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Changes to the California Supreme Court Publication Rules

Tim Kowal     April 28, 2021

Attorneys are aware how important it is to confirm the precedential value of a case. One factor that can greatly disturb the citability of an appellate decision is whether the California Supreme Court has decided to review it. Practitioners may be aware that, until a 2016 change to the rules, when the Supreme Court granted review of a published appellate decision it became non-citable instantly. So if you had found the perfect decision on all fours with your case, you would pray the Supreme Court would leave your smoking-gun case well alone.

That changed five years ago when California Rules of Court rule 8.1115 was amended. With that amendment, the mere granting of review of your published smoking-gun case did not itself depublish it. It was a welcome change.

This week, however, the Supreme Court amended rule 8.1115. Fortunately, the amendment is arguably rather sensible. But it is not the kind of amendment that actually amends the rule itself. The Supreme Court does not want to confuse things. Instead, the amendment just requires practitioners to follow a new administrative order. And the Advisory Committee Comment to the rule. And maybe a few cases.

Again, the Supreme Court does not want this to be confusing.

As David Ettinger reports, under the new procedure, whenever the Supreme Court grants review, the order granting review "incorporates" the Court's April 21, 2021 Administrative Order. That order to be incorporated in all future orders granting review of published Court of Appeal decisions provides that the decision may still be cited for persuasive value and also to "establish[] the existence of a conflict." Based on that conflict, trial courts may "exercise discretion under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456, to choose between sides of any such conflict."

The change appears to be this. Previously, when your recent "smoking gun" appellate decision disagreed with a prior appellate decision, and the Supreme Court granted review of your recent smoking-gun decision, a trial court was bound under the text of rule 8.1115 and Auto Equity Sales to follow the prior decision. That is because, while your recent smoking-gun decision was not automatically depublished, its value was diminished by the grant of review to "potentially persuasive only" (rule 8.1115(e)(1)), while the prior decision still enjoyed absolutely binding effect under Auto Equity Sales. Apparently the Court felt that, given it was just as likely to overturn the prior decision as your recent smoking-gun decision, there was no reason the rule should favor one over the other while review was pending.

Shorter: While Supreme Court review is pending, you can still cite your smoking gun case, and the trial court may follow it, even if another appellate court disagrees with it. 

But that is not quite all. To learn about a further amendment to the rule, we need to look to the Comments. The new Comment confirms that, when your recent smoking-gun case is taken up for review, trial courts are not required to follow it "on the issue in conflict." Which makes sense. But then comes something rather more surprising: "Nor does such a Court of Appeal opinion ... have any precedential effect regarding any aspect or holding of the Court of Appeal opinion outside the part(s) or holding(s) in conflict."

Meaning, if your smoking-gun case was taken up for review on an issue completely separate from your smoking-gun issue, the case loses precedential effect on your smoking-gun issue, too, as collateral damage.

Mr. Ettinger also notes the changes are not retroactive. So for grants of review before April 21, 2021, you will have to look to the old rule 8.1115. Which is to say, to the same language of 8.1115, which the Supreme Court has not changed in any event. Just forget everything else we just said.

Again, the Supreme Court does not want any of this to be confusing.

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at [email protected] or (714) 641-1232.

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.
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