Metropolitan News-Enterprise


Thursday, July 1, 2004


Page 1


Superior Court’s Handling of Fee Waivers Improper, C.A. Rules


By KENNETH OFGANG, Staff Writer/Appellate Courts


An application for a waiver of court fees based on indigence cannot be denied without an evidentiary hearing, unless the applicant’s reported income substantially exceeds his or her living expenses, the Court of Appeal for this district ruled yesterday.

Div. Seven said the Los Angeles Superior Court had erred in denying a number of such applications without evidentiary hearings, and ordered that those applicants be granted hearings on at least 10 days notice.

“Although we are not persuaded there exists a court-wide policy to refuse to properly decide...fee waiver nonetheless appears the process by which the Superior Court determines those applications is inconsistent with procedures mandated by the California Rules of Court,” Presiding Justice Dennis Perluss wrote for the Court of Appeal.

The fee-waiver litigation grew out of a suit in which 32 former tenants claim their landlord, Shawn Ayromloo, illegally denied them the right to return to their apartments following repairs ordered by the Los Angeles Housing Department. The ex-tenants are being represented pro bono by lawyers from the Legal Aid Foundation of Los Angeles and O’Melveny & Myers.

All 32 applied for fee waivers pursuant to Government Code Sec. 68511.3.

The statute authorizes a waiver of filing, service, and other fees upon a showing that the litigant is receiving public assistance, has an income falling below 125 percent of the federal poverty line, or would otherwise have to use money needed “to provide for the common necessaries of life.”

The statute is implemented by state court rules requiring the filing of a detailed financial declaration.

Of the 32 plaintiffs in the Ayromloo litigation, 13 sought fee waivers under the public-assistance or income-limit provisions and all of those waivers were granted. But of the 19 who cited the “common necessaries” clause, all were turned down by Commissioner Victor Greenberg without a hearing.

The plaintiffs then sought a writ of mandate, accompanied by a declaration by LAFLA attorney T.E. Glenn. Glenn explained, based on conversations with two court clerks, that the court did not grant “common necessaries” waivers based solely on the Judicial Council form financial declarations; that such applications were sometimes granted if a supplemental declaration was filed, even though applicants were not notified of such a requirement; and that evidentiary hearings were generally not held unless the applicant requested one following denial of an application.

The Superior Court responded informally that it had vacated the denials for all 19 plaintiffs and that the applications would be reconsidered by Commissioner Murray Gross. The court explained that Greenberg was less familiar with the law governing fee waivers than Gross, for whom Greenberg was filling in the day the waivers were sought.

Gross subsequently granted fee waivers to two plaintiffs, granted hearings to four others, and denied the applications of the remaining 13.

The Court of Appeal declined to find the petition moot and issued an order to show cause. The court formally responded that it had no policy of denying “common necessaries” waivers and attached Gross’ declaration stating that he held evidentiary hearings whenever there was substantial reason to do so, but that he did not believe he was obligated to hold a hearing where the financial information submitted suggested the applicant was able to pay the fees.

Perluss, writing for the Court of Appeal, said the litigants were entitled to an individualized determination of their applications. The commissioners, he said, had acted precipitously in summarily denying waivers to persons who were working and/or had small amounts of money in the bank, but appeared to be earning less than enough, or barely enough, to pay their living expenses.

The jurist cited the report of the California Commission on Access to Justice:

“Access to justice is a fundamental and essential right in a democratic society. It is the responsibility of government to ensure that all people enjoy this right.”

Court rules require that a waiver, or at least a hearing, be granted unless the financial declaration “conclusively demonstrates” that the applicant is ineligible, he said. The denial of two-thirds of the applications on reconsideration, he wrote, “demonstrates the Superior Court is employing an impermissibly narrow construction of the hearing requirement.”

Perluss was joined in his opinion by Justice Laurie Zelon, who chaired the Access Commission, and Justice Earl Johnson Jr., who was president of the board of the Western Center on Law and Poverty before his appointment to the bench.

Richard Rothschild of the Western Center, who was co-counsel for the plaintiffs in the Court of Appeal, told the MetNews that denial of fee waivers is “a huge issue around the state,” with the problem in many counties being worse than in Los Angeles.

Courts “were never all that liberal” with regard to “common necessaries” waivers “and we are seeing it get worse,” perhaps because of budget problems, Rothschild said.

The court was represented by the California Attorney General’s Office. Nathan Barankin, spokesman for Attorney General Bill Lockyer, said attorneys there were studying the opinion.

The case is Cruz v. Superior Court (Ayromloo), B172309.


Copyright 2004, Metropolitan News Company