Jameson v. Desta

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

injuries under a variety of causes of action, including

On appeal, the Court of Appeal affirmed the trial court judgment. The Court of Appeal concluded that it need not determine whether the trial court properly dismissed the action under Code of Civil Procedure section 583.310 for failure to bring the case to trial within five years, because it concluded that in any event the judgment must be upheld on the basis of the trial court's grant of defendant's motion for nonsuit under Code of Civil Procedure section 581c. With regard to plaintiff's appeal of the trial court's ruling on the motion for nonsuit based on plaintiff's opening statement at trial, the Court of Appeal concluded that plaintiff is precluded from obtaining a reversal of the trial court's nonsuit ruling because the record on appeal does not contain a reporter's transcript. Although the Court of Appeal acknowledged that plaintiff had raised a number of legal

a civil action without paying the ordinary, statutorily required filing fees. ( Id. at pp. 293-296, 168 P. 135 .) In response to the suggestion that the Legislature had curtailed that power by enacting statutory provisions generally imposing court fees covering various court services, the court in Martin stated: "Quite aside from the question as to the power of the [L]egislature to do this thing, it is obvious that only the plainest declaration of legislative intent would be construed as even an effort to do this thing. We find no expressed intent. All of the statutes dealing with the payment and prepayment of fees ... are general in their nature and have to do with the orderly collection and disposition of the fees. ... Neither individually nor collectively are they even susceptible of the construction that the design of the [L]egislature was to deny to the courts the exercise of their most just and most necessary inherent power. They have applicability to all cases where the court has not, in the exercise of that power, remitted the payment of the fees on behalf of a poor suitor, and in every instance the court's order to this effect is sufficient warrant to every officer charged with the collection of fees to omit the performance of that duty in the specified case." ( Id. at p. 297, 168 P. 135 .)

Furthermore, the court in Martin rejected the contention that the trial court's refusal in that case to permit the indigent plaintiff to obtain a jury without the payment of jury fees could be defended on the ground that the trial court's action did not leave the plaintiff remediless "but left open to him the trial of his cause without a jury." ( Martin , supra , 176 Cal. at p. 297, 168 P. 135 .) The court responded: "Little need be said to show the inadequacy of such a response. Where the suitor was allowed to prosecute in forma pauperis , all the rights which were open to him upon the payment of fees were open to him by virtue of the order, and every officer was required to perform his duty without the payment of fees as fully as though the legal fees had been paid. ... Therefore we will not say that a suitor who ... cannot pay court fees must be content to go to trial without a jury. The law does not say this, and we will not read such a declaration into the law." ( Id. at pp. 297-298, 168 P. 135 .)

Following the general principles set forth in Martin , this court and the Courts of Appeal have afforded indigent civil litigants the ability to obtain meaningful access to the judicial process in a great variety of contexts. (See, e.g., Majors v. Superior Court (1919) 181 Cal. 270 , 184 P. 18 [right of civil indigent litigant to obtain jury on retrial without prepayment of jury fees]; Isrin v. Superior Court (1965) 63 Cal.2d 153 , 45 Cal.Rptr. 320 , 403 P.2d 728 ( Isrin ) [indigent civil plaintiff could not be denied in forma pauperis status because represented by counsel on contingent fee basis];

savings over several months]; Conover v. Hall (1974) 11 Cal.3d 842 , 114 Cal.Rptr. 642 , 523 P.2d 682 ( Conover ) [right of indigent civil litigant to obtain injunction without providing an injunction bond]; Payne v. Superior Court (1976) 17 Cal.3d 908 , 132 Cal.Rptr. 405 , 553 P.2d 565 ( Payne ) [right of indigent prisoner who is a defendant in a civil case to be provided meaningful access to judicial process, including representation by counsel if necessary]; Yarbrough v. Superior Court (1985) 39 Cal.3d 197 , 216 Cal.Rptr. 425 , 702 P.2d 583 [explaining trial court's responsibilities under Payne ]; County of Sutter v. Superior Court (1966) 244 Cal.App.2d 770 , 53 Cal.Rptr. 424 ( County of Sutter ) [right of indigent civil litigant to obtain waiver of bond requirement imposed by Gov. Code, § 947 ]; Bank of America v. Superior Court (1967) 255 Cal.App.2d 575 , 63 Cal.Rptr. 366 ( Bank of America ) [right of indigent out-of-state civil litigant to obtain waiver of security for costs required by Code Civ. Proc., § 1030 ]; Roberts v. Superior Court (1968) 264 Cal.App.2d 235 , 70 Cal.Rptr. 226 ( Roberts ) [right

Roberts , supra , 264 Cal.App.2d 235 , 70 Cal.Rptr. 226 ; Cohen , supra , 20 Cal.App.3d 236 , 97 Cal.Rptr. 550 ; Baltayan , supra , 90 Cal.App.4th 1427 , 110 Cal.Rptr.2d 72 ;

granting the fee waiver application, whereas former rule 3.62(4) provided that such court reporter attendance fees "may" be waived for proceedings held more than 60 days after the date of the order granting the fee waiver application. The rules themselves provided no explanation for this distinction.

