Olvera v. PajaroValley Unif. School Dist.

Filed 9/26/07 Olvera v. Pajaro Valley Unif. School Dist. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Jorge Olvera (Jorge) sued the Pajaro Valley Unified School District (the District) and others for personal injuries he sustained in a fight at school. At trial, the jury rendered a verdict in favor of the District.

On appeal, Jorge claims instructional error, error in the exclusion of certain evidence, and error in denying Jorges request to introduce evidence of the full amount billed for medical services after the treatment was paid for by Medi-Cal. He also contends there was insufficient evidence to support the jurys verdict. We find no prejudicial error and affirm the judgment.

Brief Statement of Case & Procedural History

Jorge, a fourth grader at Ohlone Elementary School (Ohlone) in Watsonville, and Christian Tapia (Christian), a fifth grader at the school, got into a fight in the boys bathroom at school. As a result of the incident, Jorge fractured his left femur.

Jorge and Florencia Rios (Rios), his mother and guardian ad litem, (hereafter jointly Plaintiffs) sued Christian, Christians mother, the District, and Ohlones school principal Rafael Ramirez, for personal injuries. Plaintiffs sued Christian for assault and battery. They sued Christians mother Hortencia Tapia for parental liability based on willful misconduct and negligent supervision. Finally, they sued the District and Principal Ramirez for negligent supervision and negligent failure to discipline Christian after a prior assault.

Plaintiffs obtained entry of default against Christian and his mother. They dismissed the causes of action against Principal Ramirez and went to trial on the claims against the District. After an eight-day jury trial, the jury found the District was not negligent. The court subsequently entered judgment in favor of the District. Plaintiffs appeal.

Facts

Jorge began attending Ohlone in March of 2002, when he was in the third grade. Prior to that time, he lived and went to school in Mexico. Jorge did not speak English very well when he started at Ohlone. He claimed that when he started, other Ohlone students picked on him because he was Mexican; they said he was dumb because he did not speak English well.

Christian was a year ahead of Jorge in school. The boys were never in the same class. Jorge testified that he was bullied by Christian on two prior occasions at school, once on the school bus and once in the area near the school garden. There was also an incident outside of school.

Bus Incident

When Jorge was in the third grade, he occasionally rode the same bus as Christian. Once, Christian told Jorge to get out of his seat because Christian wanted that seat. Christian threatened to hit Jorge if he did not comply. Jorge refused to move; but Christian did not hit him. No other students were around to witness the incident. Jorge did not tell the bus driver, his teacher, or his parents what had happened because he was afraid of Christian. He was also afraid his mom would go to the principal and he would get in trouble.

Christian denied ever threatening Jorge on the bus.

Garden Incident

According to Jorge, in February 2003, Christian and his brother, Victor, assaulted Jorge on the asphalt playground near the school garden. Christian grabbed Jorge by the neck; Victor kicked Jorges feet seven times and punched him in the stomach five times. The incident lasted five minutes. There were other children and adults on the playground, but no one saw what happened. Jorge did not cry out for help. Christian and Victor stopped beating him when the bell rang. Jorge did not say anything to anyone at school because he was afraid the Tapia brothers would beat him up again.

Christian denied beating up Jorge near the garden.

Christians Reputation for Fighting

Jorge did not know of any other incidents that would cause him to believe Christian was a fighter or a bully. He never saw Christian pick on other kids at school; his friends did not tell him that Christian picked on other kids. Jorge testified that when he was in the fourth grade, kids other than Christian picked on him and his friends because they did not speak English well. One of the boys that picked on Jorge was Ernesto Quiroz (Ernesto), who was in his fourth grade class. Jorges friend, Pedro Arias (Pedro), testified that Christian had a reputation as a bully. Pedro saw Christian push smaller kids when they played four square.

Meeting with Principal Ramirez

The day the garden incident occurred, Jorge told his sister about the incident and she told their mother. By that time, Rios had already complained to the school that Ernesto was following Jorge. Jorge testified that his mother talked to his teacher, Candalaria Zuniga, about Ernesto and to Principal Ramirez about Christian. After that, both his teacher and the principal talked to Jorge about his problem with Ernesto. The principal met with Jorge and Ernesto the same day that Rios complained. He talked to the boys about getting along and told them to stop fighting. Jorge did not have any problems with Ernesto after that.

Hector Toledo testified that he gave Jorges mother a ride to the school and was with her when she met with Principal Ramirez in early April, prior to the incident in the bathroom. He recalled Rios telling Principal Ramirez that two brothers were bothering Jorge. Rios did not use the boys names when she talked to Principal Ramirez. Toledo recalled Rios and the principal mentioning the name Ernesto Quiroz. After Jorge broke his leg, Toledo learned that the boys involved in the earlier incident were the Tapia brothers. Toledo, who had a son at the school, was not aware of any bullying or fighting at the school.

Rios testified that she told Principal Ramirez that the Tapia brothers had attacked Jorge in the garden area.

Principal Ramirez testified that when he met with Rios, she complained about two boys in Jorges class and not the Tapia brothers, who were not in Jorges class. Rios did not tell Ramirez about the garden incident or mention the Tapia brothers names. She did not say anyone was hitting or kicking Jorge. Rios said two boys in Jorges class were bothering Jorge. According to Principal Ramirez, after he met with Rios, he pulled the two boys and Jorge out of class and spoke with them about the problem.

Incident Outside School

A few days before the incident in the restroom, Jorge and his mother walked by Christians house. Christian gave Jorge angry looks and Jorge told his mother Christian was the boy who had beaten him up by the garden. Jorges mother told him to ignore Christian and said she would talk to the principal about it.

