Sheaffer v. ScottValleyUnionHigh School

Filed 1/13/10 Sheaffer v. Scott Valley Union High School CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Siskiyou)

----

Plaintiff Rene Sheaffer appeals from the judgment entered after the motion for summary judgment by defendants Scott Valley Union School District and James Morris was granted. Plaintiff contends the trial court erred in denying her request for a continuance under Code of Civil Procedure section 437c, subdivision (h) to permit additional discovery.[1] She further contends the trial court erred in granting summary judgment and in denying her motion to continue trial.

We reverse. While we find plaintiff was inexcusably dilatory in discovery and her counsels declaration in support of her request under section 437c, subdivision (h) was inadequate, we nonetheless find the trial court abused its discretion in denying a continuance of both the motion for summary judgment and the trial. The trial court did not address the fact that plaintiff had not received documents ordered released by the juvenile court and erred in resolving an evidentiary ambiguity in favor of the moving parties. Because the courts rulings on both matters were made based on an error of law, we find an abuse of discretion.

FACTS

On January 27, 2006, the 17-year-old plaintiff rode the school bus with 17-year-old Austin Eastlick. They got off at Etna Union High School, where Eastlick was a student. Eastlick asked teacher James Morris for the key to the metal shop; after Morris gave Eastlick the key, Eastlick and plaintiff went into the metal shop alone. There is a dispute about what happened in the metal shop. Plaintiff claims Eastlick raped her and forced her to orally copulate him at knife point. Eastlick claimed he picked up a utility knife while joking about killing himself, but never held it to plaintiffs throat. They had consensual oral sex.

The Complaint

Plaintiff applied for permission to file a late claim against the school district. Scott Valley Union School District (the District) did not oppose the application, believing that relief was mandatory because plaintiff was a minor at the time of the incident. The application was granted, but the claim was denied.

Several months later, in August 2007, plaintiff filed a complaint for personal injuries. The complaint named as defendants Austin Eastlick and his parents, Duane Eastlick and Holly Whitman, Etna Union High School, Etna Union High School District and James Morris.

The District, claiming it had been erroneously sued as Etna Union High School and Etna Union High School District, and Morris demurred. They asserted the complaint was time barred.

Although the record does not show the disposition of the demurrer, apparently it was overruled because plaintiff was in the military, tolling the statute of limitations for filing the complaint. (50 U.S.C.A. 525.)

Plaintiff filed an amended complaint, which is the operative complaint for this appeal. The amended complaint named the same defendants as the original complaint. The amended complaint alleged as follows:

Austin Eastlick (Eastlick) had emotional or psychological issues that defendants knew or should have known about, but chose not to address. Defendants knew or should have known that Eastlick was a threat to himself or others.

On January 27, 2006, defendants allowed Eastlick to attend school with a Stanley 99E utility knife attached to his pants, both visible and obvious. Plaintiff and Eastlick rode the school bus together that day and got off at Etna Union High School. Eastlick got the keys to the metal shop from teacher James Morris; Eastlicks sole purpose was to sexually assault plaintiff. Eastlick enticed plaintiff to accompany him to the empty metal shop. Once inside, he pulled out the knife, held it to plaintiffs neck, raped her and forced her to orally copulate him. Eastlick was arrested and criminally charged. He subsequently pled guilty to criminal charges.[2]

The amended complaint set forth causes of action for assault and battery, intentional infliction of emotional distress and negligent infliction of emotional distress against Eastlick and his parents.

The fourth cause of action was for negligence against the high school and the school district. It alleged defendants (high school district) were aware of Eastlicks emotional or psychological issues and that he attended class with a weapon. On January 27, 2006, they allowed Eastlick on the school premises with the utility knife, in violation of Education Code section 48915, subdivision (a)(2). They were negligent in providing Eastlick with the keys to an outbuilding and allowing him to enter unsupervised. They were negligent in failing to warn, suspend or reprimand Eastlick.

The fifth cause of action alleged Morris was negligent in allowing Eastlick to carry a weapon and providing him with the keys to an outbuilding. The sixth cause of action was for intentional infliction of emotional distress against Morris.

