Southfork Ranch v. Bunn CA2/6 ( 2020 )

Filed 12/16/20 Southfork Ranch v. Bunn CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
SOUTHFORK RANCH, LLC, 2d Civ. No. B279391
et al., (Cons. w/ No. B280994)
(Super. Ct. No. 56-2014-
Plaintiffs, Appellants and Cross- 00449856-CU-BC-VTA)
Appellants, (Ventura County)
v. ORDER DENYING PETITION
FOR REHEARING AND
DAVID BUNN et al., MODIFYING OPINION
(No Change in Judgment)
Defendants, Respondents and
Cross-Respondents.
THE COURT:
It is ordered that the opinion filed herein on November 17,
2020, be modified as set forth below:
1. On page 2, the first two full paragraphs are consolidated
and modified to read as follows: Southfork and King, the
respective owners of Parcels B and C, sued Parcel A’s owners,
Bunn & Birrell, for alleged interference with their use of the
Parcel A easements. Following trial, the court concluded
appellants had “failed to introduce sufficient credible evidence” to
prove their causes of action for interference with easement,
trespass and declaratory relief. It also found Bunn & Birrell
have equal rights to a share of the water generated by the new
water facilities and ruled in their favor on their cross-complaint
challenging appellants’ construction of those facilities.
2. On page 4, the final sentence in the last full paragraph
is deleted in its entirety and the second sentence is modified, so
that the entire paragraph now reads: In 2011, appellants
brought actions against Bunn & Birrell and TNC in what we
identify as Southfork I. Among other things, appellants
requested the right to remove part of the revetment wall and
groins. Bunn & Birrell intervened in the action against TNC.
3. On page 5, the second and third sentences in the first
full paragraph are deleted in their entirety and the word “here” is
added at the end of the last sentence, so that the entire
paragraph now reads: Following trial in 2013, the trial court
found that appellants cannot alter or remove the riverbank
protections. Southfork I became final when appellants
abandoned their appeal from the judgment. No attorney fees or
costs arising from that case are at issue here.
4. On page 25, the final full paragraph is modified to
include the following as footnote 7 at the end of the paragraph:
In their petition for rehearing, appellants contend our opinion
affirming the trial court's judgment in Southfork III eviscerates
the trial court's earlier judgment in Southfork I. To the extent
2
the Southfork I, II and III judgments require harmonization, as
appellants now claim, that issue pre-existed our decision and
should have been raised in the briefs. (Hunt v. County of Shasta
(1990) 225 Cal.App.3d 432, 446, fn. 12; Brown v. Superior Court
(1982) 137 Cal.App.3d 778, 782.)
5. On page 31, footnote 7 shall be renumbered as footnote
8.
No change in judgment.
Appellants’ petition for rehearing is denied.
GILBERT, P.J. YEGAN, J. PERREN, J.
3
Filed 11/17/20 Southfork Ranch v. Bunn CA2/6 (unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
SOUTHFORK RANCH, LLC, 2d Civ. No. B279391
et al., (Cons. w/ No. B280994)
(Super. Ct. No. 56-2014-
Plaintiffs, Appellants and Cross- 00449856-CU-BC-VTA)
Appellants, (Ventura County)
v.
DAVID BUNN et al.,
Defendants, Respondents and
Cross-Respondents.
Appellants Southfork Ranch, LLC (Southfork) and R. Eric
King and respondents David Bunn and Ellen Birrell (collectively
Bunn & Birrell) farm on three adjoining parcels of land in
Ventura County. The parcels, known as Parcels A, B and C,
share a water facilities system on the Santa Clara River
pursuant to the Southfork Ranch Declaration of Covenants,
Conditions and Restrictions (CC&R’s). Among other things, the
CC&R’s created an easement on Parcel A, which allows the
owners of Parcels B and C to cross that parcel to access their
land. The CC&R’s also permit the owners of Parcels B and C to
receive water from the water facilities system located on Parcel
A.
Southfork and King, the respective owners of Parcels B and
C, have twice unsuccessfully sued Parcel A’s owners, Bunn &
Birrell, for alleged interference with their use of the Parcel A
easements. This is their third attempt. Once again, they are
unsuccessful.
Following trial, the court concluded appellants had “failed
to introduce sufficient credible evidence” to prove their causes of
action for interference with easement, trespass and declaratory
relief. It also found Bunn & Birrell have equal rights to a share
of the water generated by the new water facilities and ruled in
their favor on their cross-complaint challenging appellants’
construction of those facilities.
Over appellants’ objections, the trial court awarded Bunn &
Birrell a total of $866,229.50 in contract-based attorney fees and
costs. (See Civ. Code, 1717.)1 Of this sum, $376,638.10 is
attributable to one of the earlier Southfork cases. In addition,
another respondent, The Nature Conservatory (TNC), was
awarded $585,865.83 in fees and expenses.
In this consolidated appeal, appellants contest both the
post-trial judgment in Bunn & Birrell’s favor and the awards of
fees and costs to respondents. As to the merits, appellants argue
the trial court misinterpreted the CC&R’s regarding the parties’
1All further statutory references are to the Civil Code
unless otherwise stated.
2
water rights. They claim Bunn & Birrell repudiated any rights
they had. Appellants further contend that the court applied the
wrong burden of proof on their interference with easement claim
and that it exceeded its defined powers by issuing a list of
Declarations outlining the parties’ rights and obligations under
the CC&R’s.2
As for the attorney fees, expert fees and costs awards,
appellants challenge both the propriety and amount of the trial
court’s orders. They contend respondents’ claims sound in tort,
rather than contract, and that they needlessly over-litigated
portions of the case and inappropriately allocated certain fees
and expenses.
We conclude appellants have failed to demonstrate error in
either aspect of this appeal. We do, however, modify the two
orders awarding expert fees of $14,780.45 to Bunn & Birrell to
clarify that those fees may only be collected once.
I. LITIGATION HISTORY3
Adopted in 1992, the CC&R’s created water access rights
by easement for three contiguous parcels of land. Parcel A abuts
the Santa Clara River, while Parcels B and C do not. Water for
the three parcels was pumped from a well into tanks and
2 TNC is not a party to the merits portion of this appeal. It
is a party to appellants’ challenge to the fees and costs awards.
3Some of this history is adapted from our prior opinion in
an appeal involving the same parties, Southfork Ranch, LLC v.
The Nature Conservancy (Jan. 17, 2018, B267157) [nonpub. opn.]
(Southfork II). Facts specific to the current litigation and the fee
and costs awards are detailed in the Discussion section.
3
dispersed through pipes. The water facilities were located on
Parcel A.
