Judge: Michael E. Whitaker, Case: BC616669, Date: 2023-03-08 Tentative Ruling

Case Number: BC616669    Hearing Date: March 8, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

            Defendant Lee Anne Ruff (Defendant) moves to set a reasonable rate for the expert witness fees for the deposition of Plaintiff Melissa Rosapapan (Plaintiff)’s retained expert neurosurgeon, Fardad Mobin M.D. (Mobin), at no more than $1500 per hour.  Plaintiff opposes the motion. 

ANALYSIS

(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.

(d) In an action filed after January 1, 1994, the expert or the party designating the expert shall also provide, and the court's determination as to the reasonableness of the fee shall also be based on, both of the following:

(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.

(e) 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 or appropriate to make its determination.

(Code Civ. Proc., § 2034.470, subds. (a)-(e).)

Mobin seeks $2,400 per hour for deposition.  (Declaration of Pegah Sharifi, ¶ 6.)  Defendant has demonstrated that she contacted Plaintiff to discuss Mobin’s rates, but neither Plaintiff nor Mobin has responded.  (Declaration of Pegah Sharifi, ¶¶ 7-8.)  Defendant’s Counsel states in another case handled by her firm (Perry v. Schroeder, Case No. 19STCV16498), another plaintiff designated Dr. Mobin on March 2, 2022, where Dr. Mobin’s rate sheet, remained at $1500 per hour.  (Declaration of Pegah Sharifi, ¶ 10.)  Counsel further states that her firm actually paid Dr. Mobin the $1500 per hour rate to testify as an expert in Navarette v. Breeden (Case No. 19STCV09554), during Dr. Mobin’s March 29, 2022, deposition.  (Declaration of Pegah Sharifi, ¶ 11.)  Counsel’s firm has a CV and rate sheet from Dr. Mobin from approximately 2013, showing that he has been charging $1500 per hour for deposition since at least that time.  (Declaration of Pegah Sharifi, ¶ 12.)  Defendant advances the CV of Dr. Tony Feuerman, the defense expert neurosurgeon, who charges $1500 per hour, in support of her contention that similar experts with similar qualifications and experience within the Los Angeles area ordinarily and customarily charge substantially less than the $2400 demanded by Dr. Mobin.  (Declaration of Pegah Sharifi, ¶ 13.)  Defendant also advances the CVs of Dr. Luke Macyszyn, Dr. Bryan Oh, and Dr. Paul Kaloostian who according to Defendant are neurosurgeons, and regularly serve as experts for services similar to those offered by Dr. Mobin in the same professional community, and all charge less than $2400 per hour.  (Declaration of Pegah Sharifi, ¶¶ 14-17.) 

In opposition, Plaintiff advances the declaration of Mobin.  In part, Mobin declares:

·       Due to recent increase in inflation and rise in practice overheads stemming from multiple inherent costs of maintaining a medical practice, I have increased my hourly deposition rate from $1,500 to $2,400 per hour, with an additional $750 charge if the deposition is videotaped. This rate increase was implemented in February of 2022.

·       My deposition fee is within community standards for an experienced fellowship trained neurosurgeon in private clinical practice in Beverly Hills.

·       Since implementing my new fee schedule in February of 2022, I have been deposed approximately 37 times in litigated matters. In each of those depositions, I was paid my now usual and customary rate of $2,400.00 per hour, with an additional charge of $750.00 if the deposition was videotaped.

(Declaration of Fardad Mobin, M.D., ¶¶ 3-5.)  Further, Mobin provides information about 17 occasions within the last year where he charged and received $2,400 per hour for depositions.  (Declaration of Fardad Mobin, M.D., ¶¶ 6-22.)  Also Mobin details 20 other instances within the last year where he received more than $2,400 for his deposition services.  (Declaration of Fardad Mobin, M.D., ¶ 24.)

            The Court thus finds that Plaintiff has established the “frequency and regularity” that Mobin demanded and received the deposition fee of $2,400 per hour within the year preceding the hearing on the motion. 

CONCLUSION AND ORDER 

Accordingly, the Court denies Defendant’s motion to set a reasonable per hour fee for Mobin’s deposition.  Defendant is ordered to provide notice of the Court’s ruling and file proof of service of such.