Rios v. Grossmont Union High School Dist. CA4/1 ( 2013 )

Filed 12/16/13 Rios v. Grossmont Union High School Dist. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
MICHELLE RIOS etc., et al., D060971
Plaintiffs and Appellants,
v. (Super. Ct. No. 37-2008-00093763-
CU-PO-EC)
GROSSMONT UNION HIGH SCHOOL
DISTRICT,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County, Eddie C.
Sturgeon, Judge. Affirmed.
Choate Law Firm, Mark C. Choate; Boudreau Williams and Jon R. Williams for
Plaintiffs and Appellants.
Stutz Artiano Shinoff & Holtz, Daniel R. Shinoff and Paul V. Carelli IV for
Defendant and Respondent.
Michelle Rios, individually and as guardian ad litem of Colter Rios, and Reymond
Rios (collectively, the Rioses), appeal the judgment entered against them after a jury
found Grossmont Union High School District (the District) was not liable in negligence
for personal injuries Colter sustained while playing in a high school football game. The
Rioses claim the trial court prejudicially erred by not instructing the jury on the standard
of care in accordance with standards promulgated by a national organization that certifies
athletic trainers or a state organization that regulates high school athletics. We hold the
Rioses did not preserve these claims of error and affirm the judgment.
I.
FACTUAL BACKGROUND
Colter played on Grossmont High School's junior varsity football team during his
sophomore year. During the second play of a game that year, Colter felt a "pop" in his
right ankle when he was tackled, and felt pain when he tried to stand up. Colter told his
coaches he hurt his ankle and needed to have it taped, but the head coach told him he
"should have got that done before the game" and sent him back in the game.
Colter returned to the game without having his ankle taped and again felt pain. He
told the coaches he could not run toward the sidelines. After Colter failed to score a
touchdown on a play on which he normally would have done so, the head coach took
Colter out of the game and asked why he was running "half-assed." Colter responded his
ankle hurt and he needed to get it taped. The head coach told Colter to do so.
Colter went to the training table to have his right ankle taped, but the athletic
trainer, Keoki Kamau, was not there. Instead, Adrian Dunn, a student in a college
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athletic training program who had been assisting Kamau on a volunteer basis, was there.
Colter told Dunn his right ankle was "bugging him." Dunn examined Colter's ankle but
did not see any bruising or deformity. He manipulated Colter's ankle, but found no
abnormality and heard no complaints of pain from Colter. Dunn then taped Colter's right
ankle, and had him jog, zigzag, sprint, and backpedal. Dunn observed nothing abnormal,
and Colter did not complain of pain or any other problem. In fact, Colter said he "felt
fine" and could return to the game. Dunn told the head coach Colter could continue to
play.
After Dunn cleared Colter to return to the game, the coaches asked him to run a
screen pass play, and he agreed to do so. Colter caught the pass and was tackled by an
opposing player. The tackler knocked Colter to the ground headfirst, fracturing two of
his cervical vertebrae and injuring his spinal cord.1
1 In their opening brief, the Rioses repeatedly assert the tackle made Colter a
"tetraplegic." As support that Colter suffered such a devastating injury, however, the
Rioses provided no record citations, in violation of established rules regarding factual
assertions made in appellate briefs. (See Cal. Rules of Court, rule 8.204(a)(1)(C); Duarte
v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856 (Duarte).) Our own
review of exhibits admitted at trial revealed that Colter suffered a neurological injury as a
result of the tackle but, fortunately, recovered well and was never a tetraplegic. In
interrogatory responses, Colter stated, "The partial paralysis of his hands is
permanent . . . ." A physician progress note from four months after the tackle states:
"[Patient] [c]laims return to pre-accident neurological baseline and subjective recovery of
all motor/sensory function. No difficulty with ambulation." Another physician progress
note from nine months after the tackle states, "Has made a nice neurological recovery."
Nearly two years after the tackle, the physician noted "the patient is doing well from the
standpoint of this severe neck injury. He has minimal residual signs of spinal cord injury
consisting mainly of hyperreflexia. He has no motor or sensory deficits." At oral
argument, the Rioses' counsel conceded that Colter is not a tetraplegic, but stated there is
disagreement over the extent to which he suffers residual effects of the neck injury. We
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II.
