I was a properly joined nominal defendant heir under §§ CCP 377.60,
377.61, 583.210, 382, and 474 DOES Substitution, in a
wrongful death claim. I hired an attorney who should
have made a motion to have me reclassified as a plaintiff. Instead the
attorney filed a complaint in intervention under § CCP 387 which
resulted in my being incorrectly dismissed from the case for a statute
of limitations bar. The Court wrongly viewed me as a new party.
I wrote a rough draft motion proving that under current law I was a
party to the case from its commencement and a plaintiff not a
defendant, and that the dismissed plaintiff in intervention could have
not dismissed me from this case. My attorney filed the motion but
removed the part about the complaint in intervention. This was
obviously done on purpose as the attorney did not want to admit she
made a mistake in filing for intervention in the first place. The
motion was denied based on my previously dismissed complaint in
So can I appeal that ruling using the appellate court decision that my
attorney left out of the motion? Without that citable case I cannot
win the appeal.
The general rule is that the appellate court will not consider a new or different theory than that presented in the trial court, for the purpose of finding reversible error. There are exceptions and ways to massage that rule in some circumstances.
Your belief that your attorney intentionally failed to present the correct theory in order to avoid admitting a mistake, by the way, may or may not be accurate. It is at least as likely - if not more so - that your attorney refused to use your theory because it is incorrect.
In any event, I suggest that you retain new (appellate?) counsel for advice on how best to proceed.
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