JAMESON v. DESTA

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

Cal.August 30, 2016

$230899 IN THE SUPREME COURT OF CALIFORNIA iy SUPREME COUR! BARRYS. JAMESON, - FILED Plaintiff and Petitioner, AUG 19 2016 v. Frank A. McGuire Clerk TADDESEDESTA, r icGuire Clert Defendant and Respondent. Deputy AFTER A DECISION BY THE COURT OF APPEAL, FOURTH APPELLATE DISTRICT, DIVISION ONE CASE No. D066793 APPLICATION FOR LEAVE TO FILE AMICUS CURIAE BRIEF IN SUPPORT OF PETITIONER; AMICUS CURIAE BRIEF CALIFORNIA ACADEMY OF APPELLATE CALIFORNIA ACADEMY OF APPELLATE LAWYERS LAWYERS *JON B. EISENBERG(No. 88278) AMICUS CURIAE COMMITTEE PRESIDENT, 2016-2017 MARGARETA. GRIGNON, CHAIR(No.76621) 509 TUCKERST. ROBIN MEADOW(No. 51126) HEALDSBURG, CALIFORNIA 95448 ROBERTS. GERSTEIN(No. 35941) (707) 395-0111 DENNISA. FISCHER(No. 37906) jeisenberg@horvitzlevy.com ROBINB. JOHANSEN(No. 79084) LAURIE J. HEPLER(No.160884) MICHAEL G. COLANTUONO(No.143551) ORLY DEGANI(No.177741) CALDWELL LESLIE & PROCTOR,PC GIBSON, DUNN & CRUTCHER LLP ALBERT GIANG(No. 224332) MICHELE L. MARYOTT(No. 191993) 725 S. FIGUEROA ST., 31ST FLOOR BLAINE H. EVANSON(No. 254338) Los ANGELES, CA 90017 CAROLYNS. SMALL(No.304938) (213) 629-9040 3161 MICHELSON DR. giang@caldwell-leslie.com IRVINE, CA 92612 (949) 451-8000 CSmall@gibsondunn.com ATTORNEYS FOR AMICI CURIAE CALIFORNIAACADEMY OFAPPELLATE LAWYERS; BEVERLY HILLS BAR ASSOCIATION; INNER CITY LAW CENTER, LEGAL AID ASSOCIATION OF CALIFORNIA; LEGAL AID FOUNDATION OF LOS © ANGELES; LOS ANGELES CENTER FOR LAWAND JUSTICE; LOS ANGELES COUNTYBAR ASSOCIATION; PUBLIC COUNSEL; NEIGHBORHOOD LEGAL SERVICES OF LOS ANGELES COUNTY; PROF. ERWIN CHEMERINSKY; PROF. DAVID MARCUS; PROF. JUDITH RESNIK; PROF. LOUIS S. RULLI; WESTERN CENTER ON LAWAND POVERTY TABLE OF CONTENTS Page TABLE OF AUTHORITIEG............0.ccccccccccessscscssesesscsceseseecesseseseeees li APPLICATION FOR LEAVE TO FILE AMICUS CURIAE BRIEF IN SUPPORT OF PETITIONER...0.....ccccccscscescecescesseeeseeees 1 INTRODUCTION00ecccccccccscssessesccsssesscsvsvsverecsusstsssacsssavavecaveceses 7 ARGUMENT00.ccccccesscseseseesceusvacssssvscessesatsssassasavssecseseceeseees 9 I. PERSONS OF MODEST MEANS ARE LOSING ACCESS TO THE CALIFORNIA COURTS.......cccccccccececeees 9 II. PRIVATE COURT REPORTER FEES MUST NOT BE A BARRIER TO APPELLATE COURT ACCESS FOR LITIGANTS WHO CANNOT AFFORD TO PAY THEM... 11 Ill. A REPORTER'S TRANSCRIPT CAN BE ESSENTIAL TO APPELLATE COURT ACCESS000... cecccccessssescesesecees 13 IV. A SETTLED STATEMENT IS RARELY AN ADEQUATE SUBSTITUTE FOR A REPORTER’S TRANSCRIPToooccececccescescssseseescscsescscssssessesatasaesssasseeess 15 V. A COURT REPORTER’S STENOTYPE NOTES CAN BE USED TO HELP PRODUCE A MEANINGFUL SETTLED STATEMENT...0..0....cccccccccscsseceseececesesesesesceaees 17 VI. A SUPERIOR COURT’S ADOPTION OF A POLICY THAT ERECTS A BARRIER AGAINST PERSONS OF MODESTMEANS OBTAINING COURT REPORTERS CONSTITUTES AN ABUSE OFDISCRETION................ 18 CONCLUSIONo.ooccceescsessessscssesececscssssseneaceatatstsesasacscsesessees 20 CERTIFICATE OF WORD COUNT.....o..occccccccccessssesceseceseseesecees 21 TABLE OF AUTHORITIES Page(s) Cases Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121 oo.iccsccecessesesesssneecstsesseueessass 14 Apollo v. Gyaami (2008) 167 CalApp.4th 1468 000.0...ccilecseeecceecetseessneeeens 18 Carlson v. Frilot (Mar.26, 2003, FO38517) 2003 WL 1562627..000.....cccccceeeeeeee 15 Carter v. James (Feb. 26, 2009, B206089) 2009 WL 485396....0.0.......ccecccseeseeeeee 14 Cruz v. Superior Court (2004) 120 CalApp.4th 275 0... ccccccssccsccccesesscereceseessseeesess 5 Eisenberg v. Superior Court (1956) 142 CalApp.2d 12.0... ceeceessssneeseccecesseeeecseeess 17 Elena S. v. Kroutik (2016) 247 Cal.App.4th 570 oo... cieeesssccceesececetteceessecessuecs 14 Elkins v. Superior Court (2007) 41 Cal.4th 1387 0...ccccessceessseeeseseceseceaneens 13, 19 Estate of Fain (1999) 75 Cal.App.4th 978 .......ccccccccceceseecceceeeesecessecesseeeensaes 14 Foust v. San Jose Constr. Co. (2011) 198 CalApp.4th 181 oo.ececseecesseesssseeeessees 13 Herick v. Municipal Court (1970) 8 Cal.App.3d 967 ........cccccecccccscesscceseseccereceeeasecsecsseesas 17 Hodges v. Mark (1996) 49 Cal.App.4th 651 ooseesscecccceseressseesreecsaes 8 In re Armstrong (1981) 126 CalApp.3d 565.000... eeccecssneceeceenseeeeees 16, 17 ra In re Marriage of Flaherty (1982) 31 Cal.3d 637.00...ccccccesseeeeseeeeeees In re Marriage of Obrecht (2016) 245 CalApp.4th 1 oo...eceeeeeees Isrin v. Superior Court (1965) 63 Cal.2d 153.0...eccessceeseeereeees Martin v. Superior Court (1917) 176 Cal. 289.0...eeeceeceecessceeeees Mooney v. Superior Court (2016) 245 CalApp.4th 528oe