PROCEDURAL BACKGROUND
A. Pleadings
The Rioses submitted a claim to the District as required by the Government
Claims Act (Gov. Code, § 910 et seq.), but the District rejected the claim. They then
filed a civil action against the District. As pertinent to this appeal, in their complaint the
Rioses alleged the District negligently allowed Colter to continue to play after he injured
his ankle, and, as a result of that negligence, he sustained "permanent and debilitating
injuries," including two fractured cervical vertebrae, partial upper extremity paralysis,
traumatic brain injury, and torn right ankle ligaments. Colter's parents alleged they
sustained "severe emotional shock to their nervous systems" when, as a result of the
District's negligence, they saw Colter being injured as they watched the football game
from the bleachers. The Rioses sought general and special damages, as well as other
relief, for the injuries they allegedly sustained as a result of the District's negligence.
B. Motions in Limine
As the case proceeded to jury trial, the issue of the applicable standard of care
arose in connection with several motions in limine. The Rioses contended standards
promulgated by the National Athletic Trainers' Association (NATA), an organization that
certifies and sets professional standards for athletic trainers, should govern. The District
thus disregard the repeated assertions in the Rioses' briefing that Colter is a tetraplegic
(Duarte, at p. 856) and caution their counsel against making such unsupported assertions
(Rules Prof. Conduct, rule 5-200(B) [attorney shall not seek to mislead court by false
statement of fact]).
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argued NATA standards did not apply; rather, standards promulgated by the California
Interscholastic Federation (CIF), a state organization that regulates high school athletics
(see Ed. Code, § 33353), should govern. The trial court ordered the parties to brief the
standard of care issue and set a separate hearing on the matter.
In its brief, the District argued NATA standards were not binding because
California does not regulate athletic trainers and does not require high schools to have a
certified athletic trainer on staff. The District also asserted the CIF is the governing body
for high school sports in California, and it publishes a Sports Medicine Handbook that is
meant to serve as a guideline for school administrators, coaches, sports medicine staff,
students and parents to use to protect the health and welfare of students.
The Rioses argued in their brief that NATA standards were "relevant" to the
standard of care applicable to Kamau and Dunn because (1) certification of athletic
trainers in the United States is done exclusively by NATA; (2) NATA regulates students
who wish to become certified athletic trainers; and (3) the District recognized the
importance of NATA certification by hiring Kamau, a certified athletic trainer bound by
NATA standards. Without citing any specific NATA standards or filing anything
published by NATA, the Rioses asserted that under NATA standards, a certified athletic
trainer must be present when a student training to become a certified athletic trainer
provides anything more than basic first aid, and students in training may not evaluate or
treat a sports injury or make a return-to-play decision. The Rioses also argued CIF
guidelines do not prescribe the standard of care. In support of this argument, they quoted
the following statement from CIF's Sports Medicine Handbook: "These 'guidelines' are
5
not meant to provide a 'standard of care' and are not meant to supersede medical or
administrative judgment decisions that must frequently be made on the scene by
appropriate individuals."
At the hearing on the standard of care issue, the parties maintained the positions
stated in their briefs. The District insisted "the standard of care in California is derived
from the CIF," which "is a creature of statute" and "is in charge of all [high school]
interscholastic athletic competition in California." The District also reminded the trial
court that NATA standards have not been adopted by the California legislature. In
opposition to the District's arguments, the Rioses again pointed out the CIF's Sports
Medicine Handbook expressly disclaimed any intent to establish a standard of care. The
Rioses argued instead that NATA standards prescribed the standard of care for this case
because the District had hired an athletic trainer certified by NATA (Kamau) and assisted
by a college student who was training to become a certified athletic trainer (Dunn).
Again, however, the Rioses did not direct the court to any specific NATA standards or
offer as evidence any publication by NATA.
The trial court ruled NATA standards did not establish the applicable standard of
care. The court also ruled the Rioses could ask Kamau about his NATA certification,
what he was taught NATA standards required, and why the standards were adopted. In
that regard, the court had the following exchange with the Rioses' trial counsel:
"The Court: . . . But I think I am going to give you the right, since
[Kamau] was a certified athletic trainer, . . . [to ask him:] 'Isn't this what
happens? Would this happen under your being a certified trainer? Would
this happen? This happen? Do you have to be there in the presence of?' I
am going to let you probably go through all that."
6
"[Counsel]: But I can ask the questions of, you went through a NATA-
approved training program. You did classes. You were certified. . . . You
are a member of NATA. And I am going to ask [Dunn:] . . . 'Isn't it true
that you were an athletic training student? Isn't it true that when you were
at San Diego State University you agreed to follow these things?' "
"The Court: In the court's opinion, all that is fair game. What I don't want
to see, and so therefore [the District] is negligent because [it] violated
NATA. I am not going to let you go that far."
"[Counsel]: The question I can't ask [is], 'Was this a violation of NATA?'
"The Court: Correct.
"[Counsel]: But I could say, 'What were you taught?'
"The Court: Absolutely.
"[Counsel]: What were those rules? Why are they in place?
