Blog note: this article references a 2014-15 grand jury report and indicates that its findings will be discussed in the trial.
On a foggy January morning two years ago, 9-year-old Diego Estrada was killed on his way to school in Parlier Unified School District when he was run over by a pickup driven by an unlicensed teen driver.
At the time of the accident, Parlier Unified Superintendent Gerardo Alvarez called it “a freak accident.”
Parlier police said a 17-year-old driver lost control of a pickup, jumped onto the sidewalk and then struck Diego, his 16-year-old sister and a friend. Diego died at the scene of the Jan. 29, 2015, collision.
But in a civil trial that begins Tuesday in Fresno County Superior Court, Parlier Unified will be blamed for Diego’s death. The reason: district administrators wanted students to go to school, even on densely foggy days, to maximize funding that’s based on attendance, said Fresno attorneys Nicholas “Butch” Wagner and Angela Martinez, who represent Diego’s family.
The district’s bus and attendance policies, Wagner and Martinez contend, forced Diego and other students to walk to school on foggy days even when school buses were grounded. They said the school district’s bus and attendance policies placed Diego and other children in an unsafe situation that led to him being struck by a pickup and killed.
Fresno attorney Daniel Wainwright, who is defending Parlier Unified, however, said the teen driver, identified in court documents as Jesus Maciel, is 100 percent liable. “Liability is adamantly disputed by PUSD,” Wainwright said in court papers. “The District in no way caused the subject accident and is furthermore immuned from liability.”
In the past few years, Parlier Unified has been in news for the wrong reasons. In January, Superintendent Edward Lucero was placed on administrative leave. Lucero stepped in for Alvarez, who was put on leave in 2015 after a Fresno County grand jury report found the district had misused millions of dollars. (Michael Berg is currently the interim superintendent.)
A state audit of Parlier Unified in May 2016 found that district officials had poor financial bookkeeping and record-keeping practices, and may have engaged in fraud and misappropriation of funds. In addition, the Fresno County District Attorney’s Office issued a search warrant for financial and business records at Parlier Unified headquarters in last November, citing a potential criminal investigation.
A key witness in the trial will be Juan Sandoval, who was Parlier Unified’s assistant superintendent before Alvarez fired him in December 2014.
In a court declaration, Sandoval, who is now the superintendent of Raisin City Unified School District, says he was fired because he refused to engage in illegal conduct at Parlier Unified. In January, Parlier Unified agreed to pay Sandoval $350,000 to settle his lawsuit in connection with his employment and termination, court records say.
The District in no way caused the subject accident and is furthermore immuned from liability.
Parlier Unified’s attorney Daniel Wainwright
Sandoval says in his declaration that Alvarez wanted children to attend school on foggy days because district funding is based on average daily attendance, known as ADA. Sandoval said he saw Alvarez telling an administrator: “Do whatever you have to do to have over 98 percent attendance.”
“I believe that the parents of PUSD were pressured and urged to send their children and young adults to class regardless of the foggy day schedule,” his declaration says.
Diego, a fourth-grader, attended Brletic Elementary School, which is on the grounds of Parlier High. He was killed about a mile from school. His family said he loved school and sports and wanted to be a teacher.
His family is seeking damages for wrongful death and negligent infliction of emotional distress. They are also seeking damages for Diego’s sister, Zujey Ramirez, who was also injured by the pickup.
Though Maciel is named as a defendant, Wagner said, Parlier is primary responsible for Diego’s death because its foggy day rules also forced Maciel to take his family’s pickup to Parlier High School. According to Wagner, Maciel went to the bus stop, but the school bus never showed up because of the fog.
The collision happened around 9:30 a.m. at Tuolumne Street and Madsen Avenue near Ben Benavidez Elementary School.
Diego Estrada, 9, was killed around 9:30 a.m. Jan. 29, 2015, at Tuolumne Street and Madsen Avenue in Parlier.
Parlier police Sgt. Thomas Rodriguez said the driver was headed east on Tuolumne when he stopped for a traffic sign at Madsen. He then turned left, but lost control of the truck, hitting a wall and then Diego and his sister and another student, Rodriguez said. Police did not release the driver's name, citing his age, but police have said he was charged in juvenile court with misdemeanor vehicular manslaughter.
Rodriguez said fog was a factor, but “it was primarily the wet roadway” that contributed to the crash. There was no signs of drugs or alcohol being involved, he said.
Students who live more than a mile from school are provided bus transportation by Parlier Unified. On the day of the accident, Wagner said, Diego and his sister were supposed to take the bus but had to walk to school because the buses weren’t running due to the fog. Sandoval said in his declaration that students who miss school on foggy days are subject to being marked “unexcused.”
Wagner said a key piece of evidence is a letter Alvarez sent to parents a day after Diego was killed, telling them that their students would not be penalized for being tardy or absent because of the fog. He said the letter was the first time the superintendent had put in writing that parents could keep their children at home on foggy days. “He wrote it to cover his tracks,” Wagner said.
Wagner has taken depositions from the last three Parlier Unified superintendents, including Alvarez. “All three superintendents acknowledge that until Jan. 30, 2015, the day after Diego was killed, Parlier Unified failed to advise students and their parents that students did not have to attend school during a foggy day schedule and would not be penalized for failing to attend school on a foggy day schedule,” Wagner said in court documents.
But Wainwright said: “It was the PUSD’s policy at the time of the incident that no penalties would be imposed for being late (or absent) when foggy days has been declared.” Though the policy was not memorialized in writing, Wainwright said, “there was never any confusion” from parents or students because the policy “was common knowledge.”
A key witness will be Juan Sandoval, a former assistant superintendent who received a $350,000 settlement this year from Parlier Unified after he was fired in December 2014.
To settle the dispute, Wagner said, parents and students will be testifying in the trial about their understanding of the district policy on foggy days.
Wainwright said Parlier Unified can’t be liable because Diego and his sister were not on school property when he was killed and she was injured. For Diego’s family to prevail, Wainwright said, the family has to prove Diego and his sister were under the direct supervision of the school officials when the accident happened. The family won’t prevail, Wainwright said, because the district had canceled buses that day.
But Wagner said, “The students were led to believe by Parlier Unified officials that they had to go to school on foggy days even if buses were not running.” Wagner said Parlier Unified knew or should have known that “if dense fog is too dangerous for buses, then it’s too dangerous for kids to walk to school.”
Instead of calling off school due to the fog, or telling students they didn’t have to go to school when the buses aren’t running, Wagner said, Parlier Unified coerced its students to go to school in order to get ADA money. The school district’s bus and attendance policies placed Diego and other children in an unsafe situation that led to him being struck by a pickup and killed, he said.
At the time of Diego’s death, Wagner said, the Fresno County grand jury was investigating Alvarez and the Parlier Unified school board for misappropriation of funds. The 2014-2015 grand jury report specifically criticizes Alvarez and the school board for having “done little to help improve student success and much to benefit administrators and trustees financially.”
Since June 2013, Parlier Unified administrators and trustees have traveled throughout the United States, charging thousands of dollars for lavish restaurant meals, and giving themselves raises and running up big legal bills, the report says.
Wagner said the grand jury reports findings will be discussed in the trial. “It’s the reason Alvarez was pushing for high students attendance, even on foggy days, to maximize ADA money,” Wagner said.
September 3, 2017
The Fresno Bee
By Pablo Lopez