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Citing unpublished cases.

San Diego, CA |

How do I cite two unpublished cases in a motion?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 Rules of Court Rule 8.1115 (b) as exceptions to the rule of not citing unpublished cases because they are directly relevant to specific questions of statutorily acceptable service of process in a previous motion to quash service, but are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?

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Attorney answers 3

Posted

You cannot cite these unpublished cases.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.

Asker

Posted

In Wang v. Wei the defendant was served at a rent-a-mailbox facility where he received his property tax bill, and in my case the defendants were substitute served at a residence where they receive their property tax bill. In Koster v. Reclusado the defendant was substitute served at a residence where she no longer lived but still used as a mailing address, and in my case the defendant was served at a residence where they no longer live but still use as a mailng address (for her property tax bill). Would this an allowable exception?

Asker

Posted

Can I simply file an amended motion where I delete the citation to those cases?

Posted

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.

Christine C McCall

Christine C McCall

Posted

Mr. Bogan: Getting screamed at by the judge in that case was in the highest tradition of legal service to your client. Lots of lawyers would have felt inhibited from putting that decision into the record, but it was the right thing to do by any measure. Trial attorneys sometimes have to have the courage and the selflessness to take a verbal beatdown from a judge in order to do right by the client. I hope your client recognized the exceptional quality of legal service you provided in that case.

Tai Christopher Bogan

Tai Christopher Bogan

Posted

He was appreciative considering the judge agreed with me and granted finding of factual innocence. I'll take a tongue lashing anytime to get the client's name cleared. The charge was child molestation too. So it was a pretty big deal.

Christine C McCall

Christine C McCall

Posted

I can't imagine a bigger deal or a better result. Bravo.

Posted

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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