Case Number: BC640799 Hearing Date: November 27, 2018 Dept: 4

Motion to Set Compensation of Sonny J. Rubin, M.D., and Thomas Duddey, D.C., and for Sanctions in the Amount of $2,372.50

The court considered the moving, opposition, and reply papers.

Background

This is an action for motor vehicle negligence. Plaintiff Jordanne Augino (“Plaintiff”) filed the Complaint on November 15, 2016, alleging that Defendants Paul and Andrew Cowan negligently injured her on November 21, 2014.

Trial is set for April 23, 2019.

Discussion

Defendants request an order setting the compensation of Plaintiff’s experts Sonny J. Rubin, M.D. (“Rubin”) and Thomas Duddey, D.C. (“Duddey”) to $1,450.00 per hour and $500 per hour respectively.

“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 . . . .” (Code Civ. Proc. § 2034.430, subd. (b).) Thus an expert being deposed is entitled to his or her “reasonable and customary” fees.

“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.” (Code Civ. Proc. § 2034.470, subd. (a).) The motion must be accompanied by a meet and confer declaration, and during such conference the expert or the party must provde:

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, subd. (b)(1)–(3).)

In evaluating a motion under this section, the court must assess the “proof of the ordinary and customary fee actually charged and received by that expert for similar services provided outside the subject litigation.” (Code Civ. Proc. § 2034.470, subd. (c).) The expert must also provide, and the court must assess, evidence of the following:

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, subd. (d)(1)–(2).) The court may also consider fees for similar experts in the relevant community, and other factors deemed relevant. (Code Civ. Proc. § 2034.470, subd. (e).)

MEET AND CONFER

Plaintiff objects to this motion on the grounds that Defendants failed to meet and confer before filing it. (Opposition at p. 3.) The meet-and-confer process took place as follows.

Plaintiff served her expert designations on July 25, 2018, which contained the fee schedules for Duddey and Rubin. (Brief Decl. ¶¶ 6–7.) Plaintiff’s counsel left a voice message with Defendants’ counsel on August 30, 2018, raising objections to the fees, and then sent an email raising the same objections. (Hawkinson Decl. ¶ 10.) Plaintiff responded by email on September 4, 2018, asking for an opportunity to discuss the matter. (Brief Decl. ¶ 12.) Defendants responded by email on September 5, 2018, asking Plaintiff to discuss the matter with her experts. (Hawkinson Decl. ¶ 12.) On September 17, 2018, Defendants sent another email asking for the information required by Code of Civil Procedure § 2034.470, subd. (b) regarding expert fees. (Hawkinson Decl. ¶ 13.) Plaintiff responded on September 19, and was given until September 21, 2018 to provide the information. (Hawkinson Decl. ¶ 14.) Plaintiff provided information on September 21, 2018, regarding Rubin’s and Duddey’s fee schedules. (Hawkinson Decl. ¶ 15.) Defendants filed the present Motion on September 28, 2018.

The evidence here shows that the parties met and conferred regarding Defendants’ objections to the experts’ fees. Plaintiff’s objection here is that Defendants did not confer with Plaintiff regarding the quality of the evidence that Plaintiff provided on September 21, 2018. (Opposition at p. 5.) The court regards Defendants’ efforts as sufficient to bring the present motion.

REASONABLENESS OF RATES

Plaintiff’s expert witness declarations served with the Expert Witness Designation stated that Rubin’s hourly fee was $2,350.00, and that Duddey’s fee was $1,000. (Hawkinson Decl. ¶ 6.) Defendants ask that these fees be reduced to $1,450 per hour for Rubin and $500 per hour for Duddey. (Motion at p. 4.)

The basis for Defendants’ motion is as follows. Defendants’ counsel has taken Rubin’s deposition in many matters before the present litigation, and Rubin previously charged a deposition fee of $1,450. (Hawkinson Decl. ¶ 7.) Rubin only changed his deposition fee to $2,350.00 in June 2018, a $900 increase. (Hawkinson Decl. ¶ 8.) In response to Defendants’ meet-and-confer efforts, Plaintiff provided six checks and two sales receipts indicating that the fee had been charged, and Plaintiff’s counsel stated that the current fee had been demanded 15–20 times since June 2018, and had been received eight times. (Hawkinson Decl. ¶ 15.) Defendants contest whether the checks provided definitively indicate that the fee was paid for deposition testimony. (Motion at pp. 6–7.) Plaintiff responds that Rubin’s fees are justified by qualifications and experience as a double certified pain management specialist and anesthesiologist who has been practicing in California for ten years. (Opposition at p. 6.)

Defendants likewise object that the evidence provided for Duddey’s fees consisted of a hearsay statement from counsel that he had charged the $1,000 fee twice in two years. (Motion at pp. 7–8.) Plaintiff responds that Duddey’s fee is justified by his status as a chiropractor with 20 years of experience. (Opposition at p. 6.)

The statute providing for motions to set experts’ deposition fees places the onus upon the experts (or the parties who retain them) to provide the primary evidence for the court’s analysis. Before the motion, the expert must provide the other party with proof of the fee customarily charged by that expert, and the total number of times it has been demanded and received. (Code Civ. Proc. § 2034.470, subd. (b).) The expert or the designating party must also provide similar evidence to the court once the motion is filed. (Code Civ. Proc. § 2034.470, subd. (d).) These production requirements indicate that the onus is upon the expert or the designating party to provide evidence supporting the reasonableness of the fees charged.

Here, Rubin has provided a declaration stating that he has charged the $2,350 fee beginning in June 2018 because of the increased number of depositions at which he was required to attend, that the copies of checks provided are for his deposition testimony, and that the fee requested has been paid on every occasion on which he has been deposed in the last three years. (Rubin Decl. ¶¶ 6–9 (Opposition Exh. K.)) Duddey, however, has not provided a declaration supporting the reasonableness of the fees charged, or other evidence described in the operative statute. The only evidence concerning his fees is the statement of Plaintiff’s counsel that Duddey told them that he had charged the $1,000 fee in the last two years. (Brief Decl. ¶ 24.) Neither party has provided evidence of the going rate for such services for similar professionals in the relevant community.

The court concludes that Plaintiff has provided evidence supporting the adequacy of Rubin’s proposed $2,350.00 fee, given the checks and receipts produced to Defendants and Rubin’s own declaration. The Motion is therefore DENIED as to Rubin’s fee. However, Plaintiff has provided no similar evidence for Duddey. The Motion is therefore GRANTED as to Duddey, to set his fee at $500 per hour rather than the $1,000 originally noticed.

SANCTIONS

“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, subd. (g).)

Defendants ask for $2,372.50 in sanctions against Plaintiff, representing 12.5 hours of work at $185 per hour, plus a $60 filing fee. (Hawkinson Decl. ¶ 23.) Plaintiff asks for sanctions in the amount of $1,000 for four hours of work at $250 per hour. (Brief Decl. ¶ 33.)

Because the court has only granted Defendants’ motion in part, the court finds substantial justification against awarding sanctions to either party here.

Moving defendants are ordered to give notice of this ruling. IT IS SO ORDERED.

DATED: November 27, 2018

_____________________________

Christopher Lui
Judge of the Superior Court