Code of Civil Procedure section 1021.7 provides: "In any action for damages arising out of the performance of a peace officer's duties, brought against a peace officer . . ., or against a public entity employing a peace officer or in an action for libel or slander brought pursuant to Section 45 or 46 of the Civil Code, the court may, in its discretion, award reasonable attorney's fees to the defendant or defendants as part of the costs, upon a finding by the court that the action was not filed or maintained in good faith and with reasonable cause." In Planned Protective Services, Inc. v. Gorton (1988) 200 Cal.App.3d 1, the trial court awarded attorney fees for defense of a libel action brought in bad faith under Code of Civil Procedure section 1021.7. On appeal, the appellant attempted for the first time to raise another statute which expressly provided for an award of $ 100 attorney fees to defendants prevailing in libel and slander suits. The court applied the doctrine of theory of the case and refused to entertain the issue. "Appellant invited the error in his motion to tax costs in failing to cite section 1037; his points and authorities referred only to section 1021.7; his counsel's oral argument at the hearing was addressed solely to section 1021.7. Respondent responded in like fashion. the trial court was not informed about section 1037."