California's Stance on Unpublished Cases
California generally prohibits citing unpublished California cases except in rare circumstances. However, California Rule of Court Rule 8.1115, "Citation of Opinions," does not prohibit citing unpublished federal cases.
Citing Unpublished Federal Cases
Although unpublished California cases cannot be relied upon, the California Rules of Court do not prohibit citing unpublished federal cases. These cases may be cited as persuasive, although not binding, authority. Examples include:
- Farm Raised Salmon Cases (2008): 42 Cal.4th 1077, 1096, fn. 18, 72 Cal.Rptr.3d 112, 175 P.3d 1170.
- DeJung v. Superior Court (2008): 169 Cal.App.4th 533, 548, fn. 9, 87 Cal.Rptr.3d 99.
- Pacific Shore Funding v. Lozo (2006): 138 Cal.App.4th 1342, 1352, fn. 6, 42 Cal.Rptr.3d 283 [citing unreported federal cases as persuasive authority].
- Tichinin v. City of Morgan Hill (2009): 177 Cal.App.4th 1049, 1070 fn. 10.
Ninth Circuit Rule 36-3(b)
The Ninth Circuit Rule 36-3(b) states: "Unpublished dispositions and orders of this Court issued on or after January 1, 2007, may be cited to the courts of this circuit in accordance with FRAP 32.1." This rule aligns with FRAP 32.1.
Federal Rule of Appellate Procedure 32.1
Federal Rule of Appellate Procedure 32.1 states that a court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions designated as "unpublished," "not for publication," "non-precedential," "not precedent," or similar, issued on or after January 1, 2007.
Advisory Committee Notes to FRAP 32.1
The Advisory Committee notes to FRAP 32.1 state: "Under Rule 32.1(a), a court of appeals may not prohibit a party from citing an unpublished opinion of a federal court for its persuasive value or for any other reason."
Persuasive vs. Mandatory Authority
Citing an unpublished federal case is permitted and generally used as "persuasive authority," which is not "the rule" and not "mandatory authority." However, given its source and underlying logic, it essentially transforms an esteemed judge's opinion into an argument that your opinion should be adopted.
Whether a court decision is persuasive or mandatory authority depends on the courts involved. A decision by a lower court is persuasive authority for a higher court, while a higher court's decision is mandatory authority for a lower court. When two courts are equal (like Courts of Appeal in a state that govern different geographic areas), a decision by a court of equal level is persuasive authority. This can be interesting in a trial court. For example, if two judges have similar cases and one judge dismisses a case, another judge considering the same issue with a different defendant may find the first judge's decision persuasive but it is not mandatory.
Daniel Horowitz is a national television legal commentator and trial lawyer. His dedication to justice and his clients' best interests sets him apart as a leading figure in the legal community. He can be reached at Lawyers in Lafayette (925) 283-1863.