Cal. R. 8.268

As amended through March 15, 2024

Rule 8.268 - Rehearing

(a)Power to order rehearing

(1) On petition of a party or on its own motion, a reviewing court may order rehearing of any decision that is not final in that court on filing.

(2) An order for rehearing must be filed before the decision is final. If the clerk's office is closed on the date of finality, the court may file the order on the next day the clerk's office is open.

(b)Petition and answer

(1) A party may serve and file a petition for rehearing within 15 days after:

(A) The filing of the decision;

(B) A publication order restarting the finality period under rule 8.264(b)(3), if the party has not already filed a petition for rehearing;

(C) A modification order changing the appellate judgment under rule 8.264(c)(2); or

(D) The filing of a consent under rule 8.264(d).

(2) A party must not file an answer to a petition for rehearing unless the court requests an answer. The clerk must promptly send to the parties copies of any order requesting an answer and immediately notify the parties by telephone or another expeditious method. Any answer must be served and filed within 8 days after the order is filed unless the court orders otherwise. A petition for rehearing normally will not be granted unless the court has requested an answer.

(3) The petition and answer must comply with the relevant provisions of rule 8.204, including the length provisions in subdivision (c)(5).

(4) Before the decision is final and for good cause, the presiding justice may relieve a party from a failure to file a timely petition or answer.

(Subd (b) amended effective January 1, 2020; previously amended effective January 1, 2004, January 1, 2007, and January 1, 2009.)

(c)No extension of time

The time for granting or denying a petition for rehearing in the Court of Appeal may not be extended. If the court does not rule on the petition before the decision is final, the petition is deemed denied.

(d)Effect of granting rehearing

An order granting a rehearing vacates the decision and any opinion filed in the case and sets the cause at large in the Court of Appeal.

Cal. R. Ct. 8.268

Rule 8.268amended effective 1/1/2020; amended effective 1/1/2009; repealed and adopted as rule 25 effective 1/1/2003; previously amended effective 1/1/2004; previously amended and renumbered effective 1/1/2007.

Advisory Committee Comment

Subdivision (b). As used in subdivision (b)(1), "decision" includes all interlocutory orders of the Court of Appeal. (See Advisory Committee Comment to rule 8.500(a) and (e).) This provision addresses the finality of decisions in civil appeals and, through a cross-reference in rule 8.470, in juvenile appeals. See rule 8.366 for provisions addressing the finality of decisions in proceedings under chapter 3, relating to criminal appeals; rule 8.387 for provisions addressing finality of decisions under chapter 4, relating to habeas corpus proceedings; and rule 8.490 for provisions addressing the finality of decisions in proceedings under chapter 7, relating to writs of mandate, certiorari, and prohibition.

Subdivision (b)(3) provides that a postfiling decision of the Court of Appeal to publish its opinion in whole under rule 8.1105(c) or in part under rule 8.1100(a) restarts the 30-day finality period. This provision is based on rule 40-2 of the United States Circuit Rules (9th Cir.). It is intended to allow parties sufficient time to petition the Court of Appeal for rehearing and/or the Supreme Court for review-and to allow potential amici curiae sufficient time to express their views-when the Court of Appeal changes the publication status of an opinion. The rule thus recognizes that the publication status of an opinion may affect a party's decision whether to file a petition for rehearing and/or a petition for review.