10 California opinions name it 2 courts 1978–2022 4 in the last five years
The cases below were cited by California courts in a sentence that names this issue. Sides come from how each citing opinion treated the case (Syfertize flag on that citation), so a case can appear on both: that is where the law is contested. A red or yellow chip is the case's own overall treatment.
| Case | Followed | Cited |
|---|---|---|
County of Los Angeles v. Southern California Edison Co.green2 sentences2021“The doctrine of waiver ordinarily prevents a party from arguing for the first time on appeal questions that were not presented to the trial court. [Citations.] The doctrine of invited error prevents a party from asserting an alleged error as grounds for reversal when the party through its own conduct induced the commission of the error. [Citations.] Related to 7 these doctrines is the doctrine of theory of trial: ‘Where the parties try the case on the assumption that a cause of action is stated, that certain issues are raised by the pleadings, that a particular issue is controlling, or that o 2021“The doctrine of waiver ordinarily prevents a party from arguing for the first time on appeal questions that were not presented to the trial court. [Citations.] The doctrine of invited error prevents a party from asserting an alleged error as grounds for reversal when the party through its own conduct induced the commission of the error. [Citations.] Related to 7 these doctrines is the doctrine of theory of trial: ‘Where the parties try the case on the assumption that a cause of action is stated, that certain issues are raised by the pleadings, that a particular issue is controlling, or that o | 2 | 2 |
Durkee v. Chino Land and Water Co.green2 sentences2019Where the parties try the case on certain theories or on assumptions that certain issues are raised by the pleadings, or that a particular issue is controlling, neither can change this theory for purposes of review on appeal. ( Sumner Hill Homeowners' Assn., Inc. v. Rio Mesa Holdings, LLC (2012) 205 Cal.App.4th 999 , 1026, 141 Cal.Rptr.3d 109 [rejecting a new defense theory on appeal]; see also Durkee v. Chino Land and Water Co. (1907) 151 Cal. 561 , 569, 91 P. 389 [defendant could not argue for the first time on a new trial motion that plaintiff used an incorrect rule to measure damages where 2019Where the parties try the case on certain theories or on assumptions that certain issues are raised by the pleadings, or that a particular issue is controlling, neither can change this theory for purposes of review on appeal. ( Sumner Hill Homeowners' Assn., Inc. v. Rio Mesa Holdings, LLC (2012) 205 Cal.App.4th 999 , 1026, 141 Cal.Rptr.3d 109 [rejecting a new defense theory on appeal]; see also Durkee v. Chino Land and Water Co. (1907) 151 Cal. 561 , 569, 91 P. 389 [defendant could not argue for the first time on a new trial motion that plaintiff used an incorrect rule to measure damages where | 1 | 1 |
Norgart v. Upjohn Co.green2 sentences2003(Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 403 [ 87 Cal.Rptr.2d 453 , 981 P.2d 79 ]; Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1414 [ 122 Cal.Rptr.2d 167 ].) Related to these doctrines is the doctrine of theory of trial: “Where the parties try the case on the assumption that a cause of action is stated, that certain issues are raised by the pleadings, that a particular issue is controlling, or that other steps affecting the course of the trial are correct, neither party can change this theory for purposes of review on appeal.” (9 Witkin, Cal. Procedure (4th ed. 2003(Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 403 [ 87 Cal.Rptr.2d 453 , 981 P.2d 79 ]; Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1414 [ 122 Cal.Rptr.2d 167 ].) Related to these doctrines is the doctrine of theory of trial: “Where the parties try the case on the assumption that a cause of action is stated, that certain issues are raised by the pleadings, that a particular issue is controlling, or that other steps affecting the course of the trial are correct, neither party can change this theory for purposes of review on appeal.” (9 Witkin, Cal. Procedure (4th ed. | 1 | 1 |
