Los Angeles County Court Reporters Assn. v. Superior Court

• Decision Date: 06 January 1995
• Docket Number: Nos. F020351,F020597,s. F020351
• Citation: 31 Cal.App.4th 403,37 Cal.Rptr.2d 341
• Court: California Court of Appeals Court of Appeals
• Parties: ., Plaintiffs and Appellants, v. The SUPERIOR COURT of Los Angeles County, Defendant and Appellant. Court of Appeal, Fifth District, California

Page 341

37 Cal.Rptr.2d 341

31 Cal.App.4th 403

LOS ANGELES COUNTY COURT REPORTERS ASSOCIATION et al., Plaintiffs and Appellants, v. The SUPERIOR COURT of Los Angeles County, Defendant and Appellant.

Nos. F020351, F020597.

Court of Appeal, Fifth District, California.

Jan. 6, 1995.

[31 Cal.App.4th 404] Van Bourg, Weinberg, Roger & Rosenfeld, James Rutkowski, James G. Varga, Los Angeles, for plaintiffs and appellants.

Altshuler, Berzon, Nussbaum, Berzon & Rubin, Fred H. Altshuler, San Francisco, for amicus curiae.

De Witt W. Clinton, County Counsel, Frederick R. Bennett, Asst. County Counsel, Los Angeles, for defendant and appellant.

OPINION

DIBIASO, Associate Justice.

On February 2, 1993, cross-appellants and respondents the Los Angeles County Court Reporters Association and the Los Angeles County Employees Association, Local 660 (collectively the association), filed a petition for writ of mandate in the Los Angeles Superior Court naming appellant and cross-respondent the Los Angeles County Superior Court (the court) as defendant. The petition challenged the court's practice of using electronic recording devices rather than certified court reporters to make a record of general civil proceedings where neither the assigned judge nor the parties requested that an official shorthand reporter record the proceedings. The association sought an order compelling the court to cease using such electronic recording in those Los Angeles County courtrooms which were not among the 35 courtrooms included in the then-existing "demonstration project" authorized by CODE OF CIVIL PROCEDURE SECTION 270¹. The association alleged that the use of electronic recording in lieu of official court reporters violated numerous statutory provisions. The petition was supported by a declaration and attached exhibits.

On March 19, 1993, the court filed a return to the petition by verified answer. The court asserted that (1) the policy was not in violation of any law because section 269 required the use of a certified shorthand reporter only when requested by the judge or a litigant; and (2) it had the inherent power to utilize electronic recording when necessary for the orderly and efficient operation of the Los Angeles County Superior Courts. The court claimed its decision to use electronic recording was in part motivated by the inadequate number of court reporters and in part by the cost-effectiveness and efficiency of electronic recording. The response was supported by a declaration and attached exhibits.

By a minute order dated March 9, 1993, the court requested that the Judicial Council of California appoint a judge from another county to preside in the matter. Ultimately, the case was transferred to the Kern County Superior Court.

The hearing on the petition commenced on August 5, 1993. No additional evidence was offered. The judge assigned to hear the case took the matter under submission on August 6, 1993, and on August 30, 1993, issued a written intended decision, which read:

"Code of Civil Procedure Section 269 does not provide for the use of electronic recording in lieu of a court reporter. Absent legislative authority, only an official reporter can transcribe Superior Court proceedings. However, there is nothing in the statutes to suggest that the required use of a court reporter cannot be waived and the parties stipulate to the use of electronic recording.

"Accordingly, the defendant should not be prohibited from using electronic recording where the parties do not request a court reporter and with the approval of the court, stipulate to the use of electronic recording.

"IT IS ORDERED that a peremptory Writ of Mandate shall issue, commanding defendants to cease and desist from using electronic recording as a means of recordation of judicial proceedings in the Superior Courts of Los Angeles County for proceedings in excess of the number of judicial departments for Los Angeles County authorized to use electronic recording by the Judicial Council pursuant to Code of Civil Procedure section 270 except where the parties and the court do not request a court reporter and the parties agree with the approval of the court to the use of electronic reporting."

A peremptory writ of mandate issued on September 23, 1993. The court has appealed and the association has cross-appealed.

