Thursday, April 16, 2026
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Judge Who Ignored Declaration, Attachments Based on Lack of Verification Erred—C.A.
Opinion Says Opportunity Should Be Given to Cure Curable Defects
By a MetNews Staff Writer
A judge abused his discretion in disregarding an attorney’s declaration and attachments because the lawyer neglected to state that it was under penalty of perjury, Div. Three of the Fourth District Court of Appeal declared in an opinion that was certified for publication yesterday.
Justice Nathan Scott authored the opinion, initially filed on March 18. It partially reverses a summary judgment granted by San Bernardino Superior Court Judge Jeffrey R. Erickson in favor of the Victor Valley Community College District in a sexual harassment action brought by Jessie Walton who alleges that a supervisor of a nursing program flunked her because she spurned his advances.
The opinion reinstates causes of action under the Fair Employment and Housing Act (“FEHA”).
Judge’s Observation
Erickson told attorney Jason L. Oliver, who was representing Walton at the hearing on the summary judgment motion:
“Your declaration is not under penalty of perjury, sir.”
Oliver said he thought it was, but if not, it was “an oversight on my part.” A few hours later, before a formal ruling by the judge, he filed an erratum sheet with a verified declaration, also adding the place of execution.
The judge, in granting summary judgment, ignored the original and the corrected declarations.
Walton argued on appeal that “there was no reason” for the judge’s stance, explaining:
“Mr. Oliver was not a fact witness. His declaration simply attached documents as to which there was absolutely no dispute….”
In disregarding the declaration, Erickson did not consider the key documents, including deposition testimony, attached to it.
Scott’s Opinion
Scott wrote:
“Technical oversights in declarations of counsel are…curable defects….
“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…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 evidence. And the District has not explained how it would have been prejudiced if the trial court had accepted the cure.”
Issue of Standing
The FEHA applies to “unpaid interns,” but Erickson ruled that Walton lacked standing because she was a student. The two roles are not mutually exclusive, Scott said, declaring:
“[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 jurist also found that a 13-page letter sent to the district by Walton’s lawyer detailing misdeeds of the supervisor, Diego Garcia, constituted compliance with the Government Claims Act.
He said Erickson erred in determining that the district had not shown deliberate indifference to the harm inflicted by Garcia, remarking:
“[H]aving 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… confirms that a question of fact exists as to whether the District acted with deliberate indifference.”
The case is Victor Valley Community College District, 2026 S.O.S. 1029.
Oliver is now with the Westwood firm of McNicholas & McNicholas. He joined with Matthew S. McNicholas and Douglas D. Winter of that firm in representing Walton on appeal.
She was also represented by John W. Dalton and by Solana Beach attorney John W. Dalton and by Stuart B. Esner of the Pasadena firm of Esner, Chang, Boyer & Murphy.
Acting for the district were Encino attorney Dennis J. Walsh and Daniel P. Barer of the West Los Angeles firm of Pollak, Vida & Barer.
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