Filed 7/22/14 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT DIVISION THREE

JOAQUIN OCHOA et al., Plaintiffs and Appellants,

v. JESUS FELIPE DORADO et al., Defendants and Appellants. B240595 (Los Angeles County Super. Ct. No. VC056716)

APPEALS from an order of the Supe rior Court of Los Angeles County, John A. Torribio, Judge. Appeals dismissed in part, and order reversed in part with directions. Mgdesyan Law Firm, George G. Mg desyan; The Ehrlich Law Firm and Jeffrey Isaac Ehrlich for Pl aintiffs and Appellants. Brown, Brown & Klass, Delos E. Brown, Robert L. Kaufman and John J. Stumreiter for Defendants and Appellants.

___________________ ____________________2 Joaquin Ochoa was driving and Imelda Moreno was a passenger in a big-rig tractor without a trailer when the vehicle was struck from behind by a tractor-trailer being driven by Jesus Felipe Dorado, a driver for Trimac Transportation Services Western, Inc. (Trimac). Dorado and Tr imac conceded liability, and a jury awarded damages to both plaintiffs. The trial c ourt ordered a partial new trial on certain economic damages and struck the awards of noneconomic damages. Plaintiffs appeal those rulings. Defendants also appeal, challenging the denial of their motion for judgment notwithstanding the ve rdict (JNOV) and the denial of their motion in limine. Defendants’ new trial and JNOV motions were premature because they were filed before the case was fully decided. Bo th the motions and th e order ruling on the motions are void and of no effect. We ther efore will reverse the order as to those rulings. In addition the order striking the awards of noneconomic damages is nonappealable, and Defendants’ appeal from th e judgment is of no effect and must be dismissed because there is no judgment. We also will address certain legal ques tions that are likely to arise on remand concerning damages for past medical expenses . We conclude that (1) unpaid medical bills are not evidence of the r easonable value of the services provided and (2) no expert witness declaration is required for a trea ting physician offering an opinion based on facts acquired in the physician-patient rela tionship or otherwise acquired independently of the litigation, including, to the extent it is otherwise admiss ible, an opinion on reasonable value.3 FACTUAL AND PROCEDURAL BACKGROUND
1. Factual Background Plaintiffs were stopped in traffic on the I-710 freeway on Ju ly 10, 2008, when Dorado rear-ended them. They were not hauling a tractor at the time, but were taking the truck in for service and driving to the office to drop off some papers. Dorado did not notice that the traffic in front of him ha d stopped until it was too late for him to stop safely. He applied the brak es, but the force of the collis ion pushed Plaintiffs’ truck forward about 18 feet, striking tractor in fro nt. Plaintiffs were taken to a hospital
emergency room. Plaintiffs were living together at th e time of the collision and are now married. 1 Moreno owned the truck in which they were riding and hired Ochoa as a driver. Moreno provided trucking services as an i ndependent contractor under a contract with Xtra Mile Transport, Inc. Plaintiffs were treated for back pain af ter the collision, firs t by a chiropractor and later an orthopedic surgeo n, Dr. Michael Schiffman. Ochoa continued to drive professionally, but with pain. He passe d a federal trucker’s medical exam in August 2010. He underwent ba ck surgery in February 2011. The surgery alleviated but did not eliminate the pain. Ochoa has not worked since the surgery.

1 Moreno testified at trial that her name was Imelda Moreno. For the sake of clarity, we will refer to her as Moreno, although the parties and the trial court sometimes referred to her as Mrs. Ochoa. In this effort to avoid confusion, we mean no disrespect to either plaintiff.4 Moreno suffered incapacitating back pa in after the collision and experienced no significant improvement after two years of tr eatment. She underwent back surgery in early 2011.
2. Pretrial Proceedings Plaintiffs filed a complain t in July 2010 alleging co unts against Defendants for negligence and loss of consortium. Plainti ffs named numerous tr eating physicians as expert witnesses in their expert witness de signation. They designated Joyce Pickersgill as a retained expert (Code Ci v. Proc., § 2034.210, subd. (b)) 2 on the subject of economic damages, but they designated no re tained expert to testify specifically on the reasonableness of their medical expenses. Defendants filed a motion in limine No. 1 to exclude testimony by Plaintiffs’ nonretained treating physicians on any expert opinions that were not formed at the time of and for purposes of treatment, but instead were formed for purp oses of litigation. Defendants argued that Plaintiffs had lis ted 25 individual, nonretained treating physicians or other health care providers in their expert witness designation and stated in the designation that each would testify on “plaintiff’s condition, diagnosis, prognosis and related issues.” Defendants argued that this description “does not include opinions on the reasonable value of medical services or the non-medical causation issues relating to the injuries,” and that th e treating physicians for whom no expert witness declaration was provided should be precluded from testifying on such matters.

