Filed 9/26/14

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

C.S.,

Plaintiff and Appellant,

v.

W.O.,

Defendant and Respondent.

 B251797

 (Los Angeles County

 Super. Ct. No. BF036276)

APPEAL from orders of the Superior Court of Los Angeles County, 

Christine Byrd, Judge. Reversed.

Sidley Austin, Mark E. Haddad and Francis S. Lam for Plaintiff and 

Appellant.

No appearance for Defendant and Respondent.

Los Angeles Center for Law and Justice, Sarah Reisman and Suma Mathai 

for Los Angeles Center for Law and Justice, American Civil Liberties Union of 

Southern California, Asian Americans Advancing Justice-Los Angeles, California 

Partnership to End Domestic Violence, Family Violence Appellate Project, Inner 

City Law Center, Legal Aid Association of California, Legal Aid Foundation of 
2

Los Angeles, Public Counsel, and Western Center on Law and Poverty as Amici 

Curiae for Plaintiff and Appellant.

________________________________

Appellant C.S. submitted two applications for waiver of court fees and costs 

based on her receipt of public benefits. The trial court denied the applications, 

concluding in the exercise of its discretion that appellant was not entitled to such 

waiver because she received financial assistance from family and friends. Finding 

that appellant met the statutory requirements for a fee waiver and that the relevant 

statutes do not permit a court to deny a fee waiver to an applicant who meets such 

criteria, we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant C.S. was involved in a family law dispute with her ex-boyfriend, 

W.O., over the custody of their daughter, H. In 2009, appellant requested and was 

granted a fee waiver that allowed her to participate in the family law proceeding 

without paying court fees.

A. April 8, 2013 Order

On March 4, 2013, trial to determine the custody issue began. Prior to trial, 

the court conducted a fee waiver hearing, and determined that appellant would not 

be required to contribute to the cost of having a reporter present. After the court 

rendered its decision on the custody issue, appellant, wishing to appeal, paid 

$1,000 to obtain an expedited reporter’s transcript, apparently acting on the advice 

of a legal aid attorney. 
3

On March 12, the court issued an order to show cause for “reconsideration 

of fee waiver,” stating that appellant was to appear and show cause why the court 

should not revoke the waiver of court fees and order appellant to pay the expense

of having had a court reporter present at the trial. On April 8, appellant appeared 

at the hearing and produced documents showing that she received SSI 

(Supplemental Security Income), and that she was also receiving benefits from 

CalWORKs and CalFRESH.

1

The court inquired about the source of the funds

appellant had used to obtain the expedited reporter’s transcript. Appellant 

explained that she had borrowed the $1,000 from her mother, her sister, and a 

friend, but stated she had no documentation to support that it was a loan. The court 

found that appellant “paid $1,000 for an expedited transcript and therefore does not 

qualify for a waiver of court fees.” The April 8 order directed appellant to pay 

$191 as her share of the reporter’s fees for the March 4 trial. The court informed 

appellant that if she desired a waiver of any future fees, she would have to reapply

and submit any future requests for fee waivers directly to the department. 

B. August 9, 2013 Application2

Four months later, on August 9, 2013, appellant filed a “Request to Waive 

Court Fees,” form FW-001.3(See Cal. Rules of Court, rule 3.51 [application for 

 

1

CalFRESH is the California version of the federal program known as 

Supplemental Nutrition Assistance Program (SNAP), formerly the Food Stamp 

Program. CalWORKS is short for California Work Opportunity and 

Responsibility to Kids, a welfare program that provides cash aid. 

2

Appellant’s brief refers to this application as the “August 5, 2013” 

application. The record indicates it was filed on August 9 and we refer to it by that 

date.
4

fee waiver “must be made on Request to Waive Court Fees (form FW-001)”], 

italics omitted.) The form contained three boxes an applicant might check to 

explain the basis for the request. The first was to be checked if the request was 

based on receipt of various types of public assistance, including Medi-Cal, “Food 

Stamps,” SSI, and CalWORKs. The second was to be checked if the request was 

based on the applicant’s monthly income being less than certain specified amounts, 

depending on the size of the applicant’s household.

4

The third box was to be 

checked if the applicant requested the waiver because he or she “d[id] not have 

enough income to pay for [his or her] household’s basic needs and the court fees,” 

in which case the applicant could seek a complete waiver, a partial waiver, or the 

option to pay court fees over time. (Italics omitted.) The form stated that if the 

applicant had checked either the second or the third box, he or she was to fill out 

the second page of the application, requiring more detailed information concerning 

the applicant’s monthly income and expenses. 

