Existing law enumerates costs that a prevailing party in a civil action may recover. Existing law allows a prevailing party to recover court interpreter fees under specified conditions. Existing law also allows recovery of certain costs related to depositions.

This bill would allow 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.

Existing law enumerates costs that a prevailing party in a civil action may recover. Existing law allows a prevailing party to recover court interpreter fees under specified conditions. Existing law also allows recovery of certain costs related to depositions.

This bill would allow 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.

Existing law enumerates costs that a prevailing party in a civil action may recover. Existing law allows a prevailing party to recover court interpreter fees under specified conditions. Existing law also allows recovery of certain costs related to depositions.

This bill would allow 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.

Existing law enumerates costs that a prevailing party in a civil action may recover. Existing law allows a prevailing party to recover court interpreter fees if the court authorized the use of a qualified court interpreter for an indigent person represented by a qualified legal services project. under specified conditions. Existing law also allows recovery of certain costs related to depositions.

This bill would allow a prevailing party to recover court interpreter fees without this condition. for the deposition of a party or witness who does not proficiently speak or understand the English language.

Existing law enumerates costs that a prevailing party in a civil action may recover. Existing law allows a prevailing party to recover court interpreter fees if the court authorized the use of a qualified court interpreter for an indigent person represented by a qualified legal services project.

This bill would allow a prevailing party to recover court interpreter fees without this condition.

 CONSENT  

Bill No: AB 1002

Author: Wilk (R) and Alejo (D)

Amended: 5/7/15 in Assembly

Vote: 21

SENATE JUDICIARY COMMITTEE: 7-0, 6/16/15

AYES: Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning, Wieckowski

ASSEMBLY FLOOR: 78-0, 5/14/15 (Consent) - See last page for vote

SUBJECT: Civil actions: interpreter costs

SOURCE: Conference of California Bar Associations

DIGEST: This bill adds 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.

ANALYSIS:

Existing law:

1. 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.

2. 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.

3. 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

• Transcripts of court proceedings not ordered by the court.

4. 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:

1. Adds to the above list of recoverable fees: 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.

2. Makes other technical and nonsubstantive changes.

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, Chapter 409, Statutes of 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, Chapter 758, Statutes of 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. (See AB 1657, Gomez, Chapter 721, Statutes of 2014.)

This bill now ensures 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.

Comment

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

FISCAL EFFECT: Appropriation: No Fiscal Com.: No Local: No

SUPPORT: (Verified 6/19/15)

Conference of California Bar Associations (source)

OPPOSITION: (Verified 6/19/15)

None received

ASSEMBLY FLOOR: 78-0, 5/14/15

AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood, Atkins

NO VOTE RECORDED: Linder, Medina

Prepared by: Ronak Daylami / JUD. / (916) 651-4113

6/19/15 14:34:24

**** END ****

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2015-2016 Regular Session

Bill No: AB 1002 (Author:Wilk)

Version: May 7, 2015

Hearing Date: June 16, 2015

Fiscal: No

Urgency: No

Consultant: 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. (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

• 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 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 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 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)

**************

Date of Hearing: May 5, 2015

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:AB 1002

Author:(Wilk) – As Amended Ver: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.

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:

   1. Filing, motion, and jury fees;

   2. Juror food and lodging, as specified;

   3. Taking, video recording, transcribing necessary depositions, as specified, and travel;

   4. Service of process, as specified;

   5. Expenses of attachment, including keeper's fees;

   6. Premiums on necessary surety bonds;

   7. Ordinary witness fees, as specified;

   8. Court reporter fees as established by statute;

   9. Models and blowups of exhibits and photocopies of exhibits that may be allowed if they were reasonably helpful to aid the trier of fact;

   10. 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 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.

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 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

None on file

Analysis Prepared by: Anthony Lew / JUD. / (916) 319-2334