Strasberg v. Odyssey Group, Inc.green2 sentences2003“The theory upon which a case was tried in the court below must be followed on appeal.” 1 (Strasberg v. Odyssey Group, Inc. (1996) 51 Cal.App.4th 906, 920 [ 59 Cal.Rptr.2d 474 ].) “ ‘ “A party is not permitted to change his position and adopt a new and different theory on appeal. 2003To permit him to do so would not only be unfair to the trial court, but manifestly unjust to the opposing litigant. [Citation.]"' [Citations.]" ( Ibid. ) The theory of trial doctrine is applicable where "the evidence offered and authorities submitted in a trial are directed solely to establishment of a particular legal relationship or legal doctrine of liability or defense. | 1 | 1 |
Baskett v. Crookgreen2 sentences2003(Baskett v. Crook (1948) 86 Cal.App.2d 355, 363 [ 195 P.2d 39 ] [change from theory of property jointly acquired during marriage as husband and wife to theory of resulting trust not permitted on appeal].) There is an exception to the theory of trial doctrine. 2003(Baskett v. Crook (1948) 86 Cal.App.2d 355, 363 [ 195 P.2d 39 ] [change from theory of property jointly acquired during marriage as husband and wife to theory of resulting trust not permitted on appeal].) There is an exception to the theory of trial doctrine. | 1 | 1 |
Gee v. American Realty & Construction Inc.green2 sentences2003(Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 403 [ 87 Cal.Rptr.2d 453 , 981 P.2d 79 ]; Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1414 [ 122 Cal.Rptr.2d 167 ].) Related to these doctrines is the doctrine of theory of trial: “Where the parties try the case on the assumption that a cause of action is stated, that certain issues are raised by the pleadings, that a particular issue is controlling, or that other steps affecting the course of the trial are correct, neither party can change this theory for purposes of review on appeal.” (9 Witkin, Cal. Procedure (4th ed. 2003(Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 403 [ 87 Cal.Rptr.2d 453 , 981 P.2d 79 ]; Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1414 [ 122 Cal.Rptr.2d 167 ].) Related to these doctrines is the doctrine of theory of trial: “Where the parties try the case on the assumption that a cause of action is stated, that certain issues are raised by the pleadings, that a particular issue is controlling, or that other steps affecting the course of the trial are correct, neither party can change this theory for purposes of review on appeal.” (9 Witkin, Cal. Procedure (4th ed. | 1 | 1 |
FPI Development, Inc. v. Nakashimagreen2 sentences1997(See 5 Witkin, Cal. Procedure [(3d ed. 1985)] Pleading, §§ 1121-1164, pp. 537-587.) For that reason we deem plaintiffs’ failure to challenge the sufficiency of the pleading of affirmative defenses as a partial waiver of the right to rely upon these defects on appeal. [*]D We do so for reasons analogous to the appellate doctrine of theory of trial. ‘Where the parties try the case on *877 the assumption that a cause of action is stated, that certain issues are raised by the pleadings, that a particular issue is controlling, or that other steps affecting the course of the trial are correct, neith 1997(See 5 Witkin, Cal. Procedure [(3d ed. 1985)] Pleading, §§ 1121-1164, pp. 537-587.) For that reason we deem plaintiffs’ failure to challenge the sufficiency of the pleading of affirmative defenses as a partial waiver of the right to rely upon these defects on appeal. [*]D We do so for reasons analogous to the appellate doctrine of theory of trial. ‘Where the parties try the case on *877 the assumption that a cause of action is stated, that certain issues are raised by the pleadings, that a particular issue is controlling, or that other steps affecting the course of the trial are correct, neith | 1 | 1 |
Ward v. Taggartgreen2 sentences1978(Ward v. Taggart (1959) 51 Cal.2d 736, 742 [ 336 P.2d 534 ].) 3 While we have, therefore, decided the question, we note that the trial court thoughtfully considered the issue before it. 1978(Ward v. Taggart (1959) 51 Cal.2d 736, 742 [ 336 P.2d 534 ].) 3 While we have, therefore, decided the question, we note that the trial court thoughtfully considered the issue before it. | 1 | 1 |
| Case | Negative | Cited |
|---|---|---|
| No negative-treatment citations attached to this issue in California. Read the followed side critically anyway. | ||
| Case | Cited | Years |
|---|---|---|
Jentick v. Pacific Gas & Electric Co.
