Opinion
NOT TO BE PUBLISHED
Marin County Super. Ct. No. CV053110
Reardon, J.
In a property dispute between neighboring landowners who were also parties to a failed construction contract, a jury found against appellant Sandra Terzian-Feliz and for respondents Vartan and Margarita Ajamian on all causes of action. Terzian-Feliz appeals the judgment ordering her to pay $13,000 in net damages to the Alabamian. She challenges (1) the trial court’s nonsuit on her breach of contract cause of action; (2) the sufficiency of evidence supporting the jury’s award of damages on the Ajamians’ breach of contract claim; (3) the jury finding that she had not established a prescriptive easement to use the Ajamians’ driveway; (4) the trial court’s nonsuit on her cause of action for an implied easement over the same driveway; and (5) the jury’s determinations of express and prescriptive easements in favor of the Ajamians over her property. We affirm the judgment.
I. FACTS
A. Property History
In 1954, Adalbert and Marie Louise von Rotz subdivided a single Fairfax parcel into two lots—40 Steven Court (No. 40) and 60 Steven Court (No. 60). The lots were located on steep terrain in a remote area. In 1956, they sold No. 60 to Gustav and Helen Scheuermann, reserving to themselves and their successors a triangular piece of land—called “Parcel 5” on some maps—as an easement for “driveway purposes” benefitting No. 40. This triangular part of No. 60 is adjacent to Steven Court, where that street meets the overlapping entrance to the driveways to No. 40 and No. 60.
No evidence of the 1954 subdivision map was admitted into evidence at trial.
In her briefs, Terzian-Feliz asserts that the No. 40 driveway was intended to be a common one serving both lots, noting that the Ajamians’ driveway straddles the lot lines and thus sits on both lots. Based in part on this description, she maintains that the owners of both lots have always had a mutual, reciprocal easement over each other’s property. At trial and again on appeal, Terzian-Feliz admits that more of the driveway is on No. 40 than on No. 60—at most, only 1.5 feet of a 12-foot-wide driveway sits on her property. The Ajamians complain that her assertion that she is part-owner of a common driveway could be misleading. Having reviewed the record in this matter, we agree. The record on appeal supports the conclusion that the von Rotzes created a common entrance to the driveways serving both No. 40 and No. 60 when they established the express easement known as Parcel 5. Accordingly, we reject Terzian-Feliz’s more expansive description of the No. 40 driveway.
In 1957, the von Rotzes sold No. 40 to James and Josephine Biagini. The No. 40 deed gave the Biaginis an express easement to use the reserved portion of No. 60 for driveway purposes. In 1961, the Biaginis sold No. 40 to Stanley and Lois Purdom, who conveyed the property to Robert and JoAnne Mager the following year. Both the 1961 and 1962 deeds repeated the express driveway easement that had been set out in the 1957 Biagini deed. During their ownership of No. 40, the Magers paved their driveway along the line of a rock wall that was regarded as the boundary line between No. 40 and No. 60. Later surveys showed that the rock wall actually sat on the No. 60 lot, as did a long narrow strip of the No. 40 paved driveway.
By 1972, Gustav Scheuermann had died and Helen Scheuermann sold the property at No. 60. It changed hands several times until 1976, when appellant Sandra Terzian-Feliz and Rodney Johnson acquired it as joint tenants. In 1978, Johnson moved out and by 1982, Terzian-Feliz had acquired his part of No. 60 from him.
By 2001, both Robert and JoAnne Mager had died. In an estate sale that year, Robert Mager, Jr. sold No. 40 “as is” to respondents Vartan and Margarita Ajamian. As before, the deed to the Ajamians set out the right to an express easement over Parcel 5 for driveway purposes.
Vartan Ajamian was a licensed contractor and the principal of a construction company, respondent Ajamian Enterprises, Inc. (AEI). By the time they purchased No. 40 in 2001, Vartan and Margarita Ajamian had been married for more than 20 years. They remodeled the house and by 2005, they sought to sell the property.
B. Construction Contract
Until June 2005, the Ajamians and Terzian-Feliz enjoyed a mutually friendly and neighborly relationship. When Terzian-Feliz wanted to remodel part of her home, she asked Vartan Ajamian for advice about her plans. He suggested ways in which she could lower her overall costs. She decided to engage AEI in part, because she trusted her friends, the Ajamians.
By April 2005, AEI had arranged to have drawings for the remodel done, a structural engineer had installed some reinforcement and Terzian-Feliz had selected new appliances for her kitchen. She had paid for plans, drawings and permit fees, and the city had approved the plans. In May, demolition on the project began and Terzian-Feliz paid AEI an initial payment of $35,000. The parties had not yet signed a contract, but had discussed a contract price of at least $150,000.
On June 3, 2005, Terzian-Feliz entered into a formal construction agreement with AEI to remodel the dining room, kitchen and exterior decks of her home. She agreed to pay AEI $179,000 for this work under the terms of the contract. At this point, the kitchen design was yet to be completed.
When the work started, the AEI workers used a bathroom at Terzian-Feliz’s house as needed. After a few days, she grew concerned that the workers were damaging her carpets. At her request, Ajamian arranged for a portable toilet for their use. The toilet was placed in a location that required a truck to use Terzian-Feliz’s concrete aggregate driveway to access it for regular cleanout. She objected to this placement, fearing that the cleanout truck would damage her driveway.
On June 13, 2005, she verbally terminated the construction agreement and on June 19, 2005, Terzian-Feliz notified the Ajamians in writing that she was terminating that agreement. She had the portable toilet moved onto the Ajamians’ property, with its doorway facing vegetation in a manner that effectively prevented its use. The toilet was removed after the Ajamians called the sheriff.
At trial, Terzian-Feliz herself characterized this letter as a settlement proposal.
On July 1, 2005, the Ajamians wrote a letter to Terzian-Feliz, withdrawing their earlier permission to allow her to take delivery of an appliance over their driveway and through the fence at the property line. In this letter, they disputed her repeated claims that their driveway constituted an easement over her property, asserting instead that the entire driveway was on their property. They also claimed a right to repave the driveway. On July 7, Terzian-Feliz objected to the Ajamians’ repaving plans, again claiming that the driveway was an easement on her property.
On June 22, 2005, Terzian-Feliz paid approximately $10,000 to a subcontractor who had done work on the project before the AEI contract was terminated but who presented a bill for those services after termination of the contract.
C. Complaint and Cross-complaint
On July 11, 2005, Terzian-Feliz filed a complaint against the Ajamians, AEI and IndyMac Bank, F.S.B. (IndyMac). In it, she alleged causes of action against the Ajamians for breach of contract, fraud/violation of statute, misappropriation of funds/willful breach of fiduciary duty, and elder financial abuse. She sought to quiet title to a prescriptive easement entitling her to use the No. 40 driveway in a cause of action alleged against the Ajamians and IndyMac. Terzian-Feliz sought damages, declaratory and injunctive relief, and an order quieting title to a prescriptive easement. Terzian-Feliz also filed a lis pendents against the Ajamians’ property.
For convenience, this opinion sometimes refers to Vartan Ajamian, Margarita Ajamian, AEI and lender IndyMac Bank, F.S.B. collectively as the Ajamians.
IndyMac claimed an interest in the Ajamians’ real property against which she claimed a prescriptive easement. No specific issues arose at trial or on appeal about IndyMac.
At the time that she filed her complaint in July 2005, Terzian-Feliz was 69 years of age.
In August 2005, the Ajamians answered the complaint. That same month, the Ajamians also filed a cross-complaint against Terzian-Feliz, alleging causes of action for breach of contract and quantum meruit. They sought compensatory damages, attorney fees and costs. Terzian-Feliz demurred to and moved to strike this cross-complaint.
In December 2005, the Ajamians filed a verified first amended cross-complaint, adding causes of action for intentional and negligent misrepresentation, rescission, promissory estoppel, declaratory relief about the scope of an express easement, and slander of title. They sought to quiet title to a prescriptive easement, to rescind the construction contract, and to obtain declaratory and injunctive relief. In addition to their earlier request for damages, they sought special and punitive damages, as well as damages for mental and emotional distress. This filing rendered moot Terzian-Feliz’s demurrer and motion to strike.
The property dispute aspect of the lawsuit concerns parts of a 12-foot-wide asphalt driveway that sits primarily on No. 40 but also laps over the property line onto No. 60. One disputed piece of Terzian-Feliz’s property is Parcel 5, the express easement that the owners of No. 40 were entitled to use for “driveway purposes.” As Parcel 5 formed part of the driveways to both No. 40 and No. 60, the Ajamians and Terzian-Feliz each sought the right to maintain the appearance of Parcel 5 consistent with their driveways.
On appeal, the parties disagree about how many parts of the No. 60 property are at issue. The Ajamians describe their driveway as overlapping Terzian-Feliz’s property in two places—the express easement known as Parcel 5 and a prescriptive easement over the narrow strip—at its widest point, 1.5 feet of a 12-foot-wide driveway—tapering down to nothing along the part of the length of the driveway. In her statement of facts, Terzian-Feliz acknowledges that the Ajamians correctly identified the two driveway portions that are at issue—describing them in almost the same way as the Ajamians did. This is also consistent with her own testimony at trial. Later in her opening brief, however, Terzian-Feliz describes the disputed property as falling into three parts—Parcel 5; the land between Parcel 5 and her own No. 60 driveway; and a long strip that runs down the No. 40 driveway, tapering off near the Ajamians’ house. This is consistent with the manner in which the jury described the disputed property in its general verdicts on the Ajamians’ express and prescriptive easements. (See pt. VI., post.) It appears that two of the three disputed parts of the property run end to end, creating one long, narrow strip—the widest part nearest to Steven Court lying between Parcel 5 and Terzian-Feliz’s concrete aggregate driveway, and a narrower part running along the Ajamians’ asphalt driveway continuing along the same line beyond Parcel 5. For convenience, we refer to the disputed parts of property as Parcel 5 (or the express easement) and the continuous strip of land over which the Ajamians established their prescriptive easements.
