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Mwaniki v. eBay9/23/2005
ointing out that, in arguing for a mixed-motive jury instruction, defendant took the position below that a finding in favor of plaintiff on question 3 would necessarily lead to a finding in favor of plaintiff on question 4.
Plaintiff, however, concedes that she and defendant prepared the verdict form. In our view, plaintiff's contention is therefore untenable. A plaintiff cannot join in requiring a jury to answer a particular sequence of yes-or-no questions in a specified manner before liability can be imposed on the defendant and then, when the jury decides one of the questions against him or her, contend on appeal that its findings were incurably inconsistent. Although plaintiff tries to obscure the issue, she is in fact contending that the verdict form she agreed to was defective in the sense that the verdict form allowed the jury to answer question 4 independently rather than dependently (on question 3), thus inviting an inconsistent verdict.
"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. 1997) Appeal, § 399, pp. 451-452.) The theory-of-trial doctrine is "often . . . justified on principles of estoppel or waiver. Thus: [ ] (1) The assumption may result from the appellant's insistence on a certain theory (invited error). [Citations.] [ ] (2) The parties may adopt the theory by stipulation (express waiver of objection). [Citations.] [ ] (3) The assumption may be made by the respondent or the trial court with the acquiescence of the appellant (implied waiver)." (Id. § 400, p. 453.)
The theory-of-trial doctrine has frequently been applied in the context of special verdicts claimed to be inconsistent or erroneous. Thus, in Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677 (Mesecher), the court held that inconsistent answers to two special verdict questions would not invalidate a jury's verdict where the appellant had, for its own reasons, wanted both questions on the verdict form. (Id. at pp. 1686-1687.) In Myers Building Industries, Ltd. v. Interface Technology, Inc. (1993) 13 Cal.App.4th 949 (Myers), the court held that the plaintiff was bound by jury findings that were inadequate to support the punitive damages judgment against it, and was not entitled to a retrial, because it failed to propose an appropriate special verdict form. (Id. at p. 960, fn. 8.) As explained in Myers, " t is incumbent upon counsel to propose a special verdict that does not mislead a jury into bringing in an improper special verdict." (Ibid.)
Many other cases have applied the principles discussed in Mesecher and Myers in circumstances closely akin to those presented here. (See Electronic Equipment Express, Inc. v. Donald H. Seiler & Co. (1981) 122 Cal.App.3d 834, 858 and cases cited therein ["where the record is devoid of any showing that appellants objected to the special verdict questions, any inherent error therein is waived"]; Bate v. Marsteller (1965) 232 Cal.App.2d 605, 614 [erroneous submission of certain interrogatories to the jury cannot be raised on appeal where no timely objection was made in the trial court]; see also, Jentick v. Pacific Gas & Elec. Co. (1941) 18 Cal.2d 117, 121-122 [defendant invited inherently inconsistent general verdicts by requesting a certain instruction]; Stevens v. Owens-Corning Fiberglas Corp. (1996) 49 Cal.App.4th 1645, 1653 [appellant may not attack verdict that resulted from a jury instruction given at the appellant's request]; Mozzetti v. Cit
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