John C. Stevenson (Stevenson) appeals a trial court order granting a motion by Mountain Zephyr, Inc., doing business as Crain Co., and Myron Crain (together Crain) to set the hourly fee Crain must pay to Stevenson for Stevenson's deposition testimony as an expert witness for an opposing party. Stevenson was designated as an expert witness by M. Lou Marsh (Marsh) in Marsh's construction defect action against Crain and others. Stevenson contends Code of Civil Procedure
FACTUAL AND PROCEDURAL BACKGROUND
On July 5, 1994, Marsh filed an action for construction defect against Crain and others alleging breach of warranty, strict liability, negligence and deceit in the construction of her home. Marsh designated architect Stevenson as an expert witness to testify on Marsh's behalf regarding the nature and extent of the construction defects, the proper methods of repair, the cost of design work for the repairs and the standard of care employed in the design of the home. A declaration by Marsh's counsel stated that Stevenson's "hourly fee for providing deposition testimony is $250.00 per hour." However, Marsh's counsel subsequently informed Crain's counsel that Stevenson's hourly fee for depositions was $360 per hour. Crain's counsel asserted that rule 1.5.6(b) set the fee he was required to pay for deposing Stevenson at $200 per hour. Although the parties could not agree on the hourly fee due Stevenson, on February 28, 1995, Crain proceeded with Stevenson's deposition paying him a fee of $200 per hour with the understanding Crain would later file a motion pursuant to section 2034, subdivision (i) for an order setting the amount of Stevenson's deposition compensation for which Crain is responsible.
On March 7, 1995, Crain moved to set Stevenson's deposition fees, citing the amount of $200 per hour set forth in rule 1.5.6(b). Marsh opposed the
Following a hearing, the court on June 27, 1995, issued its order granting Crain's motion and stated in part:
"The court notes that local rule 1.5.6(b) does not create a cap for expert fees but merely clarifies the policy of this court in evaluating the reasonableness of expert deposition fees. The local rule is made within the guidelines of [section] 2034(i)(4) which states that in addition to other factors, 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....' The policy of this court is to consider the ordinary and customary fees charged by similar experts, which the court has found ... in the case of architects or engineers to be $200 per hour. However, considering all of the factors in [section] 2034(i)(4), the court may certainly permit a higher fee. After considering all of the factors, this court deems the reasonable fee for the deposition testimony of Mr. Stevenson to be $250 per hour.
"The court is cognizant of the efficacy of the general observations of counsel for Mr. Stevenson concerning market values and free enterprise. However, the court also notes that opposing counsel can be compelled to pay exorbitant expert fees to depose a person that the defendant is compelled to question in order to protect their client's interest. That factor is equally offensive as the evil perceived by plaintiff's counsel concerning protracting deposition[s] to run up costs.
".... .... .... .... .... .... ....
"In conclusion, the court wishes to make clear that its ruling is not to be construed as a holding that Mr. Stevenson's charges are unreasonable as to his clients. Rather, it is limited to what must be paid by parties who did not hire him and who are compelled to depose him. Insofar as plaintiff's concern
STEVENSON HAS STANDING TO APPEAL THE ORDER
One exception to the "party of record" requirement exists in cases where a judgment or order has a res judicata effect on a nonparty. "A person who would be bound by the doctrine of res judicata, whether or not a party of record, is ... [entitled] to appeal." (Leoke v. County of San Bernardino (1967) 249 Cal.App.2d 767, 771 [57 Cal.Rptr. 770]; see Life v. County of Los Angeles, supra, 218 Cal. App.3d at p. 1292; Slaughter v. Edwards (1970) 11 Cal.App.3d 285, 291 [90 Cal.Rptr. 144].) To be sufficiently "aggrieved" to qualify for appeal standing, a person's rights or interests must be injuriously affected by the judgment or order, and those rights or interests "`"must be immediate, pecuniary, and substantial and not nominal or a remote consequence of the judgment ..."'..." or order. (County of Alameda v. Carleson, supra, 5 Cal.3d at p. 737, citations omitted.)
It also appears that the procedure set forth in section 2034, subdivision (i) contemplates that the expert witness would have standing to appeal the order setting the expert witness deposition fee payable by the other party. Upon challenge to the fee, the expert witness must be given notice of the motion and the expert witness is entitled to provide the information required in an attempt at informal resolution of and in opposition to the motion, whether or not the party designating the expert witness chooses to do so.
We conclude that Stevenson has standing to appeal the order setting his deposition testimony fee payable by Crain.
