Max Liskin vs Hope Ranch Park Homes Association et al

Case Number

22CV02239

Case Type

Hearing Date / Time

Fri, 01/30/2026 - 10:00

Nature of Proceedings

Motion: Attorney Fees

Tentative Ruling

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 related to trial court fee motion and on appeal is granted, in part. The court awards attorney’s fees in favor of defendants and cross-complainants and against plaintiff, in the amount of $46,113.50. Except as herein granted, the motion is otherwise denied.

Background:

Briefly, the operative first amended complaint (FAC) filed in this action on February 6, 2023, by plaintiff Max Liskin, as trustee of the Max Liskin Trust dated July 18, 2003, (Liskin) alleges:

Defendants Marc A. Lowe, Pauline Lowe, and Creciente, LLC (collectively, the Lowes), and Liskin own real property located at, respectively, 4121 Creciente Drive (the Lowe Property) and 4125 Creciente Drive (the Liskin Property). (FAC, ¶¶ 1 & 4-5.) The Liskin Property and Lowe Property are adjacent to one another and within a common interest development known as Hope Ranch, which is managed by defendant Hope Ranch Park Homes Association (the Association). (FAC, ¶ 9.) Defendant Marco Del Chiaro is the President of the Board of Directors of the Association, and defendant Jill Van Zeebroeck is the Association’s General Manager. (FAC, ¶¶ 3 & 3.1.)

The causes of action alleged in the FAC arise from an alleged restrictive covenant purportedly encumbering the Lowe Property, which provides that the main residence on that property may not exceed one story in height (the One-Story Restriction). (FAC, ¶ 17 & Exh. 6.) Under its Second Amended and Restated Declaration of Covenants, Conditions and Restrictions (the CCRs), the Association has a duty to enforce the One-Story Restriction. (FAC, ¶¶ 18, 18.1 & 58.1.)

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 17, 2022, without notice, defendant Del Chiaro purportedly entered into a “Secret Agreement” with the Lowes to remove and release the One-Story Restriction. (FAC, ¶¶ 25-26 & Exh. 10.)

The FAC alleges ten causes 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.

The Lowes answered the FAC on March 13, 2023, and on that same date, defendant Creciente, LLC, filed a cross-complaint against Liskin (the Cross-Complaint), asserting two causes of action to quiet title and for declaratory relief. The Cross-Complaint seeks a determination that the One-Story Restriction is void, invalid, or otherwise non-binding with respect to the use of the Lowe Property. (Cross-Compl., ¶ 18.)

On April 12, 2023, Liskin answered the Cross-Complaint by admitting and denying its allegations, and asserting 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 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.

A court trial of this action proceeded 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 is not enforceable. (SOD at pp. 16-17.)

On January 8, 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 as to each of the causes of action alleged in the Cross-Complaint. Pursuant to the Judgment, the court found that the One-Story Restriction was not enforceable. The court awarded to the Lowes their costs of suit.

On January 23, 2025, the Lowes filed a memorandum of costs (the cost memorandum) claiming costs in the amount of $105,904.73. On February 11, 2025, Liskin filed a motion for an order (the Cost Motion) striking or taxing costs claimed in the cost memorandum. The Lowes opposed the Cost Motion.

On March 4, Liskin filed a notice of appeal (the appeal) from the Judgment.

On March 11, 2025, the Lowes filed a motion for an award of attorney’s fees incurred by the Lowes in this action (the Fee Motion), which was opposed by Liskin.

On June 13, after a hearing, the court entered a minute order (the July MO) adopting its tentative ruling granting the Cost Motion, in part and with the exception of $7,020 in costs, and granting the Fee Motion.

On July 7, the court signed and entered an order (the July Order) on the Cost Motion and the Fee Motion, taxing costs in the amount of $7,020; allowing costs in favor of the Lowes and against Liskin in the amount of $26,560.10; and awarding attorneys’ fees in favor of the Lowes and against Liskin in the amount of $748,552.75.

On July 8, the Lowes filed an acknowledgment of satisfaction of judgment (the Acknowledgment), stating that the Judgment has been satisfied in full.

