The Puzzle of Precedent in the California Court of Appeal

• Publication year: 2020
• Author: By Justice Michael J. Raphael

The Puzzle of Precedent in the California Court of Appeal

By Justice Michael J. Raphael

The Honorable Michael J. Raphael is a Justice on the Court of Appeal, Fourth Appellate District, Division Two.

The California Court of Appeal may be unique as an appellate court that is formally a single court establishing binding statewide precedent, but which nevertheless sits in regional divisions. That situation presents two puzzles that do not exist elsewhere in the same way.

Background

The Court of Appeal currently has nineteen divisions, with a total of 106 justices sitting in six regional districts, three of which are further divided into between three and eight divisions. (This article considers each of the three undivided regional districts as a single "division.")

Regional Courts of Appeal are not unusual — after all, that is the structure of our federal appellate court system. But the treatment of precedent in that system provides a useful contrast with California's intermediate court.

Each federal appellate court establishes binding precedent for its region only. When a three-judge appellate panel decides a case in, say, the United States Court of Appeals for the Ninth Circuit, the holding of the case creates fully binding precedent — what can be called "mandatory stare decisis" — for its region in two ways. First, as a matter of "horizontal" stare decisis, future three-judge panels in the Ninth Circuit must follow the earlier case; there is no discretion to do otherwise. (See, e.g., Lair v. Bullock (9th Cir. 2015) 798 F.3d 736, 745.) Second, as a matter of "vertical" stare decisis, every trial court in the multi-state region covered by the Ninth Circuit also is bound by the ruling. A federal appellate court in another region can disagree with the Ninth Circuit, and the two conflicting opinions can coexist, each applying mandatorily to appellate panels and trial courts in only its own region. The way in which circuit judges decide whether to reconsider their precedent is the relatively rare circumstance where their court hears a case "en banc" — that is, by the full court (or, in the Ninth Circuit, by an eleven-judge panel) instead of by a three-judge panel. (Three-judge panels in all appellate courts also can reconsider their precedent in the circumstance, different than this article's topic, when an intervening case from a higher court changes the law.)

In contrast, though its divisions are regionally situated, California Court of Appeal precedent is treated as emanating from a single Court of Appeal, as if it had no regional divisions. That is, any Court of Appeal published opinion establishes precedent for trial courts throughout the entire state, not merely the region in which the division is located. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455; Cuccia v. Superior Court (2007) 153 Cal.App.4th 347, 353-354.)

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This situation — regional appellate courts establishing statewide precedent — has allowed for the treatment of stare decisis in California to diverge from that in the federal appellate courts.

First, as to horizontal stare decisis, an opinion of one Court of Appeal panel is not binding on other panels of the court. Of course, in the Court of Appeal, a prior holding is treated as precedent; it typically is followed by subsequent panels. (Witkin, Cal. Procedure (5th ed.) Appeal, § 499, p. 560.) But it is not the case that the Court of Appeal inexorably must follow its precedents. There is no "en banc" procedure in the Court of Appeal, and any three-judge Court of Appeal panel has discretion to decide a matter of law differently from the way another panel has decided it. (Id. at § 498, pp. 558-559; see Cuccia, supra, 153 Cal. App.4th at pp. 353-354 ["[d]isagreements at the Court of Appeal level are common"].) Unlike in federal appellate courts, horizontal stare decisis in the Court of Appeal is not mandatory.

Importantly, this is the case even if a Court of Appeal panel is considering a case from its own division. (E.g., Eisen v. Tavangarian (2019) 36 Cal.App.5th 626, 637 ["We, however, are...