Here is the final version which will be filed with the Court of Appeals today.
I've reviewed the Minute Order from the August 1, 2017 hearing on my Outrageous Government Conduct motion. Prior to that hearing, State Bar Complaints regarding all lawyers involved in this situation will be filed.
Robert Kory has no standing whatsoever to pursue this appeal.
I've attached a word doc.
For the record, Stephen Gianelli continues with his public attack on Truth Sentinel and endless attempts to elicit information about IRS, who I have communicated with at IRS, etc. I've sent all updated posts to IRS, FBI, and DOJ so as to memorialize them.
B267409
IN THE CALIFORNIA COURT OF APPEAL
SECOND APPELLATE DISTRICT
DIVISION SEVEN
L.C.
Plaintiff and Respondent
v.
K.L.
Defendant and Appellant
Appeal from the Los Angeles Superior Court
Case Number: BQ033717
Honorable B. Silverman, Judge Presiding
APPELLANT’S OPPOSITION TO RESPONDENT’S
REQUEST FOR JUDICIAL NOTICE
______________________________________________________________________________
Kelley Lynch
In Propria Persona
1754 N. Van Ness Avenue
Hollywood, California 90028
TABLE OF CONTENTS
TABLE OF AUTHORITIES …………………………………………………………… 3
APPELLANT’S OPPOSITION TO RESPONDENT’S
REQUEST FOR JUDICIAL NOTICE …………………………………………………. 6
MEMORANDUM OF POINTS AND AUTHORITIES ………………………………... 6
DECLARATION OF KELLEY LYNCH ……………………………………………….. 18
EXHIBITS APPELLANT OBJECTS TO TAKING OF JUDICIAL NOTICE
OF BY THE COURT OF APPEALS …………………………………………………… 43
PROOF OF SERVICE …………………………………………………………………... 44
INTRODUCTION
Appellant Kelley Lynch hereby opposes the Request of Respondent Robert Kory, Trustee for the Cohen Family Trust, that this Court take judicial notice of nine exhibits and the purported facts contained therein. The request should be denied for the reasons set forth in this Opposition. That would include, but is not limited to, the fact that the exhibits at issue bear no relevance to the Court’s review of the Trial Court’s decision, far exceed the bounds of the record, were not adjudicated and/or subjected to confrontation and cross-examination, are wholly in dispute, contain extensive inadmissible hearsay, are unduly prejudicial, and serve as nothing other than character assassination. The central issue before this Court in this appeal has to do specifically with the Trial Court’s determination that the California domestic violence order is valid, legal, and constitutional.
This Court should not take judicial notice of exhibits 2, 3, 4, 5, 6, 7, 8, 9, and 10. In addition, should this Court find that judicial notice is inappropriate, Appellant respectfully asks this Court to strike the relevant portions of Respondent’s Reply Brief or, in the alternative, strike Respondent’s Reply Brief in its entirety and order that it be re-filed in compliance with California Rule of Court, rule 8.204(a)(2)(C).
MEMORANDUM OF POINTS & AUTOHRITIES
On August 26, 2017, Respondent Robert Kory, Trustee for the Cohen Family Trust, filed a Reply Brief that relied extensively upon highly prejudicial, irrelevant and immaterial documents, introducing substantial hearsay and unsubstantiated purported facts into this appeal. To support his argument and expansion of the ever-developing narrative, Respondent filed a Request for Judicial Notice informing this Court as follows: “The documents included in this request for judicial notice are court records relevant to establish that KL has repeatedly violated the Permanent Protection Order, and that both the California and Colorado courts have already rejected the contentions the KL makes on appeal.” Appellant is not on trial before this Court with respect to alleged violations f restraining orders in California and Colorado. Any such violation should be heard by a panel of 12 jurors in the appropriate venue. Furthermore, contrary to Respondent’s contentions, the Colorado Court has not addressed the legality and/or constitutionality of the California domestic violence order and/or alleged registration of that Court’s order with Los Angeles Superior Court. This appeal was filed in response to the Trial Court’s denial of Appellant’s motion to vacate the California domestic violence order and challenged the Trial Court’s denial of same.
