One of the best ways to get the Supreme Court to grant review is to show that the published Court of Appeal opinion in your case expressly conflicts with another published Court of Appeal opinion. The Supreme Court will often, but not always, take a case under those circumstances because it is then “necessary to secure uniformity of decision.” (Rule 8.500(b)(1).)
Normally, it’s not difficult to identify an express conflict. For example, in Ramos v. Brenntag Specialties, Inc., after the trial court relied on a 2012 Court of Appeal decision in dismissing the plaintiffs’ case, the Ramos court reversed, stating,”we respectfully disagree with the holding in” the 2012 decision. Not surprisingly, the Supreme Court granted review, last July. [Disclosure: Horvitz & Levy represents one of the Ramos defendants in the Supreme Court.]
But what happens when a Court of Appeal says it is overruling or disapproving one of its own earlier opinions? Does a Court of Appeal, like the Supreme Court, have the power to supersede one of its decisions so that it no longer has precedential effect, or does the “disapproval” create a conflict in the case law?
The Supreme Court would be more likely to grant review if “disapproval” creates a conflict. When there are conflicting Court of Appeal decisions, each superior court in the state is free to choose which decision it believes is the better reasoned. If “disapproval” really means the earlier decision is superseded, however, each superior court would be required to follow the later, disapproving opinion.
Ninth Circuit; en banc
