Amendment to California Rule of Court 977

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The California Supreme Court has amended California Rule of Court 977, with respect to citing decisions that have not appeared in a recognized reporter. The amendment clears up confusion created by a 1983 amendment to the rule. The amended rule prohibits citation to any unpublished decisions by California state courts, but does not prohibit citations to unpublished decisions from other jurisdictions. However, copies of any opinions cited that are only available from a computer-based source must be furnished to the court and all parties.

When the proposed amendment was originally published, the Court requested comment on the possibility of further amending the rule "to expressly prohibit the citation of any opinion of a federal or state court available only in (1) a computer-based source of decisional law and/or (2) a specialized or topical reporter." In an accompanying special notice to legal publishers, librarians, and others the Court states: "The implications of expressly prohibiting citation to non-paper-based sources of opinions, and also to paper-based topical or specialty reporters would appear to be significant." The Court's announcement of the new amendment noted that it had declined to adopt such a prohibition.

Text of the California Supreme Court's Request for Public Comment on the Proposed Amendment

Prior to January 1, 1983, rule 977 of the California Rules of Court provided, with certain exceptions, that "An opinion of a Court of Appeal or of an appellate department of a superior court that is not published in the Official Reports shall not be cited by a court or by a party in any other action or proceeding. . . ." (Italics added.) In 1982 (effective Jan. 1, 1983) the Supreme Court and the Judicial Council amended rule 977 by deleting the emphasized words; since that date the rule (now rule 977(a)) has provided, with certain exceptions, that "An opinion that is not ordered published shall not be cited or relied on by a court or a party in any other action or proceeding. . . ."

One year after amended rule 977 took effect, an opinion of the Court of Appeal (Appalachian Ins. Company v. Superior Court (1984) 162 Cal.App.3d 427, 437) cited a federal district court decision that was not published in the Federal Supplement but appeared in the Lexis online legal research service.

In 1993, however, another Court of Appeal (ACL Technologies, Inc. v. Northbrook Property & Casualty Ins. Co. (1993) 17 Cal.App.4th 1773, 1783, fn. 34 (ACL Technologies)) refused to consider any federal district court decisions that "have not been officially published and can only be 'accessed' by means of a computerized legal research service. . . . We believe such unpublished federal slip opinions are beyond the cognizance of California courts. The California rule against citation to unpublished opinions makes no differentiation between state and federal cases. (See rule 977(a) of the Cal. Rules of Court ['An opinion that is not ordered published shall not be cited or relied on by a court or a party. . . .'].)"

Despite this expressed view, in the following year a Court of Appeal opinion (Normal L. Krug Real Estate Investments, Inc. v. Praszker (1994) 22 Cal.App.4th 1814, 1831, fn. 5 (conc. opn. of Kline, P.J.)) cited and quoted from a federal district court decision that was not published in the Federal Supplement but appeared in the Lexis and Westlaw online legal research services.

Some four months later a different Court of Appeal (Lewinter v. Genmar Industries, Inc. (1994) 26 Cal.App.4th 1214 (Lewinter)) declined to consider a specific federal district court decision because it was not published in the Federal Supplement but in the topical reporter American Maritime Cases. The court reasoned (Id. at p. 1220, fn. 1) that "cases which have not officially been published, though accessible through computerized data bases or specialty digests such as American Maritime Cases, may neither 'be cited [n]or relied on by a court or a party. . . .' (Cal. Rules of Court, rule 977(a); ACL Technologies, Inc. v. Northbrook Property & Casualty Ins. Co. (1993) 17 Cal.App.4th 1773, 1783, fn. 34 [22 Cal.Rptr.2d 206][extending rule 977(a) to unpublished federal cases].)"

The deletion in 1982 of the words, "of a Court of Appeal or of an appellate department of a superior court," from rule 977(a) has thus led to confusion concerning the scope of the rule's prohibition against citing "opinions" that are "not ordered published." Although the amendment was intended only to simplify the text of the rule by removing language deemed to be surplusage, at least two courts have construed it to be a substantive change that extended rule 977(a) to prohibit the citation of federal district court decisions that are not published in the Federal Supplement but appear in an online legal research service or a specialized or topical reporter. In order to eliminate this confusion, the Supreme Court proposes to amend rule 977(a) by restoring to it the words deleted from it in 1982.

As thus amended, rule 977 would provide:

Rule 977. Citation of unpublished opinions prohibited; opinions ordered published by Supreme Court

(a) [Unpublished opinions] An opinion of a Court of Appeal or an appellate department of the superior court that is not ordered published shall not be cited or relied on by a court or a party in any other action or proceeding except as provided in subdivision (b).

(b) - (d) * * *

The court invites public comment on the proposed amendment.

The court also invites public comment on whether rule 977 should be further amended to expressly prohibit the citation of any opinion of a federal or state court available only in (1) a computer-based source of decisional law and/or (2) a specialized or topical reporter.

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