The other part of Terzian-Feliz’s property that is at issue is a narrow strip running along the far edge of the Ajamians’ driveway, running between the hypotenuse of the Parcel 5 triangle and the actual boundary line between No. 40 and No. 60. This strip measures approximately 18 inches at its widest point adjacent to the street and tapers away about midway down the Ajamians’ asphalt driveway where it meets a rock wall. The parties disagreed about both where the boundary line between the Terzian-Feliz and the Ajamian properties lay, and whether each side had a right to use and maintain that part of the driveway.
D. Pretrial Matters
The parties continued to dispute the right to use the disputed property after the lawsuit began—removing survey markers, repaving the driveway, painting over part of it in white paint, erecting and removing fences and plantings, and accusing each other of trespass. There was evidence from which a jury could conclude that the parties harassed each other during the pendency of the action.
The jury was instructed that much of this conduct was irrelevant to the legal issues involved in the case.
Terzian-Feliz moved for a preliminary injunction. In December 2005, the trial court granted the motion. During the pendency of the action, the Ajamians were enjoined from interfering with Terzian-Feliz’s use and enjoyment of the alleged prescriptive easement. In January 2006, she posted a $75,000 bond in order to obtain the injunction.
Terzian-Feliz demurred to the Ajamians’ first amended cross-complaint. The demurrer to the intentional misrepresentation and rescission causes of action was sustained with leave to amend. Her demurrer to the negligent misrepresentation, promissory estoppel and slander of title causes of action was sustained without leave to amend. At the Ajamians’ request, these five causes of action were dismissed without prejudice. Terzian-Feliz filed an answer to the remaining causes of action in the first amended cross-complaint. She also moved for summary judgment on her prescriptive easement quiet title cause of action, but the motion was denied.
On June 13, 2006, the trial court increased the bond that Terzian-Feliz was required to file in order to continue her preliminary injunction from $75,000 to $150,000. She was given 10 business days to file a supplemental bond in order to continue the injunction in effect. Two weeks later, the preliminary injunction was dissolved after Terzian-Feliz failed to post the supplemental bond.
The Ajamians moved for summary adjudication on Terzian-Feliz’s prescriptive easement quiet title cause of action. They were also permitted to amend their answer to Terzian-Feliz’s complaint to add a bona fide purchaser affirmative defense. Terzian-Feliz demurred to the first amended answer. She filed a first amended complaint in August 2006, adding a cause of action for an implied easement against the Ajamians and IndyMac to her earlier claims. The Ajamians amended their pending motion for summary adjudication to challenge the prescriptive easement and implied easement causes of action alleged in Terzian-Feliz’s first amended complaint. Ultimately, the motion for summary adjudication was denied.
The Ajamians moved to expunge the lis pendens that had been filed against their property. In September 2006, the trial court granted the motion to expunge, concluding that Terzian-Feliz had not established that it was likely that she would prevail on her real estate claim. Terzian-Feliz moved to reinstate the lis pendens order and sought a protective order against alleged elder abuse. The trial court denied the motions in November 2006.
In October or November 2006, the Ajamians repaved their driveway, including Parcel 5. The repaved asphalt followed the historic path and dimensions of the previous driveway.
The Ajamians sought a temporary restraining order compelling Terzian-Feliz to stop harassing them. In March 2007, the trial court granted the motion, precluding Terzian-Feliz from digging up asphalt until trial was completed and ordering both parties to maintain the status quo. No party was to change Parcel 5. It denied the Ajamians’ request for an order precluding Terzian-Feliz from interfering with the sale of their home, finding that no interference with brokers or agents had occurred.
E. Trial
By the time this matter went to trial before a jury in July 2007, Terzian-Feliz was 71 years old. From 1967 to 1991, she had practiced law. In 1990, she suffered debilitating injuries in a truck accident.
During trial, the jury heard Terzian-Feliz’s deposition testimony about her view of her role as a litigator—to make complicated cases simpler, and to “take things that are simple and complicate them.” She has been an inactive member of the State Bar of California since 1991.
She testified that she used the driveway at No. 40 to have large objects delivered to her home—that there was no other reasonable way to do so, given the topography of the land and the narrow access on her site. She used this driveway when it was owned by the Magers and later, when the Ajamians lived at No. 40. She used it to move in large items to and from the downstairs part of her house and various workers used it to maintain her property. Over the years, Terzian-Feliz used the No. 40 driveway to load and unload items to the downstairs of her house and the lower part of her lot. She also had her own, separate concrete aggregate driveway that she used to access the upper part of No. 60.
Terzian-Feliz told the jury that when she moved in, the Magers invited her to use the driveway to move things into her new home. They told her that everyone who had lived at No. 60 moved things downstairs using the No. 40 driveway. Robert Mager told her that much of the No. 40 driveway was actually on her property. He said that they both had a right to use the driveway—the Magers had an easement and Terzian-Feliz owned most of the underlying property. This report seemed correct to Terzian-Feliz, whose title report made mention of an easement.
Terzian-Feliz testified that when she first met the Ajamians in 2001, she told them that their driveway was on her property and that they had an easement to use it. Still, she wanted to be sure that it would not be inconvenient for the Ajamians for her to use the driveway when she wanted to do so. Margarita Ajamian told her that it would not be a problem for her to use the No. 40 driveway. Terzian-Feliz testified that she did not ask permission to use the driveway, but admitted that she did check with her No. 40 neighbors to be sure that her use would be convenient. Until the contract dispute with the Ajamians arose in June 2005, no one told Terzian-Feliz that she needed anyone’s consent to use the driveway.
Terzian-Feliz believed this to be true in 2001, but by the time of trial, she acknowledged that a survey had been taken in October 2005 showing that she was at least partly mistaken.
She put on evidence that prior owners of her lot used the driveway of No. 40 to reach the lower part of No. 60, particularly for large items. She also offered evidence that none of the prior owners asked permission to use the driveway.
Terzian-Feliz also testified about the remodeling contract with AEI. She told the jury that she had planned to live in another part of her house while the work was to be done. She denied ever telling the Ajamians that she intended to leave her home during the remodel. She had wanted the portable toilet placed on Steven Court. She told the jury that the Ajamians did not want to place it on Steven Court because they were trying to sell their house and they feared that it would be an eyesore discouraging potential purchasers. She was upset that Vartan Ajamian seemed more concerned about his needs than hers. She did not want to terminate the contract with AEI—her house was torn apart and she feared that she would have difficulty finding another contractor to finish the work on short notice.
According to Terzian-Feliz, on June 12, 2005, Vartan Ajamian agreed that he would place the toilet where Terzian-Feliz asked. By the following morning, he had changed his mind—now, he would put the toilet contract in her name, allowing her to place the portable wherever she wanted. Giving her a written change order, he also told her that all future communications about the job would have to be in writing. Terzian-Feliz told Vartan Ajamian that this plan to communicate only in writing was unacceptable to her. He left. Later that day, Terzian-Feliz and Margarita Ajamian exchanged angry words about the project. At this point, Terzian-Feliz announced her intention to cancel the contract.
By the end of June 2005, Terzian-Feliz had engaged a new contractor. Her new contractor estimated that it would cost her $275,000 to finish what AEI had begun. He opined that AEI could not have completed the work without taking a loss on the project. In his opinion, AEI had completed only about 5 percent of the work it owed Terzian-Feliz under its contract with her.
A portable toilet was placed on Parcel 5 where the driveways to No. 40 and No. 60 merge, adjacent to the Ajamians’ property, apparently for the new contractor’s use. At the time of trial—a year after the new contractor completed the remodeling project—the portable toilet still sat in this location. Terzian-Feliz told the jury that she kept it there for members of the general public to use, as a “public service.”
Vartan Ajamian testified that when he and his wife were remodeling their home, they put a portable toilet at a location that they believed was on their property. Terzian-Feliz did not object to the placement. By the time of trial, he knew that the location was actually on her lot. Once Terzian-Feliz claimed that she had a prescriptive easement to use their driveway, he refused her permission to use it.
After Terzian-Feliz rested her case-in-chief, the Ajamians moved for nonsuit on all causes of action. The trial court denied most aspects of the motion, but granted nonsuit on Terzian-Feliz’s cause of action against the Ajamians for breach of contract. It found that the breach of contract cause of action was based on the disagreement about the placement of the portable toilet, which did not rise to the level of a breach of the implied covenant of good faith and fair dealing. This ruling strengthened the Ajamians’ cross-claim that Terzian-Feliz was unjustified in terminating the AEI contract and may have breached the contract herself. However, the trial court did not resolve the Ajamians’ breach of contract issue, leaving it for the jury to determine.
Vartan Ajamian also testified on his own behalf. He told the jury that when they were negotiating about the contract price, Terzian-Feliz told him that she had a budget of $200,000. He charged Terzian-Feliz a reduced rate because she was a good friend. The Ajamians anticipated lower than usual costs, assuming that Terzian-Feliz would be living off-site during the construction and that she would reuse some of her existing appliances instead of buying new ones. In fact, the AEI costs were almost $2,900 higher because the Ajamians had to purchase a covered trailer in which to store his tools after Terzian-Feliz insisted that he remove them from the jobsite each evening. The Ajamians offered evidence that until Terzian-Feliz terminated the AEI contract, they intended to complete the job.
