Kowal Law Group Logo
lightbulbs

How to Cite Unpublished Opinions

Tim Kowal     January 20, 2021

Most attorneys know that citing unpublished decisions in California courts is prohibited under California Rules of Court rule 8.1115(a). The rule is emphatic: an unpublished or depublished opinion "must not be cited or relied on by a court or a party in any other action."

There are only two exceptions in the statute, and they are narrow: one is where the decision is binding under the legal doctrines of law of the case or res judicata or estoppel, and the other is when the opinion is relevant to a criminal disciplinary action.

But in practice, courts sometimes read the rule rather more forgivingly than it is written. Maybe courts are as frustrated as we attorneys are when we find just the right case, only to note, alas, it is unpublished.

Here are a few cases I have come across where courts of appeal have cited and even relied on unpublished decisions, Rule 8.1115 notwithstanding:

  1. Unpublished Federal Decisions May Be Cited in California Courts: Rule 8.1115 applies only to California decisions, not to federal decisions. “[U]npublished federal decisions can be cited as persuasive but not precedential authority.” (Dimon v. County of Los Angeles (2008) 166 Cal.App.4th 1276, 1283 (citing Pacific Shore Funding v. Lozo (2006) 138 Cal.App.4th 1342, 1352, fn. 6).)
  2. Courts Have Taken Judicial Notice of Unpublished Opinions: Considering whether a corporation could recover its attorney fees for its in-house counsel, the Second District in Gilbert v. Master Washer & Stamping Co. (2001) 87 Cal. App. 4th 212, 218, n. 14, reviewed a Supreme Court decision holding an in pro per attorney may not recover his own fees, and found it needed more context, which context apparently could be found only in the Court of Appeal opinion. But that opinion was unpublished. No problem: “Although the Court of Appeal opinion . . . is not published, we may take judicial notice thereof as a court record pursuant to Evidence Code section 452, subdivision (d)(1).”
  3. Courts Have Considered Unpublished Opinions to Describe the Current State of the Law: In an asbestos wrongful death case relating to a product manufactured in Nebraska, the First District had to answer whether Nebraska's five-year statute of limitation for dissolved companies applied, or whether California's survival statute applied. In tracing through the applicable cases, the First District covered one of its own unpublished decisions, giving a fairly lengthy description of it, and then afterward in a footnote justified it this way: “We are aware of the legal rule barring citation to or reliance upon a depublished California case. (Cal. Rules of Court, rule 8.1115.) We nonetheless mention this recently depublished decision in order to accurately describe the current state of law with respect to the scope of [Corporations Code] section 2010.” (Robinson v. SSW, Inc. (2012) 209 Cal.App.4th 588, 596, n. 7, review granted, depublished by Robinson v. SSW, Inc. (Cal., Dec. 12, 2012) S206347, 2012 Cal. LEXIS 11722.)
  • Courts Cite Unpublished Opinions to Identify Important Questions of Law: One of the express grounds to obtain Supreme Court review is that review is necessary "to secure uniformity of decision or to settle an important question of law." (Cal. Rules of Court, rule 8.500(b)(1).) To this end, citing unpublished decisions is acceptable. As David Ettinger noted in December 2019, "In his separate statement in People v. Valencia, Justice Liu cited nine unpublished opinions involving the same police practice that was challenged by the defendant in the Valencia case, and he said those cases “are just the tip of the iceberg.” Citing the unpublished opinions is a reasonable way to show Valencia raises “an important question of law,” which is an express ground for Supreme Court review. Nonetheless, rule 8.1115’s terms seem to prohibit those citations." (Emphasis added.)
  • Courts, and Counsel, Have Cited Unpublished Opinions to Illustrate the Effects of Certain Laws: In a December 2020 Supreme Court opinion in People v. Gentile (Cal. Dec. 17, 2020) S256698, holding SB 1437 (2017-18 Reg. Sess.) bars convictions of second-degree murder under the natural-and-probable-consequences theory, the District Attorney of San Diego submitted an amicus brief citing two unpublished opinions. Those opinions illustrated two scenarios where the Supreme Court's holding would allow defendants who participated in deadly crimes to "get away with murder." The DA apparently did not cite these cases as legal authority, but merely for their relevance as news stories supportive of a policy argument. The plain language of Rule 8.1115 does not allow this. The Court ultimately rejected the DA's argument, but the Court did not mention Rule 8.1115 or otherwise suggest the citations were improper.
  • Courts Have Cited Unpublished Opinions When Adopting Their Reasoning: In another First District decision in Save Lafayette Trees v. City of Lafayette (2019) 32 Cal.App.5th 148, 161, fn. 11 (noted in Mr. Ettinger's post linked above), the court – presumably in its own research – came across a Second District decision it rather fancied. While the parties could not cite to or argue the unpublished case, the First District did not so restrain itself: “While we do not rely on the unpublished opinion as authority, we adopt as our own its reasoning.” A lengthy quotation from the unpublished case followed. (I note this might have presented grounds for rehearing. Pursuant to Government Code section 68081, where an appellate decision is “based upon an issue which was not proposed or briefed by any party to the proceeding, the court shall afford the parties an opportunity to present their views on the matter through supplemental briefing. If the court fails to afford that opportunity, a rehearing shall be ordered upon timely petition of any party.” Given the parties were barred any opportunity to discuss the unpublished case, it arguably was an "issue which was not proposed or briefed by any party," thus requiring rehearing.)
  • The Court Might Look at Unpublished Opinions Discussed in Meet-and-Confer Correspondence: If unpublished authorities explain why an appeal is frivolous, and a motion for sanctions for filing a frivolous appeal is merited, why not send those authorities to opposing counsel? You may then attach that correspondence to your motion? Who knows, the court just might take a look at those authorities.

Again, all of these exceptions could arguably violate the express language of Rule 8.1115(a), so proceed with extreme caution. But if you have a good unpublished opinion, these cases may suggest some ways the court might look at it.

Here is the video clip from episode 11 of Tim's podcast, the California Appellate Law Podcast, discussing this issue.

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.
Get “Not To Be Published,” a weekly digest of these articles, delivered directly to your inbox!
Subscribe

"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

"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

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

— H.L. Mencken

"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

“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

"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.)

"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

"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

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

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