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...
