The opinion
CARTER, J.
— I dissent.
The majority opinion states that there is no question here of whether a trial court may take judicial notice of a judgment in another action in ruling on a demurrer based on res judicata because the judgment “was pleaded.” The record does not bear out that statement. In the complaint it is alleged that there was a judgment rendered on a stated day and the aspects thereof beneficial to plaintiff were alleged but the entire judg *840 ment was not set forth or .incorporated in the complaint. Therefore unless judicial notice is taken of the judgment the issue cannot be decided on demurrer because the part relied upon by defendant as res judicata does not appear in the complaint.
There are many eases holding that judicial notice will not be taken of another action in the same court. Section 1962, subdivision 6, of the Code of Civil Procedure states that: “The following presumptions, and no others, are deemed conclusive: . . .
“6. The judgment or order of a court, when declared by this code to be conclusive; hut such judgment or order must he alleged in the pleadings if there be an opportunity to do so; if there be no such opportunity, the judgment or order may be used as evidence.” (Emphasis added.)
We said in Wolfsen v. Hathaway, 32 Cal.2d 632, 638 [ 198 P.2d 1 ], that ‘1 It has been uniformly held that in the absence of either pleading or proof of a former judgment upon litigated issues, the defense of res judicata is thereby waived in the subsequent action. (15 Cal.Jur., § 233, p. 214; 50 C.J.S., § 822, p. 389; Domestic & Foreign Petroleum Co., Ltd. v. Long, 4 Cal.2d 547, 562 [ 51 P.2d 73 ] ; Rideaux v. Torgrimson, 12 Cal.2d 633, 638 [ 86 P.2d 826 ] ; Spitzer v. Superior Court, 74 Cal.App. 494, 498 [ 241 P. 270 ].) Nor can respondents avail themselves of the principle of judicial notice in support of their present plea of the former adjudication. 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. ’ [Citations.] The authority of a court to take judicial notice of its own records ‘is limited to proceedings in the same case.’ ” In Willson v. Security-First Nat. Bank, 21 Cal.2d 705, 711 [ 134 P.2d 800 ], it was said: “To hold that a court may generally take judicial notice of another proceeding with a view to determining whether it is a bar to the pending suit, would do away with the rule that the defense of res judicata may not be raised by demurrer unless the facts appear in the complaint, in those cases where the judgment relied on as a bar was rendered by the same court.” The general rule is apparently subject to an exception. In Christiana v. Rose, 100 Cal.App.2d 46, 52-53 [ 222 P.2d 891 ], the court said: “It has been held that, in the interests of justice, the court may take judicial notice of proceedings in other eases in the same court. (Willson v. Security-First Nat. Bank, 21 Cal.2d 705, 711 [ 134 P.2d 800 ] ; Calhoun v. Calhoun, 81 Cal.App.2d 297, 302 [ 183 P.2d 922 ].) In the instant ease the appellant in his *841 complaint referred to the wrongful death action and specifically alleged the date of the case, its file number in the clerk’s office, and the date the appellate court affirmed.' Under such circumstances, there can be no doubt but that this court may look at and consider the records in the wrongful death action. (See Popcorn Equipment Co. v. Page, 92 Cal.App.2d 448, 453 [ 207 P.2d 647 ].)” (Emphasis added.) The Galhoun case involved taking judicial notice of a former appeal in the same court between the same parties; the Christiana case involved another case which had been appealed; the Popcorn Equipment Company case pointed out that “Only in exceptional cases will the court depart from the general rule, for example in order to avoid a resulting unreasonable hardship. Under certain circumstances the Supreme Court will take judicial notice of the records of that court, although not pleaded in the trial court, when brought to the court’s attention in some appropriate manner.” (Popcorn Equipment Co. v. Page, 92 Cal.App.2d 448, 453 [ 207 P.2d 647 ].) In Bank of America v. Button, 23 Cal.App.2d 651 [ 74 P.2d 81 ], it was said (p. 653): “It is the general rule that courts will not take judicial notice of other actions even though pending in the same court. (Estate of Fulton, 8 Cal.App.2d 423 [ 48 P.2d 120 ]; Brown v. Brown, 83 Cal.App. 74 [ 256 P. 595 ] ; Ralphs v. Hensler, 97 Cal. 296 [ 32 P. 243 ].) This rule has been made subject to exception, in the discretion of the court. (Sewell v. Johnson, 165 Cal. 762 [ 134 P. 704 , Ann.Cas. 1915B 645]; City of Los Angeles v. Abbott, 217 Cal. 184 [ 17 P.2d 993 ].) The exception is only invoked in unusual cases where unreasonable hardship would otherwise result. This does not appear to us to be such a case.” (See also 10 Cal.Jur., § 52; 5 Cal.Jur.Supp., § 52.) In Johnston v. Ota, 43 Cal.App.2d 94, 97 [ 110 P.2d 507 ], the court stated the general rule and said: “The only exception to the rule is where unreasonable hardship would result. (Bank of America v. Button, supra.) Although the judgment pleaded was an adjudication of the matter at bar and may have been rendered by the same court upon the same cause of action, and although such judgment and its supporting papers may be on file in the same court still the party pleading such prior adjudication carried the burden of establishing his plea which can be done only by actual proof of its records. (Glaze v. Bogle, supra [ 105 Ga. 295 ( 31 S.E. 169 )].)
“It must appear either upon the face of the record or be shown by extrinsic evidence that the precise issue raised in the second action was determined in the former suit. . . .
*842 ‘ ‘ There was no circumstance in the instant case that would have justified the court’s taking judicial notice of the judgment pleaded or of the pleadings which preceded it. . . . ” (Emphasis added.)
If the court is now going to take a different position it should overrule those cases. However, it will also have to overrule the legislative declaration in section 1962, subdivision 6, of the Code of Civil Procedure.
There is an additional reason why the demurrer should not have been sustained and the prior judgment considered. Plaintiff’s action was in part for declaratory relief and he stated a controversy between himself and defendants thus presenting a case for such relief. ‘ ‘ Thus, it has been pointed out that it is rare that a demurrer is an appropriate pleading for the defendant to file in an action for declaratory relief, it being more appropriate for the defendant to admit the existence of the controversy, and if the defendant feels that the plaintiff has not alleged the facts giving rise to the controversy fully and accurately, or that the contentions between the parties are not properly stated, he should plead such facts and contentions affirmatively as he understands them to be, and seek explicit judicial confirmation of his contentions.” (15 Cal.Jur.2d, Declaratory Relief, § 36; see Maguire v. Hibernia Sav. & Loan Soc., 23 Cal.2d 719 [ 146 P.2d 673 , 151 A.L.R. 1062 ]; Anderson v. Stansbury, 38 Cal.2d 707 [ 242 P.2d 305 ]) and that rule is particularly applicable to the interpretation of a former judgment (Lord v. Garland, 27 Cal.2d 840 [ 168 P.2d 5 ]).
I would, therefore, reverse the judgment.
Appellant’s petition for a rehearing was denied January 18, 1956. Carter, J., was of the opinion that the petition should be granted.