Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. C 04-00744
Haerle, J.
I. Introduction
Bruce and Darlene Michaud (the Michauds) appeal from a judgment awarding John and Nicole Prehn (the Prehns) declaratory and injunctive relief with respect to an easement running across the Michauds’ property. After a court trial, the court determined that the Michauds obstructed access to the Prehns’ easement in violation of an express agreement by erecting two gate structures within the easement area.
On appeal, the Michauds contend the trial court erred by (1) granting a pretrial motion for judgment on the pleadings with respect to their cross-claim to quiet title to their interest in the easement area, (2) excluding evidence at trial of their intention to install electric gates, (3) denying their post-trial motion to modify the injunction after they allegedly remedied the obstruction, and (4) failing to reduce an attorney fee award to the Prehns to reflect that many issues were resolved by settlement. We affirm the judgment.
II. Statement of Facts
A. Background
In January 1990, property developer Bradford Financial (Bradford) purchased 436 acres of real property in Clayton with the intention to subdivide, develop and resell the property as single family “ranchette” properties. Both the Michauds and the Prehns purchased subdivided lots from Bradford. The Michauds purchased a 38.9-acre parcel (the Michaud property) in December 1998. The Prehns purchased their 87.2-acre parcel (the Prehn property) in January 2003. A portion of the northern boundary of the Prehn property is contiguous to a portion of the southeastern boundary of the Michaud property. Marsh Creek Road is the closest public road to the Michaud and Prehn properties, although neither property has direct access to that road.
To travel between their properties and Marsh Creek Road, the Michauds and Prehns both utilize an access easement which winds its way across several, separately owned parcels in the development area all of which once belonged to Bradford. The easement runs from Marsh Creek Road across the 10-acre “Smith property,” then across the 38-acre “Habig property,” then across the 38.3-acre “DeYoreo property.” At the border of the DeYoreo property, the easement splits in two. The northern leg of the easement runs from the DeYoreo property to the south border of a 151.3-acre parcel owned by John and Eloise Pound. The eastern leg of the easement runs from the DeYoreo property across a 38.5-acre parcel owned by John Gregory. The eastern leg of the easement continues from the Gregory property across the Michaud property to a large parcel of property located to the east of the Michaud, Gregory and Pound properties which is owned by the Thomas Trust and the Foust Trust. The easement crosses the southeastern corner of the Thomas/Foust property and terminates at the northern border of the Prehn property. The easement serves but does not encumber the Prehn property.
As a condition for obtaining approval of its subdivision plans, and of many of the subsequent property transfers, Bradford agreed to construct a private roadway which would provide access from Marsh Creek Road to each of the lots in the subdivisions.
The easement is partially paved and the paved portion is referred to as Bragdon Way. Bragdon Way extends across the Smith, Habig, DeYoreo and Gregory properties and across approximately 30 feet (commencing from the northern border) of the Michaud property.
The easement was created in late 1992 by a written reciprocal easement agreement between Bradford and property owners within the development area (the Easement Agreement). The Easement Agreement, which was recorded February 4, 1994, provides for an easement right of way that shall be no less than 25 feet wide. The Agreement states that “the location of the easement right of way may be varied from time to time by Bradford.” The Easement Agreement also states that “ ‘no obstruction shall be erected or permitted upon any premises which will in any way interfere with any right granted by this agreement.’ ”
B. The Dispute
In the summer of 1998, after the Michauds entered into a contract to purchase their property but before the transfer was completed, the Michauds erected a locked gate (Gate 1) in the easement area at the northern border of the Michaud property. Their stated reason for installing Gate 1 was to enhance security in response to vandalism and trespassers. Around that time, the Michauds also installed fencing along the perimeter of their property. The gate posts and portions of the connecting fencing on both sides of the posts are permanently secured within the easement area. The Michauds gave the combination to the lock affixed to Gate 1 to Bradford sales agent, Sam Stewart, who was marketing the property that the Prehns eventually purchased.
