BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
AB 2372 (Hill)
As Amended June 11, 2012
Hearing Date: June 19, 2012
Fiscal: No
Urgency: No
RD
SUBJECT
Deposition Transcripts: Costs
DESCRIPTION
Existing law requires, among other things, that the requesting
attorney or party appearing in propria persona ("in one's own
person" or acting as his or her own attorney) timely pay the
deposition officer or the entity providing the services of the
deposition officer for the transcription or copy of the
transcription, as described, and any other deposition products
or services that are requested either orally or in writing,
except as provided.
This bill would require that the requesting attorney or party
appearing in propria persona, upon the written request of a
deposition officer who has obtained a final judgment for payment
of services, provide to the deposition officer an address that
can be used to effectuate personal service for the purpose of an
order of examination, as specified.
BACKGROUND
California Code of Civil Procedure Section 2025.510(b) requires
the party noticing the deposition to bear the cost of the
transcription, unless the court, on motion and for good cause,
orders that the cost be borne or shared by another party. In
2007, AB 1211 (Price, Ch. 115, Stats. 2007), among other things,
enacted the additional requirement that a requesting attorney,
or a party representing himself or herself, has the obligation
to timely pay for the deposition product or service, as defined,
unless responsibility for the payment is otherwise provided by
(more)
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law, or the deposition officer or entity is notified in writing
that another party or identified person will be responsible for
the payment.
AB 1211 sought to address the fact that deposition reporting
professionals, mostly non-lawyers, independent contractors, and
small businesses, had little recourse under existing law when an
attorney or client failed to pay them in a timely manner. While
in some cases they could look to the State Bar and file a
complaint against a non-paying attorney, for a charge to be
brought had to have proof that the attorney intentionally
decided not to pay for the services. Therefore, the most common
remedies were traditional debt collection services and small
claims court, both of which require additional expense. A study
reportedly indicated that deposition reporting professionals
receive payment for their services as much as 90 days, and in
some cases, as much as two years after providing the service-not
including deposition service fees that are never paid.
Therefore, instead of forcing deposition professionals into the
cumbersome process of collections and small claims court, AB
1211 sought to clearly state that a requesting attorney, or a
person representing him or herself, is responsible for timely
payment of deposition product or service costs. (See Sen.
Judiciary Com., analysis of AB 1211 (2007-2008 Reg. Session)
April 18, 2007, p. 2.)
This bill, sponsored by the Deposition Reporter Association of
California, seeks to further assist deposition professionals who
still face difficulty in receiving payment of deposition product
or service costs, even after obtaining a judgment against the
attorney to pay for the services rendered. This bill would
require that requesting attorney or party appearing in propria
persona, upon the written request of a deposition officer who
has obtained a final judgment for payment of services, provide
to the deposition officer an address that can be used to
effectuate personal service for the purpose of an order of
examination, as specified.
CHANGES TO EXISTING LAW
Existing law provides a comprehensive procedure for the
noticing, conducting and transcribing, or recording of oral
depositions. (Code Civ. Proc. Sec. 2025 et seq.)
Existing law requires the party noticing the deposition to bear
the cost of the
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transcription, unless the court, on motion and for good cause,
orders that the cost be borne or shared by another party. (Code
Civ. Proc. Sec. 2025.510(b).)
Existing law requires the requesting attorney or party appearing
in propria persona to timely pay the deposition officer or the
entity providing the services of the deposition officer for the
transcription or copy of the transcription, as specified, and
any other deposition product or service, as defined, that is
requested either orally or in writing. Existing law creates an
exception for when the deposition officer or entity is notified
in writing at the time the services or products are requested,
the party or other identified person will be responsible for
payment, and further specifies that it does not prohibit or
supersede an agreement between an attorney and a party
allocating responsibility for the payment of deposition costs to
the party. (Code Civ. Proc. Sec. 2025.510(h).)
Existing law provides, among other things, that a summons may be
served by personal delivery of a copy of the summons and of the
complaint to the person to be served. Existing law provides
that service of a summons in this manner is deemed complete at
the time of such delivery. (Code Civ. Proc. Sec. 415.10.)
