The Trouble with Unpublished Opinions

 Every practitioner in California state courts knows you may not cite to unpublished opinions. (CRC 8.1115.) This is often frustrating when there are unpublished opinions favorable to your case. Still more frustrating is that you cannot prevent judges from reading unpublished decisions that are unfavorable to your case, or from relying on those opinions.

A recent (published) decision out of the First Appellate District upheld the validity of a bail bond even though it was for the wrong amount. The bond company, American Surety Co., had relied on a published 1919 Court of Appeal holding for its position. But the Court rejected that holding, stating:

"In the course of our research we encountered—but cannot mention by name—a number of unpublished Court of Appeal decisions rejecting American’s argument and distinguishing [the 1919 Court of Appeal opinion]."

Now, is it possible that, when preparing its briefs for the appeal, or preparing for oral argument, counsel for American became aware of those unpublished cases, but, due to the constraints imposed by Rule 8.1115, could not mention them? Perhaps American found other authorities that refuted those unpublished cases, but, alas, they too were unpublished?

I am troubled by the prospect suggested here that the bench may be relying on a subterranean body of law that the bar may not gainsay.

People v. Am. Surety Co. (Cal. Ct. App. - Oct. 1, 2020) D1d2 case no. A157154.