California Civil Appellate Practice » 22 Review by the California Supreme Court » III.

DETERMINING DATE
TO FILE PETITION »

                     III. DETERMINING DATE TO FILE PETITION

§22.14
           A.  Time to File Petition Depends on Finality

The petition must be filed within 10 days after the

court of appeal decision becomes final in that court. Cal Rules
of Ct 8.500(e)(1).

No extension for service by

mail. The time for filing a petition is not extended by CCP §1013, which
permits an
extension of time for documents served by mail. But see §22.18 (for petitions
for review, "date of filing" includes
date on which
petition was mailed in certain circumstances).

California Civil Appellate Practice » 22 Review by the California Supreme Court »

§22.15
           B.  Finality if Rehearing Denied

Unless a rehearing is granted, the court of appeal's

decision normally becomes final 30 days after the decision is
filed. Cal Rules of Ct 8.264(b)(1). The following decisions by an appellate court are final
immediately on filing:

Denial of a petition for an extraordinary

writ without the issuance of an alternative writ, order to show cause,
or oral argument, regardless of whether the court of appeal states
reasons for the denial (i.e., a summary
denial) (Cal Rules of Ct 8.490(b)(1); Kowis v Howard (1992) 3 C4th 888; Bay Dev., Ltd. v Superior Court
(1990) 50 C3d 1012, 1024);
Denial of a petition for a writ of supersedeas
(Cal Rules of Ct 8.264(b)(2)(A));
Denial of an application for bail or to
reduce bail pending appeal (Cal Rules of Ct 8.366(b)(2)(A)); and
Dismissal of an appeal by written request
of appellant or stipulation of the parties (Cal Rules of Ct 8.264(b)
(2)(B)).

The court of appeal may order that a decision granting

a petition for a peremptory writ become final in less than 30
days
if early finality is necessary to prevent mootness or frustration
of the relief granted, or is otherwise necessary
in the interest of
justice. Cal Rules of Ct 8.264(b)(3). In that circumstance, the court of appeal's decision
will state
the date of finality.

California Civil Appellate Practice » 22 Review by the California Supreme Court »

§22.16
           C.  Finality if Opinion Modified

If the court of appeal denies rehearing but modifies

the opinion in minor ways, the modification does not change
the date
of finality. However, if the modification results in a "change
in the judgment," then the finality clock starts
to run from
the filing date of the modification order. The court of appeal's
order modifying an opinion and denying
rehearing must specify whether
it effects a change in the judgment. Cal Rules of Ct 8.264(c)(2).

California Civil Appellate Practice » 22 Review by the California Supreme Court »

§22.17
           D.  Finality if Rehearing Granted

If the court of appeal grants a rehearing, the original

opinion never becomes final, because it is vacated. See 9
Witkin, California Procedure, Appeal §910 (5th ed 2008). The 30-day period for finality starts again when a new
opinion
is filed or the same opinion is refiled.

California Civil Appellate Practice » 22 Review by the California Supreme Court » IV. PROCEDURES FOR
SERVING AND FILING PETITION FOR REVIEW »

                     IV. PROCEDURES FOR SERVING AND FILING PETITION FOR REVIEW

§22.18
           A.  Time of Filing

Date of filing. The

"date of filing" of the petition for review is the date
of delivery to the clerk's office during
normal business hours. Cal Rules of Ct 8.25(b)(1). This rule also provides, however, that a petition for
review is
timely if the time for its filing has not expired on the
date of its mailing by priority or express mail, as shown on
the postal
receipt or postmark, or the date of its delivery to a common carrier
promising overnight delivery, as
shown on the carrier's receipt. Cal Rules of Ct 8.25(b)(3).

Premature filing. A petition filed before the court of appeal decision is final will
be deemed filed on the day after
the decision becomes final as to
the court of appeal. Cal Rules of Ct 8.500(e)(3).

Relief from default. The time for filing the petition for review cannot be extended in
advance by stipulation or
order of any court. The supreme court, however,
can grant relief from default if the time within which the court
could
order review on its own motion has not expired. Cal Rules of Ct 8.500(e)(2), 8.536(b), 8.60(d).

NOTE:  The supreme court rigorously enforces the jurisdictional

deadline for filing a petition for review. Relief
from an untimely
filing is unlikely to be granted except in extraordinary circumstances.

PRACTICE TIP:  Because the time to file a petition is so short,

and because petitions for rehearing to the court of
appeal are nearly
always denied, work on drafting the petition should begin as soon
as possible after deciding to
seek review of a decision of the court
of appeal.

California Civil Appellate Practice » 22 Review by the California Supreme Court »

§22.19
           B.  Electronic Filing

NOTE:  On March 18, 2020, in response to the COVID-19 pandemic,

the California Supreme Court required "until
further notice"
that all documents, including briefs, be filed electronically and
that paper copies not be submitted.
Counsel should consult the court's
website at https://www.courts.ca.gov/supremecourt.htm to see whether these
emergency directions are still in
place and, if not, which documents must still be filed electronically
and when the
court requires paper copies of electronically filed documents.

Before it temporarily expanded mandatory e-filing

during the COVID-19 pandemic, the California Supreme Court
required
attorneys, and encouraged self-represented litigants, to electronically
file the following documents in all
pending cases using the TrueFiling
system (California
Supreme Court Rules Regarding Electronic Filing, Rule 3):

Petitions for review; answers, replies;

Applications to permit the filing of a
petition, answer, reply, or attachment that exceeds the length limits
set
by Cal Rules of Ct 8.504(d);
Applications to extend the time to file
an answer or reply;
Motions for relief from default for failure
to timely file a petition, answer, or reply;
All other applications and motions in these
proceedings filed before the court issues its decision to grant or
deny review; and
Any correspondence filed in connection
with the above applications and motions, except amicus curiae
letters
and requests for depublication and related documents, which may be
filed electronically on a
voluntary basis.

