Burd v. Barkley Court Reporters, Inc.

Filed 11/29/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
TARA R. BURD, B271694
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC556703)
v.
BARKLEY COURT REPORTERS, INC.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County. Amy D. Hogue, Judge. Reversed.
Patterson Law Group, James R. Patterson and Allison H.
Goddard; Carlson Lynch Sweet Kilpela & Carpenter and Todd D.
Carpenter for Plaintiff and Appellant.
Lichtfield Cavo, Marc V. Allaria and Joseph P. Tabrisky;
Dykema Gossett, Jeffrey G. Huron, Phu C. Nguyen, and Jyoti P.
Avila for Defendant and Respondent.
Horvitz & Levy, Lisa Perrochet and Eric S. Boorstin as
Amicus Curiae on behalf of Plaintiff and Appellant.
Richard L. Manford for California Court Reporters
Association, Inc. as Amicus Curiae on behalf of Defendant and
Respondent.
Edward Howard for Deposition Reporters Association of
California as Amicus Curiae.
Plaintiff and appellant Tara R. Burd (plaintiff) appeals
from the judgment entered in favor of defendant and respondent
Barkley Court Reporters, Inc. (defendant) after the trial court
granted defendant’s motion for judgment on the pleadings in this
putative class action for charging excessive court transcription
fees, in violation of Government Code sections 69950 and 69954.1
The trial court concluded that the statutory transcription rates
apply only to official court reporters employed by the superior
court and do not apply to private reporters retained by a party to
serve as official reporters pro tempore in a court proceeding.
We hold that the statutory transcription rates prescribed
by sections 69950 and 69954 apply to any court reporter
producing a transcript of a civil court proceeding, regardless of
whether the reporter is employed by the superior court or
privately retained by a party. We therefore reverse the
judgment.
BACKGROUND
Plaintiff is an attorney with her own law firm. Defendant
is a California corporation that provides certified shorthand
reporting services.
Plaintiff retained defendant to serve as an official court
reporter pro tempore at a June 27, 2013 hearing in the Los
Angeles County Superior Court. Plaintiff requested a transcript
of the hearing and paid defendant approximately $587 for the
hearing transcript. The charges included a $6.10 per page fee for
the transcript, a $250 half-day per diem, $20 for a PDF copy of
the transcript and exhibits, $20 for delivery of the original
transcript, and a $42 fee for transcript production.
Plaintiff filed the instant action against defendant on May
30, 2014 alleging two causes of action: violation of sections 69950
1 All further statutory references are to the Government
Code unless otherwise stated.
2
and 69954, and violation of the California Unfair Competition
law (Bus. & Prof. Code, § 17200 et seq.) predicated on violations
of sections 69950 and 69954. Plaintiff sought, on behalf of herself
and others similarly situated, declaratory relief, damages, fees,
and costs.
Defendant filed a motion for judgment on the pleadings,
arguing that the statutory transcription rates set forth in
sections 69950 and 69954 apply only to official reporters
employed by the courts, and not to privately retained certified
shorthand reporters who serve as official reporters pro tempore.
Following a January 8, 2016 hearing at which the parties
presented their arguments, the trial court granted defendant’s
motion as to all causes of action. Judgment was subsequently
entered in defendant’s favor, and this appeal followed.
DISCUSSION
I. Standard of review
“The standard of review for a motion for judgment on the
pleadings is the same as that for a general demurrer: We treat
the pleadings as admitting all of the material facts properly
pleaded, but not any contentions, deductions or conclusions of
fact or law contained therein. . . . We review the complaint de
novo to determine whether it alleges facts sufficient to state a
cause of action under any theory. [Citation.]” (Dunn v. County of
Santa Barbara (2006) 135 Cal.App.4th 1281, 1298.)
II. Statutory framework
The Government Code identifies two categories of persons
who may perform the duties of a court reporter in the superior
court: official reporters and official reporters pro tempore.
(§ 69941.) Section 69941 provides: “A superior court may
appoint as many competent phonographic reporters, to be known
as official reporters of such court, and such official reporters pro
tempore, as are deemed necessary for the performance of the
3
duties and the exercise of the powers conferred by law upon the
court and its members.”
