THE JOURNAL OF THE LITIGATION SECTION, STATE BAR OF CALIFORNIA

Volume 26 • Number 1 2013

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Every day in California, lawyers en-gaging in legal research come acrossthat perfect case that makes that

key point — only to realize that the case is“unpublished.” Hence the quandary: Shouldthe case be cited? Can it be cited?

The quagmire of handling unpublishedcase law has thickened in our digital age,

where nearly all written opinions can bereadily located electronically via Westlaw,Lexis, Google Scholar, and other sources.This increased access to unpublished deci-sions has made it more tempting to citethem, while at the same time giving rise to

To Cite or Not to Cite?That Is the Question

Citing Unpublished Decisions in

California State and Federal Courts

By Benjamin G. Shatz and Emil Petrossian

California Litigation Vol. 26 • No 1 • 2013

Benjamin G. Shatz Emil Petrossian

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much confusion regarding the propriety ofdoing so.

To complicate matters, California has uni-que practices regarding unpublished, partiallypublished, and even depublished appellateopinions; and federal practices governing thecitation of published and unpublished author-ity have a complicated history. Given thatprecedent is the lifeblood of legal argument,understanding how to deal with unpublishedauthority is essential knowledge for any litiga-tor. To help eliminate some of the confusionsurrounding unpublished decisions, this arti-cle aims to provide a roadmap for Californiapractitioners to determine whether a particu-lar decision may be cited in state and federalcourts in California.

— Citations in —California State Courts

The rules governing the citation of unpub-lished California state-court opinions in Cali-fornia state courts are relatively straightfor-ward. All decisions of the California SupremeCourt are automatically published in Califor-nia Reports, and thus may be cited. (Cal.Rules of Court, rule 8.1105(a).)

The problem of unpublished decisions aris-es with opinions from the Court of Appeal orsuperior court appellate division. Opinions ofthese courts are not published unless specifi-cally certified for publication. (Rule 8.1105(b).) Fortunately, a simple rule of court existsto provide guidance: Any decision that is notcertified for publication (or not ordered pub-lished) “must not be cited or relied on by acourt or a party in any other action.” (Rule8.1115(a).) So far, so good.

The rule has two express exceptions: Anunpublished opinion may be cited or relied onwhen the opinion is (1) “relevant under thedoctrines of law of the case, res judicata, orcollateral estoppel”; or (2) “relevant to acriminal or disciplinary action because itstates reasons for a decision affecting thesame defendant or respondent in anothersuch action.” (Rule 8.1115(b).) These excep-tions rarely come into play.

The next question is, “when” is an appel-late opinion ripe for citation? The rule again isclear: As soon as the Court of Appeal issuesan opinion for publication, it may be cited.(Rule 8.1115(d).) This is true even though

the decision is not technically “final” foranother 30 days after it is published — e.g.,the Court of Appeal has jurisdiction to changethe opinion sua sponte or via a petition forrehearing; and the possibility of review by theSupreme Court still exists (generally foranother 100 days).

The same is true for a previously unpub-

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lished decision that has been ordered pub-lished: As soon as the decision is certified forpublication, it may be cited. (Rule 8.1115(d).) Sometimes opinions are only partiallypublished, so be sure to cite only to the pub-lished portions of such decisions. (Rule8.1110.)

Understand, however, that citing recentlypublished cases within this 100-day windowcarries some risk. If the Court of Appealgrants a rehearing or if the Supreme Courtgrants review, then the opinion is immediate-ly superseded and no longer considered pub-lished, and thus is not citable. (Rule 8.1105(e)(1).) Moreover, the Supreme Court hasauthority to order that an unpublished opin-ion be published, and to decertify the publica-tion of a published opinion.(Rule 8.1105(e)(2).) Accordingly, when contemplatingfreshly hatched decisions, extra diligence isrequired.

The precise wording of Rule 8.1115’s re-strictions on the citation of unpublished opin-ions makes clear that the rule applies to opin-ions of the Court of Appeal and superiorcourt appellate division. Thus, California’sRule does not extend to unpublished deci-sions from other jurisdictions, including fed-eral courts. Precedent consistently recog-nizes this basic limitation on the rule’s scope.(See, e.g., Haligowski v. Superior Court(2011) 200 Cal.App.4th 983, 990, fn. 4[“Unpublished federal opinions are citablenotwithstanding [Rule 8.1115] which onlybars citation of unpublished California opin-ions.” (emphasis in original)]; Harris v.Investor’s Bus. Daily, Inc. (2006) 138 Cal.App.4th 28, 34 [“[E]ven unpublished federalopinions have persuasive value in this court,as they are not subject to [Rule 8.1115],which bars citation of unpublished Californiaopinions” (citation omitted)]; Bowen v.Ziasun Techs., Inc. (2004) 116 Cal.App.4th777, 787, fn. 6; City of Hawthorne ex rel.Wohlner v. H&C Disposal Co. (2003) 109Cal.App.4th 1668, 1678, fn. 5.)