In 2008, former section 68511.3 was repealed and replaced by a series of statutory provisions beginning with section 68630. (Stats. 2008, ch. 462, § 2, pp. 3309-3320.) The 2008 legislation explicitly and forcefully confirms this state's policy of providing equal access to justice to all persons regardless of their economic means.

Section 68630 provides in this regard: "The Legislature finds and declares all of

of the 2013 amendment of section 68086, the Legislature added a new subdivision (b), which provides in full: "The fee shall be waived for a person who has been granted a fee waiver under Section

Cal. Lawyer at p. 6; Golay & Haskins, The Necessity of Trial Transcripts in Appellate Proceedings (Sept. 2015) Los Angeles Lawyer at p. 10; Why You Need a

the action who can afford to pay for a private court reporter chooses to arrange and pay for a private court reporter. The issue before us in this case is the

reporter for the proceedings. As the court in Martin explained, "it is obvious that only the plainest declaration of legislative intent" should be construed as an effort by the Legislature to constrain the fundamental judicial policy of affording equal access to the judicial process to all persons without regard to their economic need. ( 176 Cal. at p. 297, 168 P. 135 .) Because neither section 68086, subdivision (d) nor rule 2.956 contains any reference to fee waiver recipients, and in light of the strong legislative policy in support of equal

in forma pauperis decisions. Instead, we conclude that the 2015 changes to rule 3.55(7) are properly read to indicate simply that the amended rule 3.55(7) should not, in itself , be understood as intended to place an obligation on a court to provide a court reporter for all fee waiver recipients.

As noted, rule 3.55(7), as amended in 2015, provides that the fees that must be waived upon granting an application for an initial fee waiver include "[r]eporter's fees for attendance at hearings and trials, if the reporter is provided by the court." By its terms, the rule says only that an initial fee waiver requires the waiver of reporter attendance fees "if the

The Judicial Council's rulemaking procedure permits the adoption of a new court rule or the amendment of an existing court rule without public comment in only limited circumstances. Under the governing rule, circulation for public comment is unnecessary only if "the proposal presents a nonsubstantive technical change or correction or a minor substantive change that is unlikely to create controversy ...." ( Cal. Rules of Court, rule 10.22(d)(2) ; see Siry Investments, L.P. v. Farkhondehpour (2015) 238 Cal.App.4th 725 , 731, 189 Cal.Rptr.3d 554 .) As plaintiff points out, if the 2015 amendment to rule 3.55(7) and the accompanying Advisory Committee comment were interpreted as intended to address the validity of the type of "no official court reporter" policy at issue in this case, the amendment could not properly be characterized as either a "nonsubstantive technical change" or "a minor substantive change that is unlikely to create controversy." ( Cal. Rules of Court, rule 10.22(d)(2).) Thus, those changes are appropriately construed to mean only that rule 3.55(7), as amended, should not itself be understood to mandate that a trial court provide an official court reporter for all fee waiver recipients, but not to speak to the broader issue of whether a general superior court policy, like the San Diego policy at issue here, is compatible with the general principles embodied in past California in forma pauperis decisions and the legislative policy embodied in Section 68630, subdivision (a).

court proceedings while preserving that opportunity for litigants who can afford to pay for a private court reporter.

In Solorzano , supra , 18 Cal.App.4th 603 , 22 Cal.Rptr.2d 401 , the question arose in the context of the procedure for resolving a discovery dispute. Ordinarily, discovery disputes

recipients, the policy at issue here places indigent civil litigants at a significant disadvantage with respect to the right of appeal compared to those litigants who can afford to pay for a private shorthand reporter. (Accord, e.g., Martin , supra , 176 Cal. at p. 298, 168 P. 135 ["we will not say that a suitor who can pay court fees shall have his trial by jury and the suitor who cannot pay court fees must be