On August 6, the Court of Appeal issued an order dismissing the appeal pursuant to request. On that same date, the Clerk of the Court of Appeal issued the remittitur.

On September 15, the Lowes filed a memorandum of costs on appeal, and concurrently filed a motion for an order awarding to the Lowes and against Liskin: attorney’s fees incurred between March 9 and September 15 in connection with reply briefing and attending the hearing of the Fee Motion and Cost Motion; attorneys’ fees incurred on appeal; and attorneys’ fees incurred to address ancillary post-judgment matters and prepare the present motion.

The present motion is supported by a declaration of the Lowes’ counsel, Richard Lloyd (attorney Lloyd). Attached to attorney Lloyd’s declaration is a copy of the July MO, the July Order, and the court reporter’s transcript (the Transcript) of the June 13, 2025, proceeding on the Fee Motion and Cost Motion, among other documents. (Lloyd Dec., Exhs. A-B.)

Lloyd states that the Acknowledgment was signed and served on the same day (i.e., July 8, 2025) that a check was hand-delivered in the sum of $775,112.85 representing payment of the outstanding fees and costs owed at that time. (Lloyd Dec., ¶ 4.) Shortly after Liskin filed a request for dismissal of the appeal on August 5, 2025, and in an attempt to informally resolve outstanding fee issues, Lloyd provided details of the Lowes’ fees and costs to Liskin’s counsel. (Lloyd Dec., ¶ 5.) According to Lloyd, no agreement was reached. (Ibid.)

Lloyd also submits with their declaration, a spreadsheet (the Fees Spreadsheet) which is generated from Lloyd’s firm’s billing software and shows hours expended by the Lowes’ counsel that were not included in the Fee Motion. (Lloyd Dec., ¶ 6 & Exh. C.) Lloyd asserts that the time reflected in the Fees Spreadsheet post-dates the March 9 cut-off used for the Fee Motion, with the exception of two entries that were written off when that motion was finalized. (Lloyd Dec., ¶ 6.)

Based on Lloyd’s personal knowledge of the work performed, the time incurred, and descriptions appearing on invoices, Lloyd segregated the amounts appearing in the Fees Spreadsheet into categories reflecting the nature of work undertaken. (Lloyd Dec., ¶ 7.) Those categories appear in additional spreadsheets attached to the Lloyd declaration as exhibits D-1 through D-6 (to which the court will refer as, respectively, Spreadsheet D-1, Spreadsheet D-2, Spreadsheet D-3, Spreadsheet D-4, Spreadsheet D-5, and Spreadsheet D-6). (Ibid. & Exhs. D-1 to D-6.)

Also attached to the Lloyd declaration are invoices delivered to the Lowes (the Invoices), and copies of canceled checks evidencing payment of the amounts billed in the Invoices, exclusive of a 10 percent discount provided to and received by the Lowes. (Lloyd Dec., ¶¶ 8, 10 & Exh. E.)

Lloyd states that, though the amount billed to the Lowes as reflected in the spreadsheets described above totals $63,488, the present motion requests an award of attorney’s fees totaling $57,139.20. (Lloyd Dec., ¶ 8.) This amount reflects time expended in the post-judgment phase of this case to respond to arguments raised by Liskin’s counsel; to research and prepare the reply in support of the Fee Motion; and the exercise of billing judgment in regard to time that was written off. (Lloyd Dec., ¶ 9.)

The Lloyd declaration also includes an invoice for the Transcript. (Lloyd Dec., ¶ 11 & Exh. F.) Lloyd asserts that the Lowes incurred a fee to obtain the Transcript because during the parties’ informal fee negotiations, Liskin’s counsel disputed the court’s “without prejudice” order described above, and requested a copy of the Transcript. (Lloyd Dec., ¶ 11.)

As to the present motion, Lloyd estimates that they will expend an additional 6 to 8 hours to analyze any opposition to the present motion, to draft any reply, and to prepare for and attend the hearing. (Lloyd Dec., ¶ 12.) Applying Lloyd’s hourly rate of $485 and a 10 percent discount, Lloyd asserts that this work will result in the Lowes’ incurring additional attorney’s fees of approximately $2,619 to $3,492. (Ibid.)

Liskin opposes the present motion.

