JAMESON v. DESTA

Amicus Curiae, Amicus Curiae Committee of the California Commission on Access to Justice, Supplemental Brief

Cal.November 13, 2017

soone ee COLE | PEDROZAw San Marino, CA 91108 ATTORNEYS AT LAW Cassidy C. Davenport cassidydavenport@colepedroza.com November9, 2017 Chief Justice Tani G. Cantil-Sakauye and Associate Justices California Supreme Court 350 McAllister Street San Francisco, CA 94102-4797 Re: Jameson vy. Desta, M.D. Supreme Court Case No. 8230899 Court of Appeal Case No. D066793 Dear Chief Justice Cantil-Sakauye and Associate Justices: This case presents the following issue: Telephone 626-431-2787 Facsimile 626-43 1-2788 www.colepedroza.com SUPREME COURT FILED NOV 18 2018 Jorge Navarrete Clerk Deputy In the case ofa litigant who has been granted a fee waiver (Gov. Code, § 68631), can a county’s superior court employ a policy that has the practical effect of denying the services of an official court reporter to civil litigants who have been granted such a fee waiver, if the result is to preclude those litigants from procuring and providing a verbatim transcript for appellate review? In his briefing on the merits, Respondent Taddese Desta, M.D. answered the question presented in the affirmative. There is no legislative or judicial mandate thattrial courts pay for services of an official court reporter where a civil litigant has been granted a fee waiver. Even assumingindigentcivil litigants are entitled to free court reporter services,there is no right to a free reporter’s transcript for appellate review. November9, 2017 Honorable Chief Justice Cantil-Sakauye and Honorable Justices Re: Jameson v. Desta, M.D. Page 2 This Court requested supplemental briefing on the followingissue: What effect, if any, does the 2015 amendment to California Rules of Court, rule 3.55(7) and the accompanying Advisory Committee Comment have on the resolution of the issue presented by this case? Rule 3.55(7) provides that “reporter’s fees for attendance at hearingsandtrials” must be waived upon granting an application for an initial fee waiver, but only “if the reporter is provided by the court.” This language and the Advisory Committee’s express statementthatthe rule “is not intended to mandate that a court reporter be providedfor all fee waiver recipients” supports Dr. Desta’s answerto the question presented. (Advisory Com. com., West’s Ann.Codes, Cal. Rules of Court, rule 3.55(7), p. 2697.) Civil litigants who sue for personal injury damagesare notentitled to official court reporter services or transcripts at public expense. Even assumingthey are, the absence of a court reporter during Appellant’s opening statement was harmless. The judgment should be affirmed. I, RULE 3.55(7) SUPPORTS DR. DESTA’S ANSWER TO THE QUESTION PRESENTEDIN THIS CASE AND REFLECTSAN INTENT THATFEE WAIVER RECIPIENTS ARE NOT ENTITLED TO COURT REPORTERS AT PUBLIC EXPENSE California Rules of Court, rule 3.55 lists the fees and costs that must be waivedif the trial court grants an application for an initial fee waiver dueto a litigant’s financial condition. Rule 3.55(7) provides, “[c]ourt fees and costs that must be waived upon granting an application for an initial fee waiver include: [§] ... [rJeporter’s fees for attendance at hearings andtrials, ifthe reporter is provided by the court[.|” (Emphasis added.) The language “if the reporter is provided by the court” was added by the Judicial Council in 2015. (Cal. Rules of Court, rule 3.55(7), as amended July 1, 2015; see Cal. Const., Art. 6, § 6 [the Judicial Council is the entity charged with adopting rules for court administration, practice, and procedure].) The Advisory Committee Commentto Rule 3.55 explains, November9, 2017 Honorable Chief Justice Cantil-Sakauye and Honorable Justices Re: Jameson v. Desta, M.D. Page 3 The inclusion of court reporter’s fees in the fees waived upon granting an application for an initial fee waiver is not intended to mandate that a court reporter be providedfor all jee waiver recipients. Rather, it is intended to include within a waiver all fees mandated under the Government Code for the cost of court reporting services provided by a court. (Advisory Com. com., West’s Ann. Codes, Cal. Rules of Court, rule 3.55(7), p. 2697, emphasis added.) Thoughthey are not enacted by the Legislature, the Rules of Court “have the force of statute to the extent that they