Depublication: How California Insurance Law Disappears

When a California Court of Appeal issues a published opinion favorable to a policyholder — one that interprets an insurance policy broadly, limits a carrier’s defense, or expands bad faith liability — that opinion becomes precedent. Other courts must follow it. Other policyholders can cite it. Attorneys can rely on it. It becomes part of the law.

Unless it disappears.

California has a procedure, unique among the states in its scope and frequency, by which the Supreme Court can order an appellate opinion “depublished.” When an opinion is depublished, it ceases to exist as citable authority. It cannot be cited in any California court. It has no precedential value. For all practical purposes, the legal rule announced in that opinion vanishes from the law — even though the decision itself remains in effect between the parties.

This process is called depublication, and it has had a profound and largely unexamined effect on California insurance law.

What Depublication Means

Under California Rules of Court, Rule 8.1125, the California Supreme Court has the power to order that a published Court of Appeal opinion be “depublished” — meaning that the opinion’s publication status is revoked. The opinion still exists as a decision between the parties (it is not reversed or vacated), but it is removed from the official reports and may no longer be cited as authority in any California state court proceeding.

California Rules of Court, Rule 8.1115(a), states the general rule: “Except as provided in (b), an opinion of a California Court of Appeal or a California 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.” When the Supreme Court depublishes an opinion, it effectively moves that opinion from the “published” category back to the “unpublished” category, triggering this citation prohibition.

How the Depublication Process Works

Any person may request that the Supreme Court depublish a Court of Appeal opinion. The request must be made within 30 days after the decision becomes final in the Court of Appeal (Rules of Court, Rule 8.1125(a)). The Supreme Court may also order depublication on its own motion.

When the Supreme Court grants a depublication request, it does not explain why. There is no written opinion, no reasoning, and no dissent. The order is a single line: “The opinion in the above-entitled matter is ordered depublished.” The legal community is left to speculate about the Court’s reasons. Did the Court disagree with the result? Did it find the reasoning flawed? Did it believe the issue needed further development before a published opinion should govern? No one outside the Court knows.

This lack of transparency is one of the most criticized aspects of the depublication process. When the Supreme Court reverses an appellate opinion, it issues a written opinion explaining why the lower court was wrong. Other courts, attorneys, and scholars can evaluate the reasoning. When the Supreme Court depublishes an opinion, no reasoning is given. The opinion simply vanishes from the body of citable law.

Who Requests Depublication?

Any interested party or person may file a depublication request. In insurance cases, depublication requests are most frequently filed by the party that lost at the Court of Appeal — and in policyholder-favorable decisions, that party is the insurance company or its counsel.

Insurance industry trade groups and associations also file depublication requests. These organizations track published appellate opinions and, when an opinion creates precedent unfavorable to carriers, can mobilize to file a coordinated depublication request supported by amicus curiae letters from multiple industry participants.

The asymmetry is structural. Insurance companies and their trade organizations have the resources, the institutional knowledge, and the financial incentive to monitor every published appellate opinion in the state and to seek depublication of those that expand policyholder rights. Individual policyholders, who typically do not have ongoing relationships with appellate counsel and who may not even be aware that depublication exists, rarely file requests to depublish carrier-favorable opinions.

The Pattern in Insurance Cases

Legal scholars and appellate practitioners have long observed that depublication in insurance cases follows a discernible pattern. Opinions that expand policyholder protections, limit insurer defenses, or impose greater accountability on carriers are depublished at rates that observers have described as disproportionate.

This does not mean that every policyholder-favorable opinion is depublished, or that carrier-favorable opinions are never depublished. But the pattern — documented by multiple California appellate practitioners and insurance law scholars over decades — suggests that the depublication process has had a cumulative, systemic effect on the development of California insurance law.

