Smith v. Ogbuehi

established in published appellate decisions. ( Apollo v. Gyaami (2008) 167 Cal.App.4th 1468 , 1485-1487, 85 Cal.Rptr.3d 127 ( Apollo ); Wantuch v. Davis (1995) 32 Cal.App.4th 786 , 792, 39 Cal.Rptr.2d 47 ( Wantuch ).) First, the trial court determines whether the prisoner is indigent. Second, the court determines whether the lawsuit involves a bona fide threat to the inmate's personal or property interests. If both conditions are satisfied, the trial court must consider the measures available to protect appellant's right of meaningful access to the courts, including the appointment of counsel. Where the indigent prisoner's civil action is bona fide and his or her access to the court is being impeded, a trial court must provide a remedy; it may not choose to do nothing.

Here, the trial court's denial of the motion to appoint counsel was not based on an informed exercise of its discretion. Consequently, the appropriate remedy is to remand the matter to the trial court for an exercise of its discretionary authority within the framework of the three-step inquiry.

prioritized treatment of the

complex and would require medical expert testimony; (3) Smith had little or no access to drug manufacturers and their data, specialists of the spine, or the Food and Drug Administration; and (4) Smith had limited knowledge of the law. Smith's memorandum of points and authorities cited federal cases and discussed factors addressed in those opinions-namely, factual complexity, plaintiff's ability to investigate, plaintiff's ability to present his claim, legal complexity, and the merits of the case.

In May 2015, the trial court issued an order (1) stating it had received Smith's ex parte motion for appointment of counsel, (2) mentioning the right to appointed counsel in criminal cases and lack of authority to appoint counsel for a plaintiff in a civil proceeding, and (3) denying the request. The court's rationale is described in part I.B.2., post.

Motion for Summary Judgment

In December 2016, defendants filed a motion for summary judgment asserting "the undisputed material facts establish that Nurse Practitioner Ogbuehi and Dr. Baniga's provision of medical services to [Smith] did not fall below the standard of care." The separate statement of undisputed material facts was organized into 10 sections that addressed plaintiff's (1) shoulder condition, (2) back condition, (3) knee condition, (4) morphine prescription, (5) gabapentin prescription, (6) oxcarbazepine prescription, (7) amitriptyline claims, (8) request for a new provider, (9) causal link, and (10) the lawsuit. The motion was supported by declarations of a medical expert and a deputy attorney general. Ogbuehi and Dr. Baniga did not submit declarations to support their motion for summary judgment.

experience, training, and knowledge. Dr. Duenas's declaration set forth her "professional opinion that Ogbuehi and Dr. Baniga's medical practices met applicable standards of care. Further, it is my professional opinion, to a degree of medical probability, that no action or inaction by Nurse Practitioner Ogbuehi or Dr. Baniga caused plaintiffs claimed harm." These opinions were supported by the details set forth and analyzed in paragraphs 14 through 93, inclusive, of her declaration, which covered approximately 25 pages.

Here, we set forth some of Dr. Duenas's views about the treatment of Smith's left shoulder and Smith's allegations relating to that treatment. Dr. Duenas states Smith is wrong in claiming that the delays by Dr. Baniga or Ogbuehi delayed the surgery and caused his supraspinatus tendon tear to be unrepairable. Dr. Duenas states: "The date upon which the tendon could have been accessible in surgery before retraction is not known." She notes Dr. Y. N. Paik of the Pacific Orthopedic Medical Group did not call for immediate

paragraphs 41, 45, 47, 48, 50, 51, 52, 54 and 56 describe nine meetings between Smith with Ogbuehi between June 2012 and December 2013. Those paragraphs assert the medical records reflect Ogbuehi evaluated

for lack of proper service and the other prevailed on a motion for summary judgment. ( Ibid. ) On appeal, the prisoner challenged the dismissals and the entry of summary judgment and, as an initial matter, argued he had been denied his right of meaningful access to the courts based on his status as an indigent, unrepresented prisoner litigant. ( Id. at p. 1482, 85 Cal.Rptr.3d 127 .) The First District regarded the prisoner's access to the courts as the crucial issue in the case, reversed the judgment, and remanded for further proceedings on the question of his right of meaningful access. ( Id. at pp. 1482, 1488, 85 Cal.Rptr.3d 127 .)

