Jameson v. Desta, 070518 CASC, S230899

Docket Nº:S230899
Opinion Judge:CANTIL-SAKAUYE, C. JUDGE
Party Name:BARRY S. JAMESON, Plaintiff and Appellant, v. TADDESE DESTA, Defendant and Respondent.
Attorney:Barry S. Jameson, in pro. per.; Kirkland & Ellis, Michael J. Shipley, Sierra Elizabeth and Joseph M. Sanderson for Plaintiff and Appellant. Jon B. Eisenberg, Margaret A. Grignon, Robin Meadow, Robert S. Gerstein, Dennis A. Fischer, Robin B. Johansen, Laurie J. Hepler, Michael G. Colantuono, Orly ...
Judge Panel:WE CONCUR: CHIN, J., CORRIGAN, J., LIU, J., CUÉLLAR, J., KRUGER, J., DONDERO, J.
Case Date:July 05, 2018
Court:Supreme Court of California
 
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BARRY S. JAMESON, Plaintiff and Appellant,

v.

TADDESE DESTA, Defendant and Respondent.

S230899

Supreme Court of California

July 5, 2018

Superior Court San Diego County No. GIS9465, Ct.App. 4/1 D066793 Joel M. Pressman Judge

Barry S. Jameson, in pro. per.; Kirkland & Ellis, Michael J. Shipley, Sierra Elizabeth and Joseph M. Sanderson for Plaintiff and Appellant.

Jon B. Eisenberg, Margaret A. Grignon, Robin Meadow, Robert S. Gerstein, Dennis A. Fischer, Robin B. Johansen, Laurie J. Hepler, Michael G. Colantuono, Orly Degani; Caldwell Leslie & Proctor, Albert Giang; Gibson, Dunn & Crutcher, Michele L. Maryott, Blaine H. Evanson and Carolyn S. Small for 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. Louis S. Rulli and Western Center on Law and Poverty as Amici Curiae on behalf of Plaintiff and Appellant.

Erin C. Smith, Nancy K. D. Lemon; Morrison & Foerster, Penelope A. Preovolos and Anna T. Ferrari for Family Violence Appellate Project and 30 organizations and individuals representing survivors of family violence as Amici Curiae on behalf of Plaintiff and Appellant.

Paulette Brown; Haynes and Boone, Mary-Christine Sungaila and Martin M. Ellison for American Bar Association as Amicus Curiae on behalf of Plaintiff and Appellant.

Michael J. Levy and Catherine Blakemore for Amicus Curiae Committee of the California Commission on Access to Justice as Amicus Curiae on behalf of Plaintiff and Appellant.

Cole Pedroza, Kenneth R. Pedroza, Joshua C. Traver, Cassidy C. Davenport; La Follette, Johnson, DeHaas, Fesler & Ames, James J. Wallace II, Russell M. Mortyn and David J. Ozeran for Defendant and Respondent.

Frederick R. Bennett for Superior Court, County of Los Angeles as Amicus Curiae.

Jeffrey Wertheimer for Superior Court, County of Orange as Amicus Curiae.

CANTIL-SAKAUYE, C. JUDGE

Under California's in forma pauperis doctrine and Government Code section 68086, subdivision (b), 1 a person who because of limited financial resources qualifies for a waiver of initial court filing fees is entitled, as well, to a waiver of fees for the attendance of an official court reporter at a hearing or trial. In this case, however, although plaintiff Barry Jameson (hereafter plaintiff) was entitled to a waiver of official court reporter attendance fees, plaintiff was not provided the opportunity to have a court reporter at his civil trial because the San Diego Superior Court, in response to a significant reduction of its judicial budget, had adopted a policy under which the court did not make official court reporters available at most civil trials even for persons who qualified for a fee waiver. Instead, the applicable superior court policy provided that a court reporter would be present in civil actions to record the trial proceedings only if a private court reporter was hired and paid for by a party or the parties to the litigation.2

In the present case, plaintiff could not afford to pay for a private court reporter and defendant Taddese Desta chose not to hire or pay for a private court reporter. The trial court entered a nonsuit against the plaintiff after plaintiff's opening statement to the jury and plaintiff appealed from the judgment. Because no court reporter was present at plaintiff's trial, no reporter's transcript of the trial was available or prepared. As a consequence, the Court of Appeal rejected plaintiff's appeal without reaching the merits of plaintiff's legal challenge to the nonsuit on the ground that plaintiff's legal contentions could not be pursued on appeal in the absence of a reporter's transcript.