Appellant is therefore filing this Opposition to Respondent’s Request for Judicial Notice and asks this Court to deny the request and strike the relevant portions of the Respondent’s Reply Brief supported by the exhibits at issue and/or order that it be re-filed with those portions removed. With the exception of two exhibits, Exhibit 1[Certified copy of Colorado Permanent Civil Protection Order issued September 2, 2008] and Exhibit 11 [Certified copy of Register of Actions for case number 2008 C 000776, printed August 3, 2017], which Appellant has no objection to this Court taking judicial notice of, Respondent has failed to justify the request for judicial notice of the outside evidence, all in dispute and entirely non-confronted hearsay in nature for the most part, it extensively relies upon in its opening brief.
Many attorneys apparently believe that every scrap of paper that is generated … constitutes the proper subject of judicial notice. Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc., 133 Cal.App.4th 26, 31 (2005). Treating evidence admitted by judicial notice as conclusive raises important concerns because, while judicial notice promotes efficiency and reduces litigation costs, it can severely undermine a party’s ability to fairly contest a dispute. Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882. Accordingly, though the Evidence Code permits courts to judicially notice the decisions and records of the courts of any state, judicial notice does not extend to the truth of hearsay statements contained in such documents. Hearsay statements, including those in affidavits and declarations, are reasonably subject to dispute and as a result, not judicially noticeable. Lockley, supra, 91 Cal.App.4th at p. 882. The content of the exhibits at issue herein [Exhibits 2, 3, 4, 5, 6, 7, 8, 9, and 10] are subject to interpretation, wholly in dispute, rely on extensive hearsay and fabrications, have not been litigated, were not subjected to confrontation and/or cross-examination, are irrelevant and immaterial to the appeal itself, and therefore are not properly subject to judicial notice. The “underlying theory of judicial notice is that the matter being judicially noticed is a law or fact not reasonably subject to dispute.” Lockley, supra, 91 Cal.App.4th at p. 882.
The general rule that appellate review is limited by the record made in the court below and, with few exceptions, documents and other factual material that were not submitted to the court of original instance will not be considered on appeal. It is only proper for a court to take judicial notice of the fact of the existence of a matter of public record, rather than the truth of the facts recited therein. Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). Appellate review of facts developed outside the record undermines the most basic function of a trial by usurping the reliability of the fact finding process. Factual reliability and accuracy depend on procedures unique to the trial process. The trial is the central event because it uniquely requires fact finding from a 12 member jury, a unanimous verdict, proof beyond a reasonable doubt, application of the rules of evidence, and instructions on how to weigh and consider evidence. See generally People v. Partida (2005) 37 Cal.4th 428, 448 citing Freytag v. Commissioner (1991) 501 U.S. 868, 895 (conc. Opn. of Scalia, J.) quoting Waingwright v. Sykes (1977) 433 U.S. 72, 90.) As such, both the Federal and California constitutions require trial procedures which ensure “reliability of the fact finding process. People v. Mincey (1992) 2 Cal.4th 408, 445 citing Ford v. Wainwright (1986) 477 U.S. 399, 411; People v. Geiger (1984) 35 Cal.3d 510, 520; People v. Ramos (1979) 25 Cal.3d 260, 268 [the California Constitution, Article 1, section 7 and 15, guarantee a “fundamentally fair decision-making process”]. As articulated in People v. Riser (1956) 47 Cal.2d 566, 586, the State has no interest in convicting an accused based on the “testimony of witnesses who have not been rigorously cross — examined and thoroughly impeached as the evidence permits.” Colorado courts have their own set of appellate decisions with respect to judicial notice that would apply to all Colorado court documents submitted with the Respondent’s Request for Judicial Notice.
