Roberts v. Superior Court of Stanislaus County

• Decision Date: 22 July 1968
• Citation: 70 Cal.Rptr. 226,264 Cal.App.2d 235
• Court: California Court of Appeals Court of Appeals
• Parties: Boyd L. ROBERTS et al., Petitioner and Appellant, v. The SUPERIOR COURT OF STANISLAUS COUNTY, Respondent; CREDIT BUREAU SERVICES, Real Party in Interest. Civ. 974.

Page 226

70 Cal.Rptr. 226

264 Cal.App.2d 235

Boyd L. ROBERTS et al., Petitioner and Appellant, v. The SUPERIOR COURT OF STANISLAUS COUNTY, Respondent CREDIT BUREAU SERVICES, Real Party in Interest.

Civ. 974.

Court of Appeal, Fifth District, California.

July 22, 1968.

Sheldon L. Greene, Clark F. Ide and John P. Kelley, Modesto, for petitioners.

No appearance for respondent.

Moody & Nelson, Gilbert Moody and Oliver K. K. Nelson, Turlock, real party in interest.

CONLEY, Presiding Justice.

This proceeding was instituted by Boyd L. Roberts in an attempt to secure a waiver of the necessity of filing an undertaking on appeal in his effort to perfect an appeal from the Turlock Justice Court to the Superior Court of Stanislaus County when proceeding In forma pauperis. The petition for a writ of mandate shows that on April 18, 1966, Credit Bureau Services secured a default judgment against petitioner for $484.98, based on a loan agreement between Town & Country Finance and petitioner's son, in which the petitioner was a co-signer. On November 26, 1967, Credit Bureau Services levied on petitioner's 1963 Chevrolet pickup truck; on November 29, 1967, pursuant to section 690.4 of the Code of Civil Procedure, petitioner filed a claim of exemption on the alleged ground that the pickup truck was used by him as a tool or implement of a mechanic or artisan necessary to carry on his trade. The claim of exemption being opposed, a trial of the claim was heard, pursuant to section 690.26 of the Code of Civil Procedure. On January 2, 1968, the Turlock Justice Court entered judgment denying petitioner's claim of exemption, and the constable of the Turlock Justice Court was ordered to proceed with the levy on the 1963 pickup truck and to sell said truck.

On January 11, 1968, an amended notice of appeal on issues of law and fact was filed with the clerk of the justice court, pursuant to rule 152(b) of the California Rules of Court. On January 15, 1968, pursuant to a stipulation between counsel of the contending parties, petitioner moved for an order of the justice court waiving the undertaking on appeal required by section 985.5 of the Code of Civil Procedure. In support of the motion, petitioner asked leave to proceed In forma pauperis and supported said motion by his own declaration, that of his counsel, and two affidavits of bonding company representatives that petitioner was indigent and could not, therefore, obtain an undertaking on appeal. The petitioner below also noted that an enforced failure to waive the filing of the undertaking on the ground of indigency would be a denial of due process and of equal protection of the law under the United States Constitution and the Constitution of the State of California.

The justice court judge stated that he did not know whether he had authority to waive the undertaking, but he did not want to prejudice petitioner's right to a trial de novo in the superior court and that he would, therefore, forward the file to the upper court for filing. This was done, and the superior court once actually set the case for trial on April 22, 1968, at 10 a.m. However, on February 6, 1968, a notice of motion to dismiss the appeal was filed by the opposing side and on February 16, the notice of motion to vacate the original default judgment of April 18, 1966, was made by petitioner with the stipulation that it could be heard on February 21, at the same time as the motion to dismiss the appeal.

On February 21, 1968, the motion to dismiss the appeal and the motion to vacate the default and set aside the judgment were heard on the law and motion calendar of the superior court; petitioner noted that dismissal of his appeal and denial of his right to a trial de novo of his claim of exemption would violate his constitutional rights as it would deny him due process and equal protection of the law. On April 3, 1968, an amended decision was rendered by the superior court granting Credit Bureau Services' motion to dismiss the appeal on the ground of the failure to file an undertaking in the sum of at least $100. The superior court thus refused to entertain petitioner's application to proceed In forma pauperis.

The sole ground for dismissal of the action was that the appeal bond was not filed and that such failure could not be waived. The court states in part in its order:

'1) That the defendants' motion to file an appeal without bond herein is denied upon the ground that under and by virtue of the provisions of Section 978 of the Code of Civil Procedure relating to appeals from justice courts to Superior Courts, any attempted appeal is in fact ineffectual for any purpose unless and until there has been filed by the proposed appellant an undertaking in the sum of not less than $100.00 executed by two sureties providing therein for the payment of the costs on the appeal.

'2) That the proposed appellant in this matter having failed to file said bond, said attempted appeal is for all purposes ineffectual.'

This was an inferential holding that it was legally impossible for a court in California to waive the filing of the undertaking on appeal. If, on the other hand, the undertaking may be waived under the law, the holding of the court below is wrong. It is our decision that this undertaking may be waived in a proper case under applicable principles, and that the showing of petitioner was such that it was the duty of the superior court to waive the undertaking.

In the leading case of Martin v. Superior Court, 176 Cal. 289, 168 P. 135, the Supreme Court rule, without the possibility of misunderstanding, that the courts of this state have the right to remit legal fees for those who are not able to pay them and who plead poverty. The opinion in that case points out that this state adopted the common law in those matters not otherwise controlled by legislative enactment, and that the courts under the common law rule had the inherent power to order that fees provided by law be remitted. In the opinion, at page 293, 168 P. at page 136, it is said:

'It would be strange, indeed, if our Legislature should have designed to limit the applicability of the Code section to the ancient and frequently most barbarous rules and customs of the common law, and in so doing refuse to take into account the mitigation of their harshness and the broadening of the rules themselves which followed the successive enactments of the English statutes. To the contrary, we hold that our Legislature in its use of the phrase 'common law' had in contemplation the whole body of that jurisprudence as it stood, influenced by statute, at the time when the Code section was adopted. And more than that, that it embraced also in its contemplation the great handmaiden and coadjutor of the common law, equity. * * * Manifestly no harm can be done by this construction of the language of the Code, since that language itself limits the applicability of the common-law system to such of its rules and principles as are not repugnant to nor inconsistent with the spirit of our own law.'

That the fees required by code section or statute for the carrying on of litigation in our courts generally may be waived when a litigant sues or defends In forma pauperis is the applicable rule in California. (Majors v. Superior Court, 181 Cal. 270, 184 P. 18, 6 A.L.R. 1274; Hammond v. Justice's Court, 37 Cal.App. 506, 174 P. 69; Willis v. Superior Court, 130 Cal.App. 766, 20 P.2d 994; 20 Am.Jur.2d, Costs, § 47, pp. 37--38.) (See also: re proof In forma pauperis, Adkins v. E. I. Du Pont de Nemours & Co., Inc., 355 U.S. 331, 338--339, 69 S.Ct. 85, 93 L.Ed. 43, 11 A.L.R.2d 599.)

The question here, however, is whether the same rule applies to those features of litigation, which require protection to opposing litigants in the event they are successful and are hence entitled to recover their costs. Certain it is that the rule does not serve to permit those who act In forma pauperis to secure from the opposite side concessions which would require the opposing party, or some other private person such as the official court reporter, to pay out money or its equivalent for the production of transcripts. (Rucker v. Superior Court, 104 Cal.App. 683, 286 P. 732; Kaufman v. Brown, 106 Cal.App.2d 686, 235 P.2d 632), and two early cases even assumed that the filing of an undertaking is a requirement to perfect an appeal from a justice court. (Coker v....