Vazquez v. Los Angeles United School Dist. CA2/1 ( 2023 )

Filed 10/31/23 Vazquez v. Los Angeles United School Dist. CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
JESUS MARTIN VAZQUEZ, B320133
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC599968)
v.
LOS ANGELES UNIFIED SCHOOL
DISTRICT,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Ann H. Park, Judge. Affirmed.
Rodriguez & Associates, Daniel Rodriguez, Chantal A.
Trujillo; Biren Law Group, Matthew B. F. Biren, Andrew G. O.
Biren; The Law Firm of Joseph H. Low IV, Joseph H. Low IV;
Esner, Chang & Boyer, Andrew N. Chang, Kevin K. Nguyen for
Plaintiff and Appellant.
Vanderford & Ruiz, Rodolfo F. Ruiz, Ty S. Vanderford and
Mark R. Irvine for Defendant and Respondent.
___________________________________
Jesus Martin Vazquez sued the Los Angeles Unified School
District (LAUSD) for negligence. He appeals from a judgment
entered after the trial court granted Vazquez’s own motion for
nonsuit, contending the court’s erroneous pretrial evidentiary
rulings deprived him of the ability to prove his case. We conclude
the rulings were within the court’s discretion, and thus affirm.
BACKGROUND
Because Vazquez appeals from a judgment entered after
nonsuit, we accept the alleged facts and offers of proof as true.
A. Vazquez was Injured While Attending Class
Vazquez was a student within the LAUSD throughout his
elementary and secondary schooling. During that time, he was
assessed, as documented in his Individualized Education Plan
(IEP), as having severe cognitive impairments and auditory and
visual processing deficits that precluded him from understanding
instructions unless they were provided multiple times in a quiet,
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unchaotic setting.
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“The IEP ‘a personalized plan to meet all of the child’s
educational needs,’ is ‘the primary vehicle for providing each
child with’ a [free appropriate public education]. [Citations.] It is
put together by the IEP Team, ‘a group of school officials,
teachers, and parents.’ [Citations.] ‘[T]he IEP documents the
child’s current “levels of academic achievement,” specifies
“measurable annual goals” for how she can “make progress in the
general education curriculum,” and lists the “special education
and related services” to be provided so that she can “advance
appropriately toward [those] goals.” ’ [Citations.] The IEP Team
must consider ‘the strengths of the child’; ‘the concerns of the
parents for enhancing the education of their child’; ‘the results of
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Vazquez’s 2007 (sixth-grade) IEP, which he also calls his
“high school” IEP, created when he had just turned 12 years old,
noted that he had visual and auditory “processing” impairments
which affected his “ability to follow a teacher-directed lesson.”
He was nevertheless expected to meet grade level standards with
“[s]ome possible accommodations and modifications [which] may
include . . . small group instruction, use of visuals and graphic
organizers, extended time to complete assignments, clear
instructions and repetition, written instructions provided to the
student, plus student restatement back to the teacher, provide
periodic checks with students on long term assignments and
preferential seating.” The IEP also stated that Vazquez
“demonstrates knowledge of right and wrong decisions and
appears to know the difference between appropriate and
inappropriate behaviors.”
In 2015, Vazquez, now age 20, attended Richard N.
Slawson Occupational Center (Slawson), an adult vocational
school operated by LAUSD, studying automotive repair.
The job description for teachers at Slawson stated that an
adult school teacher “[t]eaches classes for adults and concurrently
enrolled students in assigned academic subjects . . . at a rate and
level commensurate with established expected student
outcomes,” and “[d]iagnoses the needs of individual students;
determines instructional objectives which will best prepare
the initial evaluation or most recent evaluation of the child’; and
‘the academic, developmental, and functional needs of the child.’
[Citation.] The IEP must be in effect at the beginning of each
school year and the ‘local educational agency’ must ensure that
the IEP Team reviews the IEP annually.” (Capistrano Unified
Sch. Dist. v. S.W. (9th Cir. 2021) 21 F.4th 1125, 1129-1130.)
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students to meet their identified needs; uses appropriate
assessment techniques to ascertain the degree of student success
in achieving objectives.”
