Filed 12/16/20 Southfork Ranch v. Bunn CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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

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

has not been certified for publication or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

SOUTHFORK RANCH, LLC, 

et al.,

Plaintiffs, Appellants and CrossAppellants,

v.

DAVID BUNN et al.,

Defendants, Respondents and 

Cross-Respondents.

2d Civ. No. B279391

(Cons. w/ No. B280994) 

(Super. Ct. No. 56-2014-

00449856-CU-BC-VTA)

(Ventura County)

ORDER DENYING PETITION 

FOR REHEARING AND 

MODIFYING OPINION

(No Change in Judgment)

THE COURT:

It is ordered that the opinion filed herein on November 17, 

2020, be modified as set forth below: 

1. On page 2, the first two full paragraphs are consolidated 

and modified to read as follows: Southfork and King, the 

respective owners of Parcels B and C, sued Parcel A’s owners, 

Bunn & Birrell, for alleged interference with their use of the 
2

Parcel A easements. Following trial, the court concluded 

appellants had “failed to introduce sufficient credible evidence” to

prove their causes of action for interference with easement, 

trespass and declaratory relief. It also found Bunn & Birrell 

have equal rights to a share of the water generated by the new 

water facilities and ruled in their favor on their cross-complaint 

challenging appellants’ construction of those facilities.

2. On page 4, the final sentence in the last full paragraph 

is deleted in its entirety and the second sentence is modified, so 

that the entire paragraph now reads: In 2011, appellants 

brought actions against Bunn & Birrell and TNC in what we 

identify as Southfork I. Among other things, appellants 

requested the right to remove part of the revetment wall and 

groins. Bunn & Birrell intervened in the action against TNC.

3. On page 5, the second and third sentences in the first 

full paragraph are deleted in their entirety and the word “here” is 

added at the end of the last sentence, so that the entire 

paragraph now reads: Following trial in 2013, the trial court 

found that appellants cannot alter or remove the riverbank 

protections. Southfork I became final when appellants 

abandoned their appeal from the judgment. No attorney fees or 

costs arising from that case are at issue here.

4. On page 25, the final full paragraph is modified to 

include the following as footnote 7 at the end of the paragraph: 

In their petition for rehearing, appellants contend our opinion 

affirming the trial court's judgment in Southfork III eviscerates 

the trial court's earlier judgment in Southfork I. To the extent 
3

the Southfork I, II and III judgments require harmonization, as 

appellants now claim, that issue pre-existed our decision and 

should have been raised in the briefs. (Hunt v. County of Shasta

(1990) 225 Cal.App.3d 432, 446, fn. 12; Brown v. Superior Court

(1982) 137 Cal.App.3d 778, 782.) 

5. On page 31, footnote 7 shall be renumbered as footnote 

8.

No change in judgment. 

Appellants’ petition for rehearing is denied. 

GILBERT, P.J. YEGAN, J. PERREN, J.
Filed 11/17/20 Southfork Ranch v. Bunn CA2/6 (unmodified opinion)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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

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

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

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

SOUTHFORK RANCH, LLC, 

et al.,

Plaintiffs, Appellants and CrossAppellants,

v.

DAVID BUNN et al.,

Defendants, Respondents and 

Cross-Respondents.

2d Civ. No. B279391

(Cons. w/ No. B280994) 

(Super. Ct. No. 56-2014-

00449856-CU-BC-VTA)

(Ventura County)

Appellants Southfork Ranch, LLC (Southfork) and R. Eric 

King and respondents David Bunn and Ellen Birrell (collectively 

Bunn & Birrell) farm on three adjoining parcels of land in 

Ventura County. The parcels, known as Parcels A, B and C, 

share a water facilities system on the Santa Clara River 

pursuant to the Southfork Ranch Declaration of Covenants, 

Conditions and Restrictions (CC&R’s). Among other things, the 
2

CC&R’s created an easement on Parcel A, which allows the 

owners of Parcels B and C to cross that parcel to access their 

land. The CC&R’s also permit the owners of Parcels B and C to 

receive water from the water facilities system located on Parcel 

A. 

Southfork and King, the respective owners of Parcels B and 

C, have twice unsuccessfully sued Parcel A’s owners, Bunn & 

Birrell, for alleged interference with their use of the Parcel A 

easements. This is their third attempt. Once again, they are 

unsuccessful. 

Following trial, the court concluded appellants had “failed 

to introduce sufficient credible evidence” to prove their causes of 

action for interference with easement, trespass and declaratory 

relief. It also found Bunn & Birrell have equal rights to a share 

of the water generated by the new water facilities and ruled in 

their favor on their cross-complaint challenging appellants’ 

construction of those facilities. 

Over appellants’ objections, the trial court awarded Bunn & 

Birrell a total of $866,229.50 in contract-based attorney fees and 

costs. (See Civ. Code, 1717.)

1 Of this sum, $376,638.10 is 

attributable to one of the earlier Southfork cases. In addition, 

another respondent, The Nature Conservatory (TNC), was 

awarded $585,865.83 in fees and expenses. 

In this consolidated appeal, appellants contest both the 

post-trial judgment in Bunn & Birrell’s favor and the awards of 

fees and costs to respondents. As to the merits, appellants argue 

the trial court misinterpreted the CC&R’s regarding the parties’ 

1 All further statutory references are to the Civil Code 

unless otherwise stated.
3

water rights. They claim Bunn & Birrell repudiated any rights 

they had. Appellants further contend that the court applied the 

wrong burden of proof on their interference with easement claim 

and that it exceeded its defined powers by issuing a list of 

Declarations outlining the parties’ rights and obligations under 

the CC&R’s.2 

As for the attorney fees, expert fees and costs awards, 

appellants challenge both the propriety and amount of the trial 

court’s orders. They contend respondents’ claims sound in tort, 

rather than contract, and that they needlessly over-litigated 

portions of the case and inappropriately allocated certain fees 

and expenses. 

We conclude appellants have failed to demonstrate error in 

either aspect of this appeal. We do, however, modify the two 

orders awarding expert fees of $14,780.45 to Bunn & Birrell to 

clarify that those fees may only be collected once. 

I. LITIGATION HISTORY3

Adopted in 1992, the CC&R’s created water access rights 

by easement for three contiguous parcels of land. Parcel A abuts 

the Santa Clara River, while Parcels B and C do not. Water for 

the three parcels was pumped from a well into tanks and 

2 TNC is not a party to the merits portion of this appeal. It 

is a party to appellants’ challenge to the fees and costs awards. 

 

3 Some of this history is adapted from our prior opinion in 

an appeal involving the same parties, Southfork Ranch, LLC v. 

The Nature Conservancy (Jan. 17, 2018, B267157) [nonpub. opn.] 

(Southfork II). Facts specific to the current litigation and the fee 

and costs awards are detailed in the Discussion section. 
4

dispersed through pipes. The water facilities were located on 

Parcel A.