According to Christian, when Jorge and his mother walked by his house, Jorge said something bad about Christians mother and Jorges mother did not do anything about it. This made Christian mad. Jorge denied saying anything bad about Christians mother.

Restroom Incident Resulting in Broken Leg

Jorge testified that toward the end of the lunch recess on April 9, 2003, he walked into the boys bathroom. As he entered, Christian walked past him and flicked water at him. After Jorge used the urinal, Christian came up to him and pushed him on the chest with both hands. Jorge pushed back. Christian said something in Spanish that is a vulgar way of saying Whats up? Jorge told him to stop and went to the sink to wash his hands. Christian grabbed Jorge by the neck, put his leg between Jorges legs and threw him to the floor. Jorge heard a cracking sound and realized his leg had been broken. Jorge fell to the floor and cried for help. Christian left the bathroom.

According to Christian, as soon as Jorge entered the bathroom, he bumped or pushed Christian. Christian went to the doorway, remembered what Jorge had said about his mother, and reentered the bathroom. He pushed Jorge. Jorge pushed him back, slipped on the wet bathroom floor, grabbed Christians shirt, and fell. Christian fell on top of Jorge. They both got up. Jorge walked to the door, fell a second time, and screamed in pain.

Pedro, Serafin Gonzales (Serafin), and Fernando Serrano (Fernando) were in the bathroom when the incident occurred.

Pedros testimony was consistent with Jorges description of the event. However, after Christian flicked water on Jorge, Pedro heard Jorge say the  F word; Jorge denies swearing at Christian. Pedro told Christian to stop. He heard a loud cracking sound as Jorge fell. Pedro ran outside to get help. He did not see any adults in the vicinity of the bathroom. He saw a yard duty person in the area where the kids lined up to go back to class and told her what had happened. She told him to go get Principal Ramirez. Pedro found Principal Ramirez on the black top near the lawn and told him what had happened.

Principal Ramirez testified that he was in an area 14 feet from the restroom, preparing for the students to line up at the end of recess, when he heard Jorge crying for help.

Prior Problems in the Boys Bathroom

Prior to the incident in which Jorge broke his leg, boys would go into the boys bathroom and skate on water and liquid soap that was on the floor. No one was ever injured. The school became aware of the problem and replaced the liquid soap dispensers with powdered soap dispensers to stop the skating and avoid injury. According to Principal Ramirez and the school nurse, this was done before the date of Jorges injury. According to Jorge, Christian and Pedro, this did not occur until after Jorge broke his leg. In addition, the principal and the teachers repeatedly warned the boys not to use the bathroom for skating. Although there was water on the floor near the urinals when Jorge broke his leg, Jorge did not slip in the water. No one was skating in the bathroom at the time of the incident.

No one knew of any fights in the bathroom prior to Jorges injury. Pedro saw Principal Ramirez walk into the bathrooms during the lunch recesses.

Jorges Injuries

Jorge sustained an oblique fracture of the left femur. Jorge had surgery to repair the fracture; the surgery included the placement of a stainless steel plate and eleven screws. At the time of surgery, the doctor discovered that Jorge had a preexisting unicameral bone cyst at the fracture site. These cysts can weaken the bone and make it easy to fracture. After the fracture healed, Jorge had a second surgery to remove the plate and screws.

Jorge had excellent healing of the fracture with near anatomical alignment. The bone cyst also healed. An independent medical examiner that Jorge retained for trial did not expect Jorge to have any residual disability from the fracture, except for the scar from the surgical incision.

Discussion

I. Instructional Error

Plaintiffs challenge the courts refusal to give four jury instructions they requested. They contend the trial court erred when it refused to give Plaintiffs Proposed Jury Instruction No. 4, which instructed the jury that the District may breach its duty of ordinary care by [e]ither a total lack of supervision or ineffective supervision.[1] Plaintiffs assert the court erred when it refused to give their Proposed Jury Instruction No. 5, which instructed that a special duty of care arose when the school was informed that Christian had made a specific threat against Jorge or presented a foreseeable danger to Jorge,[2] and when it failed to give their Proposed Jury Instruction No. 6,[3] which instructed that there was a special relationship between the District and its students that imposed an affirmative duty to take reasonable steps to protect the students. Finally, Plaintiffs contend the court erred when it failed to give a modified version of Judicial Council of California Civil Jury Instructions (2007), CACI No. 410, the standard jury instruction regarding parental liability.[4]

A. Standard of Review

Upon request, a party is entitled to correct, nonargumentative instructions on every theory of the case advanced by the party that is supported by substantial evidence. (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572 (Soule).) The trial court may not force the party to rely on abstract generalities, but must instruct in specific terms that relate the partys theory to the particular case. (Ibid.)

On an appeal claiming jury instructional error, including claims that the court improperly refused an instruction, we view the evidence in the light most favorable to the appellant. In such cases, we assume that the jury might have believed the evidence upon which the instruction favorable to the appellant was predicated. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2006) 8:149, p. 8-99 citing Henderson v. Harnischfeger Corp. (1974) 12 Cal.3d 663, 674 and Whiteley v. Philip Morris Inc. (2004) 117 Cal.App.4th 635, 655.)

