Filed 6/25/20 Padron v. City of Parlier CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

ALFONSO PADRON,

Plaintiff and Appellant,

v.

CITY OF PARLIER et al.,

Defendants and Respondents.

F077052

(Super. Ct. No. 16CECG00211)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Kristi Culver Kapetan, Judge.

Alfonso Padron, in pro. per, for Plaintiff and Appellant.

Law Offices of Gregory L. Myers and Gregory L. Myers for Defendants and Respondents.

-ooOoo-

Plaintiff Alfonso Padron appeals from the judgment of the trial court entered following a grant of nonsuit in favor of defendants City of Parlier and its employees Israel Lara and Hilda Johnson de la Fuente (collectively defendants). Plaintiff’s case was premised on his claim that defendants interfered with his free speech rights by means of allegedly intimidating words or conduct at the time of a council meeting of the City of Parlier. On or about the first day of trial, plaintiff requested that he be granted a fee waiver of the fees regularly required of civil litigants for (i) the provision of a court reporter and (ii) a jury trial. Plaintiff had previously been granted an initial fee waiver based on economic need at the time his original complaint was filed, but the latter requests made shortly before the commencement of trial were denied by the trial court. As a result, the case proceeded as a court or bench trial without a court reporter. After plaintiff completed his presentation of evidence and rested his case-in-chief, defendants moved for a nonsuit, which was granted by the trial court on the ground that plaintiff had failed to present evidence sufficient to prove any of his claims. A defense judgment followed. Plaintiff now appeals, arguing he is unfairly prevented from being able to demonstrate error on the nonsuit ruling with an adequate record (i.e., a reporter’s transcript) because the trial court reversibly erred in denying his request to waive fees for providing a court reporter at the trial. Plaintiff also argues the trial court erred in denying his fee waiver request for a jury trial.

Although we conclude plaintiff has failed to establish error regarding the matter of jury fees, we agree with plaintiff that the trial court erred in denying his request for a waiver of court reporter fees. Based on the recent Supreme Court decision in Jameson v. Desta (2018) 5 Cal.5th 594 (Jameson), a case discussing access to justice principles in the context of an in forma pauperis civil litigant, we conclude that we must reverse the trial court and remand the case for a new trial at which a court reporter shall be provided. In Jameson, which involved a similar denial of a court reporter to a civil litigant who had received an initial fee waiver, the Supreme Court declared as follows: “Under California’s in forma pauperis doctrine and Government Code section 68086, subdivision (b), 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.” (Id. at p. 598, fn. omitted.) In that case, where the appeal was—as here—from a nonsuit motion granted by the trial court, Jameson concluded that the erroneous denial of a court reporter was not a harmless error. (Id. at pp. 624–625.) The situation presently before us is closely analogous, and we conclude that Jameson is applicable. Furthermore, and consistent with the similar context in Jameson, the error here does not appear to be harmless; thus, reversal is required. (Ibid.) In summary, the judgment of the trial court is reversed, and the case is remanded for a new trial that shall include the provision of a court reporter.

FACTS AND PROCEDURAL HISTORY

On January 25, 2016, plaintiff filed his original complaint for damages in the trial court, followed later by a clarifying amendment thereof (the complaint). According to the complaint and other documents on file in the trial court, defendants allegedly wrongfully interfered with his free speech rights by the use of intimidating words or conduct at the time of a city council meeting of the City of Parlier, purportedly causing plaintiff to fear for his safety. On January 20, 2016, plaintiff was a speaker at the city council meeting in question during the time allowed for public comment. At that time, plaintiff allegedly raised a concern on behalf of one or more parents about the City of Parlier’s failure to promptly take certain actions or warn the public regarding an employee of the City of Parlier who had recently been arrested for possession of child pornography. During the course of the meeting, after plaintiff made his public comments, defendant Hilda Johnson de la Fuente called plaintiff to the lobby where she allegedly confronted him; she insisted that plaintiff should not have been allowed to speak and gave her opinion about the arrested employee. After this verbal confrontation, when plaintiff returned to the ongoing city council meeting, he noticed that Hilda Johnson de la Fuente brought to the meeting room with her a male family member of the arrested employee, an action plaintiff believed was an effort to intimidate him based on his speech, since both the male family member and Hilda Johnson de la Fuente proceeded to stare at plaintiff in an intimidating and harassing manner that caused plaintiff to feel intimidated. It is unclear whether other interactions or confrontations occurred, but apparently plaintiff felt unsafe and left the meeting early without presenting any additional public comments. The city manager (defendant Israel Lara) and members of the city council allegedly recognized what was going on but failed to protect plaintiff from the allegedly intimidating conduct concerning his free speech rights.

