Case Number: GC041516 Hearing Date: June 13, 2014 Dept: NCD

TENTATIVE RULING
#22
GC 041516
TEN v. HSU

Plaintiff’s Motion to Proceed on Appeal by Settled Statement Instead of a Reporter’s Transcript

TENTATIVE:
[No Opposition]
Unopposed motion is GRANTED. Plaintiff to comply with all procedural requirements for obtaining a certified settled statement.

SUMMARY OF FACTS:
This matter arises out of the transfer of real property which plaintiff alleges was fraudulently made depriving him of his interest in what has been designated the Carriage House property. The matter went to a court trial in September of 2013. The court issued its Statement of Decision in the matter in December 2013, awarding judgment in favor of plaintiff Lin Wen Ten in the amount of $1,261,013, half the amount of the stipulated net proceeds of the sale by Shen of the Carriage House property.

ANALYSIS:
Procedural
This motion does not appear to be timely.

The motion is brought pursuant to CRC Rule 8.137, which provides, in pertinent part:
“a) Motion to use settled statement

(1) An appellant intending to proceed under this rule must serve and file in superior court with its notice designating the record on appeal under rule 8.121 a motion to use a settled statement instead of a reporter’s transcript or both reporter’s and clerk’s
transcripts.”
(Emphasis added).

The file here shows that the moving party filed its Notice Designating Record on Appeal on April 14, 2014, showing it was served on April 9, 2014. The motion was filed and served on April 21, 2014. Under Rule 8.121, there are strict time limits: “Within 10 days after filing the notice of appeal, an appellant must serve and file a notice in the superior court designating the record on appeal.”

Previous statutes designating the time limitations within which to request a settled statement have been interpreted to serve the purpose of having the statement prepared while the matter is still fresh:
“’The obvious purpose of this time limitation is to enable the parties to prepare the ‘condensed statement of the oral proceedings’ while the evidence is fresh in the memories of counsel.’”
Brown v. Guy (1959) 167 Cal.App.2d 211, 217, quoting Brock v. Southern Pacific Co. 74 Cal.App.2d 806, 809.

While Brown observed that the trial court should liberally grant relief where time deadlines have been missed with respect to designating the record on appeal, in that case there was a request for relief, and there is no request for relief here. It appears from the declaration submitted with this motion that counsel was aware at the time of the trial in September that the oral proceedings held during trial were not reported by a court reporter. [McKay Decl., para. 6]. There appears to have been no reason why this motion could not have been made at the time the record was otherwise designated.

Substantive
The procedures for use of a settled statement on appeal are set forth at CRC Rule 8.197, which provides:
“a) Motion to use settled statement

(1) An appellant intending to proceed under this rule must serve and file in superior court with its notice designating the record on appeal under rule 8.121 a motion to use a settled statement instead of a reporter’s transcript or both reporter’s and clerk’s transcripts.

(2) The motion must be supported by a showing that:

(A) A substantial cost saving will result and the statement can be settled without significantly burdening opposing parties or the court;

(B) The designated oral proceedings were not reported or cannot be transcribed; or

(C) The appellant is unable to pay for a reporter’s transcript and funds are not available from the Transcript Reimbursement Fund (see rule 8.130(c)). A party proceeding in forma pauperis is deemed unable to pay for a transcript.

(3) If the court denies the motion, the appellant must file a new notice designating the record on appeal under rule 8.121 within 10 days after the superior court clerk mails, or a party serves, the order of denial.

(b) Time to file; contents of statement

(1) Within 30 days after the superior court clerk mails, or a party serves, an order granting a motion to use a settled statement, the appellant must serve and file in superior court a condensed narrative of the oral proceedings that the appellant believes necessary for the appeal. Subject to the court’s approval in settling the statement, the appellant may present some or all of the evidence by question and answer.

(2) If the condensed narrative describes less than all the testimony, the appellant must state the points to be raised on appeal; the appeal is then limited to those points unless, on motion, the reviewing court permits otherwise.

(3) An appellant intending to use a settled statement instead of both reporter’s and clerk’s transcripts must accompany the condensed narrative with copies of all items required by rule 8.122(b)(1), showing the dates required by rule 8.122(b)(2).

(4) Within 20 days after the appellant serves the condensed narrative, the respondent may serve and file proposed amendments.

(5) The proposed statement and proposed amendments may be accompanied by copies of any document includable in the clerk’s transcript under rule 8.122(b)(3) and (4).

(c) Settlement, preparation, and certification

(1) The clerk must set a date for a settlement hearing by the trial judge that is no later than 10 days after the respondent files proposed amendments or the time to do so expires, whichever is earlier, and must give the parties at least five days’ notice of the hearing date.

(2) At the hearing, the judge must settle the statement and fix the times within which the appellant must prepare, serve, and file it.

(3) If the respondent does not object to the prepared statement within five days after it is filed, it will be deemed properly prepared and the clerk must present it to the judge for certification.

(4) The parties’ stipulation that the statement as originally served or as prepared is correct is equivalent to the judge’s certification.”

As noted above, the motion includes a declaration from counsel indicating that the proceedings at issue, the oral proceedings held during trial, were not reported by a court reporter, so cannot be transcribed. [McKay Decl., para. 6, 7]. There is no opposition. The oral proceedings therefore appear to be appropriate matter pursuant to which the court should issue an order permitting the use of a settled statement, and start the process of settling the statement. The Court deems the above-summarized timeliness issues to have been waived, particularly in light of the absence of an opposition, and the motion is therefore granted.