Raising Issues for the First Time on Appeal

One of the major obstacles faced by appellate attorneys, who are usually called into a case at the end of the proceedings, is the limitation on raising new theories at the appellate stage.  As a general rule, an appellant cannot assert a new theory for the first time on appeal.  This rule is based on fairness and incorporates principles of estoppel and waiver.  Of course, such a rule has profound implications for appellants and their trial attorneys. 

Having stated the general rule, I want to note there are exceptions.  In Brown v. Boren (1999) 74 Cal.App.4th 1303, the court stated:

“It is a firmly entrenched principle of appellate practice that litigants must adhere to the theory on which a case was tried.  Stated otherwise, a litigant may not change his or her position on appeal and assert a new theory.  To permit this change in strategy would be unfair to the trial court and the opposing litigant . . . To be sure, we have discretion to consider a new theory on appeal when it is purely a matter of applying the law to undisputed facts.” 

(Id. at p. 1316.)

          Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal. App.4th 820 goes one step further, stating, “Only when the issue presented involves purely a legal question, on an uncontroverted record and requires no factual determinations, is it appropriate to address new theories.”  (Id. at p. 847.) (Italics in original.)

          The appellate court may also exercise its discretion and consider constitutional issues raised for the first time on appeal “especially when . . . the asserted error fundamentally affects the validity of the judgment . . . or important issues of public policy are at issue . . .”  (County of Orange v. Ivansco (1998) 67 Cal.App.4th 328, 331, fn. 2.)

          Now contrast this general rule with the principle that the appellate court may affirm a judgment or order if it is correct on any  theory, regardless of the trial court’s expressed reasons.  As commonly stated, the appellate court examines the judgment and not the rationale.  The result is that the appellate court and even the respondent can raise new issues, unless the appellant would be prejudiced, such as the situation where the new theory involves an issue of fact.  “The parties’ failure to raise the issue in their original appellate briefs does not bar our consideration of it if the parties have had a fair opportunity to present their positions.”  (Woodward Park Homeowners Ass’n v. City of Fresno (2007) 150 Cal.App.4th 683, 714.) 

Other situations come to mind, such arguing how a complaint can be amended at the pleading stage or a change in law that would have validated the new theory had the law been in existence when the case was tried.  The lesson is that the prohibition is not absolute but the trial attorney should make every attempt in trying to present the  appellate court with a complete record, rather than hoping for exception.