The appellate court will not reverse a judgment for instructional error in a civil case  unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.  (Soule, supra, 8 Cal.4th at p. 580.) Instructional error in a civil case is prejudicial where it seems probable that the error prejudicially affected the verdict. [Citations.] Of course, that determination depends heavily on the particular nature of the error, including its natural and probable effect on a partys ability to place his [or her] full case before the jury. (Ibid.) Actual prejudice must be assessed in the context of the individual trial record. (Ibid.) When deciding whether an error of instructional omission, like that alleged in this case, was prejudicial, the court must also evaluate (1) the state of the evidence, (2) the effect of other instructions, (3) the effect of counsels arguments, and (4) any indications by the jury itself that it was misled. (Id. at pp. 580-581, fn. omitted.)

B. Analysis: Proposed Jury Instructions Nos. 4 through 6

As noted previously, Plaintiffs sued the District for negligent supervision on the day of the bathroom incident and negligent failure to discipline Christian for the prior assault near the garden. Plaintiffs alleged the District had a duty to discipline Christian for the first incident to protect Jorge from further assault. In closing argument, Plaintiffs counsel told the jury the negligence claims against the District were based on two theories: the negligent failure to intervene and discipline Christian prior to April 9, 2003, and the negligent failure to properly supervise the boys bathroom at the time of injury.

While school districts and their employees have never been considered insurers of the physical safety of students, California law has long imposed on school authorities a duty to supervise at all times the conduct of the children on the school grounds and to enforce those rules and regulations necessary to their protection. (Dailey v. Los Angeles Unified Sch. Dist. (1970) 2 Cal.3d 741, 747 (Dailey).) The standard of care imposed upon school personnel in carrying out this duty to supervise is identical to that required in the performance of their other duties. This uniform standard to which they are held is that degree of care which a person of ordinary prudence, charged with [comparable] duties, would exercise under the same circumstances. [Citations] Either a total lack of supervision [citation] or ineffective supervision [citation] may constitute a lack of ordinary care on the part of those responsible for student supervision. (Ibid., internal quotation marks omitted.)

We begin our analysis by reviewing the instructions the jury received regarding Plaintiffs negligence claims against the District. The court instructed the jury with CACI No. 400 regarding the elements of negligence; CACI No. 401 regarding the basic standard of care, A person can be negligent by acting or by failing to act. A person is negligent if he or she does something that a reasonably careful person would not do in the same situation or fails to do something that a reasonably careful person would do in the same situation; CACI No. 402 regarding the standard of care for minors; CACI No. 411 regarding reliance on the good conduct of others; CACI No. 412 regarding the duty of care owed children; and CACI No. 413, which instructed the jurors that they could consider the custom and practice in the community in deciding whether the District acted reasonably.

The court also instructed the jury with CACI No. 418 regarding the presumption of negligence per se. The jurors were instructed that if they found the District had violated either Education Code section 44807 or Education Code section 49079 and the violation was a substantial factor in bringing about Jorges injuries, they must find the District negligent. The jury was instructed that Education Code section 44807 provides: Every teacher in the public schools shall hold pupils to a strict account for their conduct on the way to and from school, on the playground, or during recess. The jury was told that Education Code section 49079 provides that a school district shall inform the teacher of each pupil who has engaged in or is reasonably suspected to have engaged in the following acts: caused, attempted to cause, or threatened to cause physical injury to another person . . . ; willfully used force or violence upon the person of another, except in self-defense . . . ; intentionally engaged in harassment, threats of intimidation, directed against pupils, that is sufficiently severe or pervasive to have the actual or reasonably expected effect of materially disrupting classwork, creating substantial disorder, and invading the rights of pupils by creating an intimidating or hostile educational environment . . . .

Relying on and repeating the same language from Education Code sections 44807 and 49079, the jury was instructed with CACI No. 423 that if the jurors find a violation of either statute that was a substantial factor in causing Jorges injuries, the District may be held liable for failing to perform a mandatory duty.

The jury was also instructed with CACI No. 430 (the substantial factor test for causation), CACI No. 431 (evaluating causation where there are multiple causes), and CACI No. 433 (intentional torts or criminal acts as superseding causes). In addition, the court instructed the jury with Plaintiffs Proposed Jury Instruction No. 1 that under the California Constitution, all students in the public schools have the inalienable right to attend campuses which are safe, secure, and peaceful. The court also gave Plaintiffs Proposed Jury Instruction No. 2, which stated: California law has long imposed on school authorities a duty to supervise at all times the conduct of children on school grounds and to enforce the rules and regulations necessary to their protection. The school district is liable for injuries which result from a failure of its . . .  employees to use ordinary care in this respect and Plaintiffs Proposed Jury Instruction No. 3 regarding the purpose of the law requiring supervision of students on school property. The jury was also instructed that the school is not the insurer of student safety and that Plaintiffs must prove negligence. The court refused Plaintiffs special instructions numbers four through six because they were repetitive of other instructions.

It is evident from this review that the jury was instructed extensively regarding general principles of negligence and specific principles that relate to the general duty of care and liability of school districts and cases involving children. The court also instructed the jury regarding the schools duty under Education Code section 49079 to inform teachers when a pupil has engaged in conduct that has injured another. In our view, the jury was fully and adequately instructed regarding Plaintiffs negligence claims by the instructions that were given. The instructions that were given addressed Plaintiffs theories and did not foreclose a verdict based on their theories of the case.

Even if we were to conclude the court erred in failing to give Plaintiffs special instructions four through six, any error was harmless. As in Soule, at most, the omitted language here was similar in function and purpose to pinpoint instructions. It is well settled that the erroneous refusal of pinpoint instructions may be deemed harmless in appropriate cases. (Soule, supra, 8 Cal.4th at p. 581.)

