When one appellate court just isn’t enough
You are the appellant or the respondent in an appeal and you lost. Or you are the petitioner for a writ of mandate and just received a one-line summary denial. How do you approach the decision whether to petition the California Supreme Court and how does drafting a petition for review differ from the process you just went through in the Court of Appeal?
Petition for rehearing
The petition for review is governed by California Rules of Court, rule 8.500. But before we discuss the petition for review, Rule 8.500(c) helpfully reminds us that the Supreme Court cannot review any issue which was not raised before the Court of Appeal. It is important to remember that the Supreme Court will not see the appellate briefing in the petition for review. Only the appellate opinion is attached to the petition for review. (See Rule 8.504(b)(4).)
The petition for rehearing is due 15 days after the decision of the Court of Appeal is filed. (Rule 8.268(a).) Even where the Court of Appeal agrees with you that there is something missing in its opinion, it will commonly use a vehicle of “deny and modify” rather than a grant. This is because actually granting the petition for rehearing vacates the decision and reopens briefing. (See Rule 8.268(d); see also In re Schroeder (Mar. 27, 2020, No. B294264) 2020 Cal. App. LEXIS 281 [example of a grant order].) Often, all you really want is for the Court of Appeal to modify its decision to correct an omission that was already argued by the parties and “deny and modify” is the most efficient way for the Court of Appeal to accomplish that goal.
The other difference between “deny and modify” and grant is that a full-on grant will restart the finality clock discussed below, while deny and modify does not. Moreover, if the Court of Appeal does not respond to your petition for rehearing within 30 days, it “is deemed denied.” (Rule 8.268 (c).) Practically, this means that even after you file a petition for rehearing you must be prepared to go ahead with a petition for review without the luxury of waiting for a response from the Court of Appeal. You might not know until you only have 10 days left. (See Rule 8.500(e)(1) and below.)
When available, the best approach for getting rehearing granted is to convince the Court of Appeal that it will get reversed by the Supreme Court for failure to give both sides adequate opportunity for briefing. Government Code section 68081 states, in pertinent part, “Before . . . 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. If the court fails to afford that opportunity, a rehearing shall be ordered upon timely petition of any party.”
And the California Supreme Court has not shied away from enforcing section 68081 when necessary. (See Dieckmeyer v. Redevelopment Agency of Huntington Beach (2004) 18 Cal.Rptr.3d 871 [even where issue raised by Court of Appeal at oral argument and argued by the parties, and neither side requests opportunity to submit supplemental briefing, Court of Appeal errs in addressing unbriefed issue in its holding].)
However, for our purposes where we are trying to preserve issues with an eye for a petition for review, even a summary denial will abet our cause. Just remember to let the Supreme Court know that the issue was raised in a petition for rehearing so the reviewer can check that requirement off her list. (Rule 8.500(c).)
California Rules of Court, rule 8.500
As promised, we will now discuss finality. Ordinarily, a petitioner has 40 days to file a petition for review after the Court of Appeal reaches a decision. That is calculated as 10 days after “finality,” which is 30 days after the decision for a regular appeal, including “involuntary dismissal.” (Rules 8.264(b)(1), 8.500(e)(1).) However, it is crucial to be aware that finality is immediate for denial of a writ petition. (Rules 8.264(b)(2)(A), 8.490(b)(1).) The 10 days is jurisdictional and does not get pushed off for a holiday or weekend. (Rule 8.500(e)(1).) So, if your counsel absolutely must take a vacation, make sure the petition is filed early.
Yes, you read that right – you might have as little as 10 days to decide whether to petition and then to get counsel to draft, prepare and file it. So, what should your focus be?
The Supreme Court helpfully tells us the grounds for review in Rule 8.500(b):
(1) When necessary to secure uniformity of decision or to settle an important question of law;
(2) When the Court of Appeal lacked jurisdiction;
(3) When the Court of Appeal decision lacked the concurrence of sufficient qualified justices; or
(4) For the purpose of transferring the matter to the Court of Appeal for such proceedings as the Supreme Court may order.
We will be discussing the first ground as it is the most common and can be separated into two categories: (1) where there is a split of authority between two Court of Appeal opinions, including where unpublished cases are coming out differently; and (2) where you can argue that the appellate and trial courts need guidance that can only come from the loving yet stern hand of the Supreme Court. This is especially true here in California where every published Court of Appeal opinion is binding on all trial courts, including those in other appellate districts. That can be a problem when two opinions contradict each other.
