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To Cite or Not to Cite? That Is the Question

15 Every day in California, lawyers en-gaging in legal research come acrossthat perfect case that makes thatkey point only to realize that the case is unpublished. Hence the quandary: Shouldthe case be cited? Can it be cited?The quagmire of handling unpublishedcase law has thickened in our digital age,where nearly all written opinions can bereadily located electronically via Westlaw,Lexis, Google Scholar, and other increased access to unpublished deci-sions has made it more tempting to citethem, while at the same time giving rise toTo Cite or Not to Cite? That Is the QuestionCiting Unpublished Decisions inCalifornia State and Federal CourtsBy Benjamin G. Shatz and Emil PetrossianCalifornia LitigationVol.

18 that unpublished Ninth Circuit dispositions and orders are (a) not precedent (i.e., notbinding on district courts or other Ninth Circuit panels), except when relevant under

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Transcription of To Cite or Not to Cite? That Is the Question

1 15 Every day in California, lawyers en-gaging in legal research come acrossthat perfect case that makes thatkey point only to realize that the case is unpublished. Hence the quandary: Shouldthe case be cited? Can it be cited?The quagmire of handling unpublishedcase law has thickened in our digital age,where nearly all written opinions can bereadily located electronically via Westlaw,Lexis, Google Scholar, and other increased access to unpublished deci-sions has made it more tempting to citethem, while at the same time giving rise toTo Cite or Not to Cite? That Is the QuestionCiting Unpublished Decisions inCalifornia State and Federal CourtsBy Benjamin G. Shatz and Emil PetrossianCalifornia LitigationVol.

2 26 No 1 2013 Benjamin G. Shatz Emil Petrossian16much confusion regarding the propriety ofdoing complicate matters, California has uni-que practices regarding unpublished, partiallypublished, and even depublished appellateopinions; and federal practices governing thecitation of published and unpublished author-ity have a complicated history. Given thatprecedent is the lifeblood of legal argument,understanding how to deal with unpublishedauthority is essential knowledge for any litiga-tor. To help eliminate some of the confusionsurrounding unpublished decisions, this arti-cle aims to provide a roadmap for Californiapractitioners to determine whether a particu-lar decision may be cited in state and federalcourts in California.

3 Citations in California StateCourtsThe rules governing the citation of unpub-lished California state-court opinions in Cali-fornia state courts are relatively straightfor-ward. All decisions of the California SupremeCourt are automatically published in Califor-nia Reports, and thus may be cited. ( of Court, rule (a).)The problem of unpublished decisions aris-es with opinions from the Court of Appeal orsuperior court appellate division. Opinions ofthese courts are not published unless specifi-cally certified for publication. (Rule (b).) Fortunately, a simple rule of court existsto provide guidance: Any decision that is notcertified for publication (or not ordered pub-lished) must not be cited or relied on by acourt or a party in any other action.

4 ( (a).) So far, so rule has two express exceptions: Anunpublished opinion may be cited or relied onwhen the opinion is (1) relevant under thedoctrines of law of the case, res judicata, orcollateral estoppel ; or (2) relevant to acriminal or disciplinary action because itstates reasons for a decision affecting thesame defendant or respondent in anothersuch action. (Rule (b).) These excep-tions rarely come into next Question is, when is an appel-late opinion ripe for citation? The rule again isclear: As soon as the Court of Appeal issuesan opinion for publication, it may be cited.(Rule (d).) This is true even thoughthe decision is not technically final foranother 30 days after it is published ,the Court of Appeal has jurisdiction to changethe opinion sua sponteor via a petition forrehearing; and the possibility of review by theSupreme Court still exists (generally foranother 100 days).

5 The same is true for a previously unpub- !"#$%&'()#*&+,)&-*./&'()&0#$'(&1#*+,#'2& !3&'()4&/,3'2&1!5#-.*$#!63-)7)*!5&7#3'*# +'&+.,*'3&! )$)*!554&!8854&1!5#-.*$#!63&*,5)3&*)%!*7 #$%&'()&+#'!'#.$&.-,$8,95#3()7&.*&7)8,95 #3()71!5#-.*$#!&+!3)3:!17lished decision that has been ordered pub-lished: As soon as the decision is certified forpublication, it may be cited. (Rule (d).) Sometimes opinions are only partiallypublished, so be sure to cite only to the pub-lished portions of such decisions. ( )Understand, however, that citing recentlypublished cases within this 100-day windowcarries some risk. If the Court of Appealgrants a rehearing or if the Supreme Courtgrants review, then the opinion is immediate-ly superseded and no longer considered pub-lished, and thus is not citable.

