Filed 10/28/22 The L.A. Wholesale Produce Market v. Atlas Capital Group CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion 

has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE LOS ANGELES WHOLESALE 

PRODUCE MARKET, LLC,

Plaintiff and Appellant,

v.

ATLAS CAPITAL GROUP, LLC, 

et al.,

Defendants and Appellants.

 B299991

 (Los Angeles County

 Super. Ct. No. BC628018)

APPEALS from a judgment and postjudgment order of the 

Superior Court of Los Angeles County, Robert S. Draper and Gail 

Feuer, Judges. Affirmed as modified.

Boren, Osher & Luftman, Stephen Z. Boren and Steven F. 

Kuehl for Plaintiff and Appellant The Los Angeles Wholesale 

Produce Market, LLC.

Carlton Fields, Ellyn S. Garofalo, Amir Kaltgrad; DLA Piper 

and Karen Hallock for Defendants and Appellants Atlas Capital 

Group, LLC and Alameda Square Owner LLC.

_______________________
2

This action concerns a dispute over access rights on 

adjacent parcels of property in downtown Los Angeles. Plaintiff 

The Los Angeles Wholesale Produce Market (LAWPM) operates a

historic produce market on Parcels 1 and 2. Defendants Atlas 

Capital Group LLC (Atlas) and Alameda Square Owner LLC

(Alameda) (collectively, Defendants) operate another historic 

produce market on neighboring Parcel A, and have redeveloped 

the property on neighboring Parcels B and C into a commercial 

development known as “Row DTLA.”1 A dispute arose between 

the parties over the scope of Defendants’ rights to use certain 

easements over Parcel 1 as a means of egress from Parcels B 

and C, and to remove an access gate operated by LAWPM. 

LAWPM thereafter filed this action against Defendants, 

alleging claims for declaratory relief, injunctive relief, quiet title, 

and breach of contract. The trial court entered judgment in favor 

of LAWPM on the declaratory relief, injunctive relief, and quiet 

title claims, and in favor of Alameda on the breach of contract 

claim. Both LAWPM and Defendants appeal from the judgment. 

LAWPM also appeals from a postjudgment award of attorneys’

fees to Alameda. For the reasons set forth below, we affirm the 

judgment, and modify Alameda’s fee award to strike certain 

amounts that were not consistent with the trial court’s ruling.

FACTUAL AND PROCEDURAL BACKGROUND

The Relevant Agreements

The parties’ rights with respect to the properties at issue in 

this case are governed by a series of written agreements between 

1 Atlas is a private equity company that invests in real 

estate projects across the country, and Alameda is organized by 

Atlas to hold title to the Row DTLA parcels at issue in this case.
3

their predecessors-in-interest. The following is a summary of the 

relevant agreements:

In 1982, Southern Pacific Transportation Company (SPTC),

then the fee owner of Parcel 12 as well as Parcels A, B, and C, 

entered into a ground lease agreement with the Los Angeles 

Wholesale Produce Market Development Corporation 

(LAWPMDC), whereby SPTC leased Parcel 1 to LAWPMDC 

(the “1982 Ground Lease”). The following year, the 1982 Ground 

Lease was amended to provide that SPTC, as the lessor of Parcel 

1, reserved the non-exclusive right to use a certain portion of the

leased premises, referred to as the “Joint Use Area,” for 

“pedestrian and vehicular ingress to and egress from Parcels A, 

B, and C” (the “1983 Amendment”). Plaintiff LAWPM is the 

assignee of, and successor to, LAWPMDC’s interest in the 1982 

Ground Lease. The lease term expires in 2048.

In 1983, SPTC, as the owner of Parcel 1 and Parcels A, B, 

and C, entered into a reciprocal easement agreement with the 

Community Redevelopment Agency of the City of Los Angeles

(CRA), which then owned Parcel 2, whereby SPTC and CRA 

granted each other, and their respective successors and assigns, 

easements over certain sections of Eighth Street between Central 

Avenue and Alameda Street (the “1983 Reciprocal Easement 

Agreement”). These sections of Eighth Street, which bordered 

Parcel 1 and Parcel A to the north and Parcel 2 to the south, 

previously had been encumbered with public street easements

2 Parcel 1 is sometimes referred to as Parcel D in the 

relevant agreements.
4

that were being vacated by the City of Los Angeles. Subject 

to the terms of the 1983 Reciprocal Easement Agreement, the

vacated portions of Eighth Street became a private road under 

the control of the owners of the respective bordering properties. 

NewLowe Properties (NewLowe) later became the fee

owner of Parcel 1 and Parcels A, B, and C. In May 1991, 

NewLowe conveyed its fee simple interest in Parcels B and C 

to Rykoff-Sexton, Inc. (Rykoff) pursuant to a grant deed (the 

“1991 Grant Deed”), while retaining ownership of Parcel 1

and Parcel A. As part of the 1991 Grant Deed, NewLowe also

conveyed to Rykoff certain limited easements over Parcel 1 and 

Parcel A for the benefit of Parcels B and C, including three 

easements known as (1) the Eighth Street Easement, (2) the 

Truck Easement, and (3) the Track Street West Easement.

A concurrently recorded easement agreement between 

NewLowe and Rykoff dated May 8, 1991 (the “1991 Easement 

Agreement”) “set forth . . . all of the covenants and conditions 

respecting the use, maintenance and operation of the 

Easements.” The 1991 Easement Agreement stated that “[t]he 

provisions of this Agreement shall inure to the benefit of, and 

shall bind the Parties and their respective personal 

representatives, successors and assigns.” It also provided that 

“[a]ll of the covenants, agreements, conditions and restrictions set 

forth in this Agreement are intended to be and shall be construed 

as covenants running with the land, binding upon, inuring to 

the benefit of and enforceable by the Parties hereto and all 

subsequent owners or lessees of, or any party having an interest 

in, their respective Parcels or any parts thereof.” 
5

1. The Eighth Street Easement

With respect to the Eighth Street Easement, the 1991 

Easement Agreement provided that “Rykoff shall use the Eighth 

Street Easement solely as a means of: (1) ingress to or egress 

from the Rykoff Parcel for trucks and other vehicles via the Truck 

Easement . . . or (2) ingress for trucks and other vehicles to the 

Rykoff Parcel via the Track Street West Easement.” The 1991 

Easement Agreement also stated that “Rykoff’s use of the Eighth 

Street Easement Area shall be non-exclusive, and in common 

with the use as a roadway by NewLowe.”

2. The Truck Easement

With respect to the Truck Easement, the 1991 Grant Deed 

conveyed to Rykoff “[a] non-exclusive easement (the ‘Truck 

Easement’) for vehicular and truck ingress and egress over a 

strip of land at least 20 feet in width.” The 1991 Easement 

Agreement restricted Rykoff’s use of the Truck Easement, in 

pertinent part, as follows: “Rykoff shall use the Truck Easement 

solely as a secondary right-of-way for trucks entering or leaving

the Rykoff Parcel, and not for any other purpose; in particular, 

Rykoff shall not have the right to use the area within such 

Easement . . . as a primary means of ingress or egress for trucks 

or any other vehicles to and from the Rykoff Parcel.”

3. The Track Street West Easement 

With respect to the Track Street West Easement, the 1991 

Grant Deed conveyed to Rykoff “a non-exclusive easement (the 

‘Track Street West Easement’) for vehicular right-of-way which 

shall be one-way from Eighth Street to Seventh Street (but such 

traffic direction may be reversed in accordance with Section 1.8 of 
6

the Easement Agreement to be recorded concurrently herewith) 

over . . . [a] ten-foot wide strip of land.”3 

The 1991 Easement Agreement also placed several 

restrictions on Rykoff’s use of the Track Street West Easement. 

It particular, it provided that “Rykoff’s use of the Track Street 

West Easement shall be limited to the hours of 8:00 a.m. to 12:00 

midnight, Pacific Time, each day, and shall be subject to the 

following restrictions: [¶] (i) such Easement shall serve as a 

primary means of ingress and egress only for trucks and other 

vehicles entering the Rykoff Parcel for purpose of loading or 

unloading at the 15 foot wide strip of land within the 

northwesterly portion of Parcel B of the Rykoff Parcel . . . (the 

‘Tank Car Loading Area’); and [¶] (ii) such Easement shall serve 

as a secondary means of ingress and egress for trucks and other 

vehicles entering the Rykoff Parcel for purposes other than 

loading or unloading in the Tank Car Loading Area (it being the 

intention of the Parties that Rykoff will use all reasonable 

efforts to utilize Alameda and Seventh Street as the usual 

means of access to all of the Rykoff Parcel except the Tank 

Car Loading Area).” The 1991 Easement Agreement further 

stated that “Rykoff shall not use the area of the Track Street

Easement (the ‘Track Street Easement Area’) for any other 

3 Section 1.8 of the 1991 Easement Agreement stated, 

in relevant part, that “[a]t any time after one year from the 

recordation of the Deed (but not more than once in any 12-month 

period), NewLowe shall have the right to change the direction 

of the one-way flow of traffic over the Track Street West 

[Easement]” provided that “[n]o such change shall be made 

without Rykoff’s prior written consent, which consent shall not be 

unreasonably withheld.”
7

purpose or at any other time including: (i) as a means of egress 

from the Rykoff Parcel or (ii) for the parking, queuing, loading or 

unloading of trucks or any other vehicles, or in any other manner 

which would materially obstruct the use by NewLowe of the 

Track Street West Easement Area as a means of ingress and 

egress into and out of the NewLowe Parcel.”

In October 1991, NewLowe conveyed its fee simple interest 

in Parcel 1 to O Hill Properties, The O Hill Company, Bear Brand 

Ranch Company, and Isador C. Myers (collectively, O Hill) 

pursuant to a grant deed, while retaining ownership of Parcel A. 

In a concurrently recorded assignment agreement dated October 

10, 1991, O Hill assumed the rights and obligations of NewLowe

under the 1982 Ground Lease.

In 1992, NewLowe, then the owner of Parcel A, filed a 

lawsuit against LAWPMDC, then the lessee of Parcel 1, and 

other affiliated parties (collectively, the LA Market Group). On 

December 3, 1993, NewLowe and the LA Market Group entered 

into a Settlement, Mutual Access, and Easement Modification 

Agreement (the “1993 Settlement Agreement”) to resolve their 

dispute and to “modify their rights, interests and obligations with 

respect to the Original 8th St. Easement and Original Joint Use 

Area.” 

Among other provisions, the parties to the 1993 Settlement 

Agreement agreed to change the “Original Joint Use Area” to 

three new areas known as the “LA Market Use Area,” the 

“NewLowe Use Area,” and the “New Joint Access Area.” 

NewLowe released all rights and interest in the LA Market Use 

Area for the duration of the 1982 Ground Lease, and the LA 

Market Group released all rights and interest in the NewLowe 
8

Use Area. With respect to the New Joint Access Area, the parties 

agreed, in relevant part, as follows: “The portion of the Original 

Joint Use Area crosshatched on Exhibit ‘10’ hereto shall be 

deemed to be the New Joint Access Area. The New Joint Access 

Area shall be used for ingress and egress to and from the 7th 

St. Market and for truck maneuvering by NewLowe and its 

Representatives. The LA Market Tenants shall have the 

nonexclusive right to use the New Joint Access Area solely for 

ingress and egress to and from the 7th St. Market, solely to the 

extent they are permitted to have access to the 7th St. Market 

Common Area. . . . Rykoff-Sexton, Inc. (‘Rykoff’) and SPTC also 

shall have nonexclusive access rights over the New Joint Access 

Area, solely to the extent required under written agreements 

recorded prior to the Execution Date.”4 

Section 8 of the 1993 Settlement Agreement also included 

the following provision regarding certain gates located on 8th 

Street: “LA Market Group shall maintain the existing gate at the 

intersection of the former 8th Street and Central Avenue (the 

‘8th-Central Gate’) and the gate at Alameda Street and the 

former 8th Street and (the ‘Alameda Gate’ and, jointly with the 

8th-Central Gate, the ‘Gates’), at its sole cost and expense. LA 

Market Group shall keep the Gates open during the following 

hours and days of business operations: 10:00 p.m. each day of the 

week and closing at 12:00 p.m. Sunday through Friday, and 

4 Exhibit 10 to the 1993 Settlement Agreement showed the 

locations of the LA Market Use Area, NewLowe Use Area, and 

New Joint Access Area, each of which was located on Parcel 1. 

