Max Liskin vs Hope Ranch Park Homes Association et al

Case Number

22CV02239

Case Type

Hearing Date / Time

Fri, 06/13/2025 - 10:00

Nature of Proceedings

Motion: Tax Costs; Motion: Attorney Fees

Tentative Ruling

(1)       For the reasons set forth herein, the motion of plaintiff Max Liskin to tax costs is granted, in part and in accordance with this ruling. The court disallows certain items claimed in the memorandum of costs filed on January 23, 2025, by defendants and cross-complainants Creciente, LLC, Mark A. Lowe, and Pauline Lowe, as further discussed herein. The court awards costs in favor of defendants Creciente, LLC, Mark A. Lowe, and Pauline Lowe, and against plaintiff, in the amount of $33,580.10.

(2)       For the reasons set forth herein, the motion of defendants and cross-complainants Marc A. Lowe, Pauline Lowe, And Creciente, LLC, for attorney’s fees pursuant to Civil Code section 1717 and/or Civil Code section 5975, is granted. The court awards attorney’s fees in favor of defendants and cross-complainants and against plaintiff, in the amount of $748,552.75.

Background:

The verified first amended complaint (FAC) filed on February 6, 2023, by plaintiff Max Liskin, as trustee of the Max Liskin Trust dated July 18, 2003, (Liskin) is the operative pleading. As alleged in the FAC:

Liskin is the owner and resident of real property located at 4125 Creciente Drive, Santa Barbara, and defendants Marc A. Lowe and Pauline Lowe are individuals who own, through Creciente, LLC (collectively, the Lowes), real property located at 4121 Creciente Drive (the Lowe Property). (FAC, ¶¶ 1 & 4-5.)

Liskin’s property and the Lowe Property are adjacent to one another on top of the coastal bluff in the common interest development known as Hope Ranch. (FAC, ¶ 9.) Hope Ranch is managed by defendant Hope Ranch Park Homes Association (the Association). (Ibid.) Defendant Marco Del Chiaro was and is the President of the Board of Directors of the Association. (FAC, ¶ 3.) Defendant Jill Van Zeebroeck, also identified as Doe 1, was and is the General Manager of the Association. (FAC, ¶ 3.1.)

The causes of action alleged in the FAC arise from what Liskin contends is a restriction and covenant contained within an original deed recorded on February 27, 1940, (the 1940 Deed) conveying the Lowe Property to the Lowes’ predecessor, and which states that the conveyance is subject to “restrictions and covenants which shall run with the land,” including “That express provision that not more than one main residence as herein provided shall be erected on said property, said residence not to exceed one story in height...” (the One-Story Restriction). (FAC, ¶ 17 & Exh. 6.) As further alleged in the FAC:

Pursuant to the Second Amended and Restated Declaration of Covenants, Conditions and Restrictions (the CCRs) of Hope Ranch, the One-Story Restriction encumbers the Lowe Property and is binding upon and enforceable against the owner of the Lowe Property as a “Various Easement” and an equitable servitude, for the benefit of all other properties in Hope Ranch. (FAC, ¶¶ 18 & 58.1.) Under the CCRs, the Association has a duty to enforce the One-Story Restriction imposed on the Lowe Property pursuant to the 1940 Deed. (FAC, ¶ 18.1.)

In January 2022, the Lowes submitted architectural plans to replace the existing residence on the Lowe Property with a two-story residence (the Lowe Project). (FAC, ¶ 19.) On March 15, 2022, Liskin, through his attorney, sent a letter to the Association asserting that the One-Story Restriction was an equitable servitude which the Association had an obligation to enforce pursuant to the CCRs. (FAC, ¶ 23 & Exh. 9.)

On March 17, 2022, without providing notice to the Association’s members, to Liskin, or to any other neighbors identified as aggrieved persons with respect to the Lowe Project, defendant Del Chiaro, acting as president of the Board of Directors of the Association, entered into what Liskin describes as a “Secret Agreement” with the Lowes to remove and release the One-Story Restriction. (FAC, ¶¶ 25-26 & Exh. 10.) On March 30, 2022, Liskin, through his counsel, notified the Association of Liskin’s intention to commence enforcement proceedings in accordance with Civil Code section 5930 et seq. (FAC, ¶ 30 & Exh. 13.)

The FAC alleges the same first through fourth and sixth through tenth causes of action as those alleged in the original complaint filed by Liskin in this action on June 14, 2022, and omits the fifth cause of action: (1) breach of the governing documents (the Association); (2) breach of fiduciary duties; (3) breach of implied covenant of good faith and fair dealing; (4) breach of the governing documents (the Lowes); (5) [omitted]; (6) fraudulent concealment and deceit; (7) cancellation of instrument; (8) enforcement of the 1940 deed and governing documents; (9) wrongful withholding of association records; and (10) injunctive relief.

On March 7 and 15, 2023, Liskin filed errata to the FAC correcting the identity of the defendants against whom the third cause of action is asserted, among other things.

On March 13, 2023, the Lowes filed their answer to the FAC, admitting and denying allegations therein, and asserting 20 affirmative defenses. Defendant Creciente, LLC, concurrently filed a cross-complaint against Liskin (the Lowes Cross-Complaint), asserting two causes of action to quiet title and for declaratory relief. The Lowes Cross-Complaint seeks a determination and judgment that the One-Story Restriction is void, invalid, or otherwise non-binding with respect to the use of the Lowe Property by the Lowes. (Lowes Cross-Compl., ¶ 18.)

On April 12, 2023, Liskin filed his answer to Lowes Cross-Complaint, admitting and denying allegations therein, and asserting 21 affirmative defenses.

On June 27 and July 21, 2023, the Association, Del Chiaro, and Van Zeebroeck filed, respectively, an answer and first amended answer to the FAC.

On March 15, 2024, the court entered an order setting the matter for a 10-day trial scheduled to begin on October 21, 2024.

On October 16, 2024, the Lowes filed a “Stipulation Regarding Issues To Be Tried” (the Stipulation), which is executed by the parties’ counsel and in which the parties agreed: (1) that the Association’s grant of “conceptual” approval of the Lowe Project is vacated; (2) that the Lowes, the Association, Del Chiaro, and Van Zeebroeck will rescind their March 17, 2022, “Release of Deed Restrictions & Agreement to Defend and Indemnify” (the Agreement), which was recorded in the official records of Santa Barbara County on October 18, 2024; (3) that the only issue remaining for trial is the enforceability of the One-Story Restriction alleged in the eighth and tenth causes of action of the FAC and which is also the subject of the Lowes Cross-Complaint; (4) that upon completion of a settlement between Liskin and the Association, Del Chiaro, and Van Zeebroeck, and the recission of the Agreement, Liskin will dismiss with prejudice the first, second, third, fourth, sixth, seventh, and ninth causes of action alleged in the FAC as to all defendants; (5) that no party shall be deemed a prevailing party against the other as to these dismissed causes of action; and (6) that neither the Lowes or Liskin shall be deemed a prevailing party against the other as to any issue other than the enforceability of the One-Story Restriction alleged in the eighth and tenth causes of action alleged in the FAC, and in the Lowes Cross-Complaint. (Stip. at p. 2, ll. 10-13.)

On October 17, 2024, Liskin dismissed the FAC as to Del Chiaro and Van Zeebroeck, and dismissed the first, second, third, sixth, and ninth causes of action alleged in the FAC as to the Association.

The matter was tried by the court on October 21 through 24 and 28 through 29, 2024.

On December 16, 2024, the court issued its statement of decision (the SOD), finding, among other things, that the One-Story Restriction contained in the 1940 Deed is not enforceable. (SOD at pp. 16-17.) On December 31, 2024, Liskin filed objections to the SOD and the court issued its ruling on these objections on January 7, 2025.

On January 9, 2025, the court entered judgment (the judgment) in favor of the Lowes and against Liskin on the eighth and tenth causes of action alleged in the FAC, and in favor of Creciente, LLC, and against Liskin on each of the causes of action alleged in the Lowes Cross-Complaint. Pursuant to the judgment, the court awarded the Lowes their costs of suit.

The Lowes filed a notice of entry of the judgment on January 10, 2025.

On January 23, 2025, the Lowes filed a memorandum of costs (the cost memorandum) claiming costs totaling $105,904.73.

On February 11, 2025, Liskin filed a motion for an order (the Cost Motion) striking or reducing costs claimed by the Lowes in the cost memorandum. The Cost Motion is opposed by the Lowes.

On March 11, 2025, the Lowes filed a motion (the Fee Motion) seeking to recover a portion of the attorney’s fees incurred by the Lowes in this matter. The Fee Motion is opposed by Liskin.

Analysis:

(1)       The Cost Motion

The opening memorandum submitted in support of the Cost Motion is 17 pages, which exceeds the 15 page limit set forth in California Rules of Court, rule 3.1113(d).) Liskin has not filed an appropriate application for permission to file a longer memorandum. (See Cal. Rules of Court, rule 3.1113(e).)

Furthermore, though California Rules of Court, rule 2.104, requires that “all papers filed must be prepared using a font size not smaller than 12 points[],” a 10 point font size appears in portions of the opening memorandum, including in footnotes. (See Cost Motion Memo. at pp. 13, 15-18, 24.) The court’s rough calculations show that the use of a smaller font size causes this memorandum to exceed 17 pages.