2 All statutory references are to the Code of Civil Procedure unless stated otherwise.5 Defendants also filed a motion in limine No. 5 to exclude any evidence of the reasonable amount of Plaintiffs’ medical expe nses, arguing that Plaintiffs’ failure to produce such evidence in response to discovery and failure to designate an expert witness to testify on the reasonableness of their medical expenses precluded the presentation of such evidence at trial. Defendants cited Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.th 541 ( Howell ) for the proposition that a plaintiff can recover no more than the reasonable value of the medical services provided. 3 The trial court granted Defendants’ motions in limine Nos. 1 and 5 in part, ruling that Plaintiffs’ treating physic ians not designated as retained experts could testify only on their medical services provided, their me dical diagnoses, and the fees charged for their services. The court ruled that Plainti ffs’ nonretained treating physicians could not testify on other matters such as whether thei r fees represented the reasonable value of the services provided. Th e court later modified its ruling by deciding that Dr. Schiffman could also testif y on his expert opinion as to legal causation. The court found that Dr. Schiffman had acted as a treati ng physician at all times and did not act as an expert retained for purposes of litigation. The court also reaffirmed its ruling that Dr. Schiffman could not testify on the reas onable value of the services provided “because that’s above and beyond his responsibilities as a treating physician.”

3 The trial court and counsel sometimes referred to Defendants’ motion in limine No. 5 as “the Howell motion.”6 Defendants filed a motion in limine No. 6 to exclude any testimony by Pickersgill. They argued th at Plaintiffs had designated Pickersgill as an expert who would testify on economic damages, but th ey had unreasonably failed to make her available for deposition (§ 2 034.300, subd. (d)). The trial court ordered that she be made available for depositio n and denied the motion. Defendants filed a motion in limine No. 9 to exclude any evidence of or claim for noneconomic damages, arguing that Civil Co de section 3333.4 pr ecluded any recovery of noneconomic damages because Plaintiffs we re uninsured at the time of the collision. Defendants presented evidence th at the liability insurance policy that Plaintiffs had identified in discovery as applicable was ca nceled before the collision. Plaintiffs opposed the motion and presented evidence of a commercial lines insurance policy issued by Williamsburg National Insura nce Company (Williamsburg) identifying Andres Marroquin, dba Xtra Mile Transport, as the named insured. The policy period included the date of the collision, and the policy identified by vehicle identification number the truck that Ochoa was driving at the time and listed Ochoa as a driver. The trial court deferred ru ling on the motion.
3. Trial and Verdict A jury trial commenced in November 2011. Defendants objected at trial to questioning of Dr. Schiffman on the reasona bleness of the amounts billed for medical treatment that he provided. The trial court sustained the objection, “based on the motion in limine.” Defendants then s tipulated to the amounts billed for Plaintiffs’ past medical treatment. Plaintiffs presente d no testimony at trial on the reasonableness of their past7 medical expenses. The court admitted eviden ce of the amounts of Plaintiffs’ medical bills at the conclusion of trial. Plaintiffs presented expert testimony by Gene Bruno, a reha bilitation consultant, on the current cost of future me dical care and other matters. Bruno testified on the cost of recommended future medical visits, stat ing, for example, with respect to an orthopedist, “One visit a month at $150 a vis it.” He testified that medication would cost from $4,564 to $4,785 per year, and also itemized other future medical costs. Pickersgill projected future increases in the costs stated by Bruno, estimated Plaintiffs’ life expectancies, and calculated th e present value of the stated future medical expenses. She also testif ied on Plaintiffs’ lost future earning capacities. The jury returned a sp ecial verdict on December 6, 2011, finding that Defendants’ negligence was a substantial factor in causing Plaintiffs harm. It found that Ochoa had suffered $345,539 in damages for pa st medical expenses and $26,000 in past noneconomic damages, and that he would su ffer $200,000 in damages for lost future earning capacity, $125,000 in damages for fu ture medical expens es, and $26,000 in future noneconomic damages. The jury found that Moreno had suffered $465,536 in damages for past medical expenses and $35,0 00 in past noneconomic damages, and that she would suffer $200,000 in damages for lost future ea rning capacity, $145,000 in damages for future medical expenses, $40, 800 in damages for future household services, and $36,000 in future noneconomic damages.
The trial court noted that it had deferre d ruling on Defendants’ motion in limine No. 9 to exclude any evidence of or claim for noneconomic damages. The court also8 stated that it had deferred ruling on “the Howell motion.” The court nonetheless ordered Plaintiffs to prepare a proposed judgment, but Plain tiffs failed to do so, and no judgment was entered.
4. Posttrial Motions Defendants filed a motion for JNOV on D ecember 19, 2011, arguing that there was no evidence to support any item of damages awarded by the jury. They argued with respect to past medical expenses that Pl aintiffs’ medical bills were not evidence of the reasonable value of the services provided, and that Plaintiffs had failed to prove the reasonable value of past medi cal services and therefore we re entitled to no damages for past medical expenses. In addition, defendan ts argued that Plainti ffs had failed to prove the reasonable value of future medical se rvices and therefore were entitled to no damages for future medical expenses. Defendants further filed a notice of intention to move for a new trial on December 19, 2011, on gr ounds of insufficiency of the evidence to support the verdict, excessive damages, error in law, and other grounds. In their memorandum supporting the motion, they challenged only the damages fo r lost future earning capacity and future household expenses, a nd stated that other items of damages were addressed in other motions and were not addressed in the new trial motion. Defendants also moved to strike the aw ards of noneconomic damages based on Civil Code section 3333.4, essentially renewi ng their motion in limine No. 9. The trial court allowed Plaintiffs to present testim ony by an insurance agent, Oscar Cortez, who was employed by the insurance broker for Marro quin, dba Xtra Mile Transport. Cortez9 testified in February 2012 that the truck that Ochoa was driving on the date of the collision was listed on the policy and was insu red at that time and that Ochoa was listed on the policy as a driver. The court did not fi nd that Cortez was qualified to testify as an expert, and Cortez declined to opine as to whether the policy provided coverage in these circumstances. The trial court initially heard the posttria l motions on January 20, 2012. On that date, the court continued the hearing to Febr uary 10, 2012, for additional argument and testimony by Cortez. 4 On February 10, 2012, the court continued the hearing to February 23, 2012. The court conducted a he aring on February 23, 2012, and took the matters under submission. The trial court filed an order ruling on the posttrial motions on March 8, 2012. It denied the motion for JNOV, stating that Pl aintiffs had suffered damages and the only question was the proper calculation of damage s, which would be a ddressed in the new trial motion. The order initially stated that the new trial motion was granted as to “1. The medical damages. [¶] 2. Lost earnings of Mr. Ochoa [¶] 3. Household expenses awarded to Mrs. Ochoa.” After explaining the reasons for granting the motion, the

