Date: 07-06-2018

Case Style:

Case Number: S230899

Judge: Cantil-Sakauye, C.J.

Court: The Supreme Court of California

Plaintiff's Attorney: Barry S. Jameson, Pro Per

Defendant's Attorney: James J. Wallace, Russell MacArthur Mortyn, David J. Ozeran, Kenneth R. Pedroza, Joshua Curt Traver and Cassidy Cole Davenport

Description: Under California’s in forma pauperis doctrine and Government Code
section 68086, subdivision (b),1 a person who because of limited financial
resources qualifies for a waiver of initial court filing fees is entitled, as well, to a
waiver of fees for the attendance of an official court reporter at a hearing or trial.
In this case, however, although plaintiff Barry Jameson (hereafter plaintiff) was
entitled to a waiver of official court reporter attendance fees, plaintiff was not
provided the opportunity to have a court reporter at his civil trial because the San
Diego Superior Court, in response to a significant reduction of its judicial budget,
had adopted a policy under which the court did not make official court reporters
available at most civil trials even for persons who qualified for a fee waiver.

1 Unless otherwise specified, statutory references are to the Government
Code. For convenience, section 68086, subdivision (b) shall hereafter be referred
to as section 68086(b).
2
Instead, the applicable superior court policy provided that a court reporter would
be present in civil actions to record the trial proceedings only if a private court
reporter was hired and paid for by a party or the parties to the litigation.2
In the present case, plaintiff could not afford to pay for a private court
reporter and defendant Taddese Desta chose not to hire or pay for a private court
reporter. The trial court entered a nonsuit against the plaintiff after plaintiff’s
opening statement to the jury and plaintiff appealed from the judgment. Because
no court reporter was present at plaintiff’s trial, no reporter’s transcript of the trial

2 A number of other states have addressed the significant financial cost
associated with the use of court reporters by authorizing courts to utilize electronic
recording as a means of generating an officially recognized verbatim record of
trial court proceedings that can be relied upon on appeal. (See Nat. Center for
State Courts, Making the Record: Utilizing Digital Electronic Recording (Sept.
2013) pp. 7-8 [listing states].) In California, however, current legislation restricts
the use of electronic recording to generate an official certified verbatim record of
trial court proceedings, as an alternative to a court reporter, to limited civil actions
(those involving claims under $25,000 (Code Civ. Proc., § 85)) and criminal
proceedings involving misdemeanors or infractions. (See § 69957, subd. (a); see
also Code Civ. Proc. § 273, subd. (c).)
A 2017 report of the Commission on the Future of California’s Court
System (Futures Commission) contains an informative discussion of recent
technological advances in digital recording of court proceedings and of the
considerable potential benefits, both economic and otherwise, of such technology
for parties, courts, and the judicial system as a whole. (See Futures Com., Report
to the Chief Justice (2017) pp. 238-251 (2017 Futures Commission Report)
[as of
July 5, 2018].) The report specifically recommends “[i]mplementing a pilot
program to use comprehensive digital recording to create the official record for all
cases that do not currently require a record prepared by a stenographic court
reporter.” (Id. at p. 216.) In view of the restriction imposed by current legislation,
however, legislative authorization is required to proceed with this
recommendation. (Id. at p. 250.)
All internet citations in this opinion are archived by year, docket number,
and case name at .
3
was available or prepared. As a consequence, the Court of Appeal rejected
plaintiff’s appeal without reaching the merits of plaintiff’s legal challenge to the
nonsuit on the ground that plaintiff’s legal contentions could not be pursued on
appeal in the absence of a reporter’s transcript.
We granted plaintiff’s petition for review to determine the validity of the
superior court’s policy of not providing official court reporters in most civil trials
even for litigants who are entitled to a waiver of official court reporter fees and
permitting a court reporter to record court proceedings only if a private court
reporter is obtained and paid for by one or more parties to the litigation.
For the reasons discussed below, we conclude that, as applied to in forma
pauperis litigants who are entitled to a waiver of official court reporter fees, 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 is inconsistent with the general teaching
of prior California in forma pauperis judicial decisions and the public policy of
facilitating equal access to the courts embodied in section 68630, subdivision (a).
By precluding an indigent litigant from obtaining the attendance of an official
court reporter (to which the litigant would be entitled without payment of a fee),
while at the same time preserving the right of financially able litigants to obtain an
officially recognized pro tempore court reporter, the challenged court policy
creates the type of restriction of meaningful access to the civil judicial process that
the relevant California in forma pauperis precedents and legislative policy render
impermissible. Accordingly, we conclude that the court policy in question 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.
4
I. FACTS AND PROCEEDINGS BELOW
In April 2002, plaintiff filed this lawsuit against Dr. Taddese Desta
(hereafter defendant), a doctor employed by the California Department of
Corrections (now the Department of Corrections and Rehabilitation) who had
treated plaintiff while plaintiff was incarcerated at the Richard J. Donovan
Correctional Facility in San Diego County. The complaint alleged that during his
incarceration plaintiff was diagnosed with hepatitis and that in treating plaintiff for
that disease defendant negligently prescribed, and plaintiff took, the drug
interferon for a 12-month period, a course of medication that allegedly caused
plaintiff to suffer a variety of physical injuries, including irreversible damage to
his eyesight. The complaint alleged that defendant was liable for plaintiff’s
injuries under a variety of causes of action, including causes of action for
professional negligence and breach of fiduciary duty (failure to obtain plaintiff’s
informed consent).
Over the ensuing decade, on three separate occasions, the trial court entered
judgment in favor of defendant and dismissed plaintiff’s action prior to trial. Each
time the Court of Appeal reversed the trial court judgment and remanded the
matter to the trial court for further proceedings. (See Jameson v. Desta (July 2,
2007, D047824) opn. mod. July 26, 2007 [nonpub. opn.] (Jameson I); Jameson v.
Desta (2009) 179 Cal.App.4th 672 (Jameson II); Jameson v. Desta (2013) 215
Cal.App.4th 1144 (Jameson III).)3

3 In Jameson I, the Court of Appeal concluded that the trial court had erred in
dismissing the action for lack of diligent service on defendant when defendant had
earlier signed a notice and acknowledgement of service by mail.
In Jameson II, the Court of Appeal concluded that the trial court had erred
in dismissing the action on the basis of plaintiff’s failure to appear telephonically
at two court proceedings when the trial court, although aware of plaintiff’s
repeated complaints that prison personnel were not allowing him to communicate
5
After the third remand from the Court of Appeal, the trial court eventually
set the case for trial. Plaintiff is indigent, is representing himself, and qualified for
an initial fee waiver under section 68631. Section 68086 — the general provision
governing official court reporter attendance fees — provides in subdivision (b)
that “[t]he fee shall be waived for a person who has been granted a fee waiver
under Section 68631.” It is undisputed that if an official court reporter had been
made available for the trial in this matter, plaintiff would have been entitled to the
court reporter’s attendance upon request without payment of any fee.
According to the minute order of a hearing held 10 days before the jury trial
commenced, however, the trial court orally informed the parties at that hearing
that “the Court no longer provides a court reporter for civil trials, and that parties
have to provide their own reporters for trial.” There is no indication in the minute
order that the trial court, although presumably aware of plaintiff’s fee waiver
status, inquired whether plaintiff wanted to have the proceedings recorded or could
afford to pay for a private certified shorthand reporter to serve as an official pro

telephonically with the court, made no inquiry into plaintiff’s complaints and the
record did not indicate that plaintiff’s failure to appear telephonically was willful.
(Jameson II, supra, 179 Cal.App.4th at pp. 682-684.)
In Jameson III, the Court of Appeal concluded that the trial court had erred
in granting summary judgment in favor of defendant on plaintiff’s professional
negligence and breach of fiduciary duty causes of action, pointing (1) to a
declaration of a medical doctor presented by plaintiff that supported plaintiff’s
malpractice claim, and (2) to defendant’s failure to address plaintiff’s claim of
lack of informed consent. (Jameson III, supra, 215 Cal.App.4th at pp. 1164-
1174.) In addition, the Jameson III court concluded that the trial court had erred
in permitting defendant’s attorney to take a deposition of plaintiff’s medical expert
without affording plaintiff the opportunity to participate in the deposition. (Id. at
pp. 1174-1176.) The Court of Appeal concluded: “On remand, the trial court is
again directed to ensure that Jameson’s right to prosecute this action is protected.”
(Id. at 1176.)
6
tempore reporter as authorized by the governing statute and rule. (§ 68086, subd.
(d)(2); Cal. Rules of Court, rule 2.956(c).)4
Neither party provided a private certified shorthand reporter and the trial
proceeded on April 28, 2014 without a court reporter. Thus, no verbatim record of
the trial was made. According to a subsequent order filed by the court, plaintiff
appeared at trial in pro per by telephone and defendant appeared in person
accompanied by his attorney, and “a jury of twelve persons was regularly
impaneled and sworn.” The order further indicates that after the conclusion of
opening statements by both parties, two motions filed by defendant — (1) a
motion for nonsuit pursuant to Code of Civil Procedure section 581c5 and (2) a
motion to dismiss for failing to bring the action to trial within five years after
commencement under Code of Civil Procedure section 583.310 — “were heard
and argued.” The order states: “After consideration of the moving papers and after
hearing arguments by Plaintiff and defense counsel, the Court ruled as follows:
[¶] 1. After hearing Plaintiff’s opening statement, Defendant’s nonsuit is granted