Nelson v. Anderson (1999) 72 Cal.App.4th 111.0... Schuster v. Milestone (Mar. 14, 2003, H023268) 2003 WL 1194090 Wagner v. Wagner (2008) 162 Cal.App.4th 249 0.0...cece Western States Const. Co. v. Municipal Court (1951) 38 Cal.2d 146.00...ecceeeceeeeeeeee Williams v. Chino Valley IndependentFire Dist. (2015) 61 Cal.4th 97 oo.eeeecceeeeeseesecees Yarbrough v. Superior Court (1985) 39 Cal.3d 197.0... cccecscesceeeceeeseens ili eeeeeeesecsaeeeeeeeeeeees 12 veseeeeeessteeeeeeens 9,16 beet eee ssnseeseeeseeeees 12 vee eeeeeeenseeeeeseeaaaees 12 weeeeeeeeesesseeeeeeeaenes 17 eseeeessseseeeeeeeeeeeees 14 seseessee seosessesseeeee LB veeteeeeesseceeseeeneeeaes 14 wevecesaeseceeeeeeeneaaaes 17 oeeeceeesseececeeeneeeeen 15 aseeeseeeeeseeveeeeeeunes 18 Statutes Government Code § 68630, subd. (8)... cececescccsssecesecsseesecsasecsssesesacvesseeceeeececces 12 § 68631 oocccc ccscssscesssccsececsssevssessecessstssecusstsusstteeteeeecseeceeccece. 8 Rules of Court Cal. Rulesof Court YUle 8.137 ooo. ececccccesccseessceceseccccesseessececatesecessececeuatecsecccesseceees 15 PUle 8.168 ooo... eee cccecesscesssecseneccecssesssseessessesessessesssectesecsessececes 14 rule 8.LL15(a) occ ecccccscccsscssccessssscesecessecssseesseessssesscesstsessteesesse 15 Yule 10.960(D).......cece eeecesseccecesscescecsesssccssssseessesesetecececscceces 12 Cal. Stds. Jud. Admin § LO.L7D)(B)(A)oo. ceccecccecccccceessseseccesescsesseasecesesecseeeseeccececce. 13 § 10.1 7D)(B)(B)oo. ceeccceececcccccccsessessecessssseceseceeceesseereecessseseceese. 13 Miscellaneous Cal. Com. on Access to Justice, Action Plan For Justice (ed. 2007) ......eccccceccccccsecccccecceceeee 9 Cal. Off. Crt. Reporters Assn., Read/Write Like a Court Reporter .0........ ci ceeccccssecesssceesccesesseseceeseceeece 17 Conference of Chief Justices, Conference of State Court Administrators, Resolution 5 (2015) 0.0.0... ..cceceeccessecessccessecssscssssscesceseeceeees 11 Impellizzeri, BYO Court Reporter (Sept. 2013) Cal. Lawyer 10 ..........ceccccccecccccccsssssceeeeseeees 10 iv Jud. Council of Cal., Cantil-Sakauye, C.J., State of the Judiciary March 2016: Address to a Joint Session of the California Legislature (Mar. 8, 2016) .....cccccccccsssscesecssseseeceeees 12 McEvoy, Shrinking court reporter staffs bring changesto civil litigation, Daily J. (Mar. 15, 2012).........cc0..00-. 7 Resnik, Constitutional Entitlements to and in Courts: Remedial Rights in an Age of Egalitarianism (2012) 56 St. Louis U. Lid. 917 .ocececcccsscecsccessscssscessessosessesececes 10 Rhode, Access to Justice: An Agenda For Legal Education and Research (2013) 62 J. Legal Educ. 2s 9 Rhode, Access to Justice: Connecting Principles to Practice (2004) 17 Geo. J. Legal Ethics 369..........cccccccc00- 10, 11 Stevenson, Just Mercy (2014)... cececccscsssccesecssccscesssssssseeeeecees 13 IN THE SUPREME COURT OF CALIFORNIA BARRYS. JAMESON, Plaintiff and Petitioner, v. TADDESE DESTA, Defendant and Respondent. APPLICATION FOR LEAVE TO FILE AMICUS CURIAE BRIEF IN SUPPORT OF PETITIONER Private court reporter appearance fees should not be a barrier to access to the California state appellate courtsfor litigants who cannot afford to pay such fees. Amici curiae believe they can assist the Court in resolving this case by presenting the viewsoflocal and specialty bar organizations, legal aid providers, and academics who have devoted timeto helpingto ensure accessto justicefor indigent and unrepresentedlitigants, and by discussing points not addressed in the parties’ briefs. For these reasons, the following amici curiae respectfully request leaveto file the accompanyingbrief. California Academy of Appellate Lawyers is a nonprofit elective organization of experienced appellate practitioners. Its goals include promoting and encouraging sound appellate practice and procedures designed to ensure proper and_ effective representation of appellate litigants, efficient administration of justice at the appellate level, and improvementsin the law affecting appellate litigation. Beverly Hills Bar Association (BHBA) is a voluntary bar association with more than 5,000 members, many of whom live or work in the Beverly Hills and Century City areas of Los Angeles County. BHBA is dedicated to improving the administration of justice, meeting the professional needs of Los Angeles lawyers, and serving the public. Its core mission includes facilitating access to legal services. BHBA has often appeared as amicus curiae to address important questions before this Court. Inner City Law Center (ICLC)is a full-time providerof legal services which has been serving the poorest and most vulnerable individuals and