The lack of a reporter’s transcript can kill your appeal

Jameson v. Desta, case no. D066793 (4th Dist. Oct. 20, 2015) is a grim reminder of the impact made by the court’s budget crisis, which resulted in the loss of many court-employed court reporters, requiring that parties provide their own court reporters for trial at their expense. The trial in this case went unreported, and that was enough to keep the plaintiff from prevailing on appeal. But before I get to how that came about, let me briefly describe the history of the case, for it makes the result all that much more heartbreaking for the plaintiff.

Plaintiff sued a prison doctor for malpractice. The doctor obtained a judgment on procedural grounds, plaintiff appealed, and got the judgment reversed. The doctor obtained a second judgment on procedural grounds, and again, plaintiff got the judgment reversed on appeal. The doctor then obtained judgment for the third time, this time by prevailing on a summary judgment motion, and again, plaintiff got the judgment reversed on appeal.

By now, plaintiff has been litigating for a decade, and the really amazing thing is that he has done it while incarcerated and without an attorney.* Surely, that perseverance would be rewarded by a payoff at the end of this long, winding road?

Unfortunately for the plaintiff, no. After remand from the third appeal, the case went to trial before a jury, but without any court reporter. The doctor made an oral motion for nonsuit at the end of plaintiff’s opening statement, the court granted the motion, and plaintiff appealed from the resulting judgment. The fourth appeal proves to be the charm for the doctor, because plaintiff’s challenges fall short, and the judgment for the doctor is affirmed.

Plaintiff made multiple challenges to the judgment on appeal, but two of them are directly related to the transcript. First, he contended that the trial court erred in failing to provide a court reporter, suggesting that the court gave him inadequate notice that an official court reporter would not be available and that the court should have provided a reporter because plaintiff had obtained an order waiving court fees. But he received notice about the reporter 10 days before trial, which the court found adequate. And, while Government Code section 68086, subdivision (b) indeed provides that the official court reporter fees are waived, the Court of Appeal held that section “does not mandate that a trial court provide indigent litigants with court reporter services where no official court reporter is provided by the court, as was true in this case.” Further, the trial court’s local rules specified that even parties with fee waivers are responsible for the costs of providing a reporter where no official reporter is provided.

Second, plaintiff argued that the trial court erred in granting the motion for nonsuit. Here, the absence of a court reporter’s transcript was fatal. Because the absence of a reporter’s transcript precludes an appellant from raising “evidentiary issues” on appeal, and a motion for nonsuit following the opening statement requires the trial court to “review the evidence to be presented at trial,” plaintiff could not demonstrate any error, even though the court’s minute order was fairly detailed.

The court was not unsympathetic to the difficulties faced by an incarcerated and indigent litigant, but the rules won out:

This court is fully aware that [plaintiff’s] incarceration and his financial circumstances have made it difficult for him to pursue his claims in court. This case aptly demonstrates that civil justice is not free. While this court is sympathetic to the plight of litigants like [plaintiff] whose incarceration and/or financial circumstances present such challenges, the rules of appellate procedure and substantive law mandate that we affirm the judgment in this case.

(Footnotes omitted.)

Of course, it’s possible the plaintiff would have lost his appeal even if he had a reporter’s transcript. But he’ll never know.

* Actually, it’s not clear from the opinion whether the plaintiff was incarcerated the entire time, but it appears he was incarcerated for at least part of the litigation.

UPDATE (4/13/2016): I missed this when it happened, but the Supreme Court has granted review in this case. The issue presented focuses on an issue I did not concentrate on in my post. Plaintiff had been granted a waiver of court fees, yet was eventually penalized for failing to pay to have a reporter record the proceedings. The issue presented, as stated in the Supreme Court’s website, is:

In the case of a litigant who has been granted a fee waiver (Gov. Code, § 68631), can a county’s superior court employ a policy that has the practical effect of denying the services of an official court reporter to civil litigants who have been granted such a fee waiver, if the result is to preclude those litigants from procuring and providing a verbatim transcript for appellate review?.