Appellant checked the first box, and indicated she received Medi-Cal, Food 

Stamps, and CalWORKs. She did not check the boxes indicating she sought a fee 

waiver based on her gross monthly income or on a finding that she lacked 

sufficient income to pay for both her basic household needs and her court fees.

She did not fill out page two of the application. In a separate typed attachment, 

 

3

At the time, there was a hearing scheduled on a request for an order and a 

request for modification. Form FW-001 states: “If you are getting public benefits, 

are a low-income person, or do not have enough income to pay for household’s 

basic needs and your court fees, you may use this form to ask the court to waive all 

or part of your court fees. The court may order you to answer questions about your 

finances. If the court waives the fees, you may still have to pay later if: [¶] You 

cannot give the court proof of your eligibility, [¶] Your financial situation 

improves during this case, or [¶] You settle your civil case for $10,000 or more.” 

The form is signed under penalty of perjury. 

4

For example, for a family of three, which apparently described appellant’s 

household, the maximum permitted monthly household income was $2,034.38. 
5

however, appellant stated that she recieved SSI of $773.40 for her son and $538 in 

cash aid, as well as Food Stamps, and Medi-Cal. She also listed monthly living 

expenses, indicating they were in the $1,474 to $1,619 range. She stated that as 

her monthly living expenses exceeded the benefits she received, she “often h[ad] to 

rely on family and [her] boyfriend.” In the separate attached statement, she asked 

that the court waive the $191 she had been charged in the April 8 order. 

At a hearing on August 9, 2013, at which appellant was represented by the 

Los Angeles Center for Law and Justice, the court denied the request, finding that

it was “in substance, a request for reconsideration of the [April 8, 2013 order]. 

According to C.C.P. section 1008, a request for reconsideration must be made 

within ten days; so this request is untimely. Furthermore, even if it were timely, 

the court notes that it does not show any new or different facts, circumstances, or 

law and, therefore, there’s no basis for reconsideration. So the court denies the 

request for a fee waiver.”5

C. August 12, 2013 Application

On August 12, 2013, appellant filed a form FW-002 entitled “Request to 

Waive Additional Court Fees (Superior Court).”6She stated that she sought waiver 

 

5

In its order of the same date, the court reiterated: “This request is for 

reconsideration of [the] April 8 order. Per CCP 1008, this request is untimely and 

also does not show any new or different facts, circumstances, or law.”

6

Rule 3.51 states that “an application for an initial fee waiver under rule 3.56 

must be made on a Request to Waive Additional Court Fees (Superior Court) (form 

FW-002).” Rule 3.56 applies to additional court fees and costs “that may be 

waived upon granting an application for an initial fee waiver, either at the outset or 

upon later application,” including “[r]eporter’s fees for attendance at hearings and 

trials . . . .” Form FW-002 states: “This form asks the court to waive additional 

court fees that are not covered in a current order. If you have not already received 

an order that waived or reduced your court fees, you must complete and file a 
6

of the court reporter fees for an upcoming hearing, and that she was “currently 

receiving public assistance and cannot afford to pay for court reporter’s fees.” In 

an order dated August 12, the court denied the request without a hearing.

7

The 

order stated appellant was not eligible for the fee waiver because: “Party 

previously granted fee waiver but had undisclosed income. See order of 4-8-13.” 

On August 21, appellant filed a memorandum of points and authorities in 

support of her fee waiver request, seeking a formal hearing.

8

Appellant contended 

that the court “must grant” the request of an applicant who is receiving one or more 

of the specified public benefits. She further argued that the court’s order of April 8 

had no bearing on whether the current request should be granted. In connection 

with this filing, appellant submitted a declaration reasserting that she had borrowed

the $1,000 to pay for the expedited reporter’s transcript from her mother, her sister, 

and a friend. Appellant also stated that her receipt of public benefits required her 

to report any change in income in quarterly reports, which she regularly submitted. 

She further stated that “[e]ven with public aid, [she] often [had] to rely on [her] 

family and boyfriend to help [her] with things like clothes, shoes, food and 

toiletries because the public benefit [did] not cover all of [her] living expenses.”

Attached to her declaration were documents establishing her receipt of $773.40 per 

 

Request to Waive Court Fees (Superior Court), form FW-001, along with this 

form.” (Italics omitted.) Form FW-002 is also signed under penalty of perjury.

