the trial court erred in denying her motion for new trial after
sustaining the demurrer.
                              FACTUAL BACKGROUND1
       Appellant was employed by the District for over 35 years. She began in 1969 as a
teacher and spent most of her career working in the field of special education. Appellant
retired in 2008.
       In 1998, while employed as a program specialist, appellant applied to the
California Department of Education/Special Education Office for a “WorkAbility”
program grant (the grant) to service the middle school special needs students in Compton.
The grant is funded by both the State of California and the federal government and is

1    The facts set forth in this section are allegations taken from appellant’s first
amended complaint (FAC), filed September 19, 2012.


                                             2
renewable each year. The grant was specially designed to be implemented by retired
teachers only so that if the grant were not renewed, school district employees would not
lose their jobs. The subject grant has been renewed each year since it was first secured.
       Although appellant initially secured the grant, she was ineligible to service the
program because she was employed by the District. She was however, eligible for a
small stipend for the life of the program as long as she remained employed by the
District.
       In June 2008, upon her retirement from the District, appellant was eligible to
participate in the WorkAbility program. She applied for, and was accepted for a position
as one of three retirees servicing the grant.
       The WorkAbility program is supervised by the District’s Director of Special
Needs. In 2005, Dickens was appointed to that position. Prior to her retirement,
appellant had some concerns about the way that Dickens administered the grant.
According to appellant, Dickens refused to abide by guidelines and restrictions regarding
how the money for the grant should be used and who should or should not service the
grant. Appellant was concerned that the grant might be revoked for noncompliance with
the terms under which it was secured, and worried about the impact such a revocation
would have on the students. Appellant repeatedly protested Dickens’s alleged attempts to
deviate from the restrictions and guidelines for implementing the grant. Appellant
alleges that prior to her retirement in 2008, Dickens attempted to cut off the stipend that
appellant received as author of the grant.
       After her retirement from the District, when she was employed as one of the
retirees servicing the grant, appellant protested Dickens’s refusal to allow the retirees
who were servicing the grant to attend necessary training for effective administration of
the grant. In addition, appellant protested Dickens’s alleged use of money secured for the
grant for other purposes, such as paying the stipends of nonretirees who were not
connected with the middle school program.
       Appellant serviced the grant from September 2008 to May 2009 and from
September 2009 to May 2010. While in that capacity, appellant continuously protested


                                                3
Dickens’s alleged efforts to violate the terms and restrictions concerning the
implementation of the grant. Appellant went so far as to tell Dickens that she could only
act as she did if the grant was rewritten; otherwise, according to appellant, what Dickens
was doing was unlawful.
       In September 2010, Dickens refused to allow appellant to continue servicing the
grant despite the fact that there was no shortage of available funds to run the grant and no
shortage of students to service. Appellant protested her termination.
                               PROCEDURAL HISTORY
       On October 18, 2011, more than six months after her termination, appellant gave
notice to the District of her intention to sue. She made a demand of $250,000 to
conciliate her claims. Upon receipt of her notice, the District forwarded the
communication to its lawyers, who contacted appellant’s lawyers.
       After months of reviewing the claim, on January 23, 2012, the District advised
appellant it was not interested in conciliating her claim. Never did the District issue a
notice of rejection of appellant’s claims as mandated by Government Code section 911.3,
subdivision (a).
       On April 2, 2012, appellant filed her complaint in this action. She stated two
claims for relief: one for First Amendment retaliation in violation of section 1983 against
Dickens, and a claim for retaliation in violation of Labor Code section 1102.5 against the
District.
       On June 29, 2012, respondents demurred to the complaint. As to the first cause of
action against Dickens under section 1983, respondents argued that appellant failed to
allege facts amounting to a cause of action. Specifically, respondents argued, appellant
failed to allege facts from which one could conclude that her speech falls within the
protection of the First Amendment. Respondents also argued that Dickens enjoys
qualified immunity from civil damages where her conduct does not violate clearly
established statutory or constitutional rights.
       As to the cause of action under Labor Code section 1102.5, respondents argued
that appellant failed to comply with the Act and that appellant failed to allege facts


