Monday, June 15, 2020

Davis v. Superior Court (Cal. Ct. App. - June 15, 2020)

I appreciate the Court of Appeal taking up this (somewhat untimely) writ petition and trying to help out self-represented litigants.  That's a good thing.  Lots of Justice Segal's opinion makes total sense.

Though two quick things:

(1) Do you really need a court reporter for ex parte hearings?  My experience is that lots of these (depending on the judge) are in-chambers and not recorded, even back in the "old days" when the court provided court reporters.  And, as the Court of Appeal notes here, some judges (including the judge here, perhaps) don't hear argument on ex partes, and simply rule on the papers.

I agree that self-represented, indigent litigants should be entitled to a court reporter on equal terms with other litigants.  But I'd make clear that that's as far as today's holding goes.  You're not entitled to a court reporter if the trial court (a) doesn't hear argument at all, or (b) hears ex parte applications in chambers without anyone being able to bring a court reporter there (even attorneys).

I'm less certain about (b) because there's not much of a downside to having court reporters there.  But there's not much of an upside either.  They're ex partes, after all; very few of those things require an appeal, and still fewer require us to know what exactly the court and parties said therein.  Normally this self-corrects, since it's simply not worth it for a party to spend the money to have a court reporter there.  But for indigent litigants, since they don't pay, that self-correcting mechanism doesn't exist.  Hence my slight preference for (b).

So, yes, self-represented litigants should be treated equally well as represented litigants.  But that doesn't mean they should get a court reporter when represented litigants can't either.  Thus (a) and (b).

(2) The Court of Appeal holds that the petitioner here should be entitled to appear telephonically.  As a general matter, I agree.  That's what the rules say, and it's the right thing.

Almost always.

But it's still a matter of discretion.  And I wonder if this is really the best case in which to articulate (or apply) such a rule.  The petitioner, Jaime Davis, owes the other side over $150,000 in costs and fees.  She hasn't paid for eight years, and her creditor wants to take a judgment debtor exam.  She doesn't want to appear at one, and doesn't show up.  Even after the trial court repeatedly denies her requests to cancel the examination.  Hence the bench warrant.

Normally, I'm sympathetic to a litigant's desire to appear telephonically.  But the one exception to that rule is when a litigant wants to do so in order to avoid justly imposed consequences.  One reason that a trial judge might not allow a litigant like Ms. Davis to appear telephonically is because it doesn't want her to continue skipping out on court-ordered obligations; e.g., the debtor's exam.  So a trial judge might reasonably say to her, I think:  "Okay, I'll hear your ex parte to cancel the exam.  But show up personally; if I deny your application, you're going to be examined that day (or arrested).  No requests to cancel the exam and then, if I disagree, simply not showing up.  Appear personally."

Yet the Court of Appeal here doesn't seem to allow that.  The panel says that Ms. Davis is allowed to show up via telephone.  Period.

But I could see a reasonable trial judge coming out the other way given the equities of this and similar cases.

Admittedly, a represented party could play fast and loose with a debtor's exam, and hire a lawyer to show up for an ex parte and then, if denied, not show up for her exam.  So maybe we should allow a self-represented litigant to play the same game by showing up telephonically.

But I would likely think it permissible for a trial court in both cases to require the party to show up personally.  To say to the represented litigant, or example:  "I'm happy to hear your ex parte.  But I require the client to show up personally alongside her lawyer.  That way no games."  And if you can do that with the represented litigant (and I think you can), I'd let a trial court do the same thing with a self-represented litigant.  Thus requiring them to appear in person rather than over the telephone.

So I agree that self-represented litigants should be treated equally and fairly.  But I'm not sure that results in as categorical of a rule as the Court of Appeal articulates in today's opinion.

A couple of caveats instead should apply.