4 The trial court stated at the hearing on January 20, 2012, that its tentative ruling on “the Howell issue” was to order a new trial on the reasonable value of the medical services provided. The court also stated at the hearing that the 60-day period to rule on the new trial motion had not yet started to run because no judgment had been entered and no notice of entry of ju dgment had been served. Defendants’ counsel agreed.10 order concluded, “On the above grounds, a ne w trial is granted as to medical damages, lost earnings damages and ho usehold expenses damages.” The order explained that there was “no evidence [of the] ‘reasonable value’ of the medical services provided,” and that th e medical bills were not evidence of the reasonableness of the amounts charged. It st ated that Plaintiffs clearly had incurred medical expenses and that th e only question was the reasonable value of the services provided. The trial court concluded, “Thus a new trial on the reasonable value of the services provided is in order.” 5 The order also explained that the ear nings of the averag e worker were an “improper basis” for an award of damages for “future lost earnings” and that such damages must be based on the plai ntiff’s own “work history,” citing Shaw v. Southern Pacific R. R. Co. (1910) 157 Cal. 240. It also stated that the federal trucker’s medical exam “established that [Ochoa ] had no orthopedic, neurological or psychological hist ory that would impair his truck driving ability,” so his damages were “excessive as a matter of law.” The order st ated further that Moreno had suffered no “economic damages as a dispatch er” because this same evidence showed that she could send Ochoa out on jobs. 6

5 Although the order referred to “[t]he medical expenses” ge nerally and did not expressly distinguish past medical expenses from future medical expenses, the references to medical bills and “services pr ovided” suggest that the order was limited to past medical expenses.

6 Plaintiffs did not seek and the jury di d not award any damages for lost future earnings. The words “future lost earnings” a nd “lost earnings” in the order apparently referred to the damages awarded fo r lost future earning capacity.11 The order stated as to future househol d expenses that there was no testimony as to how much household work Moreno perform ed before her injury and no testimony that she was unable to perform household wo rk in the future, so there was no factual basis for the expert opinion on da mages for future household expenses. The trial court also granted Defendan ts’ motion to strike the awards of noneconomic damages on two independent bases. First, the court concluded that the Williamsburg policy provided covera ge for Plaintiffs only if they had their own liability insurance, and they had none, so they were uninsured an d therefore were precluded from recovering noneconomic damages pursuant to Civil Code secti on 3333.4. Second, the court stated that apart from that po licy condition, the Willia msburg policy provided coverage for Plaintiffs only wh ile they were working for Xtra Mile Transport, and they were not working for Xtra Mile Tran sport at the time of the collision. 5. Appeals Plaintiffs timely appealed the order gr anting a new trial and also appealed the order striking their awards of noneconomic damages. Defendants timely appealed the denial of their motion for JNOV and also appealed “the judgment.” CONTENTIONS Plaintiffs challenge the order granting a partial new trial on damages for past medical expenses and Ochoa’s lost future ea rning capacity and striking the awards of noneconomic damages. 7 They contend (1) their unpaid me dical bills are evidence of the

