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Citing unpublished cases.

San Diego, CA |
Filed under: Lawsuits and disputes

How do I cite two unpublished cases in a motion? I think I can cite them under Cal. Rules of Court Rule 8.1115 (b) as exceptions to the rule of not citing unpublished cases because they are directly relevant to specific questions of statutorily acceptable service of process in a previous motion to quash service, but are cited in the corresponding motion for reconsideration to reverse the order on the motion to quash. The cases are Chang v. Wei (2007), B192902, Cal: Court of Appeal, 2nd Appellate Dist., 7th Div., and Koster v. Reclusado (2012), No. G045233, Cal: Court of Appeal, 4th Appellate Dist., 3rd Div.. Rule 8.1115 (c) says I should attach copies of the opinion to my motion. Is this what I need to do? What if I already filed the motion and didn't attach the copies of the cases? The other side complained to me that I did not properly cite the cases, as they have no volume an page number. Can I file a supplement to the motion before they file their opposition? Or can I attach them to my reply?

Attorney Answers 3

  1. You cannot cite these unpublished cases. The exception under Rule 8.1115(b) is an extremely narrow exception. The "law of the case", res judicata and collateral estoppel exceptions apply only to cases that are the same or related to your case. Otherwise, you cannot cite an opinion of a California Court of Appeal or superior court appellate division which is not certified for publication or ordered published.

    Frank W. Chen is licensed to practice law in the State of California. The information presented here is general in nature and is not intended, nor should be construed, as legal advice. This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, consult your own attorney.

  2. I do not do much appellate work if any at all. Meaning the thousands of cases I have handled i have only participated personally with maybe 5 appeals. My understanding is that you can only cite an unpublished case if it deals with the same party or the same exact facts as the case you are arguing. When I say the same facts, not similar or identical, but the same facts. For example in a multiple defendant or multiple plaintiff case where one of them appeals an issue but the other did not participate in the appeal - the party who didn't participate could attach the unpublished opinion in the lower court.

    I have also attached an unpublished opinion where the opinion was about my clients case. It was a blasting by the appellate court of the trial judge and how the client was clearly innocent of the charges. I mean I might be stretching it - but in a motion for a finding of factual innocence I attached the appellate case. I still got screamed at by the judge.

    So be very cautious.

    The above information does not establish an attorney client relationship nor is it meant to provide legal advice.

  3. As the other attorneys said, you cannot cite unpublished cases.
    If you have a case that you think applies, then instead of citing the unpublished case, follow the reasoning of the unpublished case and cite the published cases cited in that opinion.

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