Of course, unpublished decisions of federaldistrict and appellate courts — even on

issues of federal law — are not binding onCalifornia state courts and constitute onlypersuasive authority. (See Ticconi v. BlueShield of Cal. (2008) 160 Cal.App.4th 528,541, fn. 10.) Even courts viewing federal deci-sions on federal issues to be deserving of“great weight,” recognize that, in some cir-cumstances, California state courts mayignore federal precedent. (E.g., Etcheverryv. Tri-Ag Serv., Inc. (2000) 22 Cal.4th 316,320; People v. Williams (1997) 16 Cal.4th153, 190; Pac. Shore Funding v. Lozo(2006) 138 Cal.App.4th 1342, 1352 [lowerfederal court decisions on federal law are notbinding on state courts; such decisions arepersuasive and entitled to great weight; butwhere lower federal precedents are dividedor lacking, state courts must necessarilymake an independent determination of feder-al law].)

— Citations in —California Federal Courts

Turning to the federal court system, opin-ions from the Supreme Court of the UnitedStates, are, of course, all published andalways citable. Similarly, with limited excep-tions noted below, district court decisions arealso citable whether they appear in a printpublication or not. (Sorrels v. McKee (9thCir. 2002) 290 F.3d 965, 971.)

The complications arise at the intermedi-ate appellate level. Like California’s Court ofAppeal, the federal circuit courts of appealsissue both published and unpublished deci-sions. Published decisions appear in West’sFederal Reporter (starting with cases from1880), and — somewhat ironically — startingin 2001, “unpublished decisions” (from mostcircuits, including the Ninth Circuit) typicallyappear in a case law reporter titled theFederal Appendix. Thus, it is perfectly accu-rate to say that “unpublished cases are pub-lished in the Federal Appendix” — although anon-lawyer might perceive this as lawyer’sdouble-talk.

The governing citation rule in the NinthCircuit is Circuit Rule 36-3, which provides

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that unpublished Ninth Circuit dispositionsand orders are (a) not precedent (i.e., notbinding on district courts or other NinthCircuit panels), except when relevant underthe doctrine of law of the case or rules ofclaim preclusion or issue preclusion; (b)citable to courts within the Ninth Circuit ifissued on or after January 1, 2007; and (c)not citable if issued before January 1, 2007,except under limited circumstances (e.g.,when relevant under preclusion doctrines, orfor factual purposes, or to demonstrate theexistence of a conflict). (See Sorchini v.City of Covina (9th Cir. 2001) 250 F.3d 706,708 [the “factual purposes” exception “per-mits the citation to an unpublished disposi-tion where the very existence of the priorcase is relevant as a factual matter to thecase being briefed,” which “will almost alwaysinvolve one or both of the parties to thepending case” — the exception does not per-mit citation for the purpose of providing“notice” to a court of the existence or ab-sence of legal precedent (emphasisoriginal)].)

Thus, the key date to remember is 2007:Unpublished Ninth Circuit decisions issued inor after 2007 are citable without restriction aspersuasive authority. But pre-2007 unpub-lished decisions are not citable, subject tocertain rare exceptions.

By its express terms, Rule 36-3 extendsonly to unpublished Ninth Circuit decisions,not to decisions or orders issued by othercourts, including district courts within theNinth Circuit. (See Renick v. Dun & Brad-street Receivable Mgmt. Servs. (9th Cir.2002) 290 F.3d 1055, 1058 [“Rule 36-3 quiteclearly prohibits citations only of our unpub-lished dispositions; it does not apply tounpublished dispositions issued by any othercourts within our circuit or elsewhere”].)