7 Plaintiffs expressly do not challenge the order granting a new trial on damages for Moreno’s lost future earning cap acity and future household expenses.12 reasonableness of their past medical expens es, and the trial court erred by concluding otherwise; (2) the trial court erred by exclud ing testimony by thei r treating physicians on the reasonable value of the services provid ed; (3) neither the ab sence of evidence of prior earnings nor the fact that Ochoa pa ssed the federal trucker’s medical exam justifies a new trial on damages for lost future earning ca pacity; and (4) the Williamsburg policy provided cove rage, so Plaintiffs were insured and are entitled to recover noneconomic damages. Defendants challenge the order denyi ng their motion for JNOV and the order denying their motion in limine to exclude Pi ckersgill’s testimony. They contend (1) the trial court found a complete absence of evid ence to support the verdict as to damages for past and future medical expenses, lost fu ture earning capacity, and future household expenses, so they are entitled to a JNOV rather than a new trial; and (2) the denial of their motion in limine to exclud e Pickering’s testimony was error. DISCUSSION
1. The New Trial and JNOV Motions Were Premature and Are Thus Void Section 659, subdivision (a) states that a party moving for a new trial must file a notice of intention to move for a new tr ial “either: [¶] (1) After the decision is rendered and before the entry of judgment.” [o r] “[¶] (2) Within 15 days of the date of mailing notice of entry of judgment by the cl erk of the court pursuant to Section 664.5, or service upon him or her by any party of written notice of en try of judgment, or within 180 days after the entry of judgment, whicheve r is earliest . . . . ” A notice of intention13 to move for a new trial is deemed a ne w trial motion on the stated grounds. ( Id., subd. (b).) Section 629 states that a JNOV motion must be made within the time period specified in section 659 for filing a notice of intention to move for a new trial. A notice of intention filed before the tim e permitted by statute is premature, void, and of no effect. ( Fong Chuck v. Chin Po Foon (1947) 29 Cal.2d 552, 553-554; Tabor v. Superior Court (1946) 28 Cal.2d 505, 507-508.) A trial court has no jurisdiction to rule on a premature new trial motion, so a ny trial court proceedi ngs or order on such a premature motion likewise are void and of no effect. ( Fong Chuck , supra , at pp. 553-554; Tabor , supra , at pp. 507-508.) A premat ure JNOV motion and any ruling on the motion also are void and ineffective. ( Meyser v. American Building Maintenance, Inc. (1978) 85 Cal.Ap p.3d 933, 937 ( Meyser ).) “The concept of prematurity as applied to new trial proceedi ngs is based on two major concepts—one is that to vest the trial court with the jurisdiction to pass on a motion for a new trial a timely notice must be made [citation]. The other is that the motion cannot be made until there is a decisi on in the case. The statutory scheme on new trials makes it quite evident that a new trial is not proper until the action has been prosecuted to a point where it can be said to be complete. [Citations.] A new trial is defined as ‘a re-examination of an issue of fact in the same court after a trial and decision by a jury, court, or referee.’ (Code Civ. Proc., § 656.) Under section 657 of the Code of Civil Procedure a ‘verdict ma y be vacated and any other decision may be modified or vacated’ upon application for a new trial made by any ‘party aggrieved.’ Until there has been a decision there is no aggr ieved party. [Citati ons.] Based on these14 propositions the cases have de veloped the rule that giving notice of intention to move for a new trial before the case is decided is ‘premature,’ and without legal effect. That is sound law.” ( Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 458-459 ( Auto Equity ).) A “trial and decision” (§ 656) occurs onl y when all issues have been determined as to the party moving for a new trial, either by jury verdict, as to issues decided by the jury, or by the court, as to i ssues decided by the court. ( Auto Equity , supra , 57 Cal.2d at p. 460; In re Marriage of Hafferkamp (1998) 61 Cal.App.4th 789, 793; see 8 Witkin, Cal. Procedure (5th ed. 2008) Attack on Judgment in Trial Court, § 56, pp. 641-642.) As to issues decided by the court, a de cision is rendered when the court files its statement of decision or, if none was requested, when judgment is entered. ( Tabor v. Superior Court, supra, 28 Cal.2d at p. 507; Hafferkamp , supra , at p. 793; see Auto Equity , supra , at p. 459.) “A notice of intention to move for a new trial is ‘premature’ and void if filed before there has been a ‘tri al and decision.’ (Cod e Civ. Proc., § 656.)” ( Auto Equity , supra , at p. 460.) The trial court here deferred its ruling on Defendants’ motion in limine No. 9, in which Defendants sought to exclude any evidence of or claim for noneconomic damages, until after the jury trial. The co urt heard testimony without a jury after the jury trial for the purpose of deciding whether Plaintiffs were insured at the time of the collision. We conclude that the legal effect of this was to order and conduct a separate trial by the court on such issue pursuant to section 1048, subdivision (b). When issues are tried separately, there is no “trial and d ecision” (§ 656) until a ll issues have been15 decided. ( Meyser , supra , 85 Cal.App.3d at p. 937; Mays v. Disneyland, Inc. (1963) 213 Cal.App.2d 297, 298-299; see Cal. Rules of Court, rule 3.1591(c).) Accordingly, there was no decision in this case at the time that the notice of intention to move for a new trial was filed, and there will be no decision for purposes of a new trial motion until a judgment is entered, absent a time ly request for a statement of decision. We therefore conclude that both the noti ce of intention to move for a new trial and the JNOV motion were premature and of no effect and are void for all purposes. The trial court had no jurisd iction to rule on the motions , so the order ruling on the motions also is void for all purposes as to such rulings. We therefore will reverse the order of March 8, 2012, as to the grantin g of a new trial and the denial of JNOV. 8
2. There Is No Judgment to Appeal The trial court entered no judgment on the verdict, entered no judgment after ruling on the motion to strike noneconomic da mages, and has entered no judgment to this date. “In no case is a judgment effect ual for any purpose until entered.” (§ 664.) Defendants’ appeal from “the judgment” th erefore is of no effect and must be dismissed. Defendants challenge the order denying Defendants’ motion in limine No. 6 to exclude any testimony by Pickersg ill. Such an order is inte rlocutory and is not one of