After the CC&R’s were adopted, floods destroyed the water 

well and eroded the riverbank along Parcel A. An amendment to 

the CC&R’s, recorded in 1996, moved the well site upstream and 

established a new easement. At the same time, the then-owner of 

Parcel A constructed a revetment wall several hundred feet in 

length to protect the riverbank. Flooding in 1997-1998 destroyed 

60 percent of that wall. A new wall, 9 to 14 feet high, was 

constructed in 1999 and groins of caged rocks were placed near 

its base. 

Southfork purchased Parcel B in 1996, after the CC&R’s 

had been amended. King bought Parcel C in 2000. Bunn & 

Birrell purchased Parcel A in 2005, while the County of Ventura 

(County) was suing the then-owner of Parcel A for constructing 

the unauthorized revetment wall. The County settled the lawsuit 

by stipulation in 2005. The judgment required Bunn & Birrell to 

repair and restore the wall structures along the river, to comply 

with watershed protection standards and to transfer 52 riparian 

acres of Parcel A to TNC. Part of Parcel A (now known as Parcel 

AAA) was transferred to TNC in 2009, the same year Bunn & 

Birrell completed the necessary restoration work. 

A. Southfork I

In 2011, appellants brought actions against Bunn & Birrell 

and TNC in what we identify as Southfork I. Appellants 

requested the right to remove part of the revetment wall and 

groins and to force Bunn & Birrell to remove all obstructions 

preventing appellants from constructing a new well. Bunn & 

Birrell intervened in the action against TNC. Parcel A’s water 

rights under the CC&R’s were not at issue. 
5

Following trial in 2013, the trial court found that 

appellants cannot alter or remove the riverbank protection 

structures. The court denied appellant’s motions for attorney 

fees. It found that “neither party prevailed sufficiently to justify” 

such an award. Southfork I became final when appellants 

abandoned their appeal from the judgment. No attorney fees and 

costs arising from that case are at issue. 

B. Southfork II

Appellants filed Southfork II in 2014, alleging interference 

with easement and demanding removal of the revetment wall, 

groins and other obstructions. The complaint did not mention 

Southfork I. The trial court granted summary judgment in TNC’s 

favor based upon res judicata principles. It also granted Bunn & 

Birrell’s motion for judgment on the pleadings. We affirmed, 

agreeing that Southfork II was an improper collateral attack on 

the 2013 judgment. (Southfork II, supra, B267157.) 

The trial court awarded TNC $511,103.60 in attorney fees 

and $74,762.23 in costs, for a total of $585,865.83. It awarded 

Bunn & Birrell $376,638,10 in attorney fees and $14,780.45 in

expert fees. 

C. The Current Litigation (Southfork III)

4

In their second amended complaint, appellants again

asserted interference with easement, alleging their use of and 

access to the roadway and water easements are obstructed by 

Bunn & Birrell’s water pipes, avocado and citrus trees, shrubs, 

fencing, telephone lines, a fertilizer injector and concrete blocks. 

Bunn & Birrell cross-complained for breach of the CC&R’s and 

declaratory relief. The trial court held a 17-day bench trial in 

2015. 

4 The current litigation was severed from Southfork II.
6

The trial court determined appellants had failed to prove 

their causes of action. The statement of decision emphasized the 

parties’ dependence on the river water and noted the CC&R’s 

assure that each parcel has access to water through wells, tanks, 

pipelines, pumps and utility lines on Bunn & Birrell’s land. The 

court found Southfork responsible for maintaining the water 

facilities, but clarified it is only entitled to reimbursement for 

costs based on each parcel’s planted acreage. Southfork 

improperly charged Bunn & Birrell based on water usage and 

then refused their requests for records justifying the charges. 

The trial court further found appellants had “decided years 

ago to develop and construct new wells in order to increase the 

amount of water taken from the river, without the consent or 

involvement of Bunn & Birrell.” While this action was pending, 

appellants constructed the new well and tanks with the intent to 

exclude Bunn & Birrell from that system. The court enjoined 

appellants’ activities in 2014, noting they had misled federal and 

state agencies about the construction and the plan to increase 

their water usage. 

Prior to trial, appellants claimed the old well was failing 

and obtained court approval to continue construction on the new 

well. In fact, the new well was not operational at the time of trial 

because it lacked sufficient electrical power to function. 

The trial court entered judgment for Bunn & Birrell at the 

close of appellants’ case. It determined that appellants cannot 

install new water facilities on Parcel A for their exclusive use, 

and that they failed to introduce credible evidence showing the 

new well is permitted by government agencies or that the alleged 

obstructions are within the easement areas or interfere 

unreasonably with access to or use of the easements. For the 
7

same reason, the court found appellants had not proven their 

trespass claim. 

The trial court also entered judgment for Bunn & Birrell on 

their cross-complaint. It made 28 Declarations regarding the 

parties’ rights and responsibilities under the CC&R’s. The 

Declarations govern the connections to the water facilities; the 

allocation of water and costs associated with maintaining the 

water facilities; the need for unanimous approval for new water 

facilities; use of the easements; appellants’ need to obtain permits 

from regulatory agencies and to remove any unlawful 

construction; and appellants’ obligation to make the new well 

operational. Declaration 29 directs the appointment of a receiver 

to enforce the court’s rulings. 

The trial court awarded Bunn & Birrell the $866,229.50 in 

attorney fees they requested. That amount includes $362,023.50

of the fees awarded to them in Southfork II. 

II. DISCUSSION 

Southfork and King appeal the orders awarding attorney 

fees and costs in Southfork II and III, as well as the judgment on 

the merits in Southfork III. We address the latter argument 

first.

A. Challenge to Southfork III Judgment

1. Standard of Review

A judgment “‘is presumed correct.’” (Denham v. Superior 

Court (1970) 2 Cal.3d 557, 564 (Denham).) Appellants bear the 

burden of overcoming this presumption. (Ekstrom v. Marquesa at 

Monarch Beach Homeowners Assn. (2008) 168 Cal.App.4th 1111, 

1121.) We interpret de novo the CC&R’s that govern the parties’ 

rights and obligations. (Ibid.; Starlight Ridge South Homeowners 

Assn. v. Hunter-Bloor (2009) 177 Cal.App.4th 440, 445.) 
8

Where, as here, the trial court concludes the plaintiffs 

failed to prove their claims by the close of their evidence, “‘the 

question for a reviewing court becomes whether the evidence 

compels a finding in favor of the appellant as a matter of law. 

[Citations.] Specifically, the question [is] whether the 

appellant’s evidence was (1) “uncontradicted and unimpeached” 

and (2) “of such character and weight as to leave no room for a 

judicial determination that it was insufficient to support a 

finding.”’” (Sonic Manufacturing Technologies, Inc. v. AAE 

Systems, Inc. (2011) 196 Cal.App.4th 456, 466 (Sonic); Eisen v. 

Tavangarian (2019) 36 Cal.App.5th 626, 647.) 

2. Bunn & Birrell Did Not Forfeit Their

 Water Rights Under the CC&R’s

Appellants argue Bunn & Birrell forfeited their right to use 

the water facilities when they transferred Parcel AAA to TNC by 

grant deed in 2009. They claim the transfer deprived Bunn & 

Birrell of standing to sue or was an anticipatory repudiation of 

their obligations under the CC&R’s. Neither claim has merit. 

