January 2010 • Vol. 30 No. 1 | An E-Publication of the Los Angeles County Bar Association

Trustees Support Petition for Review: Must Court Clerk Refund Excess Deposit When Transcript Fee Amounts are Disputed?

The Board of Trustees voted unanimously to ratify a consent item granting approval by the LACBA Executive Committee to file an amicus brief in support of petition for review in Gomez v. City of San Diego, as recommended unanimously by LACBA’s Amicus Briefs Committee.*

Excerpts from a memo by Richard A. Rothschild, committee chair, summarize the issues involved:

When a court clerk holds funds deposited by an appellate litigant as projected reporter’s transcript fees, must the clerk refund any amount above the statutory rate the reporter is allowed to charge? Or may the clerk tell the litigant to take it up with the reporter? LACBA is asked to side with the litigant, the City of San Diego, and support its petition for review.

The issue is governed by a single statute and one California Rule of Court, Rule 8.130. The statute, Government Code Section 69950, sets a statutory rate reporters may charge, which is based on word count. Because nobody knows how long the transcript is when it’s ordered, Rule 8.130(b) requires the appellant to deposit with the superior court clerk the approximate cost of the transcript, usually based on a $650 per day formula. When the transcript is completed, Rule 8.130(f) requires the reporter to bill each designating party “at the statutory rate” and send a copy of the bill to the clerk. “The clerk must pay the reporter from that party’s deposited funds and refund any excess deposit....” Id.

In this case, the city, as appellant, deposited $11,535 and contends that the transcript based on word count should have cost only $3,521, which meant the city was owed a refund of more than $8,000. Instead, the reporters charged more than $10,000, and the city’s refund was a little more than $1,000. The city asked the clerk to refund the difference, only to be told that the clerk’s office would not interfere in a fee dispute between a litigant and a reporter.

The city filed an unopposed motion with the court of appeal, contending that the clerk, by accepting the deposit, has duties similar to that of an escrow officer and was required to refund the correctly calculated amount. The court of appeal summarily denied the motion, and the city then filed a petition for review. The city contends that though the amounts involved in this and other cases are small, this is a recurring problem statewide that needs to be resolved.

LACBA’s Appellate Courts Committee was polled by e-mail, and those responding unanimously supported the petition: Because of the small amounts involved, it will never be worth it for a party to litigate this issue except when, as here, an attorney agrees to represent a party without charge and LACBA lends its authoritative support, especially regarding the access to the courts issue for low-income litigants.

* The Executive Committee approved the recommendation in lieu of the Board of Trustees per LACBA’s bylaws due to short timing issues. 

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