1

Filed 10/31/11

IN THE SUPREME COURT OF CALIFORNIA

PORFIRIO SERRANO et al., )

)

Plaintiffs and Appellants, )

) S183372

v. )

) Ct.App. 2/3 B215837

STEFAN MERLI PLASTERING )

CO., INC., )

) Los Angeles County

Defendant; ) Super. Ct. No. BC324031

)

COAST COURT REPORTERS, INC., )

)

Objector and Respondent. )

____________________________________)

Code of Civil Procedure section 1021.5 authorizes an award of attorney 

fees to a ―private attorney general,‖ that is, a party who secures a significant 

benefit for many people by enforcing an important right affecting the public 

interest.1 In Adoption of Joshua S. (2008) 42 Cal.4th 945 (Joshua S.), we decided 

that a section 1021.5 fee award may not be imposed on a litigant who did nothing 

to adversely affect the public interest, but simply lost an important appellate case 

in the course of pursuing his or her private rights. (Joshua S., at p. 958.)

In this case, plaintiffs objected to paying an extra fee for an expedited 

transcript of a deposition noticed by defendant. They won an appeal establishing 

 

1 Further statutory references are to the Code of Civil Procedure.
2

that trial courts have the authority to determine the reasonableness of fees charged 

by deposition reporters to nonnoticing parties. On remand, the trial court found 

that the fee charged to plaintiffs was unreasonable, but denied their motion for an 

award of attorney fees under section 1021.5. Relying on Joshua S., the court 

concluded that plaintiffs had acted in their own interest and only incidentally 

conferred a benefit on other litigants. The Court of Appeal, in a split decision, 

affirmed. We granted plaintiffs‘ petition for review, in order to clarify the scope 

of our holding in Joshua S.

We conclude that Joshua S. has no application here. Deposition reporters 

are officers of the court, regulated by statute, who perform a public service of 

considerable importance to litigants and members of the public. The reporting 

service here did not merely seek to vindicate its private rights. It defended its 

institutional interest in controlling the fees it charges, and sought to shield itself 

from judicial review of its conduct as a ministerial officer of the court. Moreover, 

it was found to have charged plaintiffs an unreasonable fee. The courts below 

erred by concluding that the service did nothing adverse to the public interest, and 

that plaintiffs‘ appeal did not involve an important right affecting the public 

interest.

BACKGROUND

In the underlying personal injury action, which eventually settled, 

defendant took the deposition of a plaintiffs‘ expert and requested an expedited 

transcript. The reporting service, Coast Court Reporters (Coast), asked plaintiffs‘ 

counsel whether he too wanted an expedited transcript. He did, and Coast sent 

counsel a bill including a fee for expediting the copy. 2 Counsel objected to the 

 

2 The fee for expediting delivery was $261.56, in addition to $373.65 for a 

certified copy, $14.00 for exhibits, $10.00 to e-mail an ASCII version, and $40.00 

(footnote continued on next page)
3

additional charge. Coast refused to expedite the transcript without payment of the 

fee. Counsel asked the trial court to require Coast to provide the transcript without 

the extra cost. Coast and plaintiffs‘ counsel agreed that the court‘s ruling would 

determine the validity and reasonableness of its fee, and would govern the fees for 

other expedited transcripts in the action. Coast delivered the transcript to 

plaintiffs, deferring payment until the court ruled.

The trial court found that Coast‘s practice of charging the nonnoticing party 

a fee for expedited transcripts was ―unconscionable.‖ However, the court believed 

it had no authority to determine how much a deposition reporter may charge for 

transcripts. It ordered plaintiffs to pay the full amount charged by Coast, but 

invited them to seek appellate review. Plaintiffs did so, and prevailed. (Serrano v. 

Stefan Merli Plastering Co., Inc. (2008) 162 Cal.App.4th 1014, 1037 (Stefan I).)

In Stefan I, the Court of Appeal observed that depositions must be 

conducted under the supervision of an officer qualified to administer an oath. 

(§ 2025.320.) While the officer and the stenographer who records the testimony 

need not be the same person, they usually are, and that practice was followed 

here.3 (Stefan I, supra, 162 Cal.App.4th at p. 1033.) The court further observed 

that deposition officers are ministerial officers of the court (Burns v. Superior 

 

(footnote continued from previous page)

for ―Shipping/Administration.‖ The record does not disclose the amount charged 

to defendant, the noticing party. A declaration by the president of Coast states that 

the page rate for expedited certified copies ―is less than one-half the cost of the 

original transcript page rate which is charged to the party who noticed the 

deposition.‖

3 The Stefan I court noted that references to deposition reporters in its 

opinion were based on the assumption that the reporter was also acting as 

deposition officer. (Stefan I, supra, 162 Cal.App.4th at p. 1033, fn. 8.) We adopt 

the same usage here.
4

Court (1903) 140 Cal. 1, 9), who are subject to the court‘s statutory and inherent 

authority over judicial proceedings (§ 128, subd. (a)(5); Walker v. Superior Court

(1991) 53 Cal.3d 257, 266–267). 4 (Stefan I, supra, 162 Cal.App.4th at p. 1035.)

