Two weeks ago, when I reported on the Supreme Court's grant of review in In re Tobacco II and Pfizer, I pointed out that the two Court of Appeal opinions were "no longer citable as precedent." Since then, I've received more than one email from readers asking why this is, and whether the two opinions have any remaining precedential value. I'm happy to provide more information about this.
Under Rule of Court 977(a), only "published" opinions are citable as precedent:
Except as provided in (b) [relating to citation in the same action for purposes of res judicata, collateral estoppel, or law of the case], an opinion of a California Court of Appeal or superior court appellate division that is not certified for publication or ordered published must not be cited or relied on by a court or a party in any other action.
(Emphasis added.) Rule of Court 976(d)(1) states that when the Supreme Court grants review, the Court of Appeal's opinion is no longer considered "published":
(d) Changes in publication status
(1) Unless otherwise ordered under (2), an opinion is no longer considered published if the Supreme Court grants review or the rendering court grants rehearing.
(Emphasis added). Accordingly, when the Supreme Court grants review, the Court of Appeal's opinion may no longer be cited (except in the same action) and no longer operates as binding precedent.
An opinion's status as "published" may be restored after review is granted only if the Supreme Court takes action under subdivision (2) of Rule 976(d). The Supreme Court may "order publication of an opinion, in whole or in part, at any time after granting review." Rule of Court 976(d)(2). We saw such a publication request in Branick. The request, which was filed after the Supreme Court issued its opinion, was denied.