We granted plaintiff's petition for review to determine the validity of the superior court's policy of not providing official court reporters in most civil trials even for litigants who are entitled to a waiver of official court reporter fees and permitting a court reporter to record court proceedings only if a private court reporter is obtained and paid for by one or more parties to the litigation.

For the reasons discussed below, we conclude that, as applied to in forma pauperis litigants who are entitled to a waiver of official court reporter fees, 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 is inconsistent with the general teaching of prior California in forma pauperis judicial decisions and the public policy of facilitating equal access to the courts embodied in section 68630, subdivision (a). By precluding an indigent litigant from obtaining the attendance of an official court reporter (to which the litigant would be entitled without payment of a fee), while at the same time preserving the right of financially able litigants to obtain an officially recognized pro tempore court reporter, the challenged court policy creates the type of restriction of meaningful access to the civil judicial process that the relevant California in forma pauperis precedents and legislative policy render impermissible. Accordingly, we conclude that the court policy in question 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.

I. FACTS AND PROCEEDINGS BELOW

In April 2002, plaintiff filed this lawsuit against Dr. Taddese Desta (hereafter defendant), a doctor employed by the California Department of Corrections (now the Department of Corrections and Rehabilitation) who had treated plaintiff while plaintiff was incarcerated at the Richard J. Donovan Correctional Facility in San Diego County. The complaint alleged that during his incarceration plaintiff was diagnosed with hepatitis and that in treating plaintiff for that disease defendant negligently prescribed, and plaintiff took, the drug interferon for a 12-month period, a course of medication that allegedly caused plaintiff to suffer a variety of physical injuries, including irreversible damage to his eyesight. The complaint alleged that defendant was liable for plaintiff's injuries under a variety of causes of action, including causes of action for professional negligence and breach of fiduciary duty (failure to obtain plaintiff's informed consent).

Over the ensuing decade, on three separate occasions, the trial court entered judgment in favor of defendant and dismissed plaintiff's action prior to trial. Each time the Court of Appeal reversed the trial court judgment and remanded the matter to the trial court for further proceedings. (See Jameson v. Desta (July 2, 2007, D047824) opn. mod. July 26, 2007 [nonpub. opn.] (Jameson I);

Jameson v. Desta (2009) 179 Cal.App.4th 672 (Jameson II); Jameson v. Desta (2013) 215 Cal.App.4th 1144 (Jameson

III).)3

After the third remand from the Court of Appeal, the trial court eventually set the case for trial. Plaintiff is indigent, is representing himself, and qualified for an initial fee waiver under section 68631. Section 68086 - the general provision governing official court reporter attendance fees - provides in subdivision (b) that “[t]he fee shall be waived for a person who has been granted a fee waiver under Section 68631.” It is undisputed that if an official court reporter had been made available for the trial in this matter, plaintiff would have been entitled to the court reporter's attendance upon request without payment of any fee.

According to the minute order of a hearing held 10 days before the jury trial commenced, however, the trial court orally informed the parties at that hearing that “the Court no longer provides a court reporter for civil trials, and that parties have to provide their own reporters for trial.” There is no indication in the minute order that the trial court, although presumably aware of plaintiff's fee waiver status, inquired whether plaintiff wanted to have the proceedings recorded or could afford to pay for a private certified shorthand reporter to serve as an official pro tempore reporter as authorized by the governing statute and rule. (§ 68086, subd. (d)(2); Cal. Rules of Court, rule 2.956(c).)4

Neither party provided a private certified shorthand reporter and the trial proceeded on April 28, 2014 without a court reporter. Thus, no verbatim record of the trial was made. According to a subsequent order filed by the court, plaintiff...

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