Are factual statements by the Legislature in a statute admissible as evidence in a California state court action?

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.

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It was error for the hearing officer, the board, and the superior court to take judicial notice, as they admittedly did, of the ultimate fact in dispute, namely, that 'the Communist Party is, and was at all times herein mentioned [1953-1957], an organization which advocates the overthrow of the Government of the United States or of the State of California by force or violence or other unlawful means.'

We do not hold that evidence of legislative findings and judicial decisions bearing upon such ultimate fact may not be supplied under the doctrine of judicial notice. But such evidence is not conclusive of the issue in dispute. It is simply to be weighed and considered together with all other evidence in the case.

In Reserve Insurance, the California Supreme Court found it “ appropriate to consider Reserve's insolvency” on the disputed issue of coverage under an excess insurance policy. (Reserve Insurance Co. v. Pisciotta, supra, 30 Cal.3d at p. 813, 180 Cal.Rptr. 628, 640 P.2d 764.) In the high court's words, “because the fact is not in dispute, we do not usurp the fact-finding function of the trial court. A prompt determination by us avoids the necessity for repetitive litigation of issues that have been fully briefed. Furthermore, the court records regarding Reserve's

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insolvency would properly be the subject of judicial notice. (Evid. Code, § 452, subd. (d) (1).)” (Ibid.)

[11] Our case is different. Here, the critical post-judgment fact is the legislative finding of blight. Blight was the central disputed factual issue in the trial court. Accepting the later-enacted section 33333.13 as a binding factual determination improperly circumvents “the normal sequence of litigation.” (Reserve Insurance Co. v. Pisciotta, supra, 30 Cal.3d at p. 813, 180 Cal.Rptr. 628, 640 P.2d 764.)

[12] Moreover, the particular legislative finding proffered here is not one that compels judicial deference. “The legislative role necessitates that policy decisions be made.” (Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1219, 70 Cal.Rptr.2d 745.) “The performance of the policymaking role of the Legislature necessitates that the Legislature engage in certain factfinding processes. These are not the type of case-specific factual determinations that are intrinsic to the judicial function, but are instead ‘an indispensable incident and auxiliary to the proper exercise of legislative power.’ ” (Ibid.) “Although courts must give legislative findings great weight and should uphold them unless unreasonable or arbitrary,” courts also have an obligation to ensure that the legislative body “has drawn reasonable inferences based on substantial evidence.” (Professional Engineers v. Department of Transportation (1997) 15 Cal.4th 543, 569, 63 Cal.Rptr.2d 467, 936 P.2d 473, internal quotation marks and citations omitted; accord, People v. McKee (2010) 47 Cal.4th 1172, 1206-1207, 104 Cal.Rptr.3d 427, 223 P.3d 566.)

As California Supreme Court authority recognizes, legislative “findings, standing alone and without any apparent evidentiary or empirical support, would be insufficient to supplant the trial court's express findings to the contrary.” (Professional Engineers v. Department of Transportation, supra, 15 Cal.4th at p. 572, 63 Cal.Rptr.2d 467, 936 P.2d 473.) So far as we can determine from the parties' submissions, that is the situation here. Neither party has submitted any document indicating that the Legislature considered any empirical data concerning blight in Glendora.

For these reasons, we decline to treat section 33333.13 as a binding determination on the disputed factual question of remaining blight in Project Area 3.

Although a court may judicially notice a variety of matters (Evid.Code, § 450 et seq.), only relevant material may be noticed. "But judicial notice, since it is a substitute for proof [citation], is always confined to those matters which are relevant to the issue at hand." (Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301, 155 Cal.Rptr. 507.) "While Evidence Code, section 451, provides in mandatory terms that certain matters designated therein must be judicially noticed, the provisions contained therein are subject to the qualification that the matter to be judicially noticed must be relevant (Evid. Code, §§ 350, 450)", as well as "qualified by Evidence Code, section 352...." (Mozetti v. City of Brisbane (1977) 67 Cal.App.3d 565, 578, 136 Cal.Rptr. 751; see also Del Mar Terrace Conservancy, Inc. v. City Council (1992) 10 Cal.App.4th 712, 744, 12 Cal.Rptr.2d 785; ITT Telecom Products Corp. v. Dooley (1989) 214 Cal.App.3d 307, 313, fn. 4, 262 Cal.Rptr. 773; 2 Jefferson, Cal.Evidence Benchbook (2d ed. 1982) § 47.1, p. 1749 ["Matters otherwise subject to judicial notice must be relevant to an issue in the action."].) We therefore "decline" to judicially notice material that "has no bearing on the limited legal question at hand." (People v. Stoll (1989) 49 Cal.3d 1136, 1144, fn. 5, 265 Cal.Rptr. 111, 783 P.2d 698.)

Plaintiff asks us to judicially notice a 1994 report of the United States Surgeon

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[875 P.2d 77] General, entitled "Preventing Tobacco Use Among Young People," and a 1994 report to the California Department of Health Services entitled "Tobacco Use in California." Both are irrelevant to the preemption question here, which interprets a 1969 federal statute. Moreover, to the extent plaintiff asks us to notice the truth of matters asserted in those documents, and not merely their existence, Reynolds has stated a valid objection. While courts may notice official acts and public records, "we do not take judicial notice of the truth of all matters stated therein." (Love v. Wolf (1964) 226 Cal.App.2d 378, 403, 38 Cal.Rptr. 183; accord, People v. Long (1970) 7 Cal.App.3d 586, 591, 86 Cal.Rptr. 590.) "[T]he taking of judicial notice of the official acts of a governmental entity does not in and of itself require acceptance of the truth of factual matters which might be deduced therefrom, since in many instances what is being noticed, and thereby established, is no [7 Cal.4th 1064] more than the existence of such acts and not, without supporting evidence, what might factually be associated with or flow therefrom." (Cruz v. County of Los Angeles (1985) 173 Cal.App.3d 1131, 1134, 219 Cal.Rptr. 661.) We therefore deny plaintiff's first two requests for judicial notice.

