Reconsideration: A Possible Side Effect of Depublication

by Archer Norris PLC

Under the California Rules of Court, rule 8.1125(c), the Supreme Court has the discretionary power to depublish an opinion at any time. Recently, the California Court of Appeal held that, when this happens, depublication can constitute “a change in the law” sufficient to warrant reconsideration under Code of Civil Procedure section 1008. Farmers Insurance Exchange v. Superior Court (Wilson) (2013) 218 Cal.App.4th 96, 105 (Farmers). And in the unusual circumstances presented by Farmers, it necessarily did. 

In Farmers, the trial court granted a motion for class certification based on a single appellate court opinion: Harris v. Superior Court. Shortly after the class certification motion was granted, the Supreme Court depublished Harris. By this time, the 10-day period for the defendant to seek reconsideration of the trial court’s order had lapsed. (See Code Civ. Proc., § 1008, subd. (a).) So instead, the defendant filed a motion asking the trial court to exercise its discretion to reconsider the order granting class certification on its own motion. (See Code Civ. Proc., § 1008, subd. (c) [permitting a trial court to reconsider its prior order if it determines that “there has been a change of law” that warrants reconsideration].) The trial court determined that it was precluded from reconsidering its prior order granting class certification, reasoning that the depublication of Harris could not constitute a change in the law because depublication does not express approval or disapproval by the Supreme Court. (See Cal. Rules of Court, rule 8.1125(d) [“A Supreme Court order to depublish is not an expression of the court’s opinion of the correctness of the result of the decision or of any law stated in the opinion”].) 

The defendant sought review by petition for writ of mandate and the court concluded that reconsideration should have been granted. First, the court explained that depublication nullifies the opinion as precedent and makes it is as if the opinion had never been written. Thus, when Harris was depublished, it disappeared from the law and changed the applicable legal context surrounding the trial court’s decision. In other words, “a change of law had occurred simply from the fact that the existing body of precedential law had changed . . . .” Therefore, the trial court erred in concluding that it was precluded from reconsidering its prior order granting class certification.

The court then went on to explain why, under the unique circumstances present in Farmers, reconsideration must be granted. When determining whether to reconsider a prior order based on a change of law, trial courts weigh the following factors: (1) the importance of the change of law; (2) the timing of the motion; and (3) the circumstances of the case. Weighing these factors in Farmers, the appellate court noted that the entire legal justification for the trial court’s certification order disappeared with the depublication of Harris and that nothing had occurred in the case in reliance on the certification order. Therefore, the court issued a writ of mandate directing the trial court to reconsider the motion for class certification in the absence of Harris

Admittedly, depublication is a rare occurrence and the situation in Farmers is particularly unusual with the class certification grant resting on a single (now depublished) case, but there is still a lesson (albeit a narrow one) to be gleaned from this decision: always keep a close eye on the subsequent history of any cases relied upon by the trial court in entering an order. Under the right circumstances, the subsequent depublication of an opinion could lead to reconsideration.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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