Marsh v. Mountain Zephyr, Inc.

• Decision Date: 06 March 1996
• Docket Number: No. D023822,D023822
• Citation: 43 Cal.App.4th 289,50 Cal.Rptr.2d 493
• Parties: , 96 Cal. Daily Op. Serv. 1594, 96 Daily Journal D.A.R. 2605 M. Lou MARSH, Plaintiff, v. MOUNTAIN ZEPHYR, INC., etc., et al., Defendants, Cross-Defendants and Respondents. John C. Stevenson, Objector and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 493

50 Cal.Rptr.2d 493

43 Cal.App.4th 289, 96 Cal. Daily Op. Serv. 1594,

96 Daily Journal D.A.R. 2605

M. Lou MARSH, Plaintiff, v. MOUNTAIN ZEPHYR, INC., etc., et al., Defendants, Cross-Defendants and Respondents.

John C. Stevenson, Objector and Appellant.

No. D023822.

Court of Appeal, Fourth District, Division 1, California.

March 6, 1996.

Lindley, Lazar & Scales and Richard J. Pekin, Jr., San Diego, for Objector and Appellant.

Hillsinger & Costanzo and Foster Furcolo, Jr., San Diego, for Defendants and Respondents Mountain Zephyr, Inc. and Myron Crain.

Greco & Traficante and Peter J. Schulz, San Diego, for Cross-Defendant and Respondent Lifetime Showerpans.

McDONALD, Associate Justice.

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 SECTION 2034¹, subdivision (i) precludes the court from establishing the "reasonable" fee that Crain must pay for Stevenson's deposition testimony at an amount lower than his "customary" fee of $360 per hour. He further contends rule 1.5.6(b) of division II of the San Diego County Superior Court Rules ² was erroneously considered by the court and violated his constitutional due process and equal protection rights. We conclude Stevenson has standing to appeal and that the order is an appealable order. We affirm the trial court's order setting at $250 per hour Stevenson's deposition testimony fee payable by Crain.

I 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 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 motion asserting section 2034, subdivision (i) requires that Crain pay Stevenson his full fee of $360 per hour for deposition testimony. Pursuant to the provisions of section 2034, subdivision (i), Stevenson was given notice of the motion and he submitted to the court a declaration in opposition to the motion. Stevenson also appeared by counsel in opposition to the motion. In his declaration opposing the motion Stevenson stated he routinely charged $360 per hour for testimony in all cases coming into his office in 1993 and 1994 and had charged that fee on 124 separate occasions, including 86 depositions, 12 trials, 17 mediations and 9 arbitrations. Stevenson's declaration also stated he had charged his clients the same fee for his testimonial services.

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.

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 that a ruling of this nature will foster abuse by protracted depositions, the court feels that the use of protective orders, or even better, common sense by attorneys involved will resolve that problem." (Italics original.)

We denied Stevenson's petition for writ relief regarding the order. Stevenson, but not Marsh, then filed a notice of appeal.

II STEVENSON HAS STANDING TO APPEAL THE ORDER

We requested supplemental briefing from the parties to address the issue of whether Stevenson has standing to appeal the order. Standing to appeal is "jurisdictional and therefore cannot be waived." (Life v. County of Los Angeles (1990) 218 Cal.App.3d 1287, 1292, fn. 3, 267 Cal.Rptr. 557.)

Section 902 provides that "[a]ny party aggrieved may appeal in the cases prescribed 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, 267 Cal.Rptr. 557; 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, 97 Cal.Rptr. 385, 488 P.2d 953, citations and quotation marks omitted.) Thus, a basis for Stevenson's standing to appeal is that the order is binding on him and its injurious effect is immediate, pecuniary and substantial. (Leoke v. County of San Bernardino, supra, at p. 771, 57 Cal.Rptr. 770.)

                in this title."  (Italics added.)   Thus, to have standing to appeal, a person generally must be both a party of record and sufficiently "aggrieved" by the judgment or order.  (County of Alameda v. Carleson (1971) 5 Cal.3d 730, 736, 97 Cal.Rptr. 385, 488 P.2d 953.)   A person who initially is a nonparty but is aggrieved by a judgment or order may become a party of record and obtain a right to appeal by moving to vacate the judgment or order pursuant to section 663.  (Ibid.; Bates v. John Deere Co.  (1983) 148 Cal.App.3d 40, 53, 195 Cal.Rptr. 637.)   Stevenson concedes he is a nonparty to this action, and the record is devoid of any motion by him under section 663 to vacate the order in question
                

The record shows the order expressly granted Crain's motion and set Crain's liability at $250 per hour for Stevenson's deposition testimony. The order was binding not only on the parties of record, but also on Stevenson, by resolving the amount of Crain's liability for payment of Stevenson's deposition fees ³ under section 2034, subdivision (i). Furthermore, by setting Stevenson's deposition testimony fee at less than that sought, the injurious effect of the order on Stevenson was immediate, pecuniary and substantial. We note the court stated it was not ruling that Stevenson's charges to his client Marsh were unreasonable. The order did not limit or set the fees Stevenson could charge his client Marsh for his deposition testimony. By its terms, section 2034 does not preclude an expert witness from charging his or her own client, or prevent a party who engages an expert witness from paying the expert, the difference between the expert's customary testimonial fees and any limitation on a deposing party's liability for those fees imposed by a court under section 2034, subdivision (i)(4). Nevertheless, as between Crain and Stevenson, Stevenson became obligated to give his deposition testimony for a fee payable by Crain of less than he stated was his customary fee, which had an immediate, pecuniary and substantial injurious effect on Stevenson, and the order is res judicata on that issue.

It also appears that the procedure set forth in section 2034, subdivision (i) contemplates that the expert...