Grants are interpreted in the same manner as contracts. 

(§ 1066; Southern California Edison Co. v. Severns (2019) 39 

Cal.App.5th 815, 822.) The objective in construing a conveyance 

with a reservation of rights is to give effect to the grantor’s 

intent. (Willard v. First Church of Christ, Scientist (1972) 

7 Cal.3d 473, 476-477.) The language in the conveyance and 

relevant extrinsic evidence are used to determine that intent. 

(Pacific Gas & E. Co. v. G.W. Thomas Drayage etc. Co. (1968) 69 

Cal.2d 33, 37-38.) If the court admits extrinsic evidence, its 

finding as to the credibility of the evidence is binding on appeal. 

(Pierpont Inn, Inc. v. State of California (1969) 70 Cal.2d 282, 

294.) “To the extent resolution of the appeal turns on the trial 
9

court’s factual findings, we review such findings under the 

substantial evidence standard.” (Severns, at p. 822.)

The trial court found that the TNC grant deed does not 

contain “any language that can reasonably be construed to 

extinguish Bunn and Birrell’s water rights.” Appellants “did not 

introduce evidence sufficient to prove that [their] unmistakable 

intent . . . was to subordinate, extinguish or forfeit their water 

rights” through the grant deed. 

Attachment 4 to the grant deed is a “Reservation of Certain 

Water Rights and Reservation of Related Access Easement.” The 

first sentence reserves to Bunn & Birrell subsurface waters and 

“the riparian and appropriative water rights associated with the 

Water Well Access Easement . . . for domestic and agricultural 

purposes, as described in [the CC&R’s].” It would be 

unreasonable to conclude that a document expressly reserving 

such water rights also was intended to forfeit those same rights, 

particularly when water is integral to Parcel A’s farming 

enterprise. 

In addition, we agree that the second sentence in the 

reservation of rights clause does not affect the language reserving 

Bunn & Birrell’s water rights under the CC&R’s.5 Even 

assuming there is an ambiguity in the deed, Bunn, Birrell and 

TNC clarified their intent by mutually correcting Attachment 4 

to delete the second sentence and to confirm their intent to 

preserve Bunn & Birrell’s “riparian and appropriative water 

5 The second sentence states: “The Reserved Water Rights 

do not include: any right of surface entry or surface drilling, 

except as described below in the Water Well Access Easement; or 

any right to dam, divert or appropriate surface water from the 

Santa Clara River.” 
10

rights.” As the trial court observed, “‘[f]orfeitures are not favored 

by the courts, and if an agreement can be reasonably interpreted 

so as to avoid a forfeiture, it is the duty of the court to avoid it. 

The burden is upon the party claiming a forfeiture to show that 

such was the unmistakable intention of the instrument. . . . A 

contract is not to be construed to provide a forfeiture, unless no 

other interpretation is reasonably possible.’ [Citation.]” (See 

Boston LLC v. Juarez (2016) 245 Cal.App.4th 75, 85-86.) 

King argues the 2009 grant deed was an “anticipatory 

repudiation” of Bunn & Birrell’s obligations under the CC&R’s. 

King’s failure to raise this issue in the trial court forfeits the 

issue on appeal. (Feduniak v. California Coastal Com. (2007) 148 

Cal.App.4th 1346, 1381; Kolani v. Gluska (1998) 64 Cal.App.4th 

402, 412 [“Generally, failure to raise an issue or argument in the 

trial court waives the point on appeal”].)

Although the CC&R’s were created before the parties 

purchased their parcels, the various covenants in that document 

run with the land.6 (§ 1460 [covenants running with the land are 

appurtenant to an estate in real property and bind successive 

owners].) The purpose of the CC&R’s was “to assure that each of 

the . . . parcels comprising the Southfork Ranch retain adequate 

rights of access to the respective parcels and to the water 

facilities . . . located upon and adjacent to the Southfork Ranch.” 

Appellants cite no authority for their assertion that 

covenants running with the land, which are binding on successive 

6 Section 7 states the CC&R’s “run with the Ranch and 

Parcels, and shall be binding upon all parties having or acquiring 

any right, title, or interest therein or any part thereof, and shall 

be for the benefit of each owner of any portion of said Ranch and 

the Parcels or any interest therein, and shall inure to the owners 

thereof, their transferees, heirs, successors and assigns.” 
11

owners, may be forfeited by one owner without amending the 

CC&R’s. To the contrary, changes to the CC&R’s require 

“execution and recordation of an amendment by all owners of the 

Parcels.” There is no such recorded amendment excluding or 

altering Parcel A’s water rights. (See 6 Miller & Starr, Cal. Real 

Estate (4th ed. 2019) §§ 16:42-16:44 [describing the limited 

methods of amending or terminating restrictions]; Citizens for 

Covenant Compliance v. Anderson (1995) 12 Cal.4th 345, 365-366 

[“[I]t is reasonable to conclude that property conveyed after 

[CC&R’s] are recorded is subject to those restrictions even 

without further mention in the deed”].) 

Southfork contends Bunn & Birrell violated the California 

Environmental Quality Act and misled the County by hiding 

their intent to “construct as many water wells as they desire[] 

. . . .” Not only does Southfork lack standing to assert these 

claims on the County’s behalf, but its assertions are speculative 

at best. The record confirms Bunn & Birrell’s unambiguous 

desire to share a water well with appellants, as provided in the 

CC&R’s. There is no evidence they intend to build costly, 

duplicative wells.

3. Appellants Cannot Exclude Bunn & Birrell

 From Using the Water Facilities

Appellants’ efforts to use the easements to build their own 

water facilities on Parcel A and to deprive Bunn & Birrell of 

water from those facilities defeat the purpose and spirit of the 

CC&R’s. The document repeatedly confirms its intent to benefit 

all parcels, not just appellants’ parcels, and that the rights and 

restrictions apply to existing and replacement water facilities. 

The CC&R’s define water facilities as “the water well, all 

replacement water wells, all existing or replacement pumps, 
12

pipelines, water storage tanks and utility lines existing upon or

added subsequent to this agreement, and serving Parcels A, B and 

C . . . .” (Italics added.) The water well means “the existing 

water extraction and conveyance system, or any replacement 

systems, located adjacent to Parcel A in the Santa Clara River.” 

(Italics added.) Appellants informed the trial court before trial 

that they are building a replacement well because the old one is 

failing.

Section 4.1 of the CC&R’s provides that the water facilities 

“shall collectively be used for the benefit of Parcels A, B and C.” 

(Italics added.) Likewise, a roadway easement on Parcel A “is 

hereby reserved for the benefit of Parcels A, B and C . . . for the 

purpose of installing, maintaining, repairing and replacing any 

components of the Water Facilities including, but not limited to, 

water wells, water storage tanks, pipelines, pumps, water meters, 

utility poles, utilities lines and any other components commonly 

associated with the Water Facilities.” The CC&R’s also authorize 

the formation of an “owners’ association” for the benefit of the 

three parcels any owners created by subdivision. 

