Opinion
No. S126035.
9-15-2004
DIECKMEYER v. REDEVELOPMENT AGENCY OF CITY OF HUNTINGTON BEACH.
Petition for review granted; transferred to Court of Appeal, Fourth District, Division Three.
Petition for review granted and the matter is transferred to the Court of Appeal with directions, as explained hereafter.
In its petition for rehearing filed in the Court of Appeal, plaintiff asserted that the Court of Appeal had failed to comply with the requirements imposed by Government Code section 68081 ("[b]efore . . . a court of appeal . . . renders a decision . . . 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"). In responding to this argument, the Court of Appeal concluded that the circumstances that "the point was raised by the court at oral argument, explored extensively by both sides, and neither side requested the opportunity to submit supplemental briefing on the issue . . . was sufficient to comply with Government Code section 68081." Because in our view these circumstances relied upon by the Court of Appeal are not sufficient to comply with section 68081, the petition for review is granted and the matter is transferred to the Court of Appeal with directions to vacate its opinion and determine whether the issue upon which the case was decided was fairly encompassed within the issues raised and addressed in the parties briefs. If the Court of Appeal determines that the issue was fairly encompassed within the issues raised in the parties briefs, the Court of Appeal may refile its opinion without further briefing. If the Court of Appeal determines that the issue upon which the case was decided was not fairly encompassed within the briefed issues, the Court of Appeal shall afford the parties an opportunity to file supplemental briefs on the issue, and then shall determine the matter in light of all of the briefing. Once the Court of Appeal has filed its opinion on remand, the parties may file a petition for review in this court.
GEORGE, C.J., KENNARD, BAXTER, WERDEGAR, CHIN, and MORENO, JJ., concur.