Van Schoick v. Saddleback Valley Unified School Dist. (2001)

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[No. G022813. Fourth Dist., Div. Three. Mar. 20, 2001.]

JUSTIN VAN SCHOICK, a minor, etc, Plaintiff and Appellant, v. SADDLEBACK VALLEY UNIFIED SCHOOL DISTRICT et al., Defendants and Respondents.

[Modification of Opinion (87 Cal. App. 4th 522; 104 Cal.Rptr.2d 562) on denial of petition for rehearing.]

CROSBY, Acting P. J.-

The opinion in this matter filed February 28, 2001, is ordered modified as follows:

1. Replace the second line of footnote 7 on page 8 [87 Cal. App. 4th 528, advance report, fn. 7, lines 2-3] with this sentence: "To the extent it has any vitality left, Perumal is overruled. (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, ยงยง 976-977, pp. 1025-1029.)"

2. Add new footnote to the end of the parenthetical expression contained in the third line on page 11 [87 Cal. App. 4th 531, advance report, line 6], and renumber the footnotes accordingly: "FCA's constitution provides in part that a purpose of the club is 'to demonstrate concern for our school and community through participation in community service projects that may also qualify for student community service credit.'"

3. Add the following to present footnote 9 on page 12 [87 Cal. App. 4th 531, advance report, fn. 9, line 4]:

"We recognize, of course, for that purpose FCA may bear a similar (noncurriculum) relationship to physical education as a scuba diving club might bear to a swimming class. (See Westside Community Schools v. Mergens, supra, 496 U.S. at p. 245.) The point is that community service may be found by the trier of fact to be at least as far removed from the regular curriculum. The lawyers with their cross motions for summary judgment fell into a mistake common to those who should be [87 Cal. App. 4th 1378e] focusing on trial but are too eager to avoid it. Just because someone is willing to swear to something, e.g., that the Key Club and Girls League are curriculum related in their opinion and the FCA is not, or vice versa, does not make it so. A judge or jury needs to sort this evidence out after having the opportunity to measure the eyeballs of the willing swearers."

4. Delete the fourth sentence of the first full paragraph on page 13 (which begins, "The involvement of teachers Burt and Smith . . . .") and the balance of the paragraph [87 Cal. App. 4th 532, advance report, 1st par., lines 8-15]. Replace the deleted portion with the following: "For purposes of summary judgment, the involvement of teachers Burt and Smith in FCA's affairs does not compel the conclusion that they initiated campus meetings, much less an Establishment Clause decision for the District. It was undisputed at oral argument that their participation in the group occurs off-campus and only a 'custodian' (a nonparticipating staff member) would be involved on campus. Although the record reveals they have attended campus meetings, they are not considered leaders, supervisors, or sponsors--only 'organizers.'"

The petition for rehearing is denied. There is no change in the judgment.

Rylaarsdam, J., and Bedsworth, J., concurred.