In Apollo , the First District's analysis of the potential deprivation of meaningful access to the courts followed the reasoning set forth in Wantuch. The court stated it "must determine whether, considering appellant's status as an unrepresented prisoner-litigant, the trial court exercised its discretion in a manner protective of his statutory right to meaningful access to the courts to prosecute bona fide civil claims." ( Apollo , supra , 167 Cal.App.4th at p. 1484, 85 Cal.Rptr.3d 127 .) The court reviewed the record presented and determined the trial court gave little, if any, consideration to the appellant's right of meaningful access to the courts. ( Id. at p. 1485, 85 Cal.Rptr.3d 127 .) Consequently, the First District remanded for further proceedings and directed the trial court to (1) "first determine whether appellant is indigent"; (2) next determine whether the lawsuit involved a bona fide threat to his personal or property interests, and (3) consider what measures were available to protect appellant's right of meaningful access to the courts if the first two conditions (i.e., indigency &

decided a case involving the right of access to the courts of an indigent plaintiff prisoner pursuing medical malpractice claims. ( Jameson v. Desta (2018) 5 Cal.5th 594 , 234 Cal.Rptr.3d 831 , 420 P.3d 746 ( Jameson ).) In that case, the right to access to meaningful appellate review of the trial court's decision was affected by the absence of a court reporter at the trial court proceedings and the resulting lack of a verbatim record of those proceedings. ( Id. at p. 608, 234 Cal.Rptr.3d 831 , 420 P.3d 746 .) As background, the Supreme Court described various ways it and the Courts of Appeal had protected the ability of indigent civil litigants to obtain meaningful access to the courts, including " Payne [ , supra ,] 17 Cal.3d 908 , [ 132 Cal.Rptr. 405 , 553 P.2d 565 ] ... [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 [ , supra ,] 39 Cal.3d 197 , [ 216 Cal.Rptr. 425 , 702 P.2d 583 ] [explaining trial court's responsibilities under Payne ]." ( Jameson , supra , 5 Cal.5th at p. 605.) Based on our Supreme Court's citation of its prior decisions involving the appointment of counsel, we conclude those decisions remain good law. Although

provide any authority that would support the request that this court appoint an attorney in this civil action." The court noted the constitutional right to counsel for criminal defendants and the establishment of the office of the public defender to provide that representation. The court referred to Government Code section 27706 as setting forth the grounds for appointing the public defender and concluded none of those grounds were present in this case. The court then reiterated that "[t]he authority cited by [Smith] has no application to this case" and concluded it was "without authority to appoint an attorney in this case." As a result, the court denied Smith's motion.

C. Arguments Presented on Appeal

1. Initial Appellate Briefing

Smith's opening brief contends the "denial [of] appointment of counsel for medical expert" was an abuse of discretion. Defendants contend the trial court did not abuse its discretion by failing to appoint Smith an expert because he never asked the trial court for an expert and, even if a motion had been made, Smith did not establish the court had the authority to provide him with an expert at no cost. We agree with defendants and will therefore not address the expert appointment issue further.

2. Supplemental Briefing Request

In May 2019, this court requested supplemental briefing under Government Code section 68081 of issues relating to the trial court's order denying the appointment of counsel. Based on Apollo , Wantuch and the California Supreme Court cases addressing the appointment of counsel for indigent defendants in civil cases ( Yarbrough, supra , 39 Cal.3d 197 , 216 Cal.Rptr. 425 , 702 P.2d 583 ;

rules of construction that apply to any other writing." (16 Cal.Jur.3d (2012) Courts, § 328, p. 880.) Similarly, "[t]he meaning and effect of a judgment is determined according to the rules governing the interpretation of

E. Waiver of the Right to Access to the Courts

With some irony, defendants' supplemental brief contends: "By failing to raise an access-to-court argument below, Mr. Smith cannot complain about the issue now under the waiver doctrine." We reject this waiver argument.

