Filed 8/16/16 Lone Jack Ranch v. Perkins CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



LONE JACK RANCH, LP,                                                D066920

      Plaintiff, Cross-defendant and
Respondent,
                                                                    (Super. Ct. No. GIN053365)
         v.

VIRGINIA PERKINS,

      Defendant, Cross-complainant and
Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Earl H.

Maas, Judge. Affirmed.

         DeLano & DeLano, Everett L. DeLano III and M. Dare DeLano for Defendant,

Cross-complainant and Appellant.

         No appearance for the Plaintiff, Cross-defendant and Respondent.
                                     INTRODUCTION

       This is the second appeal in a dispute between adjacent property owners, Lone

Jack Ranch LP (Lone Jack Ranch) and Virginia Perkins (Virginia) regarding the use of a

road across Lone Jack Ranch for access to Virginia's property.1 Virginia asserts four

contentions in this appeal: (1) the trial court improperly granted Lone Jack Ranch a

directed verdict on her prescriptive easement claims, (2) the jury's finding that an

irrevocable license to use the road may be revoked for failure to comply with reasonable

requests to close and lock gates upon passing through Lone Jack Ranch is not supported

by the law or the facts, (3) the use of gates fails to preserve Virginia's contract rights and

unreasonably restricted her access rights, and (4) the trial court erred in denying her

request for attorney fees on her contract claims. We disagree with each of these

contentions and affirm the judgment.2

                                      BACKGROUND

                                              A

       The parents of Virginia and Steve purchased property known as Perkins Ranch, as

a second home in 1951 when Virginia was 11 years old. The property contained an old



1       Because Virginia and her brother, Steve Perkins, share a surname, we refer to
them by their first names for clarity. No disrespect is intended. Virginia, the defendant
herein, is sometimes referred to as "Ginger" in the record, presumably because she shared
a first name with her mother. We refer to the defendant by her given name.

2      Lone Jack Ranch abandoned its cross-appeal in this matter indicating it was
"financially unable to continue the protracted litigation and second round of appellate
briefing." It stipulated with Virginia that each party would bear its own costs related to
Lone Jack Ranch's cross-appeal. It did not file a respondent's brief.
                                               2
copper mine. Lone Jack Ranch, the adjacent property, was owned by Ed Lloyd. The

Perkins family lived in Los Angeles, but visited their property on weekends and holidays.

       To access the Perkins Ranch, the Perkinses used RS181, which was previously

developed as a mining road, across Lone Jack Ranch. There was no lake on Lone Jack

Ranch at the time. At some point, the Army Corps of Engineers built a dam and a lake

on Lone Jack Ranch, which inundated a portion of RS181. Lloyd had a dirt road graded

around the lake for the use of the Perkinses. They started using the dirt road when it was

built in 1952 or 1953. There was no dispute between the Perkins family and Lloyd after

construction of the lake about the use of the dirt road.

       The Perkins family sold their Los Angeles home in the late 1960s and moved to

the Perkins Ranch when Virginia was 28 years old. Virginia stayed in Los Angeles for a

number of years. She moved in with her parents at the Perkins Ranch in 1981 for about

six months until she moved into her Encinitas home.

       In 1975, Ken Liberty purchased Lone Jack Ranch and developed a close

relationship with the Perkins family. They socialized and had dinners together. Liberty

was "pulled into the family" and described Steve as his closest friend. Liberty did not ask

the Perkinses to stop using the dirt road.

       The Perkinses developed a disagreement with Liberty in 1979 or 1980 because

they wanted to build a new road through Lone Jack Ranch for purposes of building a

subdivision on their property. Liberty did not want to destroy the dam for the road.

       The Perkinses sued Liberty. They entered into a settlement agreement in 1981

(1981 Settlement Agreement). Liberty agreed not to oppose efforts by the Perkins family

                                              3
to "improve and utilize" RS181 as access to their property, which the County of San

Diego was to realign to avoid the lake. Liberty granted the Perkins family a 40-foot

easement over the newly aligned road, which was outside of the area where the dirt road

was located, and granted "all necessary temporary easements and rights of entry"

necessary for the construction of RS181.

