Second District, Division 3 Remands For Costs-of-Proof Award Recalculation.

     Under our sidebar category “Requests for Admissions,” we have looked at many decisions examining the costs-of-proof statute set forth in Code of Civil Procedure section 2033.420(a), which allows the court to order a party improperly denying a request for admission to reimburse another party for reasonable expenses (including attorney’s fees) incurred in proving the denied fact. Section 2033.420 is equally available to a party prevailing on summary judgment. (Barnett v. Penske Truck Leasing Co., 90 Cal.App.4^th 494, 495, 499 (2001).) However, we have found that appellate courts do give scrutiny to determining if the denying litigant had a reasonable basis to deny the requested fact, sometimes resulting in a reversal of a costs-of-proof award. That happened in the next case we look at.

     Plaintiff in Simon v. Coleman, Case Nos. B215813/B218219 (2d Dist., Div. 3 Aug. 31, 2010) (unpublished) suffered a summary judgment defeat in a legal malpractice action brought against defendant former attorney. Plaintiff was also hit with a $55,420 costs-of-proof award as well as $3,690 for defendant’s efforts in pursuing the costs-of-proof motion. Although not contesting the last component, plaintiff did appeal the $55,420 award.

     Plaintiff gained a reversal and remand, but it will only mean that some of the costs will need to be excluded. The appellate court, although indicating the review standard is abuse of discretion, found that plaintiff did have reasonable basis to deny some requested facts, so that section 2033.420’s legal requirements for assessments of costs were not met. The appellate panel remanded for recalculation of a proper costs-of-fee award, although it did delineate which denied RFAs would allow for a costs assessment on remand.