PORFIRIO SERRANO et al., Plaintiffs and Appellants,
v.
STEFAN MERLI PLASTERING COMPANY, INC., Defendant;
COAST COURT REPORTERS, INC., Objector and Respondent.
Court of Appeals of California, Second District, Division Three.
*181 Law Offices of David B. Bloom, Edward Idell, Stephen Monroe and James Adler for Plaintiffs and Appellants.
John L. Dodd & Associates, John L. Dodd; Chambers, Noronha & Kubota and Peter A. Noronha for Objector and Respondent.
OPINION
ALDRICH, J.
INTRODUCTION
At issue in Serrano v. Stefan Merli Plastering Co., Inc. (2008)
Thereafter, plaintiffs sought their attorney 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)
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 *183 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 nonnoticing party a substantial expedition fee to be "unconscionable" but, pursuant to Urban Pacific Equities Corp. v. Superior Court (1997)
In the course of plaintiffs' ensuing appeal, we solicited briefing from amici curiae. Three court reporter associations filed amicus curiae 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 nonnoticing party and the nonnoticing party must pay for it, that the trial court had no authority to "`regulate the amount of' the fee." (Serrano I, supra,
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 *184 unreasonable. The court ordered that amount refunded to plaintiffs. Coast promptly paid that amount plus prejudgment interest.[1]
3. The instant motion for attorney fees (§ 1021.5)
Thereafter, plaintiffs sought their attorney fees from Coast pursuant to section 1021.5. Relying on Joshua S., supra,
CONTENTION
Plaintiffs contend that the trial court erred in denying their section 1021.5 attorney fee motion.
DISCUSSION
1. The guiding principles for applications for private attorney fees under section 1021.5
(1) Codified in section 1021.5, the private attorney general doctrine, under which attorney 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)
"Eligibility for section 1021.5 attorney fees is established when `(1) plaintiffs' action "has resulted in the enforcement of an important right affecting the *185 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 Woodland Hills, supra,
Generally, "[d]ecisions awarding or denying attorneys' fees are reviewed under an abuse of discretion standard." (City of Santa Monica v. Stewart (2005)
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)
2. The Supreme Court in Joshua S. established the applicable criteria here for determining under section 1021.5 whether the litigation "has resulted in the enforcement of an important right affecting the public interest."
As noted, if any of the section 1021.5 elements is not met, then the fee award is not justified. (County of Colusa v. California Wildlife Conservation Bd., supra,
Joshua S. involved a dispute between a same-sex couple that had engaged in a practice known as "second parent" adoption, in which the same-sex partner of a birth mother adopted the child, while the birth mother retained her parental rights. After the couple's relationship ended, the birth mother challenged her former partner's adoption of the second child, Joshua, by arguing, inter alia, that the form of adoption had no legal basis. (Joshua S., supra,
(2) The Supreme Court concluded that attorney fees under section 1021.5 were not appropriately awarded because the losing party birth mother was "not the type of party on whom private attorney general fees were intended to *187 be imposed." (Joshua S., supra,
(3) The court also found support for its interpretation of public interest litigation such as would justify section 1021.5 attorney fees in the statute's legislative history. "[T]he Legislature was focused on public interest litigation in the conventional sense: litigation designed to promote the public interest by enforcing laws that a governmental or private entity was violating, rather than private litigation that happened to establish an important precedent." (Joshua S., supra,
(4) The Joshua S. court viewed the birth mother, the person from whom the prevailing party sought to recover fees, as "a private litigant with no *188 institutional interest in the litigation, and the judgment she sought in the present case would have settled only her private rights and those of her children and [the prevailing party adoptive mother]. She simply raised an issue in the course of that litigation that gave rise to important appellate precedent decided adversely to her." (Joshua S., supra,
3. Joshua S. is on point and is controlling Supreme Court precedent.
Serrano I is analogous to the prior litigation in Joshua S. (Sharon S. v. Superior Court (2003)
(5) The trial court here did not abuse its discretion in concluding that Serrano I was a private dispute, not public interest litigation, notwithstanding our decision to publish Serrano I did have, as plaintiffs characterize it: a "public effect." "Although `it is a built-in consequence of [the Anglo-American principle of] stare decisis that "a legal doctrine established in a case involving a single litigant characteristically benefits all others similarly situated"' (Dawson, [Lawyers and Involuntary Clients in] Public Interest Litigation [(1975)] 88 Harv.L.Rev. 848, 918 ...), the doctrine of stare decisis has never been viewed as sufficient justification for permitting an attorney to obtain fees from all those who may, in future cases, utilize a precedent he has helped to secure. [Citations.]" (Woodland Hills, supra,
*189 (6) At issue in Serrano I was a private business disagreement between plaintiffs and Coast onlynot the entire deposition reporting industryover the fees one side of the arrangement sought to charge the other side for services provided in the course of a larger personal injury lawsuit. (Joshua S., supra,
4. Under our independent analysis, Serrano I was not public interest litigation for purposes of section 1021.5 as explicated by Joshua S.
