California Court of Appeal refuses to publish Guilex v. Pennymac case

By Neil Garfield Guliex Decison 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 […]

via Guliex: Silenced for applying the Rule of Law — Livinglies’s Weblog

That is very unfortunate that the Court did not publish this opinion.  In the course of my research I found this excellent blog post discussing the issue of unpublished opinions. Visit this link for more information: http://www.rhlaw.com/blog/citing-unpublished-opinions-the-conflict-between-the-no-citation-rule-and-judicial-notice/

It is true that California Rule of Court 8.1115(a) states that an unpublished opinion cannot be cited.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 App. 4th 212, 218, n. 14 (taking judicial notice of an unpublished opinion of the California Court of Appeal to aid in the analysis of a subsequent appeal therefrom).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.”

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.)

I will be doing further research on this issue so stay tuned.