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Mwaniki v. eBay9/23/2005
y of Brisbane (1977) 67 Cal.App.3d 565, 572-573 [appellant invited trial court error in submitting legal question to the jury by requesting an instruction on that issue]; Coorough v. DeLay (1959) 171 Cal.App.2d 41, 46-47 [party that offered jury interrogatory addressing issue cannot assert on appeal that the issue should have been decided as a matter of law by the court]; Newton v. Thomas (1955) 137 Cal.App.2d 748, 763 [where party joins in submission of issue to jury it cannot thereafter attack that submission]; cf. Horsemen's Benevolent & Protective Assn. v. Valley Racing Assn. (1992) 4 Cal.App.4th 1538, 1555 [appellant cannot submit a matter for determination by the lower court and then contend on appeal that the matter was beyond the scope of the issues]; Abbott v. Cavalli (1931) 114 Cal.App. 379, 384 [counsel are bound by a theory in which they plainly acquiesced]; Sommer v. Martin (1921) 55 Cal.App. 603, 610 [the law casts upon the party the duty of looking after his legal rights and of calling the judge's attention to any infringement of them]; but see Lambert v. General Motors (1998) 67 Cal.App.4th 1179, 1183 [declining to invoke invited error doctrine where parties jointly prepared special verdict form that allowed special verdicts inconsistent with each other and with general verdict].)
"There is nothing shocking about these rules. They are consistent with the adversary system's appreciation that lawyers in civil litigation must be given adequate breathing room to select whatever trial strategies they deem appropriate. Absent the need for the same constitutional protections afforded to defendants in criminal cases, there is considerable judicial deference to attorney creativity in civil cases. Admittedly the results of such creativity can be mixed with the lawyer and his or her client being rewarded in some cases and not in others. Nonetheless our adversary system requires that we allow counsel the right to maximize the use of his or her trial skills so that the fairness of the result will not be questioned because the court curtailed the lawyer's role. [ ] Although this laissez faire judicial attitude towards the trial lawyer increases the probability that the outcome in most cases is correct, it also involves the risk that the lawyer's gamble may go awry with a skewed or ambiguous result. Absent unusual circumstances in spite of this risk, appellate courts generally are unwilling to second guess the tactical choices made by counsel during trial. Thus where a deliberate trial strategy results in an outcome disappointing to the advocate, the lawyer may not use that tactical decision as the basis to claim prejudicial error." (Mesecher, supra, 9 Cal.App.4th at p. 1686.)
Here, assuming for the sake of analysis that the special verdict was inconsistent, we find that plaintiff invited the defect by submitting the special verdict form. She cannot now assert inconsistency as a ground for reversing the judgment.
We nevertheless observe that plaintiff's contention fails on the merits.
Where special verdicts are at issue, it is a legal question whether there is inconsistency: " here is no . . . presumption in favor of upholding a special verdict. Rather, a special verdict's correctness must be analyzed as a matter of law. [Citation.] This is because a special verdict is far more susceptible to defect than a general verdict, which can be tested with special findings." (Mendoza v. Club Car, Inc. (2000) 81 Cal.App.4th 287, 303.) Nevertheless, when a court is called upon to interpret a special verdict, the verdict should be interpreted, if possible, so as to uphold it and give it the effect intended by the jury as well as one consistent with the law and the evidence. (All
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