The Rosens also contend that the trial court improperly limited the evidence that went to the jury in several ways, thus denying them a fair trial. First, they criticize the trial court for failing to take judicial notice of two statutes setting out congressional and legislative findings on asbestos exposure. (See 20 U.S.C. § 3601; Health & Saf. Code, § 25926, subd. (a).) In the trial court, they requested that the court take judicial notice of these statutes. The trial court denied this request, first viewing the evidence as irrelevant. After appearing to concede that the evidence had some relevance, the court excluded the evidence as more prejudicial than probative. The Rosens cited this trial court refusal to take mandatory judicial notice as error in their motion for new trial, without success.

A trial court must take judicial notice of the public statutory law of California and the United States. (Evid. Code,¹³ § 451, subd. (a).) However, only relevant evidence may be judicially noticed, despite the mandatory language of the judicial notice provisions. (Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063, cert. den. sub nom. R. J. Reynolds Tobacco Co. v. Mangini (1994) 513 U.S. 1016, overruled on other grounds in In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1276; see §§ 210, 350.) On appeal, a trial court's ruling on the admissibility of evidence is typically reviewed for an abuse of discretion. We test whether or not the proffered evidence was relevant. (City of Ripon v. Sweetin (2002) 100 Cal.App.4th 887, 900; see People v. Alvarez (1996) 14 Cal.4th 155, 201, cert. den. sub nom. Alvarez v. California (1997) 522 U.S. 829.) Thus, our first inquiry is to determine whether the proffered evidence was relevant.

The evidence was not relevant on the issue of foreseeability of the risk. The federal statute proffered into evidence by the Rosens was enacted by Congress in 1980. (See 20 U.S.C. § 3601 [Pub. L. No. 96-270 (June 14, 1980) 94 Stat. 487].) The state provision that they sought to admit into evidence before the jury was added by our Legislature in 1986. (See Health & Saf. Code, § 25926, subd. (a) [Stats. 1986, ch. 116, §§ 1, 3, pp. 262-264 (eff. May 28, 1986)].) Neither of these statutes was in effect during the 1958-1962 time period when Dr. Rosen was in dental school and was using the dental tape supplied by the Regents. Thus, neither of them was relevant on the issue of what risks were reasonably scientifically knowable at the earlier time when the Regents supplied Dr. Rosen with asbestos dental tape. (See Carlin v. Superior Court, supra, 13 Cal.4th at pp. 1116-1117.)

The Rosens argue that this proffered evidence was relevant on the issue of causation—on whether there is such a thing as a safe minimum level of airborne asbestos. This issue was in dispute in the trial court. Evidence is relevant if it has a tendency to prove any fact in dispute that is of consequence in the action. (§ 210.) Although the state statute says nothing on this issue, the federal statute on asbestos in schools recites that medical science has not yet established a minimum level of exposure to asbestos fibers that was considered safe. Thus, the federal statute appears to be relevant to the issue of causation. (See, e.g., City of Ripon v. Sweetin, supra, 100 Cal.App.4th at p. 900.)

This conclusion does not end our inquiry on appeal. The trial court found the proffered evidence was more prejudicial than probative. (See § 352.) The Rosens also challenge this aspect of the trial court's ruling. We consider whether the trial court properly excluded the federal statute as more prejudicial than probative, having already determined that the state provision was not relevant.

A trial court may properly exclude relevant evidence of which state law requires it to take judicial notice if that evidence is more prejudicial than probative. (Mangini v. R. J. Reynolds Tobacco Co., supra, 7 Cal.4th at p. 1063; see § 352.) It has discretion to determine whether proffered evidence is more prejudicial than probative. On appeal, we test this ruling for an abuse of discretion. (Boeken v. Philip Morris, Inc. (2005) 127 Cal.App.4th 1640, 1685, cert. den. sub nom. Boeken v. Philip Morris USA Inc. (2006) 547 U.S. 1018 [prior conviction]; Akers v. Miller (1998) 68 Cal.App.4th 1143, 1147 [gruesome photographs].) We will not overturn this exercise of discretion unless the trial court acted in an arbitrary, capricious or patently absurd manner resulting in a miscarriage of justice. (Boeken v. Philip Morris, Inc., supra, 127 Cal.App.4th at p. 1685.)

The Rosens assert that this evidence—as the only disinterested evidence of whether there was a safe minimum level of airborne asbestos exposure—had great probative value and dispute that the probative value of the evidence was outweighed by its potential for prejudice. The trial court expressed the concern that the recitation in the statutes enacted many years after Dr. Rosen was exposed to asbestos in dental school would be used as a substitute for expert testimony on the subject of causation. It appears that the trial court feared that the jury would not weigh and consider the expert testimony that both sides offered on the underlying issue, but would find this proffered evidence to be conclusive on it.

Evidence may be excluded as more prejudicial than probative if the evidence would create a substantial danger of misleading the jury. (§ 352.) The trial court will not be found to have abused its discretion unless—when all circumstances before it have been considered—it exceeded the bounds of reason. (Denham v. Superior Court, supra, 2 Cal.3d at p. 566.) Applying this standard, we agree that the federal statute could have misled the jury into believing that the underlying causation issue was not really a matter in dispute because of the force of that law. Thus, we find that the trial court acted within its discretion when it excluded the federal statute as more prejudicial than probative.¹⁴