Existing law provides that a judgment creditor may apply to the
proper court for an order requiring the judgment debtor to
appear before the court, or before a referee appointed by the
court, at a time and place specified in the order, to furnish
information to aid in enforcement of the money judgment. (Code
Civ. Proc. Sec. 708.110(a).)
Existing law requires that the judgment creditor personally
serve a copy of the order on the judgment debtor not less than
10 days before the date set for the examination, in the manner
specified in Section 415.10. Existing law provides that service
of the order creates a lien on the personal property of the
judgment debtor for a period of one year from the date of the
order unless extended or sooner terminated by the court. (Code
Civ. Proc. Sec. 708.110(c)-(d).)
This bill would require that requesting attorney or party
appearing in propria persona, upon the written request of a
deposition officer who has obtained a final judgment for payment
of services, as specified, provide to the deposition officer an
address that can be used to effectuate personal service in the
manner specified under law.
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COMMENT
1. Stated need for the bill
According to the author:
AB 2372 will assist deposition officers in collecting money
owed to them by attorneys who have attempted to evade
collection. It requires an attorney, upon request, to provide
a deposition officer who has obtained a final judgment for
payment of services with an address that can be used to
effectuate legal service of process of collection-related
documents.
The sponsor, the Deposition Reporter Association of California
(DRA), writes that "AB 2372 (Hill) seeks to ensure that those
very few attorneys adjudged to be liable under (existing law)
who then refuse to pay the final and legal judgment cannot
escape a deposition officer's efforts to collect on a final
judgment by evading service of collection related legal
documents." The DRA adds that:
. . . court reporters cannot be analogized to run-of-the-mill
vendors used by attorneys. This was confirmed just last year.
In Serrano v. Stefan Merli Plastering Co. (2011) 52 Cal.4th
1018, 1021, the ÝCalifornia] Supreme Court held that court
reporters who take depositions are "ministerial officers of
the court," meaning officers charged with the
non-discretionary, inherently judicial duties. They are
extensions of the judge conducting a legal proceeding. . . .
When lawyers book depositions with reporters, they almost
never use a P.O. box or mail drop for their address. . . . ÝA]
reporter would be very unlikely to do business with a lawyer
that did provide such an address at the outset Ýas it would be
a warning sign about payment of services and would pose
difficulty for ensuring receipt of delivered transcripts].
Infrequently, but frequently enough to be a stubborn problem,
a lawyer with a solid address at the time deposition services
are ordered will, while the invoice is pending, or during
informal efforts to collect (letters and calls), close
offices, move, and instead use a mail drop or P.O. box.
Because the ÝState] Bar permits attorneys to disclose only a
P.O. box or other mail drop as their address on its website,
and because certain collection-related legal documents cannot
be effectuated through the mail, licensed reporters who have a
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valid and final court judgment against an attorney pursuant to
the law . . . are often frustrated in effectuating the
judgment . . . . Using expensive process servers, deposition
reporters too often must expend considerable sums chasing down
these few attorneys adept at avoiding service to collect on
small claims judgments (under $7,500). . . .
ÝA]s officers of the court themselves, attorneys have unique
responsibilities when it comes to obeying the law and being
accountable to other officers of the court. The law therefore
ought not make it easy for lawyers - those schooled in the law
- to evade legal service of process.
2. The effectiveness of a written request for a physical
address
This bill seeks to address the problem of attorneys who continue
to evade payment of services rendered to them by court
reporters, even after judgment is entered against them by a
court, requiring them to pay. Specifically, the bill would
require an attorney or party, whom existing law otherwise
obligates to pay for specified court reporter services and
against whom a judgment is rendered for such services, to
provide the court reporter with a physical address by which
personal service may be effectuated for the purpose of serving
an order for examination, as specified, upon the court
reporter's request. Essentially, a party who has won a money
judgment may seek an order from a court to require the judgment
debtor to appear before the court, or before a referee appointed
by the court, at a time and place specified in the order, to
furnish information to aid in enforcement of the money judgment.
