Kevin Frankel, left, and Christian Hochhausler, right, of McGuireWoods. Courtesy photos. The History and Continued Viability of California's Unpublished Cases Rule
"Surely a court would be better off with the benefit of a unique, on-point, but unpublished case than having to decide an issue in a vacuum," write Kevin Frankel and Christian Hochhausler of McGuireWoods.
May 14, 2024 at 04:30 PM
5 minute read
In California state court, under Cal. Rules of Court, Rule 8.1115(a), litigants are generally not permitted to cite unpublished California appellate or superior court opinions. Limited exceptions are available "when the opinion is relevant under the doctrines of law of the case, res judicata, or collateral estoppel." Cal. Rules of Court, Rule 8.1115(a). Courts will also allow a party to cite an unpublished decision "if they are not 'relied on' as supporting authority," such as a citation to highlight a split of authority within the appellate courts. Cal. Prac. Guide Family L. Ch. 11-G (Rutter 2023). This rule means that the overwhelming majority of appellate caselaw is non-precedential and non-citable. As an example, from 2021 to 2022, only 10% of appellate court cases were published. Judicial Counsel of California, "2023 Court Statistics Report: Statewide Caseload Trends," 46 (2023).
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