Citation to Unpublished Cases: A Brief Comparison of Federal And California Practices

_Endnotes

_{For purposes of citation to California authorities, this article follows the California Style Manual (4th ed. 2000).  Federal authorities are cited using the Bluebook (20th ed. 2015).  Code citations are to California state codes, e.g., the California Evidence Code, unless otherwise specified.}

_{[1] For example, California’s electronic discovery rules have generally caught up with their federal counterparts.  California’s Electronic Discovery Act, enacted in 2009, was largely modeled on the federal rules.  See Assem. Com. on Judiciary, Analysis of Assem. Bill No. 5 (2009-2010 Reg. Sess.) (“[m]any of the bill’s specific provisions are drawn from recently enacted federal rules . . . .”).}

_{[2] People v. Williams (2009) 176 Cal.App.4th 1521, 1529:}

_{We realize that depublished and unpublished decisions are now as readily available as published cases, thanks to the Internet and technologically savvy legal research programs. That does not give counsel an excuse to ignore the rules of court. Indeed, persistent use of unpublished authority may be cause for sanctions.}

_{[3] California Rules of Court, rule 8.1115 – Citation of Opinions:}

_{(a)  Unpublished opinion}

_{Except as provided in (b), an opinion of a California Court of Appeal or superior court appellate division that is not certified for publication or ordered published must not be cited or relied on by a court or a party in any other action.}

_{(b)  Exceptions}

_{An unpublished opinion may be cited or relied on:}

_{(1) When the opinion is relevant under the doctrines of law of the case, res judicata, or collateral estoppel; or}

_{(2) When the opinion is relevant to a criminal or disciplinary action because it states reasons for a decision affecting the same defendant or respondent in another such action.}

_{(c)  Citation procedure}

_{On request of the court or a party, a copy of an opinion citable under (b) must be promptly furnished to the court or the requesting party.}

_{(d)  When a published opinion may be cited}

_{A published California opinion may be cited or relied on as soon as it is certified for publication or ordered published.}

_{(e)  When review of published opinion has been granted}

_{(1) While review is pending}

_{Pending review and filing of the Supreme Court's opinion, unless otherwise ordered by the Supreme Court under (3), a published opinion of a Court of Appeal in the matter has no binding or precedential effect, and may be cited for potentially persuasive value only. Any citation to the Court of Appeal opinion must also note the grant of review and any subsequent action by the Supreme Court.}

_{(2) After decision on review}

_{After decision on review by the Supreme Court, unless otherwise ordered by the Supreme Court under (3), a published opinion of a Court of Appeal in the matter, and any published opinion of a Court of Appeal in a matter in which the Supreme Court has ordered review and deferred action pending the decision, is citable and has binding or precedential effect, except to the extent it is inconsistent with the decision of the Supreme Court or is disapproved by that court.}

_{(3) Supreme Court order}

_{At any time after granting review or after decision on review, the Supreme Court may order that all or part of an opinion covered by (1) or (2) is not citable or has a binding or precedential effect different from that specified in (1) or (2).}

_{[4] See TBG Ins. Services Corp. v. Superior Court (2002) 96 Cal.App.4th 443, 447, fn. 2; Santa Ana Hosp. Medical Center v. Belshe (1997) 56 Cal.App.4th 819, 831; Alicia T. v. County of Los Angeles (1990) 222 Cal.App.3d 869, 884-85.}

_{[5] California Rules of Court, rule 8.1105 – Publication of Appellate Opinions:}

_{(a)  Supreme Court}

_{All opinions of the Supreme Court are published in the Official Reports.}

_{(b)  Courts of Appeal and appellate divisions}

_{Except as provided in (e), an opinion of a Court of Appeal or a superior court appellate division is published in the Official Reports if a majority of the rendering court certifies the opinion for publication before the decision is final in that court.}

_{(c)  Standards for certification}

_{An opinion of a Court of Appeal or a superior court appellate division-whether it affirms or reverses a trial court order or judgment-should be certified for publication in the Official Reports if the opinion:}

_{(1)  Establishes a new rule of law;
(2)  Applies an existing rule of law to a set of facts significantly different from those stated in published opinions;
(3)  Modifies, explains, or criticizes with reasons given, an existing rule of law;
(4)  Advances a new interpretation, clarification, criticism, or construction of a provision of a constitution, statute, ordinance, or court rule;
(5)  Addresses or creates an apparent conflict in the law;
(6)  Involves a legal issue of continuing public interest;
(7)  Makes a significant contribution to legal literature by reviewing either the development of a common law rule or the legislative or judicial history of a provision of a constitution, statute, or other written law;
(8)  Invokes a previously overlooked rule of law, or reaffirms a principle of law not applied in a recently reported decision; or
(9)  Is accompanied by a separate opinion concurring or dissenting on a legal issue, and publication of the majority and separate opinions would make a significant contribution to the development of the law.}

_{(d)  Factors not to be considered}

_{Factors such as the workload of the court, or the potential embarrassment of a litigant, lawyer, judge, or other person should not affect the determination of whether to publish an opinion.}

_{(e)  Changes in publication status}

_{(A)  Unless otherwise ordered under (2): (A) An opinion is no longer considered published if the rendering court grants rehearing. (B) Grant of review by the Supreme Court of a decision by the Court of Appeal does not affect the appellate court's certification of the opinion for full or partial publication under rule 8.1105(b) or rule 8.1110, but any such Court of Appeal opinion, whether officially published in hard copy or electronically, must be accompanied by a prominent notation advising that review by the Supreme Court has been granted.}

_{(1)  The Supreme Court may order that an opinion certified for publication is not to be published or that an opinion not certified is to be published. The Supreme Court may also order depublication of part of an opinion at any time after granting review.}

_{. . . .}

_{[6] California Rules of Court, rule 8.1105(e).}

_{[7] See Fed. R. App. P. 32.1 advisory committee’s note to 2006 adoption.}

_{[8] See Circuit Rules 36-3; Fed. R. App. P. 32.1.}

_{[9] N.D. Cal. Civil L.R. 3-4(e) – Prohibition of Citation to Uncertified Opinion or Order:}

_{Any order or opinion that is designated: “NOT FOR CITATION,” pursuant to [N.D. Cal.] Civil L.R. 7-14 or pursuant to a similar rule of any other issuing court, may not be cited to this Court, either in written submissions or oral argument, except when relevant under the doctrines of law of the case, res judicata or collateral estoppel.}

_{[10] See Am. Online, Inc. v. Superior Court (2001) 90 Cal.App.4th 1, 6, fn.2, as mod. (July 10, 2001):}

_{Both here and in the trial court, the parties cite unpublished out-of-state decisions favoring their respective positions. [Former] Rule 977 of the California Rules of Court prohibits citation to our own state's unpublished opinions, thus we are hardly inclined to consider those of the Massachusetts Superior Court, federal district courts in Illinois and New York, or Florida trial courts and its Court of Appeal.}