I completely agree with this.
It's a short enough opinion -- around fifteen pages -- that you can read the whole thing for yourself. Plus it's not even that complicated. Suffice it to say that when you sell various products to various different entities (including government entities) deceptively you're not immunized from liability under the UCL merely because you've been doing it for a long time. Even if one governmental entity knew that you were being sleazy many years ago, that doesn't mean that a lawsuit about your sales within the past four years (which is the UCL's limitations period) is barred by the statute of limitations. Sorry. Just doesn't work that way.
I also largely agree -- and this seems an obvious point -- that you can't rely upon and cite Court of Appeal cases in which review has been granted. Why not? Because there's a rule that says so. A crystal clear one. One that neither the appellee nor the trial court seemed to be able to follow. Something for which the Court of Appeal rightly took them to task.
That said, it's probably permissible to mention an unpublished opinion as "shorthand" for the arguments that are contained therein. Or at least I don't see the problem with it. If an opinion mentions Arguments X and Y and Z, and spends 22 pages articulating them, I guess you could simply retype every single word. (Though maybe that'd be plagiarism!) But why kill trees without a good reason? Why not say: "I know it's not precedent, but I like the arguments at ________." Whether the blank is filled in by an out-of-state case, a law review article, or a case that's now up in the California Supreme Court.
Similarly, I can understand why a trial court might refer to those arguments as shorthand by referring to the now-unpublished case. "I agree with X" -- when X articulated Arguments 1 through 20 -- seems a lot faster than saying "I agree with Arguments 1, 2, 3 . . . and 20." Perhaps that violates the rule. A rule that in many ways treats various opinions as taboo. We know they're there. We all know what they say. We've all read them and have our take. But we're not allowed to say. We just talk around the issue using code words. Like a crazy aunt at Thanksgiving.
Regardless, the Court of Appeal gets this one right. And I like the opinion. A lot.
