July 7, 2005

Jury awards $100,000 to former Advantage Driving School student

DMV changes policy—no more temporary instructor licenses

By Kymberli W. Brady
Staff Writer

It took less than eight hours for a jury to reach a verdict in a civil suit against Advantage Driving School and former instructor Peter Malae for taking advantage of a 15-year-old student seven years ago.

Last week, in a unanimous decision, the six-man and six-woman jury awarded the plaintiff $100,000 in compensatory damages stemming from the 1998 statutory rape by Advantage Driving School instructor Peter Malae, who took her to a remote location during a two-hour driver’s training lesson and coerced her into having sex. He was convicted in September 1998 of criminal charges and sentenced to two years in prison.

During the trial, the jury learned that it wasn’t Malae’s first brush with charges of inappropriate behavior—nor was he the only Advantage Driving School instructor with a criminal background or who had faced allegations of repeated sexual misconduct.

Repeated testimony exposed attempts by the Zimmers to conceal documents, hire unlicensed instructors, and operate the school without a valid license, all factors that motivated the jury to slap Advantage Driving School with an unprecedented 75 percent burden of responsibility. Malae was ordered to pay 15 percent and the plaintiff the remaining 10 percent.

According to Tim Herr, attorney for the plaintiff, the most fault ever assigned to a similar proceedings was 65 percent, making this an unprecedented case—one the judge and the jury hope will be used to set an example for other schools.

“It shows that Zimmer’s conduct was so outrageous,” he said. “If he had done something in 1998 to change, it would be different. Instead he continued the same conduct knowingly. What do you do with a guy like that?”

Although $75,000 is considerably less than the $2 million initially sought by the prosecuting attorney, Advantage Driving School owners Ruth and Randy Zimmer, who is also on staff at Bret Harte Middle School, are bracing for the second or punitive phase, which started on Wednesday.

The Zimmers could be ordered to pay up to $2 million, according to the plaintiff’s father, depending on the reprehensibility of their actions and the measures—or lack thereof they took to prevent repeat occurrences.

“The unanimous 75 percent ruling showed that Zimmer did all of what he did with malice, fraud, and oppression,” he said. “If he could do it at Advantage Driving School, he could do it at San Jose Unified as well.”

“I feel this was fair,” her mother added. But what was important was that they were unanimous in finding the school guilty of malice, fraud, intent to conceal evidence. After that, my family will sure try to put this 7-year-long episode behind us and she’ll go on with her life.”

Round two
During the second phase, [underway at press time] Herr expects the judge to use equitable discretion under the Unfair Business Practices Act to order injunctive relief, which would establish specific criteria for the Zimmers to follow, including how they will need to conduct their business in the future in order to run more properly. He will also seek attorney’s fees and restitution.

“However, punitive damages are at discretion of the jury,” he said. “They will look at the reprehensibility of the conduct and do what is necessary to serve as an example and provide incentive to stop conducting themselves in the same manner.”

While aware that Malae had a propensity to engage in inappropriate behavior with his students, the jury was unable to find him guilty of malice or intent and therefore not liable for punitive damages.

“I think that reflected the argument that he’s already been punished.” Herr said. “And that’s OK. I’m asking them now to do their job and award damages appropriate to the reprehensivity of the trial.

“We are also asking the court to order restitution for all the students he collected money from during the three-year period where his corporate status was suspended,” the plaintiff’s father added.

According to DMV records, Zimmer’s corporate status was suspended in March of 2000, and pursuant to California Vehicle Code section 11110.2, was to be “automatically terminated.” Yet, Advantage Driving School continued to conduct business as usual. On Aug.1, 2002, the school was granted a “probational” Driving School Operator license, even though its corporate status continued to be suspended and was not revived until March 2003.

“That means that he couldn’t operate a school and collect money from students,” he said.

With gross revenues reported to be around $1.8 million during that three-year period, the judge could, under the Deceptive Business Practices Act, order the money returned.

“We are asking the court to order restitution for all those students he collected money from during that time,” the plaintiff’s father added.

“This is the judge’s decision,” said Herr.

DMV initiates statewide changes
The most significant development came from Sacramento, when attention brought to light by the Times article regarding this case ultimately prompted the Department of Motor Vehicles to reexamine its policy regarding instructor licensing. Last month, driving schools throughout the state of California received notification that temporary licenses would no longer be issued to driving instructors.

“From now on, we will take information only at the field office,” said DMV spokesperson Steve Haskins. “It will be sent to headquarters, where we do the investigations of instructors and hopefully, within 10 days, we will either issue or deny the license. It just makes good sense and is good policy.”

The notice was met with nervous trepidation from driving school owners, given the DMV’s snail’s pace reputation for pushing paperwork through Sacramento. Time, according to Allied Driving School owner Barbara Broyles, is something they don’t have, and instructors, if made to wait for a month or more without pay would find employment elsewhere.

“At first, I was afraid our businesses would go under if we couldn’t hold on to any instructors,” she explained. “But they’ve agreed to let them submit the application before they complete their training. This allows the DMV to do the background check while I finish training my instructors.”

Broyles agreed that the compromise offers a perfect solution to a frightening problem—AS LONG AS the DMV continues to process the applications in a timely manner.

“It’s a win-win solution,” she added. “No more criminals. But the minute they start to slack on the forms, we will start going out of business.”

“The only problem I have with it is that the DMV tends to drop the ball,” added John Paul Wright of Allstars Driving School. I think it’s a good idea, but I also think they’ll drop the ball and there wont be any accountability. Already the process is grueling and if they end up having to wait for the okay, we might loose the good, quality instructors and end up with those who will wait because they can’t get a job anywhere else.”

Haskins also advised parents to be more selective when choosing a driving school and an instructor.

“Obviously, we’re interested in trying to make students as safe as possible,” he said. “But it’s up to the parents as to what instructors they’ll let their children go with. The department feels that the parents have to take a large chunk of the responsibility. They’ve got to be proactive.”

GPS and tape recorders in driver training cars?
Taking his cue from the film, “Enemy of the State,” the plaintiff’s father wants to see laws enacted that will further protect teenagers while behind the wheel by making it mandatory to install GPS monitoring systems and tape recorders in instructor cars.

“The GPS service will call or send messages when a vehicle travels outside a specified area,” he explained. “You can control the speed and location of the vehicle at all times. “If he really wants to run the school safely and run the school with deterrents in place, each instructor should record the entire two hours of instruction, and then make the tape available to parents after each lesson.

“These two together will ensure the safety of our kids,” he said. “But more must be done about this problem. We need legislation to close all the loopholes. We need accountability from our government to monitor the driving schools. More importantly, we need to hold responsible those with whom we entrust the security of our loved ones, the driving school operators.”

Haskins agrees and claims the DMV’s hands are tied, especially regarding regulations for online driving schools, thanks, he says to SB2079, authored by Sen. John Burton which states that private school driver education courses may not be regulated.

“We can’t do much more,” he said, “until something changes or we’re told otherwise. It has to happen at the legislative level.”