Special Fee Shifting Statute: Personal Injury Plaintiff’s Request For $27,667.50 In Costs For Medical Witness Expenses Properly Stricken

Reason Was That, Under CCP § 1141.21, Plaintiff Obtained A Jury Trial Verdict In A De Novo Trial Which Was Under A Prior Judicial Arbitration Award.

            For unlimited cases where damages are likely not to exceed $50,000, the Legislature has specified a mandatory judicial arbitration process.  Any party may request a trial de novo if there is disappointment with the judicial arbitration award, but there is a penalty associates with such an election:  if the monetary judgment is not more favorable than the arbitration award, CCP § 1033.5 costs and expert witness expenses are not recoverable.  (Code Civ. Proc., § 11411.21(a)(1)(B), (C).)  This penalty was at play in Landmoore v. Foxcroft, Case No. H042203 (6^th Dist. Jan. 18, 2018) (unpublished).

            Here, the parties went to judicial arbitration and the arbitrator awarded a personal injury plaintiff $30,000 plus statutory costs.  Plaintiff rejected this nonbinding award and requested a trial de novo, with a jury awarding her a compensatory verdict of $29,935.  (Oh, so close, but not $30,000 plus statutory costs.)  Plaintiff then sought costs of $38,424.92, including $27,667.50 in expert witness fees.  The trial judge granted the defense motion to tax costs, striking $27,872.25 from plaintiff’s cost bill (with the 25 cents error not contested by either side).  Plaintiff appealed.  (Presumably, the defense could have appealed from the award of some costs, but chose not to presumably on the fact that their insurer did not think it costs effective.)

            Plaintiff’s appeal of the costs reduction did result in any change. 

            Plaintiff principally argued that the costs awarded to her by the court (the $10,552.67) had to be added to the $29,935 jury award to produce a $40,487.67 result which was higher than the rejected $30,000 arbitration award.  The appellate court did not accept that this was a reasonable construction of section 1141.21 because the judgment under that statute was the jury verdict of $29,935 and nothing more.  Here is the salient reasoning by the Sixth District:

“A contrary determination would make no sense, as it would require the judgment to include the costs the party is seeking in order to determine the party’s entitlement to those very costs. It would also be inconsistent with the statutory language: If costs were first included before comparing the judgment with the arbitration award, there would be no purpose for then denying those same costs in subdivision (a)(1)(B) of section 1141.21 (‘the party electing the trial de novo shall not recover his or her costs.’). And of course, if costs were first to be added to the damages awarded by the jury to arrive at the applicable ‘judgment,’ there would be no point in qualifying ‘judgment’ as ‘the amount of damages awarded or the type of relief granted.’ Plaintiff cannot avoid the legislative penalty for rejecting an arbitration award simply by ignoring the statutory language compelling denial of her costs. We have no doubt that the damages awarded by the jury—here, $29,935—must be measured against the $30,000 awarded by the arbitrator in order to meet the conditions set forth in section 1141.21. Plaintiff clearly did not meet the threshold for recovery of her litigation costs.”  (Slip Op., at pp. 5-6.)