“Judgment” Is Not A Necessary Predicate.
This next decision makes CCP § 998 an even more powerful tool, and we believe will engender some interesting reaction from other appellate courts.
Construing section 998, Mon Chong Loong Trading Corp. v. Superior Court, Case No. B240828 (2d Dist., Div. 3 July 23, 2013) (published) decided that a party dismissing an action without prejudice can, in the lower court’s discretion, have expert witness fees assessed against it following failure to accept a 998 offer. Both sides had somewhat assumed that a “judgment” was necessary to trigger 998 fees, but the appellate court disagreed because section 998 “does not describe the proper moment in the life-cycle of a lawsuit to assess expert witness fees.” Rather, “998’s ‘more favorable judgment or award’ language describes the necessary condition for relieving the refusing party of its obligation to pay, not the timing of the award. The appropriate moment for a court to assess whether a more favorable judgment or award has been obtained is at the conclusion of the lawsuit.” It then held that a voluntary dismissal without prejudice was just such a conclusion, conferring discretion on the lower court to award expert fees if it wants to or decide to defer if another action is filed shortly thereafter.
It is always a pleasure to read an opinion by Justice Croskey. You have quoted his very nice turn of phrase in your quote (as you often do).
I hope that he has no thoughts of retirement!
Posted by: Gerry Knapton | July 25, 2013 at 02:45 PM