       As part of the 1981 Settlement Agreement, the Perkinses agreed "not to oppose

any efforts" by Liberty "to close, revegetate, or otherwise barricade [the] existing dirt

road upon completion of the new alignment of RS181, it being understood that upon

implementation of this settlement agreement there shall be but one public roadway

traversing the Liberty property, namely the new alignment of RS181." The 1981

Settlement Agreement also provided, "[u]pon demand the Perkinses shall quitclaim to

[Liberty] any and all interest they and their family may have in the dirt road which

currently traverses the Liberty property, provided the Perkinses shall not quitclaim any

interest in such dirt road unless and until the new alignment of RS181 as herein described

is ready and available for access use by the Perkinses." (Some capitalization omitted.)3

       In the prior appeal we described the parties conduct after they entered into the

1981 Settlement Agreement: "Pursuant to the settlement agreement, in August 1981

Liberty caused a grant of easement over [RS181] in favor of the Perkinses to be recorded.


3      In the prior appeal, we concluded the agreement did not deprive the Perkinses of
any prescriptive rights in the dirt road on the mere drawing of the realignment of RS181.
However, we also concluded the 1981 Settlement Agreement "did not determine whether
the Perkinses, or their successors, actually had prescriptive rights of access over the dirt
road." (Lone Jack Ranch, LP v. Virginia Perkins (Mar. 1, 2013, D060995)
[nonpub.opn.].)
                                              4
The grant permitted the Perkinses to irrevocably offer to dedicate the easement to the

County 'as part of the public road system.' In turn, the Perkinses made an irrevocable

offer of dedication of the easement to the County. In October 1981 a parcel map for a

tentative subdivision map for Perkins Ranch was approved and recorded. In December

1981 the County drew the new alignment of [RS181] to go around the lake, and the

County vacated the old alignment." (Lone Jack Ranch, LP v. Virginia Perkins, supra,

D060995, fn. omitted.)

       The Perkinses and Liberty remained friendly and courteous thereafter. The

Perkinses continued using the dirt road and Liberty did not ask them to stop doing so

after they entered into the 1981 Settlement Agreement. The Perkins family has never

done anything to construct a roadway within the 40-foot easement agreed to in the 1981

Settlement Agreement.

       Virginia frequently visited the property from 1981 until 2002 when her mother

passed away. For the next several years, she visited the property infrequently until she

acquired the property in 2006.

       Steve testified he worked on the dirt road over the years with his tractor and

helped build up the road with gravel and decomposed granite, which was delivered to the

property at the expense of the Perkinses. Steve maintained the road superficially after a

rain. Virginia observed him use the tractor to maintain the dirt road on the Lone Jack

Ranch property a few times between 1981 and 2005.




                                             5
                                              B

       Jeffrey Moses purchased Lone Jack Ranch in 1994.4 As an outdoorsman with two

young boys, Moses considered the property on the edge of town to be a dream. His boys

built rafts and his daughter learned to swim in the lake. They hosted Boy Scout events

and fishing contests. Moses envisioned having a peaceful place to live in his later years.

       Moses understood the Perkins family used a dirt roadway across his property to

access their property. Moses did not object to their use of the roadway.

       As a result of the agreement with the prior owner of Lone Jack Ranch, he

understood the property was subject to a 40-foot easement upon which the Perkins family

could build a road. The easement was in a different location than the dirt road the

Perkins family used.

       Moses paved the dirt roadway from the entrance gate and the left fork of the

roadway going into his driveway at a cost of about $35,000. The Perkins family

contributed a couple of thousand dollars to the project. The Perkins family did not pave

the right fork of the road which led to their property.

       Lone Jack Ranch was fenced and gated when Moses purchased it.5 However, the

gates and fencing were old and Moses replaced them for the safety of his family and to

prevent liability from trespassers. The Perkins family did not object.



4       After a divorce, Moses transferred title of the property to Lone Jack Ranch, L.P.
for estate planning purposes.

5      Steve described the gates as "stock" gates used for cattle, which were extensions
of barbed wire fencing that could be opened and closed.
                                              6
       In the late 1990s Moses talked with Steve about making the gates to the properties

more secure due to concerns about trespassers. Individuals trespassed on both properties

with motorcycles and four-wheeled vehicles and used guns for target practice. Moses

had problems with bonfire parties and underage drinking at the lake on his property. He

encountered a group of young people carrying a rubber raft with paddles and an ice chest

full of beer headed to his lake. They came through the back gate of his property. He also

found a young couple using a row boat on the lake with their infant child.

       Moses and Steve discussed the need for stronger gates because they both wanted

to stop the trespassers. Steve offered an old electric gate, but they decided to purchase a

new gate. Steve contributed to the cost of the new gate at the front of Lone Jack Ranch

property. It was an electric gate with a radio controller, like a garage door opener, as well

as a keypad with programmable codes. It also had a telephone system to open the gate.

