Judicial Notice 101

judge_blog_8476372Some propositions of law or fact just can’t reasonably be disputed. That’s where judicial notice comes in, and here’s how it works in California.

When it’s unnecessary to introduce evidence to prove a matter of fact or law and the court takes judicial notice, that matter is deemed established in the case.

The court must take judicial notice of certain matters (Evid C §451) and may take judicial notice of others. Evid C §452. And for a fun twist, judicial notice of discretionary matters may be made mandatory by request. Evid C §453.

Beyond these statutes, decisional law also may authorize or require the court to take judicial notice of a matter.

Here are the matters subject to mandatory judicial notice under Evid C §451:

  • California and United States law;
  • California city and county charters;
  • regulations of state and federal agencies;
  • California rules of professional conduct and rules of court;
  • federal rules of pleading, practice, and procedure;
  • English words, phrases, and legal expressions; and
  • universally known matters (based on a reasonable person test).

Matters subject to discretionary judicial notice under Evid C §452 include:

  • law of sister states;
  • resolutions and private acts of United States and California legislatures;
  • regulations and legislative enactments of public entities;
  • official acts of legislative, executive, and judicial departments of United States or any state;
  • court records from any California court or any federal or sister state court of record;
  • local, sister state, and federal rules of court;
  • foreign law;
  • matters of common knowledge; and
  • matters subject to immediate and accurate verification.

You don’t need to formally request judicial notice for mandatory matters, but it’s good practice to call the court’s attention to such matters in writing or on the record.

Whenever the legal authorities that the court must judicially notice aren’t immediately available to the judge, you should attach copies to your brief or supporting memorandum. Always check local rules for requirements that copies of federal cases and other authorities be attached when cited.

If you want a discretionary matter to become mandatory, you’ll need to

  1. request that the court take judicial notice;
  2. give each adverse party sufficient notice to respond; and
  3. provide the court with enough information to enable it to take judicial notice.

There’s no form in the Evidence Code for requesting trial courts to take judicial notice, but Cal Rules of Ct 3.1113(l) requires that any request for judicial notice be made in a separate document that lists the specific items for which notice is requested. Any request must also comply with Cal Rules of Ct 3.1306(c). To be on the safe side, whenever a document could fall into more than one category for discretionary judicial notice under Evid C §452, request judicial notice under each applicable subsection.

And always check for local court rule requirements. See, e.g., Los Angeles Ct R 3.8 on procedures for requesting judicial notice of the court’s own records in writing.

For everything you need to know about requesting judicial notice at trial, including a sample request form, turn to CEB’s California Trial Practice: Civil Procedure During Trial, chapter 14. The judicial notice rules are also covered comprehensively in CEB’s Jefferson’s California Evidence Benchbook, chapter 49.

Other CEB blog posts you may find useful:

© The Regents of the University of California, 2014. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

One Response

  1. Excellent blog! Let’s see how long my comment lasts. Jan 23 2017

    How about using this one for a mandatory judicial notice:

    CALIFORNIA PENAL CODE SECTION 1427
    When a complaint is presented to a judge in a misdemeanor or infraction case appearing to be triable in the judge’s court, the judge MUST, if satisfied therefrom that the offense has been committed, and that there is reasonable ground to believe that the defendant has committed it, issue a warrant of arrest for the defendant.

    You may ask yourself, who in their right mind would use judicial notice to demand the court to sign an arrest warrant? Well, before you go there, think of all the fine only traffic infractions handed out by the thousands every day. Can you be arrested for a broken taillight, or for not using a turn signal? Of course not, that’s why it’s FINE ONLY.

    So if you command the judge to follow the law under Pen Code Sec 1427 what choice does he have? Without a warrant of arrest, how does the court have jurisdiction to proceed? There is no order of the court to hold you to answer because there is no judicial determination in the record verifying that the REASONABLE facts of an arrestable crime have been stated in the complaint and that the judge may be REASONABLY satisfied that YOU committed it.

    This is not legal advice. Merely something to consider about the tremendous power of judicial notice when properly applied together with the statute and a mandatory duty of the judge in court.

    nukeweldor@gmail.com

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