On October 22, Liskin filed a notice and acknowledgment of receipt (the Liskin Acknowledgment), which states that the Lowes and their counsel acknowledge receipt of a check in the amount of $855 in full satisfaction of costs claimed by the Lowes in the memorandum of costs on appeal filed on September 15 and described above.

Analysis:

For the reasons discussed herein, the court will grant the present motion, in part.

As a threshold matter, the present undisputed record reflects that costs claimed in the memorandum of costs on appeal filed by the Lowes on September 15, 2025, have been satisfied in full by Liskin as reflected by the filing of the Liskin Acknowledgment described above. For this reason, it is the court’s understanding that costs incurred by the Lowes on appeal and claimed in the memorandum of costs on appeal are not at issue in this proceeding.

The present motion requests an award of attorney’s fees incurred by the Lowes on appeal. (Notice at p. 2, ¶ 2.) Spreadsheet D-5 attached to the Lloyd declaration and described above is entitled “Fees Incurred Addressing Appellate Issues”. (Lloyd Dec., Exh. D-5.) That spreadsheet includes a summary of the hours expended by attorney Lloyd and timekeeper “DLC”, whom the court understands to refer to attorney David L. Cousineau (attorney Cousineau), and each counsel’s hourly rate. (Ibid.) Spreadsheet D-5 also includes a description of the services performed by each of these attorneys in regard to the appellate matters described in that spreadsheet. (Ibid.)

Spreadsheet D-5 reflects that attorneys Lloyd and Cousineau expended a total of 5.7 hours to address appellate issues, that 0.5 of these hours were written-off, and that the attorney’s fees incurred by the Lowes for those hours total $3,253.50. (Lloyd Dec., Exh. D-5.) Information appearing in Spreadsheet D-5 also shows that the hourly rate charged by attorney Lloyd is $485, and the hourly rate charged by attorney Cousineau is $850. (Ibid.) The motion requests an award of attorney’s fees on appeal in the total amount of $2,928.15, which reflects and includes the 10 percent discount provided to the Lowes, and described in the Lloyd declaration and above. (Ibid.)

The parties here do not appear to dispute that the Davis-Stirling Common Interest Development Act (the Act), codified as Civil Code section 4000 et seq., governs this action and authorizes the recovery of attorney’s fees by a prevailing party, or that the Lowes are the prevailing party under the Act. (Champir, LLC v. Fairbanks Ranch Assn. (2021) 66 Cal.App.5th 583, 590 [the Act “governs an action to enforce the recorded CC&Rs of a common interest development.”]); Civ. Code, § 5975, subd. (c); Heather Farms Homeowners Assn. v. Robinson (1994) 21 Cal.App.4th 1568, 1572-1574 [general discussion].)

“[I]t is established that fees, if recoverable at all—pursuant either to statute or parties’ agreement—are available for services at trial and on appeal.” (Serrano v. Unruh (1982) 32 Cal.3d 621, 637.) “A statute authorizing an attorney fee award at the trial court level includes appellate attorney fees unless the statute specifically provides otherwise.” (Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1499; see also Morcos v. Board of Retirement (1990) 51 Cal.3d 924, 927 [“statutes authorizing attorney fee awards in lower tribunals include attorney fees incurred on appeals of decisions from those lower tribunals....”].) Where the right to recover attorney’s fees “is statutory, the trial court is authorized to award attorney’s fees as part of costs on appeal notwithstanding a lack of direction in the remittitur.” (M. C. & D. Capital Corp. v. Gilmaker (1988) 204 Cal.App.3d 671, 677.)

It is unclear from the points advanced in Liskin’s opposition to the present motion, whether Liskin disputes that the Lowes may recover attorney’s fees incurred on appeal, or disputes only the reasonableness of those fees.

