Vondran Litigation Essentials - California Evidence Rules - Request for Judicial Notice! Call us to retain civil litigation counsel at (877) 276-5084
Introduction
In court, you have to PROVE your allegations and that is usually done through the presentation and authentication of EVIDENCE such as:
- Documentary evidence (ex, a software End User License Agreement) or discovery responses
- Photographs (ex. evidence of photo infringement on a website)
- Witness testimony (ex. "I told the CEO about possible music infringement so I know he was aware") including depositions
- Physical evidence (ex forensic evidence of unauthorized software use or BitTorrent Strike 3 Holdings lawsuit)
But there is another form of evidence known as Judicial notice.
Watch Attorney Steve® Explain Judicial Notice in this Video from the Litigation Whiteboard® series!
Asking the Court to "Take Judicial Notice" of a Fact
Some things are so obvious the Court should not waste the jury's time establishing certain facts, this is where you can ask a court to take judicial notice:
Under Fed. Rules of Evid 201(d):
“A court shall take judicial notice if requested by a party and supplied with the necessary information.” An adjudicative fact may be judicially noticed if it is “not subject to reasonable dispute in that it is either:
(1) generally known within the territorial jurisdiction of the trial court,
or
(2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.”
California state evidence law explains some things that can be subject to judicial notice:
Judicial notice shall be taken of the following:
(a) The decisional, constitutional, and public statutory law of this state and of the United States and the provisions of any charter described in Section 3, 4, or 5 of Article XI of the California Constitution.
(b) Any matter made a subject of judicial notice by Section 11343.6, 11344.6, or 18576 of the Government Code or by Section 1507 of Title 44 of the United States Code.
(c) Rules of professional conduct for members of the bar adopted pursuant to Section 6076 of the Business and Professions Code and rules of practice and procedure for the courts of this state adopted by the Judicial Council.
(d) Rules of pleading, practice, and procedure prescribed by the United States Supreme Court, such as the Rules of the United States Supreme Court, the Federal Rules of Civil Procedure, the Federal Rules of Criminal Procedure, the Admiralty Rules, the Rules of the Court of Claims, the Rules of the Customs Court, and the General Orders and Forms in Bankruptcy.
(e) The true signification of all English words and phrases and of all legal expressions.
(f) Facts and propositions of generalized knowledge that are so universally known that they cannot reasonably be the subject of dispute.
452. Judicial notice may be taken of the following matters to the extent that they are not embraced within Section 451:
(a) The decisional, constitutional, and statutory law of any state of the United States and the resolutions and private acts of the Congress of the United States and of the Legislature of this state.
(b) Regulations and legislative enactments issued by or under the authority of the United States or any public entity in the United States.
(c) Official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States.
(d) Records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.
(e) Rules of court of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.
(f) The law of an organization of nations and of foreign nations and public entities in foreign nations.
(g) Facts and propositions that are of such common knowledge within the territorial jurisdiction of the court that they cannot reasonably be the subject of dispute.
(h) Facts 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.
California 9th Circuit Case Law
Under the Federal Rules of Evidence, a court may take judicial notice of a fact that is “not subject to reasonable dispute in that it is either :
(1) generally known within the territorial jurisdiction of the trial court
or
(2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). Judicial notice may be taken “of court filings and other matters of public record.” Reyn's Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006); Lee, 250 F.3d at 689; Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Bennett v. Medtronic, Inc., 285 F.3d 801, 802 n.2 (9th Cir. 2002).
Rule 201. Judicial Notice of Adjudicative Facts
See federal rules of evidence section 201
(a) Scope. This rule governs judicial notice of an adjudicative fact only, not a legislative fact.
(b) Kinds of Facts That May Be Judicially Noticed. The court may judicially notice a fact that is not subject to reasonable dispute because it:
(1) is generally known within the trial court's territorial jurisdiction; or
(2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.
(c) Taking Notice. The court:
(1) may take judicial notice on its own; or
(2) must take judicial notice if a party requests it and the court is supplied with the necessary information.