It was obvious at trial that Plaintiffs alleged ineffective supervision rather than a total lack of supervision, both with regard to the handling of Rioss complaint and the incident in the bathroom. Plaintiffs school safety expert, Dr. McManus, criticized Principal Ramirez for failing to communicate Rioss complaint about the incident near the garden to Christians and Jorges teachers. He criticized Ramirezs loss of the notes relating to the meeting and stated that Ramirez showed inadequate concern for Rioss complaints. McManus opined that if Principal Ramirez had alerted the teachers to a problem, they could have monitored the situation and contributed to school safety. He also opined that if Principal Ramirez had intervened and spoken with Christian about the garden incident, even if he had not disciplined Christian, the boy would have been put on notice that the principal is watching his behavior. McManus opined that if Principal Ramirez had spoken to the teachers and Christian after Rios complained about the garden incident, more likely than not the bathroom incident would not have occurred. McManus also stated that while the Peace Builders Program used at Ohlone was impressive, there was more the school could do to insure safety.

In addition, McManus stated that the supervision of the bathroom on the date of the incident was inadequate. He opined that Principal Ramirez should have been in the area near the bathroom at the end of recess, when the incident occurred, because that is when students are moving and things happen. He stated that if Principal Ramirez had been near the bathroom, Jorges injuries would not have occurred because Christian would have seen an adult in the area when he stepped into the doorway and would not have gone back into the bathroom. He also opined that if Principal Ramirez was near the bathroom, he would have heard the fight and been able to stop it. McManus stated that there were enough people supervising the lunch recess. The issue was not the number of people, but their locations. Based on this evidence, it was clear Plaintiffs negligence claim was based on ineffective handling of Ms. Rioss complaint and ineffective supervision of the students during recess, rather than a lack of supervision.

In their argument to the jury, Plaintiffs argued that when there is a specific threat of harm or a reasonably foreseeable danger, the schools decision to initiate discipline is mandatory and that the school must act to protect the children, and that Ohlone failed to act after receiving notice that Christian had beaten up Jorge near the garden. Plaintiffs also argued that a lack of ordinary care can be based on either a total lack of supervision or ineffective supervision. They argued that someone should have checked out the bathroom because Christian was acting suspiciously when he stood in the bathroom doorway for two minutes before going back inside and because the boys were yelling and swearing inside. They asserted these facts supported their inadequate supervision claim. Plaintiffs argument also addressed the duties to supervise and to intervene as set forth in Education Code sections 44807 and 49079.

Furthermore, nothing in the record indicates the jury was misled. The jurors deliberated for approximately two and one half hours. They did not request a rereading of any of the instructions or any of the evidence. They did not submit any questions to the court. The verdict of 11 to one in favor of the District was not close and thus not helpful in assessing the impact of alleged instructional error. (Krotin v. Porsche Cars North America, Inc. (1995) 38 Cal.App.4th 294, 305-306.)

Plaintiffs contend that in addition to its general duty of care, the District had a special duty of care toward Jorge based on his mothers complaint to Principal Ramirez about the incident in the garden. They contend the court erred in failing to give their Proposed Jury Instruction No. 5, which instructed that a special duty of care arose when the school was informed that Christian had made a specific threat against Jorge or presented a foreseeable danger to Jorge. As the court observed in Thompson v. Sacramento City Unified School Dist. (2003) 107 Cal.App.4th 1352, 1369, A special duty of care may arise where a person makes a specific threat against a specific person or otherwise presents a foreseeable danger to a readily identifiable potential victim. Moreover, [i]n an appropriate case, a special duty may arise where a school is aware that a particular location has become dangerous. (Ibid., citing Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 805, 815.) Given the manner in which the jury was instructed regarding the Districts general duties in this case as well as its duty to inform teachers when a student had engaged in conduct that injures other students under Education Code section 49079; the extensive evidence and argument regarding the garden incident, Rioss complaints about the garden incident to Principal Ramirez, and the principals alleged failure to follow through and act on her complaints; the relationship between the failure to discipline for the garden incident and the bathroom incident; and the prior problem related to children skating on soap in the bathroom, we conclude Plaintiffs were not prejudiced by the alleged failure to instruct the jury that the District had a special duty toward Jorge under the circumstances of this case.

Accordingly, we conclude the alleged instructional error with regard to Plaintiffs Proposed Jury Instructions Nos. 4 through 6 does not warrant reversal of the judgment.

C. Analysis: Modified CACI No. 410

Plaintiffs contend the court erred when it failed to give a modified version of CACI No. 410, the standard jury instruction regarding nonstatutory parental liability. The District objected to the instruction on the grounds that this was not a case of parental liability or vicarious liability and that the instruction would be confusing to the jury. Plaintiffs argued the instruction applied because when the parents are not present, children are under the control of the school. Plaintiffs relied on specific language from Dailey regarding the standard of care of school personnel we cited above. Plaintiffs Proposed Jury Instruction No. 2, which the court gave, contained and paraphrased the language from Dailey that Plaintiffs relied on in arguing the issue to the court.

On appeal, Plaintiffs argue that the instruction should have been given because the school stands in loco parentis, in place of the parents. They also rely on Education Code section 44807, which provides that every teacher shall hold pupils to a strict account for their conduct during recess. However, the jury was instructed with section 44807 in the negligence per se and mandatory duty instructions. As Plaintiffs arguments suggest, the modified CACI 410 instruction Plaintiffs proposed was duplicative of other instructions the court gave regarding negligence and the Districts duty of care, including Plaintiffs Proposed Jury Instruction No. 2. For these reasons, we conclude the court did not err when it refused to give Plaintiffs modified version of CACI No. 410.