An official reporter is an employee of the superior court.
(§ 69956 [describing duties and setting compensation of official
reporters]; Los Angeles v. Vaughn (1961) 55 Cal.2d 198, 200
[official reporter acts as officer and employee of superior court
when preparing reporter’s transcript of civil trial for persons
entitled to request such transcripts].) An official reporter pro
tempore may be either a court employee or a certified shorthand
reporter privately retained by a party if an official reporter is not
available. (See Cal. Law Revision Com. com. 2002 Amend., 36G
West’s Ann. Gov. Code (2009) foll. § 69941, p. 332 [indicating that
official reporters pro tempore appointed pursuant to section
69941 may or may not be employees of the court]; Cramer v.
Superior Court (2005) 130 Cal.App.4th 42 [lawsuit brought by
official court reporters and court reporters pro tempore employed
by the Los Angeles Superior Court]; § 68086, subd. (d)(2); Cal.
Rules of Court, rule 2.956(c) (rule 2.956(c)).)2
Persons serving as official reporters or as official reporters
pro tempore must do so under appointment by the superior
2 Section 68086, subdivision (d)(2) requires the Judicial
Council to adopt rules to ensure “[t]hat if an official court
reporter is not available, a party may arrange for the presence of
a certified shorthand reporter to serve as an official pro tempore
reporter.”
Pursuant to section 68086, the Judicial Council adopted
rule 2.956(c), which states: “If the services of an official court
reporter are not available for a hearing or trial in a civil case, a
party may arrange for the presence of a certified shorthand
reporter to serve as an official pro tempore reporter. It is that
party’s responsibility to pay the reporter’s fee for attendance at
the proceedings, but the expense may be recoverable as part of
the costs, as provided by law.”
4
court.3 (§ 69941; see Los Angeles Superior Court Policy
Regarding Normal Availability of Official Reporters and Privately
Arranged Court Reporters.)4 The statutes authorizing the
superior court to appoint official reporters and official reporters
pro tempore are set forth in the Government Code under title 8,
chapter 5, article 9 (article 9).
Article 9 also prescribes the fees court reporters may
receive for their services. Section 69947 provides: “Except in
counties where a statute provides otherwise, the official reporter
shall receive for his services the fees prescribed in this article.”
Fees for court reporter transcription services in civil cases are set
forth in sections 69950 and 69954. Section 69950 sets the fees for
paper transcripts. It provides:
“(a) The fee for transcription of original ribbon or
printed copy is eighty-five cents ($0.85) for each 100
words, and for each copy purchased at the same time
by the court, party, or other person purchasing the
original, fifteen cents ($0.15) for each 100 words.
“(b) The fee for a first copy to any court, party, or
other person who does not simultaneously purchase
the original shall be twenty cents ($0.20) for each 100
words, and for each additional copy, purchased at the
same time, fifteen cents ($0.15) for each 100 words.”
3 Courts have been statutorily authorized to appoint official
reporters pro tempore since 1953 (Stats. 1953, ch. 206, § 1), but
pro tempore reporters have served in California courts since at
least the early 1930s. (See Noland v. Payne (1933) 133 Cal.App.
479; Rappaport v. Payne (1934) 139 Cal.App. 772.)
4 On the court’s own motion, we take judicial notice of the
May 1, 2012 Los Angeles Superior Court Policy Regarding
Normal Availability of Official Reporters and Privately Arranged
Court Reporters.
5
Section 69954, which sets the fees for transcripts prepared with
computer assistance, provides:
“(a) Transcripts prepared by a reporter using
computer assistance and delivered on a medium
other than paper shall be compensated at the same
rate set for paper transcripts, except the reporter
may also charge an additional fee not to exceed the
cost of the medium or any copies thereof.
“(b) The fee for a second copy of a transcript on
appeal in computer-readable format ordered by or on
behalf of a requesting party within 120 days of the
filing or delivery of the original transcript shall be
compensated at one-third the rate set forth for a
second copy of a transcript as provided in Section
69950. A reporter may also charge an additional fee
not to exceed the cost of the medium or any copies
thereof.
