Michelle Mitchell v. Marcus Smith, et al.

(Stanley Mosk Courthouse: Dept. 407) September 2, 2026 DEPARTMENT 407 LAW AND MOTION RULINGS

Judge Brock T. Hammond, Department 407 HEARING DATE: September 2, 2026 TRIAL DATE: Disposed by jury verdict CASE: Michelle Mitchell v. Marcus Smith, et al. CASE NO.: 21STCV06946 MOTION FOR ATTORNEY'S FEES BY DEFENDANT MARCUS SMITH PLAINTIFF MICHELLE MITCHELL'S MOTION TO TAX COSTS SUBMITTED BY DEFENDANT MARCUS SMITH

I. BACKGROUND

This is a breach of contract and fraud action arising from the purchase of the real property located at 24006 Hatteras Street, Woodland Hills, California 91367 (the "Property"). Plaintiff, Michelle Mitchell, purchased the Property from Defendants, Marcus Smith ("Marcus") and Helen Smith ("Helen"). According to the Complaint, Defendants failed to conduct a survey or investigate the true boundary line of the Property before making false representations to Plaintiff about the shape, size, and boundaries of the Property. As a result, Plaintiff lost roughly 2206 square feet of land purchased in the sale agreement.

On February 22, 2021, Plaintiff commenced this action against Defendants, alleging causes of action for (1) breach of written contract, (2) breach of implied covenant of good faith and fair dealing, (3) fraud: intentional misrepresentation, (4) fraud: negligent misrepresentation, (5) fraud: concealment, and (6) negligence.

On November 5, 2025, Plaintiff dismissed Helen from this action with prejudice. On November 14, 2025, the jury returned a verdict in Marcus's favor. On May 8, 2026, the court entered judgment. On May 21, 2026, Marcus filed a Memorandum of Costs.

Motion for Attorney Fees

On June 22, 2026, Marcus filed a motion for attorney fees. On August 20, 2026, Plaintiff filed an opposition. On August 25, 2026, Defendant filed a reply.

Motion to Tax Costs

On June 8, 2026, Plaintiff filed a motion to tax costs. On August 17, 2026, Defendant filed an opposition. On August 26, 2026, Plaintiff filed a reply. The court begins by addressing the motion for attorney fees.

II. DISCUSSION RE MOTION FOR ATTORNEY FEES

A. Evidentiary Objections

Defendant submits four objections to portions of the Declaration of Thomas M. Brown and two objections to portions of the Declaration of Tyler R. Creekmore. The objections to the Brown Declaration are OVERRULED. Objection No. 1 to the Creekmore Declaration is SUSTAINED as improper argument. Objection No. 2 to the Creekmore Declaration is OVERRULED.

B. Legal Standard

¿ "Except as attorney's fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties; but parties to actions or proceedings are entitled to their costs, as hereinafter provided."¿ (Code Civ. Proc., Sec. 1021.)¿ Attorney's fees are allowable costs under Code of Civil Procedure section 1032 when authorized by contract, statute, or law.¿ (Code Civ. Proc., Sec. 1033.5(a)(10).)¿¿¿Generally, the "prevailing party" includes "a defendant in whose favor a dismissal is entered." (Code Civ. Proc., Sec. 1032(a)(4).)

"In any action on a contract, where the contract specifically provides that attorney's fees and costs . . . shall be awarded . . . to the prevailing party, then the party who is determined to be the party prevailing on the contract, . . . shall be entitled to reasonable attorney's fees in addition to other costs." (Civ. Code Sec. 1717(a).) The "prevailing" party is the party who recovered greater relief in the action on the contract. (Civ. Code, Sec. 1717(b)(1).) " Where an action has been voluntarily dismissed or dismissed pursuant to a settlement of the case, there shall be no prevailing party for purposes of this section." (Civ. Code, Sec. 1717(b)(2).)

A cause of action is "on a contract" for purposes of the contractual attorney fee statute if: (1) the cause of action "arises out of, is based upon, or relates to" an agreement and (2) the agreement contains an attorneys' fees clause. (Westwood Homes, Inc. v. AGCPII Villa Salerno Member, LLC (2021) 65 Cal.App.5th 922, 927.)

