Filed 6/15/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
JAIMIE DAVIS, B300685
Petitioner, (Super. Ct. No. BS136533)
v.
THE SUPERIOR COURT OF
LOS ANGELES COUNTY,
Respondent.
CURTIS J. SATHRE, III,
Real Party in Interest.
ORIGINAL PROCEEDINGS IN MANDATE. Edward B.
Moreton, Judge. Petition granted.
Jaimie Davis, in pro. per., for Petitioner.
No appearance for Respondent.
Reif Law Group, Brandon S. Reif, and Marc S. Ehrlich for
Real Party in Interest Curtis J. Sathre, III.
INTRODUCTION
Curtis J. Sathre III obtained an arbitration award against
Jaimie Davis, an indigent, self-represented litigant. Seeking to
enforce his resulting money judgment against Davis, Sathre filed
an application to take her judgment debtor examination. Davis
filed ex parte applications and a motion to quash the order
requiring her to appear for the judgment debtor examination.
The superior court denied Davis’s attempts to quash the order,
but did not honor Davis’s timely request for a court reporter and
did not allow Davis to appear at hearings telephonically. When
Davis failed to appear for her judgment debtor examination, the
court issued a bench warrant for her arrest. Davis filed a petition
for writ of mandate, contending the superior court erred in
refusing to honor her request for a court reporter, in prohibiting
her from appearing telephonically at court hearings, and in
issuing the bench warrant.
Supreme Court precedent and the California Rules of Court
require trial courts to protect the right to appellate review by
ensuring there is a complete record of the proceedings, and they
encourage trial courts to allow all litigants, including those
representing themselves, to participate in court proceedings
telephonically. Because the superior court’s actions were
inconsistent with these principles of California law, we grant
Davis’s petition and direct the superior court to allow Davis to
have a court reporter at the hearings on her motions and to
appear at those hearings telephonically.
2
FACTUAL AND PROCEDURAL BACKGROUND
A. Davis Commences an Arbitration; Sathre Prevails
and Obtains an Award of Costs and Fees
In 2011 Davis filed a demand for arbitration against
Sathre, John Evan Schooler, and WFP Securities, Inc. She lost,
and the arbitrator ordered Davis to pay Sathre, Schooler, and
WFP Securities $135,755.89 in costs and expert witness fees and
$21,000 in arbitration fees. The trial court confirmed the
arbitration award, Davis appealed, and in 2014 we affirmed.
(WFP Securities, Inc. v. Davis (Apr. 15, 2014, B244528)
[nonpub. opn.].) 1
B. Sathre Attempts To Collect His Arbitration Costs and
Fees and Take Davis’s Judgment Debtor Examination
On February 8, 2019 Sathre filed an application for an
order requiring Davis to appear for a judgment debtor
examination, setting the examination for May 6, 2019 in
Department 44 of the Los Angeles County Superior Court. The
court granted the application the same day. On February 27,
2019 Sathre filed a proof of service stating Davis had been
personally served with the application and order.
On April 29, 2019 Davis substituted herself for her
attorney of record. The court granted her request for a court fee
waiver, which included a waiver of court reporters’ fees.
According to Davis’s petition, on April 30, 2019 she spoke
with the courtroom clerk in Department 44, who informed Davis
1 John Schooler and WFP Securities, Inc. have since assigned
their interests in the judgment to Sathre.
3
that “she need not appear” for ex parte applications “because only
counsel was required to appear not pro pers,” that the court did
not allow telephonic appearances for ex parte matters, and that
the court ruled on ex parte applications in chambers without oral
argument. The rules in Department 44 for ex parte applications
stated at the time (and still state) that “[c]ounsel are required to
be in the department between 8:30 and 8:45 a.m., with the ex
parte filing fee ($60.00) already paid,” that “[a]ll ex parte
applications shall be reviewed in chambers,” and that “[n]ormally
no oral argument will be heard.” (Super. Ct. L.A. County,
Courtroom Information, Stanley Mosk Courthouse, Dept. 44,
[as of June 9, 2020], archived at .)
C. Davis Files Motions and Ex Parte Applications To
Prevent Her Judgment Debtor Examination
On May 3, 2019 Davis filed an ex parte application to
quash the order for her judgment debtor examination or, in the
alternative, for a continuance. Davis argued the order violated
Code of Civil Procedure section 708.160, subdivision (b), because
she lived in Las Vegas, Nevada, which is more than 150 miles
from the courthouse set for the examination, and she did not
have a place of business in Los Angeles County. Davis attached
her driver’s license, a voter registration card, and a bank
statement, all of which showed her Nevada residence. Because
the courtroom was dark on May 3, Davis’s ex parte application
was transferred to the supervising judge of the civil division, who
took the ex parte application off calendar because Davis did not
appear.