“(c) The fee for a computer-readable transcript shall
be paid by the requesting court, party or person,
unless the computer-readable transcript is requested
by a party in lieu of a paper transcript required to be
delivered to that party by the rules of court. In that
event, the fee shall be chargeable as statute or rule
provides for the paper transcript.
“(d) Any court, party, or person who has purchased a
transcript may, without paying a further fee to the
reporter, reproduce a copy or portion thereof as an
exhibit pursuant to court order or rule, or for internal
use, but shall not otherwise provide or sell a copy or
copies to any other party or person.”
III. Applicable legal principles
At issue in this case is the construction of sections 69950
and 69954, which we review de novo. (Ceja v. Rudolph & Sletten,
6
Inc. (2013) 56 Cal.4th 1113, 1119.) When construing a statute,
our analysis begins by ascertaining the underlying legislative
intent. (Hassan v. Mercy American River Hospital (2003) 31
Cal.4th 709, 715.) To do so, we first examine the language of the
statute as the best indication of legislative intent. (Brinker
Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1026.)
Those words are given their ordinary and usual meaning and are
construed in their statutory context. (Hassan, at p. 715.)
Judicial construction that renders any part of the statute
meaningless or inoperative should be avoided. (Ibid.)
If the language of the statute is clear, it is applied without
further inquiry. (Aleman v. AirTouch Cellular (2012) 209
Cal.App.4th 556, 568.) If the language can be interpreted to have
more than one reasonable meaning, a court may consider “‘a
variety of extrinsic aids, including the ostensible objects to be
achieved, the evils to be remedied, the legislative history, public
policy, contemporaneous administrative construction, and the
statutory scheme of which the statute is a part.’ [Citation.]” (Id.
at pp. 568-569.)
IV. Sections 69950 and 69954 apply to court reporters
generally, whether employed by the court or privately
retained by a party
A. The plain language of the statutes
Neither section 69950 nor section 69954 distinguishes
between court reporters employed by the superior court and
privately retained court reporters. Section 69950 does not use
the terms “reporter,” “official reporter,” or “official reporter pro
tempore.” The statute prescribes the fee for transcription of an
original and subsequent copies of a transcript without reference
as to what sort of court reporter -- official, pro tempore, court
employed, or privately retained -- performs the transcription.
(§ 69950.) Section 69954 refers only to a “reporter” generally,
7
and does not use the terms “official reporter” or “official reporter
pro tempore.” (§ 69954, subds. (a), (b), (d).) The plain language
of the statutes indicates that the prescribed transcription fees are
intended to apply to court reporters generally, and are not
limited to court reporters employed by the superior court.
B. The statutory scheme
The trial court did not apply the plain language of sections
69950 and 69954, but instead considered the statutes in the
context of article 9 as a whole. While acknowledging that “the
language of Article 9 is not perfectly consistent with an intention
not to regulate rates for all reporters who transcribe courtroom
proceedings,” the trial court nevertheless concluded that the
statutory scheme prescribed fee limits that apply only to court
reporters employed by the courts or by local governments.
1. Statutes distinguishing between “official
reporters” and “official reporters pro tempore”
The trial court noted that within article 9, which governs
“Official Reporters Generally,” six different sections distinguish
between official reporters and official reporters pro tempore:
Section 69941: “A superior court may appoint
as many competent phonographic reporters, to be
known as official reporters of such court, and such
official reporters pro tempore, as are deemed
necessary . . . .”
Section 69944: “Until an official reporter of
any court or official reporter pro tempore has
fully completed and filed all transcriptions of the
reporter’s notes in any case on appeal which the
reporter is required by law to transcribe, the reporter
is not competent to act as official reporter in any
court.”
Section 69946: “Before entering upon the
duties of his office, the official reporter of any court
8
or official reporter pro tempore shall take and
subscribe the constitutional oath of office.”
Section 69952, subdivision (b): “When there is
no official reporter in attendance and a reporter
pro tempore is appointed, his or her reasonable
expenses for traveling and detention shall be fixed
and allowed by the court and paid in like manner.”
Section 69955, subdivision (a): “As used in this
section, ‘reporting notes’ are the reporting notes of all
court reporters employed to report in the courts of
California, who may be known as official reporters
and official reporters pro tempore.”
