Plaintiffs object to Defendant Nina Romano's Request for Judicial Notice of the San Diego Medical Examiner's Reports on grounds that they are extrinsic evidence that should not be considered for purposes of a demurrer, where the facts of the complaint are presumed to be true.
A rebuttable presumption requires the trier of/act, given a showing of the preliminary fact...to assume the existence of the presumed fact... "unless and until evidence is introduced which would support a finding of its nonexistence, in which case the trier of fact shall determine the existence or nonexistence of the presumed fact from the evidence and without regard to the presumption." Cal. Evid. Code§ 604. As the court must take the material allegations in the Second Amended Complaint to be true, the facts as pleaded are sufficient to rebut any presumption.
Moreover, as enumerated in Bohrer v County of San Diego, 104 Cal.App.3d 155 164-165 (1980), it is improper when ruling on a demurrer to take judicial notice of the "conclusion" contained in a coroner's report that the a death was due to suicide, where the effect is to indisputably establish cause of death. See also Parker v. Fid. Sec. Life Ins. Co., 2007 U.S. Dist. LEXIS 69424, 7-8 (E.D. Cal. Sept. 11, 2007). Absent a special statute, there is no authority for the court to take judicial notice of a conclusion of suicide from a governmental document to establish the cause of death. Bohrer at 164; see also Thinguldstad v. United States, 343 F.Supp. 551 (S.D.Ohio 1972).
Accordingly, Defendant Romano's request for judicial notice should be denied.
