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socrateaser
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Hi again brilliant Socrates, How r U? 1) Regarding format

Resolved Question:

Hi again brilliant Socrates,
How r U?
1) Regarding format of Request for Judicial Notice in appeal court, do I need to convert the items for notice into "Exhibit A", "Exhibit B", etc.? Or I can refer to them by only pointing out where these documents are?
2) Regarding the recordings, if the jury is not permitted to hear them, can it be informed that they exist?
3) Can I use the recordings to impeach defendant's testimonies (to prove that they lie)?
Many thanks/
Submitted: 1 year ago.
Category: Legal
Expert:  socrateaser replied 1 year ago.
1) Regarding format of Request for Judicial Notice in appeal court, do I need to convert the items for notice into "Exhibit A", "Exhibit B", etc.? Or I can refer to them by only pointing out where these documents are?

A: A motion for judicial notice to an appellate court must include a copy of the matter to be judicially noticed, unless it is not practicable to do so (in which case, the motion must explain why it is not practicable) or the matter already appears in the appellate record. CRC 8.252(a)(2); see CRC 8.809(b).

2) Regarding the recordings, if the jury is not permitted to hear them, can it be informed that they exist?

A: If, by "recordings," you mean an electronic reproduction of a conversation, then no, the jury cannot be informed that the records exist, because such knowledge would prejudice the jury's decision making process. It is axiomatic that the jury's duty is to determine the truth and/or falsity of admissible evidence presented at trial. Evidence denied admission cannot be considered. Incidental knowledge of the existence of inadmissible evidence is prejudicial -- though within the court's authority to refuse to grant a mistrial, if the jury is exposed to such evidence.

There is a famous (or infamous) example of this taught in every basic law school evidence class:

Evidence of "subsequent remedial measures" (i.e., that a defendant has repaired a dangerous condition which injured a plaintiff) is inadmissible at trial to prove defendant's liability. This is a public policy created to provide an incentive to repair conditions which if left unrepaired may injure others in the same manner as the plaintiff claims to have been injured.

Defense counsel, however, inevitably will photograph the location where the injure is alleged to have taken place, and then ask the plaintiff if the photograph is a fair representation of the scene at the time plaintiff was injured. Plaintiff testifies, "No, it's not, because the [banana peel, broken glass, oil slick, etc.] that I slipped and fell on is no longer present]. And, just like that, the jurors are aware of the fact that the defendant has repaired the dangerous condition, despite plaintiff not having offerred the evidence of the repair into the record.

Even if the judge instructs the jury to ignore plaintiff's testimony, the jurors have heard about the evidence, and they will remember it despite the instructions.

BotXXXXX XXXXXne, the jury cannot be exposed to the existence of evidence ruled inadmissible, except by inadvertence that the judge determines is not fatal and requiring an order of mistrial.

3) Can I use the recordings to impeach defendant's testimonies (to prove that they lie)?

A: Again, I assume you refer to reproductions of conversations between defendant and someone else. If the recordings were not admitted into the court record at trial, and you made no offer of proof in the trial court record to show the appellate court what the recordings would have proved had they been admitted at trial, then the recordings cannot be used or complained about on appeal -- with one exception: “Where an entire class of evidence has been declared inadmissible or the trial court has clearly intimated it will receive no evidence of a particular class or upon a particular issue, an offer of proof is not a prerequisite to raising the question on appeal, and an offer, if made, may be broad and general.” Beneficial Fire & Cas. Ins. Co. v. Kurt Hitke & Co., Inc. (1956) 46 C2d 517, 522, 297 P2d 428, 430.


In such a case, the appellant could show in the court trial record how the trial court effectively disallowed all of the recordings at once, and then the appellant could make the offer of proof right in the appellate court brief to give the appellate court enough to determine whether or not the trial court's ruling on admissibility was correct, or requires reversal.

Hope this helps.
Customer: replied 1 year ago.

Hi Socrates,

I'v bn silent bsc I gv up after I cd't reply twice.

I hope it gets thru this time.

 

Back to Q 1 (Judicial Notice):

 

-I submitted the "Request" for JN but respondents cites Cal. Rule 8.252 (a) to demand me to serve+ file a separate "Motion" and a Proposed Order.

 

But to me the "Motion" for JN and the "Request" for JN have the same substance isn't it? Otherwise what's the difference?

 

-I know the "Request" but hav't seen the other two items. Can U link me to samples?

 

-However for the appeal purpose, is it really necessary to submit the Request for JN? I dont see a real need for it bcs the appellant's Opening Brief shd say everything that needs to be said, facts and evidence included. Request for JN is an extra step to have the evidence formally (judicially) permitted for trial later on. I mean it's equivalent to the Motion in Limine; am I right?

 

Many thanks/

 

Many thanks/

Expert:  socrateaser replied 1 year ago.

