Record Woes for Both Pro-Pers and Counsel

Two opinions today turn, at least partially, on the pervasive problem of deficiencies in designating the record on appeal.  The first involved a pro per appellant: Daniels v. San Diego Youth Services, D069401.  That appellant failed to designate a reporter’s transcript, or adequate substitute, omitting key documents from the clerk’s transcript as well, leading to the inability of the Court to address the merits of her arguments.  The Court even noted she had been forewarned by Judicial Council form APP-003 which recites:  “I understand that without a record of the oral proceedings in the superior court, the Court of Appeal will not be able to consider what was said during those proceedings in determining whether an error was made in the superior court proceedings.”

Because there was no reporter’s transcript, the Court’s review, to the extent it could decipher the appellant’s claims, was “limited to determining whether any error appears on the face of the record.”  Which was not the case, so Daniels’ claims, such as  evidentiary error and erroneous denial of a jury trial, were forfeited.

But record designation problems are not confined to pro pers.  Division Five of the Second District published Southern California Gas Co. v. Flannery, B268298, which concerned a hearing at which — as is often the case these days — “no court reporter was present.”  However, all is not lost if there was no reporter since court rules provide for an agreed statement or a settled statement as a substitute, but the appellant did not pursue that route.

Although the court did note that some “legal issues requiring de novo review” may be resolved on appeal even without a reporter’s transcript, that was not the case with that appellant’s primary claims as a due process claim was derailed by a presumption he had the opportunity to present evidence, and an argument concerning the amount of attorney fees awarded also met the same fate.  The Court did reach the merits of other legal issues, however, as the opinion contains interesting discussions concerning the requirement of an undertaking or bond for a stay on appeal — looking back to changes in the law since 1893 — as well as attorney fee liens.

But you may not be so lucky as to have “pure” legal issues which are reviewed de novo.  It often consumes more attorney time, and hence more money, to prepare the substitutes — an agreed or settled statement — than the fee charged by the court reporter, so think twice before eschewing bringing along your own reporter.  But if you are already past that point, and “no reporter was present;” submit an “agreed” or “settled” statement, even if it only memorializes that you appeared and objected to whatever was about to befall you and/or your client.  Read the opinions:

http://www.courts.ca.gov/opinions/documents/B268298.PDF

http://www.courts.ca.gov/opinions/nonpub/D069401.PDF