"The Court: You are saying you went through this program. Is that the
rule? Absolutely. I have no problem with that.
"[Counsel]: Okay. And then it is up to the jury to decide it is an element of
the evidence.
"The Court: Was it reasonable or not.
"[Counsel]: Was it reasonable or not.
"The Court: You better believe it."2
The court deferred ruling on whether CIF guidelines prescribed the applicable standard of
care.
2 At trial, the Rioses counsel asked Kamau how he became a certified athletic
trainer, and he testified he obtained a college degree and took a national examination.
Counsel did not ask Kamau any questions about his certification by NATA or about what
conduct was required or prohibited by any particular NATA standard.
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C. Expert Testimony
The issue of whether NATA or CIF standards prescribed the standard of care came
up again during the trial, immediately before the Rioses called Jerald Hawkins, a certified
athletic trainer and retired director of sports medicine education, to testify as an expert in
the field of athletic training. The trial court confirmed its earlier ruling that NATA
standards did not establish the standard of care in California and instructed the Rioses'
trial counsel not to imply they do. Because Kamau was an athletic trainer certified by
NATA, however, the court granted the Rioses "some leeway" and "intend[ed] to allow
[Hawkins] to testify somewhat to NATA," including its training and certification process
and standards. The Rioses' trial counsel stated that although the "CIF guidelines
specifically say they are not to be a standard of care," he was "comfortable" that CIF
guidelines "help[ed] establish the standard of care." The court thus ruled that Hawkins
could "look to CIF" for the applicable standard of care.
At trial, Hawkins testified that a certified athletic trainer is someone who has
obtained a degree from a college or university with an accredited athletic training
education program and has passed the certification examination administered by NATA's
board of certification. The Rioses' trial counsel did not ask Hawkins any questions about
NATA standards, and he did not testify about them. Hawkins did testify about CIF
guidelines, however. He stated the CIF is the governing body for high school
interscholastic sports in California and had issued a sports medicine bulletin about ankle
injuries. Hawkins testified that according to the bulletin, a player who has pain, limps, or
has lost some range of motion should not return to play. In Hawkins's opinion, Dunn
8
should not have made the decision to return Colter to play after he hurt his ankle because,
under CIF guidelines, that type of decision is a medical decision to be made only by a
physician or a certified athletic trainer with appropriate training and experience.
D. Jury Instructions
The parties' counsel also discussed the standard of care issue with the trial court at
the conference on jury instructions. The Rioses trial counsel asserted that after the
District had notice of Colter's ankle injury, "it's a basic straight negligence standard, and
it is up to the jury to decide whether the caretakers, the adults in charge, exercised
reasonable care in the circumstances." The parties' counsel then discussed several
standard jury instructions with the court.
When the trial court got to CACI No. 401, entitled "Basic Standard of Care,"3 the
Rioses' trial counsel said, "[O]kay, I think that is the standard." The court gave the jury
that instruction. The Rioses' trial counsel also approved the instruction that an "adult
must anticipate the ordinary behavior of children" and "must be more careful when
dealing with children than with other adults," and the court gave that instruction to the
jury. (CACI No. 412.) Although the trial court did not discuss CACI No. 413 with
counsel during the conference on jury instructions, the court gave that instruction,
without objection, and advised the jury that in determining whether the District had met
3 The version of CACI No. 401 given to the jury stated: "Negligence is the failure
to use reasonable care to prevent harm to oneself or to others. [¶] A person can be
negligent by acting or 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. [¶] You must
decide how a reasonably careful person would have acted in [the District's] situation."
9
the standard of care, the jury could "consider customs or practices in the community."
Such customs and practices, the court further advised the jury, were "only factors for [it]
to consider," and did "not necessarily determine what a reasonable person would have
done in [the District's] situation." (Ibid.)
The District's trial counsel also requested a special instruction, based on Dailey v.
Los Angeles Unified Sch. Dist. (1970) 2 Cal.3d 741, 747 (Dailey), that "[t]he standard of
care upon school personnel is that degree of care which a person of ordinary prudence,
charged with comparable duties, would exercise under the same circumstances." The
Rioses' trial counsel agreed this instruction should be given, and the trial court gave it.
The Rioses' trial counsel requested no instructions based on NATA standards or CIF
guidelines or any other special instructions.
E. Verdict, New Trial Motion, and Judgment
After receiving the above-mentioned instructions (among others), hearing the
parties' closing arguments, and deliberating, the jury returned a special verdict form
answering "No" to the question, "Was [the District] negligent?" The Rioses moved for a
new trial on the ground the trial court's erroneous rulings regarding the applicable
standard of care deprived them of a fair trial. (Code Civ. Proc., § 657.) The court denied
the motion and entered judgment in favor of the District and against the Rioses.