Exhibit 10 did not show the location of the Original Joint Use 

Area, or any of the easements granted to Rykoff in the 1991

Grant Deed. 
9

opening 10:00 p.m. and closing at 10:00 a.m. Saturday, excluding 

holidays observed by both the LA Market and the 7th St. Market 

(‘Normal Hours’). All installation, maintenance and other costs 

associated with the Gates shall be borne by LA Market Group. 

All maintenance costs, insurance costs, property taxes and other 

costs and expenses incurred in connection with the Reduced 

Shared 8th St. Area other than in connection with the 8thCentral Gate shall be allocated among the parties in the manner 

set forth in the REA.”

Section 8 of the 1993 Settlement Agreement further 

provided: “NewLowe and LAWPM each shall have the right, but 

not the obligation, to reconfigure the 8th-Central Gate in any of 

the locations shown on Exhibit ‘9’ hereto, upon 14 days’ prior 

written notice to the other party of its election to do so and at the 

sole cost of the electing party. The electing party shall thereafter 

be responsible for the costs of removing the original fence and all 

installation, maintenance and other costs incurred in connection 

with the reconfigured fence. The electing party shall keep the 

reconfigured fence open during Normal Hours.” 

Current Ownership of the Properties

Alameda Produce Market, Inc. subsequently acquired a 

fee simple ownership interest in Parcel A from NewLowe, and 

in Parcels B and C from Rykoff. In 2014, the successor-ininterest to Alameda Product Market, Inc., transferred its fee 

simple ownership interest in Parcels A, B, and C to defendant 

Alameda. Alameda is the current fee owner of Parcels A, B, and 

C.

O Hill remains the current fee owner of Parcel 1 subject to 

the 1982 Ground Lease. In 2003, the City of Los Angeles granted 

a fee simple ownership interest in Parcel 2 to LAWPM. LAWPM 
10

is the current lessee of Parcel 1, and the current fee owner of 

Parcel 2.

Current Dispute Between the Parties

LAWPM operates a large produce market on Parcels 1 

and 2. Alameda currently operates a smaller produce market, 

the 7th Street Market, on Parcel A. Alameda has redeveloped 

Parcels B and C into a mixed-use commercial development known 

as Row DTLA, which houses offices, restaurants, and retail 

shops. As part of the Row DTLA project, Alameda constructed 

a 10-story parking garage on Parcel B. Alameda thereafter 

sought to allow vehicles exiting the parking garage on Parcel B 

to access Central Avenue from 8th Street via the easements that 

crossed over Parcel 1. Since 1986, however, access to Central 

Avenue from 8th Street had been restricted by the 8th-Central 

Gate, which LAWPM kept open during normal business hours for 

its produce market and locked at all other times. 

In a letter dated March 25, 2016, Jenni Harris, Atlas’s

Director of Property Management, provided LAWPM with the

terms of a proposal for allowing Row DTLA unrestricted access to 

Central Avenue through the 8th-Central Gate. As set forth in 

that letter, if LAWPM agreed (1) to give Row DTLA keys to the 

8th-Central Gate and certain other interior gates, (2) to share 

the costs of a security guard to man the 8th-Central Gate during 

the hours that it was normally locked, and (3) to permit the 

installation of new gate along the New Joint Access Area, then 

Row DTLA would allow LAWPM to continue operating the 8thCentral Gate in its current location, and would relinquish its

rights under the 1993 Settlement Agreement to remove and 

relocate the 8th-Central Gate. If, however, LAWPM did not 

agree to allow Row DTLA to have unrestricted access to Central 
11

Avenue, then Row DTLA would exercise its right to remove the 

8th-Central Gate and relocate it in accordance with the 1993 

Settlement Agreement. It is undisputed that LAWPM did not 

agree to these proposed terms. 

In June 2016, the parties’ respective counsel exchanged 

written correspondence about the 8th-Central Gate. In a letter 

to LAWPM’s counsel dated June 17, 2016, Alameda’s counsel 

provided notice that “if LAWPM fails to agree to our client’s most 

recent offer . . . by the close of business Wednesday, June 22, 

2016, our client will remove the [8th-Central] Gate in accord with 

Section 8 of the [1993] Settlement Agreement.” In a response

letter dated June 22, 2016, LAWPM’s counsel asserted that “[t]he 

current gate location and hours of operation have satisfied and 

continue to satisfy the needs of the only intended users of the 

[8th-Central] Gate – the LA Wholesale Produce Market . . . and 

the 7th Street Market; relocation is neither necessary nor 

warranted.” LAWPM’s counsel also stated that “LAWPM 

continues to strongly disagree that your client has the right 

pursuant to the 1993 Settlement . . . Agreement or otherwise 

to remove, relocate, or reconfigure the [8th-Central] Gate.”

It is undisputed that, on July 10, 2016, Alameda removed 

the 8th-Central Gate without LAWPM’s consent. It is also 

undisputed that Alameda did not relocate or reconfigure the 8thCentral Gate in any of the locations shown on exhibit 9 of the 

1993 Settlement Agreement.

LAWPM’s Lawsuit Against Defendants

On July 25, 2016, LAWPM filed this action against 

Alameda and Atlas. LAWPM’s first amended complaint alleged 

causes of action for (1) declaratory relief regarding the Truck 

Easement; (2) declaratory relief regarding the Track Street West 
12

Easement; (3) quiet title, (4) injunctive relief, and (5) breach of 

written contract. The first through fourth causes of action 

concerned the parties’ rights with respect to the easements

granted pursuant to the 1991 Grant Deed and the 1991 

Easement Agreement. The fifth cause of action pertained to

Alameda’s alleged breach of the 1993 Settlement Agreement by

failing to pay security costs incurred by LAWPM in connection 

with the removal of the 8th-Central Gate.5

On August 16, 2017, the trial court granted LAWPM’s 

motion for summary adjudication as to the first and fourth 

causes of action, and denied the motion as to the second, 

third, and fifth causes of action. 

As to the first cause of action for declaratory relief 

regarding the Truck Easement, the court entered declaratory 

relief as follows: “With respect to the Truck Easement, . . . (1) 

Defendants’ rights in and to the Truck Easement are limited to 

a secondary right-of-way for trucks entering or leaving ‘Parcel 

B’ and ‘Parcel C’ . . .; (2) the Truck Easement does not grant 

Defendants a primary means of ingress or egress to or from 

‘Parcel B’ and ‘Parcel C’ for trucks; and (3) the Truck Easement 

does not grant Defendants ingress or egress to or from ‘Parcel B’ 

and ‘Parcel C’ for any other non-truck vehicles or pedestrian 

traffic.” 

As to the fourth cause of action for injunctive relief, the 

court issued a permanent injunction that prohibited Defendants

5 The fifth cause of action for breach of contract was alleged 

against Alameda only.
13

from: (1) “utilizing the Truck Easement . . . for any purpose other 

than as a secondary right-of-way for trucks entering or leaving 

Parcels B and C”; and (2) “utilizing the Track Street West 

Easement . . . for any purpose other than as a primary means of 

access for trucks and other vehicles entering Parcels B and C for 

purposes of loading or unloading at the . . . ‘Tank Car Loading 

Area’ . . . , or as a secondary means of ingress and egress for 

trucks and other vehicles entering Parcels B and C for purposes 

other than loading or unloading in the Tank Car Loading Area.”

In November 2017, the trial court held a bench trial on the 

second cause of action for declaratory relief regarding the Track 

Street West Easement and the third cause of action for quiet 

title. On December 15, 2017, the court issued a tentative 

statement of decision in favor of LAWPM, which became the

final statement of decision. One of the central disputed issues 

at the trial was whether, under the 1991 Grant Deed and 1991

Easement Agreement, LAWPM’s consent was required for 

Defendants to reverse the flow of traffic on the one-way Track 

Street West Easement from a northeast to a southwest flow.7 In 

its statement of decision, the court found that LAWPM’s consent 

6 On its own motion, the trial court bifurcated the trial on 

the equitable and legal claims, and ordered that a bench trial on

the equitable claims would occur first.

7 In order for vehicles exiting the Row DTLA parking 

garage on Parcel B to access Central Avenue from Eighth Street,

as desired by Defendants, the flow of traffic on the Track Street 

West Easement would have to be reversed to a southwest flow.
14

to reverse the flow of traffic on the Track Street West Easement 

was required, and that LAWPM had not provided such consent.

As to the second cause of action for declaratory relief 

regarding the Track Street West Easement, the court entered 

declaratory relief as follows: “Defendants’ rights in and to the 

Track Street West Easement . . . are (1) limited to the uses set 

forth in the 1991 Grant Deed and Section 1.3 of the 1991 

Easement Agreement; and (2) during the period of LAWPM’s 

lease of Parcel 1, the flow of one-way traffic on the Track Street 

West Easement shall be from the southwest to northeast unless 

Alameda (or other successor-in-interest to Parcel A) and LAWPM 

(or other successor-in-interest to the lease to Parcel 1) agree in 

writing to change the flow of one-way traffic to a southwest flow 

pursuant to Section 1.8 of the 1991 Easement Agreement.”

As to the third cause of action for quiet title, the court 

found that, because LAWPM had prevailed on its declaratory 

relief claims regarding the Truck Easement and the Track Street 

West Easement, LAWPM also had prevailed on its quiet title 

claim. The court granted LAWPM declaratory and injunctive 

relief, as set forth in the statement of decision and the court’s 

prior order on LAWPM’s motion for summary adjudication.

In October 2018, the fifth cause of action for breach of 

contract was tried before a jury.8 At the conclusion of the trial, 

8 In a pretrial conference with counsel, the trial court noted 

that the proper interpretation of a contract was a question of law 

for the court unless there was conflicting extrinsic evidence on

the contract’s meaning. However, the court stated that “it still

would be helpful for everybody to get a jury verdict” as to the 

amount of damages because the losing party was likely to appeal 
15

the jury rendered special verdict findings in favor of Alameda 

with respect to both liability and damages. As to liability, the 

jury found that Alameda was not required under the 1993 

Settlement Agreement to pay for any additional security services

that LAWPM incurred as a result of the removal of the 8thCentral Gate. As to the amount of any damages, the jury found 

that the cost of any additional security services that LAWPM 

incurred as a result of the removal of the 8th-Central gate was 

$0.9

Following the jury’s special verdict, the trial court ruled 

that the question of Alameda’s liability for breach of contract was 

a matter for the court to decide because no extrinsic evidence had 

been presented at the jury trial relevant to interpretation of the 

1993 Settlement Agreement. The parties submitted extensive 

briefing on the question of liability, and the court held multiple 

hearings on the matter. 

The court ultimately found that Alameda was not liable for 

breach of contract because LAWPM had prevented Alameda from

reconfiguring the 8th-Central Gate in accordance with the 1993 

Settlement Agreement. In making this finding, the court relied 

on the June 2016 correspondence between the parties’ respective 

counsel, which had been admitted at the jury trial over LAWPM’s 

any finding as to liability, and thus, “why not have the jury 

decide the thing we all agree that the jury has to decide[.]”

9 As discussed in greater detail below, the jury was asked 

to provide an answer as to the amount of additional security 

costs incurred by LAWPM, irrespective of the jury’s prior 

determination of whether Alameda was required to pay those 

costs.
16

objections, for the limited purpose of showing the positions of the 

parties at that time. The court explained that Alameda would 

have breached the agreement if it had simply removed the 8thCentral gate and done nothing else; however, the attorney 

correspondence showed that Alameda offered to install a new 

gate in accordance with the 1993 Settlement Agreement, and by 

refusing that offer, LAWPM had prohibited Alameda from doing 

so. The court also found that, independent of its finding on 

liability, Alameda was entitled to judgment on the breach of 

contract claim because the jury found that LAWPM did not 

incur any additional security costs as a result of the removal 

of the 8th-Central gate.

