Filed 9/19/19 Young v. Menifee Union 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

ETHAN YOUNG, etc.,

Plaintiff and Appellant,

v.

MENIFEE UNION SCHOOL DISTRICT et al.,

Defendants and Respondents.

D075135

(Super. Ct. No. MCC1500219)

APPEAL from a judgment of the Superior Court of Riverside County, Raquel A. Marquez, Judge. Affirmed.

Kyle Scott Law and Kyle Scott for Plaintiff and Appellant.

DeClues Burkett & Thompson, Jeffrey A. Smith and Steven J. Lowery for Defendants and Respondents.

Plaintiff Ethan Young (Plaintiff), a minor, suffered an eye injury in his eighth grade history class as a result of the actions of another student. Among others, he sued the classroom teacher, Brooke Snyder, and Snyder’s employer, the Menifee Union School District (District) (together Defendants). The superior court entered judgment in favor of Defendants and against Plaintiff following a jury trial in which jury answered “No” to the special verdict question “Was Brooke Snyder negligent?”

Plaintiff appeals, arguing that the trial court erred in instructing the jury and that substantial evidence does not support the verdict. Because Plaintiff did not meet his burden of establishing reversible error, we will affirm the judgment.

I. FACTUAL BACKGROUND

The incident at issue took place in early March 2015 in Snyder’s eighth grade history class at the District’s Bell Mountain Middle School. At that time, Plaintiff was 14 years old, and without a record reference, Plaintiff tells us that the other classmate-witnesses—D.W., I.W., and C.S.—were approximately 14 years old.

On the date in question, during the last period of the day, Snyder showed the class a movie about the Civil War. The screen was at the front of the room, and at the back of the room was a table with two desktop computers. In between, the classroom had three columns of rectangular tables, and each column had four rows of tables. The tables in the two outside columns each had two seats facing the front, and the tables in the middle column had four seats facing the front.

From the back of the classroom looking forward toward the screen, Snyder’s desk was in the front of the room to the right of the screen at the head of the right column of two-seated tables. During the movie, while Snyder sat at her desk, she was grading papers, watching the movie, and “mak[ing] sure the children were doing what they were supposed to be doing.” Snyder kept her computer underneath her desk and her screen on top of her desk.

Toward the end of the movie, Plaintiff, D.W., I.W., and C.S. began throwing bits of erasers at each other. Plaintiff, D.W., and I.W. engaged in this misbehavior only after they checked to make sure Snyder was not looking at them. At one point, D.W., who was seated in the front row of the center section of tables, turned around to his left and with his right hand threw a pencil toward Plaintiff, who was seated in the third row of the center section of tables. The pencil went over the table in the second row, bounced on the table in the third row (where Plaintiff was seated) and hit Plaintiff in his right eye.

Almost immediately, liquid came from Plaintiff’s eye, and Plaintiff covered his eye with his hand and tried to blink and open his eye. Plaintiff did not say anything to anyone, but remained in his seat until the class period ended approximately 10 minutes later. Plaintiff ran out of class and met his mother, who was at school to pick up him and his brother.

Later that day, Plaintiff’s mother took Plaintiff to urgent care and a hospital emergency room, and the next day she took him to a specialist. The following day Plaintiff had eye surgery and a second surgery a few weeks later; he was out of school for approximately a month.

II. PROCEDURAL BACKGROUND

In May 2015, Plaintiff filed a complaint against Defendants and others related to an injury he suffered in March 2015 in Snyder’s middle school classroom as a result of the actions of a classmate, D.W. In one cause of action for negligence against Snyder and the District, Plaintiff alleged that Defendants: “failed to adequately supervise the students that were in [Snyder’s] class”; “failed to maintain discipline, regulate student conduct, enforce those rules and regulations regarding the proper conduct in class that [is] necessary for the protection of the students”; “failed to provide adequate medical care and assistance to Plaintiff after the subject incident”; and “failed to adequately investigate and document the subject incident.” Plaintiff further alleged that the District was negligent in its “instruction, supervision, control and/or discipline, on a continuing basis of its employees in the performance of their duties to supervise students during class time.”

Snyder and the District filed separate answers, each generally and specifically denying the allegations in the complaint and asserting various affirmative defenses.

Plaintiff’s one cause of action for negligence went to trial against Defendants in July 2017. The jury heard testimony from eight witnesses, and the court received 21 exhibits into evidence. Following instructions and closing argument, in 32 minutes the jury selected a foreperson, deliberated, and reached a decision, unanimously answering “No” to the first question of the special verdict form, “Was Brooke Snyder negligent?” Complying with the instructions on the special verdict, the jury did not reach the remaining questions.

Given the jury’s factual finding that Snyder was not negligent, the court determined as a matter of law that Plaintiff could not recover on his complaint and in August 2017 entered a judgment on the special verdict against Plaintiff and in favor of Snyder and the District. (Code Civ. Proc., § 624 [“a special verdict is that by which the jury find the facts only, leaving the judgment to the Court”].)

Plaintiff filed postjudgment motions for a partial judgment notwithstanding the verdict (Code Civ. Proc., § 629) and for a new trial (Code Civ. Proc., § 657), which Defendants opposed and the court denied.

Plaintiff timely appealed from both the judgment and the postjudgment order denying Plaintiff’s motion for partial judgment notwithstanding the verdict.