are not inconsistent with legislative enactments and constitutional provisions.” (Silverbrand v. County ofLos Angeles (2009) 46 Cal.4th 106, 125.) Rule 3.55(7) is consistent with the Legislature’s decision to granttrial courts the discretion to determine whether and to what extent official court reporter services would be providedin civil proceedings. A. A Fee Waiver Does Not Guarantee A Civil Litigant Free Court Reporter Services Rule 3.55(7) contains a significant qualification: reporter’s fees for attendanceat hearings andtrial are waived only “if the reporter is provided by the court[.]” Stated in the converse, reporter’s fees are not waivedif the court does not provide a reporter. Asis clear from the plain language oftherule, courts are not required to provide court reporter services for attendance at hearings andtrial. Nothingin the rule prohibits a court from adopting a policy that denies court reporter services to a civil litigant who has been granted a fee waiver. In fact, the Judicial Council’s Advisory Committee specifically explained that the inclusion of court reporter fees in Rule 3.55 “is not intended to mandatethat a court reporter be providedfor all fee waiver recipients.” (Advisory Com. com., West’s Ann. Codes, Cal. Rules of Court, rule 3.55(7), p. 2697.) This commentreflects a specific intentthat trial courts retain the discretion to decide whetherto provide court reporter services in civil proceedings.' (See also Cal. Rules of Court, rule 2.956 [trial courts are ' Though such commentary is not binding authority, California courts often look to such commentary for guidance whenascertaining legislative intent. (Ault v. Dinnerfor Two, Inc. (1972) 27 Cal.App.3d 145, 149,fn. 2 [“The Judicial Council Commentsprovide an November 9, 2017 Honorable Chief Justice Cantil-Sakauye and Honorable Justices Re: Jameson v. Desta, M.D. Page 4 tasked with adopting policies enumerating if and when services ofofficial court reporters are made available by the court].) B. A Fee Waiver Does Not Guarantee A Civil Litigant Free Court Reporter Transcripts Rule 3.55(7) affects the resolution of the issue presented in yet another respect. In the event the court provides a reporter, Rule 3.55(7) makesclear that only fees for the reporter’s “attendance at hearings andtrial” are waived. The expenseoftranscribing the events at hearings andtrial is distinct. That expense was not intended to be waived for indigentlitigants. As the Advisory Committee explained, Rule 3.55(7) “is intended to include within a waiverall fees mandated under the Government Codefor the cost of court reporting services provided by a court.” (Advisory Com. com., West’s Ann. Codes, Cal. Rules of Court, rule 3.55(7), p. 2697, emphasis added.) Consequently, even if the Court adopts a rule mandating court reporter services for civil fee waiver recipients, such litigants are not entitled to reporter’s transcripts at public expense. C. Mandating Official Court Reporter Services Would Create Significant Hardship For The Already Overburdened Superior Courts The Superior Courts shouldretain jurisdiction to decide whether to provide official court reporter services because, as the Los Angeles County Superior Court explains in its amicus curaie letter brief, trial courts have no independent meansfor raising or obtaining the necessary financial resources to support such services. The policy at issue in this case was necessary to ensure the court’s continued operation in light of state budget cuts to the judiciary. If the courts are required to allocate resources to official reporter services, the cost impact will be substantial. The Los Angeles County Superior Court estimates it would be forced to divert $5.5 million in funds from other court programsto provide reporters to indigentcivil litigants. Amicus curiae Orange County Superior Court estimates such a rule would increase the court’s deficit by at least $1 million per year. That assumesthe courts are even able to find and retain available, qualified court reporters. important guide to statutory interpretation”]; Gibble v. Car-Lene Research, Inc. (1998) 67 Cal.App.4th 295, 304, fn. 7.) November9, 2017 Honorable Chief Justice Cantil-Sakauye and Honorable Justices Re: Jameson v. Desta, M.D. Page 5 Moreover, if court funds are to be redirected to official court reporter services, other court services will be reducedor