After the CC&R’s were adopted, floods destroyed the water
well and eroded the riverbank along Parcel A. An amendment to
the CC&R’s, recorded in 1996, moved the well site upstream and
established a new easement. At the same time, the then-owner of
Parcel A constructed a revetment wall several hundred feet in
length to protect the riverbank. Flooding in 1997-1998 destroyed
60 percent of that wall. A new wall, 9 to 14 feet high, was
constructed in 1999 and groins of caged rocks were placed near
its base.
Southfork purchased Parcel B in 1996, after the CC&R’s
had been amended. King bought Parcel C in 2000. Bunn &
Birrell purchased Parcel A in 2005, while the County of Ventura
(County) was suing the then-owner of Parcel A for constructing
the unauthorized revetment wall. The County settled the lawsuit
by stipulation in 2005. The judgment required Bunn & Birrell to
repair and restore the wall structures along the river, to comply
with watershed protection standards and to transfer 52 riparian
acres of Parcel A to TNC. Part of Parcel A (now known as Parcel
AAA) was transferred to TNC in 2009, the same year Bunn &
Birrell completed the necessary restoration work.
A. Southfork I
In 2011, appellants brought actions against Bunn & Birrell
and TNC in what we identify as Southfork I. Appellants
requested the right to remove part of the revetment wall and
groins and to force Bunn & Birrell to remove all obstructions
preventing appellants from constructing a new well. Bunn &
Birrell intervened in the action against TNC. Parcel A’s water
rights under the CC&R’s were not at issue.
4
Following trial in 2013, the trial court found that
appellants cannot alter or remove the riverbank protection
structures. The court denied appellant’s motions for attorney
fees. It found that “neither party prevailed sufficiently to justify”
such an award. Southfork I became final when appellants
abandoned their appeal from the judgment. No attorney fees and
costs arising from that case are at issue.
B. Southfork II
Appellants filed Southfork II in 2014, alleging interference
with easement and demanding removal of the revetment wall,
groins and other obstructions. The complaint did not mention
Southfork I. The trial court granted summary judgment in TNC’s
favor based upon res judicata principles. It also granted Bunn &
Birrell’s motion for judgment on the pleadings. We affirmed,
agreeing that Southfork II was an improper collateral attack on
the 2013 judgment. (Southfork II, supra, B267157.)
The trial court awarded TNC $511,103.60 in attorney fees
and $74,762.23 in costs, for a total of $585,865.83. It awarded
Bunn & Birrell $376,638,10 in attorney fees and $14,780.45 in
expert fees.
C. The Current Litigation (Southfork III)4
In their second amended complaint, appellants again
asserted interference with easement, alleging their use of and
access to the roadway and water easements are obstructed by
Bunn & Birrell’s water pipes, avocado and citrus trees, shrubs,
fencing, telephone lines, a fertilizer injector and concrete blocks.
Bunn & Birrell cross-complained for breach of the CC&R’s and
declaratory relief. The trial court held a 17-day bench trial in
2015.
4 The current litigation was severed from Southfork II.
5
The trial court determined appellants had failed to prove
their causes of action. The statement of decision emphasized the
parties’ dependence on the river water and noted the CC&R’s
assure that each parcel has access to water through wells, tanks,
pipelines, pumps and utility lines on Bunn & Birrell’s land. The
court found Southfork responsible for maintaining the water
facilities, but clarified it is only entitled to reimbursement for
costs based on each parcel’s planted acreage. Southfork
improperly charged Bunn & Birrell based on water usage and
then refused their requests for records justifying the charges.
The trial court further found appellants had “decided years
ago to develop and construct new wells in order to increase the
amount of water taken from the river, without the consent or
involvement of Bunn & Birrell.” While this action was pending,
appellants constructed the new well and tanks with the intent to
exclude Bunn & Birrell from that system. The court enjoined
appellants’ activities in 2014, noting they had misled federal and
state agencies about the construction and the plan to increase
their water usage.
Prior to trial, appellants claimed the old well was failing
and obtained court approval to continue construction on the new
well. In fact, the new well was not operational at the time of trial
because it lacked sufficient electrical power to function.
The trial court entered judgment for Bunn & Birrell at the
close of appellants’ case. It determined that appellants cannot
install new water facilities on Parcel A for their exclusive use,
and that they failed to introduce credible evidence showing the
new well is permitted by government agencies or that the alleged
obstructions are within the easement areas or interfere
unreasonably with access to or use of the easements. For the
6
same reason, the court found appellants had not proven their
trespass claim.
The trial court also entered judgment for Bunn & Birrell on
their cross-complaint. It made 28 Declarations regarding the
parties’ rights and responsibilities under the CC&R’s. The
Declarations govern the connections to the water facilities; the
allocation of water and costs associated with maintaining the
water facilities; the need for unanimous approval for new water
facilities; use of the easements; appellants’ need to obtain permits
from regulatory agencies and to remove any unlawful
construction; and appellants’ obligation to make the new well
operational. Declaration 29 directs the appointment of a receiver
to enforce the court’s rulings.
The trial court awarded Bunn & Birrell the $866,229.50 in
attorney fees they requested. That amount includes $362,023.50
of the fees awarded to them in Southfork II.
II. DISCUSSION
Southfork and King appeal the orders awarding attorney
fees and costs in Southfork II and III, as well as the judgment on
the merits in Southfork III. We address the latter argument
first.
A. Challenge to Southfork III Judgment
1. Standard of Review
A judgment “‘is presumed correct.’” (Denham v. Superior
Court (1970) 2 Cal.3d 557, 564 (Denham).) Appellants bear the
burden of overcoming this presumption. (Ekstrom v. Marquesa at
Monarch Beach Homeowners Assn. (2008) 168 Cal.App.4th 1111,
1121.) We interpret de novo the CC&R’s that govern the parties’
rights and obligations. (Ibid.; Starlight Ridge South Homeowners
Assn. v. Hunter-Bloor (2009) 177 Cal.App.4th 440, 445.)
7
Where, as here, the trial court concludes the plaintiffs
failed to prove their claims by the close of their evidence, “‘the
question for a reviewing court becomes whether the evidence
compels a finding in favor of the appellant as a matter of law.
[Citations.] Specifically, the question [is] whether the
appellant’s evidence was (1) “uncontradicted and unimpeached”
and (2) “of such character and weight as to leave no room for a
judicial determination that it was insufficient to support a
finding.”’” (Sonic Manufacturing Technologies, Inc. v. AAE
Systems, Inc. (2011) 196 Cal.App.4th 456, 466 (Sonic); Eisen v.
Tavangarian (2019) 36 Cal.App.5th 626, 647.)
2. Bunn & Birrell Did Not Forfeit Their
Water Rights Under the CC&R’s
Appellants argue Bunn & Birrell forfeited their right to use
the water facilities when they transferred Parcel AAA to TNC by
grant deed in 2009. They claim the transfer deprived Bunn &
Birrell of standing to sue or was an anticipatory repudiation of
their obligations under the CC&R’s. Neither claim has merit.