As noted:
What, then, are “adjudicative” facts? Davis refers to them as those “which relate to the parties,” or more fully:
“When a court or an agency finds facts concerning the immediate parties—who did what, where, when, how, and with what motive or intent—the court or agency is performing an adjudicative function, and the facts are conveniently called adjudicative facts. * * *
“Stated in other terms, the adjudicative facts are those to which the law is applied in the process of adjudication. They are the facts that normally go to the jury in a jury case. They relate to the parties, their activities, their properties, their businesses.” 2 Administrative Law Treatise 353.
Subdivision (b). With respect to judicial notice of adjudicative facts, the tradition has been one of caution in requiring that the matter be beyond reasonable controversy. This tradition of circumspection appears to be soundly based, and no reason to depart from it is apparent.
Case Law
Upon a properly supported request by a party, a federal court may take judicial notice of adjudicative facts. Fed. R. Evid. 201(a), (d). Facts subject to judicial notice are those which are either:
"(1) generally known within the territorial jurisdiction of the trial court
or
(2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b). A court may not take judicial notice of a matter that is in dispute. Lee v. City of Los Angeles, 250 F.3d 668, 690 (9th Cir. 2001) See Hartford Cas. Ins. Co. v. Fireman's Fund Ins. Co. (N.D.Cal. Aug. 22, 2016, No. 15-cv-02592-SI) 2016 U.S.Dist.LEXIS 111665, at *2-3, fn. 1.).
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In United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc. (9th Cir. 1992) 971 F.2d 244, 248.) the court held:
However, we "may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue." St. Louis Baptist Temple, Inc. v. FDIC, 605 F.2d 1169, 1172 (10th Cir. 1979); see also Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989); E.I. DuPont de Nemours & Co., Inc. v. Cullen, 791 F.2d 5, 7 (1st Cir. 1986); Coney v. Smith, 738 F.2d 1199, 1200 (11th Cir. 1984); Green v. Warden, 699 F.2d 364, 369 (7th Cir.), cert. denied, 461 U.S. 960, 103 S. Ct. 2436, 77 L. Ed. 2d 1321 (1983); Bryant v. Carleson, 444 F.2d 353, 357 (9th Cir.) (court took judicial notice of proceedings and filings in other courts, including a decision of the California Supreme Court issued while the parties' appeal in the federal case was pending), cert. denied, 404 U.S. 967, 92 S. Ct. 344, 30 L. Ed. 2d 287 (1971). [**9]
The proceedings before the California Superior Court are "directly related" to this appeal and may in fact be dispositive. Accordingly, we take notice of that court's final judgment, Clear Lake Indian Bingo Ltd. v. Robinson Rancheria Citizens Council, No. C 718613, (California Superior Court, December 28, 1990), and related filings.
Administrative rulings
Although, as a general rule, a district court may not consider materials not originally included in the pleadings in deciding a Rule 12 motion, Fed. R. Civ. P. 12(d), it "may take judicial notice of matters of public record" and consider them without converting a Rule 12 motion into one for summary judgment. Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (internal quotation marks and citation omitted). Judicial notice is appropriate for records and "reports of administrative bodies." Interstate Natural Gas Co. v. S. Cal. Gas Co., 209 F.2d 380, 385 (9th Cir. 1954). The district court considered the DOE Study, which is clearly a "report[] of [an] administrative bod[y]." Further, it referred to the report only as background material, without relying on it to resolve any factual dispute. We therefore conclude that the district court did not abuse its discretion in taking judicial notice of the DOE Study for the limited purpose for which the court considered it. (United States v. 14.02 Acres (9th Cir. 2008) 547 F.3d 943, 955.)
Other cases before the court or related proceedings
Court may take judicial notice of related proceedings and records in cases also before it. MacMillan Bloedel, Ltd. v. Flintkote Co., 760 F.2d 580, 1985-1 Trade Cas. (CCH) ¶ 66613, 18 Fed. R. Evid. Serv. (CBC) 278, 1985 U.S. App. LEXIS 29968 (5th Cir. 1985).
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Although each case must be viewed on its own merits, court is empowered to and does take judicial notice of court files and records. Schweitzer v. Scott, 469 F. Supp. 1017, 4 Fed. R. Evid. Serv. (CBC) 964, 1979 U.S. Dist. LEXIS 12661 (C.D. Cal. 1979).