Section 69957: “If an official reporter or an
official reporter pro tempore is unavailable . . .
the court may order that . . . the action or proceeding
be electronically recorded. . . .”
The trial court concluded that the legislature
intentionally used the term “official reporter pro tempore”
in these statutes to distinguish between privately employed
reporters appointed pro tempore and official reporters
employed by the court.
The trial court then noted that although sections 69950 and
69954 make no reference to official reporters and official
reporters pro tempore, the scope of those statutes is delimited by
section 69947, which states: “Except in counties where a statute
provides otherwise, the official reporter shall receive for his
services the fees prescribed in this article.” (Italics added.) The
fact that section 69947 refers only to the “official reporter” is
evidence, the trial court concluded, that the Legislature did not
intend the fee provisions of article 9 to apply to private reporters
acting as official reporters pro tempore.
9
The trial court’s construction of sections 69947, 69950, and
69954 is premised on the assumption that only official reporters
are employees of the courts and that all official reporters pro
tempore are privately retained by the parties. That assumption
is incorrect.
As discussed, both official reporters and official reporters
pro tempore may be employees of the superior court. (See, e.g.,
§ 70059.7 [setting rates of compensation for regular official
reporters and official reporters pro tempore for court proceedings
in Santa Barbara County]; Cramer v. Superior Court, supra, 130
Cal.App.4th 42.) The statutory scheme recognizes that official
court reporters pro tempore may be employed by the courts (see
§ 70059.7), or they may be privately retained by a party.
(§ 68086, subd. (d)(2); rule 2.956(c).)
The statutes in article 9 that refer to official reporters pro
tempore do not distinguish between court reporters employed by
the courts and those who are privately retained. (See §§ 69941,
69946, 69952, subd. (b), 69955, subd. (c), 69957.) The trial court’s
reliance section 69947’s reference to “the official reporter” as the
basis for concluding that sections 69950 and 69954 apply only to
court reporters employed by the superior court was therefore
incorrect.
2. Section 68086 and rule 2.9565
Amicus California Court Reporters Association, Inc.
(CCRA) acknowledges the trial court’s error and concedes that
official reporters pro tempore employed by the courts are subject
to the statutory transcription fees prescribed by sections 69950
and 69954. CCRA contends, however, that privately retained
5 We do not address the parties’ arguments concerning
California Rules of Court, rule 8.130(f), which governs reporter’s
transcripts on appeal, as interpretation and application of that
rule is not at issue in this case.
10
reporters who act as official reporters pro tempore are not
covered by sections 69950 and 69954. The arguments CCRA
advances in support of this position are unpersuasive.
CCRA argues that because section 68086, the statute
authorizing privately retained official pro tempore reporters, was
not enacted until 1992, the legislature could not have intended
privately retained reporters to be subject to fee limitations in
sections 69950 and 69954, which were enacted in 1953. To the
contrary, the legislature is deemed to be aware of laws in effect at
the time they enact new laws and are conclusively presumed to
have enacted the new laws in light of existing laws having direct
bearing upon them. (Viking Pools, Inc. v. Maloney (1989) 48
Cal.3d 602, 609; McLaughlin v. State Bd. of Education (1999) 75
Cal.App.4th 196, 212.)
CCRA contends the statutory scheme distinguishes
between court-employed and privately retained official reporters
pro tempore and supports an exemption for privately retained
reporters from the statutory transcription rates. CCRA points
out that section 68086 and rule 2.956 provide an exemption from
statutory court reporter attendance fees for parties who retain a
private reporter to serve as an official reporter pro tempore.
Neither section 68086 nor rule 2.956 exempts private reporters
from the statutory transcription fees.6 Moreover, the legislature
provided in section 68086 an express exemption from statutory
court reporter attendance fees for parties who retain a private
reporter to serve as an official reporter pro tempore, but provided
no similar exemption from statutory transcription fees for private
6 Rule 2.956(c) refers to a “reporter’s fee for attendance at
the proceedings,” as prescribed by section 68086, subdivision (a),
which is separate and distinct from the transcription fees
prescribed by sections 69950 and 69954.