During rebuttal testimony, Terzian-Feliz denied ever telling the Ajamians this.
When the contract was terminated, AEI had already begun excavation work on Terzian-Feliz’s home. Piers had been drilled and some rebar had been placed in the pier holes in preparation for being cast in concrete. The Ajamians’ expert estimated that the work done before the contract ended had a reasonable value of $58,274. He also estimated that the amount of the contract work that had been earned by that time was $42,680. The contract amount was lower than the reasonable value of the work because AEI had charged Terzian-Feliz a reduced rate. Their evidence suggested that about a quarter of the contract work had been done, leaving about 75 percent remaining to be completed at the time of contract termination.
The contract price for Terzian-Feliz had been set at a reduced rate because she had been a good friend of the Ajamians. At trial, the Ajamians argued that if Terzian-Feliz improperly terminated the contract, she could not rely on that contract price for the measure of their damages. Instead, they reasoned that standard market rates applied. The measure of damages that they sought to apply to their breach of contract action was in quantum meruit—the reasonable value of the services rendered to Terzian-Feliz. (See Palmer v. Gregg (1967) 65 Cal.2d 657, 660; Maglica v. Maglica (1998) 66 Cal.App.4th 442, 449.)
The Ajamians put on evidence that prior owners of No. 40 only rarely allowed No. 60 owners to use their driveway. The No. 40 prior owners gave permission for each use, including to Terzian-Feliz herself. These prior owners believed that the No. 40 driveway belonged to them. No one told the Ajamians that they could expect their neighbors at No. 60 to use their driveway.
Both Vartan and Margarita Ajamian testified that before June 2005, Terzian-Feliz had never asserted a right to use their driveway. They permitted Terzian-Feliz or people working for her to use their driveway. The Ajamians also put on evidence that workers could access No. 60 without using their driveway.
At the time of trial, the Ajamians were still trying to sell their home at No. 40. Terzian-Feliz testified that she had not interfered with the sale of their home, saying that she “would love it if they sold it and left.”
Initially, the trial court denied the Ajamians’ motion for nonsuit on Terzian-Feliz’s implied easement cause of action. When the presentation of evidence had been completed, the trial court determined that Terzian-Feliz had offered insufficient evidence to warrant jury instruction on this cause of action.
F. Verdicts
On August 3, 2007, the jury returned general and special verdicts against Terzian-Feliz on all claims and cross-claims presented to them for determination. It found for the Ajamians on Terzian-Feliz’s causes of action for fraud, misappropriation or breach of fiduciary duty, and elder financial abuse. It rejected her claim that she had established that a prescriptive easement to use their driveway had existed at the time that the Ajamians purchased their property. It also found that the Ajamians were bona fide purchasers of their property, thus establishing an affirmative defense to any prescriptive easement cause of action.
On the Ajamians’ cross-complaint, the jury found that Terzian-Feliz had breached her contract with AEI. It awarded the Ajamians $58,000 in damages for breach of contract as measured in quantum meruit. On their declaratory relief cause of action, the jury found that the term “driveway purposes” in the Parcel 5 express easement set out in the Ajamians’ deed meant “all purposes of a driveway including paving (costs as well as choice of materials), maintaining and any and all uses normally associated with a driveway.” The jury determined that a prescriptive easement existed benefitting the Ajamians’ property and burdening the property of Terzian-Feliz, to maintain that part of Terzian-Feliz’s property lying between the rock wall and the actual boundary line between No. 40 and No. 60. It also found that the Ajamians had established an easement to maintain the property that continued along the first prescriptive easement—a narrow strip of Terzian-Feliz’s property running along their driveway between Parcel 5 on one side and the No. 60 driveway and rock wall on the other.
The jury determined that AEI provided $58,000 in services to Terzian-Feliz—$48,000 provided directly and $10,000 provided by a subcontractor. As the Ajamians conceded that Terzian-Feliz had already paid $45,000 of this amount, the trial court reduced the award to $13,000 in its judgment.
G. Posttrial Matters
On August 7, 2007, the trial court entered judgment consistent with the jury’s verdicts and the court’s nonsuit rulings. On August 18, 2007, Terzian-Feliz moved for judgment notwithstanding the verdict and to vacate part of the judgment. The trial court granted the motions in limited respects, making minor modifications in the judgment. In all significant respects, it denied these motions. In so doing, it rejected Terzian-Feliz’s attacks on the judgment rendered against her on her claim of a prescriptive easement over the Ajamians’ driveway, the Ajamians’ cause of action to quiet title to their prescriptive easement and their cause of action for declaratory relief about their right to maintain the express easement.
II. BREACH OF CONTRACT
A. Procedural History
First, Terzian-Feliz contends that the trial court erred when it granted the Ajamians’ motion for nonsuit on her cause of action for breach of contract. She argues that her evidence demonstrated sufficient evidence of a breach of the implied covenant of good faith and fair dealing, such that the breach of contract issue should have gone to the jury. Her letter advising the Ajamians that she believed that they had breached this implied covenant cited the placement of the portable toilet as the basis of this conclusion. Her complaint alleged that the Ajamians’ ownership of the neighboring property led them to make contractual decisions based on their own interests rather than their contractual obligations to her—another oblique reference to the portable toilet placement.
In the trial court, she argued that she presented evidence of the Ajamians’ breach of the implied covenant of good faith and fair dealing by placing the portable toilet in a location that they did, reasoning that a different placement might have impeded their house sale. The trial court rejected Terzian-Feliz’s claim that the Ajamians’ location of the toilet constituted a conflict of interest yielding a breach of contract cause of action. It found that Terzian-Feliz failed to make a sufficient showing of a breach of an implied covenant of good faith and fair dealing.
Terzian-Feliz also argued in the trial court that the contract was terminated because the Ajamians were unable to discuss contractual matters with her in a rational manner, continued to deny that the placement of the portable toilet created a conflict of interest, and refused to communicate with her about the contract except in writing. The trial court disagreed, concluding that termination of the contact was prompted by the placement of the portable toilet—a matter that was not part of the contract. Thus, the trial court granted the Ajamians’ motion for nonsuit on Terzian-Feliz’s breach of contract claim.
B. Standard of Review
A motion for nonsuit allows defendants to test the sufficiency of a plaintiff’s evidence before presenting their own case to the jury. (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 838 (Carson).) It constitutes a demurrer to the evidence and thus presents a question of law—whether the evidence offered by the plaintiff could support a judgment. (Loral Corp. v. Moyes (1985) 174 Cal.App.3d 268, 272.) A nonsuit may only be granted if no evidence supports a jury verdict in the plaintiff’s favor. (Elmore v. American Motors Corp. (1969)70 Cal.2d 578, 583.) If there is any doubt, the trial court must deny the motion and let the case go to the jury for determination. (Golceff v. Sugarman (1950) 36 Cal.2d 152, 153.) Thus, a grant of a nonsuit is proper only if judgment for the Ajamians on Terzian-Feliz’s breach of contract cause of action was required as a matter of law. (See Carson, supra, 36 Cal.3d at pp. 838-839; Markowitz v. Fidelity Nat. Title Co. (2006) 142 Cal.App.4th 508, 520 (Markowitz).)
When reviewing a pure question of law such as the one before us, we conduct a de novo review. (See Santa Barbara Pistachio Ranch v. Chowchilla Water Dist. (2001) 88 Cal.App.4th 439, 445 (Santa Barbara Pistachio).) In this review, we may not weigh evidence or assess credibility. (Carson, supra, 36 Cal.3d at pp. 838-839; Markowitz, supra, 142 Cal.App.4th at p. 520; Santa Barbara Pistachio, supra, 88 Cal.App.4th at p. 445.) Instead, we give all Terzian-Feliz’s evidence the value to which it is legally entitled. We accept her evidence and all evidence reasonably related to it as true, drawing all inferences that may legitimately be drawn in her favor and disregarding any contradictory evidence. (See Carson, supra, 36 Cal.3d at pp. 838-839; Markowitz, supra, 142 Cal.App.4th at p. 520; Santa Barbara Pistachio, supra, 88 Cal.App.4th at p. 444.)
However, the rules governing a nonsuit do not relieve Terzian-Feliz of the burden of establishing the elements of her case. She must produce evidence supporting a logical inference in her favor, based on more than speculation or conjecture. (See Markowitz, supra, 142 Cal.App.4th at p. 520; Alvarez v. Jacmar Pacific Pizza Corp. (2002) 100 Cal.App.4th 1190, 1209.) Reversal of a grant of nonsuit is warranted only if there is some substance to the plaintiff’s evidence about which reasonable minds could differ. (See Carson, supra, 36 Cal.3d at p. 839.)
On appeal, Terzian-Feliz focuses her attack on the trial court’s conclusion that the placement of the portable toilet was an insufficient basis for a breach of implied covenant of good faith and fair dealing. She argues that her evidence showed that she also terminated the construction contract with the Ajamians because their conduct frustrated any collaboration and violated her justified contractual expectations. In essence, Terzian-Feliz asserts that the Ajamians made it impossible for her to work with them. She contends that she was entitled to terminate the contract because the Ajamians frustrated her ability to obtain the benefit of the contract. She reasons that she put on enough evidence of this failure to collaborate and frustration to warrant a jury trial on her breach of contract cause of action.
We need not concern ourselves with whether the trial court’s specific analysis on the nonsuit motion was correct. As we determine the propriety of a grant of nonsuit anew on appeal, the trial court’s method of analysis is moot. (See Santa Barbara Pistachio, supra, 88 Cal.App.4th at p. 445.) The only question we must decide on appeal is whether the trial court correctly ruled that, as a matter of law, the Ajamians were entitled to a nonsuit on Terzian-Feliz’s breach of contract cause of action. (Carson, supra, 36 Cal.3d at pp. 838-839; Markowitz, supra, 142 Cal.App.4th at p. 520.) At issue is the nonsuit ruling, not the reasoning that the trial court cited in support of its decision.
