RETURN ON REMITTITUR; MOTION FOR ATTORNEY FEES
LAW AND MOTION TENTATIVE RULINGS DATE: AUGUST 6, 2026 TIME: 8:30 A.M.
(Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters; therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, supra, 147 Cal.App.4th at p. 747.)
“The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” (Code Civ. Proc., § 436.)
Defendants Christine Thorne and Charles E. Thorne dba Quality Homes demur to the third cause of action for fraudulent concealment and fourth cause of action as to intentional misrepresentation as to Charles Thorne, and the sixth cause of action for negligence as to Christine Thorne and Charles Thorne on the grounds they fail to state facts sufficient to support them. (Code Civ. Proc., § 430.10(e).) Defendants also move to strike plaintiff’s prayer for relief as to Charles Thorne.
Based on the Court’s review of the complaint, when read liberally and in context, plaintiff’s allegations are sufficient to support her claims for fraudulent concealment and intentional misrepresentation against Charles Thorne, one of the primary owners of Quality Homes, and negligence against the Thornes related to their renovations to the property and duty to subsequent owners. The demurrer is therefore overruled.
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No. 21CV01686
EVLESHIN et al. v. MEYER et al.
RETURN ON REMITTITUR
I. BACKGROUND
The Evleshins and the Meyers entered into a residential Purchase Agreement (“Agreement”) for the sale of property with a home. For the purposes of this motion, the relevant sections of the Agreement are as follows:
“Section 25. ATTORNEY FEES: in any action, or arbitration between Buyer or Seller arising out of this agreement, the prevailing Buyer or Seller shall be entitled to reasonable
LAW AND MOTION TENTATIVE RULINGS DATE: AUGUST 6, 2026 TIME: 8:30 A.M.
attorney fees and costs from the non-prevailing Buyer or Seller, except as provided in paragraph 22A.”
Section 22A of the Agreement provides “the Parties agreed to mediate any dispute or claim arising between them out of this Agreement, or any resulting transaction, before resorting to arbitration or court action ... .” This section goes on to state that if a party commences an action without first attempting to resolve the matter through mediation or before commencement of an action, refuses to mediate after a request has been made, they “shall not be entitled to recover attorney fees, even if they would otherwise be available to that Party in any such action.”
Disputes arose between the parties after the sale. On May 15, 2021, the Evleshins demanded that the Meyers mediate. On May 31, 2021, the Meyers, through their counsel, rejected the demand. Then, on July 10, 2021, the Meyers emailed the Evleshins, asking if they would agree to mediate. On July 12, 2021, the Evleshins filed this lawsuit, and a day later, filed their first amended complaint, alleging causes of action for breach of contract, fraud and deceit, concealment, and negligent misrepresentation.
On July 14, 2021, the Evleshins emailed counsel for the Meyers, stating they were not interested in mediation. On July 19, 2021, the Meyers’ counsel emailed the Evleshins, confirming that they did not agree to mediate. On July 21, 2021, the Meyers were served with the summons and first amended complaint. On November 5, 2021, the Meyers file a cross-complaint against the Evleshins for breach of contract. The case proceeded to court trial. The court found in favor of Meyers, determined they were the prevailing parties and were entitled to recover attorney fees and costs as permitted by the Agreement.
The Meyers filed a post-judgment motion for attorney fees and costs. This Court denied the motion, citing Meyers’s initial refusal to mediate. The Court also denied the request for costs because the Meyers failed to file the required memorandum of costs.
The Meyers appealed the Court’s denial of their fee motion.
II. APPELLATE PROCEEDING
The Sixth District Court of Appeal found that the fee disentitlement provision in the Agreement was ambiguous and held that that the Meyers’ initial refusal to mediate did not result in an automatic forfeiture of their contractual right to prevailing-party attorney fees. “We hold here that fee disentitlement (under the Agreement’s language in the fourth sentence, clause (ii)) is inappropriate and works as an unlawful forfeiture where the party, after its initial refusal to mediate and before an action is filed, expresses a willingness to mediate.” (Evleshin v.
