Alicia T. v. Cty. of Los Angeles, 222 Cal. App. 3d 869, 881, 271 Cal. Rptr. 513, 518 (Ct. App. 1990), modified (Aug. 16, 1990)
Take great care in citing cases that are unpublished or depublished. It’s a fast road to sanctions and paying high fees. Take for example citing In re Zoey T., No. B276363, 2016 WL 7474034 (Cal. Ct. App. Dec. 29, 2016). This is a great case with a favourable fact for a no reasonable services contest at the .22 hearing. However, it remains unpublished despite an appeal to the Supreme Court. Because it remains unpublished, it is un citeable. However, some may go as far as to cite to the logic in Zoey T; however, counsel may also be sanctioned for citing to the logic.
But what seems truly bizarre to outsiders is another California peculiarity: how our appellate opinions can vanish into thin air. As all know opinions not certified for publication "must not be cited or relied on by a court or a party in any other action." (Rule 8.1115(a).) The court may order depublication for the protection of the parties.
Alicia T. v. County of Los Angeles (1990) is a dependency case where the family’s counsel was cited with unreasonable failure to comply with California Rules of Court as they relied on a n uncitable case. The court warned them of their error, but counsel did not desist in citing the opinion. Due to counsel’s failure to remove the offensive citation, the court awarded sanctions sanctions payable to the clerk of this court. Although counsel may have referred to the case as they deem the legal theory favourable, they are not allowed to cite to any part of the case.
The opening brief does not contain any citations to the record on [222 Cal. App. 3d 885] appeal and, most glaringly, relies extensively on a case our Supreme Court has ordered not to be published in the official reports.
Counsel when citing once more to the same case despite being ordered not to as the case was not published in the official reports, added a caveat that they were not relying solely on the case and that the allegations they were pleading were dehors the record. However, counsel cited the unpublished case eight times in the brief and discussed seriatim for four pages.
The court reminded counsel that the proper case which covers the issue of whether a governmental agency are granted qualified immunity in dependency is in re Jenkins v. County of Orange (1989) 212 Cal.App.3d 278, 260 Cal.Rptr. 645.
The court notes that in many circumstances errors in trial briefs have several remedies: (a) returned to counsel for correction and redeposited with the court within a specified time, (b) ordered stricken with leave to file a new brief within a specified time, or (c) considered as if properly prepare. However, given that counsel did not desist in their efforts to cite, the court opined that this warranted more severe punishment than California Rules of Court, rule 18 suggests and fined counsel $750 for their non compliance.
The court noted that impositions of high sanctions does not occur in a haphazard or spontaneous manner but instead used to emphasize the substantial additional time required to craft an opinion when the court rules are ignored as flagrantly as they are herein. The court values its limited resources and wishes to discourage future conduct via high sanctions.
Citing the unciteable case may be allowed if the legal issue at stake is going to be whether it affects another party who are similarly situated. This is a very strict definition that cannot be applied to any case. For example, when building a case for using an uncitable case counsel need be aware of any exceptions like “nonmutual offensive collateral estoppel is not available against a government entity”. In Alicia T. v. County of Los Angeles, the record that is available does not indicate that counsel proffered a solid exception for relying on an uncitable case nor did they produce one when the court rejected their use and ordered them to remove the offensive citation.
Juvenile Dependency and