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Citation to Unpublished Cases: A Brief Comparison of Federal And California Practices [Part 3 of 5]

November 29, 2018 Tyler Atkinson

Introduction

Attorneys who appear in both state and federal courts must be familiar with the differences between the two systems.  While some rules have harmonized over time,[1] other procedures are entirely distinct.  As a matter of competence, lawyers who practice in state and federal courts should stay familiar with these differences.  As a matter of strategy, when a party has the option to litigate in either forum, the differences may present a tactical edge.

This article, comparing the rules for citing unpublished authorities, is one of a five-part series of articles highlighting particular differences in California versus federal civil procedure.  Other articles in this series examine differences in punitive damages, the jury system, evidentiary privileges, and class actions.

 

Citing Unpublished Cases in California State Court

Although technology has made it easier than ever to locate a court opinion, California’s rules prohibiting citation to unpublished authorities have not kept up.[2]  In California state courts, unpublished opinions, with few exceptions, may not be cited.[3]  This includes trial court opinions, which are by their nature not “published,” and have no precedential value.[4]

The California standards for publication, and changes in publication status, are generally set out in California Rules of Court, rule 8.1105.[5]  These standards include a notable recent change.  Before 2016, a grant of review of an appellate opinion automatically depublished the opinion – creating a minefield when looking to newly issued cases.  Now, a published appellate opinion can only be depublished if the Supreme Court affirmatively depublishes it, or if the court rendering the opinion grants a rehearing.[6]

Citing Unpublished Cases in Federal Court

In 2006, because federal courts “differed dramatically with respect to the restrictions that they . . . placed on the citation of unpublished opinions[,]” the Rules Advisory Committee for the Federal Rules of Appellate Procedure (“FRAP”) proposed that such restrictions be eliminated.[7]  The FRAP, adopted by the Ninth Circuit, prohibit district courts from limiting citations of federal opinions or orders issued after January 1, 2007.[8]

The local rules of the Central, Eastern, and Southern Districts of California do not forbid citation of unpublished cases.  The Northern District of California prohibits citation of uncertified opinions.[9]  This Northern District of California rule must be read in concert with the controlling circuit rule noted above.

Therefore, a federal opinion or order, published or unpublished, issued since 2007 may be cited in any federal court in California.  In the Northern District of California, unpublished federal opinions predating 2007 may be used only in limited circumstances set forth in the local rules.  The Northern District of California also does not allow citation to non-federal opinions or orders that would not be citable in their home jurisdiction.  Therefore, California opinions that are not citable in California state court are also not citable in the Northern District of California.

California has no rule prohibiting the citation of unpublished out-of-state or unpublished federal opinions.  However, at least one state Court of Appeal has expressed skepticism over citations to unpublished out-of-state opinions.[10]

Conclusion

A lawyer must exercise care when citing authority in either federal or state court.  In California state court, trial court opinions and unpublished California appellate opinions should not be cited.  In federal court, while the rules are more relaxed, the question of whether an opinion may be cited may turn on when and where the opinion was issued.

 

 

 

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.