It Found That A Putative Prevailing Party’s Reversal Of An Initial Decision to Refuse Mediation Might Entitle That Party To Fee Recovery If The Reversal Was Unequivocal In Nature; However, Costs Were Properly Denied Based On Not Filing A Timely Costs Memorandum.
Evleshin v. Meyer, Case No. H051869 (6th Dist. Nov. 6, 2025) (published) involved a residential property dispute between plaintiff buyers and defendant sellers, with buyers suing for breach of contract and fraud. A standard Residential Purchase Agreement was involved, which contained both a prevailing party fees/costs clause and a mediation condition precedent clause with respect to recovery of fees/costs. Sellers initially refused buyers’ offer to mediate, but reversed course and offered to mediate before suit was filed by buyers. After a 3-day bench trial, sellers prevailed, with the lower court entering a judgment indicating sellers were the prevailing parties and entitled to recovery of fees/costs. However, the trial judge denied sellers’ post-judgment motion for fees and costs based on the perception that sellers had failed to satisfy the mediation conditions precedent clause by initially refusing to mediate. The lower court also denied costs because sellers filed to timely file a costs memorandum and because there was no basis for an award of expert witness expenses, with sellers eventually conceding that the failure to file a costs memorandum was fatal to their recovery of costs.
The Sixth District reversed and remanded the fee denial, rejecting sellers’ first argument on appeal but finding that the second challenge had merit.
Seller’s first argument—that the judgment recital stating they were prevailing parties was tantamount to a preclusive final decision—was rejected because it was interlocutory in nature, subject to subsequent modification by the trial court, heavily relying on PR Burke Corp. v. Victor Valley Wastewater Reclamation Authority, 98 Cal.App.4th 1047, 1055 (2022).
The second challenge was found convincing based on a de novo review of the contractual meaning of the mediation condition precedent clause given that no conflicting extrinsic evidence was involved. The record showed that sellers reversed course and offered to mediate after the initial refusal to do so, which means that the condition precedent clause may have been satisfied. The appellate court held that a party should not be penalized for correcting a mistaken position on pre-suit mediation, as this would constitute an undesirable forfeiture. However, a remand was in order because the trial judge did not determine if sellers’ offer was unequivocal in nature—a finding which had to be made before the merits of the fee motion could be adjudicated.