families in Los Angeles since 1980. Founded on the basic principle that every human being should be treated with dignity and respect at all times, ICLC provides free legal representation and social service advocacy to more than 2,000 homeless and workingpoor clients each year. ICLC is recognizedin particularfor its expertise in housingissues, veterans’ benefits, and homelessness prevention. Legal Aid Association of California (LAAC) is a statewide membership association of 85 nonprofit public interest law organizations,all of which providefree civil legal services to low- income persons and communities throughout California. Its members provide high-quality legal services to California’s low- income and underrepresented populations, serving approximately © 270,000 clients each year. The mission of LAACisto beaneffective and unified voice for legal aid on issues of concern to its members and the statewide justice community. Legal Aid Foundation of Los Angeles (LAFLA)is a frontline law firm which has provided civil legal services to poor and low- incomepeople in Los Angeles County for more than 85 years. With six neighborhoodoffices, three Domestic Violence Clinics and four SelfHelp Legal Access Centers, LAFLA serves diverse communities and is the first place thousandsof poor people turn to when they need legal assistancefora crisis that threatens their shelter, health and livelihood. LAFLA’s Supporting Families Working Group advocates provide direct legal and case management services to survivors of domestic violence/intimate partner abuse and their families, including direct representation at the trial and appellate courtlevels. Los Angeles Center for Law and Justice (LACLJ) isa nonprofit legal aid organization which fights for the rights of vulnerable families and advocates for a more just legal system. LACLJ has been providing free legal services and advocacy to low income residents of Los Angeles County and their families for 40 years. Attorneys at LACLJ provide in-depth individualized legal services, including representation in court, through the following four programs: (1) Domestic Violence; (2) Teen Legal Advocacy;(3) Immigration; and (4) Access to Justice. Los Angeles County Bar Association (LACBA)is one of the largest local voluntary bar associations in the country. In addition to meeting the professional needs of its members, LACBA actively promotes the administration ofjustice, access to the legal system, andtherole of lawyersin facilitating both. LACBA has a large and active Access to Justice Committee, which joins this application. Neighborhood Legal Services ofLos Angeles County (NLSLA) is one of the largest nonprofit law firms in California, recognized statewide and nationwide as a premierlegal services organization. NLSLA’s staff of more than 100 advocates and support personnel offer legal services in manyareasofpoverty law, including family law, housing, immigration, healthcare, employment, and public benefits. NLSLA serves thousands of low-income Los Angeles County residents annually in its three offices, five courthouse-based self-help centers, the Eviction Assistance Center based in the Los Angeles Superior Court Stanley Mosk Courthouse, three medical- legal partnership projects, monthly clinics, and community engagement events. Professor Erwin Chemerinsky is the founding Dean and Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law, at the University of California, Irvine School of Law.* Professor David Marcus is the 1885 Society Distinguished Scholar, and Professor of Law, at the University of Arizona James E. Rogers College of Law.* | Professor Judith Resnik is the Arthur Liman Professor ofLaw at Yale Law School.* Professor Louis S. Rulli is the Practice Professor of Law and Clinical Director at University of Pennsylvania Law School.* 4 *Institutional affiliation for identification purposes only. Public Counsel is the nation’s largest pro bono law firm. Founded in 1970, Public Counsel strives to achieve three main goals: foster economic justice by providing individuals and institutions in underserved communities with access to quality legal representation; protect the legal rights of disadvantaged children; and represent immigrants who have been the victims of torture, persecution, domestic violence, trafficking, and other crimes. Througha pro bono modelthat leverages the talents and dedication of thousandsof attorney and law student volunteers, along with an in-house staff of more than 75 attorneys and social workers, Public Counsel annually assists more than 30,000 families, children, immigrants, veterans, and nonprofit organizations and addresses