Judge: Serena R. Murillo, Case: BC717650, Date: 2022-09-09 Tentative Ruling

Case Number: BC717650    Hearing Date: September 9, 2022    Dept: 29

Darrell Daniels v. California Hospital Medical Center, et al. 

TENTATIVE 

Defendant Gudata S. Hinika M.D.’s motion for an order setting a reasonable expert fee for deposition is DENIED without prejudice.

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 

Defendant moves for an order setting the hourly rate for taking the deposition of Dr. Sepehr Lalezari, at a reasonable hourly rate.  Defendant argues that it is unreasonable for Dr. Lalezari to charge $1,950 an hour for remote depositions and $2,500 an hour if the deposition is in person. On or around July 11, 2022, counsel for defendant telephonically met and conferred with plaintiff’s counsel regarding the deposition fees of plaintiff’s retained expert, Sepehr Lalezari, M.D. Defendant objected to Dr. Lalezari’s fee of $2,500 per hour for in-person depositions and $1,950 per hour for remote depositions as excessive and impermissible. In an attempt to resolve the issue informally, defendant requested that plaintiff comply with Code of Civil Procedure Section 2034.470(b). Defense counsel also represented to plaintiff’s counsel that defendant is willing to pay Dr. Lalezari the same rate as defendant’s expert, Dr. Moses Fallas, who charges $1,000 per hour for deposition.  Defendant’s request went ignored.

Notwithstanding any merit the motion might have, it must be denied.  A motion brought pursuant to Code of Civil Procedure section 2034.470 must be served on the expert whose fee is sought to be set.  Code of Civil Procedure section 2034.470 (a) specifically states, “Notice of this motion shall also be given to the expert.”  No such notice was given here.   

Conclusion 

Accordingly, Defendant’s motion for an order setting the reasonable expert fee is DENIED without prejudice.

Moving party is ordered to give notice.