7

No transcript for the August 12, 2013 hearing is in the record. According to 

the August 12 minute order, the court awarded sole legal and physical custody of 

the child to W.O., permitting appellant monitored visitation of two hours per week. 

The minute order reflects that appellant paid $191 for reporter’s fees on that date. 

8

Appellant separately filed a form entitled “Request for Hearing About Court 

Fee Waiver Order (Superior Court).” On the form, appellant stated: “My only 

source of income is public assistance and I do not have any other source of 

income.” 
7

month from SSI, $563 from CalWORKs, and $323 in food assistance from 

CalFRESH. 

Following an August 22 hearing, the court issued a statement of decision

(SOD). In it, the court indicated it had not credited appellant’s explanation that the 

funds she used to obtain the expedited reporter’s transcript were borrowed because 

she had “provided no evidence other than her testimony.” The SOD explained that 

the court had deemed the August 12, 2013 application a request to vacate or 

reconsider the prior order, governed by Code of Civil Procedure section 1008. The 

SOD explained that the court had denied the August 12 request because it was 

untimely, as it had not been filed within 10 days of the April 8 order and contained 

no new or different facts, circumstances or law. The SOD went on to state: “Even 

if [appellant’s] request were not governed by C.C.P. §1008, it would be denied on 

the grounds of undisclosed income. [Appellant’s] declaration in support of this 

request details the public assistance that she is receiving and, again, claims that the 

$1,000 was a loan from ‘my mother, sister and a friend.’ Again, however, she 

provides no evidence to substantiate her claim that the money was a

loan . . . . Furthermore, her declaration demonstrates that she has other sources of 

income, i.e., that she ‘often’ receive[d] money from family and a boyfriend to 

supplement her public benefits. She never disclosed these funds in her application 

for a fee waiver. Under the circumstances, the Court finds that [appellant] has 

failed to disclose her true income and that her request for a fee waiver should be 

denied.” In response to the argument that the court had no discretion to deny a fee 

waiver requested by a party receiving public assistance, the court stated: “In the 

abstract, that may be true. But the Court has the inherent power to exercise 

reasonable control of proceedings before it and the fact that [appellant] is receiving 

public benefits does not entitle her to be untruthful. Under the circumstance, the 

Court has the discretion to revoke her fee waiver.” 
8

On October 8, appellant noticed an appeal of the court’s August 9, 2013 

order, its August 12, 2013 order, and its August 22, 2013 order. 

DISCUSSION

“The right of an indigent civil litigant to proceed in forma pauperis is 

grounded in a common law right of access to the courts and constitutional 

principles of due process. [Citations.] ‘[R]estricting an indigent’s access to the 

courts because of his poverty . . . contravenes the fundamental notions of equality 

and fairness which since the earliest days of the common law have found 

expression in the right to proceed in forma pauperis.’” (Cruz v. Superior Court

(2004) 120 Cal.App.4th 175, 185, quoting Isrin v. Superior Court (1965) 63 Cal.2d 

153, 165.) The process by which an indigent person gains access to the courts by 

applying for and obtaining a waiver of court fees and costs is governed by 

Government Code sections 68630 to 68641.

9

 

Section 68632 provides: “Permission to proceed without paying court fees 

and costs because of an applicant’s financial condition shall be granted initially to 

all of the following persons: [¶] (a) A person who is receiving public benefits 

under one or more of the following programs: [¶] (1) Supplemental Security 

Income (SSI) . . . (2) [CalWORKs] . . . (3) Food Stamps . . . (7) Medi-Cal.” 

Section 68633, subdivision (a), provides that an applicant for an initial fee waiver 

under section 68632 subdivision (a) “shall complete under penalty of perjury, a 

Judicial Council application form” requiring the applicant to list only the following 

information: “his or her current street address, or another address where the court 

can contact the applicant, occupation, employer, and the type of public benefits 

that he or she is receiving.” 

 

9

Undesignated statutory references are to the Government Code.
9

All applications for an initial fee waiver must be accepted for filing, and the 

clerk “shall not request that the applicant furnish information that is not required 

on the Judicial Council fee waiver application form.” (§ 68634, subd. (b).) The 

applicant is not required at the time the application is submitted, “to provide 

documents supporting receipt of public benefits, to provide evidence of identity, to 

submit to interviews regarding the applicant’s financial circumstances, to be 

physically present to file the application, or to fill out additional parts of the 

application form.” (§ 68633, subd. (a).) However, the applicant for the initial fee 

waiver “shall be informed that, at a later date, the court may require proof of 

receipt of benefits or financial information to verify eligibility, as provided in 

Section 68636 . . . .” (Id., subd. (e).)