Based on these allegations, the complaint alleged that defendants had infringed on his right to freedom of speech, and plaintiff sought recovery of damages under the following legal theories or causes of action: (1) violation of the Tom Bane Civil Rights Act (the Bane Act; Civ. Code, § 52.1); (2) violation of the Ralph Civil Rights Act of 1976 (the Ralph Act; Civ. Code, § 51.7); and (3) intentional infliction of emotional distress.

On January 25, 2016, when plaintiff filed his original complaint, he also submitted a request for an initial waiver of court fees. The trial court granted plaintiff’s request and issued a fee waiver of certain court fees. On a Judicial Council of California form order entitled, “Order on Court Fee Waiver” (the fee waiver order), a box was checked stating that plaintiff’s fee waiver request was granted, including for a court reporter’s daily fees “for up to 60 days following the fee waiver order.” An additional but unchecked box on the fee waiver order could have also waived reporter’s fees “beyond the 60-day period.” Also left blank or unchecked on the fee waiver order was the provision for jury fees to be waived.

We note the inclusion of a 60-day initial period in the language of the fee waiver order was apparently based on California Rules of Court, former rules 3.55 and 3.56, which provided for an initial fee waiver of reporter’s fees that would be effective for only 60 days from the date of the order. (See Jameson, supra, 5 Cal.5th at pp. 615–616.) However, as the analysis and holding in Jameson have recently made clear, Government Code section 68086, subdivision (b) (added by Stats. 2013, ch. 454, § 1), clearly entitles a party who qualifies for and receives an initial fee waiver to also receive a waiver of fees for the attendance of an official court reporter at trial regardless of whether more than 60 days have elapsed. (Jameson, at pp. 599, 607–608.)

In January 2018, three days prior to the date scheduled for trial, plaintiff filed a motion labeled as a motion for judgment on the pleadings. The motion was premised on attached discovery responses. The trial court denied the motion as “untimely.”

According to written court trial minutes, on January 10, 2018, the first day of trial, plaintiff made an oral request “for additional fees to be waived in regards [sic] to jury fees, court reporter and an interpreter.” The request for an interpreter was granted but plaintiff’s request for an additional fee waiver of jury fees and court reporter fees was denied. Thus, the trial of plaintiff’s case was conducted as a court or bench trial without the benefit of a court reporter.

Acting as his own attorney, plaintiff tried his case. According to the written court trial minutes, after making his opening statement on January 10, 2018, plaintiff called defendants Israel Lara and Hilda Johnson de la Fuente to the stand. The trial resumed the following day, but the appellate record does not include the written court trial minutes for January 11, 2018. It is therefore unclear what additional witnesses may have testified on behalf of plaintiff.

After plaintiff completed his presentation of evidence and rested his case, defendants moved for nonsuit. Defendants’ motion was made on the ground that plaintiff failed to present evidence establishing a factual basis for liability under the Bane Act, the Ralph Act, or for intentional infliction of emotional distress. By written order filed January 19, 2018, the trial court granted the nonsuit motion.

In its written order granting the nonsuit motion, the trial court explained its ruling as follows: “Plaintiff … failed to present evidence establishing the [d]efendants had violated the Bane Act [citation] in that there was no evidence presented showing any of the [d]efendants made threats of violence against [p]laintiff, … or that anything the [d]efendants did prevented him from exercising his First Amendment [r]ight to [f]ree [s]peech. Plaintiff also failed to present any evidence of any damages or injuries as the result of any conduct of any of the [d]efendants. [¶] … Although the [c]ourt questions the applica[bility]of the Ralph Act [citation] in this case, the [c]ourt finds that [p]laintiff failed to present any evidence showing any of the [d]efendants acted with violence or threatened violence against [p]laintiff … as required to successfully pursue a cause of action under the Ralph Act. Plaintiff also failed to present evidence of any damages or injuries as a result of any conduct of any of the [d]efendants. [¶] … Plaintiff [also] failed to present evidence which established that any conduct of any of the [d]efendants was ‘outrageous’ as required to support a cause of action for [i]ntentional [i]nfliction of [e]motional [d]istress. Plaintiff also failed to present evidence of any damages or injuries as the result of any conduct of any of the [d]efendants.” In the same order, the trial court found the lawsuit was pursued by plaintiff in bad faith under Code of Civil Procedure section 1038, and that defendants were entitled to an award of reasonable attorney fees and costs.