The “Statement of Facts” in appellants’ opening brief contains numerous statements which are either inconsistent with or cannot be verified by the evidence in the record before us. For example, contrary to appellants’ factual statement, Gate 1 was not initially located in the easement near Marsh Creek Road and then subsequently moved to the border of the Michaud property. Rather, Bruce Michaud testified at trial that, prior to the close of escrow, the Michauds obtained permission from Bradford to install Gate 1 at the border of what became their property and also to replace an already existing gate located in the easement near Marsh Creek Road. The Marsh Creek Road gate, if it still exists, is not relevant to any issue before us.
In April or May of 1999, Bradford agreed to relocate part of the easement to a location on the Michaud property southwest of the easement area described in the original recorded Easement Agreement. The move was necessary because the Michauds had graded and graveled a building pad and driveway for their home in the original easement area. At that time, the Prehn property was still owned by Bradford.
In 2001 or 2002, the Michauds installed a second gate (Gate 2) at the location where the easement crosses the southeast border of the Michaud property. Gate 2 operates manually and is not locked. Both gate posts and portions of the connecting fencing are located within the easement area.
The Prehns became interested in purchasing the lot adjacent to the south of the Michaud property in the summer of 2000 and entered into a purchase agreement with Bradford in October of that year. As a condition of closing escrow, the Prehns “required that Bradford prepare and record an amendment to the Easement Agreement . . . memorializing the consent of all easement owners to a revised description documenting the right-of-way for the relocated access easement” across the Michaud property. It took several months to satisfy this condition. The Easement Amendment was recorded on December 24, 2002. The sale of the Prehn property was completed on December 26, 2002, and the grant deed was recorded on January 9, 2003.
Because the easement provides the only vehicular access from Marsh Creek Road to the Prehn property, the Prehns used the easement both before and after they purchased their property. Each time, the Prehns opened and closed Gate 1 and Gate 2 (after it was installed) as they crossed onto and off of the Michaud property. Although they were never prevented from opening the Michauds’ gates or from using the easement, the Prehns believed that the gate structures obstructed and unreasonably impeded their passage. Therefore, within days after they acquired title to their property, the Prehns requested that the Michauds remove the gates. The Michauds refused.
The dispute persisted for several months. In August 2003, the Michauds hired an attorney who sent a letter to the Prehns’ attorney advising a “restraint and no contact position between our clients while we work to resolve their differences.” On August 27, 2003, the Michauds proposed that the Prehns pay to install automatic openers for the gates. The Prehns responded that the Michauds should move the fencing to run parallel to the easement which would obviate the need for any gate. The Michauds did not respond to this proposal. On April 16, 2004, the Michauds’ attorney sent a letter advising the Prehns, for the first time, that his clients claimed a prescriptive easement to maintain gates across the express easement. Shortly thereafter, the Prehns commenced this action.
C. The Present Action
In their complaint, filed April 27, 2004, the Prehns alleged a cause of action for breach of contract and sought declaratory and injunctive relief. Among other things, the Prehns alleged that the Michauds breached paragraph five of the Easement Agreement which states: “ ‘No obstruction shall be erected or permitted upon any premises which will in any way interfere with any right granted by this agreement.’ ” The Prehns also sought attorney fees pursuant to the terms of the Easement Agreement.
The Prehns also alleged that the Michauds breached the terms of a “Declaration of Restrictions for Subdivision” recorded on July 27, 1998, by erecting a fence and constructing a windmill too close to the easement and without obtaining approval from the Architectural Committee governing the subdivision. However, these claims were resolved by the first day of trial.
On June 21, 2004, the Michauds filed a cross-complaint pursuant to which they sought to “quiet title against cross-defendants’ adverse claims and to affirm cross-complainants’ right to maintain their gates and fencing.” The Michauds conceded in their pleading that “[t]here exists an express easement for ingress and egress across cross-complainants’ property to cross-defendants’ property in which cross-complainants’ property is the servient tenement and cross-defendants’ property is the dominant tenement.” However, the Michauds alleged that they constructed their gates across the easement and fencing along the easement more than five years prior to the commencement of this action and that the gates and fencing are “open, notorious and hostile us[e] of a portion of the easement.” The Michauds sought to quiet title to their right to maintain their gates and fencing as of April 27, 2004.
