[I think this information may have dispelled some of my confusion. I have emphasized some information in boldface and transcribed some of the footnotes inter-linearly.]
"A presumption is a deduction which the law expressly directs to be made from particular facts." (Code Civ. Proc., sec. 1959 [Note: now Evidence Code, § 600.].) And "a presumption (unless declared by law to be conclusive) may be controverted by other evidence, direct or indirect: but unless controverted, the jury is bound to find according to the presumption." (Code Civ. Poc., sec. 1961 [Note: now Evid. Cd, § 602 et seq.].).
(bracketed information added.) In re Bauer (1889), 79 Cal. 304, 307.
From 1 WITKIN, CALIFORNIA EVIDENCE 4th, Burdens of Proof and Presumptions, p. 172 et seq.:
1. [§ 20] Constitutional Basis.From 1 WITKIN, CALIFORNIA EVIDENCE 4th, Burdens of Proof and Presumptions, p. 197 et seq.:"The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law." (Taylor v. Kentucky (1978) 436 U.S. 478, 98 S.Ct. 1930, 1934, 56 L.Ed.2d 468, 474 [quoting Coffin v. United States (1895) 156 U.S. 432, 15 S.Ct. 394, 39 L.Ed. 481, and pointing out, in foootnote 12, that the "presumption of innocence" is not technically a presumption (mandatory inference drawn from a fact in evidence) but rather an "assumption" that is indulged in the absence of contrary evidence];...
2. [§ 21] Statutory Restatement.
The fundamental presumption of innocence, and the prosecution's burden of proving the defendant guilty beyond a reasonable doubt, are stated in P.C. 1096: "A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his or her guilt is satisfactorily shown, he or she is entitled to an acquittal."...
E. [§ 31] Burden on O.R. Release of Arrestee.
In Van Atta v. Scott (1980) 27 C.3d 424, 166 C.R. 149, 613 P.2d 210, the court held that the prosecution has the burden of proving that bail is necessary where the arrested person seeks release on his own recognizance. "This court has determined that the probable value of placing the burden of proof on the prosecution would be great and that the potential harm to the government's interests, including any administrative costs that the procedural requirement might entail, would be minimal. Accordingly, it is concluded that due process requires the burden of proof concerning the detainee's likelihood of appearing for future court proceeding to be borne by the prosecution at the OR hearing." (27 C.3d 444.)
A. Former Law.1. [sec 48] Presumptions and Inferences.
Former statutes defined a presumption as a deduction that the law expressly directs to be made from particular facts, and an inference as a deduction that the jury may make from the facts. Because "the law" then meant "statutes," an unfortunate distinction arose between statutory presumptions and nonstatutory presumptions; the latter had to be classified as "inferences." This led to confusing and sometimes conflicting decisions as to their evidentiary effects, and also to reversals for error in using the term "presumption" in instructing the jury on an "inference."...
2. [§ 49] Presumptions and Inferences as Evidence.
(1) Presumptions as Evidence. Former statutes classified presumptions as a form of "indirect evidence," and stated that, unless a presumption was controverted, the jury had to find according to the presumption. Under these statutes, the rule became established that presumptions constituted independent evidence, to be somehow weighed against other evidence, and that a verdict or finding could rest upon a presumption even though all of the other evidence was opposed to it. The leading case declaring this rule was Smellie v. Southern Pac. Co. (1931) 212 C. 540, 549, 299 P. 529, a wrongful death action, in which uncontradicted testimony showed decedent's contributory negligence. The court held that a directed verdict was error, for the presumption of due care was evidence that created a conflict with the testimony and called for submission of the case to the jury.
The Smellie rule was consistently followed in cases involving due care. ...3. [§ 50] Presumption or Inference Dispelled. [p. 199]
Although the rule of Smellie v. Southern Pac. Co. (1931) 212 C. 540, 549, 299 P. 529, supra, sec 49, did not succumb to its critics until the adoption of the Evidence Code (infra, sec 52), two qualifications developed in the case law to keep it within reasonable bounds:
(1) Presumption: Contrary Testimony of Party or Party's Witness. A presumption could be dispelled by the uncontroverted testimony of the party or the party's witnesses to a fact wholly irreconcilable with the presumption....
(2) Inference: Contrary Evidence That is Clear, Positive, and Uncontradicted. Later cases established a second qualification applicable to inferences (nonstatutory presumptions): Where the contrary evidence is "clear, positive, uncontradicted, and of such a nature that it can not rationally be disbelieved," the inference is dispelled as a matter of law. (Blank v. Coffin (1942) 20 C.2d 457, 461 126, P.2d 868;...
It was consistently held, however, that the qualification for testimony by the party or the party's witnesses was the only one applicable to statutory presumptions; these could not be dispelled even by strong uncontraverted evidence of the opposing party....B. [§ 41] Model Code, Uniform Rules, and Federal Rules.
