Is a party who failed to raise an issue of jurisdiction in the trial court entitled to do so on appeal?

California, United States of America


The following excerpt is from Bates v. Davis, B227973, Los Angeles County Super. Ct. No. BC 383360 (Cal. App. 2011):

As respondent points out, appellants fail to cite the portion of the record in which they raised an issue of jurisdiction in the trial court. "It is well established that issues or theories not properly raised or presented in the trial court may not be asserted on appeal, and will not be considered by an appellate tribunal. A party who fails to raise an issue in the trial court has therefore [forfeited] the right to do so on appeal." (In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 117; The Fifth Day, LLC v. Bolotin (2009) 172 Cal.App.4th 939, 962; see In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2.)

It is clear that "the sort of jurisdiction provided by [Probate Code section 17000, subdivision (a)] is not the sort of fundamental jurisdiction, i.e., implicating the competency or inherent authority of the court, the lack of which would render a judgment void." (Harnedy v. Whitty (2003) 110 Cal.App.4th 1333, 1345.) Thus, "even in a county having a formal probate department, a nonprobate department does not lack fundamental jurisdiction over a probate matter. Instead, . . . the probate department has 'primary' jurisdiction and a nonprobate department 'secondary' jurisdiction of probate-related proceedings. . . ." (Id. at p. 1344.) By not raising the issue before the trial court, appellants are barred by principles of waiver and estoppel from challenging the "jurisdiction" of the trial court for the first time on appeal. (Ibid.)

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