“A memorandum that exceeds the page limits of these rules must be filed and considered in the same manner as a late-filed paper.” (Cal. Rules of Court, rule 3.1113(g).) California Rules of Court, rule 3.1300(d), permits the court, in its discretion, to refuse to consider a late-filed paper.

Though the court will exercise its discretion to consider the Cost Motion notwithstanding the rule violations further described above, Liskin and his counsel are reminded of their obligation to comply with court rules.

Code of Civil Procedure section 1032 “is the fundamental authority for awarding costs in civil actions. It establishes the general rule that ‘[e]xcept as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.’ [Citation.]” (Scott Co. of California v. Blount, Inc. (1999) 20 Cal.4th 1103, 1108.) (Note: Undesignated code references shall be to the Code of Civil Procedure unless otherwise stated.) Unless otherwise provided by statute, “the court has no discretion to deny costs to the prevailing party.” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 128-129 (Nelson).)  

Section 1033.5, subdivision (a), sets forth items categorically allowable as costs, if incurred. (Segal v. ASICS America Corp. (2022) 12 Cal.5th 651, 667 (Segal).) Costs which are not mentioned in section 1033.5 and claimed under subdivision (c)(4), are allowable in the court’s discretion. (Ibid.) “Costs are allowable . . . whether or not paid...”, must be “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation”, and “reasonable in amount.” (Code Civ. Proc., § 1033.5, subd. (c)(1)-(3); see also Oak Grove School Dist. of Santa Clara County v. City Title Ins. Co. (1963) 217 Cal.App.2d 678, 698 [verified cost memorandum is “prima facie evidence” that the costs were necessarily incurred].)

“If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that were [sic] not reasonable or necessary. On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs.” (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774 (Ladas); see also Nelson, supra, 72 Cal.App.4th at p. 131 [the court first determines whether the cost statute expressly allows the item and if it appears proper on its face].)

Under items 1, 2, 4, 5, 11, 12, and 16 of the cost memorandum, the Lowes claim filing and motion fees in the amount of $2,095, jury fees in the amount of $150, deposition costs in the amount of $21,808.30, costs for service of process in the amount of $1,299.40, court reporter fees as established by statute in the amount of $6,904.25, costs for models, enlargements, and photocopies of exhibits in the amount of $8,900, and “other” costs in the amount of $64,747.78. (Cost Memo. at p. 1.) Noted above, these costs total $105,904.73. (Ibid.)

Information appearing in attachment 16 of the cost memorandum also shows that the “other” costs claimed under item 16 include fees to obtain certified copies of real estate records recorded in the official records of Santa Barbara County, fees for document hosting services provided by “Everlaw”, fees for legal research using services provided by “Thompson Reuters – Westlaw” and “PACER”, fees for electronic filing and service through “Odyssey eFile California”, fees for expert services provided by Chuck Hansen Law & Consulting, John Hebda, R. Stephen Leger, and Petru Corporation, expenses relating to “working” lunches and dinners, and mediation fees. (Cost Memo. [Worksheet] at p. 3, ¶ 16 & Attachment 16 at pdf pp. 51-54.)

(a)       Items allowable as costs:

Under section 1033.5, subdivision (a), filing, motion, and jury fees, the taking and transcribing of necessary depositions, service of process, court reporter fees as established by statute, and costs for models, enlargements, and photocopies of exhibits, are allowable. (Code Civ. Proc., § 1033.5, subd. (a)(1), (3)-(4), (11), & (13).) For these reasons, the costs claimed by the Lowes under cost memorandum items 1, 2, 4, 5, 11, 12 appear proper on their face.

Section 1033.5 also provides that, to the extent a court requires or orders electronic filing or service of documents, the fees “for the electronic filing or service of documents through an electronic filing service provider” are allowable. (Code Civ. Proc., § 1033.5, subd. (a)(14).) For this reason, to the extent item 16 of the cost memorandum includes fees to electronically file and serve documents through “Odyssey eFile California”, which the record reflects total $233.35, these costs are also expressly allowed and appear proper on their face.

For all reasons discussed above, the Lowes have made a prima facie evidentiary showing that costs claimed under items 1, 2, 4, 5, 11, and 12, and that the fees for electronic filing and service through “Odyssey eFile California” claimed under item 16 in the amount of $233.35, are allowable, proper on their face, and were necessarily incurred. As to these costs, “the burden is on [Liskin] to show them to be unnecessary or unreasonable.” (Nelson, supra, 72 Cal.App.4th at p. 131.)

Filing, motion, and jury fees (cost memorandum items 1, 2, and 16):

Wholly absent from the Cost Motion is any reasoned argument showing why the filing, motion, and jury fees claimed under items 1 and 2 of the cost memorandum are unnecessary or unreasonable. Therefore, the court will deny the Cost Motion as to items 1 and 2 and allow filing, motion, and jury fees in the total amount of $2,245.

As to the electronic filing and service fees claimed under item 16, Liskin asserts in the Cost Motion that he does not contest these costs. (See Cost Motion, p. 20, ll. 14-15.) Therefore, the court will also deny the Cost Motion as to electronic filing and service fees included under item 16 and allow these costs in the total amount of $233.35.

Deposition costs (cost memorandum item 4):

Liskin contends that the court should reduce the total deposition costs claimed under item 4 of the cost memorandum by $9,971.35, because, according to Liskin, these costs were incurred in connection with the depositions of board members, general counsel, and person or persons most qualified of the Association, including Del Chiaro and Van Zeebroeck. Liskin argues that these depositions relate only to the causes of action that were dismissed by Liskin under the terms of the Stipulation further described above, which provides that no party will be deemed a prevailing party as to these causes of action.

To support the points advanced by Liskin described above, Liskin submits the declaration of his counsel, Briana E. McCarthy (McCarthy). McCarthy explains that the Stipulation arose from a settlement executed by Liskin, the Association, Van Zeebroeck, and Del Chiaro on October 14, 2024, in which the Association agreed to pay Liskin its policy limits in exchange for a dismissal of the first through third, sixth, and ninth “monetary” claims alleged in the FAC as to Association, and the second and sixth causes of action as to Van Zeebroeck and Del Chiaro. (McCarthy Decl., ¶ 8.)

McCarthy further explains that the Stipulation provides that neither Liskin nor the Lowes shall be deemed a prevailing party as to any issue other than enforcement of the One-Story Restriction in order to “protect our respective clients by reducing the risk to them, respectively, of an adverse result”, and that, under the Stipulation, “both Lowe and Liskin agreed that the only matters to which they would potentially be entitled to claim the benefits afforded to a ‘prevailing party’ were limited to the issues to be tried at trial….” (McCarthy Decl., ¶ 9.) For this reason, McCarthy contends, the Lowes are barred from recovering deposition costs which do not relate to the enforceability of the One-Story Restriction. (Ibid.)

McCarthy also asserts that the purpose of the depositions at issue in the Cost Motion and described above was to discover information that would support Liskin’s dismissed causes of action, and any defenses to those causes of action. (McCarthy Decl., ¶¶ 11-12.) McCarthy further asserts that, to the extent these deponents offered opinions as to the enforceability of the One-Story Restriction, these opinions relate to the dismissed claims and not to the question of whether the One-Story Restriction is an enforceable equitable servitude, which McCarthy contends is ultimately a question of law. (McCarthy Decl., ¶¶ 12-14.) McCarthy also asserts that these deponents did not testify at the trial. (McCarthy Decl., ¶¶ 14-15.)

Though the Stipulation expressly provides that neither Liskin nor the Lowes shall be deemed a prevailing party as to any issue “other than” the enforceability of the One-Story Restriction which is the subject of the eighth and tenth causes of action alleged in the FAC and the Lowes Cross-Complaint, Liskin does not appear to dispute that the Lowes are the prevailing party as to this issue. As the prevailing party, the Lowes are entitled “as a matter of right” to recover costs in this proceeding. (Code Civ. Proc., § 1032, subd. (a)(4).)

Further, the record reflects that the Lowes incurred costs to attend the depositions described above. “The recovery of deposition costs does not depend on whether the deponent ultimately testifies at trial.” (See Chaaban v. Wet Seal, Inc. (2012) 203 Cal.App.4th 49, 57.) For this reason, and as it can be inferred from the available evidence and information presented by the parties that the persons identified above were potential witnesses, “[t]he court [is] well within its discretion to allow [the Lowes] to recover the amounts expended in deposing [them].” (Ibid.)

In addition, “[t]he need for a deposition must be viewed from the pretrial vantage point of a litigant….” (Brake v. Beech Aircraft Corp. (1986) 184 Cal.App.3d 930, 940.) The available information and evidence also show that each of the depositions at issue depositions occurred before the parties executed the Stipulation. (See Cost Motion Memo. at p. 14; McCarthy Decl., ¶ 11 [identifying dates of depositions].) Considering that the Stipulation was executed after these depositions concluded, Liskin fails to explain why these depositions were unnecessary at the time they were taken. (See, e.g., Silver v. Gold (1989) 211 Cal.App.3d 17, 25-26 [general discussion, also noting that there exists no authority requiring voluntary postponement of deposition pending resolution of contested matter].)  

