Walton v. Victor Valley Community College District

Filed 3/18/26; Modified and Certified for Pub. 4/14/26 (order attached)




        IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            FOURTH APPELLATE DISTRICT

                                      DIVISION THREE


 JESSIE WALTON,

     Plaintiff and Appellant,                              G064668

         v.                                                (Super. Ct. No.
                                                           CIVDS1918720)
 VICTOR VALLEY COMMUNITY
 COLLEGE DISTRICT,                                         OPINION

     Defendant and Respondent.



               Appeal from a judgment of the Superior Court of San Bernardino
County, Jeffrey R. Erickson, Judge. Reversed and remanded.
               McNicholas & McNicholas, Matthew S. McNicholas and Douglas
D. Winter; Law Offices of John W. Dalton and John W. Dalton; and Esner,
Chang, Boyer & Murphy and Stuart B. Esner for Plaintiff and Appellant.
               Walsh & Associates and Dennis J. Walsh; Pollak, Vida & Barer
and Daniel P. Barer for Defendant and Respondent.
              Plaintiff Jessie Walton appeals from summary judgment on her
sexual harassment-related claims against defendant Victor Valley
Community College District. We agree with Walton that the trial court
wrongly excluded her attorney’s declaration for a correctible omission. The
court also erred in finding: (a) Walton lacks standing to pursue Fair
Employment and Housing Act claims, (b) she failed to comply with the
Government Claims Act, and (c) the District cannot be liable under Education
Code section 66270 because it was not deliberately indifferent to Walton’s
complaints.
              But Walton does not dispute the trial court’s ruling on her claim
for Civil Code violations. We thus reverse for the court to summarily
adjudicate that one cause of action but otherwise deny the motion.
                                     FACTS
              Walton enrolled at the District as a postsecondary nursing
student in 2017. As part of her coursework, she was required to complete
clinical rotations at two local hospitals, where District faculty supervised her
work with patients.
              Walton’s supervisor during her spring 2018 clinical rotations was
Diego Garcia, the District’s nursing program director. According to Walton,
Garcia subjected her to extensive verbal and physical sexual harassment
during those rotations and tried to force her into a sexual relationship in
exchange for better grades. When Walton rebuffed his advances, he allegedly
retaliated against her by giving her a non-passing grade and by refusing to
meet with her to discuss it.
              In June 2018, Walton sent a letter to the District detailing
Garcia’s harassment and discrimination. The District put Garcia on



                                         2
administrative leave and commissioned a third party firm to investigate
Walton’s complaint.
              Meanwhile, Walton sent the District a letter requesting a grade
change, asserting Garcia had not taken her grading concerns seriously. The
District denied her request in August 2018, finding no discrepancy. The
following month, Walton withdrew from the program. She later obtained her
nursing degree at a different program out of state.
              In November 2018, after conducting numerous interviews of both
students and faculty, the District’s third-party investigator issued a 79-page
report finding Garcia had engaged in “highly inappropriate behavior” by
sexually harassing Walton and another female student. Following that
investigation, District human resources recommended that Garcia be
removed from his tenured position.1 Garcia did not return to teach at the
District.
              Walton hired an attorney, who in December 2018 sent the
District a 13-page letter detailing Garcia’s alleged misconduct, outlining
Walton’s estimated damages, and advising that Walton might pursue
litigation. The letter requested a response within 14 days and was labeled
“PRIVILEGED AND CONFIDENTIAL” (underscore and boldface omitted)
under Evidence Code section 1152. It did not reference the Government
Claims Act.
              After unsuccessful mediation attempts, Walton filed a complaint
against the District and Garcia. Her operative first amended complaint

              1 Human resources noted Garcia had “touch[ed] female students,

ask[ed] about their romantic/sexual relationships, ask[ed] them to go out for
drinks, show[ed] gender-specific favoritism, [and] access[ed] sexually
suggestive images at work,” and his “conduct was pervasive, so as to create a
hostile environment for” Walton and others.

