In yesterday’s Hernandez v. Restoration Hardware, Inc. decision, the Supreme Court dropped a footnote reporting that the court had “declined” a request to judicially notice some unpublished Court of Appeal opinions. The footnote raises some questions.
The Hernandez footnote relies on the general rule — stated in rule 8.1115(a) — that unpublished opinions “must not be cited or relied on by a court or a party in any other action.” But there are exceptions, both stated (in rule 8.1115 itself) and unstated, as we’ve mentioned. An unstated exception is that it’s considered appropriate in a petition for review to tell the Supreme Court about unpublished opinions demonstrating that there is a division in the lower courts about a question of law or that an issue is frequently recurring. It appears the rejected judicial notice request invoked the unstated exception.
From reviewing the Hernandez docket and also the briefing on the Supreme Court’s website, it looks like the only judicial notice request was made solely in support of the appellant’s petition for review, not her merits briefing. Also, the request specifically said the nonpubs were relevant “merely to demonstrate that the issue [raised in the petition for review] is often a focus of unpublished appellate court decisions, as well as published opinions.” The request even quoted an article explaining the unstated petition-for-review exception. [Disclosure: the article was written by then-Horvitz & Levy appellate fellow Jessica Di Palma.]
So, here are some questions the footnote raises:
- Why does the opinion mention the judicial notice request at all, if the request was only part of the petition for review, a petition the court had already granted?
- Why wasn’t the judicial notice request proper under the unstated petition-for-review exception?
- Why doesn’t the footnote explain that the request was not part of the merits briefing? Instead, the footnote suggests that it was, saying the request was to judicially notice “several unpublished Court of Appeal opinions that adopted the same rule [as some published decisions on which the appellant was relying].”
- The footnote says the court had “declined” the judicial notice request. When was the denial? Was it in connection with the granting of the petition for review? The court’s docket doesn’t say.
