In re Harper CA5 ( 2021 )

Filed 11/18/21 In re Harper CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re JASON SCOTT HARPER, for Change of F081722
Name.
(Super. Ct. No. 19C0339)
OPINION
THE COURT*
APPEAL from an order of the Superior Court of Kings County. Kathy Ciuffini,
Judge.
Jason Scott Harper, in pro. per., for Appellant.
No appearance for Respondent.
-ooOoo-
Jason Harper, an allegedly indigent prisoner, filed a Petition for Change of Name
in superior court. However, Harper could not afford to publish notice of his change of
name in the county newspaper pursuant to Code of Civil Procedure section 1277 due to
his indigency. Harper requested the superior court allow him to publish notice via the
court clerk. Nevertheless, the superior court issued an order denying Harper’s petition
for noncompliance with the publication requirement, finding the superior court had no
discretion to permit an alternative means of publication. Harper appeals from the court’s
* Before Levy, Acting P. J., Franson, J. and Snauffer, J.
order, arguing that the superior court had such discretion. We agree and remand for
further proceedings.
FACTS
Harper is an inmate in the California Department of Corrections and
Rehabilitation. He was previously involved in a prison incident that negatively
associated his name in the minds of other prisoners. Desiring to change his name, Harper
filed a Petition for Change of Name in the superior court.1 Pursuant to Code of Civil
Procedure, section 1277, subdivision (a)(2),2 Harper was required to publish the trial
court’s order to show cause for the name change in a newspaper of general circulation in
Kings County. Such a newspaper existed and required $222.50 to publish the order to
show cause. Harper claimed he was indigent and thus unable to produce this sum. He
argued, nevertheless, that the court had discretion to and should apply the provision that
allows publication by clerk’s posting when a county has no newspaper of general
circulation. (Ibid.) Ultimately, the trial court denied Harper’s petition because it
determined it lacked discretion to permit publication of the order to show cause via
clerk’s posting when a newspaper of general circulation exists.
1 The procedure for changing one’s name is set forth in Code of Civil Procedure
section 1277, subdivision (a)(1), which states, in pertinent part: “A proceeding for a
change of name is commenced by the filing of a petition except as provided in
subdivisions (b), (c), and (e), the court shall thereupon make an order citing the filing of
the petition, the name of the person by whom it is filed, and the name proposed.”
2 “A copy of the order to show cause shall be published pursuant to Section 6064
of the Government Code in a newspaper of general circulation to be designated in the
order published in the county. If a newspaper of general circulation is not published in
the county, a copy of the order to show cause shall be posted by the clerk of the court in
three of the most public places in the county in which the court is located, for a like
period. Proof shall be made to the satisfaction of the court of this publication at the time
of the hearing of the application.” (Code Civ. Proc., § 1277, subd. (a)(2).)
2.
DISCUSSION
Harper contends that the trial court had discretion to authorize the alternative
method of publication by court clerk under Code of Civil Procedure section 1277. This
issue presents a pure question of law subject to de novo review. (Aryeh v. Canon
Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1191.) We agree with Harper and
remand for further proceedings.
“California courts, pursuant to the principles of the in forma pauperis doctrine,
have the inherent discretion to facilitate an indigent civil litigant’s equal access to the
judicial process even when the relevant statutory provisions that impose fees or other
expenses do not themselves contain an exception for needy litigants.” (Jameson v. Desta
(2018) 5 Cal.5th 594, 605 (Jameson), italics added.) “[T]he exercise of judicial
discretion in furtherance of facilitating equal access to justice is not limited to excusing
the payment of fees that the government charges for government-provided services.
Judicial authority to facilitate meaningful access to indigent litigants extends as well to
excusing statutorily imposed expenses that are intended to protect third parties (e.g.,
injunction or damage bonds) and to devising alternative procedures (e.g., additional
methods of service or meaningful access) so that indigent litigants are not, as a practical
matter, denied their day in court.” (Ibid., citing County of Sutter v. Superior Court (1966)
244 Cal.App.2d 770 [right of indigent civil litigant to obtain waiver of bond requirement
imposed by Gov. Code, § 947]; Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th
1427, 1436—1443 (conc. opn. of Johnson, J.) [right of indigent out-of-state civil plaintiff
to exemption from security undertaking required by Code Civ. Proc., § 1030]; Cohen v.
Board of Supervisors (1971) 20 Cal.App.3d 236 (Cohen); Roberts v. Superior Court
(1968) 264 Cal.App.2d 235 [right of indigent civil litigant to obtain waiver of appeal
bond required by Code Civ. Proc., § 985.5].)
In Cohen, supra, 20 Cal.App.3d at pp. 237—239, the Court of Appeal held that
indigent civil plaintiffs unable to afford service by statutorily prescribed publication
3.
could utilize alternative reasonable methods of service determined at the trial court’s
discretion where the applicable statute did not prescribe other methods. In this case,
assuming Harper was indigent, the trial court had discretion to determine a reasonable
alternative method to publication. Here, section 1277 of the Code of Civil Procedure
provides such a reasonable alternative: publication by the court clerk. (See Code of Civ.
Proc. § 1277, subd. (a)(2).) Section 1277’s lack of “an exception for needy litigants” did
not deprive the trial court of discretion to apply section 1277’s method of publication by
clerk or any other method the trial court, in its discretion, deemed reasonable. (Jameson,
supra, 5 Cal.5th at p. 605.)
Finding that the trial court has discretion, we remand this case to the trial court to
determine if Harper is in fact indigent. If the trial court determines Harper is indigent,
then the trial court may exercise its discretion to grant his request to utilize publication by
the court clerk pursuant to Code of Civil Procedure section 1277 or any other remedy the
trial court deems appropriate
DISPOSITION
This matter is remanded to the trial court for further proceedings consistent with
this opinion.
4.