In Administrative Order 2021-04-21, the California Supreme Court issued a standing order and made two very important changes to the impact of published Court of Appeal opinions it selects for review. Notably, neither change in this Order is retroactive, nor is either specifically codified in California Rules of Court, rule 8.1115(e) – Citations of Opinions. Instead, by issuing a standing order, the California Supreme Court has effectively changed the current language of the rule pursuant to its authority to do so in rule 8.1115(e)(3).
First, the Supreme Court has ordered that, unless otherwise stated, when a published Court of Appeal opinion is transferred back to the Court of Appeal with a direction to vacate the opinion and reconsider the matter, it is automatically depublished if it “has not yet been published in the bound volumes of the Official Appellate Reports.” In the event it has been published in the bound volumes of the Official Appellate Reports, then it is “deemed to be ‘not citable’ – meaning it has neither precedential nor even potentially persuasive value.”
Second, and perhaps more striking, the Supreme Court has decided that Court of Appeal opinions it selects for review may now be cited as potentially persuasive and “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.” This change moves rule 8.1115(e)(1) even farther away from the previous requirement that opinions selected for review by the Supreme Court would be automatically depublished. Trial courts may now use their discretion to either follow the published, precedential holding of a Court of Appeal opinion or the holding of a conflicting, published Court of Appeal opinion that is being reviewed by the Supreme Court.
Importantly, this revision applies only to the holding in an opinion that is in conflict with another opinion. As the Advisory Committee Comment explains, if a published opinion on review has holdings A and B, and B is not in conflict with the holding of another published opinion, then holding B “remains ‘potentially persuasive’ only” so long as it remains not in conflict.
While this Order gives trial courts more freedom to apply Court of Appeal opinions on review that may ultimately become the law of the land, it could be viewed as having the effect of increasing the appellate courts’ workload. Trial courts that choose to apply the holding of a Court of Appeal opinion that is on review instead of a published but conflicting decision may find their rulings reversed if the Supreme Court sides with the conflicting decision. But perhaps the real benefit of this change is that the Supreme Court now has the opportunity to see how trial courts apply both sides of an issue while a matter is pending for its review.