City of Rohnert Park v. Superior Court (1983) 146 Cal.App.3d 420 , 426-430, 193 Cal.Rptr. 33 ; Leslie v. Roe (1974) 41 Cal.App.3d 104 , 107, 116 Cal.Rptr. 386 ; Rucker v. Superior Court (1930) 104 Cal.App. 683 , 685-685, 286 P. 732 ; cf. Smith v. Superior Court (1974) 41 Cal.App.3d 109 , 111-114, 115 Cal.Rptr. 677 [mother who was denied opportunity to withdraw consent to adoption statutorily entitled to reporter's transcript at county expense]; Crespo v. Superior Court (1974) 41 Cal.App.3d 115 , 118-120, 115 Cal.Rptr. 681 [in proceeding to terminate parental rights, parents statutorily entitled to reporter's transcript at county expense].) This court has not yet addressed the question under what circumstances an in forma pauperis civil litigant may be entitled to obtain a free reporter's transcript when such a transcript is essential to the resolution of the litigant's appeal on the merits. (See Ferguson , supra , 4 Cal.3d at p. 654, 94 Cal.Rptr. 398 , 484 P.2d 70 .) Even assuming that under the in forma pauperis doctrine or constitutional principles there is no general right to a free reporter's transcript in this type of case, we conclude that defendant's harmless error claim lacks merit for a number of reasons.

First, the California Legislature, by statute, has created a Transcript Reimbursement Fund to assist indigent civil litigants in paying for a reporter's transcript. (See

adequate settled or agreed statement to be utilized on appeal. (See, e.g., Western States Const. Co. v. Municipal Court (1951) 38 Cal.2d 146 , 149, 238 P.2d 562 ; Mooney v.Superior Court (2016) 245 Cal.App.4th 523 , 532, 199 Cal.Rptr.3d 647 ; In re Armstrong (1981) 126 Cal.App.3d 565 , 573, 178 Cal.Rptr. 902 ; Herick v. Municipal Court (1970) 8 Cal.App.3d 967 , 974, 87 Cal.Rptr. 646 ; Eisenberg v. Superior Court (1956) 142 Cal.App.2d 12 , 19-20, 297 P.2d 803 .) Because no reporter was present, there are no reporter's notes that could be consulted for that purpose.

Alternatively, defendant contends that any error with regard to the failure to provide a court reporter was harmless "because the record shows that ... plaintiff did not have an expert to testify at trial." Defendant maintains that plaintiff was required to present testimony through his own expert witness at trial in order to show the requisite causation between defendant's alleged malpractice and plaintiff's injuries. Plaintiff asserted on appeal, however, that because he could not afford to pay for his expert witness's appearance at trial, the trial court had erroneously precluded him from utilizing a variety of alternative means to establish causation, including relying upon his own expert's declaration and deposition, relying upon testimony by defendant's expert, and relying upon the res ipsa loquitur doctrine. The Court of Appeal rejected all of those contentions without reaching the merits, on the ground that they were not "cognizable in the absence of a reporter's transcript," and without a record of plaintiff's opening statement we cannot determine whether the trial court's grant of a nonsuit at this early stage of the trial was substantively proper.

Accordingly, we conclude that the absence of an official court reporter to prepare a verbatim record of the trial court proceedings cannot be found harmless.

For the reasons discussed above, the judgment of the Court of Appeal is reversed insofar as it affirmed the trial court judgment in favor of defendant on the basis of the trial court's grant of a nonsuit related to plaintiff's opening statement. As noted above ( ante , 234 Cal.Rptr.3d at p. 836, 420 P.3d at pp. 750-751), in view of its

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

n 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

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

arguments in support of his contention that the trial court had erred in granting a nonsuit on the basis of plaintiff's opening statement to the jury, the Court of Appeal found that "none of

Martin v. Superior Court (1917) 176 Cal. 289 , 168 P. 135 ( Martin ), held that under the common law California courts have the inherent power to permit an indigent person to litigate a civil case in forma pauperis and thereby to bring

of indigent civil litigant to obtain waiver of appeal bond required by Code Civ. Proc., § 985.5]; Cohen v. Board of Supervisors (1971) 20 Cal.App.3d 236 , 97 Cal.Rptr. 550 ( Cohen ) [right of indigent civil plaintiff who could not afford service by statutorily prescribed publication to utilize alternative reasonable method of service]; Solorzano v. Superior Court (1993) 18 Cal.App.4th 603 , 22 Cal.Rptr.2d 401 ( Solorzano ) [trial court abused its discretion in appointing a privately compensated discovery referee that indigent plaintiffs could not afford]; Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427 , 1436-1443, 110 Cal.Rptr.2d 72 (conc. opn. of Johnson, J.) ( Baltayan ) [right of indigent out-of-state civil plaintiff to exemption from security undertaking required by Code Civ. Proc. § 1030 ]; Roldan v. Callahan & Blaine (2013) 219 Cal.App.4th 87 , 161 Cal.Rptr.3d 493 ( Roldan ) [trial court may not consign indigent plaintiffs to an arbitration process they cannot afford to pursue].)