There is an exception to the e-filing requirement

for self-represented litigants. California Supreme Court Rules
Regarding Electronic
Filing, Rule 4. In addition, a party may
file a motion to be excused from e-filing due to
undue hardship or
significant prejudice, or by showing it is not feasible to convert
a document to electronic form.
California Supreme Court Rules Regarding Electronic
Filing, Rule 6.

If a filing deadline is missed because of a failure

in the electronic transmission and receipt of a document, then the
document may be filed on paper or electronically as soon as practicable,
accompanied by a motion requesting that
the court accept the document
as timely filed. Cal Rules of Ct 8.77(d); California Supreme Court Rules Regarding
Electronic
Filing, Rule 13.
Paper copies. Unless
otherwise ordered by the court, for each electronically filed document,
the filer must also
submit one unbound paper copy of the document.
This requirement was temporarily lifted during the COVID-19
pandemic.
See https://www.courts.ca.gov/supremecourt.htm. The paper copy must be mailed, delivered to a
common
carrier, or delivered to the court within 2 court days after the document
is filed. If the filing requests an
immediate stay, the paper copy
must be delivered to court by the close of business the next court
day after the
document is filed electronically. California Supreme Court Rules Regarding
Electronic Filing, Rule 5(a). Paper
copies
must comply with the California
Supreme Court Rules Regarding Electronic Filing and the California Rules
of Court. Official court correspondence
and notifications, including letters and orders, are sent to all parties
by
regular mail only. See https://www.courts.ca.gov/37423.htm.

If a paper petition is filed, the petitioner must

file an original and 13 paper copies or eight paper copies and one
electronic copy. Cal Rules of Ct 8.44(a)(1). See §22.28 for further
formatting requirements.

California Civil Appellate Practice » 22 Review by the California Supreme Court »

§22.20
           C.  File Proof of Service

The petitioner must file proof of service of the

petition on the other parties, the trial court, and the court of appeal
that rendered the decision. Cal Rules of Ct 8.500(e), (f)(1). Electronic filing
of the petition constitutes service of
the petition on the court of
appeal. Cal Rules of Ct 8.500(f)(1). A petition with a defective
proof of service will be
filed, but unless a proper proof is filed
within 5 days, the petition may be stricken or other sanctions imposed. Cal
Rules of Ct 8.500(f)(3). Service on the Attorney General must also comply with
the service requirements of Cal
Rules of Ct 8.212(c)(3), 8.500(f)(2), and 8.29(c).

California Civil Appellate Practice » 22 Review by the California Supreme Court »

§22.21
           D.  Filing Fee

The petitioner must pay a fee of $540 when the petition

for review is filed. Govt C §68927(a); Cal Rules of Ct
8.25(c)(2)(C). In addition, the petitioner must pay a $170 fee for
deposit in the Appellate Court Trust Fund. Govt C
§§68926.1(b), 68933.

PRACTICE TIP:  If the petitioner seeks a waiver of the court fees

and costs for a petition for review, he or she
should submit the application
for waiver with the petition. See Cal Rules of Ct 8.26(b)(3)(A).

A fee may not be charged for petitions for review

in juvenile cases, proceedings to declare a minor free from
parental
custody, or proceedings under the Lanterman-Petris-Short
Act (Welf & I C §§5000–5556), relating
to
challenges to involuntary commitment of mentally disordered persons,
developmentally disabled persons, and
persons impaired by chronic
alcoholism. Govt C §68927(c).

California Civil Appellate Practice » 22 Review by the California Supreme Court »

§22.22
           E.  Where to File

If not electronically filed (see §22.19), petitions

and other documents must be filed at the Supreme Court of
California, Office of the Clerk,
First Floor, 350 McAllister Street, San Francisco, CA 94102.

California Civil Appellate Practice » 22 Review by the California Supreme Court »

§22.23
           F.  Checklist: Serving and Filing Petition for Review

__   1.  Calendar the date

of finality of the court of appeal's decision. Cal Rules of Ct 8.264 (see §§22.14–22.17).

__   2.  File and serve

the petition for review within 10 days after the date the court of
appeal decision becomes
final. Cal Rules of Ct 8.500(e)(1). See §22.19.
__   a.  Make sure that
the proof of service conforms to the court's rules; and

__   b.  Pay the filing

fee (see §22.21).

__   3.  Write a clear

and concise statement of the issues presented for review and the reasons
review should be
granted under Cal Rules of Ct 8.500(b) (see §§22.35–22.36).

__   4.  Conform the format

of the petition to the requirements for appellate briefs (see Cal Rules of Ct 8.204) and
the California
Supreme Court Rules Regarding Electronic Filing (see §§22.28–22.33).

__   5.  Attach the court

of appeal decision and any order modifying the opinion or directing
the opinion to be
published to the petition and all copies. Cal Rules of Ct 8.504(b)(4).

California Civil Appellate Practice » 22 Review by the California Supreme Court » V. PREPARING THE
PETITION » A. General Considerations »

                     V. PREPARING THE PETITION

                     A. General Considerations

§22.24
           1.  Clearly Present Reasons for Review

The supreme court justices and staff do not have

time to parse through a rambling discourse to discover whether a
reviewable
issue may be lurking somewhere. To have any chance of serious consideration,
the petition must
immediately focus on the reasons the court should
grant review, and it must clearly identify compelling reasons for
a grant of review. The court is not looking for opportunities to add
another case to its workload, and a petition that
does not succinctly
and squarely show why review is necessary will not get in the door.

