When Judges Rely on Unpublished Opinions

Timothy Kowal, Esq.
July 13, 2022

Lawyers in California courts may not rely on unpublished cases. But federal courts may. And California courts may rely on federal courts—even when the federal court relies on an unpublished California case. In Meza v. Pacific Bell Telephone Co. (D2d3 Jul. 12, 2022 case no. B317119) 2022 WL 2680080, that’s just what a California court did.

Meza filed a class action against his employer, Pac Bell, over meal and rest violations. The trial court denied class certification as to certain of the claims and Meza appealed from this order (among others).

The Court of Appeal reversed, finding that the claims were common among the class members. As part of its analysis, the court relied on a Ninth Circuit decision in Magadia v. Wal-Mart Associates, Inc. (9th Cir. 2021) 999 F.3d 668.

But as the Meza court acknowledged, the Ninth Circuit relied on two unpublished California appellate decisions in its analysis of the issue. Meza further acknowledged that “we are not permitted to rely on such cases,” citing Airline Pilots Assn. Internat. v. United Airlines, Inc. (2014) 223 Cal.App.4th 706, 724, fn. 7. But, the resourceful court went on, “a federal court may do so,” citing Employers Ins. of Wausau v. Granite State Ins. Co. (9th Cir. 2003) 330 F.3d 1214, 1220, fn. 8.

This is one of the many ways courts commonly disregard the no-citation rule under California Rules of Court rule 8.1115. (I list more here and here.)

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

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