The general teaching of this long line of decisions is that California courts, pursuant to the principles of the in forma pauperis doctrine, have the inherent discretion to facilitate an indigent civil litigant's equal access to the judicial process even when the relevant statutory provisions that impose fees or other expenses do not themselves contain an exception for needy litigants.

Moreover, this line of cases also demonstrates that the exercise of judicial discretion in furtherance of facilitating equal access to justice is not limited to excusing the payment of fees that the government charges for government-provided services. Judicial authority to facilitate meaningful access to indigent litigants extends as well to excusing statutorily imposed expenses that are intended to protect third parties (e.g., injunction or damage bonds) and to devising alternative procedures (e.g., additional methods of service or meaningful access) so that indigent litigants are not, as a practical matter, denied their day in court. (See Conover , supra , 11 Cal.3d 842 , 114 Cal.Rptr. 642 , 523 P.2d 682 ; County of Sutter , supra , 244 Cal.App.2d 770 , 53 Cal.Rptr. 424 ; Bank of America , supra , 255 Cal.App.2d 575 , 63 Cal.Rptr. 366 ;

or the litigant's family to provide for the common necessaries of life." ( Ibid. ) Former section 68511.3 did not list the specific court fees that would be waived for in forma pauperis litigants, but provided that the Judicial Council should adopt uniform forms and rules in this regard.

The initial rules adopted by the Judicial Council pursuant to the statutory mandate of former section 68511.3 recognized that in forma pauperis litigants were entitled to the waiver, among other fees, of court reporter attendance fees. The initial rules, however, drew a distinction between the waiver of such fees for proceedings held within 60 days of the grant of fee waiver status and later proceedings. Former rule 3.61(7) provided that court reporter attendance fees "must" be waived for proceedings held within 60 days of the order

Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181 , 186-187, 129 Cal.Rptr.3d 421 , the court extensively catalogued the frequency with which appellate courts have declined to reach the

F. Effect of Section 68086, Subdivision (d) and Rule 2.956

In addressing this issue in its decision below, the Court of Appeal recognized that to be valid a local court policy, like a local court rule, must be consistent with the federal and state Constitutions, statutes, rules of court, and applicable case law. (See Cal. Const., art. VI, § 6, subd. (d); Elkins v. Superior Court (2007) 41 Cal.4th 1337 , 1351, 63 Cal.Rptr.3d 483 , 163 P.3d 160 ( Elkins ).)

In upholding the validity of the San Diego Superior Court policy, the Court of Appeal relied on the provisions of section 68086, subdivision (d) and rule 2.956. Section 68086, subdivision (d) directs the Judicial Council to adopt rules to ensure that parties are given adequate and timely notice of the availability of an official court reporter, and further provides "[t]hat if an official court reporter is not available, a party may arrange for the presence of

access to justice set forth in section 68630, subdivision (a), we conclude that neither provision supports the validity of the challenged local superior court policy as applied to a fee waiver recipient.

G. Rule 3.55(7) as Amended in 2015 and Accompanying Advisory Committee Comment

Although neither section 68086, subdivision (d) nor rule 2.956 contains any reference to the provision of court reporter services to fee waiver recipients, a different California Rule of Court that was not cited or relied upon by the Court of Appeal, rule 3.55(7) as amended in 2015, and a 2015 Advisory Committee comment to that rule, contain language that, at least on their face, appear potentially relevant to the validity of the challenged policy. In light of that potential relevance, we requested the parties to submit supplemental briefing addressing the effect, if any, that either the rule or comment has on the issue before us in this case. Upon consideration of the supplemental briefing, we conclude that the 2015 amendment of rule 3.55(7) and the accompanying Advisory Committee comment should not properly be understood as addressing the issue before us.

We begin by describing the background to the 2015 amendment to rule 3.55(7).

As noted above, in 2013 the Legislature amended the provisions of section 68086, relating to the collection of court reporters' appearance fees. (Stats. 2013, ch. 454, § 1.) As part of the 2013 statute, a new

that the court reporter fee "shall be waived for a person who has been granted [an initial] fee waiver." The commentators suggested that the existing court rules be amended to be consistent with section 68086(b).

