Depublication of California Cases
What is depublication?
California Court of Appeal cases that originally appeared in the advance sheets of California Appellate Reports may, due to action taken by the California Supreme Court, become "not citable." Researchers trying to use the Cal. App. cite to locate a such a case in bound Cal. App. volumes will find the following statement on the page where the case would have begun:
"Opinion (Plaintiff v. Defendant) on pages XXX-XXX omitted."
This indicates that the case has been depublished or superseded by a grant of review.
Depublication occurs when the Supreme Court (acting under California Constitution Article VI, Sec. 14 and California Rules of Court 8.1105(e)(2)) orders that an opinion of the Court of Appeal not be officially published. Such cases do not appear in Cal. App. bound volumes and may not be cited (CRC 8.1115).
Cases may also be superseded by a grant of review. When the California Supreme Court agrees to review a Court of Appeal decision, that case is automatically not citable (CRC 8.1105(e)(1) and 8.1115), and the opinion will not appear in a Cal. App. bound volume.
NOTE: Depublished and superseded cases remain in the unofficial West's California Reporter (abbreviated as Cal. Rptr.) and on Lexis and Westlaw. The presence of a case in West's California Reporter or on Lexis and Westlaw should never be interpreted as a signal that the case may be cited.
What is the applicable authority?
Depublication: California Constitution Article VI, Sec. 14 and California Rules of Court 8.1105(e)(2).
Superseding by Grant of Review: California Rules of Court 8.1105(e)(1).
How do I find out if my case has been depublished or superseded?
The most current information is available on the official California Appellate Courts Case Information service, Lexis's Shepard's citator, and Westlaw's KeyCite. You can also call the clerk of the Court of Appeal of the district where your case was decided for current information.
California Judicial Branch Appellate Case Information Service
Go to the California Appellate Courts Case Information service. Select the District (and, for Fourth District cases, the division). Search by case name or case⁄docket number. One of the "Docket" entries will state:
To do a thorough check for depublication, also select the "Case Information " link, select the Supreme Court case number, and review the Supreme Court docket for directions not to publish the opinion.
Shepard's on Lexis
Select Shepard's, and enter the citation, e.g., 168 Cal. App. 4th 910. The Shepard's display states:
A red "stop sign" also appears on superseded or depublished cases on Lexis.
Select KeyCite and enter the citation, e.g., 166 Cal. App. 4th 1121. The KeyCite display states:
Depublished cases: "This case may not be cited." The display will also contain the phrase: "…ordered not to be officially published."
Superseded cases: "This case may not be cited." The display will also contain the phrase: "Review Granted and Opinion Superseded."
The KeyCite "red flag" will also appear on all superseded and depublished cases on Westlaw.
Both the official and unofficial reporters for California give publication status information. The official reporter is the preferred source.
California Official Reports, the "advance sheets" for Court of Appeal cases (KFC 48 .A214 Law Stacks), contains tables showing publication status. In the most recent paperback "advance sheet," check the "Cumulative Subsequent History Table" near the end of the volume. (Cases are arranged alphabetically by name.)
West's California Subsequent History Table, (KFC 47.2 .C33 Law Stacks) shows depublication and grants of review. It is updated by the "Cumulative Review, Rehearing and Hearing Table" in the front of each paperback "advance sheet" for West's California Reporter, Third Series (KFC 47 .C323 Law Stacks). Cases are arranged by Cal. Rptr., Cal. Rptr. 2d, or Cal. Rptr. 3d citation.
These print resources lag several weeks behind. To bring your research up to date, call the clerk of the court of the appellate district where your case was decided. For clerks' phone numbers, ask at the Zief Library Reference Desk, 415-422-6773.
How can I learn more about depublication?
The following offer more information about depublication:
"Questions and Answers" (on depublication). 82 Law Library Journal 641 (1990) [Access to this Questions and Answers column via HeinOnline, for USF students, faculty and staff.]
Preface to the "Cumulative Subsequent History Table," which appears in every "advance sheet" of California Official Reports (KFC 48 .A214 Law Stacks).
Martin, Daniel W., Henke's California Law Guide, 8th ed. (Newark, NJ: LexisNexis, 2006), sections 6.02 and 6.07. (KFC 74 .H46 2006 Law Open Reserve and Law Reference Desk).
Katz, Steven B., "Without Precedent (California Supreme Court's Depublication Experiment?" 24 Los Angeles Lawyer 43 (March 2001)
Barnett, Stephen R., "Depublication Deflating: The California Supreme Court's Wonderful Law-Making Machine Begins to Self-Destruct." (Special Report on California Appellate Justice) 45 Hastings Law Journal 519 (1994) [Access to Depublication Deflating… via HeinOnline, for USF students, faculty and staff.]
Grodin, Joseph R., "The Depublication Practice of the California Supreme Court." 72 California Law Review 514 (1984) [Access to Depublication Practice… via HeinOnline, for USF students, faculty and staff.]
To find more post-1979 articles, search the key word depubli* on LegalTrac. On Westlaw's Legal Resource Index (LRI) database, or in the Legal Resource Index (LEXREF;LGLIND) source on Lexis, search for depubli!