Liskin further contends that the deposition costs claimed under item 4 should be reduced by an additional $525.40, based on the inclusion of what Liskin describes as charges that apply only to remote proceedings. To support this contention, McCarthy states that the depositions of defendant Marc Lowe (Dr. Lowe) and Adrienne Schuele proceeded in person, that the deposition exhibits were not in digital form, and that the attendance of a Veritext videographer and use of video services were paid for directly by McCarthy’s office. (McCarthy Decl., ¶¶ 6, 16-17, & Exhs. 4-6.) McCarthy states that neither she nor anyone from her office requested or used Veritext’s remote applications or features to conduct or participate in the depositions of Dr. Lowe or Schuele. (McCarthy Decl., ¶ 18.)

The court has reviewed the Veritext invoices appearing in attachment 4e to the cost memorandum. Information contained in these invoices shows that the Lowes incurred charges billed by Veritext in connection with the depositions of Dr. Lowe and Schuele. (Cost Memo. Attachment 4e at pdf pp. 11 & 20 [“Bill To” section of invoices].) This evidence is sufficient to show that the Lowes incurred these costs. (Code Civ. Proc., § 1033.5, subd. (c)(1) [“[c]osts are allowable if incurred, whether or not paid...”].) Though Liskin does not appear to dispute that a videographer was present and utilized video services at these depositions, Liskin offers no reasoned argument showing why these depositions were not necessary. For these reasons, the Veritext invoices appear, on their face, to include proper and allowable charges.

For all reasons discussed above, Liskin has failed to meet his burden to show why the deposition costs claimed under item 4 of the cost memorandum should be disallowed or reduced, or why these costs are unreasonable or unnecessary. Therefore, and for all reasons discussed above, the court will deny the Cost Motion as to item 4 and allow deposition costs in the amount of $21,808.30.

Service of process (cost memorandum item 5):

As to service of process claimed under item 5 of the cost memorandum, Liskin requests that the court disallow the amount of $339.40, which Liskin contends reflects a payment made to the “Eltriches”. Liskin asserts that this payment is not allowable under subdivision (a) and is expressly disallowed under subdivision (b)(2) and (3), of section 1033.5.

Based on the court’s review of the documents included in attachment 5d to the cost memorandum, the court understands the payment to the Eltriches at issue in the Cost Motion to relate to a demand for reimbursement of costs to locate responsive documents set forth in a letter dated May 5, 2023, from Edgar C. Eltrich and A. Suzanne Meszner-Eltrich (the Eltriches) to the Lowes’ counsel. (See Cost Memo., Attachment 5d at pdf p. 40.) The demand asserted in this letter is made pursuant to Evidence Code section 1563, subdivision (b), under which “[a]ll reasonable costs incurred in a civil proceeding by a witness who is not a party with respect to the production of all or any part of business records requested pursuant to a subpoena duces tecum shall be charged against the party serving the subpoena duces tecum.” (Ibid.; Evid. Code, § 1563, subd. (b).)

Subdivision (b) of Evidence Code section 1563 sets forth those costs which are deemed to be “reasonable” and provides that a witness “may demand payment of costs pursuant to this section simultaneous with actual delivery of the subpoenaed records” provided that witness submits “an itemized statement for the costs to the requesting party … setting forth the reproduction and clerical costs incurred by the witness.” (Evid. Code, § 1563, subd. (b)(1)-(3).)

It can be reasonably inferred from information appearing in the May 5, 2023, letter from the Eltriches described above, and Liskin does not appear to dispute, that the payment to the Eltriches at issue relates to costs incurred by the Eltriches in connection with the production of records requested pursuant to a subpoena issued by the Lowes, and that these costs were billed by the Eltriches to the Lowes.

The methods by which discovery may be obtained from a person who is not a party to an action are set forth in section 2020.010 et seq. and include a deposition subpoena commanding only the production of business records. (Code Civ. Proc., §§ 2020.010, subd. (a)(3) & (b), & 2020.020, subd. (b).) Section 2020.030 provides that, subject to modifications which do not appear to apply here, “the provisions of Chapter 2 (commencing with Section 1985) of Title 3 of Part 4 of this code, and of Article 4 (commencing with Section 1560) of Chapter 2 of Division 11 of the Evidence Code, apply to a deposition subpoena.” (Code Civ. Proc., § 2020.030.)

For all reasons discussed above, and as section 2020.030 makes the provisions of Evidence Code section 1563 expressly applicable to a deposition subpoena issued under section 2020.020, “obtaining business records through a deposition subpoena is a ‘deposition’ within the plain meaning of the Civil Discovery Act.” (Naser v. Lakeridge Athletic Club (2014) 227 Cal.App.4th 571, 578; see also California Shellfish Inc. v. United Shellfish Co. (1997) 56 Cal.App.4th 16, 21 [“deposition subpoena which seeks only business records simply allows a party to obtain these records without the formality of requiring the testimony of the custodian”].)

Costs incurred by the Lowes in connection with the demand made by the Eltriches in the May 5, 2023, letter described above, are expressly allowable under section 1033.5, subdivision (a)(3), as a cost incurred for the taking of a necessary deposition. Liskin fails to explain why it was not necessary to obtain documents from the Eltriches, or why the costs billed to the Lowes by the Eltriches, which are also itemized in the Eltriches’ May 5, 2023, letter, are not proper on their face or unreasonable.

Liskin also contends that the Lowes have failed to substantiate that they made any payment for $470 in costs incurred in connection with professional services provided by United Process Servers.

Invoices from United Process Servers and other information appearing in attachment 5d to the cost memorandum shows that the costs claimed under item 5 include the amounts of $490 and $470 in fees for services performed by United Process Services on, respectively, April 17, 2023, and May 31, 2023, ostensibly in connection with the issuance of deposition subpoenas. (Cost Memo., Attachment 5d at pdf pp. 29-38.) The invoices from United Process Servers are sufficient to show on their face that the Lowes incurred these costs. (Cost Memo., Attachment 5d at pdf pp. 30-38.)

For all reasons discussed above, costs incurred in connection with the services performed by United Process Servers and described above are allowable notwithstanding whether they were paid by the Lowes. (Charton v. Harkey (2016) 247 Cal.App.4th 730, 739.) Liskin has failed to meet his burden to show why these costs are otherwise unreasonable or unnecessary.

Liskin also argues that the Lowes were overcharged for the service of deposition subpoenas in the amount of $90, and that there exist what Liskin contends are erroneous charges by United Process Servers in the amounts of $95 and $175 for service of process on Patricia Artigas and Lucas Etchegara. (McCarthy Decl., ¶¶ 19-20; see also Cost Memo., Attachment 5d at pdf pp. 30-37 & 41.)

Based on the court’s review of invoices and statements issued by United Process Servers included in attachment 5d to the cost memorandum, the charges appearing on these invoices appear proper. By way of example, though McCarthy contends that United Process Servers charges $145 per address and an additional $55 for each additional persons served at the same address, information appearing in these invoices indicates that the “overcharges” noted by Liskin instead relate to whether a “rush” service was ordered for a particular witness. (See, e.g., Cost Memo., Attachment 5d at pp. 30 [charge for “rush” service] & 36 [charge for service not described as “rush”].) For these reasons, these costs do not appear to include overcharges or errors as Liskin contends.

Apart from the speculative conclusions described above, Liskin fails to otherwise explain why fees incurred by the Lowes for service of process on Patricia Artigas or Lucas Etchegara are unreasonable or unnecessary.

In addition, the Lowes submit with their opposition to the Cost Motion, a declaration of their counsel, Richard Lloyd (Lloyd), and additional documentation, which show that the charges reflected in the United Process Servers invoices described above were paid by the Lowes. (Lloyd Decl. ¶¶ 10-11 & Exhs. 6, 7.)

For all reasons discussed above, Liskin has failed to meet his burden to show why costs for service of process claimed under item 5 of the cost memorandum are not allowable, unreasonable, or unnecessary. Therefore, the court will, for all reasons discussed above, deny the Cost Motion as to item 5, and allow costs for service of process in the amount of $1,299.40.

Court reporter fees (cost memorandum item 11):

As to the court reporter fees claimed under item 11 of the cost memorandum, Liskin contends that only the Lowes’ share of court reporter fees invoiced by the clerk of the court, in the amount of $734.25, is allowable, and that the remaining costs claimed by the Lowes in connection with a “RealTime” feed and transcripts are not allowed under subdivision (b)(5) of section 1033.5. The court understands Liskin’s statement as an agreement by Liskin that he does not dispute that the amount of $734.25 claimed under item 11 is allowable. (See Code Civ. Proc., § 1032, subd. (c); DeSaulles v. Community Hospital of Monterey Peninsula (2016) 62 Cal.4th 1140, 1147 [parties are “free to allocate costs in any manner they see fit”].)

Invoices appearing in attachment 12c to the cost memorandum show that item 11 also includes court reporter fees for transcripts ostensibly dated October 21 through 29, 2024. (Cost Memo., Attachment 12c at pdf p. 49.) These fees were billed to the Lowes by the clerk of the court on October 29, 2024. (Ibid.) These invoices also show that the Lowes incurred fees charged by Shelley Cockrell, who is identified as an official reporter for the court, in connection with unidentified rough and certified transcripts dated from October 21 through October 29, 2024, and a “realtime” feed. (Cost Memo., Attachment 12c at pdf pp. 46-48.)

