Peter Kleidman v. Audrey B. Collins, Associate Justice, Court of Appeal of California, Second Appellate District, et al.

Question 1. Is this Court willing to use its supervisory power to formulate a rule (fashioned after FRAP 28(j)) which requires a Court of Appeals, when desiring to decide a case based on an authority issued after the appellate briefing was complete, to first provide the parties an opportunity to be heard on the appropriateness of the new authority? Question 2. Is this Court willing to use its supervisory power to formulate a rule which prevents a Court of Appeals from deciding a case based on a legal theory which was neither briefed by the parties nor identified in the parties’ statements of issues presented for review under FRAP 28(a)(5), 28(b)(2); or, to at least create a rule which requires the Court of Appeals, before issuing its decision, to first provide the parties an opportunity to be heard on the appropriateness of that legal theory? Question 3. Should the appellate case below be reopened because the Ninth Circuit decided the case based on an authority which arose after the appellate briefing was complete, without affording the parties to be heard thereon? Question 4. Should the appellate case below be reopened because the Ninth Circuit decided the case based on a legal theory which was neither briefed by the parties nor identified in their statements of issues presented for review under FRAP 28(a)(5), 28(b)(2)?