green
2 sentences2019As the Supreme Court found in Jentick , where a defendant's actions are responsible for the erroneous instructions and verdict, the defendant must accept them. 6 ( Jentick , supra , 18 Cal.2d at p. 122 , 114 P.2d 343 .) The principles underlying the theory of trial doctrine also support our conclusion. 2019As the Supreme Court found in Jentick , where a defendant's actions are responsible for the erroneous instructions and verdict, the defendant must accept them. 6 ( Jentick , supra , 18 Cal.2d at p. 122 , 114 P.2d 343 .) The principles underlying the theory of trial doctrine also support our conclusion. | 2 | 2019–2019 |
Blaser v. State Teachers' Retirement System
green
1 sentence2022Instead, as the trial court found after the original hearing on the writ petition, “Teachers did not contest the substance of the final audit’s conclusion . . . ; instead, Teachers asserted ‘technical challenges’ that CalSTRS’s 31 claim was time-barred.” (Blaser I, supra, 37 Cal.App.5th at p. 369 , original italics.) Teachers’ new position appears to be precluded under the theory of trial doctrine: “Where the parties try the case on the assumption that certain issues are raised by the pleadings, or that a particular issue is controlling, neither party can change this theory for purposes of rev | 1 | 2022–2022 |
Fuller v. Dep't of Transp.
green
1 sentence2022Instead, as the trial court found after the original hearing on the writ petition, “Teachers did not contest the substance of the final audit’s conclusion . . . ; instead, Teachers asserted ‘technical challenges’ that CalSTRS’s 31 claim was time-barred.” (Blaser I, supra, 37 Cal.App.5th at p. 369 , original italics.) Teachers’ new position appears to be precluded under the theory of trial doctrine: “Where the parties try the case on the assumption that certain issues are raised by the pleadings, or that a particular issue is controlling, neither party can change this theory for purposes of rev | 1 | 2022–2022 |
Marsango v. Automobile Club of Southern California
green
1 sentence2021(Marsango v. Automobile Club of Southern California (1969) 1 Cal.App.3d 688, 694 .) Defendants contend that because the Segerstroms argued at trial that the contract called for restoration to a factory-line standard, not simply a concours-trailered standard, they cannot now argue that the record demonstrates a failure to restore the cars to the concours-trailered standard. | 1 | 2021–2021 |
Sumner Hill Homeowners' Ass'n v. Rio Mesa Holdings, LLC
green
2 sentences2019Where the parties try the case on certain theories or on assumptions that certain issues are raised by the pleadings, or that a particular issue is controlling, neither can change this theory for purposes of review on appeal. ( Sumner Hill Homeowners' Assn., Inc. v. Rio Mesa Holdings, LLC (2012) 205 Cal.App.4th 999 , 1026, 141 Cal.Rptr.3d 109 [rejecting a new defense theory on appeal]; see also Durkee v. Chino Land and Water Co. (1907) 151 Cal. 561 , 569, 91 P. 389 [defendant could not argue for the first time on a new trial motion that plaintiff used an incorrect rule to measure damages where 2019Where the parties try the case on certain theories or on assumptions that certain issues are raised by the pleadings, or that a particular issue is controlling, neither can change this theory for purposes of review on appeal. ( Sumner Hill Homeowners' Assn., Inc. v. Rio Mesa Holdings, LLC (2012) 205 Cal.App.4th 999 , 1026, 141 Cal.Rptr.3d 109 [rejecting a new defense theory on appeal]; see also Durkee v. Chino Land and Water Co. (1907) 151 Cal. 561 , 569, 91 P. 389 [defendant could not argue for the first time on a new trial motion that plaintiff used an incorrect rule to measure damages where | 1 | 2019–2019 |
Jones v. Dutra Construction Co.