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III.
DISCUSSION
A. The Parties' Contentions
The Rioses' "contentions in this appeal are all founded on instructional error,
specifically, the trial court's multiple and contradictory decisions on the standard of care,"
which they claim "deprived the jury of any meaningful standard upon which to measure
the conduct of Kamau and Dunn." The Rioses urge "three fundamental grounds for
reversal": (1) "the trial court erred in failing to apply and instruct the jury on national
standards of care for [c]ertified [a]thletic [t]rainers (like Kamau) and [a]thletic [t]raining
[s]tudents (like Dunn) to measure their conduct"; (2) the trial court "erred in ruling that
CIF standards of care as detailed in its Sports Medicine Handbook only applied to
coaches and could not be used to measure Kamau and Dunn's conduct, because as sports
medicine professionals, they had greater education and training than coaches"; and
(3) these "errors combined to cause great prejudice," in that "it is reasonably probable
that a different outcome would have resulted had the jury been properly instructed on the
standards of care applicable to Kamau and Dunn."
The District counters that the judgment should be affirmed. According to the
District, the Rioses forfeited any claim of instructional error because they agreed to the
general standard of care instructions that were given and "did not offer the trial court a
special jury instruction concerning the standard of care based upon NATA or any other
source." Even if there were no forfeiture, the District contends there was no error
because NATA standards do not prescribe the applicable standard of care in California,
11
and the trial court properly permitted the jury to consider CIF guidelines in determining
whether the District breached the standard of care. Further, the District argues any
instructional error was not prejudicial. Finally, the District asserts the judgment may be
affirmed on the alternative ground that the doctrine of primary assumption of the risk bars
the Rioses' claims, a contention the trial court rejected when it denied the District's
motion for summary judgment.
B. Analysis
As we shall explain, we agree with the District's forfeiture arguments. By
agreeing to the general instructions the trial court gave regarding the standard of care and
not requesting more specific instructions based on NATA standards or offering any
evidence to support the giving of such instructions, the Rioses lost their right to claim on
appeal that the court erred by not instructing the jury in accordance with NATA
standards. The Rioses also may not complain that the trial court erred by refusing to
instruct the jury that CIF guidelines provided the applicable standard of care to be applied
to Kamau and Dunn, because the Rioses proposed no such instructions and the court
allowed CIF guidelines to be used exactly as the Rioses had urged at trial.
1. NATA Standards
The Rioses primary argument on appeal is that NATA standards "established the
relevant standards of care at issue in this case. As such, it was error for the trial court to
refuse to instruct the jury about those NATA standards." At some places in their briefing,
the Rioses suggest the trial court should have given specific instructions based on NATA
standards instead of the general instructions the court actually gave. At other places, they
12
suggest the court should have given special NATA-based instructions in addition to the
general instructions. Either way, the Rioses did not preserve this claim of error.
To the extent the Rioses contend the trial court erred by giving general instructions
on the standard of care (e.g., CACI Nos. 401, 412, 413) instead of more specific
instructions based on NATA standards, they invited the error and may not challenge it on
appeal. "It has been said that the invited error doctrine 'applies "with particular force in
the area of jury instructions . . ." ' [citation], and numerous cases have held that a party
who requests, or acquiesces in, a particular jury instruction cannot appeal the giving of
that instruction." (Transport Ins. Co. v. TIG Ins. Co. (2012) 202 Cal.App.4th 984, 1000;
see also Mayes v. Bryan (2006) 139 Cal.App.4th 1075, 1090 [" 'It is an elementary
principle of appellate law that "[a] party may not complain of the giving of instructions
which he has requested." ' "].) At the conference on jury instructions, the Rioses' trial
counsel stated that this case called for "a basic straight negligence standard, and it is up to
the jury to decide whether the caretakers, the adults in charge, exercised reasonable care
in the circumstances." Counsel then expressly agreed to pattern instructions that advised
the jury it "must decide how a reasonably careful person would have acted in the
[District's] situation," and that an adult "must be more careful when dealing with children
than with other adults." (CACI Nos. 401, 412.) Thus, having agreed to the pattern
13
instructions given by the trial court, the Rioses may not now complain that those
instructions were too general and should not have been given.4
To the extent the Rioses contend the trial court erred by refusing to give specific
instructions based on NATA standards in addition to the general instructions the court
gave on the standard of care, they forfeited the contention. Generally, each party to a
civil case must propose complete instructions in accordance with his theory of the case; if
a party does not do so, the court has no duty to instruct on its own motion. (Pool v. City
of Oakland (1986) 42 Cal.3d 1051, 1067 (Pool).) "In order to complain of failure to
instruct on a particular issue the aggrieved party must request the specific proper
instructions." (Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 335 (Hyatt).) Thus,
when a court gives a legally correct instruction, but a party complains it is too general,
lacks clarity, or is incomplete, the party " ' "must request [an] additional or qualifying
instruction in order to have the error reviewed." ' " (Metcalf v. County of San Joaquin
(2008) 42 Cal.4th 1121, 1131, italics omitted (Metcalf).) In sum, if the law applicable to
the facts of a case is stated correctly in a general charge to the jury, a party may not, in
the absence of a request for a more specific instruction, complain that a more specific