                                                  4
sufficient to state a cause of action. Specifically, respondents argued that appellant failed
to allege that she had a reasonable belief that the reported information disclosed a
violation of a state or federal statute, or a violation or noncompliance with a state or
federal rule or regulation.
       The demurrer was heard on August 30, 2012, at which time the trial court
sustained the demurrer with 20 days leave to amend, stating only that “plaintiff has failed
to state sufficient facts to support the causes of action.” The hearing was not reported.2
       Appellant filed her FAC on September 19, 2012. Respondents again demurred.
As to appellant’s cause of action against Dickens, respondents argued that the FAC failed
to correct the defects of the original complaint. Respondents contended that appellant
still had not pled facts from which one could conclude that the speech in question fell
within the protection of the First Amendment. In addition, respondents argued that
Dickens enjoys qualified immunity and that appellant failed to meet her burden of
proving that the right she claimed was clearly established. As to her cause of action
against the District, respondents argued that appellant still had not satisfied the
requirement that she plead compliance with the Act, and that she failed to allege that she
engaged in a protected activity under Labor Code section 1102.5, subdivision (b).
       The demurrer to the FAC was heard on November 7, 2012, by a different trial
court judge. On the same date, the court sustained the demurrers to the first and second
causes of action in the FAC without leave to amend. As to appellant’s first cause of
action for retaliation in violation of the First Amendment under section 1983, the court
held that “the pleading is devoid of facts showing the exact speech plaintiff stated for
which retaliation has occurred, or that the [appellant] was speaking as a private citizen,
rather than as a public employee embroiled in a personnel dispute. The [appellant] has




2       Appellant has included in her appellate briefs references to the trial court’s
reasoning, which she admits were not preserved for the record. We will not consider
appellant’s recitations of the trial court’s rationale without a recorded transcript and
citations to the record.

                                              5
not alleged facts showing that she acted in any way than to address an internal policy, and
does not allege that she was seeking to inform the public of any kind of wrongdoing.”
       As to appellant’s cause of action against the District for violation of Labor Code
section 1102.5, the trial court found that appellant failed to properly assert allegations
that she complied with the Act and would be unable to correct such defects.
       Final judgment was entered against appellant on December 4, 2012. On
December 14, 2012, appellant filed a notice of intent to move for new trial and a
memorandum of points and authorities in support thereof. Appellant argued that
respondents waived their right to assert noncompliance with the Act pursuant to
Government Code section 911.3. Appellant also argued that she properly identified the
protected speech and stated a cause of action under section 1983. On January 17, 2013,
the motion was denied.
       Appellant filed her notice of appeal from the judgment on February 15, 2013.
                                       DISCUSSION
I. Standard of review
       Appellant has appealed from both the underlying judgment and the denial of her
motion for new trial. The ruling denying the motion for new trial is not appealable, but
the order may be reviewed on appeal from the underlying judgment. (Walker v. Los
Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 18.) We
review the ruling on a motion for new trial under the deferential abuse of discretion
standard. (People v. Thompson (2010) 49 Cal.4th 79, 140.)
       We review the legal sufficiency of the complaint de novo. (Montclair Parkowners
Assn. v. City of Montclair (1999) 76 Cal.App.4th 784, 790.) “The reviewing court gives
the complaint a reasonable interpretation, and treats the demurrer as admitting all
material facts properly pleaded. [Citations.] The court does not, however, assume the
truth of contentions, deductions or conclusions of law. [Citation.] The judgment must be
affirmed ‘if any one of the several grounds of demurrer is well taken. [Citations.]’
[Citation.] However, it is error for a trial court to sustain a demurrer when the plaintiff
has stated a cause of action under any possible legal theory. [Citation.] And it is an