       After the front and back gates were installed, both Steve and Moses acted in

concert to keep the gates closed to prevent trespassers. If Moses saw the rear gate open,

he would close it.6

       After their mother passed away in 2002, the Perkins children split the property into

three two-parcel segments and Virginia obtained the ranch house.

                                             C

       In 2004, Moses encountered Virginia driving through the property as he was

working near the front of the property. She stopped and said in an angry and



6      Steve denied the back gate was closed while he was living on the property.
                                             7
confrontational way that she intended to tear down the gate and put a public road through

the property. After Virginia moved into the property, the rear gate was not closed on a

consistent basis, but Moses would close it when he saw it open.

        Moses sent Steve and Virginia a number of letters asking them to close and lock

the gates. In October 2004, Moses sent Steve a letter indicating the front gate had been

repaired after damage Steve caused. Moses also stated he planned to change the gate

access code and provided the new code number along with a telephone number of the

gate company to change the new code, if they desired. Moses paid for the gate repair.

Moses received no response to this letter. There was no lock on the back gate at the time.

        Moses sent Steve another letter in January 2006 asking the Perkinses to lock the

gate at the back of the property. The letter noted the Moses family had been " 'pestered

by trespassers [and] joggers,' et cetera 'coming through your property from the other side.

They insist that they have been given permission by someone at your residence to pass

through.' " He asked the Perkinses to comply with his requests to keep the gates locked

because he intended to purchase some farm animals and because he was concerned about

liability for young people "attempting to fish and party on the waterfront." Moses was

also concerned about their daughter being alone on the property while Moses and his wife

traveled on mission trips.

        The letter included a lock to be joined with a lock Moses placed on the gate, which

would allow the Perkinses to open the lock series. Moses asked the Perkinses to lock the

gate after they passed through to secure the property. The Perkinses never installed the

lock.

                                             8
       Virginia first objected to the presence of the rear gate in 2006. Virginia sent a

letter stating they had legal access to their property across Moses's property for over a

hundred years and Moses had ignored a demand to remove a gate. It went on to state he

had "now closed another gate," which Moses understood to mean the back gate. It

demanded that both gates remain open.

       Moses responded with another letter referring to his prior letter to Steve requesting

the gates be locked and including a set of locks. He again asked for the gates to be closed

and locked for security reasons and to prevent egress of the animals he intended to

acquire. The letter also noted the Perkinses' gate access code had been posted on the

front gate for anyone to open the gate. He expressed concern about this endangering the

safety of their daughter who sometimes stayed on the property alone. He did not receive

a response to this letter and the gates were never closed.

       Moses wrote to the Perkinses in March 2006 stating their gate access code had

again been posted on the front gate keypad, this time in indelible marking pen. He

expressed concern about this conduct allowing "anyone and everyone complete access to

our home, lake and property." He noted this was done after the signed receipt of his

previous letter expressing concern about this conduct. The letter also noted they

repeatedly left the back gate open making it impossible for Moses to proceed with the

purchase of the animals as planned and placing the Moses family at risk of trespassers.

Moses received a return receipt, but no response to this letter.

       Moses retained an attorney who sent another letter advising the Perkinses their

conduct in leaving the gates open, writing the security codes on the locked gates, and

                                              9
allowing the public to access the Moses property was unacceptable. The letter indicated

Moses would pursue legal remedies if he did not receive a response.

       When Moses returned from a trip on May 21, 2006, he received a letter from a

consultant who indicated the Army Corps of Engineers had sent a letter to the wrong

address. It also indicated the consultant observed dirt and rock debris had been dumped

on Moses's property while he was away. Moses was surprised because he had not

authorized anyone to dump dirt on his property.

       The letter from the Army Corps of Engineers was dated almost a year earlier and

was sent to the wrong address. It indicated Moses or his contractors had discharged

dredged or fill material into a tributary of the Escondido Creek. Moses was surprised at

this letter. He later learned this was related to work he had done to clear out a culvert

when the dam in his lake had been close to overflowing during heavy rains. He resolved

the issue with the Army Corps of Engineers by planting some trees near the culvert.

       On the morning of May 22, 2006, as he was having breakfast, he noticed a dump

truck dumping dirt on his property. Moses ran down the driveway in his pajamas and

slippers to talk to the driver. When Moses asked the driver what he was doing, the driver

said truck drivers in the area had been told this was a place where dirt could be dumped.

Moses corrected the driver, told him to leave, and told him to tell others they could not

dump dirt on his property. Moses was very upset.

