Chaserious,
Simons’ new primary theory-- CUSTODY and CONTROL by “assigning Candace to Kendrick”-- replaced Simons’ old primary theory--CUSTODY and CONTROL by the 1989 BOE letter.
Robert reports the results: The oral arguments format “forces attorneys to focus on the two or three most important arguments.”
- “Simons’ did not emphasize that the 1989 BOE letter that he introduced during the trail was a smoking gun about the special relationship between the Watchtower and [Candace].”
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Simons’ response to Watchtower’s AOB introduced a new “smoking gun”, his new PRIMARY theory of choice.
1. Starting with Simons’ unresponsive INTRODUCTION then to his somewhat responsive argument section:
INTRODUCTION
Plaintiff Jane Doe (Candace Conti) was nine years old when the elders of defendant North Fremont Congregation .of Jehovah’s Witnesses (“Congregation”) repeatedly . assigned her to participate with Jonathan Kendrick, a man known to them as a child . molester, in the Congregation’s door-to-door ministry known as “field service.”
[R]egardless of whether defendants owed an affirmative duty to protect plaintiff, their . conduct in actively assigning her to participate in field service with a man they knew to be . a child molester constituted a misfeasance.
ARGUMENT
I. … IN ANY EVENT, THEY COMMITTED ACTUAL MISFEASANCE BY ASSIGNING HER TO FIELD SERVICE WITH KENDRICK.
I. B. Regardless Of Whether Defendants Owed An Affirmative Duty To Protect Plaintiff, They Committed Misfeasance By Assigning Plaintiff To Perform Field Service With Kendrick.
2. Now past the “approximately two pages” Simons continues to argue, advance, promote, amplify his NEW “smoking gun”, his new PRIMARY theory. In fact, twenty four times throughout the “approximately twelve pages” we see Simons’ new PRIMARY theory-- custody and control by “assigning Candace to Kendrick”--including …
- “There was substantial evidence that defendants exerted custody and control over Candace by assigning her to perform field service with Kendrick.
- "Here, substantial evidence supports the trial court’s determination that Watchtower and Congregation took custody and control of Candace by assigning her into field service, thereby creating a special relationship with her.
- “First, … Watchtower’s liability was based not only on its failure to protect plaintiff but also on its affirmative negligence in assigning plaintiff and Kendrick to perform field service together. Second, Watchtower’s duty to protect Candace arose from its special relationships with her.
- “[T]he fact that Candace was assigned to perform field service with Kendrick on multiple occasions supported an inference that defendants’ policy permitted a child to be assigned to field service with a known child molester.
- The opening briefs of both Watchtower and the Congregation … omit critical facts, including [1.] the fact that the elders assigned Jonathan Kendrick and Candace Conti together in field service …
3. Watchtower’s opening brief devoted some thirteen pages contradicting Simons’ “smoking gun about the special relationship between the Watchtower and [Candace]” So we would expect Simons’ response brief to include-- of necessity and not by choice-- “approximately twelve pages” defending the old theory.
4. Simons’ new PRIMARY theory, as feeble as it is, must be greatly preferable to his old theory. It cost Simons’ dearly to switch horses midstream.
- "It is a firmly entrenched principle of appellate practice that litigants must adhere to the theory on which a case was tried. Stated otherwise, a litigant may not change his or her position on appeal and assert a new theory. To permit this change in strategy would be unfair to the trial court and the opposing litigant." (Hines v. California Coastal Com 'n, Bd. of Supervisors of Sonoma (20 1 0) 186 Cal.App.4th 830, 846-847.)
Simons’ new PRIMARY theory violated “a firmly entrenched principle of appellate practice that litigants must adhere to the theory on which a case was tried.”
Chaserious, perhaps your objection to my “abandoned” is fair. Watchtowers’ Reply Brief characterized it as “relegates to the background”--not quite “all but abandoned”. What do you suggest?