8 An order made appealable by statute is appealable even if the order is void. ( Phelan v. Superior Court (1950) 35 Cal.2d 363, 366.) The proper procedure is to reverse a void order rather than di smiss the appeal from the order. ( Ruiz v. Ruiz (1980) 104 Cal.App.3d 374, 379, fn. 5; Avery v. Associated Seed Growers, Inc. (1963) 211 Cal.App.2d 613, 630.)16 the appealable orders listed in section 904.1, subdivision (a ). Appellate review of such an interlocutory order may be obtained on appeal from a later judgment or appealable order. (§ 906.) Because no judgment has been entered and we are not reviewing the merits of any appealable order, the order de nying the motion in limine is not reviewable at this time.
3. The Order Striking the Award of Noneconomic Damages Is Nonappealable The order striking the award of nonecono mic damages was a ruling on an issue that was tried separately by the court after the jury verdict, as stated . Such an order is interlocutory and is not one of the appealable orders listed in section 904.1, subdivision (a). The order is nonappealable; we therefore will dismiss Plaintiffs’ appeal from the order.
4. The Trial Court Must Enter Judgment Promptly on Remand The trial court must enter judgment prom ptly on remand so this matter may be concluded, and must consider and decide any timely posttrial motions that may be thereafter filed. The parties have nonetheless fully briefe d two legal questions that are important to the issues raised in those prematurely f iled posttrial motions. As those questions are likely to arise again in postjudgment motions on remand, we will consider them in this opinion for the benefit of the trial court an d counsel. Those questions are (1) whether unpaid medical bills are evid ence of the reasonable value of the services provided and (2) whether a treating physician as a nonretai ned expert for whom no expert witness17 declaration is provided may testify on the reasonable valu e of the medical services provided. 5. Unpaid Medical Bills Are Not Evid ence of the Reasonable Value of the Services Provided A plaintiff may recover as damages for pa st medical expenses no more than the reasonable value of the services provided. ( Howell , supra , 52 Cal.4th at p. 555.) Such damages are limited to the lesser of (1) th e amount paid or incurred for past medical services, and (2) the reasonabl e value of the services. ( Id. at p. 556.) Howell , supra , 52 Cal.4th 541, held that an injured plaintiff whose medical expenses are paid by private insurance can recover damages for past medical expenses in an amount no greater than the amount that the plaintiff’s medical providers, pursuant to prior agreement, accepted as full payment for the services. ( Id. at p. 566.) Howell rejected the argument that limiting the plain tiff’s recovery in this manner would result in a windfall to the tortfeasor, stating that the full amount billed by medical providers is not an accurate measure of the valu e of the services provided. ( Id. at pp. 560-563.) Howell stated that there can be significant disparities between the amounts charged by medical providers and the costs of providing services ( id. at pp. 560-562), the price of a particular service can “vary tremendously . . . from hospital to hospital in California” ( id. at p. 561), and “a medical care provider’s billed price for particular services is not necessarily representative of e ither the cost of providing t hose services or their market value” ( id. at p. 564). Although Howell did not expressly hold th at unpaid medical bills18 are not evidence of the reasonable value of th e services provided, it strongly suggested such a conclusion. Subsequently, we held in Corenbaum v. Lampkin (2013) 215 Cal.App.4th 1308 ( Corenbaum ) that the full amount billed for a plainti ff’s medical care is not relevant to the determination of damages for past or future medical expenses, and therefore is inadmissible for those purposes, if the plain tiff’s medical providers had agreed to accept a lesser amount as full payment for the services provided. ( Id., at pp. 1328, 1331.) We also held that the full amount billed cannot support an expert opinion on the reasonable value of future medical expenses and is inadmissible for the purpose of proving noneconomic damages. ( Id. at pp. 1331-1333.) We stat ed that the observations in Howell , supra , 52 Cal.4th 541, compelled the conc lusion that the full amount billed for past medical services was not relevant to th e reasonable value of the services provided. ( Corenbaum , supra , at pp. 1330–1331.) We explained:
“ Howell stated that the full amount billed is not an accurate measure of the value of medical services, that there can be significant disparities between the amounts charged by medical providers and the costs of providing services, and that the price of a particular service can ‘vary tremendously . . . from hospital to hospital in California’ and ‘a medical care provider’s billed price fo r particular services is not necessarily representative of either the cost of provid ing those services or their market value.’ ( Howell , supra , 52 Cal.4th at pp. 560–562, 564.) These and other observations in Howell compel the conclusion that the full am ount billed by medical providers is not relevant to the value of past medical serv ices. For the same reason, the full amount19 billed for past medical services is not relevant to a determination of the reasonable value of future medical services.” ( Corenbaum , supra , 215 Cal.App.4th at pp. 1330–1331.) Thus, the full amount billed, but unpaid, fo r past medical services is not relevant to the reasonable value of the services provided. In our view, this rule is not limited to the circumstance where the medi cal providers had previously agreed to accept a lesser amount as full payment for the services pr ovided. Instead, th e observations in Howell , supra , 52 Cal.4th 541, a nd the reasoning in Corenbaum , supra , 215 Cal.App.4th 1308, summarized above compel the conclusion th at the same rule applies equally in circumstances where there was no such prior agreement. State Farm Mutual Automobile Ins. Co. v. Huff (2013) 216 Cal.App.4th 1463, 1471-1472 ( State Farm ) reached this same conclusion.
State Farm , supra , 216 Cal.App.4th 1463, stated that the amount of a medical provider’s lien pursuant to the Hospital Lien Act (Civ. Code, § 3045.1 et seq.) could not exceed the “ ‘reasonable and necessary’ ” ch arges for the services provided. ( State
Farm , supra , at pp. 1469-1470, quoti ng Civ. Code, § 3045.1.) State Farm concluded that an unpaid hospital bill based on the pr ovider’s standard medical charges was not evidence of the reason able value of the services provided. ( Id. at p. 1472.) Unlike the medical providers in Howell , supra , 52 Cal.4th 541, and Corenbaum , supra , 215 Cal.App.4th 1308, the medical provider had not previously agreed with the patient’s health insurer to accept a lesser amount as full payment for the services provided. The patient in State Farm was uninsured. ( State Farm , supra , at p. 1467.)20 State Farm , supra , 216 Cal.App.4th 1463, stated , “ ‘the full amount billed by medical providers is not an accurate measure of the value of medical services’ [citation] because ‘many patients . . . pay discounted ra tes,’ and standard rates ‘for a given service can vary tremendously, sometimes by a factor of five or more, from hospital to hospital in California’ [citation].” ( Id. at p. 1471, quoting Corenbaum , supra , 215 Cal.App.4th 1308, and Howell , supra , 52 Cal.4th 541, respectively.) State Farm stated that the hospital bill itself was not an accurate measur e of the reasonable value of the services provided, and the medical provider failed to pr esent any evidence of reasonable value. ( Id. at p. 1472.) State Farm therefore concluded that the evidence was in sufficient to support a judgment in favor of the medica l provider and reversed the judgment. ( Ibid. ) This conclusion is entirely consistent with a line of authority holding or suggesting that unpaid medica l bills are not evidence of the reasonable value of the services provided. Latky v. Wolfe (1927) 85 Ca l.App. 332 ( Latky ) held that the plaintiffs’ unpaid medical bills could not s upport an award of damages without some evidence that the amounts charged represente d the reasonable value of the services rendered. ( Id. at p. 347.) Latky distinguished Dewhirst v. Leopold (1924) 194 Cal. 424, 433 ( Dewhirst ), which had held that amounts paid for medical services were some evidence of the reasonable va lue of the services provided unless shown to the contrary, on the grounds that the bills in Dewhirst were actually paid. 9 ( Latky , supra , at p. 347.)