For example, though Liskin does not appear to dispute that the Lowes, as the prevailing party, may recover reasonable attorney’s fees under the Act or that, generally, costs incurred on appeal are “potentially” recoverable under the Act (see Opp. at p. 8), Liskin also to contend that the present motion is governed by the Enforcement of Judgments Law or the “EJL”, codified as Code of Civil Procedure section 680.010 et seq., because Liskin satisfied the Judgment in full. For this reason, Liskin appears to contend that, pursuant to the decision in Conservatorship of McQueen (2014) 59 Cal.4th 602 (McQueen) and Gray1 CPB, LLC v. SCC Acquisitions, Inc. (2015) 233 Cal.App.4th 882, among others (see Opp. at p. 6), the Lowes are barred from recovering attorney’s fees in this proceeding. (See, e.g., McQueen, supra, 59 Cal.4th at p. 616 [motion for attorney’s fees incurred to enforce judgment that was filed after the judgment was satisfied was untimely].)

To the extent Liskin challenges the request for attorney’s fees incurred on appeal in this proceeding, the EJL provides: “Attorney’s fees incurred in enforcing a judgment are included as costs collectible under this title if the underlying judgment includes an award of attorney’s fees to the judgment creditor pursuant to subparagraph (A) of paragraph (10) of subdivision (a) of [Code of Civil Procedure] [s]ection 1033.5.” (Code Civ. Proc., § 685.040.) Costs authorized under Code of Civil Procedure section 685.040 may be claimed by noticed motion which “shall be made before the judgment is satisfied in full....” (Code Civ. Proc., § 685.080, subd. (a).)

Subject to exception which does not apply here, California Rules of Court, rule 3.1702, provides: “A notice of motion to claim attorney’s fees on appeal ... under a statute or contract requiring the court to determine entitlement to the fees, the amount of the fees, or both, must be served and filed within the time for serving and filing the memorandum of costs under rule 8.278(c)(1) in an unlimited civil case or under rule 8.891(c)(1) in a limited civil case.” (Cal. Rules of Court, rule 3.1702(c).) Rule 8.278, which applies to this case, requires a memorandum of costs on appeal to be filed “[w]ithin 40 days after issuance of the remittitur....” (Cal. Rules of Court, 8.278, subd. (c)(1).)

The statutes and rules described above “do not treat civil appeals as a part of the enforcement of judgment process.” (McQueen, supra, 59 Cal.4th at pp. 608, 610.) Instead, in circumstances where, such as here, “attorney fees are authorized by statute ..., fees awarded for expenses incurred on appeal from the trial court judgment are not governed by the procedures of the [EJL]. Rather, they are recovered under the procedures set forth in court rules promulgated pursuant to Code of Civil Procedure section 1034, subdivision (b).” (Id. at p. 608.)

For all reasons discussed above, to the extent the present motion requests an award of fees incurred in connection with the appeal, that request is not subject to the provisions of the EJL. Liskin also fails to explain why the motion is untimely under the rules further discussed above, considering the date the remittitur described above was issued. (See Cal. Rules of Court, rules 3.1702(c)(1) & 8.278(c)(1); see also McQueen, supra, 59 Cal.4th at pp. 608, 612 [general discussion].)

Though the EJL does not apply to the request for an award for attorney’s fees incurred on appeal at issue in this proceeding, the attorney’s fees claimed in the motion must be reasonable. (Civ. Code, § 5975, subd. (c); Karton v. Ari Design & Construction, Inc. (2021) 61 Cal.App.5th 734, 744 (Karton) [“[t]he benchmark in determining attorney fees is reasonableness.”].) To determine a reasonable fee, the court may utilize the “lodestar approach” which “is the product of a reasonable hourly rate and a reasonable number of hours.” (Ibid. [also noting that the “[t]he court then may adjust the lodestar based on a variety of factors[]” including “the nature, difficulty, and extent of the litigation, the skill it required, the attention given, and the success or failure of the enterprise....”].) The “prevailing hourly rates” may be used “as a basis for the lodestar....” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131-1132 (Ketchum).) “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 Group v. Drexler (2000) 22 Cal.4th 1084, 1095 (PLCM).)

“The second method is the percentage-of-recovery approach. The percentage approach ... predated the lodestar method, but has always shared the lodestar method’s fundamental goal of defining ‘reasonableness’ in a given case. [Citation.]” (Karton, supra, 61 Cal.App.5th at p. 744.) “The choice of a fee calculation method is generally one within the discretion of the trial court, the goal under either the percentage or lodestar approach being the award of a reasonable fee to compensate counsel for their efforts.” (Laffitte v. Robert Half Internat. Inc. (2016) 1 Cal.5th 480, 504.)

