Opinion
EVANS, J. In Leslie v. Roe (1974) 41 Cal.App.3d 104 [116 Cal.Rptr. 386] (hg. den.), the court held that indigency does not entitle a party in a civil action to a transcript prepared at public expense to assist in the [717]appeal of an adverse decision. That principle was followed in Civil Service Commission v. Superior Court (Price) (1976) 63 Cal.App.3d 627 [133 Cal.Rptr. 825] (hg. den.) where the court, faced with a factual context identical to the instant proceeding, held that a court reviewing an administrative decision “is without power to order that an indigent person seeking judicial review of the administrative proceeding involving an economic interest be supplied with a transcript of the proceedings at the expense of the agency.” (P. 629.)
In Department of Consumer Affairs v. Superior Court (1977) 71 Cal.App.3d 97 [139 Cal.Rptr. 120], the court followed the holding in Civil Service Commission, supra, 63 Cal.App.3d 627, and reversed a trial court order directing “‘the Administrative Hearings Recorder and the Court Recorder prepare transcripts of hearings conducted on May 25 and 26 in the above matter. .. .’” (P. 99.) The court, relying on Civil Service Commission, supra, stated, “the trial court was without power to order that an indigent person seeking judicial review of an administrative decision be supplied with a copy of the administrative hearing prepared at the agency’s expense.” (P. 99.)
In this instance, upon petition of real party in interest Lambert, the trial court order directed, “[Respondents. . .to provide the petitioner with a copy of the transcript of the administrative proceedings had below at no cost to petitioner.” That order duplicates those reversed in Civil Service Commission, supra, and Department of Consumer Affairs, supra, and must likewise be reversed.
Lambert relies upon Woodard v. Personnel Commission (1979) 89 Cal.App.3d 552 [152 Cal.Rptr. 658], in his quest for a free transcript of the administrative hearing. His reliance is misplaced. In Woodard the trial court in the first instance denied the petition for a free transcript of the administrative proceedings; the indigent then proposed to proceed upon a settled statement. At that point the agency refused to cooperate and advised the trial court that there was a need for the entire record, including the transcript itself, before proper judicial review could be undertaken. The trial court then denied relief to the petitioner (Woodard).
The court in Woodard recognized a fundamental difference between the facts presented in Civil Service Commission v. Superior Court, supra, 63 Cal.App.3d 627, and those it faced. It stated, “that even though [718]the court did not have the power to initially order a transcript for Woodard (as it recognized in denying his request for such prior to trial), once the true posture of the case became apparent at trial, a continuance in order to allow the agency to have the transcript prepared and filed with the court was not only possible, but apparently necessary. At the very least, the . tapes should have been placed in evidence and the contents reviewed by the judge.” (Italics ours.) (89 Cal.App.3d at p. 561.)
Moreover, to the extent the decision in Woodard v. Personnel Commission, supra, 89 Cal.App.3d 552, implies that in a civil administrative proceeding involving economic interests rather than personal liberties, free transcripts of the administrative hearing must be provided indigents, we consider it to be wrong and in conflict with consistent judicial conclusions to the contrary.
Justice Hanson, in a thorough and well-reasoned concurring and dissenting opinion in Civil Service Commission v. Superior Court, supra, 63 Cal.App.3d at pages 632-647, sets forth the reason and justification for the rule and its application. We concur with his analysis and hold that the indigent is not entitled to a free transcript of the proceeding at the administrative hearing.
In the present instance the agency has not refused to cooperate in the preparation of a settled statement nor does it refuse to present to the court for its review any available tapes of the proceeding.
A review of the record reveals that Lambert has been afforded the essentials of due process in regard to notice, opportunity to be heard, and a fair hearing.
Lambert was employed by the City of Sacramento as an equipment mechanic for 16 years. He applied for industrial disability (service-connected) retirement benefits which were denied by the manager of the retirement system who found that the medical reports did not clearly indicate Lambert was physically disabled. He appealed and subsequently retired from city employment under ordinary (nonservice-connected) disability retirement.
A hearing was held before an administrative law judge at which Lambert was represented by counsel. The administrative law judge [719]found the dispositive issue to be whether Lambert’s disability was service-connected; he concluded the evidence did not establish that Lambert suffered a disability injury on June 24, 1975, or that his disability was service-connected.
The commission conducted a hearing which included a review of exhibits and the transcript of the hearing before the administrative law judge, and receipt of oral and written argument by counsel. The commission adopted the essential findings of the administrative law judge and affirmed the denial of the benefits sought.
Counsel for real party has suggested that because the agency has a-transcript, it would cost little or nothing more for the agency to provide him with a free copy. In light of the express language of the city code, the argument is specious if not frivolous.
The City of Sacramento has not proceeded pursuant to Code of Civil Procedure section 1094.6, subdivision (g), which provides, “This section shall be applicable in a local agency only if the governing board thereof adopts an ordinance or resolution making this section applicable. If such ordinance or resolution is adopted, the provisions of this section shall prevail over any conflicting provision in any otherwise applicable law relating to the subject matter.” It has, however, adopted time requirements for pursuit of judicial review of an administrative proceeding. Sacramento "City Code section 34.1411 provides, “Any judicial action taken by the applicant to set aside, annul or vacate any decision, finding, or action taken by the commission pursuant to the provisions of this Chapter, shall be filed within the time limits prescribed in California Code of Civil Procedure Sec. 1094.6.” We conclude that use of the time requirements specified in Code of Civil Procedure section 1094.6 for judicial review does not equate with adoption of all provisions of that section. Moreover, our conclusion is fortified by the provisions of Sacramento City Code section 34.1409 which is couched in mandatory language as contrasted to the permissive or discretionary language contained in Code of Civil Procedure section 1094.6 pertaining to recovery of the cost of preparation of the administrative hearing transcript. Section 34.1409, subdivision (b) 2, provides, “(b) The commission, after reviewing the record, the proposed findings of fact and proposed decision, and taking such additional evidence as may be necessary, may adopt, modify or reject the proposed findings of fact and proposed decision.
[720]“As used herein, the ‘record’ shall include all written and physical evidence which was introduced and accepted into evidence before the hearing officer and in addition thereto shall include any of the following:
“2. A transcription of the tape recording to be prepared at the expense of the party requesting the transcription;.. . ”1
Real party in interest is entitled to a transcript of the proceeding only upon complying with the provisions of city code section 34.1409 following its demand for payment. His declaration of indigency does not affect the requirement of that section. (See Civil Service Commission v. Superior Court, supra, 63 Cal.App.3d 627.)
Finally, we note that our conclusion does not foreclose Lambert from obtaining independent judicial review of the denial of industrial disability benefits. He contends the decision is not supported by the findings, the evidence, or the law.
In lieu of a transcript of the proceedings, he may provide a summary of the evidence and the exhibits presented. (See Woodard v. Personnel Commission, supra, 89 Cal.App.3d at p. 559.)
Let a peremptory writ of mandate issue directing the superior court to vacate its order of March 13, 1980, and enter a new order denying Lambert’s motion for transcript. The stay previously imposed is dissolved.
Puglia, P. J., concurred.
On the court’s motion, we have augmented the record on appeal to include a certified copy of sections 34.1409 through 34.1414 of the Sacramento City Code.