THE ORDER IS AN APPEALABLE ORDER
1. The order is collateral to the subject matter of the litigation,
2. The order is final as to the collateral matter, and
In this case the order from which the appeal is taken is clearly collateral to the subject matter of the litigation and is final as to the collateral matter. It is less clear that the order satisfies the third element of the Sjoberg test. The order does not direct payment of money by the appellant and does not specifically direct the performance of an act by or against the appellant. Although there appears to be a division of opinion and split of authority on the necessity of complying with the third element of the Sjoberg test (compare Samuel v. Stevedoring Services (1994) 24 Cal.App.4th 414, 417-418 [29 Cal.Rptr.2d 420]; and International Typographical Union etc. Pension Plan v. Ad Compositors, Inc. (1983) 142 Cal.App.3d 733, 735 [191 Cal.Rptr. 227] with Henneberque v. City of Culver City, supra, 172 Cal. App.3d at p. 841, fn. 3 and cases cited; and Trimble v. Steinfeldt (1986) 178 Cal.App.3d 646, 649, 650 [224 Cal.Rptr. 195]), we are of the opinion that the third element effectively has been satisfied in this case. Had Stevenson refused to proceed with his deposition upon nonpayment of his requested customary fee and the matter then been submitted to the trial court in accordance with section 2034, subdivision (i), the trial court in connection with the fee-setting motion could have ordered sanctions against Stevenson (§ 2020), including a contempt of court sanction or a monetary sanction (§§ 2023, 2034, subd. (i)). The sanction and fee-setting order could directly order the payment of money or performance of an act by Stevenson, which would satisfy the third element of the Sjoberg test and therefore have been appealable at that time.
THE COURT PROPERLY SET CRAIN'S LIABILITY FOR STEVENSON'S DEPOSITION FEES PURSUANT TO SECTION 2034
A. Section 2034
Section 2034, subdivision (i)(2) provides in part: "The party taking the deposition shall either accompany the service of the deposition notice with a tender of the expert's fee based on the anticipated length of the deposition or tender that fee at the commencement of the deposition. The expert's fee shall be delivered to the attorney for the party designating the expert. If the deposition of the expert takes longer than anticipated, the party giving notice of the deposition shall pay the balance of the expert's fee within five days of receipt of an itemized statement from the expert. The party designating the expert is responsible for any fee charged by the expert for preparing for the deposition and for traveling to the place of the deposition, as well as for any travel expenses of the expert." Thus, the procedure established by section 2034, subdivision (i)(2) is for the deposing party to pay to the other party's attorney the "reasonable and customary" hourly or daily fee of the other party's expert for deposition testimony.
In the event the deposing party believes the expert's hourly or daily fee is unreasonable, section 2034, subdivision (i)(4) provides a mechanism for the
"If a party desiring to take the deposition of an expert witness under this subdivision 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....
"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 upon (A) proof of the ordinary and customary fee actually charged and received by that expert for similar services provided outside the subject litigation, (B) the total number of times the presently demanded fee has ever been charged and received by that expert, and (C) 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. Provisions (B) and (C) shall apply to actions filed after January 1, 1994. 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.
"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." (Italics added.)
As shown by the above italicized language, a court may consider the fees usually charged by similar experts for testimonial services and any other factors the court deems appropriate in establishing the "reasonable" fee a deposing party must pay for deposing another party's expert witness.
However, nothing in section 2034, subdivision (i)(2) or subdivision (i)(4) provides that a court's determination of the "reasonable" fee a deposing party must pay for deposing an expert witness precludes that expert witness from charging or receiving from his or her client any balance or "unreasonable" portion of his or her fee. On the contrary, we conclude section 2034 transfers to the deposing party only those fees of the expert to the extent they are "reasonable." Any fees charged by the expert in excess of the "reasonable" fee determined by the court remain a matter of negotiation and agreement between the expert witness and the party that designated the expert witness. We note section 2034, subdivision (i)(4) already expressly provides for the designating party to pay the expert witness's fees for preparing for and traveling to the deposition, as well as the travel expenses
B. Rule 1.5.6(b)
In this case Crain moved to limit his liability for Stevenson's fees for his deposition testimony. Crain cited rule 1.5.6(b) to limit his responsibility for Stevenson's fees to $200 per hour. Rule 1.5.6(b) reads in part:
"Excessive expert fees are limiting access to the Courts and undermining the quality of justice. It is the policy of this Court that in addition to the criteria required to be considered in deciding motions brought pursuant to [section] 2034(i)(4), this Court will consider the ordinary and customary fees charged by similar experts for similar services within the relevant community. Based on the collective experience of this Court, the following hourly rates appear to be representative of the ordinary and customary fees charged for expert testimony in this community:
"... [$]200 engineers, architects...."