Thus, federal courts in California generallycan (and often do) rely on unpublishedorders and opinions from district courts andcourts of appeals from circuits other than theNinth Circuit. (E.g., Alvarenga-Villalobos v.Reno (N.D.Cal. 2000) 133 F.Supp.2d 1164,

1167–1168 [citing and relying on an unpub-lished Third Circuit case].) Even NinthCircuit decisions rely on sister-circuit unpub-lished precedent from time to time. (E.g.,EEOC v. United Parcel Serv., Inc. (9th Cir.2002) 306 F.3d 794, 803, fn. 5 [citing a 4thCircuit Federal Appendix case]; UnitedStates v. Arellano-Rivera (9th Cir. 2001)244 F.3d 1119, 1126.) Under the federal doc-trine of stare decisis, of course, these author-ities are only persuasive precedent. (Hart v.Massanari (9th Cir. 2001) 266 F.3d 1155,1169–1174.)

Likewise, Ninth Circuit Rule 36-3 does notcover unpublished state-court decisions.Nonetheless, the Ninth Circuit and federaldistrict courts in California typically applystate rules governing the citation of unpub-lished state court decisions. For example, inRennick v. O.P.T.I.O.N. Care, Inc. (9th Cir.1996) 77 F.3d 309, 317, the plaintiffs citedCiampi v. Red Carpet Corp. (1985) 167Cal. App.3d 336, rehearing granted, to sup-port their argument that the defendant vio-lated California’s Franchise Investment Law.The Ninth Circuit refused to considerCiampi, however, because the CaliforniaCourt of Appeal had granted rehearing,thereby superseding the opinion and render-ing it unpublished under California’s publica-tion rules.

Similarly, in Credit Suisse First BostonCorp. v. Grunwald (9th Cir. 2005) 400 F.3d1119, the Ninth Circuit refused to considerJevne v. Superior Court (2003) 113 Cal.App.4th 486, review granted, based on theCalifornia Supreme Court’s grant of review.The court explained: “Under California Rulesof Court, a superseded opinion is not consid-ered published, and an unpublished opinioncannot be cited to or relied on by othercourts. In short, an unpublished opiniondoes not constitute binding precedent.Accordingly, we are not bound by the Jevnecourt’s analysis of California law.” (Grun-wald, supra, 400 F.3d at p. 1126, fn. 8.)

Taking their cue from the Ninth Circuit, asthey must, California’s federal district courts

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also generally apply California’s rules regard-ing the citation of unpublished or depub-lished California cases. (E.g., Taylor v. Quall(C.D.Cal. 2006) 458 F.Supp.2d 1065, 1068[rejecting citations to two unpublishedCalifornia Court of Appeal opinions].) How-ever, at least one federal district court inCalifornia has refused to be bound by thoserules. In Cole v. Doe 1 (N.D.Cal. 2005) 387

F.Supp.2d 1084, 1103, fn. 7, the district courtcited and relied on an unpublished Californiacase, reasoning that California’s rule was “notbinding in the federal courts,” as determinedby the Eighth Circuit, In re Temporoman-dibular Joint Implants Prods. Liability

Litig. (8th Cir. 1997) 113 F.3d 1484, 1493,fn. 11 (“Joint Implants”).

Cole’s reliance on Joint Implants seemserroneous, because the Eight Circuit’s deter-mination regarding the applicability ofCalifornia’s citation rules directly contradictsthe Ninth Circuit’s rule. Cole also suggestedthat it was permitted to rely on the unpub-lished state-court decision “not…as deci-sional law but rather for its persuasive rea-soning.” (Cole, supra, 387 F.Supp.2d at p.1103, fn. 7.) But such a rule underminesCalifornia’s prohibition of unpublished state-court decisions, because all unpublisheddecisions constitute persuasive (albeituncitable) authority. Thus, citing an unpub-lished decision for its “persuasive reasoning”is no different than citing it as “decisionallaw.” Indeed, this is precisely the type ofargument that practitioners should nevermake to support citing a noncitable unpub-lished decision.

Ultimately, the applicability of California’scitation rules in federal courts makes sense.Federal courts charged with the task ofresolving issues of state law must determinehow state courts would rule on those sameissues. (Mullaney v. Wilbur (1975) 421 U.S.684, 691 [state courts are the ultimateexpositors of state law, and federal courts“are bound by their constructions except inextreme circumstances”].) This purposewould be undermined if federal courts couldconsider unpublished cases that state courtscould not rely on. (See, e.g., Antablian v.State Bd. of Equalization (Bankr. C.D.Cal.1992) 140 B.R. 534, 536–537 [recognizingthat because its task was “to determine howa California state court would rule,” thecourt could not reasonably rely on an unpub-lished California state-court decision “as anindication of how a California appellate courtwould rule”].)

