Petitons for Review -

Guidelines for A Successful Petition

A party seeking review must petition the court between the 31st day and the 40th day after the Court of Appeal decision is filed. (See generally Cal. Rules of Court, rule 28(b).) The Supreme Court takes very few cases, as recent statistics show.

California Rules of Court, rule 29, sets for the guidelines the California Supreme Court uses in determined whether or not to grant review.

For all practical purposes, there are two essential elements of a successful petition for review: a conflict in published case law, and an important legal issue.

Conflicts

The most important item the California Supreme Court considers in deciding whether to grant review is whether there is a conflict in published Court of Appeal decisions. Without this, the Supreme Court virtually never grants review.

The best conflicts obviously occur where several Court of Appeal opinions have addressed the identical issue and resolved in in different ways. But even without this, it is sometimes possible to find a conflict in the relevant case law.

For example, if a published case holds one way, and the Court of Appeal's opinion distinguishes that case and then holds there other way, there is not a clear conflict. However, if the Court of Appeal's distinction does not make sense, and a strong argument could be made that the two cases should be treated similarly, then one could argue that there is in fact a conflict in the case law. The strength of this argument obviously depends on the weakness of the Court of Appeal's distinction.

If there is a conflict in published opinions, but the Court of Appeal's opinion that is the subject of the petition for review is not published, the California Supreme Court is not likely to take the case. However, there are two strategies that might work.

First, the petitioners can first petition the Court of Appeal or the California Supreme Court for publication. (See California Rules of Court, Rule 978.) If the case is published, then the California Supreme Court will be more likely to grant review.

Second, if there is a conflict among published cases, and the unpublished case represents a good vehicle for resolving this conflict, the Supreme Court might grant review, even though the underlying Court of Appeal opinion is unpublished. This is a long shot, and much depends on how good of a vehicle the opinon is for resolving this conflict.

Important Legal Issues

If there is a conflict in the published case law, the Supreme Court still is not likely to grant review unless the issue is of some importance.

If there are several published Court of Appeal opinions on this issue, the case is more likely to be of some importance.

Similarly, if the case involves common procedural issues, like summary judgment or discovery issues, the Supreme Court is more likely to consider it important.

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