Contrary to Stevenson's assertion, neither section 2034 nor rule 1.5.6(b) establishes a "limit" on an expert witness's fees based on what fees similar experts customarily charge. Rather, the level of fees customarily charged by similar experts is merely one factor a court may consider in determining the "reasonable" hourly or daily fee a deposing party must pay for deposing another party's expert witness. Here the court recognized that rule 1.5.6(b) determined the customary hourly fee charged by local architects for their depositions as expert witnesses to be $200 per hour. After considering this information along with the other evidence submitted, the court determined Stevenson's "reasonable" hourly fee for deposition testimony was $250 per hour. Obviously, the court did not interpret rule 1.5.6(b) as placing a $200 per hour "limit" on the fees architects can reasonably charge for their deposition testimony because it set the rate for Stevenson higher than the customary rate specified in rule 1.5.6(b). Furthermore, the court clearly did not indicate that rule 1.5.6(b) in any way limited the amount of the testimonial fees architects could charge their clients.
The fundamental premise of Stevenson's challenge to rule 1.5.6(b) is the assumption that the rule determines the compensation a private person, in this case an architect, may charge and receive for his services. Because the premise is incorrect, the challenge is not well taken. Rule 1.5.6(b) does not purport to limit fees which may be charged by expert witnesses; it only sets forth fees which "appear to be representative of the ordinary and customary fees charged for expert testimony in this community [,]" which is one of the factors to be considered in a section 2034, subdivision (i)(4) fee determination. This factor is considered not for the purpose of determining what the expert witness may charge but for the purpose of determining what the opposing party must pay for the deposition testimony of the expert witness. Absent the requirements of section 2034, subdivision (i) the deposing party would not be required to pay any deposition testimony fee to an expert witness for the opposing party; the expert witness would charge his client for his fees. The requirement imposed by section 2034, subdivision (i), implemented in part by rule 1.5.6(b), which requires the deposing party to pay some of the fees of the expert witness for the opposing party, can therefore be considered a partial relief to the designating party of the deposition costs of the party's expert witness. Viewed as part of a cost-sharing arrangement rather than a maximum-fee-schedule directive, rule 1.5.6(b) does not infringe on any constitutional rights of the expert witness.
We conclude rule 1.5.6(b) is a valid local court rule
C. Discretion of Trial Court
Although Stevenson argues the expert witness deposition fee set by the court in accordance with section 2034, subdivision (i)(4) must be supported by substantial evidence, we view the determination as being within the sound discretion of the trial court. Section 2034, subdivision (i) does not directly state that the fee determination is discretionary or must be supported by substantial evidence. However, we note that section 2034, subdivision (i)(4) specifically permits the trial court to consider "any other factors the court deems necessary or appropriate to make its determinations." Clearly, it is within the trial court's discretion to determine which "other factors" it will consider. If the other factors to be considered are within the trial court's discretion, then it follows that the fee determination itself must be within the trial court's discretion.
Further, in other but similar contexts in which the court is required to determine the reasonableness of fees to be awarded, the determination is usually considered to be within the discretion of the trial court. For example, when reasonable attorney fees may be awarded to a party, either by agreement or by statute, the amount of the award is generally held to be within the sound discretion of the trial court. (See County of Kern v. Ginn (1983) 146 Cal.App.3d 1107, 1114-1115 [194 Cal.Rptr. 512]; Melnyk v. Robledo (1976)
We doubt that "reasonableness" of an expert witness's hourly fee for purposes of section 2034 means whatever fee that expert "customarily" charges. If an expert is able "customarily" to charge a fee of $1,500 per hour to his or her clients, does this mean that this fee is conclusively deemed "reasonable" under section 2034, subdivision (i) and opposing parties must pay that fee to depose the expert? We think not. Rather, the expert's "customary" hourly fee (e.g., $360 or $1,500 per hour) for deposition testimony is merely one factor in determining what a "reasonable" fee is under section 2034, subdivision (i). That determination is within the sound discretion of the trial court. Stevenson fails to show that the trial court abused its discretion in this case.
The order is affirmed.
Kremer, P.J., and Haller, J., concurred.
"... Notice of this motion shall also be given to the expert. In any ... attempt at an informal resolution either the party or the expert shall provide the other with ... [information].
"In addition to any 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 upon ... [certain information]."