Meyer (2025) 115 Cal.App.5th 1021, 1044.) Specifically, the Sixth District determined that “a party refusing a pre-suit request to mediate would be barred from recovering prevailing party attorney fees only if he or she did not retract that refusal by agreeing to mediate before the action is filed.” (Evleshin, supra, 115 Cal.App.5th at p. 1040.)
LAW AND MOTION TENTATIVE RULINGS DATE: AUGUST 6, 2026 TIME: 8:30 A.M.
III. ISSUES FOR THIS COURT TO DETERMINE
This case was remanded by the Sixth District Court of Appeal on January 6, 2026, for this Court to make a finding “whether the July 10, 2021 e-mail was a specific and unequivocal offer to mediate. ... If the trial court concludes that the Meyers did, in fact, make an offer to mediate (effectively retracting their prior May 31, 2021 refusal of the Evleshins’ request to mediate), it shall proceed to decide the merits of the Meyers’ motion for prevailing-party attorney fees under paragraph 25 of the Agreement.” (Evleshin, supra, 115 Cal.App.5th at pp. 1045-1046.).
In footnote 18 of the opinion, the Sixth District notes “[t]he trial court may also consider whether the Meyers, in their filing of the cross-complaint subsequent to the Evleshins filing their complaint, were required to satisfy (and if so, did satisfy) the obligation in paragraph 22A (fourth sentence clause (i)) of ‘first attempting to resolve the [dispute or claim] through mediation’ before ‘commenc[ing] ... an action.’” (Evleshin, supra, 115 Cal.App.5th at fn. 18.)
IV. POSITION OF THE PARTIES
In their supplemental briefing, the Meyers assert that though they initially declined to mediate, they re-opened the door to mediation before the Evleshins’ filed suit via the July 10, 2021 email.
In opposition, Sequoia Evleshin, who is self-represented, argues that the Meyers’ July 10, 2021, email failed to retract their May 31, 2021 refusal to mediate because the Evleshins had already changed their position by preparing and filing their lawsuit. (S. Evleshin’s Supp. Brief at p. 2.) Plaintiff Sequoia Evleshin filed a 5-page declaration in support of his opposition. He identifies himself as an attorney. He states that he did not review the July 10, 2021 email until July 13, 2021 – a day after he filed the complaint and the day he filed the first amended complaint.
Nicole Evleshin, who is represented by counsel, argues that the Meyers’s July 10, 2021, email was sent on a Saturday and so “the earliest the Evleshins could have received the retraction of the denial to mediate was Monday, July 12.” (N. Evleshin’s Opp. at p. 3.) Nicole Evleshin asserts that “the Evleshins are not attorneys and did not conduct any commercial activities during normal business hours, and that under the Agreement actual notice is a requirement.” (N. Evleshin’s Opp. at p. 4.)
V. DISCUSSION
a. The Meyers Offered to Mediate Prior to the Filing of the Lawsuit
LAW AND MOTION TENTATIVE RULINGS DATE: AUGUST 6, 2026 TIME: 8:30 A.M.
The Court finds that the Meyers offered to mediate prior to the Evleshins’ filing their complaint and first amended complaint, as evidenced by the July 10, 2021 email and subsequent emails. On July 10, the Meyers reached out to the Evleshins. (Sequoia Evleshin identifies himself as an attorney in filings with a 2022 admission bar date despite Nicole Evleshin’s assertion that “the Evleshins are not attorneys.”) On July 12 the Evleshins filed their complaint and a day later, their first amended complaint. Therefore, the Meyers made an unequivocal offer to mediate before the action was filed. Sequoia Evleshin acknowledged on July 14, 2021, that he and his wife were not willing to mediate their claims against the Meyers after they initially rejected their offer. Counsel for the Meyers asked again, on July 14, if the Evleshins would agree to mediate or arbitrate.
The Court does not find that the Meyers were required to ask again to mediate before filing their cross-complaint for breach of contract on November 5, 2021. The Evleshins made it clear in their July 14, 2021, email that that they were not interested in mediating their claims against the Meyers. It would make little practical sense to mediate some of the claims while leaving the related claims of the other party, based upon the same contract, to proceed through a civil action.
