Petitions for rehearing are rarely granted, and even when granted, the court of appeal seldom changes the result and issues a new opinion. Then why file one? Because it may be the longshot that is successful, and in any event, it may be a necessary prerequisite to filing a petition for review in the California Supreme Court. Here are the basics on filing a petition for rehearing.
A party may petition for rehearing or the court may order rehearing on its own motion. Cal Rules of Ct 8.268(a)(1). A petition for rehearing is appropriate in the following circumstances:
- The court of appeal’s opinion contains a material misstatement or omission of a legal issue or material fact, i.e., one that affects court’s analysis;
- The opinion doesn’t decide all of the issues that were raised, e.g., entitlement to attorney fees or sanctions;
- The disposition of the case is ambiguous or erroneous;
- In its opinion, the court of appeal didn’t consider or address recent relevant and dispositive authority; or
- The successful party, though pleased with the disposition, wants to ask the court of appeal through a petition for rehearing to modify the opinion to correct errors and/or ambiguities rather than granting rehearing.
If your petition for rehearing simply points out either weaknesses in analysis or contrary public policy, you’re just giving the court of appeal a chance to strengthen the very same opinion that you will soon be asking the supreme court to reverse.
You’ll need to file and serve a petition for rehearing within 15 days after either (Cal Rules of Ct 8.268(b)(1)):
- The decision is filed;
- There’s a publication order restarting the finality period under Cal Rules of Ct 8.268(b)(1)(B);
- There’s a modification order changing the judgment under Cal Rules of Ct 8.264(c)(2); or
- A consent is filed under Cal Rules of Ct 8.264(d).
Rehearing may be granted only before the decision becomes final, i.e., within the 30-day period after the decision is filed with the appellate clerk. Cal Rules of Ct 8.268(a)(2).
Make sure your petition includes any issue or material fact that court misstated or omitted from its opinion; otherwise, the supreme court is unlikely to grant review on that ground.
Focus your petition for rehearing on showing the court of appeal’s error in reaching its decision. See, e.g., 1st App Dist IOPP §B.5. Don’t simply reargue points on appeal.
Your petition must conform to format requirements of Cal Rules of Ct 8.204. Cal Rules of Ct 8.268(b)(3). You have to serve a copy on all parties (Cal Rules of Ct 8.25(a)(1)), an electronic copy or four paper copies on the supreme court (Cal Rules of Ct 8.212(c)(2), 2.250), and a copy on the superior court clerk for delivery to the trial judge. Cal Rules of Ct 8.212(c)(1). A petition for rehearing is considered a brief for purposes of service. See Cal Rules of Ct 8.25.
For everything you need to know about filing a petition for rehearing in the court of appeal, turn to CEB’s California Civil Appellate Practice, chap 19. Also check out CEB’s Action Guide, Handling Civil Appeals, step 29.
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