It’s been a while since we warned attorneys who had obtained a Supreme Court grant-and-hold order and want to prevent a likely dismissal of review after the lead case has been decided. We advised counsel to file something with the court before the remittitur issues in the lead case if the lead case opinion is generally unfavorable, but there’s nonetheless good reason that the adverse Court of Appeal decision in their case should not stand despite the lead-case opinion.
Here’s an update to the warning about how fast counsel might need to act.
The reason for moving quickly is that the court will sometimes dispose of grant-and-hold cases very soon after issuing its remittitur in the lead case and there’s little recourse if review is dismissed — a dismissal of review is final on filing and there is no further briefing in, or decision by, the Court of Appeal in the case, as there normally would be if the case were instead transferred back to the Court of Appeal for reconsideration in light of the lead opinion.
A remittitur usually will not issue until at least 30 days after the Supreme Court’s opinion in a case. But, be aware that a remittitur can issue sooner than that.
Rule 8.540(c)(1) provides, “The Supreme Court may direct immediate issuance of a remittitur on the parties’ stipulation or for good cause.”
A stipulated early remittitur issued last week in People v. Emanuel, just four days after the court issued its opinion. (The court could dispose of cases holding for Emanuel as soon as this coming Wednesday’s conference.) An example of a “good cause” fast remittitur is in Guardianship of Saul H. (2022) 13 Cal.5th 827 (see here), in which the court ordered the remittitur to issue seven days after the opinion filed.
Early remittiturs are unusual, but counsel in grant-and-hold cases should keep the possibility in mind. On the other hand, and just as rare, the court can substantially delay issuing a remittitur.
