Legal Memorandum: Application of Foreign Law in CA

Issue: What is necessary for a litigant to invoke the application of foreign law in a matter in California?

Area of Law: International Law & Global Trade, Litigation & Procedure
Keywords: Application of foreign law; Judicial notice
Jurisdiction: California, International
Cited Cases: 40 Cal. App. 4th 1455; 195 Cal. App. 2d 503; 247 Cal. App. 2d 637; 20 Cal. Rptr. 883; 48 Cal. Rptr. 2d 235; 39 Cal. Rptr. 254; 228 Cal. App. 2d 160; 202 Cal. App. 2d 552
Cited Statutes: Cal. Evid. Code § 459
Date: 05/01/2008

In order for a litigant to invoke the application of foreign law, the litigant must demonstrate the applicability of the law.  Sommer v. Gabor (1995) 40 Cal. App. 4th 1455, 1465, 1467-68, 48 Cal. Rptr. 2d 235. 

While a court may take judicial notice of a foreign law, it is not required to do so unless the parties so requesting provide adequate data for the court’s inquiry.  See Ehret v. Ichioka (1967) 247 Cal. App. 2d 637, 644, 55 Cal. Rptr. 869 (citing Cal. Evid. Code § 459).  “In any event, the existence of the foreign law as alleged is (though a matter of judicial notice) still a question more efficiently determined in the first instance by a trial court after the necessary investigation, and reflected in proper findings.”  Id., 247 Cal. App. 2d at 644 (citing Estate of Eng (1964) 228 Cal. App. 2d 160, 167, 39 Cal. Rptr. 254; Estate of Feierman (1962) 202 Cal. App. 2d 552, 563, 20 Cal. Rptr. 883). 

California courts have explained that, in order to determine whether to properly take judicial notice of foreign law, “the court may resort for its aid to appropriate books or documents of reference . . .  [and] to the advice of persons learned in the subject matter, which advice, if not received […]

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