The Advisory Committee agreed with the commentators' suggestion in this regard. In its February 3, 2015 report to the Judicial Council recommending the amendment of various rules of court, including rules 3.55(7) and 3.56, the Advisory Committee explained that the preexisting provision of rule 3.55(7) "which currently includes on the list of fees that must be waived only those court reporters fees for hearing[s] held within 60 days of the issuance of the fee waiver order" needed to be modified "to eliminate the time restriction in light of the new mandate in

reporter is provided by the court." ( Ibid. ) The language of the

are resolved by the trial court, and a fee waiver recipient (like other parties) need not pay any fee to obtain such resolution. Under section 639, subdivision (a)(5) of the Code of Civil Procedure, however, a trial court is permitted to appoint a referee to "hear and determine any and all discovery motions and disputes ... and to report findings and make a recommendation thereon," and section 645.1, subdivision (b) of the Code of Civil Procedure, in turn, permits the court to "order the parties to pay the fees of referees who are not employees or officers of the court ... in any manner determined by the court to be fair and reasonable, including an apportionment of the fees among the parties." At the time of Solorzano , neither section 639 nor section 645.1 contained any provision relating to in forma pauperis litigants or other litigants with limited financial resources.

In the underlying pretrial proceedings in Solorzano , the trial court had appointed a privately compensated discovery referee and ordered the plaintiffs and the defendant to share equally in the payment of the referee's $300 per hour fee, despite the plaintiffs' objection that they were indigent and could not afford to pay that fee. The plaintiffs sought writ review in the Court of Appeal, and the appellate court, relying in part upon the line of California in forma pauperis precedents summarized above (see Solorzano , supra , 18 Cal.App.4th at p. 613, fn. 6, 22 Cal.Rptr.2d 401 ), concluded that the trial court had erred in appointing a privately compensated referee.

Recognizing that a court does not have the authority to waive a privately compensated referee's fees, the Court of Appeal in Solorzano held that a trial court's discretion to appoint a privately compensated referee under sections 639 and 645.1 cannot be exercised in a manner that makes it unaffordable for an indigent party to litigate discovery disputes. The Solorzano court reasoned that because "no one can deny the indispensability of discovery in the prosecution of a lawsuit" ( Solorzano , supra , 18 Cal.App.4th at p. 614, 22 Cal.Rptr.2d 401 ), and because "indigent litigants proceeding in forma pauperis ... are by definition unable to pay court-ordered reference fees" ( id. at p. 615, 22 Cal.Rptr.2d 401 ).), the trial court had

The Court of Appeal in Roldan first discussed several cases that had considered whether a provision of an arbitration agreement that required a party to pay arbitration fees that the party could not afford was unconscionable and unenforceable. ( Roldan , supra , 219 Cal.App.4th at pp. 94-95, 161 Cal.Rptr.3d 493 [describing Gutierrez v. Autowest, Inc. (2004) 114 Cal.App.4th 77 , 7 Cal.Rptr.3d 267 and Parada v. Superior Court (2009) 176 Cal.App.4th 1554 , 98 Cal.Rptr.3d 743 ].) The appellate court in Roldan thereafter concluded that it need not reach the issue of whether the arbitration agreements at issue in that case were unenforceable, because the only issue before it was whether plaintiffs, who had been granted permission to proceed in forma pauperis, "could ... be excused from the obligation to pay fees associated with arbitration." ( Roldan at p. 95, 161 Cal.Rptr.3d 493 .) The court in Roldan , having taken note of "California's long-standing public policy of ensuring that all litigants have access to the justice system for resolution of their grievances, without regard to their financial means" ( id. at p. 94, 7 Cal.Rptr.3d 267 , citing Martin , supra , 176 Cal. 289 , 168 P. 135 ), concluded that the plaintiffs were entitled to relief.

The court in Roldan explained: "If, as plaintiffs contend, they lack the means to share the cost of the arbitration, to rule otherwise might effectively deprive them of access to any forum for resolution of

Bus. & Prof. Code, §§ 8030.1 - 8030.9.) Although defendant notes that the amount that is available to an individual pro se litigant from this fund in a given

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,

these contentions is cognizable in the absence of a reporter's transcript."

Plaintiff argued in the Court of Appeal that the absence of a reporter's transcript was not a proper ground for upholding the trial court judgment. Plaintiff maintained that in view of his entitlement to a fee waiver of official court reporter fees under section 68086(b), the trial court had erred in failing to make available to plaintiff an official court reporter for the trial proceedings, which inevitably precluded the preparation of a reporter's transcript. Plaintiff argued that the judgment should be reversed and the case remanded to the trial court for a trial at which an official court reporter would be made available to him upon request.

