Client Alert: Absence of a Court Reporter at a Civil Motion Hearing May Preclude Appellate Review

A California Court of Appeal expressed its concern over the due process implications of reviewing a trial court’s decision that incorporated reasons that were not documented due to the absence of a court reporter. In Maxwell v. Dolezal (No. B254893, filed 11/4/14), the court cautioned that although the lack of a transcript did not preclude its review of an order sustaining a demurrer, the case was an exception because the operative complaint and demurrer were sufficient to permit effective appellate review.

The plaintiff in Maxwell, acting in pro per, had filed an action for invasion of privacy and breach of contract. The plaintiff alleged that the defendant had used his photograph and website without his consent and that he did not receive the money, food and housing in exchange for the intellectual property rights per their agreement. The defendant demurred on the grounds that the complaint was uncertain and it could not be ascertained from the pleading whether the contract was written, oral, or implied. At the hearing on the demurrer, no court reporter was present. Nonetheless, the trial court’s minute order explicitly sustained the demurrer “[f]or the reasons stated in open court,” without further elaborating. The trial court also denied the plaintiff further leave to amend on the ground that he was unable to articulate in open court a reasonable basis for any additional allegations that would remedy the deficiencies. The court of appeal noted that it was “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.”

Maxwell is not the first California decision where a reviewing court had to determine whether the lack of a hearing transcript prevented review. In Chodos v. Cole (2012) 210 Cal.App.4th 692, the court held that the plaintiff-appellant did not need to supply a transcript of the subject motion hearing. In his dissent, Justice Paul Turner disagreed, noting that there was no agreement between the parties as to what occurred at the hearing: “[w]e have no idea as to whether evidentiary issues arose or there were concessions by either side.”

The Maxwell and Chodos decisions bring to the forefront the legal ramifications of the deep funding cuts that have affected California courts. With the persistence of California’s budget crisis and reduction of trial court funding, most civil courts have terminated their court reporting service to achieve cost reductions. Ironically, the elimination of reporting in court proceedings may increase the workload of the trial courts because without an official record, the trial court may be required to produce a settled statement, a time consuming and imprecise process. Additionally, from an individual litigant perspective, the elimination of reporting has simply shifted the cost to the parties and their counsel, who have resorted to bringing their own reporters in order to obtain a record of the proceedings. For example, in the Los Angeles Superior Court a Stipulation and Order to Use Certified Shorthand Reporter must be executed in advance of the hearing. The appointment of the reporter is pursuant to the Government Code and the California Rules of Court in addition to the stipulation of the parties.

Indeed, Maxwell highlights the importance for counsel to obtain client approval for the additional expense of court reporting at motion hearings. Many appellate courts have refused to reach the merits of an appellant’s claim because no reporter’s transcripts or suitable substitute was provided. Thus, the burden of securing a reporter’s transcript is de minimus, especially considering the importance of having an adequate record. Although the Maxwell and Chodos courts had sufficient records without the hearing testimony, reliance upon courts to issue comprehensive orders or rulings is not recommended, and counsel should work with clients to reach an agreement on the use of retained reporting services.

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