Depublication of California Court of Appeal Decisions: Rules for Publishing and Citing to Appellate Cases

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In California, the rules regarding publication of appellate court opinions are quite complex.  This guide is intended to provide the researcher with a general understanding of the applicable rules as well as information on how to determine whether a particular appellate case can be cited as legal authority.

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 officially published (Rule 8.1115, California Rules of Court).† There are two exceptions to this rule. An unpublished (or “depublished”) decision can be cited or relied upon only if: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)).

When an opinion is depublished (also called “superseded”), it may still appear in the official advance sheets but is omitted from the official bound reports.

†All opinions of the California Supreme Court are officially published (CRC Rule 8.1105). However, only about 15 percent of decisions issued by the California Courts of Appeal are published. Daniel W. Martin, Henke’s California Law Guide 182 (8th ed. 2006).

1. The California 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) If the Supreme Court grants review or the rendering court grants a rehearing, the Court of Appeal’s opinion is automatically superseded and no longer considered published. However, the Supreme Court may decide at any time after granting review to order publication of the opinion, either in whole or in part (CRC Rule 8.1105(e).
   
   
2. “Partial publication” occurs when the rendering court or the Supreme Court certifies some, but not all, parts of a Court of Appeal opinion for publication. Unpublished portions of an opinion cannot be cited as authority, even if other parts of it are published (CRC Rule 8.1110).
   
   
3. The Supreme Court can, on its own motion or in response to a request by “any person,” order that an opinion previously certified for publication not be published. If this occurs, the Court must send notice to the rendering court, all parties, and the person who requested depublication (CRC Rule 8.1125). Similarly, any person may request that an unpublished opinion be ordered published (CRC Rule 8.1120). A decision to depublish a Court of Appeal opinion does not mean the Supreme Court has overruled or disagreed with the Court of Appeal’s ruling. It simply means the depublished opinion cannot be cited as authority or precedent in other matters.
   
   
4. Depublication occurs only in the official reports for the state. Superseded and decertified cases remain in both the advance sheets and bound volumes of West’s California Reporter and Pacific Reporter and on Westlaw and LexisNexis. Before citing to a California Court of Appeal case appearing in any unofficial reporter or on Westlaw or LexisNexis, you must check to make sure that you understand its official status.