systemic poverty andcivil rights issues through impactlitigation andpolicy advocacy. Western Center on Law andPoverty is the state support center for California’s neighborhood legal aid offices. For many years, Western Center has monitored accessto court issues statewide and has advocated for enforcement of the fee waiver statutes in the Legislature and in the courts. (See, e.g., Cruz v. Superior Court (2004) 120 Cal.App.4th 275.) No party or party’s counsel authored this brief in whole or in part or made a monetary contribution intended to fund the preparation or submissionofthe brief. Other than the amicicuriae, their members, or their counsel, no person or entity made a monetary contribution intended to fund the preparation or submission of the brief. July 28, 2016 CALIFORNIA ACADEMY OF APPELLATE LAWYERS JON B. EISENBERG MARGARET A. GRIGNON ROBIN MEADOW ROBERT 8S. GERSTEIN DENNISA. FISCHER ROBIN B. JOHANSEN LAURIE J. HEPLER MICHAEL G. COLANTUONO ORLY DEGANI CALDWELL LESLIE & PROCTOR, P.C. ALBERT GIANG GIBSON DUNN & CRUTCHER LLP MICHELE L. MARYOTT BLAINE H. EVANSON CAROLYN S. SMALL © By: Jon B. Eisenber . Attorneys for Amici Curiae CALIFORNIA ACADEMY OF _ APPELLATE LAWYERS; BEVERLY HILLS BAR ASSOCIATION; INNER CITY LAW CENTER, LEGAL AID ASSOCIATION OF CALIFORNIA; LEGAL AID FOUNDATIONOF LOS ANGELES; LOS ANGELES CENTER FOR LAWAND JUSTICE; LOS ANGELES COUNTY BAR ASSOCIATION; PUBLIC COUNSEL; NEIGHBORHOOD LEGAL SERVICES OF LOS ANGELES; PROF. ERWIN CHEMERINSKY; PROF. DAVID MARCUS; PROF. JUDITH RESNIK; PROF. LOUISS. RULLI; WESTERN CENTER ON LAW AND POVERTY BRIEF OF AMICI CURIAE IN SUPPORT OF PETITIONER INTRODUCTION Despite having obtainedthree reversals ofjudgments against him, indigent pro per appellant Barry S. Jameson saw his case founder not on the merits, but on his inability to afford a court reporter's appearance fees. This brief urges that private court reporter appearance fees must not be a barrier to appellate court access for persons who cannot afford to pay them. A reporter’s transcript, for which a settled statement is rarely an adequate substitute, can be essential to appellate review. The superior court in this case abusedits discretion in adoptinga policy that effectively puts appellate justice beyond reach of Californians of modest means. At issue in this case is a policy of the San Diego Superior Court stating that “[o]fficial court reporters are not normally available in civil, family, or probate matters,” and “[p]arties, including those with fee waivers, areresponsible for all fees and costs related to court reporter services” that litigants arrange privately. (Super. Ct., San Diego County, Form ADM-317 [as of July 26, 2016], emphasis added, boldface omitted.) Private court reporter appearance fees can be considerable. In 2012, the per diem rate for court reporters was $735 in San Francisco and $764 in Los Angeles. (McEvoy, Shrinking court reporter staffs bring changes to civil litigation, Daily J. (Mar. 15, 2012).) Similar policies have recently proliferated throughout California. Because of steep decreases in court funding, most of California’s superiorcourts, like the San Diego Superior Court, no longer provideofficial reporters for mostcivil proceedings—evenfor indigent litigants who have obtained fee waivers. (Impellizzeri, BYO Court Reporter (Sept. 2013) Cal. Lawyer 10, 11 [as of July 26, 2016].) In the present case, the Court of Appeal held that Jameson, an indigent prisonerprosecutinga civil action for alleged negligent medical treatment who had obtained a fee waiver (Gov. Code, § 68631), was precluded from raising evidentiary issues on appeal from a judgment of nonsuit after plaintiffs opening statement because he was unable to pay the appearancefee of a private court reporter and thus could not obtain a transcriptoforal proceedings in the superior court. (Typed opn.17, citing Hodges v. Mark (1996) 49 Cal.App.4th 651, 657.) In the Court ofAppeal’s view, Jameson’s financial circumstances did not mitigate the requirement of an adequate record on appeal. (See typed opn. 3 [“While this courtis sympathetic to the plight of litigants like Jameson whose incarceration and/or financial circumstances present such challenges, therules of appellate procedure and substantive law mandatethat weaffirm the judgmentin this case’].) The Court of Appeal’s decision would effectively preclude persons of modest means from appealing adverse rulings where no official court reporter is available, solely because they cannot afford a private court reporter’s appearance fee. However, “the right to effective appellate review cannot be permitted to dependentirely on the meansof