Generally, the court begins its analysis of whether the fees requested are reasonable by reviewing the attorney’s time records. (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].) The court has reviewed the information appearing in Spreadsheet D-5 and the Invoices and described above. That information is “entitled to credence in the absence of a clear indication the records are erroneous.” (Horsford, supra, 132 Cal.App.4th at p. 396.)

“[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.) Spreadsheet D-5 and the Invoices include sufficiently detailed descriptions of the hours expended by attorneys Lloyd and Cousineau and the appellate matters described in those records. The hours expended on these matters do not appear to have been unnecessary or unreasonable under the circumstances present here.

Though the motion fails to include any description of the experience or skill of attorneys Lloyd and Cousineau, “[t]he ‘ “experienced trial judge is the best judge of the value of professional services rendered in his court....” ’ [Citation.]” (Ketchum, supra, 24 Cal.4th at p. 1132.) “The 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.” (Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623-624.) 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.)

The July MO, a copy of which is attached to the Lloyd declaration, includes a discussion of the experience and skill of attorneys Lloyd and Cousineau, which the court considered in determining the Fee Motion. (Lloyd Dec., Exh. A.) Based on the court’s familiarity with those matters, and considering the services provided by attorneys Lloyd and Cousineau to address the appellate issues described in Spreadsheet D-5, the court finds that the hourly rates charged by these attorneys is 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 to determine reasonable value of attorney’s services]; PLCM, supra, 22 Cal.4th at p. 1095 [general discussion].)

In the opposition, Liskin contends that no actual appellate work could have occurred because no opening brief was ever filed and no substantive work took place. Liskin further contends that the moving papers fail to include any explanation or discussion of the fees claimed on appeal, or their reasonableness, and that, at most, only a few billing entries reflect the Lowes’ actual fees incurred on appeal.

Liskin also submits a declaration of his counsel, Brianna E. McCarthy (attorney McCarthy) which describes counsel’s efforts to obtain receipts for fees and costs incurred by the Lowes on appeal. (McCarthy Dec., ¶¶ 4-8.) For the reasons described above, Liskin argues, any attorney’s fees incurred by the Lowes’ on appeal and recoverable in this proceeding were not reasonably necessary to the conduct of this litigation, and only convenient or beneficial.

The points advanced in Liskin’s opposition, including the McCarthy declaration, do not persuade the court that the attorney’s fees incurred by the Lowes in connection with the appellate matters described in Spreadsheet D-5 and the Invoices are unreasonable. For these and all further reasons discussed above, the court will grant the present motion as to the request for an award of attorney’s fees incurred by the Lowes on appeal, in the amount of $2,928.15.

Noted above, the motion also requests an award of attorney’s fees incurred by the Lowes “in connection with the reply briefing and attending the hearing of” the Fee Motion and Cost Motion. (Notice at p. 2, ¶ 1.) As to that request, the motion asserts that, with their reply to Liskin’s opposition to the Fee Motion, the Lowes included a “supplemental fee request” (the Supplemental Request) for attorney’s fees in the amount of $36,624.60, which the Lowes contend they incurred to finalize the Fee Motion, including the reply, and to oppose the Cost Motion. (Motion at pp. 4-5.) The motion notes that the court denied the Supplemental Request, without prejudice. (Motion at p. 5.)

Relevant court records reflect that on May 9, 2025, in support of the Lowe’s reply to Liskin’s opposition to the Fee Motion, the Lowes submitted a declaration by attorney Cousineau (the Cousineau Reply Declaration). Attached to that declaration is a spreadsheet showing hours expended by the Lowes’ counsel after March 9, which were not included with the moving papers submitted in support of the Fee Motion. (Cousineau Reply Dec., ¶ 4 & Exh. I [spreadsheet].) The Cousineau Reply Declaration shows that the Supplemental Request included attorney’s fees incurred in “finalizing the [Fee Motion], opposing the [Cost Motion], and replying to Liskin’s opposition to [the Fee Motion].” (Ibid.) According to the Cousineau Reply Declaration, the attorney’s fees included in the Supplemental Request total $36,624.60, after applying a 10 percent discount provided to the Lowes. (Id. at ¶ 5.)

