From Casetext: Smarter Legal Research

Mark v. Spencer

California Court of Appeals, Fourth District, Third Division
Sep 17, 2008
No. G038314 (Cal. Ct. App. Sep. 17, 2008)

Opinion


RONALD H. MARK, Plaintiff and Appellant, v. JEFFREY P. SPENCER, Defendant and Respondent. G038314 California Court of Appeal, Fourth District, Third Division September 17, 2008

ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING; NO CHANGE IN JUDGMENT

ARONSON, J.

It is ordered that the opinion filed herein on August 22, 2008, be modified as follows:

On page 9, at the end of the first paragraph, after the sentence ending “later enforcement of the agreement,” add as footnote 4 the following footnote:

4 In his petition for rehearing, Mark asserts he is entitled to rehearing under Government Code section 68081 because he had no prior notice of, or opportunity to address in briefing, our analysis drawing an analogy between rule 3.769(a) and Rules of Professional Conduct, rule 2-200, as the Supreme Court interpreted it in Chambers v. Kay (2002) 29 Cal.4th 142. We disagree. Government Code section 68081 requires rehearing when an appellate court “renders a decision in a proceeding . . . based upon an issue which was not proposed or briefed by any party to the proceeding . . . .” The issue we decide here, whether a plaintiff’s failure to comply with rule 3.769(a) bars later enforcement of a fee-sharing agreement, was fully briefed by the parties. The parties do not “have a right under section 68081 to submit supplemental briefs or be granted a rehearing each time an appellate court relies upon authority or employs a mode of analysis that was not briefed by the parties. The parties need only have been given an opportunity to brief the issue decided by the court and the fact that a party does not address an issue, mode of analysis, or authority that is raised or fairly included within the issues raised does not implicate the protections of section 68081.” (People v. Alice (2007) 41 Cal.4th 668, 679.)

This modification does not change the judgment. The petition for rehearing is DENIED.

WE CONCUR: SILLS, P. J., FYBEL, J.


Summaries of

Mark v. Spencer

California Court of Appeals, Fourth District, Third Division
Sep 17, 2008
No. G038314 (Cal. Ct. App. Sep. 17, 2008)
Case details for

Mark v. Spencer

Case Details

Full title:RONALD H. MARK, Plaintiff and Appellant, v. JEFFREY P. SPENCER, Defendant…

Court:California Court of Appeals, Fourth District, Third Division

Date published: Sep 17, 2008

Citations

No. G038314 (Cal. Ct. App. Sep. 17, 2008)