Grants are interpreted in the same manner as contracts.
(§ 1066; Southern California Edison Co. v. Severns (2019) 39
Cal.App.5th 815, 822.) The objective in construing a conveyance
with a reservation of rights is to give effect to the grantor’s
intent. (Willard v. First Church of Christ, Scientist (1972)
7 Cal.3d 473, 476-477.) The language in the conveyance and
relevant extrinsic evidence are used to determine that intent.
(Pacific Gas & E. Co. v. G.W. Thomas Drayage etc. Co. (1968) 69
Cal.2d 33, 37-38.) If the court admits extrinsic evidence, its
finding as to the credibility of the evidence is binding on appeal.
(Pierpont Inn, Inc. v. State of California (1969) 70 Cal.2d 282,
294.) “To the extent resolution of the appeal turns on the trial
8
court’s factual findings, we review such findings under the
substantial evidence standard.” (Severns, at p. 822.)
The trial court found that the TNC grant deed does not
contain “any language that can reasonably be construed to
extinguish Bunn and Birrell’s water rights.” Appellants “did not
introduce evidence sufficient to prove that [their] unmistakable
intent . . . was to subordinate, extinguish or forfeit their water
rights” through the grant deed.
Attachment 4 to the grant deed is a “Reservation of Certain
Water Rights and Reservation of Related Access Easement.” The
first sentence reserves to Bunn & Birrell subsurface waters and
“the riparian and appropriative water rights associated with the
Water Well Access Easement . . . for domestic and agricultural
purposes, as described in [the CC&R’s].” It would be
unreasonable to conclude that a document expressly reserving
such water rights also was intended to forfeit those same rights,
particularly when water is integral to Parcel A’s farming
enterprise.
In addition, we agree that the second sentence in the
reservation of rights clause does not affect the language reserving
Bunn & Birrell’s water rights under the CC&R’s.5 Even
assuming there is an ambiguity in the deed, Bunn, Birrell and
TNC clarified their intent by mutually correcting Attachment 4
to delete the second sentence and to confirm their intent to
preserve Bunn & Birrell’s “riparian and appropriative water
5 The second sentence states: “The Reserved Water Rights
do not include: any right of surface entry or surface drilling,
except as described below in the Water Well Access Easement; or
any right to dam, divert or appropriate surface water from the
Santa Clara River.”
9
rights.” As the trial court observed, “‘[f]orfeitures are not favored
by the courts, and if an agreement can be reasonably interpreted
so as to avoid a forfeiture, it is the duty of the court to avoid it.
The burden is upon the party claiming a forfeiture to show that
such was the unmistakable intention of the instrument. . . . A
contract is not to be construed to provide a forfeiture, unless no
other interpretation is reasonably possible.’ [Citation.]” (See
Boston LLC v. Juarez (2016) 245 Cal.App.4th 75, 85-86.)
King argues the 2009 grant deed was an “anticipatory
repudiation” of Bunn & Birrell’s obligations under the CC&R’s.
King’s failure to raise this issue in the trial court forfeits the
issue on appeal. (Feduniak v. California Coastal Com. (2007) 148
Cal.App.4th 1346, 1381; Kolani v. Gluska (1998) 64 Cal.App.4th
402, 412 [“Generally, failure to raise an issue or argument in the
trial court waives the point on appeal”].)
Although the CC&R’s were created before the parties
purchased their parcels, the various covenants in that document
run with the land.6 (§ 1460 [covenants running with the land are
appurtenant to an estate in real property and bind successive
owners].) The purpose of the CC&R’s was “to assure that each of
the . . . parcels comprising the Southfork Ranch retain adequate
rights of access to the respective parcels and to the water
facilities . . . located upon and adjacent to the Southfork Ranch.”
Appellants cite no authority for their assertion that
covenants running with the land, which are binding on successive
6 Section 7 states the CC&R’s “run with the Ranch and
Parcels, and shall be binding upon all parties having or acquiring
any right, title, or interest therein or any part thereof, and shall
be for the benefit of each owner of any portion of said Ranch and
the Parcels or any interest therein, and shall inure to the owners
thereof, their transferees, heirs, successors and assigns.”
10
owners, may be forfeited by one owner without amending the
CC&R’s. To the contrary, changes to the CC&R’s require
“execution and recordation of an amendment by all owners of the
Parcels.” There is no such recorded amendment excluding or
altering Parcel A’s water rights. (See 6 Miller & Starr, Cal. Real
Estate (4th ed. 2019) §§ 16:42-16:44 [describing the limited
methods of amending or terminating restrictions]; Citizens for
Covenant Compliance v. Anderson (1995) 12 Cal.4th 345, 365-366
[“[I]t is reasonable to conclude that property conveyed after
[CC&R’s] are recorded is subject to those restrictions even
without further mention in the deed”].)
Southfork contends Bunn & Birrell violated the California
Environmental Quality Act and misled the County by hiding
their intent to “construct as many water wells as they desire[]
. . . .” Not only does Southfork lack standing to assert these
claims on the County’s behalf, but its assertions are speculative
at best. The record confirms Bunn & Birrell’s unambiguous
desire to share a water well with appellants, as provided in the
CC&R’s. There is no evidence they intend to build costly,
duplicative wells.
3. Appellants Cannot Exclude Bunn & Birrell
From Using the Water Facilities
Appellants’ efforts to use the easements to build their own
water facilities on Parcel A and to deprive Bunn & Birrell of
water from those facilities defeat the purpose and spirit of the
CC&R’s. The document repeatedly confirms its intent to benefit
all parcels, not just appellants’ parcels, and that the rights and
restrictions apply to existing and replacement water facilities.
The CC&R’s define water facilities as “the water well, all
replacement water wells, all existing or replacement pumps,
11
pipelines, water storage tanks and utility lines existing upon or
added subsequent to this agreement, and serving Parcels A, B and
C . . . .” (Italics added.) The water well means “the existing
water extraction and conveyance system, or any replacement
systems, located adjacent to Parcel A in the Santa Clara River.”
(Italics added.) Appellants informed the trial court before trial
that they are building a replacement well because the old one is
failing.
Section 4.1 of the CC&R’s provides that the water facilities
“shall collectively be used for the benefit of Parcels A, B and C.”
(Italics added.) Likewise, a roadway easement on Parcel A “is
hereby reserved for the benefit of Parcels A, B and C . . . for the
purpose of installing, maintaining, repairing and replacing any
components of the Water Facilities including, but not limited to,
water wells, water storage tanks, pipelines, pumps, water meters,
utility poles, utilities lines and any other components commonly
associated with the Water Facilities.” The CC&R’s also authorize
the formation of an “owners’ association” for the benefit of the
three parcels any owners created by subdivision.