       Moses wrote to the Perkinses stating it had "become apparent that the gate code

has been acquired by certain people that have taken illegal advantage of my property and

dumped dirt and vegetation and debris." Moses again asked them not to post the gate

                                             10
code. He stated he would change the gate access code again, and provided the new code

number. Moses received no response and the gates were still left open.

                                             D

       Moses filed suit in June 2006. A couple of months later, Moses sent another letter

to the Perkinses stating they repeatedly left the driveway gate open and again posted the

gate access code on the keypad. Moses advised he would again change the gate access

code and provided the new code. Additionally, he advised he would be placing a

combination lock on the back gate and provided the combination. He again asked them

to keep the gate closed and locked. He said if they continued abusing the "courtesy use

of our driveway in lieu of your easement," he would pursue further action. Moses

received no response to this letter and the back gate was not closed.

       Moses delivered a letter to Virginia regarding an encounter he had with her and a

sheriff's deputy at his front gate on August 16, 2006. He reiterated he would not tolerate

her posting the gate access code outside the gate. He described her demeanor as

contentious and argumentative when he went with her to the back gate to show her how

to open the combination lock. He asked her to respect the polite use of his driveway,

which he had given her permission to use. Virginia stated she would do whatever she

pleased.

       Later that evening, after returning home from taking his wife to dinner and the

movies, Moses checked the back gate. He found it was open and a piece of paper was

attached to a post providing the combination for the lock.



                                            11
       Moses wrote a letter to Virginia revoking permission to use his private driveway

access. When Virginia came onto his property with a line of heavy equipment the next

morning, he went out to meet them and to warn them he wanted reimbursement if they

damaged his driveway. He delivered the letter to Virginia, told her he was going to

change the gate access code again, and provided the new code.

       Virginia claimed she was locked out of her property from August 18, 2006, until

the first week of October 2006. She said she visited her property on one occasion during

that time by taking an alternate route across other property and on a rough fire road.

       Moses purchased a new lock for the back gate and changed the gate access codes

to match. He understood Virginia had a remote control to operate the front gate, which

did not change when the code changed.

       Moses received a letter from Virginia's attorney stating the rear gate needed to

remain open due to her back condition. Moses saw Virginia cross his property twice on

September 1, 2006, during a period of time she later claimed she was locked out. She did

not ask for assistance entering or exiting the property.

       As requested by Virginia's attorney, Moses left the back gate open for several days

while she was having work done on her house. He also left it open at her request for

Thanksgiving.

       Moses paid $2,000 to $3,000 for repairs to the front gate and approximately

$4,000 for electricity and telephone hookups for the gate. The Perkins family did not

contribute anything to the gate service or repairs since the gate was installed. Similarly,



                                             12
they did not contribute to the road maintenance or repairs since the driveway was first

paved.

         Virginia stated she posted the gate access codes for short periods of time due to

emergency situations or because contractors were coming to work on her property. She

also stated she injured her back when operating the back gate. She denied receiving the

letters Moses sent except for one she said was posted on their property and another

Moses threw into her truck.

         She also stated she observed Moses engaging in illegal activities on his property

since 2004 and felt his actions in locking the gates were retaliatory because her family

reported the activities. She testified she believed they should have free, unfettered

access, without gates, to her property to avoid conflict between the neighbors.

                                               E

         The court granted Lone Jack Ranch's motion for a directed verdict on Virginia's

cross-complaint asserting a prescriptive easement. The court concluded there was no

evidence of adverse use of the dirt road with adverse intent. Instead, the court

determined the use was permissive.

         The jury determined Virginia had a contractual right under the 1981 Settlement

Agreement to access her property across Lone Jack Ranch by using the dirt road until

RS181 is constructed. The jury also found Virginia had a license to use the "private" or

dirt road and the license became irrevocable based upon the money and labor the Perkins

family expended on the road. However, the jury determined the license "[b]ecomes

revocable if [Virginia] and family, visitors, etc. do not comply with [Moses's] reasonable

                                              13
request to close gates when passing in and out of [Moses's] property." The jury found the

license permitted Lone Jack Ranch to gate the front and back of the property and it did

not unreasonably interfere with Virginia's access rights.

       The jury found in favor of Lone Jack Ranch on Virginia's claim of financial elder

abuse when it determined Lone Jack Ranch did not take or retain Virginia's property for a

wrongful purpose.

