The delicate balance of choosing how many issues to raise in a petition for review

A petition for review to the Supreme Court must start “with a concise, nonargumentative statement of the issues presented for review.” (Rule 8.504(b)(1).) Standard advice to practitioners is to not overload a petition with too many issues. (E.g., Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs (The Rutter Group 2022) Ch. 13-B ¶ 13:59 [“Be selective about the issues. It is rarely helpful to raise more than two issues. . . . A petition with too many issues is likely to suggest to the court that none of them are very compelling.”].)

On the other hand, there’s what happened in last week’s People v. Ramirez opinion. (See here.)

The court rejected the claim that a defendant was deprived of his right to be present for part of his trial, holding substantial evidence supported the superior court’s finding that the defendant voluntarily absented himself when he sought treatment for a drug overdose. The defendant argued in the alternative that, if there was a voluntary absence, “then the trial court’s refusal to grant a one-day continuance was an abuse of discretion.” (Brief here.)

The court refused to decide the alternative argument, however, because, the opinion said in footnote, “Defendant’s petition for review did not adequately raise the additional question of whether the trial court abused its discretion when it denied defense counsel’s motion for a continuance.” Although two justices dissented, saying they wanted to reach — and rule in the defendant’s favor on — the continuance issue, the defendant was out of luck.

The Ramirez majority was following the rule that the court “may decide any issues that are raised or fairly included in the petition or answer.” (Rule 8.516(b)(1).) Thus, the corollary to the advice about not raising too many issues is that you need to raise enough issues. (See Cal. Practice Guide: Civil Appeals & Writs, Ch. 13-B ¶ 13:59 [“in exceptional cases, several major issues may have to be raised so as not to risk a waiver on review”].)

It’s a Goldilocks conundrum — don’t raise too many issues, but don’t raise too few, either.

Of course, there are also caveats to the corollary.

Even if an issue is listed in a petition for review that is granted, the court is not obligated to decide it. (Rule 8.516(b)(3) [“The court need not decide every issue the parties raise”].) And, in fact, in Ramirez, the court said, “Even if the secondary issue were adequately raised, we are not compelled to address it and decline to do so here.”

Another caveat is that an issue can still be reached even if not raised in a petition for review. (Rule 8.516(b)(2) [“The court may decide an issue that is neither raised nor fairly included in the petition or answer if the case presents the issue and the court has given the parties reasonable notice and opportunity to brief and argue it”].)

The court has maximum flexibility in, and retains ultimate control over, what issues it will decide (other than in automatic death penalty appeals), but counsel should nonetheless strive to hit the sweet spot in a petition for review, so that the statement of issues presented — à la Goldilocks — is “just right.”

Supreme Court strongly suggests Court of Appeal should comply with stipulated extension rule

The Supreme Court yesterday issued an alternative writ. That doesn’t happen too often, but it wouldn’t be particularly newsworthy . . . except the alternative writ’s recipient is a Court of Appeal. That is in the man-bites-dog category.

The subject of the proceeding is one that is near and dear to the hearts of California’s appellate practitioners — whether parties to an appeal have the unfettered right to stipulate to a 60-day extension of a briefing deadline. The Supreme Court’s alternative writ implies what a Rule of Court expressly provides — the parties do have that right.

In Aaronoff v. Olson, briefing in the Second District, Division Two, Court of Appeal had been substantially delayed by a number of stipulated and/or court-granted extensions, as well as use of rule 8.220 grace periods. The respondent’s brief was filed 11 months after the (relatively small) record on appeal.

So, when the parties presented Division Two with a stipulation to extend by 60 days the time to file the appellant’s reply brief, the Court of Appeal’s patience had worn thin. It ruled, “Given the numerous extensions previously requested and granted, the parties request for consolidation of these cases, the limited scope of a reply brief, and the Court’s need to manage its calendar, the court exercises its discretion under rule 8.68, California Rules of Court, and the stipulation for extension is partially granted.” Division Two ordered the reply brief to be filed by December 2 instead of the stipulated December 16 due date.