                                        3
asserts five claims under FEHA for sex discrimination, sexual harassment,
failure to prevent, retaliation, and injunctive relief. It also includes one cause
of action for violations of Civil Code sections 51, 51.5, 51.9, and 52; one cause
of action for violations of Education Code sections 220, 221.8, 231.5, and
66270; and a cause of action for negligence.
            The District moved for summary judgment or, alternatively,
summary adjudication. It asserted, among other things, that Walton lacked
standing to bring a claim under FEHA, failed to comply with the Government
Claims Act notice requirements, and could not show the District was
deliberately indifferent toward her complaints under Education Code section
66270.
            Walton opposed the motion and submitted declarations from
herself and her attorney. Counsel’s declaration authenticated much of
Walton’s opposition evidence, including counsel’s December 2018 letter to the
District, as well as excerpts of various deposition transcripts offered to show
the District knew Garcia had sexually harassed other students. The
declaration contained the signature line typically used in pleadings and
motions, with the date, the law firm name, and counsel’s name and signature.
The District objected to the declaration because it failed to state the location
where it was signed and was not subscribed under penalty of perjury under
the laws of California. (Code Civ. Proc., § 2015.5.)
            At the hearing, the trial court began by telling Walton’s counsel,
“your declaration is not under penalty of perjury, sir.” Counsel replied that he
thought it was, but if not, that was “an oversight on my part.” Noting the
declaration was not under oath, the court sustained the District’s objection to
the declaration. After further argument on the motion’s merits, the court



                                        4
granted summary judgment as to Walton’s non-FEHA claims and took the
remainder of the motion under submission.
            Later that same day, Walton’s counsel filed a notice of errata
concerning his declaration, apologizing to the trial court and defense counsel
for his mistake. He also filed a corrected declaration, which was signed under
penalty of perjury and included the place of execution. The District objected
to the notice of errata as untimely.
            That same afternoon, the trial court issued a minute order
granting the District’s motion. The court sustained the District’s objection to
Walton’s counsel’s original declaration (making no mention of the corrected
declaration) and found the District’s remaining evidentiary objections to
counsel’s declaration were moot. As for the merits, the court found Walton
lacked standing to pursue FEHA claims, she failed to give Government
Claims Act notice for her non-FEHA claims, and the District was not
deliberately indifferent to Walton’s complaints.2 The court then entered
judgment for the District and against Walton.
                                 DISCUSSION
                                        I.
   THE TRIAL COURT SHOULD HAVE CONSIDERED COUNSEL’S DECLARATION
            We begin with the trial court’s evidentiary rulings, which we
review for abuse of discretion. (Doe v. Software One, Inc. (2022) 85

            2 The trial court’s order listed several other grounds for granting

summary judgment: the other Education Code sections mentioned in
Walton’s seventh cause of action—Education Code sections 220, 221.8, and
231.5—cover elementary and secondary schools, not postsecondary schools;
and no cause of action lies against the District, as a public entity, under Civil
Code sections 51 or 51.9 so as to support Walton’s sixth cause of action.
Walton does not challenge those portions of the court’s ruling, so we do not
discuss them further.

                                        5
Cal.App.5th 98, 104.) We reverse an evidentiary ruling only “if the trial court
exercised its discretion in an arbitrary, capricious, or patently absurd
manner” or if the evidentiary ruling was “based on a misunderstanding of the
law.” (Hernandez v. Amcord, Inc. (2013) 215 Cal.App.4th 659, 678.)
            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.” (Parkview Villas Assn., Inc. v. State Farm Fire &
Casualty Co. (2005) 133 Cal.App.4th 1197, 1211 (Parkview).) In the event of
such a defect, the “proper response” is to grant an opportunity to cure so the
motion can be resolved on the merits. (Ibid.; but see id. at p. 1216 [court
retains discretion to order “limited sanctions” against party responsible for
procedural error].)
            Technical oversights in declarations of counsel are just such
curable defects. (See Gall v. Smith & Nephew, Inc. (2021) 71 Cal.App.5th 117,
125 [court permissibly allowed counsel to correct error in Code Civ. Proc. §
2015.5 subscription]; Ambriz v. Kelegian (2007) 146 Cal.App.4th 1519, 1528
(Ambriz) [reversing summary judgment—“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”].)
            We can see no reason for preventing Walton’s counsel from
adding the necessary subscription to his declaration. Attorneys routinely
submit declarations attaching deposition transcript excerpts and court
records. (See Ambriz, supra, 146 Cal.App.4th at p. 1527.) Counsel was
present in the courtroom and could have corrected the error during the
hearing. Counsel did cure the defect hours later by filing a corrected
declaration. Refusing to permit a cure hamstrung Walton’s ability to oppose a
dispositive motion, as the declaration authenticated much of her opposition