the parties.” (In re Marriage of Obrecht (2016) 245 Cal.App.4th 1, 9, fn. 3 (Obrecht).) This Court should reverse the Court of Appeal’s decision to ensure that the courthouse doors remain open to Californians regardless of their economic status. ARGUMENT I. PERSONS OFMODEST MEANSARE LOSINGACCESS TO THE CALIFORNIA COURTS. California residents ofmodest meansface dauntingobstacles to accessing thestate’s court system. According to a report by the California Commission on Accessto Justice: California has by far the largest low-income population of any state. Since 1980, California’s population has increased 40 percent while the numberof Californians in poverty has increased by 60 percent. [f] Poverty affects vulnerable populations and women disproportionately. One of every five children in our state is poor.... [{] ... In 2000, approximately 7.5 million Californians had incomes higher than the maximumeligibility limit for federally fundedlegal aid and yet their incomes were lower than the state’s median income. [{] ... The result is that the majority of Californians do not have the resourcesto obtain legal representation for the myriad legal problems affecting them every year, such as divorce, child support, child custody, domestic violence, loss of housing and employment, and discrimination. (Cal. Com. on Access to Justice, Action Plan For Justice (Summary ed. 2007) p.2 [as of July 26, 20 16]; see also Rhode, Access to Justice: An Agenda For Legal Education and Research (2013) 62 J. Legal Educ. 531, 531 (“For decades, bar studies have consistently estimated that more than four-fifths ofthe individual legal needs of the poor and a majority of the needs of middle-income Americans remain unmet”].) Most low-income Californians wishing to litigate have no choice but to go it alone. In 2007, “[mJore than 90 percent of the 450,000 people . . . who use[d] self-help programs in California earn{[ed] less than $2,000 per month.” (Jud. Council of Cal., Admin. Off. of Cts., Handling Cases Involving Self-Represented Litigants: A Benchguide For Judicial Officers (2007) p. 1-2 [as ofJuly 26, 2016].) In 2009,“California tallied 4.3 million people in civil litigation without the assistance of lawyers.” (Resnik, Constitutional Entitlements to and in Courts: Remedial Rights in an Age ofEgalitarianism (2012) 56 St. Louis U. L.J. 917, 974.) And the problem of lack of accessis not limited to the poor. “It is not only low-income communitiesthatare priced outofthe currentcivil justice system. Millions of moderate-income Americans suffer untold misery because legal protections that are available in principle are inaccessible in practice.” (Rhode, Access to Justice: Connecting Principles to Practice (2004) 17 Geo. J. Legal Ethics 369, 372 (Access Principles).) | Indigent litigants’ reduced ability to afford litigation is frequently exacerbated by their greater need to access the courts and for assistance in doing so. “Not only do the poor experience more legal difficulties than the average American, their problems 10 often assumespecial urgency... . The poor and near-poorare also less likely to have the education, skills, and self-confidence to handle legal problems effectively without assistance.” (Access Principles, supra, 17 Geo. J. Legal Ethics at p. 377) Appellant Jameson exemplifies hundreds of thousands of Californians forced to navigate the civil courts without assistance because they cannot afford counsel. Assistance is particularly warranted whenindigentplaintiffs like Jameson manageontheir ownto reachtrial on the merits against a represented defendant. (See typed opn. 2 [“In three separate prior appeals, this court reversed judgmentsin favor of Desta, and remanded the matterfor further proceedings”].) And contrary to Desta’s suggestion that “this issue shouldbe left to the Legislature” (ABOM 45), this Court plays a leading role in ensuring meaningful access to the justice system. (Conference of Chief Justices, Conference of State Court Administrators, Resolution 5 (2015) p. 1 fas of July 26, 2016] [“the Judicial Branch has the primary leadership responsibility to ensure access for those who face impediments they cannot surmount on their own’”].) II. PRIVATE COURT REPORTER FEES MUST NOT BEA BARRIER TO APPELLATE COURT ACCESS FOR LITIGANTS WHO CANNOT AFFORDTO PAY THEM. The Legislature has declared it the policy of California that all should have “access to the courts without regard to their economic means,” and that “California law and court procedures 11 should ensure that court fees are not a barrier to court access for those with insufficient economic meansto pay thosefees.” (Gov. Code, § 