Gibson

Defendants Andrew and Alexander Bobroff appeal the trial court’s order denying their motion to tax the costs of the prevailing plaintiff’s expert witness fees and the costs of the court-ordered mediation. We are presented with an issue of first impression as to the latter item—that is, may a trial court in its discretion award successful litigants their share of the cost of unsuccessful court-ordered, but privately conducted, mediation? In the published portion of this opinion we answer this question in the affirmative. In the unpublished portion we reject appellants’ claim that the award of expert witness fees was an abuse of discretion and deny respondent’s request for sanctions.

Facts

Plaintiff Timothy E. Gibson was injured when defendants’ truck rear-ended him as he was stopped at a red light on December 19, 1992. He filed a complaint for personal injuries including damages for lost wages and future income. Liability was conceded and the only issue was the amount of damages sustained by plaintiff. On July 8, 1994, the parties attended court-ordered judicial arbitration (Code Civ. Proc., § 1141.11), 1 with the arbitrator awarding plaintiff $90,000. Defendants…

JConcurring.—As noted by Justice Phelan, Code of Civil Procedure section 1775.4 provides that an action such as this may be ordered into arbitration or mediation, but not both. 1 (Maj. opn., ante, at p. 1204, fn. 2.) Because this case had previously been ordered into arbitration, the trial court exceeded its authority by ordering mediation. Defendants did not object, however, and should not now be heard to complain of one of the consequences of the failure to do so.

I concur in the judgment of this court pertaining to mediation expenses primarily because by failing to object to the court-ordered mediation I believe defendants impliedly conceded mediation was “reasonably necessary to the conduct of the litigation” and thereby waived the claim that mediation *1211 expenses may not be awarded as costs under Code of Civil Procedure section 1033.5, subdivision (c)(4).

Code of Civil procedure section 1775.4 states in its entirety as follows: “An action that has been ordered into arbitration pursuant to [Code of Civil Procedure] Section 1141.11 or 1141.12 may not be ordered into mediation under this title, and an action that has been ordered into mediation pursuant to Section 1175.3…

[Opinion certified for partial publication. [*] ]

OPINION

PHELAN, J. [*]

Defendants Andrew and Alexander Bobroff appeal the trial court's order denying their motion to tax the costs of the prevailing plaintiff's expert witness fees and the costs of the court-ordered mediation. We are presented with an issue of first impression as to the latter item — that is, may a trial court in its discretion award successful litigants their share of the cost of unsuccessful court-ordered, but privately conducted, mediation? In the published portion of this opinion we answer this question in the affirmative. In the unpublished portion we reject appellants' claim that the award of expert witness fees was an abuse of discretion and deny respondent's request for sanctions.

Plaintiff Timothy E. Gibson was injured when defendants' truck rearended him as he was stopped at a red light on December 19, 1992. He filed a complaint for personal injuries including damages for lost wages and future income. Liability was conceded and the only issue was the amount of damages sustained by plaintiff. On July 8, 1994, the parties attended court-ordered judicial arbitration (Code Civ. Proc., § 1141.11), [1]…