disputable presumption in California

1962Co., 212 Cal. 540 [ 299 P. 529 ], it is said on page 549 (quoting from People v. Milner, 122 Cal. 171, 179 [ 54 P. 833 ]): “. . . ‘ “Against a proved fact, or a fact admitted, a disputable presumption has no weight, but where it is undertaken to prove the fact against the presumption, it still remains with the jury to say whether or not the fact has been proven; and, if they are not satisfied with the proof offered in its support, they are at liberty to accept the evidence of the presumption.” 5 ” (See 1 Wigmore, Evidence, (3d ed.) § 95, p. 524 et seq.; 9 Wigmore, § 2534, p. 488.) Applying the

1939Against a proved fact or a fact admitted, a disputable presumption has no weight, but where it is undertaken to prove the fact against the presumption, it still remains with the jury to say whether or not the fact has been proven, and if the jury is not satisfied with the proof offered in its support, then the jury is at liberty to accept the evidence of the presumption.” This statement of the law regarding presumptions is found in the case of People v. Milner, 122 Cal. 171, 179 [ 54 Pac. 833 ], and is cited with approval in the case of Smellie v. Southern Pac.

1958“In Clary v. Lindley, 30 Cal.App.2d 571, 573 [ 86 P.2d 920 ], the following appears: “ ' “A disputable presumption is a substitute for proof of facts.

1958“In Clary v. Lindley, 30 Cal.App.2d 571, 573 [ 86 P.2d 920 ], the following appears: “ ' “A disputable presumption is a substitute for proof of facts.

1958It is a species of evidence that may be accepted and acted upon when there is no other evidence to uphold the contention for which it stands,” (Noble v. Key System, Ltd., 10 Cal.App.2d 132, 137 [ 51 P.2d 887 ].) It may be controverted by evidence.

1958It is a species of evidence that may be accepted and acted upon when there is no other evidence to uphold the contention for which it stands,” (Noble v. Key System, Ltd., 10 Cal.App.2d 132, 137 [ 51 P.2d 887 ].) It may be controverted by evidence.

1968(In re Smith (1949) 33 Cal.2d 797, 801 [ 205 P.2d 622 ]; Code Civ.

1968(In re Smith (1949) 33 Cal.2d 797, 801 [ 205 P.2d 622 ]; Code Civ.

1958Without extending this opinion unduly, the following quotation from Estate of Jolly (1925), 196 Cal. 547, 553 [ 283 P. 353 ], which involved a proceeding similar to this, will suffice: “That portion of section 164 of the Civil Code which prescribes the rules of presumptions in community property cases provides as follows: ‘All other property acquired after marriage by either husband or wife, or both, ... is community property.’ . “ ‘The disputable presumption raised by section 164 of the Civil Code is a form of evidence under the express terms of section 1957 of the Code of Civil Procedure, It

1958Without extending this opinion unduly, the following quotation from Estate of Jolly (1925), 196 Cal. 547, 553 [ 283 P. 353 ], which involved a proceeding similar to this, will suffice: “That portion of section 164 of the Civil Code which prescribes the rules of presumptions in community property cases provides as follows: ‘All other property acquired after marriage by either husband or wife, or both, ... is community property.’ . “ ‘The disputable presumption raised by section 164 of the Civil Code is a form of evidence under the express terms of section 1957 of the Code of Civil Procedure, It

1972(Freeman v. Superior Court, 44 Cal.2d 533, 537-538 [ 282 P.2d 857 ]; In re Ferguson, 123 Cal.App.2d 799, 802-803 [ 268 P.2d 71 ]; Mattos v. Superior Court, 30 Cal.App.2d 641, 647 [ 86 P.2d 1056 ], disapproved on an unrelated point by Phillips v. Superior Court, supra, 22 Cal.2d 256, 258 .) And where service of the order has been made on the alleged contemner’s attorney, a similar disputable presumption of notice to the client arises.

1972(Freeman v. Superior Court, 44 Cal.2d 533, 537-538 [ 282 P.2d 857 ]; In re Ferguson, 123 Cal.App.2d 799, 802-803 [ 268 P.2d 71 ]; Mattos v. Superior Court, 30 Cal.App.2d 641, 647 [ 86 P.2d 1056 ], disapproved on an unrelated point by Phillips v. Superior Court, supra, 22 Cal.2d 256, 258 .) And where service of the order has been made on the alleged contemner’s attorney, a similar disputable presumption of notice to the client arises.

