Tuesday, January 19, 2016

Of What Materials May Court Take Judicial Notice?

Request for judicial notice is a widely deployed vehicle for bringing court's attention to certain materials and records. In California, it is regulated by the California Evidence Code ("CEC"), Sections 450-460. It generally defines what requires judicial notice be mandatorily taken (CEC 451), and what may be judicially noticed at court's discretion (CEC 452, 452.5). The rule is also stated for the contrary: what is not authorized by law, may not be judicially noticed (CEC 450). If the court declines to take judicial notice, the court shall let the parties know about its decision a.s.a.p., and indicate the denial on the record (CEC 456). However, such denial is never final and can be later reversed (CEC 458).

As comprehensive as the judicial notice statutes are written, they can't physically encompass every possible kind of matter litigants may request the court to take judicial notice of. It thus brings the question, what kind of non-obvious materials were previously judicially noticed? This post is a short review of items I was able to identify.

Items previously denied judicial notice.

It will be only logical to start with the kind directly mentioned in the statutes, particularly CEC 458, which allows the court to change its mind and take notice of manner previously denied judicial notice. On resubmission of the same manner, pay attention to CEC 453, to make sure that the procedural considerations are taken care of as well as substantive, and to any court's indication of denial under CEC 456, for the possible guidance on why the proposed material didn't pass the muster previously.

Records of an administrative board.

Evidence Code § 452, permits a trial court to take judicial notice of the records and files of a state administrative board. Fowler v. Howell  (1996, Cal.App.2d Dist) 42 Cal.App.4th 1746, review denied, (1996, Cal.) 1996 Cal LEXIS 3346.

Judicial notice of a publication.

Not as famous as The Footnote Four, this footnote 4 is the only known to me reference of a California court taking judicial notice of a publication. The court in City of Palo Alto v. Service Employees Internat. Union (1999) 77 Cal.App.4th 327, 335, fn. 4, took judicial notice of CalOSHA guidelines and its model injury & illness prevention program, also under CEC 452.

Arbitration records: awards, briefs, and rules.

It appears that the court may take judicial notice of any part of the arbitration records, usually so granted under CEC 452(d). See, Greenspan v. LADT LLC (2010) 191 Cal.App.4th 486, 525 [arbitration award]; Trabuco Highlands Community Assn. v. Head (2002) 96 Cal.App.4th 1183, 1186, fn. 4 [arbitration brief]; and Bosworth v. Whitmore (2006) 135 Cal.App.4th 536, 542, fn. 4 [arbitration rules]. Yes, there is something special in fourth footnotes, and here we see two more.


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