4 The District points out that the Rioses did not object to the pattern instructions.
That is true but inconsequential. No objection is required to preserve a claim that an
instruction was erroneously given because instructions are deemed excepted to. (Code
Civ. Proc., § 647; Lund v. San Joaquin Valley Railroad (2003) 31 Cal.4th 1, 7; Ventura v.
ABM Industries Inc. (2012) 212 Cal.App.4th 258, 271.) Nevertheless, where, as here, "a
party affirmatively agrees to an instruction, we do not ignore that fact and deem an
objection." (Ventura, at p. 271.)
14
instruction was not given. (White v. Inbound Aviation (1999) 69 Cal.App.4th 910, 925
(White).)
Here, the Rioses do not contend that any of the standard of care instructions given
by the trial court was legally incorrect.5 Instead, they complain the "garden-variety
negligence standard" articulated in the instructions given by the court "failed to provide
[the jury] with any meaningful guidance on how to evaluate Kamau's or Dunn's conduct."
Although the instructions the trial court gave the jury were stated in highly generalized
terms that could apply to many different situations, "[i]n most cases, courts have fixed no
standard of care for tort liability more precise than that of a reasonably prudent person
under like circumstances." (Ramirez v. Plough, Inc. (1993) 6 Cal.4th 539, 546.) If the
Rioses believed, as they claim on appeal, that the instructions given by the court were too
general and that special instructions based on NATA standards should have been given in
5 The standard of care instructions given by the trial court correctly stated the law.
In a case where, as here, a student and his parents sued a school district for personal
injuries the student sustained during a football game played at school, our Supreme Court
held: "The standard of care required of an officer or an employee of a public school is
that which a person of ordinary prudence, charged with his duties, would exercise under
the same circumstances." (Pirkle v. Oakdale Union etc. School Dist. (1953) 40 Cal.2d
207, 210.) The Supreme Court cited Pirkle for its statement of the standard of care in
Dailey, supra, 2 Cal.3d at page 747. The trial court therefore correctly gave both CACI
No. 401 (see fn. 3, ante) and the District's special instruction based on Dailey. The court
also correctly gave CACI No. 412, which told the jury adults must exercise greater
caution when dealing with children than with other adults. (See, e.g., Schwartz v. Helms
Bakery, Ltd. (1967) 67 Cal.2d 232, 240; Joyce v. Simi Valley Unified School Dist. (2003)
110 Cal.App.4th 292, 304 & fn. 8.) Finally, the court correctly instructed the jury,
pursuant to CACI No. 413, that it could consider, but was not bound by, evidence of
customs or practices in deciding whether the District breached the standard of care. (See,
e.g., Morgan v. Stubblefield (1972) 6 Cal.3d 606, 621, fn. 9 (Morgan); Pauly v. King
(1955) 44 Cal.2d 649, 655; Varas v. Barco Mfg. Co. (1962) 205 Cal.App.2d 246, 258.)
15
light of Kamau's and Dunn's superior knowledge and training, then the Rioses should
have requested such special instructions. (Metcalf, supra, 42 Cal.4th at p. 1131; White,
supra, 69 Cal.App.4th at p. 925; Hyatt, supra, 79 Cal.App.3d at p. 335.) But they did
not, and their failure to do so "means [they] may not argue on appeal the trial court
should have instructed differently." (Metcalf, at p. 1131; see also Anderson v. Jones
(1968) 266 Cal.App.2d 284, 293 (Anderson) [plaintiff's failure to submit and request
special instruction on standard of care "precludes him from raising the question on
appeal"]; Newman v. Los Angeles Transit Lines (1953) 120 Cal.App.2d 685, 698
(Newman) ["the failure of a trial court to give an instruction may not be reviewed on
appeal unless the record specifies the instruction and shows that it was requested and
refused"].)
The Rioses argue they did not forfeit their appellate claim of error. They contend
they "diligently" urged the trial court to adopt NATA standards as the standard of care for
this case, but the court "prohibited [them] from arguing that NATA could be relied upon
in any fashion to form the applicable standard of care." We are not persuaded.
