The Citation Train Had Not Left the Station

On September 19, 2016, in Denney v. CSX Transportation, Inc., E064240, 4/2 took appellant’s counsel to task for citing a previously-published case in which review had been granted: BNSF Railway Co. v. Superior Court (2015) 235 Cal.App.4th 591, review granted July 22, 2015, S226284.   “Isn’t that permitted now?” you may ask.  According to the summary on the Supreme Court’s website:

Under amended rule 8.1105(e)(1)(B), “Grant of review by the Supreme Court of a decision by the Court of Appeal does not affect the appellate court’s certification of the opinion for full or partial publication.” This provision makes California’s practices consistent with those of the vast majority of other jurisdictions. Pursuant to amended rule 8.1105(e)(2), the Supreme Court retains authority to “order that an opinion certified for publication is not to be published or that an opinion not certified is to be published,” and it may “also order depublication of part of an opinion at any time after granting review.”

Amended rule 8.1115(e) governs citation of published Court of Appeal opinions after review has been granted by the Supreme Court. Subdivision (1) of that rule, addressing citation while review is pending, adopts what had been set out as “Alternative B” in the July 2015 request for comment, referred to above. It provides: “Pending review and filing of the Supreme Court’s opinion, unless otherwise ordered by the Supreme Court . . . , a published opinion of a Court of Appeal in the matter has no binding or precedential effect, and may be cited for potentially persuasive value only.”

However, the new rule went into effect July 1, 2016, but appellant’s brief was filed February 18, 2016, with the case considered fully briefed on April 27, 2016, according to the on-line docket.  So, while citation could have been permitted now, it was not then, hence the rebuke.  So counsel should take care to follow the rules in the effect at the time of briefing, not a rule which one anticipates the Court will adopt.