The Intersection of Budget Cuts and Due Process

Due to budget constraints, the Los Angeles Superior Court no longer provides a court reporter for most law and motion matters.  Instead, parties must prearrange and privately pay for a court reporter to transcribe a hearing.  If no reporter transcribes the hearing and if some record of the hearing is needed for an appeal, an appellant must then proceed by way of an agreed statement under Rule 8.134 (where the parties agree to a summary of what happened at the hearing in lieu of a reporters transcript) or a settled statement under Rule 8.135 (where the trial court approves a summary of what happened at the hearing in lieu of a reporter’s transcript).  The process of an agreed statement or settled statement may fall short of accurately portraying what occurred in court.  Time and biases inevitably color the record.

On November 4, 2014, Division Seven of the Second District Court of Appeal issued its opinion in Maxwell v. Dolezal (Nov. 4, 2014, B254893).  The plaintiff in that case had appealed an order sustaining a demurrer without leave to amend.  The Court of Appeal reversed.  Putting the merits of the appeal aside, Associate Justice Laurie D. Zelon’s opinion in Maxwell made the following observation:

No court reporter was present to transcribe the hearing on the demurrer. Aware that there was no record of the oral proceedings, the court nonetheless rested its decision on the demurrer in part on “the reasons stated in open court” without setting forth in the ruling what those reasons were. Similarly, the court justified its denial of leave to amend the complaint in part on Maxwell’s failure to articulate a basis “in open court” to support his request for leave to amend, but it did not describe the showing Maxwell had made at the hearing. In this case, because the correctness of the court’s ruling with respect to the first cause of action and its error with respect to the second were both readily apparent from a review of the operative complaint and the demurrer, neither a transcript of the hearing nor the court’s statement of specific grounds for its ruling (Code Civ. Proc., § 472d) was essential to permit effective appellate review. However, we view this case as an exception. We remain profoundly concerned about the due process implications of a proceeding in which the court, aware that no record will be made, incorporates within its ruling reasons that are not documented for the litigants or the reviewing court.

This case underscores the growing gap between the justice available to wealthy litigants who can afford to pay for court reporters and litigants of modest means who may be denied due process because no record is made of their hearing.  The latter group of litigants must resort to no record (in which case appellate courts will frequently not even review an issue if there is no transcript) or an inferior record (a settled statement or agreed on statement) that does not accurately portray what occurred at the hearing.


Jeffrey Lewis and the other attorneys at Broedlow Lewis LLP are experienced appellate attorneys who can advise you about the specifics of your writ or appeal.  Each case is different and you should consult a lawyer rather than relying on this post as legal advice for your situation.  If you are contemplating filing or responding to an appeal in Los Angeles or Orange County, consider hiring a certified appellate specialist as your lawyer or co-counsel.  Don’t wing it, win it.

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