Metropolitan News-Enterprise


Monday, October 18, 2021


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Ninth Circuit Judges Spar Over Citing Unpublished Cases

Rawlinson Argues in Dissent That Court of Appeal or Appellate Divisions Opinions Not Certified for Publication Can Provide Insights As to How the California Supreme Court Would Decide Questions of State Law


By a MetNews Staff Writer


A dissenting member of a three-judge panel of Ninth U.S. Circuit Court of Appeals judges on Friday faulted her colleagues for declining to decide a diversity case to which California law applies in accordance with a decision of the California Court of Appeal, with the majority dismissing the decision by the Riverside-based division because it was not certified for publication.

The unpublished status of that Sept. 14, 2015 opinion from Div. Two of the Fourth District Court of Appeal—in Golden Eagle Insurance Corporation v. Penske Truck Leasing Co., L.P.doesn’t matter, Circuit Judge Johnnie B. Rawlinson said in her dissent, explaining that the Ninth Circuit’s task, where the California Supreme Court has not addressed an issue relating to California law, is to predict what decision it would make. An unpublished opinion, she maintained, can shed light on that.

Circuit Judges Morgan Christen and Ryan D. Nelson saw it differently, declaring in their memorandum opinion that “it would be improper for our court to rely upon this unpublished, uncitable case.”

In the decision in that case, Justice Carol D. Codrington interpreted language in a rental agreement between Penske Truck Leasing Co., L.P. and a customer. That same language was in issue in the case before the Ninth Circuit.

Wording of Agreement

Each agreement reads:

Penske Provides Coverage. If Customer elects Penske Liability Coverage, Penske agrees to provide liability protection for accordance with the standard provisions of a basic automobile liability insurance policy…with limits as required by the state financial responsibility law or other applicable statute.”

The Court of Appeal held in Golden Eagle that the policy provided such coverage as is required by California’s Financial Responsibility Law in automobile insurance policies: $15,000 per person for bodily injury, $30,000 per occurrence; and $5,000 for property damage. An insurer for the company that rented a truck from Penske had insisted that the rental agreement provided coverage for up to the $750,000 limit required by the Motor Carriers of Property Permit Act.

Dissenter’s View

Codrington wrote:

“The plain terms of this provision establish that Penske is promising to provide a basic ‘automobile liability insurance policy’ with the limits required by California’s Financial Responsibility Law.”

That opinion affirms a judgment in favor of Penske; Friday’s Ninth Circuit decision affirms a summary judgment against Penske and in favor of State Farm.

Majority’s Opinion

The majority said in the opinion on Friday:

“We agree with the district court that the Penske Provides Coverage insurance provision is ambiguous. A layperson could reasonably interpret this provision in two ways: first, to cover the commercial vehicle being rented, as State Farm urges:  or second, to cover non-commercial vehicles irrelevant to this transaction, as Defendants urge.”

Resolving the ambiguity against Penske, which drafted the agreement, Christen and Nelson said, summary judgment granted by District Court Judge Stephen V. Wilson of the Central District of California must be affirmed. Addressing Golden Eagle, they wrote:

“….California prohibits other courts from citing its unpublished  cases….That California courts have occasionally  ignored their own rule, as the dissent points out, is no reason to assume that they  would regularly do so, or adopt the reasoning of the unpublished decision in Golden Eagle….

“Ultimately, we do not apply a presumption that California courts will follow an unpublished appellate court opinion, as we do with a published opinion of a state appellate court.”

Rawlinson’s Opinion

Rawlinson accused the majority of going “astray by failing to follow the California Court of Appeal’s onpoint decision.” She protested:

“[T]he California Court of Appeal clearly, emphatically, and decisively rejected the result reached by the majority. In doing so, the court used the words ‘clear’ or ‘clearly’ repeatedly in discussing the policy provision at issue. The majority acknowledges the Court of Appeal decision, but eschews it as unpublished authority.”

The dissenter pointed out that in past decisions, the Ninth Circuit has “specifically concluded that unpublished authority informs our determination of how the California Supreme Court would decide a question of California law.” She remarked:

“After all, three California judges interpreting California law are a far more accurate barometer of how the California Supreme Court would decide this issue.”

She went on to say:

“Notably, in the six years since Golden Eagle was decided, neither the California Supreme Court nor any California Court of Appeal has questioned the decision or the analysis in that case. This silence is significant because California courts routinely express approval of or disagreement with unpublished decisions.”

The majority countered that “because California litigants and courts cannot rely on or cite to” Golden Eagle, “the absence of comment on it from the California courts is…unconvincing.”

Rawlinson was appointed by President Bill Clinton, Christen by President Barack Obama and Nelson by President Donald Trump.

The case is State Farm v. Penske Truck Leasing Co., 20-55893.


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