California Civil Appellate Practice » 22 Review by the California Supreme Court »

§22.25
           2.  Limit Scope of Relief Requested; Review Options for Action
by Court

Limit the issues. Given that review is granted only in exceptional cases, it is rare
that a single case presents more
than one truly review-worthy issue.
A grant of review on all issues on which the petitioner lost in the
court of
appeal might be the most desirable result if review is granted,
but to request such broad relief makes it more likely
that the court
will deny review altogether. The petitioner benefits most by reducing
the issue or issues to only those
that plainly meet the criteria in Cal Rules of Ct 8.500(b). The strongest issue should be presented first, and the
petition
should concentrate on that issue.

Consider grant and hold as an

option. When the court has already granted review of a
case presenting similar
issues, the possibility of a grant and hold
is fairly strong. See §22.52. If this
result is acceptable, then the court
should be reminded of the other
pending case and the similarity of the issues. However, if a grant
and hold would
be unacceptable, the petitioner should consider distinguishing
the other case or attempt to explain why the case
now presented should
be taken and decided concurrently. This strategy, of course, increases
the risk that the
petition will be denied altogether. In some cases,
it is possible to do both, i.e., argue
both similarity and that the
case should be the lead case or decided
concurrently with the lead case, to give the court an opportunity
to treat
related issues comprehensively.

Consider grant and retransfer

as an option. Another option is to invoke the court's
grant and retransfer
jurisdiction, by which the court grants review
but in the same order retransfers the case to the court of appeal
for
reconsideration in light of a newly published case or existing
controlling authority, or for reconsideration of an
additional issue
or issues as the court may order. Cal Rules of Ct 8.528(d). See §22.51. Once again, a grant and
retransfer is
a less onerous option for the court because it does not materially
add to the court's workload. This
option also has the advantage
of providing the supreme court with the benefit of the court of appeal's
reasoning
and result before the supreme court needs to determine whether
to decide the issue.
Court may deny review and depublish
court of appeal decision. The court may also simply depublish
the court
of appeal's opinion instead of granting review. Any
person may make a request for depublication (Cal Rules of Ct
8.1125(a)(1)), and a party may file a request for depublication under Cal Rules of Ct 8.1125(a) along with a
petition for review under Cal Rules of Ct 8.500. A party may not, however, include a request for depublication as a
request for alternative relief in its petition for review. The two
documents must be filed separately. Cal Rules of Ct
8.1125(a)(2). On requesting depublication,
see chap 21. The court also may order depublication on its own motion.
See Cal Rules of Ct 8.1105(e)(2).

PRACTICE TIP:  Requesting depublication may not be advantageous

for obtaining a grant of review. Indeed, the
petitioner may want to
argue why depublication is not a viable
option and that only a grant of review can properly
resolve the issues
presented. If depublication is a viable option, however, a party can
skirt this dilemma by asking
another person or entity to make the
request under Cal Rules of Ct 8.1125(a)(1).

Court may grant review and depublish

court of appeal decision in whole or part. Generally, the
effect of
granting review is that, while review is pending, the appellate
court opinion remains published and citable for
potential persuasive
value only. Cal Rules of Ct 8.1105(e)(1)(B), 8.1115(e)(1). However,
the supreme court may
order depublication, in whole or in part, of
an opinion that is under review. Cal Rules of Ct 8.1105(e)(3); Comment
to Cal Rules of Ct 8.1105(e)(3). On publication
and citing of opinions, see chap 21.

PRACTICE TIP:  The availability of partial depublication on a grant

of review should be evaluated as a means of
enhancing the likelihood
the court will take the case. If the case has several issues that
might merit review, but one
is better presented than the other, partial
depublication could make the case more manageable to review and limit
the impact of the precedential value of the court of appeal's
decision while review is pending.

California Civil Appellate Practice » 22 Review by the California Supreme Court »

§22.26
           3.  Maximizing Chance of Obtaining Review

Take care with the question

presented. The question or questions presented for review
should not be taken
lightly. They are closely scrutinized by the court
and must convey concisely the issue it will be asked to decide.
Opaque
or verbose descriptions of issues can be a nonstarter. A clear, discreet,
and well formulated question will
help get the court's attention
from the outset. See §22.35.

Create sense of urgency. Within the framework of the standards of Cal Rules of Ct 8.500, the petition should
create a sense of urgency that the issue or
issues presented must be resolved because of consequences extending
beyond the particular case. Unless the supreme court clearly sees
the need for immediate intervention, it is likely to
conclude that
the issues presented, even if important, can be decided at a later
date.

Establish importance of issues

presented. When drafting a petition, remember that the
supreme court is most
interested in genuine, well-developed conflicts
in the law or in legal issues involving substantial numbers of cases
or people. If those issues also involve important social policies,
matters of statewide concern, significant financial
consequences,
or systemic considerations affecting the administration of justice,
the likelihood that the supreme
court will grant the petition is further
enhanced. For example, the issues in a particular case may

Have industrywide or statewide import that

in the aggregate involve millions of dollars;
Invoke privilege issues for trade secrets
that will affect the way an entire industry conducts its business
and
protects its competitive position;
Involve disclosure of information that
could affect the way many people are treated;
Impact directly the litigation of certain
types of lawsuits, or the preservation of the public fisc; or
Raise a question of statutory construction
that will have a significant impact on specific public or private
interests or a large number of cases.

These examples are not exhaustive, but demonstrate

that the practical dimensions and ripple effects of a case can
be
critical in determining whether the court will grant review.
Compile list of relevant cases. The petitioner should compile a list of other published and unpublished
cases at
the trial or appellate level, both decided and pending, in
which the legal issue presented for review has been raised.
If the
number of cases presenting the issue is significant or growing, that
fact should be highlighted. This list will
help substantiate the recurring
nature of the question as well as its importance. If any of these
cases, trial or
appellate, conflict with each other, that fact should
also be highlighted. The petition should stress, if appropriate,
conflicts
with majority rules or well-reasoned opinions from other jurisdictions.
In addition, the petition should
provide reasons that the time is
ripe for the supreme court to step in and establish the appropriate
standard. This is
particularly important if the issue is relatively
new and few cases have addressed it, because the court may be
tempted
to let the issue percolate further before deciding it.

