Is a petition for rehearing worth filing before the Supreme Court?
Question: The Court of Appeal affirmed my case. Is there any point in a petition for rehearing before I petition the Supreme Court?
Sometimes, and here's why
A petition for rehearing under California Rules of Court, rule 8.268 is the only mechanism to correct a factual misstatement or an omitted issue in a Court of Appeal opinion. If the Supreme Court later grants review, the record it starts from is the opinion as it stands. A factual error in the opinion, or an argument the panel ignored, will follow the case up the chain unless it is corrected on rehearing.
What rehearing is for
- Factual misstatements. The opinion says the deposition happened in 2022 when it happened in 2021. The opinion says the plaintiff owned the property when the record shows the plaintiff was a tenant. The opinion attributes a statement to the wrong witness. These are correctable on rehearing and often are.
- Omitted issues. An argument that was properly briefed and argued but that the opinion never addresses. The panel may have overlooked it entirely; rehearing is how you get a ruling on the record.
- Newly relevant authority. A published decision that came down between argument and opinion, if it bears directly on the disposition.
What rehearing is not for
Reargument. Panels almost never change their minds on the merits after an opinion issues. A petition for rehearing that reads like the opening brief with a different tone will be denied summarily, and it burns time and space that would be better spent on the petition for review.
The strategic dimension
The Supreme Court grants review on legal questions of statewide importance or on conflicts among Courts of Appeal. If the opinion contains a factual error that undermines the way the case looks on review — for example, if the opinion states the party did not preserve an issue when the record shows preservation — rehearing is essential. Without it, the petition for review may be denied for reasons that were never actually true.
Conversely, if the opinion is factually accurate and the disagreement is purely legal, rehearing is often a formality and the energy is better spent on the review petition itself.
Timing
A petition for rehearing must be filed within 15 days after the opinion is filed (rule 8.268(b)(1)). If rehearing is denied, the deadline to petition for review is measured from the date the Court of Appeal's decision becomes final — typically 30 days after the opinion, extended by the pendency of a rehearing petition. Do not miss that clock while waiting on rehearing.