9 Dewhirst , supra , 194 Cal. at page 433, stated , “Complaint is made that no evidence was offered by plainti ff to show that the amounts pa id on account of medical treatment and attention were reasonable for the services performed . The amounts paid21 Latky affirmed a judgment in favor of the pl aintiffs, but reduced the damages award by the amount of the unpaid bills. ( Id. at p. 347.) Gimbel v. Laramie (1960) 181 Cal.App.2d 77 ( Gimbel ) held that the amount of an unpaid hospital bill was properly excluded from a damages award. ( Id. at pp. 81-82.) The defendant in Gimbel had stipulated to the amount of the bill, but not its reasonableness. ( Id. at p. 81.) Gimbel stated, “It has long been the rule that the cost alone of medical treatment and hospitalizati on does not govern the recovery of such expenses. It must be shown additionally th at the services were attributable to the accident, that they were necessary and th at the charges for such services were reasonable. [Citation.]” ( Ibid. ) Calhoun v. Hildebrandt (1964) 230 Cal.App.2d 70 ( Calhoun ) held that the exclusion of the plaintiff’s unpaid medica l bills was proper because there was no evidence that all of the services provided were made necessary by the incident in question and no evidence that the charges were reasonable. ( Id. at p. 73.) The California Supreme Court in Pacific Gas & E. Co. v. G. W. Thomas Drayage etc. Co. (1968) 69 Cal.2d 33 also sugges ted that unpaid medical bills are not evidence of the reasonable valu e of the services provided by stating: “Since invoices, bills, and receipts for repairs are hearsay, th ey are inadmissible independently to prove that liability for the repairs was incurred, that payment wa s made, or that the charges were reasonable. [Citations.] If, however, a party tes tifies that he incurred or
is some evidence of reasonable value, and th ere being no showing to the contrary such evidence must be held to be sufficient. [Citation.]”22 discharged a liability for repairs, any of these documents may be admitted for the limited purpose of corroborating his testimony [citations], and if the charges were paid, the testimony and documents are eviden ce that the charges were reasonable

