• Donna Bader
  • Attorney at Law
  • Certified Specialist in Appellate Law
  • 668 North Coast Hwy, Ste. 1355
  • Laguna Beach, CA  92651
  • Tel.: (949) 494-7455
  • Fax: (949) 494-1017
  • Donna@DonnaBader.Com



Donna Bader

Attorney at Law

Certified Specialist in Appellate Law

668 North Coast Hwy, Ste. 1355

Laguna Beach, CA  92651

Tel.: (949) 494-7455

Fax: (949) 494-1017





How the Doctrine of Invited Error can ruin your appeal. 

In Transport Ins. Co. v. TIG Ins. Co. (2012) ___ Cal.App.4th ___, the First Appellate District, Division Two, the court was faced with an appeal dealing with reinsurance, and more particularly, the jury's finding that the lawsuits were barred by the statute of limitations.  The appeal "generated over 8,000 pages of appendices, 35 volumes of reporter's transcripts, and 425 pages of well-written briefing, including a 180-page appellant's reply bief."  Whew! (Opn., p. 2.) (I would love to see - or have - the attorneys' fees in this case.)

The appellant argued the appeal involved several issues of first impression in California and looked to the court to become the lead authority on these issues.  Instead, the court resolved the appeal under principles of appellate review, including the doctrine of invited error. 

Appellant first argued that the trial court committed instructional error because the instruction on the statute oflimitations contained an incorrect statement of law regarding accrual and omitted any mention of tolling.  The court concluded the argument was barred by the doctrine of invited error.

Invited error occurs when an appellant's conduct induces or invites the commission or error by the trial court, resulting in an estoppel to raise it as a ground for reversal on appeal.  (As an interesting side note, the court cited to Cal. Practice Guide: Civil Appeals and Writs.  One of the authors of that treatise, Jon B. Eisenberg, is co-counsel for appellant.) 

While the instruction in this case was submitted by another party, appellant agreed to the instruction.  Appellant later argued that an attorney who submits to the trial court after an adverse ruling and after making appropriate objections, does not waive the error.  The court of appeal did not see it the same way, indicating that appellant's recitation of the fact was less than candid.

One complaint that I frequently hear is that attorneys cease objecting because they are fearful of a trial court's reaction.  The court stated, "the claim that advocating a position with an experienced judge would somehow 'aggravate' her is sheer speculation -- not to mention demeaning."  (Opn., pp. 25-26)  In reality, making objections can irritate a judge, and the attorney is mindful of the fact that during the course of trial, the judge has many opportunities to hurt the attorney's presentation of the case.  However, failing to object also results in the loss of valuable rights and grounds for appeal, so the attorney has to risk a judge's displeasure so the record on appeal can be preserved.

The court also noted that appellant did not request an instruction on equitable tolling.  Each party "'must propose complete and comprehensive instructions in accordance with his theory of the litigation; if the parties do not do so, the court has no duty to instruct on its own motion.'"  (Opn., p. 27.)

The court also found that appellant's challenge to the trial court's order denying its motion for summary adjudication failed because an order granting or denying summary adjudication is generally reviewable only by a petition for writ of mandamus, especially where the parties litigated the same issues at trial.  The court also found the argument would fail on its merits.

Finally, the court rejected appellant's last argument that the trial court erred in rejecting its equitable estoppel instruction.  Although appellant proposed such an instruction, the trial court did not find any evidence to support the instruction.  It concluded, "A party is entitled to 'correct' instructions on 'every theory of the case advanced by [it] which is supported by substantial evidence," citing Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572. (Opn., p. 32.)

How frustrating and expensive to have gone through this appeal, spending a boatload of money on attorneys' fees and producing a hefty boatload of paper, only to have the door shut on you on strictly procedural issues.





The importance of integrity in the appellate process

When I first entered the legal profession, I believed it was truly a noble profession.  Over time my belief in the legal system has eroded and I have observed plenty of examples of dishonesty, unnecessary aggression, and lack of civility.  It doesn't surprise me that many people have a rather low opinion of attorneys.

Times are changing and it seems that people also have a rather low opinion of politicians, bankers, mortgage brokers, etc.  The list could go on.  The importance of credibility and connecting with one's customers or clients cannot be denied.  While the Internet was first thought of a place where people did not have to make personal connections, my experience has been otherwise, that people are connecting in new ways and in numbers that I could never envision.

Right after Thanksgiving, the Court of Appeal in the Fourth Appellate District, Division Three, filed an opinion in Kim v. Westmoore Partners, Inc., in which it sanctioned attorney Timothy J. Donahue $10,000 for lying to the court when seeking an extension of time, and for filing a boilerplate accusation and request for sanctions against opposing counsel.  The decision included a "cautionary tale for appellate counsel.  Those who practice before this court are expected to comport themselves honestly, ethically, professionally and with courtesy toward opposing counsel."  (Opn., pg. 3.)

What had Donahue done?  He sought an extension of time to file his respondent's brief, which is not a required document, stating additional time was needed to address the "complex issues raised" and to research and finalize the brief.  The extension request was granted.  When his brief was filed, it turned out to be an almost exact duplicate of a brief he filed years earlier.  In fact, the court could observe where some words from the earlier case that had not been changed.  (A warning about using cut-and-paste and then failing to adequately proofread the brief.)  The court reasoned that frivolous appeals do not require significant time to rebut.  Mr. Donahue's letter brief was conclusory, even to the point of suggesting that the order was issued in error, and the court must have meant it was considering sanctions against appellant's counsel.