III. DISCUSSION

On appeal, Plaintiff contends that the judgment should be reversed on two bases: The trial court erred in instructing the jury; and the record does not contain substantial evidence to support the verdict. Because the trial court’s judgment is presumed correct, Plaintiff (as the appellant) has the burden of establishing reversible error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 (Denham).) As we explain, Plaintiff did not meet his burden of establishing reversible error on either ground.

A. Jury Instructions

1. Law

“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 (Soule).) ” ‘ ” ‘[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.’ ” ‘ ” (Bay Guardian Co. v. New Times Media LLC (2010) 187 Cal.App.4th 438, 462 (Bay Guardian), quoting in part People v. Burgener (1986) 41 Cal.3d 505, 538, overruled on other grounds in People v. Reyes (1998) 19 Cal.4th 743, 753.)

“A court may refuse a proposed instruction that incorrectly states the law or is argumentative, misleading, or incomplete.” (Caldera v. Department of Corrections and Rehabilitation (2018) 25 Cal.App.5th 31, 44 (Caldera).) ” ‘ “[I]nstructions should state rules of law in general terms and should not be calculated to amount to an argument to the jury in the guise of a statement of law.” ‘ ” (Uriell, supra, 234 Cal.App.4th at pp. 742-743.) ” ‘ “For ambiguous instructions, the test is whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction.” ‘ ” (Cristler v. Express Messenger Systems, Inc. (2009) 171 Cal.App.4th 72, 82 (Cristler).)

The existence of instructional error alone, however, is insufficient to reverse a judgment based on a jury verdict. (Soule, supra, 8 Cal.4th at p. 570.) The appellant must also establish prejudice from the error, and instructional error is prejudicial only if the appellant establishes a reasonable probability it would have obtained a more favorable result in the absence of the error. (Ibid.; accord, Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1069 [same]; see Cal. Const., art. VI, § 13 [“No judgment shall be set aside . . . on the ground of misdirection of the jury . . . unless, after an examination of the entire cause, . . . the error complained of has resulted in a miscarriage of justice.”]; Code Civ. Proc., § 475 [“No judgment . . . shall be reversed . . . by reason of any error . . . , unless it shall appear from the record that . . . a different result would have been probable if such error . . . had not occurred or existed.”].) Prejudice, like error, is not presumed; and prejudice, like error, must be established by the appellant. (Denham, supra, 2 Cal.3d at p. 566; Wilkinson v. Bay Shore Lumber Co. (1986) 182 Cal.App.3d 594, 599 [“Prejudice from an erroneous instruction is never presumed; it must be affirmatively demonstrated by the appellant.”].) If called upon to “assess[] prejudice from an erroneous instruction, we consider, insofar as relevant, ‘(1) the degree of conflict in the evidence on critical issues [citations]; (2) whether respondent’s argument to the jury may have contributed to the instruction’s misleading effect [citation]; (3) whether the jury requested a rereading of the erroneous instruction [citation] or of related evidence [citation]; (4) the closeness of the jury’s verdict [citation]; and (5) the effect of other instructions in remedying the error [citations].’ ” (Soule, at pp. 570-571, quoting Pool, at pp. 1069-1070.)

” ‘We independently review claims of instructional error viewing the evidence in the light most favorable to the appellant.’ ” (Uriell, supra, 234 Cal.App.4th at p. 743.)

2. Plaintiff Did Not Meet His Burden of Establishing Reversible Error in Instructing the Jury

At trial, the court gave 54 jury instructions—49 CACI instructions and five special instructions. Of the 54 instructions, 13 dealt exclusively with negligence—nine CACI instructions (found within CACI Nos. 400-431) and five special instructions (based on three requested by Plaintiff and two requested by Defendants).

In his opening brief on appeal, Plaintiff raises issues only with regard to the trial court’s handling of the special instructions—two that the court rejected (according to Plaintiff), and four that the court modified and gave. More specifically, Plaintiff raises issues with regard to: two of Plaintiff’s proposed special instructions that Plaintiff tells us the court rejected (Plaintiff’s proposed instruction Nos. 2 and 5); two of Plaintiff’s proposed special instructions (Plaintiff’s proposed instruction Nos. 1 and 6) that the court modified before giving (court’s special instruction Nos. 1 and 5); and two of Defendants’ proposed instructions (unnumbered) that the court modified before giving (court’s special instruction Nos. 3 and 4).

a. The Court Did Not Err in Rejecting Plaintiff’s Proposed Special Instruction No. 2

In his proposed special instruction No. 2, Plaintiff requested that the court instruct the jury as follows:

“The purpose of the law requiring supervision of pupils on the playgrounds and on the school property during school hours is to regulate their conduct so as to prevent disorderly and dangerous practices which are likely to result in physical injury to immature scholars under their custody. [¶] Charonnat v. San Francisco Unified School Dist. (1943) 56 Cal.App.2d 840, 844.”

The court denied Plaintiff’s request—in part on the basis that the proposed instruction “doesn’t provide an instruction on the law. Instead, what it does is it gives the purpose of it.”