Moreover, federal courts’ ability to citeunpublished state-court decisions might leadto disuniformity in the law, which, in turn,could engender forum shopping between thestate and federal court systems. Thus, Cali-

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fornia federal courts’ application of Cali-fornia’s state rules regarding the citation ofunpublished California state-court opinionsbrings stability to both court systems.

A notable exception to the application ofCalifornia’s rules in federal courts appears inPowell v. Lambert (9th Cir. 2004) 357 F.3d871 and its progeny. In Powell, the NinthCircuit held that litigants may cite to and relyon unpublished state appellate decisionswhere the issue presented is the adequacy ofa state procedural bar — particularly whenthe bar prevents the assertion of federalrights. (Powell, supra, 357 F.3d at p. 879.)Powell reasoned that reliance on unpublisheddecisions for this limited purpose is appropri-ate because “it is the actual practice of thestate courts, not merely the precedents con-tained in their published opinions, that deter-mine the adequacy of procedural bars pre-venting the assertion of federal rights.” (Ibid.,citing Valerio v. Crawford (9th Cir. 2002 enbanc) 306 F.3d 742, 776.) Powell furtherexplained that “[u]npublished decisions arenot irrelevant to a determination of a court’sactual practice. Indeed, to the extent that de-cisions of the state courts are unpublishedbecause they involve only routine applicationof state court rules, unpublished decisions area particularly useful means of determiningactual practice.” (Powell, supra, 357 F.3d atp. 879.)

Subsequent court decisions relying onPowell seemingly have expanded its holdingto cover any state statute, the actual applica-tion of which by the state court is relevant tothe issues before the federal court. (See, e.g.,Vizcarra-Ayala v. Mukasey (9th Cir. 2008)514 F.3d 870, 876, fn. 3 [relying on unpub-lished California decisions regarding theapplication of Cal. Penal Code § 475, pro-scribing specific forms of forgery]; Castillo-Cruz v. Holder (9th Cir. 2009) 581 F.3d1154, 1161, fn. 9 [unpublished cases “are per-tinent for showing that there is a ‘realisticprobability’ that [Cal. Penal Code § 496] hasbeen and will be applied to conduct falling

outside of the generic definition of a crime ofmoral turpitude.”]; Nunez v. Holder (9thCir. 2010) 594 F.3d 1124, 1137, fn. 10[unpublished state-court decisions are “perti-nent to show how a statute has been appliedin practice”].)

A final consideration is that federal districtcourts have the power to prohibit or restrictthe citation of unpublished decisions by localcourt rule. The local civil rules presently ineffect in the Central, Eastern, and SouthernDistricts of California do not prohibit orrestrict citations to unpublished districtcourt decisions. The Northern District, how-ever, expressly prohibits citation to “[a]nyorder or opinion that is designated: ‘NOTFOR CITATION,’ pursuant to Civil L.R. 7-14or pursuant to a similar rule of any otherissuing court…either in written submis-sions or oral argument, except when relevantunder the doctrines of law of the case, resjudicata or collateral estoppel.” (N.D.Cal. Civ.L.R. 3-4(e) [emphasis added].) Accordingly,in the Northern District, unpublished deci-sions from any jurisdiction with a non-cita-tion rule or applicable procedure are notcitable.

The rules governing citation of unpub-lished opinions should be carefully followed.Mistakes can be costly. (See Alicia T. v.County of Los Angeles (1990) 222 Cal.App.3d 869, 885–886 [monetary sanctionsimposed to discourage violation of the cita-tion rules].) But depending on the venue andcircumstances, unpublished opinions may bea useful source of persuasive authority. Prac-titioners should tread carefully and double-check the rules when citing unpublisheddecisions, keeping in mind that the mere factthat a decision is unpublished does not nec-essarily mean that it cannot be cited in anyand all courts.

Benjamin G. Shatz co-chairs the AppellatePractice Group of Manatt, Phelps & Phillips,LLP. Emil Petrossian is a litigation associateat Manatt.

THE JOURNAL OF THE LITIGATION SECTION, STATE BAR OF CALIFORNIA

Volume 26 • Number 2 2013

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(Continued on Page 48)

Re: To Cite or Not to Cite?

Gentlemen:I am writing to let you know that I just read your article

published in the recent edition of California Litigation.Lots of articles on litigation subjects are interesting, useful,and generally helpful. Rare are articles that address somethorny issue — like citations to unpublished cases — insuch a helpful way that the article must be clipped andremain available at a moment’s notice. Yours is just such anarticle.