       The court denied Virginia's motion for new trial on the prescriptive easement and

also denied her motion to declare an easement by estoppel finding the facts did not

support such an easement. Even if the issue were properly before the trial court, it noted

it would rule against Virginia as a matter of equity. The court stated, "[s]he was not

persuasive or credible in her descriptions of how the use of the road came to pass. She

was argumentative during examination and attempted to get improper matters before the

jury." Finally, the court denied the motion for judgment notwithstanding the verdict

regarding the imposition of conditions on the irrevocable license. The court stated, in its

evaluation of the evidence, "the jury made exactly the correct decision. Leaving the gate

open, posting of the gate code or otherwise causing the gate to be accessed by strangers

was and is unreasonable and a threat to the safety and security of [Lone Jack Ranch]."

       The court entered judgment declaring "[Lone Jack Ranch] is and was entitled to

gate and lock its property at both the northern and southern borders; [Virginia] has no

prescriptive rights in the private road traversing Lone Jack Ranch; [Lone Jack Ranch] is

entitled to gate Lone Jack Ranch; and [Lone Jack Ranch] did not unreasonably interfere

with [Virginia's] access rights." The judgment denied all relief on Virginia's operative

                                            14
cross-complaint "except to the extent the jury found that [Virginia] has an irrevocable

license to use the private road easement until RS181 is constructed so long as [Virginia]

and family, visitors, etc. comply with [Lone Jack Ranch's] reasonable request to close

gates when passing in and out of Lone Jack Ranch. [Virginia's] (and her … family,

visitors, etc.) failure to comply with [Lone Jack Ranch's] reasonable request to close

gates when passing in and out of Lone Jack Ranch will result in the irrevocable license

becoming revocable."

       The court determined neither party prevailed and each party should bear its own

attorney fees and costs. It awarded Virginia $2,418.34 in costs for her prior appeal.

                                      DISCUSSION

                                             I

                                  Prescriptive Easement

       Virginia contends the trial court erred in granting Lone Jack a directed verdict on

Virginia's prescriptive easement claim as to the dirt road. We do not agree.

       A court may remove an issue of fact from the jury and direct a verdict on the issue

if there is "no evidence tending to prove the case of the party opposing the motion [for

directed verdict]." (Starrh & Starrh Cotton Growers v. Aera Energy LLC (2007) 153

Cal.App.4th 583, 597.) In reviewing the issue on appeal, "we stand in the shoes of the

trial court" and "will reverse if there was substantial evidence tending to prove

appellant['s] case and the state of the law supports the claim." (North Counties

Engineering, Inc. v. State Farm General Ins. Co. (2014) 224 Cal.App.4th 902, 920.)



                                             15
       "A prescriptive easement is established by use of land that is (1) open and

notorious, (2) continuous and uninterrupted, and (3) adverse to the true owner, and that is

all of these things (4) for a period of five years." (Windsor Pacific LLC v. Samwood Co.,

Inc. (2013) 213 Cal.App.4th 263, 270 (Windsor); Civ. Code, § 1007; Code Civ. Proc.,

§ 321.)

       "[A] prescriptive right to land will not be acquired through its use by license of the

owner, or by his permission, express or implied." (Richmond Ramblers Motorcycle Club

v. Western Title Guaranty Co. (1975) 47 Cal.App.3d 747, 754, italics omitted.) This is so

because "[u]se with the owner's permission … is not adverse to the owner." (Windsor,

supra, 213 Cal.App.4th at p. 271.)

       Neighborly accommodation as a friendly or kind gesture does not ordinarily ripen

into a prescriptive right. (6 Miller & Starr Cal. Real Estate (4th ed. 2016) § 15:36, citing

Clarke v. Clarke (1901) 133 Cal. 667, 671 [the law does not presume an owner intends to

give away land when he or she, as an act of kindness, allows others to travel over a lot

without objection]; see Grant v. Ratcliff (2008) 164 Cal.App.4th 1304, 1310 [use of a

road as a matter of family accommodation was not adverse and did not give rise to a

prescriptive right].) "Permission sufficient to establish a license can be express or

implied. [Citation.] ' "A license to use real property may be … proved by circumstances

such as tacit permission or acquiescence in acts already done …." ' [Citation.] A license

may also arise by implication from acts of the parties, from their relations, or from

custom. When a landowner knowingly permits another to perform acts on his land, a



                                             16
license may be implied from his failure to object." (Richardson v. Franc (2015) 233

Cal.App.4th 744, 755 (Richardson).)