First, California law defines waiver as the intentional relinquishment or abandonment of a known right or privilege. ( Smith v. Adventist Health System/West (2010) 182 Cal.App.4th 729 , 745, 106 Cal.Rptr.3d 318 .) Under this definition, waiver is based on intent. ( Ibid. ) The intent to waive may be expressed in words, either oral or written, or implied by a party's conduct. ( Ibid. ) Here, Smith has not expressly relinquished his right of access to the courts. As to an implied relinquishment, Smith's conduct includes pursuing the malpractice claim and, more specifically, filing a motion for appointment of counsel supported by arguments that he was unable to adequately represent himself because of his incarceration, lack of education and training, and probable difficulty in obtaining an expert witness. This conduct demonstrates an intent to use the judicial system to seek the redress for the allegedly substandard medical care, which is inconsistent with an intent to relinquish the right of access to the courts. Therefore, we conclude it is not objectively reasonable to infer Smith intended to give up that right.

Similarly, it is not objectively reasonable to infer Smith had the knowledge required to establish a waiver. Defendants' waiver argument has referred to no documents or other evidence in the record supporting a reasonable inference that Smith knew the nature and extent of his right of access to the court and how that right related to the appointment of counsel pursuant to the trial court's discretionary authority. Therefore, an intentional relinquishment or abandonment of a known right of access is not established by the record.

Second, and most importantly, when an indigent plaintiff in a civil action requests the appointment of counsel, that request should be interpreted as invoking the right of meaningful access to the courts, even if the indigent plaintiff does not explicitly mention that right. Courts generally are required to give pleadings a liberal, yet reasonable, construction ( Code Civ. Proc., § 452 ), and the same approach is warranted when an indigent, self-represented plaintiff requests the appointment of counsel. Based on current

represent themselves would be the least likely to obtain protection.

Consequently, the doctrine of waiver does not preclude this court from considering Smith's right of meaningful access to the courts as the basis for the appointment of counsel or appointment of an expert, even though he did not cite cases such as Apollo and Wantuch or explicitly mention the right in the trial court proceedings.

F. Appellate Relief for Failure to Exercise Discretion

Our conclusion that the trial court was not aware of its discretionary authority and, as a result, did not exercise that discretion leads to the following question: What appellate relief, if any, is appropriate? The possible answers include (1) declaring the error harmless; (2) remanding the case to the trial court to exercise its discretion; and (3) directing the trial court to appoint counsel because the circumstances so overwhelmingly favor the appointment of counsel that it would be an abuse of discretion to deny the request.

In Apollo and Wantuch , the appellate courts chose the middle ground, reversing the judgment and remanding to the trial court to exercise its discretionary authority. ( Apollo , supra , 167 Cal.App.4th at p. 1488, 85 Cal.Rptr.3d 127 ; Wantuch , supra , 32 Cal.App.4th at pp. 795-796, 39 Cal.Rptr.2d 47 ; cf. People v. McDaniels (2018) 22 Cal.App.5th 420 , 426-428, 231 Cal.Rptr.3d 443 [ordering remand for resentencing where trial court is unaware of its sentencing discretion].) We conclude the same approach is appropriate in this case. There is a reasonable possibility that a result more favorable to Smith would have been reached in the absence of the failure to exercise discretionary authority. (See

Plaintiff Gregory Smith is an indigent, self-represented prison inmate pursuing medical malpractice claims against a doctor and a nurse practitioner employed by the Pleasant Valley State Prison (Pleasant Valley). He filed a motion for the appointment of counsel, arguing the trial court should consider (1) the factual complexity of the issues relating to pain medication, dosage and his spinal condition; (2) his limited ability to investigate the facts, obtain discovery and get expert witnesses; (3) the legal complexity of the case; and (4) his showing that, on their face, his claims had merit. The trial court noted the right of criminal defendants to appointed counsel, cited the statute governing the appointment of public defenders, but stated it was without authority to appoint an attorney for a plaintiff in a civil case, and denied the motion. Subsequently, the trial court granted defendants' motion for summary judgment because Smith, as he predicted, did not obtain a medical expert's declaration contradicting the opinion of defendants' expert that the care provided Smith met the applicable standard of care.