Types of Opinions Targeted

The types of policyholder-favorable opinions that have drawn depublication requests from the insurance industry include:

• Opinions broadly interpreting policy coverage provisions in favor of policyholders
• Opinions limiting or criticizing the genuine dispute doctrine as a defense to bad faith claims
• Opinions finding that insurer conduct constituted bad faith or violated the unfair claims practices statutes
• Opinions upholding significant jury verdicts against insurance companies
• Opinions addressing the scope of the duty to investigate or the duty to settle within policy limits
• Opinions interpreting exclusionary clauses narrowly, consistent with California’s contra proferentem rule
• Opinions addressing emerging coverage issues where the industry preferred that no published authority exist

The Cumulative Effect

Each individual depublication might be defensible on its own terms — perhaps the reasoning was flawed, perhaps the issue needed further development, perhaps the Supreme Court intended to address the question itself. But the cumulative effect of decades of asymmetric depublication is a body of California insurance law that has been shaped not only by what the courts have said, but by what the courts have been prevented from saying.

When a policyholder’s attorney researches an insurance coverage issue and finds no published California authority supporting the policyholder’s position, the absence of authority may not reflect the absence of judicial thinking on the subject. It may reflect the successful depublication of opinions that would have supported that very position.

The depublished opinions still exist in legal databases, marked as depublished. An attorney can read them and understand the reasoning. But the attorney cannot cite them. The reasoning cannot be used as persuasive authority. For practical purposes, the legal analysis in those opinions has been removed from the conversation.

The Academic and Professional Critique

The California depublication power has drawn sustained criticism from legal scholars, appellate attorneys, and judges. The critiques cluster around several themes:

Lack of Transparency

When the Supreme Court depublishes an opinion, it gives no reason. This is in stark contrast to the Court’s practice when it grants review, reverses, or affirms — all of which involve written opinions explaining the Court’s reasoning. Depublication allows the Supreme Court to shape the law without explaining how or why. Scholars have argued that this opacity undermines the rule of law by making legal development less predictable and less accountable.

Shadow Precedent

Depublication creates what some commentators call “shadow precedent” or “stealth legislation.” The Supreme Court effectively vetoes a legal rule without going through the normal appellate process of review, briefing, argument, and written opinion. The appellate court’s analysis is not refuted or corrected — it is simply silenced. This has been described as an exercise of judicial power without judicial accountability.

The Lobbyist Effect

Because any person or organization can request depublication, the process is susceptible to strategic use by well-resourced interest groups. In the insurance context, carriers and industry groups that routinely file depublication requests are engaging in a form of appellate lobbying — using the depublication process to shape the law in their favor outside the normal adversarial framework.

Former California Supreme Court Justice Joseph Grodin addressed this concern in academic writing, observing that the depublication process allows interest groups to influence the development of law without the safeguards of the regular appellate process. When an insurance trade group files a depublication request supported by amicus letters from multiple carriers, the Supreme Court is receiving an advocacy presentation without the opposing party necessarily having the resources or awareness to respond.

Why This Matters for Insurance Claims Disputes

For policyholders and their attorneys navigating a claims dispute, the practical implications of depublication are significant:

The Legal Landscape Is Incomplete

When an attorney researches a coverage or bad faith issue, the published body of California law they find has been filtered through the depublication process. Opinions that would have supported the policyholder’s position may have been depublished. The attorney sees an absence of authority and may conclude that the issue is unsettled or that the law does not support their client. In reality, one or more appellate courts may have already analyzed the issue and ruled in the policyholder’s favor — but those opinions are no longer citable.

Settlement Negotiations Are Affected

Insurance claims disputes are overwhelmingly resolved through negotiation, not litigation. In claim negotiations, both sides assess the strength of their legal positions based on existing authority. When policyholder-favorable authority has been depublished, the policyholder’s negotiating position is weaker — even if the legal reasoning that would support their position actually exists in depublished form. The carrier can point to the absence of published authority and argue that the law does not support the policyholder’s interpretation. The policyholder cannot respond by citing the depublished opinion.

Insurance Companies Know About Depublication; Policyholders Do Not

Insurance companies and their counsel are well aware of the depublication process and actively use it. Policyholders, and even many attorneys who do not specialize in insurance law, may never have heard of depublication. This knowledge asymmetry compounds the power imbalance in insurance disputes. The carrier knows that certain favorable opinions were depublished and understands why the law appears to be more favorable to insurers than the actual body of judicial analysis would suggest. The policyholder sees only the published landscape and may accept a weaker position as a result.

