NEWPORT BEACH : Ex-Teacher Loses Round in Lawsuit

In the latest installment of a long-running legal drama, a former schoolteacher cleared of molestation charges has lost a bid to ban prosecutors from contesting his civil rights lawsuit against them.

U.S. District Judge Gary L. Taylor denied the motion and delayed decisions on two others brought by the city and county, also defendants in the lawsuit.

Frank Tozzolina Jr. filed the case in 1990, a year after he was found not guilty of child molestation charges involving children at Mariners Elementary School.

A 19-year-veteran with the Newport-Mesa Unified School District, Tozzolina was suspended with pay in 1988 after four of his fifth-grade students accused him of fondling their breasts and buttocks. A handwritten note outlining a conspiracy to have Tozzolina fired was revealed during the three-week trial.

Six months later, Municipal Judge Russell A. Bostrom found Tozzolina factually innocent, an “exceedingly rare” finding that means the prosecution has no reasonable cause to pursue a case, said Ernest C. Chen, Tozzolina’s attorney.

Tozzolina, who still lives and works in Orange County, filed the civil rights suit 18 months ago, charging that county and city officials had purposefully overlooked exculpatory evidence, including the note, to further their careers.

The suit names Newport Beach, Orange County, William Evans, who was supervisor of the county’s Sexual Assault ad Child Abuse Unit at the time, and Kelly MacEachrean, a county deputy district attorney.

It asks for a minimum of $3 million in punitive damages in addition to compensatory damages and attorney fees.

On Monday, Taylor denied Chen’s motion to bypass a legal step that requires him to show that the prosecution was conducted without reasonable cause. Chen said that determination had already been made with Bostrom’s finding. “The same issue has been litigated and determined before,” Chen said. “The defendant now should be precluded from contesting that finding. You want to minimize repetition of litigation.”

Taylor also delayed decisions on the city’s motion for a summary judgment and the county’s request that if be dropped as a defendant, said Tom Feeley, who represents the city. A trial is expected to begin in November.