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self-study / Appellate Practice

Judicial Notice

David M. Axelrad

Partner, Horvitz & Levy LLP

Email: daxelrad@horvitzlevy.com

UC Hastings COL; San Francisco CA

Judicial notice is a means of bringing before a trial or appellate court "matters [that] are assumed to be indisputably true, [so that] the introduction of evidence to prove them will not be required." Kilroy v. State of California, 119 Cal. App. 4th 140, 148 (2004). Although subject to a number of rules and qualifications, judicial notice is often the easiest way for a trial or appellate court to consider a particular fact.

Evidence Code Sections 450-460 govern judicial notice in California.

Section 451 provides for mandatory judicial notice of "decisional, constitutional, and public statutory law," government rules and regulations, rules of professional conduct, rules of pleading, practice and procedure, the "true signification of all English words and phrases, and ... legal expressions," and "[f]acts and propositions of generalized knowledge that are so universally known that they cannot reasonably be the subject of dispute."

Section 452 provides for permissive judicial notice "to the extent ... not embraced within section 451" of laws, regulations, legislative enactments, official government acts, court records, rules of court, international law, and two rather expansive catch-all categories: "[f]acts and propositions that are of such common knowledge within the territorial jurisdiction of the court that they cannot reasonably be the subject of dispute," and "[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy."

Sections 453 through 458 set basic procedures governing judicial notice. These procedures are augmented by the rules of court. See Cal. Rules of Court, rules 3.1306(c), 8.252, 8.809.

Finally, Section 459 provides that appellate courts have the same right and power to take judicial notice as trial courts.

In addition to the statutory scheme, a large body of case law provides important commentary on the scope of judicial notice in California.

1. Appellate courts ordinarily will not take judicial notice of matters that could have been but were not presented in the trial court.

Vons Companies, Inc. v. Seabest Foods, Inc., 14 Cal. 4th 434, 444 n.3 (1996); Brosterhous v. State Bar, 12 Cal. 4th 315, 325 (1995); People v. Hardy, 2 Cal. 4th 86, 134 (1992); Truong v. Nguyen, 156 Cal. App. 4th 865, 882 (2007); but see Tushinsky v. Arnold, 195 Cal. App. 3d 666, 673 nn.5-6 (1987); Hogen v. Valley Hospital, 147 Cal. App. 3d 119, 125 (1983); Saltares v. Kristovich, 6 Cal. App. 3d 504, 511 (1970); Taliaferro v. County of Contra Costa, 182 Cal. App. 2d 587, 592 (1960). However, judicial notice may be taken on appeal when the trial court was asked but refused to take judicial notice. Sebago, Inc. v. City of Alameda, 211 Cal. App. 3d 1372, 1380 (1989). A Court of Appeal also has discretion to take judicial notice of legislative history for the first time on appeal even where the trial court was not asked to do so. See Peart v. Ferro, 119 Cal. App. 4th 60, 81 (2004).

2. Judicial notice is limited by relevance and hearsay rules.

a. Courts will not take judicial notice of irrelevant matters. E.g., Ketchum v. Moses, 24 Cal. 4th 1122, 1135 n.1 (2001); People ex rel. Lockyer v. Shamrock Foods Co., 24 Cal. 4th 415, 422 n.2 (2000); Stop Youth Addiction, Inc. v. Lucky Stores, Inc., 17 Cal. 4th 553, 577 n.13 (1998), superseded by statute on another ground as stated in Californians for Disability Rights v. Mervyn's, LLC, 39 Cal. 4th 223 (2006); Mangini v. R. J. Reynolds Tobacco Co., 7 Cal. 4th 1057, 1063 (1994), overruled on another ground in In re Tobacco Cases II, 41 Cal. 4th 1257, 1262 (2007).

b. A court cannot take judicial notice of the truth of hearsay statements in a document, unless an exception to the hearsay rule applies. E.g., People v. Woodell, 17 Cal. 4th 448, 455 (1998); Mangini, 7 Cal. 4th at 1063-64; William v. Hartford Ins. Co., 147 Cal. App. 3d 893, 899 (1983); Day v. Sharp, 50 Cal. App. 3d 904, 914 (1975); Love v. Wolf, 226 Cal. App. 2d 378, 403 (1964).

c. The hearsay rule also applies to preclude judicial notice of argument or comments by counsel and judges in other proceedings. People v. Surety Ins. Co., 136 Cal. App. 3d 556, 563-64 (1982); People v. Rubio, 71 Cal. App. 3d 757, 766 (1977), overruled on another ground by People v. Freeman, 22 Cal. 3d 434 (1978). Some decisions suggest prior judicial findings can be judicially noticed both for the fact of their existence and for their truth. See Williams v. Wraxall, 33 Cal. App. 4th 120, 130 n.7 (1995); Garcia v. Sterling, 176 Cal. App. 3d 17, 22 (1985); Weiner v. Mitchell, Silberberg & Knupp, 114 Cal. App. 3d 39, 46 (1980). However, other decisions disagree. See Steed v. Department of Consumer Affairs, 204 Cal. App. 4th 112, 121-22 (2012); Plumley v. Mockett, 164 Cal. App. 4th 1031, 1050-51 (2008); Kilroy, 119 Cal. App. 4th at 148; Sosinsky v. Grant, 6 Cal. App. 4th 1548, 1564 (1992); Gilmore v. Superior Court, 230 Cal. App. 3d 416, 418-19 (1991).

