The Fourth Appellate District, Division Three, issued the opinion in Walton v. Victor Valley Community College District on March 18, then modified and certified it for publication on April 14. Justice Scott wrote for the panel, joined by Acting Presiding Justice Moore and Justice Sanchez.
Plaintiff Jessie Walton alleged that Diego Garcia, the District's nursing program director who supervised her spring 2018 clinical rotations, subjected her to verbal and physical sexual harassment and "tried to force her into a sexual relationship in exchange for better grades." After Walton complained, a third-party investigator issued a 79-page report finding Garcia engaged in "highly inappropriate behavior," and District human resources found his "conduct was pervasive, so as to create a hostile environment."
San Bernardino County Superior Court Judge Jeffrey R. Erickson granted summary judgment after excluding a declaration from Walton's counsel that lacked the penalty-of-perjury subscription required by Code of Civil Procedure section 2015.5. At the hearing, the trial court told counsel, "your declaration is not under penalty of perjury, sir." Counsel replied that the omission was "an oversight on my part" and filed a corrected declaration under penalty of perjury less than an hour later.
The panel held that sustaining the objection was an abuse of discretion. A court should be cautious about granting summary judgment "based on a curable procedural default, which deprives the opposing party of a decision on the merits," the court wrote, quoting Parkview Villas Assn. v. State Farm Fire & Casualty Co. Citing Ambriz v. Kelegian, the panel said "the court should have allowed [plaintiff's] counsel to attempt to remedy the perceived failings [in his declaration] before ruling against [plaintiff] on a dispositive motion."
On FEHA standing, the trial court had found Walton "was completing course work at the [h]ospital secondary to her educational requirements" and therefore was not an unpaid intern. The panel disagreed, noting that the Legislature, when extending FEHA to unpaid interns in 2015, observed that "several professional graduate programs require or at least typically include some type of internship placement before completion, including . . . nursing." The court held that "a postsecondary nursing student like Walton doing a clinical rotation at a hospital qualifies as an 'unpaid intern' under FEHA."
The panel also rejected the trial court's Government Claims Act ruling, finding that a 13-page December 2018 letter from Walton's counsel—detailing Garcia's alleged misconduct and estimated damages—gave sufficient notice even though it was labeled a confidential settlement communication under Evidence Code section 1152. The District "tellingly does not identify which element was omitted," the court wrote, citing Phillips v. Desert Hospital Dist. for the rule that a claimant's subjective intent does not control.
On deliberate indifference under Education Code section 66270, the trial court had relied on the fact that the District "held an investigation." The panel said "the bare fact the District conducted an investigation is not necessarily dispositive, particularly considering the order of events," because Walton had withdrawn from the program before the investigation concluded and "the investigation conferred no benefit on Walton, aside from belatedly validating her complaints." The court added that "whether an institution acted with deliberate indifference under a particular set of circumstances is a question normally left to the jury," quoting Roe ex rel. Callahan v. Gustine Unified School Dist.
The panel also rejected the District's argument, based on Thomas v. Regents of University of California, that it had no duty to protect students from "nonphysical" sexual harassment. "Thomas is unhelpful here because Walton alleged unwanted physical touching," the court wrote. The panel directed the trial court to grant summary adjudication for the District only on Walton's Civil Code cause of action, which she did not challenge on appeal, and to deny the motion as to the remaining claims. Walton was represented by McNicholas & McNicholas, the Law Offices of John W. Dalton, and Esner, Chang, Boyer & Murphy. The District was represented by Walsh & Associates and Pollak, Vida & Barer.