Judicial Notice On Appeal (Part Two): Discretionary Subject Matter

• Published date: 01 November 2022
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation
• Law Firm: Hanson Bridgett LLP
• Author: Mr David C. Casarrubias

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...