The cross-complaint also sought damages for negligence based on allegations that the Prehns left the Michauds’ gate open and that four of the Michauds’ pregnant sheep left their pasture and were never seen again. The Michauds dismissed this cause of action on the first day of trial.
In April 2005, the Prehns filed a motion for judgment on the pleadings as to the cross-claim to quiet title. The Prehns alleged that the Michauds failed to state facts sufficient to constitute a cause of action because a property owner cannot create a prescriptive easement over an express easement that burdens his own property. In an untimely opposition, filed May 23, 2005, the Michauds took the position that a prescriptive easement can be established against an express easement. They argued that “[t]here is no analytical or practical reason that the Michauds’ open, notorious and hostile maintenance of a gate across the easement should not constitute a prescriptive right for them to continue to do so. All of the elements are satisfied and the policies behind the prescriptive easement doctrine are all promoted.”
On June 1, 2005, the trial court issued a tentative ruling to grant the motion for judgment on the pleadings. The Michauds did not appear at the hearing or oppose the tentative ruling. On June 29, 2005, the court filed an order granting judgment on the pleadings and giving the Michauds 30 days to amend their quiet title claim. The Michauds did not amend their cause of action. Their motion for reconsideration was heard and denied by the trial court on the first day of trial.
Trial was conducted before the Honorable Diana Becton Smith on July 18, 19, and 20, 2005. On November 17, 2005, the court filed a tentative decision in favor of the Prehns and directed them to submit a proposed statement of decision. After the proposed statement and objections were filed, the court filed an amended statement of decision (the statement of decision) and a judgment on December 28, 2005 (the December 2005 judgment).
In its statement of decision, the court ruled on two motions made prior to or during trial. First, the court denied a motion the Michauds made at the close of trial seeking to amend their cross-complaint to allege a claim for declaratory relief regarding a proposal to install electric gates. The court denied this motion on the grounds that, by the close of trial, the Michauds no longer had a cross-complaint to amend, and that, in any event, the court “declines to adjudicate issues regarding gate structures that have never existed and do not physically exist at the subject properties as of the time of the trial.” The court then granted the Prehns’ in limine motion to exclude evidence regarding contemplated or proposed improvements to structures within the easement area including, in particular, electronically-operated gate structures. The court granted the motion pursuant to Evidence Code section 352 and on the ground that there was “no justiciable controversy to be decided in this action concerning any physical structures, improvements, or conditions that have never existed at the subject properties, and which do not impact the 25-foot-wide access easement which was the subject of this trial.”
The trial court then found that the Michauds’ gate structures are located within the easement area, that they “constitute an obstruction to the access easement in that they delay, impede, and hinder the Prehns’ use and enjoyment of the access easement,” and that they violate the written Easement Agreement. Finding that the Prehns were entitled to both declaratory and injunctive relief, the court ordered the Michauds to remove, at their expense, all portions of their gate structures from the easement area.
On January 5, 2006, the Prehns filed a motion for an order finding them to be the prevailing party pursuant to Civil Code section 1717 and awarding them attorney fees as costs. The Michauds filed an opposition to the motion for attorney fees in which they conceded that the Prehns are the “prevailing party, as of this point in the proceedings,” but nevertheless objected that the Prehns’ request for $147,399.25, in attorney fees was unreasonable and unsupported. The Michauds argued that “[b]efore entering a judgment against [d]efendants in such a significant amount fairness dictates that [p]laintiffs’ counsel be required to furnish [d]efendants’ counsel with the actual billings in complete detail so as to enable an analysis to be performed.”
