7 UNITED STATES DISTRICT COURT 8 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PAUL HARNER, an individual, Case No.: 18cv01993-LL-MDD
12 Plaintiff, ORDER DENYING PLAINTIFF’S REQUEST FOR JUDICIAL NOTICE v. 13 [ECF Nos. 77, 84, 88] 14 USAA GENERAL INDEMNITY COMPANY, a Texas Corporation, 15 Defendant. 16 17 I. INTRODUCTION 18 Before the Court is Plaintiff Paul Harner’s (“Plaintiff”) Request for Judicial Notice. 19 ECF No. 77. After considering the papers submitted, supporting documentation, and 20 applicable law, the Court DENIES Plaintiff’s Request for Judicial Notice. 21 II. BACKGROUND 22 The Court incorporates by reference the factual and procedural history from its 23 previous order in Harner v. USAA Gen. Indem. Co., --- F. Supp. 3d ---, No. 3:18-CV- 24 01993-LL-MDD, 2022 WL 718489, at *1 (S.D. Cal. Mar. 10, 2022). 25 III. DISCUSSION 26 Plaintiff asks the Court to take judicial notice of the following documents: (1) 27 California Code of Regulations, Title 10, Chapter 5, Subchapter 7.5 (“Fair Claims 28 Settlement Practices Regulations”) Sections 2695.1; 2695.2; and 2695.7 and (2) the 1 Judicial Opinion of the California Supreme Court in Wilson v. 21st. Century Ins. Co., 42 2 Cal. 4th 713 (2007). Plaintiff relies on various cases, most of which are non-binding, to 3 argue that the Court should take judicial notice of these documents. ECF No. 77 at 2. 4 Defendant USAA General Indemnity Company (“Defendant”) responds that Plaintiff’s 5 request “is nothing more than a thinly veiled attempt to continue to inject additional, 6 improper jury instructions at trial.” ECF No. 88 at 1. As for the Wilson opinion, Defendant 7 argues that Wilson is fifteen years old, involved different parties, different facts, and a 8 different insurance policy. Id. at 3:3-7. As for the California Insurance Code provisions, 9 Defendant argues that the Court should also deny this request because “Plaintiff has not 10 cited a single case in which a Ninth Circuit court took judicial notice of California’s 11 Insurance Code regulations at a similar procedural stage in litigation.” Id. at 3:13-18. 12 Defendant also points out that this case does not involve a claim that Defendant violated 13 any of California’s Insurance Code provisions, nor is such a claim recognized under 14 California law. Id. at 4:1-11. Plaintiff replies that the Fair Claims Settlement Practices 15 Act is not only relevant but also comprises the specific statutory framework upon which 16 Defendant’s actions are measured. ECF No. 91 at 2:2-5. Plaintiff points out that 17 Defendant’s expert admitted those regulations governed Defendant’s actions while 18 Defendant’s corporate representative testified that Defendant adopts the regulations as part 19 of its company claims-handling polices. Id. at 2:6-10. 20 At any stage of a proceeding, courts may take judicial notice of (1) facts not subject 21 to reasonable dispute and “generally known within the trial court’s territorial jurisdiction” 22 and (2) adjudicative facts, which “can be accurately and readily determined from sources 23 whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(1)-(2). “Judicial 24 notice is a means by which adjudicative facts not seriously open to dispute are established 25 as true without the normal requirement of proof by evidence.” Dippin’ Dots, Inc. v. Frosty 26 Bites Distribution, LLC, 369 F.3d 1197, 1204-05 (11th Cir. 2004). Because judicial notice 27 “bypasses the safeguards which are involved with the usual process of proving facts by 28 competent evidence in district court,” the process of “taking … judicial notice of facts is, 1 as a matter of evidence law, a highly limited process.” Id.; see also 29 Am. Jur. 2d 2 Evidence § 28 (noting that “[j]udicial notice of adjudicative facts must be approached 3 cautiously because … [w]hen a trial court takes judicial notice of adjudicative facts, it 4 authorizes the jury to accept facts as true without requiring formal proof”). 