1959As declared in Estate of Rattray, 13 Cal.2d 702, 706 [ 91 P.2d 1042 ] : “Since their right to inherit depended not merely upon the fact of that certain relationship, but upon the fact of such relationship plus the fact that property claimed by them as heirs had formerly been the community property of the decedent and her predeceased spouse, the burden of showing such additional fact rested upon them.” To the same effect are Estate of Doran, 138 Cal.App.2d 541, 549 [ 292 P.2d 655 ], and Estate of Adams, 132 Cal.App.2d 190, 203 [ 282 P.2d 190 ], Appellants profess their cognizance of the foregoi

1958Without extending this opinion unduly, the following quotation from Estate of Jolly (1925), 196 Cal. 547, 553 [ 283 P. 353 ], which involved a proceeding similar to this, will suffice: “That portion of section 164 of the Civil Code which prescribes the rules of presumptions in community property cases provides as follows: ‘All other property acquired after marriage by either husband or wife, or both, ... is community property.’ . “ ‘The disputable presumption raised by section 164 of the Civil Code is a form of evidence under the express terms of section 1957 of the Code of Civil Procedure, It

1922There is a third group of cases which recognize the rule that "as against a proved fact, or a fact admitted, a disputable presumption has no weight," but hold also that "where an endeavor is made to establish a fact contrary to the presumption, the fact in dispute still remains to be determined upon a consideration of all of the evidence including the presumption," ( Pabst v. Shearer, 172 Cal. 239 , 242 ( 156 P. 466 ]; Pacific Portland C.

1922There is a third group of cases which recognize the rule that "as against a proved fact, or a fact admitted, a disputable presumption has no weight," but hold also that "where an endeavor is made to establish a fact contrary to the presumption, the fact in dispute still remains to be determined upon a consideration of all of the evidence including the presumption," ( Pabst v. Shearer, 172 Cal. 239 , 242 ( 156 P. 466 ]; Pacific Portland C.

1972(Freeman v. Superior Court, supra, 44 Cal.2d 533, 537-538 ; In re Morelli, 11 Cal.App.3d 819, 838-839 [ 91 Cal.Rptr. 72 ]; In re Sigesmund, 193 Cal.App.2d 219, 223-224 [ 14 Cal.Rptr. 221 ].) As said in Freeman v. Superior Court, supra (pp. 537-538): “It affirmatively appears from the record that when the order for payment of counsel fees and court costs was made, petitioner was represented in court by his attorney, who was thereafter served with a copy of the order.

1972(Freeman v. Superior Court, supra, 44 Cal.2d 533, 537-538 ; In re Morelli, 11 Cal.App.3d 819, 838-839 [ 91 Cal.Rptr. 72 ]; In re Sigesmund, 193 Cal.App.2d 219, 223-224 [ 14 Cal.Rptr. 221 ].) As said in Freeman v. Superior Court, supra (pp. 537-538): “It affirmatively appears from the record that when the order for payment of counsel fees and court costs was made, petitioner was represented in court by his attorney, who was thereafter served with a copy of the order.

1965(Goodwill Industries v. Industrial Acc. Com., 114 Cal.App.2d 452, 457 [ 250 P.2d 627 ].) The provisions of section 3212.5 prior to the 1959 amendment created a disputable presumption in favor of certain public employees to the effect that a heart attack occurring during the term of employment resulted from the effects of that employment and was therefore an industrial injury.

1965(Goodwill Industries v. Industrial Acc. Com., 114 Cal.App.2d 452, 457 [ 250 P.2d 627 ].) The provisions of section 3212.5 prior to the 1959 amendment created a disputable presumption in favor of certain public employees to the effect that a heart attack occurring during the term of employment resulted from the effects of that employment and was therefore an industrial injury.

1957Jameson Corp. (1936), 7 Cal.2d 60, 66 [ 59 P.2d 962].) However, just as either an inference or a presumption may outweigh positive evidence adduced against it by the opposing party, so may either outweigh the other; i. e., it is for the trier of fact to determine under the circumstances of each ease whether to give greater weight to an inference than to a disputable presumption which conflicts therewith, or vice versa. . . .