The record further reflects that the dates noted above correspond with the dates of the court trial further discussed above.

As to the remaining costs for court reporter fees claimed under item 11 of the cost memorandum, which total $6,170, “[t]ranscripts of court proceedings not ordered by the court” are not allowable. (Code Civ. Proc., § 1033.5, subd. (b)(5).) There is no evidence or information to show that the court ordered a transcript of the trial. For this reason, the remaining court reporter fees claimed under item 11 of the cost memorandum, apart from the amount of $734.25 which Liskin does not dispute, are not allowable or proper charges. As these items are properly objected to, the burden of proof is on the Lowes to show why they may recover these remaining court reporter fees. (Ladas, supra, 19 Cal.App.4th at p. 774.)

In their opposition to the Cost Motion, the Lowes assert that, under the CCRs, a prevailing party in an action arising from rights and obligations established or affirmed under the CCRs may recover reasonable costs. (Lloyd Decl., ¶ 3 & Exh. 1 [CCRs], ¶ 11.06.) The Lowes further contend that the CCRs, together with the provisions of the Davis-Stirling Common Interest Development Act (the Act), codified as Civil Code section 4000 et seq., provide the Lowes with a broader right to recover costs, including costs which are not specifically allowed under section 1033.5. Because Liskin has asserted in this action a claim for “expenses” which includes costs not otherwise allowed under section 1033.5, the Lowes argue, they may recover costs which would not otherwise be allowed.

The Act “governs an action to enforce the recorded CC&Rs of a common interest development. “ (Champir, LLC v. Fairbanks Ranch Assn. (2021) 66 Cal.App.5th 583, 590 (Champir).) Under section 5975 of the Act, “[i]n an action to enforce the governing documents, the prevailing party shall be awarded reasonable attorney’s fees and costs.” (Civ. Code, § 5975, subd. (c).) The parties here do not appear to reasonably dispute that the Act governs this action, or that the Lowes are the prevailing party under the Act. (Champir, supra, 66 Cal.App.5th at p. 592; see also Heather Farms Homeowners Assn. v. Robinson (1994) 21 Cal.App.4th 1568, 1572-1574 [general discussion].)

Under subdivision (b) of section 1033.5, a party is precluded from recover costs for transcripts of proceedings not ordered by the court, except where these costs are “expressly” authorized by law. (Code Civ. Proc., § 1033.5, subd. (b).) Though the Act permits a prevailing party to recover reasonable costs, it does not define the costs which are or are not recoverable and does not “expressly” authorize the recovery of costs which are not allowed under section 1033.5. (See Davis v. KGO-T.V., Inc. (1998) 17 Cal.4th 436, 443-445, disapproved on another ground in Williams v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97, 107 [general discussion].) For these reasons, the Act does not expressly authorize the Lowes to recover costs which are not allowable under section 1033.5.

Moreover, as to the Lowes’ argument that Liskin’s demand for “expenses” indicates that the CCRs and the Act may be interpreted to include costs not authorized under section 1033.5, the scope of the term “costs” cannot “be enlarged by contract beyond the costs allowable under Code of Civil Procedure section 1033.5.” (Fairchild v. Park (2001) 90 Cal.App.4th 919, 929.)

For all reasons discussed above, Liskin has met his burden to show that, with the exception of court reporter fees in the amount of $734.25 which Liskin agrees the Lowes may recover, the remaining court reporter fees claimed under item 11 of the cost memorandum are not allowed under subdivision (b) of section 1033.5. Therefore, the Court has no discretion to award these costs. (Ladas, supra, 19 Cal.App.4th at pp. 773-774.)

For all reasons further discussed above, the court will grant the Cost Motion, in part, as to item 11, and disallow $6,170 in court reporter fees claimed under item 11 of the cost memorandum. The court will allow court reporter fees in the amount of $734.25.

Costs for models, enlargements, and photocopies of exhibits (cost memorandum item 12):

Information appearing in attachment 11 to the cost memorandum reflects that the Lowes claim costs for trial technician Madison Miller’s (Miller) time to prepare and present demonstrative evidence at trial, which includes “APN” maps, slideshows setting forth case citations and timelines, the 1940 Deed, and other evidence that was used during the parties’ opening statements, the examination of witnesses in various morning and afternoon trial sessions, and in closing argument. (Cost Memo., Attachment 11.) This information further reflects that the time expended by Miller totals 42 hours, and that Miller’s hourly rate is approximately $200 (8,900 / 42 = 211). (Ibid.)

Section 1033.5, subdivision (a)(13) expressly provides that “the electronic presentation of exhibits, including costs of rental equipment and electronic formatting, may be allowed if they were reasonably helpful to aid the trier of fact.” (Code Civ. Proc., § 1033.5, subd. (a)(13).)

McCarthy asserts that information appearing in trial transcripts shows that three hours of Miller’s time relates to the electronic presentation of exhibits at trial, and the remaining time expended by Miller involved nonrecoverable time expended to attend trial, to compile or update exhibit lists, to file and serve documents, and to prepare slideshows. (McCarthy Decl. ¶¶ 22-24 & Exhs. 7-8.)

McCarthy further asserts that the hourly rate charged for Miller’s time is unreasonable because Miller is a legal assistant and not a paralegal. (McCarthy Decl. ¶¶ 27-29 & Exhs. 9-10.) For these reasons, McCarthy argues, the court should disallow $8,810 in costs claimed under item 12, to reflect a reasonable amount of $90 for three hours of Miller’s time (2 hours on October 22 and 1 hour on October 23), at an hourly rate of $30, which McCarthy contends is the local prevailing hourly rate for similar work. (McCarthy Decl., ¶¶ 27-29.)

In their opposition to the Cost Motion, the Lowes assert that, while preparing the Fee Motion, they discovered they received a 10 percent discount on Miller’s fees, and accordingly request that the court allow a reduced amount of $7,020 in costs for 39 hours of Miller’s time at the hourly rate of $180, which the Lowes contend were incurred in connection with the presentation of exhibits at trial. (Opp. Cost Motion at p. 12.)

In the Lloyd declaration described above, Lloyd explains that Miller created excerpts derived from depositions transcripts and videos, managed all of the digital exhibits used by the Lowes at trial, designed presentations used in the Lowes’ closing argument, and projected exhibits for the benefit of the court, witnesses, and counsel. (Lloyd Decl., ¶ 12.) Lloyd asserts that if Miller did not serve in this role, the Lowes would have engaged a third-party trial support vendor in her place, as Liskin chose to do. (Ibid.) Lloyd further states that the fees of a similarly skilled trial technician would be similar to those charged to the Lowes for Miller’s services. (Lloyd Decl., ¶¶ 12-13.)

Costs to prepare and present demonstrative trial exhibits may be recovered even if the exhibits are not ultimately used at trial, if the material is reasonably necessary to the conduct of the litigation, and reasonable in amount. (Segal, supra, 12 Cal.5th at p. 667.) Under the circumstances present here and based on the court’s experience with and observations of the trial of this matter, the court finds that the exhibits used at trial, and the trial technology implemented by the Lowes, “enhanced counsel’s advocacy during trial and was reasonably necessary to the conduct of the litigation.” (Bender v. County of Los Angeles (2013) 217 Cal.App.4th 968, 990.)

Furthermore, paralegal costs may be recovered when they are “incurred for preparation and presentation of electronic evidence, including videos of deposition testimony, exhibits and excerpts from audio recordings, at trial.” (Green v. County of Riverside (2015) 238 Cal.App.4th 1363, 1373 (Green).) In addition, based on the court’s own experience in determining cost issues, the hourly rate charged by Miller is commensurate with the “prevailing market rate for comparable legal services” in Santa Barbara, California. (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1096 (PLCM).)

For all reasons further discussed above, the costs claimed under item 12 appear proper on their face. In addition, the available evidence and information shows that these costs were reasonably necessary to the conduct of this litigation, including at trial. Therefore, though the court will deny the Cost Motion as to item 12, the court will allow costs for “models, enlargements, and photocopies of exhibits” in the reduced amount of $7,020 only, as requested by the Lowes.

(b)       Items not allowable as costs or which may be allowed or denied in the court’s discretion:

The remaining costs claimed by the Lowes appear under item 16 of the cost memorandum. For reasons further discussed above, the court will deny the Cost Motion as to the amount of $233.35 in fees to electronically file and serve documents and allow this cost.

Liskin asserts that he also does not contest costs incurred by the Lowes to obtain copies of certified real estate records in the amount of $212.80, which are also claimed under item 16 of the cost memorandum. (Cost Motion at p. 20, ll. 14-15; see also Cost Memo., Attachment 16 at pdf p. 51 [describing costs for “official records”].) The court also understands this statement as an agreement by Liskin that the Lowes may recover the amount of $212.80 in “other” costs claimed under item 16 of the cost memorandum. Therefore, the court will allow this cost.