C. Good Faith and Fair Dealing
Every contract imposes on each party a duty of good faith and fair dealing in its performance and enforcement. (Carma Developers (Cal.), Inc. v. Marathon Development California, Inc. (1992) 2 Cal.4th 342, 371 (Carma); see Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 349.) Neither party is free to engage in conduct that would injure another party’s right to receive the benefits of the agreed-to contract. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 349; Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1393 (Careau).) The covenant of good faith and fair dealing supplements a contract’s express terms, preventing a contracting party from engaging in conduct that frustrates the other party’s rights to the benefits of the contract. (Racine & Laramie, Ltd. v. Department of Parks & Recreation (1992) 11 Cal.App.4th 1026, 1031-1032 (Racine).)
While breach of a specific term of the contract is not required, the scope of conduct prohibited by the covenant of good faith and fair dealing is limited by the express terms and purpose of the contract. The covenant does not operate to protect general public policy interests that are not linked to the contract. Those interests are protected by tort law, not a contractual covenant of good faith and fair dealing. (Carma, supra, 2 Cal.4that p. 373 & fn. 13; Racine, supra, 11 Cal.App.4th at p. 1031.) The implied covenant of good faith and fair dealing cannot create obligations that are not contemplated in the contract. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at pp. 349-350; Pasadena Live v. City of Pasadena (2004) 114 Cal.App.4th 1089, 1094; Racine, supra, 11 Cal.App.4th at p. 1032.)
It is relatively simple to determine whether specific conduct is within the bounds of a contract’s express terms: The conduct is either expressly permitted or not prohibited by that contract. It is more difficult to decide whether conduct that is not prohibited is nevertheless contrary to the contract’s purposes and the parties’ legitimate, reasonable expectations. (Carma, supra, 2 Cal.4th at pp. 373, 376.)
It has been suggested that the issue of whether there has been a breach of this implied covenant should be determined on a case-by-case basis. (See Carma, supra, 2 Cal.4th at p. 372.) Even so, in some cases, a breach of an implied covenant of good faith and fair dealing can be determined as a matter of law. For example, a breach of the covenant of good faith and fair dealing arises not simply from an honest mistake, bad judgment or negligence. An actionable breach involves a conscious and deliberate act that unfairly frustrates the agreed common purposes and disappoints the reasonable expectations of the other party, thus depriving that party of the contract’s benefits. (Careau, supra, 222 Cal.App.3d at p. 1395.) The precise nature and extent of the duty imposed depends on the contract’s purposes. (Egan v. Mutual of Omaha Ins. Co. (1979) 24 Cal.3d 809, 818; Careau, supra, 222 Cal.App.3d at p. 1393.) With these principles in mind, we turn to Terzian-Feliz’s specific contentions.
D. Violation of Expectations
Terzian-Feliz reasons that the evidence showed that the Ajamians breached the implied covenant of good faith and fair dealing by violating the contracting parties’ common purpose and justified expectations. In support of this claim, she cites her testimony that the Ajamians refused to move her refrigerator in order to make it more convenient for her to live in her home during the remodeling. However, the contract did not require the Ajamians to move her refrigerator. An implied covenant does not create obligations beyond those contemplated by the contract. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at pp. 349-350; Pasadena Live v. City of Pasadena, supra, 114 Cal.App.4th at p. 1094; Racine, supra, 11 Cal.App.4th at p. 1032.) This evidence cannot support a finding of a breach of the implied covenant of good faith and fair dealing.
The only other evidence that she cites in support of the claim that her expectations were violated is her complaint about the placement of the portable toilet. A breach of the duty imposed by the covenant of good faith and fair dealing requires that a party’s conduct be objectively unreasonable. (See, e.g., Carma, supra, 2 Cal.4th at pp. 372-373.) It is clear to us that Terzian-Feliz’s expectations about the placement of the toilet were not objectively reasonable. No reasonable jury would find that a breach of the implied covenant of good faith and fair dealing occurred in this matter because of the Ajamians’ initial decision to place a portable toilet at a location on Terzian-Feliz’s property that she found objectionable.
This is particularly true, given the undisputed evidence that the Ajamians later allowed Terzian-Feliz to determine where to place the portable toilet.
E. Frustration of Contractual Obligations
Terzian-Feliz also argues that the Ajamians breached the covenant of good faith and fair dealing by frustrating her ability to collaborate with them. In support of this claim, she cites evidence of a pattern of conduct on the part of the Ajamians. She specifically complains that the Ajamians did not discuss contractual matters with her in a calm, rational manner and that they required communications about the contract to be made in writing. She points to the contractual requirement of collaboration on her kitchen design to bolster her claim that the Ajamians failed to live up to their contractual obligations.
Terzian-Feliz also argues that a jury could have concluded that the Ajamians failed to negotiate the kitchen design in good faith. In support of this argument, she cites a factually distinguishable case holding that a cause of action will lie for breach of a contract to negotiate an agreement. (See Copeland v. Baskin Robbins U.S.A. (2002) 96 Cal.App.4th 1251, 1255-1263.) She did not allege a breach of a contract to negotiate an agreement in her complaint. She may not bootstrap her breach of contract claim into a different claim.
We disagree. In our view, these are objections to the manner in which the collaborations between the contracting parties would occur. They demonstrate, not a breach of the contractual duty to collaborate with her, but that the Ajamians anticipated that further collaboration would occur. A breach of the duty imposed by the covenant of good faith and fair dealing requires that a party’s conduct be objectively unreasonable. (See, e.g., Carma, supra, 2 Cal.4th at pp. 372-373.) This manner of collaboration may have frustrated Terzian-Feliz, but that frustration was not objectively reasonable, particularly in light of her own poor conduct toward the Ajamians.
The gravamen of the breach of contract claim in her complaint is that the Ajamians subjugated her interests to their own by initially placing the portable toilet in a location that displeased her. She contends, in essence, that the Ajamians’ decision to place the portable toilet in a location that might be more desirable to them as sellers of their own home was a conflict of interest constituting a breach of contract to remodel her home. In so doing, she confuses the duty required by the covenant of good faith and fair dealing and a fiduciary duty. The two duties differ; the implied covenant does not create a fiduciary duty, but merely affords a basis for redress of a breach of contract. (Wolf v. Superior Court (2003) 107 Cal.App.4th 25, 31.) Terzian-Feliz would impute to the Ajamians obligations that were not contemplated by the contract. We cannot do so. (Pasadena Live v. City of Pasadena, supra, 114 Cal.App.4th at p. 1094.)
The purpose of a motion for nonsuit is to remove from jury consideration an alleged cause of action that—even if the alleged facts are deemed to be true—offers no legal basis for relief. (See Carson, supra, 36 Cal.3d at pp. 838-839; Loral Corp. v. Moyes, supra, 174 Cal.App.3d at p. 272.) Although all inferences must be weighed in Terzian-Feliz’s favor, this view of the evidence does not relieve her of the burden of establishing the elements of her case. (See Markowitz, supra, 142 Cal.App.4th at p. 520.) She has not done so. Rejecting any consideration of evidence in the Ajamians’ favor as we must, we are satisfied that no reasonable jury could have found that they breached the implied covenant of good faith and fair dealing by their conduct. Thus, the trial court properly granted nonsuit to the Ajamians on Terzian-Feliz’s cause of action for breach of contract.
In light of this conclusion, we necessarily reject Terzian-Feliz’s related claim that the jury was tainted on all her causes of action, warranting a new trial on all contract related issues.
III. VALUATION
A. New Trial Motion
Next, Terzian-Feliz challenges the sufficiency of evidence supporting the jury’s valuation of Vartan Ajamian’s construction work. She contends that the only evidence supporting the jury award rested on the testimony of a single witness—Ajamian valuation expert John Donley—which she argues should have been excluded at trial. She also complains that his testimony lacked evidentiary support, providing an insufficient basis to support the jury’s valuation of the reasonable value of the Ajamians’ work.
Preliminarily, the Ajamians counter that Terzian-Feliz’s claim is one of excessive damages—a claim of error that cannot be raised for the first time on appeal, but must first be raised in the trial court by a motion for new trial asserted on this ground. Terzian-Feliz did not seek a new trial after the jury rendered its verdict against her.
She did seek a judgment notwithstanding the verdict, without success. In that motion, Terzian-Feliz did not attack the sufficiency of evidence supporting the breach of contract award. A trial court may not grant a motion for judgment notwithstanding the verdict merely because damages are excessive. Thus, her motion for judgment notwithstanding the verdict would not constitute a substitute for a motion for new trial, if a motion for new trial should have been filed as a prerequisite to raising this issue. (See Schroeder v. Auto Driveaway Co. (1974) 11 Cal.3d 908, 919.)
Excessive damages is a ground for a new trial. (See Code Civ. Proc., § 657, subd. 5.) An appellant may not challenge a damage award as excessive if the issue was not first raised in a motion for new trial. (Schroeder v. Auto Driveaway Co., supra, 11 Cal.3d at pp. 918-919; Jamison v. Jamison (2008) 164 Cal.App.4th 714, 719 (Jamison); Franck v. Polaris E-Z Go Div. of Textron, Inc. (1984) 157 Cal.App.3d 1107, 1115-1116 [claiming award is excessive as matter of law]; Glendale Fed. Sav. & Loan Assn. v. Marina View Heights Dev. Co. (1977) 66 Cal.App.3d 101, 122 (Glendale); see 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 405, pp. 463-464.)
