Kaufman & Broad v. Performance Plastering

• Decision Date: 03 October 2005
• Docket Number: No. C049391.,C049391.
• Citation: 34 Cal.Rptr.3d 520,133 Cal.App.4th 26
• Court: California Court of Appeals Court of Appeals
• Parties: KAUFMAN & BROAD COMMUNITIES, INC. et al., Cross-Complainants and Respondents, v. PERFORMANCE PLASTERING, INC., Cross-Defendant and Appellant.

34 Cal.Rptr.3d 520

133 Cal.App.4th 26

KAUFMAN & BROAD COMMUNITIES, INC. et al., Cross-Complainants and Respondents, v. PERFORMANCE PLASTERING, INC., Cross-Defendant and Appellant.

No. C049391.

Court of Appeal, Third District.

October 3, 2005.

Dee Anne Ware, Cooper White & Cooper LLP, Walnut Creek, CA, for Cross-Complainant and Respondent.

George E. Murphy, Farmer Murphy Smith & Alliston, Melissa B. Aliotti, Read & Aliotti, Sacramento, CA, for Cross-Defendant and Appellant.

OPINION ON REHEARING OF RULING ON MOTION FOR JUDICIAL NOTICE OF LEGISLATIVE HISTORY DOCUMENTS

SIMS, J.

Pursuant to rule 22(a) of the California Rules of Court, appellant Performance Plastering, Inc., has moved this court to take judicial notice of various documents that, in the view of appellant, constitute cognizable legislative history of a 1998 amendment to Revenue and Taxation Code section 19719 (Assembly Bill 1950 (AB 1950)). (Stats.1998, ch. 856, § 2.)

I

Legislative History Generally

Before turning to the specifics of appellant's request for judicial notice, we have some general comments about requests for judicial notice of legislative history received by this court.

Many attorneys apparently believe that every scrap of paper that is generated in the legislative process constitutes the proper subject of judicial notice. They are aided in this view by some professional legislative intent services. Consequently, it is not uncommon for this court to receive motions for judicial notice of documents that are tendered to the court in a form resembling a telephone book.¹ The various documents are not segregated and no attempt is made in a memorandum of points and authorities to justify each request for judicial notice. This must stop. And the purpose of this opinion is to help attorneys to better understand the role of legislative history and to encourage them to request judicial notice only of documents that constitute cognizable legislative history.

Preliminarily, we note that resort to legislative history is appropriate only where statutory language is ambiguous. As the California Supreme Court has said, "Our role in construing a statute is to ascertain the Legislature's intent so as to effectuate the purpose of the law. [Citation.] In determining intent, we look first to the words of the statute, giving the language its usual, ordinary meaning. If there is no ambiguity in the language, we presume the Legislature meant what it said, and the plain meaning of the statute governs. [Citation.]" (Hunt v. Superior Court (1999) 21 Cal.4th 984, 1000, 90 Cal.Rptr.2d 236, 987 P.2d 705, followed in Curle v. Superior Court (2001) 24 Cal.4th 1057, 1063, 103 Cal.Rptr.2d 751, 16 P.3d 166; accord: Hoechst Celanese Corp. v. Franchise Tax Bd. (2001) 25 Cal.4th 508, 519, 106 Cal.Rptr.2d 548, 22 P.3d 324.) Thus, "[o]nly when the language of a statute is susceptible to more than one reasonable construction is it appropriate to turn to extrinsic aids, including the legislative history of the measure, to ascertain its meaning." (Diamond Multimedia Systems, Inc. v. Superior Court (1999) 19 Cal.4th 1036, 1055, 80 Cal.Rptr.2d 828, 968 P.2d 539, followed in People v. Farell (2002) 28 Cal.4th 381, 394, 121 Cal.Rptr.2d 603, 48 P.3d 1155; accord: Esberg v. Union Oil Co. (2002) 28 Cal.4th 262, 269, 121 Cal.Rptr.2d 203, 47 P.3d 1069; Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1119-1120, 81 Cal Rptr.2d 471, 969 P.2d 564, and authorities cited therein; Professional Engineers in Cal. Government v. State Personnel Bd. (2001) 90 Cal.App.4th 678, 688-689, 109 Cal.Rptr.2d 375, but see Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 613, fn. 7, 15 Cal.Rptr.3d 793, 93 P.3d 386.)

Nonetheless, we will not require a party moving for judicial notice of legislative history materials to demonstrate the ambiguity of the subject statute at this juncture. This is so for two reasons. First, the ambiguity vel non of a statute will often be the central issue in a case, and parties would incur needless expense briefing the issue twice — once in a motion for judicial notice and again in a party's brief on the merits. Second, motions for judicial notice of legislative history materials are decided by writ panels of three justices who may not be the justices later adjudicating the case on the merits. The panel adjudicating the case on the merits should not be stuck with an earlier determination, by a different panel, as to the ambiguity vel non of a statute.

Even though we will grant motions for judicial notice of legislative history materials without a showing of statutory ambiguity, we do so with the understanding that the panel ultimately adjudicating the case may determine that the subject statute is unambiguous, so that resort to legislative history is inappropriate.

Even where statutory language is ambiguous, and resort to legislative history is appropriate, as a general rule in order to be cognizable, legislative history must shed light on the collegial view of the Legislature as a whole. (See California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 701, 170 Cal.Rptr. 817, 621 P.2d 856.) Thus, to pick but one example, our Supreme Court has said, "We have frequently stated . . . that the statements of an individual legislator, including the author of a bill, are generally not considered in construing a statute, as the court's task is to ascertain the intent of the Legislature as a whole in adopting a piece of legislation. [Citations.]" (Quintano v. Mercury Casualty Co. (1995) 11 Cal.4th 1049, 1062, 48 Cal.Rptr.2d 1, 906 P.2d 1057.)