Information appearing in attachment 16 of the cost memorandum shows that the Lowes claim additional “other” costs relating to: document hosting fees charged by “Everlaw” in the amount of $2,997; legal research using services provided by “Thompson Reuters – Westlaw” and “PACER” in the amount of $6,386.61; mediation fees charged by JAMS, Inc., and Alternative Resolution Centers and expenses to travel to the mediation, in the total amount of $10,694.05; fees of experts Chuck Hansen, John Hebda, R. Stephen Leger, and the Petru Corporation in the amount of $43,774.41; and costs incurred for “working meals” in the amount of $449.56. (Cost Memo., Attachment 16 at pdf pp. 51-54.) Liskin contends that these costs are not expressly allowed under section 1033.5, are expressly precluded under section 1033.5, the Lowes have failed to substantiate these costs, and these costs are not reasonable in amount or not reasonably necessary to the conduct of this litigation.

The remaining costs described above and included under item 16 of the cost memorandum are not expressly allowed under subdivision (a) of section 1033.5. To the extent these costs are described in subdivision (b) of section 1033.5, they are expressly disallowed unless authorized by law. For all reasons discussed above, as these costs are properly objected to by Liskin, the burden of proof is on the Lowes to show that they may recover these costs. (Ladas, supra, 19 Cal.App.4th at p. 774.)

“Everlaw” document hosting fees and legal research fees:

The Lowes contend that the document hosting fees charged by Everlaw (the Everlaw fees), and fees for conducting legal research (the Research fees) are not specifically prohibited under section 1033.5 and may be allowed if they were reasonably necessary to the conduct of the litigation. Alternatively, the Lowes contend that, for all reasons further discussed above, they are entitled to a broader recovery of costs under the Act.

As to the Everlaw fees, Lloyd asserts that as a result of what Lloyd describes as “Liskin’s wide-ranging discovery”, Lloyd obtained thousands of pages of documents from the Lowes and their prior attorneys and architects. (Lloyd Decl., ¶ 15.) After reviewing these documents for relevance and implementing redactions for confidentiality or privilege, the Lowes produced over 3,000 pages of documents. (Ibid.) Lloyd contends that he used Everlaw to review, search, and tag thousands of pages from these documents and those produced by Hope Ranch in response to Liskin’s requests, many of which were included in Liskin’s Amended Exhibit List at trial. (Ibid. & Exh. 12 [Liskin exhibit list].)

Lloyd also contends that, without the use of online document hosting services provided by Everlaw, fees incurred by the Lowes in connection with time expended by Lloyd and his colleagues to review and analyze documents in this action, including in preparation for trial, would have significantly exceeded the amounts invoiced by Everlaw. (Lloyd Decl., ¶ 16.) For these reasons, Lloyd asserts, the use of Everlaw’s services resulted in considerable efficiencies in this case. (Ibid.)

Lloyd further asserts that the use of “Westlaw” and “LexisNexis” is widespread in modern litigation, and that without these advanced online research tools, the Lowes would have incurred and paid a disproportionately higher amount of attorney fees for legal research in this case, also considering that this matter involved complex issues of real property and authorities dating to the early 1900s. (Lloyd Decl., ¶ 17.)

The information provided in the Lloyd declaration shows that the Everlaw fees and the Research fees were incurred in connection with counsel’s review or investigation of documents obtained from the Lowes, their former attorneys and architects, and other parties to this action, and for online legal research. To the extent the Everlaw fees and the Research fees constitute investigation expenses to prepare the case for trial, these costs are precluded under subdivision (b)(2) of section 1033.5. (Ladas, supra, 19 Cal.App.4th at p. 776.)

As to the same arguments asserted by the Lowes with respect to whether the Act establishes a broader right by the Lowes to recover costs not expressly allowed under section 1033.5, the same analysis and reasoning apply. For all reasons further discussed above, the Act does not authorize the Lowes to recover costs which are otherwise not allowed under section 1033.5.

Even if the court were to assume without deciding that the Everlaw fees or the Research fees are not expressly disallowed under subdivision (b) of section 1033.5, these costs may be allowed in the court’s discretion provided that they are “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation” and “reasonable in amount.” (Code Civ. Proc., § 1033.5, subd. (c)(2) & (4); Landwatch San Luis Obispo County v. Cambria Community Services District (2018) 25 Cal.App.5th 638, 645.) “Whether such costs [are] reasonably necessary is a question of fact for the trial court….” (Green, supra, 238 Cal.App.4th at p. 1374.)

Though the information offered in the Lloyd declaration may be sufficient to show that the services provided by Everlaw, and the use of online legal research services, were helpful to the Lowes’ counsel including to prepare this case for trial, this information shows, at most, that the Everlaw fees and the Research fees were merely convenient or beneficial to the preparation of the litigation. The information and evidence offered by the Lowes is insufficient to show that the Everlaw fees and the Research fees were reasonably necessary to the conduct of this litigation.

In addition, though the Lowes rely on the decision in El Dorado Meat Co. v. Yosemite Meat & Locker Service, Inc. (2007) 150 Cal.App.4th 612 (El Dorado), to show why the Everlaw fees and the Research fees were reasonably necessary to the conduct of this litigation, that case involved the preparation of trial exhibits and not the use of online document hosting or online legal research. (See El Dorado, supra, 150 Cal.App.4th at pp. 619-620.) Therefore, the decision in El Dorado case is distinguishable from the circumstances present here.

For all reasons further discussed above, the Lowes have failed to meet their burden to show that the Everlaw fees and Research fees are allowable, or reasonably necessary to the conduct of this litigation. Therefore, the court will grant the Cost Motion, in part, and disallow the Everlaw fees and Research fees claimed under item 16 of the cost memorandum, in the amount of $9,383.61.  

Expert fees:

Under section 1033.5, the “[f]ees of experts not ordered by the court” are expressly disallowed unless authorized by law. (Code Civ. Proc., § 1033.5, subd. (b)(1).) The Lowes offer no information or evidence to show that the court ordered expert witnesses or fees in this matter.

Further, the Lowes submit the same arguments as those further discussed above with respect to whether the Act, the CCRs, and a request by Liskin for “expenses”, establish a broader right by the Lowes to recover expert fees. The same analysis and reasoning apply. For all reasons further discussed above, the Lowes have failed to meet their burden to show that they may recover the fees of experts not ordered by the court. Therefore, the court will grant the Cost Motion, in part, and disallow the expert fees claimed under item 16 of the cost memorandum, in the amount of $43,774.41.

Mediation fees:

As to the claim for mediation fees in the amount of $10,694.05 also included in item 16, the fees of a mediator are not expressly allowable under subdivision (a) of section 1033.5 and are not disallowed under subdivision (b) of that section. “Thus, these costs fall within the ‘discretionary category,’ subdivision (c)—that is, they are allowable if in the court’s discretion they were ‘reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.’” (Sanford v. Rasnick (2016) 246 Cal.App.4th 1121, 1132.)

Though the available information and evidence indicates or suggests that the parties agreed to divide mediation fees, wholly absent from the Lowes’ opposition to the Cost Motion is any reasoned argument showing why mediation fees were reasonably necessary to the conduct of this litigation. As the Lowes have wholly failed to meet their burden to show why the court should exercise its discretion to allow these fees, the court will grant the Cost Motion and disallow the mediation fees in the amount of $10,694.05 claimed under item 16 of the cost memorandum.

Costs for “working meals”:

Information appearing in attachment 16 of the cost memorandum also shows that the Lowes claim costs incurred on October 9, October 15 and 16, and October 19, 2024, and during trial on November 19, 2024, which the Lowes describe as “working meals”. (Cost Memo., Attachment 16 at pdf p. 54.) The costs claimed by the Lowes for these working meals total $449.56. (Ibid.)

In the Lloyd declaration, Lloyd states that the amount of $175.74 was incurred for travel and meal expenses for attending the first out-of-town mediation. (Lloyd Decl., ¶ 23.) Lloyd further states that the amount of $27 was incurred on January 18, 2024, when attorney Cousineau incurred parking expenses to leave his car in a court parking lot following a hearing, to walk to Liskin’s counsel’s office to attend Liskin’s deposition. (Ibid.)

Lloyd further explains that the amount of $16.31 relates to an attorney “working late the day prior to the deposition of Liskin’s key expert witness, John Hebda, and was necessitated by the late production of documents. At 5:55 p.m. the night before Mr. Hebda’s deposition, Liskin’s counsel produced multiple emails with Mr. Hebda, including drafts of his prior report that had not previously been produced. These documents all had to be reviewed in advance of the deposition, which started at 10:00 am the next morning.” (Lloyd Decl., ¶ 24.) An expense reimbursement request included attachment 16 to the cost memorandum indicates that this cost was incurred in connection with a meal. (Cost Memo., Attachment 16 at pdf p. 190.)

The information provided in the Lloyd declaration further described above addresses approximately one-half of the total costs for “working meals” included under item 16. The Lowes fail to address the remaining costs claimed for these working meals. In addition, as further discussed above, the court will disallow costs incurred in connection with mediation.

As to the costs further discussed above, under section 1033.5 meal expenses cannot “be justified as ‘necessary to conduct the litigation’ since attorneys have to eat, whether they are conducting litigation or not. At best, these expenses are ‘merely convenient or beneficial’ to preparation for litigation, the recovery of which is proscribed under subdivision (c).” (Ladas, supra, 19 Cal.App.4th at pp. 774-775.) For this additional reason, the court will disallow costs for “working meals” claimed by the Lowes under item 16.

As to the $27 in parking fees further described above, the record reflects that this cost was incurred to attend the Liskin deposition. For this reason, this cost is allowable under section 1033.5, subdivision (a)(3)(C). (See Ladas, supra, 19 Cal.App.4th at pp. 775-776.)