Here, Exhibits 2, 3, 4, 5, 6, 7, 8, 9, and 10 were never subjected to the fact-finding mechanisms of a trial which are in place to ensure maximum fairness and reliability. These exhibits are wholly irrelevant and immaterial to the issues before this Court and that includes, but is not limited to, motions, pleadings, letters, affidavits and/or other documentation. Respondent cannot now circumvent these fundamental constitutional safeguards in an attempt to try multi-jurisdictional issues at the appellate level free from the adversarial process. Respondent is not simply asking this Court to take judicial notice of one indisputable fact. Rather, Respondent has submitted, for the first time on appeal, a complex web of so-called facts – all contested and disputed by Appellant - consisting of approximately 122 pages of materials on issues of great controversy, and based upon egregious fraud upon numerous courts. Moreover, this admissibility problem is compounded by the fact that none of the evidence at issue has ever been introduced at an actual trial and, thus, was never subject to confrontation and/or cross-examination.
The protected party, Leonard Cohen, passed away on November 7, 2016 and Kory & Rice, LLP were not parties to the original Colorado order. The Boulder Combined Court order (Case No. C007 2009M-002691) – which Appellant maintains is an unconstitutional order - included a stay away provision specifically with respect to the former California premises of the former Law Office of Robert B. Kory, LLP. The order does not extend to Kory & Rice, LLP and/or their current place of business. On the other hand, the California domestic violence order (Los Angeles Superior Court Case Nos. BQ033717; 2CA04539; and 6CJ03685) contains no terms, conditions, additional stay away provisions with respect to any premise, and/or an expiration date.
This situation has placed Appellant in the prejudicial position of having to rebut an extraordinary amount of evidence and/or information not before the Trial Court and which extends to matters in two jurisdictions. Consequently, the exhibits being submitted for the first time on appeal compromise Appellant’s Sixth Amendment right to due process, confront and cross-examine witnesses, raise other serious constitutional issues, are irrelevant and in dispute, and contain considerable inadmissible hearsay. Therefore, with the exception of Exhibits 1 and 11, this Court should decline to take judicial notice of those facts relied upon by Respondent that are outside the record on appeal.
The Appropriate Application of Judicial Notice
Judicial notice is a doctrine of evidence which, when properly used, could help establish important facts beyond dispute. The application of judicial notice can also be the subject of abuse and misuse. In the instance case, there is not one fact that is not in dispute.
A Brief History
Judicial notice, one of the oldest doctrines in common law history, is based upon the ancient adage manifesta non indigent probatione, or “what is known need not be proved.” Eventually, this loosely interpreted reference to issues of common knowledge to judges was enshrined in Federal Rule 201 and its state counterparts. Judicial notice has developed into a tool to circumvent long and efficient procedural hurdles in all stages of litigation. It is not meant to replace rules of evidence or trial procedures but to save time, work, and money. As John Henry Witmore explained:
The object of this rule is to save time, labor, and expense in securing and introducing evidence on matters which are not ordinary capable of dispute and are actually not bona fide disputed, and the tenor of which safely be assumed from the tribunal’s general knowledge or from slight research on its part … It thus becomes a useful expendient for speeding trials and curing informalities. John Henry Wigmore, The Pocket Code of the Rules of Evidence in Trials at Law Section 2120 (1910).
Wigmore identified three general classes of matters that were authorized to be judicially noticed:
a. Matters which are necessary for exercising the judicial functions and are therefore likely to be already known to the judge by virtue of his office;
b. Matters which are actually so notorious in the community that evidence would be unnecessary;
c. Matters which are not either necessary for the judge to know nor actually notorious, but are capable of such positive and exact proof, if demanded, that no party would be like to impose upon the tribunal of a false statement in the presence of an intelligent adversary. Id. at § 2130.
