BILL ANALYSIS �
AB 365
Page 1
ASSEMBLY THIRD READING
AB 365 (Mullin)
As Amended April 3, 2013
Majority vote
JUDICIARY 7-3
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|Ayes:|Wieckowski, Alejo, Chau, | | |
| |Dickinson, Garcia, | | |
| |Muratsuchi, Stone | | |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Wagner, Gorell, | | |
| |Maienschein | | |
| | | | |
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SUMMARY : Clarifies that only proceedings that are transcribed
by licensed official court reporters and official reporters pro
tempore can be considered as prima facie evidence of that
testimony and the proceedings. Specifically, this bill :
1)Provides that notwithstanding any other provision of law, the
report of the official reporter, or official reporter pro
tempore, of any court, duly appointed and sworn, when
transcribed and certified as being a correct transcript of the
testimony and proceedings in the case, is prima facie evidence
of that testimony and proceedings.
2)Establishes within the Code of Civil Procedure (CCP) that
official reporters and official reporters pro tempore shall be
appointed as provided by Government Code Section 69942.
EXISTING LAW :
1)Provides that the report of the official reporter, or official
reporter pro tempore, of any court, duly appointed and sworn,
when transcribed and certified as being a correct transcript
of the testimony and proceedings in the case, is prima facie
evidence of that testimony and proceedings.
2)Provides that the report of the official reporter, or official
reporter pro tempore, of any court, duly appointed and sworn,
when prepared as a rough draft transcript, shall not be
AB 365
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certified and cannot be used, cited, distributed, or
transcribed as the official certified transcript of the
proceedings.
3)Provides that the instant visual display of the testimony or
proceedings, or both, shall not be certified and cannot be
used, cited, distributed, or transcribed as the official
certified transcript of the proceedings.
4)Requires that every person appointed to the position of
official reporter of any court possess a license to practice
as a certified shorthand reporter from the Court Reporters
Board of California.
FISCAL EFFECT : None
COMMENTS : This bill, sponsored by the Deposition Reporters
Association of California, seeks to clarify that only
proceedings that are transcribed by licensed official court
reporters and official reporters pro tempore can be considered
as prima facie evidence of that testimony and the proceedings,
pursuant to CCP Section 273. In other words, CCP Section 273
establishes that transcripts made by official reporters are
those that qualify as prima facie evidence of not just what
occurred at a proceeding, but evidence of the testimony and
proceeding itself, and all other transcripts are not entitled to
be recognized with that evidentiary status.
According to the author, CCP Section 273 is intended to limit
the evidentiary status of the work product of officials in that
statute to those transcripts that are done by licensees of the
Court Reporters Board of Governors, namely "official court
reporters" and "official reporters pro tempore." The author
contends, however, that the absence of a cross-referencing
statute tying the Government Code definition of "official
reporters" and "official pro tempore reporters" to this
presumption in CCP Section 273 leaves an unwanted ambiguity in
the interpretation of the statute. The author states that this
"possibly leaves open the question of whether court
administrators could interpret these words expansively, arguing
that the Legislature could have defined this in the CCP as it
did in the Government Code but elected not to, and thereby
assign official or official pro tempore tasks to non-licensees."
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In any case, the author contends that the nexus between a
licensed reporter and the characteristic of being evidence of
the testimony and proceedings should be made express here, in
the same way that it is made expressly in the context of
deposition reporters and depositions. The author cites CCP
Section 2025.330(b), which requires that testimony by a
deponent, "if taken stenographically, shall be by a person
certified pursuant to Article 3 (commencing with Section 8020)
of Chapter 13 of Division 3 of the Business and Professions
Code" as an example where this connection is expressly made.
To address this perceived lack of clarity, this bill adds a new
section to the CCP that simply provides that official reporters
and official reporters pro tempore shall be appointed as
provided by Government Code Section 69942. In addition, the
bill adds the clause "notwithstanding any other provision of
law" to reinforce that the rule of CCP Section 273 applies in
every circumstance--namely that only transcripts made by
licensed official court reporters and official reporters pro
tempore can be considered as prima facie evidence of that
testimony and the proceedings.
Although the bill seeks to make express what is already
considered to be a strong presumption within CCP Section 273 to
avoid possible misapplication of the statute, bill proponents
have not provided and the Assembly Judiciary Committee is
unaware of any examples where a court has interpreted the
statute so broadly as to assign official reporting tasks to a
non-licensee.
Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334
FN: 0000113