Class Action

Petition for review and depublication request filed in Cohen v. DirecTV

By Kimberly A. Kralowec

On November 6, 2009, a petition for review was filed in Cohen v. DirecTV, no. S177734, followed by a depublication request on November 23, 2009.   (My original blog post on Cohen is available at this link.)

Here's an appellate practice question for you:  When are depublication requests due in this case?

The Court of Appeal opinion was originally filed on September 28, 2009.  However, it was not published until thirty days later, on October 28 (the last possible day). Under Rule of Court 8.264(b)(3): ?If a Court of Appeal certifies its opinion for publication or partial publication after filing its decision and before its decision becomes final in that court, the finality period runs from the filing date of the order for publication.? Under that Rule, the decision would be final 30 days after October 28, which would be last Friday, November 27 (a Court holiday).  (I leave it to you to determine whether the date of finality is extended to the following Monday, November 30.) 

Under Rule of Court 8.1125(a)(4), depublication requests ?must be delivered to the Supreme Court within 30 days after the decision is final in the Court of Appeal.?   In this case, thirty days after finality (calculated as November 27) is December 27, 2009 (a Sunday).  (Again, I leave it to you to determine whether the final deadline might be a couple of days earlier or later, given the way the dates fall.)   

Now, consider the Supreme Court's deadline to rule on the petition for review.  Rule of Court 8.512(b) reads:

(b) Determination of petition

(1) The court may order review within 60 days after the last petition for review is filed. Before the 60-day period or any extension expires, the court may order one or more extensions to a date not later than 90 days after the last petition is filed.

(2) If the court does not rule on the petition within the time allowed by (1), the petition is deemed denied.

Unless it gives itself an extension of time, the Supreme Court's deadline to grant or deny review will be Tuesday, January 5, 2010. 

But now look at the Supreme Court's conference calendar for December and January (calendar for 2009 and calendar for 2010).  The Court's last conference before January 5 will take place on December 23--which is several days before the probable deadline to file depublication requests in this case.  If the Supreme Court has any interest in this case, I expect it will grant itself an extension of time on or before the conference on December 23.  It would be prudent for anyone planning to file a depublication request (or, for that matter, a letter in support of review) to do so before that December 23 conference date. 

UPDATE:  Today, after I posted the above, a new line was added to the docket deeming December 1, 2009 as the filing date of the petition for review.  That would mean that the Supreme Court's deadline to grant or deny review would not be until January 30, 2010 (a Saturday).  The last conference before January 30 will take place on the preceding Wednesday, January 27, 2010.   

Full post as published by The UCL Practitioner on December 01, 2009 (boomark / email).