When lawyers representing Moreno Valley Unified School District argued that 13-year-old Diego Stolz and his family were partly to blame for his death at the hands of two bullies, it wasn’t the first time such an argument was used – and likely won’t be the last.
“I think it’s a disgusting strategy,” said lawyer Morgan Stewart, whose Irvine firm has sued districts whose defense attorneys have responded by blaming his clients for their alleged abuse. “It bothers me at a core level.”
Lewis Brisbois Bisgaard and Smith, the Los Angeles law firm representing Moreno Valley Unified, was removed from the case in December. According to Superintendent Martinrex Kedziora, their new attorneys won’t be saying that Stolz or his family were partly complicit in his death. That original strategy drew condemnation from Stolz’s family and community members.
It’s not hard to find other examples of the strategy used by law firms representing districts across Southern California.
- In December 2017, lawyers representing the Riverside Unified School District argued that four Liberty Elementary School students, ages 9 and 10, were negligent and careless when they were molested, prosecutors allege, by technology aide Fernando Figueroa. In 2018, the district settled with students’ families for $ 6.2 million. Figueroa was sentenced to 20 years to life in state prison in 2019.
- In June 2018, lawyers representing the Santa Ana Unified School District argued that the behavior of minor boys who Huntington Beach police say exchanged explicit text messages with Segerstrom High School baseball coach Carlos “CJ” Salcito Sales Jr. outweighed the impact of the district’s actions or inactions in the case.
- In January 2019, lawyers for the Los Angeles Unified School District argued the damages done by Polytechnic High School wrestling coach Terry Gillard, to teens he manipulated into sex were due to the victims failing to “care for themselves” and their own negligence. Gillard was sentenced to 71 years in prison.
- In July 2019, lawyers for two firms representing the San Bernardino City Unified School District argued that a 15-year-old Indian Springs High School student was partly complicit and negligent in sexual abuse police allege was done by teacher Nicole Kelly.
- In February and September 2020, lawyers representing Redlands Unified argued that two former teenage boys sexually assaulted by ex-Clement Middle School teacher Sean Ramiro Lopez failed to “exercise reasonable effort” to prevent their assaults. Lopez was sentenced to 74 years in prison for assaults on three middle-school boys.
The strategy has also been used in recent years by lawyers representing the Barstow and Torrance unified school districts, according to court filings.
Los Angeles Unified declined to comment on their defense in the Gillard lawsuit, but spokeswoman Shannon Haber wrote in an email that the district “places the highest priority on student safety in all of our schools, and we take allegations of misconduct seriously.”
San Bernardino City Unified also declined to comment on the Kelly case, citing the ongoing litigation, but noted “the facts of this case have not been established.”
The district and its attorneys believe “that a minor cannot consent to or be held accountable for engaging in sexual activity with any adult,” spokeswoman Maria Garcia wrote in an email. “SBCUSD takes all allegations of misconduct seriously and takes appropriate action to protect students, staff and the community.”
The use of a victim-blaming defense doesn’t mean Riverside Unified doesn’t take harassment and abuse seriously, according to Assistant Superintendent Timothy Walker.
“Our district is firmly opposed to harassment in all forms,” Walker wrote in an email. Students have a right to be educated in a safe environment, he wrote, and the district has a right to a “reasonable defense.”
Santa Ana Unified did not respond to multiple requests for comment.
There’s a strategic reason attorneys make these arguments when defending clients in the initial answer to lawsuits, according to John Nockleby, a professor at Loyola Law School in Los Angeles.
“Their job is to respond without having all the facts,” Nockleby said.
Those additional facts come during the discovery process, when attorneys for both sides question those connected to a lawsuit. But there’s a catch: Attorneys can’t ask about issues they haven’t raised in their filings.
If there’s background to the case that would make their clients less responsible for whatever happened, defense attorneys have to raise that possibility at the beginning, even if turns out to be an argument they discard.
“Later, if all the facts turn out to be the case, they won’t be pushing this theory,” Nockleby said.
That’s what Walker said is happening in Riverside Unified’s legal filings.
“Typically, at the time a defense attorney has to file an answer, and therefore raise or waive any affirmative defense; the facts have not been fully developed by the plaintiff and defendant through the discovery process, ”he wrote. “Litigation best practices require defense lawyers to raise any affirmative defenses that could possibly be relevant to a case, or may risk malpractice by waiving a defense before they fully understand the facts. For that reason, affirmative defenses asserted tend to err on the side of being overinclusive. ”
That’s what’s happening in the Redlands Unified case as well, according to Dana McCune, the lawyer representing the district.
“The district does not assert in discovery – and will not assert at mediation or trial – that the plaintiffs are to blame in any way for the claimed molestation,” he wrote in an email.
Stewart, who has represented the plaintiffs in many of these cases, doesn’t buy this argument, particularly in cases alleging sexual abuse by teachers. In California, minors cannot legally consent to sex until they’re 18 years old.
“There’s no point. You can’t legally make that argument, ”Stewart said. “So they’re just trying to bully the victim.”
Moreno Valley Unified isn’t the only district that’s been called out when its lawyers have used this kind of defense.
In 2014, news reports say Los Angeles Unified fired attorney W. Keith Wyatt, who argued a 14-year-old could have consented to sex with a 28-year-old teacher. The district called his comments “completely inappropriate. ” A year later, LA Unified rehired him, calling the time he hadn’t worked for the district a “suspension.”
“It does sort of self-correct to an extent,” when firms end up dropping these lines of attack, “but I think the problem is that the districts are still hiring these firms that do it,” Stewart said.
He believes firms use the strategy in the hopes of getting plaintiffs to settle for a smaller amount of money, by making the entire process as unpleasant as possible.
Even if a victim-blaming strategy is valuable as an information-gathering tool in the discovery process, Nockleby has a hard time seeing the argument being effective in most cases, especially in the Stolz lawsuit.
“Under no circumstances are young, adolescent kids responsible for being bullied,” he said. “That is an anathema to our civilized society.”
But, again, he doesn’t think that’s what the district’s lawyers were doing.
“But that’s not what the defendants are saying; they just don’t know all the facts, ”Nockleby said.