Rehearing Petition


Generally speaking, a petition for rehearing should be filed in one of four circumstances: (1) where there has been a material factual error or omission in the court's opinion; (2) where an issue has either not been addressed or has only been superficially addressed; (3) where critical new authority has come to light which has gone unmentioned in the opinion; or (4) where the court has decided the case on a point which was not raised by the parties. As to this last category, Government Code section 68081 provides that rehearing is to be granted to allow the parties a fair chance to brief the point in question.

With respect to omissions in the court's opinion, rule 2.500(c)(2) of the California Rules of Court sets forth a limitation to petitioning for review if a petition for rehearing was not filed. As a matter of policy, the Supreme Court will not consider any issue or material fact that was omitted from or misstated in the opinion of the Court of Appeal unless the omission or misstatement was called to the court's attention in a petition for rehearing. Thus, in this circumstance, a petition for rehearing is required as a condition precedent to seeking review.

If you review the opinion and are unsure whether to file a petition for rehearing, contact the SDAP staff attorney who has been assisting or monitoring the case. The staff attorney will have reviewed the opinion and will be prepared to discuss whether a petition for rehearing should be filed.

The petition for rehearing must be filed within 15 days of the issuance of the decision. (Cal. Rules of Ct., rule 8.268(b)(1).) The court has jurisdiction to rule on the petition or grant rehearing on its own motion for a period of 30 days following the issuance of the decision. (Cal. Rules of Ct., rules 8.264(b)(1) and 8.268(a)(2).)

If rehearing is denied without a modification of the judgment, a petition for review is due within 31 to 40 days from the date on which the opinion was originally filed. (Cal. Rules of Ct., rule 8.264(c)(2).) If the judgment is modified, a petition for review is due within 31 to 40 days of the filing of the modified judgment. (Ibid.) Whenever the Court of Appeal modifies an opinion, its order “shall specify whether it effects a change in the judgment.” (Ibid..)

Finally, an order for publication filed after the opinion restarts the Court of Appeal’s 30 day finality period, and a petition for rehearing can be filed within 15 days of the publication order. (Rules 8.264(b)(5) and 8.268(b)(1)(B).)

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