October 21, 2011
The Supreme Court can grant review “[f]or the purpose of transferring the matter to the Court of Appeal for such proceedings as the Supreme Court may order.” (Cal. Rules of Court, rule 8.500(b)(4).) This procedure is commonly called a “grant-and-transfer.” To the extent confusion surrounds the procedure, it stems from the fact that it is not necessarily obvious to practitioners when the Court will employ it. Fortunately, on closer examination, the grant-and-transfer is a simple, logical and common-sense tool.
One situation in which the Supreme Court might issue a grant-and-transfer order is when it concludes the Court of Appeal should further consider the case in light of a Supreme Court opinion decided after the Court of Appeal’s decision was rendered. In such situations, there is no need to issue a grant-and-hold order, since the controlling Supreme Court decision has already issued.
But the more common situation in which the Court will issue a grant-and-transfer—and the example mentioned in the advisory committee comment to the rule—is where the Court of Appeal has summarily denied a writ petition but the Supreme Court believes further writ proceedings are necessary. That happened in the juror Facebook case where, as we discussed here, the Supreme Court directed the Court of Appeal to vacate its summary denial of a writ petition “and to issue an order . . . to show cause why the relief sought in the petition should not be granted.” So, when petitioning the Supreme Court for review from the summary denial of a writ petition, consider requesting a grant-and-transfer in addition to an outright grant of review.