Modesto City Schools settled a lawsuit for $ 2.15 million that alleged staff at Burbank Elementary School failed to protect a first-grader from being punched, kicked and sexually assaulted over several months in a bathroom by two older boys.
The school district denied liability in reaching the settlement.
Both parties agreed to settle in October 2021 just before a jury was to hear opening statements in the trial in Stanislaus County Superior Court. The lawsuit had been filed in March 2020. It was dismissed in February.
The boy turned 7 years old at the time of the alleged abuse. The older boys were 9 and 10 years old and in fourth and fifth grades. The incidents reportedly took place from August to November 2018.
Because of their ages, the boy and his two alleged abusers are identified by their initials in court documents. Burbank Elementary is in west Modesto and has about 550 students from transitional kindergarten through sixth grade.
The assaults started with the older boys punching and groping the boy over his clothes and became more aggressive over time, according to Chantel Trujillo, the younger boy’s attorney. She said the assaults took place in the mornings before the start of class in the school bathroom designated for the older boys.
Trujillo said the older boys threatened her client in an attempt to prevent him from telling anyone what they were doing to him. Court records allege the boys had a pocketknife.
She said the school has separate bathrooms for the younger and older students as a safeguard against older students mistreating younger ones. But she said only the older boys bathroom was open in the mornings for the boys. She said the other problem is the door faces a wall and not the playground, making it difficult for school staff to monitor the bathroom.
The boy testified in a deposition that yard duty staff directed him to use the older boys bathroom. He believed he was attacked by the older boys about 10 times. But Trujillo said the exact number is difficult to determine because of the boy’s age.
“By their own rules,” Trujillo said, “they were supposed to keep the kids separate, and they did not have enough staff to supervise the older boys bathroom adequately.”
Trujillo is with the Bakersfield-based law firm Rodriguez & Associates. She said the firm specializes in cases involving the sexual abuse of children in schools and similar settings.
In court documents, the boy’s attorneys allege the school district failed to train “its employees in how to protect its students from physical and sexual abuse” and school employees failed to report the alleged abuse to authorities as required by law.
Modesto City Schools’ attorneys denied all of the allegations, including that the boy had been sexually assaulted.
“We want to emphasize the settlement agreement includes a term stating the resolution is a result of a compromise and is not an admission of liability and / or responsibility on the part of Modesto City Schools,” reads a statement from the district.
“… Having said this,” the statement continues, “student safety is of utmost importance to Modesto City Schools, and in furtherance of this priority, the district requires staff members to attend mandatory annual child abuse prevention training and annual prevention of harassment training. “
The district said its legal costs were $ 850,465 and its other costs were $ 205,754 in defending itself in the litigation. That brings the total cost, including the settlement, to $ 3.2 million.
But the district stressed it paid the first $ 250,000 of these costs and its insurance paid the rest.
Children reluctant to speak up
Trujillo said the boy reported the abuse to his teacher, and the boy and his mother reported it to the vice principal. Trujillo said as mandated reporters, the teacher and vice principal were required to report what was told to them to the police or child protective services. She said they didn’t.
Trujillo said the boy initially was reluctant to say anything about being victimized. She said this is not unusual. Children may not come forward because they believe they are at fault or because of the shame and embarrassment they feel.
Trujillo said the boy eventually told his mom. The two then went to the vice principal. Trujillo said he told them he would investigate and report the matter to authorities.
She said the next day, the vice principal called the boy out of class and to his office for questioning. The vice principal had the boy pick out one of his abusers di lui on the playground. The vice principal confronted the boy, who denied abusing Trujillo’s client.
Trujillo said the abuse of her client escalated after that and his abusers accused him of being a tattletale. The boy told his mom about him, who called the police. She said a detective investigated and the two older boys denied abusing Trujillo’s client. But she said the investigation had been compromised by the vice principal’s actions di lei.
She said the police investigation was inconclusive and suspended. Trujillo emphasized that the point of the investigation was not to bring charges against the children but to ensure they were safe and there was nothing in their lives that would cause them to abuse another child.
Trujillo said the boy and his family continue to live in Stanislaus County, but the boy and his two siblings no longer attend Burbank Elementary. He stopped attending Burbank in November 2018. The boy is now 10 years old.
She and her client had a strong case, a jury they really liked and favorable rulings from the judge, Trujillo said. But she said the family was satisfied with settling the case because the boy did not have to testify. She said the settlement also avoided a lengthy appeal by the school district had her client di lei prevailed at trial.
She said her client has undergone therapy and has learned skills to help him cope, but has been diagnosed with post-traumatic stress disorder.
Teacher, VP removed from lawsuit
The Bee is not naming the boy’s teacher and the vice principal. A school district spokeswoman said the two received death threats related to the allegations. And attorneys representing the two educators said the boy’s attorneys removed them as defendants in the lawsuit before the trial.
“… She was pleased with that dismissal,” said the first-grade teacher’s attorney, Kelley Moran, in a statement. “She remains a longtime elementary school teacher for Modesto City Schools with an impeccable reputation. It was a privilege to represent her di lei. “
The vice principal’s attorney issued a similar statement. “… He was pleased with that dismissal,” attorney Susan Oliver said in an email. “He remains employed with MCS with an outstanding reputation.”
The district’s attorneys wrote in court documents that the first-grader’s teacher instructed her students to use the bathrooms designated for the first- and second-graders.
The attorneys also claim that during a parent-teacher conference between the teacher and boy’s mother, the mother stated she thought her son was being bullied but did not claim he was being sexually abused in a restroom.
The attorneys also wrote that after the boy and his mother went to the vice principal with their concerns, the vice principal made a point of keeping an eye on the boy when he was on the playground and did not notice anything unusual.
The school district’s attorneys also claim the alleged incidents took place during the lunch recess, while the boy’s attorneys claim they took place in the mornings.
The Bee learned about the settlement through filing a California Public Records Act request with Modesto City Schools for all claims, lawsuits and similar matters it settled in 2021.
Boy will receive $ 1.7 million
Because of his age, the boy had what is called a guardian ad litem appointed to represent his interests in this litigation.
The court approved allocating $ 1 million of the $ 2.15 million settlement in a type of investment called an annuity that will provide guaranteed payments to the boy once he turns 18. The annuity is with the Berkshire Hathaway Life Insurance Co., according to court records.
The boy will receive five annual $ 50,000 payments from his 18th through his 22nd birthdays, $ 200,000 on his 25th birthday, $ 400,000 on his 30th and $ 826,000 on his 35th, for a total of $ 1.676 million.
The court approved allocating the remaining $ 1.15 million of the settlement by approving $ 860,000 in legal fees for the boy’s attorneys and $ 286,892 for the costs the lawyers incurred in the lawsuit. (That left $ 3,108 from the $ 1.15 million. The court approved putting that in a bank account for the boy.)
The legal costs were based on a contingency agreement between the lawyers and the boy’s mother and guardian ad litem. The agreement stated the lawyers would receive 40% of the settlement if the case settled during the trial.
The costs associated with the lawsuit included paying experts, court reporters for depositions, private investigators, jury consultants and preparing trial exhibits.