In Charonnat v. San Francisco Unified School Dist. (1943) 56 Cal.App.2d 840 (Charonnat), the case on which Plaintiff relies for the proposed instruction, an elementary school student sued the school district after he was injured on the playground by another student during the noon hour. (Id. at p. 841.) The district appealed from a judgment following a trial in which the district was found negligent, and the issues on appeal were whether the district had been negligent in providing sufficient supervision “under the circumstances,” and whether the assigned supervisor was negligent. (Id. at pp. 843-844.) The appellate court concluded that the resolution of these issues was a question of fact and that the record contained substantial evidence to support the finding of negligence. (Ibid.) The court then cited a potential basis of the trial court’s finding—i.e., breach of the statutory duty found at former School Code section 5.543, which provided at that time: ” ‘Every teacher in the public schools must hold pupils to a strict account for their conduct on the way to and from school, on the playgrounds or during recess.’ ” (Charonnat, at p. 842.) In ruling that, under the cited statute, “the trial court may well have concluded that it was negligence on the part of the school authorities to assign only one teacher to ‘hold pupils to a strict account for their conduct,’ ” the Charonnat court explained the purpose of the former statute—using the above-quoted language that Plaintiff requested in his proposed special instruction No. 2. (Id. at p. 844.)

We agree with the trial court. Plaintiff’s proposed instruction explains the purpose of a statute; it does not state a rule of law in general terms. As our Supreme Court explained more than a century ago, ” ‘[a] judge’ . . . ‘is bound to instruct the jury on the law itself, and not on its history, object, or purpose.’ ” (People v. Ramirez (1880) 56 Cal. 533, 537; accord, People v. Deibert (1953) 117 Cal.App.2d 410, 422 [“a judge is not bound to instruct on the history, object, or purpose of a law”].)

Plaintiff further argues that, in addition to setting forth the purpose of the former statute, the proposed instruction also describes the scope of the duty to supervise—i.e., “to regulate [students’] conduct so as to prevent disorderly and dangerous practices which are likely to result in physical injury.” Thus, Plaintiff’s argument continues, the court erred by not instructing the jury, as requested, based on a correct statement of the law under Charonnat, supra, 56 Cal.App.2d 840. However neither Charonnat, the statute at issue in Charonnat, nor the current similar statute (see fn. 7, ante) applies to the present case. They are all limited to regulating pupils’ conduct “on the way to and from school, on the playgrounds or during recess.” (Charonnat, at pp. 842, 844; former Sch. Code, § 5.543; Ed. Code, § 44807.) Here, however, Plaintiff was injured in a classroom during a class—a supervised class—yet Plaintiff does not refer us to authorities in that context in support of his argument related to proposed special instruction No. 2. The court need not give an instruction that is not supported by the evidence at trial. (Soule, supra, 8 Cal.4th at p. 572.)

Finally, Plaintiff does not suggest how, if at all, he was prejudiced by the court’s rejection of his proposed special instruction No. 2.

For the foregoing reasons, Plaintiff did not meet his burden of establishing that the trial court erred in rejecting his proposed special instruction No 2.

b. Plaintiff Tells Us the Court Rejected Plaintiff’s Proposed Special Instruction No. 5

In his proposed special instruction No. 5, Plaintiff requested that the court instruct the jury as follows:

“Recognizing that a principal task of supervisors is to anticipate and curb rash student behavior, failure to prevent injuries caused by the intentional or reckless conduct of the victim or a fellow student may constitute negligence. [¶] . . . [¶] Dailey v. Los Angeles Unified School Dist. (1970) 2 C[al.]3d 741, 749.”

Plaintiff submitted this proposed instruction during trial, after the initial jury instructions conference at the end of the presentation of live testimony on July 13, 2017.

The record on appeal does not contain any ruling by the trial court on Plaintiff’s request. As a result, Plaintiff forfeited appellate review of his arguments related to his proposed special instruction No. 5. “In order to preserve an issue for review, a [party] must not only request the court to act, but must press for a ruling. The failure to do so forfeits the claim.” (People v. Ramirez (2006) 39 Cal.4th 398, 472 [defendant’s requested special jury instruction].)

Plaintiff tells us that the court’s ruling “was not reported”; and our independent review of the register of actions and reporter’s transcript does not reveal the court’s consideration of or ruling on Plaintiff’s proposed special instruction No. 5. Thus, there is no indication that Plaintiff did anything other than submit a proposed requested special instruction No. 5 during trial. After excusing the jury at the end of the day on July 13, 2017, the court and counsel began a jury instructions conference on the five special jury instructions that the parties submitted pretrial. The court proceeded to rule on them—including giving Plaintiff the opportunity to submit a further instruction after rejecting his proposed special instruction No. 2, as we discussed ante at part III.A.2.a. The next day, July 14, Plaintiff submitted two additional proposed special instructions, Nos. 5 and 6. When the court took the bench the following trial day, July 17, out of the presence of the jury, the court made three additional rulings on other jury instructions and concluded: “With that, the jury instructions are complete. . . . [¶] Is there any issue that you’d like to address?” Neither of the parties or the court mentioned Plaintiff’s proposed special instruction No. 5.

In any event, even if we were to reach the merits of Plaintiff’s argument, the result would be no different. Plaintiff contends both that his proposed instruction No. 5 is a correct statement of the law according to Dailey v. Los Angeles Unified School Dist. (1970) 2 Cal.3d 741, 749 (Dailey) and that he was prejudiced by not being able to argue to the jury “his theory of the case that it was Snyder’s duty to anticipate and curb rash student behavior and Snyder[‘s] fail[ure] to prevent injuries caused by negligent or intentional conduct by the victim . . . or a fellow student . . . may constitute negligence.” Neither argument is persuasive.