We may determine de novo whether our own opinion enforced a legal right that meets the criteria of section 1021.5. Serrano I did not result in the clarification or enforcement of an important public right or a constitutional principle as described by Joshua S. This court's earlier decision in Serrano I did not create new law or extend existing law. Our opinion merely reiterated the state of statutory authority (Code Civ. Proc., §§ 2025.510, subd. (c), 2025.570, subd. (a), 128), which empowers trial courts to regulate deposition fees. Nor did our opinion pronounce a new principle. Trial courts have long had the inherent power generally to control the conduct of ministerial officers *190 and others connected with judicial proceedings. (Code Civ. Proc., § 128.) The trial court in Serrano I misunderstood its power and believed itself constrained by Urban Pacific Equities Corp. v. Superior Court, supra,
For these reasons, we reject plaintiffs' contention that, unlike Joshua S., this case "implicate[s] ongoing adverse impact to the public." Although vague, it appears that plaintiffs also argue that the trial court misread Joshua S. and ignored plaintiffs' mixed motives both to protect their own rights and to vindicate a public right. However, a similar argument, namely, that the attorney was motivated to defend a public right, was not successful in Joshua S. (
To summarize, the trial court's determination that Serrano I was private litigation and did not result in the enforcement of an important public right is entitled to deference and is handily affirmed. Our independent review of our own opinion confirms the trial court's conclusion that Serrano I was not public interest litigation. As we conclude that the trial court did not abuse its discretion in denying plaintiffs private attorney general fees because plaintiffs had failed to show the first element of the section 1021.5 test (County of Colusa v. California Wildlife Conservation Bd., supra,
*191 DISPOSITION
The order is affirmed. Respondent to recover costs of appeal.
Klein, P. J., concurred.
CROSKEY, J., Dissenting.
I respectfully dissent.
I believe the trial court read the Supreme Court's opinion in Adoption of Joshua S. (2008)
1. Serrano I
We held in Serrano I that the court in a pending action has the authority to require a deposition reporter to provide a copy of a transcript to a nonnoticing party for a reasonable fee. This is so because a deposition reporter acting, as Coast Court Reporters, Inc. (Coast), did, as a deposition officer, is a ministerial officer of the court. (Serrano I, supra,
A deposition must be conducted under the supervision of a deposition officer who is authorized to administer an oath. (Code Civ. Proc., § 2025.320.) The deposition testimony must be recorded stenographically, unless the parties agree or the court orders otherwise. (Code Civ. Proc., § 2025.320.) In this case, Coast followed the common practice of acting as both deposition officer and certified shorthand reporter. (Serrano I, supra,
*192 In this case, Coast violated its statutory duty as a deposition officer by refusing to deliver copies of its transcripts without payment of an unreasonable fee.[1] Thus, Serrano I did not resolve a mere dispute between private parties regarding the reasonableness of a fee, but a dispute between a party to a litigation in the California courts and the deposition officer who was undermining that party's ability to prepare for trial by violating its own statutory duties.
