Judge Kerry Bensinger, Case Number: 22STCV20090, Date: 2024-02-13 Tentative Ruling

On June 20, 2022, Plaintiff, Juanita Marquez, initiated this action against Defendant, Equinox Holdings Inc. Plaintiff filed a First Amended Complaint on December 16, 2022.

On June 21, 2023, the court heard oral argument on Defendant’s demurrer to the First Amended Complaint and took the matter under submission.

On June 23, 2023, the court issued its order sustaining Defendant’s demurrer to the First Amended Complaint without leave to amend. Judgment was entered on August 10, 2023.

On October 3, 2023, the court denied Plaintiff’s ex parte application for an immediate reconsideration order.

On January 3, 2024, Plaintiff filed this motion to use a settled statement. The motion is unopposed.[1]

“A settled statement is a summary of the superior court proceedings approved by the superior court.” (Cal. Rules of Court, rule 8.137(a).) “An appellant may either elect under (b)(1) or move under (b)(2) to use a settled statement as the record of the oral proceedings in the superior court, instead of a reporter’s transcript.” (Id.)

With respect to when a settled statement may be used, CRC rule 8.137(b) provides the following:

1. An appellant may elect in his or her notice designating the record on appeal under rule 8.121 to use a settled statement as the record of the oral proceedings in the superior court without filing a motion under (2) if:

A. The designated oral proceedings in the superior court were not reported by a court reporter; or

2. An appellant intending to proceed under this rule for reasons other than those listed in (1) must serve and file in superior court with its notice designating the record on appeal under rule 8.121 a motion to use a settled statement instead of a reporter’s transcript.

i. A substantial cost saving will result and the statement can be settled without significantly burdening opposing parties or the court;

iii. Although the appellant does not have a fee waiver, he or she is unable to pay for a reporter’s transcript and funds are not available for the Transcript Reimbursement Fund (see rule 8.130(c)).

B. If the court denies the motion, the appellant must file a new notice designating the record on appeal under rule 8.121 within 10 days after the superior court clerk sends, or a party serves, the order of denial.

“An appellant’s notice under (1) or motion under (2) must: [¶] (A) Specify the date of each oral proceeding to be included in the settled statement; [¶] (B) Identify whether each proceeding designated under (A) was reported by a court reporter and, if so, for each such proceeding: [¶] (i) Provide the name of the court report, if known; and [¶] (ii) Identify whether a certified transcript has previously been prepared by checking the appropriate box on Appellant’s Notice Designating Record on Appeal (Unlimited Civil Case) (form APP-003) or, if that form is not used, placing an asterisk before the proceeding in the notice.” (Id., rule 8.137(b)(3).)

Plaintiff seeks a court order to use a settled statement instead of a reporter’s transcript of the trial court oral proceedings for the appeal filed on October 9, 2023. Plaintiff brings the motion on the grounds the proceedings cannot be transcribed because the oral proceedings were not reported by a court reporter and cannot be transcribed.

Rule 8.137(b)(2) requires that an appellant intending to proceed under this rule must show that a substantial cost saving will result and the statement can be settled without significant burden to the opposition or the Court and the designated oral proceedings were not reported and cannot be transcribed.

Here, there was no court reporter to transcribe the June 21, 2023. Defendant has not filed an opposition. Accordingly, Defendant makes no argument that it will be significantly burdened by the settled statement.

Kerry Bensinger

Judge of the Superior Court

[1] A failure to oppose a motion may be deemed a consent to the granting of the motion. (Cal. Rules of Court, rule 8.54(c).)

[2] The Judge who presided over the case, Judge Serena Murillo, is no longer in Dept. 31 at the Stanley Mosk Courthouse. Counsel will need to arrange and coordinate all necessary future appearances before Judge Murillo in the Clara Shortridge Foltz Criminal Justice Center.