Malick v. Contra Costa County Flood Control & Water Conservation District

[51]Opinion

ELKINGTON, J. Upon the complaint of Laura Malick, respondent of the above described appeal from a civil judgment pending before this court, we issued an order to show cause why Richard Lenzi should not be declared incompetent to act as an official reporter in any court, pursuant to the provisions of Government Code section 69944, for failure [52]to timely prepare a reporter’s transcript for use on the appeal. He responded to the order to show cause in person and by counsel, and by his written return thereto.

The proceedings were instituted under: (1) our statutory power to “control in furtherance of justice, the conduct ... of all ... persons in any manner connected with a judicial proceeding before [this court], in every matter appertaining thereto” (Code Civ. Proc., § 128, subd. 5); and (2) our inherent power to take necessary steps “to see that no com duct on the part of any person obstructed the administration of justice” (People v. Santo (1954) 43 Cal.2d 319, 331 [273 P.2d 249]).

The facts are uncontroverted.

The notice of appeal was filed December 24, 1980. The fees for preparation of a reporter’s transcript were paid February 10, 1981. On that day Mr. Lenzi was directed by the superior court’s clerk “to prepare and file with this office the transcript on appeal, in accordance with the notice of the party, within 30 days from the date of this notice,” and as required by rule 4, California Rules of Court. As of March 12, 1982, 13 months later, the transcript had not been prepared.

On his written return to the order to show cause, and orally at the hearing thereon, Mr. Lenzi stated: “The reason the transcript has not been completed on this case is because I was required to give priority to the numerous criminal matters .... There are currently 11 civil cases from other departments where the transcript is not filed where notice of appeal was filed previous to this case going back to August of 1979.... The problem with backlog is not peculiar with myself but is a reflection of the burgeoning case load and criminal appeals which must take priority.”