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.

           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  







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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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