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. AB 1002 (Wilk) Page 2 of ? (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 AB 1002 (Wilk) Page 3 of ? 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. 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 above list of recoverable fees. This bill would make other technical and nonsubstantive changes. COMMENT 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 AB 1002 (Wilk) Page 4 of ? 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 AB 1002 (Wilk) Page 5 of ? 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. AB 1002 (Wilk) Page 6 of ? 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) **************