Section 2025.510, subdivision (c) allows a nonnoticing party to obtain a 

copy of a deposition transcript at its own expense. Stefan I reasoned that the trial 

court ―obviously should be able to enforce this statutory right by ordering the 

deposition reporter to provide a copy of the transcript . . . on condition of the 

party‘s payment of the  ̳expense‘ of the copy.‖ (Stefan I, supra, 162 Cal.App.4th 

at p. 1035, citing § 128.5, subd. (a)(5).) Coast argued that while the court could 

order a reporter to provide a copy of a transcript, it could not regulate the amount 

of the fee charged by the reporter. The Court of Appeal disagreed, pointing out 

that the nonnoticing party has no contractual relationship with the reporter, who is 

selected by the noticing party. Thus, the nonnoticing party is in no position to 

bargain for lower rates. Indeed the reporter may have an incentive to offer lower 

rates to the noticing party while shifting some of its costs of service to the 

nonnoticing party. (Stefan I, supra, 162 Cal.App.4th at pp. 1035-1036.) 

―In light of the importance of deposition testimony in a pending action and 

the nonnoticing party‘s lack of bargaining power, a trial court must be cautious not 

to lend assistance to overreaching by the deposition reporter. For a deposition 

reporter to refuse to provide a copy of a transcript to a nonnoticing party in a 

 

4 Section 128, subdivision (a)(5) provides that every court has the power 

―[t]o control in furtherance of justice, the conduct of its ministerial officers, and of 

all other persons in any manner connected with a judicial proceeding before it, in 

every matter pertaining thereto.‖ In Walker v. Superior Court, supra, 53 Cal.3d at 

page 267, we noted that while section 128 sets out some of the courts‘ inherent 

powers, those powers are derived from the California Constitution (art. VI, § 1) 

―and are not confined by or dependent on statute.‖
5

pending action unless the party agrees to pay an unreasonable fee would be 

grossly unfair.‖ (Stefan I, supra, 162 Cal.App.4th at p. 1036.) Thus, ―the only 

monetary condition that the court may properly place upon the nonnoticing party‘s 

right to receive a copy of the deposition transcript would be payment of a 

reasonable fee.‖ (Ibid.) The court found support for this conclusion in section 

2025.570, subdivision (a), which applies to nonparties, and specifies that the fee 

charged to ―any person requesting a copy‖ of a deposition transcript must be 

―reasonable.‖5 It would be ―anomalous indeed,‖ said the court, ―for the 

Legislature to require a deposition officer to provide a copy of a deposition 

transcript to a nonparty for a reasonable fee while denying the same protection for 

a litigating party.‖ (Stefan I, at pp. 1036-1037.)

Stefan I distinguished and disagreed with Urban Pacific Equities Corp. v. 

Superior Court (1997) 59 Cal.App.4th 688 (Urban Pacific), which had led the trial 

court to believe it had no authority to set Coast‘s fee. The Urban Pacific court 

rejected a nonnoticing party‘s argument that it was entitled to obtain a copy of a 

deposition transcript by serving a ―business records subpoena.‖ (Urban Pacific, 

supra, 59 Cal.App.4th at p. 693.) By way of introduction, however, the court

observed that ―there is no statute regulating the fees charged by private reporting 

firms, and deposition reporters are free to charge all the market will bear.‖ (Id. at 

pp. 691-692.) The Stefan I court was not persuaded by this dictum. It noted that a

nonnoticing party has no market interaction with the deposition reporter, and 

 

5 Section 2025.570, subdivision (a) provides, in relevant part: ―[A] copy of 

the transcript of the deposition testimony . . . shall be made available by the 

deposition officer to any person requesting a copy, on payment of a reasonable 

charge set by the deposition officer.‖
6

―absent timely judicial intervention, could be placed at the mercy of the reporter‘s 

arbitrary pricing policy.‖ (Stefan I, supra, 162 Cal.App.4th at p. 1037, fn. 12.)

The Urban Pacific court had also commented that former section 2025.5, 

the predecessor of section 2025.570, offered no solution to the problem of 

excessive deposition charges. The court evidently read the statutory reference to 

―a reasonable charge set by the deposition officer‖ as granting the reporter free 

rein, even though it viewed the charges in the case before it as ―obviously 

excessive.‖ (Urban Pacific, supra, 59 Cal.App.4th at p. 692; see fn. 5, ante.) It 

stated, ―Unless [the reporter] concedes that its charges are not  ̳reasonable,‘ we do 

not see how this new statute[6

] would affect the problem faced by [the appellant], 

particularly since the new statute appears to be for the benefit of nonparties, not 

parties.‖ (Urban Pacific, at p. 692, fn. 7.) The Stefan I court took exception to 

this view. ―A trial court‘s failure to intervene to prevent such abuse of a 

nonnoticing party would amount to official toleration of such conduct. To the 

extent that Urban Pacific suggests that such a result is required by judicial 

impotency in such circumstances, we decline to follow it.‖ (Stefan I, supra, 162 

Cal.App.4th at p. 1037, fn. 12.)

Stefan I concluded that the trial court in the pending action is in the best 

position to resolve deposition fee disputes, in a manner consistent with the 

procedures routinely followed to determine the costs recoverable by a prevailing 

party. (Stefan I, supra, 162 Cal.App.4th at pp. 1038-1039.) Because the trial 

court had failed to exercise its discretion as to whether Coast‘s charges were 

reasonable in this case, the Court of Appeal remanded with directions to make that 

determination and order a refund of any amounts found to be excessive. (Id. at pp. 

 

6 Former section 2025.5 took effect in 1998, the year following the Urban 

Pacific decision. (See Stats. 1997, ch. 395, § 2, pp. 2680-2681.)
7

1039-1040.) On remand, the trial court ruled that ―under the circumstances 

presented,‖ the entire charge for expediting the transcript was unreasonable. It 

ordered that amount refunded to plaintiffs, with interest.