5 This Court finds it inappropriate to take judicial notice of the documents requested 6 by Plaintiff for several reasons. First, the Federal Rules of Evidence “govern[ ] judicial 7 notice of an adjudicative fact only, not a legislative fact.” Fed. R. Evid. 201(a). “The 8 precise line of demarcation between adjudicative and legislative facts is not always easily 9 identified.” United States v. Gould, 536 F.2d 216, 219 (8th Cir. 1976). “Adjudicative 10 facts” are “those to which the law is applied in the process of adjudication” and concern 11 “the immediate parties who did what, where, when, how, and with what motive or intent 12 the court.” Id. Such facts are those “that normally go to the jury in a jury case.” Id. 13 “Legislative facts, on the other hand, do not relate specifically to the activities or 14 characteristics of the litigants.” Id. at 220. They “are established truths, facts or 15 pronouncements that do not change from case to case but apply universally, while 16 adjudicative facts are those developed in a particular case.” Id. at 219-20. “A court 17 generally relies upon legislative facts when it purports to develop a particular law or policy 18 and thus considers material wholly unrelated to the activities of the parties.” Id. at 220. 19 Here, the Court is not developing a particular law or policy, so judicial notice of legislative 20 facts would be inappropriate. Further, the insurance code regulations and opinion which 21 Plaintiff asks the Court to take judicial notice of does not concern the immediate parties or 22 case. Thus, there are no adjudicative facts of which the Court may take judicial notice. 23 See Grason Elec. Co. v. Sacramento Mun. Util. Dist., 571 F. Supp. 1504, 1521 (E.D. Cal. 24 1983) (noting that “[a]djudicative facts are those to which the law is applied in the process 25 of adjudication … [and] normally go to the jury in a jury case.”). 26 Second, the majority of the authority on which Plaintiff relies pre-dates the Federal 27 Rules of Evidence. For example, Plaintiff cites to 1885, 1920, 1931 cases for the 28 proposition that “[t]he law of any state of the Union, whether depending upon statutes or 1 upon judicial opinions, is a matter of which the courts of the United States are bound to 2 take judicial notice, without plea or proof.” ECF No. 77 at 2:1-9 (citing Lamar v. Micou, 3 114 U.S. 218, 223 (1885); Judith Basin Land Co. v. Fergus County, 50 F.2d 792, 794 (9th 4 Cir. 1931); Washington-Alaska Bank v. Dexter Horton Nat Bank of Seattle, Wash, 263 F. 5 304, 312 (9th Cir. 1920) (“The court below was bound to take judicial notice of the statutes 6 of Nevada, under which the insolvent bank was organized and which constituted its 7 charter.”). However, as stated, these decisions predated the enactment of the Federal Rules 8 of Evidence in 1972. 9 Plaintiff also cites to D&L Framing, LLC v. Clarendon Am. Ins. Co., No. 205-cv- 10 01307-RLH-GWF, 2007 WL 9725258, at *2 (D. Nev. Sept. 13, 2007) and AKI Fam. Ltd. 11 P’ship v. City of San Marcos, No. 3:06-cv-0997-JM-AJB, 2007 WL 628044, at *1 n.2 (S.D. 12 Cal. Feb. 23, 2007) (Miller, J.). ECF No. 77 at 2:5-15. However, in both of those cases, 13 the courts took judicial notice of statutes or regulations but not for the purpose of proving 14 the facts therein.