1957Jameson Corp. (1936), 7 Cal.2d 60, 66 [ 59 P.2d 962].) However, just as either an inference or a presumption may outweigh positive evidence adduced against it by the opposing party, so may either outweigh the other; i. e., it is for the trier of fact to determine under the circumstances of each ease whether to give greater weight to an inference than to a disputable presumption which conflicts therewith, or vice versa. . . .

1954Co., 212 Cal. 540 [ 299 P. 529 ] ; Westberg v. Willde, 14 Cal.2d 360, 365 [ 94 P.2d 590 ].) Section 1957 of the Code of Civil Procedure states that presumptions are indirect evidence; and section 1961 of the Code of Civil Procedure states that a disputable presumption may be controverted by other evidence, direct or indirect, but unless so controverted the jury must find according to the presumption.

1954Co., 212 Cal. 540 [ 299 P. 529 ] ; Westberg v. Willde, 14 Cal.2d 360, 365 [ 94 P.2d 590 ].) Section 1957 of the Code of Civil Procedure states that presumptions are indirect evidence; and section 1961 of the Code of Civil Procedure states that a disputable presumption may be controverted by other evidence, direct or indirect, but unless so controverted the jury must find according to the presumption.

1958(Griswold v. Department of Alcoholic Beverage Control, 141 Cal.App.2d 807, 811 [ 297 P.2d 762 ].) In Mercurio v. Department of Alcoholic etc. Control, 144 Cal.App.2d 626, 634-635 [ 301 P.2d 474 ], it is said: “If the bartender were to serve soft drinks when alcoholic beverages were called for, then there would be a violation of section 382, Penal Code, which prohibits the sale of any article of drink, different from the one called for, without informing the purchaser of the difference. ’ ’ There is no evidence offered by appellant that an alcoholic drink was not served to Grace.

1958(Griswold v. Department of Alcoholic Beverage Control, 141 Cal.App.2d 807, 811 [ 297 P.2d 762 ].) In Mercurio v. Department of Alcoholic etc. Control, 144 Cal.App.2d 626, 634-635 [ 301 P.2d 474 ], it is said: “If the bartender were to serve soft drinks when alcoholic beverages were called for, then there would be a violation of section 382, Penal Code, which prohibits the sale of any article of drink, different from the one called for, without informing the purchaser of the difference. ’ ’ There is no evidence offered by appellant that an alcoholic drink was not served to Grace.

1954At page 126 the following quotation, with obvious approval of the legal effect thereof, from Rombotis v. Fink, 89 Cal.App.2d 378, 386 [ 201 P.2d 588 ], is pertinent as to the character of the evidence necessary to overcome a disputable presumption of extinguishment under this statute: “The only rights sought to be extinguished were those where the inference could reasonably be drawn from inaction that the rights had been abandoned.

1954At page 126 the following quotation, with obvious approval of the legal effect thereof, from Rombotis v. Fink, 89 Cal.App.2d 378, 386 [ 201 P.2d 588 ], is pertinent as to the character of the evidence necessary to overcome a disputable presumption of extinguishment under this statute: “The only rights sought to be extinguished were those where the inference could reasonably be drawn from inaction that the rights had been abandoned.

1950As was said by the court in Estate of Campbell, 12 Cal.App. 707, at 708 [ 108 P. 669, 676 ] (syllabus): “The presumption of a marriage between A and B, founded simply upon habit and repute, is overcome by proof of a second actual marriage between A and C during the lifetime of B.” And in Estate of Baldwin, 162 Cal. 471 [ 123 P. 267 ], our Supreme Court said, at pages 488-489: “In this state before the codes the common law rule obtained, and this principle of the common law was placed in the code and still remains there, in the declaration that it is a disputable presumption ‘that a man and wom

1950As was said by the court in Estate of Campbell, 12 Cal.App. 707, at 708 [ 108 P. 669, 676 ] (syllabus): “The presumption of a marriage between A and B, founded simply upon habit and repute, is overcome by proof of a second actual marriage between A and C during the lifetime of B.” And in Estate of Baldwin, 162 Cal. 471 [ 123 P. 267 ], our Supreme Court said, at pages 488-489: “In this state before the codes the common law rule obtained, and this principle of the common law was placed in the code and still remains there, in the declaration that it is a disputable presumption ‘that a man and wom

1974Code, § 3548; Peabody v. Barham (1942) 52 Cal.App.2d 581, 584 [ 126 P.2d 668 ]).