. [Citations.] Since there was testimony in the present case that the invoices had been paid, the trial court did not err in admitting them.” ( Id. at pp. 42-43, italics added.) Other opinions, in contrast, have held or suggested that unpaid medical bills are some evidence of the reasonable va lue of the services provided. Malinson v. Black (1948) 83 Cal.App.2d 375 ( Malinson ) rejected the defendant’s attack on an award of damages for past medical expenses. The de fendant argued that the bills were unpaid and that there was no evidence of the reas onable value of the services provided. Malinson stated, “It is well settled that the amou nt paid is some evidence of reasonable value and in the absence of any showing to th e contrary such eviden ce has been held to be sufficient. Likewise, it would seem that evidence of the expe nse incurred would be some evidence of reasonable value. [Citations.]” ( Id. at p. 379, citing Dewhirst , supra , 194 Cal. 424, and other cases involving only amounts paid.) Guerra v. Balestrieri (1954) 127 Cal.App.2d 511 ( Guerra ) rejected the defendant’s challenge to an instruction on damages for past medical expenses. Guerra agreed that it was error to gi ve the instruction because ther e was no evidence of the cost of the services provided, but held that the error was not prejudicial because it was unlikely that the verdict included any am ount for past medical services. ( Id. at p. 520.)
Guerra stated, “The proper measure is the reas onable value of such services, not the23 amount paid or incurred theref or, although the amount paid or incurred would be some evidence of value. [Citation.]” ( Ibid. ) Katiuzhinsky v. Perry (2007) 152 Cal.App.4th 1288 ( Katiuzhinsky ) held that the trial court erred by excluding evidence of the full amounts billed fo r medical services and limiting the plaintiffs’ recovery to the di scounted amounts paid by a lien purchaser. The medical providers accepted the discou nted amounts as full payment for the accounts, but plaintiffs remained liable to the lien purchaser for the full amounts billed. ( Id. at pp. 1291-1292.) Katiuzhinsky held that the plaintiffs’ recovery was not limited to the discounted amounts because the plaintiffs remained liable to the lien purchaser for the full amounts billed, and because the medica l providers were not obligated to sell the accounts at a discount and had no prior agreement to do so. ( Id. at pp. 1296-1298.) Katiuzhinsky also held that the exclusion of the unpaid medical bills was error, stating that the bills were evidence of the reasonable value of the services provided. ( Id. at pp. 1295-1296.) Katiuzhinsky stated that regardless of wh ether the accounts were later sold, “the charges billed to plaintiffs refl ected on the reasonable value of the services they received.” ( Id. at p. 1297.) We find the reasoning in Malinson , supra , 83 Cal.App.2d 375, Guerra , supra , 127 Cal.App.2d 511, and Katiuzhinsky , supra , 152 Cal.App.4th 1288 , unpersuasive and decline to follow those opini ons on this point. Fo r the reasons stated in Howell , supra , 52 Cal.4th 541, and Corenbaum , supra , 215 Cal.App.4th 1308, we conclude that an unpaid medical bill is not an accurate measur e of the reasonable value of the services provided. Consistent with those opinions and Latky , supra , 85 Cal.App. 332, Gimbel ,24 supra , 181 Cal.App.2d 77, Calhoun , supra , 230 Cal.App.2d 70, and State Farm , supra , 216 Cal.App.4th 1463, we conclu de that an unpaid medical bill is not evidence of the reasonable value of the services provided. We therefore conclude that evidence of unpaid medical bills cannot support an awar d of damages for past medical expenses.
6. No Expert Witness Declaration Is Required for a Treating Physician Offering an Opinion Based on Facts Acquired in the Physician-Patient Relationship A party must identify its expert witnesse s before trial in response to a demand for exchange of expert witn ess information under Code of Civil Procedure section 2034.210. This requirement applies to both retained and nonretained experts. (§§ 2034.210, subd. (a), 2034.260, subd (b)(1); Schreiber v. Estate of Kiser (1999) 22 Cal.4th 31, 35.) For retain ed experts and experts who are parties or employees of parties, the exchange must al so include an expert witness declaration stating the general substance of the expected testimony and ot her matters. (§§ 20 34.210, subd. (b), 2034.260, subd. (c).) Failure to provide an expert witne ss declaration or failure to adequately disclose the expert’s expected testimony may result in the exclusion of expert opinion. (§ 2034.300; Bonds v. Roy (1999) 20 Cal.4th 140, 148-149.) But for a treating physician who is not “retained by a party for the purpose of forming and expressing an opinion in antic ipation of the litigation or in preparation for the trial” (§ 2034.210, subd . (b)), no expert witness declaration is required ( Schreiber , supra , at p. 39), and the exclusion sanction is unavailable. 10

