In Mon Chong Loong Trading Corp. v. Superior Court (No. B240828, 7/23/13), a California appellate court held in a case of first impression that a trial court can award expert fees pursuant to Code of Civil Procedure section 998 following a voluntary dismissal, without prejudice, before trial.
Plaintiff Defang Cui alleged that she was injured during a fall at defendant’s supermarket. Defendant served a demand for exchange of expert witnesses on December 7, 2011, a notice for independent medical examination on December 13, 2011, and on December 20, 2011, defendant submitted a statutory offer to compromise pursuant to Code of Civil Procedure section 998, in the amount of $10,000. Plaintiff did not respond to the offer, appear for the medical exam, or participate in the exchange of expert witnesses.
In anticipation of the Final Status Conference, defendant filed a motion in limine to preclude plaintiff from calling any expert witnesses or offering any expert testimony. On the last day that an opposition to the motion in limine could be filed, plaintiff filed a request for dismissal, without prejudice. Thereafter, defendant filed a memorandum of costs seeking a total of $7,336, including $3,600 for expert witness fees. Plaintiff filed a motion to strike the cost bill, or to tax defendant’s costs with respect to the expert witness fees. The trial court concluded defendant was not entitled to expert witness fees because the case did not result in any “judgment or award” more favorable than the statutory offer.
The Court of Appeal concluded that Code of Civil Procedure section 998 does not require the party who submitted a valid and reasonable offer to achieve a specific result. The provision is triggered “[i]f… plaintiff fails to obtain a more favorable judgment or award… .” [Emphasis in original.] “A plaintiff may fail to obtain a more favorable judgment or award by failing to obtain any award at all, as in the case of a voluntary dismissal.”
The appellate court vacated the trial court’s order that taxed the defendant’s claim for expert witness fees and directed the trial court to reconsider the plaintiff’s motion to tax defendant’s cost bill for expert witness fees and issue a new order with respect to the motion.
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