California practitioners generally know that they cannot cite or rely upon unpublished or depublished California opinions in California courts, except when relevant to law of the case, res judicata, etc. (Cal. Rules of Court, Rule 8.1115(a).) Violations of the “no-citation rule” can even be sanctionable. (People v. Williams (2009) 176 Cal.App.4th 1521, 1529; Alicia T. v. County of Los Angeles (1990) 222 Cal.App.3d 869, 885-886.)
Recently, though, there has been an underground debate as to whether the judicial notice statute, Evid. Code, § 452(d)(1), might trump Rule 8.1115. (See Gilbert v. Master Washer & Stamping Co. (2001) 87 Cal.App.4th 212, 218, fn. 14; Rafi Moghadam, Judge Nullification: A Perception of Unpublished Opinions (2011) 62 Hastings L.J. 1397; Scott Talkov, Citing Unpublished Opinions: The Conflict Between the No-Citation Rule and Judicial Notice, California Litigation Attorney Blog.)
That the judicial notice statute would allow citation of unpublished opinions as persuasive authority has some cachet. Courts may take judicial notice of “the records of…any court of this state” (Evid. Code, § 452, subd. (d)(1))—a category into which unpublished court opinions would certainly fall (see Gilbert, supra, 87 Cal.App.4th at p. 218, fn. 14). And to the extent that the rule of court and the statute are inconsistent, the statute must control. (Hess v. Ford Motor Co. (2002) 27 Cal.4th 516, 532.)
Further, “depublished and unpublished decisions are now as readily available as published cases, thanks to the Internet and technologically savvy legal research programs.” (Williams, supra, 176 Cal.App.4th at p. 1529.) Most attorneys and courts can now access nonpublished opinions easily and inexpensively.
But while there may be reasons to limit binding authority to published opinions, Rule 8.1115 goes further, prohibiting counsel and courts from citing or relying on unpublished opinions even as persuasive authority. Ironically, this gives out-of-state cases, law review articles, and even newspaper articles more persuasive weight than the opinions of our own courts, the vast majority of which are unpublished. (Cf. Morrow v. Hood Communications, Inc. (1997) 59 Cal.App.4th 924, 927, & fn. 2 (Kline, J., dissenting) [quoting law review article that in turn quoted reasoning from the court’s depublished opinion, because, “[u]nfortunately,” the opinion could not otherwise be cited].)
However, the Supreme Court has seemingly put an end to this debate. (Hernandez v. Restoration Hardware, Inc. (2018) 4 Cal.5th 260, 269, fn. 2.) In Hernandez, the appellant asked the Court to judicially notice several unpublished opinions adopting the appellant’s proposed rule. (Ibid.) The Court summarily declined, citing Rule 8.1115(a). (Ibid.) The Hernandez Court did not address why the rule of court would apparently trump Section 452 of the Evidence Code. (See ibid.; cf. Hess, supra, 27 Cal.4th at p. 532 [statutes trump rules of court where inconsistent].) Nevertheless, Hernandez seems to close the door on seeking judicial notice of unpublished opinions.
Perhaps recognizing the appellant’s good faith in seeking judicial notice, the Hernandez Court did not sanction the appellant for citing or referring to the unpublished opinions in question. But future litigants may not be so fortunate. After Hernandez, the safest advice remains: “Do not, under any circumstances, cite to an unpublished or depublished opinion…unless one of the narrow exceptions to the noncitation rule applies.” (Jon B. Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2017) ¶ 9:59.)