On March 9, 2015, in “Auto Tech: Brakes,” a course taught
by Seyed Hossein Saidi, who had taught Vazquez in two prior
classes, the students repaired all-terrain vehicles (ATVs) in a
garage classroom setting punctuated with talking, laughing,
hammering, and power tool sounds.
After Vazquez repaired an ATV, Saidi gave him the keys
and authorized him to test drive the vehicle in the school parking
lot, with no helmet or safety equipment.
Vazquez fell off the ATV during the test drive and struck
his head on the pavement, suffering serious injuries.
B. Complaint
Vazquez sued LAUSD, alleging one cause of action for
negligence, divided into approximately three dozen counts. For
example, he alleged Saidi was negligent “in at least the following
ways.” He:
1. Returned to work after an accident in which he
suffered a head injury;
2. Failed to give Vazquez written instructions and/or
repetitive oral instructions, individually or in a small group,
regarding safe auto shop practices;
3. Failed to accommodate Vazquez’s auditory processing
disability;
4. Allowed an LAUSD employee to bring his ATVs to
the class for repair;
5. Failed to instruct students on safe ATV repair and
test driving;
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6. Allowed students to test drive ATVs on pavement
without safety equipment;
7. Gave Vazquez and/or other students keys to the
ATVs without authorizing them to test drive the vehicles;
8. Left the keys where students could access them;
9. Allowed students to test drive ATVs without
instructing them how to do so safely;
10. Failed to give Vazquez appropriate written and
repeated oral instructions about test driving the ATVs;
11. Failed to give Vazquez appropriate written and
repeated oral instructions about not driving ATVs without
permission;
12. Failed to supervise students so that they would not
take the ATVs without permission;
13. Failed to prevent unauthorized test driving;
14. Failed to determine whether Vazquez had a driver’s
license;
15. Failed to determine whether Vazquez was capable of
safely operating an ATV;
16. Failed to determine whether the ATV had been
properly repaired;
17. Failed to determine whether the ATV was safe to
operate;
18. Failed to maintain a safe learning environment for
Vazquez;
19. Failed to prevent a LAUSD employee and owner of
the offending ATV from removing it from the campus after the
incident;
20. Failed to refrain from other negligent conduct that
was as yet undiscovered.
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Vazquez alleged that LAUSD administrators, security
guards, teachers other than Saidi, clerical staff and other
employees were negligent “in at least the following ways.” They:
1. Allowed Saidi to return to work after his accident
without evaluating whether he had the physical and mental
fitness to return to teaching the students;
2. Allowed an LAUSD employee to bring his ATVs to
the Auto Shop for repair;
3. Allowed Saidi to teach students to repair ATVs with
no reason to believe he instructed students on safe practices do
so;
4. Allowed Saidi to permit students to drive ATVs with
no reason to believe he instructed students on safe practices do
so;
5. Failed to provide helmets and other safety
equipment;
6. Failed to prevent students from test driving ATVs
without helmets and protective clothing;
7. Failed to learn about Vazquez’s learning disability
from his LAUSD records;
8. Failed to otherwise recognize his learning disability;
9. Failed to accommodate his disability;
10. Failed to instruct Saidi on accommodating Vazquez’s
disability;
11. Failed to ensure Saidi accommodated Vazquez’s
disability;
12. Failed to maintain a safe learning environment for
Vazquez;
13. Failed to preserve evidence related to the accident;
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14. Failed to prevent removal of the offending ATV from
campus;
15. Failed to preserve skid marks in the parking lot;
16. Failed to refrain from other negligent conduct that
was as yet undiscovered.
C. Summary Judgment
LAUSD moved for summary judgment on several grounds,
only one of which is pertinent to this appeal.
As pertinent here, LAUSD moved for summary judgment
on the ground that it owed no duty to provide Vazquez with
“special education accommodations[,] because [he] graduated
high school with a diploma and was an adult student who never
requested accommodations or disclosed a learning disability.”