II. Evidentiary Rulings

Plaintiffs contend the trial court erred when it excluded: (1) notes prepared by Jorges teacher after she interviewed Serafin and Fernando; (2) portions of Toledos, Rioss, and Jorges testimony on the grounds of hearsay; and (3) evidence relating to the Districts investigation of the bathroom incident.

A. Standard of Review

We review the trial courts rulings regarding the admissibility of evidence under the deferential abuse of discretion standard. (City of Ripon v. Sweetin (2002) 100 Cal.App.4th 887, 900.) [T]he appropriate test of abuse of discretion is whether or not the trial court exceeded the bounds of reason, all of the circumstances before it being considered. (In re Marriage of Connolly (1979) 23 Cal.3d 590, 598.) Appellate courts will disturb discretionary trial court rulings only upon a showing of a clear case of abuse and a miscarriage of justice. (Blank v. Kirwan (1985) 39 Cal.3d 311, 331.)

B. Ms. Zunigas Notes

Zuniga was Jorges fourth grade teacher. She was in the staff room eating lunch when the bathroom incident occurred. After the bell rang, she went to the playground to pick up her students and escort them back to their classroom. As she walked by, she saw Jorge lying in the doorway of the boys bathroom. She was shocked to see that he was hurt. Several staff members, including Principal Ramirez, the school nurse, yard duty personnel, and the parent liaison, were taking care of Jorge. Since Jorge was being taken care of, Zuniga decided to pick up the rest of her students and take them to their classroom.

When Zuniga got to the classroom, she asked her students if anyone knew what had happened. Serafin and Fernando raised their hands and told her what they saw. Zuniga made hand-written notes of what Serafin and Fernando told her.[5] Later that day, she gave the notes to Principal Ramirez.

The District made a motion in limine to exclude the notes on the grounds of hearsay and argued they were not properly admissible under the business record exception to the hearsay rule. The District also moved to exclude evidence of the oral statements the boys made to Zuniga. The court ruled that Zuniga could testify regarding what the boys had told her under the excited utterance exception to the hearsay rule. However, the court concluded that the notes were not admissible under the business records exception and excluded them from evidence.

Plaintiffs contend the court abused its discretion when it excluded the notes because the notes were admissible under Evidence Code section 1271,[6] the business record exception to the hearsay rule. Section 1271 provides: Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if: [] (a) The writing was made in the regular course of a business; [] (b) The writing was made at or near the time of the act, condition, or event; [] (c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and [] (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness. In addition to the statutory requirements under section 1271,  the courts have imposed some conditions relative to the admissibility of a public record: (a) the record must be made by an official pursuant to governmental duty; [citations], and, (b) the record must be based upon the observation of an informant having a duty to observe and report. [Citation.] In this regard, a record based on the statements of third parties, e.g., an auto accident report compiled by the police, is inadmissible.  (People v. Ramos (1997) 15 Cal.4th 1133, 1177.)

Plaintiffs argue the notes were admissible because Zuniga made them within minutes after the assault in the bathroom, while the students were telling her what they had observed, and delivered them to Principal Ramirez shortly after they were prepared. They contend that Zuniga was acting in her capacity as a teacher investigating a serious injury accident at the school and that the report was prepared as part of her duties as a teacher. The District contends the notes were properly excluded because the duties of an elementary school teacher do not include investigating fights.

Zuniga testified that she did not know why she made the notes and that whenever something happens, she documents it. There was no evidence her official duties included investigating accidents. The school nurse, Jeff Richman, prepared an official report regarding the accident on behalf of the school. Richman stated his duties included preparing such reports in cases in which he has treated the student. Richmans report was on a school district form entitled Student Accident Report and was signed by both Richman and Principal Ramirez. In addition, at the request of the principal, Richman prepared a narrative report describing the incident. Both the School Accident Report and Richmans narrative were in evidence. Thus, the record supports the conclusion that the school nurse, and not Zuniga, had an official duty to make a report of the accident. In addition, Zunigas report was based on the statements of third parties (Serafin and Fernando) and therefore would not be admissible under the rule from People v. Ramos, supra, 15 Cal.4th 1133, 1177. Thus, the court correctly concluded the notes were not admissible under the business records exception. Moreover, although the court did not admit Zunigas notes into evidence, the teacher used the notes to refresh her recollection regarding her conversation with the students and testified in detail regarding what Serafin and Fernando had told her. For these reasons, we conclude the court did not abuse its discretion when it excluded the notes.

C.    Hearsay Objections to Toledos Testimony

Plaintiffs contend the court erroneously sustained the Districts hearsay objections when Plaintiffs counsel asked Toledo: (1) what Rios had said about why she wanted [Toledo] to take her to see the principal; (2) what Rios had said to the principal regarding the reason for their meeting; and (3) whether he recalled the names of any children Rios mentioned during the meeting.

Plaintiffs contend the evidence was admissible as a prior consistent statement of Rios under sections 791, subdivision (b), and 1236. A prior consistent statement is admissible as an exception to the hearsay rule if it is offered when there is an express or implied charge that the witnesss testimony was recently fabricated or influenced by bias or improper motive, and the statement was made before the fabrication, bias, or improper motive is alleged to have arisen. (People v. Kennedy (2005) 36 Cal.4th 595, 614 citing 791, 1236.) Plaintiffs argue the District accused Rios of fabricating her testimony regarding what she told Principal Ramirez when they met prior to the bathroom incident. They contend Toledos testimony would have established a prior consistent statement by Rios and was critical to establishing notice to the principal of the prior incident involving Christian and Jorge near the garden.

