Court Holds Every One of Appellant's Arguments Waived

Timothy Kowal, Esq.
April 9, 2021

About 3-4% of appeals are dismissed on technical grounds. But in addition to that, many more go through full briefing on the merits, but still ultimately fail on technical grounds. Here is an appellate effort that failed for purely technical reasons. Ghannoum v. Sevier (D2d2 Apr. 7, 2021) no. B304026 (unpublished). (The court also clearly was not excited by appellant's arguments.)

Plaintiff rented a room to defendant. The lease had an attorney fee provision. The lease also had a mediation requirement, and if any party failed to mediate, that party would lose its right to fees.

A dispute arose and plaintiff wrote a letter to defendant demanding mediation. Defendant wrote back 12 days later agreeing to mediation. But plaintiff filed suit anyway, without mediating. Plaintiff lost, and the court awarded attorney fees to the defendant.

Plaintiff appealed. The court held plaintiff had waived every issue:

Waiver of Opposition to Fees for Failing to Raise It in Opposition Brief:

On appeal, plaintiff argued fees against plaintiff's wife were improper because she was not a signatory to the lease. Plaintiff also argued its claim for conversion was not "on the contract." Held: Waived for failing to raise the issues in opposition to the fee motion.

“Failure to raise specific challenges in the trial court forfeits the claim on appeal. ““[I]t is fundamental that a reviewing court will ordinarily not consider claims made for the first time on appeal which could have been but were not presented to the trial court.’ Thus, ‘we ignore arguments, authority, and facts not presented and litigated in the trial court. Generally, issues raised for the first time on appeal which were not litigated in the trial court are waived. [Citations.]’ ” [Citation.]’ ” (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 564 (Premier Medical).)

I hasten to note that failing to raise an argument in the trial court is not always a forfeiture. The Court of Appeal always has discretion to consider new arguments on appeal:

"In any event, an appellate court has discretion to consider for the first time on appeal an issue of law, particularly if it is not dependent on the production of additional evidence and, as here, the parties have been afforded a reasonable opportunity to address the question. (See Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 2444 Cal.Rptr.2d 370900 P.2d 619Matera v. McLeod (2006) 145 Cal.App.4th 44, 5951 Cal.Rptr.3d 331; see also City of Maywood v. Los Angeles Unified School Dist. (2012) 208 Cal.App.4th 362, 416, fn. 24, 145 Cal.Rptr.3d 567.)" Concepcion v. Amscan Holdings, Inc. (2014) 223 Cal.App.4th 1309, 1324.

But as I mentioned above, the Court of Appeal was not excited by plaintiff's arguments. It noted the lease referenced the property was owned by both husband and wife. And on the "on the contract" argument, the court specifically explained: "Even absent such forfeiture, the argument is not well taken." So it was not inclined to make an exception from the general rule.

Waiver for Failing to File a Valid Reconsideration Motion:

Plaintiff tried to preserve the nonsignatory issue by raising it in a motion for reconsideration. But to be a valid reconsideration motion, it must be accompanied by an "affidavit." (Code Civ. Proc., § 1008.) Plaintiff failed to do that. Plaintiff also failed to explain why the nonsignatory issue wasn't raised earlier – that is, why it was truly a new issue.

These defects in the reconsideration motion rendered the issues forfeited on appeal. (Premier Medical, supra, 163 Cal.App.4th at p. 564.)

I would note that the trial court arguably was without jurisdiction to grant a reconsideration motion even despite these defects, as the fee order was a final, appealable order. See Marshall v. Webster (Cal. Ct. App. Aug. 27, 2020) C088240, discussed previously here.

Waiver for Failing to Raise Arguments in Opening Brief:

Plaintiff also argued defendant's 12-day delay in responding to the demand for mediation waived defendant's right to mediation.

Held: Waived. "Plaintiffs waived these arguments by failing to raise them in their opening brief on appeal. (Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 894, fn. 10.)"

I also wager the court was not excited by this argument of plaintiff's, either.

Ultimately, a loss is a loss. But one wants to avoid losing by way of all arguments being deemed waived.

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at, and publishes a newsletter of appellate tips for trial attorneys at Contact Tim at or (714) 641-1232.