A spreadsheet attached to the Cousineau Reply Declaration also describes the time expended by the Lowes’ counsel for services performed between March 9 and May 9, 2025, in connection with the Fee Motion and the Cost Motion. (Cousineau Reply Dec., Exh. I.)

Court records also reflect that in the July MO, the court stated: “[W]ith 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. [Citation.] The request is supported by evidence submitted in a reply declaration of Cousineau. [Citation.] 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.” (Lloyd Dec., Exh. A [July MO].)

The Transcript attached to the Lloyd declaration shows that, at the hearing on the Fee Motion, attorney Lloyd stated: “Would your Honor be inclined to make [the court’s] order without prejudice as to the reply fees? The reason is there an appeal pending and if we prevail on appeal, there would be a motion for fees that comes back down. I think that would be perhaps the appropriate opportunity to include it in a noticed motion.” (Lloyd Dec., Exh. B at p. 9, ll. 9-14.) In response, the court stated: “Yes, it will be without prejudice.” (Id. at ll. 15-17.)

The Transcript does not show that counsel for Liskin, who was present at the hearing on the Fee Motion, objected to attorney Lloyd’s request for an order denying the Supplemental Request without prejudice, and did not respond to attorney Lloyd’s statement that the Supplemental Request would be included in a future motion by the Lowes for attorney fees.

The July Order also provides that the denial of the Supplemental Request is without prejudice. (Lloyd Dec., Exh. A at pdf p. 7.)

Spreadsheet D-1, Spreadsheet D-2, and Spreadsheet D-3 (collectively, the Fee Motion Spreadsheets) are entitled, respectively, “Fees Incurred Finalizing Motion for Attorneys Fees”, “Fees Incurred Opposing Motion to Tax Costs”, and . “Fees Incurred Analyzing Opposition to Motion for Attorneys’ Fees and Drafting Reply”. (Lloyd Dec., Exhs. D-1 to D-3.) Similar to the spreadsheet attached to the Cousineau Reply Declaration, the Fee Motion Spreadsheets set forth the hours expended by counsel for the Lowes for services performed between March 9 and May 9, 2025, in regard to the Fee Motion and the Cost Motion. (Ibid.) The attorney’s fees incurred and claimed for those services, which are presumably the same services addressed and described in Cousineau Reply Declaration and the Lowes’ reply, total $49,014, after applying the 10 percent discount described above.

Liskin contends that the Lowes’ request for an award of attorney’s fees incurred in connection with the Fee Motion and the Cost Motion is also governed and barred by the provisions of the EJL for the same reasons further discussed above.

“[P]rejudgment costs, including attorney fees where authorized by contract, statute or law [citation], are recovered through procedures established under [Code of Civil Procedure] section 1034, subdivision (a) and [California Rules of Court,] rules 3.1700 and 3.1702(b)...” whereas “postjudgment enforcement costs and fees are recovered under the [EJL], specifically sections 685.040 to 685.095. (McQueen, supra, 59 Cal.4th at p. 608, original italics, fns. omitted.) Though section 685.040 of the EJL authorizes the recovery of attorney’s fees incurred to enforce a judgment “if the underlying judgment includes an award of attorney’s fees to the judgment creditor...” (Code Civ. Proc., § 685.040), the court in McQueen noted: “[t]he [EJL] addresses in detail several means of enforcing a judgment, including liens on real and personal property [citations], writs of execution [citations], garnishment of wages [citations] and writs of possession or sale [citations]. It also addresses in detail the effect and adjudication of third party claims [citations] and the procedures governing satisfaction of the judgment [citations].” (McQueen, supra, 59 Cal.4th at p. 609.)

Relevant here, the procedures described in the EJL for enforcing a judgment, further discussed above, do not include the same procedures for recovering prejudgment costs such as attorney’s fees authorized by statute, which, for the reasons set forth above, “are set out elsewhere in the Code of Civil Procedure and in the California Rules of Court.” (McQueen, supra, 59 Cal.4th at p. 609; see also Code Civ. Proc., § 1033.5, subd. (a)(10) [allowing the recovery of attorney’s fees as costs when authorized by statute] & § 1034, subd. (a) [prescribing procedure for claiming allowable prejudgment costs].)