Section 68631 provides that “[a]n initial fee waiver shall be granted by the 

court at any stage of the proceedings at both the appellate and trial court levels if 

an applicant meets the standards of eligibility and application requirements under 

Sections 68632 and 68633.” (See also § 68634, subd. (e) [“On review of an 

application for an initial fee waiver the court shall take the following actions, as 

applicable: [¶] (1) Grant the application if the information provided on the 

application establishes that the applicant meets the criteria for eligibility and 

application requirements set forth in Sections 68632 and 68633.”].) Under section 

68636, if, after granting the initial fee waiver, the court “obtains information 

. . . suggesting that a person whose fees and costs were initially waived is not 

entitled to a fee waiver, or that the person’s financial condition has changed so that 

he or she is no longer eligible for a fee waiver,” the court may require the person to 

appear and “provide reasonably available evidence, including financial 
10

information, to support his or her eligibility for the fee waiver.”10 (§ 68636, 

subd. (b).) At any such hearing, the court “shall not require submission of 

information that is not related to the criteria for eligibility and application 

requirements set forth in Sections 68632 and 68633.” (Ibid.) 

Sections 68630 to 68641 became effective in 2009, replacing former section 

68511.3, which required the Judicial Council to formulate and adopt rules 

providing that litigants who were receiving public benefits such as SSI, 

CalWORKs, and Food Stamps, be granted permission to proceed in forma 

pauperis. (Former § 68511.3, subd. (a)(6)(A); Stats. 1979, ch. 850, § 1, p. 2952.) 

Under former section 68511.3, the Judicial Council had adopted a rule of court, 

former California Rules of Court, rule 985, which stated that in forma pauperis 

applications, as fee waiver applications were previously known, “shall be granted 

and payment of [certain] court fees and costs . . . shall be waived if the applicant 

meets the standard of eligibility established by [former section 68511.3].” When 

these provisions were in effect, courts held that they were mandatory and did not 

grant trial courts discretion to deny a fee waiver where the applicant demonstrated

receipt of public benefits. For example, in Haglund v. Superior Court (1982) 

139 Cal.App.3d 256, the court concluded that although the provisions deprived 

trial courts of discretion with respect to in forma pauperis applications, this did not 

represent an illegal delegation of authority to administrators of the welfare 

programs. (Id. at p. 258.) The court found the provisions in harmony with the 

Supreme Court’s decision in Ferguson v. Keays (1971) 4 Cal.3d 649 that “‘the 

Judicial Council could, in the exercise of its rule-making power, promulgate rules 

 

10 In order to hold such a hearing, the court must give the applicant “no less 

than 10 days’ written notice of the hearing and the specific reasons why the initial 

fee waiver might be reconsidered.” (§ 68636, subd. (b).) 
11

governing applications for in forma pauperis relief. Similarly, the Legislature, 

being entrusted with the responsibility for the maintenance and operation of the [] 

judiciary, has the authority to declare under what circumstance and upon what 

terms and conditions, indigent litigants should be permitted free access to 

the . . . courts.’” (Haglund v. Superior Court, supra,139 Cal.App.3d at p. 259, 

quoting Ferguson v. Keays, supra, 4 Cal.3d at p. 656, italics omitted.) Noting that 

the application form approved by the Judicial Council “d[id] not require that a 

welfare recipient provide detailed financial information,” the court issued a 

peremptory writ of mandate directing the superior court to enter an order granting 

the application of a party who disclosed she was receiving AFDC (Aid to Families 

with Dependent Children) and Food Stamps, but provided no other information as 

to her monthly income or expenses. (Id. at pp. 258-259, fn. 1; accord, Maldonado 

v. Superior Court (1983) 143 Cal.App.3d 185, 186 [Court of Appeal issued 

peremptory writ of mandate compelling trial court to reverse its order denying an 

application for waiver of jury fees and costs “‘[i]n the exercise of its discretion’” 

where applicant met eligibility requirements of former section 68511.3 by 

submitting declaration stating she was receiving AFDC benefits]; see Cruz v. 

Superior Court, supra, (2004) 120 Cal.App.4th at p. 185 [former section 68511.3 

“mandat[ed]” in forma pauperis status for “litigants who received aid from 

specified government benefits programs”].)

The new provisions revise and recast former section 68511.3, and provide a 

specific hearing procedure to determine, postapplication, whether an applicant can 

provide evidence of meeting the statutory eligibility requirements.