The reason for the condition precedent of a trial court challenge to an award of excessive damages is sound. The trial court is in a better position than an appellate court to determine whether a jury verdict was influenced by passion or prejudice. The trial court is empowered to weigh evidence and resolve credibility issues—a power that is denied to an appellate court. Thus, if an issue relating to the amount of damages turns on witness credibility, conflicting evidence or other factual questions, the award may not be challenged as excessive without first asking the trial court to rule on them. (Schroeder v. Auto Driveaway Co., supra, 11 Cal.3d at p. 919; Jamison, supra, 164 Cal.App.4th at pp. 719-720; Glendale, supra, 66 Cal.App.3d at p. 122.) To ask us to resolve the underlying factual issues without the benefit of a trial court ruling on a motion for new trial unnecessarily burdens us with matters best resolved in that court. (Jamison, supra, 164 Cal.App.4th at p. 719.)
However, the failure to move for a new trial does not preclude an appellant from urging such legal errors as the erroneous admission of evidence, faulty jury instructions or the failure to apply the correct measure of damages, even if those errors result in an award of excessive damages. (Glendale, supra, 66 Cal.App.3d at pp. 122, 126; Mendoyoma, Inc. v. County of Mendocino (1970) 8 Cal.App.3d 873, 877-878 [inadequate damages]; Schmidt v. Macco Construction Co. (1953) 119 Cal.App.2d 717, 721; see 9 Witkin, Cal. Procedure, supra, Appeal, § 405, pp. 463-464.)
In her reply brief, Terzian-Feliz argues that her valuation claim of error is a legal issue that fits within the exception to the rule requiring a motion for new trial as a prerequisite of a claim of excessive damages. Both of the cases she cites in support of this contention are less persuasive than they might otherwise be because, in both instances, the appellants did move for new trials specifically on grounds of excessive damages. (See Toscano v. Greene Music (2004) 124 Cal.App.4th 685, 691; Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 346.) As the issues in both cited cases arose in a different procedural context than the case before us, neither case strengthens Terzian-Feliz’s claim that a motion for new trial does not bar her from raising the errors that she would have us resolve on appeal.
Still, it is true that not every question bearing on a damages award must first be raised in the trial court on a motion for new trial. The key to determining whether the issue before us requires such a prerequisite turns on whether the ascertainment of the amount of damages depends on the credibility of witnesses, conflicting evidence, or some other factual issues; or, alternatively, on legal questions such as the admissibility of evidence, the correctness of jury instructions given, or the proper legal measure of damages. (See Jamison, supra, 164 Cal.App.4th at pp. 719-720; Glendale, supra, 66 Cal.App.3d at pp. 122, 126; see also Toscano v. Greene Music, supra, 124 Cal.App.4th at p. 691 [legal measure of damages].) We evaluate each of Terzian-Feliz’s claims to determine whether the issue is a purely legal one that we may address or the question raises factual issues that are barred from our consideration on appeal by her failure to seek a new trial on those grounds.
B. Exclusion of Report
First, Terzian-Feliz contends that the jury had no substantial evidence to support its breach of contract award to the Ajamians because Donley’s testimony should have been excluded from evidence. She reasons that this valuation testimony should not have been admitted because it was taken from his written report, which was excluded from evidence. Such a claim of error appears to be a legal one that is properly before us, even without a prerequisite motion for new trial. (See, e.g., Glendale, supra, 66 Cal.App.3d at pp. 122, 126.) Even so, we find Terzian-Feliz’s argument to be meritless.
Donley’s report included his calculations of the reasonable value of services rendered as well as other calculations based on another measure of damages. The trial court determined that the reasonable value of services measure of damages was the proper measure of any damages suffered by the Ajamians. It excluded Donley’s report, not because of any concern about the reasonable value aspect of it that Donley relied on in support of his valuation testimony, but because that aspect of the report could not be separated out from other aspects of it relating to issues that the trial court concluded were not properly before the jury. Having carefully reviewed the record on this issue, we are satisfied that the aspects of the report that prompted it to be excluded differed from those forming the basis of the valuation testimony that Donley gave.
If her claim is merely a challenge to the credibility of Donley’s valuation testimony—a veiled issue of fact, as the Ajamians assert—then, it would be a factual question that Terzian-Feliz is barred from raising on appeal because she failed to move for a new trial on grounds of excessive damages. (See Schroeder v. Auto Driveaway Co., supra, 11 Cal.3d at p. 919; Jamison, supra, 164 Cal.App.4th at pp. 719-720; Glendale, supra, 66 Cal.App.3d at p. 122.)
In a quantum meruit action, an expert may offer opinion testimony about the reasonable value of work performed. (Burgermeister v. Wells Fargo Bank etc. Co. (1961) 191 Cal.App.2d 624, 631-632.) The measure of damages for breach of contract was in quantum meruit. (See fn. 13, ante.) At trial, Donley testified as an expert on construction costs and the value of construction services. An expert witness may offer an opinion based on matter known to him or her, regardless of whether or not the underlying matter is admissible, as long as the evidence is of a type that may reasonably be relied on by an expert forming an opinion on the subject at issue, unless the expert is precluded by law from relying on this matter as a basis of expert opinion. (Evid. Code, § 801, subd. (b).) Consistent with this statutory authority, Donley could properly testify about his opinion of the reasonable value of the Ajamians’ services to Terzian-Feliz even if the report on which that valuation was based was not admitted into evidence.
Although she had argued against the admission of Donley’s testimony earlier in the trial, one reason that Terzian-Feliz cited in support of her argument that the written report should be excluded was that it was not necessary, because the jury had Donley’s testimony before it. In light of this concession at trial, Terzian-Feliz’s claim of error borders on invited error. (See, e.g., Redevelopment Agency v. City of Berkeley (1978) 80 Cal.App.3d 158, 166; see also Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 212.)
C. Other Challenges to Donley’s Testimony
Terzian-Feliz also asserts that Donley’s valuation testimony was not substantial evidence because it lacked evidentiary support. She argues that the valuation compensated the Ajamians for work that was not performed, improperly compensated them for administrative work that was not required by the contract, and rested on a markup that was itself unsupported by the evidence. She argues that Donley simply made up the valuation opinion that he offered in his testimony.
Terzian-Feliz made the same objection in the trial court when she argued that Donley should not be allowed to testify about valuation. The trial court rejected that argument, finding that her objections went to the weight of this evidence, not its admissibility. Despite this ruling, the trial court invited Terzian-Feliz to move to strike any of Donley’s opinion testimony that went beyond what was legally relevant and was thus inadmissible. She did not make any effort to strike any part of his testimony when he was on the witness stand.
Notwithstanding Terzian-Feliz’s strained attempts to couch these issues that she would raise on appeal as legal ones, it is plain that our resolution of them would require us to assess the credibility of witnesses, weigh conflicting evidence and parse out complex factual matters. These are the type of factual issues that are best resolved in the trial court on a motion for new trial. (See, e.g., Jamison, supra, 164 Cal.App.4th at pp. 719-720.) As Terzian-Feliz failed to seek a motion for new trial, we are barred from addressing them on appeal. (See Schroeder v. Auto Driveaway Co., supra, 11 Cal.3d at p. 919; Jamison, supra, 164 Cal.App.4th at pp. 719-720; Glendale, supra, 66 Cal.App.3d at p. 122.) Thus, we conclude that the jury could properly rely on Donley’s valuation evidence when setting the amount of damages to which the Ajamians were entitled on their breach of contract cause of action.
Terzian-Feliz complains that the exclusion of the report occurred after the jury had begun deliberations, so that she “could do nothing” to challenge Donley’s testimony. She fails to explain why she did not raise this objection after trial in a motion for new trial. (See Code Civ. Proc., § 657.)
In light of this conclusion, we need not determine the Ajamians’ additional claim that the jury had other evidence properly before it that would have supported its breach of contract award even if Donley’s testimony was excluded from evidence.
IV. PRESCRIPTIVE EASEMENT
A. Procedural History
Terzian-Feliz also challenges the jury’s rejection of her claim that she had acquired a prescriptive easement to use the No. 40 driveway before the Ajamians acquired their property in 2001. In the trial court, she sought to establish a prescriptive easement for deliveries and brush clearance from the lower part of her property across her neighbors’ driveway. Over her objection, the trial court instructed the jury that she was required to prove the elements of a prescriptive easement by clear and convincing evidence.
After trial, the trial court denied Terzian-Feliz’s motion for judgment notwithstanding the jury’s verdict against her on this cause of action, on both procedural and substantive grounds. It found her request to balance the equities between the parties to be improper, as it was beyond the scope of the correct inquiry into whether substantial evidence supported the verdict. The trial court concluded that even if it were empowered to balance the equities as Terzian-Feliz contended, she would not be entitled to a prescriptive easement. It found that she had other practical access to her property and that the burden a lack of an easement placed on her was not greatly disproportionate to the hardship to the Ajamians if she were allowed to use an easement.
On appeal, Terzian-Feliz raises three separate issues relating to her burden of proof, the evidence adduced at trial, and the effect—if any—that the Ajamians’ status as bona fide purchasers would have on a prescriptive easement. The parties also raise various motions relevant to the prescriptive easement claim of error. Before we consider each of these questions in turn, we set out a brief overview of the law of prescriptive easements.
We deny Terzian-Feliz’s related request for judicial notice. To the extent that the material has any probative value, the minimal probative value contained in the matter of which she would have us take judicial notice is substantially outweighed by its prejudicial effect. (Evid. Code, §§ 210, 350, 352, 450-452, 454, 459, 1152.) We also deny the Ajamians’ related motion to strike all or part of Terzian-Feliz’s reply brief. We will ignore the noncompliant parts of the reply brief and argument based on matters outside the record on appeal. (See Cal. Rules of Court, rule 8.204(e)(2)(C).) We deny both motions for sanctions.
