How to File a Motion for Reconsideration After a California Court of Appeal Decision Under Rule 8.268
A motion for reconsideration of a California Court of Appeal decision (a “petition for rehearing”) must be filed within 15 days after the decision is filed. California Rule of Court 8.268 strictly controls timing, content, and what issues can be raised. This article explains when rehearing is appropriate, how to draft and file under Rule 8.268, and strategic pitfalls that can forfeit further review.
Understanding “Reconsideration” in the California Court of Appeal
In California appellate practice, what many clients (and some trial lawyers) call a “motion for reconsideration” after a Court of Appeal opinion is typically a petition for rehearing governed by California Rule of Court 8.268. The Court of Appeal does not entertain trial-court-style reconsideration under Code of Civil Procedure section 1008. Instead, rehearing is the built-in mechanism to ask the appellate panel to correct errors before the decision becomes final and before you pursue review in the California Supreme Court.
Rehearing is not a second appeal. It is a narrow request that the same panel revisit specific legal or factual errors, modify language, correct omissions, or address issues that were overlooked or misapprehended. Used strategically, it can fix a damaging misstatement, preserve an issue for Supreme Court review, or sometimes change the outcome.
Rule 8.268 Deadline and “Finality” Basics (The 15-Day Trap)
Timing is everything. Under Rule 8.268, a petition for rehearing must be filed within 15 days after the decision is filed. That deadline is short, unforgiving, and usually non-extendable in practice. If you miss it, you typically lose rehearing—and you may also compress or complicate the timetable for seeking Supreme Court review.
Equally important is the concept of finality. In most Court of Appeal cases, the decision becomes final in that court 30 days after filing, unless the court orders otherwise or rehearing is granted. Filing a timely rehearing petition pauses the slide toward finality while the court considers it, and can affect when the remittitur issues and when the clock runs for Supreme Court review.
Practical calendar tips for Rule 8.268
Experienced appellate practitioners treat the 15-day rehearing deadline as a hard internal sprint:
Day 0: Decision filed (opinion or order).
Days 1–3: Identify rehearing-worthy errors; confer with client about goals (fix language vs. change outcome vs. preserve issues).
Days 4–10: Draft petition with pinpoint citations; consider proposed modifications.
Days 11–15: Finalize, proof, file, and serve. Avoid last-day filing problems.
When a Petition for Rehearing Is Appropriate (And When It’s Not)
A strong rehearing petition is anchored in identifiable appellate error—not disappointment with the result. Rule 8.268 is best used when:
- The court misstated a material fact (e.g., describing an exhibit incorrectly, confusing dates, or attributing testimony to the wrong witness) and that misstatement matters to the holding.
- The court overlooked a controlling statute or case that was raised in briefing (or is genuinely controlling and was inadvertently omitted).
- The opinion decides an issue not briefed or relies on a theory the parties did not have an opportunity to address.
- The disposition or instructions are internally inconsistent (e.g., remand directions that contradict the holding or omit necessary steps).
- The opinion’s reasoning creates unintended collateral consequences (e.g., broad language that may harm your client in related matters, licensing, insurance, or future litigation).
By contrast, rehearing is generally a poor fit when the petition merely:
- Re-argues points the court already considered and rejected, without identifying a specific misapprehension.
- Introduces brand-new issues or evidence that could have been raised earlier.
- Asks the court to “reweigh” the record under an applicable deferential standard (substantial evidence, abuse of discretion) without pinpointing legal error.
What Rule 8.268 Requires: Content and Form
Rule 8.268 sets the basic framework for rehearing. While each district may have local preferences, a high-quality petition generally includes:
- A short introduction identifying the decision date, case number, and the relief sought (rehearing, modification, or both).
- Precise identification of the claimed errors—with page and line references to the opinion and citations to the record.
- Corrective analysis showing why the point matters to the outcome, the reasoning, or the scope of the opinion.
- A clear request (e.g., modify a factual statement, revise a legal standard, address an overlooked issue, or change the disposition).
Many successful rehearing petitions are narrowly targeted and read like a surgical errata-plus: “Here is the sentence; here is why it’s wrong; here is the record cite; here is the correction; here is why it matters.”
Include record citations and show materiality
The Court of Appeal’s tolerance for generalized complaints is low. If you claim a factual error, quote the exact opinion language, cite the exact record location, and explain how the error affected the analysis. If you claim an overlooked legal point, cite where it was raised in the briefing and explain why it is controlling.
Step-by-Step: How to File Under Rule 8.268
1) Confirm the decision type and the filing date
Identify whether you received a published opinion, unpublished opinion, or an appellate order. The rehearing deadline is tied to the date the decision is filed—not when you receive it. Verify the filing date on the caption page and confirm it on the docket.
2) Calculate the 15-day rehearing deadline
Count 15 days from the filing date. If the deadline falls on a weekend or court holiday, the due date typically moves to the next court day. Do not assume you can obtain extensions. Treat the earliest plausible deadline as operative.
3) Decide whether you seek (a) rehearing, (b) modification, or (c) both
Sometimes the best outcome is a modification without changing the judgment—for example, correcting an erroneous factual statement, narrowing dicta, or clarifying remand instructions. Other times, you seek a change in outcome (reversal/affirmance/remand changes). Your requested relief should match the real problem.
4) Draft a petition that targets the panel’s error
Use headings that mirror the court’s opinion structure. Examples:
- “The Opinion Misstates the Record Regarding [Key Fact]”
- “The Opinion Overlooks [Controlling Authority]”
- “The Disposition Requires Clarification to Implement the Holding”
When appropriate, propose replacement language. Courts are more likely to modify an opinion when counsel provides a precise fix rather than a vague complaint.
5) Ensure compliance with formatting and service rules
File the petition with the Court of Appeal that issued the decision, following the court’s e-filing requirements (if applicable) and ensuring proper service on all parties. Confirm whether the court requires electronic service and whether any paper courtesy copies are needed.
6) Anticipate the post-filing pathway
After filing, the Court of Appeal may:
- Deny rehearing summarily (common).
- Grant rehearing, potentially leading to supplemental briefing, a modified opinion, or a different disposition.
- Modify the opinion without granting rehearing in some circumstances, issuing a modification order that may or may not change the judgment.
Strategic Uses: How Rehearing Can Shape Supreme Court Review
Even when you expect denial, a well-crafted rehearing petition can serve important strategic functions:
- Correct the factual narrative so the Supreme Court sees a clean record if review is sought.
- Highlight statewide importance or conflict by identifying a clear doctrinal error or misapplication of precedent.
- Preserve arguments by making clear the panel overlooked or misapprehended a point, especially when the opinion appears to rest on an unbriefed rationale.
Example: The opinion affirms summary judgment by invoking a duty analysis not argued by respondents. A rehearing petition can argue the issue was not briefed, identify the due process problem, and request supplemental briefing or modification. Even if denied, the petition helps frame the issue for a later petition for review.
Common Pitfalls That Undermine Rule 8.268 Petitions
Over-arguing instead of pinpointing
Rehearing is not an invitation to paste your opening brief into a new cover. Petitions that sound like a closing argument—without anchoring in a discrete error—are routinely denied.
Ignoring the standard of review
If the panel affirmed based on substantial evidence, your rehearing petition must show a legal error (e.g., the wrong legal test, a misunderstanding of what evidence was admitted, or a dispositive record misstatement), not a competing view of credibility or weight.
Raising new issues
New legal theories are typically disfavored at rehearing. If you must raise a point not previously argued (for example, a newly issued controlling decision), explain why the authority is intervening or why the omission was unavoidable—and show materiality.