4 Rule 2.956(b)(3) of the California Rules of Court provides that unless a
trial court’s policy is to have an official court reporter normally available for civil
trial in all courtrooms, “the court must require that each party file a statement
before the trial date indicating whether the party requests the presence of an
official court reporter.” The record before us does not indicate that the trial court
required each party to file such a statement before the trial in this case or
otherwise inquired whether plaintiff desired the presence of an official court
reporter.
Unless otherwise specified, further references to rules are to rules of the
California Rules of Court.
5 Code of Civil Procedure section 581c, subdivision (a) provides: “Only
after, and not before, the plaintiff has completed his or her opening statement, or
after the presentation of his or her evidence in a trial by jury, the defendant,
without waiving his or her right to offer evidence in the event the motion is not
granted, may move for a judgment of nonsuit.”
7
because Plaintiff will not be able to produce admissible expert opinion testimony
on causation and damages. [¶] 2. In the alternative, Defendant’s Motion to
Dismiss is granted because Plaintiff did not bring this action to trial within the five
years after the action commenced.” Thereafter, the trial court entered judgment in
favor of defendant.6
On appeal, the Court of Appeal affirmed the trial court judgment. The
Court of Appeal concluded that it need not determine whether the trial court
properly dismissed the action under Code of Civil Procedure section 583.310 for
failure to bring the case to trial within five years, because it concluded that in any
event the judgment must be upheld on the basis of the trial court’s grant of
defendant’s motion for nonsuit under Code of Civil Procedure section 581c. With
regard to plaintiff’s appeal of the trial court’s ruling on the motion for nonsuit
based on plaintiff’s opening statement at trial, the Court of Appeal concluded that
plaintiff is precluded from obtaining a reversal of the trial court’s nonsuit ruling
because the record on appeal does not contain a reporter’s transcript. Although the
Court of Appeal acknowledged that plaintiff had raised a number of legal
arguments in support of his contention that the trial court had erred in granting a

6 Defendant’s motion for nonsuit based on plaintiff’s opening statement was
made orally at trial. The minute order of the trial proceedings indicates that the
court’s ruling was based on its conclusion that plaintiff’s opening statement
demonstrated that plaintiff would not be able to establish the requisite causation
between the medical treatment provided by defendant and plaintiff’s alleged
damages, in part because plaintiff did not have a medical expert who would testify
at trial.
Defendant’s motion for dismissal for failure to bring the matter to trial
within five years was filed approximately a week before trial and was set forth in a
written document; the trial court initially took that motion under submission, and
ultimately ruled on that motion, along with defendant’s subsequent oral motion for
nonsuit, after the parties presented their opening statements.
8
nonsuit on the basis of plaintiff’s opening statement to the jury, the Court of
Appeal found that “none of these contentions is cognizable in the absence of a
reporter’s transcript.”
Plaintiff argued in the Court of Appeal that the absence of a reporter’s
transcript was not a proper ground for upholding the trial court judgment. Plaintiff
maintained that in view of his entitlement to a fee waiver of official court reporter
fees under section 68086(b), the trial court had erred in failing to make available
to plaintiff an official court reporter for the trial proceedings, which inevitably
precluded the preparation of a reporter’s transcript. Plaintiff argued that the
judgment should be reversed and the case remanded to the trial court for a trial at
which an official court reporter would be made available to him upon request.
The Court of Appeal rejected plaintiff’s argument, relying on a separate
subdivision of section 68086 — subdivision (d)(2) — providing that “if an official
court reporter is not available, a party may arrange for the presence of a certified
shorthand reporter to serve as an official pro tempore reporter,” with the costs of
the reporter recoverable as taxable costs by the prevailing party. The Court of
Appeal relied as well on language in a court rule stating that it is a “party’s
responsibility to pay the reporter’s fee” when an official court reporter is not
provided by the court. (Rule 2.956(c).) In addition, the Court of Appeal noted
that the local court policy that had been adopted by the San Diego Superior Court
provided explicitly that “[o]fficial court reporters are not normally available in
civil . . . matters” and that “[p]arties, including those with fee waivers, are
responsible for all fees and costs related to court reporter services” when an
official court reporter is not provided by the court. (Italics added, boldface
omitted.) (San Diego Super. Ct., Policy Regarding Normal Availability and
Unavailability of Official Court Reporters (Pol. No. SDSC ADM-317) (S.D.
9
Reporter Availability Policy) SDCOURT/GENERALINFORMATION/FORMS/ADMINFORMS/ADM317.
PDF> [as of July 5, 2018].)
The Court of Appeal concluded that under the applicable statute, rule of
court, and superior court policy, the trial court had not erred in failing to make an
official court reporter available at trial, notwithstanding the fact that plaintiff was
entitled to a fee waiver and did not have the financial ability to pay for a private
court reporter. The court ruled that section 68086(b) “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.”7
Plaintiff sought review in this court and we granted review to consider
whether the superior court’s policy of not providing an official court reporter in a
civil case even when a party to the action has qualified for a fee waiver, while
permitting a party who can afford to hire a private court reporter to do so, is
consistent with past California decisions and statutes recognizing the importance
of ensuring access to justice to all persons regardless of their economic
circumstances.