Plaintiffs then filed a motion for attorney fees under section 1021.5. They 

asked for an award of up to $50,000, though counsel asserted that this would leave 

him with many hours of uncompensated time. Plaintiffs claimed they met all the 

statutory conditions for a fee award: They had successfully enforced an important 

right affecting the public interest, conferring a significant benefit on a large class 

of persons, and the necessity and financial burden of private enforcement made an 

award appropriate.7 Coast opposed the motion, contending that plaintiffs had 

sought not to enforce a public right but merely to avoid paying a fee for deposition 

transcripts. Coast disputed plaintiffs‘ claim that they had vindicated an important 

public right, and relied on Joshua S., supra, 42 Cal.4th 945, for the proposition 

that a party who has done nothing to adversely affect the public interest other than 

being on the losing side of an appeal should not be subjected to a fee award under 

section 1021.5.

The trial court denied the fee motion, explaining: ―  ̳[S]ection 1021.5 does 

not authorize an award of attorney fees against an individual who has done 

nothing to adversely affect the rights of the public or a substantial class of people 

 

7 Section 1021.5 provides, in relevant part: ―Upon motion, 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.‖
8

other than raise an issue in the course of private litigation that could establish legal 

precedent adverse to a portion of the public. . . .‘ ([Joshua S., supra,] 42 Cal.4th 

945, 949.) Here that is exactly what occurred. Moving party was not trying to 

vindicate the public‘s interest. Rather, he was trying to protect his own interest 

and in so doing, by virtue of a published opinion, he conferred a benefit to 

litigants.‖

The Court of Appeal affirmed over the dissent of Justice Croskey, the 

author of the Stefan I opinion. The majority held that plaintiffs had failed to satisfy 

the first element of section 1021.5, because their action did not result in the 

enforcement of an important right affecting the public interest. The majority 

deemed Joshua S. on point and controlling. In Joshua S., former domestic 

partners had litigated the validity of a ―second parent‖ adoption and in so doing 

established the lawfulness of this form of adoption. 8 (Joshua S., supra, 42 Cal.4th 

at p. 952.) Here, the Court of Appeal majority decided that Coast occupied a 

position similar to that of the birth mother in Joshua S., who sought to invalidate 

the adoption. It viewed the litigation in Stefan I as a ―private business 

disagreement‖ between plaintiffs and Coast, which happened to involve an issue 

that was resolved in a published opinion.

The majority concluded that plaintiffs‘ action did not qualify as public 

interest litigation. ―Coast was not purporting to represent the public and its 

conduct addressed in our opinion had not been impairing the statutory or 

constitutional rights of the public or even a large or significant class of people.‖ It 

emphasized that Coast had ―waived its fees and delivered all of the deposition 

 

8 In a ―second parent‖ adoption, the child is adopted by the partner of the 

legal parent, without terminating the parental rights and responsibilities of the 

legal parent. (Sharon S. v. Superior Court (2003) 31 Cal.4th 417, 422, fn. 2.)
9

transcripts to plaintiffs pending the trial court‘s determination of the 

reasonableness of the expedited-service fee.‖ The majority viewed the Stefan I

opinion as a reiteration of existing statutory law governing deposition fees, and a 

correction of ―a garden-variety error by a trial court that had mistakenly believed 

it lacked the authority to limit court reporter fees.‖

The dissenting opinion would have reversed and remanded for the trial 

court to consider all the elements required for an award of fees under section 

1021.5. In the dissent‘s view, Coast could not be compared to the losing parent in 

Joshua S. It had engaged in conduct against the public interest and violated its 

statutory duty as a deposition officer by refusing to deliver a transcript without 

payment of an unreasonable fee.

DISCUSSION

On appeal from an award of attorney fees under section 1021.5, ―  ̳the 

normal standard of review is abuse of discretion. However, de novo review of 

such a trial court order is warranted where the determination of whether the 

criteria for an award of attorney fees and costs in this context have been satisfied 

amounts to statutory construction and a question of law.‘ ‖ (Connerly v. State 

Personnel Bd. (2006) 37 Cal.4th 1169, 1175; accord, Conservatorship of Whitley

(2010) 50 Cal.4th 1206, 1213.) Resolution of this case turns primarily on 

interpretations of section 1021.5 and the Joshua S. and Stefan I opinions, which 

present questions of law. 

Section 1021.5 authorizes an award of fees when (1) the action ―has 

resulted in the enforcement of an important right affecting the 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.‖ 

(§ 1021.5; see Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 
10

Cal.3d 917, 935 (Woodland Hills).) In Joshua S., we carved out a limited 

exception to these qualifications: ―[E]ven when an important right has been 

vindicated and a substantial public benefit conferred, and when a plaintiff‘s 

litigation has transcended her personal interest,[9

]

. . . 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, 42 Cal.4th at p. 958.)

We reasoned that the terms of the statute reflect an implicit understanding 

by the Legislature that fee awards are to be imposed only on parties whose 

conduct adversely affected the public interest. ―Section 1021.5 authorizes fees for 

 ̳any action which has resulted in the enforcement of an important right affecting 

the public interest . . . .‘ (Italics added.) The 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, 42 Cal.4th at p. 956.)

