March 22, 2017
Unpublished Appellate Opinions
A hallmark of our legal system is the establishment of precedent, or case holding, from appellate courts that bind future cases. That is, the prior case can be cited in a subsequent case to argue for a similar outcome, provided the facts are analogous. For example, probably the most well-known probate case of recent years is Estate of Heggstad (1993) 16 CA4th 943, 950. This decision was rendered by the First District of the California Court of Appeal and stemmed from a case in San Mateo County Superior Court. Heggstad established the holding that a formal transfer of real estate into a trust, i.e. through a deed, was not required for the trust to control the real estate if it was identified on the trust's schedule of assets. This holding has probably been cited thousands of times in probate courts throughout California involving unfunded trusts.
Still, many appellate opinions rendered by the California Court of Appeal are not published. In effect, these cases are non-binding on subsequent cases. For instance, if Heggstad was an unpublished opinion, it would be improper to cite it.
The beginning of the unpublished appellate opinion will state something like the following "California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.115." Hence the determination of whether an appellate opinion can serve as precedent or not is quite clear.
The logical inference is that an attorney should not cite to an unpublished opinion to support a legal argument.
A recent appellate opinion, unpublished ironically, discussed how an attorney cited to an unpublished opinion initially in a demand letter and then in a petition to compel a trust accounting. The respondent naturally objected to the petition's reliance on an unpublished opinion, inter alia, and sought sanctions against the petitioner for violating the California Rules of Court. Conversely, petitioner's attorney declared that he was unaware of the rule governing citation to an unpublished opinion and regretted any confusion or inconvenience over it. Still, the trial court awarded the respondent "$4,000 in sanctions under California Rules of Court, rules 2.30 and 8.1115, for Rudolph's reliance on and citation to the unpublished decision."
Koppl v. Zimmerman, San Francisco County Superior Court, Case PTR15298735