Filed 12/9/19 Healy v. Freeman CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Yuba)

—-

JACKIE DAWN HEALY et al.,

Appellants,

v.

CHRISTOPHER FREEMAN,

Respondent.

C087962

(Super. Ct. No. CVFO1800139)

Petitioners Jackie Dawn and Jerry Healy appeal from the trial court’s order denying their request for grandparent visitation. Petitioners contend it was reversible error for the trial court to fail to either require a verbatim transcript of the proceedings or inquire whether the parties wanted one. We affirm the order.

BACKGROUND

Petitioners filed a petition for grandparent visitation and paid a $435 initial filing fee. The trial court set a hearing date, but the matter was continued to permit notice by publication to respondents and later for respondent father to obtain counsel. Respondent father objected to the petition and the trial court set the matter for a long cause hearing. Respondent father filed a responsive declaration and a witness list with proffers of those witnesses’ testimony. Nothing in the record indicates any witnesses testified live at the hearing. There is no indication in the record that either party ever requested a court reporter, objected to the lack of court reporter at any hearing, or requested a continuance for purposes of obtaining a court reporter. The minutes for the long cause hearing indicate the parties met and conferred with counsel in the hallway and the trial court denied the petition. The trial court found insufficient bonds existed between the petitioners and the minor children to warrant visitation. Petitioners filed a notice of appeal and paid the $100 appellate filing fee.

DISCUSSION

Petitioners contend the trial court committed reversible error by not requiring a verbatim transcript of the proceedings and not inquiring whether petitioners wanted such a transcript. Petitioners claim the “mandate of the law” required a verbatim transcript if the parties requested one or required the trial court to inquire if the parties wanted a verbatim transcript. There was no request by any party for a verbatim transcript. Accordingly, this appeal must proceed only on the claim that the trial court was required to inquire if the parties wanted a verbatim transcript. Petitioners rely on California Rules of Court, rule 2.956(b)(3) and Jameson v. Desta (2018) 5 Cal.5th 594 (Jameson) to support their claim. This reliance is misplaced.

In civil cases, a court reporter is required only on the order of the court or the request of a party. (Code Civ. Proc., § 269, subd. (a)(1).) The parties are required to pay for the services of an official court reporter or obtain a fee waiver. (Gov. Code, § 68086, subds. (a)-(e).) Government Code section 68086, subdivisions (a) and (b) delineate the amount of fees to be paid, the party responsible for paying those fees, and the availability of a fee waiver for those granted a filing fee waiver. A litigant who “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.) Rule 2.956(b)(1) requires the trial courts to adopt local policies regarding the departments and types of matters in which the services of official court reporters are normally available and those in which they are not. The Superior Court of Yuba County, Local Rules, rule 2.10 provides notice that the Yuba County courts do not routinely provide court reporters, except in specified proceedings not relevant here. It goes on to indicate that parties who want a “court reporter present for any other proceedings must make their own arrangements with any reporting service they desire.” (Super Ct. Yuba County, Local Rules, rule 2.10(A).) Rule 2.956(b)(3) provides: “Unless the court’s policy states that all courtrooms normally have the services of official court reporters available for civil trials, 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.”

Petitioners read these rules and Jameson to create an obligation of the trial court to inquire whether the parties want a verbatim transcript, which would have prompted them to determine whether they could pay for such a transcript, which in turn would have prompted the request for a fee waiver. This reads too much into Jameson and the rules of court.

In Jameson, as a matter of ensuring equal access to justice, the California Supreme Court held that a litigant who “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.) This rule does not apply to these petitioners, as they did not seek or obtain a fee waiver, and there is no claim they were denied access to justice. Moreover, nothing in Jameson imposes a duty on the court to inquire if a party wants a verbatim transcript. The portion of the opinion which petitioners cite to support their contention is a recitation of the factual background in Jameson. (Id. at pp. 600-601.) The recitation of facts is not a holding, nor does it impose any duty on the court.

Rule 2.956 was explicitly enacted solely to effectuate the statutory mandate of Government Code section 68086, subdivisions (a) and (b); that is, the provisions that relate to the setting and payment of fees for court reporters. The requirement that the trial court obtain a statement from the parties indicating whether they want a court reporter is to facilitate the determination of who pays the fees, if the party wants a court reporter. It is not a requirement that the trial court determine who desires a reporter. We conclude there is no reversible error. The local rules make clear that there would not be a court reporter at this hearing and if petitioners wanted a court reporter, it was incumbent upon them to make those arrangements. The only exception to this requirement would be if they had obtained an initial filing fee waiver, as in Jameson. They did not.

DISPOSITION

The order is affirmed.

/s/

BLEASE, Acting P. J.

We concur:

/s/

BUTZ, J.

/s/

MURRAY, J.