Metropolitan News-Enterprise


Thursday, October 26, 2017


Page 1


Court of Appeal Reinstates Class Action Despite Mootness

Elia Says Present Mootness Must Be Ignored Because It Did Not Exist at the Time the Trial Judge Erroneously Sustained Demurrers Without Leave to Amend in Suit Against a Superior Court


By a MetNews Staff Writer


The Sixth District Court of Appeal has ordered reinstatement of a class action challenging a policy of the Santa Cruz Superior Court to refund court reporter fees, paid in advance, when no court reporter was provided only if a written request is made, spurning the superior court’s contention that the appeal should be dismissed as moot because all refunds have now been made and the court no longer requires a request in writing.

The appeals court, in an unpublished opinion by Acting Presiding Justice Franklin D. Elia, held Tuesday that under Government Code §68086, a court is unconditionally obliged to return a court reporting fee “as soon as practicable” where no court reporter is supplied, and a superior court may not rightfully retain the money based on the lack of a written request.

Confining his attention to the viability of the original complaint as of the time when the demurrers to it were heard—July 20, 2015—Elia declared that the causes of action for breach of duty and negligence were adequately pled and the plaintiffs may proceed on them, on remand.

Mootness occurred months after that July 20 hearing, at which retired Orange Superior Court Judge Marjorie Laird Carter, sitting on assignment, sustained demurrers, without leave to amend, as to two of the causes of action: for breach of a mandatory duty and negligence. She granted leave to amend as to other causes of action.

On Oct. 23, 2015, Carter sustained demurrers to each cause of action in the first amended complaint, without leave to amend, based on intervening mootness.

Court’s Contention Rebuffed

Addressing the superior court’s request that the appeal be dismissed based on mootness, Elia said:

“In so arguing, however, respondent relies on a factual assertion that was not appropriate for consideration by demurrer. Indeed, at the time the court sustained the demurrer to this cause of action, there was no evidence of refunds beyond a response to interrogatories indicating reimbursement to appellants themselves for four hearings.”

Maria and Rafael Leon, the named plaintiffs, received refunds in 2014 after filing claims against a governmental entity, and refunds were sent to other persons entitled to them on Oct. 5, 2015.

Those October 2015 refunds cannot be considered in determining whether Carter was justified in earlier sustaining demurrers without leave to amend, Elia said, but, with the case now remanded, he observed:

“If there is dispositive evidence vitiating the causes of action for failing to return the litigants’ money, respondent should be presenting that evidence in a motion for summary judgment.”

Elia commented:

“This case should have been resolved long ago, either by settlement or summary judgment. We cannot provide that resolution, however, because the principles of review applicable to demurrer rulings require this court to accept as true not only the facts that were alleged but also those that can be inferred from those expressly alleged. As the claims pertaining to the failure to refund the fee survived respondent’s demurrers, dismissal of the action was unjustified.”

No Contractual Obligation

While agreeing with the Leons that they stated a cause of action for breach of duty, Elia said they were wrong in contending that once they paid their $30 fee for a court reporter, on four occasions, the court was contractually obligated to provide a reporter. He explained that §68086 provides that litigants “shall be charged for the reasonable cost of the court reporting services” but that “[n]owhere in the extensive language of section 68086 is there a mandate that the court provide a court reporter,” and envisions the unavailability of a court reporter in requiring that if one is not supplied, there will be a refund.

Nonetheless, in alleging that the refund provision was not being adhered to, the jurist said, a cause of action was stated.

With respect to the cause of action for negligence, Elia wrote:

“To the extent that appellants were asserting negligence for the failure to return the fee “as soon as practicable,” they stated a sufficient cause of action.”

A cause of action for declaratory relief was pled in the original complaint, but there was no dismissal as to it in July 2015; Carter granted leave to amend. It was also contained in the first amended complaint, but was dismissed in October 2015 after Carter took judicial notice of facts pointing to mootness.

Elia said:

“Because a judiciable controversy was stated in appellants’ pleading, the demurrer to the declaratory relief claim as well as those for negligence and breach of mandatory duty should have been overruled.”

Santa Barbara attorney Ron Keith Bochner, who represented the Leons, said yesterday that on remand, he will seek “damages and the assurance that the policy actually has changed.”

The case is Leon v. Superior Court, H043183.

Los Angeles Policy

In Los Angeles County, the issue of refunds does not arise because, Court Counsel Frederick Bennett said yesterday, that where fees are imposed—in family law and probate cases—litigants are not required to post them in advance.

Local Rule 2.21, which provides that court reporters are “normally available for reporting all proceedings in criminal, juvenile, family law and probate cases,” was suspended on May 1, 2012, during a budget crisis, and the suspension remains in effect. Nonetheless, Bennett advised, court reporters are now provided in those types of cases.

“It is my understanding,” he said, “that the only place we no longer provide reporters is general civil.


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