LAUSD argued, “LAUSD anticipates Plaintiff will try to
argue LAUSD was aware of Plaintiff’s need for accommodations
because the Occupational Center had Plaintiff’s academic records
from elementary and secondary school, which contained
Plaintiff’s accommodations for his prior learning disability.
However, the Occupational Center did not have Plaintiff’s
academic records and thus had no reason to know of Plaintiff’s
learning disability and potential need for accommodations.
[Citations to the record.] It makes no sense that the
Occupational Center would have the elementary and secondary
academic records of each of its adult students because students
can enroll in courses at any age and students may not have
attended school in many years. These issues do not create a
triable issue of material fact for the purposes of any
accommodations LAUSD owed to Plaintiff as an adult student at
the Occupational Center.”
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In its separate statement, LAUSD asserted that the
following was undisputed: (1) “Plaintiff’s final IEP (and any
accommodations provided to Plaintiff within the IEP) expired on
June 10, 2013, after Plaintiff graduated from high school with a
diploma”; (2) “Plaintiff did not disclose to any employee at the
Occupational Center that he had any disability [and] never
requested accommodations for any disabilities”; (3) “Plaintiff thus
has no actionable claim against LAUSD premised on conduct
concerning his disability status because nothing LAUSD did or
failed to do prevented Plaintiff from disclosing his disability or
requesting accommodations.”
Vazquez offered no opposition to the motion on this ground,
and agreed in his separate statement that issues related to his
IEP, disability status, and failure to request accommodations
were undisputed. He stated this theory was irrelevant to his
negligence claim.
1. Ruling Limiting Vazquez’s Trial Theories
The trial court at first denied summary adjudication as to
all bases of negligence except those that Vazquez expressly
abandoned, including his claim that LAUSD owed a duty to
accommodate his high school learning disability. As to that
claim, the court initially granted summary adjudication.
However, in a later nunc pro tunc order, the court denied
the motion even as to the abandoned theory because it was not
dispositive of a cause of action or issue of duty. The court stated,
“Because Plaintiff advised the court in his Opposition papers that
‘[t]he Court can ignore all of these arguments because Vazquez’s
negligence claim is not based on any of these theories . . . they do
not form the basis of his negligence claim,’ . . . Plaintiff is
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judicially estopped from raising any of these theories at trial to
support his negligence claim.”
D. Trial
In his trial brief, Vazquez argued he would show that Saidi
should have observed his cognitive limitations for himself and
taken steps to mitigate their impact. This was so, Vazquez
argued, because Saidi had taught him in two prior classes, and
his cognitive limitations “were so profound that any reasonably
trained teacher would inevitably recognize them.” Yet Saidi
“negligently failed to provide safety instructions to [Vazquez] in a
manner that would increase the potential that he would
effectively process and understand them.”
1. Motions In Limine
a. Motion
At trial, Vazquez proposed to offer his sixth-grade/high
school IEP.
LAUSD moved in limine to exclude this evidence from the
liability phase of trial (but not the damages phase), because it
was relevant only to issues “that Plaintiff has stated are
irrelevant to Plaintiff’s single cause of action for Negligence,
including issues relating to special education . . . .” LAUSD also
moved to exclude argument or references to Vazquez’s “false
assertion that [the school] had or should have had, Plaintiff’s K-
12 school records.”
b. Opposition
In opposition to the motions, Vazquez reiterated that he did
“not intend to argue the legal theory that LAUSD breached a
duty to provide accommodations to Plaintiff because he was a
special education student or per his High School IEP; the theory
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LAUSD attacked in its MSJ. [¶] As for Plaintiff’s special
education history, however, that evidence . . . is directly
relevant to the issues in this case and there is no basis for
excluding it from evidence. The Court orders on the MSJ only
barred legal theories, not facts.” (Boldface omitted.)
Vazquez argued this concession did not foreclose his use of
the same evidence to prove “his preexisting condition and
cognitive deficiencies,” which were relevant to “liability related
issues including . . . [his] ability or lack thereof to perceive and
follow instructions” and his capacity to “appreciat[e] a risk
involved in test driving the ATV and assum[e] that risk, as
LAUSD argues he did.”