On January 25, 2018, based on the outcome of the nonsuit motion, a notice of entry of judgment in favor of defendants was filed and served. Plaintiff’s notice of appeal timely followed.

DISCUSSION

I. The Trial Court Erred in Denying Fee Waiver as to Court Reporter

The issue of whether an indigent civil litigant who has received an initial fee waiver should be granted a subsequent request for a waiver of fees regarding a court reporter for trial was addressed by the Supreme Court in Jameson. As clarified in the opening words of that opinion: “Under California’s in forma pauperis doctrine and Government Code section 68086, subdivision (b), 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.” (Jameson, supra, 5 Cal.5th at p. 598, fn. omitted.)

The controversy in Jameson arose because the San Diego Superior Court, in seeking to meet a budget crisis, had implemented a policy of not providing court reporters in most civil cases, although parties could still hire their own reporters if they could afford to do so. (Jameson, supra, 5 Cal.5th at p. 598.) As a result of that policy, the plaintiff’s request in Jameson for a fee waiver to obtain a court reporter was denied by the trial court, even though the plaintiff had an initial fee waiver on file. (Id. at pp. 600–601.) Consequently, as here, the plaintiff’s case in Jameson was tried without a court reporter. The trial court granted a nonsuit against the plaintiff following opening argument, and the plaintiff appealed, but the lack of any reporter’s transcript meant there was no adequate record for meaningful appellate review of the trial court’s decision. (Id. at pp. 598–599.) The Supreme Court held the trial court had erroneously denied the fee waiver, which denial was not justified by the local court policy: “[T]he 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 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.” (Id. at p. 599.) Moreover, the Supreme Court concluded the error was not harmless because, without a reporter’s transcript, the court could not tell whether the trial court’s grant of nonsuit at that early stage of the proceedings was substantively correct. (Id. at p. 625.)

Dogan v. Comanche Hills Apartments, Inc. (2019) 31 Cal.App.5th 566 (Dogan) followed and applied Jameson under similar circumstances. (Dogan, at pp. 567–568, 570–571.) In Dogan, an in forma pauperis plaintiff was denied a requested waiver of fees to provide a court reporter at trial. After the plaintiff there completed her presentation of evidence at trial, the defendant moved for a nonsuit—which was granted. The Dogan plaintiff then appealed. The appellate court in Dogan applied Jameson retroactively, and ordered a reversal for a new trial, explaining as follows: “Jameson applies retroactively to all cases, including this one, not yet final on appeal. Because there is no way to now provide a reporter for a trial that has already occurred, we have no choice but to reverse and remand for a new trial at which an official court reporter will be furnished.” (Dogan, at p. 568.) As in Jameson, the appellate court in Dogan concluded that despite the parties’ characterizations of the testimony at trial, it could not decide the substantive issue of the correctness of the trial court’s ruling without a verbatim reporter’s transcript. Thus, the error was held to not be harmless. (Dogan, at p. 570.)

Here, as in Jameson and Dogan, the trial court erred in denying plaintiff’s request for a fee waiver concerning the provision of an official court reporter at trial. Since plaintiff had already obtained an initial fee waiver based on economic need, the request should have been granted. (Gov. Code, § 68086, subd. (b) [providing that the fee for a court reporter shall be waived for a person with an initial fee waiver]; Jameson, supra, 5 Cal.5th at pp. 598–599, 607–608.) On the issue of whether the error was harmless, it is more difficult to draw a firm conclusion. In their brief on appeal, defendants claim the error was harmless, but defendants fail to adequately explain why that is so. It is true that evidence and testimony were presented at trial by plaintiff, and the trial court concluded that it was insufficient to prove plaintiff’s case, but we do not know what that evidence or testimony was, to evaluate its legal effect. Therefore, we are unable to fairly determine whether the trial court’s ruling was substantively correct. We would note further that the complaint only alleged in a highly conclusory manner that intimidation occurred, and no specific act amounting to a threat of violence is indicated therein, but regardless of such deficiency in the pleading we do not know for sure what the actual testimony at trial may have revealed. In an abundance of caution, then, and lacking any basis for knowing the nature of the actual testimony, we conclude that harmless error has not been adequately shown in this case. Accordingly, we shall reverse the judgment and remand for a new trial at which an official court reporter is to be furnished.