eliminated altogether. Access to justice will then be compromisedfor alllitigants in California, not just those who receive fee waivers and request court reporter services for personal injury cases. CONCLUSION The 2015 amendmentto Rule 3.55(7) and the accompanying Advisory Committee comment support this Court’s affirmance ofjudgmentin favor ofDr. Desta. Plaintiffwas not entitled to official court reporter services or a reporter’s transcript at public expense. Even assuming he was, the absenceofa reporterin this case was harmless. Furthermore, there were manyreasonsthetrial court ruled againstplaintiff below. The Court ofAppealdid not considerall of those grounds for affirmance, including the trial court’s dismissal based on plaintiffs delay in prosecuting his case pursuant to Code of Civil Procedure section 583.310. Should this case be remanded for further proceedings, this Court should direct the Court ofAppeal to consider whether the absence of a court reporter during plaintiff’s opening statementresulted in prejudice Respectfully submitted, CAye Cassidy C. Davenport Counsel for Defendant and Respondent, Taddese Desta, M.D. cc: All Counsel, per attached Proofof Service PROOF OF SERVICE I am employed by Cole Pedroza LLP,in the County ofLos Angeles, State of California. I am overthe age of 18 and not a party to the within action. My business address is 2670 Mission Street, Suite 200, San Marino, California 91108. Onthe date stated below,I served in the manner indicated below,the foregoing document described as: RESPONDENT’S SUPPLEMENTAL LETTERBRIEF onthe parties indicated below byplacing a true copy thereof, enclosed in a sealed envelope addressed as follows: SEE ATTACHED LIST By United States Postal Service — I am readily familiar with the business’s practice for collecting and processing of correspondencefor mailing with the United States Postal Service. In that practice correspondence would be deposited with the United States Postal Service that same day in the ordinary course of business, with the postage thereon fully prepaid, in San Marino, California. The envelope was placed for collection and mailing on this date following ordinary business practice. I declare underthe penalty ofperjury underthe laws ofthe State of California that the foregoing is true and correct. Executed this 9th day ofNovember, 2017 at San Marino, California. ara Mazzeo Michael Shipley, SBN 233674 Sierra Elizabeth, SBN 268133 KIRKLAND & ELLIS LLP 333 South HopeStreet 29th Floor Los Angeles, CA 90071 Tel: (310) 680-8400 Fax: (310) 680-8500 Paulette Brown, pro hac vice AMERICAN BAR ASSOCIATION 32 North Clark Street Chicago,Illinois, 60654 Tel.: (312) 988-5000 Mary-Christine Sungaila, SBN 156795 HAYNES AND BOONE, LLP 600 Anton Blvd., Suite 700 Costa Mesa, CA 92626 Tel: (949) 202-3000 Fax: (949) 202-3001 Catherine Blakemore, SBN 075850 1831 K.Street Sacramento, CA 95811 Tel: (916) 504-5800 SERVICELIST Attorneysfor Plaintiffand Appellant, BARRYS. JAMESON Attorneysfor Amici Curiae, AMERICAN BAR ASSOCIATION Attorneysfor Amici Curiae, AMERICAN BAR ASSOCIATION Attorneysfor Amici Curiae, AMICUS CURIAE COMMITTEE OF THE CALIFORNIA COMMISSION ON ACCESSTO JUSTICE Jon B. Eisenberg, SBN 88278 509 TuckerSt. Healdsburg, California 95448 Tel: (707) 395-0111 Albert Giang, SBN 224332 Caldwell Leslie & Proctor, PC 725 S. Figueroa St., 31st Floor Los Angeles, CA 90017 Tel: (213) 629-9040 Michele L. Maryott, SBN 191993 Gibson, Dunn & Crutcher LLP 3161 Michelson Dr. Irvine, CA 92612 Tel: (949) 451-8000 Attorneysfor Amici Curiae, CALIFORNIA ACADEMY OF APPELLATE LAWYERS; BEVERLY HILLS BAR ASSOCIATION; INNER CITY LAW CENTER, LEGAL AID ASSOCIATION OF CALIFORNIA; LEGAL AID FOUNDATION OF LOS ANGELES; LOS ANGELES CENTER FOR LAW AND JUSTICE; LOS ANGELES COUNTY BAR ASSOCIATION; PUBLIC COUNSEL; NEIGHBORHOOD LEGAL SERVICES OF LOS ANGELES COUNTY; PROF. ERWIN CHEMERINSKY; PROF. DAVID MARCUS;PROF. JUDITH RESNIK; PROF. LOUISS. RULLI; WESTERN CENTER ON LAW AND POVERTY Erin C. Smith, SBN 234852 Family Violence Appellate Project 1814 Franklin Street, Suite 805 Oakland, CA 94612 Tel: (510) 858-7358 Fax: (866) 920-3889 Penelope A. Preovolos, SBN 87607 MORRISON & FOERSTER LLP 425 Market Street San Francisco, CA 94105 Tel: (415) 268-7000 Fax: (415) 268-7522 Attorneysfor Amici Curiae, FAMILY VIOLENCE APPELLATE PROJECT Attorneysfor Amici Curiae, FAMILY VIOLENCE APPELLATE PROJECT