I write lots of briefs and motions — mostly at the trialcourt level, but some in California and 9th Circuit appellatecourts — and I have lived by my personal bright-line ruleto avoid all forms of unpublished decisions. Your article willcome in handy in those times when I find an unpublishedcase that seems useful enough to cite. The answer may stillbe that I cannot cite it, but at least I have a reference tocheck to make sure I am not ruling out a case that I couldsomehow use.

Thanks for writing such a great article. I will be scan-ning it into my Evernote account, and there is a goodchance a print copy will be attached to my Blue Book andCalifornia Style Manual.

Warmly,Thomas H. Vidal, Esq.Abrams Garfinkel Margolis Bergson, LLPLos Angeles, CA

The authors respond:We were pleased to receive letters like the one from Mr.

Vidal finding our article to be a useful tool. That was ourintent.

The final segment of our article, however — about thecitation of unpublished California decisions in federal court— prompted some confusion. Attorney Gary Ostrick wrotethat, in his reading, the article unduly discouraged suchcitation. Somewhat similarly, appellate specialist CharlieBird interpreted the article as stating that Ninth Circuitdecisions flatly foreclose citation to unpublished Californiaappellate opinions. But that was not what the article statedor intended to state.

To be clear, as the article noted, “Ninth Circuit Rule 36-3 does not cover unpublished state court decisions,” nor dolocal rules in three of California’s four district courts. Thearticle went on to note that, as a result, federal courts inthe Ninth Circuit typically apply state rules governing thecitation of unpublished state court decisions, providingexamples of such decisions being both rejected by andcited by federal courts. A search of any case law databasewill yield decisions going both ways. But the fact that fed-eral courts sometimes rely upon unpublished state courtdecisions does not change the authors’ view that most fed-eral courts usually decline to do so.

Further, the question whether federal judges some-times cite unpublished state court decisions does not mean

EDITORIAL BOARDJohn Derrick Santa Barbara, Editor-in-Chief

Stan Bachrack, Ph.D. Los Angeles, Managing EditorSharon J. Arkin Los Angeles

Winnie Cai GoletaPaul Chan Los Angeles

Thomas C. Corless Los AngelesKathryn M. Davis Pasadena

Paul J. Dubow San FranciscoSaji Dias Gunawardane Santa Barbara

Russell Leibson San FranciscoThomas J. McDermott, Jr. Palm DesertHon. Wm. F. Rylaarsdam Santa Ana

Jill Jackman Sadler Paralegal SupportBenjamin G. Shatz Los Angeles

Hon. Helen Williams San JoseSusan E. Anderson Wise Long Beach

Joan Wolff San Francisco

LITIGATION SECTION EXECUTIVE COMMITTEELisa M. Cappelluti San Francisco, ChairRobert M. Bodzin Oakland, Vice Chair

Carol D. Kuluva Los Angeles, TreasurerReuben A. Ginsburg Los Angeles, Secretary

Michael A. Geibelson Immediate Past ChairFarzaneh Azouri Woodland HillsKathleen Brewer Westlake Village

David P. Enzminger Los AngelesEric P. Geismar Northridge

Ruth V. Glick BurlingameThomas Greene Sacramento

Jewell J. Hargleroad HaywardRhonda T. Hjort San FranciscoMegan A. Lewis Sacramento

Karen J. Petrulakis OaklandWilliam Seligmann Santa Cruz

Michael R. Sohigian Los AngelesEdward A. Torpoco San Jose

Donald W. Barber Whittier, AdvisorCharles Berwanger San Diego, Advisor

Paul Chan Los Angeles, AdvisorJustice Victoria Chaney Los Angeles, Advisor

Hon. Lawrence W. Crispo (Ret.) Pasadena, AdvisorTanja L. Darrow Los Angeles, Advisor

Hon. J. Lynn Duryee San Rafael, AdvisorElizabeth A. England San Francisco, Advisor

Michael Fabiano San Diego, AdvisorTerry Barton Friedman Santa Monica, Advisor

Hon. J. Richard Haden (Ret.) San Diego, AdvisorKevin J. Holl San Francisco, Advisor

Jamie A. Jacobs-May San Jose, AdvisorMark A. Mellor Riverside, Advisor

Eileen C. Moore Santa Ana, AdvisorBradley A. Patterson Irvine, Advisor

Hon. Ronald S. Prager San Diego, AdvisorNorm J. Rodich Irvine, Advisor

Jerome Sapiro, Jr. San Francisco, AdvisorHon. J. Richard Haden (Ret.) San Diego, Advisor

Hon. James P. Kleinberg San Jose, AdvisorHon. Ronald S. Prager San Diego, Advisor

e. robert (bob) wallach San Francisco, AdvisorHon. James L. Warren (Ret.) San Francisco, Advisor

Joan Wolff San Francisco, AdvisorMitch Wood Section CoordinatorAna Castillo Administrative Assistant

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Copyright 2013, State Bar of California

The opinions contained in this publication are solely those of thecontributors.