One problem with the Rioses' argument is that they never submitted any NATA
standards to the trial court. Although they asked the court to adopt NATA standards as
the standard of care for this case, the only information about the substance of those
standards contained in the record consists of unsupported assertions that the Rioses' trial
counsel made to the trial court in briefing and oral argument. (See pt. II.B., ante.) Such
assertions are not evidence of what the standards actually prescribe. (See Davenport v.
Blue Cross of California (1997) 52 Cal.App.4th 435, 454 ["unsworn averments in a
16
memorandum of law prepared by counsel do not constitute evidence"].) The Rioses'
suggestion at oral argument that their trial counsel's assertions constituted a valid offer of
proof regarding NATA standards is not persuasive. An offer of proof " 'must set forth the
actual evidence to be produced and not merely the facts or issues to be addressed and
argued.' " (Bowman v. Wyatt (2010) 186 Cal.App.4th 286, 329.) Where, as here, the
offer of proof concerns documents, those documents must be submitted to the trial court
for consideration and made part of the appellate record. (People v. Rodrigues (1994) 8
Cal.4th 1060, 1176-1177; Magic Kitchen LLC v. Good Things Internat., Ltd. (2007) 153
Cal.App.4th 1144, 1164-1165.) The Rioses therefore did not make a valid offer of proof,
because they neither submitted any NATA standards to the trial court nor included any of
them in the record on appeal.
In their briefing on appeal, the Rioses continue to refer to the substance of NATA
standards, but they cite nothing in support except the bare assertions their counsel made
in the trial court. Of course, "allegations of a brief are not evidence." (In re Marriage of
Duris & Urbany (2011) 193 Cal.App.4th 510, 515].) The Rioses have not asked us to
augment the record or otherwise sought to bring any specific NATA standards to our
attention. Such deficiencies in the record effectively prevent us from reviewing the trial
court's ruling regarding the applicability of NATA standards and therefore result in a
forfeiture of the issue. (See, e.g., Hotels Nevada, LLC v. L.A. Pacific Center, Inc. (2012)
203 Cal.App.4th 336, 348 ["appellant has forfeited any challenge to the order . . . due to
his failure to provide an adequate record"]; Estrada v. Ramirez (1999) 71 Cal.App.4th
618, 620, fn. 1 (Estrada) [failure to provide adequate record "precludes an adequate
17
review and results in affirmance of the trial court's determination"]; Kendall v. Barker
(1988) 197 Cal.App.3d 619, 625 [factual statements in appellate brief not contained in
record will be disregarded on appeal].)
Another problem with the Rioses' argument against forfeiture is that it proceeds
from the false premise that the trial court's in limine ruling "foreclosed [them] from
further arguing that NATA regulations should be the applicable standard of care, or from
questioning any of their witnesses regarding NATA." As we noted earlier, the court
ruled in limine that (1) the Rioses could ask Kamau about his NATA certification, what
he was taught NATA standards required, and why those standards were adopted; and
(2) the jury could consider that testimony in deciding whether the District acted
reasonably in treating Colter's ankle injury. (See pt. II.B., ante.) The court later ruled
Hawkins could testify about NATA training and certification insofar as it was pertinent to
Kamau's background. (See pt. II.C., ante.) Despite these favorable rulings, the Rioses'
trial counsel did not ask either Kamau or Hawkins any questions about the requirements
of any particular NATA standards. Had counsel done so, he might have obtained helpful
testimony about the custom or practice among certified athletic trainers regarding
assessment and treatment of the ankle injury Colter suffered. The Rioses then might have
been entitled to a special instruction directing the jury to consider NATA standards,
because a "party is entitled upon request to correct, nonargumentative instructions on
every theory of the case advanced by him which is supported by substantial evidence"
(Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572), and "proof of practice or
custom is admissible to assist the trier of fact in determining what constitutes due care"
18
(Morgan, supra, 6 Cal.3d at p. 621, fn. 9). But, without testimony from either Kamau or
Hawkins about what NATA standards required under the circumstances of this case (or at
least an offer of proof on that subject), the Rioses may not complain on appeal that the
trial court erred by refusing to instruct the jury regarding those standards. (See Scott v.
Rayhrer (2010) 185 Cal.App.4th 1535, 1539, 1541-1542 [party not entitled to instruction
unsupported by substantial evidence]; Shaw v. County of Santa Cruz (2008) 170
Cal.App.4th 229, 282 (Shaw) [failure to make offer of proof precludes consideration on
appeal of allegedly erroneous exclusion of evidence]; Boeken v. Philip Morris, Inc.
