July 14, 2005

Advantage Driving School damages at $275,000 and rising

By Kymberli W. Brady
Staff Writer

On Thursday, a second unanimous decision against Advantage Driving School owners Ruth and Randy Zimmer had them digging deeper into their pockets for an additional $200,000.

The verdict raises the total awarded a former student to $275,000, seven years after her instructor was convicted of statutory rape.

Randy Zimmer, 6 PE (pictured in the Bret Harte Middle School 2004 yearbook)

According to the plaintiff’s attorney, Tim Herr of the San Jose firm of Herr & Zapala, LLP the punitive damage verdict issues a strong statement.

The award will take a sizeable bite out of the more than $400,000 legal tab incurred by the plaintiff, who claimed the battle was more about the message than the money.

“We sent a big message to Advantage Driving School,” Herr said. “You always hope for a lot. The issue here was about fair compensation and what the jury thought was enough to provide them (the Zimmers) with an incentive to operate properly in the future. The jury said given their financial condition, the amount of $200,000 was sufficient to prove the point.”

Moments before going to print, the Almaden Times Weekly received a prepared statement from the law firm of Ericksen Arbuthnot Kilduff Day & Lindstrom, Inc. on behalf of their clients. (Due to Times’ policy guidelines, the names of all sexual assault victims are withheld.)

“Randy and Ruth Zimmer, as owners and operators of Advantage Driving School, feel that the jury properly discharged their duties in this case.

“The verdict for the plaintiff in the amount of $100,000 was allocated between Advantage Driving School, Peter Malae, and [name withheld] herself after the jury heard evidence of the voluntary and consensual nature of her sexual interaction with Mr. Malae on the one occasion in July of 1998.

“The monetary amount awarded by the jury fell far short of the $1.2 million sought by [name withheld] and her attorney in closing arguments, as did the award of punitive damages [$200,000.]

“The third phase of the trial for the unfair business claims will be conducted before the court at a later date. Any comment at the present time relating to issues and evidence to be presented is improper and premature.”
As early as next week, the message—and the award—could get even bigger.

Although the jury’s part in the case is over, the court still has to make a decision as to a “Cause of Action” under the Unlawful Business Practices Act. Herr is seeking restitution of monies paid by students who were given unlicensed instructors, as well as Injunctive Relief for operating the school in an improper manner.

“I’m hoping this accomplished establishing guidelines that will make driver education safer,” Herr explained, “especially in the Almaden community, where this is the closest school around.”

The Almaden Times Weekly coverage of the Zimmer case, along with evidence produced during the trial elicited a dramatic policy change, when the Department of Motor Vehicles [DMV] decided to stop issuing temporary licenses before criminal background checks are complete. The move, Herr noted, will go a long way toward preventing convicted felons like Peter Malae and others from getting behind the wheel with 15- and 16-year-old teens.

“This is a huge victory for everyone,” Herr explained. “But whether or not they issue temporary licenses, it makes no sense to those who fail to follow the DMV rules and hire people without licenses in the first place.”

The burden of proof came when testimony shattered the Zimmer’s defense, when Peter Malae admitted he did not have a license at the time of the 1998 incident. The DMV ordered his former license surrendered after a felony conviction for assault hit his record. Although Ruth Zimmer maintained in her deposition that she never received the notice, she should have surrendered it to the DMV six months earlier, after he left Advantage Driving School to serve a jail sentence for assault six months earlier.

A second Advantage Driving School instructor, Valentino Gomez managed to secure a job without applying for a temporary license and despite a former assault conviction. He too was later convicted of sexually assaulting another student.

According to defense testimony, Gomez had provided the Zimmers with a temporary license, However, Mary Garcia, Head of Occupational Licensing for the DMV testified that he had never applied for a temporary license, nor was one ever issued to him. However, in an earlier interview with DMV spokesperson Steve Haskins, Gomez was assigned an “instructor’s number” upon submitting his application in April 2002, but maintains that he was never issued a provisional license after disclosing an assault conviction.

Ruth Zimmer, pictured at the deposition.

Gomez later admitted on the stand that he did not have a license while instructing for Advantage—a frightening scenario, Herr explained—in an industry that for years has turned a blind eye on blatant mismanagement.

“Even though they have rules and regulations in place, if there’s no enforcement, you’re going to have people like the Zimmers doing what they did,” he said. “The only answer is enforcement. If people find that the DMV is not actively enforcing their own rules, then they need to sue the schools that don’t operate within those rules.”

At the courthouse, neither Ruth nor Randy Zimmer would comment on the ruling or the future of Advantage Driving School.

“We have nothing to say,” Ruth Zimmer stated.

“The school for now remains open,” said Herr, “unless the judge decides to shut it down.”

Deregulation: From bad to worse?
If he does, there’s still oneclickdriversed.com, the online school Zimmer recently established with his son—only one in an alarming number of Web sites that started to line the walls of cyberspace after legislation was passed in 2003 that specifically prohibits the regulation of private online driving schools.

According to Allied Driving School owner Barbara Broyles, many of her students are former graduates of online schools who repeatedly failed the DMV exam and are victims of the two bills that allow it.

The first, SB946, was introduced by Sen. John Vasconcellos in 1999 as a pilot study program that called for the DMV to study and compare the effectiveness of driver education programs conducted in non-classroom environments versus those conducted in a classroom-based environment for persons under the age of eighteen.

It opened the door for the onset of home study/Internet-based courses designed to comply with new California laws and recent court decisions.

SB2079, authored by Sen. John Burton (D-Calif.) states that private school driver education courses may not be regulated. It was passed into law in 2003 and despite challenges, was upheld by the Court of Appeals.

“That’s ridiculous,” exclaimed Herr. “It’s definitely not in the community’s best interest to allow unlicensed driver’s education in this state, especially under the conditions that currently exist. Nobody’s watching the door. And now there’s this proliferation with online classes which nobody regulates.”

The $74.95 fee is a hefty one, Herr adds, for a course that he considers “a plagiarized version of the 2003 handbook that you can get free at the DMV.”

“It’s funny, but it’s scary—I’ve looked at his Web site and I can’t find a law that it violates. Although you certainly don’t get the education you pay for.”

If or until the laws are changed—and enforced, the best defense Herr says, is a better offense. DMV Web site information has limited reliability, as prior driving school and instructor violations are only posted for the past 12 months, even though they admit they maintain a three-year history for internal purposes.

Parents can start taking immediate precautions by doing the following:

- Ask questions. Stay informed every step of the way.

- Don’t let instructors come to your house to pick up your child. They don’t need to know where she or he lives.

- For better protection, ride in the back of the car during your child’s lesson. It’s a great way to learn what he needs to learn.

- If they won’t allow it, Herr recommends going to a different school.

“As far as I’m concerned, any school that says no has something to hide.” Herr says.