Judge Jill Feeney, Case 20STCV02388 2023-01-13 Tentative Ruling

Defendant argues that Plaintiff’s expert, Dr. Charles Yoo, set an unreasonable deposition fee at $4,000 per hour or $3,750 for a 30-minute deposition. Defendant alleges that Dr. Yoo could only provide two examples of when he received his requested fee from 2018 and 2021. Defendant also offers examples from other physicians with similar qualifications showing that a reasonable fee is between $1,000 and $1,200 per hour.

Plaintiff argues that Defendant fails to establish that Dr. Yoo’s fees are unreasonable because Dr. Yoo provided all the documentation he could on his regular fees after losing access to patient files from his previous employer. Defendant also argues that Dr. Yoo’s fee is fair because it includes time spent being deposed, a review of imaging, and proofreading deposition text. Plaintiff argues that the other experts Defendant offers are only examples of what neuroradiologists charge in the community, rather than what Dr. Yoo should be paid.

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.)

Defendant’s evidence shows that Defendant made reasonable and good faith attempts to resolve the matter outside of court. Email communications show that Defendant asked Dr. Yoo for proof of his customary fee, the number of times he has ever charged and received the fee, and the frequency and regularity with which the fee was charged and received within the two years prior to filing this motion. (Motion, Exh. F.) In response, Dr. Yoo wrote in an email that he had received $5,000 for one deposition that was over 1 hour and $2,500 for another deposition that was less than 1 hour. (Exh. F.) However, this evidence only consists of a form 1099-MISC and a check showing the amounts paid. (Exh. G.) These documents do not provide details of the length of the deposition. Additionally, the documents show that Dr. Yoo received his full $4,000 per hour fee once, sometime in 2018, and received less than the full fee on another occasion in September 2022.

Defendant offers the fee schedules of several other neuroradiologists, including Dr. Brian King, Dr. David Karlin, and Dr. Richard Rhee who charge between $1,000 and $1,200 per hour for depositions and have similar credentials to Dr. Yoo.

In opposition, Plaintiff does not offer any other evidence that Dr. Yoo’s $4,000 per hour fee is reasonable, that he charged and received the fee more regularly, or any other evidence that he received his requested fee within the two years preceding this motion.

Plaintiff’s argument that Dr. Yoo’s fee includes time performing imaging review and deposition text proofreading is without merit. As Plaintiff points out, Code Civ. Proc., section 2034.430(b) provides that a party who deposes an expert witness must pay the expert’s reasonable and customary hourly or daily fee for any time spent at the deposition from the time noticed in the deposition subpoena or the time of the expert’s arrival if later to the time the witness is dismissed. This time does not include preparation work or post-deposition work.

Plaintiff’s arguments that Dr. Yoo had no access to client records also fails because Plaintiff had ample opportunity to seek the records from Dr. Yoo’s previous employer. Alternatively, Plaintiff could have submitted testimony from Dr. Yoo about the number of times he charged and received his fee.

Based on the evidence that Dr. Yoo has not regularly received his requested fee and that other similar experts charge between $1,000 and $1,200 for depositions, the Court finds that Dr. Yoo’s fee is unreasonable and sets his fee at $1,200 per hour.