In honor of Halloween last week, imagine this: You watch the whole horror movie, trying to suss out who exactly is behind the Ghostface mask. At the very last moment, he pulls off the mask to reveal...someone who never appeared before in the whole movie.
Huh? Isn't that against the rules? Didn't Scream (and so many other scary movies) teach usthat the bad guy is always a character you've seen at some point before? After all, part of the fun of slasher movies is trying to figure out who is behind it all, and you can't do that if the killer actually is a complete mystery.
Now take that off the screen and into the courtroom. The appeal goes all the way through briefing, and at the very last minute, the panel pulls off the mask and reveals a legal theory that neither party argued. No one even saw it coming. Again...huh? That seems both unfair and a violation of the party-presentation doctrine. (Read more here.) Yet, it happens. And savvy practitioners know not to go down without a fight.
Enter Government Code § 68081. It is just two simple sentences, but they pack a punch and stand as a procedural safeguard ensuring fundamental due process in California appellate law:
"Before the Supreme Court, a court of appeal, or the appellate division of a superior court renders a decision in a proceeding other than a summary denial of a petition for an extraordinary writ, based upon an issue which was not proposed or briefed by any party to the proceeding, the court shall afford the parties an opportunity to present their views on the matter through supplemental briefing. If the court fails to afford that opportunity, a rehearing shall be ordered upon timely petition of any party."
In other words, the decision cannot come completely out of nowhere. Reviewing courts may identify dispositive issues, but litigants are entitled to brief the issues on which the eventual decision will rest. See Schneider v. Kaiser Foundation Hospitals (1989) 215 Cal.App.3d 1311,1315 n.2 (noting that the underlying rationale for section 68081 is "to assure that the parties have the opportunity to present relevant argument to the court based on a fair understanding of the facts and issues which will serve as the foundation for the court's decision").
The word "shall" is a key element of section 68081. This is one of the unique instances where appellate relief is mandatory. See Adoption of Alexander S. (1988) 44 Cal.3d 857, 865 (describing the obligation created by section 68081 as a "duty upon timely request to allow supplemental briefing"); Dieckmeyer v. Redevelopment Agency of Huntington Beach (2005)127 Cal.App.4th 248, 250, n. 1 (noting, on remand, the Supreme Court's order directing compliance with section 68081).
But as with all good horror movies, not everything in appellate procedure is exactly what it seems to be at first glance. The trick here is establishing the necessary prerequisite to require supplemental briefing. But what does it really mean for an issue to be "proposed or briefed"? If there's a whiff of the issue in the air, is that enough to deny supplemental briefing?
In People v. Alice (2007) 41 Cal.4th 668, 677, the California Supreme Court examined the question, noting that section 68081 "does not require that a party actually has briefed an issue; it requires only that the party had the opportunity to do so." The Rules of Court, byrequiring opening and responding briefs, "automatically give the parties the opportunity to brief every issue that is raised in the appeal," and the opportunity to brief an issue "includes the opportunity to brief any issues that are fairly included within that issue." Id. (emphasis added).
The focus, therefore, is what was "fairly included" in the parties' existing briefing. Courts of Appeal have, for the most part, liberally interpreted this standard. See e.g., People v. Escobedo (2023) 95 Cal.App.5th 440, 450 (section 68081 not implicated; whether appellants' filings were properly considered "freestanding petitions for relief" was "fairly included within the issue of the appealability of the trial court's orders denying [the] petitions"); Church Mutual Insurance Co. v. GuideOne Specialty Mutual Insurance Co. (2021) 72 Cal.App.5th 1042,1055, n.2 (2021) (denying supplemental briefing; whether an agency relationship existed between two parties was "fairly encompassed" within the main issue, namely, what relationship existed between the two parties in the first place); Navellier v. Putnam (2023), A166476, 2023 WL 5286328, at *3, n.4 (denying supplemental briefing; whether "service by mail was impossible or impracticable" was "fairly encompassed" within the issue of whether service, generally, was impossible or impracticable such that tolling should apply); see also Berkery v. Visit Elk Grove (2022) C092053, 2022 WL 1182723, at *9, n.9 (proactively noting that affirmance on a ground not reached by the trial court did not require supplemental briefing because the defendants raised the issue in demurrer).