The complaint sought damages, including punitive damages.

The District and Morris demurred to the sixth cause of action for intentional infliction of emotional distress, contending it failed to plead sufficient facts to state a cause of action. They also moved to strike the prayer for punitive damages. Plaintiff agreed to dismiss the sixth cause of action and the trial court struck the punitive damage allegations.

The Summary Judgment Motion

In May 2008, the District and Morris moved for summary judgment on the fourth and fifth causes of action.[3] The hearing date was set in early August, a month before trial was scheduled to begin. While Eastlick contested that any sexual assault occurred, for purposes of the motion it would be assumed there was a sexual assault. They asserted there was no evidence that Eastlicks criminal act was foreseeable. They claimed the undisputed evidence would show there had been no sexual assaults on campus in the last 25 years and nothing the school knew of Eastlicks past put them on notice he might engage in such conduct.

In answers to interrogatories, plaintiff conceded counsel had mistakenly identified the knife allegedly used in the assault. Instead of a Stanley utility knife, it was a Gerber Paraframe single blade pocket knife. According to plaintiff, the principal, Jim Isbell, had told Police Chief Joshua Short he was aware Eastlick carried a pocket knife.

In his deposition, Eastlick testified he had not been in trouble at school, other than being a class clown and not doing his homework. He had never gotten into trouble for fighting or vandalism. No female had ever complained about his behavior. Eastlick claimed he did not know what the allegations of his emotional or psychological issues were about. He was no threat to himself or others.

The police report indicated Eastlick had a knife in his possession when he was arrested a few days after the incident. In his deposition, when asked about knives, Eastlick did not recall a knife in his pocket; he did carry a Leatherman-type multi-tool on his belt. The multi-tool was folded and contained pliers, a cutting knife, a bottle opener and two screwdrivers.[4] Eastlick carried the multi-tool to school because he used it before and after school in feeding the cows (cutting the twine on hay bales) and working on the chain saw he used to cut fire wood. He claimed both Isbell and Morris had seen the multi-tool and told Eastlick it was okay to carry it.

The police report included a picture of a fold-out blade pocket knife. Eastlick explained he had received this knife for Christmas, but had not got in the habit of carrying it with me.

The District and Morris provided several declarations to show they had no notice of any violent tendencies by Eastlick. Carol Baker, the school psychologist, declared she had assessed Eastlick in second, fifth and tenth grade for a learning disability and his continued eligibility for special education. She assessed him after the incident to determine if the incident was due to his disability. There was no prior behavior by Eastlick indicating a need for special education due to behavior problems or mental disability. She concluded the incident was not a manifestation of his learning disability or the failure to implement an individual education plan. She believed the allegations, if true, were completely unpredictable and unforeseen. She declared it was not uncommon for kids to carry multi-tools for farm chores.

Morris taught biology, earth science and agriculture; he ran the FFA program in which Eastlick participated. Morris declared he had known Eastlick since he was born. He lent keys to students based on his prior relationship with them and his judgment. Eastlick had never abused the privilege. Eastlick had never been a significant discipline problem, only silly kid stuff. Morris had never seen Eastlick carry a folding knife. He did not recall a multi-tool, but they were not uncommon; he told kids to put them away.

Counselor Carolyn Hewes first met Eastlick in seventh grade. There were no reports of behavior problems. When he was a sophomore, Eastlick had academic trouble. There was no reason to consider him a danger to himself or others. He had not received anger management classes.

Principal Isbell declared in 25 years there had been no allegations of rape at the high school and no knife fights. There had been no reports that Eastlick had threatened anyone; he had only minor discipline issues. His individual education plan addressed only academic issues. Isbell recalled Eastlick carrying a multi-tool on one or two occasions and had given him a verbal warning that he should not carry it. While knives were not allowed on campus, it was not uncommon for students to carry knives for before and after school chores. Until he read about the Gerber pocket knife in the police report, Isbell did not know Eastlick owned such a knife.