       "Once permission is given, it is presumed to continue until the user communicates

to the servient tenement owner a clear and unqualified disclaimer and repudiation of the

permission." (6 Miller & Starr, Cal. Real Estate (4th ed. 2016) §15:36, citing Southern

Pacific Co. v. San Francisco (1964) 62 Cal.2d 50, 56 ["one who uses land with the

consent of the owner may effect an ouster for purposes of adverse possession by

unqualified and definite renunciation of subordination to the owner … of sufficient

clarity to put the owner on notice that subsequent possession is adverse to his title, for the

very essence of the requirement of ouster is notice."].) The requirement for adverse use

"ensures that a prescriptive easement can arise only if the owner had an opportunity to

protect his or her rights by taking legal action to prevent the wrongful use, yet failed to do

so." (Windsor, supra, 213 Cal.App.4th at p. 271.)

       The court determined there was no evidence the Perkinses' use of the land was

adverse or hostile before 2004. Lloyd had the Army Corps of Engineers build the dirt

road for the use of the Perkins family when the building of the dam inundated RS181.

       When Liberty owned Lone Jack Ranch, the Perkinses developed a close

relationship with him. They treated him like family and he did not object to their use of

the road. Even when the Perkinses and Liberty later developed a disagreement about

building a public road to access a proposed subdivision on the Perkinses' property, the

dispute involved rebuilding RS181 through the lake. To avoid draining the lake to allow

access, Liberty, as part of the 1981 Settlement Agreement, granted an easement, outside

                                             17
the area of the dirt road, on which to build a public road. He also granted the Perkinses

temporary access rights until they could build the road. When they used the dirt road

thereafter, Liberty remained courteous and made no objection to their use of the dirt road.

       When Moses obtained the property, he understood the Perkins family had a

custom of using the dirt road to access their property. He had a courteous relationship

with Steve and cooperated with him in obtaining and installing the front gate. He did not

object to the Perkinses' continued use of the road.

       This evidence showed Moses and the prior owners permitted the Perkins family to

use the dirt road across Lone Jack Ranch as a neighborly accommodation. Even though

Steve did some work on the dirt road and paid some money toward maintenance of the

road and the front gate, there is no indication this was done in contravention of the

permissive access granted to the Perkinses by the successive owners of Lone Jack Ranch.

Since there was evidence of permissive use, we need not reach the issue of whether

continuous use over a long period of time without interference is presumptive evidence of

a prescriptive right. (See Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d

564, 571-572; Grant v. Ratliff, supra, 164 Cal.App.4th at p. 1310.)

       Virginia produced no evidence the Perkinses' use of the road was done in such a

manner as to place Moses or any prior owner on notice that the use of their road was

intended to be adverse or hostile to the owners of Lone Jack Ranch. No adverse use was

evident until 2004 when Virginia asserted a right to use the road without cooperating with

closing the gates. The court properly granted nonsuit on the issue of prescription.



                                             18
                                              II

                                Scope of Irrevocable License

       Virginia contends the determination the Perkinses' irrevocable license will become

revocable if the Perkinses and their visitors fail to comply with reasonable requests to

close gates when passing in and out of Lone Jack Ranch is not supported by the law or

the facts and the verdict form was defective. We disagree.

       "An otherwise revocable license becomes irrevocable when the licensee, acting in

reasonable reliance either on the licensor's representations or on the terms of the license,

makes substantial expenditures of money or labor in the execution of the license, and the

license will continue 'for so long a time as the nature of it calls for.' [Citations.] … 'A

license remains irrevocable for a period sufficient to enable the licensee to capitalize on

his or her investment. He [or she] can continue to use it only so long as justice and equity

require its use.' " (Richardson, supra, 233 Cal.App.4th at pp. 757-758.) "[T]he grant of

an irrevocable license is 'based in equity.' After the trial court has exercised its equitable

powers, the appellate court reviews the judgment under the abuse of discretion standard."

(Id. at p. 751.)

       In Richardson, supra, 233 Cal.App.4th 744, to access their home, homeowners

traversed land belonging to their neighbors using an easement authorized for " 'access and

public utility purposes.' " Over the course of 20 years, the homeowners and their

predecessors invested significant amounts of money in installing and maintaining

landscaping, irrigation and lighting on both sides of the easement without objection.

Litigation ensued when the neighbors asserted the landscaping and other improvements

                                              19
exceeded the purpose for which the easement was granted and demanded their removal.

(Id. at pp. 747-748.) The court found the granting of an irrevocable license within an

easement of specified dimensions was within the trial court's equitable powers. (Id. at

pp. 750, 757-758.)