                                        6
evidence. And the District has not explained how it would have been
prejudiced if the trial court had accepted the cure.
            Given these circumstances, sustaining the objection to counsel’s
declaration was an abuse of discretion. (See Parkview, supra, 133
Cal.App.4th at p. 1211; Ambriz, supra, 146 Cal.App.4th at pp. 1527–1528.)
            Because the trial court did not rule on the District’s additional
objections to counsel’s declaration, we presume the court overruled them.
(Taylor v. Financial Casualty & Surety, Inc. (2021) 67 Cal.App.5th 966, 980.)
“On appeal, the burden is on the objecting party to renew any relevant
objections by arguing the issue with relevant authority and legal analysis.”
(Ibid.) As the District has not done so, it forfeits any error and we will
consider the exhibits authenticated in counsel’s declaration.
                                        II.
                 SUMMARY JUDGMENT WAS NOT APPROPRIATE
            That brings us to the merits of the District’s motion and the
issues of (a) standing, (b) notice, and (c) deliberate indifference—as well as (d)
the effect of Thomas v. Regents of University of California (2023) 97
Cal.App.5th 587 (Thomas), a case the trial court did not discuss.
             “‘On review of an order granting or denying summary judgment,
we examine the facts presented to the trial court and determine their effect
as a matter of law.’ [Citation.] We review the entire record, ‘considering all
the evidence set forth in the moving and opposition papers except that to
which objections have been made and sustained.’ . . . [¶] Summary
judgment is appropriate only ‘where no triable issue of material fact exists
and the moving party is entitled to judgment as a matter of law.’” (Regents of
University of California v. Superior Court (2018) 4 Cal.5th 607, 618.)



                                        7
A. Standing Under FEHA
             We first consider the trial court’s conclusion that Walton lacked
standing under FEHA because she is not an unpaid intern.
             The Legislature amended FEHA in 2015 to extend its protections
against sexual harassment and discrimination to “unpaid intern[s].” (Stats.
2014, ch. 302, § 1, eff. Jan. 1, 2015; see Hirst v. City of Oceanside (2015) 236
Cal.App.4th 774, 791 [discussing legislative history].) As a result, FEHA now
makes it unlawful “[f]or any person to discriminate against any person in the
. . . training, or other terms or treatment of that person in . . . an unpaid
internship . . . because of the . . . sex [or] gender . . . of the person
discriminated against.” (Gov. Code, § 12940, subd. (c).) It further makes it
unlawful “[f]or an employer . . . or any other person, because of . . . sex [or]
gender . . . , to harass . . . an unpaid intern.” (Id., subd. (j)(1).)
             The District argued Walton was not an unpaid intern under
FEHA because she was a student and her clinical rotations were a required
component of the nursing program. The trial court agreed and found Walton
lacks standing under FEHA because she was not an employee or unpaid
intern for the District, but rather “was completing course work at the
[h]ospital secondary to her educational requirements.”
             Our review of the law suggests “student” and “unpaid intern” are
not mutually exclusive. To the contrary, the Legislature understands that
many unpaid interns are also students. When expanding FEHA to protect
unpaid interns, the Legislature explained that many “internships are part of
a more formalized educational or vocational program,” and “several
professional graduate programs require or at least typically include some
type of internship placement before completion, including . . . nursing.”
(Assem. Com. on Labor and Employment, Analysis of Assem. Bill No. 1443

                                           8
(2013–2014 Reg. Sess.) as introduced Jan. 6, 2014, p. 5, italics added; see also
Cal. Code Regs., tit. 2, § 11008(m) [“‘unpaid intern’” for purposes of FEHA is
“any individual (often a student or trainee) who works without pay for an
employer or other covered entity, in any unpaid internship or another limited
duration program to provide unpaid work experience”].)
            Thus, a postsecondary nursing student like Walton doing a
clinical rotation at a hospital qualifies as an “unpaid intern” under FEHA.
Her student status does not deprive her of FEHA protection.
            The District suggests it cannot be liable for alleged FEHA
violations because Walton volunteered at hospitals, not for the District. But
the evidence suggests it was District staff, not hospital staff, who supervised
Walton during her clinical rotations and controlled the details of her work. To
the extent the District ran her internship (a fact Garcia appears to have
conceded3), the District is subject to FEHA’s provisions prohibiting the
discrimination or harassment of unpaid interns. (See Gov. Code, § 12940,
subd. (c) & (j)(1) [prohibiting discrimination and harassment of unpaid
interns by “any person” and “any other person,” not just by employers].)
Granting summary judgment on the FEHA claims for lack of standing was
therefore inappropriate.
B. Government Claims Act Compliance
            We next consider the trial court’s finding that Walton failed to
give Government Claims Act notice for her non-FEHA claims. “The Act
requires any person seeking monetary damages from a public entity to file a

            3 In his declaration in support of the District’s motion, Garcia

explained that the District “contracts with area hospitals and community
health centers for nursing students to perform their clinical rotations. These
healthcare facilities allow the District to conduct supervision/teaching of
clinical practicums by District faculty on site.”

