Forfeiture at the Pleading Stage: Ask Permission First, Don't Apologize Later

• Publication year: 2015
• Author: By Rupa G. Singh and Kevin K. Green

Forfeiture at the Pleading Stage: Ask Permission First, Don't Apologize Later

By Rupa G. Singh and Kevin K. Green

Rupa G. Singh

Kevin K. Green

Conventional wisdom holds that it is often better not to seek permission first but, if necessary, obtain forgiveness later. Although this approach may fly in business, politics, and even romance, it rarely takes flight in the appellate courts. Here we distill, and contrast, how merciful federal and California law are when it comes to considering new issues on appeal at the pleading stage of a civil action.

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In a federal appeal, a heartfelt mea culpa will fall on deaf ears if plaintiff's counsel failed to ask the district court for leave to amend. Similarly, defense counsel challenging a complaint who fails to raise all arguments, or plead all affirmative defenses, can request forgiveness for the omission, but likely in vain.

While California law is more lenient than the Ninth Circuit on forfeiture of an issue being appealed at the pleading stage, the best practice in state and federal court is to follow another familiar maxim: Better safe than sorry. That is, ask the trial court for relief to avoid forfeiting the issue on appeal.

Let's Get the Terms Straight

In most civil actions, the earliest major skirmish is whether the complaint states a claim for relief, that is, the pleading stage. Let's assume the trial judge grants a motion to dismiss (in federal court) or sustains a demurrer (in California), and the case is over.

In the ensuing appeal, two distinct concepts are occasionally conflated — waiver and forfeiture. "Although the loss of the right to challenge a ruling on appeal because of the failure to object in the trial court is often referred to as a 'waiver,' the correct legal term for the loss of a right based on failure to timely assert it is 'forfeiture,' because a person who fails to preserve a claim forfeits that claim." (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2.) "In contrast, a waiver is the intentional relinquishment or abandonment of a known right." (Ibid., internal quotation marks and citation omitted.) Federal law makes the same distinction. (In re Cellular 101, Inc. (9th Cir. 2008) 539 F.3d 1150, 1155 fn. 2.)

The difference is important because forfeiture — the loss of an issue on appeal — results from inaction. To preserve issues for appellate review, parties need to stay on their toes and take affirmative steps. We turn now to when and what to ask in the pleading context — that is, how California and Ninth Circuit law differ on pleading a claim for relief, leave to amend, and appellate review of both — and best practices to follow to avoid forfeiture under both regimes.

Pleading in Federal Court

Successfully stating a claim for relief in federal court is no longer a small matter, if it ever was. In limited situations, heightened pleading has always been necessary. (See, e.g., Fed. Rules Civ.Proc., rule 9(b) [fraud must be alleged "with particularity"].) But even notice pleading under Federal Rule of Civil Procedure 8 has become more rigorous.

In a 2007 antitrust case, the United States Supreme Court held that the complaint must "state a claim to relief that is plausible on its face." (Bell Atlantic Corp. v. Twombly (2007) 550 U.S. 544...