What is the consequence of a disposition of an appeal where a motion for a new trial was denied?

The first two options operate in a manner that is grossly unjust to the parties. A disposition of the appeal which affirms the judgment because appellant failed to proceed on a theory in the trial court which was not open to him at the time of trial but which has now become part of the law of California unfairly penalizes him for a lack of extrasensory perception (See Marsango v. Automobile Club of Southern California, 1 Cal.App.3d 688, 82 Cal.Rptr. 92.) A disposition which orders a new trial on all issues similarly penalizes respondents for not presenting evidence on the motion for new trial bearing upon a theory not asserted by appellant and which could not properly have been considered by the trial court at the time of hearing on the motion.