Plaintiffs Opposition

In opposition, plaintiff argued the summary judgment motion was premature because discovery had not been completed. She contended the court had to continue or deny the motion under section 437c, subdivision (h). Further, defendants failure to enforce the mandatory duty not to permit weapons at school created a triable issue of fact. Plaintiff responded to many of the facts asserted to be undisputed by the District and Morris as premature, citing the need for additional discovery.[5]

To support the argument for a continuance, plaintiff provided the declaration of counsel. Counsel declared that on March 6, 2008, all counsel appeared before the juvenile court and argued multiple petitions under Welfare and Institutions Code section 827 for the release of Eastlicks juvenile records. The juvenile court had ruled law enforcement records, including the district attorneys investigative records, disposition records and orders, would be released. With regard to various probation reports, counselors reports and psychological evaluations, the juvenile court would review these items in camera and determine which, if any, should be released. A subsequent status conference was not held. Despite inquiries, counsel did not receive any documents until July 7, 2008. The documents sent by the Siskiyou District Attorneys Office did not include certain items, such as the crime report and the interviews with Isbell and Morris, as well as records relating to Eastlicks counseling, therapy and psychological evaluation. Counsel now had to file another motion under Welfare and Institutions Code section 827 to obtain the missing documents.

Counsel had a crime report that indicated principal Isbell knew Eastlick carried a pocket knife. Counsel attached a copy of the district attorneys crime report, in which an investigator indicated she asked the principal about Eastlick. The investigator reported that Isbell was aware Eastlick carried a pocket knife. He said that the school has a policy against having knives on campus, . . . but that he and the school administration do not enforce the policy because so many of the students are ranch/farm kids who use knives doing daily chores. He went on to say that they have not had any serious incidents that involve brandishing or assaults with knives. Isbell admitted that this recent allegation has made him reconsider enforcing their policy.

Counsel further declared that the summary judgment motion raised issues relating to Eastlicks school records and those now needed to be obtained. Depositions had not been taken because counsel was waiting for the juvenile court records since defendants counsel made clear they would not agree to further depositions. Finally, counsel attached the Etna Union High School Student-Parent Handbook which set forth the discipline for carrying a knife on campus. A first violation merited a three-day suspension; a subsequent violation required a five-day suspension and a referral to DART (the District Administrative Review Team) for a pre-expulsion hearing.

Plaintiff also moved to continue the trial. She asserted there was good cause to continue the trial due to the unavailability of essential witnesses and documentary evidence. A second petition under Welfare and Institutions Code section 827 had been filed in the juvenile court, seeking release of additional documents.

Reply

In reply, the District and Morris argued a continuance should be denied. It was true that discovery was incomplete, but only because plaintiff had done no discovery, even though the discovery cut-off date was four days after the summary judgment motion was to be heard. As to juvenile court records, the District and Morris addressed only plaintiffs request for counseling and psychological records, contending the juvenile court had released all the records it intended to release.

The District and Morris raised two objections to plaintiffs evidence. First, they objected to references to Eastlick pleading guilty to sexual assault with a weapon in juvenile court because such proceedings are not criminal in nature. They also objected to use of the statements attributed to Isbell in the crime report on hearsay grounds.

In reply to plaintiffs claim that Eastlick was known to carry a knife and should have been expelled, the District and Morris argued they had discretionary immunity for disciplinary decisions.

Ruling on Summary Judgment

The trial court granted the motion for summary judgment, finding the District and Morris had no legal duty to plaintiff and Eastlicks criminal behavior was not foreseeable. The court found plaintiffs separate statement did not comply with court rules because it responded to undisputed facts with premature, rather than disputed or undisputed. It found plaintiff failed to show diligence in obtaining discovery as required for a continuance.

The court sustained the objection to the crime report containing Isbells statement that Isbell knew Eastlick carried a knife and did not enforce the policy against carrying knives. It found Isbells declaration that he recalled Eastlick carrying a multi-tool was not a contradiction of the statement in the crime report because Isbell admitted he knew Eastlick carried a multi-tool and Eastlick confirmed the teachers did not know about the pocket knife. The court found the multi-tool did not meet the definition of a knife in the Education Code.

The court found heightened foreseeability was required for a criminal act and there was no admissible evidence that defendants knew Eastlick had a knife.

Judgment was entered in favor of the District and Morris.