                                              6
abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows
there is a reasonable possibility any defect identified by the defendant can be cured by
amendment. [Citation.]” (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-
967.)
        We must affirm a trial court’s decision to sustain the demurrer if it was correct on
any theory. (Trinkle v. California State Lottery (1999) 71 Cal.App.4th 1198, 1201.)
Thus, an appellate court may consider new theories on appeal from the sustaining of a
demurrer to challenge or justify the ruling. (B & P Development Corp. v. City of
Saratoga (1986) 185 Cal.App.3d 949, 959.)
II. Claim for retaliation under Labor Code section 1102.5
        Appellant’s main argument on appeal regarding the alleged Labor Code violation
against the District involves her obligations under the Act and the District’s alleged
waiver of the defense of untimeliness under Government Code section 911.3.
        However, during the pendency of this appeal, a case was published on a relevant
issue not raised below. In MacDonald v. State of California (2013) 219 Cal.App.4th 67
(MacDonald), the appellate court determined that a plaintiff must exhaust administrative
remedies under Labor Code section 98.7 before bringing a claim for retaliation under
Labor Code section 1102.5. We asked the parties for supplemental briefing on the effect
of this recent decision on the matter before us.
        We discuss these two issues below and conclude that appellant’s cause of action
under Labor Code section 1102.5 must fail due to her failure to exhaust administrative
remedies.
        A. The District waived its defense of untimeliness under Government Code
section 911.3
        We first address the parties’ competing contentions concerning the requirement
that appellant file a claim with the District pursuant to the Act.
        The Act confines potential government liability to “‘“rigidly delineated
circumstances.”’” (Zeliq v. County of Los Angeles (2002) 27 Cal.4th 1112, 1127.)
Specifically, the Act prescribes the time and procedure for filing claims against the


                                              7
government, and the conditions under which the government may be sued. (Chase v.
State of California (1977) 67 Cal.App.3d 808, 811.) The Act requires that, before filing a
complaint seeking money or damages against a governmental entity, (1) the plaintiff must
present the claim to the relevant governmental entity; and (2) the entity must reject the
claim. (See Gov. Code, §§ 910, 911.2, 912.4, 912.6, 945.4.)
       “Generally speaking, no suit for money or damages may be brought against a
public entity on a cause of action for which a claim is required to be presented until a
written claim has been presented to the public entity and has been acted upon by the
board, or has been deemed to have been rejected by the board. . . . [¶] Under
Government Code section 945.4, presentation of a timely claim is a condition precedent
to the commencement of suit against a public entity.” (Munoz v. State of California
(1995) 33 Cal.App.4th 1767, 1776-1777.)
       Government Code section 911.2, subdivision (a), states that “[a] claim relating to a
cause of action for death or for injury to person or to personal property . . . shall be
presented as provided in Article 2 (commencing with Section 915) not later than six
months after the accrual of the cause of action.”
       Once a potential plaintiff files a claim -- even if the claim is untimely -- the
government has an obligation to respond or suffer a waiver of the defense of
untimeliness. Government Code section 911.3 provides:
               “(a) When a claim that is required by Section 911.2 to be presented
       not later than six months after accrual of the cause of action is presented
       after such time without the application provided in Section 911.4, the board
       or other person designated by it may, at any time within 45 days after the
       claim is presented, give written notice to the person presenting the claim
       that the claim was not filed timely and that it is being returned without
       further action. The notice shall be in substantially the following form:

              “‘The claim you presented to the (insert title of board or officer) on
       (indicate date) is being returned because it was not presented within six
       months after the event or occurrence as required by law. See Sections 901
       and 911.2 of the Government Code. Because the claim was not presented
       within the time allowed by law, no action was taken on the claim.



                                               8
              “Your only recourse at this time is to apply without delay to (name
       of public entity) for leave to present a late claim. See Sections 911.4 to
       912.2, inclusive, and Section 946.6 of the Government Code. Under some
       circumstances, leave to present a late claim will be granted. See Section
       911.6 of the Government Code.

             “You may seek the advice of an attorney of your choice in
       connection with this matter. If you desire to consult an attorney, you
       should do so immediately.’

