In Bourgi v. West Covina Motors, Inc., ___ Cal.App.4th ___ (Sept. 24, 2008), the Court of Appeal (Second Appellate District, Division Eight) addressed preservation of a challenge to instructional error on appeal:
Initially, we address whether appellant has waived on appeal any claim that the jury was improperly instructed. Appellant failed to assert instructional error in its opening or reply briefs. We invited the parties to state their views on whether the trial court committed error when it instructed the jury it could consider the safe harbor provisions of the Vehicle Code only with reference to punitive damages claimed in the action and, if so, whether such error was prejudicial to appellant. We also informed the parties and amicus that we proposed to take judicial notice of the underlying superior court file in the matter. We have reviewed the supplemental briefs filed by the parties and amicus in response to our invitation.
Not surprisingly, appellant argued in its supplemental brief that the trial court committed prejudicial error in refusing to properly instruct the jury that the Vehicle Code provides a safe harbor against liability. Respondent objects that we may not construct new legal theories or arguments not raised by appellant to undermine the judgment, nor may we consider portions of the superior court file not designated by appellant. (See Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 [“It is not our place to construct theories or arguments to undermine the judgment and defeat the presumption of correctness”].)
We take note, however, that “‘[t]he rule requiring an adequate legal argument . . . is largely for the convenience of the reviewing court. And, since the court may decide a case on any proper points or theories, whether urged by counsel or not, there is no reason why it cannot examine the record, do its own research on the law, or accept a belated presentation.’ [Citation.]” (Banco Do Brasil, S.A. v. Latian, Inc. (1991) 234 Cal.App.3d 973, 999, fn. 41; see 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 702, pp. 771-772.)
It would be unjust to close our eyes to patent error. As our former colleague in Division Seven observed, appellate courts are not “‘potted plant[s]’ unable to consider issues unless they are spoon fed by the parties.” (Lopez v. Baca (2002) 98 Cal.App.4th 1008, 1031, dis. opn. of Johnson, Acting P. J.; see also People v. Alice (2007) 41 Cal.4th 668, 679 [appellate court may decide issue not raised or briefed by parties if court affords parties opportunity to address issue in supplemental briefs].)
We hold, therefore, that the issue of instructional error has been sufficiently raised and preserved by appellant’s argument on appeal that the trial court erred in denying the motion for summary judgment.
Slip op. at 14-15.