Judge: Lisa R. Jaskol, Case: 20STCV30082, Date: 2024-10-23 Tentative Ruling
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Case Number: 20STCV30082 Hearing Date: October 23, 2024 Dept: 28
Having considered the moving and opposition papers, the Court rules as follows.
BACKGROUND
On August 10, 2020, Plaintiff Deborah Lynne Marvin (“Plaintiff”) filed this action against Defendants Joel Rolando Arce Balladares (“Balladares”), Marlon Del Toro and Martin Del Toro dba MDT Transport, and Does 1-100 for negligence.
On December 4, 2020, Defendants Marcos Del Toro, erroneously sued as Marlon Del Toro and Martin Del Toro dba BDT Transport filed an answer.
On March 18, 2021, Defendants Marlon Del Toro and Martin Del Toro dba MDT Transport filed a notice of errata and an amended answer.
On April 6, 2021, Plaintiff amended the complaint to include Defendant Marcos Del Toro as Doe 1.
On June 15, 2021, the Court granted Balladares’s motion to quash service of the summons and complaint.
On April 9, 2022, the Court dismissed Defendant Marlon Del Toro without prejudice at Plaintiff’s request.
On April 13, 2022, Defendant Marcos Del Toro filed an answer.
On January 23, 2024, the clerk entered Balladares’s default. Without moving to set aside the default, Balladares filed an answer on February 28, 2024.
On August 30, 2024, Defendants Marcos Del Toro and Martin Del Toro dba BDT Transport, erroneously sued as Marlon Del Toro and Martin Del Toro dba MDT Transport (“Moving Defendants”) filed a motion for an order setting the compensation of Plaintiff’s experts at deposition, for a protective order, and for sanctions. (The motion also lists Balladares as a party to the motion, but he is in default.) The motion was set for hearing on October 23, 2024. On October 10, 2024, Plaintiff filed an opposition.
Trial is scheduled for November 4, 2024.
PARTIES’ REQUESTS
Moving Defendants ask the Court to set a reasonable rate for the expert witness deposition fee of Dr. Gerald Alexander, to prevent Dr. David E. Fish from requiring pre-payment of his deposition fee, and to reduce Dr. Fish's hourly deposition fee from $1,800.00 to $1,000.00. Moving Defendants also ask the Court to award sanctions.
Plaintiff asks the Court to deny the motion.
LEGAL STANDARD
Code of Civil Procedure section 2034.470 provides:
“(a) If a party desiring to take the deposition of an expert witness under this article deems that the hourly or daily fee of that expert for providing deposition testimony is unreasonable, that party may move for an order setting the compensation of that expert. Notice of this motion shall also be given to the expert.
“(b) A motion under subdivision (a) shall be accompanied by a meet and confer declaration under Section 2016.040. In any attempt at an informal resolution under Section 2016.040, either the party or the expert shall provide the other with all of the following:
“(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.
“(c) In addition to any other facts or evidence, the expert or the party designating the expert shall provide, and the court’s determination as to the reasonableness of the fee shall be based on, proof of the ordinary and customary fee actually charged and received by that expert for similar services provided outside the subject litigation.
“(1) The total number of times the presently demanded fee has ever been charged and received by that expert.
“(2) 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.
“(f) Upon a determination that the fee demanded by that expert is unreasonable, and based upon the evidence and factors considered, the court shall set the fee of the expert providing testimony.
“(g) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to set the expert witness fee, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”
(Code Civ. Proc., § 2034.470.)
DISCUSSION
A. Dr. Gerald Alexander
Plaintiff’s expert Dr. Gerald Alexander informed Moving Defendants that his fee for a videotaped deposition was $4,000.00 per hour. Moving Defendants attempted to meet and confer with Plaintiff and Dr. Alexander about the fee on August 14 and 15, 2024. In a letter dated August 14, 2024, Moving Defendants requested the following information specified in Code of Civil Procedure section 2034.470, subdivisions (b), (c), and (d):
· “Proof of the ordinary and customary fee actually
charged and received by that expert for similar services provided outside the
subject litigation,”
· “The total number of times the presently demanded fee
has ever been charged and received by that expert,”
· “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.”
(Code Civ. Proc., § 2034.470, subds. (b), (c), (d).) Plaintiff and Dr. Alexander failed to provide this information.
As a result, Moving Defendants paid Dr. Alexander’s fee under protest and conducted his deposition. Moving Defendants now ask the Court to reduce Dr. Alexander’s compensation under Code of Civil Procedure section 2034.470 and order Dr. Alexander to return the remaining amount.
