Stafford v. Ware

• Citation: 187 Cal.App.2d 227,9 Cal.Rptr. 706
• Court: California Court of Appeals Court of Appeals
• Decision Date: 08 December 1960
• Parties: Guy N. STAFFORD, Plaintiff and Appellant, v. John H. WARE et al., Defendants and Respondents. Civ. 24509, 24584.

Page 706

9 Cal.Rptr. 706

187 Cal.App.2d 227

Guy N. STAFFORD, Plaintiff and Appellant, v. John H. WARE et al., Defendants and Respondents.

Civ. 24509, 24584.

District Court of Appeal, Second District, Division 3, California.

Dec. 8, 1960.

Rehearing Denied Dec. 30, 1960.

Hearing Denied Jan. 31, 1961.

Guy N. Stafford, in pro. per.

Walter W. Heil, Beverly Hills, for respondents.

BISHOP, Justice pro tem.

Abundant authorities, garnered from the appellate courts of this state, are available in support of either an affirmance or a reversal of the summary judgment from which the appeal is taken. The affidavit presented in support of the motion for the summary judgment was insufficient for the purpose, but was sufficient to attract attention to a former judgment that furnished an adequate defense of res judicata, provided only judicial notice may be taken of the prior case. We have concluded that judicial notice may be taken, and are affirming the judgment.

Before entering the field of 'judicial notice,' we make sure just what we must know to answer the question: under what circumstances is the defense of res judicata possible? We are told this, in French v. Rishell, 1953, 40 Cal.2d 477, 479, 254 P.2d 26, 27: 'The doctrine of res judicata is applicable where the identical issue was decided in a prior case by a final judgment on the merits and the party against whom the plea is asserted was a party or in privity with a party to the prior adjudication.' A slightly broader statement of the principle was stated in Wynn v. Treasure Co., 1956, 146 Cal.App.2d 69, 78, 303 P.2d 1067, 1073: 'The doctrine of res judicata is that an existing final judgment on the merits of a cause rendered by a court of competent jurisdiction is, in all subsequent actions, conclusive of the rights of the parties thereto and of their privies on all material issues which were or might have been determined. French v. Rishell, 40 Cal.2d 477, 479, 254 P.2d 26; Dillard v. McKnight, 34 Cal.2d 209, 213, 209 P.2d 387, 11 A.L.R.2d 835; Bliss v. Security-First Nat. Bank, 81 Cal.App.2d 50, 58, 183 P.2d 312. The application of the principle in a given case depends on affirmative answers to these questions: Was the issue decided in prior litigation identical with the one presented in the action in question? Was there a final judgment on the merits? Was the party against whom the judgment is asserted a a party or in privity with the party to the prior litigation?'

In order that the judgment in a previous action may be used to establish the defense of res judicata, then, the issues in that action must be known to be identical, at least in part, with the issues in the case where the defense is raised, and the judgment must be one on the merits. To determine whether these conditions exist, we must know at least the terms of the judgment. If the judgment does not reveal the issues, as it may but would not where its terms consisted for example of no more than 'It is adjudged that the plaintiff take nothing,' the issue-forming pleadings would have to be known. Either the judgment or the pleadings could become known by introducing them in evidence. Our crucial question in this case remains: May judicial notice be taken of them?

In an endeavor to find an answer, we may not limit our attention to section 1875 of the Code of Civil Procedure where, since 1872, the legislature introduces a number of subjects with the declaration that: 'Courts take judicial notice of the following facts.' Looking over those 'facts' we find no justification for the rules which we find stated with great conflict in the cases. This is not surprising, for while we do not doubt it proper for the legislature to enact laws respecting evidence, that subject is one over which the courts do exercise power to establish rules, and, so far, the legislature has not attempted to say: 'These are the only facts of which judicial notice may be taken.'

We are not going to come anywhere near listing completely the cases that say, without recognizing any exception, that a court may not take judicial notice of another case, though pending, or having been pending, before it. We quote, first, a sentence from one opinion written before the enactment of section 1875: 'In the trial of one case the Court can no more take judicial notice of the record in another case in the same Court, without its formal introduction in evidence, than if it were a record in another Court; much less can this Court take notice of the existence of a record not introduced in evidence in the Court below.' People ex rel. Carrillo v. De La Guerra, 1864, 24 Cal. 73, 78. Section 1875 evidently worked no change in the rule for in Ralphs v. Hensler, 1893, 97 Cal. 296, 304, 32 P. 243, 245, we find it said: '* * * it is too clear to admit of question that the judicial knowledge of the court does not extend to the contents of its records in former actions or proceedings.'