The Court of Appeal rejected plaintiff's argument, relying on a separate subdivision of section 68086-subdivision (d)(2) -providing that "if an official court reporter is not available, a party may arrange for the presence of a certified shorthand reporter to serve as an official pro tempore reporter," with the costs of the reporter recoverable as taxable costs by the prevailing party. The Court of Appeal relied as well on language in a court rule stating that it is a "party's responsibility to pay the reporter's fee" when an official court reporter is not provided by the court. (Rule 2.956(c).) In addition, the Court of Appeal noted that the local court policy that had been adopted by the San Diego Superior Court provided explicitly that "[o]fficial court reporters are not normally available in civil ... matters" and that "[p]arties, including those with fee waivers , are responsible for all fees and costs related to court reporter services" when an official court reporter is not provided by the court. (Italics added, boldface omitted.)

IS THE SAN DIEGO SUPERIOR COURT'S POLICY OF NOT MAKING AN OFFICIAL COURT REPORTER AVAILABLE IN MOST CIVIL TRIALS, AND PERMITTING A PRIVATE COURT REPORTER TO RECORD THE PROCEEDINGS ONLY IF A PARTY PAYS FOR SUCH A REPORTER, VALID AS APPLIED TO A LITIGANT WHO IS ENTITLED TO A FEE WAIVER OF OFFICIAL COURT REPORTER FEES ?

A. Background of California Decisions Regarding In Forma Pauperis Litigants

More than a hundred years ago, this court, in the seminal decision of

Ferguson v. Keays (1971) 4 Cal.3d 649 , 94 Cal.Rptr. 398 , 484 P.2d 70 ( Ferguson ) [right of indigent civil litigant to file appeal without payment of appeal fees]; Earls v. Superior Court (1971) 6 Cal.3d 109 , 98 Cal.Rptr. 302 , 490 P.2d 814 ( Earls ) [indigent civil litigant may not be denied in forma pauperis status on the ground that litigant may be able to afford fees through

Payne , supra , 17 Cal.3d 908 , 132 Cal.Rptr. 405 , 553 P.2d 565 .)

Finally, these cases demonstrate that the policy of affording indigent litigants meaningful access to the judicial process establishes restrictions not only upon potential barriers created by legislatively imposed fees or procedures, but also upon court -devised policies or practices that have the effect of denying to qualified indigent litigants the equal access to justice that the in forma pauperis doctrine was designed to provide. (See, e.g., Isrin , supra , 63 Cal.2d 153 , 45 Cal.Rptr. 320 , 403 P.2d 728 ; Earls , supra , 6 Cal.3d 109 , 98 Cal.Rptr. 302 , 490 P.2d 814 ; Solorzano , supra , 18 Cal.App.4th 603 , 22 Cal.Rptr.2d 401 ; Roldan , supra , 219 Cal.App.4th 87 , 161 Cal.Rptr.3d 493 .)

B. Legislative Enactments Relating to In Forma Pauperis Status and Initial Court Rules Regarding Official Court Reporter Fees

Although the authority of California courts to ameliorate financial barriers to access to justice faced by indigent litigants pursuant to the in forma pauperis doctrine was first recognized in judicial decisions, in 1979 the Legislature enacted a statute confirming this judicial authority and directing the Judicial Council to formulate uniform forms and rules of court to effectuate this authority. (Stats. 1979, ch. 850, § 1, pp. 2952-2953 [enacting former § 68511.3].)

Former section 68511.3 provided broadly that the rules adopted by the Judicial Council should permit "proceeding in forma pauperis at every stage of the proceedings at both the appellate and trial levels of the court system." The statute identified certain categories of litigants (e.g., recipients of specified welfare benefits) who were to be permitted to proceed in forma pauperis, and further directed that the rules to be adopted should recognize a court's authority to grant permission to proceed in forma pauperis "in any other instance in which, in its discretion, such permission is appropriate because the litigant is unable to proceed without using money which is necessary for the use of the litigant

merits of a claim raised on appeal because of the absence of a reporter's transcript. The court in Foust stated: "In numerous situations, appellate courts have refused to reach the merits of an appellant's claims because no reporter's transcript of a pertinent proceeding or a suitable substitute was provided. ( Maria P. v. Riles (1987) 43 Cal.3d 1281 , 1295-1296, 240 Cal.Rptr. 872 , 743 P.2d 932 [attorney fee motion hearing]; Ballard v. Uribe (1986) 41 Cal.3d 564 , 574-575, 224 Cal.Rptr. 664 , 715 P.2d 624 (lead opn. of Grodin, J.) [new trial motion hearing]; In re Kathy P. (1979) 25 Cal.3d 91 , 102, 157 Cal.Rptr. 874 , 599 P.2d 65 [hearing to determine whether counsel was waived and the minor consented to informal adjudication]; Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440 , 447, 94 Cal.Rptr.2d 143 [trial transcript when attorney fees sought]; Estate of Fain (1999) 75 Cal.App.4th 973 , 992, 89 Cal.Rptr.2d 618 [surcharge hearing]; Hodges v. Mark (1996) 49 Cal.App.4th 651 , 657, 56 Cal.Rptr.2d 700 [nonsuit motion where trial transcript not provided];