For all reasons discussed above, the court will grant the Cost Motion in part, as to item 16, and disallow costs in the amount of $422.56 for “working meals”. The court will allow the amount of $27 for parking fees to attend the Liskin deposition claimed under item 16.

(c)        Liskin’s request for judicial notice:

In support of the Cost Motion, Liskin requests that the court take judicial notice of the Stipulation, and an instrument entitled “Agreement To Rescind Release And Agreement By Mutual Consent” (the Agreement), which was ostensibly recorded on October 18, 2024, in the official records of the County of Santa Barbara as document #2024-0031020. (Liskin RJN, ¶¶ 1-2 & Exhs. 1-2.)

Though not necessary, as the Stipulation is a court record and a proper subject of judicial notice, the court will grant Liskin’s request for judicial notice of the Stipulation. (Evid. Code, § 452, subd. (d)(1).)

Assuming without deciding that the Agreement is a proper subject of judicial notice, the court does not rely upon this record to reach its ruling herein. Accordingly, Liskin’s request for judicial notice of the Agreement will be denied. (See Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063 [“ ‘judicial notice, since it is a substitute for proof [citation], is always confined to those matters which are relevant to the issue at hand.’ [Citation.]”].)

(2)       The Fee Motion

As a preliminary matter, it appears to the court, based on points advanced by Liskin in his opposition to the Fee Motion, that Liskin disputes whether the Lowes may recover prevailing party attorney’s fees.

Noted above, in the eighth cause of action alleged in the FAC, Liskin seeks to enforce the One-Story Restriction, which Liskin alleges is an enforceable equitable servitude, and which the Association had a duty to enforce under the CCRs. (FAC, ¶¶ 17.1-18.1 & 171-179.) Liskin also alleges that the Lowes violated the CCRs, and the One-Story Restriction enforceable under the CCRs, by pursuing construction of the Lowe Project. (FAC, ¶¶ 172-176.) Liskin further seeks an award of attorney’s fees under CCRs section 11.06, and Civil Code section 5975, subdivision (c). (FAC, Prayer for Relief ¶ 17.)

The tenth cause of action alleged in the FAC also arises from what Liskin contends is a violation of, and breach of obligations owed to Liskin under, the CCRs and the One-Story Restriction by the Association and the Lowes, with respect to the Lowe Project. (FAC, ¶¶ 189-192.) The preliminary injunction which is the subject of the tenth cause of action is sought by Liskin for the purpose of, among others, enjoining the Association from granting approval or issuing permits for the Lowe Project in any manner adverse to or inconsistent with the CCRs. (FAC, ¶¶ 189-201.)

The causes of action alleged in the Lowes Cross-Complaint also arise from the One-Story Restriction in the 1940 Deed which the Lowes allege is void, invalid, or not enforceable by Liskin. (Lowes Cross-Compl., Prayer for Relief ¶¶ 1 [First and Second Causes of Action].)

Liskin appears to concede that, as a prevailing party, the Lowes may recover prevailing party reasonable attorney’s fees with respect to the issue of whether the One-Story Restriction is enforceable. (Opp. Fee Motion at p. 13, l. 25-p. 14, l. 1, [stating that “[a]s the prevailing party on the enforceability of the [One-Story] Restriction the Lowes can request ... where available, attorneys’ fees”, and asserting that the CCRs and Civil Code section 5975 are “pertinent” to the present motion].)

The Stipulation further described above also expressly provides that “[n]either the Lowes or Liskin shall be deemed a prevailing party against the other as to any issue other than the enforceability of the One-Story Restriction ... under the Eighth and Tenth Causes of Action in Liskin’s First Amended Complaint and the Causes of Action in the Lowes Cross-Complaint.” (Stip., ¶ 6.)

Relevant here, section 5975 of the Act provides that “[i]n an action to enforce the governing documents, the prevailing party shall be awarded reasonable attorney’s fees and costs.” (Civ. Code, § 5975, subd. (c).) The eight and tenth causes of action alleged in the FAC, and the causes of action alleged in the Lowes Cross-Complaint, constitute or effectively constitute actions to enforce the CCRs, under which Liskin contends the Association is required to enforce the One-Story Restriction. Liskin does not dispute that the Lowes are the prevailing party with respect to this issue or these causes of action. Therefore, as the prevailing party, the Lowes are entitled to an award of reasonable attorney’s fees pursuant to the Act. (Rancho Mirage Country Club Homeowners Assn. v. Hazelbaker (2016) 2 Cal.App.5th 252, 262-263 (Rancho Mirage) [discussion of prevailing party under the Act].)

In support of the Fee Motion, the Lowes submit a declaration of their counsel, David L. Cousineau (Cousineau), who was the lead trial counsel on this matter from its outset and who states he is familiar with the factual and procedural background of this case as summarized in the declaration. (Cousineau Decl., ¶¶ 3-19.)

Cousineau contends that “[f]rom the outset,” this case turned on the enforceability of the One-Story Restriction appearing in the 1940 Deed, which Liskin claimed was enforceable under the CCRs. (Cousineau Decl., ¶¶ 4-5.) Cousineau further contends that any remaining issues were secondary to the enforceability of the One-Story Restriction because, among other things, the Association was entitled to deference in approving the Lowe Project. (Cousineau Decl., ¶ 5.) Cousineau explains that if the One-Story Restriction was enforceable, the Lowe Property would be treated differently other surrounding properties, and the Lowe Project could not be built. (Ibid.) Because of the One-Story Restriction’s central role, Cousineau asserts, this action focused almost exclusively on that issue as reflected in contemporaneous time narratives included in fee invoices issued to the Lowes. (Cousineau Decl., ¶¶ 5-6 & Exh. A.)

Cousineau explains that, after the court overruled a demurrer filed by the Lowes, he determined that, in defense of Liskin’s claim, the Lowes should file the Lowes Cross-Complaint in which the Lowes seek to quiet title and declaratory relief as to the enforceability of the One-Story Restriction, for the purpose of obtaining a court order to the extent the Lowes were successful in proving their claims. (Cousineau Decl., ¶ 8.) Cousineau asserts that, because a finding of unenforceability of the One-Story Restriction would be based on the same law and facts required to defend against Liskin’s claims, the Lowes could pursue a cross-complaint without incurring additional attorney’s fees. (Ibid.)

Cousineau provides a description of the legal services furnished by the law firm of Cappello & Noel, LLP (C&N) to the Lowes, which include working with title industry experts to conduct title searches, obtaining copies of deeds for bordering properties to determine if there existed restrictions similar to the One-Story Restriction, analyzing case law and relevant evidence, attending depositions noticed by Liskin to assess their impact on Liskin’s claims and defenses, attending a mediation, conducting expert discovery including as to experts designated by Liskin, and preparing for and attending the trial. (Cousineau Decl., ¶¶ 10-18.)

Cousineau explains that, though the value of the time expended in this case by C&N’s lawyers, paralegals, and support staff totals $1,067,513.50, the Lowes seek to recover by the Fee Motion, the amount of $748,552.75 only. (Cousineau Decl., ¶ 20.) To arrive at this amount, Cousineau first determined the amount that the Lowes paid in fees after write-offs and other discounts, which totals $904,070.25, inclusive of attorney’s fees in the amount of $856,163.252 incurred for work performed through the end of January 2025, an additional $47,907 in fees incurred for work performed in February and March 2025, and a 10 percent discount. (Ibid.) Cousineau obtained these amounts based on the attorney’s fees invoiced to the Lowes. (Ibid.)

Cousineau states that he and Lloyd then reviewed all contemporaneous time entries to determine which of these entries relate to fees for work which is not recoverable under the Stipulation, and calculated the fees associated with that work based on the hourly rates in effect when the work was performed. (Cousineau Decl., ¶ 20.) According to Cousineau, the amount excluded for unrecoverable work totals $155,517.50, which Cousineau and Lloyd subtracted from the total paid by the Lowes, resulting in fees of $748,552.75 claimed in the Fee Motion. (Ibid.)

To support the analysis described above, Cousineau submit copies of invoices submitted by C&N to the Lowes (exhibit A), copies of canceled checks confirming payments received by C&N from the Lowes (exhibit B), and a spreadsheet setting forth contemporaneous time entries identifying the date of services performed by each individual timekeeper at C&N, the associated narrative or description of those services, the hours billed for each entry, the hours written off prior to invoicing for each entry, and the hours apportioned out based on the analysis of recoverable versus non-recoverable work performed by Cousineau and Lloyd. (Cousineau Decl., ¶ 21 & Exhs. A-C.) This spreadsheet also includes comments by Cousineau and Lloyd regarding time that was written off or excluded. (Ibid.)

Also included in the Cousineau declaration is a table summarizing the hours worked by each timekeeper, the time that was written off for each timekeeper, the time that was apportioned out for each timekeeper, and the associated fees which were excluded based on the apportioned time, as well as a more detailed table “breaking out” the time worked by individual timekeeper and their hourly rate. (Cousineau Decl., ¶ 22 & Exh. D.) These tables reflect that the timekeepers who performed services in this matter expended a total of 1,779.27 hours on this matter, that 100.1 of these hours was written-off, that 265.6 of these hours were apportioned out, and that the value of the apportioned time totals $155,517.50. (Ibid.)

