With all of the issues of first impression we face in many of these wage and hour cases, we often turn to opinions not published in official reporters, as authority for various legal contentions. We've often cited, for example, Bender v. Darden Restaurants, Inc. as authority for the right to pursue punitive damages in a meal and rest period case. Defense counsel and judges are often taken aback by what they believe to be a violation of California Rules of Court, Rule 977, which general prohibits citation of cases not published in that court's official reporter.
There is, however, ample authority that such cases can be cited as persuasive authority if they were decided in other states, or in federal courts, as long as the opinions are published somewhere, such as on Lexis or on Westlaw's federal appendix ("Fed.Appx."). The latest such case is Discover Bank v. Superior Court (2005) 134 Cal.App.4th 886, 892, where the court writes:
Moreover, the next strongest authority that we have located on the issue is the unpublished decision of the United States Court of Appeals for the Third Circuit in Lloyd v. MBNA Am. Bank, N.A. (3d Cir. 2002) 27 Fed.Appx. 82, 84 [n2] which likewise affirmed the enforcement of a class action waiver under Delaware law.
[n2] Although California Rules of Court, rule 977 prohibits citation of unpublished opinions of California's appellate courts, it does not prohibit citation of unpublished federal opinions.
Unpublished opinions are never citeable if they are California state court decisions. But if they are federal cases, they can be fair game. You might need to educate the judge a bit, though, so at least cite Discover Bank in a footnote at the end of your unpublished federal citation.
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