On February 22, 2006, the Michauds filed a motion to modify the injunction contained in the December 2005 judgment to “allow electric/remote controlled gates to remain upon the easement.” To support their motion, the Michauds offered evidence that they had removed the manual gates across the subject easement and replaced them with gates that operate electrically and open and close automatically by virtue of a sensor system. The Michauds sought an order shortening time for notice of their motion so that it could be heard on February 25 (a Saturday). The application to shorten time was denied.
On February 27, 2006, the Michauds filed a notice of appeal. That notice states that the Michauds “appeal from the judgment in favor of respondent John J. Prehn, et al. entered on December 30, 2005.” That same day, a hearing was held before Judge Becton Smith on the Michauds’ “renewed” application for an order shortening time to hear their motion to modify the injunction. The renewed motion was denied in an order entered March 17, 2006. We cannot determine from the record before us when or whether the motion to modify the injunction was heard or how it was resolved.
On May 17, 2006, the court filed an order determining that the Prehns were the prevailing parties and awarding them attorney fees in the total amount of $158,965.09, which includes the full amount requested in the Prehns’ initial motion ($147,399.25) plus an additional amount for fees incurred during postjudgment proceedings.
III. Discussion
A. Judgment on the Pleadings
The Michauds contend that the part of the judgment dismissing their cross-claim must be reversed because the trial court erroneously concluded that their claim was based on an invalid legal theory and because they did allege sufficient facts to support their quiet title claim.
“ ‘Review of a judgment on the pleadings requires the appellate court to determine, de novo and as a matter of law, whether the complaint states a cause of action. [Citation.] For purposes of this review, we accept as true all material facts alleged in the complaint. . . .’ [Citation.] [¶] Furthermore, ‘[a] motion for judgment on the pleadings is analogous to a general demurrer. . . . We are not concerned with a plaintiff's possible inability to prove the claims made in the complaint, the allegations of which are accepted as true and liberally construed with a view toward attaining substantial justice. [Citations.]’ [Citation.]” (Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, 602.)
In their cross-complaint, the Michauds alleged that (1) the Prehns have an express easement for ingress and egress across the Michaud property; (2) more than five years prior to the filing of the cross-claim, the Michauds constructed gates across the easement and fencing along the easement; (3) “[t]he gates and fencing are open, notorious and hostile us[e] of a portion of the easement”; (4) the Prehns object to the gates and fencing; (5) the Michauds maintain that the gates and fencing do not violate the Prehns’ rights; and (6) the Michauds have acquired the prescriptive right to keep their gates and fencing.
In the trial court the Michauds argued these pleaded facts adequately stated a cause of action to quiet title. Their theory, which was not supported by reference to any legal authority, was that they acquired a prescriptive easement across the Prehns’ express easement. The order granting judgment on the pleadings does not expressly address this theory but simply states that the Michauds failed to state a cause of action. However, on the first day of trial, the court did make the following observation about the Michauds’ cross-claim: “the law does not permit a fee owner to quiet title in an easement right by prescription to maintain fencing or gates over an operative easement that runs across the fee owner’s property.” On appeal, the Michauds argue that this statement by the trial court demonstrates that the court committed legal error by dismissing their cross-claim because it erroneously believed their claim was based on an invalid theory.
“An easement is an incorporeal interest in the land of another which gives its owner the right to use another’s property. [Citation.] The land to which the easement attaches is called the dominant tenement; the land on which the burden is imposed is called the servient tenement. [Citations.]” (Tract Development Services, Inc. v. Kepler (1988) 199 Cal.App.3d 1374, 1384.) The Michauds cite no authority, nor have we found any, to support their novel proposition that a party can acquire an easement right from another easement holder rather than from the owner of the property itself. Furthermore, it is well settled that the owner of the servient tenement cannot hold an easement over his own land. (Civ. Code, § 805.) Therefore, the trial court’s observation that the Michauds could not have acquired an easement over an operative easement across their own property was not erroneous.