68630, subd. (a).) The Judicial Council has similarly declared that “[p]roviding access to justice for self-represented — litigants is a priority for California courts,” and that “Tclourt programs, policies, and procedures designed to assist self- represented litigants . . . at all stages must be incorporated and budgeted as core court functions.” (Cal. Rules of Court, rule 10.960(b).) For nearly a century, this Court has madeclear that any rule that “has the practical effect of restricting an indigent’s access to the courts becauseof his poverty . . . contravenes the fundamental notionsofequality and fairness whichsincetheearliest daysofthe commonlaw have found expressionin the right to proceed in forma pauperis.” (Isrin v. Superior Court (1965) 63 Cal.2d 153, 165,citing Martin v. Superior Court (1917) 176 Cal. 289, 293-297;see also In re Marriage of Flaherty (1982) 31 Cal.3d 637, 648 [unfettered court access “‘is an important and valuable aspectof an effective system of jurisprudence’ ”].) As the Chief Justice recently observed: [T]he true measure of our commitment to justice, fairness, the rule of law, equality cannot be measured by how wetreat therich, the powerful, the privileged, the respected amongst us.... [T]he true measure of our commitmentto justice is how wetreat the poor, the disfavored, the accused, the incarcerated, and the condemned. (Jud. Council of Cal., Cantil-Sakauye, C.J., State of the Judiciary March 2016: Address to a Joint Session of the California 12 Legislature (Mar. 8, 2016) [as of July 26, 2016], citing Stevenson, Just Mercy (2014) p. 18.) Yet in denying appellate review to Jameson, the Court of Appeal wrote that “[t]his case aptly demonstrates thatcivil justice is not free.” (Typed opn. 3.) One can scarcely imagine a worse message to the people of California. This Court has admonished that local court rules and policies should not have the effect of “diminishinglitigants’ respect for and trust in the legal system.” (Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1367 (Elkins).) “Courts must earn the public trust.” (Id. at p. 1369, citing Cal. Stds. Jud. Admin., § 10.17(b)(5)(A), (B).) Courts do not foster public respect and trust by pronouncing that appellate justice is only for those who canpayforit. Ill. AREPORTER’S TRANSCRIPTCANBE ESSENTIAL TO APPELLATE COURT ACCESS. Desta asserts that a reporter’s transcript “is not needed in the large majority of appeals” and that there is only “a very limited numberof cases (primarily, lengthy trials) in which an indigent plaintiff cannoteffectively appeal without a reporter’s transcript.” (ABOM 33.) Quite to the contrary, “[ijJn numerous situations, appellate courts have refused to reach the merits of an appellant’s claims becauseno reporter’s transcript of a pertinent proceedingor a suitable substitute was provided.” (Foust v. San Jose Constr. Co. (2011) 198 Cal.App.4th 181, 187.) Absent a record of the oral proceedings, an appellant: 13 e Cannot challenge the sufficiency of the evidence to support the judgment (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132): e Cannot challenge the superior court’s reasoning to show that a discretionary ruling was an abuse of discretion (Wagnerv. Wagner (2008) 162 Cal.App.4th 249, 259); e Risksthe inability to demonstrate record support for an argument or to show that issues were preserved for appeal(ElenaS. v. Kroutik (2016) 247 Cal.App.4th 570, 575-576); e Maybe unable to demonstrate a reasonable probability that the result would have been different absent the error, so as to establish the prejudice required for reversal (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 136); and e Loses the benefit of the presumption under rule 8.163 of the California Rules of Court that a partial record includes all matters material to deciding the issues raised, with the result that the appellate court will presumethe opposite—that an absenceof error would have been shownby the unreported oral proceedings (Estate ofFain (1999) 75 Cal.App.4th 973, 992). This is true even where, as here, the appeal is from a judgmentofnonsuit following the plaintiffs opening statement. At least three times since 2003, the Courts of Appeal have affirmed such judgments for wantofa reporter’s transcript. (Carter v. James 14 (Feb. 26, 2009, B206089) 2009 WL 485396,at p. *2, fn. 3 [nonpub. opn.] [absence of reporter’s transcript meant trial court was assumed to have been correct in stating that appellant had made a dispositive admission during opening statement]; Carlsonv. Frilot (Mar. 26, 2003, F038517) 2003 WL 1562627,at p. *1 [nonpub. opn.] [absence of reporter’s transcript meant “we have an inadequate record to review plaintiffs claim”]; Schuster v. Milestone (Mar. 14, 2003, H023268) 2003 WL 1194090,at p. *3 [nonpub. opn.] [absence of reporter’s transcript meant “we are unableto verify” claim that appellant properly provided overview of case or confined remarksto limited aspects of case].)