On May 14, 2019, the trial court entered judgment in 

favor of LAWPM on the first through fourth cases of action for 

declaratory relief, injunctive relief, and quiet title. The court 

entered judgment in favor of Alameda on the fifth cause of 

action for breach of contract.

Both LAWPM and Defendants thereafter moved for a

new trial. In its motion, LAWPM requested a new trial on 

the breach of contract claim. LAWPM contended, among other 

arguments, that the jury instructions were misleading and 

confusing because they were inconsistent with the special verdict 

form. In their motion, Defendants sought a new trial on the 

declaratory relief and quiet title claims. Defendants specifically

challenged the trial court’s finding that the evidence failed to 

establish the location of the Joint Use Area, which Defendants 

claimed was relevant to LAWPM’s standing to enforce the 

restrictions on the Track Street West Easement. The trial court 

denied both new trial motions. 
17

Both LAWPM and Defendants also filed motions for 

attorneys’ fees. The trial court awarded LAWPM attorneys’

fees in the amount of $1,061,060.25 as the prevailing party on 

the first through fourth causes of action. The court awarded 

Alameda attorneys’ fees in the amount of $804,461.20 as the 

prevailing party on the fifth cause of action. 

LAWPM filed an appeal from the judgment entered in 

favor of Alameda on the fifth cause of action, and an appeal from 

the postjudgment order awarding attorneys’ fees to Alameda.

Defendants filed a cross-appeal from the judgment entered in 

favor of LAWPM on the first through fourth causes of action.

We granted LAWPM’s motion to consolidate these appeals.

DISCUSSION

LAWPM’s Appeal from the Judgment in Favor of 

Alameda on the Fifth Cause of Action

In its appeal from the judgment entered in favor of 

Alameda on the fifth cause of action for breach of contract, 

LAWPM challenges both the trial court’s finding of no liability 

and the jury’s finding of no damages. 

As to liability, LAWPM claims that (1) the evidence was 

insufficient to support the trial court’s finding that Alameda did 

not breach the 1993 Settlement Agreement because LAWPM 

prevented Alameda from performing under the contract; and 

(2) the trial court erred in admitting into evidence and relying

on the written correspondence between the parties’ attorneys

to find that Alameda was not liable for breach of contract. 

As to damages, LAWPM contends that (1) the evidence 

was insufficient to support the jury’s special verdict finding that

LAWPM did not suffer any damages; (2) the jury instructions and 
18

the special verdict form were misleading and confusing because 

they were inconsistent with one another; and (3) the trial court 

erred in refusing to allow LAWPM to display a demonstrative 

exhibit that included simple calculations of the security costs it

had incurred as a result of the removal of the 8th-Central Gate. 

We conclude that LAWPM has failed to demonstrate 

any reversible error with respect to the jury’s special verdict 

finding that LAWPM did not suffer damages. Because the jury’s 

finding as to damages provides a sufficient independent basis for 

affirming the judgment in favor of Alameda on the fifth cause of 

action, we do not address LAWPM’s arguments regarding the

trial court’s separate finding as to liability. 

1. Jury Trial Evidence

At the jury trial on the breach of contract claim, LAWPM 

presented the testimony of Richard Gardner to prove that it

sustained damages as a result of Alameda’s removal of the

8th-Central Gate. Gardner testified that his company manages 

LAWPM, and is in charge of security for the market. The normal 

business hours of the market are 10:00 p.m. to 12:00 p.m. 

Monday through Friday. The market closes at 12:00 p.m. on

Saturday and reopens at 10:00 p.m. on Sunday. The 8th-Central 

Gate was installed when LAWPM opened in 1986, and had been 

in place continuously until Alameda removed the gate on July 10, 

2016. Prior to its removal, the 8th-Central Gate was open when 

the market was open, and was locked when the market was 

closed. A security guard was stationed at the gate only during 

the hours that the market was open.

Gardner testified that, due to increased security concerns 

stemming from the removal of the 8th-Central Gate, LAWPM has 
19

been required to keep a security guard stationed at the former 

location of the gate 24 hours a day, seven days a week. A 24-hour 

security guard was added to that location immediately following

the removal of the gate. Gardner also testified that he personally

reviews and pays the security invoices on behalf of LAWPM. 

According to Gardner, LAWPM needed a security guard for an 

additional 72 hours per week as a result of the removal of the 

8th-Central Gate. From July 10, 2016 to July 15, 2018, the cost 

of the additional security was $16.85 per regular hour, and 

$25.28 per holiday hour. On July 15, 2018, this amount 

increased to $21.60 per regular hour and $32.40 per holiday 

hour because LAWPM changed security companies. Based upon 

these hours and rates, the total amount that LAWPM had paid 

for additional security to date as a result of the removal of the 

8th-Central Gate was $152,323.72.

Gardner further testified that, in a letter to Alameda’s 

counsel dated December 14, 2016, LAWPM demanded payment 

for the additional security costs it had incurred through that date

due to the removal of the 8th-Central Gate. LAWPM’s demand 

letter attached a one-page spreadsheet showing the hourly rates, 

weekly hours, and total amount it had paid for the additional 

security. Gardner confirmed that he reviewed the spreadsheet 

before it was sent with the demand letter, and that the hours,

rates, and calculations included in the document were correct. It 

is undisputed that Alameda never paid any of the security costs 

demanded by LAWPM in connection with the 8th-Central Gate. 

On cross-examination, Gardner acknowledged that the 

spreadsheet that was attached to LAWPM’s December 14, 2016 

demand letter was prepared by his assistant, and that he did not 

know what documents, if any, the assistant had used to prepare 
20

the spreadsheet. Although Gardner “looked” at the spreadsheet 

before it was sent, he “didn’t do the math” himself or review the 

invoices submitted by the security company. Gardner also did 

not know what type of records the security company provided to 

LAWPM to substantiate its bills for service. In addition, Gardner 

admitted that he did not know how many roving security guards 

were present at LAWPM during the hours that the market was

open or closed. Apart from the security that was added at the 

former location of the 8th-Central Gate, Gardner also did not 

know whether the total number of security guards present at 

LAWPM at any given time had changed since the gate’s removal.

During her testimony, Harris, Atlas’s Director of Property 

Management, acknowledged that a regular rate of $16.85 and a 

holiday rate of $25.28 were not unreasonable hourly rates of pay 

for security guards, and that these rates were within the range 

that Defendants paid to the security guards on their properties. 

Harris testified, however, that LAWPM never provided 

Defendants with invoices showing the actual amounts that 

LAWPM had paid for additional security as a result of the 

removal of the 8th-Central Gate. 

2. Jury Instructions and Special Verdict

At the close of the evidence, the jury was instructed on the 

breach of contract claim with, among other standard instructions, 

CACI Nos. 300, 303, and 350. CACI No. 300 instructed the jury: 

“The Los Angeles Wholesale Produce Market claims that its prior 

owner and Alameda Square Owner’s prior owner entered into a 

contract . . . which outlined the parties’ rights and responsibilities 

with respect to a gate known as the 8th-Central Gate. [¶] The 

Los Angeles Wholesale Produce Market claims that defendant 

Alameda Square Owner breached this contract by failing to pay 
21

reasonably necessary additional security costs incurred by the 

Los Angeles Wholesale Produce Market in connection with 

Alameda Square Owner’s removal of the 8th-Central Gate. [¶]

Alameda Square Owner denies these claims.”

CACI No. 303 set forth the essential elements of the breach 

of contract claim as follows: “To recover damages from Alameda 

Square Owner for breach of contract, the Los Angeles Wholesale 

Produce Market must prove all of the following: [¶] 1[.] That 

Alameda Square Owner failed to do something that the contract 

required it to do; [¶] 2[.] That the Los Angeles Wholesale Produce 

Market was harmed by Alameda Square Owner’s breach of 

contract; and [¶] 3[.] That Alameda Square Owner’s breach of 

contract was a substantial factor in causing the Los Angeles 

Wholesale Produce Market’s harm.

CACI No. 350 on damages for breach of contract provided, 

in relevant part: “If you decide that the Los Angeles Wholesale 

Produce Market has proved its claim against Alameda Square 

Owner for breach of contract, you also must decide how much 

money will reasonably compensate the Los Angeles Wholesale 

Produce Market for the harm caused by the breach. This 

compensation is called ‘damages.’ The purpose of such damages 

is to put the Los Angeles Wholesale Produce Market in as good a 

position as it would have been if Alameda Square Owner had 

performed as promised. [¶] To recover damages for any harm, 

the Los Angeles Wholesale Produce Market must prove that

when the contract was made, both parties knew or could 

reasonably have foreseen that the harm was likely to occur in the 

ordinary course of events as a result of the breach of contract. . . .

[¶] The Los Angeles Wholesale Produce Market claims damages 
22

for additional security costs incurred as a result of Alameda 

Square Owner’s removal of the 8th-Central Gate.”

The jury also was provided with a three-question special 

verdict form that had been amended by the trial court and 

approved by counsel for LAWPM.

10 The first question on the 

verdict form asked the jury: “1. Was Alameda Square Owner 

required under the 1993 Agreement to pay for any additional 

security services the Los Angeles Wholesale Produce Market 

incurred as a result of the removal of the 8th-Central gate?” By a 

nine to three vote, the jury answered “No” in response to question 

1. 

The verdict form next asked the jury: “Whether your 

answer to question 1 is yes or no: 2. What is the cost, if any, of 

additional security services [t]he Los Angeles Wholesale Produce 

[Market] incurred as a result of the removal of the 8th-Central 

gate?” By a nine to three vote, the jury answered “$0” in 

response to question 2.

The third question on the verdict form concerned the

mitigation of damages by LAWPM. Because the verdict form 

instructed the jury not to answer any further questions if its 

answer to question 2 was zero, the jury did not respond to

question 3.

10 Although the record does not include any of the verdict 

forms originally proposed by the parties, it appears that both 

LAWPM and Defendants submitted special verdict forms to the 

trial court for approval, and that the trial court made revisions 

that resulted in the amended special verdict form that was

ultimately given to the jury. While defense counsel objected to 

certain language in the amended verdict form, LAWPM’s counsel 

told the court, “Your Honor, we’re fine with the verdict form.”
23

LAWPM first challenges the sufficiency of the evidence 

supporting the jury’s special verdict finding that the cost of any 

additional security services that LAWPM incurred as a result 

of the removal of the 8th-Central Gate was zero. Specifically, 

LAWPM contends that the undisputed evidence established 

that it incurred $152,323.72 in additional security costs as a 

result of the removal of the gate, and thus, the jury’s finding of 

no damages was not supported by substantial evidence.

“The plaintiff in a breach of contract action has the burden 

of proving nonspeculative damages with reasonable certainty.” 

(Copenbarger v. Morris Cerullo World Evangelism, Inc. (2018) 29 

Cal.App.5th 1, 11.) Proof of damages is an essential element of 

a breach of contract claim. (Id. at p. 15; Pech v. Morgan (2021) 

61 Cal.App.5th 841, 855.) “No damages can be recovered for a 

breach of contract which are not clearly ascertainable in both 

their nature and origin.” (Civ. Code, § 3301.)

“ ‘In a case where the trier of fact has determined that 

the party with the burden of proof did not carry its burden and 

that party appeals, “it is misleading to characterize the failureof-proof issue as whether substantial evidence supports the 

judgment.” [Citations.] Instead, “where the issue on appeal 

turns on a failure of proof at trial, the question for a reviewing 

court becomes whether the evidence compels a finding in favor 

of the appellant as a matter of law.” [Citation.] Specifically, we 

ask “whether the appellant’s evidence was (1) ‘uncontradicted 

and unimpeached’ and (2) ‘of such a character and weight as 

to leave no room for a judicial determination that it was 

insufficient to support a finding.’ ” ’ ” (Estes v. Eaton Corp. (2020)
24

51 Cal.App.5th 636, 651; accord, Ajaxo, Inc. v. E*Trade Financial 

Corp. (2020) 48 Cal.App.5th 129, 163-164.) “This is ‘an onerous 

standard’ [citation] and one that is ‘almost impossible’ for a losing 

plaintiff to meet, because unless the trier of fact made specific

factual findings in favor of the losing plaintiff, we presume the 

trier of fact concluded that ‘plaintiff’s evidence lacks sufficient 

weight and credibility to carry the burden of proof.’ ” (Estes, at p. 

