Revisiting California's No-citation Rule

• Jurisdiction: California,United States
• Author: By David S. Ettinger and Dean A. Bochner
• Citation: Vol. 34 No. 2
• Publication year: 2021

Revisiting California's No-Citation Rule

By David S. Ettinger and Dean A. Bochner

David S. Ettinger is Of Counsel at Horvitz & Levy LLP David is the primary writer for the firm's At The Lectern blog about the California Supreme Court.

Dean A. Bochner is a partner at Horvitz & Levy LLP, the nations largest law firm specializing in appellate litigation. Dean currently serves as vice-chair of the CLA Litigation Section's Committee on Appellate Courts.

In 1974, the California Supreme Court adopted a rule addressing the limited circumstances in which unpublished appellate opinions may be cited in California courts. Now contained in rule 8.1115(a) of the California Rules of Court, the rule provides that an unpublished opinion of a California Court of Appeal or superior court appellate division "must not be cited or relied on by a court or a party in any other action." Rule 8.1115(b) creates two exceptions to that rule: an unpublished opinion may be cited or relied on when (1) "the opinion is relevant under the doctrines of law of the case, res judicata, or collateral estoppel;" or (2) "the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." This article examines whether and to what extent rule 8.1115(a) should be revised to reflect the apparent spirit of the rule and current practice among courts and attorneys in California.

One of the primary rationales underlying no-citation rules like rule 8.1115 is to prevent litigants and courts from citing unpublished opinions as precedent on the merits of a legal issue. (See Schmier v. Supreme Court (2000) 78 Cal.App.4th 703, 706 ["An opinion that is not certified for publication cannot subsequently be cited as legal authority or precedent" (italics added)]; see also Los Angeles Police Protective League v. City of Los Angeles (2002) 102 Cal.App.4th 85, 91 [noting that an "unpublished opinion . . . may not be cited as precedent" (italics added)].) As one court explained, writing a precedential opinion "is an exacting and extremely time-consuming task" and "few, if any, appellate courts have the resources to write precedential opinions in every case that comes before them." (Hart v. Massanari (9th Cir. 2001) 266 F.3d 1155, 1177.) Therefore, appellate courts "select a manageable number of cases in which to publish precedential opinions" and decide the rest in unpublished opinions, which are not citable as precedent. (Ibid.)

But rule 8.1115 does not merely bar the citation of unpublished opinions as precedent. The rule goes much further: it prohibits courts and attorneys from citing unpublished opinions for any purpose other than the two

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narrow exceptions set forth in rule 8.1115(b). Yet despite the text of the rule, courts and attorneys regularly cite unpublished opinions for purposes other than those expressly authorized by rule 8.1115(b). This practice is often consistent with the apparent spirit of the rule — i.e., to prevent citation of unpublished opinions as binding or persuasive precedent — but not the letter of the rule.

For example, attorneys sometimes cite unpublished opinions in petitions for review, not for their precedential value but to establish the most common grounds for seeking review in the California Supreme Court—i.e., to demonstrate the existence of a conflict among Court of Appeal decisions or an important or recurring legal issue that requires Supreme Court...