"Not Formally Citing" Uncitable Cases

Hart v. Clear Recon Corp., No. B283221 (D2d8 Sept. 18, 2018)

A provision in a mortgage deed of trust lets the Lender take certain actions to protect its security interest in the property. They include, among other things, going to court. The provision then says that the cost of those actions can be added to the loan as principal and are subject to interest at the rate in the note. 

After Lender won a wrongful foreclosure case, it sought fees under the provision. The trial court awarded them. But that was wrong. The statute that permits a contractual award of attorney’s fees—Civil Code § 1717—applies when a “contract specifically provides that attorney’s fees . . . shall be awarded” by the court to a prevailing party. That’s not what this contractual provision was because it didn’t anticipate the court awarding anything. So the trial court gets reversed. 

The Court notes there’s no binding authority on the point. But a bunch of federal district courts have gone the same way. And one of those cases relied on a unpublished Court of Appeal case (as persuasive). Federal courts are allowed to cite those, but the Court of Appeal is generally not. Cal. R. Ct. 8.1115(a). So the Court quotes the federal case, which quotes the unpublished case, leaving the forbidden cite in quotation. It drops a footnote recognizing the non-citation rule and claims not to be “formally citing” the case. But while the Court specifically recognizes it isn’t precedent, it declines to redact the cite from the federal case quotation.

I feel kind of ambivalent about this for a bunch of reasons. First, if the only Court of Appeal case on a statutory interpretation point is unpublished, someone made a mistake. 

Second, in a sense citing the case is more transparent than the other option—just borrowing the reasoning of the unpublished case without attribution. I’m sure that happens all the time. Indeed, I will admit that, in writing briefs, I’ve sometimes tried to steer things towards an uncitable decision that’s particularly well-reasoned without citing it. (Lifting a persuasive turn of phrase that begs to be plugged into Westlaw can do the trick.)

But for courts, in particular, citing unpublished authority (even indirectly as here) can undermine the very purpose of the rule. There’s pros and cons to noncitation rules. In a large jurisdiction like California, a significant pro is precedent management. There are just a lot of California decisions. To develop the law and encourage quality advocacy, the courts and the bar should be able deeply and exhaustively research the cases on an issue. That becomes much harder when the the volume case law increases tenfold with mostly redundant decisions. The noncitation rule says you’re not being a bad lawyer if you don’t rack up the billable hours going through all that stuff. 

But if you’re a savvy advocate, your willingness to forgo that depends on your confidence that the court isn’t looking either. Because if you think a court deciding your case is going to rely on unpublished cases, whether it cites them or not, you’re damn sure going to research unpublished cases. 

Indeed, if we believe in this rationale, we’re all better off if the unpublished cases just said a whole lot less. The state constitution requires appellate decisions to “be in writing with reasons stated.” Cal. Const. Art. 6 § 4. But it doesn’t say the reasons need to be detailed. See People v. Kelly, 40 Cal. 4th 106, 121 (2006) (“A written decision does not require an extended discussion of legal principles.”). If unpublished cases didn’t look exactly like published ones with a different first footnote, there’d be way less temptation. 

Of course, cursory opinions would exacerbate the principal con of non-publication rules—the fact that precedent making tends to keep the courts honest on the law even when the fact-specific results are unpalatable. If courts can dispose of bad-facts appeals by unsympathetic parties in cursory orders that show no reasoning, that’s occasionally going to used to sweep stuff under the rug, to the detriment of the rule of law.

So as I said, ambivalent.