Courts have made clear that some fundamental issues can be "fairly included" in briefing, even if they are not specifically addressed. In Save Laurel Way v. City of Redwood City (2017) 14 Cal.App.5th 1005, 1017, the Court of Appeal reversed, finding there were "no issues ripe for adjudication" concerning the Subdivision Map Act, because while the SMA might be implicated in future controversies between the parties, it was not implicated yet. The Court of Appeal denied one party's request for supplemental briefing on the issue of ripeness, stating "[j]usticiability is present in every case, and the issue of ripeness is 'fairly included'" within the argument that the development permit at issue did not violate the SMA. Id. at p.1015, n.9.
Similarly, in People v. Taylor (1992) 6 Cal.App.4th 1084, 1090, n.5, the majority rejected the dissent's assertion that supplemental briefing should be granted on the issue of the proper standard of review, stating "the standard of review question is present in every case, although the parties often ignore it." (emphasis original).
Courts also take seriously that section 68081 is intended to be a procedural safeguard and a way to ensure due process, not something that can be invoked on a mere technicality. In People v. Neilson (2007) 154 Cal.App.4th 1529, when the Court of Appeal affirmed based on the appellant's failure to provide an adequate record on appeal, the appellant argued that section 68081 required briefing on that issue. Clever, but no dice. The Court of Appeal pointed out that affirming on the issues raised for lack of an adequate record is not really a new issue on appeal. Rather, "provision of the record on appeal is a consideration in every appeal" and a "procedural and substantive requirement on the part of any party prosecuting an appeal or asserting a position on appeal." Id. at 1534. See also Herzog v. Superior Court (2024) 101 Cal.App.4th 1280, 1309 (court's sua sponte order for supplemental briefing was proper whenit wished to consider a new point of law not briefed).
The 9th Circuit has its own version of the appellate rehearing re-do rule. General Order 4.2 -- "Deciding Cases on Points Not Raised and Argued" -- encourages the court to "give serious consideration to requesting additional briefing and oral argument before issuing a disposition" "upon the basis of a significant point not raised by the parties in their briefs." Unlike section 68081, however, General Order 4.2 does not mandate supplemental briefing or rehearing if the parties do not have the opportunity to address a dispositive issue; instead, it leaves the decision to the court. See, e.g., United States v. Pridgette, 831 F.3d 1253, 1258 (9th Cir. 2016) ("When a panel is confronted with an important issue that was not fully addressed in the briefing, our General Orders advise that the panel should order supplemental briefing on that issue. And that's precisely what we did in this case."); see also United Ass'n Local 38 v. Aetna Cas. & Sur. Co., 790 F.2d 1428, 1432, n.3 (9th Cir. 1986) (Norris, J., conc. & dis. inpart) ("[General Order 4.2] protects the integrity of the adversary process by ensuring thateach party has a full and fair opportunity to address the relevant issues.").
Courts applying section 68081 strive to balance meaningful due process with judicial efficiency. Case law attempts to draw a careful line: When a court's reasoning materially departs from the issues that have been briefed, rehearing is mandatory; but when the analysis logically flows from arguments already presented, supplemental briefing and rehearing are not required. The statute is not designed to trigger repetitive briefing or rehearing whenever a decision expands upon arguments already raised. As the Court of Appeal put it in Taylor, determining that no supplemental briefing was warranted, "The purpose behind section 68081 is to prevent decisions based on issues on which the parties have had no opportunity for input. They certainly had the opportunity here." 6 Cal.App.4th at p. 1090, n.5. However, when a court's decision turns on a genuinely new legal theory or dispositive issue that falls outside what was fairly encompassed by the parties' briefing, section 68081 requires that the parties be given an opportunity to address the issue.
Reprinted with permission from Daily Journal.