Postjudgment Proceedings

Plaintiff moved for reconsideration on the basis of new facts. This motion was too late because judgment had been entered. (APRI Ins. Co. v. Superior Court (1999) 76 Cal.App.4th 176, 180.)

Plaintiff appealed. The trial court dropped plaintiffs motion for reconsideration and a motion to vacate the judgment (not in the record) from the calendar due to lack of jurisdiction.

DISCUSSION

I.

The Trial Court Abused its Discretion in Denying Plaintiffs Request Under Code of Civil Procedure Section 437c, Subdivision (h)

Code of Civil Procedure section 437c, subdivision (h)

Plaintiff contends the trial court erred in denying her request to deny or continue the summary judgment motion because discovery was not complete. She contends a denial or continuance of the summary judgment motion was required by section 437c, subdivision (h).

Section 437c, subdivision (h) provides: If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication or both that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due.

Subdivision (h) was added to section 437c [t]o mitigate summary judgments harshness. (Frazee v. Seely (2002) 95 Cal.App.4th 627, 634 (Frazee).) The statute mandates a continuance of a summary judgment hearing upon a good faith showing by affidavit that additional time is needed to obtain facts essential to justify opposition to the motion. (Yuzon v. Collins (2004) 116 Cal.App.4th 149, 167.) Moreover, the affiant is not required to show that essential evidence does exist, but only that it may exist. (Frazee, supra, at p. 634.) The language of the statute--may exist and shall deny--leaves little room for doubt that such continuances are to be liberally granted. (Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 395.)

A declaration in support of a request for continuance under section 437c, subdivision (h) must show: (1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain these facts. [Citations.] (Wachs v. Curry (1993) 13 Cal.App.4th 616, 623.) It is not sufficient under the statute merely to indicate further discovery or investigation is contemplated. The statute makes it a condition that the party moving for a continuance show facts essential to justify opposition may exist. (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 548.)

Continuance of a summary judgment hearing is not mandatory, however, when no affidavit is submitted or when the submitted affidavit fails to make the necessary showing under section 437c, subdivision (h). (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 254.) When a continuance of a summary judgment motion is not mandatory, because of a failure to meet the requirements of Code of Civil Procedure section 437c, subdivision (h), the court must determine whether the party requesting the continuance has nonetheless established good cause therefor. That determination is within the courts discretion. (Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 716.)

Counsels Declaration

Plaintiff contends the declaration submitted by her counsel met the requirements of section 437c, subdivision (h). The declaration identified three categories of additional discovery that needed to be completed: juvenile court records, school records, and depositions of school personnel. Plaintiff offered no persuasive reason why the school records could not have been subpoenaed earlier. The failure to conduct depositions was based on the failure to receive portions of the juvenile court records. Thus, we focus on the first category of uncompleted discovery, the juvenile court records.

Counsel declared it took four months to receive the records the juvenile court ordered released. No reason is given for the delay; the declaration vaguely states that numerous inquiries were made to no avail, but fails to indicate to whom the inquiries were made or when. The declaration does show some of the documents the juvenile court ordered released were not included in the documents sent counsel by the Siskiyou County District Attorneys Office. The juvenile court ordered the release of law enforcement records, including the district attorneys investigation records. Counsel declared the documents not received included the district attorneys investigation files; the district attorneys crime report, including an interview of Jim Isbell; and interviews with James Morris by the district attorneys office or the police. The District and Morris argued plaintiff had received all the juvenile court records the juvenile court intended to release. The trial court accepted this argument in denying plaintiffs motion to continue the trial. Counsels declaration identified certain missing documents as part of the district attorneys file; these documents should have been released pursuant to the juvenile courts ruling.[6] The trial court erred in failing to acknowledge that plaintiff had not received documents ordered released.

Although establishing further discovery was necessary, the declaration did a poor job of showing that facts essential to justify opposition may exist. (Code Civ. Proc.,  437c, subd. (h).) Plaintiff failed to explain what the missing documents might show that could be used to oppose the summary judgment motion.