 

9 ―As this court has elaborated with respect to th[e] third requirement (. . . 

sometimes referred to as the necessity and financial burden requirement):  ̳ ―An 

award on the  ̳private attorney general‘ theory is appropriate when the cost of the 

claimant‘s legal victory transcends his personal interest, that is, when the necessity 

for pursuing the lawsuit placed a burden on the plaintiff  ̳out of proportion to his 

individual stake in the matter.‘ [Citation.]‖ ‘ (Woodland Hills, supra, 23 Cal.3d at 

p. 941.)‖ (Joshua S., supra, 42 Cal.4th at p. 952.)
11

Here, the Court of Appeal majority misapprehended the nature of the 

Joshua S. holding. The majority proceeded on the assumption that 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‘ ‖ (italics omitted), the first of the statutory factors. 

However, in Joshua S. we did not explicate or apply the usual section 1021.5 

criteria. The first two factors were unquestionably met. The prior litigation 

establishing the validity of second parent adoptions involved an important legal 

issue and ―yield[ed] a substantial and widespread public benefit.‖ (Joshua S., 

supra, 42 Cal.4th at p. 952.) While the third factor was in dispute, particularly as 

to whether the plaintiff‘s personal interest in vindicating her parental rights 

disqualified her from recovering her attorney fees, we did not resolve that issue in 

Joshua S.

10 Instead, as described above, we recognized an exception to be applied 

in cases where all three factors are satisfied, but the party from whom fees are 

sought ―is not the type of party on whom private attorney general fees were 

intended to be imposed.‖ (Joshua S., at p. 953.)

Thus, Joshua S. has no bearing on whether an action qualifies as one that 

―has resulted in the enforcement of an important right affecting the public 

interest,‖ except insofar as it exemplifies a conceded point. (§ 1021.5.) Nor does 

the analysis of the Court of Appeal majority below suffice to bring this case within 

the Joshua S. exception. The majority agreed with the trial court‘s view that the 

dispute between plaintiffs and Coast was a ―private business disagreement,‖ which 

―did not arise from an attempt to curtail any conduct on the part of Coast that was 

 

10 We decided the ―personal interest‖ question in Conservatorship of Whitley, 

supra, 50 Cal.4th 1206. 
12

infringing a statutory or public right.‖ These characterizations are insupportable, 

in view of the facts and law set out in the Stefan I opinion.

There was no business relationship between plaintiffs and Coast, which was 

retained as the deposition reporter by defendant. Plaintiffs had no choice but to 

get their transcripts from Coast. Coast was a ministerial officer of the court, and 

its obligations to plaintiffs were determined by statute, not by contract. While the 

proceedings in the trial court regarding transcript charges might be deemed a 

minor dispute limited to the circumstances of this litigation, on appeal Coast 

strenuously defended its institutional interest in controlling the fees charged to a 

nonnoticing party without judicial oversight. And the trial court determined, on 

remand after Stefan I, that Coast had indeed violated plaintiffs‘ right to receive a 

transcript for a reasonable charge. Accordingly, this is not a case in which a 

―private litigant with no institutional interest in the litigation‖ pursued ―only [its] 

private rights.‖ (Joshua S., supra, 42 Cal.4th at p. 957.) Rather, we are presented 

with the usual circumstance where private attorney general fees are sought from a 

party ―at least partly responsible for the policy or practice that gave rise to the 

litigation.‖ (Connerly v. State Personnel Bd., supra, 37 Cal.4th at p. 1181; see 

Joshua S., supra, 42 Cal.4th at p. 957.)11

 

11 Coast‘s status as a ministerial officer of the court, and the absence of an 

arm‘s-length business relationship between Coast and plaintiffs‘ counsel, are 

central to our conclusion that this case does not fit the Joshua S. scenario, where a 

party seeks to vindicate only private rights and does nothing to affect the public 

interest other than litigating a case that results in an important appellate precedent. 

We do not suggest, however, that the existence of a private business relationship 

necessarily places a party within the scope of the Joshua S. exception. While most 

private attorney general fee cases involve public or quasi-public agencies whose 

actions have impaired the public interest (see Joshua S., supra, 42 Cal.4th at p. 

955, fn. 9), private business practices that damage important public rights may 

also justify a fee award under section 1021.5 (see, e.g., Hewlett v. Squaw Valley 

(footnote continued on next page)
13

The Court of Appeal majority also went astray when it determined that 

Stefan I ―was not public interest litigation for purposes of section 1021.5 as 

explicated by Joshua S.‖ (italics omitted), reasoning that Stefan I ―did not create 

new law or extend existing law . . . [but] merely reiterated the state of statutory 

authority . . . 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 and others connected with 

judicial proceedings. . . . The trial court in [Stefan I] misunderstood its power and 

believed itself constrained by Urban Pacific [], supra, 59 Cal.App.4th 688. 

[Stefan I] gave guidance by disagreeing with Urban [Pacific] and explicating the 

court‘s power. Therefore, we merely corrected a garden-variety error by a trial 

court that had mistakenly believed it lacked the authority to limit court reporter 

fees, with the result that [Stefan I] did not enforce a fundamental public right or 

constitutional principle that was being infringed by Coast.‖

Joshua S. did not speak to these concerns. There, as noted above, the 

public importance of the underlying litigation was undisputed. Furthermore, the 

majority‘s interpretation of the Stefan I opinion is unduly cramped. The statutes 

governing depositions were unclear on the expenses chargeable to a nonnoticing 

party, and silent on the courts‘ authority to intervene. Section 2025.510, 

subdivision (c) offered no guidance on the amount of the ―expense‖ a nonnoticing 

party may be charged, and section 2025.570, subdivision (a), governing transcript 

requests by nonparties, referred to ―a reasonable charge set by the deposition 

 

(footnote continued from previous page)

Ski Corp. (1997) 54 Cal.App.4th 499, 543-545; Beasley v. Wells Fargo Bank

(1991) 235 Cal.App.3d 1407, 1417-1418).
14

officer.‖ The Urban Pacific court, albeit in dicta, had viewed the statutory scheme 

as permitting deposition officers to charge whatever the market would bear. 

