Judge: Serena R. Murillo, Case: 20STCV24629, Date: 2022-10-06 Tentative Ruling

Case Number: 20STCV24629    Hearing Date: October 6, 2022    Dept: 29

Vazgen Mikayelyan v. Iona Katerine Brockie 

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Motion for an Order Setting Reasonable Rate for Expert Witness Fees for Retained Expert Stepan Kasimian, M.D. and Request for Sanctions filed by Cross-Complainant Emma Gevorgyan

TENTATIVE 

Cross-Defendant Emma Gevorgyan’s Motion to Set a Reasonable Rate for Plaintiff’s Treating Physician Stepan Kasimian, M.D.’s Fees is DENIED. The Court orders that Dr. Kasimian may charge and receive the fee of $2,000 per hour for deposition.

Legal Standard 

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).) 

Discussion 

As an initial matter, Plaintiff argues his opposition was late because it incorrectly calendared the hearing date on this matter. “A trial court has broad discretion to overlook late-served papers and to resolve the matter on the merits.   (Gonzalez v. Santa Clara County Dept. of Social Services (2017) 9 Cal.App.5th 162, 168 [“(E)ven if the service had been untimely, the trial court was vested with discretion to overlook the defect”]; see also Bozzi v. Nordstrom, Inc.  (2010) 186 Cal.App.4th 755, 765 [“A trial court has broad discretion under rule 3.1300(d) of the Rules of Court to refuse to consider papers served and filed beyond the deadline without a prior court order finding good cause for late submission.”].) The court exercises its discretion and considers the merits of the opposition. 

Cross-Defendant moves for a court order setting the reasonable compensation of Stepan Kasimian, M.D. to sit for a deposition at $1,200 on grounds that the amount Dr. Kasimian charges for a deposition, $2,000, is unreasonable. 

Cross-Defendant has demonstrated that she contacted Plaintiff, and Dr. Kasimian’s office, to discuss Dr. Kasimian’s rates, but neither Plaintiff, nor Dr. Kasimian, has responded. (Soleimani Decl., Exh. A.) Cross-Defendant has advanced fee schedules from one orthopedic spine surgeon, and five anesthesiologists specializing in pain management, whose deposition testimony rates range from $850per hour to $1,000 per hour. (Id., Exhs. B through F.)

In opposition, Plaintiff advances evidence that Dr. Kasimian has received his current fee in forty-one matters since January 2021.

Thus, the Court finds that Cross-Defendant has failed to show that Dr. Kasimian’s fees for deposition are unreasonable as Dr. Kasimian has received the presently demanded fee in forty-one cases since January of 2021. As such, there is a “frequency and regularity” in which the presently demanded fee has been requested and received by Dr. Kasimian.

Sanctions

CCP Section 2034.470 (g) states, 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. (CCP § 2034.470 (g).)

The Court finds that sanctions are not warranted as both parties have acted with substantial justification.

Conclusion 

Cross-Defendant’s Motion for Setting a Reasonable Rate for Plaintiff’s Treating Physician Stepan Kasimian, M.D.’s Fees is DENIED. The Court orders that Dr. Kasimian may charge and receive the fee of $2,000 per hour for deposition.

Moving party is ordered to give notice.