       In this case, a special jury instruction was used to instruct the jury on the law

regarding licenses and how they become irrevocable. The special jury instruction stated

in pertinent part: "where [the] Perkinses entered under a license and has expended

money, or its equivalent in labor, in the execution of the license, the license becomes

irrevocable, the Perkinses will have a right of entry upon the land of Moses for so long a

time as the nature of it calls for."

       The jury determined the license to use the dirt road became irrevocable based

upon the money and labor expended by the Perkins family for maintaining the road. This

grants use of the dirt road for as long as the Perkinses have need of it. However, the jury

also determined the license may become revocable if the Perkinses and their guests do

not comply with reasonable requests to close gates when they pass in and out of Lone

Jack Ranch.

       Contrary to Virginia's assertion, there was evidence to support the jury's

determination the license for access across Lone Jack Road included the condition of

reasonable compliance with gates. Gates were not new to the property in 2004 when

Virginia began objecting to their use. Moses testified there was fencing and gates on the

property when he purchased it. Steve confirmed as much when he indicated there were

stock gates on the property. In addition, Moses testified he and Steve discussed

                                             20
improving the security of both properties by improving the gates and Steve contributed to

the cost of the front gate. Although Steve and Virginia denied at trial the back gate was

routinely closed, the jury was free to disbelieve their testimony and to believe the

testimony of Moses who said he and Steve worked together to make sure the back gates

were closed.

       Virginia did not object to the form of the jury verdict asking how long the

irrevocable license would last. Additionally, when the jury asked if they could formulate

their response to when the irrevocable license becomes revocable as an event or

occurrence the parties agreed. Failure to object to a defective jury verdict or to request

clarification before the jury is discharged forfeits a challenge to the validity of the

verdict. (Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 264-268.)

       In any event, the court also had broad equitable powers to consider the scope of

the irrevocable license. In ruling on Virginia's posttrial motions, the court rejected a

challenge to the imposition of conditions on the irrevocable license. It stated, "The jury's

response [to when/what would make the irrevocable license revocable] was reasonable.

Indeed, in the [c]ourt's evaluation of the evidence, the jury made exactly the correct

decision. Leaving the gate open, posting of the gate code or otherwise causing the gate to

be accessed by strangers was and is unreasonable and a threat to the safety and security of

[Moses] and the occupants of [Moses's] house."

       The court had broad discretion to frame an equitable result on the issue of the

scope and duration of the irrevocable license. "There is a long tradition in equity of

according trial courts great latitude to ' "mold and adjust their decrees as to award

                                              21
substantial justice according to the requirements of the varying complications that may be

presented to them for adjudication." [Citation.]' [Citations.] Discretion is abused only

when the trial court's decision 'exceeded the bounds of reason.' " (Richardson, supra, 233

Cal.App.4th at p. 757.)

       We conclude the trial court did not abuse its discretion in adopting the jury's

determination the irrevocable license was subject to the condition of compliance with

reasonable requests to close and lock gates when passing through Lone Jack Ranch and

failure to comply with such reasonable requests will result in revocation of the license.

Given the limited investment the Perkinses made in the dirt road over the years and the

history of the use of the property, this was a fair exercise of the court's powers to fashion

equitable relief for both parties.

                                             III

   Gate Conditions Do Not Interfere with Contractual Rights and Substantial Evidence
             Supports the Jury's Verdict of No Unreasonable Interference

       Virginia also contends the gate conditions interfere with her contractual access

rights under the 1981 Settlement Agreement and substantial evidence did not support the

jury's determination the use of gates did not unreasonably restrict her access rights. We

disagree with both contentions.

                                              A

       The jury determined "the 1981 Settlement Agreement provide[d] the Perkins[es] a

right to access their property across Lone Jack Ranch via the 'dirt road' until RS181 is

constructed." It granted the Perkins family temporary easements and access rights


                                             22
necessary to construct and improve the new alignment of RS181. The Perkinses agreed,

upon demand, to relinquish any interest they had in the dirt road when the new road was

available for access so only one road would be used to access their property.

       The contract does not mention the use of gates, but it also does not necessarily

require unfettered access to the property. As stated above, the history of the property,

before and after the 1981 Settlement Agreement, involved the use of gates without

objection before 2004. This " 'course of performance' " evidence is relevant to construing

the terms of the 1981 Settlement Agreement. (Code Civ. Proc., 1856, subd. (c).) " '[T]he

course of actual performance by the parties is considered the best indication of what the

parties intended the writing to mean. …' [Citation.] '[C]ourse of performance' in this

context means '[a] sequence of previous performance by either party after an agreement

has been entered into, when a contract involves repeated occasions for performance and

both parties know the nature of the performance and have an opportunity to object to it.