The California Constitution and Penal Code section 2601, subdivision (d) provide indigent prisoners with the right of meaningful access to the courts to prosecute civil actions. One of the discretionary measures available to protect the right of access to the courts is the appointment of counsel. Consequently, the trial court had the discretionary authority to appoint counsel. The court's statement that it was without the authority to appoint counsel did not recognize the existence and scope of its discretionary authority.

The exercise of a trial court's discretion is guided by a three-step inquiry

We publish a portion of this decision because it resolves issues not reached in Apollo or Wantuch. First, the discretionary appointment of an expert pursuant to Evidence Code section 730 is among the measures available to trial courts to ensure indigent prisoner litigants are afforded meaningful access to the courts. Second, trial courts are responsible for recognizing their discretionary authority to appoint counsel for indigent civil litigants who request the appointment of counsel, even when the indigent litigant does not cite cases such as Apollo and Wantuch and does not refer to the right of access to the courts as the basis for that discretionary authority. Third, an indigent civil litigant may argue on appeal that the right of meaningful access to the courts provides a basis for appointing counsel despite not raising that specific argument in the trial court.

We therefore reverse the judgment and remand for further proceedings.

FACTS

Parties

Smith was born in 1956. His present incarceration began in 2004 and he is serving a sentence of 39 years to life, with eligibility for parole. The present litigation arises from the medical care Smith received at Pleasant Valley, where he arrived in August 2011, after being transferred from the Richard J. Donovan Correctional Facility in San Diego County (Donovan). Smith remained at Pleasant Valley until December 2013, when he was transferred to Folsom State Prison (Folsom).

The defendants named in Smith's pleading were P. Brazelton, Warden of Pleasant Valley; Dr. U. Baniga; Nurse Practitioner I. Ogbuehi; J. Clark Kelso; Dr. A. Duenas; and L. Zamora. Only Dr. Baniga, Ogbuehi, and Warden Brazelton were served with Smith's amended complaint.

Smith's Medical Conditions

Prior to Smith's arrival at Pleasant Valley, he was injured in two separate cellmate assaults. After the first cellmate assault, medical staff at Donovan coordinated two surgeries on Smith's right thumb and wrist in 2008 and 2009. Donovan medical staff also prescribed gabapentin for pain.

In June 2010, Smith experienced a sudden onset of right knee pain. Donovan medical staff identified a lateral meniscus tear and preliminarily evaluated Smith for surgery.

In September 2010, the second cellmate assault occurred, injuring Smith's left shoulder. Donovan medical staff and Smith

injured shoulder over the treatment of Smith's knee. In September 2010, the first surgery on Smith's left shoulder was conducted. In February 2011, Donovan medical staff coordinated a second surgery on Smith's shoulder to remove the displaced anchor. Donovan medical staff also prescribed morphine for pain.

While treating Smith's shoulder, a CT scan revealed an old compression fracture of Smith's L3 vertebrae. Smith was given a back brace, but no significant treatment was provided for his back.

To summarize, while at Donovan, Smith experienced medical problems with his right hand, right knee, left shoulder, and his spine. The symptoms from these problems included pain. This lawsuit addresses the medical care Smith received at Pleasant Valley after leaving Donovan in August 2011. Details about that medical care are set forth in the unpublished portion of this opinion addressing defendants' motion for summary judgment.

PROCEEDINGS

Smith has represented himself throughout this proceeding, which has included exhausting administrative remedies, filing a claim under the Government Claims Act ( Gov. Code, § 810 et seq. ), and pursuing this lawsuit. The litigation began in October 2013 when Smith filed a civil complaint and an application for waiver of court fees. In April 2014, after various motions had been filed and some withdrawn, Smith filed an amended complaint asserting medical malpractice claims. His amended complaint is the operative pleading for purposes of this appeal.