The reversal of the judgment and remand for a new trial necessarily also renders ineffective the portion of the nonsuit order finding that plaintiff did not pursue his lawsuit in good faith based on reasonable cause, which finding was for the purpose of authorizing recovery of additional defense costs including reasonable attorney’s fees under Code of Civil Procedure section 1038. However, we would point out that the trial court, in conducting the new trial on remand, will have discretion to again impose the relief provided for under Code of Civil Procedure section 1038, assuming that the facts and record so warrant, and in that event the relief under section 1038 may, in the trial court’s discretion, include the defense costs of the original trial together with the defense costs of the new trial.

To guide the trial court on remand, we point out that the trial court’s nonsuit order was correct in its summary of the legal standards for liability under the causes of action in question. For liability to exist under the Bane Act, there must be an egregious interference with constitutional rights, based on deliberate or spiteful conduct, and speech alone is insufficient unless it includes threat of violence. (Civ. Code, § 52.1, subd. (k); Center for Bio-Ethical Reform, Inc. v. The Irvine Co., LLC (2019) 37 Cal.App.5th 97, 115; Julian v. Mission Community Hospital (2017) 11 Cal.App.5th 360, 395.) For liability to exist under the Ralph Act, there must be either violence or threat of violence perpetrated against a person on account of certain characteristics listed in the statutory provisions. (Civ. Code, § 51.7, subd. (b); Ramirez v. Wong (2010) 188 Cal.App.4th 1480, 1486.) Finally, as the trial court rightly observed in its nonsuit order, a cause of action for intentional infliction of emotional distress requires “outrageous” conduct as one of the necessary elements for liability. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050–1051; see Berkley v. Dowds (2007) 152 Cal.App.4th 518, 534 [issue of outrageous conduct often determined by trial court as issue of law].) These legal standards will be applicable on remand, just as they were when the nonsuit was granted.

II. No Error Shown Regarding the Denial of Fee Waiver as to Jury Trial

Plaintiff contends the trial court further erred in denying his pretrial request for a waiver of jury fees, which error allegedly deprived him of his right to a jury trial. (See, e.g., Munoz v. Silva (2013) 216 Cal.App.4th Supp. 11, 15 [holding that where jury fees were previously ordered waived by the court, it was unnecessary for the fee waiver recipient to post the advance jury fees].) Defendants respond that plaintiff did not seek a waiver of jury fees until on or shortly before the first day of trial, and there appears to have been a waiver of the right to a jury trial under the circumstances. Under the record before us, defendants’ position appears to be correct. A civil litigant’s right to a jury trial may be waived by the methods set forth in Code of Civil Procedure section 631. (Old Republic Ins. Co. v. FSR Brokerage, Inc. (2000) 80 Cal.App.4th 666, 679 [noting that Code Civ. Proc., § 631 specifies the exclusive methods by which a jury may be waived].) One such method of waiver is by failing to timely post jury fees on or before the date of the initial case management conference for the action. (Code Civ. Proc., § 631, subds. (b), (c), (f)(5); see, e.g., Mackovska v. Viewcrest Road Properties LLC (2019) 40 Cal.App.5th 1, 9.) As explained below, it appears plaintiff failed to timely post the initial jury fees at the time of the initial case management conference, nor did he have a jury fee waiver in place at that time.

As discussed hereinabove, on January 25, 2016, at the time plaintiff’s original complaint was filed, he requested an initial fee waiver, which request was granted by the trial court. The fee waiver was granted as to certain initial court fees but was not granted as to jury fees. In fact, there is no indication on the trial court’s fee waiver order that plaintiff had requested a waiver of jury fees at that time. Under applicable law, including California Rules of Court, rule 3.56, a trial court is not required to include jury fees as part of an initial fee waiver order, but instead the matter of a potential waiver of jury fees may await a subsequent or additional application, if any, by the interested party. (Cal. Rules of Court, rule 3.56; cf. Cal. Rules of Court, rule 3.55.) That appears to be what occurred here. In such circumstances, plaintiff was required to satisfy the procedures set forth in section 631 of the Code of Civil Procedure to avoid a statutory waiver of the right to a jury trial. Thus, plaintiff here had to either timely post the advance jury fee deposit or apply for waiver of jury fees on or before the date scheduled for the initial case management conference for the action. (See Code Civ. Proc., § 631, subds. (b), (c), (f)(5).) In other words, the time period for a party such as plaintiff who has not already received a waiver of jury fees to make a request for such a waiver is no later than when the initial jury fee deposit would otherwise be due, which under Code of Civil Procedure section 631 is the date of the initial case management conference—here May 31, 2016. Plaintiff did not do so, thus, he waived the right to a jury trial under Code of Civil Procedure section 631.