Cousineau also provides a summary of the number of hours “claimed” by each timekeeper, which also reflects the total hours worked by each timekeeper minus the hours that were written off or excluded as nonrecoverable pursuant to the Stipulation. (Cousineau Decl., ¶ 23.) Cousineau notes that, because the request asserted in the Fee Motion is based on the total fees paid by the Lowes minus the total of the fees which were excluded, multiplying these hours by each timekeeper’s hourly rate results in a higher fee than requested in that motion, and that these hours are provided only as an indicator of the efforts expended by each timekeeper in this matter. (Ibid.)

To determine the apportionment of fees unrelated to the enforceability of the One-Story Restriction, Cousineau asserts that, with Lloyd’s assistance, he carefully reviewed and evaluated billing records and, where necessary, the pleadings, discovery, and other documents generated in the case. (Cousineau Decl., ¶ 45.) Cousineau explains that fees which were reasonably attributable to issues unrelated to the enforceability of the One-Story Restriction were excluded or apportioned, which include: fees incurred to assist the Lowes in their dealings with the County; fees incurred to evaluate and address Liskin’s arguments regarding the Association’s duties or the Lowes’ contractual duties; fees incurred to evaluate and work with experts regarding standard of care issues; fees incurred to prepare jury instructions and proposed verdicts; and fees incurred to consider, mediate, and resolve claims between the Lowes and the Association. (Ibid.)

Cousineau also explains that, to evaluate the relationship of the fees incurred by the Lowes to those recoverable under the Stipulation, he and Lloyd placed significant weight on the nature and extent of the allegations asserted by Liskin in pleadings and discovery and confirmed the scope of the issues that were not resolved by the Stipulation based on the arguments and evidence offered by Liskin before, during, and after the trial. (Cousineau Decl., ¶ 46.)

Attached to the Cousineau declaration as exhibit C is a spreadsheet prepared by Cousineau and Lloyd based on records exported from counsel’s billing software, which, according to Cousineau, details every time entry entered from the inception of the representation to the present, and includes columns identifying each timekeeper, a contemporaneous narrative, each timekeeper’s recorded time, write-offs that were made prior to invoicing, time apportioned out based on the Stipulation, and a comment column briefly explaining the apportionments applied to each time entry. (Cousineau Decl., ¶ 47.) To determine the fees that should be excluded pursuant to the Stipulation, Cousineau and Lloyd relied primarily on the allegations of the FAC and arguments made by Liskin as to the One-Story Restriction. (Cousineau Decl., ¶ 48.)

Cousineau also provides a detailed explanation of the manner in which fees were apportioned by Cousineau and Lloyd, based on work undertaken, the division of work, and issues encountered during significant time periods in this case. (Cousineau Decl., ¶¶ 49-62.)

Cousineau contends that he and Lloyd also undertook to staff and work this case efficiently and conscientiously, and that 88 percent of the total billed time and 94 percent of the fees claimed in the Fee Motion were performed by Cousineau and Lloyd, with each attorney focusing on various aspects of the case. (Cousineau Decl., ¶ 24.) Cousineau further states that on “rare occasions”, other lawyers focused on specific, discrete tasks based on their particular areas of expertise and trial needs, and that the majority of time worked by lawyers other than Cousineau and Lloyd was either written off or has been excluded from the present request. (Ibid.) Cousineau and Lloyd also relied on the lower billing rates of paralegals or support staff wherever possible. (Ibid.) Cousineau contends that by limiting the “core” team to two lawyers, counsel was able to avoid inefficiencies and duplication of efforts. (Ibid.)

Cousineau asserts that, though Liskin alleged multiple causes of action against the Lowes, counsel for the Lowes recognized that the enforceability of the One-Story Restriction would resolve those causes of action and therefore, focused on that issue. (Cousineau Decl., ¶ 25.) Cousineau states that, though counsel “took care” to avoid discovery disputes, where possible, and refrained from unnecessary litigation efforts, the Lowes had to address what Cousineau describes as a far more expansive view of the issues asserted by Liskin. (Ibid.)

Cousineau also reviewed all invoices on a monthly basis and exercised billing judgment by writing off time, where appropriate, based on Cousineau’s assessment of the work and needs of the case. (Cousineau Decl., ¶ 26.) Cousineau states that the Lowes benefited from these discounts and that, based on his experience and knowledge of the details of this case, a number of factors confirm the reasonableness of the fees for which the Lowes seek recovery, including a disclosure by Liskin that Liskin has incurred $1.172 million in fees through September 30, 2024, inclusive of fees incurred to pursue claims against Hope Ranch. (Cousineau Decl., ¶ 28 & Exh. 25 [Liskin’s supplemental responses to the Association’s requests for production of documents].)

Cousineau also contends that the amount that was excluded for non-recoverable work represents a 22 percent decrease from the total amount of fees that the Lowes paid through October 18, 2024, which is the last date on which the Lowes’ counsel performed the non-recoverable work. (Cousineau Decl., ¶ 29.) According to Cousineau, one-third of the fees for which the Lowes seek recovery in the Fee Motion were incurred from October 1, 2024, to the present, and reflects time spent preparing for and attending trial and addressing post-trial issues. (Cousineau Decl., ¶ 30.)

In addition, Cousineau explains that, to calculate the value of the work that was excluded, counsel used the full rates in effect at the time the work was performed, even though the Lowes paid a lower effective rate for much of that time based on discounts, and that “bottom-line” discounts decreased counsel’s effective per-hour rates for the period in which the discounts were applied. (Cousineau Decl., ¶ 31.)

According to information appearing in the Cousineau declaration, the hourly rate charged by Cousineau in this matter ranged from $750 to $850. (Cousineau Decl., ¶ 33.) Lloyd’s hourly rate ranged from $450 to $485. (Ibid.) The hourly rates of attorneys A. Barry Cappello (Capello), Wendy Welkom (Welkom), G. Michael Brelje (Brelje), Andrew Dickerson (Dickerson), and Mandy Moua (Moua) were, respectively, $1,285, $750, $650, and $350. (Ibid.) The hourly rates charged by C&N’s paralegals and support staff were, respectively, $300 and $200. (Ibid.)

The hours expended by Cousineau in this matter, exclusive of time that was written off or apportioned out, total 686.5. (Cousineau Decl., ¶¶ 23 & 36.) The time expended by attorneys Lloyd, Cappello, Welkom, Brelje, Dickerson, and Moua in this case total, respectively and exclusive of hours that were written off or apportioned out, 556.6 hours, 1.5 hours, 9.3 hours, 10.3 hours, 16.4 hours, and 13.1 hours. (Ibid.) The time expended by paralegals and support staff totals 120.47 hours. (Ibid.)

Cousineau also provides a description of the experience and skills of the principal and assisting attorneys and staff who expended time performing legal services in this action, and a general description of the services performed by each of these individuals. (Cousineau Decl., ¶¶ 36-44.)

“[T]he fee setting inquiry in California ordinarily begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. ‘California courts have consistently held that a computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys’ fee award.’ [Citation.] The reasonable hourly rate is that prevailing in the community for similar work. [Citations.] The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided. [Citation.] Such an approach anchors the trial court’s analysis to an objective determination of the value of the attorney’s services, ensuring that the amount awarded is not arbitrary.” (PLCM, supra, 22 Cal.4th at p. 1095.)

“[T]he predicate of any attorney fee award, whether based on a percentage-of-the-benefit or a lodestar calculation, is the necessity and usefulness of the conduct for which compensation is sought.” (Thayer v. Wells Fargo Bank, N.A. (2001) 92 Cal.App.4th 819, 846, italics omitted.) The court generally begins its analysis by reviewing the attorney’s time records which, if verified, are “entitled to credence in the absence of a clear indication the records are erroneous[.]” (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 396 (Horsford); see also Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 562-563 [if fee request is supported by sufficient declarations and documentation, a challenge to the fee request requires similar proof].)

Further, “[t]he value of legal services performed in a case is a matter in which the trial court has its own expertise. [Citation.] The trial court may make its own determination of the value of the services contrary to, or without the necessity for, expert testimony. [Citation.] The trial court makes its determination after consideration of a number of factors, including the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case.” (Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623-624.)

“The magnitude of what constitutes a reasonable award of attorney fees is ... a matter committed to the discretion of the trial court.” (Rancho Mirage, supra, 2 Cal.App.5th at p. 263.) The court must exercise its discretion so as to fully compensate the attorney for the services provided to the client, which may also include fees incurred to pursue a claim for attorney’s fees. (Horsford, supra, 132 Cal.App.4th at pp. 395-396; Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 580.) Further, “[t]he court may rely on its own knowledge and familiarity with the legal market in setting a reasonable hourly rate.” (Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 1009 (Heritage).)

The court has reviewed the invoices issued to the Lowes by C&N submitted in support of the Fee Motion, as well as the records of payments made by the Lowes which are attached as exhibits A and B to Volume One of the Appendix of Exhibits submitted in support of the Fee Motion. The invoices include sufficiently detailed descriptions of the services rendered to the Lowes by each timekeeper at C&N who performed work in this matter.