in California generally made official court reporters routinely available for civil trials. As a result of budget reductions, however, many, but not all, of the superior courts throughout the state have adopted new policies limiting the availability of official court reporters to only a narrow category of civil cases, which generally do not include ordinary contract, personal injury, or professional negligence cases. (See 2017 Futures Com. Rep., supra , pp. 239-240; Impellizzeri, BYO Court Reporter (Sept. 2013)

validity of the San Diego policy as applied to a fee waiver recipient.

E. The Parties' Contentions

Plaintiff, and the numerous amici curiae that have filed briefs on his behalf, maintain that the San Diego Superior Court policy is inconsistent with the prior California in forma pauperis decisions indicating that California courts should properly exercise the discretion they possess to ensure that litigants in California judicial proceedings are not denied equal access to justice, at trial or on appeal, on the basis of their limited financial resources. Defendant, by contrast, contends that the San Diego policy is valid, maintaining that the Court of Appeal properly found the policy compatible with the applicable statutes and rules of court. Defendant asserts that no case or statute requires a court to make an official court reporter available in every civil case in which a fee waiver recipient requests the services of an official court reporter, and that the fee waiver provision of section 68086(b) applies only when an official court reporter is provided by the court and when payment of a court reporter fee would otherwise be required. Further, defendant maintains that the superior court policy is a reasonable response to the significant reduction in its budget.

For the following reasons, we agree with plaintiff's position.

trial in a civil case, a party may arrange for the presence of a certified shorthand reporter to serve as an official pro tempore reporter. It is that party's responsibility to pay the reporter's fee for attendance at the proceedings, but the expense may be recoverable as part of the costs, as provided by law."

Although both section 68086, subdivision (d) and rule 2.956 recognize that an official court reporter may not be available in all circumstances, neither section 68086, subdivision (d) nor rule 2.956 purports to address the subject of the proper treatment of fee waiver recipients. Accordingly, the question arises whether either section 68086, subdivision (d) or rule 2.956, was intended and should properly be interpreted to authorize a trial court to adopt a policy that withholds the services of an official court reporter when one of the parties is a fee waiver recipient and when the practical effect of not providing an official court reporter is to deny the fee waiver recipient the opportunity to have the proceedings reported when a party who can pay for a private reporter is afforded that opportunity. The Court of Appeal did not directly address this question.

In light of the legal analysis set forth in the seminal decision in Martin , supra , 176 Cal. 289 , 168 P. 135 , we conclude that neither section 68086, subdivision (d) nor rule 2.956 should properly be interpreted to authorize a court to withhold court reporter services from an in forma pauperis litigant when a litigant who can afford to pay for a private court reporter is permitted to obtain such services and have the private reporter serve as an official pro tempore court

subdivision (b) was added to 68086 to provide that a court reporter's appearance fee "shall be waived for a person who has been granted [an initial fee waiver]."

In 2014, on the recommendation of the Civil and Small Claims Advisory Committee of the Judicial Council (Advisory Committee), the Judicial Council circulated for comment a proposal to amend a variety of court rules and forms pertaining to fee waivers. (See Judicial Council of Cal., Invitation to Comment, SPR14-05 (2014) Fee Waivers: Payments Over Time and Fees Included in Initial Fee Waiver.) The proposed amendments upon which comments were solicited were unrelated to the provisions of section 68086(b) that had been enacted in 2013. In response to the invitation to comment, however, a number

Government Code section 68086(b) that all court reporter's fees otherwise charged by a court are waived for a party who has

rule does not purport to address whether, or under what circumstances, a trial court may be required, by judicial precedent or otherwise, to provide an official court reporter to prepare a verbatim record of the court proceedings.

Similarly, the Advisory Committee comment added to rule 3.55 in 2015 states simply that "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 provided for all fee 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., Cal Rules of Court, rule 3.55.) This comment can reasonably be interpreted to mean simply that the amended version of rule 3.55(7) is not itself intended to require that a court reporter be provided for all fee waiver recipients. The comment does not purport to address what the general principles embodied in prior California in forma pauperis judicial decisions may require with respect to fee waiver recipients.

