Step 7: Petition for rehearing

When to file a petition for rehearing

A party must file a petition for rehearing within 15 days after the Court of Appeal:

• Files an opinion (decision).
• Files an order for publication of the opinion (decision).
• Issues an order modifying its opinion (decision), if the order changes the judgment.
• Files a dismissal order.

The petition for rehearing must be served to all parties in the case, the trial court, and the California Supreme Court before it is filed in the Court of Appeal.

The deadline to file a petition for rehearing is strict. The Court of Appeal may allow a late petition, however, it only has jurisdiction (legal authority) over a case for 30 days after issuing an opinion or order.

Cost of a petition for rehearing

There is no additional court cost to file a petition for rehearing.

Reasons why a party can petition for rehearing

A petition for rehearing allows a party who lost the appeal to challenge the Court of Appeal’s decision. It provides an opportunity to:

• Focus on specific legal mistakes in the Court of Appeal’s decision.
• Discuss important factual or legal errors, or misstatements made in the decision.
• Identify significant arguments or issues that were mentioned in the briefs but not included in the Court of Appeal’s decision.
• Argue that the trial court or the Court of Appeal did not have jurisdiction (legal authority) to handle the case.
• Challenge a dismissal order made by the Court of Appeal.
• Challenge a decision based on a legal issue that was not raised by any party or included in a brief during the appeal. (In this situation, there is an automatic right to rehearing, but this right is very limited. The Court of Appeal may disagree with a party about whether an issue was included in the brief.)

Petition for rehearing is not an opportunity to:

• Repeat arguments already made in the trial court or the Court of Appeal.
• Restate information the Court of Appeal already received in the briefs or the record on appeal.
• Introduce new legal arguments or issues that were not previously raised in the appeal (except when challenging the court’s jurisdiction or addressing a fact/legal issue not discussed by any party during the appeal).
• Challenge a decision simply because you disagree with it.

Writing a petition for rehearing

A petition for rehearing is a request to ask the Court of Appeal to review its decision. This petition should focus on mistakes made in the court’s opinion. Here’s how to write it:

Before writing the petition

• Check the rules: Always check with your Court of Appeal for any specific rules and requirements.

How to format the petition for rehearing

• No official form: There is no special court form for this petition. You’ll need to create your own. It should have two parts:
  1. Cover page: Include your contact information and details about the case (like the case number).
  2. Main document: This part should explain why you are asking for a rehearing.
• Use the right color: If you file it on paper, the cover page should be orange.

What to include in the petition for rehearing

The important parts of your petition should explain:

• Why the court should reconsider: Clearly state why you think the court needs to look at the case again.
• Supporting details: Give reasons for your request, including legal arguments and references to the record or briefs.
• How the court should rule: Explain how you think the Court of Appeal should decide the case (affirm, reverse, or change the trial court's decision).

Proving the court made a mistake

Your petition should show that the Court of Appeal made a mistake. Here are examples of mistakes you might mention:

• A major error in the facts the court used.
• A mistake in the law applied by the court.
• An important fact or argument that was discussed but not included in the decision.

Focus of the petition

Make sure your petition focuses on the mistakes made by the Court of Appeal and why it should consider the case again. Do not repeat information that has already been discussed in your briefs or during oral arguments.

Serving and filing a petition for rehearing

Always check with your Court of Appeal to confirm the specific filing and service requirements for your case.

You must serve a copy of the petition for rehearing to all parties involved in the case, the trial court, and the California Supreme Court before filing the petition in the Court of Appeal.

What the parties do during the petition for rehearing

• The parties do not need to take any action while the Court of Appeal reviews the petition for rehearing, unless the court requests something.
• In some cases, the court may not ask for additional information from any of the parties during this time.
• In other cases, the court may request information from one or more parties. This could involve asking the party who filed the petition for rehearing to respond in another brief or during oral argument. The court may also request responses from other parties opposing the petition.
• If the court asks for information, the responding party must generally serve and file their response within 8 days after the petition for rehearing is filed. It is crucial for all parties to closely monitor their case when a petition for rehearing is filed. Pay attention to any court orders requesting answers to the petition, as the time to file a response can be shorter than 8 days.
• A party must include all requested information in their response and follow the same formatting rules as the briefs. If filing a response on paper, the cover page should be blue.

What the Court of Appeal does during petition for rehearing

Review process

The Court of Appeal reviews the petition for rehearing and decides how to respond.

How much time does the court have to respond?

The Court of Appeal has 30 days after issuing an opinion or filing a dismissal order to make any rulings on the petition for rehearing. This is the time frame in which the court has jurisdiction (legal authority) to act.

How can the court respond to the petition?

The Court of Appeal can respond to a petition for rehearing in three ways:

1. No action: The court can decide not to respond and take no further action. If the court does this, the petition is considered denied.
2. Deny the petition: The court can deny the petition for rehearing.
3. Grant rehearing: The court can agree that there was a significant mistake that warrants granting rehearing and hearing the case again.

Sometimes, even if the court denies a petition for rehearing, it may still modify its opinion to correct or change something in the original decision.

There is an automatic right to rehearing if the court makes a decision based on an issue that was not raised by any party during the appeal.

If the Court of Appeal agrees there was a mistake, it will disregard the previous decision and issue a new decision after rehearing the appeal. When this happens, the 30-day period starts over, and any party can file another petition for rehearing.

What happens next?

• If the Court of Appeal does not take action within 30 days after issuing an opinion, jurisdiction over the case moves to the California Supreme Court for the next 30 days.
• If a party still wants to challenge the Court of Appeal’s decision, they must file a petition for review within 10 days with the California Supreme Court.
• If the California Supreme Court takes no action within its 30-day period, the Court of Appeal's opinion becomes final. The Court of Appeal will then issue a remittitur, which states the decision and returns jurisdiction of the case back to the trial court.