For instance, Vazquez argued, his K-12 records were
relevant to prove that:
(1) “LAUSD should have recognized [his] limitations and
taken appropriate steps to make sure that his participation in
class activities—especially related to working on and test driving
the ATVs—would be safe;”
(2) “[I]n light of [his] cognitive deficits he should not have
been allowed near, let alone with, the ATV”;
(3) he “should have been provided instructions directly in a
small setting”;
(4) “Saidi had an obligation imposed on him by school policy
to diagnose the individual needs of his students” “pursuant to the
job description for adult teachers.” Vazquez argued that his K-12
special education records were relevant to the district’s “self-
imposed standards and rules” contained in this job description,
which stated a teacher was expected to “[d]iagnos[e] the needs of
individual students.” Vazquez argued this constituted LAUSD’s
“admission of the applicable standard of care”;
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(5) “Saidi should have checked Plaintiff’s academic records,
digested the information in the IEP, and instructed Plaintiff in a
manner consistent with the IEP.”
“Thus,” Vazquez concluded, “even though evidence is not
admissible regarding a duty to accommodate Plaintiff per his
High School IEP, it is admissible regarding Plaintiff’s negligence
theory.”
c. Ruling
The trial court ruled that Vazquez’s K-12 school records
were irrelevant because “no special duty to accommodate was
owed to the Plaintiff,” and records from when he was age 12
would not be probative of his level of comprehension at age 20 in
an adult school context. The court also ruled under Evidence
Code section 352 that Vazquez’s early school records would result
in confusion and undue consumption of time. The court barred
reference to Vazquez as a “special needs student,” because in the
context of an adult school auto repair course such a reference
would “confuse the jury and ha[ve] a tendency to create issues of
prejudice and confusion.”
Regarding Vazquez’s proposed experts, the court found that
an expert could testify generally about the “proper supervision of
students and proper evaluation of students that are being
taught,” but any opinion about Vazquez’s diminished ability to
understand instruction could be grounded only on a recent
evaluation, not on his K-12 performance, because learning from
books in a classroom as a child was not comparable to learning
practical skills in an automotive shop as an adult.
Finally, the court found that Vazquez’s interpretation of
the word “diagnose” in LAUSD’s teacher job description to mean
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render a mental diagnosis was not reasonable in the context of an
automotive repair course.
2. Nonsuit
In light of the court’s rulings, Vazquez informed the court
he would consent to nonsuit before opening statements in order
to avoid wasting time and resources. LAUSD stated it was also
considering moving for nonsuit based on the court’s rulings.
The court encouraged Vazquez to proceed on his other
theories, and with his other evidence, but he refused.
Accordingly, the court granted nonsuit and entered judgment for
LAUSD.
Vazquez appeals.
DISCUSSION
A judgment entered pursuant to a stipulation is not
ordinarily appealable. (Tudor Ranches, Inc. v. State Comp. Ins.
Fund (1998) 65 Cal.App.4th 1422, 1428.) However, such a
judgment is appealable “[i]f consent was merely given to facilitate
an appeal following adverse determination of a critical issue.”
(Building Industry Assn. v. City of Camarillo (1986) 41 Cal.3d
810, 817.)
Vazquez contends the judgment must be reversed because
nonsuit was the inevitable result of the court’s erroneous
exclusion of evidence relating to his K-12 records. We conclude
that in light of Vazquez’s concession made to avoid summary
judgment, the court acted within its discretion in excluding the
evidence.
A. Legal Principles
A motion for nonsuit tests the legal sufficiency of a
plaintiff’s evidence, operating, in effect, as a demurrer to the
evidence. The motion lies when the plaintiff’s evidence, taken as
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true and construed most strongly in favor of the plaintiff, entitles
the plaintiff to no relief under any theory. (Castaneda v. Olsher
(2007) 41 Cal.4th 1205, 1214-1215.)
“ ‘Where there is no evidence to review because the trial
court excluded it, we review the trial court’s evidentiary rulings
to determine if the evidence was properly excluded.’ ” (Stonegate
Homeowners Assn. v. Staben (2006) 144 Cal.App.4th 740, 746.)