Nicole Evleshin argues that defendants are estopped from recovering fees due to detrimental reliance. This issue is not within the scope of this Court’s task on remand. The Court was instructed to determine whether the Meyers’ July 10, 2010, email was an offer to mediate before the suit was filed, and if it was, to proceed to consider the merits of the motion for attorney fees. This Court so finds, and thus proceeds with a calculation of fees.
b. Attorney fees
In ruling on this motion, the trial court must first determine a touchstone or “lodestar” figure based on a careful compilation of the time spent and reasonable hourly compensation for each attorney involved in the presentation of the case. (Serrano v. Priest (1977) 20 Cal.3d 25, 48 (Serrano III).) That figure may then be increased or reduced by the application of a “multiplier” after the trial court has considered other factors concerning the lawsuit. (Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 322.)
The determination of a reasonable amount of attorney fees is within the sound discretion of trial courts. (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095; Akins v. Enterprise Rent- A-Car Co. (2000) 79 Cal.App.4th 1127, 1134.) An experienced trial judge is in a position to assess the value of the professional services rendered in his or her court. (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 255, disapproved on other grounds by Hernandez v. Restoration Hardware, Inc. (2018) 4 Cal.5th 260, 270.)
Courts are not required to adopt the rates set forth by either party. Courts must rely on testimony from counsel based on professional
LAW AND MOTION TENTATIVE RULINGS DATE: AUGUST 6, 2026 TIME: 8:30 A.M.
experience and apply hourly rates that are appropriate in the region. (Tukes v. Richard (2022) 81 Cal.App.5th 1, 18; Syers Properties III, Inc. v. Rankin (2014) 226 Cal.App.4th 691, 702.)
Trial courts are not required to adopt the rate counsel opines as the “market rate” for services. (Ibid.)
Factors courts apply in reviewing fee requests:
• “In determining what constitutes a reasonable attorney fee when a contract or statute provides for such an award, courts should consider the nature of the litigation, its difficulty, the amount involved, and the skill required and success of the attorney's efforts, his or her learning, age and experience in the particular type of work demanded, the intricacies and importance of the litigation, the labor and necessity for skilled legal training and ability in trying the cause, and the time consumed.” (Contractors Labor Pool, Inc. v. Westway Contractors, Inc. (1997) 53 Cal.App.4th 152, 168.)
• The degree of success in obtaining litigation objectives is a factor that judges may, but are not required to, consider in determining the award of reasonable attorney fees. (Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379, 1397; Meister v. Regents of Univ. of Cal. (1998) 67 Cal.App.4th 437, 454.)
• In supporting attorneys’ fees motions, “‘there is no required level of detail that counsel must achieve.’” (Syers Properties III, Inc., supra, 226 Cal.App.4th at p. 699.) It is not necessary to provide detailed billing timesheets to support an award of attorney fees under the lodestar method.... Declarations of counsel setting forth the reasonable hourly rate, the number of hours worked, and the tasks performed are sufficient.” (Concepcion v. Amscan Holdings, Inc. (2014) 223 Cal.App.4th 1309, 1324.)
• “[A]ttorneys’ fees need not be reduced for work on unsuccessful claims if the claims ‘are so intertwined that it would be impracticable, if not impossible, to separate the attorney's time into compensable and noncompensable units.’” (Mann v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328, 342.)
• Records amounting to vague block billing are not objectionable per se, but are a risky choice, because moving parties have the burden to support fees requests, and the strategy may lead to trial courts’ discretionary curtailing of the number of compensable hours. (Christian Research Inst. v. Alnor (2008) 165 Cal.App.4th 1315, 1325.)
LAW AND MOTION TENTATIVE RULINGS DATE: AUGUST 6, 2026 TIME: 8:30 A.M.
The Meyers filed their initial motion for attorney’s fees and costs on June 5, 2023, pursuant to Civil Code section 1717, seeking $114,664.69.1 The Court reviewed the claimed rates (Harmon at $350.00 per hour and unnamed paralegal $150.00 and $50.00/per hour) and found the rates reasonable and appropriate for the region.
The Court reviewed the 27 pages of billing records attached as Exhibit F to the declaration of Harmon from the Meyers’ original motion for attorney fees. The first billing entry is dated July 13, 2021 and the last entry is dated May 9, 2023.
