Revisiting California’s No-Citation Rule

By David S. Ettinger and Dean A. Bochner

David S. Ettinger is Of Counsel at Horvitz & Levy LLP David is the primary writer for the firm’s At The Lectern blog about the California Supreme Court.

Dean A. Bochner is a partner at Horvitz & Levy LLP, the nations largest law firm specializing in appellate litigation. Dean currently serves as vice-chair of the CLA Litigation Section’s Committee on Appellate Courts.

In 1974, the California Supreme Court adopted a rule addressing the limited circumstances in which unpublished appellate opinions may be cited in California courts. Now contained in rule 8.1115(a) of the California Rules of Court, the rule provides that an unpublished opinion of a California Court of Appeal or superior court appellate division "must not be cited or relied on by a court or a party in any other action." Rule 8.1115(b) creates two exceptions to that rule: an unpublished opinion may be cited or relied on when (1) "the opinion is relevant under the doctrines of law of the case, res judicata, or collateral estoppel;" or (2) "the opinion 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." This article examines whether and to what extent rule 8.1115(a) should be revised to reflect the apparent spirit of the rule and current practice among courts and attorneys in California.