Richards v. Prieto (CCW)

[FABIO GETS GOOSED!!!]

The Cal. Rules of Court, rule 8.115(a) is not a definition of an unpublished decision. The CRPC completely prohibit citation to unpublished decisions for any purpose other than to urge an expansion or deviation from established precedent.

8.1115(a) (which I quoted) states the rule against citing unpublished opinions and these do not include unpublished federal court opinions. Where is the California rule against citing unpublished federal court opinions? Answer: nowhere.

Citing unpublished federal opinions does not violate our rules. (Cal. Rules of Court, rule 8.1115.)

Do you disagree with the California Supreme Court too?

[wolfwood]

The Cal. Rules of Court, rule 8.115(a) is not a definition of an unpublished decision. The CRPC completely prohibit citation to unpublished decisions for any purpose other than to urge an expansion or deviation from established precedent.

I spent my first year in ethics with Hawaii ODC. What that case you cited to states is an attorney should not knowingly mislead the court via citing unpublished opinions which run contrary to case law with precedental value he is or should be aware of. I don't spend a lot of time in state court so I am not very familiar with California rules but I can assure you the Bar is not going after you solely for citing to a unpublished federal case.

[OleCuss]

IIRC, Gorski cited McDonald before the opinion was handed down. It was on the order of, "Hey, we're going to win McDonald and it will mean this and that means that my case wins as well."

To my knowledge he suffered no penalty for doing this. So to me it appears you can even "cite" an undecided case.

Might not be precisely what you all are discussing, but maybe it adds a little.

[jdoane9724]

Rule 8.115(a)(b) says....

in case anyone's curious....

2013 California Rules of Court

Rule 8.1115. Citation of opinions

(a) Unpublished opinion

Except as provided in (b), 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.

(b) Exceptions

An unpublished opinion may be cited or relied on:

(1)When the opinion is relevant under the doctrines of law of the case, res judicata, or collateral estoppel; or

(2)When the opinion is relevant to a criminal or disciplinary action because it states reasons for a decision affecting the same defendant or respondent in another such action.

(Subd (b) amended effective January 1, 2007.)

<snipped for brevity>

http://www.courts.ca.gov/cms/rules/index.cfm?title=eight&linkid=rule8_1115

[sarabellum]

8.1115(a) (which I quoted) states the rule against citing unpublished opinions and these do not include unpublished federal court opinions. Where is the California rule against citing unpublished federal court opinions? Answer: nowhere.

Do you disagree with the California Supreme Court too?

There is no distinction between a federal or state case with regard to a lawyer's duty of candor. You have not cited any case or California Rule of Professional Conduct absolving an attorney of the duty of candor.

CRPC Rule 3-200 provides, "A member shall not.. present a claim or defense in litigation that is not warranted under existing law, unless it can be supported by a good faith argument for an extension, modification, or reversal of such existing law."

The sole avenue for addressing an unpublished decision is to cite to a published, controlling precedent and to make a persuasive argument urging a deviation from the controlling rule to that found in an unpublished decision. Period.

Any conduct on the part of any attorney that appears misleading to the tribunal, such as citing to an unpublished decision for any purpose other than to urge a deviation from the cited controlling precedent, violates the duty of candor:

http://apps.calbar.ca.gov/mcleselfstudy/mcle_home.aspx?testID=48

[FABIO GETS GOOSED!!!]

You are all over the place with your mis-reading of the Cal. rules of court and backpedaling lol.

Your initial claim was that citing unpublished opinions is sanctionable and when it was pointed out to you that the Cal. rule of court that prohibits citation of unpublished opinions does not apply to unpublished federal court opinions, then your argument changed to "duty of candor" i.e. ignoring controlling authority. But who in this thread was ever talking about citing unpublished opinions and ignoring controlling authority? Nobody except you. You can't cite published opinions (e.g. published opinions from other jurisdictions, published opinions that have been overruled) and ignore controlling authority for that matter. This statement of yours:

The sole avenue for addressing an unpublished decision is to cite to a published, controlling precedent and to make a persuasive argument urging a deviation from the controlling rule to that found in an unpublished decision. Period.

is incorrect as it applies to unpublished California court of appeal or Superior court appellate division opinions (which may not be cited at all except for the purposes stated at 8.1115(b)), and it is also incorrect as to unpublished federal court opinions. What rule prevents citing an unpublished federal court opinion when there is no published, controlling precedent? What rule prevents citing an unpublished federal court opinion when there is published, controlling precedent that is not directly adverse?

So you can cite unpublished federal court opinions pretty much anytime you like -- even when there is published, controlling precedent that is directly adverse -- and so long as you are not violating your "duty of candor" or some other ethical rule there is no basis whatsoever for sanctions. If you had started with "violating the duty of candor is sanctionable" no one would have disagreed with you but it would have been as germane to the discussion as the violation of any other random ethical rule that nobody was talking about.

[Apocalypsenerd]

So I think FGG just confirmed my suspicions.

[Jongage]

Bump to keep alive. Can this be made a sticky, hopefully the decision will come this month, as December being one year.

[rivraton]

Looks like they have "pocketed" this one...Can't legitimately rule against us so no ruling at all...

[Paladin]

Looks like they have "pocketed" this one...Can't legitimately rule against us so no ruling at all...

IIRC, folks who keep track of how long the various CAs take w/these sorts of cases say that we should not worry that CA9 is trying to pull a Palmer on us until after 20 months have passed w/o a decision. IOW, if by 2014 Oct 01 there hasn't been an opinion published, start grumbling.

fwiw I started a thread where I edit & update the OP re. the status of federal carry cases at:

http://www.calguns.net/calgunforum/showthread.php?t=812950

[M. D. Van Norman]

We gonna get Palmerized.

[Funtimes]

We gonna get Palmerized.

That would be really screwed up for a preliminary injunction lol.

[fizux]

I was talking to Alan Gottlieb at the SHOT show yesterday. He told me that we are real close, and to expect a decision in two weeks.

[Paladin]

I was talking to Alan Gottlieb at the SHOT show yesterday. He told me that we are real close, and to expect a decision in two weeks.

Did you/he pick the infamous CGN/CGF just to yank our chain or are you serious?

If serious, and if we get a WIN before the end of the month, that would be AWESOME!!!

ETA: Does he expect a win or loss???

[fizux]

Did you/he pick the infamous CGN/CGF just to troll us or are you serious?

If serious, and if we get a WIN before the end of the month, that would be AWESOME!!!

He did.

Mostly to troll... but also to rub in the fact that I'm here.
Now, I understand why it is the best gun show of the year -- no @#$!ing zappers.

Actually, he seemed to think that Drake was the one to watch (other than the fact that it happens to be next).