Judge Anne Hwang, Case Number: 21STCV08556, Date: 2023-08-07 Tentative Ruling

PLEASE NOTE: Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit. The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged). Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court.

Defendant City of Burbank moves for an order setting a reasonable rate for the expert witness fees of Plaintiff Juana Gladys Cruz Acosta’s (“Plaintiff”) retained experts Kapil Moza, M.D., Neil Ghodadra, M.D., Jonathan Frank, M.D., and Andrew S. Morris, D.C. Only Jonathan Frank, M.D., timely opposed the motion. At the hearing on August 7, Plaintiff argued that she had submitted a late-filed opposition. The Court continued the hearing over Defendant’s objection to consider the belated information.

Code of Civil Procedure section 2034.470, subdivision (a) provides that, “[i]f a party desiring to take the deposition of an expert witness . . . deems that the hourly or daily fee of that expert for providing deposition testimony is unreasonable, that party may move for an order setting the compensation of that expert. Notice of this motion shall also be given to the expert.” The motion must be accompanied by a meet and confer declaration under section 2016.040. (Code Civ. Proc., § 2034.470, subd. (b).)

“In addition to any other facts or evidence, the expert or the party designating the expert shall provide, and the court’s determination as to the reasonableness of the fee shall be based on, proof of the ordinary and customary fee actually charged and received by that expert for similar services provided outside the subject litigation.” (Code Civ. Proc. § 2034.470, subd. (c).) “[T]he expert or the party designating the expert shall also provide, and the court’s determination as to the reasonableness of the fee shall also be based on, both of the following: [¶] (1) The total number of times the presently demanded fee has ever been charged and received by that expert. [¶] (2) The frequency and regularity with which the presently demanded fee has been charged and received by that expert within the two-year period preceding the hearing on the motion.” (Code Civ. Proc., § 2034.470, subd. (d).)

“The court may also consider the ordinary and customary fees charged by similar experts for similar services within the relevant community and any other factors the court deems necessary or appropriate to make its determination.”[1] (Code Civ. Proc., § 2034.470, subd. (e).)

Here, Dr. Kapil Moza, M.D. is a Board-Certified neurosurgeon and is charging Defendant $2,000 per hour to be deposed. (Aguado Decl. ¶ 2, Exh. 1 at pp. 5-6.) Dr. Neil Ghodadra, M.D. and Dr. Johnathan Frank., M.D. are Board-Certified orthopedic surgeons, and they are both charging Defendant $2,000 per hour to be deposed (Id. at pp. 6-7). Andrew S. Morris, D.C. is a Board-Certified chiropractor and is charging Defendant $1,000 per hour to be deposed and $1,500 per hour to be videotaped during the deposition. (Id. at pg. 7.)

As a preliminary matter, it is noted that Plaintiff, Kapil Moza, M.D., Neil Ghodadra, M.D., and Andrew S. Morris, D.C. have failed to timely oppose the motion.[2] In terms of these three experts, Defendant submits the following evidence to support its request to set lower fees. For instance, Defendant’s retained neurologist, Dr. Woo, charges $1,200 per hour for depositions, which is $800 less than Plaintiff’s retained neurosurgeon. (See Aguado Decl.; Exh. 1 at pp. 6-7; Exhs. 6-7.) Defendant concedes that neurologists and neurosurgeons are different types of doctors, but it asserts Dr. Woo’s qualifications are impressive and is associated with Cedars Sinai and UCLA. (Motion at pg. 5.) As to the rates generally charged by orthopedic surgeons, Defendant presents evidence that the fee range is between $950 and $1,000, based on the rates charged by William B. Stetson and Russell W. Nelson, M.D., respectively. (Aguado Decl. ¶¶ 6, 8, Exhs. 4-5, 8-9.) Defendant further asserts that it defies logic that a chiropractor, like Morris, would be able to charge higher fees. (Motion at pp. 5-6.)

As noted, Plaintiff belatedly filed an opposition. As to Dr. Moza, his declaration indicates that he has demanded the $2,000 more than 700 times outside the present litigation and to the best of his memory, he has received that fee. (Moza Decl. ¶ 7.) The rate is based upon the financial loss his practice would suffer while attending a deposition, and it represents the average hourly rate he would have received for performing work in his office. (Moza Decl. ¶ 10.)

Dr. Ghodadra’s declaration states that he is a board-certified orthopedic surgeon, and similarly states that he has demanded the fee more than 700 times outside the present litigation and to the best of his memory, has received that fee. (Ghodadra Decl. ¶ 8-9.) He also declares that his rate is based upon the financial loss his practice would suffer from not seeing patients and represents the average hourly rate he would have received for performing work in his office. (Ghodadra Decl. ¶ 11.)

Dr. Morris’s declaration similarly states that he has demanded the fee more than 700 times outside the present litigation, and to the best of his memory, has received the fee each time. (Morris Decl. ¶ 9-10.) He also declares that his hourly rate is based upon the financial loss his business would suffer and represents the average hourly rate other billing experts charge. (Morris Decl. ¶ 12.)

The Court shares Defendant’s concern regarding the similarity of the three declarations belatedly filed and the lack of specificity. However, they each attached some support for their statements that they have collected the demanded fee previously, and they signed their declarations under penalty of perjury, making them subject to cross-examination.

With regard to Dr. Frank, he has submitted evidence to show that he has received payment at his hourly rate of $2,000 in connection with 58 depositions since January 2021. (Opposition at pp. 2-3; Frank Decl. ¶ 4, Exh. B.) Dr. Frank asserts that he has maintained this rate for the last two years. (Frank Decl. ¶ 4.) He also presents evidence of another orthopedic surgeon, Pranay B. Patel, M.D., who charges $2,000 for the first hour of his depositions. (Frank Decl., Exh. C.) In reply, Defendant argues that Dr. Frank fails to present any evidence to suggest that his rate is reasonable or customary in the relevant community. (Reply at pp. 2-3.)

Dr. Moza, Dr. Ghodadra, Dr. Morris, and Dr. Frank have each collected their requested rates in the past and argue that this shows their fees are reasonable. (Code Civ. Proc., § 2034.470, subd. (d).) Furthermore, each has submitted their curriculum vitae to suggest that their rates are reasonable. While Defendant points to several individuals in comparison to each doctor, they do not represent the entire community. Therefore, Defendant’s motion is denied.

Based on the foregoing, the Court denies Defendant’s motion for order setting a reasonable rate for Plaintiff’s experts’ witness fees.

Defendant shall provide notice of the Court’s order and file a proof of service of such.

[1] Defendant relies heavily on this factor, but it is only one of several considerations under Code of Civil Procedure section 2034.470.

[2] At the original hearing on the motion, Plaintiff appeared to argue that the opposition was late because a secretary in the office mistakenly failed to file it. It should be noted, however, that the declarations were not signed until August 3 and counsel’s declaration was signed on August 4. The Court cautions Plaintiff’s counsel about making representations to the Court in the future.

DEPARTMENT	32
HEARING DATE	August 9, 2023
CASE NUMBER	21STCV08556
MOTIONS	Motion for Order Setting a Reasonable Rate for Plaintiff’s Expert Witness Fees
MOVING PARTY	Defendant City of Burbank
OPPOSING PARTY	Non-party Jonathan Frank, M.D.