The description of services appearing in the Fee Motion Spreadsheets, on their face, do not show that the Lowes’ counsel undertook any efforts, or employed any procedures authorized under the EJL, to enforce the Judgment. Instead, those spreadsheets describe hours expended by counsel to recover costs allowable under Code of Civil Procedure section 1033.5 (i.e., attorney fees authorized by the Act), pursuant to the procedure established in Code of Civil Procedure section 1034. (Code Civ. Proc., § 1034, subd. (a).) As the procedures employed by the Lowes’ counsel and described in the Fee Motion Spreadsheets are distinct from the procedures described in the EJL for enforcing a judgment, and for all reasons discussed above, Liskin has failed to show why the EJL applies under the circumstances present here.

The court further notes that “equitable estoppel arises where a prospective defendant induces a prospective plaintiff not to protect his rights, and when the plaintiff attempts to assert them, raises a defense that exploits the plaintiff's lapse.” (City of Hollister v. Monterey Ins. Co. (2008) 165 Cal.App.4th 455, 487.) The elements of equitable estoppel are: “(1) [t]he party to be estopped has engaged in blameworthy or inequitable conduct; (2) that conduct caused or induced the other party to suffer some disadvantage; and (3) equitable considerations warrant the conclusion that the first party should not be permitted to exploit the disadvantage he has thus inflicted upon the second party.” (Id. at p. 488.)

The Transcript reflects that Liskin’s counsel requested and advanced oral argument at that hearing on the Fee Motion. (Lloyd Dec., Exh. B at p. 2, l. 21-p. 6, l. 14.) Following that oral argument, attorney Lloyd requested, among other things, that the court “reconsider the [Supplemental Request] and grant those in addition to the [Fee Motion].” (Id. at p. 6, l. 15-p. 8, l. 24.) Noted above, the court declined to change its tentative ruling, the court granted attorney Lloyd’s request that the order be made without prejudice as to the Supplemental Request. (Id. at p. 9, ll. 1-17.) As further discussed above, the Transcript shows that Liskin’s counsel did not oppose or otherwise respond to the Lowes’ request. (Id. at l. 23.)

The parties do not dispute that Liskin satisfied the Judgment in full on July 8, 2025, the same day the Lowes filed the Acknowledgment. The present record described herein shows that, at the time the Judgment was satisfied, the parties were ostensibly aware of the Supplemental Request, which included attorney’s fees incurred by the Lowes in connection with the Fee Motion, and understood that the Lowes would seek to recover those fees in a future motion. (See, e.g., Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 1002 [“there is no rule prohibiting a party from bringing a second motion to recover attorney fees incurred since an initial motion was filed.”].) Notwithstanding the parties’ understanding, information appearing in the McCarthy declaration shows that the first time Liskin substantively raised the issue of whether the EJL precludes the recovery of attorney’s fees included the Supplemental Request, or incurred on appeal, was August 7, nearly a month after Liskin satisfied the Judgment. (McCarthy Dec., ¶ 6 & Exh. 4.)

Under the totality of the circumstances present here, even if the EJL precluded the recovery of attorney’s fees included in the Supplemental Request or incurred on appeal (and the court does not find that it does), the facts and the equities further discussed above justify estopping Liskin from asserting that argument.

The same analysis and reasoning apply to the points raised in the supplemental brief submitted by Liskin on January 29, 2026, in which Liskin argues that any request for prejudgment costs is untimely under California Rule of Court, rule 3.1702(a). (See Lloyd Dec., Exh. B [Transcript] at p. 9, ll. 10-14 [stating or indicating that the Supplemental Request would be raised in a future noticed motion for attorney’s fees on appeal to the extent the Lowes prevail in that appeal]; Cal. Rules of Court, rule 3.1702(c) [prescribing deadline for filing a notice of motion to claim attorney’s fees on appeal].)

Liskin further asserts that the motion is procedurally defective because the notice fails to comply with statutory requirements or court rules. By opposing the present motion on its merits, Liskin has waived any procedural defects asserted in the opposition. (Carlton v. Quint (2000) 77 Cal.App.4th 690, 697.)