                                       9
claim with that entity. (§ 905.) The claim must include the information
specified in section 910.” (A.S. v. Palmdale School Dist. (2023) 94 Cal.App.5th
1091, 1096 (A.S.).) That information includes the claimant’s name and
address, the date and place of the events from which the claim arises, a
general description of the damage or loss, and the names of any responsible
public employees.4 (Gov. Code, § 910.)
            A claim is “‘sufficient if (1) there is “some compliance with all of
the statutory requirements”; and (2) the claim discloses sufficient information
to enable the public entity adequately to investigate the merits of the claim
so as to settle the claim, if appropriate.’” (A.S., supra, 94 Cal.App.5th at p.
1097.) “‘[T]he claims statute “should not be applied to snare the unwary
where [that] purpose has been satisfied.”’” (Plata v. City of San Jose (2022) 74
Cal.App.5th 736, 748.)
            Counsel’s 13-page December 2018 letter to the District detailing
Garcia’s alleged misconduct and outlining Walton’s estimated damages gave
sufficient notice. It provided the District with the information needed to
investigate Garcia’s alleged misconduct. Although the District contends the
letter “failed to contain the elements of a claim,” it tellingly does not identify
which element was omitted.
            The District appears to assert that Walton did not intend for the
December 2018 letter to serve as a claim, as it was labeled a confidential
settlement communication and gave the District less than 45 days to respond.
(See Gov. Code, § 911.6, subd. (a) [board must grant or deny claim within 45
days of presentation].) But our Supreme Court has found that a claimant’s
subjective intent in sending a letter does not matter when evaluating

            4 The letter also must include the amount of the claim if under

$10,000. (Gov. Code, § 910, subd. (f).) The claim here exceeded that amount.

                                         10
whether she provided notice; instead, the “relevant inquiry” is whether the
letter disclosed a claim that, if unresolved, would result in litigation. (Phillips
v. Desert Hospital Dist. (1989) 49 Cal.3d 699, 709–710.) Counsel’s December
2018 letter did just that.
C. Deliberate Indifference
            The trial court granted summary judgment on Walton’s
Education Code claim for the separate reason that the District “was not
deliberately indifferent to [Walton’s] claims of sexual discrimination,
harassment, or retaliation by Garcia.” We see triable issues here.
            Similar to Title IX, Education Code section 66270 provides that
“[n]o person shall be subjected to discrimination on the basis of . . . gender . . .
in any program or activity conducted by any postsecondary educational
institution that receives, or benefits from, state financial assistance or enrolls
students who receive state student financial aid.” To prevail under this
provision, a plaintiff must prove the same elements as a Title IX claimant:
“‘(1) he or she suffered severe, pervasive and offensive harassment, that
effectively deprived plaintiff of the right of equal access to educational
benefits and opportunities; (2) the school district had actual knowledge of
that harassment; and (3) the school district acted with deliberate indifference
in the face of such knowledge.’” (Videckis v. Pepperdine University (C.D. Cal.
2015) 100 F.Supp.3d 927, 935, italics added; cf. Donovan v. Poway Unified
School Dist. (2008) 167 Cal.App.4th 567, 579 (Donovan) [applying same
elements to Ed. Code § 220 claim].)
            Focusing on the third element, the trial court found the District
“held an investigation,” which definitively showed it was not deliberately
indifferent to Walton’s claims.



                                        11
            In our view, the bare fact the District conducted an investigation
is not necessarily dispositive, particularly considering the order of events.
The record shows Walton complained to the District about Garcia’s alleged
sexual harassment and grade retaliation in summer 2018, and the District
promptly commenced an investigation. In the weeks and months that
followed, however, the District refused to correct Walton’s grade and forced
her to repeat the semester, which ultimately prompted her to withdraw from
the program altogether and pursue a different program out of state.
            By the time the District’s investigation was completed in late
2018, Walton had already left the program. Thus, the investigation conferred
no benefit on Walton, aside from belatedly validating her complaints. A
reasonable jury could potentially find “deliberate indifference” from these
facts. (Accord, Roe ex rel. Callahan v. Gustine Unified School Dist. (E.D. Cal.
2009) 678 F.Supp.2d 1008, 1038 [“whether an institution acted with
deliberate indifference under a particular set of circumstances is a question
normally left to the jury”].)
            What’s more, having erroneously excluded the declaration by
Walton’s counsel, the trial court failed to consider deposition evidence
indicating that the District had received previous reports about Garcia
sexually harassing other nursing students. This evidence further confirms
that a question of fact exists as to whether the District acted with deliberate
indifference. (See Donovan, supra, 167 Cal.App.4th at pp. 614−615, fn.24
[trial court may consider harassment suffered by non-plaintiff to find liability
for Ed. Code § 220 violation].)
D. The Thomas Decision
            The District urges us to affirm summary judgment on Walton’s
negligence claim on a separate ground not addressed by the trial court. It

