Depublication of California Court of Appeal Opinions

In California, the rules regarding publication of California state appellate court opinions are quite complex.  These rules are important however because generally, one can only cite to cases that are "published." This guide is intended to provide the researcher with a general understanding of the applicable California court rules as well as information on how to determine whether a particular California appellate case can be cited as legal authority.

"All opinions of the Supreme Court are published in the Official Reports [California Reports]" (CRC Rule 8.1105(a)).

Generally, "an opinion of a Court of Appeal or a superior court appellate division is published in the Official Reports [California Appellate Reports] if a majority of the rendering court certifies the opinion for publication before the decision is final in that court" (CRC Rule 8.1105(b)).* If the rendering court however grants a rehearing in that case, the court's original opinion "is no longer considered published" (CRC Rule 8.1105(e)(1)(A)). “Partial publication” occurs when the rendering court certifies some, but not all, parts of the appellate opinion for publication (CRC Rule 8.1110(a)).

"The Supreme Court may order that an opinion certified for publication is not to be published" (often referred to as "depublication") (CRC Rule 8.1105(e)(2)). The Court can do so on their own motion or at the request of "any person" (CRC Rule 8.1125(a), (c)). In the latter case, "the rendering court or any person may submit a response supporting or opposing the request" (CRC Rule 8.1125(b)).

The Supreme Court may also order that an opinion not certified for publication be published CRC Rule 8.1105(e)(2)). Additionally, "any person" may request that an appellate court opinion be published (CRC Rule 8.1120(a)(1)). "The request must be made by a letter to the court that rendered the opinion" (CRC Rule 8.1120(a)(2)). If that court "does not or cannot grant the request before the decision is final in that court, . . . [t]he Supreme Court may order the opinion published or deny the request" (CRC Rule 8.1120(b), (c)).

A decision by the Supreme Court to publish or depublish an appellate opinion does not mean the Supreme Court agrees or disagrees with "the correctness of the result of the decision or of any law stated in the opinion" (CRC Rules 8.1120(d), 8.1125(d)).

The Supreme Court may, upon petition for review or on its own motion, order review of a Court of Appeal decision, either in whole or as to specific issues (CRC Rules 8.512, 8.516). Prior to July 1, 2016, if the Supreme Court "granted review" of a Court of Appeal decision, the Court of Appeal opinion was considered superseded/depublished by the grant of review. In 2016, the Supreme Court changed its rule (effective July 1, 2016) to allow Court of Appeal opinions to remain published after a grant of review by the Supreme Court (CRC Rule 8.1115(e)). Under this amended rule, the status of a "review granted" Court of Appeal opinion depends on what further action(s) have been taken by the Supreme Court during or after the review process, as laid out in the following provisions: 

• Until the Supreme Court has issued a decision in the case, the Court of Appeal opinion "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" (CRC Rule 8.1115(e)(1)).
• After the Supreme Court makes a decision, the Court of Appeal opinion "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" (CRC Rule 8.1115(e)(2)).
• "At any time after granting review or after decision on review, the Supreme Court may order that all or part of a [review granted opinion] is not citable or has a binding or precedential effect different from that specified [in the rule]" (CRC Rule 8.1115(e)(3)).

While depublished appellate opinions will not appear in the bound volumes of the official California Appellate Reports, they will appear in the following sources/databases: 1) the California Appellate Reports advance pamphlets (softbound booklets containing the newest opinions); 2) both the bound volumes and advance pamphlets of West’s California Reporter; and 3) online databases such as Westlaw and LexisNexis.                      

*Only a small percentage of California Court of Appeal opinions are published. In fiscal year 2021-22 for example, only 10% of Court of Appeal majority opinions were published. Judicial Council of California, 2023 Court Statistics Report: Statewide Caseload Trends, 2012-13 Through 2021-22, at 88 (2023).                                                                                                                                                                                     

In general, an opinion of a California Court of Appeal or the appellate division of the Superior Court can be cited as authority only if it has been certified for publication or ordered published (Rule 8.1115(a), California Rules of Court). There are two exceptions to this rule. An unpublished opinion can be cited or relied upon only if:

• it is relevant under the doctrines of law of the case, res judicata, or collateral estoppel; or
• it 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 (CRC Rule 8.1115(b)).

"Depublished" opinions are considered unpublished and therefore, they also cannot be cited unless one of the above exceptions applies. Since cases "granted review" by the California Supreme Court prior to July 1, 2016 rendered the Court of Appeal opinions in those cases superseded/depublished (as noted in the box above), those opinions are no longer citable. With respect to cases in which a grant of review has occurred on or after July 1, 2016 however, one can still cite to the Court of Appeal opinions in these cases (Rule 8.1115(e), California Rules of Court).

Finally, since published parts of a partially published opinion are treated like a published opinion and unpublished parts are treated like an unpublished opinion (CRC Rule 8.1110(c)), only the published parts of the opinion can be cited.