The CC&R’s specifically reserve “for the benefit of Parcels
A, B and C, together with all lots created as a result of the
subdivision of the Parcels, the right to take water from the Water
Well. The owners of Parcels A, B and C shall each have the
nonexclusive right to use to use water from the Water Well, or
any replacement water well, for the purposes of irrigating
agricultural crops and landscaping, permanent pasture, and for
watering any livestock upon Parcels A, B and C.” (Italics added.)
The location of “the Water Well” is specified in the 1992
CC&R’s, which do not mention separate wells for each parcel.
After flooding destroyed the original well, it had to be moved.
12
The 1996 amendment to the CC&R’s states “it is necessary to
significantly change the water facilities which necessitates that
the Declaration be amended by this First Amendment . . . .” The
CC&R’s thus acknowledge that moving or replacing water
facilities requires an amendment. The 1996 amendment
incorporates exhibits specifying the location of the new well and
states that Parcel C may eventually be assessed “[i]f the owner of
Parcel C later connects into the Water Facilities . . . .”
In 2013, Southfork’s principal, Robert McDonough, wrote a
letter to the Department of Fish and Wildlife, the agency
responsible for permitting riverbed construction. McDonough
conceded “the current water diversion as well as any new
diversion is communal and therefore not solely under the
auspices of Southfork Ranch or any one individual. The
associated rights and needs are those of all members of the
CC&Rs. Consequently, I cannot unilaterally restrict them. Any
changes to the existing usage or rights defined within the CC&Rs
requires an amendment to the document, signed by all members.”
(Italics added.)
Two years later, appellants took the opposite position at
trial. The trial court correctly rejected their claim that they can
build a replacement well without Bunn & Birrell’s participation
and prevent them from using it. The plain language of the
CC&R’s, i.e., that the water facilities “shall collectively be used
for the benefit of Parcels A, B and C,” does not support the
interpretation that the facilities benefit only Parcels B and C.
The CC&R’s explicitly foresee construction of “replacement water
wells” and “replacement pumps, pipelines, water storage tanks
and utility lines,” and allocate the costs of replacement, repair,
maintenance among the three parcels.
13
Section 3 of the CC&R’s grants Parcels A, B and C “the
nonexclusive right to use water” from the existing well or any
replacement well. (Italics added.) Appellants seek an exclusive
right to use water from the replacement well. An “exclusive
right” is “[o]ne which only the grantee thereof can exercise, and
from which all others are prohibited or shut out.” (Black’s Law
Dict. (6th ed. 1990) p. 565.) Neither we nor the trial court can
transform language affording Parcels A, B and C a “nonexclusive
right” to well water into an exclusive right for only Parcels B and
C. (Abers v. Rounsavell (2010) 189 Cal.App.4th 348, 361-362
[“‘We do not have the power to create for the parties a contract
that they did not make and cannot insert language that one party
now wishes were there’”]; accord Pacific Employers Ins. Co. v.
Superior Court (1990) 221 Cal.App.3d 1348, 1358-1359.)
In sum, the CC&R’s do not contemplate that the easements
they created will be burdened by separate water facilities for each
parcel, plus any new parcels created by subdivision. Moreover,
nothing in the record suggests the applicable government
agencies would permit multiple water facilities in the
environmentally sensitive river.
4. Interference with Easement
A servient tenement owner “may make any use of the land
that does not interfere unreasonably with the easement.”
(Pasadena v. California-Michigan Land & Water Co. (1941) 17
Cal.2d 576, 579.) In other words, users “have to accommodate
each other.” (Applegate v. Ota (1983) 146 Cal.App.3d 702, 712.)
If they do not, the court may order removal of obstructions that
unreasonably interfere with the easement. (Id. at pp. 712-713.)
The existence of an interference is a question of fact. (Scruby v.
Vintage Grapevine, Inc. (1995) 37 Cal.App.4th 697, 703 (Scruby);
14
Pacific Gas & Elec. Co. v. Hacienda Mobile Home Park (1975) 45
Cal.App.3d 519, 528.)
The trial court found “a fundamental failure of the
plaintiff[s] to meet their burden of proof” on their interference
claim, entitling Bunn & Birrell to judgment as a matter of law. It
found no credible evidence to establish (1) the easement
boundaries or obstructions within them; (2) that items in the
water facilities easement interfere with an intended use; (3) that
obstructions interfere with appellants’ use of the roadway
easement; (4) that appellants may use the easements to
unilaterally install water facilities for themselves without Bunn
& Birrell’s approval; (5) that the new water facilities are properly
permitted by regulatory agencies; or (6) that appellants were
denied access to the easements.
King claims the easement boundaries were not contested at
trial. We disagree. The legal description of the boundaries was
not disputed. The issue was proving the alleged obstructions
appear within those boundaries. The CC&R’s define the
easement areas by metes and bounds. A surveyor or other expert
typically must establish the location of the easement based on
that description. (See, e.g., SLPR, L.L.C. v. San Diego Unified
Port Dist. (2020) 49 Cal.App.5th 284, 311; Ranch at the Falls LLC
v. O’Neal (2019) 38 Cal.App.5th 155, 185, fn. 27.)
The trial court was unable to determine from photographs
of a mile-long roadway with twists and turns whether “trees and
pipes and rocks and cement blocks that appeared at various
places” encroach into the easements. It explained: “[W]hen it
comes to interpreting a metes and bounds description of the
boundary for an easement . . . , I need testimony from a licensed
15
surveyor who can tell me, [t]his is the boundary of the easement”
and could state that a tree, cement block or pipe encroaches.
The trial court had warned appellants that a surveyor’s
testimony would be required if the alleged obstructions were not
“obvious,” and found that appellants had failed to demonstrate
that the obstructions in the easements were obvious. (See Sonic,
supra, 196 Cal.App.4th at p. 466.) In the absence of expert
testimony, the court did not “know how [it] could possibly
conclude [there’s] an encroachment,” regardless of its
reasonableness.
Appellants point to King’s testimony regarding his
understanding of the easements’ placement, but “[m]atters that
go beyond common experience and require particular scientific
knowledge may not properly be the subject of lay opinion
testimony.” (People v. DeHoyos (2013) 57 Cal.4th 79, 131.)
“Surveyors and civil engineers, like other experts, may give
testimony on questions involving matters of technical skill and
experience with which they are peculiarly acquainted.
[Citations.]” (Richfield Oil Corp. v. Crawford (1952) 39 Cal.2d
729, 741; Bloxham v. Saldinger (2014) 228 Cal.App.4th 729, 737-
738.) “The [expert] testimony is not accepted for the purpose of
varying or contradicting the terms of the deed, but to aid the trial
court in its difficult task of translating the words of the deed into
monuments on the surface of the earth, in accord with accepted
surveying practices.” (Richfield Oil Corp., at p. 741.) As the trial
court observed, “a surveyor has the knowledge, training,
experience and licensure to plot [the metes and bounds] on the
ground and take a picture of it. And that’s the kind of evidence
that ordinarily carries the day . . . .”