That same law, however, requires personal service of the order
upon the judgment debtor. (Code Civ. Proc. Sec. 708.110.)
As outlined in Comment 1 above, the current problem is not
necessarily one of an underlying dispute as to the proper person
who is obligated to pay the bill. AB 1211 (Price, Ch. 115,
Stats. 2007) addressed that specific problem by providing that
payment for these services, as defined, is owed by the attorney
or the party representing himself or herself, absent some other
agreement. Instead, what appears to happen (however
infrequently) today, is that a court reporter renders services
to a requesting attorney or party representing him or herself,
bills that attorney or party for those services rendered, does
not receive payment but is able to obtain a judgment after
proper service on the attorney or party, and then finds that the
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attorney or party has abandoned his or her physical address
without fulfilling the judgment he or she owes to the court
reporter and leaving only a P.O. box or other mail drop on
record. Because service is required to be served pursuant to
Section 415.10 of the Code of Civil Procedure (requiring
personal service) for an order of examination, the court
reporter then faces having to track down the judgment debtor
attorney or party, if even possible, to enforce his or her order
and get paid.
Therefore, in contrast to the problem faced before 2007, the
issue is not so much one of who owes the payment of these
services. Instead, the fact that payment for court reporter
services even requires a judgment to be obtained by the court
reporter suggests that the attorney or party may be facing
financial problems on a greater scale and, therefore, obtaining
fulfillment of that judgment may require collection efforts
post-judgment as well. Additionally, the fact that the attorney
or party changes his or her address post-judgment and provides
only a P.O. box or other mail drop as their address of public
record arguably suggests several things, including: (1) the
attorney or party was either forced to abandon the prior
physical address for severe financial difficulties; or (2) the
attorney or party is blatantly evading payment of his or her
bill(s).
While there is some reason to doubt that a bad-acting attorney
or party would willingly provide an address upon receiving the
written request if they are attempting to evade payment, or that
they would even receive the written request if they are using
the P.O. box or mail drop to avoid service of collection-related
legal documents, this bill attempts to provide a reasonable and
less-costly route by which the court reporter can attempt to
resolve the matter and would arguably also provide an attorney
or party the benefit of the doubt, providing them one more
opportunity to comply with the law and the judgment rendered
against them. Again, it is feasible that the attorney or party
has replaced his or her physical address with a P.O. box or mail
drop, temporarily, due to having to relocate as a result of
financial difficulties, but would, upon receiving the written
request, provide an address by which they can be personally
served to receive the order of examination (though they arguably
would have attempted to work something out in terms of payments,
once they had the judgment rendered against them, if that were
the case). Thus, if an attorney does not provide that
information after receiving the request, it may help a court
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reporter to demonstrate to the State Bar that this is an
attorney indeed acting in bad faith and purposefully disobeying
the laws in which attorneys are required to uphold under their
oath, not to mention a specific court order, and thereby assist
the Bar in effectuating disciplinary action where appropriate.
As a matter of public policy, even where there may be some doubt
as to the effectiveness of a written request, it is beneficial
to all parties involved to allow another reasonable mechanism
and opportunity by which a court reporter in this situation can
attempt to resolve the matter. The written request would
arguably also help differentiate between those two types of
judgment debtors-bad actors and good actors-as the latter would
likely comply with the request and the former would not.
Instead of leaving the responsibility merely on the court
reporter to track that attorney or party down so they can
properly effectuate his or her judgment, this bill appropriately
places the onus on the judgment debtor attorney or party to
provide the address for personal service when the court reporter
has asked for it. Notably, the bill does not require the court
reporter to follow this process to proceed with collection
efforts, but merely makes it available to them.
Support : None Known
Opposition : None Known
HISTORY
Source : Deposition Reporter Association of California
Related Pending Legislation : None Known
Prior Legislation : AB 1211 (Price, Ch. 115, Stats. 2007) See
Background.
Prior Vote :
Assembly Floor (Ayes 73, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
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