New Ruling Could Upend Cases Where Poor Litigants Were Denied a Court Reporter

The San Diego Superior Court building / Photo by Kinsee Morlan

In July, the California Supreme Court ruled that the San Diego Superior Court and others statewide must provide court reporters for poor litigants in civil cases.

This week, the 4th District Court of Appeal underscored the ruling’s broad reach: It said the high court’s decision applies retroactively, meaning rulings in cases where poor parties were not given access to a court reporter could be overturned on that basis alone. That could upend decisions in potentially hundreds of local civil cases.

The 4th District Court of Appeal’s opinion issued Tuesday said the retroactivity of the Jameson v. Desta decision last July extends to all cases not yet final on appeal.

Court reporters type up verbatim transcripts of legal proceedings, such as trials, while they are ongoing. The documents can later be used by litigants to provide appeals courts with the necessary written records of lower-court proceedings for their review. Without trial or hearing transcripts, appeals can be very difficult to pursue and win.

Anton Georghiou, a San Diego family law attorney, said the 4th District’s ruling could prompt a flood of appeals from litigants who were improperly denied court reporters in a variety of civil matters.

“You could start seeing the re-litigating of hundreds or thousands of cases,” he said.

Josh Gruenberg, a plaintiff’s employment lawyer in San Diego, said he was skeptical there would be too many related appeals given that a very high percentage of cases are resolved before trial.

The San Diego Superior Court could not say Wednesday how many poor litigants were denied fee waivers for court reporters in recent years.

The court stopped providing court reporters for most civil trials several years ago to combat deep budget cuts.

But the California Supreme Court unanimously ruled in Jameson that the court’s policy of leaving it to the parties to employ a private court reporter only if they could afford one was invalid because it denied indigent litigants equal access to the courts.

San Diego Superior Court leaders said the court has updated its policy since the ruling.

“All judges have been informed that if any fee waiver litigant in a civil, family or probate courtroom requests a court reporter that they are to contact the court reporter services office to arrange for a court reporter to be provided for that hearing,” Court Executive Officer Michael Roddy said in a statement.

San Diego Presiding Judge Peter C. Deddeh said the Jameson ruling also made clear the need for the court to hire additional court reporters, including for family and probate cases, which he said have a higher percentage of indigent litigants.

The court has hired 19 new court reporters since the Jameson decision, Roddy said. But due to retirements and other departures, the court is still short 10 reporters “to fully cover all family law courtrooms with full-time reporters, as well as other court reporter vacancies throughout the court,” he said.

As for the case at issue in the 4th District’s ruling, it was a personal injury/premises liability lawsuit Elena Dogan filed against her landlord, Comanche Hills Apartments, and other defendants. Dogan, who represented herself in the case, alleged she was injured when concrete stairs at her apartment complex broke under her, causing her to fall.

At an early stage of the case, Dogan’s request for a fee waiver was granted by the court on the grounds of indigency.

But several months before trial, Dogan filed a request to waive additional court fees and court reporter fees. Her request was denied with the stamped notation, “The Court does not provide Court Reporter Services.”

Dogan’s trial commenced in 2016 without a court reporter. After Dogan presented her evidence, the court granted a defense motion for a “nonsuit.”

Dogan appealed, again representing herself. The appeals court sided with her, citing Jameson.

“Because there is no way to now provide a reporter for a trial that has already occurred, we have no choice but to reverse and remand for a new trial at which an official court reporter will be furnished,” the unanimous opinion written by Justice William Dato said.

Dato wrote that the defendants “appropriately conceded” that the Jameson ruling applies retroactively to all cases not yet final on appeal.

However, the defendants argued that the failure to provide Dogan with a court reporter was harmless because the record in the case demonstrated Dogan failed to meet her burden of proof.

Dato, whose ruling was supported by Justices Judith Haller and Patricia Guerrero, disagreed.

“In light of Jameson, we cannot fairly conduct our review without a reporter’s transcript,” he wrote.

Dato’s opinion was hailed by other local attorneys, including Amy Fitzpatrick, CEO of the San Diego Volunteer Lawyer Program.

“There is no way to meaningfully exercise the right to appeal without a court reporter’s transcript, and by definition, an indigent litigant cannot afford to hire a court reporter,” Fitzpatrick wrote in an email.

“Dogan is a great, and very important, decision, made more so for being so clear in its reasoning,” she added.

Lawyer Julie Wolff, a child welfare law specialist in San Diego, agreed.

“The doors of justice should not open wider for those with more money,” she said. “All are equal under the law.”

Gruenberg, the employment lawyer, said it would be interesting to see if the 4th District’s ruling causes the San Diego court “to view with more scrutiny the declaration an indigent party signs for a fee waiver knowing there is the added expense of the court reporter at the end of the case.”