The split of authority ground, especially between published cases, is the easier petition for review, both in making a decision to petition (do it!) and in drafting the argument. The argument will consist of notifying the Court about the two contradictory opinions, explaining why they are contradictory in implication if not facially, and stressing both why this is an impossible situation for the trial courts and why the issue will recur. The opinion from which you are petitioning will hopefully explicitly reject and/or distinguish the earlier opinion, especially as your appellate counsel helpfully brought the earlier opinion to the Court’s attention. If it doesn’t, then it’s definitely time for a petition for rehearing, discussed above.
Where there is no obvious split of authority is where the artfully crafted petition for review attains its greatest import.
It’s not an opening brief (and don’t use contractions!)
When approaching the petition for review, the first mistake most attorneys make (even seasoned appellate attorneys) is considering the petition for review another chance to argue the merits of the case. The common argument is that the Court of Appeal is wrong. The problem is that the California Supreme Court receives over 1,000 civil petitions for review annually but only grants around 30 – a three percent rate. (See https://www.courts.ca.gov/documents/2019- Court-Statistics-Report.pdf.) It is clearly not a court of error correction. Instead, your goal is to convince the court that there is uncertainty in the lower courts, either in the trial court or the appellate courts, or both, and that it needs to step in to make sure that similarly situated parties in the California courts are receiving equal treatment.
This is the hardest part for an attorney to swallow, but that might mean refraining from attacking the opinion from which you are petitioning, always keeping in mind that the Supreme Court does not care if the Court of Appeal was “right” or “wrong” as long as there is stability in the legal landscape.
Let’s take an example from a recent petition for review I drafted from the summary denial of a writ petition challenging a juvenile court’s decision to grant a transfer order to adult criminal court. The writ petition focused on the application of a five-factor test under Welfare & Institutions Code section 707. The Court of Appeal issued a summary denial.
In the petition for review, my focus was on the dearth of case law giving guidance to the trial courts as to how to balance the five factors and the weight to be given to each of them. It remains to be seen if review will be granted, but I was able to interest the Court sufficiently that it required my opposing counsel to file an answer.
Let’s talk brass tacks. The petition’s first section will be the Issue(s) Presented. (See Rule 8.504(b)(1).) Present as few as possible, so that the Court does not outright deny the petition. Even if you have two issues with the opinion, and almost certainly if you have four, you will want to pick the strongest and narrow it down to one or two issues to increase your chance of review on at least one of them.
Even more than with most briefs, this introductory section is the place to pack the biggest punch. The reviewer won’t look beyond the issues presented. Some issues may be really simple and can be kept to a single paragraph, but often the Issues Presented section will require a brief explanatory background paragraph so that the reviewer does not need to look further into the brief to understand the import of the issues presented. Practitioners differ on whether to use “Whether…” or whether to use a question format with a question mark, but either is equally acceptable to the Court.
Whether a law requiring all dogs to wear bow ties violates the constitution.
Does a law requiring all dogs to wear bow ties violate the constitution?
Next, the petition should have a brief Statement of the Case, combining a procedural history and statement of relevant facts, culminating in the Opinion of the Court of Appeal. Citation to the record is acceptable if necessary (the Court can obtain a copy if it so desires), but otherwise citation should be confined to the attached Opinion. This is also the place to let the Supreme Court know that appellate counsel filed a petition for rehearing addressing the omissions of the Court of Appeal. Its length will depend on the needs of the issues presented, but remember, the goal is for the reviewer to be able to read through it quickly and get what she needs before moving on to the meat of the petition.
And finally, the petition should make the arguments for why the issues compel action by the Supreme Court.
This Case Presents a Split in Authority on the Important Question of How to Properly Secure a Bow Tie on the Dog.
This Case Presents a Novel Issue and Is Necessary to Settle the Important Question for the Trial Courts of How to Properly Secure a Bow Tie on the Dog.
In This Case Petitioner Properly Secured the Bow Tie and the Court of Appeal Should Have Reversed the Decision of the Trial Court.
While the petition should certainly indicate where the Court of Appeal was wrong, and avoid admissions against interest, it should always remain focused on why, regardless of whether the Court of Appeal reached the wrong decision, the lower courts would still benefit from the Supreme Court’s guidance. Don’t be afraid that your petition isn’t focusing on the merits – after your petition is granted, that’s what the opening brief on the merits is for.
David Zarmi is a certified appellate specialist who has handled hundreds of appeals and writ petitions in the California Courts of Appeal, the 9th Circuit Court of Appeals, the U.S. District Court and the California Supreme Court. Before entering private practice, he spent eight years as a Deputy Attorney General representing the State of California in the federal courts and in California appellate courts. He has also worked as a staff attorney for both the California Court of Appeal and the Los Angeles Superior Court.
by the author.
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