March 31, 2014
[ii] Unpublished and Depublished Opinions
An opinion of the court of appeal or the appellate division of a superior court that is not certified for publication or ordered published generally may not be cited or relied on by a court or a party in any other action or proceeding [ Cal. Rules of Ct., Rule 8.1115(a)[Deering's]]. Unpublished opinions include those that have been superseded by a grant of revision, rehearing, or other action (unless the California Supreme Court orders otherwise) [see Cal. Rules of Ct., Rule 8.1105(d)[Deering's]; see also Cal. Rules of Ct., Rules 8.264 (finality), 8.268 (rehearing), 8.500 (petition for review)].. Unpublished opinions also include decisions of the court of appeal or the appellate departments of the superior court that have been certified by those courts for publication, but which the Supreme Court has subsequently ordered not to be published [see Cal. Rules of Ct., Rule 8.1105(b)[Deering's], (d)[Deering's]].
An opinion may be certified for partial publication. All material, factual and legal, including the disposition, that aids in the application or interpretation of the published part must be published, and for purposes of Cal. Rules of Ct., Rules 8.1105, 8.1115, 8.1120, the published part of the opinion is treated as a published opinion and the unpublished part as an unpublished opinion [ Cal. Rules of Ct., Rule 8.1110].
By depublishing or decertifying a court of appeal opinion, the Supreme Court lets the decision stand with regard to the parties but eliminates its precedential value [see Cal. Rules of Ct., Rule 8.1115(a)[Deering's]]. Depublication of an opinion should not be deemed an expression of opinion of the Supreme Court of the correctness of the result reached by the decision or of any of the law set forth in the opinion [ Cal. Rules of Ct., Rule 8.1125(d)[Deering's]; but see People v. Dee (1990) 222 Cal. App. 3d 760, 764, 272 Cal. Rptr. 208 (acknowledging in dicta that appellate courts seek guidance from denial of review and depublication, and stating, ?it is generally accepted that most depublication occurs because the court considers the opinion to be wrong in some significant way, usually in reasoning and sometimes in result as well?)].
An unpublished or depublished opinion may be cited either when it is relevent under the doctrines of law of the case, res judicata, or collateral estoppel, or when the opinion is relevant to a disciplinary (or criminal) proceeding because it states reasons for a decision affecting the same defendant or respondent in another such proceeding [ Cal. Rules of Ct., Rule 8.1115(d)[Deering's]].
A conclusion is not a required element of a memorandum [see Cal. Rules of Ct., Rule 3.1113(b)[Deering's]]. But it is a good practice to include a conclusion that succinctly summarizes the party?s contentions as to how the trial court should resolve the legal issues raised in the memorandum. The conclusion should also state the relief requested from the court.
Nancy Duffy McCarron, CBN 164780
Attorney, Real Estate Broker, BBB Arbitrator, CA Notary Public
Certified Forensic Loan Auditor, Property Manager
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