The only explanation offered as to the importance of the district attorneys investigative files was that counsel currently had an investigative report that reflected Isbells knowledge that Eastlick carried a pocket knife. An excerpt of the report was included. There is no explanation how additional information or reports would amplify this fact or why this fact was crucial in opposing summary judgment.[7]

We conclude the sparse nature of counsels declaration and its failure to connect the dots for the trial court to show the importance of the evidence not yet received (despite the juvenile courts ruling) did not trigger a mandatory continuance or denial of summary judgment under section 437c, subdivision (h).

Even if there was no mandatory duty, however, the trial court had discretion to continue the summary judgment motion. (Lerma v. County of Orange, supra, 120 cal.App.4th at p. 716.) As we will discuss later, the trial court made an error of law in dealing with the statement of Isbell in the crime report. This error shows the trial court misunderstood the importance of Isbells statement about the pocket knife and lack of policy enforcement in the crime report. Had the court appreciated the import of Isbells statement to plaintiffs negligence claim against the District, it may well have seen the necessity for the juvenile records. Because the trial courts ruling was based in part on a mistake of law, we find an abuse of discretion in denying the request for a continuance. (See City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297 [scope of discretion always resides in the particular law being applied and action that transgresses the confines of the applicable principles of law is an abuse of discretion].)

The Trial Courts Error: Resolving an Ambiguity in Favor of the Moving Parties

In opposition to the motion for summary judgment, plaintiff submitted a portion of a crime report that reported Isbells statement that he knew Eastlick carried a pocket knife, that the school had a policy against carrying knives, and that the policy was not enforced. The District and Morris objected to this evidence as hearsay and the trial court sustained the objection. The trial court found the statement in the crime report not contradictory to Isbells declaration about his knowledge of the multi-tool. The trial court assumed Isbells statement in the crime report referred to the multi-tool, not the pocket knife found on Eastlick when he was arrested. The court found Isbell admitted Eastlick carried a multi-tool and Eastlick confirmed neither the school nor the teachers knew about the pocket knife.

The confusion arises from the fact that there were three knives involved in this case. The first was the Leatherman-like multi-tool, which the parties conceded Eastlick carried to school. The knife portion of the multi-tool was a small, broken blade, that the trial court found did not meet the definition of a knife in the Education Code.[8] The second was the utility knife Eastlick claimed he played with in the metal shop; he denied he threatened plaintiff with the utility knife. The pleadings identified the utility knife as the knife used in the assault, but during discovery plaintiff admitted this identification was a mistake and the knife used in the assault was a Gerber Paraframe single blade pocket knife.[9] This third knife was found on Eastlick when he was arrested. The picture of the knife in the record indicates it would meet the definition of knife in the Education Code.

Since there were three knives involved in the case, a multi-tool, a utility knife, and a pocket knife, it is ambiguous which knife Isbell was referring to in the crime report when he told the investigator he knew Eastlick carried a pocket knife. The trial court resolved that ambiguity by finding Isbell was referring to the multi-tool. In reviewing the grant of summary judgment, we view the evidence in a light favorable to, and resolve any evidentiary doubts or ambiguities in favor of, the non-moving party. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768-769.) In resolving the evidentiary ambiguity in favor of the District and Morris, the moving parties, the trial court erred. This error permitted the court to find in favor of the moving parties by finding there was no evidence the school knew Eastlick carried a knife other than the multi-tool to school.

The trial courts error in resolving the evidentiary ambiguity as to the knife, in the District and Morriss favor, indicates the court did not appreciate the significance to this case of Isbells statement that he knew Eastlick carried a pocket knife. The district attorneys file, particularly the crime report and Isbells interview, might shed light on this statement by providing context and clear up the ambiguity. Thus, had the court not erred in resolving the ambiguity in favor of the moving parties, it might have seen--despite the poor showing by plaintiff--that in the interview of Isbell and related reports, which should have been released prior to the hearing on summary judgment, facts essential to justify opposition may exist . . . . ( 437c, subd. (h).)

Because the trial court misunderstood both that documents that should have been released were not and the importance of those documents to opposing summary judgment, we find the trial court abused its discretion by not granting the motion under section 437c, subdivision (h) to deny or continue the motion for summary judgment.

II.

