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