The Michauds now contend, for the first time on appeal, that the plaintiffs and the trial court simply misunderstood their legal theory. They argue that the trial court failed to recognize that their quiet title claim was based on the sound legal theory that the Prehns’ express easement was partially extinguished by adverse possession.
“[A]n easement, regardless of whether it was created by grant or use, may be extinguished by the owner of the servient tenement upon which the easement is a burden, by adverse possession thereof by the servient tenement owner for the required statutory period. Perhaps more accurately stated an easement may be extinguished by the user of the servient tenement in a manner adverse to the exercise of the easement, for the period required to give title to land by adverse possession.” (Glatts v. Henson (1948) 31 Cal.2d 368, 370-371 (Glatts).)
In Glatts, the plaintiffs erected buildings on a 17 1/2-foot strip of a 30-foot wide easement for road purposes across their property. Undisputed evidence established that the plaintiffs had not obtained permission from the easement claimants to construct the buildings, that the plaintiffs maintained those buildings for more than five years prior to the commencement of their quiet title action and that the defendants had not used the strip of land in question at all during that period. Under those circumstances, the Glatts court found that a portion of the easement had been extinguished by adverse possession. (Glatts, supra, 31 Cal.2d at pp. 370-371.)
In the present case, the Michauds did not allege in the cross-complaint that all or any part of the easement across their property was extinguished by adverse possession. Indeed, as the Prehns’ pointed out in their motion for judgment on the pleadings, the Michauds claimed a prescriptive right to keep the gates notwithstanding the continuing existence of the express easement. The Michauds did not cite Glatts or any other case involving extinguishment of an easement in their opposition to the motion for judgment on the pleadings. Nor did they even allude to this legal principle at any point during proceedings in the lower court. Thus, we are not persuaded that the Michauds ever intended to rely on this theory. In any event, the crucial inquiry for purposes of our review is whether the facts alleged in the cross-complaint are insufficient to support a claim that the Prehns’ easement was partially extinguished by adverse possession.
“An easement obtained by grant may be extinguished by adverse possession by the owner of the servient tenement. [Citation.] ‘The elements necessary to establish title by adverse possession are tax payment and open and notorious use or possession that is continuous and uninterrupted, hostile to the true owner and under a claim of title,’ for five years. [Citation.] The five-year prescriptive period begins to run when a cause of action accrues, that is, when the owner is deprived of possession. [Citation.]” (Sevier v. Locher (1990) 222 Cal.App.3d 1082, 1084-1085.)
In the present case, the Michauds alleged that they erected gates across the easement and maintained those gates for more than five years. Even if we accept these allegations as true, they are insufficient to show hostile use of the easement absent an allegation that the persons entitled to the easement were thereby deprived of access to it. (See Gerhard v. Stephens (1968) 68 Cal.2d 864, 903; Tract Development Services, Inc. v. Kepler, supra, 199 Cal.App.3d at p. 1387; Zimmer v. Dykstra (1974) 39 Cal.App.3d 422, 436-437.) Here, the Michauds did not allege that the gates prevented use of the easement across their property. Indeed, the Michauds expressly alleged that their use of the property did not violate the rights of the Prehns.
The stipulated facts preclude a finding that Gate 2 was installed more than five years prior to the commencement of this action.
The cross-complaint does contain an allegation that “[t]he gates and fencing are open, notorious and hostile us[e] of a portion of the easement.” However, this statement is nothing but a legal conclusion and it is not accompanied by sufficient allegations of material fact to support a finding that the Michauds adversely possessed a portion of the easement area itself.
The Michauds contend they were not required to plead or prove that they prevented the Prehns from using the easement at all. The Glatts court recognized that, “[t]he extinguishment by adverse possession need not be of the entire easement. It may be extinguished in part—to the extent that is embraced in the scope of the adverse possession.” (Glatts, supra, 31 Cal.2d at p. 371.) However, the Michauds misconstrue this observation if they think it relieves them of the obligation to show that the Prehns were actually prevented from using the specific part of the easement which allegedly was extinguished.
