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Clifford v. American Drug Stores8/22/2005
(Roberts).)
In this case, Sav-On's theory throughout the trial was that the statute of limitations and its continuing violation component were not jury questions at all. Instead, Sav-On asserted that the trial court should exclude all evidence of acts occurring prior to July 8, 1997. Such a ruling would have precluded the jury from making a determination of whether plaintiff had proven the applicability of the continuing violation doctrine under any standard. Thus, while Sav-On viewed the one-year limitation period as a defense, it did not view that defense as a matter for jury consideration or, hence, for jury instruction. At the instruction conference, Sav-On's counsel proffered special instruction no. 4 with the following statement: "If some appellate court believes this is an issue for the jury rather than for the court, we're offering an instruction on it." Such a begrudging "request" is hardly calculated to obtain trial court concurrence. Of course, the trial judge had expressed the opinion that the continuing violation formulation of Accardi applied. Sav-On expressly disagreed with that standard and made no alternative request that the trial judge instruct on Accardi or any other standard supported by extant California authority.
Sav-On's conduct discloses a deliberate trial strategy of precluding the jury from considering evidence of whether plaintiff had proved a continuing violation, unless the jury was instructed in accord with the standard that Sav-On preferred -- a standard that the trial court was obligated to reject under then existing California decisions. Thus, Sav-On effectively put the trial judge "in the untenable position" of either giving Sav-On's erroneous instruction, or drafting a different instruction in line with then-current California law with which Sav-On expressly disagreed. (Roberts, supra, 109 Cal.App.3d at p. 635, fn. 11) Under these circumstances, we conclude that the trial court had no duty to correct or modify Sav-On's proffered instruction, and that Sav-On failed to preserve for appeal any claim that the trial court should have instructed, sua sponte, on the statute of limitations and the continuing violation doctrine. (See id., at p. 635, & fn. 11.) "`There is neither reason nor justification for compelling a trial judge to act as a sort of advisory or "backup" counsel, with all the frustration of the employed attorneys' trial strategy and tactics which such a holding could encompass.'" (Id. at p. 635, quoting Gagosian v. Burdick's Television & Appliances (1967) 254 Cal.App.2d 316, 318; see also Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677, 1686.)
Sav-On also contends that we should independently address the statute of limitations utilizing the Richards standard and make our own determination that some of Clifford's claims are barred. We cannot agree.
Resolution of a statute of limitations issue is normally a question of fact, u
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