AB 1002 Assembly Bill - Bill Analysis

BILL ANALYSIS Ó

SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session

AB 1002 (Wilk)
Version: May 7, 2015
Hearing Date: June 16, 2015
Fiscal: No
Urgency: No
RD

SUBJECT

Civil actions: interpreter costs

DESCRIPTION

This bill would add the fees of a certified or registered
interpreter for the deposition of a party or witness who does
not proficiently speak or understand the English language to the
list of fees recoverable by a prevailing party.

BACKGROUND

The California Code of Civil Procedure permits various costs to
be recovered by a prevailing party, as specified, including
certain costs relating to depositions. Until a few years ago,
there was no provision expressly providing for the recovery of
any costs for court interpreters provided to non-English
speakers in civil cases. In 2011, AB 1403 (Committee on
Judiciary, Ch. 409, Stats. 2011), created a limited remedy by
providing for recovery of costs for qualified court interpreters
authorized by the court for indigent non-English speakers who
are represented by a qualified legal services project, as
specified. Following AB 1403, in 2012 AB 2684 (Committee on
Judiciary, Ch. 758, Stats. 2012) was enacted to add that court
interpreter fees can be recovered by a prevailing party for a
qualified court interpreter authorized by the court for an
indigent non-English speaker who is represented by a pro bono
attorney, as defined. More recently, legislation has been
enacted to recognize the right of non-English speakers and
limited-English speakers to interpreters in civil actions and
proceedings, free of cost, regardless of the parties' income.

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(See AB 1657 (Gomez, Ch. 721, Stats. 2014.)

This bill would now ensure that costs for providing a certified
or registered interpreter for a non-English or limited English
speaker in a deposition are also recoverable by a prevailing
party.

CHANGES TO EXISTING LAW

Existing law provides that except as otherwise provided by
statute, a prevailing party, as defined, is entitled as a matter
of right to recover costs in any action or proceeding. (Code
Civ. Proc. Sec. 1032(a)(5).)

Existing law enumerates the items allowable as costs under the
above provision, including specified costs relating to both
depositions and court reporters. Specifically, existing law
lists the following as recoverable costs, among other things:
filing, motion, and jury fees;
juror food and lodging, as specified;
taking, video recording, and transcribing necessary
depositions, as specified;
ordinary witness fees, as specified;
transcripts of court proceedings ordered by the court;
court reporter fees as established by statute;
court interpreter fees for a qualified court interpreter
authorized by the court for an indigent person represented by
a qualified legal service project, as specified;
models and blowups of exhibits and photocopies of exhibits
that may be allowed if they were reasonably helpful to aid the
trier of fact; and
any other item that is required to be awarded to the
prevailing party pursuant to statute as an incident to
prevailing in the action at trial or on appeal. (Code Civ.
Proc. Sec. 1033.5(a).)

Existing law expressly prohibits the recovery of certain fees:
fees of experts not ordered by the court;
investigation expenses in preparing the case for trial;
postage, telephone, and photocopying charges, except for
exhibits;
costs in investigation of jurors or in preparation for voir
dire; and

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transcripts of court proceedings not ordered by the court.
(Code Civ. Proc. Sec. 1033.5(b).)

Existing law provides that any award of costs is subject to the
following provisions, among others:
allowable costs shall be reasonably necessary to the conduct
of the litigation rather than merely convenient or beneficial
to its preparation;
allowable costs shall be reasonable in amount; and
items not mentioned in this section and items assessed upon
application may be allowed or denied in the court's
discretion.

1. Stated need for the bill

According to the author:

Although existing law makes the cost of taking, video
recording, and transcribing necessary depositions, and related
travel costs, specifically reimbursable, it does not mention
interpreter fees related to the conduct of the deposition.
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 (and not even when the party is indigent and
representing him- or herself). Therefore, interpreter fees in
depositions are reimbursable only in the court's discretion
pursuant to paragraph (c)(4) of the section.

At worst, because of the strict limitation on reimbursement of
interpreter fees, existing law can be read to discourage
reimbursement of those fees incurred in deposition. At best,
the cost of interpreters for non-English speaking deponents
and parties must be pleaded as an additional element of costs,
with no guarantee they will be reimbursed.

AB 1002 will help increase access to justice for
non-English-speaking Californians by making interpreter fees

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incurred during the taking of necessary depositions a
reimbursable cost under [Code of Civil Procedure (CCP) Sec.]
1033.5. [ . . . ]

2. Bill would expressly permit the recovery of interpreter
fees incurred by a prevailing party for purposes of a
deposition

Existing law permits the recovery of certain fees by a
"prevailing party" which is defined to include the party with a
net monetary recovery, a defendant in whose favor a dismissal is
entered, a defendant where neither plaintiff nor defendant
obtains any relief, and a defendant as against those plaintiffs
who do not recover any relief against that defendant. When any
party recovers other than monetary relief and in situations
other than as specified, the "prevailing party" is determined by
the court, and under those circumstances, the court, in its
discretion, may allow costs and, if allowed may apportion costs
between the parties on the same or adverse sides pursuant to
specified rules. Existing law lists various categories of costs
that may be recovered by a prevailing party, to which this bill
would add fees of a certified or registered interpreter for the
deposition of a party or witness who does not proficiently speak
or understand the English language.

Notably, existing law permits the recovery of certain deposition
related costs, as well as certain costs relating to
interpreters, but it does not expressly authorize the recovery
of interpreter fees incurred for the provision of interpreters
in depositions. It is, however, possible that a court would
award these fees in its discretion, as otherwise allowed under
existing law. (See Code Civ. Proc. Sec. 1033.5(c)(4).) The
author recognizes the ability of the court to award these costs
in its discretion (see Comment 1), but stresses the importance
of expressly adding fees relating to the provision of
interpreters in depositions to the list of recoverable fees so
that the section is not misread to discourage reimbursement of
those fees incurred in deposition.

The author also notes that this bill is consistent with prior
legislation that required the provision of interpreters in
workers compensation appeals. (See SB 863 (De León, Chapter
363, Statutes of 2012).) The author writes that, "[a]lthough
the process in civil litigation is different [from workers
compensation appeals], the concept is the same: Persons who

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require interpreter services to protect their rights in legal
proceedings should not have to pay for the privilege of doing
so." Moreover, while AB 1657 (Gomez, Chapter 721, Statutes of
2014), reflected the importance of the right of non-English
speakers or limited English speakers to interpreters, free of
cost, regardless of the party's income, in any civil action or
proceeding where one is needed, the author notes that the
legislation did not address the issue in relation to
depositions.

The sponsor of this bill, the Conference of California Bar
Associations writes in support:

The ability of parties [ ] and participants to understand
what is happening is no less important at earlier stages of a
litigation than in court - particularly since deposition
testimony can be used at trial under certain circumstances
(see [Code of Civil Procedure Sec.] 2025.620). In these cases,
working- and middle-class individuals and businesspersons
seeking to assert or defends 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[, w]hich is
particularly inappropriate in California where our diversity
and multi-lingualism goes back to the very beginning and an
original state Constitution written in both English and
Spanish.

Support : None Known

Opposition : None Known

HISTORY

Source : Conference of California Bar Associations

Related Pending Legislation : None Known

Prior Legislation :

AB 1657 (Gomez, Ch. 721, Stats. 2014) See Background.

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AB 2684 (Committee on Judiciary, Ch. 758, Stats. 2012) See
Background.

AB 1403 (Committee on Judiciary, Ch. 409, Stats. 2011) See
Background.

Prior Vote :

Assembly Floor (Ayes 78, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)

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