The District points out that Toledo testified before Rios and argues that the foundation necessary for the hearsay exception to apply had not been laid. The District asserts that until Rios testified, there were no prior consistent statements. When the parties discussed this issue with the court outside the presence of the jury, the court noted this foundational problem and stated: If Ms. Rios testifies and there are issues about a prior consistent or inconsistent statement, Ill allow it and you can call Mr. Toledo. Thus the court gave Plaintiffs the opportunity to recall Toledo and present evidence supporting their prior consistent statement claim. However, Plaintiffs did not recall Toledo after Rios testified. Under these circumstances, we conclude the court did not abuse its discretion when it sustained the hearsay objections to the questions asked of Toledo.

In addition to the three questions and rulings set forth above, Plaintiffs cite 14 pages of Toledos testimony without specifying which questions or which of the courts rulings are at issue. We conclude Plaintiffs have forfeited any claim of error with regard to this testimony for failure to identify the rulings at issue and provide this court with reasoned argument with regard to those claims of error. (People v. Stanley (1995) 10 Cal.4th 764, 793; Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784 (Badie).)

D.    Hearsay Objections to Jorges Testimony

Plaintiffs assert the court erroneously sustained the Districts hearsay objections when Plaintiffs counsel asked Jorge: (1) [W]hat did your sister tell your parents about Ernesto? (2) Did [your mother] tell you what happened when she went to the school? (3) what Rios said to Jorge about what happened when she spoke to the principal, and (4) what Toledo said to him after he told Toledo about the garden incident. In each case, the court sustained or impliedly sustained the Districts hearsay objection to the question.

As before, Plaintiffs argue the responses to these questions were properly admissible under sections 791 and 1236 as prior consistent statements of a witness. However, Plaintiffs do not specifically argue how the responses to these questions were admissible under the exception for prior consistent statements. We note the statements involve three witnesses: Jorges sister, Rios, and Toledo.

Jorges sister did not testify at trial so there is no basis for arguing a prior consistent statement regarding Jorges sister.

Rios and Toledo both testified. Since Plaintiffs do not provide us with argument related to the statements Toledo made, we conclude they have forfeited any claim of error related to the courts order sustaining the hearsay objection to the question asking what Toledo said to Jorge after Jorge told Toledo about the garden incident. (Badie, supra, 67 Cal.App.4th at pp. 784-785 [when an appellant asserts a point but fails to support it with reasoned argument and citations to authority, appellate court may treat the point as forfeited].)

With regard to the questions about what Jorges mother said, we note they suffer from the same foundational problem as the questions asked of Toledo, since Jorge testified before his mother did.

More importantly, with regard to all four questions asked of Jorge, when the court sustained the hearsay objections at issue, Plaintiffs counsel made no effort to argue any exception to the hearsay rule and did not argue that the responses were admissible as prior consistent statements of the witnesses. The issue is not cognizable on appeal because [Plaintiffs] did not present that theory of admissibility at trial. (People v. Smith (2003) 30 Cal.4th 581, 629-630 (Smith).)

For all these reasons, we conclude the court did not abuse its discretion when it sustained the hearsay objections to Jorges testimony.

E.     Hearsay Objections to Rioss Testimony

Plaintiffs also contend the court erroneously sustained the Districts hearsay objections when Plaintiffs counsel asked Rios: (1) Did Jorge say whether any adults were in the area supervising the garden at the time of the incident? (2) Did Jorge tell you [why he didnt speak to the principal or his teacher about the garden incident]? (3) what Jorge told her about breaking his leg; (4) whether Jorge told her the name of the boy who broke his leg; (5) whether she learned the location where Jorge was hurt; (6) What was discussed at the meeting? (7) Did anybody tell you that it had anything to do with the unequal growth of his legs? (8) What kind of future medical care do you understand Jorge is going to need?[7]

Plaintiffs argue the court erred in sustaining hearsay objections to these questions because the evidence was not offered to prove the truth of the matter asserted, but merely to prove notice to the declarant or motive for the declarant to take some type of action. They argue the evidence was not hearsay or came within the exception to the hearsay rule for the declarants existing state of mind. As with the hearsay objections to Jorges testimony, when the court sustained the hearsay objections at issue, Plaintiffs counsel made no effort to argue any exception to the hearsay rule and did not argue that the responses were admissible on the grounds asserted on appeal. Again, this issue is not cognizable on appeal because Plaintiffs did not present this theory of admissibility at trial. (Smith, supra, 30 Cal.4th at pp. 629-630.)

F. Motion in Limine Excluding Evidence of Districts Investigation

Plaintiffs contend the court erred when it granted the Districts motion in limine No. 4, which sought to preclude Plaintiffs from claiming that the District was negligent in the manner in which it investigated the bathroom incident. At the hearing of the motion, the Districts counsel agreed that evidence of the investigation was admissible and stated that he sought to preclude a claim of negligent investigation. Plaintiffs wanted to challenge the principals conclusion that the boys had engaged in mutual combat. The District argued that Principal Ramirezs conclusions about the accident were irrelevant. The court observed that there are limited areas where a witness may testify regarding an opinion or conclusion and stated mutual combat is not one of them. The court stated it would allow the parties to ask whether Principal Ramirez talked to witnesses or took notes. However, the court ruled that Plaintiffs would not be able to ask Principal Ramirez why he did or did not do certain things during the investigation because such questions call for inadmissible conclusions.

