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8 Cal. 3d 736

505 P.2d 205

106 Cal. Rptr. 13

Docket Docket No. L.A. 30050.

Diamond v. Allison

ROGER JON DIAMOND, Petitioner, v. JAMES S. ALLISON, as Registrar of Voters, etc., et al., Respondents; LEGISLATURE OF THE STATE OF CALIFORNIA et al., Real Parties in Interest.

California Supreme Court

Decided January 26, 1973.

California Supreme Court · decided 1973-01-26

Cited by 6 later decisions — most recently August 1994

3 state decisions

Key passage — most relied on by later courts

“The existence of the alleged preference is not a fact which is either of such common knowledge or which is subject to such accurate determination by resort to sources of reasonably indisputable accuracy that is not reasonably subject to dispute. Accordingly, it is not a fact properly the subject of judicial notice.”

quoted by 1 later decision, including New Alliance Party v. New York State Board of Elections

Applies CA EVID § 452

Relies on 8 Cal. 3d 733 - Mexican-American Political Association v. Brown · Roma MacAroni Factory v. Giambastiani

Good law ✅— No negative treatment on recordhow we know

Decided 1973-01-26

View the full empirical analysis of this case →

¶1*737 COUNSEL

¶2Roger Jon Diamond, in pro. per., and Hecht, Diamond & Freis for Petitioner.

¶3A.L. Wirin, Fred Okrand and Laurence R. Sperber as Amici Curiae on behalf of Petitioner.

¶4Evelle J. Younger, Attorney General, Iver E. Skjeie, Assistant Attorney General, Henry G. Ullerich, Deputy Attorney General, John D. Maharg, County Counsel, Edward H. Gaylord, Chief Deputy County Counsel, and Joe Ben Hudgens, Deputy County Counsel, for Respondents.

¶5George H. Murphy, Legislative Counsel, and Herman F. Selvin for Real Parties in Interest.

¶6OPINION

¶7THE COURT.

¶8In this proceeding we issued an alternative writ of mandate on the basis of allegations that placing the name of an incumbent first on the ballot results in an unconstitutional preference in an election because a substantial number of electors vote for the first person listed on the ballot merely because his name is listed first. In their returns respondents have denied that any such preference based on ballot position exists.

¶9(1) The existence of the alleged preference is not a fact which is either of such common knowledge or which is subject to such accurate determination by resort to sources of reasonably indisputable accuracy that it is not reasonably subject to dispute. Accordingly it is not a fact properly the subject of judicial notice. (Evid. Code, § 452, subds. (g) and (h).)

¶10It therefore appears that we are confronted with a disputed question of fact the resolution of which may more appropriately be undertaken in the superior court. (Roma Macaroni Factory v. Giambastiani,219 Cal. 435, 437 [27 P.2d 371].)

¶11For the foregoing reasons the alternative writ of mandate heretofore issued is discharged and the petition for writ of mandate is denied without *738 prejudice to any subsequent proceedings which may be initiated in the superior court.

¶12TOBRINER, J.

¶13I dissent for the reasons stated in my dissenting opinion in Mexican-American Political Association v. Brown (Sac. 7951) ante, page 733 [106 Cal. Rptr. 12, 505 P.2d 204].

¶14Petitioner's application for a rehearing was denied March 8, 1973. Tobriner, J., was of the opinion that the petition should be granted.

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