green
2 sentences2019Where the parties try the case on certain theories or on assumptions that certain issues are raised by the pleadings, or that a particular issue is controlling, neither can change this theory for purposes of review on appeal. ( Sumner Hill Homeowners' Assn., Inc. v. Rio Mesa Holdings, LLC (2012) 205 Cal.App.4th 999 , 1026, 141 Cal.Rptr.3d 109 [rejecting a new defense theory on appeal]; see also Durkee v. Chino Land and Water Co. (1907) 151 Cal. 561 , 569, 91 P. 389 [defendant could not argue for the first time on a new trial motion that plaintiff used an incorrect rule to measure damages where 2019Where the parties try the case on certain theories or on assumptions that certain issues are raised by the pleadings, or that a particular issue is controlling, neither can change this theory for purposes of review on appeal. ( Sumner Hill Homeowners' Assn., Inc. v. Rio Mesa Holdings, LLC (2012) 205 Cal.App.4th 999 , 1026, 141 Cal.Rptr.3d 109 [rejecting a new defense theory on appeal]; see also Durkee v. Chino Land and Water Co. (1907) 151 Cal. 561 , 569, 91 P. 389 [defendant could not argue for the first time on a new trial motion that plaintiff used an incorrect rule to measure damages where | 1 | 2019–2019 |
Simmons v. Ware
green
2 sentences2019Where the parties try the case on certain theories or on assumptions that certain issues are raised by the pleadings, or that a particular issue is controlling, neither can change this theory for purposes of review on appeal. ( Sumner Hill Homeowners' Assn., Inc. v. Rio Mesa Holdings, LLC (2012) 205 Cal.App.4th 999 , 1026, 141 Cal.Rptr.3d 109 [rejecting a new defense theory on appeal]; see also Durkee v. Chino Land and Water Co. (1907) 151 Cal. 561 , 569, 91 P. 389 [defendant could not argue for the first time on a new trial motion that plaintiff used an incorrect rule to measure damages where 2019Where the parties try the case on certain theories or on assumptions that certain issues are raised by the pleadings, or that a particular issue is controlling, neither can change this theory for purposes of review on appeal. ( Sumner Hill Homeowners' Assn., Inc. v. Rio Mesa Holdings, LLC (2012) 205 Cal.App.4th 999 , 1026, 141 Cal.Rptr.3d 109 [rejecting a new defense theory on appeal]; see also Durkee v. Chino Land and Water Co. (1907) 151 Cal. 561 , 569, 91 P. 389 [defendant could not argue for the first time on a new trial motion that plaintiff used an incorrect rule to measure damages where | 1 | 2019–2019 |
In Re the Marriage of Weaver
green
2 sentences2003An appellate court has discretion to consider a new and different theory "`where a question of law only is presented on the facts appearing in the record.' [Citation.] `"But if the new theory contemplates a factual situation the consequences of which are open to controversy and were not put in issue or presented at the trial the opposing party should not be required to defend against it on appeal."'" ( Strasberg v. Odyssey Group, Inc., supra, 51 Cal.App.4th at p. 920 , 59 Cal.Rptr.2d 474 .) A new legal theory is more likely to be considered on appeal if an important issue of public policy is i 2003An appellate court has discretion to consider a new and different theory "`where a question of law only is presented on the facts appearing in the record.' [Citation.] `"But if the new theory contemplates a factual situation the consequences of which are open to controversy and were not put in issue or presented at the trial the opposing party should not be required to defend against it on appeal."'" ( Strasberg v. Odyssey Group, Inc., supra, 51 Cal.App.4th at p. 920 , 59 Cal.Rptr.2d 474 .) A new legal theory is more likely to be considered on appeal if an important issue of public policy is i | 1 | 2003–2003 |
In Re Marriage of Freeman
green
2 sentences2003An appellate court has discretion to consider a new and different theory "`where a question of law only is presented on the facts appearing in the record.' [Citation.] `"But if the new theory contemplates a factual situation the consequences of which are open to controversy and were not put in issue or presented at the trial the opposing party should not be required to defend against it on appeal."'" ( Strasberg v. Odyssey Group, Inc., supra, 51 Cal.App.4th at p. 920 , 59 Cal.Rptr.2d 474 .) A new legal theory is more likely to be considered on appeal if an important issue of public policy is i 2003An appellate court has discretion to consider a new and different theory "`where a question of law only is presented on the facts appearing in the record.' [Citation.] `"But if the new theory contemplates a factual situation the consequences of which are open to controversy and were not put in issue or presented at the trial the opposing party should not be required to defend against it on appeal."'" ( Strasberg v. Odyssey Group, Inc., supra, 51 Cal.App.4th at p. 920 , 59 Cal.Rptr.2d 474 .) A new legal theory is more likely to be considered on appeal if an important issue of public policy is i | 1 | 2003–2003 |