Challenge to Court Reporter's Transcript Copy Costs Must Be Raised in the Present Action

The Second District held yesterday that a non-noticing party in a deposition, who does not move for an order in the pending case for a determination of the “reasonable rate” a court reporter may charge, may not bring a subsequent action to obtain restitution or obtain injunctive relief.  The Las Canoas Company, Inc. v. Kramer, No. B238729, __ Cal. App. 4th. __ (2d Dist. May 7, 2013).  The parties in the prior action did not agree on the reasonable rates to be charged for deposition transcript copies, but Las Canoas did not challenge the court reporter’s rate until filing a subsequent class action.

The trial court in the subsequent case sustained a demurrer to the putative class action complaint, holding that it lacked “subject matter jurisdiction” since La Canoas failed to bring a motion in the prior case.

The Second District agreed: 

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.)

Slip Op. at 3.

The court further concluded that “absent extraordinary circumstances, the court in the action in which the dispute arises is the only court to resolve the issue.” Slip Op. at 4 (emphasis supplied).

Collective Bargaining Exception to Immediate Vacation Pay Law Requires Clear and Unmistakable Waiver

The Second District today articulated a "clear and unmistakable" standard for a waiver of the right to immediate payment of vacation time, under the collective bargaining exception to Labor Code section 227.3.  Choate v. Celite Corporation, No. B239160, __ Cal. App. 4th __ (2d Dist. May 2, 2013).  Labor Code section 227.3 requires full payment of vested vacation time upon termination:

Unless otherwise provided by a collective-bargaining agreement, whenever a contract of employment or employer policy provides for paid vacations, and an employee is terminated without having taken off his vested vacation time, all vested vacation shall be paid to him as wages at his final rate in accordance with such contract of employment or employer policy respecting eligibility or time served . . . .

(Emphasis supplied.)

The court rejected an implied waiver standard, instead holding that for the exception to apply, the CBA must clearly and unmistakably waive the right to immediate payment:

We hold that a collective bargaining agreement "otherwise provide[s]" and thereby abrogates an employee's statutory right under section 227.3 to immediate payment for vested vacation time only if the agreement clearly and unmistakably waives that right. 

(Emphasis supplied.)

​You can read more in California Wage & Hour Law.