The two cases from which we have just quoted were cited in Sewell v. Price, 1912, 164 Cal. 265, 273, 128 P. 407, 410, following this pronouncement: 'It is well settled that courts cannot in one case take judicial notice of their records in another and different case.' This case of Sewell v. Price has been cited, on the point we are considering, some eleven times, of which we note the two most recent. In Wolfsen v. Hathaway, 1948, 32 Cal.2d 632, 638, 198 P.2d 1, 5, we find it placed following this sentence: 'The authority of a court to take judicial notice of its own records 'is limited to proceedings in the same case.'' The Sewell case is further cited, along with Wolfsen v. Hathaway, supra, and eleven others, in Popcorn Equipment Co. v. Page, 1949, 92 Cal.App.2d 448, 452, 207 P.2d 647, 650 in support of this declaration: 'The arbitrators could not, nor could the court, pass upon the question whether the dismissal of the former action operated as a bar to the consideration of the matter submitted to the arbitrators unless such files were offered in evidence, since a court will not take judicial notice of its own records in cases other than those in the case on trial.'

There are a number of cases that express the same principle, but with a recognition that exceptions are possible. Just before the sentence that is quoted from Wolfsen v. Hathaway, supra, in the immediately preceding paragraph, the court made this statement with its implicit admission of possible exceptions: 'It is the general rule that 'the court will not take judicial notice of other actions, not even those pending or concluded in the same court.' Johnston v. Ota, 43 Cal.App.2d 94, 96, 110 P.2d 507, 509;' In Popcorn Equipment Co. v. Page, 1949, 92 Cal.App.2d 448, 453, 207 P.2d 647, 651, supra, also, after making the unequivocal statement quoted above, the court continued: 'Only in exceptional cases will the court depart from the general rule, for example in order to avoid a resulting unreasonable hardship.'

We find the exception expressed in other terms. Here, again, we are not listing all the cases, but making use of a sufficient number to illustrate the 'no, except' doctrine. An interesting one is City of Los Angeles v. Abbott, 1932, 217 Cal. 184, 192-193, 17 P.2d 993, 995, in which two previous opinions had been written, one in the District Court of Appeal (300 P. 854), and a second in the Supreme Court (12 P.2d 19). Without noting the precise question before the court in this 'hard case' this is a part of what was said: 'Respondent further contends that this court cannot judicially notice the injunction judgment under the authority of Reed v. Cross, 116 Cal. 473, 48 Pac. 491; Sewell v. Johnson, 165 Cal. 762, 134 Pac. 704, Ann.Cas.1915B, 645, and other cases. Although those cases undoubtedly indicate that ordinarily the appellate court will not take judicial notice of its judgment in other cases, that rule has no application to the peculiar facts of the present case. The reason for the rule prohibiting the court from taking judicial notice of its judgment in another case is obvious. Ordinarily it would be unfair to a respondent to permit the appellant to rely on a judgment not contained in the record because the respondent has had no opportunity to argue its legal effect before the trial court, and to introduce, if he can, refuting testimony. Here there is no dispute but that the judgment involved was presented to the trial court and its legal effect considered by that court in rendering its judgment. The rule precluding the court from taking judicial notice of its judgment in another case is not an inflexible one, and has several exceptions. * * * The fact that such an exception exists indicates that the rule is not based on lack of power but is a rule of expediency, to be applied or refused application as the equities and justice of the cases require.'

Exceptions to the general rule, are also noted in Hogan, 1955, 131 Cal.App.2d 281, 284, 280 P.2d 64, 66: 'While ordinarily a court takes judicial notice of the files in the same case, it does not usually do so of its files in another case in the same court * * * although this is a rule of convenience, and it may do so to prevent injustice.'

In affirming a judgment for the defendant after a demurrer had been sustained without leave to amend, the Supreme Court, in Willson v. Security-First Nat. Bank, 1943, 21 Cal.2d 705, 710-711, 134 P.2d 800, 804 disagreed with appellant's contention that judicial notice of accounting proceedings should be taken, saying: 'The defense of res judicata was specifically raised by demurrer. Generally a court takes judicial notice only of proceedings in the same case. * * * But in some circumstances judicial notice will be taken of proceedings in other cases in the same court in the interests of justice. Hammell v. Britton, 19 Cal.2d 72, 119 P.2d 333; Johnston v. Ota, 43 Cal.App.2d 94, 110 P.2d 507.'

Before beginning a consideration of what we group as a third class of cases, we should note two distinction and...