"Technical knowledge is not requisite to conclude that complications from a simple injection, a surgical clamp left in the patient's body, or a shoulder injury from an appendectomy indicate negligence. Common sense is enough to make that evaluation." (citations omitted)
How later courts described this case
- "Technical knowledge is not requisite to conclude that complications from a simple injection, a surgical clamp left in the patient's body, or a shoulder injury from an appendectomy indicate negligence. Common sense is enough to make that evaluation." (citations omitted)
- section 1094.5(b) gives the superior court original jurisdiction to decide whether there was a fair trial and the agency proceeded in the manner required by law
Written by the judges who cited it.
The opinion
KAUS, J.
I concur in the result and in the disposition. In doing so I feel bound to state my view that the opinion’s discussion of the legislative v. adjudicative fact dichotomy, and of section 11515 of the Government Code, as well as its apparent embrace of Professor Davis’ views on the function of judicial notice in administrative proceedings, are unnecessary to the decision.
Were it essential to do so, I would argue at greater length that the effect of taking judicial notice under section 11515 of the Government Code is precisely the same as the effect of such taking under sections 451 and 452 of the Evidence Code. Matter judicially noticed under the Evidence Code must be accepted as a fact. (Evid. Code, § 457.) If a party wishes to offer evidence contrary to the fact noted, he should not be permitted to do so, although the availability of such evidence strongly suggests that the court erred in taking judicial notice in the first place.
There is, however, language in section 11515 of the Government Code which could be interpreted to mean that matter judicially— “officially” — noticed can be contradicted. 1 Section 11515 antedates the Evidence Code by over two decades and was written at a time when there was a division^ of judicial and scholarly opinion on the issue whether judicially noticed facts could be contradicted. (McCormick, Evidence (2d ed. 1972) § 332, pp. 769-771.) Today the trend, as exemplified by section 457 of our Evidence Code and rule 201(g) of the Federal Rules of Evidence; 2 is unmistakably in favor of conclusiveness of facts judicially noticed. Reconciliation of section 11515 with the Evidence Code is, fortunately, easy enough: if the language concerning an opportunity to refute noticed matter is interpreted as applying before the tribunal makes its final decision on whether to take notice, the two codes are in harmony.
Bird, C. J., concurred.
Appellant’s petition for a rehearing was denied May 20, 1982, and the opinion was modified to read as printed above.
‘Any such party shall be given a reasonable opportunity on request to refute the officially noticed matters .. . . ”
“In a civil action or proceeding, the court shall instruct the jury to accept as conclusive any fact judicially noticed. In a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed.”