16
Although King was not prohibited from giving his opinion
regarding the easements’ boundaries, the trial court did not find
his testimony helpful. Once again, the issue was not “the
sincerity of [King’s] belief,” but rather “the accuracy of his
assessment.” We are bound by this credibility determination.
(Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925; Citizens
Business Bank v. Gevorgian (2013) 218 Cal.App.4th 602, 613.)
In sum, appellants have not shown that their evidence was
uncontradicted, unimpeached and left no room for the trial court
to determine it was insufficient to support a finding in their
favor. (Sonic, supra, 196 Cal.App.4th at p. 466.) The lack of
expert evidence on a critical element of the interference claim
defeated that cause of action as a matter of law.
Nor are we persuaded by appellants’ argument that they
are entitled to a new trial because the trial court “arbitrarily
chang[ed] the rules after [a]ppellants rested,” thereby denying
them “their due process right to a fair hearing.” They seek an
opportunity to present on remand the expert evidence they did
not have available at trial. Appellants waived this argument,
however, by failing to request a continuance. This was not a jury
trial. The court had discretion to continue the trial to allow for
discovery and presentation of expert testimony. (See Noble v.
Tweedy (1949) 90 Cal.App.2d 738, 742 [“[A] party’s right to a new
trial upon the ground of surprise” is generally “waived if the
alleged surprise is not called to the court's attention by a motion
for a continuance or other relief”].)
5. The Trial Court Did Not Rewrite the CC&R’s
Appellants assert the trial court either misinterpreted or
rewrote the CC&R’s. We disagree.
17
The trial court ruled that Parcel A’s “right to take and use
water from the Water Well is unrestricted and equal to that of
any other Parcel,” and that Parcel B cannot impose a water
schedule, allocate water or modify the well. Appellants misread
this ruling as mandating equality of water allocation.
The judgment does not state that each parcel is allocated
the same amount of water. Instead, it gives the parcels equal
rights to take advantage of the well. This is consistent with the
CC&R’s, which state that the water facilities “shall collectively be
used for the benefit of Parcels A, B and C.” There is no water use
allocation among the parcels except to limit such usage to crops,
landscaping, pasture and livestock.
The CC&R’s presume the parcel owners will use the water
in an equitable and reasonable manner. Usage is “limited to such
water as shall be reasonably required for the beneficial use to be
served . . . .” (Cal. Const., art. X, § 2; see Light v. State Water
Resources Control Bd. (2014) 226 Cal.App.4th 1463, 1479 [“rule of
reasonableness” governs water usage].) King’s concern that
Bunn & Birrell will unreasonably consume water is not
supported by the record.
Southfork violated the CC&R’s by partially disconnecting
Parcel A from the water facilities, thereby reducing Bunn &
Birrell’s water access, and also by giving water to Parcel C even
though it has no right to water unless and until it connects to the
water system. The judgment directing appellants to cease these
violations is consistent with the CC&R’s.
6. Consent is Required to Build New Water Facilities
The trial court concluded that Parcel B’s authority is
limited to keeping the water facilities in good condition and
repair and that unanimous approval of all parcels is required
18
before any non-maintenance work is performed, including the
development of additional water facilities. Once again, this
ruling is consistent with the CC&R’s, which require “the owner of
Parcel B [to] provide maintenance services for the Water
Facilities in order to keep the Water Facilities in good condition
and repair . . . .” The cost of maintaining and repairing the water
facilities is allocated among the parcels by formula, which may be
modified if Parcel C (King) connects to the water facilities or if
the acreage under irrigation changes.
If Parcel B incurs “extraordinary expenses” over $4,000, it
“shall obtain an itemized written estimate of the costs involved.
This estimate, together with the plans and specifications of the
subject of the proposed expenditure, shall be submitted to the
owners of Parcels A and C, and such owners shall have ten (10)
days to object to the costs so itemized.” Disputes over
extraordinary costs are resolved by the vote of any two parcels,
except that Parcel C has no right to object or any obligation to
pay unless it elects to connect to the water facilities.
Constructing new water facilities is not “maintenance” of
existing facilities to keep them “in good repair.” The trial court
found Southfork “admitted during trial that the development of a
new well is not covered by the CC&Rs.” The CC&R’s do not
contemplate construction of new water facilities at the discretion
of Parcel B or any single parcel. Authorizing such construction
requires an amendment to the CC&R’s detailing what will be
constructed and who will pay for it. Amendment of the CC&R’s
also requires unanimous consent unless an owners’ association is
established to resolve such issues.
Southfork speculates that Bunn & Birrell will prevent the
construction of a new well, thereby destroying its ability to farm.
19
Assuming the old well is failing, as appellants claim, Bunn &
Birrell also will need water from another source. This action
involves their right to participate in the decisions for a
replacement well and to receive water from it. The CC&R’s
ensure all parcels will have collective, nonexclusive use of the
water facilities. They also “‘“impose[] upon each party a duty of
good faith and fair dealing in its performance and its
enforcement” [Citation.]’” (Carma Developers (Cal.), Inc. v.
Marathon Development California, Inc. (1992) 2 Cal.4th 342, 371-
372.)
The trial court properly concluded appellants had violated
the CC&R’s collective water rights provisions by constructing a
new well without Bunn & Birrell’s approval as to either location
or cost. Because appellants had acted “officiously” in
circumventing Parcel A’s water rights, the court declined their
request for compensation for the well construction. We agree
appellants should not be rewarded “for their rogue behavior.”
7. Parcel C’s Water Rights
The trial court found that Parcel C had never connected to
the water facilities, as required by section 4.7 of the CC&R’s.
Consequently, King must pay for the installation and
maintenance of pumps and water lines, cannot irrigate his land
with Parcel B’s water and cannot vote on or object to
extraordinary maintenance costs unless he connects to the water
facilities.
Appellants contend Parcel C has a prescriptive right to use
water produced on Parcel A. They emphasize that Southfork
began using water from Parcel B’s tank to irrigate Parcel C in
1996. King purchased Parcel C in 2000 and continued using
water from Parcel B’s tank without connecting to the system in
20
the manner required by the CC&R’s. After purchasing Parcel A,
Bunn & Birrell objected to Parcel C’s water use. Southfork
concedes its conduct in transporting water to Parcel C is “a use
not permitted by the CC&R’s.”
Noting appellants had failed to plead their prescriptive
rights claim or to timely present it before trial, the court found
they had “waived the right to raise such a claim at this late stage
of these proceedings.” Southfork argues it preserved the claim by
asserting the statute of limitations as an affirmative defense.