This meant a fact could be judicially noticed where it was: (a) already known; (b) obvious; or (c) so easy to prove that no intelligent person would contradict it. The United States Supreme Court in Brown v. Piper, 91 U.S. 37 (1875) is a good example of the early application of judicial notice to a case. Relying on judicial notice, the U.S. Supreme Court held that evidence of what is old and in general use at the time of an alleged invention is admissible. In the instant case, for example, it is generally a well accepted fact that sexual abuse, sexual assault, and indecent exposure are not “dating.” It is also a generally accepted fact that the government does not merely assign its citizens relationships.
Judicial Notice Should be Denied Because Respondent Has Provided No Information For the Court to Evaluate the Propriety of Judicial Notice
Judicial notice should be denied because Respondent has provided no information to support its Request. Section 453(b) of the California Evidence Code states that a court shall take judicial notice only when the requesting party “furnishes the court with sufficient information to enable it to take judicial notice of the matter.” (Cal. Evid. Code Section 453(b).) A court may deny a request for judicial notice made without support. Willis v. State of California (1994) 22 Cal.App.4th 287, 291 [denying a request for judicial notice where request was made “without appending any information whatsoever”].
Here Respondent’s Request includes no supporting information beyond a clumsy, cursory reference to alleged restraining order violations which have not been litigated and further cursory references to Evidence Code Sections 452 and 459. Respondent provides no indication as to the nature and scope of judicial notice being requested. As in Willis, Respondent’s request is so deficient in supporting information that it must be denied. See Willis, supra 22 Cal.App.4th at p. 291.
Judicial Notice Should be Denied Because Proffered Documents Are Disputed & Constitute Inadmissible Hearsay
Judicial notice should be denied because the proffered documents are disputed and constitute inadmissible hearsay. “A matter ordinarily is subject to judicial notice only if the matter is reasonably beyond dispute.” Freemont Indemnity Co. v. Freemont General Corp. (2007) 148 Cal.App.4th 97, 113. Likewise, a “court cannot take judicial notice of hearsay allegations as being true, just because they are part of a court record or file.” Bach v. McNelis (1989) 207 Cal.App.3d 852, 865; Mangini v. R.J. Reynolds (1994) Cal.4th 1057, 1063 [“While courts may notice official acts and public records, we do not take judicial notice of all matters stated therein.”]
Here, because Respondent does not specify its purpose for the request, apart from self-serving statements that Appellant allegedly violated the California and/or Colorado restraining orders [an issue that remains in dispute including with respect to both the California and Colorado case], Appellant must assume that Respondent intends to use the exhibits as character assassination, to prejudice her with this Court, and to ask the Court to summarily determine, without adversarial proceedings, that she was in fact guilty of such violations.
“Although the existence of a document may be judicially noticeable, the truth of statements contained in the document and its proper interpretation are not subject to judicial notice if those matters are reasonably disputable.” Freemont Indemnity, supra 148 Cal.App.4th at p. 113. Respondent has not even bothered to attempt to insinuate how these exhibits support his legal assertions.
Judicial Notice of Truth of Facts in Court Records
“Judicial notice is the recognition and acceptance by the court, for use by the trier of fact or by the court, of the existence of a matter of law or fact that is relevant to an issue in the action without requiring formal proof of the matter.” (2 Jefferson, Cal. Evidence Benchbook, supra, Judicial Notice, § 47.1, at pp. 1064-1065.) The court may in its discretion take judicial notice of any court record in the United States. (Evid. Code, § 451.) This includes any orders, findings of facts and conclusions of law, and judgments within court records. (See, e.g., Columbia Casualty Co. v. Northwestern Nat. Ins. Co. (1991) 231 Cal. App. 3d 457 [282 Cal. Rptr. 389]; Day v. Sharp (1975) 50 Cal.App.3d. 904 [123 Cal. Rptr. 918].) However, while courts are free to take judicial notice of the existence of each document in a court file, including the truth of results reached, they may not take judicial notice of the truth of hearsay statements in decisions and court files. (Williams v. Wraxall (1995) 33 Cal. App. 4th 120, 130, fn. 7 [39 Cal. Rptr. 2d 658].) Courts may not take judicial notice of allegations in affidavits, declarations and probation reports in court records because such matters are reasonably subject to dispute and therefore require formal proof. (See, e.g., Magnolia Square Homeowners Assn. v. Safeco Ins. Co. (1990) 221 Cal. App. 3d 1049, 1056-1057 [271 Cal. Rptr. 1].)
