From: (Vol. 35, Issue 1, 2013) State Bar Family Law News.

 

Houston, “We Have A Problem” No Court Reporter, Perhaps No Appeal, What Can We Do?

By San Diego Family Law Appellate Attorneys Stephen Temko, Esq. CFLS, CLAS, AAML & Dennis Temko, Esq.

 

Stephen Temko is a San Diego family law attorney with a statewide appellate family law practice.  Mr. Temko is a certified specialist in family law and appellate law.  His son, Dennis, is a new admittee.

 

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.” (Protect Our Water v. County of Merced (2003) 110 Cal.App.4th 362, 364.)

 

The Problem

            No court reporter, no transcript, possibly no viable appeal.

 

The Adverse Consequences on Appeal

 

Unless the absence of a reporter’s transcript is not the fault of the party seeking review, “the absence of a transcript precludes a determination that the trial court abused its discretion. [Citations.]”  (Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 690, fn. 5; see Eisenberg, et al., Cal. Prac. Guide: Civil Appeals & Writs (The Rutter Group 2012) ¶ 4:3.1 [“Appellant cannot obtain reversal of a trial court order on the basis of abuse of discretion when there is no record explaining the trial court’s reasoning”].) This is because “[a]ll intendments and presumptions are indulged to support [the judgment] on matters as to which the record is silent, and error must be affirmatively shown.”  (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140.)

 

An appeal without a transcript is called an appeal “on the judgment roll.”  (Allen v. Toten (1985) 172 Cal.App.3d 1079, 1082-1083; accord, Krueger v. Bank of America (1983) 145 Cal.App.3d 204, 207.)  In such an instance, the reviewing court “must conclusively presume that the evidence is ample to sustain the [trial court's] findings.” (Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 154.)  The review is limited to determining whether any error “appears on the face of the record.”  (National Secretarial Service, Inc. v. Froehlich (1989) 210 Cal.App.3d 510, 521; Cal Rule of Court, Rule 8.830(b).)

 

In Ketchum v. Moses, supra, 24 Cal.4th 1122, 1140, an attorney fee case, the Supreme Court denied relief because a reporter’s transcript of the fee motion was not provided.

 

As we explained in Maria P.: “It is the burden of the party challenging the fee award on appeal to provide an adequate record to assess error. [Citations.] Here, [Ketchum] should have augmented the record with a settled statement of the proceeding. [Citations.] Because [he] failed to furnish an adequate record of the attorney fee proceedings, [Ketchum's] claim must be resolved against [him].”  (Maria P. v. Riles, supra, 43 Cal.3d at pp. 1295-1296.)

 

The Courts of Appeal have applied the rule religiously.  In Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 447, another discretionary attorney fee case, the court denied the appeal as well.

 

The judgment must be affirmed because the record provided by defendant is inadequate to conclude the trial court abused its discretion in determining the fee was reasonable.  As the party challenging a fee award, defendant has an affirmative obligation to provide an adequate record so that we may assess whether the trial court abused its discretion. (Citations) We cannot presume the trial court has erred.  . . .

 

The record on appeal does not contain a copy of the pleadings, nor does it contain a trial transcript.  The experienced and highly regarded judge who presided over this case was the best judge of what occurred in his courtroom.  . . . The absence of a record concerning what actually occurred at the trial precludes a determination that the trial court abused its discretion.  It is not possible to judicially and appropriately determine from the inadequate record provided by defendant that the trial court abused its discretion in its conclusion that $470,000 was a reasonable award in comparison to the scope of the litigation as a whole.  (Vo v. Las Virgenes Municipal Water Dist., supra, at pp. 447-448.)

 

The same adverse result on appeal was received when a denial of motion to set aside an order under Code of Civil Procedure section 473 was appealed.  (Wagner v. Wagner (2008) 162 Cal.App.4th 249.)