DISCUSSION

Section 269, subdivision (a), provides in relevant part that:

"The official [court] reporter of a superior court ... shall, at the request of either party, or of the court in a civil action or proceeding, and on the order of the court, the district attorney, or the attorney for the defendant in a criminal action or proceeding, take down in shorthand all testimony, objections made, rulings of the court, exceptions taken, all arraignments, pleas, and sentences of defendants in criminal cases, arguments of the prosecuting attorney to the jury, and all statements and remarks made and oral instructions given by the judge."

Relying on section 269, the court asserts that because it is not obliged to maintain any record of general civil matters ² unless the court or a party requests an official reporter, it is free in the absence of such a request to elect to make an electronic record of these proceedings. The court therefore takes the position the trial court's order is erroneous to the extent it conditions the court's utilization of electronic recording upon the existence of a court approved agreement of the parties.

On its cross-appeal, the association contends the trial court's order is erroneous because it permits electronic reporting under any circumstance. According to the association, the provisions of a variety of related statutes demand the conclusion that "the Legislature has indicated its intent that only shorthand court reporters ... be used in Superior Court courtrooms unless otherwise expressly authorized by the Legislature." Thus, the association claims the use of electronic recording is absolutely prohibited in superior courts, irrespective of any stipulation of the parties, because the Legislature has not yet expressly sanctioned electronic recording as a means of making a record of any superior court proceedings. In other words, the association takes the position in this case that if a superior court decides for whatever reason or purpose to take a verbatim record of a general civil proceeding where no section 269 request has been made, the court must use an official certified shorthand reporter.

We agree with the court that there is nothing in section 269 which condemns the policy implemented by the court. The statute does not mandate that the official reporter report all the listed events. It requires instead that the official reporter "take down" civil proceedings only if requested by either party or the judge; the official reporter need not "take down" a record when no request is made. (See People v. Casey (1926) 79 Cal.App. 295, 303-305, 249 P. 525.) The decision by the parties not to insist upon the presence of an official reporter may have certain consequences if it later becomes necessary to prove what took place during the proceeding, such as when the unsuccessful party wishes to appeal ³ or move for a new trial, ⁴ but these are concerns which the parties should consider when deciding whether to take advantage of section 269.

The association maintains that section 269 does not stand alone and instead must be read and construed in light of a number of other statutes. One such statute, section 270, was added to the Code of Civil Procedure in 1986. As later amended, it created a statewide demonstration project whereby up to 75 superior courtrooms to be designated by the Judicial Council were authorized to use electronic recording instead of shorthand reporters. ⁵ In the courtrooms selected to operate under the demonstration project, audio and video recordings could be used in lieu of the verbatim record prepared by a court reporter except in criminal or juvenile proceedings. In the 1992 legislative session, an unsuccessful effort was undertaken to repeal and amend section 270 to eliminate the restrictions on the number of courtrooms authorized to participate in the project. ⁶ The demonstration project expired on January 1, 1994, during the pendency of this appeal.

It is the association's view that the enactment of the electronic recording demonstration project and the subsequent rejection of an attempt to expand its scope confirmed the intent of the Legislature that only certified shorthand reporters may be used in superior courts to make a verbatim record of a civil proceeding, except in those courts participating in the demonstration project. We discern no such implication in the statute or the failure to amend it as proposed. The effect of section 270 was simply to override section 269 insofar as the demonstration courtrooms were concerned. Thus, section 270 permitted the use of electronic recording devices in the demonstration courtrooms in place of the services of an official shorthand reporter in those instances where section 269 would otherwise have required that a verbatim record be taken by an official reporter, that is, where the judge or a party requested such a record. The proposed modification would simply have opened all superior courtrooms in the state to the experiment. As with section 269, nothing in section 270 or the proposed modification proscribed the use of electronic recording where no request for an official verbatim record was made.

Next, the association claims that because the record prepared by the official reporter is deemed by section 273 to constitute prima facie evidence of the contents of such record (see Wahlgren v. Coleco Industries, Inc. (1984) 151 Cal.App.3d 543, 546, 198 Cal.Rptr. 715), no other means of recording civil proceedings is permitted. Section 273 reads in full as follows:

"The report of the official reporter, or official reporter pro tempore, of any court, duly...