Voluntary Dismissal Triggers Expert Fees Under Section 998

  A plaintiff may voluntarily dismiss a complaint by written request to the clerk at any time prior to the commencement of trial. The court even provides a form for this purpose entitled: “Request for Dismissal.”

  A party in whose favor a dismissal is entered is entitled to recover its costs. Generally, these costs do not include the fees of experts not ordered by the court. Expert witness fees may, however, be recoverable when a valid Code of Civil Procedure section 998 settlement offer has not been accepted. Does plaintiff’s voluntary dismissal, where a section 998 offer has not been accepted, authorize the trial court to exercise discretion to award expert witness costs?

  Section 998 provides in relevant substance: If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award the court or arbitrator in its discretion, may require the plaintiff to pay a reasonable sum to cover costs of the services of expert witnesses actually incurred and reasonably necessary in preparation for trial or arbitration.

  In Mon Chong Loong Trading v. Superior Court (Defang Cui) the court answered the question in the affirmative: A voluntary dismissal of a pending action, with or without prejudice, constitutes the conclusion of the action and is therefore an appropriate precipitating event triggering the trial court’s discretion to award expert witness fees under section 998.

  The court reasoned the plain language of section 998 requires a plaintiff who has not accepted a reasonable settlement offer to obtain a more favorable judgment or award to avoid possible liability for expert witness fees under section 998. A plaintiff may fail to obtain a more favorable judgment or award by failing to obtain any award at all. When a lawsuit is concluded by a voluntary dismissal, the price of such a dismissal is the payment of costs. Section 998 expands those costs to include the discretionary award of expert witness fees.

  I consult with clients and accept cases involving releases, settlements, dismissals, and Code of Civil Procedure section 998 offers of compromise, including motions to tax costs. For other types of cases I accept, please scroll my Home and My Practice pages. If you are seeking a legal consultation or representation, please give me a call at 818.971.9409. – Michael Daymude

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