Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SCV11719
SIMS, Acting P. J.In Beyer v. Tahoe Sands Resort (2005) 129 Cal.App.4th 1458 (Beyer), we reversed a judgment denying declaratory and injunctive relief to plaintiffs Alan F. Beyer and Anna Ghandour (Ghandour) for their claim to three easements on land owned by defendant Tahoe Sands Time Share Owners Association (Tahoe Sands). On remand, the trial court conducted an evidentiary hearing to determine the scope of injunctive and other relief to which plaintiffs are entitled. Sometime during the proceedings, Ghandour became sole owner of the property to which the three easements are appurtenant.
The trial court concluded that Ghandour is entitled to permanent injunctive relief prohibiting Tahoe Sands from (among other things) blocking her vehicular use of the two access easements, interfering with her parking on the easement closest to her house, and constructing buildings that would interfere with the easement on which her house stands.
Tahoe Sands appeals, contending the trial court erred in (1) ruling that Ghandour is entitled to park cars on an easement dedicated for the purpose of “ingress to and egress from” her house to the nearby highway, (2) restraining Tahoe Sands from “speculative future conduct” that is not subject to permanent injunction, (3) requiring Tahoe Sands to maintain the pavement on the access easements when the duty to repair the roadway surface belongs to Ghandour.
Ghandour also appeals. She challenges the trial court’s denial of her motion for attorney fees under a fee-shifting agreement contained in the trust agreement that created the three easements. She contends the trial court erroneously denied her request for attorney fees even though she was the prevailing party.
We affirm the judgment granting permanent injunctive relief to Ghandour but reverse the order denying her motion for attorney fees.
FACTUAL AND PROCEDURAL HISTORY
Creation of Three Easements by Trust Agreement
In November 1979, landowners referred to as the Huntleys/Bernardses acquired fee title ownership to several parcels on Lake Tahoe’s north shore. (Beyer, supra, 129 Cal.App.4th at p. 1463) In 1980, the Huntleys/Bernardses built a house on one of the parcels. (Ibid.) And, “[a]t some point in time, ” their parcels on both sides of Highway 28 were developed into a motel complex. (Ibid.)
As in our prior decision, we use the parties’ descriptions of the properties and “refer to [Ghandour’s] property as the ‘home parcel, ’ and [Tahoe Sands’s] properties as the ‘resort parcels.’ The resort parcels (which contain a motel structure and individual cottages) include parcels on opposite sides of State Highway 28 – a ‘lakeside parcel’ (Lot 12A) bordering Lake Tahoe, and a ‘mountainside parcel’ (which is part of Lot 12) to the north of the highway. The home parcel was originally part of the mountainside parcel. A residence sits on the home parcel and encroaches 50 feet onto the mountainside parcel.” (Beyer, supra, 129 Cal.App.4th at pp. 1462-1463.)
A map of the properties showing the location of the three easements is appended to our prior decision. (Beyer, supra, 129 Cal.App.4th at p. 1481.)
On October 22, 1981, the Huntleys/Bernardses recorded a declaration of time share dedication, which was subsequently amended. (Beyer, supra, 129 Cal.App.4th at p. 1463.) The amended declaration set forth the dedication of the lakeside and mountainside parcels to development of a time-share resort. (Id. at pp. 1464-1465.) However, the Huntleys/Bernardses reserved for themselves three easements for their continued use. (Ibid.)
As the trial court in this case explained in its statement of decision: “The three easements are (1) the ‘lakeside easement’ which allows [Ghandour] to cross over the ‘lakeside parcel’ for access to Lake Tahoe; (2) the ‘access’ or ‘mountainside easement’ which allows [Ghandour] to cross the ‘mountainside parcel’ to get between Highway 28 and the residence on the ‘home parcel;’ and (3) the ‘encroachment easement’ which is necessary because [Ghandour’s] house on the home parcel encroaches onto the mountainside parcel.”
