A 2016 Supreme Court rules change means that granting review in a case no longer automatically depublishes the case’s Court of Appeal published opinion (rule 8.1105(e)(1)(B)), but, pending review, the opinion loses its precedential effect (rule 8.1115(e)(1) [opinion “has no binding or precedential effect, and may be cited for potentially persuasive value only”]).
The new rules also provide that, after review, a Court of Appeal opinion’s 
precedential effect might be revived. However, there’s apparently a gap in the rules creating uncertainty about the post-review precedential status of opinions in certain cases when the Supreme Court has dismissed review.
Rule 8.1115(e)(2) takes care of most — but not all — situations after the Supreme Court is done with a case in which it has granted review: “After decision on review by the Supreme Court, unless otherwise ordered by the Supreme Court . . . , a published opinion of a Court of Appeal in the matter, and any published opinion of a Court of Appeal in a matter in which the Supreme Court has ordered review and deferred action pending the decision, is citable and has binding or precedential effect, except to the extent it is inconsistent with the decision of the Supreme Court or is disapproved by that court.”
If the Supreme Court has issued an opinion in the case, or if the case was a grant-and-hold and there’s been a decision in the lead case, (e)(2) has you covered. But what about when review is dismissed and there’s been no Supreme Court “decision on review”?
For example, reviews were dismissed because of settlements in Ace American Insurance v. Fireman’s Fund Insurance and Hayward v. Superior Court, and the court dismissed review in In re George F. because of mootness. The Court of Appeal opinions remain published despite the dismissals of review (rule 8.528(b)(3)), but do they again have binding and precedential effect, or do they forever retain their pending-review status of being persuasive only? The rules don’t say.
Can’t the Supreme Court fix things when it dismisses review in those types of cases by specifying the precedential effect of the Court of Appeal opinion? It doesn’t look like it. Rule 8.1115(e)(3) allows the Supreme Court to make an order specifying precedential effect, but only regarding “an opinion covered by (1) or (2),” i.e., those published Court of Appeal opinions in cases “[p]ending review and filing of the Supreme Court’s opinion” ((e)(1)) or “[a]fter decision on review by the Supreme Court” ((e)(2)). A case in which review is dismissed without any decision doesn’t fall into either category.
The Supreme Court could depublish the Court of Appeal opinion after dismissing review (rules 8.1105(e)(2), 8.1125(c)), which would make the opinion not citeable even for its persuasive value (rule 8.1115(a)). However, the Supreme Court didn’t do that in the Ace American, Hayward, or George F. cases, and in fact denied a depublication request in Hayward (a request which was opposed by the author of the Court of Appeal opinion). Superior court judges can be excused if they’re unsure how much weight to give those opinions.