7 The Court of Appeal was not oblivious to the hardship posed by its ruling
in light of plaintiff’s indigency. The Court of Appeal noted that it was “fully
aware that Jameson’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 Jameson 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.”
10
II. IS THE SAN DIEGO SUPERIOR COURT’S POLICY
OF NOT MAKING AN OFFICIAL COURT REPORTER
AVAILABLE IN MOST CIVIL TRIALS, AND PERMITTING A PRIVATE COURT
REPORTER TO RECORD THE PROCEEDINGS ONLY IF A PARTY PAYS FOR SUCH
A REPORTER, VALID AS APPLIED TO A LITIGANT WHO IS ENTITLED TO
A FEE WAIVER OF OFFICIAL COURT REPORTER FEES?
A. Background of California Decisions Regarding In Forma Pauperis
Litigants
More than a hundred years ago, this court, in the seminal decision of
Martin v. Superior Court (1917) 176 Cal. 289 (Martin), held that under the
common law California courts have the inherent power to permit an indigent
person to litigate a civil case in forma pauperis and thereby to bring a civil action
without paying the ordinary, statutorily required filing fees. (Id. at pp. 293-296.)
In response to the suggestion that the Legislature had curtailed that power by
enacting statutory provisions generally imposing court fees covering various court
services, the court in Martin stated: “Quite aside from the question as to the power
of the [L]egislature to do this thing, it is obvious that only the plainest declaration
of legislative intent would be construed as even an effort to do this thing. We find
no expressed intent. All of the statutes dealing with the payment and prepayment
of fees . . . are general in their nature and have to do with the orderly collection
and disposition of the fees. . . . Neither individually nor collectively are they even
susceptible of the construction that the design of the [L]egislature was to deny to
the courts the exercise of their most just and most necessary inherent power. They
have applicability to all cases where the court has not, in the exercise of that
power, remitted the payment of the fees on behalf of a poor suitor, and in every
instance the court’s order to this effect is sufficient warrant to every officer
charged with the collection of fees to omit the performance of that duty in the
specified case.” (Id. at p. 297.)
11
Furthermore, the court in Martin rejected the contention that the trial
court’s refusal in that case to permit the indigent plaintiff to obtain a jury without
the payment of jury fees could be defended on the ground that the trial court’s
action did not leave the plaintiff remediless “but left open to him the trial of his
cause without a jury.” (Martin, supra, 176 Cal. at p. 297.) The court responded:
“Little need be said to show the inadequacy of such a response. Where the suitor
was allowed to prosecute in forma pauperis, all the rights which were open to him
upon the payment of fees were open to him by virtue of the order, and every
officer was required to perform his duty without the payment of fees as fully as
though the legal fees had been paid. . . . Therefore we will not say that a suitor
who . . . cannot pay court fees must be content to go to trial without a jury. The
law does not say this, and we will not read such a declaration into the law.” (Id. at
pp. 297-298.)
Following the general principles set forth in Martin, this court and the
Courts of Appeal have afforded indigent civil litigants the ability to obtain
meaningful access to the judicial process in a great variety of contexts. (See, e.g.,
Majors v. Superior Court (1919) 181 Cal. 270 [right of civil indigent litigant to
obtain jury on retrial without prepayment of jury fees]; Isrin v. Superior Court
(1965) 63 Cal.2d 153 (Isrin) [indigent civil plaintiff could not be denied in forma
pauperis status because represented by counsel on contingent fee basis]; Ferguson
v. Keays (1971) 4 Cal.3d 649 (Ferguson) [right of indigent civil litigant to file
appeal without payment of appeal fees]; Earls v. Superior Court (1971) 6 Cal.3d
109 (Earls) [indigent civil litigant may not be denied in forma pauperis status on
the ground that litigant may be able to afford fees through savings over several
months]; Conover v. Hall (1974) 11 Cal.3d 842 (Conover) [right of indigent civil
litigant to obtain injunction without providing an injunction bond]; Payne v.
Superior Court (1976) 17 Cal.3d 908 (Payne) [right of indigent prisoner who is a
12
defendant in a civil case to be provided meaningful access to judicial process,
including representation by counsel if necessary]; Yarbrough v. Superior Court
(1985) 39 Cal.3d 197 [explaining trial court’s responsibilities under Payne];
County of Sutter v. Superior Court (1966) 244 Cal.App.2d 770 (County of Sutter)
[right of indigent civil litigant to obtain waiver of bond requirement imposed by
Gov. Code, § 947]; Bank of America v. Superior Court (1967) 255 Cal.App.2d 575
(Bank of America) [right of indigent out-of-state civil litigant to obtain waiver of
security for costs required by Code Civ. Proc., § 1030]; Roberts v. Superior Court
(1968) 264 Cal.App.2d 235 (Roberts) [right of indigent civil litigant to obtain
waiver of appeal bond required by Code Civ. Proc., § 985.5]; Cohen v. Board of
Supervisors (1971) 20 Cal.App.3d 236 (Cohen) [right of indigent civil plaintiff
who could not afford service by statutorily prescribed publication to utilize
alternative reasonable method of service]; Solorzano v. Superior Court (1993)
18 Cal.App.4th 603 (Solorzano) [trial court abused its discretion in appointing a
privately compensated discovery referee that indigent plaintiffs could not afford];
Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1436-1443 (conc.
opn. of Johnson, J.) (Baltayan) [right of indigent out-of-state civil plaintiff to
exemption from security undertaking required by Code Civ. Proc. § 1030]; Roldan
v. Callahan & Blaine (2013) 219 Cal.App.4th 87 (Roldan) [trial court may not
consign indigent plaintiffs to an arbitration process they cannot afford to pursue].)
The general teaching of this long line of decisions is that 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 even when the relevant statutory provisions that impose fees or other
expenses do not themselves contain an exception for needy litigants.
Moreover, this line of cases also demonstrates that the exercise of judicial
discretion in furtherance of facilitating equal access to justice is not limited to
13
excusing the payment of fees that the government charges for governmentprovided
services. Judicial authority to facilitate meaningful access to indigent
litigants extends as well to excusing statutorily imposed expenses that are intended
to protect third parties (e.g., injunction or damage bonds) and 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.
(See Conover, supra, 11 Cal.3d 842; County of Sutter, supra, 244 Cal.App.2d 770;
Bank of America, supra, 255 Cal.App.2d 575; Roberts, supra, 264 Cal.App.2d
235; Cohen, supra, 20 Cal.App.3d 236; Baltayan, supra, 90 Cal.App.4th 1427;
Payne, supra, 17 Cal.3d 908.)
Finally, these cases demonstrate that the policy of affording indigent
litigants meaningful access to the judicial process establishes restrictions not only
upon potential barriers created by legislatively imposed fees or procedures, but
also upon court-devised policies or practices that have the effect of denying to
qualified indigent litigants the equal access to justice that the in forma pauperis
doctrine was designed to provide. (See, e.g., Isrin, supra, 63 Cal.2d 153; Earls,
supra, 6 Cal.3d 109; Solorzano, supra, 18 Cal.App.4th 603; Roldan, supra,
219 Cal.App.4th 87.)
B. Legislative Enactments Relating to In Forma Pauperis Status and
Initial Court Rules Regarding Official Court Reporter Fees
Although the authority of California courts to ameliorate financial barriers
to access to justice faced by indigent litigants pursuant to the in forma pauperis
doctrine was first recognized in judicial decisions, in 1979 the Legislature enacted
a statute confirming this judicial authority and directing the Judicial Council to
formulate uniform forms and rules of court to effectuate this authority. (Stats.
1979, ch. 850, § 1, pp. 2952-2953 [enacting former § 68511.3].)
14
Former section 68511.3 provided broadly that the rules adopted by the
Judicial Council should permit “proceeding in forma pauperis at every stage of the
proceedings at both the appellate and trial levels of the court system.” The statute
identified certain categories of litigants (e.g., recipients of specified welfare
benefits) who were to be permitted to proceed in forma pauperis, and further
directed that the rules to be adopted should recognize a court’s authority to grant
permission to proceed in forma pauperis “in any other instance in which, in its
discretion, such permission is appropriate because the litigant is unable to proceed
without using money which is necessary for the use of the litigant or the litigant’s
family to provide for the common necessaries of life.” (Ibid.) Former section
68511.3 did not list the specific court fees that would be waived for in forma
pauperis litigants, but provided that the Judicial Council should adopt uniform
forms and rules in this regard.
The initial rules adopted by the Judicial Council pursuant to the statutory
mandate of former section 68511.3 recognized that in forma pauperis litigants
were entitled to the waiver, among other fees, of court reporter attendance fees.
The initial rules, however, drew a distinction between the waiver of such fees for
proceedings held within 60 days of the grant of fee waiver status and later
proceedings. Former rule 3.61(7) provided that court reporter attendance fees
“must” be waived for proceedings held within 60 days of the order granting the fee
waiver application, whereas former rule 3.62(4) provided that such court reporter
attendance fees “may” be waived for proceedings held more than 60 days after the
date of the order granting the fee waiver application. The rules themselves
provided no explanation for this distinction.
In 2008, former section 68511.3 was repealed and replaced by a series of
statutory provisions beginning with section 68630. (Stats. 2008, ch. 462, § 2,
pp. 3309-3320.) The 2008 legislation explicitly and forcefully confirms this
15
state’s policy of providing equal access to justice to all persons regardless of their
economic means.
Section 68630 provides in this regard: “The Legislature finds and declares
all of the following: [¶] (a) That our legal system cannot provide ‘equal justice
under law’ unless all persons have access to the courts without regard to their
economic means. California law and court procedures should ensure that court
fees are not a barrier to court access for those with insufficient economic means to
pay those fees. [¶] (b) That fiscal responsibility should be tempered with concern
for litigants’ rights to access the judicial system. The procedure for allowing the
poor to use court services without paying ordinary fees must be one that applies
rules fairly to similarly situated persons, is accessible to those with limited
knowledge of court processes, and does not delay access to court services. The
procedure for determining if a litigant may file a lawsuit without paying a fee must
not interfere with court access for those without the financial means to do so. [¶]
(c) That those who are able to pay court fees should do so, and that courts should
be allowed to recover previously waived fees if a litigant has obtained a judgment
or substantial settlement.”
Under the 2008 legislation, the Judicial Council retained the authority to
adopt rules and forms relating to in forma pauperis status, including “[p]rescribing
the court fees and costs that may be waived at every stage of the proceedings.”
(§ 68641.) Although the initial Rules of Court relating to the waiver of court
reporter attendance fees ― former rules 3.61(7) and 3.62(4) ― were renumbered
in 2009 as rules 3.55(7) and 3.56(4), the substance of the rules regarding court
reporter attendance fees remained unchanged, retaining the distinction between
proceedings held within 60 days of the order granting a fee waiver and
proceedings held after 60 days.
16
In 2013, the Legislature amended section 68086, the specific statute
relating to court reporter attendance fees. (Stats. 2013, ch. 454, § 1.)8 As part of
the 2013 amendment of section 68086, the Legislature added a new subdivision
(b), which provides in full: “The fee shall be waived for a person who has been
granted a fee waiver under Section 68631 [the general provision relating to an
initial fee waiver].” Section 68086(b) draws no distinction regarding the
entitlement to a fee waiver based upon the date upon which the hearing or trial
occurs, nor places any other qualification on the applicability of the litigant’s right
to a waiver of court reporter attendance fees.9
C. Importance of a Court Reporter Under Current California Law
Under current California law, in most civil proceedings the presence of a
court reporter is required in order to obtain a verbatim record of trial court

