Serrano v. Stefan Merli Plastering 4/28/10 CA2/3

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B215837

Case Date: 08/19/2010

Preview:Filed 4/28/10

CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE

PORFIRIO SERRANO et al., Plaintiffs and Appellants, v. STEFAN MERLI PLASTERING COMPANY, INC., etc., Defendant; COAST COURT REPORTERS, INC., Objector and Respondent.

B215837 (Los Angeles County Super. Ct. No. BC324031)

APPEAL from an order of the Superior Court of Los Angeles County, Aurelio Munoz, Judge. Affirmed. Law Offices of David B. Bloom, Edward Idell, Stephen Monroe, and James Adler for Plaintiffs and Appellants. John L. Dodd & Associates and John L. Dodd; Chambers, Noronha & Kubota and Peter A. Noronha for Objector and Respondent.

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 Courts 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 courts 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 2

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 experts 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 Coasts 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 3

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 Coasts 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," Coasts entire expedition charge was unreasonable. The court ordered that amount refunded to plaintiffs. Coast promptly paid that amount plus prejudgment interest.1 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: "Im not here to try to take over an industry. Im not here to regulate an industry. Im just concerned with this case and the expedited charges." The courts order states: Plaintiffs were "not trying to vindicate the publics 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 attorneys fee motion.

1

We denied Coasts petition for rehearing of Serrano I and the Supreme Court denied review and a request for depublication. 4

DISCUSSION 1. The guiding principles for applications for private attorneys' fees under section 1021.5 Codified in section 1021.5, the private attorney general doctrine, under which attorneys fees may be awarded to successful litigants, "rests upon the recognition that privately initiated lawsuits are often essential to the effectuation of the fundamental public policies embodied in constitutional or statutory provisions, and that, without some mechanism authorizing the award of attorney fees, private actions to enforce such important public policies will as a practical matter frequently be infeasible. [Citations.]" (Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 933 (Woodland Hills).) "In short, section 1021.5 acts as an incentive for the pursuit of public interest-related litigation that might otherwise have been too costly to bring. [Citations.]" (Punsly v. Ho (2003) 105 Cal.App.4th 102, 109, italics added.) "Eligibility for section 1021.5 attorney fees is established when ,,(1) plaintiffs action "has resulted in the enforcement of an important right affecting the public interest," (2) "a significant benefit, whether pecuniary or nonpecuniary has been conferred on the general public or a large class of persons" and (3) "the necessity and financial burden of private enforcement are such as to make the award appropriate. " (Joshua S., supra, 42 Cal.4th at pp. 951-952, fn. omitted, quoting from Woodland Hills, supra, 23 Cal.3d at p. 935.)2 Because section 1021.5 "states the criteria in the conjunctive, each of the statutory criteria must be met to justify a fee award. [Citations.]" (County of Colusa v. California Wildlife Conservation Bd. (2006) 145 Cal.App.4th 637,

2

Section 1021.5 reads in relevant part: "a court may award attorneys fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any." 5

648.) The burden is on the claimant in the trial court to establish each prerequisite to an award of attorneys fees under section 1021.5. (Ryan v. California Interscholastic Federation (2001) 94 Cal.App.4th 1033, 1044; Consumer Cause, Inc. v. Mrs. Gooch's Natural Food Markets, Inc. (2005) 127 Cal.App.4th 387, 401.) Generally, "[d]ecisions awarding or denying attorneys fees are reviewed under an abuse of discretion standard." (City of Santa Monica v. Stewart (2005) 126 Cal.App.4th 43, 82.) "Whether the moving party has proved each of these prerequisites for an award of attorney fees pursuant to section 1021.5 is best decided by the trial court, and the trial courts judgment on this issue must not be disturbed on appeal ,,unless the appellate court is convinced that it is clearly wrong and constitutes an abuse of discretion. [Citations.]" (Family Planning Specialists Medical Group, Inc. v. Powers (1995) 39 Cal.App.4th 1561, 1567.) This standard is deferential. Thereunder, " ,, "[t]o be entitled to relief on appeal . . . it must clearly appear that the injury resulting from such a wrong is sufficiently grave to amount to a manifest miscarriage of justice . . . ." [Citations.] [R]eversal is appropriate ,,where no reasonable basis for the action is shown." [Citation.] [Citations.]" (Baggett v. Gates (1982) 32 Cal.3d 128, 143.) Some courts have applied a de novo standard of review when the appellate court publishes an opinion in the case. (Cf. Los Angeles Police Protective League v. City of Los Angeles (1986) 188 Cal.App.3d 1, 7-8.) When an appellate court issues an opinion, it is arguably in as good a position as the trial court to determine whether the legal right enforced through its opinion meets any of the three criteria of section 1021.5. (See Los Angeles Police Protective League v. City of Los Angeles, supra, at p. 8.) And, a " ,,de novo review of such a trial court order is warranted where the determination of whether the criteria for an award of attorney fees and costs in this context have been satisfied amounts to statutory construction and a question of law. " (Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1175.) As explained below, under either standard

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