How to Lose Your California Appeal at Trial

How to Lose Your California Appeal at Trial-0

How to Lose Your California Appeal at Trial

Written by Treg J., OLN Freelance Attorney.

The primary role of the California Courts of Appeal is to review error. Accordingly, an argument or objection not made in the trial court is waived on appeal. (Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1488 fn.3 [“It is axiomatic that arguments not asserted below are waived and will not be considered for the first time on appeal.”]; Carian v. Agricultural Labor Relations Bd. (1984) 36 Cal.3d 654, 668 fn. 6; Franklin Mint Co. v. Manatt, Phelps & Phillips, LLP (2010) 184 Cal.App.4th 313, 332.)

The rule barring new arguments on appeal is founded on considerations of fairness to the opposing party and the orderly and efficient administration of justice. (Rand v. Board of Psychology (2012) 206 Cal.App.4th 565, 587.) Permitting new arguments on appeal would deprive the trial courts and the parties of the opportunity to correct errors and would require the appellate courts to spend valuable resources to address purported errors that could have been corrected in the trial court had an objection been made. (Dietz v. Meisenheimer & Herron (2009) 177 Cal.App.4th 771,799-800.)

Stated another way, a party that fails to make an objection or argument in the trial court invites the error. A party that induces the commission of error is estopped from asserting an invited error on appeal as a basis for reversal. (San Mateo Union High School Dist. v. County of San Mateo (2013) 213 Cal.App.4th 418, 436.)

There is a limited exception to the rule barring new arguments on appeal for certain issues of law. Because the purpose of the general rule is to give the trial court and parties the opportunity to correct an error, a “‘noncurable defect of substance where the question is one of law’ is not an error that falls within the rule.” (Woodward Park Homeowners Ass’n, Inc. v. City of Fresno (2007) 150 Cal.App.4th 683, 712.)

The waiver of arguments not raised in the trial court applies to mistakes by the parties as well as intentional decisions. I had a recent appeal in which one of the primary issues was whether the trial court erred in granting the plaintiff’s motion to amend to conform to proof. At trial, the defendant’s attorney learned on the second day of trial that the plaintiff was going to pursue new claims that were not pled in its complaint. Rather than request a continuance or leave to conduct additional discovery to prepare a defense to the claims, defendant’s counsel confidently represented to the judge that the evidence would show that the new claims were without merit. Over the next six days of trial, defendant submitted evidence and argument in opposition to the new claims. The trial court subsequently granted plaintiff’s motion to amend to conform to proof then entered judgment in favor of plaintiff. Defendant asserted for the first time on appeal that it suffered prejudice from the motion to amend. However, its ability to effectively establish error in granting the motion to amend was severely impacted by its decision to not seek a continuance in the trial court. Defendant’s strategy pursued in the trial court, although not a mistake until viewed in hindsight, limited the arguments it could raise in the Court of Appeal.

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