The CC&R’s specifically reserve “for the benefit of Parcels 

A, B and C, together with all lots created as a result of the 

subdivision of the Parcels, the right to take water from the Water 

Well. The owners of Parcels A, B and C shall each have the 

nonexclusive right to use to use water from the Water Well, or 

any replacement water well, for the purposes of irrigating 

agricultural crops and landscaping, permanent pasture, and for 

watering any livestock upon Parcels A, B and C.” (Italics added.) 

The location of “the Water Well” is specified in the 1992 

CC&R’s, which do not mention separate wells for each parcel. 

After flooding destroyed the original well, it had to be moved. 
13

The 1996 amendment to the CC&R’s states “it is necessary to 

significantly change the water facilities which necessitates that 

the Declaration be amended by this First Amendment . . . .” The 

CC&R’s thus acknowledge that moving or replacing water 

facilities requires an amendment. The 1996 amendment 

incorporates exhibits specifying the location of the new well and 

states that Parcel C may eventually be assessed “[i]f the owner of 

Parcel C later connects into the Water Facilities . . . .” 

In 2013, Southfork’s principal, Robert McDonough, wrote a 

letter to the Department of Fish and Wildlife, the agency 

responsible for permitting riverbed construction. McDonough 

conceded “the current water diversion as well as any new 

diversion is communal and therefore not solely under the 

auspices of Southfork Ranch or any one individual. The 

associated rights and needs are those of all members of the 

CC&Rs. Consequently, I cannot unilaterally restrict them. Any 

changes to the existing usage or rights defined within the CC&Rs 

requires an amendment to the document, signed by all members.” 

(Italics added.) 

Two years later, appellants took the opposite position at 

trial. The trial court correctly rejected their claim that they can 

build a replacement well without Bunn & Birrell’s participation 

and prevent them from using it. The plain language of the 

CC&R’s, i.e., that the water facilities “shall collectively be used 

for the benefit of Parcels A, B and C,” does not support the 

interpretation that the facilities benefit only Parcels B and C. 

The CC&R’s explicitly foresee construction of “replacement water 

wells” and “replacement pumps, pipelines, water storage tanks 

and utility lines,” and allocate the costs of replacement, repair, 

maintenance among the three parcels. 
14

Section 3 of the CC&R’s grants Parcels A, B and C “the 

nonexclusive right to use water” from the existing well or any 

replacement well. (Italics added.) Appellants seek an exclusive 

right to use water from the replacement well. An “exclusive 

right” is “[o]ne which only the grantee thereof can exercise, and 

from which all others are prohibited or shut out.” (Black’s Law 

Dict. (6th ed. 1990) p. 565.) Neither we nor the trial court can 

transform language affording Parcels A, B and C a “nonexclusive 

right” to well water into an exclusive right for only Parcels B and 

C. (Abers v. Rounsavell (2010) 189 Cal.App.4th 348, 361-362 

[“‘We do not have the power to create for the parties a contract 

that they did not make and cannot insert language that one party 

now wishes were there’”]; accord Pacific Employers Ins. Co. v. 

Superior Court (1990) 221 Cal.App.3d 1348, 1358-1359.) 

In sum, the CC&R’s do not contemplate that the easements 

they created will be burdened by separate water facilities for each 

parcel, plus any new parcels created by subdivision. Moreover, 

nothing in the record suggests the applicable government 

agencies would permit multiple water facilities in the 

environmentally sensitive river. 

4. Interference with Easement

A servient tenement owner “may make any use of the land 

that does not interfere unreasonably with the easement.” 

(Pasadena v. California-Michigan Land & Water Co. (1941) 17 

Cal.2d 576, 579.) In other words, users “have to accommodate 

each other.” (Applegate v. Ota (1983) 146 Cal.App.3d 702, 712.) 

If they do not, the court may order removal of obstructions that 

unreasonably interfere with the easement. (Id. at pp. 712-713.) 

The existence of an interference is a question of fact. (Scruby v. 

Vintage Grapevine, Inc. (1995) 37 Cal.App.4th 697, 703 (Scruby); 
15

Pacific Gas & Elec. Co. v. Hacienda Mobile Home Park (1975) 45 

Cal.App.3d 519, 528.)

The trial court found “a fundamental failure of the 

plaintiff[s] to meet their burden of proof” on their interference 

claim, entitling Bunn & Birrell to judgment as a matter of law. It 

found no credible evidence to establish (1) the easement 

boundaries or obstructions within them; (2) that items in the 

water facilities easement interfere with an intended use; (3) that

obstructions interfere with appellants’ use of the roadway 

easement; (4) that appellants may use the easements to 

unilaterally install water facilities for themselves without Bunn 

& Birrell’s approval; (5) that the new water facilities are properly 

permitted by regulatory agencies; or (6) that appellants were 

denied access to the easements. 

King claims the easement boundaries were not contested at 

trial. We disagree. The legal description of the boundaries was 

not disputed. The issue was proving the alleged obstructions 

appear within those boundaries. The CC&R’s define the 

easement areas by metes and bounds. A surveyor or other expert 

typically must establish the location of the easement based on 

that description. (See, e.g., SLPR, L.L.C. v. San Diego Unified 

Port Dist. (2020) 49 Cal.App.5th 284, 311; Ranch at the Falls LLC 

v. O’Neal (2019) 38 Cal.App.5th 155, 185, fn. 27.) 

The trial court was unable to determine from photographs 

of a mile-long roadway with twists and turns whether “trees and 

pipes and rocks and cement blocks that appeared at various 

places” encroach into the easements. It explained: “[W]hen it 

comes to interpreting a metes and bounds description of the 

boundary for an easement . . . , I need testimony from a licensed 
16

surveyor who can tell me, [t]his is the boundary of the easement” 

and could state that a tree, cement block or pipe encroaches. 

The trial court had warned appellants that a surveyor’s 

testimony would be required if the alleged obstructions were not 

“obvious,” and found that appellants had failed to demonstrate 

that the obstructions in the easements were obvious. (See Sonic,

supra, 196 Cal.App.4th at p. 466.) In the absence of expert 

testimony, the court did not “know how [it] could possibly 

conclude [there’s] an encroachment,” regardless of its 

reasonableness. 

Appellants point to King’s testimony regarding his 

understanding of the easements’ placement, but “[m]atters that 

go beyond common experience and require particular scientific 

knowledge may not properly be the subject of lay opinion 

testimony.” (People v. DeHoyos (2013) 57 Cal.4th 79, 131.) 

“Surveyors and civil engineers, like other experts, may give 

testimony on questions involving matters of technical skill and 

experience with which they are peculiarly acquainted. 