 

Our review of the court's ruling on this [473] motion, however, has been thwarted by Claire's failure to provide us with a transcript of the hearing on the motion or a copy of the court's minute order denying the motion.  . . . . The absence of a record concerning what actually occurred at the hearing precludes a determination that the court abused its discretion.  (Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 448; Nelson v. Anderson (1999) 72 Cal.App.4th 111, 136-137, [trial court's exercise of discretion will not be disturbed on appeal when appellant fails to provide record explaining trial court reasoning].)  As the party challenging a discretionary ruling, Claire had an affirmative obligation to provide an adequate record so that we could assess whether the court abused its discretion.  (Vo, supra, at p. 447; see Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141.)  Accordingly, she has forfeited this argument on appeal. (Wagner, supra, at p. 259.)

 

The Complicated Answer

 

The California Rules of Court provide an appellant with a choice of several types of records upon which to take an appeal.  The choices include a reporter's transcript, a clerk's transcript, an agreed statement, and a settled statement.  (Cal. Rules of Court, rules 8.831, 8.832, 8.834, 8.836, 8.837 [hereinafter “Rule”].)  (Nielsen v. Gibson (2009) 178 Cal.App.4th 318, 324.)  The two most viable alternatives in the absence of a reporter’s transcript are the agreed statement and the settled statement.  As will be discussed below, there are very strict time requirements to employ the use of these alternatives.

 

First step: Timely filing of the Notice of Appeal.  (Rule 8.104.)  This filing date is jurisdictional. If you miss it, the appellate court will not hear the appeal.

 

Second Step: Normally the second step is Designation of the Record. (Rule 8.121.)  Here the appellant designates which pleadings and reporter’s transcripts should be transferred to the Court of Appeal.  The designation is due 10 days after the Notice of Appeal is filed.

 

AGREED STATEMENT

 

Third Step (One Alternative) Agreed Statement:

The “agreed statement” can comprise all or part of the record.  It is prepared by agreement of the parties.  (Rule, 8.134.)  At the time of filing the notice designating the record on appeal (10 days after the Notice of Appeal), appellant must file in the superior court either:

 

The agreed statement; OR

 

      A stipulation that the parties are attempting to agree on a statement.  (Rule, 8.134(b)(1).)  If appellant files a stipulation that the parties are attempting to agree on a statement, and the parties subsequently agree on a statement, appellant must file the statement within 40 days after filing the notice of appeal.  (Rule 8.134 (b)(2).)  The stipulation would be in the following format:

Caption   PRELIMINARY STIPULATION ON ATTEMPT TO PREPARE AGREED STATEMENT (CALIFORNIA RULES OF COURT 8.134)   To the clerk of the court:   It is stipulated between appellant, _ _[name]_ _, and respondent, _ _[name]_ _, through their attorneys of record, that the parties will attempt to prepare an agreed statement on appeal under Cal. Rules of Ct 8.134.                                                                         Signatures of Counsel.

 

If appellant files the stipulation but the parties cannot subsequently agree on a statement, appellant must file a new notice designating the record on appeal within 50 days after filing the notice of appeal.  (Rule 8.134 (b)(3).)  CAVEAT: The problem of course is the Respondent on appeal, has no motive to agree to anything especially if there is no transcript.  Why should the respondent agree in light of the adverse results described above?

 

The agreed statement must explain the nature of the action, the basis of the appellate court's jurisdiction, and how the superior court decided the points to be raised on appeal.  The statement should recite only the facts necessary to decide the appeal; and it must be signed by the parties.  (Rule 8.134(a)(1).)

 

If the statement replaces a clerk's transcript, it must be accompanied by the mandatory contents of a clerk's transcript and may be accompanied by the optional contents of a clerk's transcript.  (Rule 8.134(a)(2) & (3).)

 

If an agreed statement is used because any portion of designated oral proceedings cannot be transcribed, the designating party must file the agreed statement or stipulation within 10 days after the clerk mails notice that designated proceedings cannot be transcribed; if the party files a stipulation, then within 30 more days the party must file the agreed statement, move to use a settled statement, or proceed without such a statement.  (Rule 8.130(g)(1)(A).)