The amended complaint sets forth headings for three causes of action, all of which included the description "(Negligent or Wrongful Act or Omission)." Additional descriptions of "(Defendant's owe Plaintiff a legal duty of care)"; "(Defendant's Breach of Duty)"; and "(Proximately Cause Pain and Suffering)" were included in Smith's headings for the first, second, and third causes of action, respectively.

In broad terms, Smith alleged defendants breached their legal duty to provide reasonable and competent medical care by failing to give necessary medication; prescribing inappropriate medication; delaying examination and treatment; and failing to provide access to a specialist that his particular condition required. He also alleged the "failure to summon immediate medical care ... is serious enough [to] amount to the wanton and unnecessary infliction of pain and suffering." In more specific allegations, Smith asserts his shoulder cannot be repaired due to delays in treatment; the morphine he was taking for pain was inappropriately lowered and then

withdrawn completely; the gabapentin he was taking was inappropriately withdrawn; and Dr. Baniga refused his request to be removed from Ogbuehi's care and assigned another nurse practitioner. The pain being treated related to Smith's shoulder injury, a compression fracture of his L3 vertebrae, and a tear of the lateral meniscus in his right knee.

In June 2014, the three defendants served with the amended complaint filed their answer. Subsequently, Warden Brazelton was dismissed with prejudice pursuant to a written request for dismissal signed by Smith and defense counsel. Consequently, this lawsuit has been narrowed to the claims against Dr. Baniga and Ogbuehi.

Motion for Appointment of Counsel

In April 2015, Smith filed a motion for appointment of counsel. The motion asserted (1) Smith was unable to afford counsel; (2) the issues involved in the case were

DISCUSSION

A

ppellant's opening brief included a heading asserting the denial of appointment of counsel for medical expert was an abuse of discretion. Because his request of the trial court was for appointment of counsel, not for the appointment of an expert, our review focuses on the issues relating to the appointment of counsel. Under California law, the appointment of counsel for an indigent prisoner pursuing a civil action is an aspect of the right of

with indigent prisoners who were defendants in civil actions. (See Yarbrough, supra , 39 Cal.3d 197 , 216 Cal.Rptr. 425 , 702 P.2d 583 ; Payne v. Superior Court (1976) 17 Cal.3d 908 , 132 Cal.Rptr. 405 , 553 P.2d 565 ( Payne ).)

In Wantuch , a self-represented inmate sued his former criminal defense attorney for malpractice and other causes of action. ( Wantuch , supra , 32 Cal.App.4th at pp. 789-790, 39 Cal.Rptr.2d 47 .) When the inmate failed to appear at a status conference, the trial court denied the inmate's motion for appointed counsel, struck his pleadings, and entered judgment against him. ( Id. at p. 790, 39 Cal.Rptr.2d 47 .) The Second District determined the trial court abused its discretion in striking the pleadings and entering judgment against the inmate. ( Ibid. ) The court reversed the judgment and remanded for further consideration of the inmate's right of access to the courts. ( Wantuch , supra , 32 Cal.App.4th at pp. 790, 795-796, 39 Cal.Rptr.2d 47 .)

In Apollo , a self-represented prisoner brought a civil action against the prison food administrator and two medical staff members for damages resulting from defendants' refusal to provide a medically prescribed special diet for his chronic diverticulitis of the colon. ( Apollo , supra , 167 Cal.App.4th at p. 1471, 85 Cal.Rptr.3d 127 .) Two defendants obtained a dismissal

no greater, rights than represented litigants" and (2) "trial courts have a duty in the name of public policy to expeditiously process civil cases." ( Apollo , supra , 167 Cal.App.4th at p. 1487, 85 Cal.Rptr.3d 127 .) The First District stated these important principles "must yield to the even greater principles of providing in propria persona litigants with meaningful access to the courts and of deciding bona fide civil actions on their merits." ( Apollo , supra , at p. 1487, 85 Cal.Rptr.3d 127 .)

