Appellate Follow-up to Earlier Appeal Surveyed in Our September 2, 2010 Post.
In our September 2, 2010 post, we surveyed Simon v. Coleman (Simon I), reversing and remanding for consideration attorney’s fees to be awarded for “costs of proof” sanctions under Code of Civil Procedure section 2033.420. Clearly, the defense was going to get something, and they did.
On remand, the trial court recalculated the costs-of-proof award, quite faithfully, at $45,000 (a little lower than the $50,150) request, but also awarded additional attorney’s fees for filing the motion ($2,350) and for defending the prior appeal ($13,787).
The latter aspect of the award got the lower court in trouble in Simon v. Coleman (Simon II), Case No. B231229 (2d Dist., Div. 3 May 31, 2012) (unpublished).
The lower court’s $45,000 recalculation was sustained. However, the matter had to be remanded, yet again, because the prior appellate remittitur only related to the RFA calculation such that any other fees had to be considered in a separate proceeding–and they were not so considered. So, further proceedings will be spawned from this appeal, the case of the excessive remittitur fee award.