Although attorneys commonly believe that unpublished opinions cannot be cited, the judicial notice statute allows citations to the records of any court of this state. In this conflict, the judicial notice statute should take precedence, and courts should allow unpublished opinions to be cited as persuasive authority.
A. The Non-Citation Rule Bars Citation of Unpublished Opinions
Many attorneys and judges instinctively believe that unpublished opinions of the California Court of Appeal cannot be cited in any court (subject to very narrow exceptions, i.e. res judicata or attorney discipline). The generally cited authority for this proposition is California Rules of Court, Rule 8.1115(a), which states that:
[A]n opinion of a California Court of Appeal or superior court appellate division that is not certified for publication or ordered published must not be cited or relied on by a court or a party in any other action.
Although there may be reasons for unpublished opinions to not be considered binding authority, this rule seemingly goes ever further. Specifically, it prohibits unpublished opinions from being “cited or relied on” in any way, meaning they are not to be considered persuasive authority. In other words, cases from other states may be cited as persuasive, a law review article may be cited as persuasive, or an op-ed from the New York Times may be cited as persuasive. However, an opinion from the California Court of Appeal that is directly on point to the facts in a particular case cannot be cited as persuasive authority by a party or a court.
Interestingly, when applied to federal law, California Courts have held just the opposite: that “unpublished federal decisions can be cited as persuasive but not precedential authority.” Dimon v. County of Los Angeles (2008) 166 Cal. App. 4th 1276, 1283 (citing Pacific Shore Funding v. Lozo (2006) 138 Cal.App.4th 1342, 1352, fn. 6).
One 2012 opinion recognized, but seemingly ignored, the no-citation rule, stating “[w]e are aware of the legal rule barring citation to or reliance upon a depublished California case. (Cal. Rules of Court, rule 8.1115.) We nonetheless mention this recently depublished decision in order to accurately describe the current state of law with respect to the scope of [Corporations Code] section 2010.” Robinson v. SSW, Inc. (2012) 209 Cal. App. 4th 588, 596, n. 7, review granted, depublished by Robinson v. Ssw, Inc. (Cal., Dec. 12, 2012) S206347, 2012 Cal. LEXIS 11722.
B. Judicial Notice Allows Citation of Unpublished Opinions
While the non-citation rule prohibits citation to any unpublished opinion, judicial notice pursuant to California Evidence Code section 452(d)(1) may be made as to the “[r]ecords of any court of this state . . . .” On its face, this statute allows judicial notice of any opinion of the Court of Appeal as a record of a court of this state.
One California Court of Appeal recognized the conflict with Rule 8.1115(a), stating that “[a]lthough [a] Court of Appeal opinion . . . is not published, we may take judicial notice thereof as a court record pursuant to Evidence Code section 452, subdivision (d)(1).” Gilbert v. Master Washer & Stamping Co. (2001) 87 Cal. App. 4th 212, 218, n. 14 (taking judicial notice of an unpublished opinion of the California Court of Appeal to aid in the analysis of a subsequent appeal therefrom).
While there appears to be no appellate case law discussing the conflict between the no-citation rule and the judicial notice statute, it has received some attention.
C. The Conflict Between the No-Citation Rule and Judicial Notice
In deciding the conflict between Rules of Court, Rule 8.1115(a) and Evidence Code section 452(d)(1), the California Constitution suggests that the statutory evidence code must take precedence.
Specifically, California Constitution Article VI, § 6(d), which provides the authority of the Judicial Council to promulgate the Rules of Court, states that the “council shall . . . adopt rules for court administration, practice and procedure, and perform other functions prescribed by statute. The rules adopted shall not be inconsistent with statute.” (Emphasis added.)
In 2011, one Hastings College of Law student dedicated their law review article to unpublished opinions. Applying California Constitution Article VI, § 6(d), the article concludes that “[i]n this battle between the no-citation rule and judicial notice, the statute overrides the rule. Inconsistency between the no-citation rule and the judicial notice statute is fatal to the former.” Rafi Moghadam, Judge Nullification: A Perception of Unpublished Opinions, 62 Hastings L.J. 1397, 1400 (2011).
Thus, the Rules of Court, including the no-citation rule, may not be inconsistent with the Evidence Code, a statutory scheme. As such, judicial notice should be granted as to unpublished opinions.
With the rise of online legal research (West, Lexis, etc.), attorneys and paralegals have access to voluminous case law, including unpublished opinions. The Judicial Council reports (at p. 51) that only 9% of majority opinions were published in 2011. It should come as no surprise that researchers may find that there are more unpublished than published opinions interpreting a particular area of law. Prohibiting the citation to unpublished opinions as persuasive authority under the no-citation rule is contrary to the conflicting judicial notice statute. Parties should be free to cite unpublished opinions as persuasive, while not binding upon the court. The opposition is free to distinguish these persuasive authorities or argue that they were wrongly decided. Reference to unpublished opinions will aid in the development of the law.
Sample Request for Judicial Notice of Unpublished Opinion
TO THE COURT, TO ALL PARTIES AND TO THEIR ATTORNEYS:
PLEASE TAKE NOTICE that ____[moving party] requests that the Court take judicial notice of the unpublished case of ______[case name and citation], a true and correct copy of which is attached hereto as Exhibit A.
This opinion is properly the subject of judicial notice pursuant to Evidence Code 452(d)(1) as a “[r]ecord of  any court of this state.”
Although it is commonly believed that the no-citation rule in Rules of Court, Rule 8.1115(a) prohibits the citation to an unpublished opinion, this rule is inconsistent with the judicial notice statute allowing citation to the “[r]ecords of  any court of this state . . . .” In this conflict, California Constitution Article VI, § 6(d) provides that “[t]he rules [of court] adopted shall not be inconsistent with statute.” A recently published law review article concludes that “[i]n this battle between the no-citation rule and judicial notice [under Evidence Code 452(d)(1)], the statute overrides the rule. Inconsistency between the no-citation rule and the judicial notice statute is fatal to the former.” Rafi Moghadam, Judge Nullification: A Perception of Unpublished Opinions, 62 Hastings L.J. 1397, 1400 (2011).
One court noted that “[a]lthough the Court of Appeal opinion in [another case] is not published, we may take judicial notice thereof as a court record pursuant to Evidence Code section 452, subdivision (d)(1).” Gilbert v. Master Washer & Stamping Co. (2001) 87 Cal.App.4th 212, 218, n. 14 (taking judicial notice of an unpublished opinion of the California Court of Appeal to aid in the analysis of a subsequent appeal therefrom).
As such, judicial notice is sought for the limited purpose of any persuasive value of the analysis therein. The judicially noticed case is not binding upon this Court.
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