Avoid This Common Appellate Error: If You Forgot to Raise an Issue in the Trial Court, Owning Up to It May Save Your Bacon on Appeal

Timothy Kowal, Esq.
  •  
December 10, 2020

Defendant was hit with a $103k fee award under the UFTA (fraudulent transfer statutes). In fact, there is no published California authority holding there is such a right to fees under the UFTA. And out-of-state authorities say no. (https://www.calattorneysfees.com/2020/11/substantiation-of-reasonableness-of-fees-detailed-time-entries-supported-103950-fee-recovery-under-f.html.)

But, trial counsel did not raise that issue in the trial court.

Defendant did raise it on appeal. But too late, held the Second District, Division Four in Shin v. Chung, Case No. B301055 (2d Dist., Div. 4 Nov. 18, 2020) (unpublished):

“It is a well-established tenet of appellate jurisprudence that a litigant may not pursue one line of legal argument in the trial court, and having failed in that approach, pursue a different . . . line of argument on appeal, thus depriving the trial court of the opportunity to consider what the appellant contends on appeal is the real dispute.” (Brandwein v. Butler (2013) 218 Cal.App.4th 1485, 1519.)

Fortunately for defendant, an appellate court may always "entertain a belatedly raised legal issue" in the court’s discretion. (Farrar v. Direct Commerce, Inc. (2017) 9 Cal.App.5th 1257, 1275.)

But, never missing an opportunity to miss an opportunity, defendants did not ask the Court of Appeal to exercise its discretion.

As appellate counsel, I see missed legal issues in the trial court all the time. But there are often ways to cure the defect and rescue your case. Ignoring it is not one of those ways.

Affirmed.

https://www.courts.ca.gov/opinions/nonpub/B301055.PDF