NOTE:  The case inventory should include federal cases that

have confronted and resolved the relevant legal issue.
If the issue
is one that arises under similar legal principles in other jurisdictions,
these authorities can be relevant to
show that the existence of the
controversy extends beyond the state.

Review other decided cases. Assess the type of civil cases the supreme court accepts by looking
at decided cases
and consider the ramifications of the opinions. This
assessment will reveal the scope of the issues that capture the
court's
interest and provide insights into the court's reasoning in
addressing those issues. Particularly relevant in
this context are
the views expressed by the individual justices in writing majority,
concurring, or dissenting
opinions. The justices' reasoning
will reveal the considerations that they care about, from a substantive,
procedural,
or practical perspective, on the development of the law.
Counsel often can frame the issues presented or develop
arguments
supporting review based on the justices' observations on the
state of the law.

JUDGE'S PERSPECTIVE:  Consider whether particular justices have previously

expressed interest in the issue, as
evidenced by their individual
votes to grant review in other cases. The supreme court minutes, published
in the
advance sheets of the official reports, note individual justice's
votes to grant review in cases in which review is
denied. The fact
that a justice has previously deemed an issue worthy of review can
be an indicator of the issue's
continuing importance.

California Civil Appellate Practice » 22 Review by the California Supreme Court »

§22.27
           4.  Maximizing Chance of Review by Amicus Curiae Letters

Consider contacting other counsel, companies, public

or private organizations, educators, or special interest groups
that
may be interested in the issue presented in order to try to persuade
them to submit letters to the court in
support of the petition. Cal Rules of Ct 8.500(g). For procedures and deadlines for amicus curiae letters, see chap
14. Such letters
can advise the supreme court that the issues raised in a case are
of widespread importance to
economic or business affairs, the administration
of justice, the general public, the courts, or the resolution of future
cases.

PRACTICE TIP:  At the petition for review stage, these letters need
not delve deeply into the merits or even be
critical of the result
reached in the court of appeal. What they do need to emphasize is
the direct, immediate, and
practical effect of the appellate court's
holding on future litigation concerning existing personal or business
relationships, or on important public or private interests, or social
policies.

California Civil Appellate Practice » 22 Review by the California Supreme Court » B. Format Considerations »

                     B. Format Considerations

§22.28
           1.  Use Standard Brief Format

Electronic formatting requirements for filings in

the supreme court, including a petition for review, are set out in
Cal Rules of Ct 8.74 and California
Supreme Court Rules Regarding Electronic Filing, Rule 10 (see
https://www.courts.ca.gov/24590.htm). The petition must conform, as far as practicable, to Cal Rules of Ct 8.204
(form and content of briefs filed in court of appeal). Cal Rules of Ct 8.504(a). For a more detailed discussion of
requirements for briefs, see chap 12.
The cover should include the name, mailing address,
telephone number, fax number (if available), e-mail address
(if available),
and California State Bar number of each attorney filing or joining
in the pleading, or of the party if
he or she is unrepresented. Cal Rules of Ct 8.74(a)(9).

If more than one attorney from a law firm, corporation,

or public law office is representing one party and is joining
in the
petition, the name and State Bar number of each attorney must be provided
on the cover. The firm,
corporation, or law office representing each
party must designate one attorney to receive notices and other
communication
in the case from the court by placing an asterisk before that attorney's
name on the cover and must
provide that person's contact information
as noted above. Cal Rules of Ct 8.74(a)(9).

California Civil Appellate Practice » 22 Review by the California Supreme Court »

§22.29
           2.  Pleading Language Not Required

A petition for review does not require formal language

to address the supreme court justices, or a pleading type of
paragraph
stating that the party is petitioning for review under Cal Rules of Ct 8.500. Rather, the statement of the
issues can directly follow the table
of authorities. It is customary, however, to address the petition
to the Chief
Justice and associate justices, and to sum up in one
short paragraph the identity of the court below (and its
justices),
as well as the dates of filing of the opinion below and of denial
of petition for rehearing, if any. See
§§22.34–22.39, 22.75.

California Civil Appellate Practice » 22 Review by the California Supreme Court »

§22.30
           3.  Observe Word Limits

A petition for review may not exceed 8400 words,

including footnotes, if produced on a computer. Cal Rules of Ct
8.504(d)(1)–(2). These limits do not include the tables of contents and
authorities, cover information, court of
appeal opinion, certificate
on length, signature block, or attachments under Cal Rules of Ct 8.504(e)(1). Cal Rules
of Ct 8.504(d)(3). On attachments, see §22.32. Counsel must include with the petition a certificate that
states the
number of words in the document; the word count may rely
on the word count function of the word-processing
program used to
prepare the petition. Cal Rules of Ct 8.504(d)(1).

California Civil Appellate Practice » 22 Review by the California Supreme Court »

§22.31
           4.  Attach Copy of Appellate Court Opinion or Order

A copy of the court of appeal opinion showing its

filing date and a copy of any order modifying the opinion or
directing
its publication must be attached to the petition. Cal Rules of Ct 8.504(b)(4). A copy of any order of the
court of appeal on rehearing
should also be attached. If the petition seeks review of a court of
appeal order, a copy
of the order showing the date it was entered
must be appended to the petition. Cal Rules of Ct 8.504(b)(5). These
documents do not
count toward the petition's page limit. Cal Rules of Ct 8.504(d)(3).