The plaintiff responded by filing an original writ petition in the Supreme Court — Aaronoff v. Court of Appeal (Olson). After requesting and receiving an informal response to the petition from the Court of Appeal, the Supreme Court yesterday issued an alternative writ directing Division Two “(i) to vacate its . . . order, which partially granted the parties’ stipulated extension for petitioner to file a reply brief, and to issue a new order giving effect to the parties’ stipulated extension as filed, under California Rules of Court, rule 8.212(b)(2), providing petitioner until December 16, 2022 to file an amended reply brief, or (ii) in the alternative, to show cause before this court why it has not done so.” The same day, the Court of Appeal changed the reply brief due date to December 16.

The Supreme Court did the right thing.

Rule 8.68, which Division Two cited in not fully accepting the stipulated extension, provides, “For good cause and except as these rules provide otherwise, the Chief Justice or presiding justice may shorten the time to do any act required or permitted under these rules.” However, when it comes to shortening stipulated extensions, rule 8.212(b)(1)&(2) does “provide otherwise.” It says that, “[e]xcept as otherwise provided by statute . . . , the parties may extend each [briefing deadline] by up to 60 days by filing one or more stipulations in the reviewing court before the brief is due,” that a “stipulation . . . is effective on filing,” and that “[t]he reviewing court may not shorten a stipulated extension.”

When the rule 8.212 language was adopted, a 2004 Advisory Committee Comment explained:

“[The former rule] specified the periods within which the parties were required to file their briefs, but then provided that ‘By stipulation filed with the reviewing court the parties may extend each of such periods for not more than 60 days, and thereafter the time may be extended only by the Chief Justice or Presiding Justice, for good cause shown.’ The plain implication of the quoted provision, recognized in widespread practice, was that the parties had the right to effectuate such extensions for up to 60 days on their own accord by filing such a stipulation in the reviewing court, and that the stipulation required no action by the reviewing court to be effective. In addition, the former rule did not contemplate the reviewing court’s exercising discretion over the length of a stipulated extension for the first 60 days; on the contrary, any inference of such a discretion was negated by the wording of the provision itself, which declared that ‘the parties may extend each of such periods’ for up to 60 days and that it was only ‘thereafter’ that a further extension would require action by the reviewing court. [The] [r]evised rule . . . continues these provisions in effect but clarifies their wording. It is therefore not a substantive change.”

The right to stipulate to a 60-day extension is not on a par with the “unalienable Rights [of] Life, Liberty and the pursuit of Happiness,” but, to appellate lawyers, it is considered pretty darn important.

And it must have been the principle of the thing for plaintiff to seek Supreme Court relief. Nine days elapsed between the Court of Appeal’s order — shortening the stipulated extension by 14 days — and the filing of the writ petition. With the stipulated extension, plaintiff would have had 80 days to file her reply brief. It’s unclear how spending nine days to file a Supreme Court writ petition instead of using that time to draft the reply brief, thereby in effect gaining only an additional five days, was necessary.

Interesting side note: In a declaration supporting her writ petition, the plaintiff identified herself as the “Doe” in Olson v. Doe (2022) 12 Cal.5th 669, where the Supreme Court held two parties’ agreement “not to disparage one another,” made in settling a restraining order proceeding, did not prevent one party from later suing the other for sexual assault and harassment (see here).

The Supreme Court can transfer to itself a case pending in the Court of Appeal, but the power is mostly theoretical

Have you appealed from a superior court judgment or order and want to bypass the Court of Appeal and go straight to the Supreme Court? That’s possible. Possible, but not probable. In fact, quite improbable.

“On a party’s petition or its own motion, the Supreme Court may transfer to itself, for decision, a cause pending in a Court of Appeal.” (Rule 8.552(a).) The California Constitution authorizes that procedure. (Art. VI, section 12, subd. (a).)

