Kowal Law Group Logo

An appellate panel overrules—yes, “overrules”—another panel

Tim Kowal     June 13, 2024

Unlike 9th Circuit panels who have no power to disregard other panel decisions, the California appellate courts are free to adopt or disregard other panel decisions. But like the 9th Circuit, state appellate courts have no power to overrule another appellate panel. That role, in California, is reserved to the Supreme Court.

And now also, apparently, to the Fourth Division of the Second District of the Court of Appeal.

In a bizarre result in Cohen v. Superior Court (D2d4 Jun. 5, 2024 No. B330202) [cert. for pub.], the court not only disagreed with a prior panel decision, it “overruled” it.

The case arose from a question over the availability of private civil enforcement under Government Code section 36900(a), which allows violations of city ordinances to be prosecuted by city authorities “or redressed by civil action.” Does “redressed by civil action” mean John Q. Citizen can bring the civil action? Sure, said a 2002 panel in Riley v. Hilton Hotels Corp. (2002) 100 Cal.App.4th 599.

The Cohen panel, however, disagreed with Riley. No problem. There is no horizontal stare decisis in California, so the panel was free to disagree with Riley.

But the panel was not satisfied with just disagreeing with Riley. Instead, the panel considered the stare decisis authorities and concluded that it was “empowered to reconsider—and in the appropriate case disapprove of or overrule—prior decisions of those courts.” The panel cited two appellate cases in support of this proposition, but other than using the word “overrule,” those cases did not support any such authority.

The panel cited other authorities supporting the principle that wrong precedent should be overturned, but those authorities were Supreme Court cases.

Ironically, the panel acknowledges that "'[a] decision by a court of appeal is not binding in the courts of appeal[,]'"and that when two appellate decisions conflict, under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456, trial courts are free to “make a choice between the conflicting decisions.” So Cohen is no more or less legally binding than Riley, notwithstanding its bandying about the term “overruled.”

These principles are not put into doubt just because a panel is feeling exceptionally butch. It’s not merely shouting ‘bingo’ that wins you the round.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.
Get “Not To Be Published,” a weekly digest of these articles, delivered directly to your inbox!
Subscribe

"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else."

— Hon. Sir Owen Dixon, Chief Justice of Australia

“It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”

— James Madison, Federalist 62

"So far as the beginnings of law had theories, the first theory of liability was in terms of a duty to buy off the vengeance of him to whom an injury had been done whether by oneself or by something in one's power. The idea is put strikingly in the Anglo-Saxon legal proverb, 'Buy spear from side or bear it,' that is, buy off the feud or fight it out."

— Roscoe Pound, An Introduction to the Philosophy of Law

"Counsel on the firing line in an actual trial must be prepared for surprises, including requests for amendments of pleading. They cannot ask that a judgment afterwards obtained be set aside merely because their equilibrium was slightly disturbed by an unexpected motion."

Posz v. Burchell (1962) 209 Cal.App.2d 324, 334

"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws."

— Plato (427-347 B.C.)

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly.

Leviticus

"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody."

—T.H. White, The Once and Future King

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor."

Rubin v. Green (1993) 4 Cal.4th 1187

"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind."

— Sir Thomas More in Robert Bolt's A Man for All Seasons

"A judge is a law student who grades his own papers."

— H.L. Mencken

"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality."

— Will Durant

Copyright © 2024 Kowal Law Group
menuchevron-down linkedin facebook pinterest youtube rss twitter instagram facebook-blank rss-blank linkedin-blank pinterest youtube twitter instagram