No one likes to lose. Not clients. Not lawyers.
It happens, of course. Fifty percent of the time, on average. That's the nature of the beast.
Still, it's no fun when it happens to you.
But sometimes, what happens thereafter is even worse. Like here.
The City of Chula Vista rejected the application of CV Amalgamated to open a licensed retail cannabis store, CV Amalgamated sued and lost, and CV Amalgamated then filed an appeal. Which it won.
At that point, the City of Chula Vista -- and its lawyers from Musick, Peeler & Garrett -- filed a petition for rehearing, arguing that the relief granted by the Court of Appeal would improperly result in having to rescore the various permit applications and hence involves indispensable parties; e.g., those who already got permits under the existing scoring scheme.
The Court of Appeal was not psyched for this additional argument. So it amended the published opinion to say the following two things. First, it added a couple of sentences that said: "The appellate record does not contain evidence about the current status of the City’s licensing of storefront cannabis businesses. However, documents in the appellate record show that subsequent to the City’s denial of CVA’s applications, all of the applicants for storefront retail licenses in Council District One that had been selected to participate in Phase Two either dropped out or were disqualified." In other words, it pointed out that, as far as the appellate record goes, no one got a permit, so the argument that rescoring would harm some absent parties wasn't true, as least as far as the existing record indicates.
And then the Court of Appeal added a footnote to this text that says:
"After we originally issued our opinion in this matter, in a belated attempt to present evidence showing the current status of its licensing efforts for storefront cannabis businesses, the City filed a request for judicial notice and a motion to take new evidence on appeal, along with a petition for rehearing. Although it made no attempt to present new evidence during the course of this appeal, the City now asks that we grant rehearing to consider evidence showing that the City has already issued storefront licenses to several cannabis retailers in several Council Districts. The City contends that the new evidence would support its argument that indispensable parties have not been joined in this action and would show that some of the relief sought by CVA will be ineffectual. The City cites Code of Civil Procedure section 909 and California Rule of Court, rule 8.252(b) and (c), which permit a litigant to bring a motion requesting that a reviewing court take new evidence in a non-jury case. As the City acknowledges, such a request will be granted, in the discretion of the reviewing court, only in exceptional circumstances. (Diaz v. Prof. Community Management, Inc. (2017) 16 Cal.App.5th 1190, 1213.)
Whether or not the City’s request that we consider such evidence might have been meritorious if it was made during the briefing and argument of this appeal (an issue we do not reach), the request is inappropriate at this stage of the proceedings after we already issued our opinion. (Gentis v. Safeguard Business Systems, Inc. (1998) 60 Cal.App.4th 1294, 1308 [“It is well settled that arguments . . . cannot be raised for the first time in a petition for rehearing”]; Smith v. Crocker First Nat. Bank of San Francisco (1957) 152 Cal.App.2d 832, 837 [“Counsel are not permitted to argue their cases in a piecemeal fashion and points not previously argued will not be considered where raised for the first time on petition for rehearing.”].) Based on the City’s description of the relevant timeline, during the briefing and argument of this appeal there was ample time for the City to attempt to submit new evidence, for CVA to present any countervailing evidence, and for the parties to discuss the legal significance of that evidence. According to the City, the first license was issued more than a month before CVA’s November 1, 2021 opening appellate brief was filed; another license was issued before the City filed its respondent’s brief; and the remaining licenses were issued before oral argument. The City’s failure to identify the new evidence during the briefing and argument of this appeal is unexplained and inexcusable. It is also an abuse of the resources of this court for the City to ask us to reexamine this appeal and to consider additional legal issues based on newly submitted evidence that the City could have identified at an earlier stage. We accordingly deny the petition for rehearing, along with the City’s motion to take new evidence and the request for judicial notice.
In light of the City’s representation that other storefront cannabis licenses have issued, we emphasize that the scope of relief sought by CVA in this appeal does not include a request for an order invalidating any storefront cannabis licenses that the City may have already issued to other parties. Our decision in favor of CVA in this appeal, accordingly, should not be construed as directing that the trial court must issue a writ invalidating any licenses issued to other parties."
You get why the Court of Appeal is miffed about the relevant timeline, and why they weren't told about the new permits until after the opinion issued, right? For that reason, I suspect, the Court of Appeal isn't shy about pretty much torching the City's attorneys and blaming 'em for the resulting mess.
Because, yeah, that's probably something you wanted to get before the judges before the opinion was issued, not after.