! IV. ASETTLED STATEMENTIS RARELYANADEQUATE SUBSTITUTE FOR A REPORTER’S TRANSCRIPT. Desta argues this Court should affirm the Court of Appeal’s judgment because Jameson did not attempt to present a record of the oral proceedings by wayofa settled statement pursuantto rule 8.137 ofthe California Rules of Court. According to Desta, a settled statement would have been “a viable method for obtaining 1 Wecite these unpublished decisions not in reliance on them as authority (which would violate rule 8.1115(a) ofthe California Rules of Court) but only to show the frequency with which the Courts of Appeal have affirmed judgments of nonsuit following plaintiffs opening statement for want of a reporter’s transcript. (See generally Williams v. Chino Valley IndependentFire Dist. (2015) 61 Cal.4th 97, 113 [appellant properly cited unpublished opinion to demonstrate situation in which ordinary costs in FEHA case were substantial].) 15 meaningful appellate court review” (ABOM 3) and “a perfectly acceptable alternative” to a reporter's transcript (ABOM 49). But the fact that a settled statement may adequately serve an appellant’s needs in some cases does not excuse the denial of a reporter's transcript in other cases—surely the majority—where the settled statement cannot serve as an adequate substitute for a reporter’s transcript. “[W]here the parties are not in agreement, and the settled statement must depend upon fading memories or other uncertainties, it will ordinarily not suffice.” (In re Armstrong (1981) 126 Cal.App.3d 565, 573 (Armstrong).) “[T]he absence of a verbatim record [of oral proceedings] can preclude effective appellate review, cloaking the trial court’s actions in an impregnable presumption of correctness regardless of what may have actually transpired.” (Obrecht, supra, 245 Cal.App.4th at p. 9, fn. 3 [commenting “[w]e are deeply troubled by the [Santa Cruz Superior Court's] policy of conductingall family matters without a reporter unless a reporter is engaged by oneor both parties at their own expense”].) Thus, the theoretical possibility of producing a record of oral proceedings by wayof a settled statement provides no sure path aroundthe barrier to appellate justice erected by the local superior court policy at issue here. 16 V. ACOURT REPORTER’S STENOTYPE NOTES CAN BE USED TO HELP PRODUCEAMEANINGFUL SETTLED STATEMENT. If there is a possibility that a settled statement could adequately replace a reporter’s transcript, its suitability might very well turn on the availability of a court reporter’s untranscribed stenotype notes. The law is well settled that, even absent a reporter's transcript, the trial judge may refer to the reporter’s untranscribed stenotype notes to resolve disputes on a motion for settled statement. (Western States Const. Co. v. Municipal Court (1951) 38 Cal.2d 146, 148-149; Mooney v. Superior Court (2016) 245 Cal.App.4th 523, 532; see also Eisenberg v. Superior Court (1956) 142 Cal.App.2d 12, 19-20 [judge can resolve disputes by having reporter read aloud from notes at hearing on motion].)2 Thus, even when a court reporter has not produced a transcript, the stenotype notes from which a transcript would otherwise be prepared can be useful—evencritical—in preparing a settled statement. (Armstrong, supra, 126 Cal.App.3d at p. 573 [“had a phonographic reporter’s services . . . been requested and available ..., the uncertainties of the disputed settled statement would probably have been resolved by a simple reference to the reporter’s untranscribed notes”]; see also Herick v. Municipal Court 2 For an exemplar of stenotype notes as compared with plain English, see Cal. Off. Crt. Reporters Assn., Read/Write Like a Court Reporter {as of July 26, 2016]. 