(2005) 127 Cal.App.4th 1640, 1672 [party not entitled to instructions on theory not
advanced].)
The Rioses contend the trial court prevented them from eliciting testimony from
Kamau and Hawkins that would have supported NATA-based standard of care
instructions. We reject these contentions as untimely and factually unsupported.
As to Hawkins, the Rioses argued for the first time in their reply brief that "[b]ut
for the trial court's prior rulings, [Hawkins] would have testified as to the creation of the
NATA regulations, their importance, [and] their adherence by all certified athletic
trainers (like Kamau) and athletic training students (like Dunn). He would have testified
further that NATA ethical rules prohibit its certified members from working beyond the
confines of their scope of practice, which explicitly prohibited Kamau from delegating
return-to-play decisions to Dunn." This argument comes too late, for we ordinarily do
not consider arguments that are raised for the first time in an appellant's reply brief.
(Hawran v. Hixson (2012) 209 Cal.App.4th 256, 268; American Drug Stores, Inc. v.
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Stroh (1992) 10 Cal.App.4th 1446, 1453.) The argument also has no factual basis. In
violation of appellate briefing rules, the Rioses cite nothing in the record to support their
assertion Hawkins would have given the testimony described above. (Cal. Rules of
Court, rule 8.204(a)(1)(C); Duarte, supra, 72 Cal.App.4th at p. 856.) Our own review of
the record revealed no support for the Rioses' belated argument. While Hawkins was
testifying before the jury, the Rioses' trial counsel asked no questions that would have
elicited the testimony they now claim he would have given; counsel requested no hearing
outside the presence of the jury regarding the admissibility of such testimony (Evid.
Code, § 402, subd. (b)); and counsel made no offer of proof that Hawkins would have
given such testimony (id., § 354, subd. (a); Shaw, supra, 170 Cal.App.4th at p. 282). The
Rioses thus failed to preserve this argument for appeal.
As to Kamau, the Rioses asserted for the first time at oral argument that their trial
counsel attempted to ask him questions about his NATA certification and knowledge of
NATA standards, but the trial court sustained the District's objections and, in an
unreported sidebar conference, reversed its in limine ruling and precluded trial counsel
from pursuing that line of questioning. This argument is procedurally barred because
points first raised at oral argument are untimely and need not be considered. (California
Redevelopment Assn. v. Matosantos (2013) 212 Cal.App.4th 1457, 1500.) In addition,
the Rioses have not met their "burden of showing reversible error by an adequate record."
(Ballard v. Uribe (1986) 41 Cal.3d 564, 574.) The reporter's transcript contains an
inquiry into Kamau's background during which the Rioses' trial counsel asked Kamau
several questions about the relationship between his college education and his "purpose"
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in becoming a certified athletic trainer and the trial court sustained the District's
relevancy objections. The Rioses' trial counsel requested a sidebar conference, which
was not reported and after which the court did not state on the record what was discussed
or what rulings were made. The Rioses' counsel then asked additional questions about
Kamau's education and experience as a student athletic trainer, to which the District did
not object. On this record, we cannot infer the trial court precluded all inquiry into
Kamau's NATA certification or knowledge of NATA standards. "Before an appellate
court can knowledgeably rule upon an evidentiary issue presented, it must have an
adequate record before it to determine if an error was made." (In re Mark C. (1992) 7
Cal.App.4th 433, 445.) When the challenged ruling is made in an unreported sidebar
conference, we require a settled statement or some indication on the record as to what
happened in the conference. (People v. Pinholster (1992) 1 Cal.4th 865, 931, 937;
People v. Tuggles (2009) 179 Cal.App.4th 339, 356.) Here, we have neither. "Because
of the uncertainty in the record concerning the nature of the proffered evidence, we
cannot say that the [trial] court erred in excluding it." (In re Mark C., at p. 445.) "We
reject [the Rioses'] claim, therefore, because they failed to provide this court with a
record adequate to evaluate [their] contention." (Aguilar v. Avis Rent A Car System, Inc.
(1999) 21 Cal.4th 121, 132.)
2. CIF Guidelines
The Rioses also argue the trial court erred when it ruled the CIF guidelines did not
apply to Kamau and Dunn but only to coaches, and thus refused to instruct the jury that
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those guidelines established the applicable standard of care. This argument fails for at
least three reasons.