B. Legal Standard
The necessary elements of a prescriptive easement are open and notorious use of another’s land, which use is continuous and uninterrupted for five years and is adverse to the land’s owner. (Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 570 (Warsaw); Grant v. Ratliff (2008) 164 Cal.App.4th 1304, 1308; Applegate v. Ota (1983) 146 Cal.App.3d 702, 708; 12 Witkin, Summary of Cal. Law (10th ed. 2005) Real Property, § 401, pp. 469-470.) These elements are intended to ensure that the owner of property being encroached on has actual or constructive notice of the adverse use and to provide a sufficient time to prevent adverse use from ripening into a prescriptive easement. (Brewer v. Murphy (2008) 161 Cal.App.4th 928, 938-939; Field-Escandon v. DeMann (1988) 204 Cal.App.3d 228, 235-236.) The elements of a prescriptive easement are questions of fact for the trier of fact to determine. (Warsaw, supra, 35 Cal.3d at p. 570; Brewer v. Murphy, supra, 161 Cal.App.4th at p. 938; Field-Escandon v. DeMann, supra, 204 Cal.App.3d at p. 235; Kerr Land & Timber Co. v. Emmerson (1969) 268 Cal.App.2d 628, 637; see 12 Witkin, Summary of Cal. Law, supra, Real Property, § 402, pp. 470-472.) The findings of that trier of fact will not be disturbed on appeal if substantial evidence supports them. (Warsaw, supra, 35 Cal.3d at p. 570.)
C. Burden of Proof
Terzian-Feliz first takes issue with the trial court’s instruction to the jury that she was required to prove her prescriptive easement cause of action by clear and convincing evidence. This issue was debated before the jury was instructed that the parties’ respective claims for a prescriptive easement had to be proven by clear and convincing evidence. The issue of the applicable burden of proof is a legal issue for us to determine anew on appeal. (In re Marriage of Ettefagh (2007) 150 Cal.App.4th 1578, 1584.)
Of course, the same instruction required the Ajamians to establish their prescriptive easement claim by the same standard.
It has long been held that the burden of proving an adverse property right is on the claimant—in this matter, Terzian-Feliz. (See, e.g., Clarke v. Clarke (1901) 133 Cal. 667, 669; San Juan G. Co. v. San Juan R. etc. Assn. (1939) 34 Cal.App.2d 159, 170; 12 Witkin, Summary of Cal. Law, supra, Real Property, § 402, pp. 470-472.) In the past 27 years, a line of appellate cases have held that a party seeking to establish a prescriptive easement must prove its elements by clear and convincing evidence. (Grant v. Ratliff, supra, 164 Cal.App.4th at p. 1310; Brewer v. Murphy, supra, 161 Cal.App.4th at p. 938; Field-Escandon v. DeMann, supra, 204 Cal.App.3d at p. 235; Applegate v. Ota, supra, 146 Cal.App.3d at p. 708.) Terzian-Feliz argues that these cases are legally incorrect. She asserts that the general preponderance of evidence standard set out in the Evidence Code should apply because prescriptive easements are established by statute.
Neither of the statutes on prescriptive easements sets out the burden of proof to be applied when determining whether a prescriptive easement exists. (See Civ. Code, § 1007; Code Civ. Proc., § 321.) The Legislature has provided that unless otherwise provided “by law,” the preponderance of evidence burden of proof applies to establish essential facts in a case. (Evid. Code, § 115.) Terzian-Feliz asserts that the “default” preponderance of evidence standard should apply unless some “legislative expression” in the form of a constitutional or statutory provision expresses a different burden of proof.
We disagree with her assertion that case law about burdens of proof deserves less respect than legislative enactments about them. When the Legislature provided in the Evidence Code that a different burden of proof could be established “by law,” it also defined the term “law” to include case law. (Evid. Code, § 160; see id., § 115.) In the specific context of the burden of proof statute, the Legislature explained that a burden of proof other than the preponderance of evidence applies if “specifically required... by constitutional, statutory, or decisional law.” (Assem. Com. on Judiciary com., reprinted at 29B pt. 1 West’s Ann. Evid. Code (1995 ed.) foll. § 115, p. 12, italics added.) These enactments satisfy us that the Legislature authorized consideration of case law when determining whether it was appropriate to apply a greater or lesser burden of proof than the preponderance of evidence standard.
There is no question that decisional law specifically requires the use of the higher clear and convincing evidence standard in order to prove a prescriptive easement. (Grant v. Ratliff, supra, 164 Cal.App.4th at p. 1310; Brewer v. Murphy, supra, 161 Cal.App.4th at p. 938; Field-Escandon v. DeMann, supra, 204 Cal.App.3d at p. 235; Applegate v. Ota, supra, 146 Cal.App.3d at p. 708.) These holdings are consistent with older case law—including a decision handed down by the California Supreme Court—requiring the clearest and most satisfactory proof of all elements of a prescriptive easement. (Clarke v. Clarke, supra, 133 Cal. at p. 669; MacDonald Properties, Inc. v. Bel-Air Country Club (1977) 72 Cal.App.3d 693, 702 [use]; Kerr Land & Timber Co. v. Emmerson, supra, 268 Cal.App.2d at p. 637 [adverse use]; Case v. Uridge (1960) 180 Cal.App.2d 1, 8 [same]; Hahn v. Curtis (1946) 73 Cal.App.2d 382, 389; San Juan G. Co. v. San Juan R. etc. Assn., supra, 34 Cal.App.2d at p. 170; Matthiessen v. Grand (1928) 92 Cal.App. 504, 510; Pyramid Land etc. Co. v. Scott (1921) 51 Cal.App. 634, 636.)
Terzian-Feliz’s situation is factually distinguishable from the case she cites in support of her argument on appeal. In that case, In re Marriage of Ettefagh, supra, 150 Cal.App.4th at pages 1584-1591, conflicting case law on the appropriate burden of proof and the equal nature of the risks at issue in a division of community property matter led the appellate court to apply a preponderance of evidence standard. In the case before us, the cases requiring clear and convincing evidence to prove a prescriptive easement are consistent with each other and with related California Supreme Court authority.
The selection of a burden of proof reflects the significance that we attach to the underlying issue, as it bears on the degree of confidence that we as a society believe that a fact finder should have in a particular determination. (Weiner v. Fleischman (1991) 54 Cal.3d 476, 487; In re Marriage of Ettefagh, supra, 150 Cal.App.4th at p. 1589.) A standard of proof also may turn on the gravity of the consequences that would result from an erroneous determination of the matter at issue. (Weiner v. Fleischman, supra, 54 Cal.3d at p. 487.) As a policy matter, the law should favor an owner of real property over one who claims a prescriptive easement over that property, as the easement operates to burden the titleholder’s property. (See, e.g., Grant v. Ratliff, supra, 164 Cal.App.4th at p. 1310 [continual trespass is not socially useful activity]; Brewer v. Murphy, supra, 161 Cal.App.4th at pp. 938-939 [prescriptive easement encroaches on owner of real property]; Hahn v. Curtis, supra, 73 Cal.App.2d at p. 389 [evidence of prescriptive easement is strictly construed].) Unlike the former spouses in In re Marriage of Ettefagh, supra, the Ajamians and Terzian-Feliz do not share the risk of an erroneous finding of the existence of a prescriptive easement in a roughly equal fashion. As such, the requirement that the claimant of a prescriptive easement meet his or her burden of proof by clear and convincing evidence is an appropriate one. (See Weiner v. Fleischman, supra, 54 Cal.3d at pp. 487-488; Clarke v. Clarke, supra, 133 Cal. at p. 669 [claimant bears burden of proof].) Given the case law and the underlying policy considerations, we are satisfied that the trial court properly instructed the jury that both parties were required to establish a claim of a prescriptive easement by clear and convincing evidence.
D. Sufficiency of Evidence
Terzian-Feliz also contends that the jury erred when it found that she did not provide sufficient evidence of a prescriptive easement on the Ajamians’ driveway. She argues that she offered uncontradicted evidence of each element of a prescriptive easement established in 1961, five years after her predecessors in interest—the Scheuermanns—purchased No. 60. If substantial evidence supports the jury’s verdict against a prescriptive easement by clear and convincing evidence, that finding will be upheld on appeal, applying the normal rules of substantial evidence. When considering this matter on appeal, we are charged to consider the Ajamians’ evidence, however slight, and to ignore Terzian-Feliz’s evidence, however strong. (., Brewer Murphy, supra, 161 Cal.App.4th at p. 938; Field-Escandon DeMann, supra, 204 Cal.App.3d at p. 235; Applegate Ota, supra, 146 Cal.App.3d at pp. 708-709; see also Beeler v. American Trust Co. (1944) 24 Cal.2d 1, 7; Hahn v. Curtis, supra, 73 Cal.App.2d at p. 389 [strict construction of prescriptive easement evidence].)
