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Guliex: Silenced for applying the Rule of Law

That is very unfortunate that the Court did not publish this opinion. It is true that California Rule of Court 8.1115(a) states that an unpublished opinion cannot be cited. However it is also true that this conflicts with Evidence Code section 452(d)(1) which states that judicial notice may be taken as to the “[r]ecords of any court of this state.” One California Court of Appeal recognized the conflict with Rule 8.1115(a), stating that “[a]lthough [a] Court of Appeal opinion . . . is not published, we may take judicial notice thereof as a court record pursuant to Evidence Code section 452, subdivision (d)(1).” Gilbert v. Master Washer & Stamping Co. (2001) 87 Cal. App. 4th 212, 218, n. 14 (taking judicial notice of an unpublished opinion of the California Court of Appeal to aid in the analysis of a subsequent appeal therefrom).

Another issue is that in deciding the conflict between Rules of Court, Rule 8.1115(a) and Evidence Code section 452(d)(1), the California Constitution suggests that the statutory evidence code must take precedence.”

Visit this link for more information: http://www.rhlaw.com/blog/citing-unpublished-opinions-the-conflict-between-the-no-citation-rule-and-judicial-notice/

Specifically, California Constitution Article VI, § 6(d), which provides the authority of the Judicial Council to promulgate the Rules of Court, states that the “council shall . . . adopt rules for court administration, practice and procedure, and perform other functions prescribed by statute. The rules adopted shall not be inconsistent with statute.” (Emphasis added.)

Livinglies's Weblog

By Neil Garfield

The Justices of the Fifth District Court and courts especially in California have been interpreting procedural rules, laws of evidence, statutory and common law differently in foreclosure cases than they do in other cases where the issues are identical as to ownership and authority to collect a debt. The Guliex decision, in this case, returns us to the rule of law in California, and hence the nation, to the extent courts follow the Courts in California. The decision inherently conflicts with other decisions in California, even if the decision is not facially apparent.

In this case, the court merely stated the law as it always was before the foreclosure crisis ( and still is in all other cases). It provides great clarity and its effect will be to reduce the volume of foreclosures generally and wrongful foreclosures especially. The decision, in this case, changes the…

View original post 351 more words

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