4
Davis states in her petition that three days later, on May 6,
2019, the date set for her judgment debtor examination, Davis
spoke with the courtroom clerk in Department 44, who told her
that she should re-file her ex parte application by 10:00 a.m. and
that the judge would hear it the following morning. When Davis
did not appear on May 6, 2019, the court issued a bench warrant
and held it until June 10, 2019.
On May 7, 2019 the court considered Davis’s ex parte
application to quash the order to appear for her judgment debtor
examination or, in the alternative, for a continuance. Davis
states in her petition that she did not appear in person because
she lives out of state and could not afford to travel to Los Angeles
and that she did not appear telephonically because the court did
not allow telephonic appearances for ex parte applications. The
court, “[a]fter an in-chambers review,” denied the application
because Davis was “not present.” When Davis called later that
day and learned of the court’s ruling, the courtroom clerk
explained that “the court rules require attendance for ex parte’s
even for” a self-represented litigant and that Davis “should try to
get a special appearance lawyer as that is what lawyers do when
they cannot attend.”
On May 16, 2019 Davis filed a regularly noticed motion to
quash the order for her judgment debtor examination, again
arguing she lived more than 150 miles from the courthouse in Los
Angeles, and for relief under Code of Civil Procedure section 473,
subdivision (b). Davis set the hearing on the motion for June 18,
2019. On May 21, 2019 Davis filed a request for a court reporter
and a notice of intent to appear by telephone.
On June 10, 2019, eight days before the hearing on Davis’s
motion to quash, the superior court held a hearing on Davis’s
5
failure to appear for her judgment debtor examination. The
superior court found that Davis had been properly served and
that she failed to appear. The superior court released the bench
warrant and set bail at $5,000.
On June 17, 2019, the day before the hearing on her motion
to quash, Davis received a cancellation notice from the company
that facilitated telephonic appearances for the court. The notice
stated: “Personal appearance required per Court Clerk.”
On June 18, 2019 the court heard Davis’s motion to quash
and for relief under Code of Civil Procedure section 473,
subdivision (b). Davis did not appear, and there was no court
reporter. The court observed that it had previously ordered
Davis could “not appear by telephone,” that Davis did not appear
at the hearing, and that there was a warrant for her arrest. The
court denied Davis’s motion, ruling that the motion was moot and
an improper motion for reconsideration under Code of Civil
Procedure section 1008 and that Davis was not entitled to relief
under Code of Civil Procedure section 473, subdivision (b).
D. Davis Files More Motions and Ex Parte Applications
To Prevent Her Judgment Debtor Examination
Between July 1, 2019 and July 30, 2019 Davis filed three
notices of appeal from, respectively, the superior court’s May 7,
June 10, and June 18, 2019 orders. On July 30, 2019 Davis filed
a motion in the superior court to stay the proceedings and to
recall and quash the bench warrant, setting the hearing for
August 23, 2019. Davis requested a court reporter for the
hearing.
On August 23, 2019 the court heard Davis’s motion to stay
the proceedings and to quash and recall the bench warrant. A
6
limited scope attorney, Justin Wilmers, represented Davis at the
hearing, and a court reporter was present. The superior court
continued the hearing to September 9, 2019 because it wanted
supplemental briefing on the status of Davis’s pending appeals.
The superior court granted Wilmers’s request to allow Davis to
appear telephonically at the September 9 hearing on the motion.
On August 27, 2019 Davis filed a request for a court
reporter for the September 9, 2019 hearing. On September 3,
2019 the parties filed their supplemental briefs on the status of
the appeals and their effect on Davis’s motion to stay. On
September 4, 2019 Davis filed an ex parte application to strike
certain portions of Sathre’s supplemental brief. Davis states she
tried to appear by telephone at the ex parte proceeding, but the
courtroom clerk told her the court would not allow it. The court
took her ex parte application off calendar.
On September 6, 2019 Davis re-filed her ex parte
application to strike. She also filed an ex parte application to
stay the proceedings, quash the order for her judgment debtor
examination, and recall the bench warrant pending a ruling on a
motion she filed to compel arbitration of Sathre’s efforts to
enforce the judgment. She noticed the hearings on the ex parte
application for September 9, 2019, at 8:30 a.m., pursuant to the
rules of Department 44.
