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District Court of Appeal, First District, Division 1, California.


Civ. 14681.

Decided: August 14, 1951

A. Don Duncan, San Francisco, for appellant. Dion R. Holm, City Atty., Louis T. Kruger, Deputy City Atty., San Francisco, for respondents.

Appellants appeal from a judgment of the superior court denying their petition for a writ of mandate to compel the municipal court to settle ‘Appellants' Statement of Oral Proceedings at Trial, Proposed to be Used on Appeal, From Judgment.’

Question Presented.

Cal.App.n a judge who tried and decided an action be compelled, without a transcript, to settle a statement to be used on appeal where the respondent is without adequate representation due to the death of the attorney representing respondent at the trial?


There was tried before the Honorable Joseph M. Golden, Judge of the San Francisco Municipal Court, an action entitled Ana Perez, plaintiff, v. Western States Construction Co., a partnership, etc., defendants. Judgment in the sum of $725 was entered in favor of said Ana Perez, plaintiff, and against said defendants. After denial of motion for new trial defendants appealed to the San Francisco Superior Court, Appellate Department. Thereafter appellants served on the attorneys for plaintiff Perez a notice that the record on appeal would be by settled statement, and also served a copy of the proposed statement. Rule 7, Rules on Appeal from Municipal Courts in Civil Cases. No proposed amendments to said statement were filed and on notice a hearing was had before the trial judge. No record of what happened at this hearing is presented. In the petition for the writ of mandate it is averred that attorney Sholars, one of the then attorneys of record for plaintiff Perez, stated that the case had been mostly tried by his associate, attorney A. L. Crawford, who was now deceased, and that Sholars could not propose amendments. Thereupon the judge entered his order refusing to settle said statement, extended appellants' time to file a reporter's transcript, ‘and orally advised counsel for appellants at said hearing that appellants would have to prepare their record on appeal by an entire reporter's transcript of the trial proceedings, for the alleged reasons as expressed orally by said Honorable trial judge at said hearing, that Mr. Crawford was dead, and that there were no proposed amendments to said Statement, and that there was ‘nothing to settle’, and that he could not remember all of the proceedings; * * *'

Appellants thereupon filed in the superior court a petition for a writ of mandate to compel Judge Golden to settle said statement, setting forth in addition to the above, that the trial took five days and that a transcript would cost about $300; that appellants are without means of paying for it, and that they are informed that plaintiff Perez (respondent therein) is insolvent and could not pay a judgment for costs of said transcript. Attorney Sholars withdrew as counsel for plaintiff Perez. His formal withdrawal was filed after the hearing on the statement although the withdrawal states that prior thereto he had notified plaintiff Perez he was withdrawing as her counsel, if he had ever been such. The City Attorney of San Francisco represented the respondent municipal court on the hearing in the superior court and represents it in this court. The answer of the respondent municipal court was withdrawn at the hearing in the superior court in order to have the matter determined on legal issues alone. The superior court denied the petition for the writ of mandate.

Should the Judge Have Settled the Statement?

The exact question presented here has not been passed upon in that state. However, there seems to be confusion in the authorities as to the situation where both sides are represented and the court refuses to settle the statement. In Cripe v. Unangst, 20 Cal.App. 75, 128 P. 345, the appellant submitted to the trial judge a proposed statement on appeal. The respondent, by way of purported amendment, moved to strike the entire statement and asked for an order that the reporter's transcript be used instead. The trial judge refused to settle the statement and granted respondent's motion concerning the transcript. On application to this court, a writ of mandate was issued requiring the judge to settle the transcript. The court said, 20 Cal.App. at page 78, 128 P. at page 347: ‘If, as alleged by respondent in his affidavit, he has forgotten by reason of the lapse of time many important matters, that difficulty can be obviated by having the reporter read to him the notes taken at the trial, from which the judge may intelligently and properly direct appellant as to the manner and character of the statement which should be prepared and which only he is willing to settle’ and quoted from Vatcher v. Wilbur, 144 Cal. 536, 538, 78 P. 14, the following: “* * * under the circumstances of this case, it was not a proper exercise of the discretion vested in the respondent judge to require a transcription of the full reporter's notes as a condition for settling said statement * * *.” In Averill v. Lincoln, 24 Cal.2d 761, 151 P.2d 119, the court in relieving appellants of default in not giving timely notice of election to proceed by way of settled statement stated that if the judge deemed it necessary in order to pass upon the sufficiency or accuracy of the proposed statement he could require appellants to furnish a reporter's transcript. The case, however, is of no value here for the reason that due to the fact that the judge who tried the case was away in the army, the settlement of the statement had to be made by a judge entirely unfamiliar with the case.