3. Federal Approach to Appointing Counsel

Smith's motion for the appointment of counsel did not cite a decision by any court of the State of California. Instead, he cited federal decisions. (See Moore v. Mabus (5th Cir. 1992) 976 F.2d 268 , 272 [reversed denial of motion for appointment of counsel for indigent plaintiff alleging constitutional violations, stating "district court should promptly appoint qualified counsel"]; Terrell v. Brewer (9th Cir. 1991) 935 F.2d 1015 , 1017 [district court's denial of motion for appointment of counsel pursuant to 28 U.S.C. § 1915 reviewed for an abuse of discretion]; McKeever v. Israel (7th Cir. 1982) 689 F.2d 1315 , 1319 [district court failed to exercise its discretion under 28 U.S.C. § 1915 (d) because it did not recognize its authority to appoint counsel for plaintiff].) Because of the overlap between the federal and state constitutional rights to meaningful access to the courts, we briefly summarize the federal decisions.

The federal statute authorizing prisoners to bring civil actions in forma pauperis provides that "[t]he court may request an attorney to represent any person unable to afford counsel." ( 28 U.S.C. § 1915 (e)(1).) As stated in the cases cited by Smith, this provision grants federal district courts the discretionary authority to appoint counsel for indigent civil plaintiffs. However, appointment of counsel is not simply a matter of routine. Many federal courts have interpreted this provision to authorize the appointment of counsel for indigent civil litigants when "exceptional circumstances" exist. (E.g., Byrd v. Maricopa County Board of Supervisors (9th Cir. 2017) 845 F.3d 919 , 925 ; Jackson, supra , 811 F.2d at p. 261 ["district court is not required to appoint counsel unless the case presents 'exceptional circumstances' "]; see 3 Mushlin, Rights of Prisoners, supra , § 12:24, p. 230, fn. 34.) In determining the existence of exceptional circumstances, federal district courts consider "(1) the type and complexity of the case; [¶] (2) whether the indigent is capable of adequately presenting his case; [¶] (3) whether the indigent is in a position to investigate adequately the case; ... [¶] (4) whether the evidence will consist in large part of conflicting testimony so as to require skill in the presentation of evidence and in cross examination" and (5) "whether appointed counsel would aid in the efficient and equitable disposition of the case." ( Jackson , supra , 811 F.2d at p. 262.)

him to present a medical expert witness, cross-examine any expert witnesses called by defendants, or both. Smith stated he had no ability to investigate medical data on drugs, spinal stenosis, or its treatment. Smith argued the appointment of counsel was supported by the fact that he was an indigent inmate who did not complete high school and had no legal training. Smith stated presenting his legally complex medical malpractice claims to a jury required greater skill than he had or could develop. In addition, he argued his claims had sufficient merit on their face to weigh in favor of appointing counsel.

2. The Trial Court's Decision

The trial court's written order denying Smith's ex parte motion for the appointment of counsel stated Smith had "failed to

Payne, supra , 17 Cal.3d 908 , 132 Cal.Rptr. 405 , 553 P.2d 565 ), we requested the parties to assume that, in certain circumstances, "California trial courts have the discretionary authority to appoint counsel for indigent plaintiffs who are state prisoners." Our questions asked the parties, among other things, (1) how we should interpret the trial court's order in the event the available record was unclear as to whether the trial court conducted the three-step inquiry described in Apollo and Wantuch before denying the motion for appointment of counsel and (2) what the appropriate remedy should be if the trial court misunderstood the nature and scope of its discretionary authority to appoint counsel.

3. Defendants' Supplemental Brief

Defendants' supplemental brief stated the trial court did not conduct the three-step inquiry used in Apollo and Wantuch in deciding Smith's motion for appointment of counsel. Defendants contended that when interpreting the order this court should "presume the trial court knew of its obligations under Wantuch and Apollo but found them inapplicable because Mr. Smith had raised only an appointment-of-counsel issue, and not a court-access issue." In a related argument, defendants contend that, even if one assumes the trial court misunderstood the nature and scope of its discretionary authority, there is no need to remand with directions for the trial court to conduct that inquiry because "Smith failed to make a prima facie showing of a denial of meaningful access to the courts." In other words, defendants contend there was no duty to conduct the three-step inquiry because Smith's arguments and showing did not trigger that duty.