1974Code, § 3548; Peabody v. Barham (1942) 52 Cal.App.2d 581, 584 [ 126 P.2d 668 ]).

1972(Freeman v. Superior Court, 44 Cal.2d 533, 537-538 [ 282 P.2d 857 ]; In re Ferguson, 123 Cal.App.2d 799, 802-803 [ 268 P.2d 71 ]; Mattos v. Superior Court, 30 Cal.App.2d 641, 647 [ 86 P.2d 1056 ], disapproved on an unrelated point by Phillips v. Superior Court, supra, 22 Cal.2d 256, 258 .) And where service of the order has been made on the alleged contemner’s attorney, a similar disputable presumption of notice to the client arises.

1972(Freeman v. Superior Court, 44 Cal.2d 533, 537-538 [ 282 P.2d 857 ]; In re Ferguson, 123 Cal.App.2d 799, 802-803 [ 268 P.2d 71 ]; Mattos v. Superior Court, 30 Cal.App.2d 641, 647 [ 86 P.2d 1056 ], disapproved on an unrelated point by Phillips v. Superior Court, supra, 22 Cal.2d 256, 258 .) And where service of the order has been made on the alleged contemner’s attorney, a similar disputable presumption of notice to the client arises.

1972(Freeman v. Superior Court, supra, 44 Cal.2d 533, 537-538 ; In re Morelli, 11 Cal.App.3d 819, 838-839 [ 91 Cal.Rptr. 72 ]; In re Sigesmund, 193 Cal.App.2d 219, 223-224 [ 14 Cal.Rptr. 221 ].) As said in Freeman v. Superior Court, supra (pp. 537-538): “It affirmatively appears from the record that when the order for payment of counsel fees and court costs was made, petitioner was represented in court by his attorney, who was thereafter served with a copy of the order.

1972(Freeman v. Superior Court, supra, 44 Cal.2d 533, 537-538 ; In re Morelli, 11 Cal.App.3d 819, 838-839 [ 91 Cal.Rptr. 72 ]; In re Sigesmund, 193 Cal.App.2d 219, 223-224 [ 14 Cal.Rptr. 221 ].) As said in Freeman v. Superior Court, supra (pp. 537-538): “It affirmatively appears from the record that when the order for payment of counsel fees and court costs was made, petitioner was represented in court by his attorney, who was thereafter served with a copy of the order.

1972(Freeman v. Superior Court, 44 Cal.2d 533, 537-538 [ 282 P.2d 857 ]; In re Ferguson, 123 Cal.App.2d 799, 802-803 [ 268 P.2d 71 ]; Mattos v. Superior Court, 30 Cal.App.2d 641, 647 [ 86 P.2d 1056 ], disapproved on an unrelated point by Phillips v. Superior Court, supra, 22 Cal.2d 256, 258 .) And where service of the order has been made on the alleged contemner’s attorney, a similar disputable presumption of notice to the client arises.

1972(Freeman v. Superior Court, 44 Cal.2d 533, 537-538 [ 282 P.2d 857 ]; In re Ferguson, 123 Cal.App.2d 799, 802-803 [ 268 P.2d 71 ]; Mattos v. Superior Court, 30 Cal.App.2d 641, 647 [ 86 P.2d 1056 ], disapproved on an unrelated point by Phillips v. Superior Court, supra, 22 Cal.2d 256, 258 .) And where service of the order has been made on the alleged contemner’s attorney, a similar disputable presumption of notice to the client arises.

1971(Bishop v. City of San Jose, 1 Cal.3d 56, 61-63 [ 81 Cal.Rptr. 465 , 460 P.2d 137 ].) The judgment is reversed.

1971(Bishop v. City of San Jose, 1 Cal.3d 56, 61-63 [ 81 Cal.Rptr. 465 , 460 P.2d 137 ].) The judgment is reversed.

1971(See People v. Hardy, 33 Cal.2d 52, 64 [ 198 P.2d 865 ], discussing People v. Nihell, 144 Cal. 200, 202 [ 77 P. 916 ].) The Attorney General fails to make the distinction between a disputable presumption and a conclusive finding of fact.

1971(See People v. Hardy, 33 Cal.2d 52, 64 [ 198 P.2d 865 ], discussing People v. Nihell, 144 Cal. 200, 202 [ 77 P. 916 ].) The Attorney General fails to make the distinction between a disputable presumption and a conclusive finding of fact.