The underlying theory of judicial notice is that the matter being judicially noticed is a law or fact that is not reasonably subject to dispute . (Evid. Code, § 451, subd. (f); Post v. Prati (1979) 90 Cal. App. 3d 626, 633 [153 Cal. Rptr. 511].) "By making an order establishing the law of the case, it seems that the facts are no longer in dispute and can therefore be considered true as set forth in an order, findings of fact, or conclusions of law." (2 Jefferson, Cal. Evidence Benchbook, supra, Judicial Notice, § 47.12, at p. 1068.) Such facts would not be the proper subject of judicial notice. (Ibid.)
The appropriate setting for resolving facts reasonably subject to dispute is the adversary hearing. It is therefore improper for courts to take judicial notice of any facts that are not the product of an adversary hearing which involved the question of their existence or nonexistence. (2 Jefferson, Cal. Evidence Benchbook, supra, Judicial Notice, § 47.13, at p. 1069.) "A litigant should not be bound by the court's inclusion in a court order of an assertion of fact that the litigant has not had the opportunity to contest or dispute." (Ibid.) See Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort.
In addition to Gilmore, there are a number of other California decisions which have categorically refused to take judicial notice of the truth asserted in court records. (See, e.g., Magnolia Square Homeowners Assn. v. Safeco Ins. Co., supra, 221 Cal. App. 3d 1049, 1056-1057 [truth of hearsay statements not proper subject of judicial notice simply because they are part of a court record]; Garcia v. Sterling (1985) 176 Cal. App. 3d 17, 21-22 [221 Cal. Rptr. 349] [contents of deposition transcript not proper subject of judicial notice]; Day v. Sharp (1975) 50 Cal. App. 3d 904, 914 [123 Cal. Rptr. 918] [truth of allegations made in pleadings and affidavits may not be judicially noticed]; Ramsden v. Western Union (1977) 71 Cal. App. 3d 873, 879 [138 Cal. Rptr. 426] [improper to take judicial notice of "facts" set forth in an arrest report contained in a municipal court file]; People v. Surety Ins. Co. (1982) 136 Cal. App. 3d 556, 564 [186 Cal. Rptr. 385] [judicial notice of truth of comments made at hearing by an attorney and a judge deemed improper]; People v. Rubio (1977) 71 Cal. App. 3d 757, 765-768 [139 Cal. Rptr. 750] disapproved on other grounds in People v. Freeman (1978) 22 Cal. 3d 434, 438-439 [149 Cal. Rptr. 396, 584 P.2d 533] [judicial notice taken of truth of minute order improper].) See Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort.
Courts Do Not Take Judicial Notice of the Truth of Matters Stated in Public Records
Lynch objects to this Court taking judicial notice of any fact in the documents at issue in this Opposition. “Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning. While courts take judicial notice of public records, they do not take notice of the truth of matters stated therein. When judicial notice is taken of a document, . . . the truthfulness and proper interpretation of the document are disputable.” Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375 (Herrera); see also In re Christian P. (2012) 207 Cal.App.4th 1266, 1275, fn. 4 [judicial “notice [of court record] is limited to the existence of the documents and is not the same as taking notice of the truth of any matters or facts stated therein”].)