(1) Thayer Doctrine and Model Code. Thayer's view that a presumption is not evidence was supported by Wigmore, the federal courts, and many state jurisdictions, and was adopted by the Model Code of Evidence. ... The strictest aspect of this view, expressed in the Model Code, is that a presumption is dispelled when the adverse party produces any evidence contrary thereto, regardless of whether it is credible or substantial....
(2) Uniform Rules. The more moderate approach of Morgan was embodied in the original Uniform Rules of Evidence, which gave special force to a presumption based on facts having probative value, and called for credible evidence to dispell any presumption....
(3) Federal Rules. The Federal Rules of Evidence deal with presumptions as follows:
(a) "In all civil actions and proceedings not otherwise provided for by Act of Congress or by these rules, a presumption imposes upon the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast." (F.R.Evid., Rule 301;...
(b) "In civil actions and proceedings, the effect of a presumption respecting a fact which is an element of a claim of defense as to which State law supplies the rule of decision is determined in accordance with State law." (F.R.Evid., Rule 302;...
From 31 CALIFORNIA JURISPRUDENCE, 3d Ed., EVIDENCE, pp. 139-146:
2. CONCLUSIVE PRESUMPTIONS Section 103.
...Where there are two presumptions, equally reasonable, arising on the face of the record, the appellate court adopts that which will uphold the judgment.[53. Whipley v McKay, 184 C 742, 195 P 385.]
Section 104. In General
Where the law raises a conclusive presumption from the proof of a certain fact, the trier of fact is bound to find in accordance with the presumption.[54. Re Estate of Mills, 137 C 298, 70 P 91.] Evidence cannot be received to the contrary.[55. Hill v Johnson, 102 CA2d 94, 226 P2d 655, disapproved on other grounds Kusior v Silver 54 C2d 603, 7 Cal Rprt 129, 354 P2d 657; Estate of Marshall, 120 CA2d 747, 262 P2d 42, disapproved on other grounds Kusior [above].] Thus, a conclusive presumption is, in reality, not a rule of evidence but a rule of substantive law.[56.] Generally, a presumption is conclusive, and binds the court, the parties, and the cause to the fact presumed, either because it has become of such wide acceptance that it admits of no evidence whatsoever to the contrary, or because it has been so fixed by mandate of the legislative body as to admit of no controverting proof.[57.]
Conclusive presumptions are only those declared by law to be conclusive.[58. Ev C 620.] Several conclusive presumptions are listed in the Evidence Code. Express provisions of the code establish conclusive presumptions that the issue of a wife cohabitating with her husband who is not impotent or sterile is a child of the marriage,[59.] and with respect to the truth of the facts recited in a written instrument as between the parties thereto or their successors in interest, with the exception of the recital of a consideration.[60.] Of like force and effect is the section that estops a party from contradicting a particular thing that he has intentionally and deliberately led another to believe is true,[61. Ev C 623.] and the section that estops a tenant from denying his landlord's title at the time of the commencement of the relation.[62.]
Other conclusive presumptions, contained in statutes other than the Evidence Code, are those that concern, for instance, the reasonableness of the term of a lease of trust property,[63.] the extinction of improvemnet liens by lapse of time,[64.] and the fraudulence of the transfer of personal property without delivery and actual change of possession.[65. CC 3440.]
Although presumptions may be held irrebuttable by force of judicial holdings,[66. Miller v Ash, 156 C 544, 105 P 600.] modern courts are, as a matter of general policy, slow to recognize presumptions as irrebuttable, and are disposed to restrict rather than extend their number.[67. Bull v Bray, 89 C 286, 26 P 873.]
Generally, specific conclusive presumptions are treated in detail in the articles dealing with the subjects to which those presumptions relate. Certain conclusive presumptions of general application are discussed in the immediately following sections.[68.]
Section 105. Recitals in written instruments
The facts recited in a written instrument are conclusively presumed to be true as between the parties thereto or their successors in interest. But this rule does not apply to the recital of a consideration.[69. Ev C 622.] Under the rule, recitals in a joint and mutual will of husband and wife as to the status of property are conclusively presumed to be true.[70.] It has been said, however, that the presumption has reference only to the essential facts contained in the writing, for instance, facts necessary to determine the obligations or liabilities of contracting parties, and does not preclude the contradiction by extrinsic evidence of nonessential facts, such as the mere time and place of the execution of the contract.[71.]
Section 106. Constructive notice
By the operation of the doctrine of constructive notice, a party is conclusively presumed, from the possession of knowledge of certain facts, to have notice of another, and principal, fact.[72. Wilkerson v Thorp, 128 C 221, 60 P 679.] Generally, where there is a dispute as to one's knowledge of a particular fact, proof that he had information that would have put a reasonably prudent person on inquiry merely raises an inference of knowledge of the fact.[73. Miller v Ash, 156 C 544, 105 P 600; Webster v Klassen, 109 CA2d 583, 241 P2d 302. ...] This inference may be rebutted by any proper evidence, such as proof by the party charged with notice that he made inquiry and prosecuted it with reasonable diligence but failed to discover the fact.[74. Miller, above; Pansini v Weber, 53 CA2d 1, 127 P2d 288.] However, a conclusive presumption of knowledge arises if it appears that the one having information of facts sufficient to put a reasonably prudent person on inquiry wholly failed to make inquiry or, having begun inquiry, failed to prosecute it in a reasonable manner.[75.]
