Was petitioner deprived of due process of law when the appellate court based its decision on an argument that had never been raised in the trial court?

QUESTION PRESENTED Following extensive litigation between petitioner and the City of Berkeley, the City filed a motion to have petitioner declared a vexatious litigant, citing Calif. Code of Civil Procedure section 391, which defines a vexatious litigant as someone who repeatedly relitigates, “[a]fter . a litigation has been finally determined against the person,” the validity of the determination against the defendant “as to whom the litigation was finally determined,” or who relitigates issues “concluded by the final , determination against the same defendant or defendants as to whom the litigation was finally determined. [Italics added.] The City’s motion set forth a table listing 14 “items,” including _ pleadings and papers which, in the City’s words, “sought to relitigate the following matters that had already been decided.” (CT 11.) The first seven items were filed before the judgment became “finally determined.” Six of the remaining items were objections or requests to transfer the case to a different judge. The one remaining item sought to relitigate a ruling, but one item is not “repeatedly” relitigating anything. The trial court found petitioner to be a vexatious litigant. Petitioner appealed, arguing that almost all of the 14 pleadings did not qualify as relitigation. The City, in its answering brief, raised for the first time and without presenting any evidence that five other ‘Sudgments” qualified as relitigation. The California Court of Appeal based its affirmance on the City’s new arguments. The question presented is, was petitioner deprived of due process of law when the appellate court based its decision on an argument that had : never been raised in the trial court? , . i