Back to Q 1 (Judicial Notice):

 

-I submitted the "Request" for JN but respondents cites Cal. Rule 8.252 (a) to demand me to serve+ file a separate "Motion" and a Proposed Order.

 

But to me the "Motion" for JN and the "Request" for JN have the same substance isn't it? Otherwise what's the difference?

 

A: Your opponent is correct. Rule 8.252 requires a motion. If you review my previous answer, I specifically used the term "motion" to describe the requirements.

 

-I know the "Request" but hav't seen the other two items. Can U link me to samples?

 

A: Click here; and here.

 

-However for the appeal purpose, is it really necessary to submit the Request for JN? I dont see a real need for it bcs the appellant's Opening Brief shd say everything that needs to be said, facts and evidence included. Request for JN is an extra step to have the evidence formally (judicially) permitted for trial later on. I mean it's equivalent to the Motion in Limine; am I right?

 

A: Nope -- you're wrong.

 

Hope this helps.

 

Customer: replied 1 year ago.

-My hunch is correct: Your first link is entittled "Motion" but in its text it calls itself "Motion and Request". That means "Motion" and "Request" are the same thing =Motion to Request. That means all I need to do is to retype the title as "Motion and Request".


Am I right?


 


-I hvn't seen the link to sample of "Proposed Order"


 


Many thanks/

Expert:  socrateaser replied 1 year ago.
It's a motion. If you want to call it a request, you will just confuse the appellate court. The second link, on the last page is a proposed motion. It's very short.

Good luck.
Customer: replied 1 year ago.

1) I saw the Proposed Order U indicated. Thanks/


2) But on page 2 first paragraph, it also calls itself "motion to request" .

I reread Rule 8.252(a) (1) which only requires "a separate motion with a proposed order" Does that mean I can simply re-title my "Request" as "Motion", then add a few lines as "Proposed Order" to get the format demand over with.

 

If there is difference between two documents "motion" and "request", please explain.

 

3) Am I required to submit a Motion for JN? I dont think so but if yes, then why and pls cite.

 

4) Does it matter if the documents being requested for JN must have been presented in the trial court for the same purpose? Or not bcs de novo review means starting the whole thing afresh.

 

5) In the attached exhibits, can I add my handwritten notes+comments in order to draw attention and to give meaning to certain words or sentence? Without them, hundreds of pages of documents would look like a jungle without meanings. Is there clear rule on this? Important bcs I am being attacked fro doing that, please cite.

 

(I know this is a complex session)

 

 

Many thanks/

Expert:  socrateaser replied 1 year ago.

2) But on page 2 first paragraph, it also calls itself "motion to request" .

I reread Rule 8.252(a) (1) which only requires "a separate motion with a proposed order" Does that mean I can simply re-title my "Request" as "Motion", then add a few lines as "Proposed Order" to get the format demand over with.

If there is difference between two documents "motion" and "request", please explain.

 

A: A "motion" is defined as a "request for an order." The substance of the pleading is what matters, not the name. I don't see any distinction between the two, but the appellate court clerk may reject it because it doesn't say "motion." So, call it a motion and refile it with a proposed order. I think your opponent may be elevating form over substance, because he/she enjoys trying to annoy you. But, as I have not read your "request," I can't really comment further.

3) Am I required to submit a Motion for JN? I dont think so but if yes, then why and pls cite.

 

A: Read the Rule 8.252. It expressly requires that "a party must serve and file a separate motion with a proposed order."

 

4) Does it matter if the documents being requested for JN must have been presented in the trial court for the same purpose? Or not bcs de novo review means starting the whole thing afresh.

 

A: Appellate courts must take judicial notice of (i) any matter properly noticed by the trial court, and (ii) any matter that the trial court was required to judicially notice under Evid. Code §§ 451 (matters which must be judicially noticed) or 453 (matters for compulsory judicial notice upon request). Evid. Code § 459(a).

Appellate courts have the option (not mandatory) to take judicial notice of any matter subject to discretionary judicial notice by the trial court under Evid. Code § 452. Evid. Code § 459(a); Larson v. State Personnel Bd. (1994) 28 CA4th 265, 270, 33 CR2d 412, 415, fn. 2

 

The point here is that if an item was judicially noticed in the trial court, then it's in the court record. But, just because it's there, doesn't mean that the appellate court must give it judicial notice. The reviewing court can rule on a previously noticed issue, based upon its inclusion in the trial court record, without giving it judicial notice, for example by determining that the court erred in giving the matter judicial notice. If you are concerned the reviewing court will not give judicial notice to a particular matter, then you can expressly request judicial notice of that matter (by motion for judicial notice under Rule 8.252).

 

5) In the attached exhibits, can I add my handwritten notes+comments in order to draw attention and to give meaning to certain words or sentence? Without them, hundreds of pages of documents would look like a jungle without meanings. Is there clear rule on this? Important bcs I am being attacked fro doing that, please cite.