C. Application

Defendant seeks an attorney fees award pursuant to the attorney fees provision in the Purchase Agreement. Defendant argues he is the prevailing party on the third, fourth, fifth, and sixth causes of action the ("Tort Claims") which arise from the Purchase Agreement. The court agrees.

The Purchase Agreement provides, in pertinent part, "In any action, proceeding, or arbitration between [Plaintiff] and [Defendant] arising out of this [Purchase] Agreement, the prevailing Buyer or Seller shall be entitled to reasonable attorney fees and costs from the non-prevailing Buyer or Seller, except as provided in paragraph 22A." (Complaint, Ex. A (the "Purchase Agreement"), P. 25.) Paragraph 22A of the Purchase Agreement excludes any party from an award of attorney's fees if that party "refuses to mediate after a request has been made...."

In opposition, Plaintiff argues the motion should be denied for two interrelated reasons: (i) Defendant failed to participate in mediation prior to proceeding in this civil action, and (ii) Marcus refused the mediation request. These arguments lack merit. Plaintiff's evidence does not establish that Marcus refused the mediation request. Plaintiff's counsel's contemporaneous notes of a phone conversation with Marcus prior to the filing of this action do not indicate that Marcus refused mediation. (See Brown Decl., Ex. 2.)

Plaintiff also submits the declaration of her attorney, Tyler Creekmore, wherein Mr. Creekmore states that, around December 2022, he emailed and called Mr. Christopher Reyes, Defendants' attorney at that point, about attending private mediation, and that Mr. Reyes refused to attend mediation with the other defendants. (Creekmore Decl., P. 5.) Mr. Creekmore further states that subsequent to the mediation, Helen and Marcus continued to refuse to mediate. (Id.)

The court is not persuaded by Mr. Creekmore's declaration. Mr. Reyes is deceased, and thus, cannot confirm nor deny whether any such mediation requests were made and refused on Marcus's behalf. In any event, the court notes that Mr. Creekmore references emails regarding mediation requests but does not provide any of those emails to the court. Mr. Creekmore also vaguely states that the Smiths continued to refuse mediation but does not indicate when those refusals were made, or whether Plaintiff made further requests to mediate. Based on this evidentiary record, the court cannot conclude Marcus refused mediation.

Plaintiff next argues that Marcus's course of conduct amounted to a refusal. For this proposition, Plaintiff relies primarily on Frei v. Davey (2004) 124 Cal.App.4th 1506. However, Plaintiff's reliance is misplaced. In Frei, p rospective buyers sued for specific performance after sellers cancelled a residential purchase agreement containing a mediation provision like the one at issue in the present case. (Id. at pp. 1509-1510.) Buyers demanded mediation prior to filing suit but received no response, then upon further inquiry after filing suit were informed sellers did not wish to mediate. (Id. at p. 1513.) Sellers eventually participated in mediation, but at the request of another party nearly one year later, on the eve of trial. The Frei court found that the sellers' refusal to mediate could not be cured one year later. (Frei, supra, at p. 1517.)

This case is distinguishable from Frei in two critical ways. [1] First, as discussed above, there is no evidence to establish to the satisfaction of this court that Marcus refused mediation prior to the commencement of this litigation. Indeed, Marcus acknowledges he spoke to Plaintiff's counsel on November 25, 2020 to discuss mediation, among other things, and that he "did not refuse mediation" and "decided I needed to contact an attorney to represent me in this matter." (M. Smith Decl., P. 4.)

Second, there is insufficient evidence to establish that Defendant or his prior counsel, Mr. Reyes, refused mediation after the commencement in this action. Absent a showing that Defendant refused mediation after this action was filed, the court cannot conclude Marcus's inaction regarding the mediation request amounted to a refusal. Under these facts, the court cannot find that paragraph 22A of the Purchase Agreement applies in this matter. In sum, Defendant is entitled to an award of reasonable attorney fees. The court proceeds to consider the amount.

