Judicial Notice of Internet Evidence — Court May Take Notice of Fact News Articles Published But Not Substance — Same for Government Records in California

Inewsource v. Superior Court, 2015 Cal. App. Unpub. LEXIS 3629 (Cal. Ct. App. May 26, 2015):

Petitioner inewsource seeks disclosure of documents from real party in interest North County Transit District (the District) under the California Public Records Act (PRA). (Gov. Code, 6250 et seq.)[1] The documents at issue reflect the results of a "Leadership Assessment Program" conducted at the District's expense by the Rady School of Management at the University of California at San Diego. In response to inewsource's PRA request, the District declined to provide the documents on the grounds they were exempt from disclosure. The trial court agreed and denied inewsource's petition for writ of mandate compelling disclosure.

Inewsource petitions this court for a writ of mandate directing the trial court to vacate its order, grant the petition, and compel disclosure. Inewsource contends the exemptions cited by the trial court, for personnel [*2]  files ( 6254, subd. (c)) and the PRA's "catch-all" provision ( 6255, subd. (a)), are inapplicable. We agree in part, and therefore grant the petition in part, as we will explain.

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DISCUSSION

I

 As an initial matter, we must consider inewsource's request for judicial notice, which includes requests inewsource made to the trial court (but for which the trial court issued no [*8]  ruling) and requests to this court in the first instance.[4] Evidence Code section 459, governing requests for judicial notice in this court, provides in part as follows: "The reviewing court shall take judicial notice of: (1) each matter properly noticed by the trial court; and (2) each matter that the trial court was required to notice under [Evidence Code] Section 451 or 453. The reviewing court may take judicial notice of any matter specified in [Evidence Code] Section 452." (Evid. Code, 459, subd. (a); see Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 881.) If a matter is properly subject to judicial notice, "[e]xclusionary rules of evidence do not apply except for [Evidence Code] Section 352 and the rules of privilege." (Evid. Code, 454, subd. (b)(2).)

 Inewsource's first request for judicial notice in the trial court covered four news articles published by inewsource (and in some cases KPBS as well) concerning alleged incompetence and malfeasance at the District and one memorandum issued by the California Department of Industrial Relations discussing regulatory requirements related to personnel records. The fact that news articles have been published may be judicially noticed under Evidence Code section 452, subdivisions (g) and (h). (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 193 (Ragland).) However, a court may not take judicial notice of the truth of the matters stated therein. (Id. at pp. 193-194.) Similarly, official government records may be judicially noticed under Evidence Code section 452, subdivision (c), but the truth [*9]  of the matters stated therein may not. (Ragland, supra, 209 Cal.App.4th at p. 193 ["Although the audit report is a government document, we may not judicially notice the truth of its contents."].) We further find that these matters have at least some relevance to the issues before the court. Upon the proper request of a party, the trial court was required to judicially notice the existence of the news articles and the state memorandum. (Evid. Code, 453.) We are therefore required to do so as well. (Evid. Code, 459, subd. (a).)

 Inewsource's second request for judicial notice in the trial court covered more than 30 documents. The existence of the news stories and Internet Web pages referenced in the request will be judicially noticed for the reasons we have already stated.[5] (Evid. Code, 452, subds. (g) & (h); 453, 459, subd. (a); see Ragland, supra, 209 Cal.App.4th at p. 193.) Similarly, the existence of the District correspondence, District e-mails, the District's annual report, a third-party audit commissioned by the District, and other District documents referenced in the request will be judicially noticed. (Evid. Code, 452, subds. (c), (g) & (h); 453, 459, subd. (a); see Landstar Global Logistics, Inc. v. Robinson & Robinson, Inc. (2013) 216 Cal.App.4th 378, 388, fn. 4; Ragland, supra, 209 Cal.App.4th at p. 193.) The referenced portions of the Public Contract Code, sections 100 through 102, are subject to mandatory judicial notice. (Evid. Code, 451, subd. (a); 459, subd. (a).) Again, we find that these matters have at least some relevance to the issues before the court. We will not take judicial notice of the existence [*10]  or contents of the inewsource correspondence referenced in the request because they are not judicially noticeable as a fact or proposition in common knowledge or not reasonably subject to dispute. (See Evid. Code, 452, subds. (g) & (h).) We also will not take judicial notice of District documents and correspondence filed in inewsource's exhibit appendix to its trial court writ petition. Those documents are already part of the record before this court, and judicial notice is unnecessary. Any objections made in the trial court have not been adequately urged on appeal and supported by reasoned argument and authority. They are therefore waived. (See Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.)

 Inewsource's request for judicial notice in this court covers the District's business case justification for the Program, other District documents and correspondence, an Internet Web page published by the California Department of Human Resources, two California Regional Water Quality Board orders, portions of a Federal Transit Administration review of the District, and various inewsource news articles and Internet Web pages. Inewsource contends judicial notice of these documents is warranted under Evidence Code section 452. Inewsource did not seek judicial notice of these documents in the trial [*11]  court, claiming without explanation that "page constraints" prevented it from doing so. To the extent these documents are already part of the record, e.g., in inewsource's exhibit appendix, judicial notice is unnecessary as we have explained. As to documents not already part of the record, we decline to take judicial notice of these documents in these proceedings because inewsource did not request judicial notice in the trial court. (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3; Safeco Ins. Co. of America v. Superior Court (2009) 173 Cal.App.4th 814, 834, fn. 14.)

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