Mon Chong Loong Trading Corp. v. Superior Court
218 Cal. App. 4th 87
| Cal. Ct. App. | 2013Background
- Plaintiff Cui sued Mon Chong Loong Trading Corp. for negligence/premises liability after an alleged fall; defendant answered.
- Defendant served a CCP § 998 offer (entry of judgment for $10,000 and lien release), expert disclosures, and an IME notice; plaintiff did not participate in exchange or attend the IME.
- On January 30, 2012, while a motion in limine to exclude plaintiff’s experts was pending, plaintiff voluntarily dismissed the action without prejudice.
- Defendant filed a memorandum of costs claiming $7,336, including $3,600 for expert witness fees under CCP § 998; plaintiff moved to tax those expert fees.
- Trial court taxed the expert fee item (denying recovery under § 998 because no “judgment or award” was obtained) and awarded remaining costs; defendant appealed and the court treated the appeal as a writ petition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether voluntary dismissal without prejudice constitutes failure to obtain a more favorable judgment/award under CCP § 998, triggering discretionary award of defendant’s expert fees | Dismissal is not a judgment/award; defendant cannot recover § 998 expert fees because there was no "judgment or award" more favorable than offer | A voluntary dismissal ends the action and therefore can constitute failure to obtain a more favorable judgment/award, permitting the trial court to exercise discretion to award § 998 expert fees | Court held dismissal may constitute the conclusion of the action; trial court should exercise its discretion under § 998 to determine expert fee entitlement |
| Whether § 998 expert fees must await entry of final judgment before being considered | § 998 requires a judgment or award to trigger fees, so fees must await judgment | § 998’s “more favorable judgment or award” describes the condition (failure to obtain more favorable result), not the timing; assessment occurs at conclusion of the action, which can be dismissal | Court held timing is at conclusion of the action; a voluntary dismissal can trigger consideration of § 998 fees |
| Whether voluntary dismissal must be deemed with prejudice to permit fees | Plaintiff argued dismissal without prejudice defeats fee claim or required different treatment | Defendant argued dismissal (with or without prejudice) still concludes case and may permit fees; costs already condition of dismissal per CCP § 581 | Court declined to decide prejudice issue (not outcome-determinative) and held even dismissal without prejudice can trigger potential award of § 998 expert fees |
| Appealability of order taxing costs following clerk’s voluntary dismissal | Plaintiff: appeal not proper because no final judgment; taxing costs is postjudgment only when a judgment exists | Defendant: absent review, would be deprived of appellate remedy; court can treat appeal as writ in unusual cases | Court exercised discretion to treat notice of appeal as petition for writ of mandate and reviewed de novo |
Key Cases Cited
- Morehart v. County of Santa Barbara, 7 Cal.4th 725 (1994) (appellate court may construe appeal as writ of mandate in unusual circumstances to preserve review)
- Zabetian v. Medical Board of California, 80 Cal.App.4th 462 (2000) (issue-of-first-impression supports writ treatment)
- Mesa Forest Products, Inc. v. St. Paul Mercury Ins. Co., 73 Cal.App.4th 324 (1999) (de novo review of statutory interpretation of § 998)
- Cano v. Glover, 143 Cal.App.4th 326 (2006) (defendant entitled to costs whether dismissal is with or without prejudice)
- Associated Convalescent Enterprises v. Carl Marks & Co., Inc., 33 Cal.App.3d 116 (1973) (clerk’s entry of dismissal is ministerial and not itself appealable)
- Markart v. Zeimer, 74 Cal.App. 152 (1925) (order on motion to tax costs is typically appealable as postjudgment order)