 

A: Your handwritten notice are outside of the trial court record. As a basic principle of appellate review, proffered new evidence must enable the appellate court to affirm the judgment, not lead to a reversal; and appellate courts will not use Code Civ. Proc. (CCP) § 909 to resolve conflicts in the evidence or to substitute their own factual determinations for those of the trial court. Tupman v. Haberkern (1929) 208 C 256, 269, 280 P 970, 976; Philippine Export & Foreign Loan Guar. Corp. v. Chuidian (1990) 218 CA3d 1058, 1090, 267 CR 457, 474–475 (“The power to take evidence in the Court of Appeal is never used where there is conflicting evidence in the record and substantial evidence supports the trial court's findings”)

 

If you want to try to have the appellate court take evidence (rare as a snowstorm in Tahiti), then you must do so by separate motion. See Rule 8.252(c). But, as you can see from the case law cited above, you'll be denied, because you are seeking a reversal of the trial court judgment.

(I know this is a complex session)

 

A: If you mean that you intend to throw big green wads of money at me when this issue is resolved, then I thank you.

 

Hope this helps.

Customer: replied 1 year ago.

For A #2: No the clerk did not reject the "Request" but respondents attacked it as wrong. OK it's settled.


 


A#3: Rule 8.252 requires these docs when U decide to ask for a JN. But my Q is whether I am required to ask for it. The rule only requires an Opening Brief.


 


Do I understand correctly that motion for JN establish the undisputed evidence for some purposes including trial?


 


A#4: Understood


 


A#5: U misunderstand my Q. I mean I write some note on the documents on court file which are now included in the exhibits to Motion for JN; and the appendix to appeal brief. Does the rule expressly prohibit it (cite)? These notes are necessary to point out the meaningful parts in those hundreds of pages. Otherwise it looks like a paper jungle.


 


A#6: Evid Code 454 (a) (2) exclusionary rule not applied: Does it mean technicality of evidence cannot be invoked? E.g. Tape recordings


 


Many thanks/

Expert:  socrateaser replied 1 year ago.
A#3: Rule 8.252 requires these docs when U decide to ask for a JN. But my Q is whether I am required to ask for it. The rule only requires an Opening Brief.

A: If you want to ensure that something which was not judicially noticed in the trial court, or if you want to ensure that the appellate court gives the same judicial notice to something that was judicially noticed in the trial court, then you must move for judicial notice. Otherwise not.

Do I understand correctly that motion for JN establish the undisputed evidence for some purposes including trial?

 

A: Yes.


A#5: U misunderstand my Q. I mean I write some note on the documents on court file which are now included in the exhibits to Motion for JN; and the appendix to appeal brief. Does the rule expressly prohibit it (cite)? These notes are necessary to point out the meaningful parts in those hundreds of pages. Otherwise it looks like a paper jungle.

A: You can highlight. Don't write notes. See, e.g., Rule 3.1116(c)


A#6: Evid Code 454 (a) (2) exclusionary rule not applied: Does it mean technicality of evidence cannot be invoked? E.g. Tape recordings

 

A: That's what it means. Except that per Evid. Code 352, the court has discretion to refuse to consider "evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."


So, if you're trying to get the appellate court to hear the recordings by creating a "strawman" (diversion) for judicial notice that requires the recordings as prove, then all I can say is, "good luck." Should be an interesting gambit.

Hope this helps.
Customer: replied 1 year ago.

A#5; That link is not clear about notations. The bad guys strike the notations by citing Rule 8.124(g) which is not clear either. (It requires "accurate" copy of the court file, but, well, they are accurate copy with hand-written notations on them).


A#6 Contradiction defies understanding: if JN establishes the permissible evidence which can be used for trial, but exclusionary rules dont apply. Then something very weird here. Dont U think?


 


(A side note: U must control bias (bcs bias=blind) in order to save yr briliance, so that u can see the obvious that nothing can be more truthful than a recording. There is no gambit here my brilliant and biased friend).


 


Many thanks/


 


 

Expert:  socrateaser replied 1 year ago.

A#5; That link is not clear about notations. The bad guys strike the notations by citing Rule 8.124(g) which is not clear either. (It requires "accurate" copy of the court file, but, well, they are accurate copy with hand-written notations on them).

 

A: I agree with the citation to Rule 8.124(g). An accurate copy is one that is substantially identical to the evidence in the court record, or to the original that is copied. Marking the copy with notes that were not originally present when the document was first admitted to evidence, makes the copy inaccurate.


A#6 Contradiction defies understanding: if JN establishes the permissible evidence which can be used for trial, but exclusionary rules dont apply. Then something very weird here. Dont U think?