8 Section 68086 was initially enacted in 1992, following the adoption of state
funding of California trial courts. (Stats. 1992, ch. 696, § 21, pp. 3009-3310.) As
initially enacted, the statute imposed an official court reporter attendance fee of
$100 per half day for each civil case lasting more than one day; at that time, no
official court reporter fee was imposed for the first day. The statute also directed
the Judicial Council to adopt rules requiring trial courts to notify parties of the
unavailability of official court reporting services. As initially enacted, section
68086 did not address the waiver of court reporter attendance fees for in forma
pauperis litigants.
Subsequent amendments of section 68086, prior to the 2013 amendment,
extended the official court reporter attendance fee to any proceeding lasting more
than one hour (Stats. 1993, ch. 70, § 2, pp. 1051-1052) and increased the fee to be
imposed to “a fee equal to the actual cost of providing that service.” (Id., subd.
(a)(1), as amended by Stats. 2003, ch. /159, § 14, p. 1668.)
9 In addition to adding subdivision (b), explicitly providing for waiver of the
court reporter attendance fee for fee waiver recipients, the 2013 amendment of
section 68086 added provisions relating to the imposition of a $30 fee for each
proceeding anticipated to last one hour or less, and retaining a fee equal to the
actual cost of providing court reporter services for each proceeding lasting more
than one hour. (§ 68086, subd. (a)(1), (2).)
17
proceedings and, ultimately, the preparation of an officially recognized reporter’s
transcript for use on appeal.10 The inclusion of court reporter fees in the original
court rules setting forth the categories of costs and fees to which an economically
needy litigant is entitled to a waiver, as well as the explicit legislative codification
of such entitlement in section 68086(b) in 2013, reflect the realistic, crucial
importance that the presence of a court reporter currently plays in the actual
protection of a civil litigant’s legal rights and in providing such a litigant equal
access to appellate justice in California.
As the Court of Appeal decision in the present case aptly demonstrates, 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. This is so because it is a fundamental principle of appellate procedure that a
trial court judgment is ordinarily presumed to be correct and the burden is on an
appellant to demonstrate, on the basis of the record presented to the appellate
court, that the trial court committed an error that justifies reversal of the judgment.
(See, e.g., Denham v. Superior Court (1970) 2 Cal.3d 557, 564; see generally
9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 355, p. 409 [citing cases].)
“This is not only a general principle of appellate practice but an ingredient of the
constitutional doctrine of reversible error.” (Ibid.; see Cal. Const., art. VI, § 13.)

10 As already noted (ante, p. 2, fn. 2), section 69957 currently precludes
California courts from utilizing electronic recording to generate an official
certified verbatim record of trial court proceedings except in limited civil actions
and criminal proceedings involving misdemeanors and infractions. (§ 69957,
subd. (a); see also California Court Reporters Assn. v. Judicial Council of
California (1995) 39 Cal.App.4th 15; California Court Reporters Assn. v. Judicial
Council of California (1997) 59 Cal.App.4th 959.)
18
“In the absence of a contrary showing in the record, all presumptions in favor of
the trial court’s action will be made by the appellate court. ‘[I]f any matters could
have been presented to the court below which would have authorized the order
complained of, it will be presumed that such matters were presented.’ ” (Bennett
v. McCall (1993) 19 Cal.App.4th 122, 127.) “ ‘A necessary corollary to this rule
is that if the record is inadequate for meaningful review, the appellant defaults and
the decision of the trial court should be affirmed.’ ” (Gee v. American Realty &
Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.) “Consequently, [the
appellant] has the burden of providing an adequate record. [Citation.] Failure to
provide an adequate record on an issue requires that the issue be resolved against
[the appellant].” (Hernandez v. California Hospital Medical Center (2000)
78 Cal.App.4th 498, 502.)11
In Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181,
186-187, the court extensively catalogued the frequency with which appellate
courts have declined to reach the merits of a claim raised on appeal because of the
absence of a reporter’s transcript. The court in Foust stated: “In numerous
situations, appellate courts have refused to reach the merits of an appellant’s
claims because no reporter’s transcript of a pertinent proceeding or a suitable
substitute was provided. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296
[attorney fee motion hearing]; Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575
(lead opn. of Grodin, J.) [new trial motion hearing]; In re Kathy P. (1979) 25
Cal.3d 91, 102 [hearing to determine whether counsel was waived and the minor

11 As the appellate court in Protect Our Water v. County of Merced (2003)
110 Cal.App.4th 362, 364, quipped: “When practicing appellate law, there are at
least three immutable rules: first, take great care to prepare a complete record;
second, if it is not in the record, it did not happen; and third, when in doubt, refer
back to rules one and two.”
19
consented to informal adjudication]; Vo v. Las Virgenes Municipal Water Dist.
(2000) 79 Cal.App.4th 440, 447 [trial transcript when attorney fees sought]; Estate
of Fain (1999) 75 Cal.App.4th 973, 992 [surcharge hearing]; Hodges v. Mark
(1996) 49 Cal.App.4th 651, 657 [nonsuit motion where trial transcript not
provided]; Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1532
[reporter’s transcript fails to reflect content of special instructions]; Buckhart v.
San Francisco Residential Rent etc., Bd. (1988) 197 Cal.App.3d 1032, 1036
[hearing on Code Civ. Proc., §1094.5 petition]; Sui v. Landi (1985) 163
Cal.App.3d 383, 385-386 [motion to dissolve preliminary injunction hearing];
Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 713-714 [demurrer hearing];
Calhoun v. Hildebrandt (1964) 230 Cal.App.2d 70, 71-73 [transcript of argument
to the jury]; Ehman v. Moore (1963) 221 Cal.App.2d 460, 462 [failure to secure
reporter’s transcript [or] settled statement].)” (Foust, at pp. 186-187.)
The applicable California statutes similarly recognize the importance of a
verbatim record of trial court proceedings as prepared by a court reporter. Under
Code of Civil Procedure, section 269, subdivision (a)(1), an official court reporter
or an official court reporter pro tempore of the superior court must be provided to
make a verbatim record of all trial court proceedings “[i]n a civil case, on the
order of the court or at the request of a party.” (Italics added.)12 On its face, this

12 Code of Civil Procedure section 269, subdivision (a) provides in full:
“An official court reporter or official court reporter pro tempore of the superior
court shall take down in shorthand all testimony, objections made, rulings of the
court, exceptions taken, arraignments, pleas, sentences, arguments of the attorneys
to the jury, and statements and remarks made and oral instructions given by the
judge or other judicial officer, in the following cases: [¶] (1) In a civil case, on
the order of the court or at the request of a party. [¶] (2) In a felony case, on the
order of the court or at the request of the prosecution, the defendant, or the
attorney for the defendant. [¶] (3) In a misdemeanor or infraction case, on the
order of the court.”
20
statute contemplates that a court reporter will be present and will fully report all
trial court proceedings in a civil case whenever a party so requests. Although
section 269, subdivision (a)(1) does not preclude a court from requiring a party to
pay for the services of an official court reporter when a party has the resources to
do so, nothing in the statute suggests that a court reporter need not be provided to
a litigant who cannot afford to pay for such services when the litigant has been
granted a fee waiver because of his or her financial need.
D. Reduction in Official Court Reporter Services in Response to
Budget Cuts
Prior to the drastic cuts in judicial budgets over the last decade, superior
courts in California generally made official court reporters routinely available for
civil trials. As a result of budget reductions, however, many, but not all, of the
superior courts throughout the state have adopted new policies limiting the
availability of official court reporters to only a narrow category of civil cases,
which generally do not include ordinary contract, personal injury, or professional
negligence cases. (See 2017 Futures Com. Rep., supra, pp. 239-240; Impellizzeri,
BYO Court Reporter (Sept. 2013) Cal. Lawyer at p. 6; Golay & Haskins, The
Necessity of Trial Transcripts in Appellate Proceedings (Sept. 2015) Los Angeles
Lawyer at p. 10; Why You Need a Court Reporter to Set the Record Straight
(Sept. 3, 2014) at p. 1 [attaching chart listing then-current superior court policies
regarding normal availability of official court reporters], available at

[as of July 5, 2018].)
The San Diego Superior Court policy at issue in this case is one of the
recently adopted local court policies limiting the availability of official court
reporters in civil cases. The policy currently provides in relevant part: “Official
court reporters are normally available in felony criminal cases and juvenile matters
21
during regular court hours. Official court reporters are not normally available in
civil, family, or probate matters with exceptions [relating to some specified family
and probate matters]. . . . [¶] . . . [¶] Parties may privately arrange for the
appointment of a court-approved official court reporter pro tempore without
stipulation for civil, family, and probate matters. . . . [¶] Parties may privately
arrange for the appointment of a reporter not on the court-approved list, by
stipulation and order for civil, family, and probate matters. . . . [¶] Parties,
including those with fee waivers, are responsible for all fees and costs related to
court reporter services arranged under the foregoing provisions.” (S.D. Reporter
Availability Policy, supra, at p. 1, italics added, boldface omitted.)13
The cost of a court reporter’s attendance at trial court proceedings is
significant. According to the San Diego Superior Court website, court reporter
attendance fees for an official court reporter are currently $431 per half day and
$862 per full day. ( pageid=55,1057199&_dad=portal&_schema=PORTAL> [as of July 5, 2018].)
A 2012 article in a legal newspaper reported that at that time the per diem rate for
private court reporters in San Francisco was $735 and in Los Angeles was $764.
(McEvoy, Shrinking Court Reporter Staffs Bring Changes to Litigation, Daily J.
(Mar. 15, 2012).)
In light of the significant costs of private court reporters, the practical effect
of the foregoing policy means that in San Diego, and in other superior courts with

