January 21, 2011

When will the California Supreme Court deny review despite a conflict in the published appellate decisions?

This month’s Los Angeles Lawyer contains an article reviewing the California Supreme Court’s several recent decisions interpreting the California Environmental Quality Act (CEQA). What we found interesting from a practice perspective is the article’s quotation of Justice Kathryn Werdegar’s Remarks at the State Bar’s 2010 Environmental Law Conference. There, Justice Werdegar identified the circumstances that might prevent the Court from granting a petition for review despite the fact that a conflict exists among the published decisions. (See Cal. Rules of Court, rule 8.500(b)(1) [the Court may order review “[w]hen necessary to secure uniformity of decision or to settle an important question of law”].) According to the article, Justice Werdegar told the gathering that “when a conflict emerges among the appellate districts, the court ‘almost always grants review’ unless 1) the case at issue involves a ‘maverick opinion’ that is nonetheless heading in the right direction, 2) the case is not a good vehicle due to unusual facts or procedural difficulties, 3) recent legislation may solve the problem, or 4) the court wants the issue to ‘percolate’ further among the lower courts.” Needless to say, when your opponent files a petition for review that demonstrates an irreconcilable conflict in the published decisions, you should consider these factors when crafting your answer.

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