MCGUIRE AND HESTER, A CALIFORNIA CORPORATION VS. CARMEL CONSTRUCTION WEST, LLC, ET AL

In Scott, JPMorgan Chase filed a demurrer to the second amended complaint arguing that it rehashed the plaintiff’s earlier pleading. (Scott, supra, 214 Cal.App.4th at p. 750.) JPMorgan did

July 31, 2026 Law and Motion Calendar

HONORABLE MICHAEL L. MAU, Department 20 ________________________________________________________________________ not file a new request for judicial notice with its demurrer, but the parties and the trial court proceeded as if the earlier request for judicial notice could be considered in ruling on the demurrer. (Ibid.) In sustaining without leave to amend the demurrer to the second amended complaint, the court noted that the prior request for judicial notice was granted and based its ruling on these previously judicially noticed documents. (Id. at pp. 750-751.)

This included judicial notice of a 2008 purchase agreement pursuant to which JP Morgan Chase acquired the assets of Washington Mutual from the Federal Deposit Insurance Corporation. (Id., at p. 751.) On appeal, the plaintiff argued the trial court erred in taking judicial notice of the agreement and the facts therein. (Id. at p. 752.)

The Court of Appeal found that official acts by the FDIC were subject to judicial notice under Evidence Code section 452(c), which provides for judicial notice of official acts of the legislative, executive and judicial departments of the United States and of any state of the United States. (Scott, supra at p. 752.) This includes executive acts performed by administrative agencies. (Ibid.) Further, judicial notice may be taken under Evidence Code section 452(h) of facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. (Id. at p. 753.)

The purchase agreement and the transfer to JP Morgan of Washington Mutual assets were not reasonably subject to dispute and were capable of ready determination since the plaintiff did not question with specificity the authenticity, completeness or legal effect of the agreement posted on the official FDIC website. (Ibid.) The authenticity of the agreement was also buttressed by its posting on the FDIC website. (Id. at p. 755.)

In contrast, a court would not take judicial notice of the existence of a contract between private parties under Evidence Code section 452(h). (See Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1145.) In Gould, an employer requested that the court take judicial notice of a written employment contract between the employer and employee under section 452(h). (Ibid.) The Court of Appeal found that the existence of a contract between private parties cannot be established by judicial notice under section 452(h). (Ibid.)

The parties disputed whether an oral or written contract existed, and thus the dispute could not be resolved by resorting to facts and propositions that are not reasonably subject to dispute. (Ibid.) “Moreover, before a trial court could find that the existence of a contract was not reasonably subject to dispute the court would have to engage in the kind of fact-finding appropriate for a trial on the merits, not for a hearing on demurrer." (Id., at p. 1146.) Most matters subject to judicial notice can be established by reference to a statute, court file, treatise or other document, but a court cannot simply look at a piece of paper and conclude as a matter of law it is a contract between the parties. (Ibid.)

In this case, the City requests judicial notice pursuant to Evidence Code sections 452 and 453 without specifying which subdivision under section 452 applies. The City instead relies on Scott, which found judicial notice proper under Evidence Code section 452(c) and (h). Section 452(c) however, plainly does not apply here. Section 452(h) also does not assist as this is a purported contractual agreement that very well can be subject to dispute.. Even if the court found that the rationale in Scott applies to an agreement between two private parties, the City only provides an unsigned copy of the agreement. (Castella Decl., Exh. A.) The agreement is blank as to a signature, name and title. The date is also blank, even though the agreement purports to be

July 31, 2026 Law and Motion Calendar

HONORABLE MICHAEL L. MAU, Department 20 ________________________________________________________________________ executed as of the effective date. It seems likely that the parties may have entered into a signed and dated agreement, but that is not before the court. As such, the City has not shown that this agreement is not reasonably subject to dispute and is capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. The City’s Request for Judicial Notice of the CSA is therefore DENIED.

First and Third Causes of Action

The City’s Motion to the First and Third Causes of Action depend on the court taking judicial notice of the CSA. Since the court denies the request, the Motion for Judgment on the Pleadings to the First and Third Causes of Action is also DENIED.

Second Cause of Action

The City’s arguments in support of the Motion to the Second Cause of Action rely on the subcontract between Plaintiff McGuire and Hester (“Plaintiff”) and the Carmel Defendants. The City did not request judicial notice of it. (See City’s Request for Judicial Notice.) As such, the Carmel Defendants argue that the City’s arguments fail because they rely on the subcontract. In reply, the City claims that the subcontract is attached as an exhibit to the Complaint. (City’s Reply, p. 4, fn. 1.)

As already mentioned, judicial notice of a matter is to be specified in the notice of motion or supporting authorities. (Code Civ. Proc., § 438, subd. (d).) Further, a request for judicial notice shall list the specific items of which judicial notice is requested. (Cal. Rules of Court, rule 3.1113(l); Cal. Rules of Court, rule 3.1306(c)(1).) Since the City did not request judicial notice of the subcontract, the court does not take judicial notice of it.

For this reason, the City’s Motion to the Second Cause of Action is DENIED.

Any party who contests a tentative ruling must email Dept20@sanmateocourt.org with a copy to all other parties by 4:00 p.m. stating, without argument, the portion(s) of the tentative ruling that the party contests.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, Counsel for the prevailing party shall prepare for the Court’s signature a written order consistent with the Court’s ruling pursuant to CRC Rule 3.1312 and provide written notice of the ruling to all parties who have appeared in the action, as required by law and by the CRC. Please note that Local Rule 3.403(b)(iv) states in part “prevailing party on a tentative ruling is required to prepare a proposed order REPEATING VERBATIM the tentative ruling” (emphasis added). The order should be filed or e-filed only, do not email or mail a hard copy to the Court.