In most cases, the Supreme Court will give up jurisdiction over a case by issuing its remittitur as soon as “a decision of the court is final.” (Rule 8.540(b)(1).) But rule 8.540(c)(2) provides another option: “On a party’s or its own motion and for good cause, the court may stay a remittitur’s issuance for a reasonable period.”
The same rule also allows the court, on motion and for good cause, to recall a remittitur that’s already issued, but, as the comment to rule 8.540’s predecessor explained, “in accord with the case law, ‘good cause’ . . . has substantially different meanings depending on whether it is applied to a stay or to a recall of a remittitur. (See 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, §§ 735- 741, pp. 764-771.)”
The current edition of Witkin says that, for a stay of a remittitur, “The main reason is to allow an opportunity for further review in the United States Supreme Court.” (9 Witkin, Cal. Procedure (6th ed. 2021) Appeal, § 874.)
We were reminded of this when we wrote about the pending certiorari petition in Reilly v. Marin Housing Authority. After the court’s August 2020 decision in the case, but before it became final, the losing party filed this motion to stay the remittitur’s issuance. Despite opposition to the motion, the court granted the motion “to permit appellant to file a petition for writ of certiorari with the Supreme Court of the United States.” The court’s order further provided, “Upon the filing of that petition, the issuance of the remittitur is further stayed until final determination of the certiorari proceeding. If a petition for writ of certiorari is not submitted within the time prescribed, this stay will terminate when the time for submitting the petition has expired.”
The certiorari petition was filed in January 2021. Today, ten months later, the petition is still pending and the California Supreme Court’s remittitur has yet to issue.