At trial, Principal Ramirez testified that he interviewed Christian and took notes during the interview. Principal Ramirezs notes were in evidence and the principal was questioned extensively regarding the notes. He could not recall whether he had interviewed Serafin and Fernando and was impeached with his deposition testimony that he had not interviewed them. Principal Ramirez was also questioned about Zunigas notes. The trial court sustained the Districts objection to the question: Did you make any effort to find other witnesses? However, the principal answered, No and there was no motion to strike the answer. Finally, based on its in limine ruling, the court sustained the Districts objection to the questions: Based on what you learned from Jorge and Christian, you claim that this was mutual combat; right? and Did you determine who the initial aggressor was?

On appeal, Plaintiffs argue that evidence regarding the Districts post-accident investigation was relevant, probative and admissible and that the courts restrictions on Plaintiffs questions about the post-accident investigation severely harmed their case. They contend [t]he fact that the principal did not apparently interview the witnesses at any time or interview Jorge Olvera until almost two weeks after the accident, called into question the credibility of Principal Ramirez, his competency, and his conclusions involving mutual combat between the boys.

As outlined above, the jury heard detailed evidence regarding the Districts investigation. In addition to the principals testimony, the jury also heard Zuniga testify regarding her interview of Serafin and Fernando and the school nurse testify regarding the report he prepared. The principals notes and the nurses report were in evidence. In addition, Plaintiffs did not allege that they were harmed by the Districts conduct post-accident or during the investigation.

The District argues that this is an improper attempt by the Plaintiffs to argue that the District was negligent post-accident to show that it must have been negligent before the accident. We agree. Evidence of a trait of character (disposition to negligence) is inadmissible when offered to prove conduct on a specified occasion. ( 1101, subd. (a); [citation].) [E]vidence of a trait of a persons character with respect to care or skill is inadmissible to prove the quality of his conduct on a specified occasion. ( 1104; [citation].) It is a fundamental rule of evidence that you cannot prove the commission of an act by showing the commission of similar acts by the same person at other times and under other circumstances. Such evidence is simply not relevant. (Brokopp v. Ford Motor Co. (1977) 71 Cal.App.3d 841, 851.)

For these reasons, we conclude the court did not abuse its discretion when it granted the Districts motion in limine No. 4.

III. Denial of Plaintiffs Motion in Limine to Introduce Full Amount of Medical Bills

Plaintiffs claimed Jorges medical expenses were $113,063.42, the amount billed by the medical providers. The District argued the medical expenses were $41,426.99, the amount paid by Medi-Cal. Plaintiffs moved in limine for an order permitting them to introduce the full amount billed for medical services, subject to being adjusted after the jury returned its verdict. The District, on the other hand, moved for an order excluding any references to medical expenses in excess of what Medi-Cal had paid citing Hanif v. Housing Authority (1988) 200 Cal.App.3d 635, 640 and Nishihama v. City and County of San Francisco (2001) 93 Cal.App.4th 298, 307. The court granted the Districts motion in limine and limited the evidence of the medical specials to the amount paid by Medi-Cal.

The jury concluded the District was not negligent and did not award Plaintiffs any damages. On appeal, Plaintiffs contend the court erred when it excluded evidence of the medical specials in excess of the amount paid by Medi-Cal. Since we conclude there was substantial evidence that supported the jurys verdict and affirm the judgment, we shall not reach this issue on appeal.

IV. Sufficiency of the Evidence to Support the Jurys Verdict

Plaintiffs contend there was insufficient evidence to support the jurys conclusion that the District was not negligent in its supervision of the boys bathroom.

A.     Standard of Review

We review an appeal from a judgment after trial under the substantial evidence standard of review. (Jameson v. Five Feet Restaurant, Inc. (2003) 107 Cal.App.4th 138, 143 (Jameson).) When a trial courts factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination, . (Id. at p. 143, citing Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874.) This standard of review applies to appeals from both jury and nonjury trials. (Jameson,at p. 143,citing Alderson v. Alderson (1986) 180 Cal.App.3d 450, 465.) [W]hen two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court. (Jameson, at p. 143.) As long as there is substantial evidence, the appellate court must affirm, even if the reviewing justices personally would have ruled differently if they had presided over the proceedings below and even if other substantial evidence supports a different result. (Bowers v. Bernards, at p. 874.)

B.     Sufficiency of Evidence

Plaintiffs argue the great weight of the evidence indicated that there was nobody around the [boys] bathroom at the time of the incident. The student witnesses (Jorge, Christian, and Pedro) either said Principal Ramirez was not there or did not recall seeing him when they entered the bathroom. They did not see him when they exited the restroom. One of them testified that Principal Ramirez was 100 yards away, near the grass play area. Plaintiffs acknowledge that Principal Ramirez testified that he was talking with the parent liaison 10 feet from the bathroom when the incident occurred. They assert the fact that Jorge had to crawl from the washbasin to the doorway indicates Principal Ramirez was not 10 feet from the doorway. They also contend the District knew about problems in the bathroom because of the prior incidents of students skating on the liquid soap and should have had staff in place to prevent the kind of injury that occurred in this case. They argue that even if Principal Ramirez was 10 feet from the door, there is no substantial evidence to support the conclusion that he was supervising the bathroom area effectively.

In effect, Plaintiffs ask us to reweigh the evidence and use this appeal as an opportunity to reargue the facts. As noted above, that is not our role when we review a case for sufficiency of the evidence.