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7 UNITED STATES DISTRICT COURT 8 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PAUL HARNER, an individual, Case No.: 18cv01993-LL-MDD
12 Plaintiff, ORDER DENYING PLAINTIFF’S REQUEST FOR JUDICIAL NOTICE v. 13 [ECF Nos. 77, 84, 88] 14 USAA GENERAL INDEMNITY COMPANY, a Texas Corporation, 15 Defendant. 16 17 I. INTRODUCTION 18 Before the Court is Plaintiff Paul Harner’s (“Plaintiff”) Request for Judicial Notice. 19 ECF No. 77. After considering the papers submitted, supporting documentation, and 20 applicable law, the Court DENIES Plaintiff’s Request for Judicial Notice. 21 II. BACKGROUND 22 The Court incorporates by reference the factual and procedural history from its 23 previous order in Harner v. USAA Gen. Indem. Co., --- F. Supp. 3d ---, No. 3:18-CV- 24 01993-LL-MDD, 2022 WL 718489, at *1 (S.D. Cal. Mar. 10, 2022). 25 III. DISCUSSION 26 Plaintiff asks the Court to take judicial notice of the following documents: (1) 27 California Code of Regulations, Title 10, Chapter 5, Subchapter 7.5 (“Fair Claims 28 Settlement Practices Regulations”) Sections 2695.1; 2695.2; and 2695.7 and (2) the 1 Judicial Opinion of the California Supreme Court in Wilson v. 21st. Century Ins. Co., 42 2 Cal. 4th 713 (2007). Plaintiff relies on various cases, most of which are non-binding, to 3 argue that the Court should take judicial notice of these documents. ECF No. 77 at 2. 4 Defendant USAA General Indemnity Company (“Defendant”) responds that Plaintiff’s 5 request “is nothing more than a thinly veiled attempt to continue to inject additional, 6 improper jury instructions at trial.” ECF No. 88 at 1. As for the Wilson opinion, Defendant 7 argues that Wilson is fifteen years old, involved different parties, different facts, and a 8 different insurance policy. Id. at 3:3-7. As for the California Insurance Code provisions, 9 Defendant argues that the Court should also deny this request because “Plaintiff has not 10 cited a single case in which a Ninth Circuit court took judicial notice of California’s 11 Insurance Code regulations at a similar procedural stage in litigation.” Id. at 3:13-18. 12 Defendant also points out that this case does not involve a claim that Defendant violated 13 any of California’s Insurance Code provisions, nor is such a claim recognized under 14 California law. Id. at 4:1-11. Plaintiff replies that the Fair Claims Settlement Practices 15 Act is not only relevant but also comprises the specific statutory framework upon which 16 Defendant’s actions are measured. ECF No. 91 at 2:2-5. Plaintiff points out that 17 Defendant’s expert admitted those regulations governed Defendant’s actions while 18 Defendant’s corporate representative testified that Defendant adopts the regulations as part 19 of its company claims-handling polices. Id. at 2:6-10. 20 At any stage of a proceeding, courts may take judicial notice of (1) facts not subject 21 to reasonable dispute and “generally known within the trial court’s territorial jurisdiction” 22 and (2) adjudicative facts, which “can be accurately and readily determined from sources 23 whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(1)-(2). “Judicial 24 notice is a means by which adjudicative facts not seriously open to dispute are established 25 as true without the normal requirement of proof by evidence.” Dippin’ Dots, Inc. v. Frosty 26 Bites Distribution, LLC, 369 F.3d 1197, 1204-05 (11th Cir. 2004). Because judicial notice 27 “bypasses the safeguards which are involved with the usual process of proving facts by 28 competent evidence in district court,” the process of “taking … judicial notice of facts is, 1 as a matter of evidence law, a highly limited process.” Id.; see also 29 Am. Jur. 2d 2 Evidence § 28 (noting that “[j]udicial notice of adjudicative facts must be approached 3 cautiously because … [w]hen a trial court takes judicial notice of adjudicative facts, it 4 authorizes the jury to accept facts as true without requiring formal proof”). 