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Jim Reilly
Jim Reilly, Attorney
Category: Business Law
Satisfied Customers: 1805
Experience:  CA Atty since 1976, 10 years as General Counsel CA corps.
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In California, if a court of appeal sends a remittitur back

Customer Question

In California, if a court of appeal sends a remittitur back to the trial court, and the trial court then takes certain actions such as issuing a judgment, and the court of appeal later recalls the original remittitur because of an error, are the actions of the trial court null and void which it took between the receipt of the remittitur and the recall of the remittitur. For example, is the judgment null and void?
Submitted: 8 years ago.
Category: Business Law
Expert:  N Cal Attorney replied 8 years ago.
If the Court of Appeal recalls the remittitur, that does not make the judgment void, but it does operate to stay the judgment because the case has been removed from the trial court and returned to the Court of Appeal. IMHO.
Customer: replied 8 years ago.
Thanks. But if the first remittitur was defective, does that not mean that jurisdiction was not returned to the trial court? If jurisdiction was not returned , are all the actions of the trial invalid that were taken subsequent to the return of the first remittitur? Is there any case law or statute on this? Thanks.
Expert:  N Cal Attorney replied 8 years ago.
I'm sorry but I am 2 hours away from the nearest law library and I am not finding an answer for you on line. I will opt out and see if another expert can assist you.
Expert:  Jim Reilly replied 8 years ago.
HelloCustomerand welcome to JustAnswer. N Cal Attorney has referred your question to me and I have researched the California Rules of Court regarding Civil Appeals and remittiturs, as well as some of the best-known cases on the subject (which is rather arcane!).

The applicable Rule of Court is Rule 8.272, which reads in pertinent part as follows (I have omitted the notes and inapplicable sections):

Rule 8.272. Remittitur

(a) Issuance of remittitur

A Court of Appeal must issue a remittitur after a decision in an appeal.

...

(c) Immediate issuance, stay, and recall

...

(2) On a party's or its own motion or on stipulation, and for good cause, the court may stay a remittitur's issuance for a reasonable period or order its recall.

(3) An order recalling a remittitur issued after a decision by opinion does not supersede the opinion or affect its publication status.


Most of the cases which interpret the ability of a court of appeal to recall a remittitur are criminal cases and I cannot locate a case which is precisely on point in answering the question you raised.

However, the cases do establish that a mistake or an improvident act which results in prejudicial error or a miscarriage of justice may nevertheless be corrected upon a recall of the remittitur. That rule would appear to apply to both civil and criminal cases.

Interpreting this procedural rule in combination with Rule 8.272(c)(3), it appears to me, since the recall "does not supersede the opinion", that a remittitur does restore jurisdiction to the trial court, even if issuance of the remittitur results in prejudicial error or a miscarriage of justice. Thus, any orders issued by the trial court would be valid and enforcible ... up until the moment the remittitur is recalled.

At that point, pursuant to the usual rules on appeal, the trial court is divested of jurisdiction and its orders (in this case, those issued before and after the case was remitted) are stayed pending further order of the court of appeal.

The rules do not specifically address the procedure by which the court of appeal is to consider the orders of the trial court that were issued while the case was remitted. However, no logical conclusion can be reached except that the court of appeal can, for the purpose of correcting the error or miscarriage of justice created by the issuance of the remittitur, review all orders of the trial court, including those issued while the cause was remitted.

Presumably, if the post-remittitur order of the trial court would be invalid under a correct interpretation of whatever law led the court of appeal to recall the remittitur, that error can be corrected, along with any others, by a subsequent order of the court of appeal. In other words, at this point, the entire case is on appeal and the court of appeal can resolve any issue in the case, including the post-remittitur orders of the trial court.

This is a very esoteric point of appellate law. I hope my explanation has clarified the situation for you. If not, or you have any other questions about the situation, please let me know.
Customer: replied 8 years ago.
Jim, I appreciate what you sent. Maybe there is no case dealing with that specific issue. What do you think? I think that I should pay you for your work, but just wanted to take one last shot at finding the answer. Do you know anybody who might specialize in this area? Thanks.
Expert:  Jim Reilly replied 8 years ago.
I am fairly good at legal research (having taught it for four years at the University of California, Hastings College of the Law, in San Francisco). While I cannot say it with 100% certainty, I am fairly confident that there is no case precisely on point or I would have found it.

If by "specialize in this area" you mean appellate practice, yes, there are lawyers who do so. More specifically than that, most unlikely. You haven't said where you are or which DCA is involved, but you should be able to find a nearby appellate law specialist through your county bar lawyer referral service or the Martindale-Hubbell directory. If you let me know where you are, I can give you a link for your county LRS. You can access Martindale-Hubbell through their website at:

http://www.martindale.com/law-firm/law.htm

Under "Browse Law Firms", click on "Appellate Practice", then on the next page "California" and then finally on nearby cities to find local lawyer who practice appellate law.