651.)

Here, LAWPM bore the burden of proving that it sustained 

damages as a result of Alameda’s breach of the 1993 Settlement 

Agreement. At trial, LAWPM’s proof of damages came solely 

from the testimony of Gardner. Gardner testified that LAWPM 

incurred a total of $152,323.72 in additional security costs as a 

result of the removal of the 8th-Central Gate. He also testified 

that this sum was calculated by multiplying the applicable hourly 

rate that LAWPM paid to its security guards by the additional 

hours that were required to keep a 24-hour security guard 

stationed at the former location of the 8th-Central Gate. 

LAWPM argues that Gardner’s testimony provided

uncontroverted evidence to support its damages claim. It is 

well-established, however, that “ ‘[s]o long as the trier of fact 

does not act arbitrarily and has a rational ground for doing so, it 

may reject the testimony of a witness even though the witness is 

uncontradicted. [Citations.] Consequently, the testimony of a 

witness which has been rejected by the trier of fact cannot be 

credited on appeal unless, in view of the whole record, it is clear, 

positive, and of such a nature that it cannot rationally be 

disbelieved.’ ” (In re Marriage of Grimes & Mou (2020) 45 

Cal.App.5th 406, 422; see Estes v. Eaton Corp., supra, 51 

Cal.App.5th at p. 651 [“ ‘the jury is not required to believe the 
25

testimony of any witness, even if uncontradicted’ ”]; Palmieri v. 

State Personnel Bd. (2018) 28 Cal.App.5th 845, 857 [“ ‘[p]rovided 

the trier of the facts does not act arbitrarily, he may reject in 

toto the testimony of a witness, even though the witness is 

uncontradicted’ ”].) 

Although Gardner’s testimony regarding the amount 

of additional security costs that LAWPM incurred was not

contradicted by other witnesses, the jury still rationally could 

have chosen to reject such testimony. On cross-examination, 

Gardner admitted that he did not know how many roving

security guards were working at LAWPM at any given time, 

and whether the total number of guards present on the property 

had changed as a result of the removal of the 8th-Central Gate. 

Gardner also admitted that he did not personally prepare the 

spreadsheet of security costs that was included with LAWPM’s 

December 14, 2016 demand for payment, nor did he review any 

security invoices or other documents in connection with that 

demand. Defense counsel also elicited testimony that LAWPM 

never provided Defendants with any of the invoices that would 

show the actual costs that LAWPM had incurred for additional 

security as a result of the removal of the 8th-Central Gate.

In her closing argument, defense counsel emphasized the 

lack of supporting evidence to corroborate Gardner’s testimony 

about these costs. In particular, defense counsel told the jury: 

“There was no evidence other than the bare statement that ‘we 

pay $16.85 an hour and something higher on weekends and 

holidays and that in fact was an additional guard.’ [¶] Mr. 

Gardner’s testimony, unsupported by invoices, unsupported by 

timesheets, log-in cards, anything at all that would show to you 

or us that, A, it was an additional guard, B, this is what we paid 
26

-- I submit to you that if somebody sends you a bill just saying 

‘here it is, I say this is what it is so it must be,’ you might have 

some questions about that. [¶] So, I believe the answer to 

question no. 2 should be zero because there is a lack of evidence.”

On this record, we cannot conclude that the jury acted 

arbitrarily or without any rational basis in declining to credit 

Gardner’s testimony about the damages allegedly suffered by

LAWPM as a result of the removal of the 8th-Central Gate. “We 

have no power on appeal to judge the credibility of witnesses or 

to reweigh the evidence.” (Bookout v. State of California ex rel.

Dept. of Transportation (2010) 186 Cal.App.4th 1478, 1486.) 

Because the jury rationally could find that LAWPM did not 

meet its burden of proving damages for breach of contract, the 

evidence does not compel a finding in favor of LAWPM on the 

element of damages as a matter of law.

LAWPM next argues that the instructions and special 

verdict form given to the jury were misleading and confusing 

because the instructions on breach of contract were inconsistent 

with the questions on the verdict form. In particular, LAWPM 

asserts that, based on the language of the instructions and the

special verdict form, the jury was necessarily required to find 

no damages in response to question 2 as a result of finding no

liability for breach the contract in response to question 1.

“ ‘The propriety of jury instructions is a question of law 

that we review de novo.’ ” (Jackson v. AEG Live, LLC (2015) 233 

Cal.App.4th 1156, 1187; accord, Martinez v. Rite Aid Corp. (2021)

63 Cal.App.5th 958, 969.) In general, “ ‘[a] party is entitled upon 

request to correct, nonargumentative instructions on every 
27

theory of the case advanced by him [or her] which is supported 

by substantial evidence.’ ” (Evans v. Hood Corp. (2016) 5 

Cal.App.5th 1022, 1045.) “ ‘[A]n instruction correct in the 

abstract, may not be given where it is not supported by the

evidence or is likely to mislead the jury.’ ” (Harb v. City of 

Bakersfield (2015) 233 Cal.App.4th 606, 619.) However, “ ‘[a]

party is not entitled to have the jury instructed in any particular 

fashion or phraseology, and may not complain if the court 

correctly gives the substance of the applicable law.’ ” (Jackson,

at p. 1187.) Even where there is instructional error, reversal is 

not warranted unless it is reasonably probable that the jury may 

have based its verdict on the erroneous instruction. (Kinsman v.

Unocal Corp. (2005) 37 Cal.4th 659, 682; Soule v. General Motors 

Corp. (1994) 8 Cal.4th 548, 574.) “That assessment, in turn, 

requires evaluation of several factors, including the evidence, 

counsel’s arguments, the effect of other instructions, and any 

indication by the jury itself that it was misled.” (Soule, at p. 574.)

The correctness of a special verdict also “is analyzed as a 

matter of law and therefore subject to de novo review.” (Jackson 

v. AEG Live, LLC, supra, 233 Cal.App.4th at p. 1187; accord,

Martinez v. Rite Aid Corp., supra, 63 Cal.App.5th at p. 969.) 

“Before a judgment on a special verdict may be entered, the 

‘jury’s special verdict findings must be internally consistent and 

logical.’ ” (Missakian v. Amusement Industry, Inc. (2021) 69 

Cal.App.5th 630, 654.) “ ‘A special verdict is inconsistent if 

there is no possibility of reconciling its findings with each other.’ ” 

(Fuller v. Department of Transportation (2019) 38 Cal.App.5th 

1034, 1038.) “If a verdict appears inconsistent, a party adversely 

affected should request clarification, and the court should send 

the jury out again to resolve the inconsistency. [Citations.] If no 
28

party requests clarification or an inconsistency remains after the 

jury returns, the trial court must interpret the verdict in light of 

the jury instructions and the evidence and attempt to resolve any 

inconsistency.” (Singh v. Southland Stone, U.S.A., Inc. (2010) 

186 Cal.App.4th 338, 357-358, fn. omitted.)

Defendants claim that LAWPM forfeited any objection to

the special verdict form because LAWPM expressly agreed to the 

amended verdict form that was submitted to the jury. LAWPM, 

on the other hand, contends that it only acquiesced to that form 

after the trial court rejected the versions proposed by the parties 

in favor of rewriting its own special verdict form. LAWPM also 

asserts that it preserved the issue for appeal by raising it in a

motion for new trial. Although the failure to object to the form of 

a verdict before the jury is discharged may constitute a waiver or 

forfeiture of any defect, “waiver is not automatic, and there are 

many exceptions,” such as “where the record indicates that the

failure to object was not the result of a desire to reap a ‘technical 

advantage’ or engage in a ‘litigious strategy.’ ” (Woodcock v.

Fontana Scaffolding & Equip. Co. (1968) 69 Cal.2d 452, 456, fn. 

2; see Simgel Co., Inc. v. Jaguar Land Rover North America, LLC

(2020) 55 Cal.App.5th 305, 319.) As LAWPM notes, some courts

also have declined to find waiver or forfeiture where an objection

to the verdict form was raised for the first time in a posttrial 

motion before the trial court. (All-West Design, Inc. v. Boozer

(1986) 183 Cal.App.3d 1212, 1220 [challenge to form of verdict 

preserved by raising it in motion for new trial]; Mixon v.

Riverview Hospital (1967) 254 Cal.App.2d 364, 376-377 [same].) 

In this case, however, we need not decide whether LAWPM 

forfeited its challenge to the verdict form by failing to object 

before the jury was discharged. Even assuming LAWPM 
29

preserved its claim by asserting it in the motion for new trial,

the claim fails on the merits.

In challenging the special verdict finding as to damages, 

LAWPM does not contend that either the jury instructions or the 

special verdict form incorrectly stated the law. Rather, LAWPM

argues that the instructions given to the jury conflicted with the

questions on the special verdict form because the instructions

told the jury that LAWPM could only recover damages if it 

proved Alameda breached the contract, whereas the verdict form 

asked the jury to consider the question of damages independently

from the question of breach. LAWPM asserts that, because the 

jury found that Alameda did not breach the contract in response 

to question 1 on the verdict form, the instructions required the 

jury to also find that LAWPM did not sustain any damages in 

response to question 2. We disagree. 

The special verdict form, and the trial court’s instructions 

to the jury, made clear that the jury was to decide the question 

of damages separately and independently from the question of 

breach. The special verdict form was narrowly tailored to the 

facts of the case, and was comprised of only three questions. 

Question 1 concerned breach, and asked whether Alameda was 

required under the 1993 Settlement Agreement to pay for any

additional security services that LAWPM incurred as a result 

of the removal of the 8th-Central Gate. Question 2 addressed

damages, and asked the jury to decide the cost, if any, of the 

additional security services that LAWPM incurred as a result 

of the removal of the 8th-Street Gate. The special verdict form 

plainly stated that “[w]hether your answer to question 1 is yes or 

no,” the jury was required to answer question 2.
30

Before reading the CACI instructions to the jury, the trial 

court went over the questions on the special verdict form so that 

the jury would understand what it was required to do. The court 

explained that question 1 on the special verdict form concerned

whether Alameda was required to pay for the expenses incurred 

by LAWPM as a result of the removal of the 8th-Central Gate. 

The court then told the jury: “Independent of that question, no. 2 

is we want you to tell us whether you believe additional expenses 

or costs were incurred as a result of the removal of the gate.” The 

court later reminded the jury that it must follow the instructions 

on the special verdict form and consider each question separately, 

and that “after you answer a question, the form tells you what to 

do next.” When defense counsel mistakenly stated during her

closing argument that “you don’t have to get to number 2 if you 

say no to number 1” on the verdict form, the court immediately 

interjected to correct her, and again reiterated to the jury that 

question 2 on the verdict form was “independent” of question 1.

During its deliberations, the jury never asked the court for 

clarification on the instructions or the verdict form, or gave 

any indication that it was confused by either of them. 

In support of its argument that the jury must have been 

confused in answering the questions on the special verdict form, 

LAWPM points to the language in CACI Nos. 300, 303, and 350, 

which together defined the essential elements of the breach of 

contract claim. LAWPM reasons that, because these CACI 

instructions effectively told the jury that LAWPM’s right to 

recover damages from Alameda was dependent upon LAWPM 

proving that Alameda had breached the contract, the jury was 

not equipped to consider the issue of damages separately from 

the issue of breach. The special verdict form, however, clearly 
31

explained to the jury that the first two questions were to be 

answered separately and independently from each other. Indeed, 

question 2 on the verdict form did not make reference to any

alleged breach of contract by Alameda, or even mention Alameda 

at all. Question 2 simply asked the jury to determine the cost, 

if any, of additional security services incurred by LAWPM as a 

result of the removal of the 8th-Central Gate, and to answer 

that question irrespective of its answer to question 1.

LAWPM also claims that the polling of the jury conducted 

after the verdict showed the confusing and misleading nature 

of the special verdict form. Contrary to LAWPM’s contention, 

however, the polling merely showed that three of the 12 jurors 

believed that Alameda breached the contract and that LAWPM 

suffered damages, but did not reach a decision as to the amount

of damages. Given that the other nine jurors found that LAWPM 

did not suffer damages, it is not surprising that the three 

dissenting jurors would find it unnecessary to settle on a specific 

dollar figure in response to question 2. On this record, LAWPM 

has failed to demonstrate reversible error in either the jury 

instructions or the special verdict form. 