13 The original version of the San Diego Superior Court Reporter Availability
Policy providing that official court reporters are not normally available in civil
matters was adopted in September 2012, effective November 1, 2012. Like the
current policy, the original version explicitly provided that “[p]arties, including
those with fee waivers, will be responsible for all fees and costs related to court
reporter services . . . .” ( Interest/ADM317CourtReporterPolicy.pdf> [as of July 5, 2018].)
22
similar policies, indigent civil litigants are denied the ability to obtain a verbatim
record of the trial court proceedings unless another party in the action who can
afford to pay for a private court reporter chooses to arrange and pay for a private
court reporter. The issue before us in this case is the validity of the San Diego
policy as applied to a fee waiver recipient.
E. The Parties’ Contentions
Plaintiff, and the numerous amici curiae that have filed briefs on his behalf,
maintain that the San Diego Superior Court policy is inconsistent with the prior
California in forma pauperis decisions indicating that California courts should
properly exercise the discretion they possess to ensure that litigants in California
judicial proceedings are not denied equal access to justice, at trial or on appeal, on
the basis of their limited financial resources. Defendant, by contrast, contends that
the San Diego policy is valid, maintaining that the Court of Appeal properly found
the policy compatible with the applicable statutes and rules of court. Defendant
asserts that no case or statute requires a court to make an official court reporter
available in every civil case in which a fee waiver recipient requests the services
of an official court reporter, and that the fee waiver provision of section 68086(b)
applies only when an official court reporter is provided by the court and when
payment of a court reporter fee would otherwise be required. Further, defendant
maintains that the superior court policy is a reasonable response to the significant
reduction in its budget.
For the following reasons, we agree with plaintiff’s position.
F. Effect of Section 68086, Subdivision (d) and Rule 2.956
In addressing this issue in its decision below, the Court of Appeal
recognized that to be valid a local court policy, like a local court rule, must be
consistent with the federal and state Constitutions, statutes, rules of court, and
23
applicable case law. (See Cal. Const., art. VI, § 6, subd. (d); Elkins v. Superior
Court (2007) 41 Cal.4th 1337, 1351 (Elkins).)
In upholding the validity of the San Diego Superior Court policy, the Court
of Appeal relied on the provisions of section 68086, subdivision (d) and rule
2.956. Section 68086, subdivision (d) directs the Judicial Council to adopt rules to
ensure that parties are given adequate and timely notice of the availability of an
official court reporter, and further provides “[t]hat if an official court reporter is
not available, a party may arrange for the presence of a certified shorthand reporter
to serve as an official pro tempore reporter, the costs therefor recoverable as
[taxable costs by the prevailing party].”14 (Id., subd. (d)(1).)
Rule 2.956 ― adopted by the Judicial Council in response to the directive
in section 68086, subdivision (d) ― provides, in turn, that each trial court must
adopt and post a local policy “enumerating the departments in which the services
of official court reporters are normally available, and the departments in which the
services of official court reporters are not normally available during regular court
hours. If the services of official court reporters are normally available in a
department only for certain types of matters, those matters must be identified in
the policy.” (Rule 2.956(b)(1).) Rule 2.956(c) further provides that ‘[i]f the
services of an official court reporter are not available for a hearing or trial in a
civil case, a party may arrange for the presence of a certified shorthand reporter to

14 Section 68086, subdivision (d) provides in full: “The Judicial Council shall
adopt rules to ensure all of the following: [¶] (1) That parties are given adequate
and timely notice of the availability of an official court reporter. [¶] (2) That if an
official court reporter is not available, a party may arrange for the presence of a
certified shorthand reporter to serve as an official pro tempore reporter, the costs
therefor recoverable [as taxable costs by the prevailing party]. [¶] (3) That if the
services of an official pro tempore reporter are utilized pursuant to paragraph (2),
no other charge shall be made to the parties.”
24
serve as an official pro tempore reporter. It is that party’s responsibility to pay the
reporter’s fee for attendance at the proceedings, but the expense may be
recoverable as part of the costs, as provided by law.”
Although both section 68086, subdivision (d) and rule 2.956 recognize that
an official court reporter may not be available in all circumstances, neither section
68086, subdivision (d) nor rule 2.956 purports to address the subject of the proper
treatment of fee waiver recipients. Accordingly, the question arises whether either
section 68086, subdivision (d) or rule 2.956, was intended and should properly be
interpreted to authorize a trial court to adopt a policy that withholds the services of
an official court reporter when one of the parties is a fee waiver recipient and
when the practical effect of not providing an official court reporter is to deny the
fee waiver recipient the opportunity to have the proceedings reported when a party
who can pay for a private reporter is afforded that opportunity. The Court of
Appeal did not directly address this question.
In light of the legal analysis set forth in the seminal decision in Martin,
supra, 176 Cal. 289, we conclude that neither section 68086, subdivision (d) nor
rule 2.956 should properly be interpreted to authorize a court to withhold court
reporter services from an in forma pauperis litigant when a litigant who can afford
to pay for a private court reporter is permitted to obtain such services and have the
private reporter serve as an official pro tempore court reporter for the proceedings.
As the court in Martin explained, “it is obvious that only the plainest declaration
of legislative intent” should be construed as an effort by the Legislature to
constrain the fundamental judicial policy of affording equal access to the judicial
process to all persons without regard to their economic need. (176 Cal. at p. 297.)
Because neither section 68086, subdivision (d) nor rule 2.956 contains any
reference to fee waiver recipients, and in light of the strong legislative policy in
support of equal access to justice set forth in section 68630, subdivision (a), we
25
conclude that neither provision supports the validity of the challenged local
superior court policy as applied to a fee waiver recipient.
G. Rule 3.55(7) as Amended in 2015 and Accompanying Advisory
Committee Comment
Although neither section 68086, subdivision (d) nor rule 2.956 contains any
reference to the provision of court reporter services to fee waiver recipients, a
different California Rule of Court that was not cited or relied upon by the Court of
Appeal, rule 3.55(7) as amended in 2015, and a 2015 Advisory Committee
comment to that rule, contain language that, at least on their face, appear
potentially relevant to the validity of the challenged policy. In light of that
potential relevance, we requested the parties to submit supplemental briefing
addressing the effect, if any, that either the rule or comment has on the issue
before us in this case. Upon consideration of the supplemental briefing, we
conclude that the 2015 amendment of rule 3.55(7) and the accompanying
Advisory Committee comment should not properly be understood as addressing
the issue before us.
We begin by describing the background to the 2015 amendment to rule
3.55(7).
As noted above, in 2013 the Legislature amended the provisions of section
68086, relating to the collection of court reporters’ appearance fees. (Stats. 2013,
ch. 454, § 1.) As part of the 2013 statute, a new subdivision (b) was added to
68086 to provide that a court reporter’s appearance fee “shall be waived for a
person who has been granted [an initial fee waiver].”
In 2014, on the recommendation of the Civil and Small Claims Advisory
Committee of the Judicial Council (Advisory Committee), the Judicial Council
circulated for comment a proposal to amend a variety of court rules and forms
pertaining to fee waivers. (See Judicial Council of Cal., Invitation to Comment,
26
SPR14-05 (2014) Fee Waivers: Payments Over Time and Fees Included in Initial
Fee Waiver.) The proposed amendments upon which comments were solicited
were unrelated to the provisions of section 68086(b) that had been enacted in
2013. In response to the invitation to comment, however, a number of
commentators pointed out that the court rules relating to fee waivers of court
reporter appearance fees then in effect were inconsistent with the provisions of
the recently enacted section 68086(b).15
In particular, at that time rule 3.55 provided in relevant part: “Court fees
and costs that must be waived upon granting an application for an initial fee
waiver include: [¶] . . . [¶] (7) Reporter’s daily fees for attendance at hearings
and trials held within 60 days of the date of the order granting the application.”
(Italics added.) Further, rule 3.56 provided in relevant part that “[n]ecessary court
fees and costs that may be waived upon granting an application for an initial fee
waiver, either at the outset or upon later application, include: [¶] . . . [¶]
(4) Reporter’s fees for attendance at hearing and trials held more than 60 days
after the date of the order granting the application.” (Italics added.) This is the
same distinction, noted above, that the initial court rules relating to the waiver of

