Depo Fees and the Unsigned Transcript

Sunday, August 29, 2004 | 0

Depo Fees and the Unsigned Transcript
by "Jake" Jacobsmeyer

As many of you are aware, I rarely report on unpublished decision of the Court of Appeals. This is because the cases are not citable as authority and therefore have less precedential value than even a "writ denied" case. However sometimes something of interest pops up because it is unusual or the history it contains provides some clue to fit into pieces of a puzzle to explain a principle of law.

One such decision is Christopher Michael Salon & Spa/Farmers Ins. Co v WCAB (Mitchell) which issued on August 20, 2003. While the name may not be familiar to most of you the issue is. This is the case that was reported widely (including on WorkCompCentral) when a trial judge held that the time for payment of an attorney's fee under LC 5710 ran 20 days after the deposition transcript was signed by the injured worker and the failure to have the transcript signed was a fatal defect to obtaining a fee.

The decision had been reversed by the WCAB after its Significant Panel Decision in Lett v. Workers' Comp. Appeals Bd. (2004) 69 Cal.Comp.Cases 250 (writ denied). The defendant in this case also appealed to the next level and the Writ was granted. However the Court of Appeal was impressed enough with the WCAB's analysis in Lett to cite it extensively and to adopt the same holding. The court was also sufficiently unimpressed with defendant's arguments that they returned the matter to the WCAB for an award of attorney's fees under LC 5801:

"Petitioners claim they should not reimburse Musso for the costs associated with representing Mitchell at her deposition is particularly meritless considering the parties' stipulation, offered by their counsel, that a certified copy will be used in lieu of an original for all purposes' should an original deposition be unavailable or unsigned within 30 days from the date of transmittal. Because the parties agreed the deposition would be self-executing upon Mitchell's failure to sign the transcription document, we find no reasonable basis for their refusal to reimburse its associated costs and for this petition for writ of review."

The combination of Lett and the Christopher Michael Salon in all likelihood will put an end to further discussion on this issue. The stipulation that was discussed by the Court of Appeal as a basis for the frivolous writ finding is simply a repetition of the statutory language on the ability to use a deposition transcript even where the deponent has not signed it and it is unlikely that this stipulation plays a significant role in the ultimate issue. It seems that the next step in addressing this issue is to request the Legislature to amend the Penal Code to allow perjury charges for deposition transcripts, signed or not. The distinction is certainly not a meaningful one and the courts have urged the Legislature to act on several occasions.

By attorney Richard "Jake" Jacobsmeyer, managing partner of the Concorde office of Adelson, Testan, Brundo & Popolardo. Jake can be reached at richardjacobsmeyer@atblaw.net.

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