5 This Court finds it inappropriate to take judicial notice of the documents requested 6 by Plaintiff for several reasons. First, the Federal Rules of Evidence “govern[ ] judicial 7 notice of an adjudicative fact only, not a legislative fact.” Fed. R. Evid. 201(a). “The 8 precise line of demarcation between adjudicative and legislative facts is not always easily 9 identified.” United States v. Gould, 536 F.2d 216, 219 (8th Cir. 1976). “Adjudicative 10 facts” are “those to which the law is applied in the process of adjudication” and concern 11 “the immediate parties who did what, where, when, how, and with what motive or intent 12 the court.” Id. Such facts are those “that normally go to the jury in a jury case.” Id. 13 “Legislative facts, on the other hand, do not relate specifically to the activities or 14 characteristics of the litigants.” Id. at 220. They “are established truths, facts or 15 pronouncements that do not change from case to case but apply universally, while 16 adjudicative facts are those developed in a particular case.” Id. at 219-20. “A court 17 generally relies upon legislative facts when it purports to develop a particular law or policy 18 and thus considers material wholly unrelated to the activities of the parties.” Id. at 220. 19 Here, the Court is not developing a particular law or policy, so judicial notice of legislative 20 facts would be inappropriate. Further, the insurance code regulations and opinion which 21 Plaintiff asks the Court to take judicial notice of does not concern the immediate parties or 22 case. Thus, there are no adjudicative facts of which the Court may take judicial notice. 23 See Grason Elec. Co. v. Sacramento Mun. Util. Dist., 571 F. Supp. 1504, 1521 (E.D. Cal. 24 1983) (noting that “[a]djudicative facts are those to which the law is applied in the process 25 of adjudication … [and] normally go to the jury in a jury case.”). 26 Second, the majority of the authority on which Plaintiff relies pre-dates the Federal 27 Rules of Evidence. For example, Plaintiff cites to 1885, 1920, 1931 cases for the 28 proposition that “[t]he law of any state of the Union, whether depending upon statutes or 1 upon judicial opinions, is a matter of which the courts of the United States are bound to 2 take judicial notice, without plea or proof.” ECF No. 77 at 2:1-9 (citing Lamar v. Micou, 3 114 U.S. 218, 223 (1885); Judith Basin Land Co. v. Fergus County, 50 F.2d 792, 794 (9th 4 Cir. 1931); Washington-Alaska Bank v. Dexter Horton Nat Bank of Seattle, Wash, 263 F. 5 304, 312 (9th Cir. 1920) (“The court below was bound to take judicial notice of the statutes 6 of Nevada, under which the insolvent bank was organized and which constituted its 7 charter.”). However, as stated, these decisions predated the enactment of the Federal Rules 8 of Evidence in 1972. 9 Plaintiff also cites to D&L Framing, LLC v. Clarendon Am. Ins. Co., No. 205-cv- 10 01307-RLH-GWF, 2007 WL 9725258, at *2 (D. Nev. Sept. 13, 2007) and AKI Fam. Ltd. 11 P’ship v. City of San Marcos, No. 3:06-cv-0997-JM-AJB, 2007 WL 628044, at *1 n.2 (S.D. 12 Cal. Feb. 23, 2007) (Miller, J.). ECF No. 77 at 2:5-15. However, in both of those cases, 13 the courts took judicial notice of statutes or regulations but not for the purpose of proving 14 the facts therein. See, e.g., D&L Framing, 2007 WL 9725258, at *2 (taking “judicial notice 15 of numerous out-of-state cases, noting only the opinion and not of the truth of the facts 16 cited therein” as well the “Nevada Revised Statute § 686A.310, et. seq. and Nevada 17 Administrative Code § 686A.670, as federal courts can take judicial notice of state statutes 18 and administrative regulations”) (emphasis added); AKI Fam., 2007 WL 628044, at *1 n.2 19 (taking judicial notice, sua sponte, of Section 16.04.070 of the San Marcos Municipal 20 Code, governing proposed rules for a mobile home park, in a case arising out of the Fair 21 Housing Act). Plaintiff also cites to Labowitz v. Bird Rides, Inc., No. 2:18-cv-9329-MWF 22 (SK), 2020 WL 2334116, at *7 (C.D. Cal. Mar. 31, 2020), but in that case, the court denied 23 a request for judicial notice as moot while noting that courts “may take judicial notice of 24 state laws, regulations, and other matters of public record.” Id. (emphasis added). In 25 Labowitz, it was also “unclear whether the documents which Defendants request[ed were] 26 proper for judicial notice.” Id. Thus, Labowitz does not require this Court to take judicial 27 notice of the cited Insurance regulations. 28 As for the Wilson opinion, Defendant contends that the Court should not take judicial 1 notice of that opinion or instruct the jury that it constitutes accepted fact given at least one 2 court within the Ninth Circuit has found an identical request improper. Id. at 2:15-3:2 3 (citing Tate v. Univ. Med. Ctr. of S. Nevada, No. 209-cv-01748-JAD-NJK, 2016 WL 4 7045711, at *7 (D. Nev. Dec. 2, 2016), aff’d sub nom. Tate v. Univ. Med. Ctr., 773 F. 5 App’x 405 (9th Cir. 2019)). In Tate, 2016 WL 7045711, at *7, the plaintiff similarly asked 6 “the court to take judicial notice of the legal conclusions of other judges in this district that 7 were made in the Chudacoff and Williams cases, and of the Ninth Circuit’s opinion 8 in Chudacojf.” However, the district court noted that “Rule 201 authorizes judicial notice 9 only of facts, not statements of law, so this request falls outside the scope of what Rule 201 10 affords.” Id. Moreover, “[t]he jury receives the law from the judge via jury instructions.” 