11

 However, 

 

11 Under former section 68511.3, the court could “authorize the clerk of the 

court, county financial officer, or other appropriate county officer to require the 

litigant to appear before and be examined by the person authorized to ascertain the 
12

nothing suggests the Legislature intended to grant trial courts discretion to deny the

fee waiver application of an applicant who is receiving public benefits and can 

document that fact.

12

 Section 68631 requires that the initial fee waiver be granted 

by the court if the applicant meets the standards of eligibility and the application 

requirements under sections 68632 and 68633. Section 68632 and 68633 require 

the court to initially grant permission to proceed without paying court fees and 

costs to all persons who have completed the Judicial Council application form 

attesting under penalty of perjury to receipt of public benefits such as Medi-Cal, 

Food Stamps, SSI, and CalWORKs. The Judicial Council form does not require 

applicants who receive the specified public benefits to provide income or expense 

information, and section 68634 prohibits the clerk from requesting information not 

required on the Judicial Council form. 

Section 68636, subdivision (b) permits the court, “if [it] obtains information 

. . . suggesting that a person whose fees and costs were initially waived is not 

entitled to a fee waiver, or that the person’s financial condition has changed so that 

he or she is no longer eligible for a fee waiver” to hold a hearing subsequent to the 

initial grant, at which time the applicant may be required to “provide reasonably 

available evidence, including financial information, to support his or her eligibility 

for the fee waiver.” Although these provisions suggest a court may conduct an 

inquiry into the details of any applicant’s financial situation, the statute further 

provides that the court may not “require submission of information that is not 

 

validity of his or her indigent status.” (Id., subd. (d)(1), Stats. 2006, ch. 538, 

§ 326, p. 4162.)

12 Indeed, in a recent case involving a request for waiver of jury fees under the 

new provisions, the appellate division of the superior court stated: “Because 

defendant was the recipient of public benefits, he was entitled to have all fees 

waived . . . .” (Kim v. De Maria (2013) 218 Cal.App.4th Supp. 1, 4.)
13

related to the criteria for eligibility and application requirements set forth in 

Sections 68632 and 68633.” (§ 68636, subd. (b).) Sections 68632 and 68633 do 

not require an applicant seeking waiver of court fees based on receipt of public 

benefits to submit information about income. Accordingly, the court must 

generally limit itself to inquiring about the genuineness of the claim of receiving 

such benefits. 

Here, the court reasonably set a hearing when it obtained information that 

appellant had the wherewithal to pay a significant sum for the expedited hearing 

transcript, and required appellant to present evidence to support that she was a 

recipient of public benefits. Further inquiry revealed that appellant had received 

either a loan or a gift of $1,000, and that appellant regularly received assistance 

from friends and family to supplement the public benefits she received. None of 

this evidence suggested appellant was not, in fact, receiving public benefits.

The court denied the August 9, 2013 and August 12, 2013 fee waiver 

applications on procedural grounds, finding that they represented untimely requests 

to reconsider the April 8, 2013 order. This was true to the extent appellant sought 

reconsideration of the court’s directive that she pay $191 for the expense of having 

a reporter at the March 4 hearing.13 However, it is clear from the record that 

appellant also sought relief from the expense of paying reporter’s fees for an 

upcoming hearing, and that she was assessed an additional $191 on August 12, 

2013. Accordingly, the court erred in finding that appellant’s August 9 and August 

12, 2013 fee waiver applications were barred on procedural grounds.

Substantively, it is clear that appellant met the statutory requirements for 

obtaining a fee waiver. She stated in her applications, under penalty of perjury, 

that she was receiving the specified public benefits. In her written submission and 

 

13 Appellant does not seek review of the April 8 order, as to which the time for 

appeal had passed by the time the instant notice of appeal was filed.
14

at the August 22 hearing, she provided documentation supporting this 

representation. There is nothing in the court’s orders or findings to suggest the 

court did not believe appellant was receiving public benefits. The court was 

therefore required to grant appellant’s applications for a fee waiver, and relieve her

of the expense of paying for the court reporter and any other court fees or costs 

assessed after the date of the initial application. 

DISPOSITION

The August 9, 2013 order, the August 12, 2013 order, and the August 22, 

2013 orders denying appellant’s August 9, 2013 and August 12, 2013 applications

for waiver of court fees and costs are reversed. Each party is to bear its own costs 

on appeal.

CERTIFIED FOR PUBLICATION

MANELLA, J. 

We concur:

EPSTEIN, P. J.

WILLHITE, J.