               “(b) Any defense as to the time limit for presenting a claim
       described in subdivision (a) is waived by failure to give the notice set forth
       in subdivision (a) within 45 days after the claim is presented, except that no
       notice need be given and no waiver shall result when the claim as presented
       fails to state either an address to which the person presenting the claim
       desires notices to be sent or an address of the claimant.”

       Thus, under Government code section 911.3, the filing of an untimely claim
“triggers a duty by the public entity to notify the potential claimant of the claim’s
insufficiency stating, with particularity, the defects or omissions. If the public entity fails
to send this notice, it waives any defenses as to the sufficiency of the claim based upon a
defect or omission.” (Green v. State Center Community College Dist. (1995) 34
Cal.App.4th 1348, 1354, fn. omitted.)
       In the FAC, appellant alleged that she presented her claim to the District on
October 18, 2011. Appellant asserts that the District did not respond to the claim within
the required statutory time frame. Because we are reviewing a demurrer, we must
assume these facts are true. (Luther v. Countrywide Financial Corp. (2011) 195
Cal.App.4th 789, 793.)
       Appellant argues that, based on these facts, the District has waived its defense of
untimeliness pursuant to Government Code section 911.3, subdivision (b). Since the
allegations on the face of the complaint support this argument, the demurrer was not
properly sustained on the ground that appellant’s claim was not timely filed.




                                               9
       B. Appellant failed to exhaust her administrative remedies under Labor Code
section 98.7
       Despite our finding that the District waived its defense of untimeliness under the
Act, we find the judgment sustaining the demurrer to this cause of action still must be
affirmed on the ground that appellant failed to exhaust her administrative remedies under
Labor Code section 98.7.3
       Labor Code section 98.7, subdivision (a) provides, in pertinent part: “Any person
who believes that he or she has been discharged or otherwise discriminated against in
violation of any law under the jurisdiction of the Labor Commissioner may file a
complaint with the division within six months after the occurrence of the violation.”4
The statute then outlines a process for investigation and decision by the Labor
Commissioner. (Lab. Code, § 98.7, subds. (b)-(e).) MacDonald held that the trial court
properly sustained without leave to amend, a cause of action for violation of Labor Code
section 1102.5 on the ground that the plaintiff failed to exhaust the administrative remedy
set forth in Labor Code section 98.7. (MacDonald, supra, 219 Cal.App.4th at pp. 70, 72.)
The MacDonald court emphasized that “[t]he rule of exhaustion of administrative
remedies is well established in California jurisprudence.” (Id. at p. 71.) The court
pointed out that this rule holds true “even where the administrative remedy is couched in
permissive, as opposed to mandatory, language. [Citation.]” (Id. at p. 72.) Because an
administrative remedy is provided in Labor Code section 98.7, the MacDonald court
concluded that the plaintiff was required to exhaust that remedy prior to pursuing the




3       Although this issue was not raised at all at the trial court level, an appellate court
may consider new theories on appeal from the sustaining of a demurrer to challenge or
justify the ruling. (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 880, fn.
10.)

4      Labor Code section 1102.5 is under the jurisdiction of the Labor Commissioner.
(Lab. Code, §§ 98.6, subd. (a); 6312.)

                                              10
underlying action. (MacDonald, at p. 72.)5 The MacDonald court’s well-reasoned
analysis relied heavily on Campbell v. Regents of University of California (2005) 35
Cal.4th 311 (Campbell), in which the Supreme Court held that the rule of exhaustion of
administrative remedies is a jurisdictional prerequisite to a claim brought under Labor
Code section 1102.5.
       Appellant did not address in supplemental briefing the question of the effect of the
MacDonald decision on this matter. Rather she urged us to find the case without
application here. Appellant has provided no facts suggesting that she has exhausted this
remedy, and has provided no substantive arguments as to why we should not follow the
authority set forth in MacDonald. Therefore, we hold that because Labor Code section
98.7 provides a statutory administrative remedy, appellant was required to exhaust that
remedy before pursuing the underlying action. (Campbell, supra, 35 Cal.4th 311.) She
failed to do so, therefore her claim for violation of Labor Code section 1102.5 is barred.
(MacDonald, supra, 219 Cal.App.4th 67.)
III. Claim for First Amendment retaliation in violation of section 1983
       A. Applicable law
       Section 1983 “creates a cause of action in favor of ‘the party injured’ against
‘[e]very person who, under color of any statute, ordinance, regulation, custom, or usage,
of any State . . . , subjects, or causes to be subjected, any . . . person . . . to the deprivation
of any rights . . . secured by the Constitution and laws . . . .’ (42 U.S.C. § 1983.)”
(County of Los Angeles v. Superior Court (1999) 21 Cal.4th 292, 297.)
       Section 1983 is not itself a source of substantive rights, “‘but merely provides “a
method for vindicating federal rights elsewhere conferred.”’ [Citations.]” (County of Los
Angeles v. Superior Court, supra, 21 Cal.4th at p. 297.) It allows actions against state or