We review evidentiary rulings in connection with a motion
in limine for abuse of discretion. (Condon-Johnson & Associates,
Inc. v. Sacramento Municipal Utility District (2007) 149
Cal.App.4th 1384, 1392.)
B. Application
Here, to avoid summary judgment Vazquez agreed not to
claim LAUSD failed to provide him with “special education
accommodations” for the learning disability reflected in his IEP.
Those IEP were therefore immaterial. (See Gantman v. United
Pac. Ins. Co. (1991) 232 Cal.App.3d 1560, 1569 [“ ‘materiality
depends on the issues in the case’ ”].)
Vazquez acknowledges that he no longer claimed that
special accommodations were needed for his high school disability
but argues evidence of his IEP was relevant to show breach of
duty and lack of comparative fault, and to establish the
foundation for his experts’ testimony.
1. Evidence of Breach of Duty
Vazquez argues LAUSD’s teacher job description obligated
a teacher to keep students from engaging in conduct that might
endanger the safety of themselves or others, and his IEP were
relevant to prove that Saidi “negligently failed to diagnose the
needs of the individual student, as required by LAUSD’s rules,”
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and “adjust his interaction with the student accordingly.” We
disagree for several reasons.
a. The Job Description Sets Forth no Negligence
Duty
First, we discern no obligation arising from the job
description itself to “diagnose” Vazquez’s cognitive impairment.
(See Gov. Code, § 855.6 [“neither a public entity nor a public
employee acting within the scope of his employment is liable for
injury caused by the failure to make a . . . mental
examination . . . of any person for the purpose of determining
whether such person has . . . mental condition that would
constitute a hazard to the health or safety of himself or others”].)
Second, failure to comply with LAUSD’s teacher job
description does not constitute negligence in a personal injury
action.
LAUSD’s teacher job description stated that an adult school
teacher “[t]eaches classes for adults and concurrently enrolled
students in assigned academic subjects . . . at a rate and level
commensurate with established expected student outcomes,” and
“[d]iagnoses the needs of individual students; determines
instructional objectives which will best prepare students to meet
their identified needs; uses appropriate assessment techniques to
ascertain the degree of student success in achieving objectives.”
Nothing in the description sets forth a standard of care (as
opposed, for example, to a pedagogical standard) or suggests the
purpose was to ensure student safety. On the contrary, the
obvious purpose was to establish standards for meeting students’
pedagogical needs.
Vazquez relies on Dillenbeck v. City of Los Angeles (1968)
69 Cal.2d 472 (Dillenbeck) for the proposition that negligence
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may be proven by demonstrating that a defendant failed to
comply with its self-imposed rules.
Dillenbeck offers no assistance. There, the plaintiffs sued
the City of Los Angeles for wrongful death after the decedent died
in a car collision between himself and a Los Angeles Police
Department (LAPD) officer. Our Supreme Court held that LAPD
safety bulletins regarding operation of emergency vehicles were
admissible as an implied admission of the applicable standard of
care, and the City’s negligence was established by evidence that
the LAPD failed to follow its own safety rules. (Dillenbeck, supra,
69 Cal.2d at p. 478.)
Here, nothing suggests LAUSD’s teacher job description
sets forth safety rules.
b. The IEP was Immaterial to any Current Duty
The third reason we reject the argument is that even if the
LAUSD job description set forth a safety rule that obligated Saidi
to diagnose Vazquez’s learning disability to avoid personal injury,
no reason exists why he would need to consult his IEP to do so.
On the contrary, Vazquez expressly abandoned any claim that
Saidi should have accommodated his disability pursuant to the
IEP, and argued in his trial brief that Saidi, who had had
Vazquez in two prior classes, should have recognized his obvious
and “profound” cognitive limitations.
Although Vazquez repeatedly claims in his appellate
briefing that he absolutely needed the IEP to establish his
learning disability, he conspicuously fails to explain why he could
not have established that disability with more recent evidence,
such as interviews of teachers and family members, as the trial
court repeatedly invited him to do.
