Judge Jill Feeney, Case 20STCV01308 2023-01-19 Tentative Ruling

Judge: Jill Feeney, Case: 20STCV01308, Date: 2023-01-19 Tentative Ruling

Case Number: 20STCV01308 Hearing Date: January 19, 2023 Dept: 30

Department 30, Spring Street Courthouse

January 19, 2023

20STCV01308

Motion to Compel Dr. Rahavard to Testify at Deposition and Set a Reasonable Rate of $817 per hour

DECISION

The motion is granted in part and denied in part without prejudice.

Dr. Rahavard may not charge in excess of $1,875 per hour for her deposition.

Moving party to provide notice.

Background

This is an action for negligence arising from a vehicle collision which took place in May 2019. Plaintiff Adel Ruzek filed her Complaint against Defendant Hollywood Burbank Airport on January 10, 2020.

On October 16, 2020, Plaintiff filed Doe Amendments naming Zipcar, Inc and Avis Budget Group, Inc. as defendants in this action.

Defendants Avis Budget Car Rental and Zipcar, Inc. (“Moving Defendants”) filed the instant motion to compel Plaintiff’s expert witness, Dr. Rahavard, to appear for deposition and to set fees.

Summary

Moving Arguments

Defendant seeks orders compelling Plaintiff’s expert witness, Dr. Behnoosh Rahavard to appear and testify at deposition and set a reasonable rate of $817 per hour for her deposition testimony.

Opposition Arguments

Plaintiff argues that Defendant cannot change Dr. Rahavard’s rate because it is already reasonable. Additionally, Plaintiff has a right to choose the best expert for his case.

Reply Arguments

Defendant argues that Dr. Rahavard failed to provide the information required under Code Civ. Proc., section 2034.470(b). Defendant also argues that $817 per hour is a reasonable rate.

Legal Standard

Compel Deposition

Any party may obtain discovery, subject to restrictions, by taking the oral deposition of any person, including any party to the action. (Code Civ. Proc., § 2025.010.) A party desiring to take an oral deposition shall give a notice in writing which states the specification of reasonably particularly of any materials to be produced by the deponent. (Code Civ. Proc., § 2025.220, subd. (a)(4).) A properly served deposition notice is effective to require a party to attend and to testify, as well as to produce documents for inspection and copying. (Code Civ. Proc., § 2025.280, subd. (a).) The party served with a deposition notice waives any error or irregularity unless that party promptly serves a written objection at least three calendar days prior to the date for which the deposition is scheduled. (Code Civ. Proc., § 2025.410, subd. (a).)

“If, after service of a deposition notice, a party to the action … without having served a valid objection … fails to appear for examination, … or to produce for inspection any document, … described in the deposition notice, the party giving the notice may move for an order compelling the deponent's attendance and testimony, and the production for inspection of any document … described in the deposition notice.” (Code Civ. Proc., § 2025.450, subd. (a).)

A motion brought to compel a deposition “shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition … by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.” (Code Civ. Proc., § 2025.450, subd. (b)(2).)

Set Fees

If a party seeks to depose an opposing party’s expert and contends that the expert’s fees is unreasonable, the deposing party may move for an order setting the compensation of that expert. (Code Civ. Proc., section 2034,470, subd. (a).) In connection with a motion to set the compensation of an opposing party’s expert, the moving party must provide a declaration showing a “reasonable and good faith attempt” to resolve the matter outside court. (Code Civ. Proc., sections 2016.040, 2034.470, subd. (b).) Per Code of Civil Procedure section 2034.470, subdivision (b), in connection with the attempt to resolve the dispute informally, the expert or party designating the expert must provide the opposing party with: “(1) Proof of the ordinary and customary fee actually charged and received by that expert for similar services provided outside the subject litigation. (2) The total number of times the presently demanded fee has ever been charged and received by that expert. (3) 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.”

The moving party has the burden of proving that the fee being sought is unreasonable. (Code Civ. Proc., section 2034.470(a). A court may consider the ordinary and customary fees being paid to experts of comparable qualifications for similar services in the relevant community. (Id., subd. (e).) For example, standard fee schedules from numerous experts may show what an ordinary and customary fee is. (Id.) A court must also consider the total number of times the expert demanded and was paid the fee and the number of times the fee was charged and paid in the two years preceding the motion. (Code Civ. Proc., section 2o34.470.)

Sanctions are mandatory against any party, person, or attorney who unsuccessfully makes or opposes a motion to set the expert witness fee unless the court finds that the one subject to sanctions acted with substantial justification.

Discussion

Moving Defendants seeks a court order compelling Plaintiff’s expert, Dr. Rahavard, to appear for deposition and setting the expert witness fees on the grounds that the $2,000 per hour fee is unreasonable.

Moving Defendants’ evidence shows that Dr. Rahavard failed to provide the documentation required in Code of Civil Procedure section 2034.470, subdivision (b) to informally resolve this issue. Defendant’s counsel sent meet and confer correspondence requesting proof of the physicians’ fees for similar services in other matters, the total number of times the fees were charged and received, and the frequency and regularity with which the fees were charged and received within two years prior to this motion. (Motion, Exh.B.) Dr. Rahavard never provided this information. Moving Defendants then set Dr. Ravahard’s deposition for January 3, 2023.

The Court finds that Plaintiff and Dr. Rahavard unreasonably failed to provide the documentation required by Code of Civil Procedure section 2034.470, subdivision (b). Plaintiff and her physicians also failed to provide this information to the Court as required by Code Civ. Proc., section 2034.470(d).

Moving Defendants argue that Dr. Rahavard’s fee is unreasonable because other similar experts charge less than $2,000 and cite three examples from their own experts, Drs. Karlin, Boozan, and Marx, to show what the customary fee is for similar services in the relevant community. Dr. Rahavard is an interventional pain management specialist and anesthesiologist with 2 years of experience as a licensed physician in the United States. (Motion, Exh. A.) Dr. Boozan is an ophthalmologist with 33 years of experience whose rate is $750 per hour. (Motion, Exh. C.) Dr. Karlin is a neuroradiologist with 26 years of experience whose rate is $1,200. (Id.) Dr. Marx is a Neurologist with 15 years of experience whose rate is $500 per hour. (Id.) Boozan, Karlin, and Marx are all physicians in a different field of specialization and none are specialists in pain management. They are not appropriate examples of the customary fee for similar services among pain management specialists. Moving Defendants fail to meet their burden of proof of showing Dr. Rahavard’s fee is unreasonable.

Moving Defendants argue that Dr. Rahavard’s fee for deposition is higher than the fee she is charging Plaintiff for testimony at trial. An expert witness may not charge the deposing party more than what the expert charges for testifying at trial. (Rancho Bernardo Dev. Co. v Superior Court (1992) 2 CA4th 358, 362.) Here, Dr. Rahavard’s fee for testifying in court is $7,500 for one half day. Assuming one half day is 4 hours, Dr. Rahavard’s fee is $1,875 per hour. The Court notes that the hourly deposition fee should not be in excess of this amount. To this extent, the motion is granted.

Putting the issue of fees charged to Plaintiff versus the fees charged to Defendants, Moving Defendants fail to meet their burden of proof of showing Dr. Rahavard’s fees are unreasonable. The motion is denied in this regard.

Although Moving Defendants’ motion is denied in part, the Court finds that Defendant acted with substantial justification because Plaintiff and her physicians unreasonably failed to provide required information about Dr. Rahavard’s fees. The Court declines to award sanctions.