Judge Kerry Bensinger, Case BC723943 2023-04-25 Tentative Ruling

On October 2, 2018, Plaintiff Dario Paul Camacho (Plaintiff) filed this action against Defendants Transdev Services, Inc. (Transdev), Los Angeles County Metropolitan Transportation Authority (LACMTA), and Connie Romero (Romero) (collectively Defendants) arising from an April 18, 2018, bus versus motorcycle collision. Plaintiff alleges Romero, the bus operator, “veered onto the double yellow solid lines and/or opposing travel lane to complete the turn on a curve in the roadway.” Romero allegedly “failed to observe Plaintiff while making the turn on the double yellow solid lines in an unsafe manner and caused a collision with Plaintiff.”

Defendants took the deposition of Plaintiff’s experts and Plaintiff claims Defendants did not pay the expert witness fees related to the depositions. The experts (collectively Plaintiff’s Experts) and deposition dates are as follows:

On April 25, 2023, Plaintiff filed this motion to compel the payment of expert deposition fees for all experts deposed and sanctions against all Defendants. Defendants have not opposed the motion.

“A party desiring to depose an expert witness described in subdivision (a) shall 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 from the time of the arrival of the expert witness should that time be later than the time noticed in the deposition subpoena, until the time the expert witness is dismissed from the deposition, regardless of whether the expert is actually deposed by any party attending the deposition.” (Code of Civil Procedure (CCP) § 2034.430(b).) “Except as provided in subdivision (f), this section applies to an expert witness, other than a party or an employee of a party, who is any of the following: (1) An expert described in subdivision (b) of Section 2034.210 . . . .” (CCP § 2034.430(a).)

“If any expert designated by a party under subdivision (a) is a party or an employee of a party, or has been retained by a party for the purpose of forming and expressing an opinion in anticipation of the litigation or in preparation for the trial of the action, the designation of that witness shall include or be accompanied by an expert witness declaration under Section 2034.260.” (CCP § 2034.210(b).) “Any party may demand a mutual and simultaneous exchange by all parties of a list containing the name and address of any natural person, including one who is a party, whose oral or deposition testimony in the form of an expert opinion any party expects to offer in evidence at the trial.” (CCP § 2034.210(a).)

“Misuses of the discovery process include, but are not limited to, the following: . . . (b) Using a discovery method in a manner that does not comply with its specified procedures. (c) Employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense . . . .” (CCP § 2030.010.)

Plaintiff claims that he designated ten experts and Defendants took their depositions between December 21, 2022 and March 3, 2023. (Boyer Decl., ¶ 2.) Defendants did not pay Plaintiff’s Experts their deposition fees at the time of deposition because Plaintiff’s and Defendants’ counsels agreed that Defendants would pay the fees within a reasonable time after completion of the depositions. (Boyer Decl., ¶ 28.) Plaintiff contends Defendants have not paid Plaintiff’s Experts’ deposition fees as of April 3, 2023, a month after the last deposition was taken and over four months since the first deposition was taken. (Boyer Decl., ¶ 30.) Plaintiff’s counsel attempted to meet and confer with Defendants’ counsel from December 31, 2022 to March 6, 2023 regarding the payment of Plaintiff’s Experts’ deposition fees, however, Plaintiff did not receive a response or payment from Defendants’ counsel. (Boyer Decl., ¶¶ 3-30.)

CCP § 2034.430(b) requires that Defendants pay Plaintiff’s Experts their reasonable and customary hourly or daily fee for any time spent at the deposition. Plaintiff has not provided any evidence for the majority of Plaintiff’s Experts’ reasonable or customary hourly deposition fee. Dr. Kuyt’s fees are supported by Melissa Devor’s declaration and Lauderville and Fatzinger’s fees are supported by Michelle Bozin’s declaration and attached exhibits. (Devor Decl., ¶¶ 2-5 and Bozin Decl., ¶¶ 2-5 and 8, Exhs. A and C.) The remaining seven experts’ proposed fees have no supporting declaration or exhibit supporting the reasonableness of the fees or the hours spent in deposition, such as the invoices allegedly presented. (Mot., p. 1.) Thus, this Court cannot consider the amount of fees awardable to Plaintiff’s Experts.

Accordingly, Plaintiff’s motion to compel payment of expert witness deposition fees is CONTINUED to allow Plaintiff to submit evidence of Plaintiff’s Experts’ reasonable fees.

Plaintiff’s motion to compel payment of expert witness deposition fees and request for sanctions is CONTINUED to _________________.

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