[Citations.]” (Richfield Oil Corp. v. Crawford (1952) 39 Cal.2d 

729, 741; Bloxham v. Saldinger (2014) 228 Cal.App.4th 729, 737-

738.) “The [expert] testimony is not accepted for the purpose of 

varying or contradicting the terms of the deed, but to aid the trial 

court in its difficult task of translating the words of the deed into 

monuments on the surface of the earth, in accord with accepted 

surveying practices.” (Richfield Oil Corp., at p. 741.) As the trial 

court observed, “a surveyor has the knowledge, training, 

experience and licensure to plot [the metes and bounds] on the 

ground and take a picture of it. And that’s the kind of evidence 

that ordinarily carries the day . . . .” 
17

Although King was not prohibited from giving his opinion 

regarding the easements’ boundaries, the trial court did not find 

his testimony helpful. Once again, the issue was not “the 

sincerity of [King’s] belief,” but rather “the accuracy of his 

assessment.” We are bound by this credibility determination. 

(Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925; Citizens

Business Bank v. Gevorgian (2013) 218 Cal.App.4th 602, 613.) 

In sum, appellants have not shown that their evidence was 

uncontradicted, unimpeached and left no room for the trial court 

to determine it was insufficient to support a finding in their 

favor. (Sonic, supra, 196 Cal.App.4th at p. 466.) The lack of 

expert evidence on a critical element of the interference claim 

defeated that cause of action as a matter of law.

Nor are we persuaded by appellants’ argument that they 

are entitled to a new trial because the trial court “arbitrarily 

chang[ed] the rules after [a]ppellants rested,” thereby denying 

them “their due process right to a fair hearing.” They seek an 

opportunity to present on remand the expert evidence they did 

not have available at trial. Appellants waived this argument, 

however, by failing to request a continuance. This was not a jury 

trial. The court had discretion to continue the trial to allow for 

discovery and presentation of expert testimony. (See Noble v. 

Tweedy (1949) 90 Cal.App.2d 738, 742 [“[A] party’s right to a new 

trial upon the ground of surprise” is generally “waived if the 

alleged surprise is not called to the court's attention by a motion 

for a continuance or other relief”].) 

5. The Trial Court Did Not Rewrite the CC&R’s

Appellants assert the trial court either misinterpreted or 

rewrote the CC&R’s. We disagree. 
18

The trial court ruled that Parcel A’s “right to take and use 

water from the Water Well is unrestricted and equal to that of 

any other Parcel,” and that Parcel B cannot impose a water 

schedule, allocate water or modify the well. Appellants misread 

this ruling as mandating equality of water allocation. 

The judgment does not state that each parcel is allocated 

the same amount of water. Instead, it gives the parcels equal 

rights to take advantage of the well. This is consistent with the 

CC&R’s, which state that the water facilities “shall collectively be 

used for the benefit of Parcels A, B and C.” There is no water use 

allocation among the parcels except to limit such usage to crops, 

landscaping, pasture and livestock. 

The CC&R’s presume the parcel owners will use the water 

in an equitable and reasonable manner. Usage is “limited to such 

water as shall be reasonably required for the beneficial use to be 

served . . . .” (Cal. Const., art. X, § 2; see Light v. State Water 

Resources Control Bd. (2014) 226 Cal.App.4th 1463, 1479 [“rule of 

reasonableness” governs water usage].) King’s concern that 

Bunn & Birrell will unreasonably consume water is not 

supported by the record.

Southfork violated the CC&R’s by partially disconnecting 

Parcel A from the water facilities, thereby reducing Bunn & 

Birrell’s water access, and also by giving water to Parcel C even 

though it has no right to water unless and until it connects to the 

water system. The judgment directing appellants to cease these 

violations is consistent with the CC&R’s. 

6. Consent is Required to Build New Water Facilities

The trial court concluded that Parcel B’s authority is 

limited to keeping the water facilities in good condition and 

repair and that unanimous approval of all parcels is required 
19

before any non-maintenance work is performed, including the 

development of additional water facilities. Once again, this 

ruling is consistent with the CC&R’s, which require “the owner of 

Parcel B [to] provide maintenance services for the Water 

Facilities in order to keep the Water Facilities in good condition 

and repair . . . .” The cost of maintaining and repairing the water 

facilities is allocated among the parcels by formula, which may be 

modified if Parcel C (King) connects to the water facilities or if 

the acreage under irrigation changes. 

If Parcel B incurs “extraordinary expenses” over $4,000, it 

“shall obtain an itemized written estimate of the costs involved. 

This estimate, together with the plans and specifications of the 

subject of the proposed expenditure, shall be submitted to the 

owners of Parcels A and C, and such owners shall have ten (10) 

days to object to the costs so itemized.” Disputes over 

extraordinary costs are resolved by the vote of any two parcels, 

except that Parcel C has no right to object or any obligation to 

pay unless it elects to connect to the water facilities. 

Constructing new water facilities is not “maintenance” of 

existing facilities to keep them “in good repair.” The trial court 

found Southfork “admitted during trial that the development of a 

new well is not covered by the CC&Rs.” The CC&R’s do not 

contemplate construction of new water facilities at the discretion 

of Parcel B or any single parcel. Authorizing such construction 

requires an amendment to the CC&R’s detailing what will be 

constructed and who will pay for it. Amendment of the CC&R’s 

also requires unanimous consent unless an owners’ association is 

established to resolve such issues. 

Southfork speculates that Bunn & Birrell will prevent the 

construction of a new well, thereby destroying its ability to farm. 
20

Assuming the old well is failing, as appellants claim, Bunn & 

Birrell also will need water from another source. This action 

involves their right to participate in the decisions for a 

replacement well and to receive water from it. The CC&R’s 

ensure all parcels will have collective, nonexclusive use of the 

water facilities. They also “‘“impose[] upon each party a duty of 

good faith and fair dealing in its performance and its 

enforcement” [Citation.]’” (Carma Developers (Cal.), Inc. v. 

Marathon Development California, Inc. (1992) 2 Cal.4th 342, 371-

372.)

The trial court properly concluded appellants had violated 

the CC&R’s collective water rights provisions by constructing a 

new well without Bunn & Birrell’s approval as to either location 

or cost. Because appellants had acted “officiously” in 

circumventing Parcel A’s water rights, the court declined their 

request for compensation for the well construction. We agree 

appellants should not be rewarded “for their rogue behavior.” 

7. Parcel C’s Water Rights

The trial court found that Parcel C had never connected to 

the water facilities, as required by section 4.7 of the CC&R’s. 

Consequently, King must pay for the installation and 

maintenance of pumps and water lines, cannot irrigate his land 

with Parcel B’s water and cannot vote on or object to 

extraordinary maintenance costs unless he connects to the water 

facilities. 

Appellants contend Parcel C has a prescriptive right to use 

water produced on Parcel A. They emphasize that Southfork 

began using water from Parcel B’s tank to irrigate Parcel C in 

1996. King purchased Parcel C in 2000 and continued using 

water from Parcel B’s tank without connecting to the system in 
21

the manner required by the CC&R’s. After purchasing Parcel A, 

Bunn & Birrell objected to Parcel C’s water use. Southfork 

concedes its conduct in transporting water to Parcel C is “a use 

not permitted by the CC&R’s.” 

Noting appellants had failed to plead their prescriptive 

rights claim or to timely present it before trial, the court found 

they had “waived the right to raise such a claim at this late stage 

of these proceedings.” Southfork argues it preserved the claim by 

asserting the statute of limitations as an affirmative defense. 

