8 Aprea’s argument that claim preclusion bars Nash and
O’Connor from recovering additional attorneys’ fees without
“‘actual litigation’” of their right to recover attorneys’ fees over
$1,000 fails to address the law under section 685.040 that prior
contract terms are merged into the judgment. Aprea’s reliance on
Sukut Construction, Inc. v. Cabot, Cabot & Forbes Land Trust
(1979) 95 Cal.App.3d 527, 529-531 to support her argument is
misplaced. In Sukut, the Court of Appeal concluded that claim
preclusion applied to bar the plaintiff’s action to foreclose a
mechanic’s lien against parcels of property because the claim was
“encompassed” by a prior foreclosure action. (Id. at p. 531.)
Sukot involved only claim preclusion (that the action to enforce
the lien reasserted a right litigated in a prior action), not the
EJL. Apria’s final argument that Nash and O’Connor waived
their right to attorneys’ fees over $1,000 fares no better, simply
recycling her argument the lease survives the judgment. 15