In Dailey, supra, 2 Cal.3d 741, the parents of a high school student who died in the gymnasium during the noon recess brought a wrongful death action against the school district and two teachers employed by the district. (Id. at pp. 744, 745-746.) The student died while engaging in “a form of boxing employing open hands rather than clenched fists and in which the object, at least initially, is to demonstrate speed and agility rather than to inflict physical injury on the opponent.” (Id. at pp. 745-746.) The plaintiffs alleged that the defendants’ negligence “in failing to provide adequate supervision” was the proximate cause of their child’s death. (Id. at p. 744.) The evidence at trial established that, although there was a “general plan for student supervision during the noon hour,” “there was no formal schedule assigning supervision times”; “supervision was left to the person in the gym office,” and on the day in question, there was no supervisor in, or with sight of, the gymnasium. (Id. at pp. 746-747.) At the close of evidence, the trial court granted a directed verdict in favor of the defendants. (Id. at pp. 744-745.)

The Supreme Court reversed, ruling that the trial court erred in granting a directed verdict, since “there was evidence of sufficient substantiality to support a verdict in favor of these plaintiffs.” (Dailey, supra, 2 Cal.3d at p. 751.) In reaching this result, our high court reviewed the law on the duty owed by those in the defendants’ position to students on school grounds. (Id. at p. 747.) Beginning with the understanding that “school districts and their employees have never been considered insurers of the physical safety of students,” the court concluded with the statement that “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.’ ” (Ibid.) The Dailey court commented that “[e]ither 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., italics added); however, the lack of supervision or ineffective supervision in Dailey was in the context of a total lack of supervision in the gymnasium during the noon recess on the day in question (id. at pp. 746-747). Stated differently, Dailey did not involve the issue or the court’s consideration of ineffective supervision—i.e., a school district’s or a teacher’s negligence when the students are being supervised. To the contrary, although the language Plaintiff included in his proposed special instruction No. 5 is taken verbatim from Dailey, at pages 748-749—i.e., “Recognizing that a principal task of supervisors is to anticipate and curb rash student behavior, our courts have often held that a failure to prevent injuries caused by the intentional or reckless conduct of the victim or a fellow student may constitute negligence”—the statement was in support of the court’s reasoning as to why “[s]upervision during recess and lunch periods is required” (id. at p. 748); the statement was not in support of a standard of due care that a supervisor must meet to perform his or her supervision nonnegligently.

Thus, although Plaintiff correctly argues that his proposed instruction No. 5 contains an accurate statement of law under Dailey, supra, 2 Cal.3d at page 749, that statement of the law is inapplicable to the facts in the present case. Whereas the students misbehaving in Dailey had no supervision, here the students in Snyder’s classroom were being supervised during the movie, and the issue was whether the supervision actually provided was negligent. On this basis, Plaintiff was not entitled to have the jury instructed as he requested in his proposed special instruction No. 5.

Moreover, Plaintiff did not establish prejudice. Although he contends that he was prejudiced by not being able to argue to the jury that Snyder had a “duty to anticipate and curb rash student behavior and Snyder[‘s] fail[ure] to prevent injuries caused by negligent or intentional conduct by the victim . . . or a fellow student . . . may constitute negligence,” in fact he argued exactly what he wanted. In closing, Plaintiff’s counsel told the jury:

“Absolutely those boys were misbehaving, but that doesn’t prevent Ms. Snyder from being responsible, and the law says this. . . . [T]he duty of care owed by school personnel includes the duty to use reasonable supervision to protect the students from foreseeable injuries, kids throwing things in class. We all—you all raised your hands during voir dire, who had heard of kids throwing things in class. Everybody has. A teacher with this amount of experience could anticipate that.

“So foreseeable injury resulting from an intentional or negligent act by the injured student, or by others like [D.W.] So the fact that [D.W.] is potentially negligent doesn’t mean that [Snyder] can’t be negligent, of course, and the fact that even [Plaintiff] could be potentially negligent. The law says [Snyder] still can be negligent because she had the duty to protect the students. . . . [¶] [Snyder] had to protect . . . [Plaintiff] from [D.W.]’s negligence, [and] she had to protect Ethan Young from potentially his own negligence.” (Italics added.)

Further, of the potentially applicable considerations in assessing prejudice (Soule, supra, 8 Cal.4th at pp. 570-571), none is present here. The verdict was not close (12-0 in 32 minutes), and much of the rejected instruction was included in the court’s special instruction No. 5: “The duty of care owed by school personnel includes the duty to use reasonable supervision to protect students from foreseeable injury resulting from intentional or negligent act[s] by the injured student or by others.”

For the foregoing reasons, Plaintiff did not preserve for appellate review the consideration of his proposed special instruction No. 5, but even if we considered the issue whether the trial court erred in rejecting the instruction, Plaintiff did not meet his burden of establishing either legal error or prejudice.

c. The Court Did Not Err in Modifying Plaintiff’s Proposed Special Instruction No. 1

In his proposed special instruction No. 1, Plaintiff requested that the court instruct the jury as follows:

“A school district has a duty to supervise at all times the conduct of the children on the school grounds and to enforce those rules and regulations necessary for their protection. The standard of care 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.

“Such supervision may be necessary because of the commonly known tendency of students to engage in aggressive and impulsive behavior which exposes them and their peers to the risk of serious physical harm. A failure to prevent injuries caused by the intentional or reckless conduct of the victim or a fellow student may constitute negligence.

“Dailey v. Los Angeles Unified Sch. Dist. (1970) 2 Cal.3d 741, 748, 749; Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 934; M.W. v. Panama Buena Vista Union School Dist. (2003) 110 Cal.App.4th 508, 517[.]”