LAWPM further contends that the trial court committed 

prejudicial error when it refused to allow LAWPM to display a 

demonstrative exhibit regarding security costs. The exhibit in 

question was a one-page chart that purported to show a monthby-month breakdown of the $152,323.72 in additional security 

costs that LAWPM had incurred as a result of the removal of 

the 8th-Central Gate. LAWPM sought to display the chart 

during Gardner’s testimony to help summarize how he calculated 
32

the total amount of additional security costs incurred by LAWPM

through the trial date. Defendants objected on the ground that 

the chart lacked an adequate foundation because LAWPM never 

produced any of the security invoices on which the rates and 

hours depicted in the chart were based. The trial court ruled 

that LAWPM’s counsel could not display the chart, but could

show the jury the total amount of costs, and then ask Gardner 

to explain how he calculated that figure.

We review a trial court’s ruling on the admissibility of 

evidence for an abuse of discretion. (Qaadir v. Figueroa (2021) 67 

Cal.App.5th 790, 803; Alexander v. Community Hospital of Long 

Beach (2020) 46 Cal.App.5th 238, 258.) Under this standard, 

a trial court’s decision to admit or exclude evidence will not be 

disturbed “ ‘ “unless the trial court exercised its discretion in an 

arbitrary, capricious, or patently absurd manner that resulted in 

a manifest miscarriage of justice.” ’ ” (Qaadir, at p. 803.) Even

where a trial court errs in ruling on the admissibility of evidence, 

reversal is required only “when the reviewing court, ‘ “after an 

examination of the entire cause, including the evidence,” is of 

the “opinion” that it is reasonably probable that a result more 

favorable to the appealing party would have been reached in 

the absence of the error.’ ” (Alexander, at p. 258.)

In general, “[t]rial courts have broad discretion to admit 

demonstrative evidence such as maps, charts, and diagrams 

to illustrate a witness’s testimony.” (People v. Mills (2010) 48 

Cal.4th 158, 207.) “ ‘ “[D]emonstrative evidence is admissible for

the purpose of illustrating and clarifying a witness’ testimony” so

long as a proper foundation is laid.’ ” (People v. Vasquez (2017)

14 Cal.App.5th 1019, 1037.) Here, the trial court reasonably 

could find that LAWPM failed to lay a proper foundation for its
33

chart because it did not produce any of the underlying records 

on which the mathematical calculations reflected in the chart 

were based. The trial court also reasonably could find that a 

demonstrative exhibit that simply showed a month-by-month 

summary of the costs allegedly incurred by LAWPM would not 

aid the jury in understanding the substantive evidence before it. 

Moreover, Gardner was permitted to testify as to the total 

amount of additional security costs that LAWPM was claiming to 

have incurred as result of the removal of the 8th-Central Gate. 

He also was allowed to explain how he calculated that figure by 

multiplying the applicable hourly rate by the additional hours 

that were required to provide 24-hour security at the former 

location of the gate. LAWPM has not shown how the exclusion of

a demonstrative exhibit that itself was a summary of the simple 

mathematical calculations described by Gardner resulted in a 

miscarriage of justice. Under these circumstances, the trial 

court did not abuse its discretion in refusing to allow LAWPM 

to display the demonstrative exhibit. 

Defendants’ Cross-Appeal from the Judgment in 

Favor of LAWPM on the First through Fourth 

Causes of Action

In their cross-appeal, Defendants challenge the trial court’s 

finding that LAWPM has standing to enforce the restrictions on 

the Truck Easement and Track Street West Easement set forth 

in the 1991 Easement Agreement. The thrust of Defendants’ 

argument is that LAWPM lacks standing because, under the 

1982 Ground Lease, LAWPM does not have exclusive rights 

over the original Joint Use Area, and LAWPM cannot prove that 

the easements are located in an area that is outside of the Joint 

Use Area and thus subject to its exclusive control. In rejecting 
34

Defendants’ argument, the trial court found that the evidence 

failed to establish where the Joint Use Area referenced in the 

1982 Ground Lease is located, and whether the Track Street 

West Easement is inside or outside that area. The trial court also 

found that Defendants’ attorney expert on title insurance and

easement agreements was not qualified to plot the location of the 

Joint Use Area, or to otherwise opine as to where that area may 

be located. 

In their cross-appeal, Defendants raise several arguments 

related to LAWPM’s alleged lack of standing. In particular, 

Defendants contend that the trial court erroneously shifted the

burden to Defendants to prove that LAWPM does not have 

standing to enforce the 1991 Easement Agreement, and that 

when the burden of proof is properly allocated, LAWPM cannot 

establish that it has standing. Defendants further assert that, 

regardless of which party had the burden of proof, there was

substantial evidence to support a finding that the Track Street 

West Easement is in fact located in the Joint Use Area, and is

therefore not subject to LAWPM’s exclusive control. In addition, 

Defendants claim that, to the extent the evidence was insufficient 

to show where the Joint Use Area is located, the trial court erred 

when it decided to exclude the proffered testimony of Defendants’

title expert regarding the location of that area. We conclude that

none of these arguments has merit. 

Contrary to Defendants’ contention on appeal, the trial 

court never shifted the burden to Defendants to prove that 

LAWPM lacked standing to enforce the provisions of the 1991 
35

Easement Agreement. Rather, the record shows that the trial 

court repeatedly found that LAWPM has standing to enforce the

1991 Easement Agreement because it is the lessee of Parcel 1, the 

property burdened by the easements. The record further reflects

that the trial court made its findings based on the plain language 

of the 1991 Grant Deed and the 1991 Easement Agreement, and 

after careful consideration of the parties’ arguments regarding

the proper interpretation of those agreements. We conclude that 

the trial court properly applied the law, and that its findings as 

to standing were supported by substantial evidence. 

“Standing is a threshold issue necessary to maintain a 

cause of action, and the burden to allege and establish standing 

lies with the plaintiff.” (Mendoza v. JPMorgan Chase Bank, N.A.

(2016) 6 Cal.App.5th 802, 809.) “ ‘To have standing, a party must 

be beneficially interested in the controversy; that is, he or she 

must have “some special interest to be served or some particular 

right to be preserved or protected over and above the interest 

held in common with the public at large.” [Citation.] The party 

must be able to demonstrate that he or she has some such 

beneficial interest that is concrete and actual, and not 

conjectural or hypothetical.’ ” (Teal v. Superior Court (2014) 60 

Cal.4th 595, 599.) “Standing is a question of law that we review

independently. [Citation.] ‘However, where the superior court 

makes underlying factual findings relevant to the question of 

standing, we defer to the superior court and review the findings 

for substantial evidence.’ ” (United Farmers Agents Assn., Inc.

v. Farmers Group, Inc. (2019) 32 Cal.App.5th 478, 488.) 

California law has long recognized that “ ‘[u]nless 

specifically reserved to the landlord by the terms of the lease, 

everything that belongs to the demised premises or is used with, 
36

or is appurtenant to, the premises, and reasonably necessary for 

their beneficial use and enjoyment, passes as an incident to a 

lease of the premises.’ ” (Dubin v. Robert Newhall Chesebrough

Trust (2002) 96 Cal.App.4th 465, 473.) In other words, a lessee 

generally is provided with “ ‘ “everything which belongs to the 

demised premises,” ’ ” and rights such as easements “constitute 

an implied part of the lease.” (Owsley v. Hamner (1951) 36 

Cal.2d 710, 717.) In this case, it is undisputed that LAWPM 

is the current lessee of Parcel 1. At the November 2017 bench 

trial, the parties jointly stipulated that (1) SPTC leased Parcel 1 

to LAWPMDC pursuant to the 1982 Ground Lease; (2) LAWPM 

is the assignee of, and successor-in-interest to, LAWPMDC’s 

interest in the 1982 Ground Lease; and (3) the 1982 Ground 

Lease expires in 2048. It is also undisputed that both the Truck 

Easement and the Track Street West Easement cross Parcel 1.11

The evidence before the trial court accordingly supported its 

finding that LAWPM, as current lessee of Parcel 1, has standing 

to enforce the restrictions on the easements that burden the 

leased premises. 

In making this finding, the trial court expressly rejected 

Defendants’ argument that LAWPM lacked standing because 

only NewLowe and Rykoff were parties to 1991 Easement

Agreement. As the trial court aptly explained in its ruling 

on LAWPM’s motion for a preliminary injunction: “In 1991, 

NewLowe owned Parcels A and 1. [Citation.] NewLowe then 

11 According to the testimony at the bench trial, 88 feet 

of the Track Street West Easement crosses Parcel 1, and the 

remaining 30 feet crosses Parcel A. Based on the survey maps 

admitted at the bench trial, a majority of the Truck Easement 

also crosses Parcel 1. 
37

conveyed Parcel 1 to O Hill Properties, which leases the property 

to LAWPM. [Citation.] . . . In addition, the 1991 [Easement] 

Agreement provides that ‘[a]ll of the covenants, agreements, 

conditions and restrictions set forth in this Agreement are 

intended to be and shall be construed as covenants running with 

the land, binding upon, inuring to the benefit of and enforceable 

by the Parties hereto and all subsequent owners or lessees of, or 

any party having an interest in, their respective Parcels or any 

parts thereof. . . .’ [Citation.] . . . [¶] Accordingly, LAWPM may 

therefore enforce the terms of the 1991 Agreement as a lessee of 

the property (Parcel 1) owned by O Hill Properties, as a successor 

in interest to NewLowe, which at the time of the 1991 Agreement 

was the owner of both Parcel A and Parcel 1.” 

In its December 15, 2017 statement of decision on the 

second and third causes of action, the trial court again found 

that LAWPM has standing to enforce the terms of the 1991 

Easement Agreement, including the provision requiring the prior 

consent of the parties to reverse the flow of traffic on the Track 

Street West Easement. Based on the plain language of both the 

1991 Grant Deed and the 1991 Easement Agreement, the trial 

court found that “it was the intent of the parties that NewLowe’s 

rights under the agreements affected its rights as the owner of 

Parcels A and 1.” The trial court further found that O Hill, as the

successor to NewLowe’s interest in Parcel 1, has standing to 

“enforce the agreements creating and controlling the easements 

that are over Parcel 1,” and that “this standing extends to [O 

Hill’s] long-term tenant LAWPM during the period of the 

tenancy.” 

The trial court’s rulings make clear that the court did not 

misallocate the burden of proof to Defendants. Rather, the court 
38

made its findings as to standing after an exhaustive review of 

the relevant agreements in which the court interpreted the plain

language of those agreements to give effect to the contracting

parties’ mutual intent. (See Cortez v. Doty Bros. Equipment Co.

(2017) 15 Cal.App.5th 1, 16 [“[t]he fundamental rule of contract 

interpretation is to give effect to the mutual intent of the parties 

at the time they formed the contract”]; Civ. Code, § 1636 [“[a]

contract must be so interpreted as to give effect to the mutual 

intention of the parties as it existed at the time of contracting”].)

In seeking to challenge the trial court’s findings on appeal, 

Defendants contend that LAWPM’s burden to prove standing in 

this case required LAWPM to specifically refute Defendants’ 

argument against standing by proving a negative, namely that 

the Track Street West Easement is not located in the Joint Use 

Area. Defendants claim that, unless LAWPM can show that the 

Track Street West Easement falls outside of the Joint Use Area, 

LAWPM cannot establish that it has standing to enforce any

restrictions on that easement. We disagree, however, that 

LAWPM’s burden to prove its standing to enforce the terms of the 

1991 Easement Agreement required LAWPM to also disprove 

Defendants’ theory as to why standing is lacking. 