Reasonableness of Award

Defendant seeks an award of $151,700.00. The request is based upon invoices from Craig Forry (Defendant's current counsel) and Christopher Reyes (Defendant's former counsel). (See Forry Decl., Exs. 5, 6; Smith Decl., Ex. 9.) Plaintiff argues the requested award is unreasonable and/or unsupported by the evidence for the following reasons: (i) the Reyes Invoices are mostly illegible and contain charges for work on a summary judgment motion which was never filed; (iii) the Forry Invoices include entries for unnecessary work and clerical work, as well as duplicative entries. For these reasons, Plaintiff argues the requested award should be reduced significantly as detailed in the Mr. Creekmore's declaration.

The determination of 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.) "The determination of what constitutes a reasonable fee generally 'begins with the 'lodestar,' i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate....'"

"[T]he lodestar is the basic fee for comparable legal services in the community; it may be adjusted by the court based on factors including, as relevant herein, (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, (4) the contingent nature of the fee award...." (Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154.)

In setting the hourly rate for an attorney fees award, courts are entitled to consider the rate of "'fees customarily charged by that attorney and others in the community for similar work.'" (Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal.App.4th 976, 997 [affirming rate of $450 per hour], overruled on other grounds by Lakin v. Watkins Associated Indus. (1993) 6 Cal.4th 644, 664.) The burden is on the party seeking attorney fees to prove reasonableness of the fees. (Center for Biological Diversity v. County of San Bernardino (2010) 188 Cal.App.4th 603, 615.)

A trial court has broad discretion in determining the amount of a reasonable attorney's fee award which will not be overturned absent a "manifest abuse of discretion, a prejudicial error of law, or necessary findings not supported by substantial evidence." (Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379, 1393-94.) The court need not explain its calculation of the amount of attorney's fees awarded in detail; identifying the factors considered in arriving at the amount will suffice. (Ventura v. ABM Industries Inc. (2012) 212 Cal.App.4th 258, 274-75.)

"Attorney's fees need not be appo rtioned when incurred for representation on an issue common to both a cause of action in which fees are proper and one in which they are not allowed." (Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 129-30; see also Abdallah v. United Sav. Bank (1996) 43 Cal.App.4th 1101, 1111 (noting the impracticability and impossibility to separate compensable and noncompensable time units where it was reasonable for a trial court to find various claims were inextricably intertwined).)

After reviewing the briefing and supporting evidence, the court agrees with many of Plaintiff's challenges to the Defense counsel's billing invoices. The court will award attorney fees in the sum of $35,932.50 in attorney fees.

D.

Conclusion

The motion for attorney's fees is GRANTED IN PART. Defendant Marcus Smith is awarded attorneys' fees in the sum of $35,932.50.

III. DISCUSSION RE MOTION TO TAX COSTS

A.

Legal Standard

A party challenging the amounts claimed may file a motion to tax costs, which must be served and filed 15 days after service of the cost memorandum.¿ If the cost memorandum was served by mail, the period is extended as provided in Code of Civil Procedure section 1013. If the cost memorandum was served electronically, the period is extended as provided in Code of Civil Procedure section 1010.6, subdivision (a)(4).¿ (Cal. R. Ct., rule 3.1700(b)(1).)¿ "Unless objection is made to the entire cost memorandum, the motion ... must refer to each item objected to by the same number and appear in the same order as the corresponding cost item claimed on the memorandum of costs and must state why the item is objectionable."¿ (Cal. R. Ct., rule 3.1700(b)(2).)¿¿¿¿¿ ¿¿¿¿¿¿

The memorandum of cost is a verified statement by the party, attorney, or agent that the costs are correct and were necessarily incurred in the case. (Cal. R. Ct., rule 3.1700(a)(1).) "If the items appear to be proper charges, the verified memorandum is prima facie evidence that the costs, expenses and services therein listed were necessarily incurred by the defendant, and the burden of showing that an item is not properly chargeable or is unreasonable is upon the [objecting party]." (Oak Grove School Dist. v.