The trial court instructed the jury as requested in the first two paragraphs. Plaintiff contends that the trial court erred in rejecting the third paragraph.

The court ruled that the proposed third paragraph “fails to convey some of the nuances here.” After quoting at length from Dailey, supra, 2 Cal.3d at page 750, the court explained that “[t]he third paragraph could create an implication of a liability [for] injuries caused by impulsive behavior rather than a duty to use ordinary care to protect against them.” We agree.

As we introduced at part III.A.2.b., ante, in Dailey, supra, 2 Cal.3d 741, the unsupervised high school students were engaged in open-handed boxing before a group of approximately 30 students that had gathered to watch in an unsupervised area, when the plaintiffs’ decedent fractured his skull on the asphalt pavement and died. (Id. at pp. 745-746.) In contrast, here, the students were throwing the erasers and pencils only at times when, according to Plaintiff (who was participating), D.W. (who threw the pencil that injured Plaintiff), and I.W. (who sat next to Plaintiff), the three of them knew that Snyder (the supervisor) was not looking.

In short, the activity that culminated in Plaintiff’s injury here did not involve the type of “aggressive and impulsive behavior” of the activity in Dailey—i.e., the activity that resulted in the proposed language from Dailey that the trial court here rejected. For this reason, the trial court did not err in rejecting the third paragraph of Plaintiff’s proposed special instruction No. 1; it was misleading. (Caldera, supra, 25 Cal.App.5th at p. 44.)

Finally, Plaintiff has not suggested how, if at all, he was prejudiced by the court’s modification of his proposed instruction No. 1.

Accordingly, Plaintiff did not meet his burden of establishing that the trial court erred in modifying his proposed special instruction No 1.

d. Plaintiff Tells Us the Court Modified Plaintiff’s Proposed Special Instruction No. 6

In his proposed special instruction No. 6, Plaintiff requested that the court instruct the jury as follows:

“The duty of care owed by school personnel includes the duty to use reasonable measures to protect students from foreseeable injury at the hands of third parties acting negligently or intentionally. This principle applies to an employee’s alleged negligence resulting in injury to a student by another student. [¶] . . . [¶] C.A. v. William S. Hart Union High School Dist. (2012) 53 C[al.]4th 861, 869.”

Like Plaintiff’s proposed special instruction No. 5 (pt. III.A.2.b., ante), Plaintiff submitted proposed special instruction No. 6 during trial, after the initial jury instructions conference, and at the end of the presentation of testimony on July 13, 2017. Like the ruling on Plaintiff’s proposed special instruction No. 5 (ibid.), the ruling on Plaintiff’s proposed special instruction No. 6 is not reported.

With no record reference, Plaintiff tells us only that, what the court gave as the court’s special instruction No. 5 (not to be confused with Plaintiff’s proposed special instruction No. 5 discussed at pt. III.A.2.b., ante) was a modification of Plaintiff’s proposed special instruction No. 6. Our independent review of the record confirms that the court’s special instruction No. 5 is, in fact, Plaintiff’s proposed special instruction No. 6 without the second sentence.

Plaintiff proceeds to argue why the modification is erroneous, including the prejudice he suffered as a result. However, by stipulating to the modification, Plaintiff is estopped from asserting the modification as a ground for reversal. When the court and counsel went back on the record following the unreported jury instructions conference at which Plaintiff’s proposed special instruction No. 6 was considered, the court stated:

“Then the parties have reviewed and stipulated to Special Instruction Number 5 that will be provided having to do with the facts of other students. Both parties stipulated to that. [¶] With that, the jury instructions are complete. And we have the copies that have been made. [¶] Is there any issue that you’d like to address?” (Italics added.)

After Defendants’ attorney confirmed that the court’s special instruction No. 5 would be included with the instructions packets, Plaintiff’s attorney expressly replied “No” when the court repeated, “Anything further?”

“The ‘doctrine of invited error’ is an ‘application of the estoppel principle’: ‘Where a party by his conduct induces the commission of error, he is estopped from asserting it as a ground for reversal’ on appeal.” (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 403.) Application of this doctrine “prevents a party from misleading the trial court and then profiting therefrom in the appellate court.” (Ibid.) “Indeed, the invited error doctrine ‘applies “with particular force in the area of jury instructions.” ‘ ” (Regalado v. Callaghan (2016) 3 Cal.App.5th 582, 592; see Scott v. C.R. Bard, Inc. (2014) 231 Cal.App.4th 763, 787 [“acquiesce[nce] in the giving of [an] incomplete instruction[]” was sufficient to invoke the invited error doctrine].)

Since he is estopped from arguing instructional error related to the court’s stipulated special instruction No. 5 (which apparently resulted from the modification of Plaintiff’s proposed special instruction No. 6), Plaintiff did not meet his burden of establishing that the trial court erred in modifying his proposed special instruction No. 6.

e. The Court’s Special Instruction No. 3 Did Not Misstate the Law

Modifying a requested special instruction from Defendants, the court instructed the jury as follows in the court’s special instruction No. 3:

“The law does not make a school district the insurers of the safety of their pupils at play or elsewhere. Instead, school districts and their employees are required to exercise reasonable supervision over students while at school. ‘Supervision’ does not mean that the school district or their employees must watch each student individually at all times.”

On appeal, Plaintiff argues that the last sentence of this instruction—i.e., ” ‘Supervision’ does not mean that the school district or their employees must watch each student at all times”—misstates California law.