The Trial Court Abused its Discretion in Denying

Plaintiffs Motion to Continue the Trial

The District and Morris contend it was not an abuse of discretion to deny a continuance of the summary judgment motion for further discovery because the period for discovery ended a few days after the hearing on the summary judgment motion. They argue a continuance would have no value without a continuance of the trial and there was no basis for continuing the trial. Their argument is based on plaintiffs lack of diligence in failing to conduct discovery.

For the same reasons that we find an abuse of discretion in denying the request for a continuance of the summary judgment motion, we find an abuse of discretion not to grant the motion to continue the trial. While we agree plaintiff was inexcusably dilatory in conducting discovery, part of the reason plaintiff did not have the evidence necessary to oppose the summary judgment motion or proceed to trial was because not all the documents ordered released by the juvenile court had been given to plaintiff. At least one of the missing documents--the crime report with Isbells statement that he knew Eastlick carried a pocket knife--created a triable issue of material fact as to knowledge. The District, Morris and the trial court ignore the showing made by plaintiff that, despite the juvenile courts ruling, she did not receive all of the district attorneys investigative file. Instead, they take the position that plaintiff had received all the juvenile court records to which she was entitled.

The excused inability to obtain essential evidence provides grounds for a continuance. (Cal. Rules of Court, rule 3.1332(c)(6).) The trial courts failure to recognize that plaintiff was entitled to portions of the juvenile court file that she did not receive, as well as its failure to recognize the significance of facts contained therein, was error. Since the trial courts ruling on the motion to continue the trial was based on error, it was an abuse of discretion to deny the motion to continue the trial.

DISPOSITION

The judgment is reversed. Plaintiff shall recover her costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)

CANTIL-SAKAUYE , J.

We concur:

BLEASE , Acting P. J.

BUTZ , J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

[1] All further statutory references are to the Code of Civil Procedure unless otherwise specified.

[2] Eastlick admitted the criminal charges in a juvenile petition.

[3] Code of Civil Procedure section 437c contemplates summary judgment in favor of some but not all defendants. (24 Hour Fitness, Inc. v. Superior Court (1998) 66 Cal.App.4th 1199, 1207; see Code Civ. Proc., 437c, subds. (k) & (l).)

[4] The District and Morris claimed it was an undisputed fact that the knife blade in the multi-tool was two and one-half inches long, broken and incapable of locking. The portions of Eastlicks deposition cited to support these facts is not included in the record. Plaintiff responded premature to this undisputed fact, citing the need for more discovery.

[5] As the trial court found, this response to the statement of undisputed facts did not comply with the California Rules of Court. Under rule 3.1350(f), the response must unequivocally state whether the fact is disputed or undisputed.

[6] These documents were subsequently released after county counsel apologized for error in not releasing them earlier to plaintiff.

[7] In the points and authorities accompanying the motion to continue the trial, filed three days later and before the summary judgment hearing, plaintiff explained that Isbells statement he was aware that Eastlick carried a knife and the policy forbidding knives was not followed was contrary to Isbells declaration in which he denied knowing Eastlick carried a pocket knife or was allowed to carry a knife on campus. She further explained she was unable to obtain a declaration from the investigator who took Isbells statement because the statement had not been released by the juvenile court.

[8] Education Code section 48915, subdivision (a) sets forth circumstances for which a student will be expelled, unless the principal or superintendent finds expulsion inappropriate. One circumstance is possession of any knife or other dangerous object of no reasonable use to the pupil. (Ed. Code,  48915, subd. (a)(2).) A knife is defined as any dirk, dagger, or other weapon with a fixed, sharpened blade fitted primarily for stabbing, a weapon with a blade fitted primarily for stabbing, a weapon with a blade longer than 3 1/2 inches, a folding knife with a blade that locks into place, or a razor with an unguarded blade. (Ed. Code, 48915, subd. (g).)

[9] This factual variance may be disregarded for purposes of the summary judgment motion because the District and Morris were aware of plaintiffs correction and thus not mislead. (See  469, 470; State Medical Education Board v. Roberson (1970) 6 Cal.App.3d 493, 502 [summary judgment granted despite variance between facts in pleadings and declarations].)