As plaintiff suggests, there are good reasons for not interpreting the two changes proposed by the Advisory Committee and adopted by the Judicial Council more broadly as addressing the issue posed in this case. As explained above, the 2015 amendments to rule 3.55(7) arose as a result of public comments received by the Advisory Committee in connection with an invitation for comment regarding proposed amendments to other rules that were entirely unrelated to the newly enacted section 86086(b). The comments relating to rule 3.55(7) that brought to the Advisory Committee's attention the existing rule's inconsistency with section 86086(b) did not propose the additional phrase at the end of rule 3.55(7) or the Advisory Committee comment that were subsequently proposed by the Advisory Committee in its report to the Judicial Council, nor did those comments discuss these subsequent additions. No further public comment was solicited by the Advisory Committee or the Judicial Council with regard to these two proposed changes before the changes were adopted by the Judicial Council.

Accordingly, we conclude that rule 3.55(7) as amended in 2015 and the accompanying Advisory Committee comment should not be interpreted as addressing the issue before us.

H. Exercise of Superior Court's Discretion

In addition to relying upon section 68086, subdivision (d) and rule 2.956, defendant argues strenuously that the superior court, in adopting the policy at issue here, acted reasonably in the exercise of its discretionary quasi-legislative authority in light of its dire budgetary situation. We recognize and acknowledge the good faith of the superior

support for our courts" does not require "depriv[ing] indigents of access to the appellate courts"]; see also § 68630, subd. (b) ["The Legislature finds and declares ... [¶] ... [¶] ... [t]hat fiscal responsibility should be tempered with concern for litigants' rights to access the justice system"].) The question before us is whether the superior court in adopting the challenged court reporter policy properly exercised the discretion it possesses in a manner consistent with the principles underlying California's in forma pauperis doctrine and the legislative policy of equal access to the courts set forth in section 68630, subdivision (a).

In defending the absence of an exception for in forma pauperis litigants, defendant relies on the lack of any prior decision that supports the necessity of such an exception for official court reporters. Although there is no prior case directly on point with regard to official court reporters, several prior cases that have arisen in other contexts support the conclusion that the San Diego Superior Court erred in adopting a policy that effectively denies in forma pauperis litigants the ability to obtain a verbatim record of the trial

abused its discretion in appointing a privately compensated discovery referee in that case. And speaking more generally, the court in Solorzano observed that "[r]eference to a discovery referee imposes a substantial economic burden on [a nonaffluent] party. It is therefore incumbent on trial courts utilizing the relief afforded by [ sections 639 and 645.1 ] to look beyond the benefit realized by the judicial system and consider the economic impact the order of reference will have on the parties." ( Ibid. ) (See also

their claims against [the

content to go to trial without a jury"]; Preston v. Municipal Court (1961) 188 Cal.App.2d 76 , 87-88, 10 Cal.Rptr. 301 ["The right of appeal cannot lie in that discriminatory morass in which it is accessible to the rich and denied to the poor. Whatever hardship poverty may cause in the society generally, the judicial process must make itself available to the indigent"].)

Accordingly, we conclude that in order to satisfy the principles underlying California's in forma pauperis doctrine and embodied in the legislative public policy set forth in section 68630, subdivision (a), when a superior court adopts a general policy under which official court reporters are not made available in civil cases but parties who can afford to pay for a private court reporter are permitted to do so, the superior court must include in its policy an exception for fee waiver recipients that assures such litigants the availability of a verbatim record of the trial court proceedings, which under current statutes would require the presence of an official court reporter. Because the challenged San Diego Superior Court policy at issue here lacks such an exception, we conclude the policy is invalid as applied to fee waiver recipients. Thus, the trial court erred in failing to make an official court reporter available to plaintiff upon request.

D

efendant further argues that even if the superior court erred in failing to make an official court reporter available to plaintiff in this case, the error was harmless and the Court of Appeal judgment should be affirmed.

Defendant contends initially that even if an official court reporter had been present to report the trial court proceedings, because plaintiff could not afford to pay for a reporter's transcript for use on appeal the Court of Appeal decision would not have been different even if an official court reporter had been made available at trial.

Defendant points out that a number of California appellate court decisions have held that an in forma pauperis litigant is not entitled to obtain a free reporter's transcript in an ordinary civil action. (See, e.g.,

conclusion regarding the trial court's grant of a nonsuit, the Court of Appeal did not address the validity of the trial court's alternative basis for entering judgment in favor of defendant, namely that plaintiff's action was barred under Code of Civil Procedure section 583.310 for failing to bring the matter to trial within five