 

The format of the agreed statement must conform to the format requirements for clerk's and reporter's transcripts “insofar as practicable.”  (Rule [8.144(f); See for example, In re Marriage of Demblewski (1994) 26 Cal.App.4th 232 (used agreed statement for appeal); Murphy v. Burch (2009) 46 Cal.4th 157, 162 (used agreed statement for appeal].)

 

SETTLED STATEMENT

 

Third Step (Second Alternative) Settled Statement

 

A record consisting of a “settled statement,” permitted only in limited circumstances, is prepared by appellant's proposal of a statement, respondent's proposal of amendments, and a “settlement” of the statement by the trial judge.  When its use is authorized, the settled statement may replace either the reporter's transcript or both the reporter's and clerk's transcripts.

 

WARNING: This complicated process can only succeed with the close cooperation of trial counsel and appellate counsel.  Appellate counsel does not know the facts of the case and needs trial counsel assistance to prepare the settled statement.  Trial counsel is unfamiliar with appellate procedure and the requirements to designate the record.  Trial counsel needs appellate counsel to assist with procedural and time limits.  This is a joint project.  This is a time consuming (expensive) project and should only be contemplated after the benefits and costs of appeal have been discussed with the client.

 

A settled statement may issue in the following alternative circumstances (Rule 8.137(a)):

 

1/ If appellant is unable to pay for a reporter’s transcript and funds are not available from the Transcript Reimbursement Fund administered by the Court Reporters Board.  For this purpose, a party proceeding in forma pauperis is deemed unable to pay.  (Rule 8.137(a)(2)(C)) OR

 

2./ If the designated oral proceedings were not reported or cannot be transcribed. (Rule 8.137(a)(2)(B).)  When the proceedings cannot be transcribed, the superior court clerk will mail notice specifying the portions

of the oral proceedings that cannot be transcribed and showing the date of the mailing.  The designating party has 10 days thereafter to serve and file an agreed statement or motion to use a settled statement for those portions (Rule 8.130(g)(1)), OR

 

3/ If “a substantial cost saving will result and the statement can be settled without significantly burdening opposing parties or the court.”  (Rule 8.137(a)(2)(A).)

 

TIMELY NOTICE IN THE SUPERIOR COURT

 

Eligible appellants, those who qualify under 1,2, or 3 above, who intend to proceed by settled statement must serve on the parties and file with the superior court clerk a motion to use a settlement statement.  The motion is filed simultaneously with the notice designating the record on appeal (Rule 8.137 (a)(1).) NOTE THIS IS WITHIN 10 DAYS OF FILING THE NOTICE OF APPEAL.  The motion must state whether the settled statement will include only the oral proceedings (replacing the reporter's transcript) or both the oral proceedings and the superior court documents (replacing reporter's and clerk's transcripts).  (Rule 8.137.)  The times for service, filing, and settling will be fixed by the superior court in its order granting the motion for leave to use a settled statement.  (Rule 8.130(g)(1)(B).)

 

The motion must be supported by a “showing” that appellant is eligible to proceed under Rule 8.137 (alternative 1, 2, or 3 above).  (Rule 8.137(a)(2).)  A proposed format is set forth below.

 

Caption   MOTION TO PROCEED BY SETTLED STATEMENT (CALIFORNIA RULES OF COURT 8.137)   To the clerk of the court:   PLEASE TAKE NOTICE that appellant, _ _[name]_ _, in lieu of a _ _[reporter’s/reporter’s and clerk’s]_ _ transcript, moves to proceed by a settled statement under Cal Rules of Ct 8.137.  The designated oral proceedings were not reported.  (Rule 8.137(a)(2)(B).)                                                                     Signature of Counsel

 

 If the superior court denies the motion to use a settled statement, appellant must file a new notice designating the record on appeal within 10 days after the superior court clerk mails (or a party serves) the order denying the motion.  (Rule 8.137(a)(3).)  WARNING: the problem is if the superior court denies the motion, appellant is left without a reporter’s transcript and subject to the “problem” discussed at the outset of this article.

