Tuesday, December 10, 2013
Court of Appeal Upholds $1 Million Award Against LAUSD for Using Student in Drug Sting
By a MetNews Staff Writer
A $1 million judgment against the Los Angeles Unified School District for using a seventh grader to buy marijuana in order to prove that another student was dealing the drug was affirmed yesterday by this district’s Court of Appeal.
Div. One, in an opinion by Justice Jeffrey Johnson, said the boy and his parents had presented sufficient evidence of emotional distress to justify the award, and that the district failed to show it was the product of passion and prejudice.
The 2009 incident occurred at Porter Middle School in the San Fernando Valley. According to testimony, it was the dean of students at the time, Laura Custodio, who conceived the idea and gave “Roe,” as the boy was identified, a marked $5 bill to make the purchase.
Custodio said she came up with the idea after Roe told her the other boy had tried to sell him marijuana several times. She instructed a campus aide, Jesus Barbosa, to hide in a bathroom stall to witness the buy.
Barbosa told her the sting wasn’t proper, but Custodio said she wanted the dealer expelled. She asked her superiors at the time to approve the plan.
The deal in the bathroom never took place, but Roe later came in and told Custodio he had approached the seller after school on his own, and gave her two small marijuana buds he said he had bought. She then contacted LAUSD police, who said there wasn’t a “good bust” because a minor had been improperly used as an operative.
The school principal testified that he made a split-second decision to approve the plan. He was transferred to another school when his superiors became aware of what happened—as was the assistant principal, who also approved the sting—and both top administrators retired a short time later.
Custodio was relieved of her administrative post and given a teaching assignment at another school, according to news accounts.
Roe, who was described as one of the smallest students in seventh grade, said he accepted the assignment because he didn’t want to disappoint Custodio, whom he liked and who had been very encouraging to him after he had run into trouble at school.
The aftermath of the incident was very distressing, Roe and his parents testified. Roe said he became very afraid, because the other student was much larger and Roe thought he might be a gang member.
Roe and his older sister were both transferred out of their schools for fear of retaliation. Roe subsequently got into trouble at his new school, and was transferred again.
Roe’s mother testified that she felt she had to keep all four of her children at home, rather than allowing them to play outside or spend time with friends, because something bad might happen. The other children became mad at Roe, there was trouble between the parents, and she became so distrustful of LAUSD she declined its offer to provide counseling, she told the jury.
A psychologist testified for the plaintiff that Roe was suffering from post-traumatic stress disorder, with symptoms including nightmares and constant anger. A defense expert said she did not believe that he had PTSD, and that he did appear to have attention deficit hyperactivity disorder that was not previously diagnosed but appeared to precede the incident.
Johnson, in his unpublished opinion for the Court of Appeal, said the testimony of Roe, other family members, and the plaintiffs’ expert established a fair basis for the award. The boy’s distress, whether he had PTSD or not, was continuing and “was not trivial or transitory,” the jurist wrote.
The justice went on to say that the award was not excessive, given the boy’s “youth and vulnerability,” and the ongoing impact on his mental health.
Justice Frances Rothschild concurred.
Justice Victoria Chaney dissented, arguing that the plaintiff’s attorney had committed prejudicial misconduct, in part by suggesting that it was a “big public entity” that was responsible, even though the three school administrators were named on the verdict form. Counsel was in effect arguing for punitive damages, from which LAUSD was immune as a matter of law, she argued.
Johnson wrote for the majority that defense counsel had not objected to the “big public entity” remark, and said the district was vicariously liable under Government Code § 815.2.
James J. Yukevich, Delmar S. Thomas and Chris S. Pacetti of Yukevich Cavanaugh represented the plaintiffs on appeal, while Calvin House and Arthur C. Preciado of Gutierrez, Preciado & House represented the district.
The case is Roe v. Los Angeles Unified School District, B240654.
Copyright 2013, Metropolitan News Company