On the day of oral argument, Donahue sent another attorney, who was unaware of the sanction request.  What a surprise!  The court issued a second order to demand Donahue's personal appearance.  The court noted that not every request for an extension will be deemed sanctionable merely because it doesn't contain much detail, but given the facts in this case, the request was not reasonable.

The court decided it could not overlook Donahue's conduct and used its published opinion to instruct the legal profession:

"Our legal profession is rife with cynicism, awash in incivility.  Lawyers and judges of our generation spend a great deal of time lamenting the loss of a golden age when lawyers treated each other with respect and courtesy.  It's time to stop talking about the problem and act on it.  For decades, our profession has given lip service to civility.  All we have gotten from it is tired lips.  We have reluctantly concluded lips cannot do the job; teeth are required.  In this case, those teeth will take the form of sanctions."

(Opn., pg. 30.)

This is the start of a new year.  People are searching for others who will be honest and try to solve problems honestly and simply, without escalating disputes into modern warfare.  If you have a list of resolutions for 2012, let this be the first one on it.


Happy 2012!

Every year about this time, I am faced with a dilemma.  Do I prepare a list of resolutions or not?  In the past, I have diligently done so with a hoped for weight loss almost always at the top of the list.  Sometimes my wishes were general, i.e., "peace on earth," "exercising more," or they involved specific items, such as writing in my journal on a daily basis or walking for 30 minutes a day.  Other years have gone by and I made no resolutions.  Why not?  Because I make resolutions every single day and January 1st was just another day.  That line of thinking eliminated lots of pressure because I could take a failed resolution and fashion it into a brand new for the following day.

I have been done this blog for several years now.  With the birth of Google+, Twitter, and Facebook, I am told that  blogging is dead.  My blog is written mostly for trial lawyers, so it would be hard to imagine that a mainstream audience might be interested in recent appellate cases if I were to post publicly on Google+.  Or perhaps I am underestimating a large segment of the population.

I find myself being interested in events beyond my appellate practice.  I listen and watch news programs - I love Rachel Maddow! - when before I might have filled up that time with episodic comedies or classic movies.  Last month I traveled to Cuba to conduct some research on its legal system, only to discover that one cannot accurately assess Cuba's legal system without considering its political and social systems.  It was a valuable mission and I can't wait to report on my visit and share my observations.

While I enjoy my appellate work, I want to devote time to more creative endeavors, such as photography and creative writing.  So much is happening in the world right now that I find I cannot stick my nose in a law book and ignore it.  That means that my blog will change too.  I hope you enjoy it.             




Oh, let's forget about work and just enjoy the Holiday season.   I hope you appreciate what you have and your friends and family.  I'll be back in January 2012!  


Prop. 8 supporters celebrate the California Supreme Court's decision in Perry v. Brown

In Perry v. Brown, 2011 Cal. LEXIS 11683, filed on November 17, 2011, the Supreme Court of California was asked by the United States Court of Appeals for the Ninth Circuit the question of whether the official proponents of an initiative measure have standing to defend the constitutionality of the initiative or appeal a judgment invalidating the initiatve when public officials refuse to do so.

The Supreme Court decided a procedural issue that might arise in any action involving an initiative.  In the federal case, the opponents of Proposition 8 are challenging its constitutionality.  Proposition 8 would add a section to the California Constitution providing that "[o]nly marriage between a man and a woman is valid or recognized in California."  The Supreme Court was not deciding the substantive question of the constitutional validity of Proposition 8, which will be decided by the Ninth Circuit.

The Court noted that in the past official proponents of initiative measures have been allowed to participate as parties, either as interveners or real parties in interests, and they did not have to show that their property, liberty or other personal legally protected interests would be affected if the measure was invalidated.  They were also allowed to participate in such lawsuits whether or not the government officials were also defending the measure. 

In an opinion by our new Chief Justice Cantil-Sakauye, the Court wrote that in situations where the public officials have declined to defend the initiative's validity, and in light of the "nature and purpose of the initiative process embodied in article II, section 8 of the California Constitution . . . and the unique role of initiative proponents in the constitutional initiative process . . .," it would constitute an abuse of discretion to deny official proponents a role in the proceedings.  (Opn. , pg. 10.)  The Court continued:

"In other words, because it is essential to the integrity of the initiative process embodied in article II, section 8 that there be someone to assert the state's interest in an initiative's validity on behalf of the people when the public officials who normally assert that interest decline to do so, and because the official proponents of an initiative (in light of their unique relationship to the initiative measure under art. II, sec. 8 and the relevant provisions of the Elec. Code) are the most obvious and logical persons to assert the state's interest  in the initiative's validity on behalf of the voters who enacted the measure, we conclude that California law authorizes the official proponents, under such circumstances, to appear in the proceeding to assert the state's interest in the initiative's validity and to appeal a judgment invalidating the measure. Neither the Governor, the Attorney General, nor any other executive or legislative official has the authority to veto or invalidate an initiative measure that has been approved by the voters. It would exalt form over substance to interpret California law in a manner that would permit these public officials to indirectly achieve such a result by denying the official initiative proponents the authority to step in to assert the state's interest in the validity of the measure or to appeal a lower court judgment invalidating the measure when those public officials decline to assert that interest or to appeal an adverse judgment."

(Opn., pgs. 10-11.)

I know, that's a fine way to start the Holiday season.  Now the 9th Circuit can work on the substantive aspects of the appeal, and hopefully, Proposition 8 will be declared unconstitutional.

Have a Happy Thanksgiving!