The battle continues between Kristin Smart’s family and Cal Poly

July 31, 2025

By KAREN VELIE

Editors Note: This the second in a four-part series on three civil lawsuits and an appeal related to the investigation, trial and incarceration of Paul Flores. Read part one, “Will Paul Flores return to San Luis Obispo County to testify at trial?”

Following a failed attempt at mediation, the family of Kristin Smart and Cal Poly San Luis Obispo are scheduled to battle over the legal sufficiency of the family’s wrongful death, negligence and negligent infliction of emotional distress lawsuit at a hearing in August.

In 2022, a jury found Paul Flores guilty of murdering  Smart during an attempted rape in 1996 following a Cal Poly frat party.

Even though Smart was killed in 1996, the Smart family argues the Jan. 2024 suit is timely because they were not aware of Cal Poly’s failures until May 2023, when Cal Poly’s president publicly apologized to the family saying: “We recognize that things should have been done differently – and I personally wish that they had.”

Lawsuit allegations include:

• The Cal Poly Police Department (CPPD) did not interview witnesses until four days after Smart disappeared.
• Campus police did not interview Flores, whom multiple witnesses had informally identified as the last person seen with Smart, until four days after Smart disappeared.
• CPPD did not seal off Flores’ dorm room as a potential crime scene, despite multiple witnesses identifying him as the last person seen with Smart.
• CPPD did not search Flores’ dorm room until sixteen days after Smart disappeared, despite multiple witnesses identifying him as the last person seen with Smart.

In addition, the suit claims Cal Poly failed to properly act on multiple reports about Paul Flores’ “threatening, stalking and harassing behavior.”

The multiple reports include:

• On Dec. 17, 1995, a female Cal Poly student filed a police report stating that Flores had been harassing her. Flores had climbed the trellis of her apartment building to spy on her from the balcony. When police arrived, they found Flores and identified him as the culprit.
• On March 27, 1996, three female Cal Poly students filed police reports stating that Flores had been harassing and stalking them. He had been calling them for six weeks and had filled their entire answering machine tape with nothing but silent, hang-up calls. The three women told officers that, in Dec. 1995, Flores had climbed on their apartment balcony and tried to break into their apartment.
• On Jan. 14, 1996, someone reported to Cal Poly that Flores vandalized Cal Poly grounds and property while intoxicated.
• On Jan. 17, 1996, Cal Poly required Flores to attend a “Mediation/Information Meeting” with the coordinator of student development, Nancy Day. This meeting was being held because Flores harassed a staff member at Cal Poly. At the meeting, Cal Poly discussed with Flores “the seriousness of harassing a staff member at Cal Poly” and also mentioned future possible cancellation of his housing contract with Cal Poly.

“If Cal Poly had properly acted on those reports, conducted an investigation, and appropriately disciplined the student, he would not have been on campus, and therefore would not have been able to murder Kristin. Flores also would have been prevented from assaulting and raping countless other women, in the years after he murdered Kristin,” according to the lawsuit.

The Smart family seeks financial damages and attorney and court costs.

On April 2, 2024, on behalf of Cal Poly, the Office of the Attorney General of California asked the court to reject the suit because it fails to provide a statutory basis for liability, lacks standing to sue and is barred by immunity.

First, the state argues the Smart family’s lawsuit fails to comply with statutes of limitations and the Government Claims Act. Negligence and wrongful death causes of action have a two-year statute of limitations. In addition, the Government Claims Act requires that a claim for injury is filed within six months of an incident.

“While the statement by President Armstrong is mentioned three times in the complaint, none of the factual assertions that are the basis for the causes of action are attributed to that statement,” according to the demurrer. “The statement did not cause the alleged failure to investigate or the murder.”

Secondly, the state argues the Smart family does not have standing to bring their negligence claim.

“Family members such as parents or siblings, cannot bring negligence causes of action based on a harm suffered by that family member,” according to the demurrer. “Further, the sibling plaintiffs lack standing to bring a claim for wrongful death.”

Lastly, the claims listed in the current Smart family lawsuit were already litigated in their prior lawsuit filed in 1996, which they lost, according to the state.

“The prior lawsuit brought by parent plaintiffs based on the death of Kirstin Smart is an absolute bar to their current claims and the court should sustain the demurrer without leave to amend,” according to the demurrer. “Because of the nature of these failings act as bars to these causes of action, there is no path for curing the defects. This court should sustain this demurrer without leave to amend.”

After mutiple continuations, the parties met for mediation on Nov. 6, 2024. While no agreement was met, “the parties did leave with potential resolution points,” according to court records.

The parties are currently scheduled for a case management conference on Aug. 4 and a hearing on the demurrer on Aug. 15.

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