Apart from the points and arguments described above, Liskin advances no further reasoned factual or legal argument to show why the attorney’s fees incurred for the services described in the Fee Motion Spreadsheets are unreasonable.

The court has carefully reviewed all evidence and information submitted by the Lowes in regard to attorney’s fees they incurred for the services described in the Fee Motion Spreadsheets, as well as the information and evidence appearing in the Cousineau Reply Declaration as to those fees. Based on that evidence and information, and absent a dispute by Liskin as to the reasonableness of the fees requested in the motion, the court finds that 82.7 hours at the hourly rates described in the Cousineau Reply Declaration and above, for a total award of $36,624.60, represents a reasonable fee award for these services, exclusive of inefficient or duplicative efforts which are “not subject to compensation.” (Ketchum, supra, 24 Cal.4th at p. 1132.)

Spreadsheet D-4, entitled “Fees Incurred Preparing for and Attending Hearing of Fee Motion and Costs Motion”, describes attorney’s fees incurred by the Lowes to prepare for and attend the hearing on the Fee Motion and Costs Motion. The court’s review of the record shows or indicates that these fees were not included in the Supplemental Request. The same reasoning and analysis apply. For all reasons discussed above, and absent any dispute by Liskin apart from the issues discussed above or as to reasonableness of these fees, the court finds that 1.6 hours of attorney Lloyd’s time to prepare for and attend oral argument on the Fee Motion and Cost Motion, at the hourly rate of $485, for a total of $776, represents reasonable compensation for these services exclusive of any overlap as to the time also expended by attorney Cousineau.

The motion also requests attorney’s fees incurred for the services described in Spreadsheet D-6 entitled “Fees Incurred Addressing Ancillary Post-Trial Fee Issues And Drafting Fee Motion”. That spreadsheet describes services performed by attorneys Lloyd and Cousineau to, among other things, prepare the present motion. Noted above, the motion also requests attorney’s fees incurred to analyze Liskin’s opposition to the motion, to prepare a reply, and to attend the hearing. (Lloyd Dec., ¶ 6.) The court will refer to these services, including those described in Spreadsheet D-6, collectively, as the Ancillary Services.

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.) The same reasoning and analysis apply to the Ancillary Services. For the same reasons discussed above, and based on the court’s review of Spreadsheet D-6 and the Lloyd declaration, the court finds that 11.5 hours of attorney Lloyd’ time for the Ancillary Services, at the reasonable hourly rate of $485, and 1 hour of attorney Cousineau’s time for the Ancillary Services, at the reasonable hourly rate of $850, is reasonable. For these and all further reasons discussed above, the court will award the amount of $5,784.75 for the Ancillary Services, which the court finds is a reasonable award. The attorney’s fees awarded for the Ancillary Services excludes inefficient, overlapping, or duplicative efforts not subject to compensation, and includes of the 10 percent discount described in the Lloyd declaration.

As to the fee to obtain the Transcript requested in the motion, which totals $50 (Lloyd Dec., Exh. F), the Lowes fail to explain any basis to recover costs for a transcript that was not ordered by the court. (Code Civ. Proc., § 1033.5, subd. (a)(9).) Furthermore, considering that the July Order states that the court’s denial of the Supplemental Request is without prejudice (Lloyd Dec., Exh. A at pdf p. 7), the court finds that costs incurred by the Lowes to obtain a copy of the Transcript were, at most, beneficial or convenient to the preparation of the present motion and not necessary to the conduct of this proceeding. (Charton v. Harkey (2016) 247 Cal.App.4th 730, 739.)

Liskin’s request for judicial notice:

Liskin requests that the court take judicial notice of the Acknowledgment; the notice of appeal filed by Liskin on March 4, 2025; the August 6, 2025, order of the Court of Appeal dismissing the appeal; and the memorandum of costs on appeal filed by the Lowes on September 15, 2025. (Liskin RJN at p. 2, nos. 1-4.) Though not necessary, the court will grant Liskin’s request for judicial notice of these court records. (Evid. Code, § 452, subd. (d)(1).)