Another favorite case and topic of mine regarding the poor in the State of California.
In this personal injury/premises liability action, self-represented plaintiff Elena Dogan appeals after the trial court granted a motion for nonsuit brought by her landlord, defendant Comanche Hills Apartments, Inc., and related individuals and entities at the close of her case.
At an earlier stage of the litigation, Dogan’s request for a fee waiver had been granted by the San Diego Superior Court on grounds of indigency. But based on then-existing court policy, Dogan’s subsequent request for a waiver of court reporter fees had been denied. As a result, there was no court reporter at trial and no reporter’s transcript on appeal. Dogan seeks to challenge the trial court’s decision to grant a nonsuit in defendants’ favor. Their principal argument in response asserts that Dogan cannot establish error due to the absence of a reporter’s transcript. After initial briefing in this case was complete, the California Supreme Court issued its decision in Jameson v. Desta (2018) 5 Cal.5th 594 (Jameson), holding that the San Diego Superior Court’s policy on providing court reporters “is invalid as applied to plaintiff and other fee waiver recipients, and that an official court reporter, or other valid means to create an official verbatim record for purposes of appeal, must generally be made available to in forma pauperis litigants upon request.” (Id. at p. 599.) As defendants appropriately concede in their post-Jameson supplemental brief, Jameson applies retroactively to all cases, including this one, not yet final on appeal.
Because there is no way to now provide a reporter for a trial that has already occurred, the Appeal Court had no choice but to reverse and remand for a new trial at which an official court reporter will be furnished.
In Jameson, the Supreme Court recently considered the validity of the San Diego Superior Court’s “general policy of not providing official court reporters in most civil trials while permitting privately retained court reporters for parties who can afford to pay for such reporters” as applied to in forma pauperis litigants who qualified for a general fee waiver. (5 Cal.5th at p. 599; see also id. at p. 611.) The same policy is at issue in this case, and the facts of the two cases are quite similar. Jameson, like Dogan, obtained a standard initial fee waiver based on indigency. (Id. at p. 600; see Gov. Code, § 68631 et seq.)
And although section 68086, subdivision (b) provides that the court reporter’s fee “shall be waived for a person who has been granted a[n initial] fee waiver under Section 68631,” the superior court informed Jameson (as it informed Dogan) that it did not ” ‘provide a court reporter for civil trials, and that parties have to provide their own reporters for trial.’ ” (Jameson, supra, 5 Cal.5th at p. 600.) After the trial court granted a motion for nonsuit following his opening statement, Jameson appealed without the benefit of a reporter’s transcript. (Id. at pp. 601–602.)
The Supreme Court in Jameson surveyed the significant common law history in California allowing qualified litigants to appear in forma pauperis, and it reviewed the public policy of the state as expressed in various statutory enactments. (5 Cal.5th at pp. 603−608.) Recognizing the crucial importance of a reporter’s transcript in meaningfully exercising the right to appeal (id. at pp. 608−610), Jameson concluded that the San Diego court’s policy of not providing an official court reporter in most civil cases—leaving it to the parties to employ a private reporter only if they could afford one—was invalid because it denied indigent litigants equal access to the courts. (Id. at pp. 622−623.)
The Chief Justice’s opinion explained that if a local court adopts a policy of not providing official court reporters in civil cases, it must include “an exception for fee waiver recipients that assures such litigants the availability of a verbatim record of the trial court proceedings, which under current statutes would require the presence of an official court reporter.” (Id. at p. 623.)
Acknowledging the general rule that judicial decisions apply retroactively to all cases not final on appeal (e.g., Newman v. Emerson Radio Corp. (1989) 48 Cal.3d 973, 978–979), the Appeal Court remanded for a new trial at which an official court reporter shall be provided at no charge. Dogan was entitled to recover costs on appeal.
Another victory for the poor and oppressed! This confirms justice in the State of California courts! And certainly at a time with the increase of homelessness in the San Francisco Bay Area and California.
If you have been injured, are poor and oppressed, contact the Law Office of Robert Rodriguez for competent and aggressive representation in defending your rights!
Robert Rodriguez has litigated well over 100 family law cases and civil litigation matters including personal injury motor vehicle cases, dog bite and slip & fall cases, unlawful detainer, breach of contract, defamation & invasion of privacy, fraud, unfair business practice, malicious prosecution, wrongful termination, workplace and employment matters including sexual harassment, wage & hour violations, discrimination pursuant to the FEHA, Gov’t Code §§ 12940 et seq., violations of the FMLA & Pregnancy Leave, Civil Rights discrimination pursuant to 42 U.S.C. § 1983 and Title VII of the 1964 Civil Rights Act in the State of California and California federal district courts.
* Disclaimer – Robert Rodriguez is licensed to practice only in the State of California & this analysis is applied only under State of California law. Robert D. Rodriguez is also admitted to practice in the U.S. District Courts, Central, Northern & Eastern Districts of California. Robert Rodriguez has practiced in the State of California Court of Appeal.