In Glatts, the plaintiffs’ nonpermissive construction and maintenance of buildings in a strip of the easement for more that five years which prevented the use of that portion of the easement by the defendants operated to extinguish that part of the easement. (Glatts, supra, 31 Cal.2d at pp. 370-371.) Therefore, Glatts confirms that the Michauds would have to show that their use of the part of the easement encumbered by the gate structures prevented the Prehns from using that part of the easement. The Michauds did not and, indeed, could not have alleged facts to satisfy this requirement.
It appears to us from the record presented here that the dispute between these parties has always been one of contractual interpretation, i.e., a disagreement regarding the scope of the easement interest conveyed by the Easement Agreement. This dispute simply did not give rise to a cause of action for partial extinguishment of the express easement itself.
To summarize, regardless of the propriety of the “prescriptive right” theory articulated by the Michauds in the trial court, the cross-complaint did not allege facts sufficient to support a claim that the Prehns’ easement was partially extinguished. Therefore, the trial court did not err by granting the motion for judgment on the pleadings.
B. Evidence of Intent to Install Electric Gates
The Michauds next contend the trial court committed reversible error by excluding evidence regarding their claimed intention to replace Gates 1 and 2 with electric gates. Attempting to avoid the abuse of discretion standard governing review of evidentiary rulings, the Michauds characterize the trial court ruling as a determination of “justiciability” which is subject to de novo review. According to the Michauds, the “trial court concluded it had no power to hear [a]ppellants’ electric gates evidence.” Appellants seriously mischaracterize the trial court’s ruling.
The statement of decision sets forth the following ruling with respect to the motion to exclude evidence regarding the possibility of installing electric gates: “Before the commencement of the trial on July 18, 2005, the Prehns filed a written Motion in Limine No. 1, seeking to exclude the introduction of evidence at trial regarding structures and improvements that were never erected and did not physically exist as of the trial, in particular, electronically-operated gate structures. During trial, the [c]ourt permitted some testimony concerning such structures to be given, subject and without prejudice to, its ruling on this motion. The [c]ourt grants that motion pursuant to Section 352 of the Evidence Code, and on grounds that there is no justiciable controversy to be decided in this action concerning any physical structures, improvements or conditions that have never existed at the subject properties, and which do not impact the 25-foot-wide access easement which was the subject of this trial.”
Nothing in this statement (or anywhere else in the record for that matter) supports the Michauds’ contention that the trial court erroneously believed it had to exclude evidence regarding the possibility of installing electric gates. Rather, the court exercised its discretion to exclude the evidence under Evidence Code section 352. By pointing out that there was no existing justiciable controversy with respect to contemplated modifications to the gate structures that were never made, the court simply underscored that the evidence in question was not relevant.
The Michauds also argue that the trial court abused its discretion by excluding evidence regarding electric gates. “Evidence Code section 352 gives the trial court discretion to ‘exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.’ ” (Burns v. 20th Century Ins. Co. (1992) 9 Cal.App.4th 1666, 1673-1674.)
The Michauds contend that evidence that these parties had previously discussed the possibility of installing electric gates was probative of the Michauds’ “intent to implement remedial measures.” However, since it was undisputed at trial that the Michauds did not actually implement that change, the trial court reasonably concluded that testimony regarding a course of action that was not taken would have been unduly time-consuming, confusing, and possibly even prejudicial to the Prehns who, after all, were forced to pursue litigation after the Michauds refused to remove the manually operated gates.
The Michauds contend that the electric gate evidence was “relevant, probative, crucial to [their] ability to defend their case.” But they do not articulate how such evidence was relevant to the question of whether the gates that actually existed violated the Easement Agreement. Their primary claim, that this evidence was relevant to the determination whether the gates constituted an unreasonable interference with the easement is fundamentally illogical. Whether electric gates would have violated the Easement Agreement was simply not a relevant inquiry in a case in which electric gates were not present.