5       We are aware of the earlier decision in Lloyd v. County of Los Angeles (2009) 172
Cal.App.4th 320, in which Division 3 of the Second Appellate District held that a
plaintiff need not exhaust the administrative remedy found in Labor Code section 98.7 in
order to bring a claim under Labor Code section 1102.5. (Lloyd, supra, at pp. 331-332.)
We find the analysis in MacDonald more persuasive.

                                                11
local officials for actions that have violated constitutional rights. (Manta Management
Corp. v. City of San Bernardino (2008) 43 Cal.4th 400, 406.)
       There are two essential elements of a claim under section 1983: (1) the conduct
complained of was committed by a person acting under color of state law; and (2) the
conduct deprived the plaintiff of a right, privilege or immunity secured by the
Constitution or laws of the United States. (Vergos v. McNeal (2007) 146 Cal.App.4th
1387, 1402.)
       Qualified immunity is a defense to a claim under section 1983. Under the rule of
qualified immunity:
               “Public officials are ‘shielded 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.] The plaintiff shoulders the burden of proving that the rights he
       claims are ‘clearly established.’ [Citation.] The Supreme Court has made
       it clear that qualified immunity provides a protection to government
       officers that is quite far-reaching. Indeed, it safeguards ‘all but the plainly
       incompetent or those who knowingly violate the law. . . . If officers of
       reasonable competence could disagree on the issue [whether a chosen
       course of action is constitutional], immunity should be recognized.’
       [Citations.]”

(Brewster v. Bd. of Educ. (9th Cir. 1998) 149 F.3d 971, 977 (Brewster).)
       B. Public employee speech does not always fall within the protection of the First
Amendment
       The First Amendment protects expressions made “‘as a citizen upon matters of
public concern.’” (Garcetti v. Ceballos (2006) 547 U.S. 410, 416 (Ceballos).) The
speech of public employees, however, is not always protected. “[T]he Supreme Court
has expressly recognized that ‘the government as employer . . . has far broader powers [to
restrict expression] than does the government as sovereign.’ [Citation.]” (Brewster,
supra, 149 F.3d at p. 978.)
       Two inquiries guide interpretation of the constitutional protections accorded to
public employee speech.



                                             12
               “The first requires determining whether the employee spoke as a
       citizen on a matter of public concern. [Citation.] If the answer is no, the
       employee has no First Amendment cause of action based on his or her
       employer’s reaction to the speech. [Citation.] If the answer is yes, then the
       possibility of a First Amendment claim arises. The question becomes
       whether the relevant government entity had an adequate justification for
       treating the employee differently from any other member of the general
       public. [Citation.] This consideration reflects the importance of the
       relationship between the speaker’s expressions and employment. A
       government entity has broader discretion to restrict speech when it acts in
       its role as employer, but the restrictions it imposes must be directed at
       speech that has some potential to affect the entity’s operations.”