We conclude the trial court correctly rejected this untimely 

claim. A prescriptive water right requires proof of an actual, 

open and notorious use that is hostile and adverse to the owner 

under a claim of right, and continuous and uninterrupted for five 

years. (Brewer v. Murphy (2008) 161 Cal.App.4th 928, 938.) 

Proving these elements presents a question of fact for the trial 

court. (Ibid.) 

Had the trial court allowed this belated claim, Bunn & 

Birrell would have been deprived of the right to discover and 

produce evidence refuting these elements. “[A]ny question 

concerning prescriptive rights ‘contemplates a factual situation 

the consequences of which are open to controversy and were not 

put in issue or presented at the trial [so that] the opposing party 

should not be required to defend against it on appeal.’ 

[Citation].” (Dolske v. Gormley (1962) 58 Cal.2d 513, 518-519.) 

In addition, Southfork lacks standing to assert prescriptive 

water rights on Parcel C’s behalf. As the trial court observed, 

Southfork cannot claim a prescriptive right as to its own water 

tank or pipes. (§ 805.) Moreover, appellants cite no authority 

suggesting that a prescriptive right may be implicated where, as 

here, the parties’ relationship is governed by CC&R’s. The case 
22

Southfork cites, Faus v. Los Angeles (1967) 67 Cal.2d 350, is 

inapposite. 

Southfork maintains that section 4.3.4.1 of the CC&R’s 

grants Parcel C voting rights in the event of a dispute over the 

approval of “an expenditure for maintenance work in excess of” 

$4,000. To the contrary, section 4.3 and its subsections confirm 

that Parcel C “shall not be entitled to object to proposed 

expenditures until such time as it has connected into the Water 

Facilities.” There is no indication of any intent to give Parcel C 

pre-connection voting rights. 

8. Southfork’s Other Objections to the Trial

 Court’s Declarations

Southfork contests the trial court’s allocation of 

maintenance costs and directives regarding billing and recordkeeping practices. Declarations 5 through 8 require Southfork to 

follow the CC&R’s. For example, section 4.5.2 directs Southfork 

to bill monthly and “include evidence of payment of the costs,” 

which Southfork objects to doing. Notwithstanding its objections, 

Southfork must obey the CC&R’s. It cannot unilaterally decide to 

forego some of its responsibilities under that document. 

Southfork objects to Declaration 24, which requires 

appellants to use existing electrical power to make their new 

water well operational rather than obtaining additional power. 

Appellants chose to build the new well without involving Bunn & 

Birrell, even though the CC&R’s require their approval of any 

extraordinary expenses. As explained above, Parcel C has no 

water or voting rights, and the CC&R’s do not contemplate that 

appellants would go forward with the well without the requisite 

approvals. Because the electrical power issue should have been 

addressed before construction began, the trial court reasonably 
23

decided it would be inappropriate to impose additional electrical 

power expenses on Bunn & Birrell when only Southfork approved 

the project. 

Southfork challenges Declarations 2 and 15, which prohibit 

Parcel B from imposing water schedules, allocating water among 

the parcels or installing a meter to measure Parcel A’s water 

flow. Contrary to Southfork’s assertions, the trial court did not 

suggest that Southfork is barred from temporarily halting water 

flow while performing routine maintenance. The court’s objective 

was to prevent an interpretation of the CC&R’s that would 

“empower Parcel B to be an administrator, manager, director or 

in any other elevated position of authority[,] making Parcel B 

superior to any other Parcel.” The court explained that the 

CC&R’s limit Parcel B’s duties to “ordinary maintenance and 

repair” and that section 4.6 does not allow Parcel B to install a 

water meter for Parcel A alone, leaving the other parcels 

unmetered. 

Southfork claims it should be allowed to remove or destroy 

at will all property in Parcel A’s easement areas. Declarations 21 

and 22 state that appellants cannot damage or remove Parcel A’s 

water or utility lines, fences, trees and such “absent a showing 

that those items unreasonably interfere with . . . use of the 

easement.” As previously discussed, appellants failed to 

introduce credible evidence of any unreasonable interference 

within the easements. (See, e.g., Inzana v. Turlock Irrigation 

Dist. Bd. of Directors (2019) 35 Cal.App.5th 429, 443-444.) Going 

forward, appellants must secure approval from the trial court or 

receiver before removing or destroying Bunn & Birrell’s personal 

or real property. 
24

Southfork argues that Declarations 23 and 27 improperly 

require appellants to prove they have permits from “all public 

agencies having jurisdiction over the new upstream well site in 

the Santa Clara River” and must remove the new facilities if they 

cannot be lawfully completed. The trial court found appellants 

did not accurately inform the agencies that regulate the river 

bottom about the nature and purpose of their construction or

prove that the agencies authorized the new well. It concluded 

appellants “have not met their burden of proof with respect to 

establishing that they have the right to take the water . . . with 

whatever structure [they] put out in the river bottom subsurface, 

. . . that’s in compliance with the regulations of . . . whatever 

agency controls it.” The court emphasized that no one contests 

the parties’ right to take water from the old well, even if it is not 

producing robustly. 

Appellants had the burden of proving the legality of the 

new well they rushed to construct. The trial court reasonably 

found appellants are responsible for removing the new well if 

governing agencies deny permits for it. Indeed, by claiming the 

court failed to identify which agencies must give approval, 

Southfork implicitly concedes its failure to obtain the necessary 

permits and approvals. 

Declaration 28 requires appellants to obtain Bunn & 

Birrell’s permission to use their private roadways outside the 

easement area to access the water facilities. Substantial 

evidence supports the trial court’s finding that Southfork did not 

develop a prescriptive right to those roads based on prior use. 

The court noted that neither Bunn & Birrell nor their 

predecessors interfered with that use because an operational well 

is necessary to irrigate their crops. The court observed that Bunn 
25

& Birrell will continue to benefit from Southfork’s use of their 

roads to service the well, but found the prior “neighborly 

accommodation” did not ripen into a prescriptive easement based 

on hostile or adverse use. 

Finally, many of the challenges to the Declarations are 

based on concerns of what could happen if they are not reversed. 

Appellants claim the Declarations are unduly burdensome and 

could result in several inequities. For example, appellants 

express concern about Parcel A’s potential monopolization of the 

water supply and the possible decrease in their property values if 

this and other events come to pass. 

We do not reverse rulings based upon speculation about 

what may or may not occur in the future. (See People v. Gray

(2005) 37 Cal.4th 168, 230 [speculation cannot support reversal of 

a judgment]; In re Esmeralda S. (2008) 165 Cal.App.4th 84, 96 

[same].) If, as appellants claim, a portion of the judgment proves 

unduly burdensome or inequitable as time goes on, proof to that 

effect can be presented to the trial court. (See Scruby, supra, 37 

Cal.App.4th at p. 708.) “‘We must assume reasonable action of 

the trial court in the future in determining whether its decree 

has in fact been violated’” or has become otherwise impracticable. 