(Urban Pacific, supra, 59 Cal.App.4th at p. 692.) The trial court‘s reluctance to 

review the reasonableness of Coast‘s deposition fees under this state of the law 

was understandable.

The Stefan I opinion makes it plain that the court was addressing statutory 

and constitutional rights of considerable public importance. ―Depositions play an 

important role in litigation and trial preparation, and deposition testimony may be 

offered as evidence in pretrial proceedings and, in some circumstances, at trial.‖ 

(Stefan I, supra, 162 Cal.App.4th at p. 1036.) ―[C]onditioning the party‘s right to 

receive a copy of a transcript on payment of an unreasonable fee would undermine 

rather than promote the administration of justice and could very well result in a 

denial of due process to the nonnoticing party victimized by the reporter‘s 

conduct.‖ (Ibid.) These considerations substantially contributed to the court‘s 

conclusion that section 2025.510, subdivision (c) must be construed to include a 

reasonableness requirement. Similarly, when the court decided that disputes over 

the reasonableness of a fee should be resolved by the trial court in the pending 

action, it observed that ―[t]o 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), as well as imperil the 

due process rights of the nonnoticing party.‖ (Stefan I, supra, 162 Cal.App.4th at 

p. 1039.)

Thus, it is clear that issues of public interest were directly involved in the 

Stefan I appeal. The court resolved unsettled issues of statutory interpretation 

relating to the administration of justice, the trial courts‘ inherent and statutory 

authority to supervise their ministerial officers, and the statutory and constitutional 

rights of nonnoticing parties to obtain deposition transcripts at a reasonable cost. 
15

Stefan I established the right of all such parties to bring transcript fee disputes to 

the trial courts for resolution. Coast argues, correctly, that merely because an 

appellate opinion is certified for publication does not mean it involves an 

important right affecting the public interest. The fact that litigation results in 

significant appellate precedent is only one factor to be considered in that regard. 

(Joshua S., supra, 42 Cal.4th at p. 958; Los Angeles Police Protective League v. 

City of Los Angeles (1986) 188 Cal.App.3d 1, 12.) Here, however, the Stefan I 

opinion by its terms addressed matters of public importance.

Coast also asserts that to qualify as public interest litigation, a case must 

meet the criteria of section 1021.5 in the trial court as well as on appeal. On this 

point, Coast is wrong. It is well established that an appellate decision may provide 

the basis for a fee award even when the trial court ruling does not.12 (Laurel 

Heights Improvement Assn. v. Regents of University of California (1988) 47 

Cal.3d 376, 427; County of San Diego v. Lamb (1998) 63 Cal.App.4th 845, 852; 

Mounger v. Gates (1987) 193 Cal.App.3d 1248, 1258, fn. 10.) Here, the Court of 

Appeal majority erred by concluding that Stefan I did not resolve an important 

issue affecting the public interest.

 

12 That may be the case here, but we do not reach the question. Our review is 

limited to the scope of the Joshua S. exception, and the correctness of the Court of 

Appeal‘s holding that the appeal in Stefan I did not satisfy the first element of 

section 1021.5. We note, however, that the trial court has discretion to restrict a 

section 1021.5 fee award to an amount reflecting only those efforts by counsel 

involving issues of public importance. (Conservatorship of Whitley, supra, 50 

Cal.4th at p. 1226.)
16

DISPOSITION

Because neither the Court of Appeal nor the trial court considered whether 

plaintiffs satisfied the other elements required for a fee award under section 

1021.5, we reverse and remand with directions to the Court of Appeal to instruct 

the trial court to determine anew whether plaintiffs are entitled to recover private 

attorney general fees. 

CORRIGAN, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.

BAXTER, J.

WERDEGAR, J.

CHIN, J.

LIU, J.
1

DISSENTING OPINION BY KENNARD, J.

California follows the American rule, under which each party to litigation 

must generally pay its own attorney fees. (Code Civ. Proc., § 1021.) California‘s 

private attorney general law (id., § 1021.5), however, sets forth an exception, 

stating that, if certain specified conditions are met, ―a court may award attorneys‘ 

fees . . . in any action which has resulted in the enforcement of an important right 

affecting the public interest.‖

Here, defendant scheduled the deposition of plaintiffs‘ expert witness and 

hired a local deposition reporter to record the deposition and prepare a certified 

transcript on an expedited basis. After the deposition was completed, plaintiffs

requested a certified copy of the transcript, also on an expedited basis. The 

reporter‘s invoice, sent to plaintiffs‘ counsel, included a $261.56 surcharge for 

expediting its service. Plaintiffs challenged the surcharge in the trial court. The 

reporter provided the transcript, agreeing to defer payment of the surcharge until 

after the trial court‘s ruling.

Relying on a published Court of Appeal decision, the trial court ruled that it 

had no authority to regulate the fees charged by deposition reporters. Plaintiffs 

appealed, and the Court of Appeal held in a published decision that trial courts do 

have authority to regulate reporter fees. Plaintiffs then sought $50,000 in attorney 

fees under the private attorney general law, arguing that the litigation against the 

deposition reporter enforced an important right affecting the public interest and 
2

conferred a significant benefit on the general public. In this court, the majority 

upholds the appropriateness of an attorney fees award. I disagree.

