Nearly every fabricated citation story so far has been a civil one. A plaintiff loses money, a defendant pays fees, a lawyer writes an apology, and the harm gets measured in billable hours.
Kjoller v. Superior Court is not that. The party accused of putting fabricated authority in front of a court is a prosecutor, the person on the other side of the caption is a criminal defendant, and the California Supreme Court has now told a Court of Appeal that it does not get to wave the question away.
What The Supreme Court Actually Did
At its conference on January 14, 2026 the California Supreme Court took up Kjoller v. Superior Court, S293723. The petitioner had asked the Third District Court of Appeal to issue an order to show cause why sanctions should not be imposed on the Nevada County District Attorney over the content of a filing. The Third District denied that request summarily, which in appellate practice means without explanation.
The Supreme Court granted review and directed the Court of Appeal to issue the order to show cause. Its order added that the Court of Appeal may appoint a referee to hear evidence and make findings on certain specified questions, which is the machinery a court reaches for when it expects a factual dispute it intends to resolve rather than avoid.
Read that sequence again, because the procedural posture is the entire story. A higher court did not sanction anybody. It ordered a lower court to hold the hearing it had declined to hold.
The Allegation
The petition for review stated that the District Attorney's response had cited to fabricated authority, misrepresented the record, and mischaracterized the few actual authorities. It further alleged that the same office had previously filed briefs citing fabricated authority in at least two other cases.
The District Attorney's answer is the sentence worth sitting with: There are errored citations; however, the errored citations belong to real cases.
That is a defense with a specific shape. It concedes the citations are wrong and then asks the court to treat wrongness as clerical. A citation that points at a real case which says something else is not a typo. It is a representation to a court that a proposition has support, made by someone who did not check.
Why A Criminal Case Changes The Arithmetic
In a civil dispute a fabricated citation costs the other side the hours it takes to discover the fabrication. Somebody pays for those hours and the file closes.
In a criminal case the other side is a person whose liberty is the thing being argued about. An amicus letter from 22 academics put the point plainly: Left uninvestigated and unchecked, the use of false or misleading legal authority in the criminal justice system, whether generated by AI or not, will have grave consequences.
Notice the clause those academics went out of their way to include. Whether generated by AI or not. It is the same move the Sixth Circuit made in Whiting v. City of Athens, and it is becoming the settled judicial position: the tool is not the violation, the unverified representation is.
The Summary Denial Is The Part Nobody Talks About
Strip the technology out and what remains is an accountability failure with a much older shape. A litigant said a filing contained invented authority. The intermediate appellate court declined to look. It took a petition to the state supreme court to force a hearing that, on the petition's own description, should have been routine.
Every jurisdiction now has some version of a fabricated citation problem, and every jurisdiction is discovering that the bottleneck is not the rule. Rules against misrepresenting authority to a court are ancient and universal. The bottleneck is whether anyone with power over the file is willing to spend a week of the court's time finding out.
What This Means If You File Anything
The referee mechanism is the thing to watch. Appointing a referee to take evidence turns a paper fight about a footnote into a proceeding with witnesses and findings. That is expensive and slow and it is exactly what makes a sanctions record stick.
Repeat allegations travel. The petition did not stop at this filing. It alleged the same office had done it in at least two other cases. A pattern claim survives a single bad brief and it is the kind of thing a referee is well placed to establish or dismantle.
Errored citations belong to real cases is not a defense. If it were, the standard would be that a lawyer must merely gesture at real case names. The standard is that every proposition attributed to a case is one the filer has read and verified.
The Receipts
Kjoller v. Superior Court, S293723, Supreme Court of California, conference of January 14, 2026. The Court granted review and directed the Court of Appeal, Third Appellate District, to issue an order to show cause regarding sanctions, which it had previously denied summarily, and noted that the Court of Appeal may appoint a referee to hear evidence and make findings on certain specified questions. The quoted allegations come from the petition for review, and the quoted response from the District Attorney's answer, as reported in the appellate practice coverage of that conference. The amicus letter signed by 22 academics is quoted as reported in the same coverage.