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Pursuant to Rule 201 of the Federal Rules of Evidence, the Court may "judicially notice a fact that is not subject to a reasonable dispute because it . . . can accurately and readily be determined from sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b)(2). Courts regularly take judicial notice of court filings and other matters of public record. See Reyn's Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006); Vasserman v. Henry Mayo Newhall Mem'l Hosp., 65 F. Supp. 3d 932, 941-42 (C.D. Cal. 2014) ("A court can consider evidence in deciding a remand motion, including documents that can be judicially noticed. See Monarrez v. Centerra Grp., LLC (C.D.Cal. Nov. 3, 2021, No. 2:21-cv-03596-JWH-PLAx) 2021 U.S.Dist.LEXIS 212769, at *7.).
Attorney Steve® Tip: Whether the documents are considered for the truth of the matter asserted, or not, if a litigant does not factually oppose the request (RJN), does not dispute what the findings were, this point should be pushed. At the very least, the court should consider it for what the document is, Plaintiff being pursued for scamming the public for example, and engaging in deceptive business practices, for example.
Websites and screenshots
Court would not take judicial notice of screenshot, as it could not conclude that it was document whose accuracy could not reasonably be questioned where plaintiffs disputed its authenticity. However, court took judicial notice of other screenshots offered by plaintiffs, as defendant did not dispute their accuracy or relevancy. Perkins v. LinkedIn Corp., 53 F. Supp. 3d 1222, 2014 U.S. Dist. LEXIS 160381 (N.D. Cal. 2014).
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In defamation suit arising out of blog post, court could take judicial notice under Fed. R. Evid. 201(b) of various internet postings presented by defendants, which they relied on not for their truth but merely to show that those statements were made. Farah v. Esquire Magazine, Inc., 863 F. Supp. 2d 29, 40 Media L. Rep. (BNA) 1926, 2012 U.S. Dist. LEXIS 76577 (D.D.C. 2012), aff'd, 736 F.3d 528, 407 U.S. App. D.C. 208, 41 Media L. Rep. (BNA) 2737, 108 U.S.P.Q.2d (BNA) 1894, 2013 U.S. App. LEXIS 23719 (D.C. Cir. 2013).
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In civil rights case alleging unlawful conviction and incarceration, court took judicial notice of document located at newspaper's website because its accuracy could be readily determined. Rivera v. Lake County, 974 F. Supp. 2d 1179, 2013 U.S. Dist. LEXIS 138261 (N.D. Ill. 2013).
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Under Fed. R. Evid. 201(c), federal court can take judicial notice of information on official government web site. Jeffrey M. Goldberg & Assocs., Ltd. v. Holstein (In re Holstein), 299 B.R. 211, 41 Bankr. Ct. Dec. (LRP) 261, 2003 Bankr. LEXIS 1193 (Bankr. N.D. Ill. 2003), aff'd, 2004 U.S. Dist. LEXIS 17637 (N.D. Ill. Aug. 27, 2004).
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Judicial notice was taken of a USPTO notice of publication and a USPTO's Trademark Official Gazelle Publication Confirmation as the requested documents could be accurately and readily determined from sources whose accuracy could not be questioned. Agency Y LLC v. DFO Global Performance Commerce LTD, 2021 U.S. Dist. LEXIS 61412 (C.D. Cal. Feb. 2, 2021), dismissed, 2021 U.S. Dist. LEXIS 126844 (C.D. Cal. Apr. 22, 2021), dismissed, 2021 U.S. Dist. LEXIS 190357 (C.D. Cal. Aug. 4, 2021), dismissed in part, 2021 U.S. Dist. LEXIS 250331 (C.D. Cal. Oct. 27, 2021), dismissed, 2021 U.S. Dist. LEXIS 230314 (C.D. Cal. Dec. 1, 2021), dismissed, 2022 U.S. Dist. LEXIS 5620 (C.D. Cal. Jan. 10, 2022).
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Judicial notice of truth of findings and conclusions is not prohibited per se, but is inappropriate absent some particular indicia of indisputability. Valore v. Islamic Republic of Iran, 700 F. Supp. 2d 52, 2010 U.S. Dist. LEXIS 31259 (D.D.C. 2010).
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