 

PREPARING THE SETTLED STATEMENT 4 STEPS

 

STEP 1.

Within 30 days after the superior court clerk mails (or a party serves) an order granting the motion to use a settled statement, appellant must serve and file in superior court a proposed statement.  (Rule 8.137 (b)(1).)  The statement must be “a condensed narrative of the oral proceedings that the appellant believes necessary for the appeal.”  (Rule 8.137(b)(1).)  At a minimum, the statement should explain as much of each witness' testimony as is necessary to provide a basic understanding of the underlying dispute.  (Committee to Defend Reproductive Rights v. A Free Pregnancy Center (1991) 229 Cal.App.3d 633, 637-639, fn. 5 [mere list of trial witnesses followed by notation of examining attorney's identity “seriously deficient”].)  Subject to court approval in settling the statement, some or all of the evidence may be set forth by question and answer.  (Rule 8.137(b)(1).)  A statement covering only a portion of the oral proceedings must also state the points to be raised on appeal.  The appeal is then limited to those points unless otherwise permitted by the appellate court on appellant's motion.  (Rule 8.137(b)(2).)  Note, in a normal appeal, the issues do not have to be identified until the opening brief is filed.  The settled statement that covers only a portion of the trial, invokes a procedure that will require more thought at the outset concerning the potential issues on appeal.  A sample for the format for Appellant’s Proposed Settled Statement follows:

Caption APPELLANT’S PROPOSED SETTLED STATEMENT (CALIFORNIA RULES OF COURT 8.137(a))   To the clerk of the court:   Under Cal Rules of Ct 8.137, Appellant, submits this statement in lieu of a [reporter’s/reporter’s and clerk’s] transcript.   Appellant proposes the following narrative summary of the oral proceedings during trial: [Summarize in narrative form all or those portions of the oral proceedings appellant considers material to a determination of the points on appeal].   This narrative summary is proposed in lieu of both a reporter’s and a clerk’s transcript.  As required by Cal Rules of Ct 8.137(b)(3), copies of the following documents are attached: [List documents required to be attached under Cal Rules of Ct 8.137(b)(3), and attach copies of those documents]_ _.   NOTE, If the narrative summary covers only a portion of oral proceedings then Appellant must identify the issues on appeal Appellant intends to raise the following points on appeal: [insert summary issues on appeal]                                                                     Signature of Counsel

STEP 2.

Respondent then has the chance to propose amendments to the statement; these must be served and filed with the superior court clerk within 20 days after service of appellant's proposed statement. (Rule 8.137(b)(4).)   A sample for the format for  Respondent’s Proposed Amendments follows:

 

Caption   ‘RESPONDENT’S PROPOSED AMENDMENTS TO APPELLANT’S PROPOSED SETTLED STATEMENT (CALIFORNIA RULES OF COURT 8.137(b)(4))   To the clerk of the court:   PLEASE TAKE NOTICE that respondent,  proposes the following amendments to appellant’s proposed settled statement:   The proposed statement of the oral proceedings should include the following witnesses. The summary of the testimony of witness XX , appearing at page _, line _ through _page _, lines _, should be deleted and the following inserted, [proposed text], for the following reason  [insert reasons].   The proposed statement should contain the following documents and records, copies of which are listed and attached:                                                                                                                                   Signature of Counsel

 

STEP 3.

Within 10 days after respondent files the proposed amendments (or within 10 days after the deadline for such filing has passed), the trial judge will hold a hearing (after at least five days’ notice to the parties) for “settlement” of the statement.  At the hearing, the judge will also fix the times for appellant to prepare, serve and file the settled statement (Rule 8.137(c)(1) & (2).)  In “settling” the statement, the judge may rely on any or all of the following:

a/ the judge's own recollection of what transpired at trial;

b/ notes the judge may have taken during trial;

c/ respondent's suggestions;

d/ a rereading of any reporter's notes that have been retained; and

e/ the retaking of witness testimony as an “aid” to assist the judge in remembering and reconstructing the testimony given at trial. [Western States Const. Co. v. Mun.Ct. (1951) 38 Cal.2d 146, 150 also see Weinstein v. E.F. Hutton & Co., Inc. (1990) 220 Cal.App.3d 364, 370, [trial court may not retake witness testimony as independent method of completing record].)

