Legal Question in Appeals and Writs in California

in california can you do a reconsideration to the appeal second district before going to supreme court, how does the supreme court decide what cases to review?

Asked on 4/03/13, 9:45 pm

4 Answers from Attorneys

James Goff James R. Goff, Attorney at Law
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A petition to the Court of Appeal must be filed within 15 days of the filing of the original opinion. A petition for review to the California Supreme Court must be filed within 10 days of the finality of the original opinion (30 days from original filing the opinion is final) A petition for rehearing is necessary in civil cases or the Supreme Court will not examine the factual merits of the appeal in regard to a petition for review. If the original opinion has become final before an appropriate petition for a rehearing has been filed, you may be able to ask the Court of Appeal to recall its remittitur from the trial court to permit the filing of a petition for rehearing. Any default is difficult to overcome. Good luck.

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4/04/13, 12:25 am
James Goff James R. Goff, Attorney at Law
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A petition to the Court of Appeal must be filed within 15 days of the filing of the original opinion. A petition for review to the California Supreme Court must be filed within 10 days of the finality of the original opinion (30 days from original filing the opinion is final) A petition for rehearing is necessary in civil cases or the Supreme Court will not examine the factual merits of the appeal in regard to a petition for review. If the original opinion has become final before an appropriate petition for a rehearing has been filed, you may be able to ask the Court of Appeal to recall its remittitur from the trial court to permit the filing of a petition for rehearing. Any default is difficult to overcome. Generally, the Supreme Court looks to correct a decision that is in conflict with its decisions or has created a conflict with decisions from other appellate courts. Rarely it will determine a novel issue that affects the public generally. Good luck.

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4/04/13, 12:29 am
Edward Hoffman Law Offices of Edward A. Hoffman
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Mr. Goff is mistaken when he says that " A petition for rehearing is necessary in civil cases or the Supreme Court will not examine the factual merits of the appeal in regard to a petition for review." A petition for rehearing is only required if the petitioner wants to later tell the Supreme Court that the Court of Appeal was wrong about the facts or the law. That is true in both civil and criminal cases. Most Supreme Court petitions do make one or the other (or both) of these types of arguments, but some don't.

Although the Court of Appeal is there to correct errors made by trial courts, the Supreme Court serves a different purpose. Its job is to make sure that there are authoritative answers to important legal questions. As Mr. Goff notes, it will often intervene when different Courts of Appeal have given different answers to the same questions, since the existence of more than one answer means none is authoritative. But even then it is not required to take the case. It will often deny petitions which raise such conflicts. Sometimes that's because the issue just doesn't seem important enough compared to the ones raised by other petitions. Other times it is because the particular case does not present the issue very well and the justices believe the same issue will soon be presented better in a different case.

The fact that the Supreme Court has yet to rule on a particular question does not mean the question has no authoritative answer. If one or more Courts of Appeal has answered in persuasively, that will usually be good enough. It would be a waste of the Supreme Court's limited resources to take a case just so it can say it agrees with an answer that was already clear and persuasive.

I disagree with Mr. Goff's statement that the Supreme Court will rarely accept cases which don't involve such conflicts. Important questions often reach the Court before a conflict has developed, and the Court will often agree to take such cases. The Court will also sometimes agree to consider a legal question on which all California courts agree if some federal courts and/or courts of other states have answered it differently.

So the way to persuade the Supreme Court to take your case is to show that it presents an important legal question which has not yet been answered authoritatively. Showing that the decision in your case conflicts with other decisions is one way to do that, but there are others. Arguing only that you deserved to win is *not* the way to go.

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4/04/13, 12:22 pm
Anthony Roach Law Office of Anthony A. Roach
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I agree with Mr. Hoffman.

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4/05/13, 8:28 am

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