In California state court, unpublished opinions from the Court of Appeal or a superior court appellate division cannot be cited or relied on in any other case, with only two narrow exceptions. Rule 8.1115(a) of the California Rules of Court states the ban plainly, and it reaches briefs, motions, oral argument, and even a trial court’s own reasoning. Drop an unpublished decision into a filing without fitting an exception, and the court will disregard the citation and may strike the portion of the brief that relies on it.
What the Non-Citation Rule Covers
Rule 8.1115(a) says an unpublished opinion “must not be cited or relied on by a court or a party in any other action.” An unpublished opinion is a written decision from a Court of Appeal or superior court appellate division that has not been certified for publication in the Official Reports. It resolves the appeal between the parties and explains the court’s reasoning, but it does not become part of the body of binding case law. Persuasive value is not a workaround. If the opinion analyzes a statute in a way you find helpful, that is not a reason to cite it in state court.
The Two Exceptions
Rule 8.1115(b) allows citation in two situations, and only these two:
- When the unpublished opinion is relevant under the doctrines of law of the case, res judicata (claim preclusion), or collateral estoppel (issue preclusion). Here the opinion is not being offered as a statement of general law. It is being offered as proof that a specific issue or claim between the same parties has already been decided.
- When the unpublished opinion states reasons for a decision affecting the same defendant or respondent in another criminal or disciplinary action. A prior appellate ruling about the same person’s conduct is directly relevant in later proceedings against them, whether or not the earlier opinion was published.
Outside these two doctrines, the ban is absolute in state court.
Watch for Partial Publication
Not every opinion is entirely published or entirely unpublished. Under Rule 8.1110, a majority of the panel can certify only part of an opinion for publication if that part meets a publication standard and the rest does not. The published portion has to include the factual and legal material needed to understand and apply the published analysis, along with the disposition.
For citation purposes, the published part is treated as published and the unpublished part is treated as unpublished. You can cite the published sections freely; the unpublished sections are governed by Rule 8.1115. Before you rely on any specific section of an opinion, check whether it sits inside the published portion.
Asking for an Opinion to Be Published
If an unpublished opinion is one you want to use, you can ask the court that issued it to publish it. Rule 8.1120 sets out the process. Write a letter to the rendering court, briefly explain your interest in the case, and explain why the opinion meets at least one publication standard under Rule 8.1105. You have 20 days after the opinion is filed to deliver the request, and you must serve a copy on all parties.
The initial publication decision belongs to the panel that decided the appeal, and a majority must certify the opinion before the decision becomes final in that court. Meeting a Rule 8.1105 standard does not force the panel’s hand. The court still weighs whether the opinion’s contribution justifies adding it to the body of binding precedent.
Asking for a Published Opinion to Be Depublished
The reverse works too. Under Rule 8.1125, any person can ask the California Supreme Court to order that a published opinion be depublished. The request goes to the Supreme Court as a separate letter, not as part of a petition for review, and it cannot exceed 10 pages. Explain your interest and the reason the opinion should not remain published. The deadline is 30 days after the decision becomes final in the Court of Appeal, and you must serve the rendering court and all parties.
Within 10 days after the Supreme Court receives the request, the rendering court or any other person can file a response supporting or opposing depublication. The Supreme Court then either orders depublication or denies the request. It can also depublish on its own initiative. Depublication is not a comment on whether the court got the case right; it removes the opinion from the body of citable precedent.
Federal Court Runs on the Opposite Rule
If you practice in both systems, do not assume the California rule travels with you. Federal Rule of Appellate Procedure 32.1 prohibits federal courts from restricting citation of unpublished opinions, orders, or other written dispositions issued on or after January 1, 2007. The Ninth Circuit implements this through Circuit Rule 36-3. Unpublished dispositions issued on or after January 1, 2007, can be cited in the Ninth Circuit consistent with FRAP 32.1, though they still are not precedential except under law of the case, claim preclusion, or issue preclusion. For dispositions issued before that date, citation stays restricted to those same doctrines plus narrow factual purposes such as showing notice or sanctionable conduct.
So an unpublished Ninth Circuit memorandum disposition can be cited for its reasoning in federal court. An unpublished California Court of Appeal opinion cannot be cited at all in state court, outside the two Rule 8.1115(b) exceptions. Mixing up the two rules is an easy way to draw a sharp response from the bench.
Where to Read Unpublished Opinions
Unpublished opinions are public records. The California Appellate Courts Case Information System, accessible through the California Courts website, hosts both published and unpublished opinions and allows searches by case number, party name, or filing date. Westlaw and Lexis also index California unpublished opinions and are usually the fastest way to search by topic or legal issue.
If an opinion is not available electronically, you can request a copy from the clerk’s office at the court that issued the decision. Requests can generally be made in person, by mail, or online, though older archived records may take longer to retrieve. Courts typically charge a per-page copying fee unless you have a fee waiver.