Department 30, Spring Street Courthouse

January 13, 2023

21STCV12187

Motion for Order of Determination of the Reasonable Rate of Plaintiff’s Treating Physicians Parham Yashar and Andrew Fox filed by Defendant

The motion is denied without prejudice.

No sanctions are imposed.

Moving party to provide notice.

This is an action for negligence arising from a vehicle collision which took place in January 2020. Plaintiff Lexi Vanessa Rivas filed her Complaint against Defendant Roman Krause on March 30, 2021.

Defendants filed a motion to compel a second independent medical examination (“IME”) of Plaintiff on December 15, 2022.

Moving Arguments

Defendant argues that Plaintiff’s physicians, Dr. Andrew Fox and Dr. Parham Yashar, are treating physicians and are thus not entitled to expert witness fees. Additionally, Defendant argues that both physicians’ fees are unreasonable at $3,000 and $2,000 per hour respectively. Defendant also argues that Plaintiff and her physicians failed to produce the documents required by Code of Civil Procedure section 2034.470, subdivision (b) to resolve this issue informally.

Opposition Arguments

Plaintiff argues that Dr. Fox and Dr. Yashar’s fees are reasonable because Defendant’s own medical examiner has a fee of $1,750 and an additional $750 fee for video depositions, for a total of $2,500 per hour. Plaintiff also argues Defendant does not meet his burden of proof because he fails to provide examples of what similarly qualified doctors might charge.

Reply Arguments

Defendant argues that its medical examiner’s fees are less than Dr. Fox and Dr. Yashar’s fees. Defendant then reiterates arguments from his motion.

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.

Defendant seeks a court order setting the expert witness fees of Dr. Fox and Dr. Yashar on the grounds that their $3,000 per hour and $2,000 per hour fees are unreasonable.

Defendant’s evidence shows that Plaintiff’s physicians and counsel 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. (Kandah Decl., ¶10.) Dr. Yashar never provided this information and merely disagreed with Defendant’s assessment that the fees were unreasonable. (Id., ¶¶12, 14, 16, 18.) Dr. Fox responded with 4 checks and 1 invoice from his services as an expert witness. (Id., ¶¶10, 13, 15, 17.) 

The Court finds that Plaintiff and her physicians 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).

Nevertheless, Defendant also failed to meet his burden of proof of showing that Dr. Fox and Dr. Yashar’s fees were unreasonable. Defendant merely argues that Dr. Fox and Dr. Yashar are treating physicians, not expert witnesses, and are not entitled to expert witness fees.

If the deposition relates to only the treatment given, then a treating physicians may not charge a fee for deposition. (CCP Section 2034.430(2).) However, expert witness fees must be paid to depose a treating physician who is asked to express an opinion during deposition, including questions asking for opinions or facts regarding the patient’s past or present diagnosis, future prognosis, or the reasons for a particular treatment decision. (Code Civ. Proc., section 2034.430(a)(2).)

Here, there is no evidence showing whether Defendant will be asking Dr. Fox and Dr. Yashar to express an opinion during deposition. Plaintiff’s counsel states that he plans to designate both physicians as expert witnesses when the time for exchange comes. (Opposition, p.3.) 

Defendant also did not provide any evidence as to whether Dr. Fox and Dr. Yashar’s fees are unreasonable. Accordingly, the motion is denied.

Although Defendant’s motion is denied, the Court finds that Defendant acted with substantial justification because Plaintiff and her physicians unreasonably failed to provide required information about Dr. Fox and Dr. Yashsar’s fees. Plaintiff’s request for sanctions is therefore denied.