(Ceballos, supra, 547 U.S. at p. 418.)
       As set forth in Pickering v. Bd. of Educ. (1968) 391 U.S. 563, 568 (Pickering), in
determining whether an employee’s expression is constitutionally protected at all, courts
balance “the interests of the [employee], 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.” If a case of government
employee speech is subject to the Pickering balancing test, it “will not, as a general
matter, generate clearly established law.” (Moran v. Washington (9th Cir. 1998) 147
F.3d 839, 847 (Moran).)
       In Ceballos, the speech at issue was a memorandum drafted by Ceballos, a deputy
district attorney for the Los Angeles County District Attorney’s office. The
memorandum addressed Ceballos’s concerns regarding misrepresentations contained in
an affidavit used to obtain a critical search warrant and recommending dismissal of the
related prosecution. (Ceballos, supra, 547 U.S. at pp. 413-414.)
       The Ceballos court held that the speech in question was not protected by the First
Amendment. It was not determinative that the speech took place in Ceballos’s office, or
that the memorandum concerned the subject matter of his employment. (Ceballos, supra,
547 U.S. at p. 421.) The controlling factor was that his expressions were made pursuant
to his duties as a prosecutor. The Ceballos court held that “when public employees make
statements pursuant to their official duties, the employees are not speaking as citizens for


                                             13
First Amendment purposes, and the Constitution does not insulate their communications
from employer discipline.” (Ibid.)
       The Ceballos court explained its conclusion that Ceballos was not speaking as a
public citizen:
               “Ceballos did not act as a citizen when he went about conducting his
       daily professional activities, such as supervising attorneys, investigating
       charges, and preparing filings. In the same way he did not speak as a
       citizen by writing a memo that addressed the proper disposition of a
       pending criminal case. When he went to work and performed the tasks he
       was paid to perform, Ceballos acted as a government employee. The fact
       that his duties sometimes required him to speak or write does not mean his
       supervisors were prohibited from evaluating his performance.”

(Ceballos, supra, 547 U.S. at p. 422.)
       Another pertinent example can be found in Brewster. In Brewster, a teacher
alleged that his daily attendance records were being falsified by the school’s attendance
clerk in order to increase the school’s average daily attendance, which in turn led to
greater federal funding. (Brewster, supra, 149 F.3d at p. 975.) The teacher claimed that
this allegation led to adverse employment consequences. The Brewster court assumed,
without deciding, that the teacher’s expression touched on a matter of public concern.
(Id. at p. 979.) In determining whether the speech was protected by the First
Amendment, the Ninth Circuit considered several factors, including whether the speech
engendered disharmony among employees, and whether the speech was directed to the
media or to a governmental colleague. (Id. at pp. 980-981.) The court acknowledged
that while not determinative, “a ‘narrow, limited focus and [a] limited audience weigh
against [a] claim of protected speech.’ [Citation.]” (Id. at p. 981, fn. omitted.) While
acknowledging that it was a close call, the court ultimately determined that the teacher’s
right to speak was not sufficiently “clearly established” to defeat the school officials’
assertion of qualified immunity. (Ibid.)
       Moran involved an individual employed as deputy commissioner in the Office of
Insurance Commissioner, who disagreed with the Insurance Commissioner’s outreach