11
reporters serving as official reporters pro tempore. The absence
of such an express exemption evinces an intent by the legislature
to apply statutory transcription rates to official reporters pro
tempore generally, whether employed by the court or privately
retained by a party. (See Wildlife Alive v. Chickering (1976) 18
Cal.3d 190, 195 [under rules of statutory construction, where
exception to a general rule is specified by statute, other
exceptions cannot be implied or presumed].)
CCRA next argues that court employed official reporters
pro tempore are distinguishable from private reporters retained
by a party to serve as official pro tempore reporters pursuant to
section 68086, subdivision (d)(2). A court employed reporter,
CCRA maintains, is appointed by the superior court pursuant to
section 69941, whereas a privately retained reporter “is not
appointed as anything.” CCRA’s position is incorrect. The Law
Revision Commission comments following the 2002 amendment
to section 69941 make clear that official reporters pro tempore
appointed pursuant to section 69941 include both court
employees and persons not employed by the court. (Cal. Law
Revision Com. com. 2002 Amend., 36G West’s Ann. Gov. Code,
supra, foll. § 69941, p. 332.) In the Los Angeles County Superior
Court, a private reporter retained by a party to serve as an
official reporter pro tempore pursuant to section 68086 and rule
2.956 must be appointed by a judicial officer in order to do so.
(Los Angeles Superior Court Policy Regarding Normal
Availability of Official Court Reporters and Privately Arranged
Court Reporters.)
3. Statutes setting court reporter fees in
specified counties
The trial court concluded that its interpretation of sections
69950 and 69954 was supported by other provisions of the
Government Code (specifically, tit. 8, ch. 5, art. 10-12) that apply
12
article 9 fee provisions to court reporters in specified counties.
The trial court reasoned: “These provisions underscore the
Legislature’s intent to ensure that rates charged within each
County were uniform. The need to establish uniform rates
charged in each courtroom and to prevent salaried court
reporters within the same courthouse or the same County from
competing with one another by charging different rates explains
the Legislature’s decision to regulate rates charged by official
court reporters. The same concerns are not present with respect
to non-salaried official reporters pro tempore.”
The statutory provisions referred to by the trial court
contradict rather than support its interpretation. The statutes
governing court reporter fees in Merced County (§ 70045.4, subd.
(c)), Nevada County (§ 70045.75, subd. (c)), El Dorado County
(§70045.77, subd. (c)), Butte County (§ 70045.8, subd. (d)),
Tehama County (§ 70045.10, subd. (c)), and Madera County
(§ 70045.12, subd. (d)), all provide that official reporters pro
tempore “shall be paid in accordance with the per diem,
transcription, and other fee provisions of Article 9 (commencing
with section 69941) of this chapter.” Applying statutory rates to
pro tempore reporters is consistent with the goal of establishing
uniform rates within a given county and across county lines.
That goal is more effectively achieved by applying the statutory
rates to pro tempore reporters who receive only temporary
appointments to serve as court reporters in civil proceedings and
who are more likely to move from courthouse to courthouse
within a given county or across county lines.
C. Court Reporters Board of California
interpretation
The trial court’s interpretation of sections 69950 and 69954
conflicts with that of Court Reporters Board of California, the
agency statutorily authorized to license and discipline court
13
reporters in California. (Bus. & Prof. Code, § 8008, subd. (b);
Gov. Code, § 69942.) Since at least 1999, the Board has
interpreted sections 69950 and 699554 to apply to both official
reporters and official reporters pro tempore. The Board
confirmed this interpretation in a letter to court reporters dated
May 14, 2012, stating: “The fees set by statute that a licensee
may charge for acting as official or official pro tempore reporters
have not changed since the issuance of the Board’s interpretation
in its letter dated December 7, 1999.” The Board reaffirmed its
interpretation in letters dated August 26, 2015, and November
25, 2015.
In a spring 2012 newsletter, the Board advised court
reporters that “there is no statutory exception for freelancers
going in to court. If there is a privately-hired court reporter
producing an official record, that reporter is considered a pro
tempore and is the official court reporter of record for that
proceeding, and statutory transcript rates would apply.”7 The
Board recognized that while statutory transcription fees apply to
both court-employed and privately retained court reporters,
privately retained reporters are not subject to limitations on
appearance or per diem fees: “The amount that a privately-hired
court reporter may charge for an appearance fee to work in court
is not set in statute, unlike the transcript rates which apply to
every court proceeding.”
