Using CalAppErrors on Appeal – Some Possibilities for Attorneys

During the Appeal. You’re representing an appellant in a pending case with a particularly strong argument for trial error; given a proper prejudice analysis faithful to required review standards, you have a realistic shot at reversal. But in researching CalAppErrors you discover your court/panel has often, and recently, misapplied those standards in a certain way – say, by acknowledging only judgment-supporting evidence and inferences. Instead of simply citing other evidence and record materials in your prejudicial error briefing, you might turn that reliance into its own headnoted argument or sub-arguments, complete with California (and if appropriate, United States) Supreme Court authorities digging deeper into the rule, perhaps even decisions reversing a lower appellate court on that point. And you may want to spotlight it in oral argument as well.

After the Opinion. Despite your best efforts as outlined above, you’re now working on a petition for review. Can you cite the equally problematic unpublished cases you’ve discovered at CalAppErrors? Not according to California Rules of Court, rule 8.1115(a), as read literally: with exceptions not relevant here, “an opinion of a California Court of Appeal or superior court appellate division that is not certified for publication or ordered published must not be cited or relied on by a court or a party in any other action.”

Consider why you’d like to address these unpublished opinions: presumably, to highlight the pattern emerging from their similarly erroneous analyses. In other words, what makes the appellate error in your case a particularly “important” legal issue calling out for review (rule 8.500(b)(1)), a problem demonstrating the need to “secure uniformity of decision” (ibid.), or a problem meriting grant and transfer (rule 8.500(b)(4)) is, at least in part, the error’s relative and growing frequency. (Cf. Mangini v. J.G. Durand International (1994) 31 Cal.App.4th 214, 219-220 [Court of Appeal cited its own depublished opinions to show that a “recurring issue” required resolution].) And it’s a frequency you’re aware of because you’ve examined here not only the opinions, but also the rehearing and review petitions identifying and analyzing the errors.

Here’s one possible approach to the citation problem: along with your review petition, file a motion for judicial notice under Evidence Code section 452, subdivision (d)(1) [allowing such notice as to “[r]ecords of … any court of this state”] and rules 8.520(g) and 8.252(a) [requiring a formal motion], asking the Supreme Court to consider its own files in similar cases where the same error – maybe even by the same court – has been brought to their attention in previous petitions. (See sample; see also, e.g., Bowen v. Ziasun Technologies, Inc. (2004) 116 Cal.App.4th 777, 787, fn. 6 [Court of Appeal may properly “cite to depublished opinions to illustrate the same issue was presented in those cases and that it remained unresolved”]; Gilbert v. Master Washer & Stamping Co. (2001) 87 Cal.App.4th 212, 218, fn. 14 [“Although the Court of Appeal opinion in Trope v. Katz is not published, we may take judicial notice thereof as a court record pursuant to Evidence Code section 452, subdivision (d) (1)”]; Talkov, Citing Unpublished Opinions: The Conflict Between the No-Citation Rule and Judicial Notice (Feb. 4, 2013), Cal. Litigation Attorney Blog <http://www.rhlaw.com/blog/citing-unpublished-opinions-the-conflict-between-the-no-citation-rule-and-judicial-notice/> (as of January 23, 2020).)

More broadly, by examining previous post-opinion petitions for rehearing and review, you can see how other attorneys have dealt with appellate-error problems; in that sense, CalAppErrors also serves as a brief bank.

After the State Appeal. With review denied, you’re considering a petition for writ of certiorari because of a significant federal constitutional issue. Rule 8.1115 (discussed in ”After the Opinion,” above) governs state court practice; it doesn’t expressly limit your use of citations elsewhere. And Federal Rules of Appellate Procedure rule 32.1 addresses only citation of unpublished, post-2006 federal opinions – by allowing it. The high court itself doesn’t appear to deem the practice off-limits. (See, e.g., Ramdass v. Angelone (2000) 530 U.S. 156, 175 [120 S.Ct. 2113, 147 L.Ed.2d 125] (plurality opn) [citing unpublished intermediate appellate opinion from Virginia].)

Moreover, there’s precedent for citing unpublished California opinions in federal court – at least where that court is tasked with “determining actual practice” in the state appellate courts; for that purpose, in fact, “unpublished decisions are … particularly useful[.]” (Powell v. Lambert (9th Cir. 2004) 357 F.3d 871, 879; accord, Vizcarra-Ayala v. Mukasey (9th Cir. 2008) 514 F.3d 870, 876, fn. 3.) As one example of this approach, a 2014 amicus brief argued (in support of the cert petition in Jackson v. California, No. 14-5760) California courts have demonstrated “widespread disregard” for federal harmless error review requirements.

Of course, whether a previous state decision was published or unpublished, its arguable federal error may not be evident from the face of the opinion. Unless a cert petition was filed, the U.S. Supreme Court has no docket for the case, so no ready means of considering the previous error. (Compare “After the Opinion,” above [motion for judicial notice asking California Supreme Court to consider its own files].) But if a subsequent state petition (rehearing and/or review) resides on this public website, you should be able to cite it. And if a cert petition was filed and posted here, you’ll be able to note and quote it in your petition as a document within the U.S. Supreme Court’s files. (For Supreme Court decisions referring to briefs filed in prior cases, see, e.g., United States v. United Foods, Inc. (2001) 533 U.S. 405, 415 [121 S.Ct. 2334, 2340, 150 L.Ed.2d 438] (2001); Jones v. United States (2000) 529 U.S. 848, 856 n.8 [120 S.Ct. 1904, 146 L.Ed.2d 902].)

Other Uses. You’re limited only by your imagination and the California Rules of Professional Conduct. Please contribute your ideas, in case entries (with accompanying documents) and forum discussions. By sharing cases, concerns, strategies, and other information, interested appellate counsel will surely come up with newer and better approaches to improving appellate justice.

Citing CalAppErrors. For Internet-based citation guidelines and format, see the California Style Manual (4th ed. 2000) [available online, <http://www.sdap.org/downloads/Style-Manual.pdf>, as of March 30, 2015], § 3:15, pp. 108-109, “Computer-based sources.”