September 13, 2013
When the Supreme Court is asked to hear a case raising an issue already before the court in another matter, the court will often grant and hold, i.e., grant review and defer further action in the new case until the first — or lead – case is decided. After the opinion in the lead case is final, the court will normally either dismiss review in the held case or transfer that case back to the Court of Appeal for reconsideration in light of the lead case opinion.
Two years ago, we looked at how long it takes the Supreme Court to dispose of held cases, finding a median four-week period between the Supreme Court’s remittitur in the lead case and the disposition of the held case. Things hadn’t changed much when our law clerk, Brett Safford, updated the study about seven months ago. But don’t bet on a held case lingering on the Supreme Court’s docket.
This week, the court acted quickly to get rid of a couple of held cases. Only seven days after the remittitur in a lead case — Zhang v. Superior Court – the court dismissed review in two held cases — Hughes v. Progressive Direct Insurance and Henderson v. Farmers Group. [Disclosure: Horvitz & Levy was counsel for the defendants in both Zhang and Hughes.] A dismissal of review is final on filing and there is no further briefing in and decision by the Court of Appeal in the case, as there normally would be if the case is instead transferred back to the Court of Appeal.
In the Hughes case, the court acted before the defendant’s time had even expired to oppose a motion the plaintiff had filed to dismiss review. In Henderson, the defendant did have the chance to oppose the plaintiff’s motion to dismiss review because the motion was filed more than two weeks earlier than the Hughes motion.
There is a practice lesson to learn from these quick dismissals. If (a) you successfully petitioned for review, (b) your case is a grant-and-hold, (c) the lead case decides the common legal issue unfavorably to your case, but (d) you believe there is good reason that the adverse Court of Appeal decision in your case should not stand despite the lead case opinion: explain that reason to the Supreme Court before the court issues a remittitur in the lead case. (The court shouldn’t dispose of a held case until after the remittitur in the lead case and a remittitur usually will not issue until at least 30 days after the Supreme Court’s opinion in a case.) This is so regardless of your having time left under the rules to file opposition to a pending motion to dismiss review in your held case.