But rule 8.552(c) says a transfer is warranted only when “the cause presents an issue of great public importance that the Supreme Court must promptly resolve.” That standard is rarely met. (See Professional Engineers in California Government v. Schwarzenegger (2010) 50 Cal.4th 989, 999–1000 [see here]; Brosnahan v. Brown (1982) 32 Cal.3d 236, 241.)

Transfer petitions are thus long shots. Relatively recently, the court turned down requests to transfer an employment classification case (Rogers v. Lyft, Inc.) and a Covid insurance appeal (The Inns by the Sea v. California Mutual Insurance Company). The former is still pending in the Court of Appeal and the Supreme Court denied review in the latter after a Court of Appeal decision (see here).

Another waiver warning

Last week’s Lopez v. Ledesma opinion is a reminder that the Supreme Court probably won’t decide an issue that wasn’t timely raised. Even after the court has granted review. Even after the court has specifically granted review on the untimely raised issue. And even if resolution of the issue could have changed the case’s outcome.

In Lopez, the court decided issue number 1, holding a damage limitation provision of the Medical Injury Compensation Reform Act (MICRA) “applies to a physician assistant who has a legally enforceable agency relationship with a supervising physician and provides services within the scope of that agency relationship, even if the physician violates his or her obligation to provide adequate supervision.” (Emphasis added.)

The plaintiff (unsuccessfully) argued inadequate supervision made the MICRA cap inapplicable, but she also claimed that, regardless of issue number 1, she should prevail because of her position on issue number 2: there was no “legally enforceable agency relationship” in the first place because the supervising physician was disabled and unable to practice medicine.

In its opinion, the court said, “We also granted review on [the] second issue,” but it then had second thoughts, “On closer examination, we decline to consider this issue, which was neither raised in the trial court nor timely raised in the Court of Appeal.” (Plaintiff first raised the issue in her Court of Appeal rehearing petition.) The court explained, “As a matter of policy, ‘we normally do not consider any issue that could have been but was not timely raised in the briefs filed in the Court of Appeal.’ (Flannery v. Prentice (2001) 26 Cal.4th 572, 591 . . .; Cal. Rules of Court, rule 8.500(c)(1).)” (Link added.) (See rule 8.516(b)(3) [“The court need not decide every issue the parties raise or the court specifies”].)

The court acknowledged it could decide issue number 2 anyway, but said it chose not to because the issue required addressing a “case-specific argument” that “[did] not raise ‘ “extremely significant issues of public policy and public interest” [citation] such as may have caused us on infrequent prior occasions to depart from’ our ordinary policy.” Also, the issue “turns on facts not addressed by the trial,” the court added.

[Note: this post’s heading is probably inaccurate in characterizing the untimely raising of an issue as a “waiver.” It’s likely a “forfeiture” instead. (See Lynch v. California Coastal Com. (2017) 3 Cal.5th 470, 475–476.) But I couldn’t think of a good alliterative heading using “forfeiture.”]


Supreme Court overrules itself, limiting trial court fact-finding regarding prior convictions, and it finds forfeiture claim was forfeited

Taking issue with your answer to petition for review

Based on an issue not raised by the parties, and avoiding constitutional questions, Supreme Court allows for some access to social media by criminal defendants

Justice Kruger and Judge Owens talk about the Supreme Court answering Ninth Circuit questions

In a program hosted by the Appellate Courts Section of the Los Angeles County Bar Association yesterday (see here), Supreme Court Justice Leondra Kruger and Ninth Circuit Judge John Owens discussed the federal appeals court’s occasional requests to the state high court for help in deciding questions of California law.  Buchalter shareholder and appellate lawyer M.C. Sungaila moderated.