d. There is a controversy over application of the hearsay rule to judicial notice of court records to support attorney fee claims. Compare Copenbarger v. Morris Cerullo World Evangelism, Inc., 29 Cal. App. 5th 1, 14-15 (2018) (because the truth of matters asserted in court records is not subject to judicial notice, "[t]he judicially noticed, court-filed documents are not relevant evidence of who prepared the documents, the amount incurred in attorney fees to prepare them, and whether that amount was reasonable") with Mai v HKT Cal, Inc., D076708 (July 12, 2021) ("materials filed by attorneys on behalf of litigants can be judicially noticed and provide evidence to support an award of attorney's fees").

3. Judicial notice of court records (Evid. Code Section 452(d)) encompasses a wide variety of documents.

a. Records of trial court proceedings in other cases. Briefs, notices, pleadings, exhibits, declarations, minute orders and rulings, jury instructions, the jury verdict, and trial transcripts are routinely the subjects of judicial notice. See, e.g., American Contractors Indemnity Co. v. County of Orange, 130 Cal. App. 4th 579, 581 n.1 (2005); Miller v. Superior Court, 101 Cal. App. 4th 728, 734 n.2 (2002); Children's Hospital v. Sedgwick, 45 Cal. App. 4th 1780, 1784 n.1 (1996); People v. Purata, 42 Cal. App. 4th 489, 495 (1996); People v. Buckley, 185 Cal. App. 3d 512, 525 & n.5 (1986); First N.B.S. Corp. v. Gabrielsen, 179 Cal. App. 3d 1189, 1194 n.2 (1986); In re Marriage of Tusinger, 170 Cal. App. 3d 80, 82 (1985). However, the court must be assured "that the original [court record] is actually on file in the superior court and that the copy of the document or record is in fact a true and correct copy." People v. Preslie, 70 Cal. App. 3d 486, 494 (1977); see Ross v. Creel Printing & Publishing Co., 100 Cal. App. 4th 736, 743 (2002).

b. Unpublished Court of Appeal decisions. In theory, judicial notice of court records should permit judicial notice of unpublished decisions by the Court of Appeal, notwithstanding the prohibition on citation of such opinions in California Rules of Court, rule 8.1115(a). See Gilbert v. Master Washer & Stamping Co., 87 Cal. App. 4th 212, 218 n.14 (2001) ("Although the 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)"). However, in Hernandez v. Restoration Hardware, Inc., 4 Cal. 5th 260, 269 n.2 (2018), the California Supreme Court declined to take judicial notice of unpublished Court of Appeal opinions because of the prohibition in the rules: "With certain exceptions, not applicable here, the Rules of Court generally prohibit us from noticing unpublished opinions. (Cal. Rules of Court, rule 8.1115.)"

Nonetheless, the issue is not free from doubt. See, e.g., People v. Gentile, 10 Cal. 5th 830, 849-50 (2020) (referencing two unpublished opinions cited by an amicus curiae); People v. Hill, 17 Cal. 4th 800, 847 n.9 (1998) ("The [unpublished] appellate opinion ... falls within the category of the '[r]ecords of ... any court of this state'; accordingly, we may take judicial notice of such records. [Citation.] Because we do not cite or rely on that opinion, judicial notice does not in this circumstance run afoul of rule 977 [now Cal. Rules of Court, rule 8.1115]."); Mangini v. J.G. Durant International, 31 Cal. App. 4th 214, 219 (1994) (referencing unpublished cases to show a "recurring issue remains unresolved").

Note that courts also deny requests for judicial notice of trial court opinions cited as legal authority. Bolanos v. Superior Court, 169 Cal. App. 4th 744, 761 (2008) ("a written trial court ruling has no precedential value").

4. Judicial notice extends to a broad cat egory of facts that are "not reasonably subject to dispute and ... capable of immediate and accurate determination...." Evid. Code Section 452(h).

These facts "include[ ], for example, facts which are accepted as established by experts and specialists in the natural, physical, and social sciences, if those facts are of such wide acceptance that to submit them to the jury would be to risk irrational findings." People v. Ramos, 15 Cal. 4th 1133, 1167 (1997); accord Preserve Shorecliff Homeowners v. City of San Clemente, 158 Cal. App. 4th 1427, 1434 (2008). "Sources of 'reasonably indisputable accuracy' include not only treatises, encyclopedias, almanacs, and the like, but also persons learned in the subject matter." Assem. Com. on Judiciary, com., 29B pt. 1B West's Ann. Evid. Code (2011 ed.) foll. Section 452. Where documents contain matters that are not widely known or accepted, judicial notice will be denied. See Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison, 18 Cal. 4th 739, 748 n.6 (1998); Carleton v. Tortosa, 14 Cal. App. 4th 745, 753 n.1 (1993).

