When lawyers for the Moreno Valley Unified School District argued that 13-year-old Diego Stolz and his family were partially responsible for his death from two bullies, it wasn’t the first time such an argument had been used – and probably won’t latest.
“I think it’s a disgusting strategy,” said attorney Morgan Stewart, whose Irvine firm has sued districts whose attorneys have responded by holding his clients responsible for their alleged abuse. “It bothers me on a core level.”
Lewis Brisbois Bisgaard and Smith, the Los Angeles law firm representing Moreno Valley Unified, were removed from the case in December. According to Superintendent Martinrex Kedziora, her new attorneys will not say that Pride or his family were partially involved in his death. This original strategy was condemned by Stolz’s family and community members.
It’s not difficult to come up with other examples of law firm strategy representing districts across Southern California.
- In December 2017, lawyers for the Riverside Unified School District argued that four Liberty Elementary School students, ages 9 and 10, were negligent and negligent when molested by technology advisor Fernando Figueroa. In 2018, the district settled with student families for $ 6.2 million. Figueroa was sentenced to 20 years in state prison in 2019.
- In June 2018, Santa Ana Unified School District attorneys argued that the behavior of underage boys whom Huntington Beach police claim had exchanged explicit text messages with Segerstrom High School baseball coach Carlos “CJ” Salcito Sales Jr. the impact of the district’s actions outweighed inaction on the case.
- In January 2019, attorneys for the Los Angeles Unified School District argued that the harm that Polytechnic High School wrestling coach Terry Gillard did to teenagers he manipulated into sex was due to the victims’ unsuccessful behavior worried about themselves and their own negligence. Gillard was sentenced to 71 years in prison.
- In July 2019, attorneys from two law firms representing the San Bernardino City Unified School District argued that a 15-year-old Indian Springs High School student was partially complicit and negligent in the police, alleged by teacher Nicole Kelly.
- In February and September 2020, Redlands Unified attorneys argued that two former teenagers who were sexually assaulted by former Clement Middle School teacher Sean Ramiro Lopez had not made “reasonable efforts” to prevent their attacks. Lopez was sentenced to 74 years in prison for assaulting three middle school students.
The strategy has also been used by attorneys representing the Barstow and Torrance uniform school districts in recent years.
Los Angeles Unified declined to speak on their defense on the Gillard lawsuit, but spokeswoman Shannon Haber wrote in an email that the district “makes student safety a top priority in all of our schools and we make allegations of misconduct take seriously”.
San Bernardino City Unified also declined to comment on the Kelly case, citing the ongoing litigation, but stated that “the facts of this case are not known.”
The district and its attorneys believe that “a minor may not consent or be held accountable for sexual activity with adults,” spokeswoman Maria Garcia wrote in an email. “SBCUSD takes all allegations of misconduct seriously and takes appropriate measures to protect students, employees and the community.”
According to Assistant Superintendent Timothy Walker, using a defense that accuses victims means not taking harassment and abuse seriously.
“Our district is firmly against harassment in any form,” Walker wrote in an email. Students have the right to be trained in a safe environment, he wrote, and the district has the right to “adequate defense.”
Santa Ana Unified did not respond to multiple requests for comment.
According to John Nockleby, a professor at Loyola Law School in Los Angeles, there is a strategic reason lawyers make these arguments when defending clients in the first response to lawsuits.
“Your job is to answer without having all the facts,” said Nockleby.
These additional facts come during the discovery process when attorneys on both sides question those associated with a lawsuit. But there’s a catch: lawyers can’t ask about topics that they haven’t addressed in their records.
If there is background on the case that would make their clients less responsible for what happened, defense attorneys must address that possibility at the outset, even if this turns out to be an argument they are dismissing.
“If all the facts are found to be the case later, they are not going to advance that theory,” said Nockleby.
That’s what Walker said happened in the Riverside Unified legal records.
“Typically, a defense attorney is required to submit a response at that point and therefore take or forego a positive defense. The facts were not fully developed by the plaintiff and defendant during the discovery process, ”he wrote. “Litigation best practices require defense attorneys to take all defensive measures that may be relevant to a case, or wrongdoing can occur by foregoing a defense before they fully understand the facts. For this reason, the positive defense mechanisms that are claimed tend to err on the over-inclusivity side. “
This is exactly what happened in the Redlands Unified case, according to Dana McCune, the district attorney.
“The district does not allege in the discovery – nor will it allege in mediation or legal proceedings – that the plaintiffs are in any way responsible for the alleged abuse,” he wrote in an email.
Stewart, who has represented plaintiffs in many of these cases, does not buy this argument, especially in cases where there is allegation of sexual abuse by teachers. In California, minors cannot legally consent to sex until they are 18.
“There’s no point. You can’t legally make that argument,” Stewart said. “So you’re just trying to bully the victim.”
Moreno Valley Unified isn’t the only county called out when its attorneys used this type of defense.
In 2014 news reports said Los Angeles Unified dismissed attorney W. Keith Wyatt, who argued that a 14-year-old could have consented to having sex with a 28-year-old teacher. The district called his comments “totally inappropriate”. A year later, LA Unified hired him again, calling the time he had not worked for the district a “suspension.”
“It corrects itself to a certain extent” for companies to drop those lines of attack, “but I think the problem is that the districts are still hiring those companies that do,” Stewart said.
He believes companies are using the strategy in hopes of getting plaintiffs to settle for a smaller amount of money by making the whole process as uncomfortable as possible.
Even if a victim blame strategy is valuable as a tool for gathering information in the discovery process, in most cases Nockleby finds it difficult to see the argument as effective, especially in the lawsuit against pride.
“Under no circumstances are young, adolescent children responsible for being bullied,” he said. “This is an abomination for our civilized society.”
But he also doesn’t think the district lawyers did that.
“But that’s not what the defendants say. You just don’t know all the facts, ”said Nockleby.