10 Treating physicians genera lly are not “retained” experts within the meaning of section 2034.210, subdivision (b). ( Schreiber , supra , 22 Cal.4th at p. 36, citing former25 “A treating physician is a percipient e xpert, but that does not mean that his testimony is limited to only personal observa tions. Rather, like any other expert, he may provide both fact and opinion testimony. As the legislative history clarifies, what distinguishes the treating physician from a re tained expert is not the content of the testimony, but the context in wh ich he becomes familiar with th e plaintiff’s injuries that were ultimately the subject of litigation, and which form the f actual basis for the medical opinion. The contextual nature of the inquiry is implicit in the language of [former] section 2034, subdiv ision (a)(2), which describes a retained expert as one ‘retained by a party for the purpose of forming and expressing an opinion in anticipation of the litigation or in preparation for the tria l of the action.’ (Ita lics added.) A treating physician is not consulted fo r litigation purposes, but rather learns of the plaintiff’s injuries and medical history because of the underlying physician-patient relationship.” ( Schreiber , supra , 22 Cal.4th at pp. 35-36.) The identity and opinions of retained experts generally are privileged unless a party expects to offer their e xpert opinion at trial, and whet her they will testify at trial need not be disclosed until shortly before trial. ( Schreiber , supra , 22 Cal.4th at p. 37.) In contrast, the identity and op inions of treating ph ysicians are not privileged, and they are subject to ordinary discovery with no special restrictions. ( Id. at p. 38.) “Indeed, defendants have a strong incentive to depo se treating physicians well prior to the

§ 2034, subd. (a)(2).) Section 2034.210, subdivision (b) con tinues former section 2034, subdivision (a)(2) without substantive change . (See Cal. Law Revision Com. com., 21A West’s Ann. Code Civ. Proc. ( 2007 ed.) foll. § 2034.210, p. 505.)26 exchange of expert information to ascertai n whether their observations and conclusions support the plaintiff’s allegations. [Citation.] . . . [¶] Accordingly, the Legislature has apparently determined that by the time of th e exchange of expert witness information, the information required by the expert witness declaration is unnecessary for treating physicians who remain in their traditional role.” ( Id. at p. 38, fn. omitted.) “[T]o the extent a physician acquires pe rsonal knowledge of the relevant facts independently of the litigation, his identity and opinions ba sed on those facts are not privileged in litigation presentin g ‘an issue concerning the condition of the patient.’ [Citations.] For such a witness, no expert w itness declaration is required, and he may testify as to any opinions formed on the ba sis of facts independently acquired and informed by his training, skill, and expe rience. This may well include opinions regarding causation and standard of care because such issues are inherent in a physician’s work.” ( Schreiber , supra , 22 Cal.4th at p. 39, qu oting Evid. Code, § 996, fn. omitted.) Accordingly, no expert witness declara tion is required for tr eating physicians to the extent that their opinion testimony is based on facts acquired independently of the litigation, that is, facts acquired in the cour se of the physician-patient relationship and any other facts independently acquired. ( Schreiber , supra , 22 Cal.4th at p. 39; Dozier v. Shapiro (2011) 199 Cal.App.4th 1509, 1520.) We conclude that this includes an opinion as to the reasonable va lue of services that the trea ting physician either provided to the plaintiff or became familiar with inde pendently of the litigati on, assuming that the treating physician is qualified to offer an expe rt opinion on reasonable value. A treating27 physician who has gained special knowledge concerning the market value of medical services through his or her own practice or other means independent of the litigation may testify on the reasonable value of servic es that he or she provided or became familiar with as a treating p hysician, rather than as a litigation consultant, without the necessity of an expert witness declaration. To the extent that a treating physician became familiar with services provided to the plaintiff or other facts for the purpose of forming and expressing an opinion in anticipation of litigati on or in preparation for trial, however, he or she acts as a retained expert. An expert witness declaration is required for such a treating physician to the extent that he or she tes tifies as a retained expert. (§ 2034.210, subd. (b); Dozier , supra , at p. 1521.) The trial court here found that Dr. Schi ffman acted as a treating physician at all times and did not act as an expert re tained for purposes of this litigation. 11 Yet the court precluded Dr. Schiffman and any other nonret ained treating physician from testifying on the reasonable value of their services provided to Plaintiffs . We conclude that this was error and that Plaintiffs were entitled to present testimony by any nonretained treating physician on the reasonable value of medical services that he or she provided or became familiar with as a treating physician, as long as such testimony is based on facts acquired in the physician-patie nt relationship or otherwis e acquired independently of this litigation, and not acquire d for the purpose of forming and expressing an opinion in anticipation of litigation or in preparation for trial.

11 We need not address at this time Defenda nts’ argument that the trial court erred in so finding.28 DISPOSITION The order of March 8, 2012, is reversed as to the granting of a partial new trial and the denial of JNOV, and is void in all re spects as to the rulings on the new trial and JNOV motions. Plaintiffs’ appeal from the order striking the awards of noneconomic damages and Defendants’ appeal from “the judgm ent” are dismissed. The trial court is directed to enter judgment pr omptly on remand and conduc t further proceedings on any postjudgment motions in a manner consistent w ith the views expressed in this opinion. Each party must bear its own costs on appeal.

CERTIFIED FOR PUBLICATION

CROSKEY, Acting P. J.
WE CONCUR:

KITCHING, J.

ALDRICH, J.