Filed 5/7/13
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE LAS CANOAS COMPANY, INC., 2d Civil No. B238729
(Super. Ct. No. 56-2011-00394830-CU-
Plaintiff and Appellant, BT-VTA)
(Ventura County)
v.
EVELYN HOPE KRAMER et al.,
Defendants and Respondents.
A trial court has statutory authority to determine the "reasonable rate" a
court reporter may charge a "non-noticing party" for copies of deposition transcripts in
a pending action. (Code Civ. Proc., §§ 2025.510, 128, subd. (a)(5);1 Serrano v. Stefan
Merli Plastering Co., Inc. (2008) 162 Cal.App.4th 1014 (Serrano).) Here we decide
that a non-noticing party who does not move for such an order in the pending action
may not bring a subsequent action to obtain restitution for "unreasonable" copy
charges or obtain injunctive relief setting a "reasonable rate" to be charged by that
court reporter in all future actions.
The Las Canoas Company, Inc., doing business as Construction
Plumbing (Las Canoas), appeals a judgment of dismissal.2 The trial court issued an
1 All statutory references are to the Code of Civil Procedure unless otherwise
stated.
2 We construe Las Canoas's premature notice of appeal from the order sustaining
the demurrer to be a notice of appeal from the appealable judgment subsequently
entered. (Collins v. City & Co. of S. F. (1952) 112 Cal.App.2d 719, 723.)
order sustaining a demurrer without leave to amend a class action filed by Las Canoas
against Evelyn Hope Kramer, Merrill Communications, LLC, Legalink, Inc., and
Wordwave, Inc. (collectively "the court reporter"). We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In a prior construction defect case, the plaintiffs added Las Canoas as a
defendant after 57 depositions had been taken (the Santa Barbara action). Las
Canoas's attorney requested the court reporter to provide copies of the depositions.
The court reporter quoted a rate of $2 per page. The cost would be about $16,000 for
8,000 pages. 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. Las Canoas later purchased copies of three depositions at the rate of $2 per
page, at a cost of about $1,200. It did not challenge the court reporter's rate in the
Santa Barbara action.
About four years later, Las Canoas filed this action in Ventura County
Superior Court against the court reporter. It alleges that it was entitled to copies at a
reasonable rate pursuant to section 2025.510, subdivision (c), and that the court
reporter's rates are "unlawful" and "unfair" within the meaning of Business and
Professions Code, section 17200 et seq. Las Canoas seeks restitution for excessive
fees and an injunction to impose one of four limits on the court reporter's future rate
for copies furnished to non-noticing parties: (1) 25 cents per page for paper copies;
(2) a $25 flat rate for a computer disc containing electronic copies, regardless of the
number of pages; (3) a $15 flat rate for an e-mail transmitting electronic copies, also
regardless of the number of pages; or (4) a $35 flat fee for "24/7 online access" to all
deposition transcripts and exhibits in any particular case. Las Canoas also requests
certification of a class consisting of all non-noticing parties who paid the court reporter
more than 25 cents per page for copies in the four years preceding February 2011. It
also requests costs of suit and attorney fees under the private attorney general doctrine.
(§ 1021.5.)
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The Ventura Superior Court sustained a demurrer without leave to
amend. It ruled that it lacks subject matter jurisdiction and the defect cannot be cured
by amendment. It reasoned that "[t]he deposition process is central to the
administration of civil litigation, and court reporters, as deposition officers, are officers
of the court and subject to the court's supervision. A non-noticing party's right to
obtain a deposition transcript at a reasonable fee is statutory, and, as determined in
[Serrano], the means to enforce that right is by motion to the judge presiding over the
action in which the deposition is conducted. That judge is in the 'best position' to
resolve any dispute. Reserving the issue to be subsequently determined by another
judge would undermine the discretion vested in the original trial judge to control
proceedings in his or her courtroom." The court found "[p]articularly troublesome"
the request for a preliminary injunction "which would, if granted, directly abridge the
discretion of judges assigned to future cases to determine the reasonableness of
defendant's fees."
DISCUSSION
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.)
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Neither Serrano nor section 2025.510 expressly prohibits a separate
action to enforce the statutory right to copies at a "reasonable rate." Serrano
cautioned, "[T]he court in the pending action is in the best position to resolve that
dispute in a timely fashion. To defer the determination to a later separate proceeding
would be impractical and inefficient and would undermine the trial court's necessary
authority under section 128, subdivision (a)(5) . . . ." (Serrano, supra, 162
Cal.App.4th at pp. 1038-1039.) We agree, and take Serrano's dicta a step further.
Here we hold that, absent extraordinary circumstances, the court in the action in which
the dispute arises is the only court to resolve the issue.
When no cognizable cause of action is alleged, the trial court lacks
subject matter jurisdiction. (Dabney v. Dabney (2002) 104 Cal.App.4th 379, 383.)
The complaint admits that the rate dispute arose in the Santa Barbara action. Las
Canoas may have had a remedy but did not seek relief in that proceeding. It is not
entitled to seek relief here.
Las Canoas asked for leave to amend, but did not propose an amendment
that would cure the defect. It proposes none on appeal. It did not reply to the
respondents' brief. The plaintiff has the burden of proving that there is a reasonable
probability a defect can be cured by amendment. (Blank v. Kirwin (1985) 39 Cal.3d
311, 318.) The trial court did not err when it sustained the demurrer without leave to
amend.
Disqualification
Las Canoas forfeited its contention that the trial judge was disqualified
pursuant to section 170.1, subdivision (a)(6)(A)(iii) because he used the services of
the court reporter while in private practice. The trial judge disclosed the facts to
counsel before it ruled on the demurrer and asked if counsel had any comment. Las
Canoas's counsel replied, "Not at this time, Your Honor. Thank you though." 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
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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.)
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to respondents.
CERTIFIED FOR PUBLICATION.
GILBERT, P.J.
We concur:
YEGAN, J.
PERREN, J.
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Mark S. Borrell, Judge
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.
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