Gordon

DISCUSSION

It is a fundamental principle of appellate review that “ ‘a reviewing court will ordinarily not consider claims made for the first time on appeal which could have been but were not presented to the trial court.’ Thus ‘we ignore arguments, authority, and facts not presented and litigated in the trial court. Generally, issues raised for the first time on appeal which were not litigated in the trial court are waived.’ ” (Newton v. Clemons (2003) 110 Cal.App.4th 1, 11, fn. omitted.) A leading treatise on appellate practice explains that the rule that new theories cannot be asserted for the first time on appeal “is based on fairness—it would be unfair, both to the trial court and the opposing litigants, to permit a change of theory on appeal; and it also reflects principles of estoppel and waiver.” (Eisenberg et al., Cal. Practice

3 Guide: Civil Appeals and Writs (The Rutter Group 2023) ¶ 8:229, italics omitted.) Here, defendants argue for the first time that the arbitration agreements at issue were lawful unilateral contractual offers that expressly called for assent by the performance of employment duties, as reflected in a provision in each agreement stating, “I…