15 A summary of the comments that were submitted in response to the Judicial
Council’s invitation to comment is appended to the report the Advisory
Committee subsequently submitted to the Judicial Council. (See Judicial Council
of Cal. Advisory Com., Rep. No. 14-05, Fee Waivers: Change in Federal Poverty
Guidelines, Revisions to Application Form, and Specific Fees Included in Waivers
(2015) (Advisory Committee Report).) The separate comments submitted by the
Orange County Superior Court, the San Diego County Superior Court, and by a
coalition of public interest law groups each pointed out the inconsistency of the
existing court rules and section 68086(b), and a separate letter submitted by the
coalition of public interest law groups proposed specific amendments to rules 3.55
and 3.56.
27
court reporter fees drew between proceedings held before and after 60 days of the
granting of the initial fee waiver application. (See ante, p. 14.)
The comments submitted to the Advisory Committee pointed out that the
newly enacted section 68086(b) draws no distinction in a fee waiver recipient’s
entitlement to the waiver of court reporter fees based on the date hearings or trials
are held, but instead provides broadly and without qualification that the court
reporter fee “shall be waived for a person who has been granted [an initial] fee
waiver.” The commentators suggested that the existing court rules be amended to
be consistent with section 68086(b).
The Advisory Committee agreed with the commentators’ suggestion in this
regard. In its February 3, 2015 report to the Judicial Council recommending the
amendment of various rules of court, including rules 3.55(7) and 3.56, the
Advisory Committee explained that the preexisting provision of rule 3.55(7)
“which currently includes on the list of fees that must be waived only those court
reporters fees for hearing[s] held within 60 days of the issuance of the fee waiver
order” needed to be modified “to eliminate the time restriction in light of the new
mandate in Government Code section 68086(b) that all court reporter’s fees
otherwise charged by a court are waived for a party who has received a fee
waiver.” (Advisory Com. Rep., supra, at pp. 5-6.) The report further explained
that for the same reason it recommended “that the item including reporter’s fees
for hearing[s] held more than 60 days after the issuance of the fee order be deleted
from the list of fees the court has discretion to grant a waiver for in rule 3.56, since
the waiver of such fees are no longer discretionary.” (Id. at p. 6.)
In addition to simply eliminating the time restriction in rule 3.55(7) and
deleting the provisions of former rule 3.56(4) (as one of the comments received by
28
the Advisory Committee had specifically proposed16), however, the Advisory
Committee Report recommended two additional changes: (1) the addition of the
phrase “if the reporter is provided by the court” to the end of rule 3.55(7), and
(2) the addition of an Advisory Committee comment concerning rule 3.55. In this
regard, the Advisory Committee Report recommended that rule 3.55(7) be
amended to read: “Court fees and costs that must be waived upon granting an
application for an initial fee waiver include: . . . (7) Reporter’s fees for attendance
at hearings and trials, if the reporter is provided by the court.” (Advisory Com.
Rep., supra, at p. 16, italics added.) And the report further recommended that the
following Advisory Committee Comment be added regarding rule 3.55: “The
inclusion of court reporter’s fees in the fees waived upon granting an application
for an initial fee waiver is not intended to mandate that a court reporter be
provided for all fee waiver recipients. Rather, it is intended to include within a
waiver all fees mandated under the Government Code for the cost of court
reporting services provided by the court.” (Ibid.) The report contained no
explanation or citation of authority for these two proposed additions.
At the subsequent February 19, 2015 meeting of the Judicial Council, the
Advisory Committee’s recommendations with respect to the proposed
amendments to a number of court rules and forms relating to fee waivers, which
had been placed on the consent agenda, were adopted.
Although the 2015 amendment to rule 3.55(7) and the accompanying
Advisory Committee comment are susceptible to differing interpretations, we
conclude, for the reasons set forth in plaintiff’s supplemental brief, that these
changes should not properly be read as intended to address the question that is

16 The letter submitted to the Advisory Committee by the coalition of public
interest groups proposed only those amendments to rules 3.55 and 3.56.
29
before the court in this case — namely, whether a court policy that effectively
denies court reporter services to a fee waiver recipient while at the same time
permitting a financially able litigant to obtain the benefit of a court reporter is
consistent with the general principles embodied in prior California in forma
pauperis decisions. Instead, we conclude that the 2015 changes to rule 3.55(7)
are properly read to indicate simply that the amended rule 3.55(7) should not, in
itself, be understood as intended to place an obligation on a court to provide a
court reporter for all fee waiver recipients.
As noted, rule 3.55(7), as amended in 2015, provides that the fees that must
be waived upon granting an application for an initial fee waiver include
“[r]eporter’s fees for attendance at hearings and trials, if the reporter is provided
by the court.” By its terms, the rule says only that an initial fee waiver requires
the waiver of reporter attendance fees “if the reporter is provided by the court.”
(Ibid.) The language of the rule does not purport to address whether, or under
what circumstances, a trial court may be required, by judicial precedent or
otherwise, to provide an official court reporter to prepare a verbatim record of the
court proceedings.
Similarly, the Advisory Committee comment added to rule 3.55 in 2015
states simply that “the inclusion of court reporter’s fees in the fees waived upon
granting an application for an initial fee waiver is not intended to mandate that a
court reporter be provided for all fee waiver recipients. Rather, it is intended to
include within a waiver all fees mandated under the Government Code for the cost
of court reporting services provided by a court.” (Advisory Com. com., Cal Rules
of Court, rule 3.55.) This comment can reasonably be interpreted to mean simply
that the amended version of rule 3.55(7) is not itself intended to require that a
court reporter be provided for all fee waiver recipients. The comment does not
purport to address what the general principles embodied in prior California in
30
forma pauperis judicial decisions may require with respect to fee waiver
recipients.
As plaintiff suggests, there are good reasons for not interpreting the two
changes proposed by the Advisory Committee and adopted by the Judicial Council
more broadly as addressing the issue posed in this case. As explained above, the
2015 amendments to rule 3.55(7) arose as a result of public comments received by
the Advisory Committee in connection with an invitation for comment regarding
proposed amendments to other rules that were entirely unrelated to the newly
enacted section 86086(b). The comments relating to rule 3.55(7) that brought to
the Advisory Committee’s attention the existing rule’s inconsistency with section
86086(b) did not propose the additional phrase at the end of rule 3.55(7) or the
Advisory Committee comment that were subsequently proposed by the Advisory
Committee in its report to the Judicial Council, nor did those comments discuss
these subsequent additions. No further public comment was solicited by the
Advisory Committee or the Judicial Council with regard to these two proposed
changes before the changes were adopted by the Judicial Council.
The Judicial Council’s rulemaking procedure permits the adoption of a new
court rule or the amendment of an existing court rule without public comment in
only limited circumstances. Under the governing rule, circulation for public
comment is unnecessary only if “the proposal presents a nonsubstantive technical
change or correction or a minor substantive change that is unlikely to create
controversy . . . .” (Cal. Rules of Court, rule 10.22(d)(2); see Siry Investments,
L.P. v. Farkhondehpour (2015) 238 Cal.App.4th 725, 731.) As plaintiff points
out, if the 2015 amendment to rule 3.55(7) and the accompanying Advisory
Committee comment were interpreted as intended to address the validity of the
type of “no official court reporter” policy at issue in this case, the amendment
could not properly be characterized as either a “nonsubstantive technical change”
31
or “a minor substantive change that is unlikely to create controversy.” (Cal. Rules
of Court, rule 10.22(d)(2).) Thus, those changes are appropriately construed to
mean only that rule 3.55(7), as amended, should not itself be understood to
mandate that a trial court provide an official court reporter for all fee waiver
recipients, but not to speak to the broader issue of whether a general superior court
policy, like the San Diego policy at issue here, is compatible with the general
principles embodied in past California in forma pauperis decisions and the
legislative policy embodied in Section 68630, subdivision (a).
Accordingly, we conclude that rule 3.55(7) as amended in 2015 and the
accompanying Advisory Committee comment should not be interpreted as
addressing the issue before us.
H. Exercise of Superior Court’s Discretion
In addition to relying upon section 68086, subdivision (d) and rule 2.956,
defendant argues strenuously that the superior court, in adopting the policy at issue
here, acted reasonably in the exercise of its discretionary quasi-legislative
authority in light of its dire budgetary situation. We recognize and acknowledge
the good faith of the superior court in attempting to deal with an extraordinarily
difficult budgetary situation. The superior court could understandably conclude
that its reduced resources required it to discontinue its policy of making official
court reporters generally available in civil cases.
17

17 The 2017 Futures Commission Report discusses the substantial cost savings
that could be obtained by the use of digital recording, in place of court-employed
court reporters, to obtain a verbatim record of trial court proceedings. (2017
Futures Com. Rep., supra, at p. 247.) As already noted (ante, p. 2, fn. 2),
however, legislative modification of the current statutory restriction on the courts’
use of electronic recording in section 69957, subdivision (a) is required to permit
realization of such savings.
32
However, the new policy failed to provide an exception for cases involving
a fee waiver recipient who desires a verbatim record of the trial court proceedings
but cannot afford to pay for a private reporter. Although such a limited exception
would concededly impose some additional financial burden on the superior
court,18 our past decisions caution that a court’s legitimate financial considerations
must be carefully weighed against the potential impairment of a needy litigant’s
right to equal access to justice. (See, e.g., Elkins, supra, 41 Cal.4th at p. 1353
[noting that a “common theme” in cases invalidating local rules as inconsistent
with the public’s interest in equal access to justice “is that a local court has
advanced the goals of efficiency and conservation of judicial resources” in