However, Plaintiff has not presented argument or authority to the effect that the sentence at issue misstates California law. Instead, Plaintiff argues only that the court’s statement regarding ” ‘Supervision’ . . . is not a holding of any California case cited by any counsel at the trial of this matter, the court or of which [Plaintiff’s] counsel is aware.” Such an argument does not establish reversible error, since it is not an affirmative showing sufficient to overcome the presumption of correctness that attaches to the judgment. (See Denham, supra, 2 Cal.3d at p. 564.) Here, Plaintiff argues only: After the trial court modified the proposed statement submitted by Defendants, the citations Defendants cited in support of the statement the court rejected did not support the court’s modification; and Plaintiff’s appellate counsel is unaware of a case holding that supports the statement crafted by the court.

That said, Plaintiff acknowledges that “the Woodsmall court may have provided some dict[um] about ‘constant supervision of all movements of pupils at all times’ (Woodsmall, [supra, 188 Cal.App.2d] at [p. ]267),” suggesting only that the statement is not applicable because “it was not the holding of the case.” In Woodsmall, the appellate court ruled that the defendant school district was not liable to a pupil injured at school because, as a matter of law, the lack of supervision was not a proximate cause of the pupil’s injuries. (Id. at p. 265 [“the uncontroverted evidence leads to the conclusion that supervision would have made no difference as the proximate cause of the accident was the pupil who pushed [the plaintiff]”.)

There is no requirement that, to be an accurate statement of California law for purposes of a jury instruction, the statement must be the holding of a published appellate court opinion. In Woodsmall, the appellate court based its holding on the following authority, which directly supports the instruction as given: ” ‘all movement of pupils need not be under constant scrutiny.’ ” (Woodsmall, supra, 188 Cal.App.2d at p. 266, original italics.) Indeed, at the end of its opinion, the Woodsmall court ruled: “[T]o hold otherwise under the facts here presented would make the school district an insurer and require the constant supervision of all movements of pupils at all times. This is clearly not the law.” (Id. at p. 267, italics added.) The above-quoted language in Woodsmall has been the law in California for more than a half century, regardless whether it is the holding of the case.

Plaintiff relies on the following language from our Supreme Court: ” ‘ “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[.]’ ” ‘ ” (Hoff, supra, 19 Cal.4th at pp. 933-934, italics added.) Plaintiff suggests that, because the statements in Woodsmall, supra, 188 Cal.App.2d at page 267 (“the constant supervision of all movements of pupils at all times . . . is clearly not the law”) and Hoff, at page 934 (” ‘ “California law has long imposed on school authorities a duty to ‘supervise at all times the conduct of the children on the school grounds’ ” ‘ “), are inconsistent, either the language in Woodsmall is a misstatement of law or, at a minimum, the language in the court’s special instruction No. 3 is misleading. We disagree; the two statements in the two cases are easily harmonized. Initially, both begin with the acknowledgement that a school’s duty to supervise pupils does not make the school an insurer of their pupils’ safety or well-being. (Hoff, at pp. 933-934; Woodsmall, at p. 267.) Hoff’s statement reaffirms the general rule from 1941 that a school must always provide supervision of its students on school grounds (Hoff, at p. 934; Taylor, supra, 17 Cal.2d at p. 600); whereas Woodsmall’s statement in 1961 explains that the school’s general duty to provide supervision does not include the requirement that the school supervise each student’s movement at all times (Woodsmall, at p. 267).

Accordingly, the court’s special instruction No. 3 did not misstate the law. (Cristler, supra, 171 Cal.App.4th at p. 82) As a related conclusion, given the speed and unanimity of the jury’s verdict, there is no reasonable likelihood the jury misunderstood or misapplied the instruction. (Ibid.) In addition, as introduced at part III.A., ante, our de novo review requires that we determine the correctness of the instruction based on ” ‘ ” ‘the entire charge of the court, not from a consideration of parts of an instruction.’ ” ‘ ” (Bay Guardian, supra, 187 Cal.App.4th at p. 462.) For this reason, Plaintiff’s focus on one sentence of one out of 54 total instructions (or one sentence out of one out of 13 instructions directed to negligence) is not only unhelpful, it is wrong.

Finally, Plaintiff does not suggest how, if at all, he was prejudiced by the court’s special instruction No. 3.

For these reasons, Plaintiff did not meet his burden of establishing that the trial court erred in giving the court’s special instruction No. 3.

f. The Court’s Special Instruction No. 4 Did Not Misstate the Law

Based on a requested special instruction from Defendants, the court instructed the jury as follows in the court’s special instruction No. 4:

“If you find that the teacher provided unreasonable supervision of her students, there is no liability unless the lack of reasonable supervision caused the plaintiff[‘]s injury. If students for their own purposes, deliberately intend to escape the direct scrutiny of personnel in a way that their activities were not detected by reasonable supervision and the injury to plaintiff occurred with such rapidity that supervisory personnel could have no opportunity to discover and respond to the situation, then plaintiff’s injuries cannot be said to have been caused by a failure to supervise.”

Plaintiff presents two arguments in support of his position that the last sentence of this instruction is erroneous: (1) It “was confusing to the jury as that law [on causation] was already provided to the jury in [the court’s] Special Instruction No. 2”; and (2) it was not supported by the evidence, because there was no evidence either that “the children deliberately avoided detection by reasonable supervision” or that “the injury occurred with such rapidity” that Snyder was unable to discover and respond to the situation.

