Modification: EpicentRx, Inc. v. Superior Court (EpiRx LP)

EPICENTRx, INC. et al.

Petitioners,

v.

THE SUPERIOR COURT OF SAN DIEGO COUNTY,

Respondent;

EPIRx, L.P.,

Real Party in Interest.

No. D081670

(Super. Ct. No. 37-2022-00015228)

California Court of Appeal

Fourth Appellate District

Division One

Filed October 10, 2023

ORDER MODIFYING OPINION AND DENYING REHEARING

NO CHANGE IN JUDGMENT

THE COURT:

It is ordered that the opinion filed herein on September 21, 2023, be modified as follows:

1. On page 16, footnote 7, is modified to read as follows:

^7. In the proceedings below, the defendants argued EpiRx would not be entitled to a jury trial on any of its causes of action if the dispute were heard in California. The trial court rejected this argument and the defendants did not challenge this determination in their appellate briefs. At oral argument, however, the defendants claimed---for the first time on appeal---that EpiRx would not be entitled to a jury trial for any of its causes of action in California. "It is not generally appropriate to consider a new contention raised for the first time at oral argument." (McMillin Homes Construction, Inc. v. National Fire & Marine Ins. Co. (2019) 35 Cal.App.5th 1042, 1056, fn. 7; see Karton v. Ari Design & Construction, Inc. (2021) 61 Cal.App.5th 734, 753 [new contention presented at oral argument forfeited].) We decline to address the defendants' belatedly raised argument.

2. On page 23, at the end of the first full paragraph, add as footnote 9, the following footnote:

^9. After we issued our opinion in this case, the defendants filed a petition for rehearing in which they asserted a number of new arguments, including claims that: (1) the burden-shifting framework discussed herein is inapplicable because it purportedly applies only to California residents and EpiRx has not shown that it is in fact a California resident; (2) EpiRx is not entitled to a jury trial in California for any of its causes of action because this is a derivative action; and (3) proceeding with this case in the Delaware Court of Chancery would not deprive EpiRx of a jury trial because, in some circumstances, the Chancery Court may order factual issues to be determined by a jury. "Matters raised for the first time in a petition for rehearing are deemed waived." (Samantha B. v. Aurora Vista Del Mar, LLC (2022) 77 Cal.App.5th 85, 109; In re D.L. (2023) 93 Cal.App.5th 144, 166 ["A petition for rehearing is not the place to raise any argument ... for the first time."].) For this reason, we deem the defendants' new arguments forfeited.

There is no change in the judgment.

The petition for rehearing is denied.

McCONNELL, P. J.