Judge: Armen Tamzarian, Case: BC720986, Date: 2024-09-12 Tentative Ruling

Case Number: BC720986    Hearing Date: September 12, 2024    Dept: 52

Plaintiff Donnie Muldrow’s Motion to Use a Settled Statement

            Plaintiff Donnie Muldrow moves for an order permitting him to use a settled statement for the record on appeal regarding proceedings on June 23 and July 17, 2023. 

Plaintiff’s motion is defective.  California Rules of Court, rule 8.137(b)(1)(A) provides that when “oral proceedings in the superior court were not reported by a court reporter,” the “appellant may elect in his or her notice designating the record on appeal” to use a settled statement “without filing a motion.”  When doing so, “the appellant must serve and filed a proposed statement in superior court within 30 days after filing its notice under (b)(1).”  (Rule 8.137(c)(1).) 

            On June 12, 2024, Muldrow filed a notice designating the record on appeal.  The notice indicates plaintiff elected to proceed using a settled statement for oral proceedings that were not reported by a court reporter.  (Notice, § 2.b(3)(a).)  The notice lists five proceedings, including those on June 23 and July 17, 2023.  (Id., § 6 & attachment 6.)  But plaintiff did not serve and file a proposed statement within 30 days of the notice as required under rule 8.137(c)(1).

As an alternative to electing to use a settlement statement without filing a motion (rule 8.137(b)(1)), the “appellant intending to” use a settlement statement “for reasons other than those listed in (1) must serve and file in superior court with its notice designating the record on appeal … a motion to use a settled statement instead of a reporter’s transcript.”  (Rule 8.137(b)(2).)  Plaintiff’s motion does not comply with this rule for two reasons. 

First, plaintiff does not intend to use a settlement statement “for reasons other than those listed in” rule 8.137(b)(1).  His motion indicates his reason is “[t]he oral proceedings requested … cannot be transcribed because” the proceedings were “unreported.”  (Motion, § 5.b.)  That is not a reason the “oral proceedings cannot be transcribed.”  (Rule 8.137(b)(2)(A)(ii).)  That merely means the proceedings “were not reported by a court reporter.”  (Rule 8.137(b)(1)(A).)  Plaintiff thus was required to (and attempted to) proceed via a notice of election to use a settled statement without filing a motion.  (Rule 8.137(b)(1).) 

Second, plaintiff did not file this motion “with [his] notice designating the record on appeal.”  (Rule 8.137(b)(2).)  He filed the notice on June 12, then filed this motion on July 31. 

Plaintiff Donnie Muldrow’s motion to use a settled statement is denied.