What Policyholders and Their Attorneys Should Know

Awareness of the depublication process equips policyholders and their counsel to navigate the insurance law landscape more effectively:

• Research beyond published opinions— When researching an insurance coverage issue, check for depublished opinions on the topic. Legal databases like Westlaw and LexisNexis flag depublished California opinions. Understanding the reasoning in these opinions can inform legal strategy, even if the opinions cannot be cited directly.
• Use federal court authority— When California appellate authority has been depublished on a particular issue, federal court opinions interpreting California insurance law may still be available. Federal courts sitting in diversity frequently address California insurance disputes, and their opinions are not subject to the state depublication process.
• Argue from statutory text and Supreme Court authority— When depublication has removed favorable appellate authority, build arguments from California Insurance Code provisions, the Fair Claims Settlement Practices Regulations, and California Supreme Court opinions that have not been depublished. The Supreme Court’s own opinions on bad faith and claims handling obligations remain authoritative.
• Seek publication of favorable opinions— When a policyholder obtains a favorable appellate opinion, the attorney should request that the opinion be certified for publication under California Rules of Court, Rule 8.1120. The publication request should explain why the opinion addresses an issue of public importance and contributes to the development of the law.
• Oppose depublication requests— When an insurance company files a depublication request on a policyholder-favorable opinion, the prevailing party and interested organizations should file opposition. Consumer advocacy organizations, trial lawyer associations, and other groups can file responses to depublication requests to present the policyholder perspective.
• Look to other jurisdictions— When California authority has been depublished, courts in other states may have addressed similar issues under comparable policy language. While out-of-state authority is not binding in California, it can be persuasive — particularly when the absence of California authority is the result of depublication rather than the absence of judicial consideration.

The Broader Implications

Depublication is not unique to insurance law — the Supreme Court uses it across all areas of California jurisprudence. But insurance law is one of the areas where the process has been most aggressively used, because insurance carriers have the institutional resources and economic incentive to monitor and respond to every published opinion.

The result is a body of published California insurance law that does not fully reflect the range of judicial thinking on policyholder rights, carrier obligations, and the scope of coverage. Policyholders, attorneys, mediators, and even trial judges who rely exclusively on published authority are seeing a curated version of the law — one that has been shaped, in part, by the strategic use of the depublication process.

Understanding this dynamic does not change the current state of the law. But it does change how one evaluates the legal landscape. The absence of published authority on a particular insurance issue may not mean the courts have not addressed it. It may mean that the authority was created, used strategically by one party, and then removed from the public record — leaving the law artificially incomplete.

Sources & Further Reading

• California Rules of Court, Rules 8.1105–8.1125— The procedural framework for publication and depublication of California appellate opinions, available through the California Courts website (courts.ca.gov).
• Barnett, Stephen R.— Professor Emeritus at UC Berkeley School of Law, whose scholarship on California’s publication and depublication practices is foundational. Search for Barnett’s publications on California depublication in legal databases.
• Grodin, Joseph R.— Former Associate Justice of the California Supreme Court, whose academic writing addressed the transparency and accountability concerns raised by the depublication process. Search for Grodin’s law review articles on depublication.
• Ehrlich Law Firm— A California insurance coverage firm that has discussed the impact of depublication on the development of policyholder rights in California. Search for Ehrlich Law Firm publications on depublication and insurance law.
• Pillsbury & Coleman, LLP— A California policyholder advocacy firm that has addressed the role of depublication in shaping the insurance law landscape. Search for their published analysis of depublication in insurance cases.
• California Lawyers Association— The Insurance Law Section of the California Lawyers Association has addressed depublication practices in insurance cases through continuing legal education programs and published materials. Search for CLA Insurance Law Section materials on depublication.
• Daily Journal and The Recorder— California legal newspapers that have covered depublication controversies in insurance cases over the years. Search their archives for reporting on insurance opinion depublication.