Appellate Procedure,  Waiver of Issues

Submission to tentative ruling on motion does not forfeit arguments on appeal

For the procedural argument raised by the respondent in Mundy v. Lenc., no.  B227962 (2d. Dist. Feb. 29, 2012), I don’t know whether to give the respondent credit for creativity or jeers for an obviously wrong argument. Either way, she lost on the procedural point (but managed to defend on the merits partially in any event).

At issue was whether the appellant was barred from challenging the trial court’s orders on two motions, either under the doctrine of invited error or the doctrine of waiver,  because the appellant had submitted to the trial court’s tentative ruling on each motion. The Court of Appeal reaches — what is to me, at least — the obvious answer: No.

Appellant Mundy appealed from rulings on two motions. The first was the trial court’s denial of Mundy’s anti-SLAPP motion (Code Civ. Proc., § 425.16) on Lenc’s cross-complaint. The second was an order awarding Lenc attorney fees on the anti-SLAPP motion.

The Court of Appeal rejected Lenc’s argument that submission to the tentative ruling amounts to invited error. Since the doctrine of invited error rests on the notion that the litigant has misled the trial court, it could not apply here because Mundy made his positions known to the trial court in his motion memoranda. Later submission on a tentative ruling is not a misleading act because it is a neutral act that “conveys neither agreement nor disagreement with the analysis [in the court’s tentative ruling].”

Lenc fared no better with her argument that submission on the tentative rulings amounted to a forfeiture of Mundy’s arguments on appeal. The primary reason the Court of Appeal rejected her argument is that the doctrine of forfeiture (or waiver) only applies to preclude an appellant from making an argument in the appellate court that he never raised in the trial court, and Mundy had indeed made the arguments in his motion memoranda. The court went further, however, analyzing two exceptions to the forfeiture doctrine, presumably to address arguments made by Mundy in response to the forfeiture argument, and found that both exceptions would apply in this case anyway.

The court found that the first exception — that a litigant need not raise in the trial court the insufficiency of the evidence to support a judgment — applied here because the orders appealed from are post-judgment orders and thus analogous to judgments, so Mundy had no obligation to object that the orders were unsupported by the evidence.

The court also found applicable a second exception — that futile objections are not waived on appeal — because any objection to the tentative would have been futile: “If Mundy’s attorney had told the trial court that he objected to the tentative rulings, the trial court would still have decided in favor of Lenc.” This reasoning strikes me as odd, given that the Court of Appeal reversed the attorney fee order in its entirety and reversed the order on the anti-SLAPP motion as to all but one of Lenc’s causes of action. Given that the trial court got almost everything wrong in its tentative, who’s to say that argument at the hearing would have been futile? That is, might not the attorney have been able to convince the trial court that it’s tentative rulings were wrong? Attorneys try to do so every day, and success is hardly unheard of. I think it would have been better for the court to rest on its principal reason for finding that the argument was not waived (i.e., that the arguments were made in the motion papers).

I joked a little at the start of this post about the unreasonableness of the respondent’s argument, but I can hardly fault her for raising it. Any colorable procedural argument that has the potential of affording the appellate court an escape from having to decide the appeal on the merits is usually too hard for a respondent to resist. And the language the Court of Appeal used to address it suggests that the justices found the argument creative, not frivolous. Creative arguments are how new law gets made.