The Court found instances of block and excessive billing, and vague description of work performed. Therefore, the Court reduces the billing as follows:
• Motion to Appoint Referee filed by the Meyers which was ultimately denied by the Court. The Court finds these entries excessive and/or vague and resulted in an unsuccessful motion. Further, there is a 4.7-hour entry for Motion to Compel Arbitration, but no such motion was ever filed. The Court will deduct these times, billed at $350.00/hour: o July 21, 2021: Drafting and reviewing proposed Motion to Appointment Referee. 3.25 hours. o July 29, 2021: Drafting Motion to Compel Arbitration: 4.7 hours. o August 10, 2021: Drafting Motion for Appointment of Referee: 2.0 hours. o August 11, 2021: Proofing and filing Motion for Appointment of Referee: 1.25 hours. o August 26, 2021: Reviewing opposition to ADR and legal research: 5.5 hours. o September 10, 2021: Drafting and reviewing legal brief: 2.5 hours.
The Court will deduct 19.2 hours or $6,720.00.
• Drafting Cross-Complaint. Counsel billed 11.75 hours to draft a Judicial Council form cross-complaint (billing entries on October 30, 2021, November 1, 2021, and November 4, 2021.). This is excessive; the Court will award 2 hours for the drafting of the cross- complaint.
1 This amount includes $106,739.00 in attorney fees and $3,340.69 in costs. As previously noted by this Court, and affirmed by the Sixth District, the Meyers failed to file a memorandum of costs and therefore, are precluded from recouping such costs. “This court accepts the Meyers’ concession and acknowledge that the trial court correctly ruled that the Meyers, having failed to file a verified memorandum of costs as required under rule 3.1700(a)(1), are not entitled to their prejudgment costs.” (Evleshin v. Meyer (2025) 115 Cal.App.5th 1021, 1047.)
LAW AND MOTION TENTATIVE RULINGS DATE: AUGUST 6, 2026 TIME: 8:30 A.M.
• Drafting Answer to Complaint. Counsel billed 16.5 hours for drafting the answer to the first amended complaint (billing entries on November 2, 3, & 4, 2021). The Court will award 4 hours. • Reviewing Plaintiffs’ Answer to Cross-Complaint. Counsel billed 2.5 hours (On December 16, 2021) to review a 6-page answer to cross-complaint. The Court will award 1 hour for review. • Reviewing Plaintiffs’ Motion for Sanctions. Counsel billed at least 9.25 hours to review and perform research into this motion which was withdrawn 8 days after it was filed, and defendants never filed an opposition.
The Court will award 2 hours of time. • Preparing meet and confer letter regarding discovery. Counsel billed 5 hours on February 23, 2022 and 3.75 hours on February 24, 2022. The Court will award 3 hours of time. • Legal research. Counsel billed 7.25 hours on March 29, 2022, for legal research re: discovery petitions and drafting responses. This is vague; the Court cannot discern the reasonable amounts for each task. The Court will award 2 hours. • Legal research. Paralegal billed 4 hours for legal research on April 1, 2022.
No further information is available and there was no description of the work performed. Therefore, the Court awards 0 hours for this entry. • Discovery responses. On April 7, 2022, counsel Harmon billed 12.12 hours, and his paralegal billed 12.15 hours for reviewing pleadings, defenses, and responses to discovery and formatting and proofing, and re-typing defendants’ responses. This is excessive. The Court will award 4 hours at $350.00/hour for Harmon and 4 hours at $150.00/hour for the paralegal work. • Legal research.
On December 29, 2022, January 14 and 15, 2023 counsel Harmon billed 9.5 hours for “research and analysis for case and potential trial.” On December 30, 2022, counsel Harmon billed 5 hours for research for motion for summary judgment and additional 3 hours for this same research on January 8, 2023. Defendants did not file a motion for summary judgment. This description is vague and the Court cannot discern if the research was reasonable. The Court will not award time for these entries.
In connection with this motion, defendants seek $4,550.00 which is 13 hours. The Court will award 4 hours or $1,400.00.
With the reductions as noted above, the Court awards $77,874.50 in attorney fees against plaintiffs/cross-defendants.