Expert Fees May Be Recoverable

Mon Chong Loong Trading Corp. v. Superior Court
(Cal. Ct. of App., 2d Dist.), filed July 23, 2013, published July 23, 2013

Defang Cui sued Mon Chong Loong Trading for injuries sustained in a slip and fall.

Mon Chong Loong Trading served a demand for exchange of expert witness lists and reports. It then served a demand for an independent medical examination (IME) to be conducted by one of its experts. And, it made a statutory offer to compromise under Code of Civil Procedure Section 998. Cui did not respond to the offer, did not appear for the IME, and did not participate in the exchange of expert witness lists and reports.

After the time had passed for Cui to participate in the expert witness information exchange, Mon Chong Loong Trading filed a motion in limine to preclude Cui from calling any expert witnesses or offering any expert testimony.

Cui did not oppose the motion, but the day before opposition was due, Cui voluntarily dismissed the matter without prejudice.

Mon Chong Loong Trading filed a cost bill that included $3,600 for expert witness fees incurred preparing for trial. Cui moved to tax costs. The trial court awarded Mon Chong Loong Trading its costs, but disallowed the expert witness fees. The trial court concluded that under the law, the voluntary dismissal without prejudice did not trigger a right to expert fees despite the Section 998 offer.

Mon Chong Loong Trading appealed.

The Court of Appeal held that since the case was concluded by way of a dismissal rather than a judgment, Mon Chong Loong Trading had no right to appeal. However, it concluded it had discretion to treat the appeal as a petition for a writ of mandate. It then did so.

The Court of Appeal directed the trial court to vacate its order and to consider whether, under the circumstances, Mon Chong Loong Trading should receive its expert witness fees.

The court reasoned that a plaintiff may voluntarily dismiss a complaint by written request to the clerk at any time prior to the commencement of trial, upon payment of costs. As the statute expressly states, a party in whose favor such a dismissal is entered is entitled to recover its costs. However, these costs do not include the fees of experts not ordered by the court.

Although costs generally do not include expert witness fees, such fees may be recoverable following a valid Section 998 settlement offer that is not accepted.

The court noted: “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 voluntary dismissal.” This simple truth is already part of California law by virtue of the fact that the dismissal statute provides that a plaintiff must pay costs when it dismisses.

Therefore, when a plaintiff voluntarily dismisses after the defendant makes a Section 998 offer, a trial court must consider whether expert fees are appropriate under the circumstances.