BILL ANALYSIS Ó AB 1002 Page 1 Date of Hearing: May 5, 2015 ASSEMBLY COMMITTEE ON JUDICIARY Mark Stone, Chair AB 1002 (Wilk) - As Amended April 28, 2015 PROPOSED CONSENT (As Proposed to be Amended) SUBJECT: CIVIL ACTIONS: DEPOSITIONS: INTERPRETER COSTS KEY ISSUE: SHOULD INTERPRETER FEES INCURRED FOR THE DEPOSITION OF A NON-ENGLISH SPEAKING PARTY OR WITNESS BE MADE SPECIFICALLY REIMBURSABLE TO THE PREVAILING PARTY? SYNOPSIS Existing law provides that the costs of taking, video recording and transcribing necessary depositions, including travel costs to attend a deposition, are reimbursable costs, but has no clear provision that interpreter costs are included as part of those reimbursable costs. According to the author, this could result in a denial of access to justice if a party has to forego interpretation of deposition testimony simply because of the cost barrier or uncertainty about whether the cost is reimbursable to the prevailing party who paid those costs out-of-pocket. AB 1002 Page 2 This non-controversial bill, sponsored by the California Conference of Bar Associations, seeks to allow a prevailing party to recover interpreter fees for the deposition of a party or witness who does not speak or understand English. Accordingly, this bill would specifically include interpreter costs among those costs of taking a deposition that are reimbursable costs to the prevailing party in a civil action. Proposed amendments to the bill are merely technical and add a co-author. There is no known opposition to this bill. SUMMARY: Revises and clarifies various costs that a prevailing party in a civil action may recover. Specifically, this bill: 1)Allows a prevailing party to recover interpreter fees for the deposition of a party or witness who does not proficiently speak or understand the English language. 2)Clarifies that a prevailing party may recover travel expenses to attend depositions. EXISTING LAW: 1)Provides that, except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding. (Code of Civil Procedure Section 1032(b).) 2)Provides that specified items are allowable as costs to a prevailing party in a civil matter, including, among other things: a) Filing, motion, and jury fees; b) Juror food and lodging, as specified; AB 1002 Page 3 c) Taking, video recording, transcribing necessary depositions, as specified, and travel; d) Service of process, as specified; e) Expenses of attachment, including keeper's fees; f) Premiums on necessary surety bonds; g) Ordinary witness fees, as specified; h) Court reporter fees as established by statute; i) Models and blowups of exhibits and photocopies of exhibits that may be allowed if they were reasonably helpful to aid the trier of fact; j) Court interpreter fees for a qualified court interpreter authorized by the court for an indigent person represented by a qualified legal services project. (Code of Civil Procedure section 1033.5(a).) FISCAL EFFECT: As currently in print this bill is keyed non-fiscal. COMMENTS: This bill seeks to allow a prevailing party to recover interpreter fees for the deposition of a party or witness who does not speak or understand English proficiently. The author explains the need for the bill as follows: Interpreter fees are allowed as a reimbursable cost under existing law only when the party is both indigent and represented by either a legal services organization or a pro bono attorney. This limitation reflects the Legislature's belief that court interpreters should be provided at no cost as a matter of right. The ability of parties and participants to understand what is happening is no less important at earlier stages of litigation, however, particularly since deposition testimony can be used at trial under AB 1002 Page 4 certain circumstances (see e.g. CCP Section 2025.620.) In these cases, working-class and middle-class persons seeking to assert or defend their rights must pay for interpreter services out of their own pocket. This can amount to a denial of access to justice to those who cannot afford the means to understand the legal process. This bill will help increase access to justice for non-English-speaking Californians by making interpreter fees incurred during the taking of necessary depositions a reimbursable cost. This bill ensures that interpreter costs are among those costs of taking a deposition that are reimbursable to the prevailing party. Existing law, Section 1033.5(a)(3) currently provides that the costs of taking, video recording and transcribing necessary depositions, including travel costs to attend a deposition, are a reimbursable cost. However, the author contends, the statute makes no clear provision that interpreter costs are included as part of those costs. Interpreter costs might be found to be allowable costs in the discretion of the court under Section 1033.5(c)(4), but there is no guarantee of this outcome. In contrast, court reporter fees and interpreter fees are each addressed specifically elsewhere in the statute. Accordingly, this bill would specifically include interpreter costs among those costs of taking a deposition that are reimbursable costs to the prevailing party in a civil action. This bill could help increase access to justice for non-English speakers. The author contends that interpretation of deposition testimony, like interpretation of in-court testimony, is crucial to ensure that the parties and witnesses understand what is being said during all phases of litigation. The author further contends that it is a denial of access to justice if a party has to forego either form of interpretation simply because of cost barriers, specifically the inability to recover out of pocket interpretation costs upon prevailing in the case. AB 1002 Page 5 The Committee notes that the Legislature has previously recognized the important need for interpreters in depositions involving non-English speakers. In 2012, the Legislature enacted SB 863 (De Leon), Ch. 363, Stats. 2012, which, among other things, required employers to pay for the services of a language interpreter in a worker's compensation case if interpretation services are required because the injured employee or deponent did not speak or understand English proficiently. Although civil litigation differs from workers' compensation cases, the author rightly points to the same principle at work in both scenarios: Persons who require interpreter services to protect their rights in legal proceedings should not have to pay for the privilege of doing so. This bill, by ensuring that interpreter costs for depositions are reimbursable to the prevailing party, may help remove this potential barrier to access to justice for non-English speakers. Author's technical amendments. The author proposes the following technical amendments: On page 3, line 6, strike "blowups" and replace with "enlargements" Add Assemblymember Alejo as joint co-author. Previous related legislation. AB 1657 (Gomez, Ch. 721, Stats. of 2014) expressly authorizes the court to provide a court interpreter in any civil action or proceeding at no cost to the parties, regardless of the income of the parties. The bill further requires interpreters to be provided in accordance with a specified order of priority, until sufficient funds are AB 1002 Page 6 appropriated to provide an interpreter to every party who needs one. AB 1127 (Chau) of 2013 would have required the Judicial Council to establish a working group to develop "best practices" for providing interpreters in civil court proceedings and further to conduct a pilot project to implement those practices, but was vetoed by the Governor. AB 1403 (Assembly Judiciary Committee, Ch. 409, Stats. of 2011) added court interpreter fees to the costs the a prevailing party could recover in civil action, but only for a qualified court interpreter authorized by the court for an indigent person represented by a qualified legal services project, as defined by Section 6213 of the Business and Professions Code. AB 2684 (Assembly Judiciary Committee, Ch. 758, Stats. of 2012) expanded the right to recover interpreter fees as a cost of litigation to include cases where the prevailing party was represented by a pro bono attorney. REGISTERED SUPPORT / OPPOSITION: Support California Conference of Bar Associations (CCBA) (sponsor) Opposition AB 1002 Page 7 None on file Analysis Prepared by:Anthony Lew / JUD. / (916) 319-2334