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c. The IEP Would Lead to Jury Confusion
Finally, even if the LAUSD job description set forth a
safety rule that obligated Saidi to diagnose Vazquez’s learning
disability in consultation with his IEP, the trial court could
reasonably conclude that injecting the IEP into the case would
confuse the jury as to whether Vazquez’s abandoned theory had
been resurrected.
Relevant evidence should be excluded if the trial court, “in
its discretion[, determines that] its probative value is
substantially outweighed by the probability that its admission
will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or
of misleading the jury.” (Evid. Code, § 352.)
“[T]he trial court enjoys broad discretion in assessing
whether the probative value of particular evidence is outweighed
by concerns of undue prejudice, confusion or consumption of time.
[Citation.] . . . [I]ts exercise of that discretion ‘must not be
disturbed on appeal except on a showing that the court exercised
its discretion in an arbitrary, capricious or patently absurd
manner that resulted in a manifest miscarriage of justice.’ ”
(People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)
Here, Vazquez’s theory was that Saidi and LAUSD
supervisors failed to adjust for his learning disability.
His high school IEP was only minimally probative on that
issue because more recent evidence existed—Vazquez claimed
that Saidi, who had taught him in two prior classes, should have
recognized his obvious and “profound” cognitive limitations in the
classroom, without resort to the IEP.
But the risk of jury confusion was severe.
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Although Vazquez abandoned any claim that LAUSD
should have accommodated his disability in the manner set forth
in his IEP, all of the things Vazquez continues to claim LAUSD
should have done constitute just such accommodations.
For instance, Vazquez argued in opposition to LAUSD’s
motions in limine that his K-12 records were relevant to prove
that “LAUSD should have recognized [his] limitations and taken
appropriate steps to make sure that his participation in class
activities—especially related to working on and test driving the
ATVs—would be safe.”
Taking steps to adjust to a student’s particular limitations
is an accommodation.
Vazquez argued he “should have been provided instructions
directly in a small setting.”
This specific accommodation was recommended in his IEP.
Vazquez argued that “Saidi should have checked Plaintiff’s
academic records, digested the information in the IEP, and
instructed Plaintiff in a manner consistent with the IEP.”
This is an accommodation expressly grounded on the IEP.
Although Vazquez conceded that evidence regarding a duty
to accommodate him “per his High School IEP was not
admissible,” he identified no other purpose for consulting the IEP
than to accommodate his learning disability.
If Vazquez could not even conceptually distinguish between
his abandoned and non-abandoned claims, and indeed believed
the IEP was so essential to his case that he accepted nonsuit in
its absence, there is little hope the jury would have been able to
understand the limited relevance Vazquez advocates the IEP
would have had at trial.
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The court was therefore well within its discretion to find
that the minimal probative value of the IEP was substantially
outweighed by the risk of jury confusion.
2. Evidence Negating Comparative Fault
Vazquez argues his K-12 special education records were
relevant to the issue of comparative fault because any unsafe
conduct that contributed to his fall from the ATV should be
excused based on cognitive deficiencies reflected in his IEP, i.e.,
his inability to remember and follow directions.
The argument is without merit because “mental deficiency
which falls short of insanity . . . does not excuse conduct which is
otherwise contributory negligence.” (Fox v. City and County of
San Francisco (1975) 47 Cal.App.3d 164, 169.) Vazquez does not
claim mental deficiency amounting to insanity.
Vazquez relies on DeMartini v. Alexander Sanitarium, Inc.
(1961) 192 Cal.App.2d 442 for the proposition that a person who
is incapable of realizing the consequences of his acts or of caring
for his own safety may be held to a lesser standard of
responsibility for actions that cause him harm.
The case is irrelevant here because nothing in the record
suggests Vazquez was incapable of realizing the consequences of
his acts or of caring for his own safety. On the contrary, his
teachers noted in his IEP that he “demonstrates knowledge or
right and wrong decisions and appears to know the difference
between appropriate and inappropriate behaviors.”
Vazquez argues that the testimony of his neurologist
expert, Dr. Strickland, would have established that Vazquez’s
mental condition was such that he was incapable of realizing the
consequence of his acts or of caring for his own safety. Vazquez
provides no citation to the record for this representation, and in
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his reply brief deflects from the issue, thereby impliedly
admitting it is an inaccurate summary of the record.