In our view, there was substantial evidence that supported the jurys conclusion that the District was not negligent in its supervision of the area where the accident occurred. Four adults supervised the playground during the lunch recess. Three yard duty personnel were each assigned to a zone and roamed within the zone to cover all areas where students might get into trouble. They moved around in an unpredictable, random fashion. In addition, Principal Ramirez roamed the entire playground area in an unpredictable pattern. He walked into the boys restroom a couple of times each recess and the boys knew this. Plaintiffs expert testified that with yard duty personnel roaming, there are going to be times when no one is near the bathroom and that this is acceptable as long as the times are random.

The ratio of adults to students was 1 to 45, which was below the generally accepted ratio for elementary school supervision. Plaintiffs school safety expert testified that he had no objection to the number of yard supervisors on duty, just where they were located.

There was no evidence of prior fights in the school restrooms. In addition, both Principal Ramirez and the school nurse testified that the hazard created by boys skating on the liquid soap had been eliminated prior to the incident.

The school utilized the Peace Builders Program (PBP), which taught the students to treat others with respect, to talk out their problems, not to put [others] down, and to get an adult involved if they could not resolve the problem on their own. The school reinforced the PBP concepts in weekly assemblies and in the classroom and gave awards to students who did something peaceful. Christians teacher referred to the program as a curriculum for teaching good citizenship. She discussed the PBP concepts with her class daily. Plaintiffs expert on school safety testified that the PBP and the way it was implemented at Ohlone were impressive. In spite of the PBP training, Jorge never told any adults at the school about the bus incident or the garden incident.

Christians teacher described Christian as motivated, well-liked, and easy to get along with. She did not have any discipline problems with him and considered him a Peace Builder. There was nothing in his cumulative file that indicated Christian was a problem.

In response to Plaintiffs claim that there was a culture of hazing at Ohlone, in which children who spoke English better than others hazed newcomers, Christians teacher, Katie Blue, testified that she never heard the kids at Ohlone insult or talk down to the students from Mexico. Blue, Jorge, and Pedro had never heard of other fights in the bathroom or anyone getting beaten up at Ohlone. The school nurse was not aware of bullying involving Jorge or Christian; Zuniga was not aware of bullying at Ohlone.

Several witnesses testified the school had meetings with the students about the skating problem in the restroom and warned them repeatedly not to do it. Although Plaintiffs expert opined that Principal Ramirez should have remained closer to the restroom at the end of recess, Pedro testified that it only took him 30 seconds to get to a yard duty person for help after leaving the bathroom.

Principal Ramirez denied being told about the alleged prior fight between Jorge and Christian near the garden. He was not aware of any problems between Jorge and Christian before the bathroom incident.

In our view, this evidence was substantial evidence supporting the jurys conclusion that the District was not negligent in its supervision of its students or the area where the injury occurred. We shall therefore affirm the judgment in favor of the District.

Disposition

The judgment is affirmed.

____________________________________________

McAdams, J.

WE CONCUR:

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Bamattre-Manoukian, Acting P.J.

________________________________

Duffy, J.

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[1] Plaintiffs Proposed Jury Instruction No. 4 stated: The standard of care imposed upon school personnel in carrying out this duty to supervise is identical to that required in the performance of their other duties. This uniform standard to which they are held is that degree of care which a person of ordinary prudence charged with comparable duties would exercise under the same circumstances. [] Either a total lack of supervision or ineffective supervision may constitute a lack of ordinary care on the part of those responsible for student supervision.

[2] Plaintiffs Proposed Jury Instruction No. 5 stated: A special duty of care arises where a person or entity is informed that an individual makes a specific threat against a specific person or otherwise presents a foreseeable danger to a readily identifiable potential victim. [] If you find that Florencia Rios informed the . . . Principal that Christian Tapia made a specific threat or otherwise presented a foreseeable danger to Jorge Olvera before the injury-producing incident, you are entitled to find that a special duty of care existed between the school district and Jorge Olvera. [] If you find that the school district breached a special duty of care to Jorge Olvera to take disciplinary action against Christian Tapia after Mrs. Rios informed the principal that Tapia posed a threat or a foreseeable danger to Jorge Olvera, you must find that the school district acted negligently. You must then determine whether the school districts negligence in failing to discipline Christian Tapia was a substantial factor in causing the injury-producing event.

[3] Plaintiffs Proposed Jury Instruction No. 6 stated: A special relationship is formed between a school district and its students so as to impose an affirmative duty on the district to take all reasonable steps to protect its students. [] Individual school employees responsible for supervising students, such as the principal and other staff, also have a special relationship with the students upon which a duty of care may be founded.

[4] CACI No. 410, as modified by Plaintiffs in this case provided: Jorge Olvera claims that he was harmed because of [Districts] negligent supervision of Christian Tapia. To establish this claim, Jorge Olvera must prove all of the following: [] 1. That [District] was aware of Christian Tapias habits or tendencies that created an unreasonable risk of harm to other persons; [] 2. That [District] had the opportunity and ability to control the conduct of Christian Tapia; [] 3. That [District] was negligent because it failed to exercise reasonable care to prevent Christian Tapias conduct; or take reasonable precautions to prevent harm to others; [] 4. That Jorge Olvera was harmed; and [] 5. That [Districts] negligence was a substantial factor in causing Jorge Olveras harm.

[5] Zunigas notes stated: Serafin, Fernando and Christian were in the bathroom. Then Jorge came in. Christian and Jorge crossed each other by the door. Then they both went to the sink. Christian pushed Jorge and said, Que onda buey. They both started pushing; then Christian grabbed Jorge by the neck and put his leg between Jorges. The boys heard somethin