Instead, LAWPM met its burden of proving that it has 

standing to enforce the 1991 Easement Agreement by showing 

that it leases all of Parcel 1, and that the Truck Easement and 

Track Street West Easement cross Parcel 1. While Defendants 

argue that the Joint Use Area was “carved out of the exclusive 

rights granted to LAWPM” under the 1982 Ground Lease, they 

do not dispute that the Joint Use Area was still part of the 

leased, or demised, premises. Indeed, the amendment to the 

1982 Ground Lease specifically defines the Joint Use Area as 
39

“that part of [SPTC’s] Portion of the Eighth Street Access Area 

that becomes part of the Demised Premises, together with the 

portion of the Demised Premises shown tinted mauve on Exhibit 

‘B’ attached hereto.” Therefore, to the extent that LAWPM’s use 

of the Joint Use Area was non-exclusive under the 1982 Ground 

Lease, this does not show that LAWPM lacks standing to enforce 

its rights as the lessee of the premises burdened by the 

easements.

12 On this record, the trial court did not err in finding 

that LAWPM has standing to enforce the terms of the 1991

Easement Agreement. 

Defendants further argue that, even if the burden of proof 

on standing was properly allocated, the trial court erred when it 

refused to find that the Track Street West Easement is in fact

located in the original Joint Use Area, and is thus not subject to

LAWPM’s exclusive control. In its December 15, 2017 Statement 

12 The cases on which Defendants rely to support their 

claim that LAWPM lacks standing are inapposite. (Los Angeles 

& R.R. Co. v. New Liverpool Salt Co. (1906) 150 Cal. 21; Nahas v.

Retail Clerks International Assn. (1956) 144 Cal.App.2d 808.) In 

each of those cases, the court concluded that the lessee could 

not enforce rights over certain property that was never a part 

of the leased premises. (Los Angeles & R.R. Co., at p. 25 [lessee 

did not have possessory rights over railroad tracks that “formed 

no part of the leased premises”]; Nahas, at p. 820 [lessee did not 

have possessory rights over parking lot and sidewalks that were 

excluded from leased premises].) Here, LAWPM leases the 

entirety of Parcel 1, and the Joint Use Area was a part of the 

leased premises. 
40

of Decision, the trial court noted that Defendants had “take[n] 

the position that the Track Street West Easement runs over the 

Joint Use Area, and that this area was specifically carved out 

from the lease of Parcel 1 to LAWPM.” The court explained that 

if the lessor had “carved out a portion of Parcel 1 from its lease to 

LAWPM to allow vehicles from Parcels A, B and C to travel over 

the Joint Use Area, that would affect LAWPM’s ability to assert 

rights of NewLowe under the 1991 Easement Agreement.” The 

court ultimately concluded, however, that it could not determine 

from the evidence whether the Track Street West Easement is 

located in the Joint Use Area, and as a result, Defendants could 

not support their argument that LAWPM has no right to control 

the flow of traffic on that easement. In their cross-appeal, 

Defendants assert that the trial court erred because there was 

substantial evidence to support a finding the Track Street West 

Easement is inside the Joint Use Area. This argument is 

unavailing.

Despite the voluminous record in this case, none of the 

surveys, maps, or other documents presented to the trial court 

showed the location of the Joint Use Area on Parcel 1. As the 

trial court correctly noted, both the 1982 Ground Lease and the

1983 Amendment to that lease described the Joint Use Area as 

being depicted in mauve tint on “Exhibit B”; however, “Exhibit B” 

was not attached to either document. Likewise, neither the 1991 

Grant Deed nor the 1991 Easement Agreement included any 

reference to the location of the Joint Use Area. Although the 

1993 Settlement Agreement stated that the parties had agreed to 

modify their rights with respect to the “Original Joint Use Area,” 

that agreement also did not include a map or survey showing 

where the “Original Joint Use Area” was located. 
41

The 1993 Settlement Agreement did include a legal 

description of the metes and bounds of “Original Joint Use Area.” 

Defendants argue that the trial court itself could have used this 

legal description to plot the location of the Joint Use Area on one 

of the surveys LAWPM’s licensed surveyor had prepared to show 

the location of the easements. As the trial court observed, 

however, “nowhere does this legal description mention the Track 

Street West Easement, nor can this court as a lay reader of this 

provision determine where the Track Street West Easement is 

found with respect to the Joint Use Area, i.e., in the area or not 

in the area.” While Defendants contend that a survey expert was 

not required to plot the location of the Joint Use Area, “technical 

legal descriptions of real property have precise meanings to 

trained professionals” that are often beyond the common 

understanding of a layperson. (Lee v. Fidelity National Title Ins.

Co. (2010) 188 Cal.App.4th 583, 598.) In this case, none of the 

surveys prepared by the parties’ experts purported to show the

Joint Use Area. Additionally, neither LAWPM’s surveyor nor 

Defendants’ surveyor offered any testimony as to where the

Joint Use Area was located, or whether the Track Street West 

Easement was inside the Joint Use Area. Given the state of the 

evidence, the trial court did not err in declining to find that the 

Track Street West Easement is located in the Joint Use Area.

Lastly, Defendants contend that the trial court committed 

prejudicial error when it excluded the proffered testimony of their 

title expert, Kenneth Dzien, regarding the location of the Joint 

Use Area. Defendants called Dzien, an attorney and consultant 
42

to title insurance companies, to testify as a rebuttal expert on 

the proper interpretation of the easement agreements and title 

documents. Defendants also sought to elicit testimony from 

Dzien that he had determined the location of the Joint Use Area 

referenced in the 1982 Ground Lease based on his review of the 

legal description of the “Original Joint Use Area” set forth in the 

1993 Settlement Agreement and a survey prepared by 

Defendants’ surveyor. The trial court sustained LAWPM’s 

objection to such testimony on the ground that Defendants had 

failed to lay an adequate foundation to show that Dzien was 

qualified as a survey expert. We find no abuse of discretion 

in the trial court’s ruling.

Under Evidence Code section 801, “a trial court acts as a 

‘gatekeeper to exclude speculative or irrelevant expert opinion.’ 

[Citation.] A trial court may exclude expert testimony if the type 

of matter on which the expert relies is unreasonable and also if 

the matter relied upon does not ‘ “provide a reasonable basis for 

the particular opinion offered.” ’ ” (Waller v. FCA US LLC (2020) 

48 Cal.App.5th 888, 894.) A trial court also has “ ‘the obligation 

to contain expert testimony within the area of the professed 

expertise, and to require adequate foundation for the opinion.’ ” 

(Kotla v. Regents of University of California (2004) 115 

Cal.App.4th 283, 292.) Accordingly, “ ‘[t]rial judges have a 

substantial gatekeeping responsibility when it comes to expert 

testimony. [Citation.] . . . We review a court’s execution of these 

gatekeeping duties for an abuse of discretion.” (Cooper v. Takeda 

Pharmaceuticals America, Inc. (2015) 239 Cal.App.4th 555, 576.)

Here, the trial court acted well within its discretion in 

excluding Dzien’s proffered testimony on a matter for which he 

lacked the requisite expertise. As the trial court noted, Dzien 
43

is not a surveyor. He testified that he had prior experience 

examining abstracts of title, and that, “on a good day [he] can 

trace out the legal description” of real property contained in a 

title document. Dzien did not, however, prepare any of the 

surveys in this case, and did not claim to have any personal 

knowledge as to how those surveys were prepared. 

Additionally, when asked how he determined the location 

of the Joint Use Area, Dzien testified that he used the legal 

description contained in the 1993 Settlement Agreement to

map out the Joint Use Area on the survey that was prepared by 

Defendants’ surveyor. As discussed, however, none of the various 

surveys prepared by the parties’ experts purported to show the 

location of the Joint Use Area, and the surveyors themselves 

never testified as to where the Joint Use Area was located. On 

this record, the trial court reasonably could conclude that Dzien’s 

proffered opinion about the location of the Joint Use Area lacked 

an adequate foundation, and was therefore inadmissible. 

LAWPM’s Appeal from the Award of Attorneys’ Fees 

to Alameda

LAWPM also appeals from the postjudgment order 

granting Alameda $804,461.20 in attorneys’ fees as the 

prevailing party on the fifth cause of action. LAWPM argues 

the fee award in favor of Alameda should be reversed because 

(1) the trial court erroneously determined that Alameda was 

entitled to attorneys’ fees as the prevailing party under Code of 

Civil Procedure section 1032 (section 1032) instead of conducting 

its analysis under Civil Code section 1717 (section 1717); (2) the 

trial court abused its discretion in determining that Alameda’s 

fee request was reasonable and supported by sufficient evidence; 

and (3) the trial court abused its discretion in awarding fees to 
44

Alameda that were not connected to the fifth cause of action. We 

conclude the trial court did not abuse its discretion in awarding 

attorneys’ fees to Alameda, but the award must be reduced to 

exclude the hours expended on certain matters that were 

unrelated to the fifth cause of action.

Prior to entering a judgment on LAWPM’s first amended 

complaint, the trial court asked the parties to submit briefing on 

the issue of which party was the prevailing party for purposes 

of the judgment. While LAWPM argued that it was the 

prevailing party in the action because it had achieved its main 

litigation objective, Defendants asserted that Alameda had 

prevailed on the fifth cause of action for breach of the 1993 

Settlement Agreement. The trial court found that, under section 

1032, LAWPM was the prevailing party on the first through 

fourth causes of action, and Alameda was the prevailing party on 

the fifth cause of action. 

LAWPM filed a motion for attorneys’ fees pursuant to 

section 1717. LAWPM contended it was entitled to attorneys’ 

fees incurred in connection with the first through fourth causes of 

action under the 1991 Easement Agreement and the 1993 

Settlement Agreement. Both agreements included provisions for 

attorneys’ fees.13 The trial court granted LAWPM’s motion, and 

13 The 1991 Easement Agreement provided that “[i]f either 

Party brings any suit or initiates any other proceeding to enforce 

this Agreement, the prevailing Party in such suit or other 

proceeding . . . shall, in addition to such other relief as may be 

awarded, be entitled to recover all costs reasonably incurred by it 

in connection with such proceeding (including, without limitation, 

attorneys’ fees and expenses). The 1993 Settlement Agreement 

stated that “[i]n the event of litigation or arbitration relating to 
45

awarded LAWPM a total of $1,061,060.25 in attorneys’ fees as 

the prevailing party on the first through fourth causes of action. 

Alameda also filed a motion for attorneys’ fees pursuant 

to section 1717. Alameda argued it was entitled to attorneys’ 

fees incurred in connection with the fifth cause of action because 

it was the prevailing party under the 1993 Settlement 

Agreement. Alameda sought to recover $1,504,590.20 in 

attorneys’ fees incurred from July 2016 through July 2019. 

LAWPM opposed Alameda’s motion on several grounds. 

Among other arguments, LAWPM asserted that, for purposes of 

determining the prevailing party under section 1717, the 1991 

Easement Agreement and the 1993 Settlement Agreement should 

be considered together. LAWPM also argued that, even if the 

agreements were analyzed separately, Alameda still could not 

establish it was the prevailing party on the 1993 Settlement 

Agreement. LAWPM further contended that the attorneys’ fees 

sought by Alameda were unreasonable and overreaching, and 

were not supported by sufficient evidence. LAWPM’s opposition 

included an attorney declaration attaching various charts, which 

identified the billing entries that LAWPM claimed were vague, 

excessive, or not related to the breach of contract claim.

At the hearing on Alameda’s motion for attorneys’ fees, 

the trial court identified a number of deficiencies in Alameda’s 

moving papers. Rather than deny the motion outright, the court 

ordered Alameda to provide updated billing statements and 

summary totals that excluded any time billed prior to April 14, 

2017, the filing date of the first amended complaint when the 

this Agreement, the prevailing party in such litigation shall be 

entitled to recover its attorneys’ fees and costs.” 
46

fifth cause of action for breach of contract was first alleged. The 

court also ordered Alameda to provide accurate comparable 

billing rates of similarly situated attorneys. Although Alameda 

thereafter filed a supplemental brief and declarations that 

included additional information, it continued to request the 

same amount in attorneys’ fees. 