First, the Rioses' argument proceeds from the false premise that the trial court
actually "rul[ed] that the CIF standards of care as detailed in its Sports Medicine
Handbook only applied to coaches and could not be used to measure Kamau['s] and
Dunn's conduct, because as sports medicine professionals, they had greater education and
training than coaches." Although the Rioses cite several pages of the reporter's transcript
as purported support for this argument, the cited pages contain no "ruling" that the CIF
guidelines did not apply to Kamau or Dunn. On some of the cited pages, a former
District employee in charge of athletics testified that the CIF handbook was "a guideline
for best practices" for coaches and others "involved in running a CIF-type athletic event";
and if a trainer or some other person with more knowledge than a coach was present, the
trainer or the other person, not the coach, would decide whether an injured player could
return to play. On another page cited by the Rioses, the District's trial counsel asserted a
certain CIF sports medicine bulletin applied to coaches only; the Rioses' trial counsel
disagreed; and the court stated, "That will be argument to the jury." The court therefore
did not rule that CIF guidelines could not be used to determine whether Kamau or Dunn
met the standard of care. Rather, the court admitted the guidelines into evidence;
permitted the Rioses' counsel to argue that Kamau, Dunn, and the coaches violated the
guidelines; and left it to the jury to decide whether the District was negligent based on
those purported violations.
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Second, the Rioses may not complain on appeal that the trial court refused to
instruct the jury that CIF guidelines prescribed the applicable standard of care because at
trial they repeatedly took the opposite position. During in limine motions, the Rioses
argued CIF guidelines did not establish the standard of care because the CIF Sports
Medicine Handbook expressly stated that its " 'guidelines' are not meant to provide a
'standard of care.' " During trial, the Rioses argued that CIF guidelines merely "help[ed]
establish the standard of care" and that their expert witness (Hawkins) could "look to"
them in testifying about whether the District met the standard of care. (Italics added.)
The trial court agreed; permitted Hawkins to testify extensively as to how the District
violated CIF guidelines in evaluating and treating Colter; admitted the guidelines into
evidence; and instructed the jury it could consider, but was not bound by, custom and
practice in determining whether the District was negligent. Furthermore, the Rioses' trial
counsel commented on several CIF guidelines during closing arguments and told the jury
they were "the basic safety rules that [it had] to analyze . . . to decide whether or not [the
District] acted negligently." Having obtained rulings from the trial court that allowed the
Rioses to use CIF guidelines exactly as they had requested, they are "estopped from
asserting [those rulings] as grounds for reversal." (Lockaway Storage v. County of
Alameda (2013) 216 Cal.App.4th 161, 181; see also Mesecher v. County of San Diego
(1992) 9 Cal.App.4th 1677, 1686 ["where a deliberate trial strategy results in an outcome
disappointing to the advocate, the lawyer may not use that tactical decision as the basis to
claim prejudicial error"].)
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Third, the Rioses forfeited their appellate claim that the trial court erred by not
giving the jury standard of care instructions based on CIF guidelines. As we explained
earlier, a civil litigant who believes pattern instructions are too general must request more
specific instructions in order to preserve a claim of instructional error. (Metcalf, supra,42 Cal.4th at p. 1131; Pool, supra, 42 Cal.3d at p. 1067; Hyatt, supra, 79 Cal.App.3d at
p. 335.) Here, although CIF guidelines were admitted into evidence and Hawkins
testified extensively about the District's multiple violations of them, the Rioses never
requested a special instruction incorporating CIF guidelines into the standard of care or
expressly directing the jury to consider those guidelines in determining whether the
District was negligent. They therefore forfeited their claim the trial court erred by not
giving such instructions. (Metcalf, at p. 1131; White, supra, 69 Cal.App.4th at p. 925;
Anderson, supra, 266 Cal.App.2d at p. 293; Newman, supra, 120 Cal.App.2d at p. 698.)
In sum, we hold the Rioses forfeited their appellate claims that the trial court erred
by not specifically instructing the jury that NATA standards or CIF guidelines established
the standard of care for this case. Given that holding, we need not consider the parties'
competing contentions about whether the trial court committed instructional error or
whether any such error was prejudicial. (See, e.g., AmeriGas Propane, L.P. v. Landstar
Ranger, Inc. (2010) 184 Cal.App.4th 981, 1001, fn. 4 [appellate court may pass forfeited
contention without considering merits]; People ex rel. Reisig v. Acuna (2010) 182
Cal.App.4th 866, 879 [same].) We also need not consider the alternative ground for
affirmance urged by the District, namely, that the doctrine of primary assumption of the
risk bars the Rioses' claims. (See, e.g., Lindemann v. Hume (2012) 204 Cal.App.4th 556,
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563, fn. 7 [in light of decision to affirm challenged order on one ground, appellate court
did not address alternate ground urged by respondent].)
DISPOSITION
The judgment is affirmed.
IRION, J.
WE CONCUR:
MCCONNELL, P. J.
O'ROURKE, J.
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