A: Doesn't matter what I think. The law gives the court discretion to exclude substantially prejudicial evidence, and the court gets to decide what is or is not substantial. If you want to start arguing against the underlying regimes for interpreting the Evidence Code, you will be viewed as making a frivolous argument, and your entire appeal is likely to be dismissed.

(A side note: U must control bias (bcs bias=blind) in order to save yr briliance, so that u can see the obvious that nothing can be more truthful than a recording. There is no gambit here my brilliant and biased friend).


A: My bias is the same as any other competent jurist. If I think that the notes don't come in, I can practically guarantee that the appellate court will find similarly. Trying to create an argument over this type of issue will cause the court to view the rest of your argument as frivolous -- and your case will be dismissed.

Hope this helps.
Customer: replied 1 year ago.

A5: OK "accuracy" is subject to dispute by two sides of interpretation, then. This is basic in methodology: Facts by themselves hv no meanings until you give meanings (valuation) by notations . Look: How can U discuss an essay if U dont note on it?! Impossible!


A6: OK that means respondents cannot invoke technicality then, am I right?


 


Bias is reflected by the word use "gambit" which implies negatively, while I present the truth guarranteed by the recordings. By removing the bias U can see an honest victim, not a gamesman.


 


A7: Next to last Q: Do I need to include my "Declaration" in the motion for JN lk all these guys do. What for?


 


Many thanks


 


I am about to close this session.


 


 

Expert:  socrateaser replied 1 year ago.

A5: OK "accuracy" is subject to dispute by two sides of interpretation, then. This is basic in methodology: Facts by themselves hv no meanings until you give meanings (valuation) by notations . Look: How can U discuss an essay if U dont note on it?! Impossible!

 

A: That's what your brief is for: to combine facts and law, analyze both and then draw the reasonable conclusion which, hopefully, supports your position.


A6: OK that means respondents cannot invoke technicality then, am I right?

A: I wouldn't characterize Evid. Code 352 issues as technicalitiles, but yes, the respondents can invoke this as a means of trying to keep your evidence out of the appellate court record.

Bias is reflected by the word use "gambit" which implies negatively, while I present the truth guarranteed by the recordings. By removing the bias U can see an honest victim, not a gamesman.


A: Maybe. But, if this evidence were relevant and admissible, then it would be in the trial court record. So, I must assume that something went wrong at trial and you were unable to present the recordings as evidence.

A7: Next to last Q: Do I need to include my "Declaration" in the motion for JN lk all these guys do. What for?

 

A: If based on matters not appearing in the record, the motion must also be accompanied by declarations (CCP § 2015.5) and/or other evidence in support. CRC 8.54(a)(2); see Norco Delivery Service, Inc. v. Owens–Corning Fiberglas, Inc. (1998) 64 CA4th 955, 961, 75 CR2d 456, 459, fn. 3 (“rule 41 expressly provides for the submission of evidence via affidavits to support any motion filed on appeal”).

 

Read the sample motions. The declaration explains what the evidence is, and where it came from. Follow the sample form. A declaration is the sworn testimony of the movant under which the evidence is offerred to the court. Without the declaration, there are no facts, and without facts, there is no law, analysis or conclusion.

 

The law arises from the facts. Hope this helps.

 

Hope this helps.

Customer: replied 1 year ago.

A5: OK understood


A6: No, I talk about Evid Code 454 (a) (2) exclusionary rule not applied, like U said, the appeal has the sole discretion to permit "all" relevant evidence notwithstanding technicality. Right?


 


BIAS: U forget that the bad guy blocked this case from trial simply by throwing dirt, and U dont know the dirt.


 


A7: I see. But all my documentation exists in the court's record but they were never judicially noticed. Then do I need a Declaration?


 


These r my last Q B4 I close this session.


 


Many thanks/


 


 


 

Expert:  socrateaser replied 1 year ago.
A6: No, I talk about Evid Code 454 (a) (2) exclusionary rule not applied, like U said, the appeal has the sole discretion to permit "all" relevant evidence notwithstanding technicality. Right?

A: Yes.

BIAS: U forget that the bad guy blocked this case from trial simply by throwing dirt, and U dont know the dirt.


A: Okay.


A7: I see. But all my documentation exists in the court's record but they were never judicially noticed. Then do I need a Declaration?

 

A: If you are not proffering new material, then you don't need a declaration. Regardless, I would submit one, because if you don't, your opponent will object, and the judge will probably try to find a reason why you should have used one (i.e., bias against pro se litigants).

 

Hope this helps.

Customer: replied 1 year ago.

Great Socrates, w/in couple hrs if I dont hv any more Q, I wl close this session.

Expert:  socrateaser replied 1 year ago.
Thanks very much and good luck.
socrateaser, Lawyer
Category: Legal
Satisfied Customers: 34174
Experience: Retired (mostly)
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