11 Id. Thus, “[t]o the extent that the legal principles in these cases are binding precedent— 12 and are properly submitted in proposed jury instructions—they will be incorporated into 13 the trial that way.” Id. As a result, the court denied the request to use FRE 201 to establish 14 facts in the case. Id. The Tate court also cited to a First Circuit Court of Appeals case: 15 Judicial notice of law is the name given to the commonsense doctrine that the rules of evidence governing admissibility and 16 proof of documents generally do not make sense to apply to 17 statutes or judicial opinions—which are technically documents—because they are presented to the court as law, not 18 to the jury as evidence.... Although judicial notice of fact and 19 judicial notice of law share the phrase ‘judicial notice,’ they draw on different rules of practice. Rule 201 ‘governs only judicial 20 notice of adjudicative facts.’ .... Judicial notice of law is outside 21 the scope of Rule 201, and derives from practical considerations and case law that do not rely on Rule 201 or principles of 22 evidence. 23 Getty Petroleum Marketing, Inc. v. Capital Terminal Co., 391 F.3d 312, 322 (1st Cir. 2004) 24 (Lipez, J., concurring) (internal citations omitted). 25 Plaintiff attempts to distinguish Tate by arguing “[t]he party requesting judicial 26 notice of a court case in Tate was seeking to have his argument about what the case means 27 judicially noticed,” and the judge “would not allow that editorialization.” ECF No. 91 at 28 1 2:24-26. Plaintiff contends “[t]hat is fundamentally different from taking judicial of the 2 law.” Id. at 3:26. However, the Court agrees with both Defendant and the Tate court that 3 the jury should be apprised of the law through jury instructions, not through judicial notice. 4 In sum, while the Court may permissibly take judicial notice of facts from court 5 records and statutes, Plaintiff’s request does not specify which facts, if any, he would like 6 the Court to take judicial notice of. For instance, he does not ask the Court to take judicial 7 notice that the various insurance regulations he discusses were in effect on a certain date, 8 or that Defendants were aware of them. Thus, while courts can and have taken judicial 9 notice of other opinions, they do not take judicial notice of the facts contained in those 10 opinions. See, e.g., Perez v. Kroger Co., 336 F. Supp. 3d 1137, 1141 (C.D. Cal. 11 2018), appeal dismissed, No. 18-56458, 2020 WL 2029351 (9th Cir. Mar. 27, 2020) 12 (taking judicial notice of a decision in another case “but not the facts contained therein”); 13 Peviani v. Hostess Brands, Inc., 750 F. Supp. 2d 1111, 1117 (C.D. Cal. 2010) (taking 14 judicial notice of two district court decisions while noting “that these decisions have no 15 binding authority on this court); Marsh v. San Diego Cty., 432 F. Supp. 2d 1035, 1043 16 (S.D. Cal. 2006) (noting that “[a] court may take judicial notice of the existence of matters 17 of public record, such as a prior order or decision, but not the truth of the facts cited 18 therein”). Only in his reply brief, does Plaintiff clarify that he “has asked the Court to issue 19 a finding that these regulations are—in fact—California law and the Wilson opinion is— 20 in fact—an opinion of the California Supreme Court.” ECF No. 91 at 4:2-4. He states he 21 “seeks the Court to accept the fact that the law says what it says vis a vis the regulations 22 and that the Supreme Court said what it said vis a vis the Wilson case, and to subsequently 23 instruct the jury accordingly.” Id. at 4:13-15. The Court finds this clarification only shows 24 why the request is unnecessary. The law is the law regardless of whether the Court takes 25 judicial notice of it. 26 Thus, the Court DENIES Plaintiff’s request for judicial notice because it is not 27 targeted towards adjudicative facts properly subject to judicial notice. 28 / / / CONCLUSION 2 For the above reasons, the Court ORDERS as follows: 3 1. Plaintiff's Request for Judicial Notice is DENIED. 4 2. The parties shall not submit any further filings with the Court. Any 5 || outstanding issues may be raised on the first day of trial. 6 IT IS SO ORDERED. eat 7|| DATED: April 28, 2022 g HON. LINDA LOPEZ 9 United States District Judge
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