Nevertheless, the trial court had discretion to allow a jury trial by granting relief from the waiver thereof. (Code Civ. Proc., § 631, subd. (g).) A trial court will ordinarily grant an application for relief from a waiver of a jury trial unless doing so would cause hardship or prejudice to the other party, and doubts are resolved in favor of the party requesting a jury trial. (Mackovska v. Viewcrest Road Properties LLC, supra, 40 Cal.App.5th at pp. 1, 9–10.) In exercising its discretion, a trial court is entitled to consider many factors, including the possibility of delay in rescheduling the trial for a jury, lack of funds, the timeliness of the request, and prejudice to all the litigants. (March v. Pettis (1977) 66 Cal.App.3d 473, 480.) A trial court acts properly in denying relief where any reasonable factors can be found to support its decision. (Ibid.) Here, plaintiff never brought a motion seeking relief from his waiver of a jury trial. Having failed to avail himself of such relief, we do not find the trial court abused its discretion in denying plaintiff’s belated last-minute request for a jury fee waiver.

In his appeal, plaintiff merely informs us that on or shortly before the first day of trial, he requested a fee waiver of jury fees and that his request was denied. Plaintiff’s appeal gives no further context, and it fails to provide us with any indication of the issues the trial court may have been called upon to resolve in connection with that last-minute fee waiver request, including any issues of waiver under Code of Civil Procedure section 631. In short, plaintiff has failed to adequately explain why the trial court’s decision was erroneous under all the relevant procedural and factual circumstances before the court at that time. As we have observed above, the matter of a jury trial appears to have been waived, and plaintiff has failed to present an adequate record to show otherwise from either the clerk’s transcript or an appendix. The record on appeal does not reflect that relief from the waiver of jury trial was ever sought. In view of the fact that the trial court’s ruling is presumed to be correct, and plaintiff has failed to demonstrate by an adequate record and cogent argument why the trial court erred, this ground for appeal fails. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) For all these reasons, we conclude that no error or abuse of discretion has been shown in regard to the trial court’s denial of plaintiff’s request for a jury fee waiver.

III. No Error in Denying Plaintiff’s Motion for Judgment on Pleadings

In January 2018, three days prior to the date scheduled for trial, plaintiff filed a motion labeled as a motion for judgment on the pleadings. The motion was premised on attached discovery responses, and therefore was in substance an evidence-based motion. The trial court’s written order stated the motion was denied as “untimely,” which was clearly correct pursuant to Code of Civil Procedure section 438, subdivision (e), which provides the motion should be brought no later than 30 days prior to trial. (See also Code Civ. Proc., § 437c, subd. (a)(3).)

On appeal, plaintiff claims the trial court erroneously denied the motion. We disregard plaintiff’s argument because, in addition to being incorrect for the reason noted above, plaintiff did not provide an adequate record of the motion as part of the clerk’s transcript on appeal, including the opposing party’s papers. Further, in addition to his failure to cite an adequate record pertaining to said motion, plaintiff has failed to present any cogent legal argument on this matter. As we have pointed out, it is fundamental to appellate law that because a trial court’s order is presumed to be correct, error must be affirmatively shown. (Denham v. Superior Court, supra, 2 Cal.3d at p. 564.) Thus, an appellant must affirmatively demonstrate prejudicial error based on adequate legal argument and citation to the record. (Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 556–557.) Since plaintiff failed to meet this burden regarding the ruling on the motion for judgment on the pleadings, we disregard the issue as waived. (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.)

IV. Other Issues Without Merit

Plaintiff raises two additional issues, both of which are clearly without merit. First, plaintiff claims that he was prejudiced by being forced into a situation where he had to pay for private mediation or alternative dispute resolution proceedings. Plaintiff has completely failed to demonstrate that any such purported error occurred by means of an adequate record, and therefore this argument will be treated as waived or forfeited. (Cahill v. San Diego Gas & Electric Co., supra, 194 Cal.App.4th at pp. 956.) Second, plaintiff argues that since the trial court criticized defendant’s attorney for a lack of civility in the context of a discovery motion, the trial court was required to report him to the California State Bar. Plaintiff has failed to establish that any conduct occurred of a nature that would require the trial court to report it to the California State Bar, or that the trial court erred in any manner that caused plaintiff prejudice. In conclusion, these two additional issues as briefly noted above have not been established and are rejected.

 

DISPOSITION

The judgment is reversed. The case is remanded for a new trial that shall include the provision of a court reporter. Plaintiff shall recover costs on appeal.

HILL, P.J.

WE CONCUR:

POOCHIGIAN, J.

DETJEN, J.