We conclude the trial court correctly rejected this untimely
claim. A prescriptive water right requires proof of an actual,
open and notorious use that is hostile and adverse to the owner
under a claim of right, and continuous and uninterrupted for five
years. (Brewer v. Murphy (2008) 161 Cal.App.4th 928, 938.)
Proving these elements presents a question of fact for the trial
court. (Ibid.)
Had the trial court allowed this belated claim, Bunn &
Birrell would have been deprived of the right to discover and
produce evidence refuting these elements. “[A]ny question
concerning prescriptive rights ‘contemplates a factual situation
the consequences of which are open to controversy and were not
put in issue or presented at the trial [so that] the opposing party
should not be required to defend against it on appeal.’
[Citation].” (Dolske v. Gormley (1962) 58 Cal.2d 513, 518-519.)
In addition, Southfork lacks standing to assert prescriptive
water rights on Parcel C’s behalf. As the trial court observed,
Southfork cannot claim a prescriptive right as to its own water
tank or pipes. (§ 805.) Moreover, appellants cite no authority
suggesting that a prescriptive right may be implicated where, as
here, the parties’ relationship is governed by CC&R’s. The case
21
Southfork cites, Faus v. Los Angeles (1967) 67 Cal.2d 350, is
inapposite.
Southfork maintains that section 4.3.4.1 of the CC&R’s
grants Parcel C voting rights in the event of a dispute over the
approval of “an expenditure for maintenance work in excess of”
$4,000. To the contrary, section 4.3 and its subsections confirm
that Parcel C “shall not be entitled to object to proposed
expenditures until such time as it has connected into the Water
Facilities.” There is no indication of any intent to give Parcel C
pre-connection voting rights.
8. Southfork’s Other Objections to the Trial
Court’s Declarations
Southfork contests the trial court’s allocation of
maintenance costs and directives regarding billing and record-
keeping practices. Declarations 5 through 8 require Southfork to
follow the CC&R’s. For example, section 4.5.2 directs Southfork
to bill monthly and “include evidence of payment of the costs,”
which Southfork objects to doing. Notwithstanding its objections,
Southfork must obey the CC&R’s. It cannot unilaterally decide to
forego some of its responsibilities under that document.
Southfork objects to Declaration 24, which requires
appellants to use existing electrical power to make their new
water well operational rather than obtaining additional power.
Appellants chose to build the new well without involving Bunn &
Birrell, even though the CC&R’s require their approval of any
extraordinary expenses. As explained above, Parcel C has no
water or voting rights, and the CC&R’s do not contemplate that
appellants would go forward with the well without the requisite
approvals. Because the electrical power issue should have been
addressed before construction began, the trial court reasonably
22
decided it would be inappropriate to impose additional electrical
power expenses on Bunn & Birrell when only Southfork approved
the project.
Southfork challenges Declarations 2 and 15, which prohibit
Parcel B from imposing water schedules, allocating water among
the parcels or installing a meter to measure Parcel A’s water
flow. Contrary to Southfork’s assertions, the trial court did not
suggest that Southfork is barred from temporarily halting water
flow while performing routine maintenance. The court’s objective
was to prevent an interpretation of the CC&R’s that would
“empower Parcel B to be an administrator, manager, director or
in any other elevated position of authority[,] making Parcel B
superior to any other Parcel.” The court explained that the
CC&R’s limit Parcel B’s duties to “ordinary maintenance and
repair” and that section 4.6 does not allow Parcel B to install a
water meter for Parcel A alone, leaving the other parcels
unmetered.
Southfork claims it should be allowed to remove or destroy
at will all property in Parcel A’s easement areas. Declarations 21
and 22 state that appellants cannot damage or remove Parcel A’s
water or utility lines, fences, trees and such “absent a showing
that those items unreasonably interfere with . . . use of the
easement.” As previously discussed, appellants failed to
introduce credible evidence of any unreasonable interference
within the easements. (See, e.g., Inzana v. Turlock Irrigation
Dist. Bd. of Directors (2019) 35 Cal.App.5th 429, 443-444.) Going
forward, appellants must secure approval from the trial court or
receiver before removing or destroying Bunn & Birrell’s personal
or real property.
23
Southfork argues that Declarations 23 and 27 improperly
require appellants to prove they have permits from “all public
agencies having jurisdiction over the new upstream well site in
the Santa Clara River” and must remove the new facilities if they
cannot be lawfully completed. The trial court found appellants
did not accurately inform the agencies that regulate the river
bottom about the nature and purpose of their construction or
prove that the agencies authorized the new well. It concluded
appellants “have not met their burden of proof with respect to
establishing that they have the right to take the water . . . with
whatever structure [they] put out in the river bottom subsurface,
. . . that’s in compliance with the regulations of . . . whatever
agency controls it.” The court emphasized that no one contests
the parties’ right to take water from the old well, even if it is not
producing robustly.
Appellants had the burden of proving the legality of the
new well they rushed to construct. The trial court reasonably
found appellants are responsible for removing the new well if
governing agencies deny permits for it. Indeed, by claiming the
court failed to identify which agencies must give approval,
Southfork implicitly concedes its failure to obtain the necessary
permits and approvals.
Declaration 28 requires appellants to obtain Bunn &
Birrell’s permission to use their private roadways outside the
easement area to access the water facilities. Substantial
evidence supports the trial court’s finding that Southfork did not
develop a prescriptive right to those roads based on prior use.
The court noted that neither Bunn & Birrell nor their
predecessors interfered with that use because an operational well
is necessary to irrigate their crops. The court observed that Bunn
24
& Birrell will continue to benefit from Southfork’s use of their
roads to service the well, but found the prior “neighborly
accommodation” did not ripen into a prescriptive easement based
on hostile or adverse use.
Finally, many of the challenges to the Declarations are
based on concerns of what could happen if they are not reversed.
Appellants claim the Declarations are unduly burdensome and
could result in several inequities. For example, appellants
express concern about Parcel A’s potential monopolization of the
water supply and the possible decrease in their property values if
this and other events come to pass.
We do not reverse rulings based upon speculation about
what may or may not occur in the future. (See People v. Gray
(2005) 37 Cal.4th 168, 230 [speculation cannot support reversal of
a judgment]; In re Esmeralda S. (2008) 165 Cal.App.4th 84, 96
[same].) If, as appellants claim, a portion of the judgment proves
unduly burdensome or inequitable as time goes on, proof to that
effect can be presented to the trial court. (See Scruby, supra, 37
Cal.App.4th at p. 708.) “‘We must assume reasonable action of
the trial court in the future in determining whether its decree
has in fact been violated’” or has become otherwise impracticable.
(Ibid., citation omitted.)