In Lande v. Southern California Freight Lines, 78 Cal.App.2d 417, 177 P.2d 936, appellant presented his proposed statement on appeal. Respondent moved to strike it on the ground that it was wholly inadequate. Respondent filed an affidavit stating that the trial had lasted 42 days; that the testimony covered some 2,000 pages of reporter's transcript; that the proposed statement consisted of only 76 pages; that to have an adequate statement it would be necessary to include partly in narrative form and partly by question and answer, testimony of some 18 or 20 witnesses which was not included in the proposed statement, and that the cost of transcribing that testimony would be approximately $1,250. After a hearing the trial judge ordered that there be incorporated in the statement in narrative form the testimony of 19 witnesses and portions of the testimony in question and answer form, of several other witnesses as proposed amendments. Appellant appealed from this order. ‘Appellant contends that the court exceeded its jurisdiction in ordering the incorporation of a transcript of the entire oral proceedings as to the 19 witnesses. The contention appears to be that if an appellant proposes to proceed by settled statement in lieu of a reporter's transcript, the trial judge must settle the statement without the use of a transcript. The rule is to the contrary. A judge is not required to act upon his own recollection in such matters, and of course should not do so unless he is satisfied that his recollection is so clear and complete as to make an examination of a transcript unnecessary. It appears clearly from the record that the trial judge was convinced of his inability to settle a satisfactory statement without the benefit of a transcript.’ 78 Cal.App.2d at page 420, 177 P.2d at page 938. Then came Keller v. Superior Court, 100 Cal.App.2d 231, 223 P.2d 309. There appellant filed his proposed statement. Respondents filed a proposed amendment consisting of a revised narrative recital of the proceedings at the trial. Appellant did not object to this revision except that he suggested certain additions thereto. The trial judge made an order declining to settle the statement giving as his principal reasons (1) that it did not contain the conclusions of law and judgment made by the court (respondent had proposed no amendments as to this and apparently was satisfied with appellant's proposed statement); (2) that the judge did not think the proposed statement contained all the evidence material to the various ‘points on appeal.’ Thereupon the judge refused to settle the statement ‘in the absence of a reporter's transcript or a genuine effort to furnish a substantial substitute therefor.’ In granting appellants' petition for a writ of mandate to compel the trial judge to settle the statement, the court said, 100 Cal.App.2d at page 234, 223 P.2d at page 311: ‘The rule now appears to be well settled in this state that when an appeal is taken pursuant to Rule 7 of Rules on Appeal, full and plenary powers over such a record is reposed in the trial judge, subject only to the limitation that he does not act arbitrarily. [Citations.]’ The court was there referring to Rule 7 of Rules on Appeal which is substantially the same as Rule 7 Rules on Appeal from Municipal Courts in Civil Cases. ‘The question presented to us is whether in refusing to settle the statement on appeal under Rule 7 of Rules on Appeal, the trial judge acted in an arbitrary fashion. We are persuaded that he did. * * * While stating in his order that neither the statement proposed by petitioner nor the amendments offered by respondents Ravenscroft and Hiers ‘contained all the evidence material to the various ‘points on appeal”, nowhere does the respondent judge point out or specify and deficiencies, such as were carefully listed by the judge in the case of Dainty Pretzel Co. v. Superior Court, 7 Cal.App.2d 437, 439, 45 P.2d 817. * * * Before a litigant can be compelled to expend the sum of $325 for a complete reporter's transcript surely the trial judge, in the interests of justice, should specify wherein the statement as offered and amended is deficient. While a trial judge has undisputed power to settle as the record anything he wants therein, he cannot arbitrarily refuse to settle the record without disclosing a single item of relevant testimony that was omitted from the proffered statement on appeal. Under the facts here present, the respondent judge should either have allowed the amendments and ordered the statement prepared accordingly, or required such other changes as would make it conform to the facts. In ordering amendments to the statement on appeal the trial judge has available (1) the suggestions of the respondents on appeal; (2) the judge's own memory, Vatcher v. Wilbur, 144 Cal. 536, 78 P. 14; (3) notes made by the judge during the trial, 4 Corpus Juris 257, 4 C.J.S., Appeal and Error § 846; and (4) the right to recall a witness to repeat testimony, 4 Corpus Juris 257, 4 C.J.S., Appeal and Error § 846; and (5) the right to have the reporter reread such of his notes as may prove helpful. If the foregoing prove insufficient, then it should be made to clearly appear from the record, and reasons given therefor, why the trial judge was convinced of his inability to settle a satisfactory statement, agreed to by both appellant and respondents on appeal, without the benefit of a complete reporter's transcript.’ 100 Cal.App.2d at pages 234–235, 223 P.2d at page 311. There appears to be a conflict between the Lande case, supra, where the court stated ‘A judge is not required to act upon his own recollection in such matters' and the foregoing extracts from the Keller case. However, the conflict is probably more apparent than real. In the Keller case, the parties were satisfied with the proposed statement with its proposed amendments. The judge arbitrarily insisted upon a reporter's transcript. In the Lande case the statement was not satisfactory. Moreover, the judge did not insist upon a transcript; he merely required the incorporation in narrative form of the testimony of the 19 witnesses omitted from the proposed statement, and portions in question and answer form as the same were set forth in plaintiff's proposed amendments.

