2/5 DCA Believes Lack Of RT Can Be Fatal In Many Fee Situations.
For both litigators and appellate practitioners, Patel v. Clocktower Inn, Inc., Case No. B266410 (2d Dist., Div. 5 Dec. 22, 2016) (unpublished) is a good warning sign that many California intermediate appellate panels, especially the 2/5 DCA, may find that the lack of a reporter's transcript may doom the appeal of an attorney's fees order, especially where evidence may have been challenged or weighed.
Patel involved a situation where plaintiff/appellant prevailed on the merits (in a prior unpublished decision) and then filed to recover attorney's fees under the shareholder derivative "substantial benefit" basis for fee recovery. The trial judge denied plaintiff's fee motion, triggering an appeal by the winning merits plaintiff/losing fee claimant plaintiff.
The 2/5 DCA, in an opinion authored by Judge Kumar (L.A. Superior Court judge sitting as a justice by assignment), decided that the lack of an RT made it impossible to gauge what was argued on some contested exhibits submitted in connection with the fee proceeding so that the reviewing court could not evaluate completely what was done without the RT. Fee denial affirmed.
BLOG OBSERVATION—The lack/failure to provide an RT is an issue which must be confronted by the California Supreme Court at some stage, given that court reporters are not automatic in light of the fiscal crisis facing California courts. Presiding Justice Turner, in Patel, issued a pre-argument order asking the parties to address the lack of an RT on the review of the fee order, something which is done by the 2/5 DCA in appropriate appellate causes. This is a nice discreet issue needing to be addressed given the state of affairs on court reporter presence in trial courtrooms.