The Michauds place tremendous reliance on McCoy v. Matich (1954) 128 Cal.App.2d 50, (McCoy), although this case does not strengthen their position in any way. The McCoy plaintiff sought to quiet title to an express easement across the defendant’s property and also sought a preliminary injunction enjoining the defendant from erecting a gate across the easement. The McCoy court affirmed the trial court’s order denying the preliminary injunction without ruling on the yet-to-be-resolved issue as to whether the defendant had a right to erect gates across the easement.
The McCoy court observed that “[i]t is not necessary on the question of issuing an injunction pendente lite to determine the ultimate rights of the parties as to gates unless it clearly appears that under no circumstances would defendant be entitled to maintain gates.” (McCoy, supra, 128 Cal.App.2d at p. 53.) The court then acknowledged the general rule that “in the absence of any express language in the grant bearing upon the question of the right to maintain gates, ‘the courts ordinarily treat it as a question of fact whether gates . . . will unreasonably interfere with the exercise of the easement . . .’ [Citation.]” (Ibid., italics omitted.) Finding that the propriety of the proposed gates was a question of fact, the McCoy court decided not to resolve that ultimate issue. Instead, the court affirmed the order denying the preliminary injunction on the ground that the trial court did not abuse its discretion by holding that the “plaintiff would not be greatly injured by the limited use of gates pendente lite . . . .” (Id. at p. 54.)
Several circumstances, none of which are present in the case before us, supported the McCoy trial court’s discretionary determination to deny the preliminary injunction on the ground that the plaintiff failed to show sufficient potential injury during the pendency of the action. (McCoy, supra, 128 Cal.App.2d at pp. 53-54.)
The Michauds contend that “McCoy demonstrates that the nature of gates and their function, including gates that are merely proposed, is justiciable.” As noted above, the trial court did not find that any claim between these parties was not justiciable; rather, it found that evidence of electric gates that were never installed was not relevant to the actual claims that were tried before the court in this case. McCoy, which involved a fundamentally different legal claim and very different facts from those before us, gives no reason to question the trial court’s discretionary evidentiary ruling in this case.
The Michauds contend that “McCoy demonstrates that evidence of remedial measures is not only relevant, but extremely probative in resolving controversies over easements for ingress/egress.” This contention is truly perplexing. We find no reference to or discussion of remedial measures in McCoy. Indeed, no gate had even been erected when the motion for a preliminary injunction was denied in that case. Furthermore, it is simply inaccurate to characterize the excluded evidence in this case as evidence of remedial measures. Evidence that the Michauds may have contemplated undertaking or allowing someone else to undertake a modification of an existing allegedly illegal condition is not evidence of a remedial measure. In any event, the Michauds have failed to show that the trial court abused its discretion by excluding this evidence.
C. Denial of Motion to Modify Injunction
As noted in our factual summary, after the December 2005 judgment was entered, the Michauds filed a motion to modify the injunction to allow them to maintain electric gates across the easement. The Michauds now contend that the trial court committed legal error by refusing to hear their motion to modify the injunction. We reject this argument for two independent reasons.
First, there is no evidence before us that the trial court refused to hear this motion. The Appellants’ Appendix contains evidence that the Michauds filed a motion to modify the injunction on February 22, 2006, and that two applications by them to have the motion heard on shortened time were denied. However, the record is silent as to whether the motion was ever properly noticed and presented to the trial court.
Second, assuming the court did deny the motion to modify the injunction, that order is not subject to review pursuant to this appeal. Because the motion itself was filed after the December 2005 judgment was entered, and indeed sought to modify that judgment, any order denying that motion was, by definition, a postjudgment order. “A postjudgment order denying a motion to modify or dissolve a permanent injunction is an appealable order”. (Crespin v. Shewry (2004) 125 Cal.App.4th 259, 264, fn. 3 (and authority cited therein).) The Michauds have not appealed from any postjudgment order relating to their motion to modify the injunction.