 

STEP 4.

Within the time fixed by the judge at the hearing appellant must serve and file the final statement as settled by the judge.  Respondent then has five days (running from the date of filing) to serve and file objections to the statement.  (Rule 8.137(c)(3).)  Absent timely objections from respondent, the statement is deemed properly prepared and the clerk will present it to the judge for certification.  (Rule 8.137(c)(3).)  Alternatively, the parties can stipulate that the statement as originally served or as prepared is correct; their stipulation has the same effect as a certification by the trial judge. (Rule 8.137 (c)(4).)

 

 

TIPS TO ASSIST TRIAL COUNSEL

1.       Take copious notes of all witnesses.  If you are an attorney who writes out his questions ahead of time, this will serve you well.

2. If a short cause OSC, why not resort to pre Elkins litigation and just resort to declarations and argue the case for support, custody and/or fees?  (Reifler v. Superior Court (1974) 39 Cal.App.3d 479.) The ultimate irony is the Supreme Court recently announced that family law litigants are entitled to full trials (Elkins v. Superior Court (2007) 41 Cal.4th 1337) with live testimony but the court system can now not afford to provide a court reporter.

3. Make objections and as many motions in possible in writing.  Written motion in limine with subsequent objection demonstrates objections were made and preserved.  This could be critical to establish a record on appeal

4. Make offers of proof in writing.  If you seek to offer evidence and the trial court excludes it improperly, you must make an offer of proof.  (Evid. Code § 354.)  What would the witness have testified to?  Make the offer in writing and protect the record on appeal.

5. Request Findings (Fam. Code see § 4332 [spousal support]; §4056 (b) [factors in determining guideline support]; §4057 [reasons to deviate from guideline]) and a Statement of Decision (see CCP § 632 & Rule 3.1590, Fam. Code § 2127 [set aside]; Fam. Code § 3654 [modification of support]) in writing so there is no dispute requests were made.

6. Perhaps seek a stipulation of certain facts.  Many times, there are many facts that are not disputed.  Such a stipulation will reduce trial time and reduce the need for a settled statement.  Characterization of property is one example when facts are agreed and only legal issues remain for court resolution.

7. Possibly seek court permission to tape record testimony.  Although not an “official” transcript, it may assist counsel when and if a settled statement is necessary.  In McAtee v. Realty Executives  (2004) 121 Cal.App.4th Supp. 1, an unauthorized tape recording was not permitted on appeal as it was not certified.  However the court suggested such an unofficial tape recording might be helpful in preparing a settled statement.

Although the trial was neither reported by a court reporter nor recorded under rule 980.5 of the California Rules of Court, defendant still had the ability to provide us with a record of the testimony and evidence at trial.  It could have provided such a record through either an agreed statement or settled statement. (Cal. Rules of Court rules 126, 127.)  Such a statement could have used the purported trial transcript either to summarize testimony or to recite actual questions and answers as appropriate.  The parties did not, however, file an agreed statement, and defendant did not file a request for a settled statement.  It is an appellant's burden to furnish us with a record that is adequate to consider the contentions on appeal.  (Citations.)  (McAtee, supra,)

Practice Point: No taping should occur without trial court knowledge and

consent.  Counsel should agree that the tape is NOT an official transcript but

merely an aid, when and if a settled statement is prepared.

FINAL THOUGHT

If you have researched the law, intend to make appropriate objections, timely request statement of decision, timely file objections to the proposed statement of decision, and generally intend to litigate a serious good legal issue, one alternative is to sit down with your client and seriously discuss with him or her that she ought to at least consider footing the reporter’s appearance fee.   The cost of the appearance fee will be good insurance if an appeal is justified.  Then the only extra cost will be transcription of the reporter’s notes.  These cost may well be less expensive than the settled statement procedure described above.