In order to help this court determine what constitutes properly cognizable legislative history, and what does not, in the future motions for judicial notice of legislative history materials in this court should be in the following form:²

1. The motion shall identify each separate document for which judicial notice is sought as a separate exhibit;

2. The moving party shall submit a memorandum of points and authorities citing authority why each such exhibit constitutes cognizable legislative history.

To aid counsel in this respect, we shall now set forth a list of legislative history documents that have been recognized by the California Supreme Court or this court as constituting cognizable legislative history together with a second list of documents that do not constitute cognizable legislative history in this court.

DOCUMENTS CONSTITUTING COGNIZABLE LEGISLATIVE HISTORY IN THE COURT OF APPEAL FOR THE THIRD APPELLATE DISTRICT

A. Ballot Pamphlets: Summaries and Arguments/Statement of Vote (Robert L.

v. Superior Court (2003) 30 Cal.4th 894, 903, 135 Cal.Rptr.2d 30, 69 P.3d 951; Jahr v. Casebeer (1999) 70 Cal.App.4th 1250, 1255-1256, 1259, 83 Cal.Rptr.2d 172; Aguimatang v. California State Lottery (1991) 234 Cal.App.3d 769, 790-791, 286 Cal.Rptr. 57.)

B. Conference Committee Reports (Crowl v. Commission on Professional Competence (1990) 225 Cal.App.3d 334, 347, 275 Cal.Rptr. 86.)

C. Different Versions of the Bill (Quintano v. Mercury Casualty Co., supra, 11 Cal.4th at p. 1062, fn. 5, 48 Cal.Rptr.2d 1, 906 P.2d 1057; People v. Watie (2002) 100 Cal.App.4th 866, 884, 124 Cal.Rptr.2d 258; San Rafael Elementary School Dist. v. State Bd. of Education (1999) 73 Cal.App.4th 1018, 1025, fn. 8, 87 Cal.Rptr.2d 67; People v. Patterson (1999) 72 Cal.App.4th 438, 442-443, 84 Cal.Rptr.2d 870.)

D. Floor Statements (Dowhal v. SmithKline Beecham Consumer Healthcare (2004) 32 Cal.4th 910, 926, fn. 6, 12 Cal.Rptr.3d 262, 88 P.3d 1; People v Drennan (2000) 84 Cal.App.4th 1349, 1357-1358, 101 Cal.Rptr.2d 584; In re Marriage of Siller (1986) 187 Cal.App.3d 36, 46, fn. 6, 231 Cal.Rptr. 757.)

E. House Journals and Final Histories (People v. Patterson, supra, 72 Cal.App.4th at pp. 442-443, 84 Cal.Rptr.2d 870 [procedural history of bill from Assembly final history]; Joyce G. v. Superior Court (1995) 38 Cal.App.4th 1501, 1509, 45 Cal.Rptr.2d 805; Natural Resources Defense Council v. Fish & Game Com. (1994) 28 Cal.App.4th 1104, 1117, 33 Cal.Rptr.2d 904, fn. 11 [House Conference Report]; Rosenthal v. Hansen (1973) 34 Cal.App.3d 754, 760, 110 Cal.Rptr. 257 [appendix to Journal of the Assembly]; Rollins v. State of California (1971) 14 Cal.App.3d 160, 165, fn. 8, 92 Cal.Rptr. 251 [appendix to Journal of the Senate].)

F. Reports of the Legislative Analyst (Heavenly Valley v. El Dorado County Bd. of Equalization (2000) 84 Cal.App.4th 1323, 1339-1340, 101 Cal.Rptr.2d 591; People v. Patterson, supra, 72 Cal.App.4th at p. 443, 84 Cal.Rptr.2d 870; Board of Administration v. Wilson (1997) 52 Cal.App.4th 1109, 1133, 61 Cal.Rptr.2d 207; Aguimatang v. California State Lottery, supra, 234 Cal.App.3d at p. 788, 286 Cal.Rptr. 57; People v. Gulbrandsen (1989) 209 Cal.App.3d 1547, 1562, 258 Cal.Rptr. 75.)

G. Legislative Committee Reports and Analyses (Hutnick v. United States Fidelity & Guaranty Co. (1988) 47 Cal.3d 456, 465, fn. 7, 253 Cal.Rptr. 236, 763 P.2d 1326.)

Assembly Committee on Criminal Law and Public Safety (People v. Baniqued (2000) 85 Cal.App.4th 13, 27, fn. 13, 101 Cal.Rptr.2d 835.)

Assembly Committee on Finance, Insurance and Commerce (Martin v. Wells Fargo Bank (2001) 91 Cal.App.4th 489, 496, 110 Cal.Rptr.2d 653.)

Assembly Committee on Governmental Organization (Aguimatang v. California State Lottery, supra, 234 Cal.App.3d at p. 788, 286 Cal.Rptr. 57.)

Assembly Committee on Health (Kaiser Foundation Health Plan, Inc. v. Zingale (2002) 99 Cal.App.4th 1018, 1025, 121 Cal.Rptr.2d 741; Khajavi v. Feather River Anesthesia Medical Group (2000) 84 Cal.App.4th 32, 50, 100 Cal.Rptr.2d 627; Zabetian v. Medical Board (2000) 80 Cal.App.4th 462, 468, 94 Cal.Rptr.2d 917; Clemente v. Amundson (1998) 60 Cal.App.4th 1094, 1106, 70 Cal.Rptr.2d 645.)

Assembly Committee on Human Services (Golden Day Schools, Inc. v. Department of Education (1999) 69 Cal.App.4th 681, 692, 81 Cal.Rptr.2d 758.)

Assembly...