California Civil Appellate Practice » 22 Review by the California Supreme Court »

§22.32
           5.  Attaching Other Documents

The court permits attachment of the trial court order

from which relief is sought, "unusually significant"
evidentiary exhibits or trial court orders, and copies of relevant
regulations or rules, out-of-state statutes, or other
similar citable
material that is not readily accessible. Cal Rules of Ct 8.504(e)(1). Such attachments may not
exceed a total of ten pages. Cal  Rules of Ct 8.504(e)(2). No other documents
may be attached or filed with a
petition unless the Chief Justice
permits more annexed material on written application and for good
cause shown.
Cal Rules of Ct 8.504(d)(4). An application to attach additional documents should
include an affidavit or
declaration setting forth the reasons for
including the additional documents.

NOTE:  With two exceptions, the petitioner may not avoid these page limitations on attached
documents by
incorporating by reference other documents or authorities.
The exceptions are (Cal Rules of Ct 8.504(e)(3))
 Portions of another petition, answer, or
reply that was filed in the same case by another
party; and
A petition, answer, or reply that was filed by another party in a connected case and is
still pending or in
which review has been granted.

California Civil Appellate Practice » 22 Review by the California Supreme Court »

§22.33
           6.  Filing a Paper Petition

Self-represented litigants may file a paper petition,

and in some circumstances a party will be excused from
electronic
filing. California
Supreme Court Rules Regarding Electronic Filing, Rule 4, 6. See §22.19. The
requirements
for preparing a paper petition are set out in Cal Rules of Ct 8.204(b). See Cal Rules of Ct 8.504(a)
(petition should conform, as far as practicable, to format
for briefs).

California Civil Appellate Practice » 22 Review by the California Supreme Court »

§22.34
           C.  Drafting Body of Petition

Generally, the body of the petition consists of the

following:

A statement of issues;
A statement of the case, including whether
a petition for rehearing was filed in the court of appeal and the
outcome (Cal Rules of Ct 8.504(b)(3));
An argument; and
A conclusion.

The petition itself should begin with "a concise,

nonargumentative statement of the issues presented for review,"
and must address "how the case presents a ground for review
under rule 8.500(b)." Cal Rules of Ct 8.504(b)(1)–
(2).

California Civil Appellate Practice » 22 Review by the California Supreme Court »

§22.35
           1.  Statement of Issues Presented for Review

State legal issues clearly. The beginning of the body of the petition must state the issues
presented for review,
"framing them in terms of the facts of
the case but without unnecessary detail." Cal Rules of Ct 8.504(b)(1). The
statement of issues must articulate clearly and
concisely the legal issues the court is asked to resolve. It should
also
be persuasive (rather than totally neutral) without being argumentative,
and inclusive without being too detailed. It
must be broad enough
to suggest the importance and impact of the issues without straying
from the legitimate
scope of the case under review or becoming amorphous.
It should be framed in terms of the grounds for review
articulated
in Cal Rules of Ct 8.500(c) rather than merely stating that the court of appeal erred.

Statement will have a major

impact. The statement of issues is not a "throwaway"
section; it will have a major
impact on how the court views the petition.
It will likely be the first thing read by the justices or staff attorneys,
and so it must convey that there is a credible issue to review. It
not only alerts the court to the general proposition
of law that is
at issue, it can demonstrate the need to decide and declare that proposition.
The issues are usually
stated as questions, but it is not necessary
to do so.

JUDGE'S PERSPECTIVE:  This section effectively defines the scope of briefing

if the court does grant review and
does not otherwise specify the
issues (see Cal Rules of Ct 8.516(b)(1)); thus, counsel should carefully consider
how he or she
wishes ultimately to argue the case to the court and lay the groundwork
here.

Presentation is important. Part of the challenge of drafting the statement of issues is to

put the controversy in
context, without getting too verbose, complicated,
or argumentative. Another equally important challenge is to
keep the
statement of issues clear and simple. Avoid loading up statements
of issues with so many facts or
qualifications that they must be studied
rather than read.
Some cases lend themselves to simple, self-explanatory
statements of the issues, but others sometimes need more
explanation
to put the issues in proper context. When more is needed, some practitioners
preface the statement of
issues with some short introductory sentences
that set the stage. Another approach is to put the contextual or
framing
explanation after the statement of issues to reinforce why the court
should grant review.

Subdividing a complex question may also help to clarify

the issues and sharpen their importance. For example, the
issue may
start with a two- or three-sentence foundation with a couple of subparts
in indented form. Again,
however, succinctness and clarity are still
the key. Too many subparts will make things too complex and reduce
the
chance for review.

Whatever framing approach is used, counsel should

not load up the statement of issues with extra facts or
arguments.
The focus must remain on the issue or issues to be reviewed so that
the statement retains its impact.

Limit the issues. Careful thought must be given to the number of issues presented.
Given the small percentage of
cases in which review is granted, it
is very unlikely that a case could present more than one review-worthy
issue.
For this reason, listing more than three issues may hurt a
party's credibility. Raising multiple issues also may give
the impression that the case is unduly complex and not presented on
a clean record. Therefore counsel should take
pains to try to state
one or two concise questions for the court's consideration.

Do not frame questions around

error. Remember that the statement of issues should not
be focused on how the
court of appeal erred. The court's role
is not error correction. Rather, the petition's theme should
be about why
there is a need to review the issues. For example, instead
of framing an issue as "whether the court of appeal
erred,"
state that "the decision under review reflects a conflict among
the courts of appeal on the issue of whether.
…"

PRACTICE TIP:  Be careful not to word the issues in a way that allows
the "problem" to be fixed by simply
depublishing the
court of appeal opinion. See §§21.15–21.17. This result typically occurs when the law was settled
before the court of appeal rendered a decision so that depublishing
it eliminates any conflict in the published
decisions. In that circumstance,
the petitioner should focus not just on the conflict but also on why
it will recur.