On January 24, 2020, following a further hearing on 

Alameda’s motion, the trial court awarded Alameda $804,461.20 

in attorneys’ fees as the prevailing party on the fifth cause of 

action. The court found that, because Alameda’s recovery was 

limited to the fifth cause of action, Alameda was not entitled to 

fees for work performed prior to April 14, 2017. The court also 

found that Alameda was only entitled to recover one-fifth of the 

fees sought for work performed from April 14, 2017 to August 16, 

2017, the date of the ruling on LAWPM’s summary judgment 

motion. In addition, the court found that Alameda was not 

entitled to fees for work performed from August 16, 2017 through 

December 22, 2017, because such work solely related to the court 

trial on the equitable claims. The court allowed Alameda to 

recover fees for work performed from January 2018 onward, but 

stated that it was excluding work performed in connection with 

Alameda’s new trial motion, appeal, and oppositions to LAWPM’s 

fees and costs motions. The court found that, subject to these 

deductions, the hourly rate and number of hours expended were 

reasonable, and that Alameda was not required to further explain 

the work performed by each individual attorney. 
47

In challenging the attorneys’ fee award to Alameda, 

LAWPM contends that the trial court abused its discretion in 

finding that Alameda was the prevailing party on the fifth cause 

of action under section 1032. LAWPM asserts that the trial 

court instead should have analyzed whether Alameda was the 

prevailing party under section 1717 by considering the 1991 

Easement Agreement and the 1993 Settlement Agreement 

together, and should have found that LAWPM was the sole 

prevailing party on those contracts because it achieved lopsided 

results in the litigation. LAWPM further argues that, even if the 

agreements are considered separately, Alameda still cannot be 

deemed the prevailing party on the 1993 Settlement Agreement 

because that contract was also at issue in the equitable claims on 

which LAWPM clearly prevailed. Based on the totality of the 

record, however, we conclude the trial court did not abuse its 

discretion in determining that Alameda was entitled to attorneys’ 

fees as the prevailing party on the breach of contract claim. 

“Generally, a trial court’s determination that a litigant 

is a prevailing party, along with its award of fees and costs, is 

reviewed for abuse of discretion.” (Goodman v. Lozano (2010)

47 Cal.4th 1327, 1332.) “ ‘ “However, de novo review . . . is 

warranted where the determination of whether the criteria for 

an award of attorney fees and costs in this context have been 

satisfied amounts to statutory construction and a question of 

law.” ’ ” (Mountain Air Enterprises, LLC v. Sundowner Towers,

LLC (2017) 3 Cal.5th 744, 751.)
48

Under section 1032, “[e]xcept as otherwise expressly 

provided by statute, a prevailing party is entitled as a matter 

of right to recover costs in any action or proceeding.” (Code 

Civ. Proc., § 1032, subd. (b).) For purposes of a cost award, a 

“prevailing party” is defined as (1) “the party with a net monetary 

recovery,” (2) “a defendant in whose favor a dismissal is entered,” 

(3) “a defendant where neither plaintiff nor defendant obtains 

any relief,” and (4) “a defendant as against those plaintiffs who 

do not recover any relief against that defendant.” (Id., subd. 

(a)(4).) However, “[i]f any party recovers other than monetary 

relief and in situations other than as specified, the ‘prevailing 

party’ shall be as determined by the court, and under those 

circumstances, the court, in its discretion, may allow costs or 

not and, if allowed, may apportion costs between the parties on 

the same or adverse sides . . . .” (Id., subd. (a)(4).) Accordingly, 

“ ‘section 1032 . . . declares that costs are available as “a matter 

of right” when the prevailing party is within one of the four 

categories designated by statute. . . . In other situations or when 

a party recovers other than monetary relief, the prevailing party 

is determined by the court, and the award of costs is within the 

court’s discretion.’ ” (David S. Karton, A Law Corp. v. Dougherty

(2014) 231 Cal.App.4th 600, 611.) 

Attorneys’ fees are allowable as costs when authorized 

by contract, statute, or law. (Code Civ. Proc., § 1033.5, subd. 

(a)(10).) Section 1717 governs attorneys’ fees based on a contract, 

and authorizes an award of attorneys’ fees “[i]n any action on a 

contract” to “the party prevailing on the contract” where the

contract specifically provides for an award of attorneys’ fees. 

(Civ. Code, § 1717, subd. (a).) Subject to certain exceptions not 

applicable in this case, “the party prevailing on the contract 
49

shall be the party who recovered a greater relief in the action on

the contract.” (Id., subd. (b)(1).) Generally, “[w]hen determining 

the prevailing party under section 1717, the trial court ‘is to 

compare the relief awarded on the contract claim or claims with 

the parties’ demands on those same claims and their litigation 

objectives as disclosed by the pleadings, trial briefs, opening 

statements, and similar sources.’ ” (Silver Creek, LLC v.

BlackRock Realty Advisors, Inc. (2009) 173 Cal.App.4th 1533, 

1539.) “A trial court has wide discretion in determining which 

party is the prevailing party under section 1717, and we will not 

disturb the trial court’s determination absent ‘a manifest abuse 

of discretion, a prejudicial error of law, or necessary findings not 

supported by substantial evidence.’ ” (Ibid.) 

LAWPM argues that the trial court misapplied the law 

when it determined that Alameda could recover attorneys’ fees 

as the prevailing party on the fifth cause of action because the 

court made its determination under section 1032, which governs 

costs awards, rather than section 1717, which governs attorneys’ 

fees awards on a contract. It is true, as LAWPM asserts, that 

“the prevailing party for purposes of a contractual attorney fees 

award under Civil Code section 1717 . . . is not necessarily the 

prevailing party for purposes of a costs award under Code of 

Civil Procedure section 1032.” (David S. Karton, A Law Corp.

v. Dougherty, supra, 231 Cal.App.4th at p. 607.) Thus, “[t]he

determination of the party prevailing on the contract for purposes 

of awarding attorney fees under section 1717 must be made 

independently of the determination of the party prevailing in the

overall action for purposes of awarding costs under . . . section 

1032.” (Douglas E. Barnhart, Inc. v. CMC Fabricators, Inc.

(2012) 211 Cal.App.4th 230, 239, italics omitted.) In this case, 
50

however, the record does not demonstrate that the trial court 

failed to determine whether Alameda was the prevailing party 

under section 1717 in ruling on its motion for attorneys’ fees.

Alameda specifically brought its motion for attorneys’ fees 

under section 1717, and argued that it was entitled to an award 

of attorneys’ fees because it was the prevailing party on the 1993 

Settlement Agreement, the contract at issue in the fifth cause of 

action. In opposing Alameda’s motion, LAWPM contended that 

the 1991 Easement Agreement and the 1993 Settlement 

Agreement must be considered together for purposes of 

determining the prevailing party under section 1717, and that 

LAWPM was the prevailing party under the statute because it 

had achieved lopsided results on those two related agreements. 

LAWPM also expressly asserted that Alameda’s motion for 

attorneys’ fees “must be analyzed independently of the Court’s 

prior finding that Alameda is the prevailing party on the fifth 

cause of action.” 

In its written ruling on Alameda’s motion, the trial court 

correctly stated the law that attorneys’ fees may be awarded as 

costs under section 1032 when they are provided for by contract, 

and that section 1717 authorizes an award of attorneys’ fees in 

an action on a contract to the prevailing party on the contract. 

The court also summarized the arguments set forth in LAWPM’s 

opposition as to why Alameda should not be deemed the 

prevailing party for purposes of a contractual attorneys’ fees

award. The court then concluded that Alameda was entitled to 

recover attorneys’ fees as the prevailing party on the fifth cause 

of action only. Although the court referenced its prior 

determination as to the prevailing parties under section 1032, it 

did not state that it was deciding Alameda’s right to attorneys’ 
51

fees based solely on this prior determination and without 

considering the parties’ arguments under section 1717. Rather, 

when considered as a whole, the court’s ruling reflects that it 

awarded Alameda attorneys’ fees on the fifth cause of action for 

breach of the 1993 Settlement Agreement because it determined 

that Alameda was the prevailing party on that contract under 

section 1717. On this record, LAWPM has failed to affirmatively 

demonstrate that the court misconstrued or misapplied the law in 

making its prevailing party determination. (Wertheim, LLC v. 

Omidvar (2016) 3 Cal.App.5th 921, 925 [“On appeal a trial court’s 

order ‘is presumed correct. Error must be affirmatively shown.’ 

”].)

LAWPM also asserts that the trial court erred in failing to 

analyze the 1991 Easement Agreement and the 1993 Settlement 

Agreement together to determine whether Alameda was the sole 

prevailing party on those contracts for purposes of section 1717. 

Under section 1717, “there may only be one prevailing party

entitled to attorney fees on a given contract in a given lawsuit.” 

(Frog Creek Partners, LLC v. Vance Brown, Inc. (2012) 206 

Cal.App.4th 515, 520.) On the other hand, “[w]here multiple 

independent contracts are involved in one lawsuit, and each 

contract provides an independent entitlement to fees, it is 

necessary to determine the prevailing party under each 

contract.” (Id. at p. 543; see Arntz Contracting Co. v. St.

Paul Fire & Marine Ins. Co. (1996) 47 Cal.App.4th 464, 491 

[“[w]hen an action involves multiple, independent contracts, each 

of which provides for attorney fees, the prevailing party . . . must 

be determined as to each contract regardless of who prevails in 

the overall action”]; Hunt v. Fahnestock (1990) 220 Cal.App.3d 

628, 630 [“in a lawsuit involving several contracts, attorney’s fees 
52

pursuant to . . . section 1717 may be awarded to the prevailing 

party on each contract whether or not that party is a prevailing 

party in the lawsuit”].)

LAWPM contends that the 1991 Easement Agreement and 

the 1993 Settlement Agreement were interrelated because they 

both governed the parties’ respective easement rights and were 

the subject matter of the first phase of the trial in this case. The 

trial court reasonably could have concluded, however, that the 

two agreements were separate and independent contracts for 

purposes of determining the prevailing party under section 1717. 

The 1991 Easement Agreement concerned the parties’ rights with 

respect to the three easements – the Eighth Street Easement, the 

Truck Easement, and the Track Street West Easement – that 

were conveyed pursuant to the 1991 Grant Deed. The 1993 

Settlement Agreement, on the other hand, governed the parties’ 

rights and obligations with respect to the 8th-Central Gate. 

Although the trial court briefly discussed the 1993 Settlement 

Agreement in its December 15, 2017 Statement of Decision on the 

second and third causes of action, it did so solely in the context of 

addressing Defendants’ argument about the location of the Joint 

Use Area.14 The court did not otherwise consider the 1993 

14 As previously discussed, Defendants argued that the 

location of the Joint Use Area, as referenced in the 1982 Ground 

Lease, could be determined based upon the legal description of 

the “Original Joint Use Area” included in one of the exhibits 

to the 1993 Settlement Agreement. The trial court rejected 

Defendants’ argument because that exhibit did not make any 

reference to the easements at issue in the case, and a layperson 

could not plot the location of the Joint Use Area on a survey map 

based solely on a metes and bounds description.
53

Settlement Agreement in determining the parties’ respective 

rights under the 1991 Easement Agreement. Indeed, the 1993 

Settlement Agreement did not mention any of the easements 

that were the subject of LAWPM’s first through fourth causes 

action. Under these circumstances, the trial court did not err in 

failing to determine that there was a single prevailing party on 

the two contracts under section 1717.15 

LAWPM further argues that, even if the 1991 Easement 

Agreement and the 1993 Settlement Agreement are considered 

separately for purposes of section 1717, Alameda still could not 

15 In a related argument, LAWPM asserts that, because 

there can be only one prevailing party for purposes of costs 

awarded pursuant to section 1032, the trial court also erred in 

determining that Alameda was a co-prevailing party under that 

statute and awarding Alameda $22,886.86 in costs. As a general 

rule, there is a single prevailing party under the mandatory costs 

award provision of section 1032, subdivision (a)(4). (Sharif v. 

Mehusa, Inc. (2015) 241 Cal.App.4th 185, 194.) However, where 

the prevailing party does not fall within one of the four 

mandatory costs categories specified in section 1032, subdivision 

(a)(4), the statute “permits the trial court to determine the 

prevailing party and then allow costs or not, or to apportion costs, 

in its discretion.” (Texas Commerce Bank v. Garamendi (1994) 28 

Cal.App.4th 1234, 1248-1249.) In such a situation, more than 

one party may qualify as a prevailing party for purposes of a 

costs award, and the trial court has discretion to decide how to 

apportion costs between them. (Wohlgemuth v. Caterpillar Inc.