2. REBUTTABLE PRESUMPTIONS Section 107. In general
The Evidence Code provides that a presumption is either conclusive or rebuttable.[76. Ev C sec 601.] Since the conclusiveness of a presumption must be declared by law,[77. sec 104, supra (31 Cal Jur 3, Evidence).] it follows that all presumptions that have not been declared by law to be conclusive are subject to rebuttal.[78.]
Every rebuttable presumption is either a presumption affecting the burden of producing evidence, or a presumption affecting the burden of proof.[79. Ev C sec 601.] The effect of the distinction [80. Ev C secs 604, 606.] and the criteria for classification [81. Ev C 603, 605.] are set forth in the Evidence Code. The distinction is of importance in determining what degree of proof is required to rebut a particular presumption.[82.] Many of the rebuttable presumptions listed in the Evidence Code are expressly classified in this manner.[83. Ev C secs 630 et seq., 1450 et seq., 1530, 1532, 1562,...] The enumeration in the Evidence Code is not exhaustive, however,[84. ...The code does not abolish disputable presumptions know to the common law that are not repugnant to the presumptions found in the statute. Yeager v City Council of Fullerton, 231 CA2d 557, 41 Cal Rptr 904 (construing former CCP sec 1963).] and where, in the code or in other statutes or at common law, a presumption is not expressly classified or its classification is not clearly implied,[85.] the court will be required to determine its category[86.] by applying the statutory standards distinguishing presumptions affecting the burden of producing evidence [87.] from those affecting the burden of proof.[88.]
Rebuttable presumptions are in effect inferences that, in the absence of any controverting evidence, the jury is required to make and, in civil cases, to accept as established facts.[89. People v Wong Sang Lung, 3 CA 221, 84 P 843.] It is error for the court, by an instruction, to withdraw evidence from the consideration of the jury and raise a rebuttable presumption to the status of a conclusive presumption.[90. Darrell v Mutual Ben. Life Ins. Co. 44 CA 523, 186 P 620.]
Particular rebuttable presumptions are, for the most part, considered under appropriate specific titles. Some rebuttable presumptions of general application are discussed herein.108. [omitted.]
109. [omitted.]
110. Rebuttal by adverse party
The one in whose favor a presumption exists does not have the burden of sustaining it; rather, the one attacking the presumption must rebut it.[96. Braly v Henry, 71 C 485, 11 P 385, adhered to 71 C 481, 12 P 623; Paige v Akins, 112 C 401, 44 P 666; Re Estate of Scott, 128 C 57, 60 P 527; Re Estate of Dolbeer, 149 C 227, 86 P 695.]
With respect to the effect of controverting evidence introduced by the adverse party, it was formerly held that the presumption in question, being itself evidence,[97.] was not destroyed as a matter of law in the sense of being entirely out of the case as evidence; the consideration of the controverting evidence weighed against the presumption, as in the case of conflicting evidence.[98] The Evidence Code, however, has abandoned this point of view. Presumptions are expressly declared not to be evidence, and it has been stated that the purpose of that declaration is to repudiate specifically the rule that a presumption is evidence that must be weighed against conflicting evidence or a conflicting presumption.[99.]
Rebuttable presumptions are allowed to stand, not against the facts they represent, but in lieu of proof of the facts. When a fact is proved to be contrary to the presumption, no conflict arises; the presumption is simply overcome and is dispelled. Against a proved fact, or a fact admitted, a rebuttable presumption has no weight. Where, however, it is merely attempted to prove the fact against the presumption, it still remains with the jury to say whether the fact has been proved; if not satisfied with the proof offered in support, the jury is at liberty to accept the presumption.[1.] Whether a presumption is controverted is a question of fact, and the conclusion of the trier of fact is conclusive on an appellate court unless it is manifestly without evidentiary support.[2.]
An unrebutted presumption has the same effect as an admission,[3.] but a rebutted presumption disappears from the case.[4.]
From West's Ann.Cal.Evid. Code (2002), § 666:
Any court of this state or the United States, or any court of general jurisdiction in any other state or nation, or any judge of such court, acting as such, is presumed to have acted in the lawful exercise of its jurisdiction. This presumption applies only when the act of the court or judge is under collateral attack.
I suppose I could find out what the Presumptions are by doing Discovery on the opposing attorney:
1. Disclose fully any and every Presumptions in favor of each Party.
2. Disclose which of these Presumptions are deemed "conclusive" and which are deemed "rebuttable".
E-mail me here: tthor@mail.com
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