Judge Owens said it’s a “tricky” decision whether to ask the Supreme Court to answer a state law question.  On the one hand, he said, it slows down the Ninth Circuit’s resolution of an appeal when it puts a case on hold pending a Supreme Court decision, and also the Ninth Circuit is hesitant to impose on a busy Supreme Court by adding to the latter’s caseload.  On the other hand, Owens said he doesn’t want to mess up California law, especially given the national and international prominence of the state’s legal system and economy.

Justice Kruger humorously, but sincerely, responded it was “lovely to hear” that the federal court doesn’t want to impose, and she acknowledged the Ninth Circuit is “judicious” about referring cases.  In fact, the Ninth Circuit has sent only eight cases in the last three years, the most recent just last week.  Most requests for answers are granted — for example, the Supreme Court has granted 11 of the last 12 Ninth Circuit requests (not counting last week’s, which is pending), dating back to July 2018.

The judges also talked logistics.

Owens said his court rarely decides before oral argument to ask the Supreme Court for assistance.  Often, that decision is made sua sponte, not on a party’s suggestion.  Owens offered that it might not be the best idea for a party to ask at all since he might interpret the request as a sign the party has a losing position.  He also recommended that, if a request is made, it should be made in a brief, not in a motion.

Kruger disclosed that the Supreme Court handles Ninth Circuit requests like petitions for review, meaning one of the court’s central staffs of attorneys will work up the requests for the justices.  Additionally, the court treats an accepted case as any straight-granted case, meaning the case won’t be expedited unless there’s a specific timing reason to do so.

However, Ninth Circuit referrals aren’t the same as straight-granted cases in all ways.  Kruger said the Supreme Court justices “want to stay in our lane,” so they will stick to answering the posed question(s) without relitigating, for example, whether an issue was waived.  And the court will not apply the law it states to the facts of the case, but will leave that to the Ninth Circuit once the question is answered.  Kruger also said that, in deciding a Ninth Circuit referral case, she will review not only the Supreme Court briefing, but the Ninth Circuit briefing and excerpts of record.


Rule 8.548

The shadow docket . . . of California’s Supreme Court, part 2

Asked and answered:  California Supreme Court responses to Ninth Circuit questions

The constitutionality of the Supreme Court answering the Ninth Circuit’s legal questions

Ask not what the Supreme Court can do for the Ninth Circuit

Requesting the Ninth Circuit to request, not certify

Not (necessarily) so fast: the Supreme Court sometimes holds off on issuing its remittitur

In most cases, the Supreme Court will give up jurisdiction over a case by issuing its remittitur as soon as “a decision of the court is final.”  (Rule 8.540(b)(1).)  But rule 8.540(c)(2) provides another option:  “On a party’s or its own motion and for good cause, the court may stay a remittitur’s issuance for a reasonable period.”

The same rule also allows the court, on motion and for good cause, to recall a remittitur that’s already issued, but, as the comment to rule 8.540’s predecessor explained, “in accord with the case law, ‘good cause’ . . . has substantially different meanings depending on whether it is applied to a stay or to a recall of a remittitur.  (See 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, §§ 735- 741, pp. 764-771.)”

The current edition of Witkin says that, for a stay of a remittitur, “The main reason is to allow an opportunity for further review in the United States Supreme Court.”  (9 Witkin, Cal. Procedure (6th ed. 2021) Appeal, § 874.)

We were reminded of this when we wrote about the pending certiorari petition in Reilly v. Marin Housing Authority.  After the court’s August 2020 decision in the case, but before it became final, the losing party filed this motion to stay the remittitur’s issuance.  Despite opposition to the motion, the court granted the motion “to permit appellant to file a petition for writ of certiorari with the Supreme Court of the United States.”  The court’s order further provided, “Upon the filing of that petition, the issuance of the remittitur is further stayed until final determination of the certiorari proceeding.  If a petition for writ of certiorari is not submitted within the time prescribed, this stay will terminate when the time for submitting the petition has expired.”