18 We note that we have received and considered amici curiae briefs from
several superior courts, describing the financial consequences they anticipate
would result from a decision invalidating the San Diego Superior Court policy at
issue as applied to fee waiver recipients.
At the same time, we observe that if a superior court were to provide an
official court reporter in cases in which a fee waiver recipient requests such a
reporter, the court would be permitted to impose a pro rata share of the costs of
such an official court reporter on the parties in those cases who can afford to pay
official court reporter fees, just as in other cases in which the court provides an
official court reporter. (§ 68086, subd. (a)(2).) Under California Rules of Court,
rule 2.958, the half-day fee to be charged under section 68086, on a pro rata basis,
“is equal to the average salary and benefit costs of the reporter, plus indirect costs
of up to 18 percent of salary and benefits.” (Italics added.) Accordingly, the court
could recover a significant portion of the additional cost of providing an official
court reporter in cases involving fee waiver recipients from the parties in those
cases who can afford the usual pro rata official court reporter fees.
Moreover, it is worth noting that the increased use of private court reporters
in place of official court reporters will itself frequently entail additional
administrative expense for a superior court. For example, a court may incur
additional costs in attempting to locate and communicate with private court
reporters when questions regarding such reporters’ service arise subsequent to trial
court proceedings. Communications with a court’s own official court reporters
often involve less time and expense.
33
adopting the challenged rule]; Ferguson, supra, 4 Cal.3d at p. 657 [noting that
“the legitimate purpose[] of providing financial support for our courts” does not
require “depriv[ing] indigents of access to the appellate courts”]; see also § 68630,
subd. (b) [“The Legislature finds and declares . . . [¶] . . . [¶] . . . [t]hat fiscal
responsibility should be tempered with concern for litigants’ rights to access the
justice system”].) The question before us is whether the superior court in adopting
the challenged court reporter policy properly exercised the discretion it possesses
in a manner consistent with the principles underlying California’s in forma
pauperis doctrine and the legislative policy of equal access to the courts set forth
in section 68630, subdivision (a).
In defending the absence of an exception for in forma pauperis litigants,
defendant relies on the lack of any prior decision that supports the necessity of
such an exception for official court reporters. Although there is no prior case
directly on point with regard to official court reporters, several prior cases that
have arisen in other contexts support the conclusion that the San Diego Superior
Court erred in adopting a policy that effectively denies in forma pauperis litigants
the ability to obtain a verbatim record of the trial court proceedings while
preserving that opportunity for litigants who can afford to pay for a private court
reporter.
In Solorzano, supra, 18 Cal.App.4th 603, the question arose in the context
of the procedure for resolving a discovery dispute. Ordinarily, discovery disputes
are resolved by the trial court, and a fee waiver recipient (like other parties) need
not pay any fee to obtain such resolution. Under section 639, subdivision (a)(5) of
the Code of Civil Procedure, however, a trial court is permitted to appoint a
referee to “hear and determine any and all discovery motions and disputes . . . and
to report findings and make a recommendation thereon,” and section 645.1,
subdivision (b) of the Code of Civil Procedure, in turn, permits the court to “order
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the parties to pay the fees of referees who are not employees or officers of the
court . . . in any manner determined by the court to be fair and reasonable,
including an apportionment of the fees among the parties.” At the time of
Solorzano, neither section 639 nor section 645.1 contained any provision relating
to in forma pauperis litigants or other litigants with limited financial resources.
In the underlying pretrial proceedings in Solorzano, the trial court had
appointed a privately compensated discovery referee and ordered the plaintiffs and
the defendant to share equally in the payment of the referee’s $300 per hour fee,
despite the plaintiffs’ objection that they were indigent and could not afford to pay
that fee. The plaintiffs sought writ review in the Court of Appeal, and the
appellate court, relying in part upon the line of California in forma pauperis
precedents summarized above (see Solorzano, supra, 18 Cal.App.4th at p. 613,
fn. 6), concluded that the trial court had erred in appointing a privately
compensated referee.
Recognizing that a court does not have the authority to waive a privately
compensated referee’s fees, the Court of Appeal in Solorzano held that a trial
court’s discretion to appoint a privately compensated referee under sections 639
and 645.1 cannot be exercised in a manner that makes it unaffordable for an
indigent party to litigate discovery disputes. The Solorzano court reasoned that
because “no one can deny the indispensability of discovery in the prosecution of a
lawsuit” (Solorzano, supra, 18 Cal.App.4th at p. 614), and because “indigent
litigants proceeding in forma pauperis . . . are by definition unable to pay courtordered
reference fees” (id. at p. 615).), the trial court had abused its discretion in
appointing a privately compensated discovery referee in that case. And speaking
more generally, the court in Solorzano observed that “[r]eference to a discovery
referee imposes a substantial economic burden on [a nonaffluent] party. It is
therefore incumbent on trial courts utilizing the relief afforded by [sections 639
35
and 645.1] to look beyond the benefit realized by the judicial system and consider
the economic impact the order of reference will have on the parties.” (Ibid.) (See
also Taggares v. Superior Court (1998) 62 Cal.App.4th 94, 106 [“Unless the court
makes a cost-free option available to the parties, it may not order a [discovery]
reference in [a case involving an indigent party]. Instead, the trial court should
retain and resolve these matters . . . .”].)19
In Roldan, supra, 219 Cal.App.4th 87, a related question arose in the
context of the enforcement of an arbitration provision contained in retainer
agreements between the plaintiff clients and the defendant attorneys. Under the
arbitration clause at issue and the applicable provisions of the California
Arbitration Act (Code Civ. Proc., § 1284.2), each party to the arbitration
agreement was required to pay a pro rata share of the arbitrator’s fees and
expenses as well as other arbitration expenses, all of which were likely to be
substantial. The plaintiffs in Roldan were elderly individuals who had applied for
and had been granted in forma pauperis status in the judicial proceeding.
Thereafter, the plaintiffs challenged the trial court order compelling them to
submit their dispute with their attorneys to arbitration, maintaining that they could
not afford to pay the arbitration expenses.

19 In 2000, the Legislature amended Code of Civil Procedure section 639 to
effectively codify the holding in Solorzano. (See Stats. 2000, ch. 644, § 2,
p. 4198, adding Code Civ. Proc., § 639, subd. (b)(6)(A) [“All appointments of
referees pursuant to this section shall be by written order and shall include the
following: [¶] . . . [¶] Either a finding that no party has established an economic
inability to pay a pro rata share of the referee’s fee or a finding . . . that another
party has agreed voluntarily to pay that additional share of the referee’s fee. A
court shall not appoint a referee at a cost to the parties if neither of these findings
is made”].)
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The Court of Appeal in Roldan first discussed several cases that had
considered whether a provision of an arbitration agreement that required a party to
pay arbitration fees that the party could not afford was unconscionable and
unenforceable. (Roldan, supra, 219 Cal.App.4th at pp. 94-95 [describing
Gutierrez v. Autowest, Inc. (2013) 114 Cal.App.4th 77 and Parada v. Superior
Court (2009) 176 Cal.App.4th 1554].) The appellate court in Roldan thereafter
concluded that it need not reach the issue of whether the arbitration agreements at
issue in that case were unenforceable, because the only issue before it was whether
plaintiffs, who had been granted permission to proceed in forma pauperis, “could
. . . be excused from the obligation to pay fees associated with arbitration.”
(Roldan at p. 95.) The court in Roldan, having taken note of “California’s longstanding
public policy of ensuring that all litigants have access to the justice
system for resolution of their grievances, without regard to their financial means”
(id. at p. 94, citing Martin, supra, 176 Cal. 289), concluded that the plaintiffs were
entitled to relief.
The court in Roldan explained: “If, as plaintiffs contend, they lack the
means to share the cost of the arbitration, to rule otherwise might effectively
deprive them of access to any forum for resolution of their claims against [the
defendants]. We will not do that. Of course, as the trial court recognized, we
cannot order the arbitration forum to waive its fees, as a court would do in the case
of an indigent litigant. Nor do we have authority to order [the defendant law firm]
to pay plaintiffs’ share of those fees. What we can do, however, is give [the
defendant law firm] a choice: if the trial court determines that any of these
plaintiffs is unable to share in the cost of arbitration, [the firm] can elect to either
pay that plaintiff’s share of the arbitration cost and remain in arbitration or waive
its right to arbitrate that plaintiff’s claim.” (Roldan, supra, 219 Cal.App.4th at
p. 96.)
37
The decisions in Solorzano and Roldan reveal a fundamental aspect of the
California in forma pauperis doctrine that is directly relevant to the issue presented
here. As these decisions demonstrate, under California law when a litigant in a
judicial proceeding has qualified for in forma pauperis status, a court may not
consign the indigent litigant to a costly private alternative procedure that the
litigant cannot afford and that effectively negates the purpose and benefit of in
forma pauperis status. In other words, whatever a court’s authority may be in
general to outsource to privately compensated individuals or entities part or all of
the court’s judicial duties with respect to litigants who can pay for such private
services, a court may not engage in such outsourcing in the case of in forma
pauperis litigants when the practical effect is to deprive such litigants of the equal
access to justice that in forma pauperis status was intended to afford.
The superior court policy on court reporters challenged in this case exhibits
the same fundamental problem that was addressed by the courts in Solorzano and
Roldan. By eliminating the availability of official court reporters in most civil
proceedings, the policy outsources the provision of court reporting services to
privately compensated court reporters. And by failing to provide an exception for
in forma pauperis litigants, the policy effectively deprives such litigants of equal
access to the appellate process that their in forma pauperis status was intended to
afford. As we have seen, the absence of a verbatim record of trial court
proceedings will often have a devastating effect on a litigant’s ability to have an
appeal of a trial court judgment decided on the merits. (See ante, pp. 16-20.)20