The court’s special instruction No. 2 provided: “To establish negligence against the Defendants, there must be a proximate causal connection between the inadequacy of the supervision and the accident.” The last sentence of the court’s special instruction No. 4 (above) provided: If the students attempted to avoid detection by Snyder and if Plaintiff’s injury occurred so quickly that Snyder was unable to discover and respond to the misbehavior, “then [P]laintiff’s injuries cannot be said to have been caused by a failure to supervise.”

Very simply, these two instructions were not confusing; to the contrary, they complemented each other. The example in special instruction No. 4 further explained the requirement of proximate cause contained in special instruction No. 2: No. 2 told the jury that, in order to find negligence, the inadequate supervision must be a proximate cause of Plaintiff’s injuries; whereas special instruction No. 4 told the jury that, if the events occurred in a specified manner (i.e., deliberate avoidance of detection by the students and Snyder’s inability to observe the misbehavior due to a rapid injury), then Plaintiff cannot establish the requisite proximate cause between the inadequacy of supervision and Plaintiff’s injuries.

We acknowledge that the giving of repetitious instructions may constitute error where the result is to ” ‘unduly overemphasize issues, theories or defenses.’ ” (Powerhouse Motorsports Group, Inc. v. Yamaha Motor Corp., U.S.A. (2013) 221 Cal.App.4th 867, 881.) However, “repetition per se does not create prejudice”; it is but one factor to be considered in determining whether error is prejudicial. (Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1046; accord, Wegner, et al., Cal. Practice Guide: Civil Trials & Evidence (The Rutter Group 2018) ¶ 14:206, p. 14-49 [“repetition [in jury instructions], in and of itself, rarely constitutes reversible error”].) Here, once again, Plaintiff has not suggested how, if at all, he was prejudiced by the two statements regarding causation. Nor could he establish prejudice, since the jury never reached any of the special verdict questions regarding causation.

With regard to Plaintiff’s next argument—i.e., whether the evidence at trial supported an instruction based on the students’ intentional avoidance of detection and Snyder’s lack of opportunity to discover and respond to the situation—Plaintiff tells us that “[t]he throwing happened out in the open classroom and in plain sight of Snyder, . . . over many minutes and after estimates of 6 to 12 throws.” While we must ” ‘view[] the evidence in the light most favorable to the appellant’ ” (Uriell, supra, 234 Cal.App.4th at p. 743), we are not required to ignore other evidence that supports an instruction. To the contrary, where (as here) a potential defense is supported by substantial evidence, the defendant is entitled to correct, nonargumentative instructions. (Soule, supra, 8 Cal.4th at p. 572.) Stated differently, where an appellant contends the trial court erred in failing to give an instruction requested by the appellant, we must view the evidence in a light most favorable to the appellant; but where an appellant contends the trial court erred in giving an instruction requested by the respondent, we determine only whether substantial evidence supports the proposed instruction. Here, as we discuss further at part III.B., post, the record contains substantial evidence to support Defendants’ theory of the case, as instructed in the court’s special instruction No. 4, that the students “deliberately intend[ed] to escape the direct scrutiny of personnel in a way that their activities were not detected by reasonable supervision and the injury to plaintiff occurred with such rapidity that supervisory personnel could have no opportunity to discover and respond to the situation.”

In any event, Plaintiff again fails to suggest, let alone establish, prejudice based on the evidence in support of the court’s special instruction No. 4.

For the foregoing reasons, Plaintiff did not meet his burden of establishing that the trial court erred in giving the court’s special instruction No. 4.

B. Substantial Evidence

Plaintiff’s second argument begins with the point heading, “The Jury’s Verdict Was Not Supported By The Evidence At Trial . . . .” The next line is a subheading, “Standard of Review,” and contains four sentences. The first three sentences mention the substantial evidence standard, and the fourth sentence provides in part as follows: ” ‘[W]hen the facts are undisputed and the question on appeal is wholly a legal issue, the proper standard of review is independent review.’ (Tien Le [sic] v. Lieu Pham [sic] (2010) 180 Cal.App.4th 1201, 1206.)” Based on the evidence recited by Defendants in their appellate brief—with accurate record references—the jury was presented with facts which Plaintiff does not mention or consider. Thus, as we explain in greater detail at part III.B.2. and footnote 17, post, the facts of the present case are, indeed, disputed. For this reason, in determining whether the evidence supports the jury’s verdict, we review the record under the substantial evidence standard of review.

1. Law

Our consideration whether the verdict, and therefore the judgment, is supported by substantial evidence is governed by well-established standards of appellate review.

We ” ‘ “must presume that the record contains evidence to support every finding of fact” ‘ “; and ” ‘[i]t is the appellant’s burden . . . to identify and establish deficiencies in the evidence.’ ” (Holguin v. Dish Network LLC (2014) 229 Cal.App.4th 1310, 1326.) We “look to the entire record of the appeal,” and if there is substantial evidence, “it is of no consequence that the [jury] believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion.” (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874, italics deleted; see Toyota Motor Sales U.S.A., Inc. v. Superior Court (1990) 220 Cal.App.3d 864, 872 [“Where conflicting inferences may reasonably be drawn, the determination of the [jury] will be accepted on appeal even though a contrary determination would likewise be upheld.”].)