The certiorari petition was filed in January 2021.  Today, ten months later, the petition is still pending and the California Supreme Court’s remittitur has yet to issue.

Seeking Supreme Court review of interlocutory Court of Appeal rulings

Last week, the Supreme Court denied petitions for review (here, here, and here) that challenged Court of Appeal orders denying attorney pro hac vice applications (here, here, and here).  That’s not particularly newsworthy, but it is a reminder that it’s perfectly OK to seek review of all sorts of rulings made in the middle of an appeal or appellate writ proceeding.

Rule 8.500(a)(1) says you can ask for review “of any decision of the Court of Appeal, including any interlocutory order, except the denial of a transfer of a case within the appellate jurisdiction of the superior court.”  (Emphases added.)

Before the rule was renumbered, its unabridged Advisory Committee Comment (which is no longer easily available) explained:

Although subdivision (a) of the former rule authorized the Supreme Court to review only “decisions” of the Court of Appeal, the Advisory Committee Comment to the 1985 revision of the rule explained that under the rule “[t]he Supreme Court may review Court of Appeal interlocutory orders and orders summarily denying writs within their original jurisdiction, as well as decision[s] on the merits resolving the ultimate outcome of the cause.” Under revised rule 24(b)(2)(A) [see current rules 8.264(b)(1), 8.490(b)(1)], a summary denial of a writ petition is a “decision” of the Court of Appeal; but no rule tells litigants that for purposes of this rule an interlocutory order of the Court of Appeal — such as an order denying an application to appoint counsel, to augment the record, or to allow oral argument — is also a “decision” that may be challenged by petition for review. To make this point clear, revised subdivision (a)(1) expressly states that a party may file a petition to review interlocutory orders of the Court of Appeal. It is not a substantive change.

Of course, just because you can seek review of an interim order, doesn’t mean the Supreme Court will grant your petition.  In fact, I can’t remember offhand the last time that happened.

Bankruptcy stay suspends Supreme Court’s time to rule on a petition for review, but how long does the court have to rule after the stay ends?

It took an unusually long time for the Supreme Court to rule on the petition for review in Wood v. Superior Court, reported yesterday.  The petition was filed on May 21, 2020.  But it wasn’t until this week that the court denied the petition (with three recorded votes to grant, by the way).

Rule 8.512(b) gives the court 60 days to rule, plus an optional 30-day extension, and a petition is deemed denied if there’s no ruling within that time.  Under normal circumstances, the Wood petition should have been decided before the end of August.

The reason for the delay was the filing of a notice of bankruptcy stay (see 11 U.S.C. § 362) less than two weeks after the petition was filed.  The Supreme Court said in Wood that the notice “operates as an automatic stay in this proceeding and the applicable time periods of rule 8.512(b) . . . are hereby suspended.”

When the bankruptcy stay was lifted five months later, the court ordered on November 6:  “the applicable time period of rule 8.512 (b) must begin to run anew from the date of this order.”  The court later granted itself a 30-day extension and the denial this week came 75 days after the November 6 order.

I’m not at all well versed in the law of bankruptcy stays, but it’s not clear why the court’s time to rule started to “run anew” instead of being, under 11 U.S. C. § 108(c), only 30 days from the stay’s termination.  The latter is apparently the timing for a superior court to rule on a new trial motion that is pending during a bankruptcy stay.  (ECC Construction, Inc. v. Oak Park Calabasas Homeowners Assn. (2004) 118 Cal.App.4th 1031, 1039–1040.)


Time to tweak the rule about the time to rule?

The Supreme Court doesn’t decide all important issues

A frequently invoked ground for Supreme Court review of a case is when it is “necessary . . . to settle an important question of law.”  (Rule 8.500(b)(1).)  But offering the court an important legal issue is not alone enough to get a case heard.  The emphasis is on the “necess[ity]” to “settle” the important question.  Sometimes, the court is just fine with the way the Court of Appeal has settled the issue.