6 (Rule (e)(1).) Moreover, the Supreme Court hasauthority to order that an unpublished opin-ion be published, and to decertify the publica-tion of a published opinion.(Rule (e)(2).) Accordingly, when contemplatingfreshly hatched decisions, extra diligence precise wording of Rule s re-strictions on the citation of unpublished opin-ions makes clear that the rule applies to opin-ions of the Court of Appeal and superiorcourt appellate division. Thus, California sRule does not extend to unpublished deci-sions from other jurisdictions, including fed-eral courts. Precedent consistently recog-nizes this basic limitation on the rule s scope.(See, , Haligowski v. Superior Court(2011) 200 983, 990, fn. 4[ Unpublished federal opinions are citablenotwithstanding [Rule ] which onlybars citation of unpublished Californiaopin-ions.)]

7 (emphasis in original)]; Harris s Bus. Daily, Inc.(2006) 138 28, 34 [ [E]ven unpublished federalopinions have persuasive value in this court,as they are not subject to [Rule ],which bars citation of unpublished Californiaopinions (citation omitted)]; Bowen Techs., Inc. (2004) 116 , 787, fn. 6; City of Hawthorne ex v. H&C Disposal Co.(2003) 1668, 1678, fn. 5.)Of course, unpublished decisions of federaldistrict and appellate courts even onissues of federal law are not binding onCalifornia state courts and constitute onlypersuasive authority. (See Ticconi v. BlueShield of Cal. (2008) 160 528,541, fn. 10.) Even courts viewing federal deci-sions on federal issues to be deserving of great weight, recognize that, in some cir-cumstances, California state courts mayignore federal precedent.

8 ( , Etcheverryv. Tri-Ag Serv., Inc. (2000) 22 316,320; People v. Williams(1997) 16 , 190; Pac. Shore Funding v. Lozo(2006) 138 1342, 1352 [lowerfederal court decisions on federal law are notbinding on state courts; such decisions arepersuasive and entitled to great weight; butwhere lower federal precedents are dividedor lacking, state courts must necessarilymake an independent determination of feder-al law].) Citations in California FederalCourtsTurning to the federal court system, opin-ions from the Supreme Court of the UnitedStates, are, of course, all published andalways citable. Similarly, with limited excep-tions noted below, district court decisions arealso citable whether they appear in a printpublication or not.

9 (Sorrels v. McKee(9thCir. 2002) 290 965, 971.)The complications arise at the intermedi-ate appellate level. Like California s Court ofAppeal, the federal circuit courts of appealsissue both published and unpublished deci-sions. Published decisions appear in West sFederal Reporter (starting with cases from1880), and somewhat ironically startingin 2001, unpublished decisions (from mostcircuits, including the ninth circuit ) typicallyappear in a case law reporter titled theFederal Appendix. Thus, it is perfectly accu-rate to say that unpublished cases are pub-lished in the Federal Appendix although anon-lawyer might perceive this as lawyer governing citation rule in the NinthCircuit is circuit Rule 36-3, which provides18that unpublished ninth circuit dispositionsand orders are (a) not precedent ( , notbinding on district courts or other NinthCircuit panels), except when relevant underthe doctrine of law of the case or rules ofclaim preclusion or issue preclusion; (b)citable to courts within the ninth circuit ifissued on or after January 1, 2007.

10 And (c)not citable if issued before January 1, 2007,except under limited circumstances ( ,when relevant under preclusion doctrines, orfor factual purposes, or to demonstrate theexistence of a conflict). (See Sorchini of Covina(9th Cir. 2001) 250 706,708 [the factual purposes exception per-mits the citation to an unpublished disposi-tion where the very existence of the priorcase is relevant as a factualmatter to thecase being briefed, which will almost alwaysinvolve one or both of the parties to thepending case the exception does not per-mit citation for the purpose of providing notice to a court of the existence or ab-sence of legal precedent (emphasisoriginal)].)Thus, the key date to remember is 2007:Unpublished ninth circuit decisions issued inor after 2007 are citable without restriction aspersuasive authority.


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