                                             14
policies. (Moran, supra, 147 F.3d at pp. 841-842.) In evaluating Moran’s claims against
the Commissioner for retaliation in violation of the First Amendment, the Ninth Circuit
considered Moran’s position, pointing out that “the Supreme Court has expressly held
that ‘when close working relationships are essential to fulfilling public responsibilities, a
wide degree of deference to the employer’s judgment is appropriate’ [citation].’” (Id. at
pp. 849-850.) Concluding that Moran’s actions disrupted the effective functioning of the
Insurance Commissioner, the Ninth Circuit concluded that “the Pickering balance tips
demonstrably in favor of [the] Commissioner.” (Moran, supra, at p. 850.) Moran’s right
to denounce her employer’s outreach program was not clearly established, thus qualified
immunity protected her employer from civil damages. (Ibid.)
       Constitutional protection is imperative in some cases of government employee
speech. In Lambert v. Richard (9th Cir. 1995) 59 F.3d 134 (Lambert), for example, a
library employee and union representative appeared before the Santa Ana City Council
on behalf of the Santa Ana City Employees Association. (Id. at p. 135.) She read a
prepared statement in which she criticized Library Director Robert Richard’s
management practices. She asserted that the library was barely functioning as a result of
Richard’s mismanagement. (Ibid.) Shortly thereafter, Richard placed a letter of
reprimand in Lambert’s personnel file. After making a request that the letter be
withdrawn, Lambert sued for declaratory and injunctive relief and damages under section
1983. Under these circumstances, the district court properly granted Lambert’s motion
for summary judgment denying qualified immunity. The court found that the speech was
undeniably a matter of public concern and that reasonable public officials would have
realized that Richard’s conduct was unlawful. (Lambert, supra, at p. 137.)
       Pickering was also a case in which the First Amendment was implicated. In
Pickering, a teacher was dismissed from his position for sending a letter to a local
newspaper in connection with a recently imposed tax increase that was critical of how the
school district had handled past proposals to raise revenue for schools. (Pickering, supra,
391 U.S. at p. 564.) Under the circumstances, the Supreme Court determined that a



                                             15
teacher’s exercise of his right to speak on issues of public importance could not furnish
the basis for his dismissal from public employment. (Id. at pp. 574-575.)
       As the above discussion demonstrates, the question of whether an employee’s
speech is constitutionally protected must be determined on a case-by-case basis.
However, as the Moran court pointed out, it is difficult to divine clearly established legal
principles from multi-factor balancing tests such as the one mandated in Pickering.
(Moran, supra, 147 F.3d at p. 847.) “However, notwithstanding our recognition of the
fact that Pickering will not, as a general matter, generate clearly established law,” we
must still evaluate the allegations in the FAC to determine whether appellant has
discharged her burden of alleging that the rights she claims were, at the time of her
dismissal, so clearly established as to preclude a finding of qualified immunity. (Moran,
supra, at pp. 847-848.)
C. Appellant has failed as a matter of law to allege protected speech that falls outside
the boundaries of the defense of qualified immunity
       In the FAC, appellant alleges that she was employed with the District from 1969
through 2008. From September 2008 through May 2010, she serviced the grant as a
retiree.
       All of the speech at issue was made during the time that appellant was employed
by the District. First, prior to her retirement, appellant alleges that she “repeatedly
protested” Dickens’s alleged attempts to deviate from the restrictions and guidelines for
implementing the grant.
       In addition, after her retirement but during the time that appellant was reemployed
as an individual responsible for servicing the grant, appellant “continuously protested”
Dickens’s effort to violate the terms and conditions concerning implementation of the
grant. Appellant went so far as to tell Dickens that Dickens could only act as she did “if
and only if the grant is rewritten.” Otherwise, appellant told Dickens, what she was
doing was unlawful.
       The allegations thus concern speech that was limited to the confines of appellant’s
workplace. Appellant does not allege that she wrote a letter to a newspaper, as was the


                                              16
case in Pickering, or appeared at a city council meeting, as in Lambert. As discussed in
Brewster, the question of whether the speech was directed to the media or to a
governmental colleague is a relevant inquiry in determining whether an employee’s
expression is constitutionally protected. (Brewster, supra, 149 F.3d at pp. 980-981.)
While not determinative, “a ‘narrow, limited focus and [a] limited audience weigh against
[a] claim of protected speech.’ [Citation.]” (Id. at p. 981, fn. omitted.)
       More significantly, the allegations concern expressions which were made as part
of appellant’s duties as an employee of the District and author of the grant. Thus, as in
Ceballos, appellant’s communications were made pursuant to her professional duties.
She spoke as an employee “fulfilling a responsibility to advise [her] supervisor about
how best to proceed” with implementation of the grant. (Ceballos, supra, 547 U.S. at p.
421.) This was the determinative factor in Ceballos. As the Supreme Court explained,
“Ceballos did not act as a citizen when he went about conducting his daily professional
activities . . . [i]n the same way he did not speak as a citizen by writing a memo that
addressed the proper disposition of a pending criminal case.” (Id. at p. 422.) Similarly,
appellant did not speak as a citizen when she advised her colleague about the proper
implementation of the grant. “[T]he First Amendment does not prohibit managerial
discipline based on an employee’s expressions made pursuant to official responsibilities.”
(Ceballos, supra, at p. 424.) Because appellant’s alleged expressions fall into this
category -- and she has not suggested that she can amend her complaint to cure this defect
-- her claim of unconstitutional retaliation cannot prevail.
       Appellant attempts to distinguish Ceballos. She argues that she was never
commissioned to apply for the grant, nor was it part of her core duty to run the program.
However, appellant admits she was paid a stipend as author of the grant while employed
by the District. Thus, part of her income was conditioned on the proper functioning of
the grant. In addition, as author of the grant, appellant was well-informed of its contents.
Following her retirement, appellant was formally hired to service the grant for two school
years. These allegations show both a financial and a professional connection with the
grant. (See Eng v. Cooley (9th Cir. 2009) 552 F.3d 1062, 1071 [“‘Statements are made in