B. Challenges to Attorney Fees and Costs in
Southfork II and III
The CC&R’s state that “[i]n the event of a suit, at law or
equity, or other action or proceeding, by one or more parcel
owners against other parcel owners, to enforce the terms of these
CC&Rs, the prevailing party shall be entitled to recover all
litigation costs and expenses, including without limitation
25
reasonable attorney fees and expert witness fees from those
owners who do not prevail.”
TNC sought $926,708.30 in attorney fees and costs. After
reducing its law firm’s requested hourly rate, the trial court
awarded $585,865.83. Bunn & Birrell were collectively awarded
$391,418.55 in attorney and expert fees for Southfork II. They
also were awarded $504,206 in the current case (Southfork III.)
Appellants contest both the legality and reasonableness of the
awards.
1. Standard of Review
“‘“On review of an award of attorney fees after trial, the
normal standard of review is abuse of discretion. However, de
novo review of such a trial court order is warranted where the
determination of whether the criteria for an award of attorney
fees and costs in this context have been satisfied amounts to
statutory construction and a question of law.”’ [Citations.] In
other words, ‘it is a discretionary trial court decision on the
propriety or amount of statutory attorney fees to be awarded, but
a determination of the legal basis for an attorney fee award is a
question of law to be reviewed de novo.’ [Citations.] . . . [W]here
the material facts are largely not in dispute, our review is de
novo.” (Mountain Air Enterprises, LLC v. Sundowner Towers,
LLC (2017) 3 Cal.5th 744, 751.)
2. Appellants’ Causes of Action are Based on a Contract
Appellants argue the trial court improperly awarded
attorney's fees because this matter is not an “action on a
contract” within the meaning of section 1717. But the term “on a
contract” does not mean only traditional breach of contract causes
of action. Rather, “‘“California courts ‘liberally construe “on a
contract” to extend to any action “[a]s long as an action ‘involves’
26
a contract and one of the parties would be entitled to recover
attorney fees under the contract if that party prevails in its
lawsuit.”’”’” (In re Tobacco Cases I (2011) 193 Cal.App.4th 1591,
1601; see Mitchell Land & Improvement Co. v. Ristorante
Ferrantelli, Inc. (2007) 158 Cal.App.4th 479, 489.) Specifically,
“[a]n action (or cause of action) is ‘on a contract’ for purposes of
section 1717 if (1) the action (or cause of action) ‘involves’ an
agreement, in the sense that the action (or cause of action) arises
out of, is based upon, or relates to an agreement by seeking to
define or interpret its terms or to determine or enforce a party's
rights or duties under the agreement, and (2) the agreement
contains an attorney fees clause.” (Douglas E. Barnhart, Inc. v.
CMC Fabricators, Inc. (2012) 211 Cal.App.4th 230, 241-242
(Douglas E. Barnhart).)
Appellants correctly assert “section 1717 does not apply to
tort claims; it determines which party, if any, is entitled to
attorneys’ fees on a contract claim only.” (Exxess Electronixx v.
Heger Realty Corp. (1998) 64 Cal.App.4th 698, 708, italics
omitted; Xuereb v. Millichap, Inc. (1992) 3 Cal.App.4th 1338,
1342.) “‘Whether an action is based on contract or tort depends
upon the nature of the right sued upon, not the form of the
pleading or relief demanded. If based on breach of promise it is
contractual; if based on breach of a noncontractual duty it is
tortious. [Citation.] If unclear the action will be considered
based on contract rather than tort. [Citation.] [¶] In the final
analysis we look to the pleading to determine the nature of
plaintiff's claim.’” (Kangarlou v. Progressive Title Co., Inc. (2005)
128 Cal.App.4th 1174, 1178-1179.)
The label a party places on a cause of action is not
dispositive. Instead, courts look to the gravamen of the overall
27
action. (See Hyduke’s Valley Motors v. Lobel Financial Corp.
(2010) 189 Cal.App.4th 430, 436.) “An action is more likely to be
found ‘on a contract’ for purposes of [section] 1717 if the
agreement is broad in scope or if the main thrust of the litigation
is based on the contract.” (Pearl, Cal. Attorney Fee Awards
(Cont.Ed.Bar 3d ed. 2020) § 4.50.)
CC&R’s are considered a contract. (Pinnacle Museum
Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55
Cal.4th 223, 240, 246.) Respondents contend appellants’ causes
of action in Southfork I and II were themselves fundamentally
grounded in the rights and obligations arising out of the CC&Rs
and that their defensive responses flowed from those claims. We
agree.
Assessing the gravamen of the case, we conclude — as did
the trial court — that the actions were on a contract. Although
the causes of action for interference with easement and trespass
typically sound in tort, analyzing those claims requires an
interpretation of the CC&R’s. In other words, respondents’ acts
were fundamentally related to and performed under the auspices
of the rights and obligations delineated by the CC&Rs. (See, e.g.,
Beeman v. Burling (1990) 216 Cal.App.3d 1586, 1608 [holding
that a wrongful eviction action under a housing ordinance was
“on a contract” because it was “fundamentally . . . based upon the
lease, in that respondent sought compensation for appellant’s
wrongful interference with respondent's occupation and
enjoyment of the leased premises”]; Kachlon v. Markowitz (2008)
168 Cal.App.4th 316, 347-348 [equitable action seeking
declaratory and injunctive relief and to quiet title based on
violations of the terms of a promissory note and deed of trust are
actions on a contract]; Texas Commerce Bank v. Garamendi
28
(1994) 28 Cal.App.4th 1234, 1246-1247 [“Actions for a declaration
of rights based upon an agreement are ‘on the contract’ within
the meaning of Civil Code section 1717” where “the issues in the
case had . . . everything to do with the interpretation of the
[relevant contracts]”].)
3. Reasonableness of Attorney Fees and Costs
Appellants raise several claims regarding the
reasonableness of the fees and costs. First, King contends Bunn
& Birrell’s recovery of fees as intervenors in Southfork II should
be reversed because they over-litigated the matter. He asserts a
demurrer or motion for judgment should have been brought
earlier in the case, which would have obviated the need for
further litigation and fees.
Not only did King fail to raise this issue in the trial court,
but he also did not oppose Bunn & Birrell’s motion for fees at all.
Likewise, Southfork did not contest the reasonableness of the
fees. In City of Santa Paula v. Narula (2003) 114 Cal.App.4th
485, we declined to consider whether attorney fees were
unnecessary or excessive because the point was not raised in the
trial court. (Id. at p. 494; accord Planned Protective Services, Inc.
v. Gorton (1988) 200 Cal.App.3d 1, 13, overruled on another
ground by Martin v. Szeto (2004) 32 Cal.4th 445, 451.) We reach
the same conclusion here.
