So important do many appellate practitioners consider the “facts” section of a brief that one of them once said he’d agree to file a joint brief with his opponent and let the opponent write about the law if he got to write the facts. That might not be the best tactic for Supreme Court briefing, however.
In its opinion last week in Solus Industrial Innovations, LLC v. Superior Court, the court started the “Background” section by saying, “Our statement
of facts and procedure is based largely on the opinion of the Court of Appeal.” That’s not unusual. (See, e.g., California Cannabis Coalition v. City of Upland (2017) 3 Cal.5th 924, 931, fn. 2; Augustus v. ABM Security Services, Inc. (2016) 2 Cal.5th 257, 260, fn. 1; People v. Conley (2016) 63 Cal.4th 646, 654, fn. 2.)
Similarly, the court rule concerning petitions for review states, “as a policy matter the Supreme Court normally will accept the Court of Appeal opinion’s statement of the issues and facts unless the party has called the Court of Appeal’s attention to any alleged omission or misstatement of an issue or fact in a petition for rehearing.”
The practice tip is: if you don’t like the way the Court of Appeal stated the facts in its opinion, point that out in a rehearing petition and, if that court doesn’t make a satisfactory modification, make sure to prominently tell the Supreme Court — in a petition for review or a merits brief — that this is not one of those cases where the court can ignore your statement of facts and look just to the lower court opinion to find out what happened.
