Court rules provide several limits on what the Supreme Court will consider in cases it has chosen to decide. However, those constraints don’t handcuff the court. They’re general limits that the court can and will sometimes choose not to follow. As it did in July’s County of Santa Clara v. Superior Court (2023) 14 Cal.5th 1034 opinion.

Rule 8.500(c)(1) provides, “As a policy matter, on petition for review the Supreme Court normally will not consider an issue that the petitioner failed to timely raise in the Court of Appeal.” In County of Santa Clara, the court turned down a request to invoke the policy of ignoring certain arguments not raised below by hospitals who lost in the Court of Appeal.

First, the court said the arguments were raised in the petition for review and it cited rule 8.516(b)(1), which says the court “may decide any issues that are raised or fairly included in the petition.” (14 Cal.5th at p. 1046, fn. 5.) The court continued, “Moreover, ‘[i]n a number of cases, this court has decided issues raised for the first time before us, where those issues were pure questions of law, not turning upon disputed facts, and were pertinent to a proper disposition of the cause or involved matters of particular public importance.’ [Citations.] Assuming that the Hospitals did not specifically raise these arguments in the courts below, we exercise our discretion to address them.” (Ibid.)

Horvitz & Levy represented the hospitals in the Supreme Court, but didn’t become counsel until it filed the petition of review.

There are other policies that might — but need not — limit the scope of Supreme Court review.  Rule 8.500(c)(2) provides that “as a policy matter the Supreme Court normally will accept the Court of Appeal opinion’s statement of the issues and facts unless the party has called the Court of Appeal’s attention to any alleged omission or misstatement of an issue or fact in a petition for rehearing.” (See: Just the facts in the Supreme Court, again.) Also, the court normally will avoid issues not raised in a case’s petition for review (see: The delicate balance of choosing how many issues to raise in a petition for review) or in the answer to a petition (see: Taking issue with your answer to petition for review).

Practice tip: It’s preferable to be able to stay within the bounds of the court’s “normal[ ]” policies when seeking review. However, if counsel sees a possible review-worthy issue (especially one that is a “ ‘pure question[ ] of law’ ” ) that wasn’t timely raised in the Court of Appeal, the better practice could be to include the issue in the petition for review, knowing that the court certainly can and does deviate from those policies.

Other-side-of-the-coin practice tip: If the opponent’s petition for review raises a new issue, point that out in an answer to the petition as a reason for the court to not hear the case. Tell the court that an issue on which the Court of Appeal has not weighed in is not a good vehicle for deciding the issue, even if the issue is review worthy. (See — Wait for it: issue percolation, right vehicles, and legislative inaction.) In Santa Clara, the party that had its Court of Appeal victory overturned opted to not file any answer to the petition and didn’t object to the newly raised issue until its answer brief on the merits, after the court had already granted review and after its opponent had fully briefed the new issue.