This claim of error is also an attack on the trial court’s denial of her motion for judgment notwithstanding the verdict on her prescriptive easement cause of action. In addition to procedural objections to her motion on this cause of action, the trial court found against Terzian-Feliz on the substance of her claim. It found that she had other practical access to her property than the Ajamians’ driveway. It also concluded that if she was not allowed to use the claimed easement, the burden on Terzian-Feliz would not be greatly disproportionate to the hardship imposed on the Ajamians if she were allowed to use it. The purpose of a motion for judgment notwithstanding the verdict is not to review the jury’s deliberations, but to prevent a miscarriage of justice when the verdict rendered was without foundation. (Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 284; Sukoff v. Lemkin (1988) 202 Cal.App.3d 740, 743.) The trial court—viewing the evidence in favor of the jury’s verdict and against the party seeking judgment notwithstanding the verdict—must determine whether it appears that any substantial evidence supports the verdict. (Hasson v. Ford Motor Co. (1977) 19 Cal.3d 530, 546; Trujillo v. North County Transit Dist., supra, 63 Cal.App.4th at p. 284; Bank of America v. Superior Court (1990) 220 Cal.App.3d 613, 623-624.) In doing so, the trial court has no power to weigh the evidence or judge the credibility of witnesses. (Clemmer v. Hartford Insurance Co. (1978) 22 Cal.3d 865, 877; Hansen v. Sunnyside Products, Inc. (1997) 55 Cal.App.4th 1497, 1510; see 7 Witkin, Cal. Procedure (5th ed. 2008) Trial, § 437, pp. 509-510.) If there is any substantial evidence or reasonable inference to be drawn from the evidence in support of the verdict, the motion must be denied. (Wiley v. Southern Pacific Transportation Co. (1990) 220 Cal.App.3d 177, 190.) As our test on appeal is the same, regardless of whether we review the jury’s verdict or the trial court’s denial of the motion for judgment notwithstanding the verdict, we need not separately evaluate these issues.
Continuous use of an easement over a long period of time without the landowner’s interference is presumptive evidence of its existence. That presumption can be defeated by evidence of permissive use, which counters the adverse or hostile use required to establish a prescriptive easement. (See Warsaw, supra, 35 Cal.3d at pp. 571-572; Grant v. Ratliff, supra, 164 Cal.App.4th at pp. 1308, 1310; Applegate v. Ota, supra, 146 Cal.App.3d at pp. 708-709.) Permissive use, however long, cannot ripen into a prescriptive easement. (Matthiessen v. Grand, supra, 92 Cal.App. at p. 510; see Civ. Code, § 1008; see also 12 Witkin, Summary of Cal. Law, supra, Real Property, § 404, pp. 474-476 [no prescriptive easement if use is permissive].)
The issue of whether Terzian-Feliz’s use of the property was permissive—a matter of neighborly accommodation—rather than adverse was a question of fact to be determined on the basis of the surrounding circumstances and the parties’ relationship. (Warsaw, supra, 35 Cal.3d at p. 572; Taormino v. Denny (1970) 1 Cal.3d 679, 687.) Despite Terzian-Feliz’s claim of uncontroverted evidence of adverse use, we find evidence to support the jury’s implied finding that her use of the driveway across No. 40 was not adverse, but permissive.
Assuming arguendo that the jury found that the Scheuermanns made continuous use of the No. 40 driveway by July 1961—five years after they moved to No. 60—the burden of proof shifted to the Ajamians to show that this use was permissive rather than hostile. Joseph Scheuermann—the son of the earlier owners of No. 60—testified to his “impression” that the then-owners of No. 40 gave his parents permission to use their driveway to access to the rear of the Scheuermann house, as a neighborly gesture. Terzian-Feliz protests that this single witness’s “impression” cannot constitute sufficient evidence to support a finding of permissive use, particularly in the face of other, contrary evidence. We disagree for several reasons.
Of course, if we do not make this assumption, we could consider additional evidence tending to show permissive rather than hostile use occurring since July 1961 from numerous witnesses.
First, her argument displays a disregard for what constitutes relevant evidence. Any evidence that has any tendency in reason to prove or disprove a disputed fact is relevant. (Evid. Code, § 210.) Under this standard, even Joseph Scheuermann’s impression of the conduct of his parents and their neighbors many years earlier is relevant evidence tending to prove that the use of the No. 40 driveway was permissive.
Second, she ignores the fact that the testimony of a single witness can provide substantial evidence supporting a finding of fact. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614.) If there is substantial evidence to support the trial court’s finding—even if that evidence is contradicted—then we must affirm that finding. (See Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053, disapproved on another ground in DeBerard Properties, Ltd. v. Lim (1999) 20 Cal.4th 659, 668; Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632.)
Third, Terzian-Feliz would have us ignore a basic principle of the standard of review that we must apply when evaluating whether substantial evidence supports the jury’s verdict against her prescriptive easement claim. When applying the substantial evidence test, we have no power to assess the credibility of the evidence, but must assume that all evidence that has any tendency to support the jury’s verdict was found to be credible by the jurors. (Johnson v. Pratt & Whitney Canada, Inc. (1994) 28 Cal.App.4th 613, 622-623.) To the extent that Terzian-Feliz offered contrary evidence on the disputed issue, we must disregard it. (See Brewer v. Murphy, supra, 161 Cal.App.4th at p. 938.)
Terzian-Feliz had the overall burden of proving her claim of a prescriptive easement. She was properly required to prove this cause of action by clear and convincing evidence. (See pt. IV.C., ante.) The jury found that she did not do so. In view of the slight evidence of permissive use needed to support the jury verdict’s that Terzian-Feliz did not provide clear and convincing evidence of a prescriptive easement, we are satisfied that Joseph Scheuermann’s testimony alone—if given credence by the jury—was a sufficient basis on which to find permissive use. In the face of this evidence, we must uphold the jury’s verdict. (See, e.g., Brewer v. Murphy, supra, 161 Cal.App.4th at p. 938; Field-Escandon v. DeMann, supra, 204 Cal.App.3d at p. 235; Applegate v. Ota, supra, 146 Cal.App.3d at pp. 708-709.)
A neighborly accommodation is the antithesis of the hostile use required to establish a prescriptive easement. As there was substantial evidence to support a finding of permissive rather than hostile use, the jury’s verdict against Terzian-Feliz on her prescriptive easement cause of action was proper. (See Warsaw, supra, 35 Cal.3d at pp. 571-572; Grant v. Ratliff, supra, 164 Cal.App.4th at p. 1308; Applegate v. Ota, supra, 146 Cal.App.3d at p. 709.) Based on this conclusion that substantial evidence supported the jury’s finding that no prescriptive easement existed, the trial court properly denied Terzian-Feliz’s motion for judgment notwithstanding the jury’s verdict on this cause of action. (See, e.g., Wiley v. Southern Pacific Transportation Co., supra, 220 Cal.App.3d at p. 190.)
E. Bona Fide Purchasers
In a special verdict, the jury found both that Terzian-Feliz established no prescriptive easement and that the Ajamians were bona fide purchasers of their property and thus had an affirmative defense to any prescriptive easement finding in favor of Terzian-Feliz. On appeal, Terzian-Feliz argues that this status would not defeat her prescriptive easement and that the trial court’s contrary jury instruction prejudicially infected the verdict against her on this issue. As we have upheld the jury’s finding that Terzian-Feliz did not establish her right to a prescriptive easement, the issue of whether the Ajamians’ bona fide purchaser status would defeat a prescriptive easement is now moot.
V. IMPLIED EASEMENT
Fourth, Terzian-Feliz contends that the trial court erred when it granted the Ajamians’ motion for nonsuit on her cause of action for an implied easement over their driveway. The Ajamians moved for nonsuit on this cause of action, arguing that Terzian-Feliz offered no evidence of usage of the neighboring properties before title was divided. Initially, the trial court denied the motion for nonsuit on this cause of action, but by the end of trial, it agreed with the Ajamians that Terzian-Feliz offered insufficient evidence of prior usage to warrant jury instruction on an implied easement cause of action. Before deliberations, the jury was instructed that Terzian-Feliz’s claim of an implied easement was no longer at issue in the case.
The trial court’s grant of a nonsuit was proper only if judgment for the Ajamians on Terzian-Feliz’s implied easement cause of action was required as a matter of law. (See Carson, supra, 36 Cal.3d at pp. 838-839; Markowitz, supra, 142 Cal.App.4th at p. 520.) On appeal, we conduct an independent review on this question of law. (See Santa Barbara Pistachio, supra, 88 Cal.App.4th at p. 445.) We may not weigh evidence or assess credibility, but must accept all of Terzian-Feliz’s evidence as true. We draw all legitimate inferences in her favor and disregard all contradictory evidence. (See Carson, supra, 36 Cal.3d at pp. 838-839; Markowitz, supra, 142 Cal.App.4th at p. 520; Santa Barbara Pistachio, supra, 88 Cal.App.4th at pp. 444-445.) Terzian-Feliz was required to produce evidence supporting a logical inference in her favor, not merely speculation or conjecture. (See Markowitz, supra, 142 Cal.App.4th at p. 520; Alvarez v. Jacmar Pacific Pizza Corp., supra, 100 Cal.App.4th at p. 1209.)
The law of implied easements is clear. An easement will be implied if three conditions are shown to have existed at the time of conveyance of the property. First, the property owner conveyed or transferred a portion of the property to another. Second, the owner’s prior use of the property was such that the parties must have intended or believed that this use would continue. The existing use must either have been known to the grantor and grantee, or that existing use must have been so obviously and apparently permanent that these parties should have known of its use. Third, the easement must have been reasonably necessary to the use and benefit of the quasi-dominant tenement. (Tusher v. Gabrielsen (1998) 68 Cal.App.4th 131, 141.) The purpose of the doctrine of implied easements is to give effect to the actual intent of the parties, based on the totality of the circumstances. (Ibid.) An implied easement requires clear evidence that it was intended by the parties. (Id. at pp. 141-143.)