We also are not persuaded by King’s suggestion that taking
earlier action in Southfork II would have resulted in less fees and
costs. As recognized in Premier Medical Management Systems,
Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th
550, “[i]n challenging attorney fees as excessive because too many
hours of work are claimed, it is the burden of the challenging
party to point to the specific items challenged, with a sufficient
29
argument and citations to the evidence. General arguments that
fees claimed are excessive, duplicative, or unrelated do not
suffice. Failure to raise specific challenges in the trial court
forfeits the claim on appeal.” (Id. at p. 564; Lunada Biomedical
v. Nunez (2014) 230 Cal.App.4th 459, 488.) Not only has King
failed to meet this burden, but he also has not adequately
demonstrated that Bunn & Birrell’s attorneys performed
unnecessary work in Southfork II and III.
Third, appellants argue the fees and costs should have been
apportioned in Southfork III because some of the claims were not
based “on a contract.” (§ 1717.) We already have rejected this
argument. Moreover, apportionment between covered and
uncovered claims is within the trial court’s discretion. (Bell v.
Vista Unified School Dist. (2000) 82 Cal.App.4th 672, 687.)
Appellants have not demonstrated an abuse of that discretion
given the significant overlap between the issues raised in the
complaint and cross-complaint. (See Douglas E. Barnhart, supra,
211 Cal.App.4th at p. 250.)
Lastly, appellants contend the attorney fees recovered by
Bunn & Birrell as intervenors in Southfork II and as defendants
and cross-complainants in Southfork III should have been
separately allocated so that none of the fees awarded for
Southfork II would be included in the Southfork III order. The
trial court found Bunn & Birrell had properly identified and
allocated the fees incurred solely in Southfork II and Southfork
III, as well as the fees incurred on issues, facts and law common
to both.
Generally, “‘[a]pportionment is not required when the
claims for relief are so intertwined that it would be impracticable,
if not impossible, to separate the attorneys time into compensable
30
and non-compensable units.’” (Douglas E. Barnhart, supra, 211
Cal.App.4th at p. 250.) In any event, the trial court addressed
appellants’ concerns regarding a possible double recovery. While
it is true that both Southfork II and Southfork III include
duplicative awards of $376,638.10 in attorney fees and
$14,780.45 in expert fees, the court stated it would not allow
double payments. Once an obligation is paid in one case,
respondents do not “get to recover in the second case.” In that
event, appellants would be entitled to a credit or offset under the
satisfaction of judgment rules. (See Code of Civ. Proc.,
§ 724.010.)
In its reply brief, Southfork concedes it is not concerned
about a double recovery of the $376,638.10 in attorney fees
because that amount has been credited toward the Southfork II
and III awards. Its concern involves the $14,780.45 duplicative
award of expert fees in the two cases. Although the trial court
made clear it would not allow a double recovery, we shall modify
the fee orders to confirm that payment of the expert fees will be
credited against the amount due in both orders.7
4. Judicial Estoppel
“‘Judicial estoppel [is a discretionary, equitable doctrine
that] enables a court to protect itself from manipulation. The
interested party is thus the court in which a litigant takes a
position incompatible with one the litigant has previously taken
. . . .’ [Citation.]” (Jackson v. County of Los Angeles (1997) 60
Cal.App.4th 171, 184.) The decision whether to apply the
7In light of this decision, we need not consider appellants’
alternative argument that the duplicative fee awards violate the
one judgment rule.
31
doctrine is reviewed for abuse of discretion. (Kerley v. Weber
(2018) 27 Cal.App.5th 1187, 1195.)
Southfork raised this argument in opposition to Bunn &
Birrell’s motion for attorney fees in Southfork II. It claimed
Bunn & Birrell took opposing positions in two separate
proceedings and should be penalized as a result. But Southfork
did not raise the issue at the hearing on the motion and the trial
court never expressly ruled on it. The court granted all the fees
they sought, implicitly rejecting the judicial estoppel claim.
We are not inclined to second-guess the trial court on
whether it should have applied a discretionary, equitable doctrine
under the facts of this case. The abuse of discretion standard
requires a showing that the court “‘exceed[ed] the bounds of
reason, all of the circumstances before it being considered.’”
(Denham, supra, 2 Cal.3d at p. 566.) Southfork has not met that
burden. It had an opportunity to secure a ruling on its judicial
estoppel argument but failed to do so. On this record, it is
impossible to assess whether an abuse of discretion occurred.
The court may have had a good reason for rejecting the doctrine.
As previously discussed, the trial court recognized the two
judgments include some duplicative fees and costs and imposed
safeguards to prevent a double recovery. It may have been
preferable to clarify the judgments, but appellants have not
demonstrated that these safeguards and the satisfaction of
judgment procedures will not protect them. (See Code of Civ.
Proc., § 724.010.)
5. Award of Expert Fees
The trial court awarded Bunn and Birrell a total of
$14,780.45 in expert fees. Those fees were included in both
Southfork II and III fee orders. As with the attorney fees, the
32
court included safeguards against a double recovery so that the
same amount will not be paid twice.
Appellants argue Bunn & Birrell failed to plead and prove
the expert fees at trial, but such proof is not necessary where, as
here, the agreement specifically entitles the prevailing party to
expert fees. (See Thrifty Payless, Inc. v. Mariners Mile Gateway,
LLC, (2010) 185 Cal.App.4th 1050, 1067 [It is “unnecessary to
specially plead and prove expert witness fees, at least in a case
where expert fees are explicitly included in the contract as
recoverable costs”].) We are not persuaded that our decision in
Jones v. Union Bank of California (2005) 127 Cal.App.4th 542compels a different result.
III. DISPOSITION
The post-trial judgment in favor of Bunn & Birrell in
Southfork III (No. B279391) is affirmed. The orders awarding
attorney fees and costs to respondents in Southfork II and III
(No. B280994) are modified to clarify that the $14,780.45 award
of expert fees may only be collected once. In all other respects,
they are affirmed. Respondents shall recover their costs on
appeal.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P. J. YEGAN, J.
33
Kent M. Kellegrew, Judge
Superior Court County of Ventura
______________________________
Law Offices of Gary Byron Roach, Gary Byron Roach, for
Plaintiff, Appellant and Cross-Appellant Southfork Ranch, LLC.
Miller Starr Regalia, Amy Matthews and Matthew C.
Henderson, for Plaintiff, Appellant and Cross-Appellant R. Eric
King.
Arnold LaRochelle Mathews Vanconas & Zirbel, Dennis
LaRochelle and Susan McCarthy; Karcher Harmes, Kathryn E.
Karcher, for Defendants, Respondents and Cross-Respondents
David Bunn and Ellen Birrell.
Covington & Burling LLP, David B. Goodwin, Martin H.
Myers, Alexa R. Hansen and Benjamin Cain, for Respondent The
Nature Conservancy.
34