Davis attempted to appear by telephone for the ex parte
hearings, but the courtroom clerk did not give her permission.
Although the court had given Davis permission to appear
telephonically at the continued hearing on her motion to stay and
quash the bench warrant, which was scheduled to be heard at
9:30 a.m. on September 9, 2019, she had been told she was not
allowed to appear at the ex parte hearings, which were scheduled
7
to be heard at 8:30 a.m. Recognizing that the matters set at 8:30
a.m. were relevant (“critical,” in Davis’s view) to the matters set
at 9:30 a.m., Davis “had to again scrape for funds” to hire
Wilmers to appear on her behalf on September 9.
The superior court heard Davis’s motion to quash and her
two ex parte applications on September 9, 2019, at 9:30 a.m.
There was no court reporter. Wilmers raised the issue that there
was no court reporter, but according to Wilmers “no comment was
made and the judge continued to proceed with the merits of the
motion without a court reporter.” The court denied Davis’s
motion to quash and her ex parte applications.
E. Davis Files a Petition for Writ of Mandate
On September 16, 2019 Davis filed a petition for writ of
mandate, challenging the court’s May 7, 2019, June 10, 2019,
June 18, 2019, and September 9, 2019 orders. On November 6,
2019, having previously stayed execution of the bench warrant,
we issued an order to show cause why the superior court should
not vacate its May 7, 2019, June 10, 2019, June 18, 2019 and
September 9, 2019 orders and hold a new hearing on the merits
of Davis’s motion to quash, allowing Davis to appear
telephonically and have a court reporter present to transcribe the
proceedings. Sathre filed a return, opposing Davis’s request for
relief.
8
DISCUSSION
A. Davis’s Petition Is Timely
Sathre argues we should deny Davis’s petition without
reaching the merits because Davis, who filed her petition on
September 16, 2019, did not seek timely writ review of the
superior court’s first three orders, namely, the May 7, 2019, June
10, 2019, and June 18, 2019 orders. Sathre contends that,
because Davis waited more than 60 days to file a petition
challenging these orders, her petition is untimely and barred by
laches.
As a general rule, a petition for writ of mandate should be
filed within the 60-day period applicable to appeals. (Citizens for
Open Government v. City of Lodi (2012)
205 Cal.App.4th 296, 310;
Volkswagen of America, Inc. v. Superior Court (2001)
94
Cal.App.4th 695, 701; Cal. Rules of Court, rule 8.406(a)(1).) 2 The
60-day period for writ petitions, however, is not jurisdictional.
(See Nixon Peabody LLP v. Superior Court (2014)
230
Cal.App.4th 818, 821 [the 60-day rule “is not jurisdictional; an
appellate court may consider a writ petition at any time despite
the 60-day rule if it considers the circumstances extraordinary”
and the petitioner seeks relief diligently]; Popelka, Allard,
McCowan & Jones v. Superior Court (1980)
107 Cal.App.3d 496,
499 [“An appellate court may consider a petition for an
extraordinary writ at any time [citation], but has discretion to
deny a petition filed after the 60-day period applicable to appeals,
and should do so absent ‘extraordinary circumstances’ justifying
the delay.”].)
2 Undesignated citations to rules are to the California Rules
of Court.
9
Davis’s petition is timely enough. Davis’s challenge to the
court’s September 9, 2019 order, which denied her noticed motion
to quash the order for her judgment debtor examination and her
ex parte applications seeking similar relief and to recall the
bench warrant, is admittedly timely. Indeed, Davis filed her
petition for writ of mandate on September 16, 2019, a week after
the September 9, 2019 order. Because Davis diligently sought
review of the superior court’s September 9, 2019 orders denying
her motion to quash and related ex parte applications, and the
September 9, 2019 orders involve the same issues as those
involved in the previous orders—i.e., Davis’s efforts to quash the
order for her judgment debtor examination and to recall the
warrant for her arrest for failing to appear at the examination—
it is appropriate to consider the petition’s challenge to all four
orders. (See Volkswagen of America, Inc. v. Superior Court,
supra, 94 Cal.App.4th at p. 701 [considering a petition for writ of
mandate challenging several orders, including orders entered
more than 60 days before the petition was filed, because the
issues relating to the orders were “essentially identical” and “it
would serve little purpose to review the court’s ruling as to some
of them but not others”].) In addition, Davis’s petition raises
important access-to-justice issues concerning indigent, self-
represented litigants’ ability to appear at and participate in court
proceedings when they may live far from the court and their
ability to seek appellate review with an adequate record of trial
court proceedings.
