Dogan v. Comanche Hills Apartments ( 2019 )

Filed 1/22/19
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
ELENA DOGAN, D072328
Plaintiff and Appellant,
v. (Super. Ct. No.
37-2015-00007705-CU-PO-CTL)
COMANCHE HILLS APARTMENTS, INC.
et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Diego County,
Judith F. Hayes, Judge. Reversed.
Elena Dogan, in pro. per., for Plaintiff and Appellant.
Law Offices of Roxanne Huddleston, Roxanne Huddleston; Hartsuyker Stratman
& Williams-Abrego and Danny Grant for Defendants and Respondents.
In this personal injury/premises liability action, self-represented plaintiff Elena
Dogan appeals after the trial court granted a motion for nonsuit brought by her landlord,
defendant Comanche Hills Apartments, Inc., and related individuals and entities at the
close of her case. At an earlier stage of the litigation, Dogan's request for a fee waiver
had been granted by the San Diego Superior Court on grounds of indigency. But based
on then-existing court policy, Dogan's subsequent request for a waiver of court reporter
fees had been denied. As a result, there was no court reporter at trial and no reporter's
transcript on appeal. Dogan seeks to challenge the trial court's decision to grant a nonsuit
in defendants' favor. Their principal argument in response asserts that Dogan cannot
establish error due to the absence of a reporter's transcript.
After initial briefing in this case was complete, the California Supreme Court
issued its decision in Jameson v. Desta (2018) 5 Cal.5th 594 (Jameson), holding that the
San Diego Superior Court's policy on providing court reporters "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." (Id. at p. 599.) As
defendants appropriately concede in their post-Jameson supplemental brief, Jameson
applies retroactively to all cases, including this one, not yet final on appeal. Because
there is no way to now provide a reporter for a trial that has already occurred, we have no
choice but to reverse and remand for a new trial at which an official court reporter will be
furnished.
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FACTUAL AND PROCEDURAL BACKGROUND
Given the procedural posture of the case, an abbreviated summary of the facts will
suffice. In 2015, Dogan was a resident of the Comanche Hills Apartments, owned by
defendants Warren Beecroft and Beecroft Properties LLC. Defendants Janet Horn and
Lisa Pryor were the regional director and regional manager, respectively, of Comanche
Hills Apartments, Inc. and Beecroft Properties LLC. Dogan alleged she was injured
when some concrete stairs at the apartment complex broke under her foot, causing her to
fall. She claimed defendants were responsible for her injuries based on their control of
the premises. Shortly after the filing of her initial complaint, the superior court granted
Dogan a fee waiver.
The case ultimately went to trial on a negligence theory. Several months before
trial, Dogan filed a request to waive additional court fees and specifically asked for a
waiver of court reporter fees. The request was denied with the stamped notation, "The
Court does not provide Court Reporter Services."
The court's minutes reflect that the jury trial began on Thursday, December 8,
2016. The presentation of evidence continued on Monday, December 12 and Tuesday,
December 13. When Dogan finished her case on Tuesday morning, defendants moved
for nonsuit (mistakenly referred to as "directed verdict"), which the court granted. (See
Code Civ. Proc., § 581c, subd. (a).) It concluded that Dogan "presented no evidence that
the landlord knew or had any reason to know of any problem with the cement steps."
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The court added that "[o]n several occasions in her testimony [Dogan] described the
problem with the step riser as 'invisible' prior to her fall."
Following the entry of judgment, Dogan filed a notice of appeal. Her opening
brief attempted to offer a recitation of the facts presented at trial, much of which (not
surprisingly) is unsupported by any citations to the record. Defendants' first argument,
predictably, was titled, "None of Plaintiff's Challenges To The Directed Verdict Can Be
Reviewed In The Absence Of A Reporter's Transcript." Dogan responded to this
argument on the first page of her reply brief: "The Pro-Per Appellant is a disabled,
indigent person . . . who was approved for the court fee waiver at the beginning of this
litigation. She applied for a fee waiver covering the 'court reporting' of the jury trial, but
the Court denied her request. Due to her extremely disadvantaged financial status,
known to the Court and respondents, Appellant was forced to proceed with 'clerk's
transcript' on Appeal."