(2012) 207 Cal.App.4th 1252, 1264; On-Line Power, Inc. v. Mazur 

(2007) 149 Cal.App.4th 1079, 1087.) Here, the record reflects, 

that the trial court exercised the discretion afforded by section 

1032, subdivision (a)(4) in determining that Alameda had 

prevailed on the fifth cause of action. We see no abuse of 

discretion in that ruling.
54

be deemed the prevailing party under the 1993 Settlement 

Agreement. This argument lacks merit. While LAWPM achieved 

an unqualified victory on the first through fourth causes of action 

under the 1991 Easement Agreement, Alameda achieved an 

unqualified victory on the fifth cause of action under the 1993 

Settlement Agreement. The fact that LAWPM may have 

obtained a greater recovery in the overall action by prevailing on 

the four equitable claims did not preclude the trial court from 

determining that Alameda was the prevailing party on the 

breach of contract claim. (Arntz Contracting Co. v. St. Paul Fire 

& Marine Ins. Co., supra, 47 Cal. App.4th at p. 491 [“[t]he fact 

that a party ‘obtained a higher net recovery in the lawsuit is 

irrelevant to the determination of which party prevailed on any 

particular action on a contract’ ”].) “A trial court’s determination 

as to which party has prevailed ‘ “will not be disturbed on appeal 

absent a clear abuse of discretion.” ’ ” (City of West Hollywood 

v. Kihagi (2017) 16 Cal.App.5th 739, 753.) LAWPM has failed 

to make such a showing here.

LAWPM claims the trial court failed to conduct a lodestar 

analysis prior to awarding attorneys’ fees to Alameda. LAWPM 

specifically contends that the evidence was insufficient to 

establish that the rates and hours requested by Alameda were 

reasonable, thus, the trial court erred when it calculated the 

resulting fee award. We conclude that the trial court did not 

abuse its discretion in determining the reasonableness of 

Alameda’s fee request.
55

“[T]he fee setting inquiry in California ordinarily begins 

with the ‘lodestar,’ i.e., the number of hours reasonably expended 

multiplied by the reasonable hourly rate.” (PLCM Group, Inc. v.

Drexler (2000) 22 Cal.4th 1084, 1095.) “The lodestar figure may 

then be adjusted, based on consideration of factors specific to the 

case, in order to fix the fee at the fair market value for the legal 

services provided.” (Ibid.) Those factors include “(1) the novelty 

and difficulty of the questions involved, (2) the skill displayed 

in presenting them, (3) the extent to which the nature of the 

litigation precluded other employment by the attorneys, [and] 

(4) the contingent nature of the fee award.” (Ketchum v. Moses

(2001) 24 Cal.4th 1122, 1132.) “ ‘Such an approach anchors the 

trial court’s analysis to an objective determination of the value 

of the attorney’s services, ensuring that the amount awarded is 

not arbitrary.’ ” (Id. at p. 1134.) 

“ ‘The amount of an attorney fee to be awarded is a matter 

within the sound discretion of the trial court. [Citation.] The 

trial court is the best judge of the value of professional services 

rendered in its court, and while its judgment is subject to our 

review, we will not disturb that determination unless we are 

convinced that it is clearly wrong. [Citation.] The only proper 

basis of reversal of the amount of an attorney fees award is 

if the amount awarded is so large or small that it shocks the 

conscience and suggests that passion and prejudice influenced 

the determination.’ ” (Blue Mountain Enterprises, LLC v. Owen

(2022) 74 Cal.App.5th 537, 559; see Concepcion v. Amscan 

Holdings, Inc. (2014) 223 Cal.App.4th 1309, 1319 [with respect to 

the amount of fees awarded, “ ‘there is no question our review 

must be highly deferential to the views of the trial court’ ”].)
56

LAWPM asserts the trial court failed to conduct a lodestar 

analysis to determine whether the rates and hours claimed by 

Alameda were reasonable. In granting Alameda’s motion, 

however, the trial court made the specific finding that 

“Defendants have sufficiently provided their lodestar figures of 

‘reasonable rates’ and ‘reasonable number of hours.’ ” The court 

also expressly stated that “an analysis of reasonableness has 

taken place in this case and the resulting fee award reflects the 

reasonable number of hours expended by counsel.” The resulting 

fee award did not compensate Alameda for all of the hours 

requested, but rather excluded hours that the trial court 

determined were not reasonably expended on the fifth cause of 

action. 

In finding that Alameda had “sufficiently supported its 

requested billing rates,” the court explained that Alameda’s fee 

expert had submitted a supplemental declaration in which he 

described the rates of Alameda’s attorneys as being within the 

range of “rates of attorneys at comparable firms in comparable 

real estate litigation matters.” Based on such evidence, the court 

found “the requested billing rates to be reasonable.” On appeal, 

LAWPM disputes whether the firms and types of matters 

identified by Alameda’s expert were sufficiently comparable to 

the firms used and work performed in this case to support the 

hourly rates sought. In determining a reasonable hourly rate,

however, “ ‘the court may rely on its own knowledge and 

familiarity with the legal market, as well as the experience, skill, 

and reputation of the attorney requesting fees [citation], the 

difficulty or complexity of the litigation to which that skill was 

applied [citations], and affidavits from other attorneys regarding 

prevailing fees in the community and rate determinations in 
57

other cases.’ ” (Morris v. Hyundai Motor America (2019) 41 

Cal.App.5th 24, 41.) Indeed, “ ‘the trial court is in the best 

position to value the services rendered by the attorneys in his or 

her courtroom [citation], and this includes the determination 

of the hourly rate that will be used in the lodestar calculus.’ ” 

(Nishiki v. Danko Meredith, P.C. (2018) 25 Cal.App.5th 883, 898.) 

LAWPM also argues that the declarations submitted by 

Alameda in support of its fee request failed to describe with 

sufficient particularity the relevant background, experience, 

and type of work performed by each biller in this case. The 

record reflects, however, that Alameda supported its motion 

with billing invoices for each of the three firms that represented 

it over the course of the litigation. Those invoices generally 

identified the name of each biller, the date of each billing entry, 

a description of the task performed, the time spent on that task, 

and the biller’s hourly rate. Alameda also provided summary 

charts identifying each biller by name, position, date of bar 

admission, and hourly rate, and showing the total hours and 

actual amounts that he or she billed each month to the case. “It 

is well established that ‘California courts do not require detailed 

time records, and trial courts have discretion to award fees based 

on declarations of counsel describing the work they have done 

and the court’s own view of the number of hours reasonably 

spent.’ ” (Syers Properties III, Inc. v. Rankin (2014) 226 

Cal.App.4th 691, 698.) In this case, the trial court concluded 

that it had enough information to evaluate the rates and hours 

sought by Alameda. The trial court did not abuse its discretion 

in determining that, subject to certain deductions made by the 

court, the requested rates and hours were reasonable.
58

Finally, LAWPM argues the trial court abused its 

discretion when it awarded attorneys’ fees to Alameda for hours 

that were not reasonably expended in connection with the fifth 

cause of action. In particular, LAWPM contends the fee award 

should have excluded hours that were billed in connection with 

the first through fourth causes of action between January 2018 

and July 2019. LAWPM also claims that the fee award should 

have excluded hours that were duplicative, excessive, or based on 

vague billing entries. Consistent with the trial court’s ruling, we 

conclude that the amount of attorneys’ fees awarded to Alameda 

must be reduced to exclude the hours expended on certain 

unrelated matters, including Alameda’s motion for new trial, 

appeal, oppositions to LAWPM’s fees and costs motions, unfiled 

cross-complaint, and new lawsuit.

In its ruling on Alameda’s motion for attorneys’ fees, the 

trial court stated that it agreed with LAWPM that Alameda’s 

“fees for January 2018 onwards should not include entries related 

to the new trial, appeal, or opposing LAWPM’s fees and costs 

motions.” The court also indicated, however, that its calculations 

of the fee award “already remove these entries, which were 

highlighted in yellow in the defendants’ submission.” As LAWPM 

correctly points out, the “highlighted” entries in Alameda’s 

billing records do not relate to the hours billed on these specific 

matters, and thus, the trial court’s calculations failed to properly 

exclude such hours from the resulting fee award. In its 

opposition to Alameda’s motion, LAWPM attached as exhibit E to 

the declaration of Steven Kuehl a chart showing the billing 
59

entries that LAWPM contends were not related to the fifth cause 

of action. We have reviewed exhibit E for entries specifically 

related to Alameda’s motion for new trial, appeal, and oppositions 

to LAWPM’s fees and costs motions. Those entries represent a 

total of $33,604.60 in attorneys’ fees.16 Alameda’s fee award 

accordingly must be reduced by this amount.

In its opposition to Alameda’s motion, LAWPM also argued 

that the trial court should exclude hours that were billed between 

January 2018 and July 2019 in connection with a cross-complaint 

that Alameda never filed and a new lawsuit that Alameda filed 

against LAWPM in February 2019. In support of this argument, 

LAWPM attached as exhibit G to the declaration of Steven Kuehl 

a chart showing the billing entries that LAWPM asserts were 

related to this cross-complaint and separate lawsuit. Although 

16 As reflected in exhibit E to Steven Kuehl’s declaration, 

there were a total of 18 billing entries which LAWPM specifically 

identified as pertaining to Alameda’s new trial motion, appeal, or

oppositions to LAWPM’s fees and costs motions. Those entries 

consisted of the following amounts in requested attorneys’ fees: 

(1) $3,173.40 on June 5, 2019; (2) $1,366.20 on June 10, 2019; 

(3) $1,552.50 on June 12, 2019; (4) $1,992.60 on June 14, 2019; 

(5) $4,222.80 on June 17, 2019; (6) $590.40 on July 1, 2019; 

(7) $4,533.30 on July 2, 2019; (8) $3,477.60 on July 3, 2019; 

(9) $205.50 on July 8, 2019; (10) $186.30 on July 10, 2019; 

(11) $496.80 on July 11, 2019; (12) $2,877.00 on July 11, 2019; 

(13) 3,082.50 on July 12, 2019; (14) $621.00 on July 16, 2019; 

(15) $1,438.50 on July 16, 2019; (16) $685.00 on July 24, 2019; 

(17) $2,730.60 on July 25, 2019; and (18) $372.60 on July 26, 

2019. Although the trial court agreed that these categories of

entries should not be included in the attorneys’ fee award, it 

erroneously believed that Alameda had already excluded them 

from its total fee request. 
60

the trial court did not specifically address these entries in its 

ruling on Alameda’s motion, the court did state that it “agrees 

with LAWPM that Alameda’s recovery is limited to the Fifth 

Cause of Action.” Alameda did not explain how these entries 

were connected to the fifth cause of action in the proceedings 

before the trial court, nor does it address the issue on appeal. We 

have reviewed exhibit G, and agree with LAWPM that the entries 

reflected in this chart are not related to the fifth cause of action. 

Those entries represent a total of $74,694.30 in attorneys’ fees. 

Alameda’s fee award therefore must also be reduced by this 

amount. 

LAWPM’s remaining objections to the fee award primarily 

relate to billing entries that it asserts were duplicative, excessive, 

or vague. The trial court rejected these arguments, however, in 

its ruling on Alameda’s attorneys’ fees motion and found that, 

with one exception, Alameda’s “billing entry descriptions and 

tasks are acceptable.” The court also found that Alameda was 

not required “to further explain the work performed by each 

individual attorney in order to recover” fees for these entries. We 

have reviewed the challenged entries, and conclude the trial court 

reasonably could find that these entries were not duplicative, 

excessive, or impermissibly vague. On this record, trial court did 

not abuse its discretion in refusing to exclude these entries from 

its calculation of the fee award. 
61

DISPOSITION

The judgment is affirmed. The postjudgment order 

awarding attorneys’ fees to Alameda is modified by striking a 

total of $108,298.90 from the amount awarded, and is affirmed 

as modified. The parties shall bear their own costs on appeal. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ADAMS, J.*

We concur:

EDMON, P.J.

LAVIN, J.

*

Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.