20 Defendant points out that the presence of a court reporter or a reporter’s
transcript is not always necessary to obtain resolution of an issue on appeal,
because some issues can be resolved on the clerk’s transcript alone or by way of a
settled or agreed statement. There is, however, generally no way to determine in
advance what issues may arise or whether such an issue can be raised and decided
on appeal absent a verbatim record of the trial court proceedings. As a general
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Without an exception for fee waiver recipients, the policy at issue here places
indigent civil litigants at a significant disadvantage with respect to the right of
appeal compared to those litigants who can afford to pay for a private shorthand
reporter. (Accord, e.g., Martin, supra, 176 Cal. at p. 298 [“we will not say that a
suitor who can pay court fees shall have his trial by jury and the suitor who cannot
pay court fees must be content to go to trial without a jury”]; Preston v. Municipal
Court (1961) 188 Cal.App.2d 76, 87-88 [“The right of appeal cannot lie in that
discriminatory morass in which it is accessible to the rich and denied to the poor.
Whatever hardship poverty may cause in the society generally, the judicial process
must make itself available to the indigent”].)
Accordingly, we conclude that in order to satisfy the principles underlying
California’s in forma pauperis doctrine and embodied in the legislative public
policy set forth in section 68630, subdivision (a), when a superior court adopts a
general policy under which official court reporters are not made available in civil
cases but parties who can afford to pay for a private court reporter are permitted to
do so, the superior court must include in its policy 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. Because the challenged San Diego Superior Court
policy at issue here lacks such an exception, we conclude the policy is invalid as

matter, as discussed above, the absence of a court reporter will significantly limit
the issues that must be resolved on the merits on appeal. Further, the court policy
at issue permits a party that can afford the expense to obtain a verbatim record of
the proceedings and does not require such a party to rely upon a settled or agreed
statement. Thus, the potential availability of a settled or agreed statement does not
eliminate the restriction of meaningful access caused by the policy upon fee
waiver recipients.
39
applied to fee waiver recipients. Thus, the trial court erred in failing to make an
official court reporter available to plaintiff upon request.
III. WAS THE FAILURE TO PROVIDE
AN OFFICIAL COURT REPORTER HARMLESS?
Defendant further argues that even if the superior court erred in failing to
make an official court reporter available to plaintiff in this case, the error was
harmless and the Court of Appeal judgment should be affirmed.
Defendant contends initially that even if an official court reporter had been
present to report the trial court proceedings, because plaintiff could not afford to
pay for a reporter’s transcript for use on appeal the Court of Appeal decision
would not have been different even if an official court reporter had been made
available at trial.
Defendant points out that a number of California appellate court decisions
have held that an in forma pauperis litigant is not entitled to obtain a free
reporter’s transcript in an ordinary civil action. (See, e.g., City of Rohnert Park v.
Superior Court (1983) 146 Cal.App.3d 420, 426-430; Leslie v. Roe (1974) 41
Cal.App.3d 104, 107; Rucker v. Superior Court (1930) 104 Cal.App. 683, 685-
685; cf. Smith v. Superior Court (1974) 41 Cal.App.3d 109, 111-114 [mother who
was denied opportunity to withdraw consent to adoption statutorily entitled to
reporter’s transcript at county expense]; Crespo v. Superior Court (1974) 41
Cal.App.3d 115, 118-120 [in proceeding to terminate parental rights, parents
statutorily entitled to reporter’s transcript at county expense].) This court has not
yet addressed the question under what circumstances an in forma pauperis civil
litigant may be entitled to obtain a free reporter’s transcript when such a transcript
is essential to the resolution of the litigant’s appeal on the merits. (See Ferguson,
supra, 4 Cal.3d at p. 654.) Even assuming that under the in forma pauperis
doctrine or constitutional principles there is no general right to a free reporter’s
40
transcript in this type of case, we conclude that defendant’s harmless error claim
lacks merit for a number of reasons.
First, the California Legislature, by statute, has created a Transcript
Reimbursement Fund to assist indigent civil litigants in paying for a reporter’s
transcript. (See Bus. & Prof. Code, §§ 8030.1-8030.9.) Although defendant notes
that the amount that is available to an individual pro se litigant from this fund in a
given case is quite limited,21 because here the trial court granted nonsuit on the
basis of plaintiff’s opening statement, the transcript that would have been required
would not have been extensive and the sum that the fund could potentially provide
may well have been adequate. The absence of a court reporter at trial, however,
meant that plaintiff could not obtain a reporter’s transcript.
Second, even if plaintiff could not have obtained the needed sum for a
transcript from the Transcript Reimbursement Fund, plaintiff might have been able
to obtain representation on appeal from a nonprofit legal services provider or pro
bono counsel (as he has before this court), and those entities might have been
willing and able to advance the costs of obtaining a reporter’s transcript, costs that
would be recoverable from the opposing party if plaintiff were to prevail on
appeal. In the absence of a court reporter at trial, of course, there are no reporter’s
notes to be transcribed.
Third, even if plaintiff were unable to obtain funds for a reporter’s
transcript, the existence of the notes of a court reporter who had reported the
proceedings would be useful and valuable in enabling plaintiff to obtain an
adequate settled or agreed statement to be utilized on appeal. (See, e.g., Western
States Const. Co. v. Municipal Court (1951) 38 Cal.2d 146, 149; Mooney v.

21 Under Business and Professions Code section 8030.6, subdivision (e), an
individual pro se litigant may receive no more from the fund than $1,500 per case.
41
Superior Court (2016) 245 Cal.App.4th 523, 532; In re Armstrong (1981) 126
Cal.App.3d 565, 573; Herick v. Municipal Court (1970) 8 Cal.App.3d 967, 974;
Eisenberg v. Superior Court (1956) 142 Cal.App.2d 12, 19-20.) Because no
reporter was present, there are no reporter’s notes that could be consulted for that
purpose.
Alternatively, defendant contends that any error with regard to the failure to
provide a court reporter was harmless “because the record shows that . . . plaintiff
did not have an expert to testify at trial.” Defendant maintains that plaintiff was
required to present testimony through his own expert witness at trial in order to
show the requisite causation between defendant’s alleged malpractice and
plaintiff’s injuries. Plaintiff asserted on appeal, however, that because he could
not afford to pay for his expert witness’s appearance at trial, the trial court had
erroneously precluded him from utilizing a variety of alternative means to
establish causation, including relying upon his own expert’s declaration and
deposition, relying upon testimony by defendant’s expert, and relying upon the res
ipsa loquitur doctrine. The Court of Appeal rejected all of those contentions
without reaching the merits, on the ground that they were not “cognizable in the
absence of a reporter’s transcript,” and without a record of plaintiff’s opening
statement we cannot determine whether the trial court’s grant of a nonsuit at this
early stage of the trial was substantively proper.
Accordingly, we conclude that the absence of an official court reporter to
prepare a verbatim record of the trial court proceedings cannot be found harmless.

Outcome: For the reasons discussed above, the judgment of the Court of Appeal is
reversed insofar as it affirmed the trial court judgment in favor of defendant on the basis of the trial court’s grant of a nonsuit related to plaintiff’s opening statement. As noted above (ante, p. 7), in view of its conclusion regarding the trial court’s grant of a nonsuit, the Court of Appeal did not address the validity of the trial court’s alternative basis for entering judgment in favor of defendant, namely that plaintiff’s action was barred under Code of Civil Procedure section 583.310 for failing to bring the matter to trial within five years. Accordingly, the matter is remanded to the Court of Appeal for resolution of the latter issue.

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