On March 13, 2019, at the losing Petitioner/Appellant’s request, the California Supreme Court ordered depublication of the Sixth District’s partially published opinion in Alliance of Concerned Citizens Organized for Responsible Development v. City of San Juan Bautista (2018) 29 Cal.App.5th 424 (No. S253725); my December 3, 2018 post on the case can be found here.  Review of the decision was not sought or granted, so its result stands unaffected by the high court’s action.  The main takeaway from this decision was that the nature of a final judgment is determined by its substance and effect in resolving the claims raised in the action on their merits, rather than by any label the court attaches to it.  The grant of depublication means only that, subject to very limited exceptions, the opinion “must not be cited or relied on by a court or a party in any other action.”  (Cal. Rules of Ct., Rule 8.1115(a).)

It is, of course, impossible to determine the reasons why the Supreme Court depublishes any decision, since depublication orders do not state reasons.  Failure to meet the standards for publication is the obvious suspect here.  Court of Appeal opinions are supposed to meet certain articulated standards to be published, such as where (paraphrasing the Rules of Court) they:  (1) establish a new rule of law; (2) apply an existing rule to significantly different facts than other published opinions; (3) modify or explain or criticize with reason an existing rule; (4) put a new gloss on or criticize a constitutional, statutory or ordinance provision or court rule; (5) address or create a conflict in the law; (6) involve an issue of continuing public interest; (7) make a significant contribution to the legal literature by scholarly exegesis; (8) invoke a previously overlooked or not recently applied legal rule or principle; or (9) are accompanied by a dissent or concurrence that together with the majority opinion significantly contribute to the development of the law.  (See Rule 8.1105(c).)

The Supreme Court may simply have believed the opinion in this case failed to meet any of the standards that would render it publication-worthy.  As my prior post on the case pointed out, the opinion applied “settled law” and “well-settled legal principles” to the facts before it, so despite its extensive analysis of those rules and principles along with citations to the many cases stating them, it didn’t really break any new legal ground.  In any event, what can be said with certainty is that:  “A Supreme Court order to depublish is not an expression of the court’s opinion of the correctness of the result of the decision or of any law stated in the opinion.”  (Rule 8.1125(d).)


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