Judge: Audra Mori, Case: 19STCV01658, Date: 2023-02-23 Tentative Ruling

Case Number: 19STCV01658    Hearing Date: February 23, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiffs Luis Flores Torres and Ingrid Castro (collectively, “Plaintiffs”) filed this action against Defendants Hamilton Maxwell and Michelle Rappino (collectively, “Defendants”) for damages arising from a motor vehicle accident. 

At this time, Defendants move for an order setting a reasonable rate for the expert witness fees for Plaintiff’s retained expert Stepan Kasimian, M.D. (“Dr. Kasimian”).  Plaintiff opposes the motion.  Any reply was due on or before February 15, 2023.  As of February 16, 2023, no reply has been filed. 

Defendants assert that Dr. Kasimian charges $2,000 per hour in expert witness fees to be deposed, or $2,500 if the deposition is videotaped.  Defendants contend that this rate is unreasonable and that Dr. Kasimian has refused to reduce the fee.  Further, Defendants assert that neither Plaintiffs nor Dr. Kasimian provided any information to Defendants to support the requested fee.  Defendants state that they offered to pay Dr. Kasimian $1,400 because Defendants had Dr. Kasimian’s fee set at that rate on at least one occasion, and Defendants request that Dr. Kasimian’s fee now be set at $1,400.00. 

In opposition, Plaintiffs contend that in meet and confer efforts, they provided Defendants with evidence establishing that the rate charged by Dr. Kasimian is reasonable.  Plaintiffs assert that they provided a list of almost 40 cases in which Dr. Kasimian charged and was paid at least $2,000 per hour for his deposition testimony.  Additionally, Plaintiffs contend that Defendants did not fully meet and confer before filing the instant motion. 

2. Motion to Set Compensation Rate of Expert

A party seeking to depose an expert witness shall pay the expert’s reasonable and customary hourly or daily fee for any time spent.  (Code of Civ. Proc., § 2034.430, subd. (b).)  If the party seeking to the take the deposition of an expert witness deems the hourly or daily fee of that expert to be unreasonable, that party may move for an order setting the compensation rate and notice of the motion shall be given to the expert.  (Code of Civ. Proc., § 2034.470, subd. (a).)  The notice shall be accompanied by a meet and confer declaration under Code of Civil Procedure section 2016.040.  (Code of Civ. Proc., § 2034.470, subd. (b).) 

In any attempt at informal resolution, either the party or expert shall provide the other with: (1) proof of the ordinary and customary fee actually charged and received by that expert for similar services provided; (2) the total number of times the presently demanded fee has ever been charged and received by that expert; and (3) the frequency and regularity with which the presently demanded fee has been charged and received by that expert within the preceding two-year period.  (Code of Civ. Proc., § 2034.470, subds. (b)(1)-(3).)

The expert or party designating the expert shall provide, and the court shall base its determination of the reasonableness of the demanded fee on, proof of the ordinary and customary fee actually charged and received by that expert for similar services, in addition to any other facts or evidence.  (Code of Civ. Proc., § 2034.470, subd. (c).)

The court’s determination of a reasonable fee shall be based on both (1) the total number of times the presently demanded fee has ever been charged and received by that expert; and (2) the frequency and regularity with which the presently demanded fee has been charged and received by that expert within the preceding two-year period.  (Code of Civ. Proc., § 2034.470, subds. (d)(1)-(2).)  “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 and appropriate to make its determination.”  (Code of Civ. Proc., § 2034.470, subd. (e).)  Upon determination that the fee demanded is unreasonable, the court shall set the fee of the expert providing testimony.  (Code of Civ. Proc., § 2034.470, subd. (f).)

Here, Defendants’ counsel attests that she met and conferred with Plaintiffs’ counsel concerning Dr. Kasimian’s fee, but the parties have not been able to reach an agreement on the reasonableness of Dr. Kasimian’s fee.  (Mot. Cox ¶¶ 4-8.)  This is sufficient to satisfy the meet and confer requirements of CCP § 2034.470(b).)  In addition, Defendants contend that Dr. Kasimian’s fee should be set at $1,400 per hour because Defendants previously had Dr. Kasimian’s rate set at this amount on a few occasions in the past, and Defendants provide the fee schedules of other alleged similar experts whose rates range from $950 to $1,250 per hour for a deposition.  (Mot. at pp. 5-6:23-3, Exhs. H-L.) 

Plaintiffs, however, submit a declaration from Dr. Kasimian’s Med-Legal coordinator stating that since January 2021, Dr. Kasimian has charged at least $2,000 for his deposition testimony.  (Opp. Fajardo Decl. ¶ 2.)  Plaintiffs provide a list of more than 40 cases showing that Dr. Kasimian received his requested fee of $2,000 or $2,500 per hour throughout 2021 and 2022.  (Id. at ¶ 2, Exh. D.)  This evidence shows that Dr. Kasimian received his presently demanded fee over 40 times in the past two years, such that Dr. Kasimian has frequently and with regularity received his requested fees.  The Court must consider information of this nature in determining whether Dr. Kasimian’s fee is reasonable.  (Code of Civ. Proc., § 2034.470, subds. (d)(1)-(2).)  Defendants did not file a reply, and thus, Defendants fail to provide any response as to why Dr. Kasimian’s rates are unreasonable in light of the evidence provided. 

To the extent that the Court has the discretion to consider fees charged by Defendant’s experts, the Court notes that most of the rates provided are dated 2020 and 2021.  There is only one rate provided from 2022, and it is the highest rate.  

Based on the foregoing, Defendants’ motion is denied.  Dr. Kasimian may charge and receive $2,000 per hour for deposition testimony and $2,500 per hour for videotaped deposition in connection with this action. 

Defendants are ordered to give notice. 

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 23^rd day of February 2023