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Allan Favish is a Los Angeles-based attorney whose focus is on General Insurance Defense and Litigation Insurance Coverage/Reinsurance & Bad Faith Litigation.  A UCLA graduate, he received his J.D. at Hastings College of Law in 1981.

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California Courts' "Depublishing" Process

When the Court of Appeal in California makes a decision, it decides whether to publish the decision in the official reports or leave the decision unpublished and just released to the parties in the case. In either case, the decision is still binding on the parties to the case. Only about 12% of the Court of Appeal's decisions are published in the official reports. Usually, those cases that involve new legal issues or that change a previous rule of law or are otherwise noteworthy will be published. If every Court of Appeal decision were published, the law library would be bursting with many decisions of very little significance.

A decision that is published in the official reports becomes citable and can therefore establish precedent. It is improper to cite a decision that is unpublished in the official reports.

By all measures, my case should have been ordered published by the Court of Appeal, as it was. In California, there is no automatic right to have the Supreme Court review a case (except in some very limited circumstances). After the Court of Appeal decision, I only could file a "Petition for Review" with the California Supreme Court. Whether they accepted review was totally discretionary with the Supreme Court. (Once the Supreme Court grants a petition for review and makes a decision on the merits of the case, the Supreme Court's decision is published in the official reports. The Supreme Court has no power to depublish its own decision.)

But in addition to deciding whether to grant the petition, the Supreme Court also has discretionary power to order any published decision of the Court of Appeal to be depublished. If they accept a decision for review, the Court of Appeal decision is automatically depublished. But if they deny review, they can either leave the Court of Appeal decision published or order it depublished. Sometimes the Supreme Court will deny review of a Court of Appeal decision and also feel that the Court of Appeal made a mistake in publishing the decision. (Perhaps the decision was not as legally significant as the Court of Appeal thought.) It that situation, the Supreme Court will depublish the decision.

However, what happened to me demonstrates the abuse that happens under this system. A Court of Appeal decision is made. It is dealing with an legal issue that is noteworthy and unprecedented and by all measure, should be published. It is ordered published. However, the decision, although deserving of being published, is wrongly decided and contains erroneous legal reasoning. The Supreme Court, not wanting to leave a wrongly decided case on the books that can be cited in the future to the detriment of others dealing with the same law, wants the case depublished because it knows the Court of Appeal decision is nonsensical and that the losing party got dealt an injustice.

But the Supreme Court does not want to give justice to the losing party and for some reason does not want to decide the case on the merits. So the Supreme Court merely depublishes the Court of Appeal decision and denies the petition for review. The result is that a losing party is bound by a Court of Appeal decision that is so inconsistent with the law that the Supreme Court needed to protect the rest of California from that bad decision.

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