Appeals court revives lawsuit after judge rejects unsigned declaration defect

A San Bernardino County judge abused his discretion by throwing out a McNicholas & McNicholas attorney's declaration and exhibit because he had not signed "under penalty of perjury," a Court of Appeal has found.

Such errors are "curable defects" and refusing to allow a fix improperly undermined the plaintiff's ability to oppose a summary judgment motion, the 4th District Court of Appeal panel said in an opinion issued Tuesday.

The unanimous opinion revived a former nursing student's lawsuit against the Victor Valley Community College District, alleging sexual harassment and retaliation by a community college program director. 

An attorney for the district, Daniel P. Barer of Los Angeles firm Pollak, Vida & Barer, said in an email he was not able to provide a comment Thursday.

The attorney whose declaration was at issue, Jason L. Oliver of McNicholas & McNicholas, said in a phone call Thursday he was surprised when Superior Court judge Jeffrey R. Erickson ruled against him on the motion after a hearing in February 2024.

"He said it right out of the gate that there was a defect and that was a surprise obviously," Oliver said. "We were aware of what the judge's intentions were. During oral argument it wasn't 100% clear what he was going to do. We hoped that reason would prevail, but it didn't go our way and we had to fight this battle before the appeals court."

Division 3 Justices Nathan Scott, Eileen C. Moore and Maurice Sanchez said Erickson abused his discretion by excluding Oliver's declaration over a technical defect without allowing a correction. Walton v. Victor Valley Community College District G064668 (Cal. App. 4th filed May 15, 2024).

Scott wrote in the opinion, "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."

Erickson dismissed the lawsuit before trial, concluding the plaintiff lacked standing to sue under California's Fair Employment and Housing Act (FEHA), failed to comply with government claim notice requirements, and could not show the district acted with "deliberate indifference."

The appellate court disagreed on nearly every point.

Professional responsibility attorney Jason Fellner, founder of the Fellner Law Group, commented that Erickson's decision could have invited a legal malpractice lawsuit against Oliver.

"The failure to include the declaration 'under penalty of perjury' arguably was the cause for the case to be dismissed," Fellner said in a phone call Thursday. "As a consequence, the prospective legal malpractice case would use the trial court's order identifying the mistake that was made by the lawyer, which resulted in the case's dismissal.

"The client would have to file a lawsuit against her lawyer for the mistake that caused the case to be dismissed."

Retired Santa Clara County judge Eugene Hyman called Erickson's decision "crazy."

"I thought that the trial court was totally unreasonable in terms of not allowing his subsequent declaration under penalty of perjury," Hyman said in a phone call Thursday. "These kinds of things happen and we allow the corrections. It's crazy not to."

Hyman agreed with the appellate court's ruling and said that the unanimity across the panel underscored how much Erickson had erred.

The plaintiff, Jessie Walton, alleged that during clinical rotations in 2018, the district's nursing program director subjected her to "extensive verbal and physical sexual harassment" and attempted to coerce her into a sexual relationship in exchange for better grades. When she refused, she claimed, he retaliated by giving her a failing grade and refusing to meet with her.

The appellate ruling clarifies that students in clinical training programs may qualify as "unpaid interns" under FEHA -- and therefore are protected from workplace harassment.

The panel further held that a detailed letter Walton's attorney sent to the district outlining her allegations and damages was sufficient to meet the Government Claims Act's notice requirements, even though it was labeled as a settlement communication.

On Walton's discrimination claim under the Education Code, the court said there were factual disputes that should be decided by a jury -- particularly whether the district responded adequately after learning of the alleged misconduct.

Noel E. Guth, the founder of The Law Offices of Noel E. Guth, PC, said in an emailed comment, ""Walton is three opinions in one. The declaration ruling will get the attention, but the more consequential holdings are the substantive ones: that students in required clinical placements are FEHA-protected unpaid interns, and that commissioning an investigation does not, by itself, defeat deliberate indifference under California Education Code Section 66270 when the complainant has already been forced out.

"Together, the decision meaningfully expands the practical protections available to students in professional graduate programs across California."

Guth also had advice for plaintiff and defense attorneys who may find themselves in a similar situation to Oliver.

"The defense bar needs a better answer than pointing to the defect itself," Guth said. "If you're objecting to a declaration on Civil Code of Procedure Section 2015.5 grounds and the opposing party cures, you had better be prepared to explain concretely how your client is prejudiced by acceptance of the cure."

Meanwhile, for plaintiffs' attorneys, "The practical lesson is to build the penalty-of-perjury subscription into the declaration template itself, rather than borrowing the signature block from a pleading," Guth added.

The appellate court ordered the case sent back to the trial court, instructing it to reinstate most of Walton's claims and proceed toward trial.