B. The Superior Court Erred in Failing To Provide a
Court Reporter for the September 9, 2019 Hearing
10
“California courts, pursuant to the principles of the in
forma pauperis doctrine, have the inherent discretion to facilitate
an indigent civil litigant’s equal access to the judicial
process . . . .” (Jameson v. Desta (2018)
5 Cal.5th 594, 605
(Jameson).) “Judicial authority to facilitate meaningful access to
indigent litigants extends as well to . . . devising alternative
procedures (e.g., additional methods of service or meaningful
access) so that indigent litigants are not, as a practical matter,
denied their day in court.” (Ibid.)
On the issue of court reporters, the Supreme Court held in
Jameson that, for litigants who qualify for and have obtained a
fee waiver, 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.” (Jameson, supra, 5 Cal.5th at p. 599; see Gov. Code,
§ 68086, subd. (b) [court reporter fees are waived for a person
who has received a fee waiver]; rule 2.956(c)(2) [a party who has
received a fee waiver may request an official court reporter].)
The Supreme Court recognized the importance of a reporter’s
transcript to an indigent litigant’s ability to meaningfully
exercise his or her right to seek appellate review. (Jameson, at
pp. 608-610.) The Supreme Court stated that “the absence of a
court reporter at trial court proceedings and the resulting lack of
a verbatim record of such proceedings will frequently be fatal to a
litigant’s ability to have his or her claims of trial court error
resolved on the merits by an appellate court.” (Id. at p. 608.)
Here, the superior court granted Davis’s request for a fee
waiver, and Davis timely requested a court reporter for the
September 9, 2019 hearing. And yet there was no court reporter
present at the hearing. Davis’s limited scope attorney even
11
raised the issue, but the court still held the hearing without a
court reporter. Davis is entitled to a new hearing, with a court
reporter present, on her motion and ex parte applications to
quash the order for her judgment debtor examination and to stay
the proceedings.
C. The Superior Court Erred in Limiting Davis’s
Ability To Appear Telephonically
California encourages telephonic appearances in civil cases
as a way of improving access to the courts and reducing litigation
costs. (Rule 3.670(a) & (f)(1); see Super. Ct. L.A. County, Local
Rules, rule 3.6(a) [requiring compliance with the California Rules
of Court governing telephonic appearances].) Rule 3.670(c)
generally authorizes parties to appear by telephone, but to do so
a party must, at least two court days before the hearing, notify
the superior court and all other parties that the party intends to
appear telephonically. (Rule 3.670(h)(1)(B).) The California
Rules of Court further provide that, “[a]fter a party has requested
a telephone appearance under (h), if the court requires the
personal appearance of the party, the court must give reasonable
notice to all parties before the hearing and may continue the
hearing if necessary to accommodate the personal appearance.”
(Rule 3.670(i).)
Parties seeking ex parte orders may appear telephonically
“provided that the moving papers have been filed and a proposed
order submitted by at least 10:00 a.m. two court days before the
ex parte appearance and, if required by local rule, copies have
been provided directly to the department in which the matter is
to be considered.” (Rule 3.670(d)(1).) Los Angeles Superior Court
Local Rules, rule 3.6(d) requires a party seeking ex parte relief to
12
deliver copies of the moving papers and proposed order directly to
the department hearing the matter. 3
Personal appearances are required for certain matters,
such as “[t]rials, hearings, and proceedings at which witnesses
are expected to testify . . . .” (Rule 3.670(e)(1)(A).) The court,
however, has discretion to permit a telephonic appearance in lieu
of a personal appearance. (Rule 3.670(f)(3).) Conversely, the
court may require a personal appearance if the court determines
“on a hearing-by-hearing basis that a personal appearance would
materially assist in the determination of the proceedings . . . .” 4
(Rule 3.670(f)(2).)
3 In response to the COVID-19 pandemic, courts have
liberalized the use of remote appearances in civil matters.
Regarding ex parte proceedings, General Order 012 of the
Presiding Judge of the Superior Court of the State of California
for the County of Los Angeles states: “From May 13, 2020 to
June 10, 2020, all parties may appear telephonically in Civil ex
parte matters.” (Super. Ct. L.A. County, Gen. Order No. 2020-
GEN-012-00 (May 13, 2020), [as of
June 8, 2020], archived at .)