(Ibid., citation omitted.) 

B. Challenges to Attorney Fees and Costs in

Southfork II and III

The CC&R’s state that “[i]n the event of a suit, at law or 

equity, or other action or proceeding, by one or more parcel 

owners against other parcel owners, to enforce the terms of these 

CC&Rs, the prevailing party shall be entitled to recover all 

litigation costs and expenses, including without limitation 
26

reasonable attorney fees and expert witness fees from those 

owners who do not prevail.” 

TNC sought $926,708.30 in attorney fees and costs. After 

reducing its law firm’s requested hourly rate, the trial court 

awarded $585,865.83. Bunn & Birrell were collectively awarded 

$391,418.55 in attorney and expert fees for Southfork II. They 

also were awarded $504,206 in the current case (Southfork III.) 

Appellants contest both the legality and reasonableness of the 

awards. 

1. Standard of Review

“‘“On review of an award of attorney fees after trial, the 

normal standard of review is abuse of discretion. However, de 

novo review of such a trial court order is warranted where the 

determination of whether the criteria for an award of attorney 

fees and costs in this context have been satisfied amounts to 

statutory construction and a question of law.”’ [Citations.] In 

other words, ‘it is a discretionary trial court decision on the 

propriety or amount of statutory attorney fees to be awarded, but 

a determination of the legal basis for an attorney fee award is a 

question of law to be reviewed de novo.’ [Citations.] . . . [W]here 

the material facts are largely not in dispute, our review is de 

novo.” (Mountain Air Enterprises, LLC v. Sundowner Towers, 

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

2. Appellants’ Causes of Action are Based on a Contract

Appellants argue the trial court improperly awarded 

attorney's fees because this matter is not an “action on a 

contract” within the meaning of section 1717. But the term “on a 

contract” does not mean only traditional breach of contract causes 

of action. Rather, “‘“California courts ‘liberally construe “on a 

contract” to extend to any action “[a]s long as an action ‘involves’ 
27

a contract and one of the parties would be entitled to recover 

attorney fees under the contract if that party prevails in its 

lawsuit.”’”’” (In re Tobacco Cases I (2011) 193 Cal.App.4th 1591, 

1601; see Mitchell Land & Improvement Co. v. Ristorante 

Ferrantelli, Inc. (2007) 158 Cal.App.4th 479, 489.) Specifically, 

“[a]n action (or cause of action) is ‘on a contract’ for purposes of 

section 1717 if (1) the action (or cause of action) ‘involves’ an 

agreement, in the sense that the action (or cause of action) arises 

out of, is based upon, or relates to an agreement by seeking to 

define or interpret its terms or to determine or enforce a party's 

rights or duties under the agreement, and (2) the agreement 

contains an attorney fees clause.” (Douglas E. Barnhart, Inc. v. 

CMC Fabricators, Inc. (2012) 211 Cal.App.4th 230, 241-242 

(Douglas E. Barnhart).)

Appellants correctly assert “section 1717 does not apply to 

tort claims; it determines which party, if any, is entitled to 

attorneys’ fees on a contract claim only.” (Exxess Electronixx v. 

Heger Realty Corp. (1998) 64 Cal.App.4th 698, 708, italics 

omitted; Xuereb v. Millichap, Inc. (1992) 3 Cal.App.4th 1338, 

1342.) “‘Whether an action is based on contract or tort depends 

upon the nature of the right sued upon, not the form of the 

pleading or relief demanded. If based on breach of promise it is 

contractual; if based on breach of a noncontractual duty it is 

tortious. [Citation.] If unclear the action will be considered 

based on contract rather than tort. [Citation.] [¶] In the final 

analysis we look to the pleading to determine the nature of 

plaintiff's claim.’” (Kangarlou v. Progressive Title Co., Inc. (2005) 

128 Cal.App.4th 1174, 1178-1179.)

The label a party places on a cause of action is not 

dispositive. Instead, courts look to the gravamen of the overall 
28

action. (See Hyduke’s Valley Motors v. Lobel Financial Corp.

(2010) 189 Cal.App.4th 430, 436.) “An action is more likely to be 

found ‘on a contract’ for purposes of [section] 1717 if the 

agreement is broad in scope or if the main thrust of the litigation 

is based on the contract.” (Pearl, Cal. Attorney Fee Awards 

(Cont.Ed.Bar 3d ed. 2020) § 4.50.)

CC&R’s are considered a contract. (Pinnacle Museum 

Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 

Cal.4th 223, 240, 246.) Respondents contend appellants’ causes 

of action in Southfork I and II were themselves fundamentally 

grounded in the rights and obligations arising out of the CC&Rs 

and that their defensive responses flowed from those claims. We 

agree. 

Assessing the gravamen of the case, we conclude — as did 

the trial court — that the actions were on a contract. Although 

the causes of action for interference with easement and trespass 

typically sound in tort, analyzing those claims requires an 

interpretation of the CC&R’s. In other words, respondents’ acts 

were fundamentally related to and performed under the auspices 

of the rights and obligations delineated by the CC&Rs. (See, e.g.,

Beeman v. Burling (1990) 216 Cal.App.3d 1586, 1608 [holding 

that a wrongful eviction action under a housing ordinance was 

“on a contract” because it was “fundamentally . . . based upon the 

lease, in that respondent sought compensation for appellant’s 

wrongful interference with respondent's occupation and 

enjoyment of the leased premises”]; Kachlon v. Markowitz (2008) 

168 Cal.App.4th 316, 347-348 [equitable action seeking 

declaratory and injunctive relief and to quiet title based on 

violations of the terms of a promissory note and deed of trust are 

actions on a contract]; Texas Commerce Bank v. Garamendi
29

(1994) 28 Cal.App.4th 1234, 1246-1247 [“Actions for a declaration 

of rights based upon an agreement are ‘on the contract’ within 

the meaning of Civil Code section 1717” where “the issues in the 

case had . . . everything to do with the interpretation of the 

[relevant contracts]”].) 

3. Reasonableness of Attorney Fees and Costs

Appellants raise several claims regarding the 

reasonableness of the fees and costs. First, King contends Bunn 

& Birrell’s recovery of fees as intervenors in Southfork II should 

be reversed because they over-litigated the matter. He asserts a 

demurrer or motion for judgment should have been brought 

earlier in the case, which would have obviated the need for 

further litigation and fees. 

Not only did King fail to raise this issue in the trial court, 

but he also did not oppose Bunn & Birrell’s motion for fees at all. 

Likewise, Southfork did not contest the reasonableness of the 

fees. In City of Santa Paula v. Narula (2003) 114 Cal.App.4th 

485, we declined to consider whether attorney fees were 

unnecessary or excessive because the point was not raised in the 

trial court. (Id. at p. 494; accord Planned Protective Services, Inc. 

v. Gorton (1988) 200 Cal.App.3d 1, 13, overruled on another 

ground by Martin v. Szeto (2004) 32 Cal.4th 445, 451.) We reach 

the same conclusion here. 

