Recovery of Expert Fees after Voluntary Dismissal

— by Calvin R. Stead, Esq.

In the 7/23/2013 case of Mon Chong Loong Trading Corp. v. Superior Court (Cui), the filing of a voluntary dismissal constituted conclusion of the action, and therefore triggered trial court’s discretion as to the assessment of expert witness fees under Code of Civil Procedure section 998.

Factually, the plaintiff had not responded to a 998, then failed to show up for an IME, and then switched attorneys. Thereafter the case was dismissed without prejudice. This triggered the entitlement of costs and discretionary expert fees under the 998 statute. Explaining its ruling the court stated:

“While a lawsuit may be concluded by a voluntary dismissal, the price of such a dismissal is the payment of costs under section 1032. In our view, section 998 expands those costs to include the discretionary award of expert witness fees. Even though there may remain the possibility (or existence) of a second lawsuit, both justice and judicial economy require that the award of costs be swiftly and simply concluded following the dismissal. Such award cannot be predicated or dependent upon the possible future result of related (or even identical) separate litigation that may itself never progress to a judgment or award. Thus, the trial court erred to the extent it required the defendant, who had made a valid section 998 offer, to first obtain a judgment in the case before the trial court would consider its claim for recovery of expert witness fees.”

Lesson learned is make sure there is an agreement for a waiver of costs when you file a dismissal.