The Board’s interpretation, while not binding on this court,
warrants consideration and some deference. (Yamaha Corp. of
America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 7-8.)
7 Amici CCRA and Deposition Reporters Association of
California have deferred to the Board’s interpretation of sections
69950 and 69954 and have advised their members that they are
subject to statutory transcription rates when working as an
official reporter pro tempore.
14
The Board’s longstanding interpretation is consistent with the
plain language of sections 69950 and 69954, which does not
distinguish between privately retained and court-employed
official court reporters pro tempore.
D. Public policy concerns
The parties and amici advance various arguments as to
whether imposition of statutory transcription fees on privately
retained reporters serving as official reporters pro tempore
promotes or undermines public policy. We address only two of
these arguments -- (1) whether imposing statutory transcription
rates on privately retained reporters pro tempore interferes with
the constitutional right to freedom of contract, and (2) whether
imposing statutory transcription rates on private reporters will
result in a shortage of official reporters pro tempore.
1. Freedom of contract
Sections 69950 and 69954 regulate only transcription fees
for proceedings in the superior court. The statutes do not prevent
a private reporter from charging contract rates for court
appearances and costs incurred while serving as an official
reporter pro tempore or for producing deposition transcripts.
Defendant and its amici acknowledge that freedom of
contract is not absolute and unqualified, but is subject to a
variety of restraints, including the exercise of legislative
authority. (In re Application of Alexander (1933) 128 Cal.App.
651, 654.) Unless it is shown that the restraints imposed by the
statutes at issue are unreasonable or unjustifiable, we must
presume that the legislature determined them to be necessary for
the general welfare of the people. (See Lockheed Aircraft Corp. v.
Superior Court (1946) 28 Cal.2d 481, 486.)
Privately retained reporters who serve as official reporters
pro tempore do so under appointment by the superior court.
(§§ 69941, 70044.) By accepting that appointment, persons
15
serving as official reporters pro tempore become ministerial
officers of the court and are subject to the jurisdiction of the court
during the period of their appointment to the same extent as an
official reporter. (See Serrano v. Stefan Merli Plastering Co., Inc.
(2008) 162 Cal.App.4th 1014, 1038-1039 [noting that deposition
reporters are ministerial officers of the court]; see also Los
Angeles Superior Court “Order Appointing Court Approved
Reporter as Official Reporter Pro Tempore,” LACIV 237 (Rev.
01/16), in which the reporter “confirms and agrees . . . to follow
directions from the Court, and to be subject to the jurisdiction of
the Court to the same extent as an official reporter”.)
2. Resulting shortage of official reporters pro
tempore
Defendant and its amici contend that application of
sections 69950 and 69954 to private reporters will disincentivize
private reporters from serving as official reporters pro tempore,
resulting in a dearth of reporters willing to do so and adversely
impacting the administration of justice. The plain language of
sections 69950 and 69954 apply the statutory transcription rates
to reporters serving as official reporters or as official reporters
pro tempore in the superior courts, regardless of whether they
are employed by the court or privately retained by a party. If
application of the statutes results in unintended adverse
consequences, it is for the legislature, and not the courts to
remedy the problem. (Smith v. Workers’ Comp. Appeals Bd.
(2002) 96 Cal.App.4th 117, 134 [it is the legislature’s exclusive
prerogative to remedy deficiencies in the existing statutory
scheme].)
CONCLUSION
The plain language of sections 69950 and 69954 apply
statutory transcription rates to official reporters and official
reporters pro tempore, when producing transcripts of court
16
proceedings, whether employed by the court or privately retained
by a party. The trial court accordingly erred by concluding that
the statutory rates apply only to official reporters employed by
the court.
DISPOSITION
The judgment is reversed. Plaintiff is awarded her costs on
appeal.
CERTIFIED FOR PUBLICATION
____________________________, J.
CHAVEZ
We concur:
__________________________, Acting P. J.
ASHMANN-GERST
__________________________, J.
HOFFSTADT
17