We also are not persuaded by King’s suggestion that taking 

earlier action in Southfork II would have resulted in less fees and 

costs. As recognized in Premier Medical Management Systems, 

Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 

550, “[i]n challenging attorney fees as excessive because too many 

hours of work are claimed, it is the burden of the challenging 

party to point to the specific items challenged, with a sufficient 
30

argument and citations to the evidence. General arguments that 

fees claimed are excessive, duplicative, or unrelated do not 

suffice. Failure to raise specific challenges in the trial court 

forfeits the claim on appeal.” (Id. at p. 564; Lunada Biomedical 

v. Nunez (2014) 230 Cal.App.4th 459, 488.) Not only has King 

failed to meet this burden, but he also has not adequately 

demonstrated that Bunn & Birrell’s attorneys performed 

unnecessary work in Southfork II and III. 

Third, appellants argue the fees and costs should have been 

apportioned in Southfork III because some of the claims were not 

based “on a contract.” (§ 1717.) We already have rejected this 

argument. Moreover, apportionment between covered and 

uncovered claims is within the trial court’s discretion. (Bell v. 

Vista Unified School Dist. (2000) 82 Cal.App.4th 672, 687.) 

Appellants have not demonstrated an abuse of that discretion 

given the significant overlap between the issues raised in the 

complaint and cross-complaint. (See Douglas E. Barnhart, supra,

211 Cal.App.4th at p. 250.) 

Lastly, appellants contend the attorney fees recovered by 

Bunn & Birrell as intervenors in Southfork II and as defendants 

and cross-complainants in Southfork III should have been 

separately allocated so that none of the fees awarded for 

Southfork II would be included in the Southfork III order. The 

trial court found Bunn & Birrell had properly identified and 

allocated the fees incurred solely in Southfork II and Southfork 

III, as well as the fees incurred on issues, facts and law common 

to both. 

Generally, “‘[a]pportionment is not required when the 

claims for relief are so intertwined that it would be impracticable, 

if not impossible, to separate the attorneys time into compensable 
31

and non-compensable units.’” (Douglas E. Barnhart, supra, 211 

Cal.App.4th at p. 250.) In any event, the trial court addressed 

appellants’ concerns regarding a possible double recovery. While 

it is true that both Southfork II and Southfork III include 

duplicative awards of $376,638.10 in attorney fees and 

$14,780.45 in expert fees, the court stated it would not allow 

double payments. Once an obligation is paid in one case, 

respondents do not “get to recover in the second case.” In that 

event, appellants would be entitled to a credit or offset under the 

satisfaction of judgment rules. (See Code of Civ. Proc., 

§ 724.010.) 

In its reply brief, Southfork concedes it is not concerned 

about a double recovery of the $376,638.10 in attorney fees 

because that amount has been credited toward the Southfork II 

and III awards. Its concern involves the $14,780.45 duplicative 

award of expert fees in the two cases. Although the trial court 

made clear it would not allow a double recovery, we shall modify 

the fee orders to confirm that payment of the expert fees will be 

credited against the amount due in both orders.7 

4. Judicial Estoppel

“‘Judicial estoppel [is a discretionary, equitable doctrine 

that] enables a court to protect itself from manipulation. The 

interested party is thus the court in which a litigant takes a 

position incompatible with one the litigant has previously taken

. . . .’ [Citation.]” (Jackson v. County of Los Angeles (1997) 60 

Cal.App.4th 171, 184.) The decision whether to apply the 

7 In light of this decision, we need not consider appellants’ 

alternative argument that the duplicative fee awards violate the 

one judgment rule.
32

doctrine is reviewed for abuse of discretion. (Kerley v. Weber 

(2018) 27 Cal.App.5th 1187, 1195.) 

Southfork raised this argument in opposition to Bunn & 

Birrell’s motion for attorney fees in Southfork II. It claimed 

Bunn & Birrell took opposing positions in two separate 

proceedings and should be penalized as a result. But Southfork 

did not raise the issue at the hearing on the motion and the trial 

court never expressly ruled on it. The court granted all the fees 

they sought, implicitly rejecting the judicial estoppel claim. 

We are not inclined to second-guess the trial court on 

whether it should have applied a discretionary, equitable doctrine 

under the facts of this case. The abuse of discretion standard 

requires a showing that the court “‘exceed[ed] the bounds of 

reason, all of the circumstances before it being considered.’” 

(Denham, supra, 2 Cal.3d at p. 566.) Southfork has not met that 

burden. It had an opportunity to secure a ruling on its judicial 

estoppel argument but failed to do so. On this record, it is 

impossible to assess whether an abuse of discretion occurred. 

The court may have had a good reason for rejecting the doctrine. 

As previously discussed, the trial court recognized the two 

judgments include some duplicative fees and costs and imposed 

safeguards to prevent a double recovery. It may have been 

preferable to clarify the judgments, but appellants have not 

demonstrated that these safeguards and the satisfaction of 

judgment procedures will not protect them. (See Code of Civ. 

Proc., § 724.010.) 

5. Award of Expert Fees

The trial court awarded Bunn and Birrell a total of 

$14,780.45 in expert fees. Those fees were included in both 

Southfork II and III fee orders. As with the attorney fees, the 
33

court included safeguards against a double recovery so that the 

same amount will not be paid twice. 

Appellants argue Bunn & Birrell failed to plead and prove 

the expert fees at trial, but such proof is not necessary where, as 

here, the agreement specifically entitles the prevailing party to 

expert fees. (See Thrifty Payless, Inc. v. Mariners Mile Gateway, 

LLC, (2010) 185 Cal.App.4th 1050, 1067 [It is “unnecessary to 

specially plead and prove expert witness fees, at least in a case 

where expert fees are explicitly included in the contract as 

recoverable costs”].) We are not persuaded that our decision in 

Jones v. Union Bank of California (2005) 127 Cal.App.4th 542 

compels a different result. 

III. DISPOSITION

The post-trial judgment in favor of Bunn & Birrell in 

Southfork III (No. B279391) is affirmed. The orders awarding 

attorney fees and costs to respondents in Southfork II and III 

(No. B280994) are modified to clarify that the $14,780.45 award 

of expert fees may only be collected once. In all other respects, 

they are affirmed. Respondents shall recover their costs on 

appeal. 

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P. J. YEGAN, J.
34

Kent M. Kellegrew, Judge

Superior Court County of Ventura

______________________________

Law Offices of Gary Byron Roach, Gary Byron Roach, for 

Plaintiff, Appellant and Cross-Appellant Southfork Ranch, LLC.

Miller Starr Regalia, Amy Matthews and Matthew C. 

Henderson, for Plaintiff, Appellant and Cross-Appellant R. Eric 

King.

Arnold LaRochelle Mathews Vanconas & Zirbel, Dennis 

LaRochelle and Susan McCarthy; Karcher Harmes, Kathryn E. 

Karcher, for Defendants, Respondents and Cross-Respondents 

David Bunn and Ellen Birrell.

Covington & Burling LLP, David B. Goodwin, Martin H. 

Myers, Alexa R. Hansen and Benjamin Cain, for Respondent The 

Nature Conservancy.