Second District, Division 3 Affirms Denial of Fees in Split Decision.
In Serrano v. Stefan Merli Plastering Co., Inc., 162 Cal.App.4th 1014 (2008) (Serrano I), the Second District, Division 3 decided that a trial court in a pending action does have authority to require a deposition reporter to provide a copy of a transcript to a nonnoticing party for a reasonable fee and to determine the amount of the reasonable fee if there is a later dispute. That was not the end of the matter; after all, attorney’s fees are the tail that wags the litigation dog. Plaintiffs moved for an award of attorney’s fees under Code of Civil Procedure section 1021, California’s private attorney general statute. The trial court denied the request, and plaintiffs then appealed.
The fee denial was affirmed in a 2-1 decision in Serrano v. Stefan Merli Plastering Co., Inc., Case No. B215837 (2d Dist., Div. 3 Apr. 28, 2010) (Serrano II) (certified for publication).
The appellate court did note that there seems to be an intermediate appellate disagreement on whether a de novo or abuse of discretion applies in the section 1021 context. (Slip Opn., p. 6.) However, no resolution was needed on the issue because the trial court’s ruling was correct under either standard.
The crux of the majority decision (authored by Justice Aldrich and concurred with by Presiding Justice Klein) relied on the conclusion that no true public interest was vetted, based primarily on Adoption of Joshua S., 42 Cal.4th 945 (2008). The deposition reporter fee in Serrano I mainly was a private dispute, not public interest litigation even though Serrano I was published. In effect, the Court of Appeal was holding that mere publication of a decision does not mean that a public interest is per se being vindicated. Beyond that, Serrano I simply corrected a garden-variety error by a trial court that believed its hands were mistakenly tied with respect to limiting court reporter fees—something that the appellate court did not believe was the case. No fundamental public right or constitutional principle was involved in Serrano I.
Justice Croskey dissented. He felt that the court reporter had abused its authority as an officer of the court by holding a necessary deposition transcript hostage while demanding an unreasonable fee, satisfying the Joshua S. criteria of “something more” than a private dispute. The dissent believed a remand was necessary to go over all the section 1021 factors to see if a fee award was justified.