DISCUSSION
In Jameson, the Supreme Court recently considered the validity of the San Diego
Superior Court's "general policy of not providing official court reporters in most civil
trials while permitting privately retained court reporters for parties who can afford to pay
for such reporters" as applied to in forma pauperis litigants who qualified for a general
fee waiver. (5 Cal.5th at p. 599; see also id. at p. 611.) The same policy is at issue in this
case, and the facts of the two cases are quite similar. Jameson, like Dogan, obtained a
standard initial fee waiver based on indigency. (Id. at p. 600; see Gov. Code, § 68631 et
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seq.)1 And although section 68086, subdivision (b) provides that the court reporter's fee
"shall be waived for a person who has been granted a[n initial] fee waiver under Section
68631," the superior court informed Jameson (as it informed Dogan) that it did not
" 'provide[] a court reporter for civil trials, and that parties have to provide their own
reporters for trial.' " (Jameson, supra, 5 Cal.5th at p. 600.) After the trial court granted a
motion for nonsuit following his opening statement, Jameson appealed without the
benefit of a reporter's transcript. (Id. at pp. 601–602.)
The Supreme Court in Jameson surveyed the significant common law history in
California allowing qualified litigants to appear in forma pauperis, and it reviewed the
public policy of the state as expressed in various statutory enactments. (5 Cal.5th at
pp. 603−608.) Recognizing the crucial importance of a reporter's transcript in
meaningfully exercising the right to appeal (id. at pp. 608−610), Jameson concluded that
the San Diego court's policy of not providing an official court reporter in most civil
cases—leaving it to the parties to employ a private reporter only if they could afford
one—was invalid because it denied indigent litigants equal access to the courts. (Id. at
pp. 622−623.) The Chief Justice's opinion explained that if a local court adopts a policy
of not providing official court reporters in civil cases, it must include "an exception for
fee waiver recipients that assures such litigants the availability of a verbatim record of the
trial court proceedings, which under current statutes would require the presence of an
official court reporter." (Id. at p. 623.)
1 All statutory references are to the Government Code.
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Acknowledging the general rule that judicial decisions apply retroactively to all
cases not final on appeal (e.g., Newman v. Emerson Radio Corp. (1989) 48 Cal.3d 973,
978–979), defendants concede that Jameson now supplies the governing standard.
Indeed, the relevant circumstances in the two cases are indistinguishable. Both plaintiffs
were granted initial fee waivers. Both were entitled by statute to a waiver of court
reporter fees. The only reason a court reporter was not present to record each trial was
the San Diego court policy of not providing official court reporters in most civil cases.
The exception required by Jameson would have afforded Dogan a court reporter at no
charge.
Defendants attempt to suggest that despite the absence of a court reporter, the error
in failing to provide one is harmless and reversal is not required because the record
affirmatively demonstrates Dogan could not meet her burden of proof. (See generally
Jameson, supra, 5 Cal.5th at pp. 623–625.) They rely on the trial court's minute order,
which referred to "several occasions" in Dogan's testimony when she "described the
problem with the step riser as 'invisible' prior to her fall." Defendants argue this was an
admission by Dogan that is fatal to her case. For her part, Dogan denies ever making
such a statement.
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
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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.
DISPOSITION
Because the trial court erred in failing to make an official court reporter available
for trial on Dogan's request, and to waive the fee for that reporter, the judgment is
reversed. The matter remanded for a new trial at which an official court reporter shall be
provided at no charge. Dogan is entitled to recover costs on appeal.
DATO, J.
WE CONCUR:
HALLER, Acting P.J.
GUERRERO, J.
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