California Civil Appellate Practice » 22 Review by the California Supreme Court »

§22.36
           2.  Consider Section on Why Review Should Be Granted

The petitioner must grab the court's attention

early. Generally, the best way to accomplish this is to explain why
the
case merits review in a section that follows the statement of
the issues. This section may best encompass the
various reasons why
the case is worthy of a grant of review given the requirements in
the rules (i.e., conflict in the
cases,
substantial public policy issue). It should also put the issues in
context so that the court has a feel for what
the case is about. Note
that the petitioner must address "how the case presents a ground
for review under rule
8.500(b)." Cal Rules of Ct 8.504(b)(2).

California Civil Appellate Practice » 22 Review by the California Supreme Court »

§22.37
           3.  Statement of the Case

General contents. The statement of the case should contain in concise form: the nature
of the action or
proceedings, a summary of the material facts, the
relief sought, the trial court's judgment or ruling, and the
appellate court's disposition and reasoning. Cal Rules of Ct 8.204(a)(2).

Tell an uncluttered procedural

story. The petitioner should provide the factual and procedural
background in a
way that puts the issues in context, but without unnecessary
detail. Irrelevant matters should be omitted. Because
of the limited
time the court can invest in evaluating a petition, this section is
not a place to tell the court about
every wrong inflicted on the petitioner
in the course of the litigation or every event that occurred regardless
of its
significance to the issue on which review is sought. This sort
of factual clutter is distracting and will detract from
the petition's
effectiveness.
Use headings. Whether
the substantive facts are included under one heading with the procedural
facts or under a
separate heading, the statement of case should provide
the court sufficient information to make the legal issues
understandable.
The court should be able to assess whether this is the proper case
in which to resolve those issues.

Cite to the record. Every statement of fact should be supported by a specific citation
to the record. If the record is
printed, then citations should be
to volume and page number. If any portion of the record is in electronic
format,
then citations to that part should be made with the same level
of specificity as is done with the printed record. Cal
Rules of Ct 8.204(a)(1)(C).

Be persuasive. This
section of the petition should be persuasive. When drafting the statement
of the case, it is
important to be fair to the record but also to
tell the story in a way that creates a sense of equity underlying
the
petitioner's position. Legal resolutions that further the
interest of justice are the most compelling. However, the
petitioner
should avoid blatant "jury arguments" because the court
often resents attempts to sway it by matters not
germane to the standard
of review. Such efforts detract from the credibility of the presentation.

Reference court of appeal opinion. When possible, the petitioner should refer to or rely on the opinion
of the
court of appeal. These references often can be used to shorten
the section. In addition, because it is the court of
appeal's
opinion that is under review, these references can better frame the
context in which the request for review
is made and, perhaps more
importantly, evaluated by the court's staff.

California Civil Appellate Practice » 22 Review by the California Supreme Court »

§22.38
           4.  Argument

Always put the emphasis on the

need for review. The argument section normally carries
the dual burden of
persuading the court that the petition raises issues
that the court should review and that the court of appeal was
wrong
on the merits. The organization of these points depends on the circumstances
of a particular case. Often,
these dual burdens can be intertwined.
If stated separately, however, the arguments for review should be
stated
first, followed by why the court of appeal was wrong. No matter
what format is chosen, the strongest arguments
should be stated first.
In some petitions it works well to weave the entire argument on why
the case is worthy of
review into the statement of issues and the
statement of the case instead of in the argument section. In other
petitions, especially when the review worthy argument is lengthy or
can be integrated with the argument on the
merits, only a summary
is put into an earlier section and a fuller exposition is put into
the argument section.

If the reasons for review are expressed clearly and

powerfully, the petitioner may be able to convince the drafter of
the conference memorandum to recommend review and to include in the
memorandum arguments that will
convince at least four justices to
accept the recommendation. Like the statement of issues, this section
should not
dwell on why the court of appeal was wrong but should explain
why the issue presented is important to the
development of the California
law, or how the lower courts are in true conflict and why the supreme
court should
use this case as a vehicle to declare what the law should
be.

Explain significance of appellate

court's decision. In explaining the significance
of the court of appeal's
decision, petitioner should give the
legal, practical, and public policy reasons that the interests of
the state are best
served by resolving the issue differently from
the appellate court's resolution. If there is a conflict in
the cases, the
petitioner should explain why the better reasoned cases
support resolution in the way the petitioner desires. The
petitioner
should also consider whether the rule advocated would put (or keep)
California in the majority
nationwide, or in accord with the nationwide
trend. If so, the petitioner should briefly highlight that the court
of
appeal opinion threatens to put California out of step with the
rest of the country.

Use persuasive headings. Care should also be taken with the argument headings. They should
succinctly
summarize the arguments made in the petition for review.
Argument headings merely reciting that the court of
appeal opinion
is inconsistent with other opinions or that the court of appeal wrongly
decided an important
question of law are ineffective. To the extent
possible within the confines of an argument heading, the point of
the
argument should be stated so that the court can gain an understanding
of the case and its importance from the
statement of the issues and
the topical index alone, as these may be as far as some readers will
get.
Present the case fairly. As with other submissions to the court, it is important not to misstate
the facts or overstate
the cases. Similarly, do not omit facts or
cases that could be relevant to review. The petition will be stronger
if it
fairly and squarely addresses the countervailing arguments relied
on by the court of appeal. Remember, it is the
court of appeal decision,
not the opposing party's position, that is the focus of a petition
for review. It is important
to treat the court of appeal decision
with respect, regardless of how unfair or wrong a party believes it
to be.

