Judicial notice can be a great tool, if used correctly. Unfortunately, as aptly put by one appellate court, “Many attorneys apparently believe that every scrap of paper that is generated . . . constitutes the proper subject of judicial notice.” Kaufman & Broad Communications, Inc. v. Performance Plastering, Inc. (2005) 133 Cal.App.4th 26, 29. As Gary writes, “with a better understanding of how judicial notice actually works, attorneys can more effectively use this weapon.”
Although “it is proper for a court to take judicial notice of court documents, such as the decision filed in a previous action,” that does not mean that all facts contained therein will be in evidence in the current matter. This is clearly pointed out in a recent case, Ragland v. U.S. Bank. Nat. Assoc. (2012) 209 Cal.App.4th 182, 193.
So where can it help to take judicial notice? In Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 746, the appellate court affirmed that when “judicial notice is requested of a legally operative document – like a contract – the court may take notice not only of the fact of the document and its recording or publication, but also facts that clearly derive from its legal effect.”
If attorneys keep such basic principals in mind, they can more effectively utilize judicial notice, and not have it be just “another misfire.”
A State Bar certified appellate specialist, and Archer Norris partner, Gary A. Watt handles writs and appeals in all California appellate courts, including the Supreme Court, and the United States Court of Appeals for the Ninth Circuit. He is also director of the Hastings Appellate Project.
This article was originally published in the Daily Journal and subscription-based Daily Journal website at www.dailyjournal.com.