Take the constitutionality of Senate Bill 1437, for example.  That 2018 legislation, which scales back the felony-murder rule and the “natural and probable consequences” doctrine, has been attacked by various district attorneys around the state as an invalid amendment of several voter initiatives and as a violation of the separation of powers.  Some superior court judges even agreed with those district attorneys, ruling SB 1437 to be in violation of the state constitution.

The contested legality of a statute making a significant change to the state’s criminal law, that’s certainly “an important question of law.”  But is it one that is “necessary” for the Supreme Court “to settle”?  Apparently not.

The court has consistently declined review of the constitutional issue, even while regularly taking cases to interpret the legislation’s terms and directing the Courts of Appeal to decide the constitutional issue.  (See, e.g., here, here, here, here, here, and here.)

Why?  There are two probable reasons.  First, the Courts of Appeal have all upheld SB 1437’s constitutionality (see People v. Marquez (2020) 56 Cal.App.5th 40, 47, and cases cited there), albeit sometimes by a divided vote (People v. Lippert (2020) 53 Cal.App.5th 304, review denied).  Second, California’s Attorney General has publicly vouched for the statute’s validity, filing amicus curiae briefs opposing the district attorneys’ arguments (e.g., LippertPeople v. Bucio (2020) 48 Cal.App.5th 300, review denied).

It’s a good bet that if either a Court of Appeal held or the Attorney General argued that SB 1437 is unconstitutional, the Supreme Court would have found it “necessary . . . to settle” the question.

The SB 1437 situation is very similar to the dispute about the validity of Senate Bill 1391, which prevents prosecutions in adult criminal court of crimes committed by anyone under 16 years old.  But there is one telling difference.  As with SB 1437, some district attorneys claimed — and some superior courts agreed — that SB 1391 violated the state constitution by improperly amending a voter initiative, and the Supreme Court was denying review when the Attorney General was defending the statute and the Courts of Appeal were consistently upholding it.  (See here.)  But then one Court of Appeal struck down the law and essentially forced the Supreme Court’s hand.  (See here and here.)  The SB 1391 case was argued last month.

Another case further illustrates the point that not every “important question of law” is one that is “necessary” for the Supreme Court to settle — Kirk v. First American Title Ins. Co. (2010) 183 Cal.App.4th 776, in which Horvitz & Levy prevailed on a significant issue regarding vicarious disqualification of a law firm.  When the other side petitioned for review, an answer prepared by Horvitz & Levy partners Lisa Perrochet and David Axelrad explained why review was not needed:  “While it is an important issue, intermediate appellate courts decide all manner of important issues.  And sometimes, those decisions offer clear and complete reasoning that stands the test of time, outlining sound legal standards on which other courts and litigants confidently rely.”  The answer included a footnote citing to five landmark Court of Appeal opinions.  The Supreme Court denied review, although there was one recorded vote to hear the case.

Another reminder that your audience at the Supreme Court is not only the justices

Here’s another for the “you’re not writing only for the justices” file.  (Previously, see here, here, here, and here.)

Berkeley Law student Rodolfo Rivera Aquino writes on the school’s website about his 12-week pandemic-summer externship with Justice Leondra Kruger.  He says he worked “primarily on petitions for review, calendar memoranda (draft opinions), and preliminary responses (response by a justice to a circulating opinion).”

Aquino details extern responsibilities for petitions for review:  “Each week, externs were assigned a petition that revolved around a legal issue that could go either way.  We had a week to analyze the petition and provide a recommendation to the justice, in a virtual meeting, about how she should vote in the coming conference meeting (where justices decide whether to grant review).”  He says he “had the opportunity to help shape the law through recommendations.”

In the movie “Philadelphia,” Denzel Washington plays a lawyer whose memorable catchphrase is, “explain this to me like I’m a 4-year-old.”  Sometimes, it might not be a bad idea to write your petitions for review as if you’re explaining your case to a law student extern.

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