                                       12
relies on Thomas, supra, 97 Cal.App.5th 587, which was decided after the
District filed its motion but which the District discussed in its reply brief
below. The District contends Walton’s negligence claim fails because a college
has no duty to protect its students from “nonphysical” sexual harassment.
(See id. at pp. 627−628 [no duty to prevent soccer coach from psychologically
and verbally abusing women players].)
            Thomas is unhelpful here because Walton alleged unwanted
physical touching. Thomas therefore does not prevent Walton from pursuing
a negligence claim against the District. (See also John R. v. Oakland Unified
School Dist. (1989) 48 Cal.3d 438, 453 [student may pursue school district for
“its own direct negligence in hiring and supervising the teacher”]; Roe v.
Hesperia Unified School Dist. (2022) 85 Cal.App.5th 13, 25 [school district
may be liable for negligent hiring, retention, or supervision if district
employee sexually abuses student].)
E. Recap
            To summarize, the trial court erred in granting summary
judgment on Walton’s five FEHA claims for lack of standing. As an unpaid
intern, Walton has standing to pursue FEHA claims.
            The trial court erred in granting summary judgment on the
seventh cause of action for violating the Education Code. Walton
substantially complied with the Government Claims Act notice requirements.
Though Walton concedes Education Code sections 220, 221.8, and 231.8 are
inapplicable, Education Code section 66270 does potentially apply and a
triable issue of fact exists as to whether the District was deliberately
indifferent to her complaint.




                                       13
            The trial court erred in granting summary judgment on the
negligence cause of action. Walton substantially complied with the
Government Claims Act notice requirements; Thomas does not bar her claim.
            Walton does not challenge the trial court’s ruling as to her Civil
Code claim. As the District alternatively moved for summary adjudication, it
is entitled to summary adjudication on the sixth cause of action.
                                 DISPOSITION
            The judgment is reversed, and the matter is remanded to the
trial court with instructions to: (1) vacate its order granting summary
judgment in favor of the District; (2) enter a new order granting summary
adjudication for the District on Walton’s sixth cause of action for Civil Code
violations and denying summary adjudication on all remaining claims; and
(3) set a trial setting conference or case management conference. Walton
shall recover her costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)




                                            SCOTT, J.

WE CONCUR:



MOORE, ACTING P. J.



SANCHEZ, J.




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Filed 4/14/26



                        CERTIFIED FOR PUBLICATION

       IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                         FOURTH APPELLATE DISTRICT

                                  DIVISION THREE


 JESSIE WALTON,

     Plaintiff and Appellant,                      G064668

         v.                                        (Super. Ct. No.
                                                   CIVDS1918720)
 VICTOR VALLEY COMMUNITY
 COLLEGE DISTRICT,                                 ORDER DENYING
                                                   REHEARING, MODIFYING
     Defendant and Respondent.                     OPINION, AND PUBLISHING
                                                   OPINION AS MODIFIED


                Respondent’s petition for rehearing is denied.
                Pursuant to California Rules of Court, rule 8.264(c)(1), the
opinion is hereby modified in the following respects:
                (1) on page 2, at the end of the first full paragraph, we add the
following sentence: “We publish the opinion to provide needed clarity on an
unpaid intern’s standing to pursue claims under FEHA, and further on the
“deliberate indifference” element of a section 66270 claim.”
                (2) on page 5, the first five full sentences (“Later that same day, .
. . [¶] . . . were moot.”) are deleted and replaced with the following: “Later
that afternoon, the trial court issued a minute order granting the District’s
motion. The court sustained the District’s objection to Walton’s counsel’s
declaration and found the District’s remaining evidentiary objections to
counsel’s declaration were moot.”
            (3) on page 5, the sentence that reads “The court then entered
judgment for the District and against Walton.” is deleted.
            (4) on page 5, the following is added as a final paragraph before
the DISCUSSION section begins: “Less than an hour later, Walton’s counsel
filed a notice of errata concerning his declaration, apologizing to the trial
court and defense counsel for his mistake. He also filed a corrected
declaration, which was signed under penalty of perjury and included the
place of execution. The District objected to the notice of errata as untimely.
The trial court later entered judgment for the District and against Walton.”
            Finally, our opinion meets the standards for publication set forth
in California Rules of Court, rule 8.1105(c). The opinion, as modified, is
therefore ordered published in the Official Reports.




                                            SCOTT, J.

WE CONCUR:



MOORE, ACTING P. J.



SANCHEZ, J.




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