Use of quotes. If
the argument requires the court's consideration of exact language
from a document or from the
record, counsel should consider quoting
a short excerpt of the exact language
in the body of the petition. The
reason for this is that the supreme
court may not have quick access to the trial court record when the
petition is
filed. The material should be quoted only if it is critical
to the petition and can be no more than a few lines.

Use of exhibits. In rare circumstances, an exhibit that is "unusually significant"

and ten pages or less may be
attached as an exhibit to the petition. Cal Rules of Ct 8.504(e)(1).

California Civil Appellate Practice » 22 Review by the California Supreme Court »

§22.39
           5.  Conclusion

The conclusion should be concise but do more than

simply state that review should be granted "for the foregoing
reasons." Every point need not be referred to, but the petitioner
should reiterate the important themes of why the
case should be one
of the few in which review is granted. When applicable, the petitioner
should also consider
reminding the court that less than a full grant
is proposed in the first instance or as an alternative. See §§22.10–
22.52.

California Civil Appellate Practice » 22 Review by the California Supreme Court » VI. ANSWER TO PETITION
FOR REVIEW »

                     VI. ANSWER TO PETITION FOR REVIEW

§22.40
           A.  Answer Not Required But Advisable

A party opposed to supreme court review may file

an answer to the petition. Cal Rules of Ct 8.500(a)(2). The court
does not require
a party opposing a petition for review to file an answer, and some
knowledgeable people suggest
that in some cases it is unnecessary
to do so. Nevertheless, although the odds of the court's denying
review are
extremely high even if no answer is filed, it is risky
to leave the analysis solely to a very busy court without
providing
any assistance. Furthermore, an answer may raise additional issues
for review. Cal Rules of Ct 8.504(c).

NOTE:  If there are obvious reasons that the case is not

worthy of review, a short answer explaining those reasons is
helpful
to the court in evaluating the merits of the petition.

California Civil Appellate Practice » 22 Review by the California Supreme Court »

§22.41
           B.  Procedure and Time Requirements

Time for service and filing. An answer to a petition for review must be served and filed within
20 days after the
filing of the petition. Cal Rules of Ct 8.500(e)(4). The "date of filing" of the answer is
the date of delivery to the
clerk's office during normal business
hours. Cal Rules of Ct 8.25(b)(1). This rule also provides, however, that the
answer is
timely if the time for its filing has not expired on the date of its
mailing by priority or express mail, as
shown on the postal receipt
or postmark, or the date of its delivery to a common carrier promising
overnight
delivery as shown on the carrier's receipt. Cal Rules of Ct 8.25(b)(3). See §22.18.

Under Cal Rules of Ct 8.25(c)(2)(D), the respondent filing

an answer to a petition for review in the supreme court
may be required
to pay a filing fee.

Length limitations. The length limits are the same for the answer as for the petition—8,400
words (including
footnotes) if produced on a computer, excluding tables,
indexes, and the appellate court opinion. Cal Rules of Ct
8.504(b)–(e). Counsel must include with the petition a certificate
that states the number of words in the document;
the word count may
rely on the word count function of the word-processing program used
to prepare the petition.
Cal Rules of Ct 8.504(d)(1). The Chief Justice may
grant leave to file an oversize answer on written application.
Cal Rules of Ct 8.504(d)(4).

Style and form requirements. The style and form requirements for the answer are the same as for
a petition (see
§§22.28–22.39), except that

A copy of the court of appeal opinion is

not attached as an appendix; and
No statement of the issues is required
unless additional issues are counterdesignated (see Cal Rules of Ct
8.504(c)).

Electronic filing required. Unless an exception applies, the answer must be filed electronically. California
Supreme Court Rules Regarding
Electronic Filing, Rule 3. See §22.19.

Copies. The number

of copies is also the same as for a petition. See §22.19. Service requirements
are also the
same. Cal Rules of Ct 8.212(c), 8.500(e)(4). See §22.20.

California Civil Appellate Practice » 22 Review by the California Supreme Court »

§22.42
           C.  Answer Must Focus on Grounds for Review

Focus on lack of grounds for

review. Like the petition, the answer focuses not on the
underlying merits of the
appeal but on the grounds for supreme court
review enumerated in Cal Rules of Ct 8.500(b). See §22.2. Normally,
neither the court of appeal
opinion nor the briefs filed in the court of appeal will directly
address the factors
reflecting whether the case is an appropriate
candidate for review other than whether the court of appeal correctly
decided the merits of the issues presented. Even if the opposing party
considers review acceptable or desirable, the
court begins to form
an opinion about the case at the petition stage, and the opposing
party should not let the
petitioner have an open field in which to
run.

When to restate issues presented. An answer sometimes restates the issues presented if the petition
does not do
so fairly. This practice is controversial and should be
approached cautiously. Nevertheless, it can be a useful tool to
help
refocus the court if the statement of issues in the petition is misleading.
For example, a restatement of the
issues might refocus the question
presented in terms of the absence of a conflict, failure to raise
or preserve the
issue below, or the unique facts of the case. But
the restated issues should be nonargumentative, fair to the record,
and not inadvertently identify a potentially reviewable issue that
would otherwise not be apparent.

California Civil Appellate Practice » 22 Review by the California Supreme Court »

§22.43
           D.  Presenting Additional Issues for Review

The opposing party may identify issues for review

not presented in the petition and ask the supreme court to
review
those issues if it grants the petition for review. The opposing party
must set forth additional issues at the
beginning of the body of the
answer. Cal Rules of Ct 8.500(a)(2), 8.504(c).

