Legal Question in Civil Litigation in California

You fail to understand the relationship between the Evidence Code and the applicable portions of the California Rules of Court. California statutory law only supersedes the California Rules of Court only when they conflict. They rarely conflict, and by judicial decree, the California Rules of Court have the effect of law.

Under the Evidence Code, an appellate court has the same power to take judicial notice as the trial court and, under Evidence Code section 459 subdivision (a) it may take judicial notice of a matter in a tenor different from a trial court. (Jordan v. Los Angeles (1968) 267 Cal.App.2d 794.)

The California Rules of Court regarding judicial notice are procedural. You first reference CRC rule 8.843, which makes me assume that you are appealing to the Appellate Division of the Superior Court from a limited civil action. That distinction is important, as the Courts of Appeal and the Appellate Divisions are two separate appellate courts, and their rules differ greatly. CRC rules 8.843 applies to civil cases, and involves exhibits. Rules 8.870 and 8.921 apply to appeals from misdemeanor criminal actions and appeals from infractions, respectively.

Exhibts under rule 8.843 apply to original exhibits that were admitted in evidence, refused, or lodged in the trial court below, but that were not copied in the clerk's transcript under rule 8.832 or included in the original file under rule 8.833. That rule sets forth a separate procedure for exhibits to be transmitted to the Appellate Division of the Superior Court.

Rule 8.809 governs judicial notice on an appeal in a limited civil case. That rule requires you to submit a separate "motion."

To obtain judicial notice by a reviewing court under Evidence Code section 459, a party must serve and file a separate motion with a proposed order.

(2)The motion must state:

(A)Why the matter to be noticed is relevant to the appeal;

(B)Whether the matter to be noticed was presented to the trial court and, if so, whether judicial notice was taken by that court; and

(C)Whether the matter to be noticed relates to proceedings occurring after the order or judgment that is the subject of the appeal.

(b) Copy of matter to be judicially noticed

If the matter to be noticed is not in the record, the party must serve and file a copy with the motion or explain why it is not practicable to do so.

That rule governs all appeals in limited civil cases. I suggest that you remove the document from your opening brief, and file a separate motion like the rules require.

If the exhibit was offered at trial then it is already deemed part of the record. You do not need the Court to judicially notice it. But you do have to submit it properly and serve a copy on the other parties.

Submitting an exhibit improperly "with" the brief would only justify the clerk's rejection of the exhibit, not of the brief. But if you *attached* the exhibit to the brief, then the clerk would reject it if it was more than ten pages long and/or if it was not an exhibit offered in the trial court. You could prevent the clerk from rejecting it by concurrently filing a motion for leave to attach a longer exhibit; whether to accept the brief would then be the Court's decision rather than the clerk's. You would need a good reason why the exhibit should be attached despite exceeding the 10-page limit.

If the document you want to submit was not an exhibit in the trial court, then you cannot attach it to the brief. This often comes up when litigants try to create a new exhibit solely for purposes of the appeal -- for example, a table describing some of the evidence from the trial. Such exhibits are generally not allowed at all; they certainly may not be attached to a brief. The same is true of exhibits that were not offered in the trial court.

Feel free to contact me directly if you want to discuss your case further. I am a certified appellate specialist (per the State Bar of California's Board of Legal Specialization) with many years of experience in both civil and criminal appeals.