I.

An adequate understanding of the issue requires a detailed statement of the 

relevant facts, as summarized below.

The underlying dispute was a personal injury lawsuit that eventually 

settled. In the course of litigating that dispute, defendant hired Coast Court 

Reporters, Inc. to stenographically record the deposition of plaintiffs‘ expert 

witness and to prepare a certified transcript of the deposition on an expedited 

basis. The deposition was held on Monday, June 26, 2006. Two days later, 

plaintiffs’ counsel requested a certified copy of the transcript, also on an expedited 

basis, using an order form that stated: ―Transcripts may be sent C.O.D. [collect on 

delivery].‖ In signing the order form, plaintiffs‘ counsel expressly agreed ―to 

provide payment in full . . . upon request.‖

The completed transcript was ready on Friday, June 30, four days after the 

deposition. The transcript was 141 pages, and the exhibits were 28 pages. Coast 

charged plaintiffs‘ counsel $373.65 for the certified copy of the transcript ($2.65 

per page), $14.00 for the exhibits ($.50 per page), and an ―expedite charge‖ of 

$261.56 (70 percent of the base charge for the transcript). The total amount billed 

was less than half the amount that Coast had charged to defendant for the 

expedited original transcript.

Coast faxed its invoice to plaintiffs‘ counsel on June 30, the Friday before 

the Fourth of July weekend,1 with a notation that Coast would email a copy of the 

 

1 In 2006, the Fourth of July holiday fell on a Tuesday. It is likely that on the 

preceding Monday, many businesses were closed or operating with greatly 

reduced staff, thereby enabling most employees to enjoy a four-day weekend.
3

transcript when it received a faxed copy of the payment check. Within two hours, 

plaintiffs‘ counsel faxed a letter to Coast, objecting to the ―expedited charge‖ and 

saying, ―we [did not] request that the transcript be expedited.‖ Coast responded 

the same day with a faxed letter stating: ―Our normal turnaround on transcripts is 

ten business days. We are happy to put your certified copy order to the head of the 

queue and deliver it on an expedited basis, but there is an additional charge . . . 

associated with this special request. [¶] . . . Please notify me by 5:00 p.m. today 

as to how you would like to proceed.‖ Coast did not receive any response by 5:00 

p.m. and did not email the copy of the transcript. That evening, long after 

business hours, plaintiffs‘ counsel responded with a faxed letter notifying Coast 

that plaintiffs intended to seek the trial court‘s intervention regarding the 

―expedited fees.‖

The Fourth of July weekend followed. At 8:30 a.m. on July 5, 2006, 

plaintiffs applied ex parte to the trial court for an order requiring Coast to provide 

the copy of the transcript ―without charging any expedited fees.‖ In the 

accompanying declaration, plaintiffs‘ counsel admitted that, contrary to the 

statement in the faxed letter, he had asked Coast to expedite preparation of the 

transcript.

At the hearing on July 5, the trial court continued the matter to July 20, to 

allow time for briefing. Coast agreed to provide the transcript (and future 

deposition transcripts) without payment of its fees, pending the trial court‘s 

resolution of the disputed charge. On July 20, the trial court denied plaintiffs‘ 

request to disallow that charge. Citing Urban Pacific Equities Corp. v. Superior 

Court (1997) 59 Cal.App.4th 688 (Urban Pacific), the trial court concluded that it 

had no power to reduce the reporter‘s fee. In Urban Pacific, the Court of Appeal 

said: ―[T]here is no statute regulating the fees charged by private reporting firms, 

and deposition reporters are free to charge all the market will bear.‖ (Id. at 
4

pp. 691-692, italics added.) Relying on that statement, the trial court here ordered 

plaintiffs to pay in full Coast‘s charge. Plaintiffs did so, then appealed.

Expressly disagreeing with the statement quoted above from Urban Pacific, 

supra, 59 Cal.App.4th at pages 691-692, the Court of Appeal in this case 

concluded that the trial court had erred. (Serrano v. Stefan Merli Plastering Co., 

Inc. (2008) 162 Cal.App.4th 1014, 1037-1038 (Stefan Merli I).) Noting that 

deposition reporters are ministerial officers of the court (id. at p. 1035), the Court 

of Appeal held that the trial court, as part of its authority to control the conduct of 

its ministerial officers (Code Civ. Proc., § 128, subd. (a)(5)),2 had authority to 

regulate the charges of a deposition reporter (Stefan Merli I, at pp. 1038-1039).

On remand, the trial court determined that Coast‘s fee to plaintiffs for 

expediting the certified copy of the transcript was unreasonable, and it ordered 

Coast to return to plaintiffs, with interest, the amount paid. The court explained: 

―I‘m not here to regulate an industry. I‘m just concerned with this case and the 

expedited charges. And the Court of Appeal said [Coast is] not entitled to an 

expedited cost.‖ Coast did not appeal the trial court‘s decision, which concerned 

only a small sum.

Having prevailed regarding the $261.56 surcharge, plaintiffs then asked the 

trial court for an award of $50,000 in attorney fees under the private attorney 

general provision set forth in section 1021.5. Plaintiffs argued that their action 

against Coast had conferred a significant benefit on the general public by 

culminating in a published Court of Appeal decision (Stefan Merli I, supra, 162 

Cal.App.4th 1014) establishing the authority of trial courts to regulate deposition 

reporter fees.