” ‘[T]he test is not the presence or absence of a substantial conflict in the evidence. Rather, it is simply whether there is substantial evidence in favor of the respondent.’ ” (Dane-Elec Corp., USA v. Bodokh (2019) 35 Cal.App.5th 761, 770.) “If this ‘substantial’ evidence is present, no matter how slight it may appear in comparison with the contradictory evidence, the judgment must be upheld.” (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 631 (Howard).) The fact that the record may contain substantial evidence in support of an appellant’s claims is irrelevant to our role, which is limited to a determination of the sufficiency of the evidence in support of the judgment actually made. (Ibid.)

In determining the sufficiency of the evidence, we “may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to [the verdict] must be accepted as true and conflicting evidence must be disregarded.” (Campbell v. General Motors Corp. (1982) 32 Cal.3d 112, 118, italics added (Campbell); accord, Major v. Western Home Ins. Co. (2009) 169 Cal.App.4th 1197, 1203, fn. 1 (Major) [“we must accept all evidence which supports the [verdict, and] disregard the conflicting evidence”]; Howard, supra, 72 Cal.App.4th at p. 631 [“we will look only at the evidence and reasonable inferences supporting the successful party, and disregard the contrary showing”].) The testimony of a single witness, including that of a party, may be sufficient (In re Marriage of Mix (1975) 14 Cal.3d 604, 614; Evid. Code, § 411); whereas even uncontradicted evidence in favor of an appellant does not establish the fact for which the evidence was submitted (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 890 (Foreman)).

In an appeal based on a lack of substantial evidence, “all conflicts must be resolved in favor of the respondent, and all legitimate and reasonable inferences indulged in to uphold the verdict if possible. It is an elementary, but often overlooked principle of law, that when a verdict is attacked as being unsupported, the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the jury.” (Crawford v. Southern Pac. Co. (1935) 3 Cal.2d 427, 429; accord, Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 571.) We ” ‘consider all of the evidence in the light most favorable to the prevailing party[.]’ ” (Carrington, supra, 30 Cal.App.5th at p. 518.)

2. Plaintiff Did Not Meet His Burden of Establishing a Lack of Substantial Evidence to Support the Verdict

Because “[w]e ‘start with the presumption that the record contains evidence sufficient to support the judgment[,] it is the appellant’s burden to demonstrate otherwise.’ ” (Carrington, supra, 30 Cal.App.5th at p. 518.) For this reason, “the appellant is required to provide a summary of all of the evidence, not merely his or her own evidence, with citations to the record.” (Carrington, at p. 518, italics added, citing Foreman, supra, 3 Cal.3d at p. 881.) Then, for the evidence that supports the judgment, the appellant ” ‘must . . . show how and why it is insufficient.’ ” (Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 738 (Schmidlin), original italics.) “[I]ndeed, ‘[w]here a party presents only facts and inferences favorable to his or her position, the “contention that the findings are not supported by substantial evidence may be deemed waived.” ‘ ” (Orozco v. WPV San Jose, LLC (2019) 36 Cal.App.5th 375, 391 (Orozco).)

Here, in Plaintiff’s opening brief on appeal, his second argument is entitled, “The Jury’s Verdict Was Not Supported by the Evidence At Trial . . . .” In support, Plaintiff’s opening brief contains: a four-sentence argument under the heading “Standard of Review” ; six pages of facts under the heading, “The evidence supported a finding that Snyder was negligent” ; and a two-paragraph argument under the heading, “The jury’s verdict is not supported by the evidence at trial.” Within the six pages of facts, Plaintiff recites only evidence that, if credited by the jury, would have supported the findings the Plaintiff asked the jury to make, ignoring the evidence that supported the verdict.

In short, Plaintiff presented only facts and inferences favorable to his position, completely ignoring the evidence in support of the verdict. Accordingly, we deem Plaintiff to have forfeited appellate consideration of his argument that the jury’s verdict—i.e., the finding that Snyder was not negligent—was unsupported by substantial evidence. (Orozco, supra, 36 Cal.App.5th at p. 391; Schmidlin, supra, 157 Cal.App.4th at p. 738.)

In any event, even if we were to reach the substantial evidence issue, the result would be no different. Having independently reviewed the trial evidence—disregarding evidence that supports a finding other than what the jury found (Campbell, supra, 32 Cal.3d at p. 118; Major, supra, 169 Cal.App.4th at p. 1203, fn. 1; Howard, supra, 72 Cal.App.4th at p. 631)—we would have no difficulty concluding that substantial evidence supports the jury’s finding that Snyder was not negligent.

Most persuasively, from the three students who were asked, the jury learned that those who were throwing items at others did everything they could to ensure that they would not be caught; i.e., they would watch Snyder and only throw the items when she was not looking. In fact, they were so successful in their stealth, not only did Snyder not see them, no one else in the classroom saw what they were doing either. While the movie was shown to her class, Snyder sat at her desk, grading papers, watching the movie, and “mak[ing] sure the children were doing what they were supposed to be doing.” During the movie, Snyder checked on her students more frequently than every 10 minutes. For purposes of monitoring students’ behavior, “every time [she] showed a movie,” Snyder would walk around the classroom “[o]ften.”

From this testimony alone, the record contains substantial evidence that Snyder adequately supervised her class during the movie and that the students who were throwing things were successful in their efforts to avoid detection. Thus, from this evidence alone, the jury reasonably could find that Snyder was not negligent.

For the foregoing reasons, Plaintiff did not meet his burden of establishing a lack of substantial evidence to support the verdict.

IV. DISPOSITION

The judgment is affirmed. Snyder and the District are entitled to their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)

IRION, J.

WE CONCUR:

HALLER, Acting P. J.

GUERRERO, J.