Last week, the Supreme Court modified the rule concerning the precedential effect and citability of published Court of Appeal opinions of which the Supreme Court has granted review. However, the rule — rule 8.1115 — was changed without altering the text of the rule itself. Instead, the revision was done by administrative order and language added to the rule’s comment. (See here.)
Because of the differences between the rule’s language on the one hand and the administrative order and the new rule commentary on the other, it would not be surprising if a sizable number of lower courts and litigants overlooked the changes because they read only the rule’s text. In an attempt to prevent that and increase awareness, the Supreme Court is now including express advisory language in its orders granting review.
When the court granted review this week in Pulliam v. HNL Automotive Inc. (see here), its order said this:
Pending review, the opinion of the Court of Appeal, which is currently published at 60 Cal.App.5th 396, may be cited, not only for its persuasive value, but also for the limited purpose of establishing the existence of a conflict in authority that would in turn allow trial courts to exercise discretion under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456, to choose between sides of any such conflict. (See Standing Order Exercising Authority Under California Rules of Court, Rule 8.1115(e)(3), Upon Grant of Review or Transfer of a Matter with an Underlying Published Court of Appeal Opinion, Administrative Order 2021-04-21; Cal. Rules of Court, rule 8.1115(e)(3) and corresponding Comment, par. 2.)
The court also on Wednesday added that explanatory language to the order it issued last week granting review in Tansavatdi v. City of Rancho Palos Verdes. So far, Pulliam and Tansavatdi are the only cases with published Court of Appeal opinions in which the court has issued straight-grant orders since the rule change took effect. Orders in grant-and-hold cases with published opinions don’t have the language. (See, e.g., People v. Flores.)
(By the way, the comment title was changed last week from “Advisory Committee Comment” to just “Comment.” Advisory committees make recommendations to the Judicial Council about rule making, among other things, but it’s the Supreme Court, not the Council, that has jurisdiction over the publication rules. (See here and here.))
The language from the review-grant orders doesn’t appear on the Westlaw versions of the two opinions, at least not yet. Nor does it appear on the opinions linked to on the Court of Appeal online dockets. (See Tansavatdi here.) What’s worse is that the dockets include the following beneath the opinion link: “Caution: For information on when opinions may be cited or relied upon, click here,” but the linked page simply says that published opinions are “[c]itable in cases or actions.” (At the top of the Tansavatdi opinion on the “Review Granted Published Opinions” page of the California Courts website, there is a reference to the new comment.)
These are kinks that can be worked out. But it seems much easier to simply amend rule 8.1115’s text to state in substance what’s in the administrative order and revised comment.
It’s fine to clarify a rule by revising a comment, as the court did in 2017. However, when the substance of the rule is being changed, the rule itself should be, well, changed.
And it might not be an involved process to amend rule 8.1115. It’s possible the court need not circulate a proposed revision for public comment before adopting the change. Public comments are solicited for substantive rule changes made by the Judicial Council (see rule 10.22), but that procedure might not apply to Supreme Court rule making.
In any event, the court could reasonably say that it’s already gone through a public comment process regarding the precedential effect to be given review-granted published opinions. There was a comprehensive — and extended — comment period in 2015 and 2016 before the court ended automatic depublication of review-granted opinions.