 

2 All further statutory references are to the Code of Civil Procedure.
5

In denying plaintiffs‘ request for attorney fees, the trial court relied on this 

court‘s statement in Adoption of Joshua S. (2008) 42 Cal.4th 945, 949 (Joshua S.), 

that ―section 1021.5 does not authorize an award of attorney fees against an 

individual who has done nothing to adversely affect the rights of the public or a 

substantial class of people other than raise an issue in the course of private 

litigation that could establish legal precedent adverse to a portion of the 

public . . . .‖ Plaintiffs appealed, and in a two-to-one decision, the Court of 

Appeal affirmed. Today, a majority of this court reverses that decision.

II.

As noted earlier, under California‘s private attorney general law (§ 1021.5), 

―a court may award attorneys‘ fees . . . in any action which has resulted in the 

enforcement of an important right affecting the public interest,‖ provided certain 

specified conditions are met.3 In holding that plaintiffs here are entitled to such 

attorney fees, the majority distinguishes Joshua S., supra, 42 Cal.4th 945, saying: 

―[O]n appeal Coast strenuously defended its institutional interest in controlling the 

fees charged to a nonnoticing party without judicial oversight. And the trial court 

determined . . . that Coast had indeed violated plaintiffs‘ right to receive a 

transcript for a reasonable charge. Accordingly, . . . we are presented with the 

usual circumstance where private attorney general fees are sought from a party  ̳at 

least partly responsible for the policy or practice that gave rise to the litigation.‘ ‖ 

 

3 Section 1021.5 provides in relevant part: ―Upon motion, 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 . . . 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.‖
6

(Maj. opn., ante, at p. 12, quoting Connerly v. State Personnel Bd. (2006) 37 

Cal.4th 1169, 1181.)

I disagree with the majority‘s holding. This court‘s decision in Joshua S., 

supra, 42 Cal.4th 945, is directly on point.

The underlying issue in Joshua S., supra, 42 Cal.4th 945, was a secondparent adoption by a former domestic partner of the birth parent. (Second-parent 

adoption is a form of adoption in which the birth parent does not give up parental 

rights.) The first stage of the Joshua S. litigation culminated, under a different 

name, in an important decision of this court — Sharon S. v. Superior Court (2003) 

31 Cal.4th 417 — recognizing the validity of a particular category of secondparent adoption, namely, adoption by a person not married to the birth parent.

After the decision in Sharon S. v. Superior Court, supra, 31 Cal.4th 417, 

the adopting parent sought private attorney general fees under section 1021.5. 

This court held that an award of attorney fees was not authorized. It explained 

that, although the statutory requirements of section 1021.5 were otherwise 

satisfied, ―section 1021.5 was not intended to impose fees on an individual seeking 

a judgment that only determines 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, 42 Cal.4th at p. 958.)

Pointing to section 1021.5‘s requirement that the action must have ―resulted 

in the enforcement of an important right affecting the public interest,‖ Joshua S.

concluded that the word ―enforcement‖ implies that the losing party did something 

adverse to the interest of the general public. (Joshua S., supra, 42 Cal.4th at 

pp. 955-956.) In support, the decision looked to the legislative history of section 

1021.5 and observed: ―[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
7

private litigation that happened to establish an important precedent.‖ (Joshua S., 

supra, 42 Cal.4th at p. 956.) Joshua S. held that ―attorney fees should not be 

imposed on . . . an individual who has 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.‖ (Id. at p. 954, italics added.)

Like the birth mother in Joshua S., supra, 42 Cal.4th 945, here Coast did 

nothing ―to compromise the rights of the public or a significant class of people.‖ 

First, because plaintiffs have made no showing that Coast was a large company 

with a significant share of the market for deposition-reporting services, it is 

reasonable to infer that Coast is a small, local business whose charges to its 

customers do not affect the rights of the public or a significant class of people.

Second, Coast was not responsible for the Court of Appeal‘s statement in 

Urban Pacific, supra, 59 Cal.App.4th at pages 691-692, that deposition reporters 

are free to set their fees without trial court intervention. Because that appellate 

decision was the only case law on point at the time, Coast reasonably relied on it 

in the trial court.

Third, even under the Court of Appeal‘s holding in Stefan Merli I, supra, 

162 Cal.App.4th at pages 1037-1038, that a trial court has authority to determine 

the reasonableness of a deposition reporter‘s charges (see p. 4, ante), it is not clear 

that Coast ever charged an unreasonable fee to any of its customers, including 

plaintiffs. The trial court did not exercise any discretion in finding Coast‘s fee to 

be unreasonable. Instead, the court told Coast‘s attorney: ―[T]he Court of Appeal 

said you‘re not entitled to an expedited cost,‖ noting the Court of Appeal‘s 

statement that ―a reasonable fee for a copy of the transcript would not include any 

amount that compensates the deposition reporter for the cost to expedite the 

transcription.‖ (Stefan Merli I, supra, 162 Cal.App.4th at p. 1038, italics added.) 
8

The trial court, however, misquoted that statement, inserting the word ―transcript‖ 

in place of the word ―transcription.‖ The word ―transcription‖ in the 

Stefan Merli I decision (ibid.) referred narrowly to the process of transcribing 

stenographic notations into a fully written-out text, a process that must, by law, be 

charged to the party that noticed the deposition. (See § 2025.510, subd. (b).) But 

Stefan Merli I made clear that other tasks associated with preparing a certified 

copy of a transcript can be charged to the nonnoticing party. (Stefan Merli I, at 

p. 1038.)

