Judicial Notice, A Misunderstood Tool

By Tony Sarabia
Published in Los Angeles Daily Journal January 3, 2013
Litigators often reach for doctrines such as res judicata or collateral estoppel to narrow
the scope of a case. Res judicata prevents re-litigation of the same claim that was
litigated in a prior case. Collateral estoppel prevents re-litigation of the same issue that
was decided in a prior case. These are powerful tools which may short circuit the
opposing side’s case or important issues in that case. Surprisingly, there is another tool
with potential power in the same league as that of res judicata and collateral estoppel,
but it is almost always used in its weakest form. While judicial notice of court records is
often requested, its scope and meaning is frequently misunderstood and it is rarely
used to prevent re-litigation of an issue.
A request for judicial notice is made under California Evidence Code Section 453.
Section 452(d) authorizes courts to take judicial notice of court records. Case law
follows the code in allowing judicial notice of court records. Duggal v. G.E. Capital
Communications Services, Inc., 81 Cal. App.4th 81, 86 (2000). Judicial notice may be
taken of records in another court’s file or in a court’s own files. Thornton v. Rhoden,
245 Cal. App. 2d 80, 96 n.17 (1966).
There are two vastly different kinds of judicial notice of court records. A request for
judicial notice of a court record, without more, only directs the court to acknowledge
the existence of documents in court files. For example, a court could take judicial notice
that an answer to a complaint has been filed. This type of judicial notice achieves
nothing with respect to the content of the documents. To continue with the example,
the answer might allege that the complaint is barred by the statute of limitations.
Simply requesting judicial notice of the answer does not compel the court to accept the
validity of the defense of the statute of limitations. This makes perfect sense, because
that defense has not been proved, it is only alleged. While this analysis is obvious with
respect to pleadings, it also applies to other documents in a court file – such as
contracts. A request to take judicial notice of a contract in the court’s file does not
achieve anything with respect to the content of that contract; it does not establish any
facts or findings.
But a party can seek a far more powerful type of judicial notice of court records – one
which does establish facts or findings that cannot be litigated again. This type of judicial
notice focuses on the content of a document and asks that the court be bound by that
content. To achieve this type of judicial notice, a party must determine what kinds of
documents are eligible for this more meaningful type of judicial notice. It must select
one of those eligible documents, and it must provide authority to the court to support
the request. The authority must go beyond the routine request for notice that a
document is in a court file.