The California Supreme Court has the authority to determine which appellate opinions are published as it “deems appropriate” and “may deem expedient.” Cal. Const., art. VI, §14; Cal. Govt. Code §68902. ^[1] The Supreme Court’s constitutional and legislative authority is consistent with its responsibility to supervise lower courts and oversee the development of decisional law. Schmier v. Supreme Court of California (2000) 78 Cal. App. 4th 703, 708. The Supreme Court’s exercise of its publication powers, however, has led to a mass of unpublished opinions of limited usefulness.

From 1909 to 1963, all Supreme Court and Court of Appeal decisions were officially reported. In 1963, citing concerns for judicial efficiency and the system of precedent, the Supreme Court adopted rules within the California Rules of Court (“CRC”) to govern the publication of appellate opinions. ^[2] Under the current publication rules, all opinions of the Supreme Court are published, but it is up to the lower court that renders an appellate opinion to decide whether or not to certify it for publication based on the standards set forth in CRC, rule 8.1105 (c).^[3] Only 9% of the Court of Appeal’s total majority opinions statewide are now published in the official reports. ^[4] Conversely, 91% are unpublished opinions.

An unpublished opinion affects the rights of the parties in a given case but has no precedential effect. Separate appellate panels may reach conflicting results interpreting the same law, but, if the opinions are not published, the odds of the Supreme Court ever resolving the conflict are low. Because unpublished opinions are not precedent and under the publication standards of CRC rule 8.1105 (c) should not establish new rules of law, involve a legal issue of continuing public interest, or criticize existing law, they rarely satisfy the primary ground for Supreme Court review, i.e. “to secure uniformity of decision or to settle an important question of law.” CRC, rule 8.500(b) (1). ^[5]

Every appellate court is aware of unpublished opinions and reads them, just as we do. However, subject to limited exceptions, courts and parties in other actions are prohibited from citing or relying on a California unpublished opinion as legal authority—even when it includes relevant analysis. ^[6] CRC, rule 8.1115 (a). ^[7]

Lawyers risk sanctions if they violate the no-citation rule. People v. Williams (2009) 176 Cal.App.4th 1521, 1529. ^[8] Unpublished opinions of federal courts and other state courts are not covered by the rule and may be cited as persuasive authority. Pacific Shore Funding v. Lozo (2006) 138 Cal.App.4th 1342, 1352, fn. 6. Paradoxically, a California state appellate court can cite a federal or out-of-state unpublished opinion as persuasive authority on an issue of California law but cannot cite a prior unpublished opinion of its own that decided the same legal issue.

Although we are constrained from citing or relying on unpublished opinions, “California’s rules do not prohibit an attorney or litigant from advocating the ideas, concepts and wording of an unpublished opinion in any manner, including in argument to a court. The rules only prohibit attorneys and litigants from citing to unpublished opinions as legal authority or as precedent.” Lifschitz v. George, No. C 10-2107 SI (N.D. Cal. Jan. 28, 2011). Thus, we still can, and in an appropriate case should, fashion our own legal arguments based on the language and reasoning of an unpublished opinion.

[1] The term “published” is anachronistic in the sense that appellate opinions today are publicly accessible on electronic databases regardless of whether or not they are included in the official reports.

[2] State Bar of California, Committee on Legal Publications and Decisions Report, 37 Cal. St. B.J. 371, 372 (1962). The rules adopted by the Supreme Court became effective on January 1, 1964.

[3] The publication rules are now found in Title 8, Division 5 of the California Rules of Court.

[4] https://www.courts.ca.gov/documents/2021-Court-Statistics-Report.pdf, Statewide the reported percentages are 5% for criminal appeals, 18% for civil appeals, 4% for juvenile appeals, and 25% for original proceedings.

[5] An unpublished opinion thus almost guarantees that an appellate court’s decision will avoid judicial scrutiny.

[6] In Save Lafayette Trees v. City of Lafayette (2019) 32 Cal.App.5th 148, 161, fn. 11, the Court of Appeal cited to an unpublished opinion, noting that it was adopting its reasoning, but disclaimed reliance on it as legal authority. This practice arguably violates the no-citation rule. Had the Court not cited to the unpublished opinion or explained that it was adopting its reasoning, and instead had simply applied the reasoning, there would be no doubt that it was free to do so.

[7] The no-citation rule was adopted by the Supreme Court in 1974.

[8] See Alicia T. v. County of Los Angeles (1990) 222 Cal.App.3d 869 ($750 in sanctions imposed on counsel for multiple rule violations). Recently, in an unpublished opinion, the Court of Appeal imposed sanctions of $1,100 on appellant’s counsel payable to the clerk of the court for unreasonably violating the no-citation rule of CRC, rule 8.1115(a) and sent its opinion to the State Bar. Westreich v. Higa (May 5, 2020), No. B293726 ___Cal.App.5th___ [2020 Cal. App. Unpub. LEXIS 2785].)