If the trial court here had not misread the Court of Appeal‘s opinion, it 

might have found Coast‘s fee to be reasonable.4 Coast produced for plaintiffs the 

certified copy of the transcript in four days instead of the usual 10, and its total 

charge was less than half of what it had charged defendant for the original. 

Plaintiffs made no evidentiary showing that Coast‘s $261.56 surcharge for greatly 

expediting its service was unreasonable, while Coast presented evidence that the 

surcharge was appropriate. Under those circumstances, plaintiffs cannot be 

credited with ―enforcing laws that a . . . private entity was violating.‖ (Joshua S., 

supra, 42 Cal.4th at p. 956.) Instead, this case like Joshua S. falls squarely in the 

category of ―private litigation that happened to establish an important precedent.‖ 

(Ibid.)

As in Joshua S., supra, 42 Cal.4th 945, a private party litigated a private 

right (here, the right of deposition reporters to set fees without judicial oversight, 

as set forth in Urban Pacific, supra, 59 Cal.App.4th at pp. 691-692), and lost on 

 

4 Coast‘s decision not to appeal the trial court‘s decision in a matter 

involving only a few hundred dollars cannot be construed as a concession, for 

purposes of the attorney fees issue, that it acted unreasonably. (See, e.g., Parklane 

Hosiery Co. v. Shore (1979) 439 U.S. 322, 330.)
9

appeal. As in Joshua S., the Court of Appeal decision established a precedent that 

benefitted the general public (here, by ensuring judicial oversight of deposition 

reporter fees). And as in Joshua S., the losing party in the underlying dispute 

(here, Coast) was not responsible for the policy that the Court of Appeal rejected 

(here, the statement in Urban Pacific, supra, 59 Cal.App.4th at p. 692, that 

―deposition reporters are free to charge all the market will bear‖).

The majority asserts that Coast ―strenuously‖ pursued its ―institutional 

interest‖ (maj. opn., ante, at p. 12), relying on language in Joshua S., supra, 42 

Cal.4th at page 957, that there the attorney fees award was not appropriate because 

the losing party in the adoption dispute was a private litigant ―with no institutional 

interest in the litigation.‖ But that comment in Joshua S. does not mean the 

converse, namely, that an award of private attorney general fees is appropriate no 

matter how small or minimal the institutional interest in the litigation. If here 

Coast‘s ongoing business interest in the outcome of the litigation suffices to make 

it liable for attorney fees, then any party with a recurring interest in a matter is 

subject to an attorney fees award whenever that party loses on appeal in a 

published decision.

It is true that, as a deposition reporter, Coast was a ministerial officer of the 

court, with duties owed to the court and the public, in addition to its own private 

interests. (Maj. opn., ante, at pp. 2, 12, 14.) The transcripts that deposition 

reporters prepare are often critical to litigation involving millions (or billions) of 

dollars. That fact potentially gives the deposition reporter an unfair advantage 

when setting fees. The party that notices the deposition can negotiate a fair fee (or 

choose another deposition reporter if the fees demanded are too high), but once the 

noticing party has selected a deposition reporter and the deposition is completed, 

other parties have little choice other than to pay whatever fee that deposition 

reporter charges for copies of the transcript. Thus, some risk exists that a 
10

deposition reporter may inflate its charge for certified copies and discount its 

charge for the original, and in that way attract business. (See Saunders v. Superior 

Court (1994) 27 Cal.App.4th 832, 840-841.) Here, however, Coast‘s charge to 

plaintiffs for the certified copy of the deposition transcript was less than half of its 

charge for the original requested by defendant (see p. 2, ante), and therefore it 

does not appear as a matter of law that Coast charged plaintiffs an unreasonable 

fee for expediting the certified copy.

Moreover, Coast did not otherwise breach its duty as an officer of the court. 

When plaintiffs challenged in the trial court Coast‘s charge for expediting the 

deposition transcript, Coast did not withhold the transcript. Instead, Coast 

provided the expedited transcript to plaintiffs without payment, agreeing to submit 

the dispute over its charge to the trial court. Plaintiffs were only deprived of the 

transcript during the four-day Fourth of July weekend, and then only because on 

the Friday before the weekend, plaintiffs‘ counsel told Coast ―we [did not] request 

that the transcript be expedited,‖ thus implying that Coast‘s normal 10-day 

delivery time would be acceptable. Plaintiffs could have received earlier delivery 

of the transcript had they paid the disputed charge, reserving the right to litigate 

the reasonableness of the charge.

For the reasons set forth above, I would affirm the judgment of the Court of 

Appeal.

KENNARD, J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Serrano v. Stefan Merli Plastering Company, Inc.

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 184 Cal.App.4th 178

Rehearing Granted

__________________________________________________________________________________

Opinion No. S183372

Date Filed: October 31, 2011

__________________________________________________________________________________

Court: Superior

County: Los Angeles

Judge: Aurelio Munoz

__________________________________________________________________________________

Counsel:

Law Offices of David B. Bloom, Stephen Monroe, Edward Idell 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.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Stephen Monroe

Law Offices of David B. Bloom

3699 Wilshire Boulevard, Tenth Floor

Los Angeles, CA 90010

(213) 384-4088

John L. Dodd

John L. Dodd & Associates

17621 Irvine Boulevard, Suite 200

Tustin, CA 92680

(714) 731-5572