The Ajamians concede that the properties at No. 40 and No. 60 were once under common ownership. In 1954, the von Rotzes subdivided one parcel in a manner that created these two lots. The Ajamians contest the other two necessary elements of an implied easement—prior use and reasonable necessity. If we find that Terzian-Feliz presented no evidence on either of these contested elements, we must uphold the trial court’s grant of a nonsuit on the implied easement cause of action. (See Tusher v. Gabrielsen, supra, 68 Cal.App.4th at p. 141.)
When granting the Ajamians’ motion for nonsuit on Terzian-Feliz’s implied easement cause of action, the trial court found that she offered no evidence of prior use. Citing the topography of the area, Terzian-Feliz argues that the von Rotzes “must have” used the No. 40 driveway to access No. 60 and “must have” intended the owners of No. 60 to continue using the No. 40 driveway after the two lots were split from unitary ownership. This argument is not evidence, but mere speculation about what might have happened in the 1950’s before the subdivision occurred. (See Markowitz, supra, 142 Cal.App.4th at p. 520; Alvarez v. Jacmar Pacific Pizza Corp., supra, 100 Cal.App.4th at p. 1209.) Speculation cannot support an inference of prior use. This is particularly so because of the need for clear evidence of the von Rotzes’ intent to create an implied easement. (See Tusher v. Gabrielsen, supra, 68 Cal.App.4th at pp. 141-143.)
Terzian-Feliz cites evidence of use of the No. 40 driveway to access No. 60 that occurred after the two lots were subdivided. She offered no evidence that the von Rotzes needed or used the No. 40 driveway. In fact, there was no evidence that this driveway even existed when the two lots were subdivided. In the face of this complete dearth of evidence, the trial court’s nonsuit on the implied easement cause of action was clearly proper.
VI. AJAMIAN EASEMENTS
A. Prescriptive Easement
Terzian-Feliz challenges the jury’s determination quieting title to the prescriptive easement benefitting the Ajamians and burdening her property. The jury found that the Ajamians had a prescriptive easement to maintain a long narrow strip of Terzian-Feliz’s property. Part of this lies between Parcel 5 on one side and Terzian-Feliz’s concrete aggregate driveway and the rock wall on the other; a second part—an extension of the first—lies between a rock wall and the actual boundary between the two lots.
In her motion for judgment notwithstanding the verdict on the prescriptive easement cause of action, Terzian-Feliz argued that the right to pave the easement would prevent her—the property owner—from being able to use her property as she wished. She reasoned that any pavement that the Ajamians would place on her property would become a fixture on her property, and thus would become her property, for her to do with as she wished. (See Civ. Code, §§ 658, subd. 2, 660, 1013.) She also argued that the prescriptive easement gave the Ajamians the exclusive right to use that property, effectively excluding her from using it.
The trial court rejected her motion, finding irrelevant Terzian-Feliz’s argument that cement was a fixture on her property, given the fact of the Ajamians’ prescriptive easement. It reasoned that as the Ajamians had acquired a prescriptive easement to use the narrow strip of Terzian-Feliz’s property as part of their driveway, they had also acquired a duty and a right to maintain it. The trial court acknowledged that the Ajamians’ easement did not constitute ownership of the property, and allowed that Terzian-Feliz could continue to use this part of her property in any way that did not interfere with the Ajamians’ right to use it as their driveway, regardless of whether or not it was paved.
On appeal, Terzian-Feliz again challenges the prescriptive easement found by the jury to benefit the Ajamians. She argues that by giving the Ajamians the right to determine the appearance of part of her property over which they have a prescriptive easement—in essence, to pave it any way they want—the jury effectively gave them ownership of that parcel, rather than just a prescriptive easement.
The owner of an easement cannot change its character or materially increase the burden on the servient estate. (Ward v. City of Monrovia (1940) 16 Cal.2d 815, 822; Burris v. People’s Ditch Co. (1894) 104 Cal. 248, 252; Scruby v. Vintage Grapevine, Inc. (1995) 37 Cal.App.4th 697, 707.) However, it is also true that an easement carries with it rights essential to its use and enjoyment, such as the right to maintain and repair it. (Ward v. City of Monrovia, supra, 16 Cal.2d at pp. 821-822; Scruby v. Vintage Grapevine, Inc., supra, 37 Cal.App.4th at pp. 706-707; Williams v. Foster (1989) 216 Cal.App.3d 510, 522 fn. 9; City of Gilroy v. Kell (1924) 67 Cal.App. 734, 743 [prescriptive easement]; see Civ. Code, § 845, subd. (a).) The right to maintain and repair is not a material change to the easement. (See, e.g., Burris v. People’s Ditch Co., supra, 104 Cal. at p. 252 [bringing ditch easement to uniform grade did not materially increase burden on ditch owner].)
Terzian-Feliz also asserts again on appeal, that once the Ajamians pave the driveway, they place a fixture on her land that becomes hers. She argues that the jury improperly gave the Ajamians the right to place a fixture on her property, the appearance of which she—not they—should be entitled to determine. In support of this contention, Terzian-Feliz cites cases holding that an easement cannot be exclusive such that it precludes the owner of the servient property from using it. (See Harrison v. Welch (2004) 116 Cal.App.4th 1084, 1090-1094; Raab v. Casper (1975) 51 Cal.App.3d 866, 876-877.) An exclusive possession constitutes adverse possession of the property, not the mere use that characterizes an easement. (Harrison v. Welch, supra, 116 Cal.App.4th at p. 1091; Raab v. Casper, supra, 51 Cal.App.3d at pp. 876-877.)
These cases are factually distinguishable from the matter before us. Along with the prescriptive easement that borders and laps onto their driveway, the Ajamians acquired the right to maintain that easement. They did not acquire an exclusive right to use this strip of land. The trial court made clear in its order denying judgment notwithstanding the verdict that the prescriptive easement was not exclusive—that Terzian-Feliz retained the right to use the 18-inch wide part of her property that is subject to a prescriptive easement. We are satisfied that the prescriptive easements determined by the jury in this matter allow the Ajamians to use the disputed part of Terzian-Feliz’s property, not to possess it. As such, the case before us differs from the cases that Terzian-Feliz cites, in which the nominal owners of the prescriptive easement effectively obtained exclusive use of the property. (See Harrison v. Welch, supra, 116 Cal.App.4th at p. 1091; Raab v. Casper, supra, 51 Cal.App.3d at pp. 876-877.)
The jury heard evidence that the Ajamians repaved their driveway in 2006 to the same dimensions that it had been previously paved. While the line between a material and an immaterial change to an easement can be fine, the jury determination allowing the Ajamians to pave their prescriptive easement in a manner consistent with historic use authorized neither the addition of a fixture nor a material change to the easement, but merely an appropriate maintenance of it. (See, e.g., Raab v. Casper, supra, 51 Cal.App.3d at p. 876.) The maintenance of the prescriptive easements contemplated by the jury’s verdict did not increase the burden on Terzian-Feliz’s property. (See, e.g., Burris v. People’s Ditch Co., supra, 104 Cal. at p. 252.)
B. Express Easement
Terzian-Feliz also asks us to reverse the jury’s findings on the Ajamians’ declaratory relief cause of action on the express easement. The jury found that the language of the express easement for driveway purposes on Parcel 5 allowed the Ajamians to maintain and pave that parcel. She challenged this aspect of the jury’s verdict in her motion for judgment notwithstanding that verdict. In that motion, she argued that the issues relating to the express easement of Parcel 5 were questions of law that should not have been tendered to a jury. Terzian-Feliz reasoned that the issue was not whether the Ajamians were required to maintain the express easement, but whether she was entitled to require that any repaving of Parcel 5 be done in concrete aggregate to match her driveway rather than the asphalt that the Ajamians used for their driveway. She asked the trial court to vacate that part of the judgment.
The trial court denied the motion, explaining its view that the deed’s language granting the express easement over Parcel 5 was ambiguous. As such, it found proper admission of extrinsic evidence to determine whether the grant language included the right to pave and maintain this easement. It concluded that this dispute about the meaning of the easement language was a question of fact for the jury to resolve. The trial court also found substantial evidence to support the jury’s verdict, considering the alternative interpretations of the disputed language offered by each side.
On appeal, Terzian-Feliz argues that the jury erred by defining the express easement in a manner that includes the right to control the appearance of the driveway. This argument is based on much the same ground as her prescriptive easement claim of error. We reject it for the same reasons that we rejected her prescriptive easement claim of error. The jury’s verdict does not preclude Terzian-Feliz from using Parcel 5—it only vests the responsibility for maintaining that express easement in the Ajamians. We are satisfied that the maintenance contemplated by the jury’s verdict properly allows for use and enjoyment of a true easement, not an exclusive possession of Parcel 5.
The jury heard evidence that in 2006, the Ajamians repaved the Parcel 5 part of the No. 40 driveway in the same manner that it had always been paved. To allow the Ajamians to repave their express easement in a manner consistent with historic use was not a material change to the express easement, but merely maintenance of it. (See, e.g., Raab v. Casper, supra, 51 Cal.App.3d at p. 876.) Thus, we conclude that the trial court properly rejected Terzian-Feliz’s motion for judgment notwithstanding the verdict on the Ajamians’ declaratory relief cause of action.
Ultimately, Terzian-Feliz asserts that the Ajamians are not entitled to an easement to use part of her property unless they grant her a reciprocal right to use their driveway. She cites no authority for her claim of a right of reciprocity. She treats as alike proposed and established easements that are significantly different. The jury found that the Ajamians established their right to an easement over a narrow part of Terzian-Feliz’s property that has historically been included in their driveway, but that Terzian-Feliz did not establish her right to use the entire width of their driveway. We have upheld these separate determinations. We will not superimpose a rule of reciprocity that the law does not require.
The judgment is affirmed.
We concur: Ruvolo, P.J., Rivera, J.