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Three Hesperia elementary schoolers can resume their lawsuit claiming school officials negligently allowed them be sexually abused by a school janitor.

An Oct. 12 appellate ruling said that the case should not have been dismissed.

Trial in the civil suit is set for Jan. 23.

The janitor is the defendant in a criminal trial set for Jan. 17.

The San Bernardino District Attorney charged Maple Elementary School janitor Pedro Martinez with 11 felony sexual abuse counts in January, 2019, each of which he pleaded not guilty to. They include one count of distributing pornography to a minor, four counts of lewd acts with a child, four counts of oral copulation with a child 10 years or younger and two counts of sodomy with a child 10 years or younger.

Martinez is being held at the West Valley Detention Center.

A month after the DA filed his case, three 6-year-olds who attended Maple Elementary School filed their own suit against Martinez and the school district, in which they claim Martinez would force oral copulation and penetrative anal sex with students during school hours and on school grounds.

Martinez had been working at the school since 2005.

The complaint claimed Martinez groomed the boys by giving them treats, showing them video games on YouTube and sharing videos of Mickey Mouse. It further claimed he would force the students to fight each other after he abused them, to create bruises that would hide evidence of the hurt he caused them.

Martinez denied the charges in his answer to their complaint.

The complaint claims school employees saw students sit on Martinez’s lap in the school cafeteria, and that the school principal saw him escort boys to empty classrooms.

“The Hesperia Unified School District failed miserably in the discharge of its duty to do so. More could have been done, and indeed should have been done, to spare these children from their victimization,” the boys’ attorney, Paul Matiasic, said in a press release at the time of the suit filing.

The boys’s third amended complaint brought claims of negligence, negligence in retention, negligent supervision, battery, sexual battery, false imprisonment, intentional infliction of emotional distress, negligence per se, violation of the Unruh Civil Rights Act, violation of Title IX, failure to perform mandatory duties under the Child Abuse and Neglect Reporting Act and sexual discrimination in education.

San Bernardino Superior Court dismissed the third amended complaint after the school district argued the complaint failed to establish that the district knew of any prior acts of sexual abuse by Martinez, or that the district had knowledge Martinez was abusing the boys.

Appellate ruling

The Court of Appeal overturned the dismissal.

The boys’ lawsuit needed to prove only negligence, for which a specific duty would be breached. In this case, “The Supreme Court explained that a school district is liable for the negligence of supervisory employees who ‘knew or should have known of (a school employee’s) dangerous propensities, but nevertheless hired, retained and failed to properly supervise’ the employee,” the Court of Appeal wrote.

Under the students’ claims – that they were regularly missing from their classrooms, that Martinez would place them on his lap in the cafeteria, that Martinez was often seen accompanying the boys despite it not being in his job description and that the boys’ parents talked with the school about their sons’ odd behavior resulting from the abuse – the school should have investigated and supervised both the boys and Martinez, the court ruled.

School employees should have reported Martinez’ actions under the Child Abuse and Neglect Reporting Act. Their alleged failure to do so would be grounds for negligence, the court said.

The school district’s argument was “not supported by any applicable precedent involving school district liability in these circumstances,” the court said.

The appellate ruling also agreed with the plaintiffs that the trial court mistakenly considered their second amended complaint when it ruled to dismiss the third amended complaint, although that was not taken into consideration in the ruling.

The court struck the boys’ claims of violation of Title IX and the Unruh Civil Rights Act.

Case information

Another Maple Elementary School student filed a complaint against Martinez in June, 2020. Her case alleged Martinez sexually abused her in a school bathroom in 2016.

Paul Matiasic and Hannah Mohr of The Matiasic Firm, and Holly Boyer and Kathleen Becket of Esner, Chang & Boyer, represented the students.

Ryan Miller of Cummings, McClorey, Davis, Acho & Associates represented Hesperia Unified School District.

San Bernardino Superior Judge Wilfred Schneider Jr. presided.

San Bernardino Superior Court Case No. CIVDS1904175.

Appellate case number E075092.

Criminal case number FVI19000218.

Read the third amended complaint here.

Read Martinez’s answer to the complaint here.

Read the ruling here.

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