D. Attorney Fees
The Michauds’ final argument is that the trial court erred by refusing to reduce the amount of attorney fees awarded to the Prehns pursuant to Civil Code section 1717 (section 1717) and to the terms of the Easement Agreement. The Prehns respond that the attorney fee order is not subject to review in this appeal and that, in any event, the award was proper.
Section 1717, subdivision (a) states, in pertinent part: “In any action on a contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney’s fees in addition to other costs.”
“ ‘An appellate court has no jurisdiction to review an award of attorney fees made after entry of the judgment, unless the order is separately appealed.’ [Citation.] “[W]here several judgments and/or orders occurring close in time are separately appealable (e.g., judgment and order awarding attorney fees), each appealable judgment and order must be expressly specified—in either a single notice of appeal or multiple notices of appeal—in order to be reviewable on appeal.’ [Citation]” (Colony Hill v. Ghamaty (2006) 142 Cal.App.4th 1408, 1413 (Colony Hill) quoting DeZerega v. Meggs (2000) 83 Cal.App.4th 28, 43 (DeZerega).)
If, however, the judgment that was appealed expressly awarded attorney fees but left the amount blank, to be determined later, the judgment may be construed to have subsumed the subsequent order fixing the amount of fees, so that an appeal from the original judgment confers appellate jurisdiction over the later order. (Grant v. List & Lathrop (1992) 2 Cal.App.4th 993, 998 (Grant).) In considering whether an order awarding attorney fees is embraced by a prior judgment, “ ‘[t]he issue . . . is not whether fees were ultimately recovered “as costs” but whether the entitlement to fees was adjudicated by the original judgment, leaving only the issue of amount for further adjudication.’ ” (Colony Hill, supra, 142 Cal.App.4th at p. 1414, quoting DeZerega, supra, 83 Cal.App.4th at p. 44, italics omitted.)
In the present case, the Michauds filed only one notice of appeal, on February 27 2006, pursuant to which they appealed only the December 2005 judgment. The notice of appeal makes no reference to the 2006 attorney fee order. However, relying on Grant, supra, 2 Cal.App.4th 993, the Michauds contend that the attorney fee order was embraced by the December 2005 judgment.
The December 2005 judgment states: “Plaintiffs Prehn shall be and are entitled to recover their costs and disbursements herein pursuant to memorandum of costs filed with the [c]ourt, in the amount of $__________, to be inserted herein following the filing of a memorandum of costs and any motion for recovery of attorney’s fees, and any Order(s) of the [c]ourt thereon.” On the line left blank for the amount of costs, someone wrote “Per Cost Bill.”
The Michauds contend that the blank space in the judgment for insertion of a dollar amount along with the reference to attorney fees confirms that the judgment included an award of attorneys fees as costs. However, we find that this language simply acknowledged that the cost award may include attorney fees which is not the same as a finding of entitlement to fees. The December 2005 judgment did not expressly or implicitly establish that the Prehns were the prevailing party entitled to attorney fees pursuant to section 1717, but instead left that issue to be resolved in a later proceeding.
The evidence in the record before us reinforces our interpretation of this language in the December 2005 judgment. On the first day of trial, the parties agreed in open court that issues regarding attorney fees pursuant to section 1717 and costs would be resolved after trial. Consistent with this express stipulation, the statement of decision makes no reference to attorney fees, to section 1717, or to any prevailing party within the meaning of that statute. Nor, as discussed above, does the judgment itself address these issues. By contrast, the postjudgment 2006 attorney fee order declares the Prehns to be the prevailing party pursuant to section 1717 and awards them attorney fees in the amount of $156,965.09.
To summarize, the judgment did not declare the Prehns to be the prevailing party in this case or in any other way establish they were entitled to recover attorney fees. Both entitlement to and the calculation of attorney fees were resolved during postjudgment proceedings. The Michauds did not appeal the postjudgment attorney fee order. Therefore, that order is not subject to review at this time.
IV. Disposition
The judgment is affirmed.
We concur: Kline, P. J., Lambden, J.