CALIFORNIA CLASS ACTION LAW

Court Reporter tests his Stenomask (Photo credit: Wikipedia)

Yesterday, in an appeal from a dismissal of a class action, the Second District held that a non-noticing party in a deposition, who does not move for an order in the pending case for a determination of the “reasonable rate” a court reporter may charge, may not bring a subsequent action to obtain restitution or obtain injunctive relief.  The Las Canoas Company, Inc. v. Kramer, No. B238729, __ Cal. App. 4th. __ (2d Dist. May 7, 2013).  California Code of Civil Procedure section 2025.510 provides that “any other party or the deponent, at the expense of that party or deponent, may obtain a copy of the [deposition] transcript.”  In a prior action, the court reporter quoted a rate of $2 per page, totaling $16,000 for 8,000 pages.  Slip Op. at 2.  Las Canoas offered to pay a $30 flat rate in exchange for a computer disc containing uncertified copies of the transcripts and exhibits.  The court reporter did not agree, but Las Canoas did not challenge the court reporter’s rate until filing a subsequent class action.

The trial court in the subsequent case sustained a demurrer to the putative class action complaint, holding that it lacked “subject matter jurisdiction” since La Canoas failed to bring a motion in the prior case.

The Second District agreed: 

The superior court does not have subject matter jurisdiction to determine this action for equitable relief from alleged excessive court reporter’s fees because Las Canoas did not enforce its right to a reasonable copy rate by motion to the judge presiding over the Santa Barbara action. (§ 2025.510, subd. (c) [“any . . . party or the deponent, at the expense of that party or deponent, may obtain a copy of the transcript”]; Serrano, supra, 162 Cal.App.4th at p. 1038.) A non-noticing party has a statutory right to obtain a copy of deposition transcripts and exhibits at a “reasonable rate.” (§ 2025.510, subd. (c); Serrano, supra, 162 Cal.App.4th at p. 1036.) The non-noticing party may challenge the “reasonableness” of the rate by motion in the court in which the action is pending. (Serrano, at p. 1020.) That court has authority to set the rate under its inherent authority to control the conduct of ministerial officers in pending actions in order to protect the administration of justice. (§ 128, subd. (a)(5); Serrano, at p. 1029.)

Slip Op. at 3.

The court further concluded that “absent extraordinary circumstances, the court in the action in which the dispute arises is the only court to resolve the issue.” Slip Op. at 4 (emphasis supplied).

Judge Disqualification

Las Canoas also sought disqualification of the trial judge pursuant to California Code of Civil Procedure section 170.1(a)(6)(A)(iii), which provides for disqualification if a “person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.  The trial judge disclosed the fact that he used the services of the court reporter while in private practice.  Las Canoas did not challenge the judge’s qualification at the time of the disclosure.  Accordingly, the court concluded that:

Las Canoas may not now challenge the judge’s qualification. “It is incumbent upon litigants seeking to disqualify a judge for bias and prejudice to make their challenge . . . at the earliest practical opportunity after their appearance in the action and discovery of the facts constituting the grounds of disqualification.” (Robinson v. Superior Court (1960) 186 Cal.App.2d 644, 649.)

Judges and Attorneys

Presiding Justice Arthur Gilbert delivered the opinion for the court, with Associate Justice Kenneth R. Yegan and Associate Justice Steven Z. Perren concurring.

Appeal from Judge Mark S. Borrell, Superior Court County of Ventura.

Daniel E. Engel for Plaintiff and Appellant.

Ogletree, Deakins, Nash, Smoak & Stewart, Vince M. Verde, Allison C. Eckstrom, for Defendants and Respondents.

By CHARLES H. JUNG