Moving Defendants have presented evidence that their expert Dr. Mark J. Spoonamore, an orthopedic spine surgeon, has a similar background and experience to Dr. Alexander and will testify about the same subjects as Dr. Alexander. (See Purcell dec. ¶ 9 [“Like Dr. Alexander, Dr. Spoonamore is an orthopedic spine surgeon who is Board-Certified with the American Board of Orthopedic Surgeons [and] an expert in orthopedics”] & exh. F.) Dr. Spoonamore is expected “to offer opinions and conclusions on Plaintiff’s injuries arising out of the accident.” (Purcell dec. ¶ 9.) While Dr. Alexander charges $4,000.00 per hour for a videotaped deposition, Dr. Spoonamore charges $1,500.00 per hour. (Purcell dec. ¶ 9.)
Plaintiff opposes the motion. Plaintiff has provided a declaration from Dr. Alexander stating that his current expert medical-legal fee schedule reflects a price of $3,000.00 per hour for depositions with an additional $1,000.00 fee for video depositions. Since January 1, 2024, he has been deposed 15 times for matters unrelated to this case. Each of those times, the $3,000.00 hourly rate and $1,000.00 fee were paid prior to the deposition without protest.
Dr. Alexander also states that he revised this fee schedule on January 22, 2024. Before that, he had not raised his expert medical-legal fees in over ten years. Between January of 2022 and January of 2024, he was deposed 84 times for matters unrelated to this case at his previous hourly rate of $1,800.00.
If Plaintiff had provided this information to Moving Defendants when they requested it as Code of Civil Procedure section 2034.470 requires, Moving Defendants might not have needed to file a motion to set Dr. Alexander’s compensation. However, the statute does not authorize sanctions for failing to comply with the obligation to provide information at the meet and confer stage. The Court denies the motion to set Dr. Alexander’s compensation.
B. Dr. David E. Fish
Plaintiff’s expert Dr. David E. Fish informed Moving Defendants that he required a payment of $3,600.00 – representing two hours at an hourly rate of $1,800.00 per hour – before he would participate in a one-hour deposition.
Moving Defendants attempted to meet and confer with Plaintiff and Dr. Fish about the fee on August 14 and 15, 2024. In a letter dated August 14, 2024, Moving Defendants requested the following information specified in Code of Civil Procedure section 2034.470, subdivisions (b), (c), and (d):
· “Proof of the ordinary and customary fee actually
charged and received by that expert for similar services provided outside the
subject litigation,”
· “The total number of times the presently demanded fee
has ever been charged and received by that expert,”
· “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.”
(Code Civ. Proc., § 2034.470, subds. (b), (c), (d).) Plaintiff and Dr. Fish failed to provide this information.
Moving Defendants ask the Court for a protective order preventing Dr. Fish from requiring payment of $3,600.00 before he will participate in a deposition. They also ask the Court to reduce Dr. Fish’s hourly rate to $1,000.00 per hour. (Motion p. 9.)
Moving Defendants have presented evidence that their expert Mary Jesko has a similar background and experience to Dr. Fish and will testify about the same subjects as Dr. Fish. (See Purcell dec. ¶ 10 [“Like Dr. Fish, Defendant’s expert Mary Jesko is a Board-Certified Medical Case Manager and Certified Disability Management Specialist and Life Care Planner of [sic] Vocational Rehabilitation expert”]; exh. G.) Ms. Jesko is expected to testify “on issues of future medical treatments, reasonableness of billing and care, life care needs and the associated costs, life care plan, and reasonableness and necessity of medical issues.” (Purcell dec. ¶ 10.) While Dr. Fish charges $1,800.00 per hour for a videotaped deposition with a 2-hour minimum, Ms. Jesko charges $975.00 per hour. (Purcell dec. ¶ 10.)
Plaintiff opposes the motion, asserting that Moving Defendants paid Dr. Fish $3,600.00 and deposed him for one hour. Dr. Fish then reimbursed Moving Defendants $1,800.00. According to Plaintiff, these facts render the motion moot.
The motion is not moot because Moving Defendants have asked the Court to reduce Dr. Fish’s hourly rate from $1,800.00 per hour to $1,000.00 per hour.
Plaintiff has not provided the information specified in Code of Civil Procedure section 2034.470, subdivision (d). Because Plaintiff had the obligation to provide this information and failed to do so, the Court will assume that the information would be adverse to Plaintiff.
The Court grants Moving Defendants' motion in part and reduces Dr. Fish’s compensation to $1,000.00 per hour.
Moving Defendants have withdrawn their request for sanctions.
CONCLUSION
The Court GRANTS in part and DENIES in part the motion of Defendants Marcos Del Toro and Martin Del Toro dba BDT Transport, erroneously sued as Marlon Del Toro and Martin Del Toro dba MDT Transport, to set the compensation of Plaintiff Deborah Lynne Marvin’s expert witnesses, for a protective order, and for sanctions. The Court GRANTS Moving Defendants’ request to reduce the compensation of Dr. David E. Fish from $1,800.00 per hour to $1,000.00 per hour. In all other respects, the Court DENIES the motion.
Moving parties are ordered to give notice of this ruling.
Moving parties are ordered to file the proof of service of this ruling with the Court within five days.