5. Judicial notice also includes a wide category of "[o]fficial acts." Evid. Code Section 452(c).

Official acts include, in addition to legislation, executive orders, and judicial decisions, publications of federal agencies (see Johnson v. United States Steel Corp., 240 Cal. App. 4th 22, 27 & n.2 (2015); In re Israel O., 233 Cal. App. 4th 279, 289 & n.8 (2015); Kilker v. Stillman, 233 Cal. App. 4th 320, 328 (2015); Moehring v. Thomas, 126 Cal. App. 4th 1515, 1523-24, nn.4-5 (2005)), legislative history and ballot arguments (see, e.g., Lantzy v. Centex Homes, 31 Cal. 4th 363, 375 n.9 (2003); People v. Snyder, 22 Cal. 4th 304, 309 n.5 (2000); Delaney v. Baker, 20 Cal. 4th 23, 30 & n.3 (1999); People v. Connor, 115 Cal. App. 4th 669, 681 n.3 (2004)), administrative agency decisions (see Associated Builders & Contractors, Inc. v. San Francisco Airports Com., 21 Cal. 4th 352, 374-75, n.4 (1999); Fowler v. Howell, 42 Cal. App. 4th 1746, 1750 (1996); Hogen, 147 Cal. App. 3d at 125), and government agency websites (see, e.g., Moehring, 126 Cal. App. 4th at 1523 n.4; In re White, 121 Cal. App. 4th 1453, 1469 n.14 (2004); DiPirro v. American Isuzu Motors, Inc., 119 Cal. App. 4th 966, 971 n.3 (2004)).

Note that "legislative history materials generally available from published sources" may be cited without the need for judicial notice. Sharon S. v. Superior Court, 31 Cal. 4th 417, 440 n.18 (2003); accord Quelimane Co. v. Stewart Title Guaranty Co., 19 Cal. 4th 26, 45 n.9 1998); Stop Youth Addiction, 17 Cal. 4th at 571 n.9.

6. Judicial notice impacts judicial review of pleadings.

a. When ruling on a demurrer or motion for judgment on the pleadings -- and when reviewing such a ruling on appeal -- a court may consider facts properly subject to judicial notice even if those facts contradict the allegations of the complaint. See, e.g., Code Civ. Proc. Section 430.30(a); El Rancho Unified School Dist. v. National Education Assn., 33 Cal. 3d 946, 950 n.6 (1983); Scott v. JPMorgan Chase Bank, NA, 214 Cal. App. 4th 743, 754 (2013); Hunt v. County of Shasta, 225 Cal. App. 3d 432, 440 (1990); Barker v. Hull, 191 Cal. App. 3d 221, 224 (1987); Del E. Webb Corp. v. Structural Materials Co., 123 Cal. App. 3d 593, 604 (1981); Saltares, 6 Cal. App. 3d at 511; Watson v. Los Altos School Dist., Santa Clara County, 149 Cal. App. 2d 768, 771 (1957). The same is true when the trial court is ruling on a motion for summary judgment. See Code Civ. Proc. Section 437c(b)(1); Parker v. Twentieth Century-Fox Film Corp., 3 Cal. 3d 176, 181 (1970).

b. Courts ruling on demurrers or other similar motions may take judicial notice of inconsistent statements that cannot be reasonably controverted. This category includes statements made by a party at deposition, in declarations opposing summary judgment, or in answers to interrogatories. Tucker v. Pacific Bell Mobile Services, 208 Cal. App. 4th 201, 218 n.11 (2012); Arce v. Kaiser Foundation Health Plan, Inc., 181 Cal. App. 4th 471, 485 (2010); Sebago, 211 Cal. App. 3d at 1380-81; Scannell v. County of Riverside, 152 Cal. App. 3d 596, 616 (1984); Del E. Webb Corp., 123 Cal. App. 3d at 604-05; Able v. Van Der Zee, 256 Cal. App. 2d 728, 734 (1967); Dwan v. Dixon, 216 Cal. App. 2d 260, 263-65 (1963).

c. Where a hearsay objection cannot be overcome, judicial notice on demurrer will be denied. The reason is that "a court cannot by means of judicial notice convert a demurrer into an incomplete evidentiary hearing in which the demurring party can present documentary evidence and the opposing party is bound by what that evidence appears to show." Fremont Indemnity Co. v. Fremont General Corp., 148 Cal. App. 4th 97, 115 (2007); see Richtek USA, Inc. v. uPI Semiconductor Corp., 242 Cal. App. 4th 651, 660 (2015); Cruz v. County of Los Angeles, 173 Cal. App. 3d 1131, 1134 (1985).

Understanding these rules enables effective use of judicial notice to expand the information available to both trial and appellate courts. 

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