SECTIONS 2034.410-2034.470 - California Statutes

CODE OF CIVIL PROCEDURE

SECTION 2034.410-2034.470

2034.410. On receipt of an expert witness list from a party, any
other party may take the deposition of any person on the list. The
procedures for taking oral and written depositions set forth in
Chapters 9 (commencing with Section 2025.010), 10 (commencing with
Section 2026.010), and 11 (commencing with Section 2028.010) apply to
a deposition of a listed trial expert witness except as provided in
this article.

2034.420. The deposition of any expert described in subdivision (b)
of Section 2034.210 shall be taken at a place that is within 75
miles of the courthouse where the action is pending. On motion for a
protective order by the party designating an expert witness, and on a
showing of exceptional hardship, the court may order that the
deposition be taken at a more distant place from the courthouse.

2034.430. (a) Except as provided in subdivision (f), this section
applies to an expert witness, other than a party or an employee of a
party, who is any of the following:
(1) An expert described in subdivision (b) of Section 2034.210.
(2) A treating physician and surgeon or other treating health care
practitioner who is to be asked during the deposition to express
opinion testimony, including opinion or factual testimony regarding
the past or present diagnosis or prognosis made by the practitioner
or the reasons for a particular treatment decision made by the
practitioner, but not including testimony requiring only the reading
of words and symbols contained in the relevant medical record or, if
those words and symbols are not legible to the deponent, the
approximation by the deponent of what those words or symbols are.
(3) An architect, professional engineer, or licensed land surveyor
who was involved with the original project design or survey for
which that person is asked to express an opinion within the person's
expertise and relevant to the action or proceeding.
(b) 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 from the
time noticed in the deposition subpoena, or from the time of the
arrival of the expert witness should that time be later than the time
noticed in the deposition subpoena, until the time the expert
witness is dismissed from the deposition, regardless of whether the
expert is actually deposed by any party attending the deposition.
(c) If any counsel representing the expert or a nonnoticing party
is late to the deposition, the expert's reasonable and customary
hourly or daily fee for the time period determined from the time
noticed in the deposition subpoena until the counsel's late arrival,
shall be paid by that tardy counsel.
(d) Notwithstanding subdivision (c), the hourly or daily fee
charged to the tardy counsel shall not exceed the fee charged to the
party who retained the expert, except where the expert donated
services to a charitable or other nonprofit organization.
(e) A daily fee shall only be charged for a full day of attendance
at a deposition or where the expert was required by the deposing
party to be available for a full day and the expert necessarily had
to forgo all business that the expert would otherwise have conducted
that day but for the request that the expert be available all day for
the scheduled deposition.
(f) In a worker's compensation case arising under Division 4
(commencing with Section 3201) or Division 4.5 (commencing with
Section 6100) of the Labor Code, a party desiring to depose any
expert on another party's expert witness list shall pay the fee under
this section.

2034.440. The party designating an expert is responsible for any
fee charged by the expert for preparing for a deposition and for
traveling to the place of the deposition, as well as for any travel
expenses of the expert.

2034.450. (a) The party taking the deposition of an expert witness
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.
(b) The expert's fee shall be delivered to the attorney for the
party designating the expert.
(c) 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.

2034.460. (a) The service of a proper deposition notice accompanied
by the tender of the expert witness fee described in Section
2034.430 is effective to require the party employing or retaining the
expert to produce the expert for the deposition.
(b) If the party noticing the deposition fails to tender the
expert's fee under Section 2034.430, the expert shall not be deposed
at that time unless the parties stipulate otherwise.

2034.470. (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.
(f) 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.
(g) 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.