California Court of Appeals, Second District, Third Division
ORIGINAL PROCEEDINGS in mandate. Jan A. Pluim, Judge Los Angeles County Super. Ct. No. GC046734 Petition granted and the matter remanded to the trial court with directions.
Wesierski & Zurek and Frank J. D’Oro for Petitioner.
No appearance for Respondent.
Vititoe Law Group, Carrington J. Snyder and James W. Vititoe for Real Party in Interest.
The defendant and appellant, Mon Chong Loong Trading Corp. (defendant) has appealed the trial court’s order taxing the defendant’s claim for expert witness fees included in its cost bill. The defendant filed its cost bill in this matter following the voluntary dismissal, without prejudice, of the complaint of plaintiff and respondent, Defang Cui (plaintiff).
This case presents the question of whether an order to pay expert witness fees under the cost-shifting provisions of the Code of Civil Procedure, section 998,  is appropriate in the circumstances of this case. We will hold that a voluntary dismissal constitutes the conclusion of the action and is therefore an appropriate precipitating event triggering the trial court’s discretion as to the assessment of expert witness fees under section 998.
FACTUAL AND PROCEDURAL BACKGROUND
After a fall that allegedly resulted in a back injury at defendant’s supermarket on August 16, 2010, plaintiff filed this action on January 13, 2011. Plaintiff’s form complaint alleged causes of action based on negligence and premises liability. Defendant filed an answer on April 6, 2011.
On December 7, 2011, defendant served a demand for exchange of expert witness lists and reports. On December 13, 2011, defendant also served on plaintiff a notice for an independent medical examination (IME) to be conducted by one of the defendant’s experts. On December 20, 2011, defendant made plaintiff an offer under section 998 to permit entry of judgment in favor of plaintiff for $10, 000 in return for a release of “all existing and future medical, legal and other liens arising in any way from the subject incident.” Plaintiff 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 plaintiff to participate in the expert witness information exchange, defendant, on January 11, 2012, filed a motion in limine to preclude plaintiff from calling any expert witnesses or offering any expert testimony. The Final Status Conference, during which motions in limine are heard (Cal. Rules of Court, rule 3.1548(f)(11)) was scheduled for February 10, 2012. Opposition to the defendant’s motion was therefore due nine court days prior to that date (§ 1005, subd. (b)).
Time still remained to oppose defendant’s motion in limine when plaintiff filed a substitution of attorney on January 17, 2012. Defendant’s counsel spoke with plaintiff’s new attorney and “all counsel agreed” that plaintiff would appear for a rescheduled IME on February 1, 2012. However, on January 30, the last day on which an opposition to the motion in limine could be timely filed, plaintiff filed a request for voluntary dismissal of her complaint without prejudice. Such dismissal was entered the same day.
Defendant, on February 2, 2012, filed a memorandum of costs seeking $7, 336, including $3, 600 for expert witness fees incurred preparing for trial. On February 27, 2012, plaintiff moved to strike the memorandum of costs in its entirety or, in the alternative, tax the defendant’s costs with respect to the expert witness fees. Defendant, on March 29, 2012, filed an opposition to the motion to tax costs and, in the same filing, requested that the earlier dismissal by plaintiff be deemed with prejudice because it was filed while a purportedly dispositive motion in limine (to exclude expert witness testimony) was pending. On April 13, 2012, the trial court granted the motion to tax the expert witness fees, awarded the remaining ...