As stated in 2 Jefferson, California Evidence Benchbook (1982) Judicial Notice, section 47.2, at page 1757: "What is meant by taking judicial notice of court records? There exists a mistaken notice that this means taking judicial notice of the existence of facts asserted in every document of a court file, including pleadings and affidavits. However, a court cannot take judicial notice of hearsay allegations as being true, just because they are a part of a court record or file. A court may take judicial notice of the existence of each document in a court file, but can only take judicial notice of the truth of facts asserted in documents such as orders, findings of fact and conclusions of law, and judgments.” See also In re Tanya F. (1980) 111 Cal. App. 3d 436, 440 [168 Cal. Rptr. 713].
It Is Rarely Appropriate for an Appellate Court to Take Judicial Notice of Facts Not Before the Trial Court
Reviewing courts generally do not take judicial notice of matters “if, upon examination of the entire record, it appears that the matter has not been presented to and considered by the trial court in the first instance.” People v. Preslie (1977) 70 Cal.App.3d 486, 493; see also Brosterhous v. State Bar of California (1995) 12 Cal.4th 315, 325-326 [refusing to notice materials not presented to the trial court].
“It is rarely appropriate for an appellate court to take judicial notice of facts that were not before the district court.” Flick v. Liberty Mut. Fire Ins. Co., 205 F.3d 386, 392 n.7 (9th Cir. 2000); Goelz, Watts & Batalden, Rutter Group Prac. Guide: Fed. Ninth Cir. Civ. App. Prac. § 4:221 at 4-33 (The Rutter Group 2014). “Consideration of the documents . . . is best left to the district court, not to the court of appeals for initial analysis.” Center for Bio-Ethical Reform, Inc. v. City & County of Honolulu, 455 F.3d 910, 918 n.3 (9th Cir. 2006).
Respondent’s Submissions to this Court Are Tantamount to Ongoing Personal Attacks on Appellant
“It is vital to the integrity of our adversary legal process that attorneys strive to maintain the highest standards of ethics, civility, and professionalism in the practice of law.” People v. Chong (1999) 76 Cal.App.4th 232, 243. “Indeed, unwarranted personal attacks on the character or motives of the opposing party, counsel or witnesses are inappropriate and may constitute misconduct.” In re S.C. (2006) 138 Cal.App.4th 396, 412, citing Chong and Stone v. Foster (1980) 106 Cal.App.3d 334, 355.)
Due Process
Appellant contends that the taking of judicial notice would be a violation of due process, right to confront and cross-examine witnesses, right to an adversarial proceeding, and other federal and state constitutional rights. She is therefore raising the issue so that is not the subject of waiver or forfeiture at a later date. Duncan v. Henry (1995) 513 U.S. 364, 365-66. In Duncan v. Henry, supra, 513 U.S. 364 the Supreme Court summarily reversed a Ninth Circuit’s grant of habeas relief. The due process challenge to “other offenses” evidence was not exhausted where the argument in the California courts was framed only as a violation of Evidence Code section 352 and a “miscarriage of justice” under the California Constitution. The erroneous admission of irrelevant and prejudicial evidence through judicial notice violates Appellant’s federal due process rights by making these proceedings fundamentally unfair. Estelle v. McGuire (1991) 502 U.S. 62, 70; McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378. With respect to documents submitted to this court, not subject of adversarial proceedings, “the Constitution does not trust judges to make determinations of criminal guilt.” Neder v. United States, 527 U.S. 1, 32 (1999) (Scalia, J., dissenting). Admitting the evidence would not be harmless error.
CONCLUSION
Judicial Notice of Exhibits 2, 3, 4, 5, 6, 7, 8, 9, and 10 should be denied. Respondent has failed to provide any information to support its Request as required by Section 453 of the Evidence Code. Additionally, Respondent’s use of the material in its Request would be improper because the subject matter constitutes inadmissible hearsay and is disputed by the parties. Basic considerations of fairness and orderly judicial functioning require that the request be denied. Appellant further asks this Court to strike the relevant portions of the Respondent’s Reply Brief or order that it be re-filed with those portions removed.
Dated: 1 September 2017 Respectfully submitted,
_______________________________________
Kelley Lynch, in Propria Personal
Appellant/Defendant