The opposing party should consider whether raising

new issues will make the case more or less review worthy.
The additional
issues might deter the court from granting review because they make
the case more complex and
difficult to resolve. But they might increase
the profile of the case or influence the court to think that the case
is a
good vehicle because it allows clarification or resolution of
related matters that the court would like to address
together. The
opposing party should also consider that failing to raise additional
issues means that they are
probably waived if the court grants review.
If the goal is to convince the court to deny review, new issues should
be stated in a way that preserves them for a brief on the merits if
the court grants review without making them
unduly attractive at the
petition stage.

California Civil Appellate Practice » 22 Review by the California Supreme Court »

§22.44
           E.  Objectives in Structuring Answer
The twin objectives of the answer are to persuade
the supreme court that the court of appeal correctly resolved the
issues presented and that the case is inappropriate for review.

Follow structure of petition. The structure of the answer should mirror that recommended for the
petition.
Showing that the case is not a candidate for review is the
most important objective and involves analysis of each of
the same
factors that the petitioner should consider, but with the opposite
objective. See §§22.3–22.13. The answer
should stress the factors ignored by the petitioner and, when appropriate,
dispute the factors the petitioner does
raise.

Suggest alternatives if appropriate. The answer may also suggest alternatives to a hearing, such as ordering
depublication of the court of appeal opinion. See Cal Rules of Ct 8.1105(e)(2). See also §22.54.

Minimize the significance of

the reasons for review. If the petitioner claims a conflict
in the cases, the answer
should explain, if possible, how the cases
can be harmonized. When no conflict is claimed, that too should be
noted. If the issue is novel in California, the answer should support
the reasoning of the court of appeal and
suggest that even if the
court questioned the court of appeal's result, intervention
would be premature. Of course, if
the law is well established, that
fact should be highlighted. Similarly, if the court of appeal opinion
is "fact-bound"
so that it has little application to
other parties and cases, this aspect too should be explained.

Indicate how factual complexities

or uniqueness mitigate against review. The answer may show
that the
petition does not clearly present an issue for review on
the record because of complexities in the fact pattern or the
uniqueness
of the content in which the issue is raised. For example, the record
may not squarely present the issue,
or the facts of the case may have
unique aspects that would threaten the precedential value of any opinion
the
supreme court writes. It may also be that the issue was not properly
or timely raised. These complications can
make the petition a bad
vehicle to present the issue for review.

Support court of appeal decision. In demonstrating that the court of appeal's decision was
correct, the answer
should not just cite cases and statutes but should
explain why the competing public policies and the court's
reasoning
support the rule adopted and that it is fair and best serves the interests
of this state. Consider, also,
whether the rule the petitioner proposes
would be workable in other contexts. Direct reliance on the court
of appeal
in making this showing can be helpful. As with the petition,
it is the court of appeal's reasoning that will be
evaluated
most closely by the court's staff.

Be honest. One purpose

of the answer is to counteract any sense of urgency created by the
petition. The answer
should be careful not to inadvertently add glamour
or interest to the issues raised. However, the answer must be
candid.
If the petition raises a true conflict in the cases or an issue worthy
of review for other reasons, the opposing
party should not risk credibility
with the court by blowing smoke. Rather, the answer should focus on
why the case
is not a good vehicle to address the conflict or the
issue. Other options when appropriate include depublication and
suggesting
that the court wait to see what other courts of appeal have to say
on the issue, particularly if further
development will help clarify
the issue or minimize the conflict.

California Civil Appellate Practice » 22 Review by the California Supreme Court » VII. REPLY TO ANSWER
TO PETITION FOR REVIEW »

                     VII. REPLY TO ANSWER TO PETITION FOR REVIEW

§22.45
           A.  When Appropriate

The petitioner may file a reply to the answer. Cal Rules of Ct 8.500(a)(3). A reply is recommended in most
instances, but particularly
if the answer presents additional issues for review. Some petitioners
file a reply even if
no new issues were presented in the answer, especially
if the issues were restated or to correct misstatements in the
answer.

California Civil Appellate Practice » 22 Review by the California Supreme Court »

§22.46
           B.  Procedural Requirements
The reply, which must be filed within 10 days after
the answer is filed, is limited to 4200 words, including
footnotes,
if produced by computer, excluding index of contents and table of
authorities, unless the Chief Justice
orders otherwise. Cal Rules of Ct 8.500, 8.504(d)(1)–(2). The number of copies are the same as for a petition.
See
§22.19. Unless an exception
applies, the reply must be filed electronically. California Supreme Court Rules
Regarding
Electronic Filing, Rule 3. See §22.19. See §22.32 on material
that can be annexed to or filed with the
reply.

California Civil Appellate Practice » 22 Review by the California Supreme Court »

§22.75
           C.  Form: General Format of Petition for Review

PETITION FOR REVIEW

To the Honorable Chief Justice of the California

Supreme Court, and the Associate Justices of the Supreme Court
of
California:

_ _[Name]_ _, plaintiff and appellant, respectfully petitions

for review following the decision of the Court of
Appeal, _ _[number]_ _ Appellate District, Division _ _[number]_ _ (per _ _[name]_ _, P.J.), filed on _ _[date]_ _.

ISSUES PRESENTED FOR REVIEW

This case presents the following issues for review: _ _[State issues concisely, without repetition or argument. List
in numerical
order if more than one issue is stated]_ _.

STATEMENT OF THE CASE

[State concisely the procedural history of the case

and the decision reached by the court of appeal]

ARGUMENTS IN SUPPORT OF REVIEW

[Provide the reasons to grant review on the issue

identified and discuss the merits of the case]

I. _ _[First Argument Heading]_ _

II. _ _[Second Argument Heading]_ _

III. CONCLUSION

[Briefly summarize the reasons to grant review]]

Date: _ _ _ _ _ _ Respectfully submitted,

_ _[Firm name]_ _

By _ _[name]_ _

Attorney for plaintiff and appellant