Wednesday, January 23, 2019
By a MetNews Staff Writer
The Fourth District Court of Appeal yesterday—acting in response to the state Supreme Court’s July 5 decision invalidating the San Diego Superior Court’s policy of not providing court reporters to indigent litigants—remanded a case for a new trial because there was no transcript of proceedings leading to the granting of a nonsuit.
“Because there is no way to now provide a reporter for a trial that has already occurred,” Justice William Dato of Div. One wrote, “we have no choice but to reverse and remand for a new trial at which an official court reporter will be furnished.”
The plaintiff in the case, Elana Dogan, sued her landlords after allegedly slipping and falling on a concrete staircase when it broke underneath her. Dogan’s application for a fee waiver was granted based on her indigency, but her request for waiver of court reporter fees was met with a stamped rejection stating “The Court does not provide Court Reporter Services.”
Granting the defendant’s motion for nonsuit after Dogan presented her case to the jury, San Diego Superior Court Judge Judith F. Hayes noted that the plaintiff had “presented no evidence that the landlord knew or had any reason to know of any problem with the cement steps” and that at several points she had “described the problem with the step riser as ‘invisible’ prior to her fall.”
Supreme Court Decision
The defendants acknowledged that the high court’s opinion in Jameson v. Desta applies retroactively to cases not yet final on appeal. In that opinion, Chief Justice Tani Cantil-Sakauye said:
“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.”
Like Dogan’s landlords, the defendant in Jameson was granted a nonsuit after the plaintiff’s presentation of his case.
Dato rejected the defendants’ attempts to distinguish the present case. They pointed to the court’s minute order, which reflected Hayes’s finding that Dogan had repeatedly testified that the dangerous condition with the stairs was “invisible” before her accident, arguing that such testimony was fatal to her case.
Dogan claimed she never testified that the problem was invisible.
The jurist responded:
“On this record we cannot conclude that the absence of a reporter’s transcript was harmless. The trial court’s statement of reasons in its minute order is not a verbatim transcript of the testimony. It is, at best, the court’s recollection—or perhaps a characterization—of one part of the testimony. Significantly, Dogan’s recollection is different. If the record here included a reporter’s transcript, we would review the court’s reasoning in light of the actual testimony to determine, under the appropriate standard of review, whether the nonsuit was properly granted. In light of Jameson, we cannot fairly conduct our review without a reporter’s transcript.”
The case is Dogan v. Comanche Hills Apartments, Inc., 2019 S.O.S. 345.
Roxanne Huddleston of Los Angeles and Danny R. Grant of Hartsuyker, Stratman & Williams-Abrego in San Diego were counsel for the defendants. Dogan represented herself.
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