Defendants also argue that nothing in Wantuch , Apollo or Jameson supports the conclusion that a trial court is obligated to conduct the three-step inquiry every time an indigent prisoner-plaintiff moves for appointment of counsel. Furthermore, defendants

with defendants' contention as to the reason. Defendants contended Smith failed to make a prima facie showing of a denial of meaningful access to the courts. Smith argues he made a prima facie showing and this court can interpret the trial court's "statement about the absence of authority as meaning it did not conduct that three-step inquiry." As to the appropriate appellate relief, Smith contends this court should reverse the trial court's order and instruct it to conduct the three-step inquiry and appoint counsel for purpose of a medical expert. Smith reasserts his argument that a medical expert is necessary to establish the required standard of care and that defendants deviated from it. Smith states an appointed attorney could investigate the misrepresentation of medical records and the untrustworthy documents submitted to the court with the motion for summary judgment.

D. Interpreting the Trial Court's Order

The first step in our analysis of the trial court's order addresses how to interpret that order. Specifically, was the trial court aware of its discretionary authority to appoint counsel and did the trial court actually exercise that discretion in denying the motion?

1. Presumption of Correctness

"[I]t is a fundamental principle of appellate procedure that a trial court [order or] judgment is ordinarily presumed to be correct and the burden is on an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal of the judgment." ( Jameson , supra , 5 Cal.5th at pp. 608-609, 234 Cal.Rptr.3d 831 , 420 P.3d 746 .) Stated another way, all presumptions are indulged to support the trial court order or judgment "on matters as to which the record is silent, and error must be affirmatively shown." ( Denham v. Superior Court (1970) 2 Cal.3d 557 , 564, 86 Cal.Rptr. 65 , 468 P.2d 193 ( Denham ).) The presumption of correctness and the allocation of the burden to the appellant is part of the constitutional doctrine of reversible error. ( Ibid. ; see Cal. Const., art. VI, § 13.) This doctrine and the principles derived from it are the foundation for our interpretation of the trial court's written order denying Smith's motion for appointment of counsel. Accordingly, we consider whether the presumption of correctness applies.

2. Rules Governing Interpretation of Order

Generally, the "interpretation of an appellate opinion is governed by the

writings generally." ( People v. Landon White Bail Bonds (1991) 234 Cal.App.3d 66 , 76, 285 Cal.Rptr. 575 .) We conclude the same rules apply to the interpretation of a written order issued by a trial court. Under those rules, the entire order is taken by its four corners and construed as a whole. ( Ibid. ) Also, the order's language is viewed in light of the facts and the issues before the court, and each statement is considered in its proper context. (See 16 Cal.Jur.3d, supra , Courts, § 328, p. 880.)

3. Presumption Does Not Apply

As noted, the presumption of correctness applies to "matters as to which the record is silent." ( Denham , supra , 2 Cal.3d at p. 564, 86 Cal.Rptr. 65 , 468 P.2d 193 .) Here, the order was not silent on the matter of the court's authority to appoint counsel. The order discussed the constitutional right of criminal defendants to be represented and the appointment of the public defender under Government Code section 27706. The order stated Smith was "not subject to criminal prosecution" and no statutory ground for appointing a public defender was present. Thus, the court was not silent on the matter of its authority to appoint counsel. Consequently, we do not presume the court was aware of its discretionary authority to appoint counsel and actually exercised that discretion.