California Litigation is pleased to review original articles submittedfor publication. Articles should be 1,000-2,000 words. Please submitproposed articles – and Letters to the Editor – to John Derrick, atjd@californiaappeals.com.

To subscribe:California Litigation is mailed free to all members of the Litigation

Section of the State Bar of California. To join the Litigation Section, sendyour name, address, telephone number, and State Bar membershipnumber to Litigation Section, State Bar of California, 180 HowardStreet, San Francisco, CA 94105-1639. Section dues are $75 per yearand should be enclosed with the enrollment information.

Letters to the Editor

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that lawyers should do so. Many federal judgesare familiar with state rules and may (or may not)look unfavorably on the citation of unpublishedcases. The article sets forth other reasons whysuch citations may generally be undesirable. Butoverall, of course, there is no specific rule pre-venting such citation — except in the NorthernDistrict. (N.D. Cal. Civ. L.R. 3-4(e).)

As to that court, Mr. Bird takes the positionthat if he had “an on-point California nonpub,” hewould “not hesitate” to cite it in the NorthernDistrict, premised on citations to unpublishedstate-court decisions in that district and the NinthCircuit. This is a judgment call each lawyer mustmake, based on any given situation. But there isrisk to that approach because Northern Districtjudges do enforce their local rule: e.g., Ferretti v.

preclude the homeowner’s use of a loan mod-ification. For example, the determination thatthe property that is being foreclosed is notthe plaintiff’s primary residence has beenmade in a hasty and erroneous way. More-over, the numbers being used by the lendersare simply wrong. The income numbers areoften faulty.” (Ibid.)

The program has brought added benefitsfor homeowners. “The biggest upside forOrange County litigants is that at our media-tions we have certified housing counselorspresent and sitting with the mediator,” saidPat Pinto, Manager of the Foreclosure Miti-gation Unit at the Legal Aid Society ofOrange County. “The housing counselor asksthe homeowner certain financial questionsand determines eligibility for any existingloan modification program. When the housingcounselor confirms to the mediator that ahomeowner qualifies for a loan modificationprogram it is extremely difficult for a lenderto deny that homeowner a loan modification.”

The experience of Orange County shows

that there is a better way to deliver justice inforeclosure litigation. California courts cancreate mediation programs where homeown-ers and lenders can work out their differ-ences, without expensive and time-consum-ing litigation. Other California communitiesthat continue to suffer from consequences ofthe mortgage meltdown could benefit as well.

A wider mediation program could helpundo some of the damage caused by theforeclosure crisis by giving homeowners whohave a legitimate claim a good opportunity tomodify their mortgages, bringing fairness toforeclosures and expediting the process forboth homeowners and servicers. Banks andother home lenders and servicers shouldembrace such programs because they canavoid costly, lengthy and unnecessarylitigation.

Kent Qian is a Staff Attorney at the NationalHousing Law Project. Patrick Dunlevy is theConsumer Law Director at Public Counsel.

Letters to the Editor(Continued from Page 2)

Pfizer Inc. (N.D. Cal. 2012) 855 F.Supp.2d 1017,1023, fn. 1; Vedachalam v. Tata America Int’lCorp. (N.D. Cal., July 13, 2011, No. C-06-0963CW) 2011 WL 2747578, *1, fn. 1; Hall v. Apart-ment Inv. & Mgmt. Co. (N.D. Cal., Feb. 18, 2011,No. C 08–03447 CW) 2011 WL 940185, *1, fn. 2;Smith v. Cardinal Logistics Mgmt. Corp. (N.D.Cal., Sept. 5, 2008, No. 07-2104-SC) 2008 WL4156364, *6, fn. 5. For this reason, the authorstook the more cautious approach and did notencourage practitioners to attempt to arguearound the rule.

In sum, although no rule specifically preventsfederal courts from considering unpublished statecourt decisions most federal judges seem willingto apply California’s rule prohibiting the citation ofunpublished decisions. Even so, sometimes feder-al courts cite them, and if the need arises, lawyersmay consider citing them. The article merelypoints out reasons for caution in this regard.

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