Depublication of California Cases

California Research #4 - Dorraine Zief Law Library Handout

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This indicates that the case has been depublished or superseded by a grant of review.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).* (See footnote below)

Cases may also be superseded by a grant of review.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.* (See footnote below)

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How do I find out if my case has been depublished or superseded?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 up-to-date resources for checking the publication status of California Court of Appeal cases are LEXIS's Shepard's citator, WESTLAW's KeyCite, and the official California Appellate Courts Case Information service. These services report changes in case status within a matter of days. You may 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 (http://appellatecases.courtinfo.ca.gov/). Select the District (and, for Fourth District cases, the division). Search by case name or case?docket number. One of the "Docket" will state:

• Superseded cases: "Petition for review granted."

• Depublished cases: "Opinion decertified by Supreme Court order." or "The Reporter of Decisions is directed not to publish in the official reports?"

Shepard's on Lexis

Select Shepard's, and enter the citation, e.g., 140 Cal. App. 4th 261. The Shepard's display states:

• Superseded cases: "Not Citable; Superseded by Grant of Review."

• Depublished cases: "?ordered Not Published."

A red "stop sign" also appears on superseded or depublished cases on Lexis.

KeyCite on Westlaw

Select KeyCite and enter the citation, e.g., 140 Cal. App. 4th 1001. 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.

Manual research

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, 7th ed. (Newark, NJ: LexisNexis/Matthew Bender, c2004), pages 172-179, 197. (KFC 74 .H46 2004 LAW REFERENCE DESK).

• Katz, Steven B., "Without precedent (California Supreme Court's depublication experiment?" 24 Los Angeles Lawyer 5 43 (March 2001)

• Barnett, Stephen R., "Depublication deflating: the California Supreme Court's wonderful lawmaking machine begins to self-destruct." (Special Report on California Appellate Justice) 45 Hastings Law Journal 519 (1994)

• Grodin, Joseph R., "The depublication practice of the California Supreme Court." 72 California Law Review 514 (1984)

To find more post-1979 articles, search the key word depubli* on LegalTrac. On Westlaw's LRI database, or in the Legal Resource Index (LAWREV;LGLIND) source on Lexis, search for depubli!

* Warning! Depublished and superseded cases remain in the unofficial West's California Reporter, and on Lexis and Westlaw. The presence of a case in Cal. Rptr., Cal. Rptr. 2d, Cal. Rptr. 3d, Lexis or Westlaw should never be taken to mean that the case may be cited.

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[revised 4.25.2007]