4. Trial Court Was Unaware of Its Discretionary Authority

Having concluded the presumption of correctness does not apply, we address what the trial court meant when it said it was "without authority to appoint an attorney in this case." Defendants argue this statement means the court concluded Smith failed to make a prima facie showing of a denial of access and, based on this result, the court reached the further conclusion that it had no duty to conduct the three-step inquiry described in Apollo and Wantuch. Based on the contents of the order as a whole and the context provided by Smith's motion, we interpret the order to mean the court did not recognize it had the discretionary authority to appoint counsel. That discretionary authority is described in Apollo and Wantuch and is derived from Penal Code section 2601, subdivision (d) and the constitutional protections given the right of access to the courts. The court made no reference to Penal Code section 2601, Apollo , Wantuch , or the California Supreme Court cases addressing the appointment of counsel for indigent defendants in civil actions. (See Yarbrough, supra , 39 Cal.3d at pp. 200-201, 216 Cal.Rptr. 425 , 702 P.2d 583 ; Payne, supra , 17 Cal.3d at p. 924, 132 Cal.Rptr. 405 , 553 P.2d 565 .) More generally, the court did not mention civil litigants' constitutional right of access to the courts. Therefore, we interpret the trial court's order to mean the court did not recognize its discretionary authority.

"[A] court that is unaware of its discretionary authority cannot exercise its informed discretion." (

People v. Brown (2007) 147 Cal.App.4th 1213 , 1228, 54 Cal.Rptr.3d 887 [sentencing discretion]; see Doan v. State Farm General Ins. Co. (2011) 195 Cal.App.4th 1082 , 1105, 125 Cal.Rptr.3d 793 [trial court was unaware of its discretionary authority under statute; the matter was remanded to trial court with directions to exercise its discretion].) Here, the trial court did not recognize its discretionary authority and, as a result, committed legal error in concluding it was without the authority to appoint counsel.

State of California and federal constitutional law, it is objectively reasonable to interpret such requests as being based on the right to meaningful access to the courts. The alternate principle, which would conclude a trial court need consider its discretionary authority to appoint counsel if and only if a self-represented, indigent plaintiff explicitly mentions the right of meaningful access, would itself operate as a barrier to meaningful access. We further conclude that trial courts evaluating a request for the appointment of counsel by an indigent plaintiff must (1) recognize their discretionary authority to appoint counsel or implement other measures to afford the plaintiff meaningful access to the courts and (2) exercise that discretion in an informed manner. This obligation or responsibility imposes a small burden on trial courts as they should be aware of their role in the administration of justice, the constitutional principles that define that role, and the rights of persons resorting to the court system. If this responsibility was not inherent in the constitutional and statutory right of access to the courts, then indigent litigants most in need of protection because of their inability to effectively

Soule v. General Motors Corp. (1994) 8 Cal.4th 548 , 574, 34 Cal.Rptr.2d 607 , 882 P.2d 298 [test for reversible error in civil case].) Therefore, the error was not harmless.

Conversely, the circumstances are not so overwhelming that the only proper exercise of discretion is the appointment of counsel. While Smith has made a prima facie showing on appeal that he is indigent and his claim is bona fide, the resolution of the first two steps of the three-step inquiry described in Apollo and Wantuch is better left to the trial court in the first instance. Similarly, the choice among the various measures available to protect the right of access to the courts is better left to the trial court, which is responsible for overseeing the litigation and better situated to evaluate how one or a combination of measures would operate "to ensure indigent prisoner litigants are afforded meaningful access to the courts." ( Apollo , supra , 167 Cal.App.4th at p. 1483, 85 Cal.Rptr.3d 127 , citing Wantuch , supra , 32 Cal.App.4th at pp. 792-793, 39 Cal.Rptr.2d 47 .) Its choice of measures may be affected by the answer to the factual questions about compensating experts noted earlier in footnote 9.

Consequently, we reverse the judgment and remand for further proceedings in which the trial court is directed to "first determine whether appellant is indigent" and next determine whether the lawsuit involved a bona fide threat to his personal or property interests. ( Apollo , supra , 167 Cal.App.4th at p. 1485, 85 Cal.Rptr.3d 127 .) If those two conditions are present, the trial court must consider what remedies are available to protect Smith's right to meaningful access to the court, which remedies include the appointment of counsel and the appointment of an expert under Evidence Code section 730. (See Apollo , supra , at p. 1486, 85 Cal.Rptr.3d 127 ; In re Daniel C. H. (1990) 220 Cal.App.3d 814 , 833, 269 Cal.Rptr. 624 ["trial court has discretion in the appointment and selection