… A course of performance accepted or acquiesced in without objection is relevant to

determining the meaning of the agreement.' " (Epic Communications, Inc. v. Richwave

Technology, Inc. (2015) 237 Cal.App.4th 1342, 1355.) Therefore, we conclude the use of

gates and reasonable requests to close and lock gates upon passing through Lone Jack

Ranch does not interfere with any contractual rights under the 1981 Settlement

Agreement.

                                             B

       Virginia acknowledges " '[w]hether a particular use by the servient owner of land

subject to an easement [or license] is an unreasonable interference with the rights of the

                                            23
dominant owner is a question of fact for the trier of fact,' whose findings are binding

upon the appellate court if properly supported by the evidence." (Blackmore v. Powell

(2007) 150 Cal.App.4th 1593, 1599.)

       Here, there was substantial evidence supporting the jury's finding that the use of

gates did not unreasonably interfere with the Perkinses access. Moses presented evidence

of security concerns related to trespassers. Moses provided gate access codes to the

Perkinses and attempted to demonstrate to Virginia how to operate the gates. There was

also evidence both sheriff and fire departments could open the gates in the event of an

emergency. Although there was some evidence the electric gate may not operate when

the power is out, there was also evidence it was possible to open the gate manually to exit

the property. The jury was free to believe the testimony of Moses in this regard and to

disregard or disbelieve Virginia's contrary testimony. Indeed, the trial court observed

Virginia's testimony was not persuasive or credible and both she and her daughter

attempted to introduce improper matter to the jury. We conclude there was substantial

evidence to support the jury's determination the use of gates in this case did not

unreasonably interfere with access rights.

                                             IV

                                       Attorney Fees

       Finally, we do not agree with Virginia's contention the court erred in denying her

attorney fees because she was the prevailing party on her contract claim.

       "[Civil Code section] 1717, subdivision (a) provides for an award of attorney fees

to 'the party prevailing on the contract.' Under [Civil Code] section 1717, subdivision

                                             24
(b)(1), the prevailing party is the party 'who recovered a greater relief in the action on the

contract.' (Italics added.) [Civil Code section] 1717 allows 'those parties whose litigation

success is not fairly disputable to claim attorney fees as a matter of right.' [Citation.] [¶]

'If neither party achieves a complete victory on all the contract claims, it is within the

discretion of the trial court to determine which party prevailed on the contract or whether,

on balance, neither party prevailed sufficiently to justify an award of attorney fees.'

[Citations.] '[I]n deciding whether there is a "party prevailing on the contract," 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. The prevailing party

determination is to be made only upon final resolution of the contract claims and only by

"a comparison of the extent to which each party [had] succeeded and failed to succeed in

its contentions." ' " (In re Tobacco Cases I (2013) 216 Cal.App.4th 570, 577, quoting

Hsu v. Abbara (1995) 9 Cal.4th 863, 876 and Scott Co. v. Blount, Inc. (1999) 20 Cal.4th

1103, 1109.)

       "A trial court has broad discretion in determining which party has obtained greater

relief on the contract, and we will not disturb such a determination on appeal absent a

clear abuse of discretion." (In re Tobacco Cases I, supra, 216 Cal.App.4th at p. 578.)

       Virginia's cross-complaint sought damages for breach of contract alleging the

construction of the gates was a breach of the 1981 Settlement Agreement "that

unreasonably restricted [Virginia] access to her property via the dirt road." Although the

jury agreed the 1981 Settlement Agreement provided her a contractual right to access her

                                              25
property by way of the dirt road until RS181 is constructed, the jury did not find the use

of gates was an unreasonable interference with that right and denied her request for

damages. Therefore, she did not obtain a " 'simple, unqualified win' " on her contract

claim. (Hsu v. Abbara, supra, 9 Cal.4th at p. 877.)

       In determining neither party prevailed, the court stated, "[Lone Jack Ranch] sought

to deny access to [Virginia], and lost that right. [Virginia] sought to prevent the use of

gates, and obtain an easement of far greater right than what she was ultimately awarded.

She lost on most levels." We conclude the court acted well within its discretion to

determine neither party prevailed in this action.

                                      DISPOSITION

       The judgment is affirmed. Lone Jack Ranch is entitled to its costs related to

Virginia's appeal.



                                                                        MCCONNELL, P. J.

WE CONCUR:



HUFFMAN, J.



MCDONALD, J.




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