The court’s review of the C&N invoices and the additional evidence described above and in the Cousineau declaration shows that the attorney’s fees claimed by the Lowes in the Fee Motion relate to the enforceability of the One-Story Restriction, and the claims and causes of action alleged in the eighth and tenth causes of action of the FAC and the Lowes Cross-Complaint. For all reasons further discussed above, the Lowes are the prevailing party and may recover prevailing party attorney’s fees under the Act with respect to these issues, claims, and causes of action.

Based on the information contained in the C&N invoices and the Cousineau declaration, the court finds that the hours expended by the Lowes’ counsel, paralegals, and support staff, are reasonable for this category of litigation, including with respect to litigating the enforceability of the One-Story Restriction. Further, based on the court’s familiarity with the legal market and information provided by Cousineau regarding the Lowes’ counsel’s skill, experience and relevant area of expertise, the court finds the hourly rates charged by the Lowes’ counsel and staff to be reasonable for the Santa Barbara area. (In re Tobacco Cases I (2013) 216 Cal.App.4th 570, 587-588 [trial court may rely on its own experience and knowledge, when provided with pertinent facts, to determine reasonable value of attorney’s services].)

In addition, to the extent entries appearing in the fee invoices or other documents submitted in support of the Fee Motion demonstrate that services performed by C&N and its attorneys relate to an issue or claim apart from the enforceability of the One-Story Restriction, recovery of attorney’s fees incurred for these services is not necessarily improper.

“ ‘Attorney’s fees need not be apportioned 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.’ [Citation.] ‘Apportionment is not required when the claims for relief are so intertwined that it would be impracticable, if not impossible, to separate the attorney's time into compensable and noncompensable units.’ [Citation.] Attorney fees also ‘need not be apportioned between distinct causes of action where plaintiff's various claims involve a common core of facts or are based on related legal theories.’ [Citation.]” (Douglas E. Barnhart, Inc. v. CMC Fabricators, Inc. (2012) 211 Cal.App.4th 230, 250.)

For all reasons discussed above, the Lowes may recover attorney’s fees incurred in litigating factual or legal issues common to the issue of the enforceability of the One-Story Restriction. The present record as further discussed above is sufficient to demonstrate that there exist factual and legal issues that are common to the issue of the enforceability of the One-Story Restriction. This same evidence and information are also sufficient to show that the Lowes do not seek recovery of attorney’s fees which are unique to any issues, claims, or causes of action other than the enforceability of the One-Story Restriction.

Furthermore, the evidence and information presented in Cousineau’s sworn statement shows that the attorney’s fees requested in the Fee Motion have been appropriately and sufficiently apportioned, and do not include fees incurred in connection with any issues apart from the enforceability of the One-Story Restriction.

In his opposition to the Fee Motion, Liskin advances the same arguments as those further addressed above with respect to attorney’s fees incurred to attend depositions of the Association’s general manager, board members, and persons most qualified. The same analysis and reasoning apply. For all reasons further discussed above, the Lowes may recover attorney’s fees incurred to attend these depositions, including to the extent that these depositions relate to common facts or legal theories.

The overly conclusive arguments offered by Liskin are also insufficient to contradict Cousineau’s sworn statement showing that attorney’s fees which are not recoverable pursuant to the terms of the Stipulation have been apportioned and are not included in the Fee Motion, and that the Fee Motion requests only those fees which relate to the enforceability of the One-Story Restriction.

Liskin further contends that the Lowes may not recover fees incurred in connection with matters in which the Lowes were not successful, including with respect to an unsuccessful demurrer, ex parte application for leave to file an addition response to Liskin’s opposition to a summary judgment motion, and a purportedly moot response to Liskin’s objections to a proposed statement of decision submitted by the Lowes. Liskin also asserts that, because the mediation resolved only the dismissed causes of action identified in the Stipulation, the Lowes may not recover fees incurred in connection with mediation.

“ ‘Compensation is ordinarily warranted,’ even for unsuccessful litigation forays, ‘unless the unsuccessful forays address discrete unrelated claims, are pursued in bad faith, or are pursued incompetently, i.e., are such that a reasonably competent lawyer would not have pursued them....’ [Citation.]” (Simers v. Los Angeles Times Communications LLC (2024) 104 Cal.App.5th 940, 947.) There is no evidence or information to suggest, or to permit the court to conclude, that the Lowes seek to recover attorney’s fees for matters which the Lowes pursued in bad faith.

Furthermore, the fact that the Lowes may have expended time to litigate or mediate matters that were not successful is not a sufficient ground upon which to deny the Lowes compensation for fees incurred in connection with the enforceability of the One-Story Restriction. For all reasons discussed above, the present record is sufficient to show that the attorney’s fees requested in the Fee Motion relate to the enforceability of the One-Story Restriction, and facts and legal theories common to that issue.

The court has also considered the remaining arguments advanced by Liskin in opposition to the Fee Motion, including with respect to whether the Lowes are judicially estopped from recovering fees pertaining to the “Secret Agreement” and Hope Ranch related discovery, whether block billed entries should be reduced or excluded based on a purported lack sufficient information or unreasonable allocation, and whether a reduction in fees is warranted due to a purported refusal by the Lowes to participate in prelitigation alternative dispute resolution. The court does not find these arguments persuasive.

By way of example, the Lowes present information with their reply that suggests that the parties reached an impasse in their efforts to informally resolve the issue of the enforceability of the One-Story Restriction, which necessitated that this issue be tried. (See, e.g., Reply at pp. 13-14.) The points advanced by Liskin are also insufficient to show that the Lowes took the position that they could not recover attorney’s fees for time expended in connection with issues relating to the “Secret Agreement” or Hope Ranch discovery, including to the extent these matters involved facts or legal theories common to the question of whether the One-Story Restriction is enforceable. (Aguilar v. Lerner (2004) 32 Cal.4th 974, 986-987 [general discussion of doctrine of judicial estoppel].)

The court also does not find that the time entries set forth in the C&N invoices or other supporting documentation submitted by the Lowes in support of the Fee Motion are overly general, or that any particular timekeeper used “block billing” as Liskin contends. For example, the court is able to discern from these records the time spent on each task, and which tasks are compensable. (Heritage, supra, 215 Cal.App.4th at p. 1010 [discussion of court’s discretion to penalize block billing].)

For all reasons discussed above, the court finds that attorney’s fees requested by the Lowes in the Fee Motion relate to the enforceability of the One-Story Restriction, the eighth and tenth causes of action alleged in the FAC, the claims asserted in the Lowes Cross-Complaint, and issues common to these claims and causes of action. The court further finds that the hours expended by the Lowes’ counsel to litigate these issues are reasonable, and that the hourly rates charged by counsel are those prevailing in the local community for similar work. For these and all reasons further discussed above, the court finds that an award of attorney’s fees in the amount of $748,552.75 is reasonable under the totality of the circumstances present here. Therefore, and considering the nature of this litigation, the Lowes’ success, and the experience of counsel in the type of work demanded, the court will grant the Fee Motion.

Procedural issues:

Written notice must be given for a motion for attorney’s fees which are authorized by contract or statute. (Code Civ. Proc., § 1033.5, subd. (c)(5)(a), & § 1005, subd. (a)(13).) “The purpose of the notice requirements ‘is to cause the moving party to “sufficiently define the issues for the information and attention of the adverse party and the court.” ’ [Citations.]” (Kinda v. Carpenter (2016) 247 Cal.App.4th 1268, 1277.) “As a general rule, the trial court may consider only the grounds stated in the notice of motion.” (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1125 [also stating that a trial court is not required to consider grounds for relief not raised or sought by the moving party].)

The court has no record showing that the Lowes gave written notice of the Fee Motion as required by statute. Notwithstanding this deficiency, as Liskin has waived any defect in notice by opposing the Fee Motion on its merits, the court will consider the Fee Motion as further discussed above. (Kunzler v. Karde (1980) 109 Cal.App.3d 683, 688.) However, counsel for the Lowes is reminded of their obligation to comply with statutory requirements.

In addition, with their reply to Liskin’s opposition to the Fee Motion, the Lowes submit a request for additional attorney’s fees purportedly incurred by the Lowes after the filing of the Fee Motion, in the amount of $36,624.60. (Reply at p. 14.) The request is supported by evidence submitted in a reply declaration of Cousineau. (Reply Cousineau Decl., ¶¶ 4-7, Exhs. I, J, K.) The moving papers do not include any request for attorney’s fees which the Lowes expected or estimated they would incur after the filing of the Fee Motion.  

“The general rule of motion practice, which applies here, is that new evidence is not permitted with reply papers.” (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537.) Moreover, due process requires that Liskin “be fully advised of the issues to be addressed and be given adequate notice of what facts [he] must rebut in order to prevail.” (San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316.) For these reasons, the court will deny the new request for additional attorney’s fees raised for the first time in the Lowes’ reply papers.

The court further notes that the responding memorandum submitted by Liskin in support of his opposition to the Fee Motion is 17 pages in length, and is prepared in a 11.5 font size which, for reasons further discussed above, violates California Rules of Court rules 3.1113(d) and 2.104. Though the court will exercise its discretion to consider the opposition of Liskin to the Fee Motion notwithstanding these rule violations, Liskin and his counsel are reminded of their obligation to comply with court rules.

The court further notes that, absent good cause, future failures to comply with court rules may result in the imposition of monetary sanctions. (Cal. Rules of Court, rule 2.30(b).)