A fair statement of the rule that governs the settlement of statements is this: The trial judge should not refuse to settle a statement merely to enable his reporter to be employed to prepare a transcript. The very purpose of the settled statement method of appeal is to save the litigants, if possible, the expense of a transcript. He should not act arbitrarily. He should reasonably attempt, with the assistance of counsel and with the intent of saving expense for the litigants, where possible, to arrive at a fair statement of such of the trial proceedings as are necessary to the appeal. To this end he should, where practical, resort, as said in the Keller case, to (1) the suggestions of the counsel; (2) his own memory; (3) notes made by him during the trial; (4) the right to have the reporter reread such of his notes as may prove helpful. The Keller case suggests additionally that he can recall a witness to repeat testimony. This does not seem to be a very practical suggestion. If recalled it would be very difficult for a witness to repeat his testimony exactly as previously given. Also such procedure might result in protracted examination and cross-examination. The preparation of a settled statement is primarily the duty of the counsel in the case and the labor of the proposed amendments should not be thrown upon the judge.

Applying these rules to the situation in the case at bar, we find that because there was no attorney representing respondent to help him, practically the entire labor was thrust on the judge to (1) determine if the proposed statement was accurate and sufficient, and (2) propose amendments, if necessary. Moreover, the entire responsibility of protecting respondent's rights was forced upon the judge, and to do it properly he must become almost her advocate. No judge should be placed in his position. Again, the judge indicated that he could not remember all of the proceedings. We must assume that he made the statement in good faith. It is not surprising that a trial judge of a busy court cannot recall all of the proceedings of a five day trial occurring some four months prior. Requiring a reporter's transcript practically eliminates the advantages of proceeding by settled statement. This is unfortunate, but under the peculiar circumstances of the case due to the death of respondent's attorney, it cannot be avoided. The language of Burns v. Brown, 27 Cal.2d 631, 166 P.2d 1, applies here: ‘When appellant cannot or does not want to avail himself of this method of preparing the record on appeal, either because a reporter was not present at the proceedings or for other reasons, and when he fails to convince the trial judge that his statement accurately reflects the proceedings in question, the action of the trial judge, who heard and tried the case, must be regarded as final.’ 27 Cal.2d at page 636, 166 P.2d at page 4 emphasis added. As long as the trial judge does not act in an arbitrary fashion, the rules on appeal confer on him full power over the settlement of the statement. St. George v. Superior Court, 93 Cal.App.2d 815, 209 P.2d 823. We cannot say that under the peculiar circumstances of this case, the trial judge acted arbitrarily.

Appellants contend that the record shows that the deceased attorney Crawford did not try the case solely; that he tried ‘most of the case’ only and that attorney Sholars who appeared at the first hearing on the statement had tried part of the case. It is apparent that whatever the situation may have been in this respect, the trial judge felt that the burden was being cast upon him to perform the labor of determining the correctness of the proposed statement.

Our decision must not be considered as a precedent in cases where the assistance of counsel on both sides is available to the court. There, the court should make every reasonable effort to settle the statement without the expense of a transcript.

Neither party has raised the question as to whether this court has jurisdiction of an appeal from a judgment of the superior court in a mandamus proceeding to compel a judge of the municipal court to settle a statement on an appeal from the latter court to the appellate division of the superior court, the decision of which court on that appeal would be final and not reviewable here. As we hold that the lower court correctly refused on the merits to issue a writ of mandate, we express no opinion on the subject.

The judgment is affirmed.

BRAY, Justice.

PETERS, P. J., and FRED B. WOOD, J., concur.

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