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Serrano v. Stefan Merli Plastering Company

April 28, 2010

PORFIRIO SERRANO ET AL., PLAINTIFFS AND APPELLANTS,
v.
STEFAN MERLI PLASTERING COMPANY, INC., ETC., DEFENDANT;
COAST COURT REPORTERS, INC., OBJECTOR AND RESPONDENT.



APPEAL from an order of the Superior Court of Los Angeles County, Aurelio Munoz, Judge. Affirmed. (Los Angeles County Super. Ct. No. BC324031).

The opinion of the court was delivered by: Aldrich, J.

CERTIFIED FOR PUBLICATION

INTRODUCTION

At issue in Serrano v. Stefan Merli Plastering Co., Inc. (2008) 162 Cal.App.4th 1014 (Serrano I) was a dispute about the reasonableness of fees a deposition reporter sought to charge a nonnoticing party for expedited copies. We held in Serrano I that the court in a pending action has the authority to: (1) require a deposition reporter to provide a copy of a transcript to a nonnoticing party for a reasonable fee (id. at p. 1035), and (2) determine the amount of the reasonable fee in the event of a dispute (id. at p. 1038). We remanded the case to the trial court to determine whether the fee charged by the deposition reporter, Coast Court Reporters (Coast), to plaintiffs Porfirio and Lourdes Serrano was unreasonable. On remand, the trial court ruled that the fee was unreasonable.

Thereafter, plaintiffs sought their attorneys' fees under the private attorney general statute, Code of Civil Procedure section 1021.5 (section 1021.5) from Coast. The trial court denied the fee request relying on the Supreme Court's decision in Adoption of Joshua S. (2008) 42 Cal.4th 945 (Joshua S.), which prohibits the award of private attorney general fees under section 1021.5 "against an individual who has done nothing to adversely affect the rights of the public or a substantial class of people other than raise an issue in the course of private litigation that could establish legal precedent adverse to a portion of the public . . . ." (Joshua S., supra, at p. 949.) As set forth below, our review is deferential. We affirm the denial of private attorney general fees because the trial court's ruling was within the bounds of reason.

FACTUAL AND PROCEDURAL BACKGROUND

1. Serrano I

A detailed recitation of the facts and proceedings leading to the first appeal is set forth in Serrano I, supra, 162 Cal.App.4th at pages 1021 to 1025. Briefly, plaintiffs brought a personal injury action against a defendant with whom they subsequently settled. While the action was pending, the defendant took the deposition of one of the plaintiffs' experts and designated Coast as the deposition reporter. Plaintiffs' attorney requested a certified copy. When the defendant requested that the transcript be prepared on an expedited basis, Coast asked plaintiffs' counsel if he too wanted his certified copy to be expedited. Plaintiffs' counsel did. Thereafter, Coast billed plaintiffs' counsel for the transcript and added a fee for expediting the copy. Plaintiffs' counsel protested the expedition fee. Believing this fee to be proper, Coast responded that counsel would not receive the transcript on an expedited basis without payment of the fee. Plaintiffs then applied ex parte to the trial court in the underlying action for an order requiring Coast to provide a copy of the expert's deposition transcript without charging the expedition fee. Other depositions were being taken and so "[plaintiffs] and Coast agreed that the court would determine `the validity and reasonableness' of the expedited service fee and that the ruling would govern the fees for all other deposition transcripts in this action. Based on that agreement, Coast waived its COD requirement and delivered copies of the deposition transcripts to [plaintiffs'] counsel." (Id. at p. 1021, fn. omitted.)

The trial court found Coast's practice of charging the non-noticing party a substantial expedition fee to be "unconscionable" but, pursuant to Urban Pacific Equities Corp. v. Superior Court (1997) 59 Cal.App.4th 688, it believed it had no authority to require a deposition reporter to charge other than what the market would allow. (Serrano I, supra, 162 Cal.App.4th at p. 1024.) The court ordered plaintiffs to pay the full expedition fee charged for all depositions. (Ibid.) Plaintiffs paid the amount and sought review by means of an extraordinary writ. We summarily denied the writ. (Id. at pp. 1024-1025.)

In the course of plaintiffs' ensuing appeal, we solicited briefing from amici curiae. Three court reporter associations filed amicus briefs on behalf of Coast. Coast argued, while a trial court may order a deposition reporter to deliver copies of a deposition transcript to a non-noticing party and the non-noticing party must pay for it, that the trial court had no authority to " `regulate the amount of' the fee." (Serrano I, supra, 162 Cal.App.4th at p. 1035.) We disagreed. Based on Code of Civil Procedure sections 2025.510, subdivision (c), 2025.570, subdivision (a), and 128, subdivision (a)(5), we held that trial courts have the power to require a deposition reporter to provide a copy of a deposition transcript to a nonnoticing party for a reasonable fee and that in the event of a dispute, the trial court was empowered to determine the amount of a reasonable fee. (Serrano I, supra, at pp. 1037-1039.) We did not hold that expedition fees were per se unreasonable. Rather, we stated: "This does not preclude a deposition reporter from charging a reasonable fee for expediting the making, certification, and delivery of a copy. Although the reporter ordinarily sets the fee in the first instance, the reasonableness of the `expense' [citation] that a court may require a party to pay to obtain a copy of the transcript in a pending action is a question within the sound discretion of the trial court." (Id. at p. 1038.) We remanded the case to the trial court to exercise its discretion to determine whether Coast's fees were reasonable. (Id. at p. 1040.)

2. Remand after Serrano I

On remand, Coast argued that its expedition fee was reasonable. Plaintiffs countered that the entire fee was unreasonable. The trial court ruled that, "under the circumstances presented," Coast's entire expedition charge was unreasonable. The court ordered that amount refunded to plaintiffs. Coast promptly paid that amount plus prejudgment interest.*fn1

3. The Instant Motion for Attorneys' Fees (Section 1021.5)

Thereafter, plaintiffs sought their attorneys' fees from Coast pursuant to section 1021.5. Relying on Joshua S., supra, 42 Cal.4th 945, the trial court denied the fee motion. It explained: "I'm not here to try to take over an industry. I'm not here to regulate an industry. I'm just concerned with this case and the expedited charges." The court's order states: Plaintiffs were "not trying to vindicate the public's interest. Rather, [they were] trying to protect [their] own interest and in so doing, by virtue of a published opinion, [they] conferred a benefit to litigants." Plaintiffs filed a timely notice of appeal.

CONTENTION

Plaintiffs contend that the trial court erred in denying their section 1021.5 ...


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