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? Continue reading

Subsequent 998 Offer Does Not Extinguish Prior Offer

  To encourage settlement of lawsuits prior to trial the legislature enacted section 998 of the Code of Civil Procedure which provides for statutory offers in compromise. It accomplishes its purpose by augmenting or withholding recoverable costs when a party fails to achieve a result better that it could have obtained by accepting a conforming offer.

  Section 998 offers may alter the general rule that a prevailing party is entitled to costs. Such offers may also alter the general rule that costs do not include expert witness fees unless those experts are court ordered. Pursuant to section 998 expert witness fees are recoverable when a judgment or award following the nonacceptance of a pretrial settlement offer triggers its operation. Continue reading