Judge Kerry Bensinger, Case 20STCV23221 2023-02-14 Tentative Ruling

On June 18, 2020, plaintiff Angelina Yu (“Plaintiff”) filed this action against defendant Coach Max Corp. (“Defendant”) for injuries arising from a motor vehicle accident.

On January 20, 2023, Plaintiff filed the instant Motion to set Defendant’s biomechanics and accident reconstruction expert, Bryan Randles, M.S. (“Randles”), deposition rate of $1,000 per hour to a reasonable rate of $500.[1] Defendant filed an Opposition on January 31, 2023. Plaintiff filed her Reply on February 7, 2023.

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(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(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(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(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(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(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(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(f).)¿¿

Plaintiff contends that Randles’ deposition rate of $1,000 per hour is unreasonable and should be reduced to $500. In support, Plaintiff points the Court to her biomechanics and accident reconstruction expert’s, Brad Rutledge, M.S., deposition rate of $500 per hour. (Xu Decl., ¶ 6, 8, Exh. 2.) Plaintiff also provides a declaration, which reflects that in April 2022 Randles charged $500 per hour for testifying at deposition.

In opposition, Defendant points the Court to Randles’ experience to justify the fees sought. (See Randles Decl., ¶ 3, Exh. A.) In addition, Defendant provides evidence that Randles has received $500 per hour for twelve non-videotaped depositions, and $1,000 per hour for approximately forty-eight videotaped depositions, in the last three to four years. (Id. at ¶ 7.) Defendant also provides evidence of three similar biomechanics and accident reconstruction experts, who charge between $500-$550 per hour for non-videotaped deposition testimony, and between $1,000-$1,100 per hour for videotaped deposition. (Douglas Decl., ¶¶ 4-6, Exhs. C-E.) Defendant offered to have Randles testify at $500 per hour for non-videotaped deposition, but Plaintiff refused, and demanded that his videotaped deposition be reduced to $500 per hour. (Id. at ¶ 9.)

As a preliminary matter, Plaintiff fails to differentiate between non-videotaped depositions and videotaped depositions. Plaintiff makes no reference to videotaped depositions in her Motion, but based on Defendant’s counsel’s representation that they offered to have Randles’ non-videotaped deposition taken at $500 per hour, which Plaintiff refused, it can be presumed that Plaintiff seeks to have Randles’ videotaped deposition hourly rate reduced.

In addition, while Plaintiff provides evidence that Rutledge’s deposition rate is $500, Plaintiff failed to provide Rutledge’s fee schedule, to determine whether he charges a different rate for videotaped deposition. Further, Plaintiff failed to point the Court to any other biomechanics and accident reconstruction expert fees and the amount that they charge for videotaped depositions.

The Court finds that Plaintiff failed to provide sufficient evidence to support reducing Randles’ hourly rate for non-videotaped depositions and videotaped depositions. Moreover, Defendant has provided sufficient evidence to show that the fee requested by Randles is reasonable. Randles has received $500 per hour for twelve non-videotaped depositions and $1,000 per hour for approximately forty-eight videotaped depositions in the last three to four years. In addition, Defendant points the Court to the rates of similar experts, which are the similar, and even higher, rates as those charged by Randles. Accordingly, the Court finds that Randles deposition rates are reasonable.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Hon. Kerry Bensinger

Judge of the Superior Court

[1] The Court notes that Plaintiff’s Motion was not filed with sufficient notice in accordance with Code of Civil Procedure section 1005(b), but will rule on the merits of the Motion, as it has been substantively opposed, and to avoid wasting judicial resources.