City Title Ins. Co. (1963) 217 Cal.App.2d 678, 698.) "[I]f the correctness of the memorandum is challenged either in whole or in part by the affidavit or other evidence of the contesting party, the burden is then on the party claiming the costs and disbursements to show that the items charged were for matters necessarily relevant and material to the issues involved in the action." (Id. at p. 699.) ¿¿¿¿

Code of Civil Procedure section 1033.5 lists the costs that are recoverable.¿ Section 1033.5 provides: "(1) Costs are allowable if incurred, whether or not paid. (2) Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation. (3) Allowable costs shall be reasonable in amount. (4) Items not mentioned in this section ... may be allowed ... in the court's discretion."¿ (Code Civ. Proc., Sec.¿1033.5, subd. (c).)¿¿¿¿

B. Application

Defendant, as the prevailing party, seeks to recover costs in the sum of $5,097.41. Plaintiff moves to taxing Defendant's costs in the amount of $3,122.55, which consists of $180 in service of process fees, $2,800 in expert fees based on a Code of Civil Procedure section 988 settlement offer, and $242.55 in models, enlargements, and photocopies. Plaintiff argues the foregoing costs are unsubstantiated, excessive, not reasonably incurred, and/or unauthorized by the cost statute.

After reviewing the memorandum of costs, the moving papers, opposition, and reply, the court finds that the challenged costs were necessary and reasonably incurred in the prosecution of this litigation.¿ To the extent the claimed costs are not recoverable as a matter of right, such as the expert fees under Code of Civil Procedure section 998, the court exercises its discretion to award the costs. (Code. Civ. Proc., Sec.Sec. 998, subd. (c)(1); 1033.5, subd. (c).)

As to the expert fees, Plaintiff argues the 998 offer was invalid the 998 offer was not sufficiently specific. The court disagrees. An offer to compromise under Code of Civil Procedure section 998 must be sufficiently specific to allow the recipient to evaluate the worth of the offer and make a reasoned decision whether to accept the offer." (Fassberg Construction Co. v. Housing Authority of City of Los Angeles (2007) 152 Cal.App.4th 720, 764.)

Here, Defendant offered to settle the case for the sum of $12,500 in exchange for the following:

1. The entry of a Request for Dismissal, with prejudice, of the entire action of all parties and all causes of action;

2. The execution and transmittal of a general release of all claims and causes of action in this action by Plaintiff in favor of Defendant and all of the other defendants in this action in full settlement of this action; and

3. Each party to bear its own attorneys' fees and costs.

This Offer is made solely for the purpose of resolving this action and thereby avoiding additional costs of litigation in this matter, and it does not in any way constitute an admission of wrongdoing, fault, or liability by Defendant or any of the other defendants in this action. The offer clearly indicated that all parties would bear their own fees and costs. The court finds the offer was sufficiently specific.

Plaintiff next argues that at least some of Defendant's expert fees should be stricken because some of those fees were incurred before the Section 998 offer was made. [2] Code of Civil Procedure section 998 states in relevant part, " If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover their postoffer costs and shall pay the defendant's costs from the time of the offer." (Code Civ. Proc., Sec. 998(c)(1), emphasis added.)

As Plaintiff explains, Defendant contacted David Stern on September 3, 2025 to address foundation issues in the Property raised by Plaintiff. The offer was made on September 5, 2025 at 4:06 p.m. Accordingly, any fees incurred prior to the offer are not recoverable. For this reason, the court will tax $1,200 from Defendant's expert fees.

C.

Conclusion

The motion to tax costs is GRANTED IN PART. Defendant Marcus Smith is awarded costs in the reduced sum of $3,897.41

IV. DISPOSITIONS

The motion for attorney's fees is Granted In Part. Defendant Marcus Smith is awarded attorneys' fees in the reduced sum of $ 35,932.50

The motion to tax costs is Granted In Part. Defendant Marcus Smith is awarded costs in the reduced sum of $3,897.41

Defendant to give notice, unless waived.

Dated: September 2, 2026 | | | Brock T. Hammond