2. Joshua S.
In Joshua S., the Supreme Court concluded that section 1021.5 fees are not appropriately awarded against a party who "only engaged in litigation to adjudicate private rights from which important appellate precedent happens to emerge, but has otherwise done nothing to compromise the rights of the public or a significant class of people." (Joshua S., supra,
The court also recognized that, as a general rule, in cases where section 1021.5 fees have been awarded, the litigation "obtained a substantial benefit by causing a change in the defendant's behavior, whose actions or failure to act was somehow impairing the statutory or constitutional rights of the public or a significant class of people." (Joshua S., supra, 42 Cal.4th at pp. 954-955.) The court then identified many of these prior cases in a lengthy footnote. (Id. at p. 955, fn. 3.) These cases included litigation against private defendants, where the only wrongdoing by the defendants was against their own customers (e.g., Colgan v. Leatherman Tool Group, Inc. (2006)
Finally, the court pointed to the language of section 1021.5 which creates the first element of the test for attorney fees: that the action "has resulted in the enforcement of an important right affecting the public interest." The court focused on the word "enforcement," and concluded that "[t]he enforcement of an important right affecting the public interest implies that those on whom attorney fees are imposed have acted, or failed to act, in such a way as to violate or compromise that right, thereby requiring its enforcement through litigation. It does not appear to encompass the award of attorney fees against an individual who has done nothing to curtail a public right other than raise an issue in the context of private litigation that results in important legal precedent." (Joshua S., supra,
In sum, the court held that "even when an important right has been vindicated and a substantial public benefit conferred, and when a plaintiff's litigation has transcended her personal interest, ... section 1021.5 was not intended to impose fees on an individual seeking a judgment that determines only his or her private rights, but who has done nothing to adversely affect the public interest other than being on the losing side of an important appellate case." (Joshua S., supra,
3. Joshua S. Does Not Bar an Award of Attorney Fees in This Case
In the instant case, Coast argues that it is in the same position as the birth mother in Joshua S., as it did nothing to adversely affect the public interest, or a significant class of people, other than attempt to defend its expedition fees and ultimately be on the losing side of Serrano I. We disagree. Coast overlooks that it refused to deliver copies of its transcripts without payment of an unreasonable fee. As we stated in Serrano I, "For a deposition reporter *194 to refuse to provide a copy of a transcript to a nonnoticing party in a pending action unless the party agrees to pay an unreasonable fee would be grossly unfair. Moreover, for a deposition reporter, as an officer of the court, to engage in such conduct would be an abuse of the reporter's authority." (Serrano I,
To be sure, Serrano I involved more than whether a deposition reporter could withhold a transcript copy unless paid an unreasonable fee; the opinion also established a trial court's jurisdiction and authority to determine the reasonableness of the fee in the pending proceeding (even though the deposition reporter, while an officer of the court, was not a party to the action). Had this latter issue been the sole issue before us in Serrano I, and Coast had not charged an unreasonable fee or had not withheld the transcript, Coast would have a potentially viable argument that it falls within the scope of the rule of Joshua S. But this is not a case in which Coast simply litigated a private issue and ended up on the losing side of an opinion establishing trial court jurisdiction over deposition reporters' fees; Coast instead abused its authority as an officer of the court by holding a necessary transcript hostage while demanding an unreasonable fee. It is therefore not entitled to the benefit of the Joshua S. opinion. To the extent the trial court concluded otherwise, I believe it erred as a matter of law.[4]
*195 I would therefore reverse and remand for a determination of whether plaintiffs are entitled to attorney fees under each of the elements which must be established for an award of fees pursuant to section 1021.5. (See Joshua S., supra, 42 Cal.4th at pp. 951-952; Los Angeles Police Protective League v. City of Los Angeles (1986)
NOTES
[1] We denied Coast's petition for rehearing of Serrano I and the Supreme Court denied review and a request for depublication.
[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."
[3] The dissent makes much of our observation in Serrano I that deposition reporters are ministerial officers of the court to argue that Coast's conduct in "holding a necessary transcript hostage while demanding an unreasonable fee" transforms this dispute into public interest litigation. (See dis. opn., post, at pp. 192, 194.) Yet, as noted, the fee Coast charged was not unreasonable until the trial court ruled it so, and once the dispute arose between Coast and plaintiffs, Coast waived its fee and provided the deposition transcripts pending resolution of the disagreement by the trial court. Therefore, the fact that deposition reporters are ministerial officers of the court does not transform this disagreement into public interest litigation.
Notes
[1] The majority makes much of the fact that Coast "waived its fees and delivered all of the deposition transcripts to plaintiffs pending the trial court's determination of the reasonableness of the expedited-service fee." (Maj. opn., ante, at p. 189.) Yet Coast initially charged the unreasonable fee, then, when plaintiffs protested, Coast stated that "counsel would receive a certified copy of the transcript on an expedited basis only upon payment of the additional fee." (Serrano I, supra,
[2] We held in Serrano I that withholding a transcript unless a party agreed to pay an unreasonable fee would be "an abuse of the reporter's authority," and a violation of statutory requirements which, when read together, require that copies be provided for a reasonable fee (Code Civ. Proc., §§ 2025.510, subd. (c), 2025.570, subd. (a)). What had not been established was whether Coast's fee had, in fact, been unreasonable. Once the trial court concluded that Coast's fee was unreasonable in its entirety, it was necessarily established that Coast had abused its authority and violated the statutory requirements.
[3] As Coast represented that the fee it charged plaintiffs was its standard fee for an expedited transcript copy, the conclusion that Coast's conduct adversely affected all nonparties who sought expedited transcript copies from Coast, and not merely the plaintiffs in this action, is inescapable.
[4] I believe the trial court further erred in its apparent reliance on the plaintiffs' initial motives. That is, the court stated, "Moving party was 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." But whether a plaintiff pursued an action with the subjective motivation of benefitting himself or the public is not a controlling factor in determining whether the plaintiff is entitled to fees under section 1021.5. (Satrap v. Pacific Gas & Electric Co. (1996)