Appellate courts have broad power when it comes to judicial notice, and that power is comprised of two types of matters: mandatory and discretionary. In the first part of this two-part post, I discussed matters that an appellate court must judicially notice. (See Judicial Notice on Appeal: Mandatory Subject Matter, Appellate Insight, October 2021.) This post will discuss those matters that an appellate court may judicially notice.
Relevant Evidence Code Provisions
Once again, the starting point is California Evidence Code section 451. It provides six subcategories of matter that shall be judicially noticed. Next, California Evidence Code section 452 provides additional categories of matter that may be judicially noticed to the extent they are not embraced within section 451. An appellate court may take judicial notice of the matter embraced within either section 451 or 452, to the same extent that a trial court could notice the same matter. (Cal. Evid. Code, § 459, subd. (b).)
Discretionary Judicial Notice
Matter that appellate courts may judicially notice include any matter specified in Evidence Code section 452. (Cal. Evid. Code, § 459, subd. (a).) That subject matter includes the following to the extent it is not embraced within Evidence Code section 451:
- The laws of any state of the United States, the United Nations, any other organization of nations, or foreign nations including their public entities;
- The resolutions and private acts of Congress and the California Legislature;
- State and federal regulations and legislative enactments;
- The executive actions of any branch of government of any state of the United States or the federal government;
- Court records of any state of the United States or the federal government;
- The rules of court of any state of the United States or the federal government;
- Facts and propositions that are of such common knowledge within the court’s jurisdiction that they cannot reasonably be the subject of dispute; and,
- Facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resorting to sources of reasonably indisputable accuracy.
(Cal. Evid. Code, § 452, subds. (a)-(h).)
As with mandatory subject matter, an appellate court will analyze whether discretionary subject matter should be judicially noticed by considering the following: why the matter to be noticed is relevant to the appeal; whether the matter to be noticed was presented to the trial court and whether judicial notice was taken by that court; if notice was not taken by the trial court, why the matter is subject to judicial notice under section 452; and, whether the matter to be noticed relates to proceedings occurring after the order or judgment that this the subject of the appeal. (Cal. Rules of Court, Rule 8.252(a)(2).) If the request passes muster, the appellate court may exercise its discretion to take judicial notice as requested.
Notably, appellate courts will often take judicial notice of matter presented under Evidence Code section 452 so long as the party opponent does not oppose the request. (E.g. Bennett v. Rancho California Water Dist. (2019) 35 Cal.App.5th 908, 918 [granting an unopposed request for judicial notice of legislative history under Evidence Code section 452, subd. (c)].) However, if the request is opposed, the court will only grant the request if the matter is relevant and noticeable.
Examples of recent published decisions taking discretionary judicial notice under Evidence Code section 452 demonstrate the kind of matter that is at play in such motions. (E.g. People v. Lastra (August 31, 2022) __ Cal.Rptr.3d __, 2022 WL 4493826, at *3 [judicially noticing campaign fundraising email address as a fact and proposition that was of such common knowledge within the territorial jurisdiction of the court because “the email was sent from a campaign address well known among those in San Luis Obispo’s small legal community”]; Yumori-Kaku v. City of Santa Clara (2020) 59 Cal.App.5th 385, 399, fn. 5 [judicially noticing the vote count of an election as being capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy, namely, the County Registrar]; Environmental Law Foundation v. Beech-Nut Nutrition Corp. (2015) 235 Cal.App.4th 307, 325, fn. 7 [judicially noticing certain mathematical principles of statistics and geometry as also being capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy].)
Keep in mind that a vast majority of cases dealing with judicial notice relegate their ruling either granting or denying the request to the footnotes of the opinion, and often with little to no explanation. Therefore, it is critical to comb through the annotated cases for Evidence Code section 452 to see if you can find a case where similar matter was discretionarily judicially noticed—even if the court did so without explanation. If no case is on point, then focus on giving the court sufficient information to determine that it has discretion to notice the matter by resorting to the categories listed in section 452, subdivisions (a)-(h).
Evidence Code section 452 is essentially a catch-all for matter that doesn’t quite fit within the mandatory provisions of Evidence Code section 451. So long as the matter provided is relevant and noticeable, there is a good chance an appellate court will exercise its discretion and take judicial notice.
David is an Associate with Hanson Bridgett’s Appellate practice group where he focuses on writs, appeals, and law and motion. He has filed numerous amicus curiae briefs on an array of issues, and has been Counsel of Record for amici in both the California and United States Supreme Courts.