4 Emergency Rules, rule 3, of the Amendments to the
California Rules of Court related to the COVID-19 pandemic
provides courts with the latitude to “require judicial proceedings
and court operations be conducted remotely,” including by “the
use of video, audio, and telephonic means for remote
appearance . . . .” (Amendments to the Cal. Rules of Court,
Emergency Rules, rule 3(a)(1) & (a)(3), adopted by the Judicial
Council of Cal., eff. Apr. 6, 2020, [as of June
13
The superior court here violated these rules by prohibiting
Davis from appearing telephonically. For example, on May 7,
2019 the court denied Davis’s ex parte application to quash the
order requiring her to appear for her judgment debtor
examination because Davis did not appear. But Davis tried to
appear telephonically and was told the rules in Department 44
required her to appear in person. The court then denied Davis’s
ex parte application because she was not present, even though,
under the court’s rules, there was, in all likelihood, no reason for
her to appear in person because the court’s policy was to rule on
all ex parte applications in chambers and without allowing
anyone to be heard. The court also precluded Davis from
appearing telephonically at the June 18, 2019 hearing on her
noticed motion to quash because she had failed to appear at the
very judgment debtor examination her motion sought to quash.
It is true, as Sathre points out, Davis technically
“appeared” at the August 23, 2019 and September 9, 2019
hearings through a limited scope attorney. Davis was entitled,
however, to argue to the court directly, rather than through a
limited scope attorney, that she was not properly served and that
the judgment debtor examination should not proceed as ordered.
Although the court allowed Davis to appear telephonically at the
September 9 hearing on her motion to recall the bench warrant,
the court had also told her she could not appear telephonically for
ex parte matters, which were scheduled to be heard at a different
8, 2020], archived at .)
Emergency Rule, rule 3(b) states it will be in effect until 90 days
after the Governor declares the state of emergency related to the
COVID-19 pandemic is lifted or until the rule is amended or
repealed by the Judicial Council.
14
time that day (although the court ultimately heard them at the
same time). Faced with having the court deny her ex parte
applications again for failing to appear, Davis had to retain a
limited scope attorney—one she did not want and could not
afford—to represent her. Davis is entitled to a new hearing, with
a court reporter, where she can appear by telephone.
D. The Superior Court Must Recall and Quash the
Bench Warrant
Davis did not appear—in person or by telephone—at her
June 10, 2019 judgment debtor examination. Davis states in her
petition that on June 6, 2019 the courtroom clerk advised Davis
she could not appear telephonically on June 10, 2019 and that
Davis told the clerk she could not appear personally because it
was too far and too expensive for her to travel to court. When
Davis failed to appear, the court issued a bench warrant for her
arrest and prohibited her from appearing telephonically at the
June 18, 2019 hearing on her motion to quash. (See Code Civ.
Proc., § 708.170, subd. (a)(1)(B) [court may issue a warrant for
the arrest of a person who fails to appear as required by the court
order]; rules 3.670(e)(1)(A), 3.670(f)(3).)
Because the court issued the bench warrant before Davis
had the opportunity to argue her motion to quash, and because
we are remanding for a new hearing, we vacate the court’s June
10, 2019 order and direct the superior court to recall and quash
the bench warrant. Of course, if after the new hearing the court
denies Davis’s motion to quash, the court can order a new date
for Davis’s judgment debtor examination and, if Davis fails to
appear, the court will have discretion to use any lawful measures
and incentives to compel compliance with its orders.
15
DISPOSITION
Let a peremptory writ of mandate issue directing the
superior court to vacate its May 7, 2019, June 10, 2019, June 18,
2019, and September 9, 2019 orders. The superior court is
directed to hold a new hearing on Davis’s motion to quash the
order for her judgment debtor examination and for relief under
Code of Civil Procedure section 473, subdivision (b), and her ex
parte applications. The superior court is also directed to recall
and quash the bench warrant issued for Davis’s arrest. Sathre’s
request for judicial notice and Davis’s request to strike Sathre’s
return are denied. Finally, pursuant to Code of Civil Procedure
section 170.1, subdivision (c), in the interests of justice all further
proceedings shall be heard before a trial judge other than the
judge whose orders are affected by this decision. Davis is to
recover her costs in this original proceeding.
SEGAL, J.
We concur:
PERLUSS, P. J. FEUER, J.
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