                                             17
the speaker’s capacity as citizen if the speaker “had no official duty” to make the
questioned statements, or if the speech was not the product of “performing the tasks the
employee was paid to perform”’”].) 6 Given these allegations, appellant cannot now
allege that proper implementation of the grant was outside the boundaries of her
professional responsibilities.7
       Even if appellant’s allegations presented a close call, we need not determine the
merits of her claim at this stage of the proceedings. Rather, we are faced with the “‘much
simpler task’” of “deciding whether the Pickering test so clearly favors [appellant] that it
would have been unreasonable for [Dickens] to believe that [appellant’s termination] was
lawful.” (Brewster, supra, 149 F.3d at p. 981.) As was the case in Brewster, it would
“be dubious indeed to conclude that [appellant’s] right to speak was sufficiently ‘clearly
established’ to defeat [Dickens’s] assertion of qualified immunity.” (Ibid.)
       “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.’
[Citation.]” (Pearson v. Callahan (2009) 555 U.S. 223, 231.) Accordingly, the Supreme
Court has “‘repeatedly . . . stressed the importance of resolving immunity questions at the
earliest possible stage in litigation.’ [Citation.]” (Id. at p. 232.)


6       Appellant cites several cases in support of her position that the issue of whether an
employee is acting as a private citizen or public employee is a question of fact. However,
these cases also admit that “‘the ultimate constitutional significance of the [undisputed]
facts’ is a question of law.” (Karl v. City of Mountlake Terrace (9th Cir. 2012) 678 F.3d
1062.) At this stage, we are assuming that all facts stated by appellant in her complaint
are true. As set forth above, those facts admit a professional connection to the grant.
(See Eng v. Cooley, supra, 552 F.3d at p. 1071 [“If the allegations demonstrate an official
duty to utter the speech at issue, then the speech is unprotected”].)

7       Nor has appellant argued that she should be permitted to amend her complaint to
allege that her professional duties did not involve the grant. If she did, we would be
entitled to ignore such inconsistent allegations. (Colapinto v. County of Riverside (1991)
230 Cal.App.3d 147, 151 [if party attempts to avoid the defects of a complaint by
omitting facts which made the previous complaint defective, or by adding facts
inconsistent with those previous pleadings, we may disregard the inconsistent
allegations].)

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       The doctrine of qualified immunity “provides ample protection to all but the
plainly incompetent or those who knowingly violate the law.” (Malley v. Briggs (1986)
475 U.S. 335, 341.) If “officers of reasonable competence could disagree on the issue,
immunity should be recognized.” (Ibid.) At the very least, reasonable officers could
disagree on whether appellant’s termination violated a clearly established right. We
therefore find that Dickens is entitled to qualified immunity and appellant’s allegations
against her must fail as a matter of law.
                                      DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.



                                                 __________________________, J.
                                                 CHAVEZ

We concur:



__________________________, P. J.
BOREN



__________________________, J.*
FERNS




________________________________________________________________________
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.


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