Try Again, Judge Tells Crash Victim’s Parents

SAN FRANCISCO (CN) - The parents of a UC Berkeley student who was killed, along with her son, when a drunk student teacher drove into a tree will be allowed to hone their claim that university officials ignored abuse leading up to the fatal crash.

Medardo and Margarita Lopez originally filed a lawsuit in Alameda County Superior Court, accusing the Regents of the University of California of not responding properly to Jose Lumbreras' continued abuse and harassment of their daughter, Milanca Lopez, an undergraduate at the University of California, Berkeley.

According to the lawsuit, Lumbreras was a graduate student teacher in the Ethnic Studies Department when he began dating Milanca, who volunteered in Ethnic Studies student organizations.

The Lopezes say Lumbreras initiated the relationship, and then began to harass and insult her publicly, calling her a "slut" and "dirty whore," and telling her she was "not Mexican enough."

They claim he smoked marijuana and had sex with Milanca in front of her 6-year-old son. In April 2012, after moving in with Milanca, Lumbreras allegedly beat her and then trashed her apartment when she and her son fled to a neighbor's apartment.

On May 18, 2012, an inebriated Lumbreras drove a 1999 Cadillac sedan into a tree, killing Milanca and severely injuring her son. The boy died at a hospital seven days later.

Lumbreras' blood alcohol content was .219 - three times the legal limit.

Milanca's parents say their daughter reported the abuse to U.C. Berkeley personnel on two occasions in May 2012, and officers responded twice to her apartment but did not draft notes or reports or remove Lumbreras.

Around the same time, Milanca allegedly called and emailed Cephas John, a campus family housing manager.

The complaint does not state what she told him, though it claims he failed to take action.

The defendants removed the lawsuit to federal court and asked for a judgment on the pleadings, seeking to have all claims dismissed.

U.S. District Judge Edward Chen granted that motion and dismissed the federal claims, but permitted the Lopezes to refile their complaint to fix the "number of defects" outlined in his ruling.

For example, Chen rejected the Lopezes' claim that the defendants violated Title IX of the Education Amendments of 1972, because their daughter was ultimately deprived of her university housing benefits.

Chen said the plaintiffs failed to show how an act of sexual harassment deprived Milanca of housing benefits.

"Rather, plaintiffs have alleged that it was the fatal accident that caused Milanca to be deprived of the benefits of university housing," he wrote. (Emphasis in original.) "There are no allegations from which it can be concluded that Lumbreras' decision to drive intoxicated was an act of harassment or abuse motivated by Milanca's sex."

He also found that the complaint "inadequately alleges that the U.C. Regents had actual notice of sexual harassment."

Title IX requires that an official with authority to address discrimination claims and enact corrective measures be alerted, Chen said. The allegation that Milanca's peers were aware is not enough, he added.

As for the campus police and housing manager whom Milanca purportedly talked to, Chen said the complaint fails to allege what was said and to whom.

"Plaintiffs have plead no facts which explain the nature and scope of information the U.C. Regents possessed," Chen wrote. "Nor does the complaint allege the U.C. Regents had sufficient knowledge such that Defendants' inaction constituted deliberate indifference to a known violation of Title IX."

Chen added that plaintiffs "cannot state a Title IX against Mr. John - an individual."

For the claims against the regents, however, Chen granted the plaintiffs leave to amend with the following instructions:

"In their second amended complaint, plaintiffs must allege sufficient facts demonstrating: (1) that Lumbreras engaged in harassment or abuse that was gender-based within the purview of Title IX; (2) that this harassment or abuse deprived Milanca of educational benefits; (3) that the U.C. Regents had actual knowledge of (and were deliberately indifferent) to incidents of harassment or abuse motivated by gender; and (4) that the deliberate indifference caused Milanca to be subjected to further harassment or deprivation of rights." (Parentheses in original.)

Neither side replied immediately to a request for comment.

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