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Alan M.

Legal Byte: Citing to unpublished appellate opinions: may I?

The Law Office of Alan Goldberg

8/14/12

LEGAL BYTE

Greetings to my valued connections!

Another byte of law for your interest: Citing to unpublished appellate opinions: may I?

Anyone who practices litigation has found that perfect case to support his/her argument but the case is an unpublished opinion. The general rule is that unpublished opinions may not be cited to for support of analysis. Cal. Rules of Court 8.1115(b). However . . ..

What about using judicial notice? Judicial notice allows the court to accept a fact as true without out proof by the offering party. Judicial notice can be sought for facts so well known no proof is necessary, court records, county state and federal records, etc. Judicial notice has been and should be sufficient to allow use of an unpublished opinion as authority for a point of law or analysis. While there is constitutional tension between the no-citation rule and the court’s power to take judicial notice of court records, a court may take judicial notice of the existence of judicial opinions and court documents, along with the truth of the results reached in the documents such as orders, statements of decision, and judgments. It may not, however, take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact. People v. Harbolt (1997) 61 Cal.App.4th 123, 127 (review granted on a different issue) and cases cited therein. There is case law both ways on this point. Ironically, there is no issue about citing to unpublished opinions of out of state jurisdictions as persuasive authority. Lebrilla v. Farmers Grp., Inc. (2004) 119 Cal.App.4th 1070, 1078, Harris v. Investor’s Bus. Daily, Inc. (2006) 138 Cal.App.4th 28, 34 (federal unpublished opinions).

For a comprehensive analysis of the “unpublished opinions” issues, see: Note: Judge Nullification: A Perception of Unpublished Opinions by Rafi Moghadam, Hastings Law Journal Vol. 62, no. 5, pg. 1397. Thank you, Rafi.

© 2012 by THE LAW OFFICE OF ALAN GOLDBERG
By: Alan M. Goldberg
alangoldberglaw@gmail.com
Appeals; civil trials; family law; assist with trial preparation: 2nd chair, motions, research, witnesses, all aspects of trials; local counsel (California); referral fees paid.

Legal Byte is provided as a free service by The Law Office of Alan Goldberg as a way of providing interesting analysis on various areas of law. It is based on California law unless otherwise stated. West Publishing “key notes” can help you find similar law in your state or feel free to contact my firm for assistance. This service is provided as a way for me to be actively engaged with my valuable connections on a weekly basis. You may opt out of receiving this Legal Byte by sending me an email. If you like the service please let me know. Thank you.

Disclaimer: The author assumes no responsibility for the applicability of this analysis to
your case. Please always do your own check of this information before using. No attorney
client relationship is intended or established by this Legal Byte.

  • Comment (5)
  • August 14, 2012
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Comments

  • Joseph

    Joseph D.

    Partner at Angelo & Di Monda, LLP. Attorneys At Law

    So what you're saying, if I undrestand it correctly, is that despite a clear and specific prohibition on citing an unpublished opinion (unless it includes the parries to teh unpublished opinion), you can use general statute applying to Judicial Notice to get around it? So the General statute takes precedent over the Specific prohibition?
    You say there is case law on both sides of this issue. Please send it to me.

    I read People v. Harbolt and don't believe it applies the way I think you are suggesting because the unpublished opinnion was used against the same party. That's always been permitted. However, Harbolt doesn't stand for the proposition that an unpublished opinion may be used agasint a non-party to the opinion.

  • Alan M. G.

    Alan M.

    Alan M. G.

    The Law Office of Alan Goldberg

    * Dear Joseph:

    I respectfully disagree.

    A statute takes precedence over a rule. Hess v. Ford Motor Co. (2002) 27 Cal.4th 516, 41 P.3d 46, 57, Iverson v. Superior Court (1985) 167 Cal.App.3d 544, 547-548.

    The court in Harbolt and the cases cited therein are making a policy statement about the use of Judicial Notice to cite to unpublished opinions. You are correct that unpublished opinions can, by Rule 8.1115, be used for some purposes against the same party. Thus, the Harbolt court did not need to analyze judicial notice as a means of citing to an unpublished opinion, but, it did because the holding goes beyond the facts of that case. Further, other cases cited in Harbolt and cases cited in the Hastings Law Journal, which I cite, also favorably refer to Judicial Notice to get around the no-citation rule. Cases holding the opposite are also in the Journal article.

    Also, just as a side note, I had a conversation with a Judge in the Torrance court and he told me that he would accept a citation to an unpublished opinion if proper judicial notice was given.

    Thank you for your thoughtful comment.

    Alan M. Goldberg
    alangoldberglaw@gmail.com
    Appeals; civil trials; family law; assist with trial preparation: 2nd chair, motions, research, witnesses, all aspects of trials; local counsel (California); referral fees paid.

  • Joseph

    Joseph D.

    Partner at Angelo & Di Monda, LLP. Attorneys At Law

    Alan: I'd be interested in reading the Hastings law review article and trying your suggestion if I agree. What's the title?

  • Alan M. G.

    Alan M.

    Alan M. G.

    The Law Office of Alan Goldberg

    12/11/12 Dear Joseph:

    The citation is in the article. Let me know what you think.
    Regards,
    Alan M. Goldberg
    alangoldberglaw@gmail.com
    Appeals; civil trials; family law; assist with trial preparation: 2nd chair, motions, research, witnesses, all aspects of trials; local counsel (California); referral fees paid.

  • James Brandan

    James Brandan K.

    Self-employed attorney

    Are you serious? So basically the rule is irrelevant and we can now, through judicial notice (which judges can deny if they feel like it) unpublished cases. Law review articles (generally) are written by two categories of people who don't practice law: students and teachers.

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