This article originally appeared in The Recorder on June 2, 2017.

Many lawyers practicing in California courts tend to ignore unpublished decisions. They’re not citeable, they get a big red flag in Westlaw, and they can be frustrating when they’re the only authority you find that says just what you need it to say. 

We appellate lawyers, however, pay attention to all cases that come out of the Court of Appeal, published and unpublished. We do it to try to understand the appellate justices better. In the process, we see all kinds of mistakes that trial lawyers make that doom their later chances on appeal by waiving or forfeiting an issue.

(Notably, this effort is limited to the California appellate courts, which are mandated to issue decisions that fully discuss all facts and issues whether published or unpublished. In contrast, unpublished memorandum dispositions in the Ninth Circuit address facts and legal issues in a highly summary and generally opaque fashion. As a result, it’s hard to glean much of value from them.)

Here are a few tips about procedural traps for trial lawyers that were the subject of recent unpublished decisions from the California Court of Appeal:

If you’re a plaintiff, make sure your grounds for opposing a defendant’s summary judgment motion are in your complaint, or you’ll waive the argument on appeal. In Simpson v. Zhang, the Fourth District, Division 3, considered an appeal of an order granting summary judgment against a plaintiff in her dental malpractice action on statute of limitations grounds. The complaint sought damages for nerve pain following a dental implant procedure, but in her opposition to summary judgment, the plaintiff asserted a triable issue of fact based on the dental surgeon’s failure to inform her of his suspended license. The only problem: the complaint did not allege any claim based on the suspended license. The Court of Appeal affirmed on that basis, explaining that the plaintiff should have amended her complaint (or at least sought leave to amend) to allege damage from the dentist’s nondisclosure of his licensing status prior to the hearing if she wished to oppose summary judgment on that basis and preserve such an argument for appeal. 

If you think an arbitration agreement is unlawful, be sure to raise unlawfulness in the trial court before arbitrating or you’ll forfeit the contention on appeal. In Elms v. Ahn, a group of homeowners hired a contractor to build them an underground garage. A dispute eventually arose concerning the contractor’s work, and the contractor filed a demand for arbitration pursuant to the arbitration clause in his agreement with the homeowners. The homeowners filed a counterclaim, and the parties arbitrated. The contractor won. The contractor petitioned to confirm the award, but the homeowners opposed on the ground that the arbitration clause did not include statutorily required disclosures. The trial court confirmed the award anyway, and the Court of Appeal affirmed. The court found that where a party has an argument that an arbitration clause is unlawful, that argument must be raised in the trial court before arbitration commences. Otherwise, by participating in the arbitration, the party forfeits any argument that the arbitration clause is void.

If you allow a trial court to reopen an issue it already decided in your favor, even in complex, long-term litigation, you might waive any objection to the new ruling on appeal. In Darsky v. Darsky, the trial court decided numerous discreet financial issues in a complex divorce at different times over course of five years of litigation. In 2011, the court decided several financial questions in the wife’s favor, but a 2014 ruling revisited several of those questions, in addition to several others, and found in the husband’s favor. The wife appealed on the basis that the trial court was bound to the 2011 order by the doctrine of res judicata. The Court of Appeal found, however, that the wife did not complain at the 2014 hearing that res judicata prohibited the court from ruling on any of the issues it planned to – and eventually did – rule on. As a result, the court found the wife waived her argument based on res judicata.

If you let even one important in-court discussion take place off the record, you may end up inviting error and waiving your appeal. In Breeze v. Baer, the court “illustrate[d] the hazards of going off the record to discuss issues involving a complicated 12-page, 52-question special verdict form.” The special verdict in question awarded the plaintiff damages figure under a breach contract theory, and a much larger damages figure for the same conduct under a quantum meruit theory. The trial court entered the quantum meruit damages as the judgment, and the defendant appealed on the ground the court should have entered judgment for the contract damages instead. The Court of Appeal explained the defendant was right – because the jury found a contract exists, quantum meruit is inapplicable – but that because the defense submitted the proposed special verdict form that required the jury to resolve quantum meruit anyway, the defense invited the error and it could not form a basis for appeal. Although the defense asserted it requested the court tell the jury not to decide quantum meruit if it found a contract, the lack of a transcript of the verdict form colloquy meant any such request was not effectively preserved for appeal.

Every once in a while, it’s worth flipping through some of the unpublished decisions to see the mistakes that are catching the attention of the Court of Appeal and leading to waiver, forfeiture, and invited error findings – the kind of topics that don’t often make it into published format. Or, give your friendly neighborhood appellate lawyer a call early on in high-stakes litigation, so he or she can help make sure you don’t end up in one of those ignominious unpublished opinions yourself.

Ben Feuer is chairman of the California Appellate Law Group LLP*, a 12-attorney boutique and the largest appellate specialty firm in Northern California. He handles business and civil appeals in California and the Ninth Circuit. Ben’s bio is at www.calapplaw.com/ben, and you can email him at ben@calapplaw.com. On Appeals is a monthly column on recent appellate decisions written by the attorneys of the California Appellate Law Group LLP.

*In July 2022, the California Appellate Law Group was renamed the Complex Appellate Litigation Group.

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