Vazquez argues that Dr. Strickland “would have testified
that Plaintiff had a visual spatial impairment, meaning that his
depth perception was off.” However, his only citation to the
record for this representation was to the IEP, which stated only
that he had a visual “processing” impairment that limited his
ability to follow written teaching. Nothing in the records
suggests there was anything wrong with his spatial or depth
perception.
3. Expert Witnesses
Vazquez argues that the trial court’s finding that his
special education history was irrelevant precluded his experts
from testifying about his cognitive deficiencies and processing
deficits. For example, he argues, Dr. Strickland would have
testified that Vazquez’s deficiencies and deficits identified at age
13 would not have dissipated by age 20, and he would have
continued to be unable to process and retain safety instructions.
Vazquez fails to explain why Dr. Strickland needed a
seven-year old IEP to opine why Vazquez was unable to follow
instructions, or how this inability would have established
LAUSD’s liability.
Vazquez argues that Saidi failed to recognize Vazquez’s
cognitive limitations and take appropriate steps to ensure that
his participation in class activities would be safe. However, to
avoid summary judgment, Vazquez abandoned any claim that
Saidi should have accommodated the disability pursuant to his
sixth-grade IEP. To prevail, therefore, Vazquez would have had
to show that Saidi should have observed his cognitive limitations
for himself and taken steps to mitigate their impact. Vazquez
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argued in his trial brief that this would be easy to establish, as he
had taken two prior classes with Saidi and his cognitive
limitations “were so profound that any reasonably trained
teacher would inevitably recognize them.”
The same evidence supporting this claim would have
supported Dr. Strickland’s opinion. And if Vazquez had no such
evidence, he would have been unable to prevail on his theory no
matter what Dr. Strickland said.
Vazquez argues that Dr. Strickland’s opinion was necessary
to support the opinions of his ATV expert, Mr. Zarwell, who
would have opined that Vazquez should not have been allowed to
drive the ATV, and his education expert, Mr. Johnson, who would
have opined about the proper evaluation and supervision of a
student like Vazquez.
It is not clear why these experts needed Dr. Strickland’s
opinion, but if they did, Vazquez’s failure to explain why Dr.
Strickland would need his sixth-grade IEP to establish his
cognitive limitations applies to them as well.
Vazquez argues the trial court’s exclusion of evidence was
erroneous because it was predicated on an unsupported finding
that cognitive deficits experienced in high school would disappear
later in life. We do not believe this was the court’s meaning but
in any event, the point is irrelevant on appeal because we
evaluate the court’s ruling, not its reasoning. (D’Amico v. Board
of Medical Examiners (1974) 11 Cal.3d 1, 19 [a correct ruling
“will not be disturbed on appeal merely because given for a wrong
reason”].)
Vazquez argues that because he was never evaluated
during his K-12 years by anyone outside the school system,
exclusion of his IEP precluded him from proving his severe
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cognitive impairments and auditory and processing deficits. But
as stated above, he conspicuously fails to explain why he could
not have been evaluated before attending adult school or post-
injury, or why his experts could not now discern his cognitive
impairments from other sources, such as a new evaluation or
interviews with his family or teachers.
In sum, Vazquez had several theories upon which to hold
LAUSD potentially negligent: Saidi failed to recognize Vazquez’s
limitations (which Vazquez has always claimed were obvious and
profound), allowed him to work on an ATV, allowed him to drive
an ATV, and provided no supervision or safety equipment.
Vazquez also had several ways to support Dr. Strickland’s
opinion, with teacher interviews, family interviews, and post-
2007 school records. Excluding reference to an eight-year old IEP
would have had little if any impact on Vazquez’s theories or Dr.
Strickland’s opinion and would have avoided jury confusion by
helping the jury distinguish between current and abandoned
theories. Therefore, nonsuit for lack of an IED was not
inevitable, as Vazquez claims, it was self-inflicted.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to
LAUSD.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
ROTHSCHILD, P. J. BENDIX, J.
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