In the Court of Appeal: Motion to Augment or Request for Judicial Notice?

Both a motion to augment and request for judicial notice allow parties to add matter to the record on appeal. However, which one to use depends primarily on what matter you seek to add and whether it was presented to the superior court.

The most important distinction is that a request for judicial notice can be used to add material to the record on appeal that was never before the trial court, or of which the trial court refused to take judicial notice. (See, e.g., Haworth v. Superior Court (Ossakow) (2010) 50 Cal.4th 372, 379.) In practice, however, Courts of Appeal will generally not take judicial notice of matter that was not before the superior court absent “exceptional circumstances.” Nor will a Court of Appeal take judicial notice of a matter that is not relevant to a dispositive issue on appeal.

In contrast, a motion to augment can only be used to add material to the record on appeal that was previously presented to the superior court, such as exhibits admitted into evidence at trial or documents lodged with the court.

The following are examples of the types of matter that can be added to the record on appeal through judicial notice:

  • California decisional, constitutional and statutory law;
  • Regulations or legislative enactments issued by or under the authority of the United States or any public entity in the United States;
  • Official acts of federal and state legislative, executive and judicial departments;
  • Sister state decisional, constitutional and statutory law;
  • The superior court judgment;
  • A foreign country judgment;
  • Legislative materials;
  • Newspaper articles;
  • the existence of a factual finding in another proceeding but not of the truth of that finding.

Basically, a Court of Appeal can judicially notice any matter that the superior court could have. A request for judicial notice must be made by formal, noticed motion in the Court of Appeal and filed separately from briefs. It must also be accompanied by a proposed order (CRC 8.252(a)(1)) and a copy of the matter to be judicially noticed. (CRC 8.252(a)(2).)

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