17 (1970) 8 Cal.App.3d 967, 974 [judge has “the right to have the reporter read relevant portions of his notes” at hearing on settled statement motion].) For this reason, Desta is wrong in contending that any error here was harmless because Jameson “almost certainly would not have” been able to pay for a reporter’s transcript even if a reporter had been present. (ABOM 55.) Had a court reporter attended the oral proceedings, the reporter’s stenotype notes might later have been used to produce a meaningful settled statement that would be an adequate alternative to a reporter’s transcript. VI. A SUPERIOR COURT’S ADOPTION OF A POLICY THAT ERECTS A BARRIER AGAINST PERSONS OF MODEST MEANS OBTAINING COURT REPORTERS CONSTITUTES AN ABUSE OF DISCRETION. In civil litigation by or against indigent prisoners, California courts have enunciated an abuse ofdiscretion standardto effectuate the right of access to the courts. (Yarbrough v. Superior Court (1985) 39 Cal.3d 197, 207; Apollo v. Gyaami (2008) 167 Cal.App.4th 1468, 1483-1484 [“a trial court has discretion to choose among” various remedies “in safeguarding a prisoner litigant’s right of meaningful access to the courts to prosecute or defend against a civil action threateninghis or her interests”].) Amici curiae submit that this standard should extend toall indigentcivil litigants—not just prisoners—andthat anylocal superior court policy that has the effect of depriving indigentlitigants of meaningful appellate review 18 w w e e s is invalid as inconsistent with state law and policy. (See Elkins, supra, 41 Cal.4th at p. 1351 [“A trial court is without authority to adoptlocal rules or proceduresthat conflict with statutes or with rules of court adopted by the Judicial Council, or that are inconsistent with the Constitution or case law”].) Where,as here, an indigentlitigant has obtained a fee waiver, it is an abuse of discretion for the superior court to categorically refuse either to provide anofficial court reporter or to extendthefee waiver to a private court reporter’s appearance fee when the consequenceis to preclude meaningful appellate review. That is the effect of the superior court policy at issue in the present case. This Court should keep appellate justice accessible to Californians of modest meansby disapproving the San Diego Superior Court’s local policy andotherslikeit. 19 CONCLUSION For the reasons explained above, and for those set forth in Jameson’s briefs on the merits, this Court should reverse the Court of Appeal’s judgment. July 28, 2016 CALIFORNIA ACADEMY OF APPELLATE LAWYERS JON B. EISENBERG MARGARET A. GRIGNON ROBIN MEADOW ROBERTS. GERSTEIN DENNISA. FISCHER ROBIN B. JOHANSEN LAURIE J. HEPLER MICHAEL G. COLANTUONO _ ORLY DEGANI | . CALDWELL LESLIE & PROCTOR,P.C. ALBERT GIANG GIBSON DUNN & CRUTCHER LLP MICHELE L. MARYOTT BLAINE H. EVANSON CAROLYN S. SMALL By: Jon B. Eisenberg Attorneys for Amicus 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 LAWAND 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 LAWAND POVERTY 20 CERTIFICATE OF WORD COUNT (Cal. Rules of Court, rule 8.504(d)(1).) The text of this petition consists of 3,037 words as counted by the Microsoft Word version 2010 wordprocessing program used to generate the petition. Dated: July 28, 2016 LBLhone JGxB. Eisenberg 21 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES At the timeof service, I was over 18 years of age and not a partyto this action. I am employed in the County of Los Angeles, State of California. My business address is 15760 Ventura Boulevard, 18th Floor, Encino, California 91436-3000. On July 28, 2016, I served true copies of the following document(s) described as APPLICATION FOR LEAVE TO FILE AMICUS CURIAE BRIEF IN SUPPORTOF PETITIONER; AMICUS CURIAE BRIEFonthe interested parties in this action as follows: SEE ATTACHED SERVICE LIST BY MAIL: I enclosed the document(s) in a sealed envelope or package addressedto the personsat the addresseslisted in the Service List and placed the envelope for collection and mailing, following our ordinary business practices. [I am readily familiar with Horvitz & Levy LLP’s practice for collecting and processing correspondencefor mailing. On the same daythat the correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. ' I declare under penalty ofperjury underthe lawsofthe State of California that the foregoing is true andcorrect. Executed on July 28, 2016, at Encino, California. MillleCowley SERVICE LIST Jameson v. Desta Case No. S230899 Michael J. Shipley Sierra Elizabeth Joseph M. Anderson Kirkland & Ellis LLP 333 South Hope Street Los Angeles, CA 90071 JamesJ. Wallace, II Russell M. Mortyn David Ozeran La Follette, Johnson, De Haas, Fesler & Ames 501 West Broadway, Suite 800 San Diego, CA 92101 Kenneth R. Pedroza Cole Pedroza LLP 2670 Mission Street, Suite 200 San Marino, CA 91108 California Court of Appeal Fourth Appellate District, Div. One 750 B Street, Ste. 300 San Diego, CA 92101-8196 Hon. Joel M. Pressman San Diego Superior Court 330 West Broadway, Fourth Floor Dept. 66 San Diego, CA 92101 Attorneysfor Petitioner Barry S. Jameson Attorneys for Respondents Taddese Desta Attorneys for Respondents Taddese Desta Case No. D066793 [Served through TrueFiling] Case No. GIS9465