On the same day that the time-share declaration was recorded, “the Huntleys/Bernardses conveyed the resort parcels by a grant deed to the Bank of California, ‘as Trustee under the Agreement and Declaration of Trust (Silver Sands Resort Trust) dated October 21, 1981.’ The grant deed referred to exhibit A, which contained the same property descriptions, including the easements, described in the declaration of time share dedication.” (Beyer, supra, 129 Cal.App.4th at p. 1466.) The easements were described as follows:
“‘EXCEPTING AND RESERVING FROM PARCEL THREE [the mountainside parcel] as described above, a perpetual nonexclusive right of way and easement for ingress and egress, including the right to install, maintain, repair and replace a driveway, and an easement for the installation and maintenance of public utilities including sewer, including the right to connect to the existing sewer line, water, gas and electricity over and upon PARCEL THREE as hereinabove described, and further EXCEPTING AND RESERVING an easement for encroachment and setback purposes over and upon the Northerly fifty (50) feet of the hereinabove described PARCEL THREE.
“‘FURTHER EXCEPTING AND RESERVING FROM PARCEL TWO [the lakeside parcel] as above described, a perpetual nonexclusive easement for all purposes, including the right of access to the Lake Tahoe beach front, over the Westerly twenty (20) feet of Lot 12A..., together with an easement over all land lying between the East and West lines of said 20 feet [sic] strip extended South to... Lake Tahoe.
“‘The easements excepted and reserved as above described, shall be appurtenant to the Northerly 100 feet of Lot 12 [i.e., the home parcel]....’” (Beyer, supra, 129 Cal.App.4th at pp. 1464-1465.)
As we have previously recounted, “After the 1981 creation of the time-share project, the following conveyances took place: [¶] On May 23, 1986, the Huntleys/Bernardses conveyed everything they had to Edmond and Anna Ghandour. Thus, the Huntleys/Bernardses conveyed by grant deed the home parcel and their ‘personal rights’ to the... easements (the lakeside easement, the Lot 12 access easement, and the encroachment easement) described in the 1981 deed, as appurtenant to the home parcel. On the same day, the Huntleys/Bernardses and Silver Sands also recorded an ‘ASSIGNMENT OF BENEFICIAL INTEREST, ’ granting and assigning to the Ghandours ‘all right, title and interest in and to the trustor's interest and the beneficial interest of Seller, as defined and limited in the Purchase Agreement among the parties of even date herewith..., under that certain First Amended Agreement and Declaration of Trust... under which the Trustee holds legal title to all the certain real property... described in Exhibit A [home parcel and three easements].’ Also recorded on the same day was a ‘MEMORANDUM OF AGREEMENT FOR THE SALE OF SILVER SANDS RESORT, ’ which included a ‘Vendor's Lien, ’ stating, ‘It is understood that, to the extent this Agreement is considered a transaction involving real estate under the laws of the State of California, SELLER retains a vendor's lien as described in California Civil Code Section 3046, notwithstanding any other security device provided for in this Agreement.’ The vendor's lien did not affect the home parcel.
“On September 9, 1993, a quitclaim deed was recorded, by which Edmond Ghandour quitclaimed his interest to Anna Ghandour....
“On February 3, 1994, the Huntleys/Bernardses foreclosed on the beneficial interest in the trust pursuant to the vendor's lien. At the foreclosure sale they made the highest bid and thereby reacquired ‘[a]ll of the beneficial interest’ in the trust agreement, including the reversionary interest.
“On December 19, 1997, Anna Ghandour... by grant deed conveyed to Alan Beyer an undivided 50 percent interest in the fee title to the home parcel and the supposed easements.
“On March 30, 2001, all outstanding interests in the resort parcels, including those of the trustor, trustee, and beneficiary, were consolidated in the Association by a series of deeds. Thus, a quitclaim deed was recorded whereby the Huntleys/Bernardses (as well as Markation, Inc. and Leonard Labagh, P.C.) quitclaimed to the Association all right, title, interest, and claims to the real property described on an attached exhibit, including fee, remainder, leasehold, easement, license and/or any other form of interest. The exhibit described the resort parcels and expressly excluded the home parcel, but did not mention the easements.
“Also on March 30, 2001, similar quitclaim deeds were recorded (1) from Wells Fargo Bank (successor to the Bank of California) to John Rogers Burk, as trustee of the Silver Sands Resort Trust, and (2) from John Rogers Burk to the Association. [¶]... [¶]
“Even before the 2001 conveyances, the Association tried to move the resort parking to the area of the lakeside easement in 1998, but moved it back when Ghandour complained. In 1999, the Association again moved the resort parking to the area of the lakeside easement, precluding vehicular access and impeding pedestrian access to the lake. Ghandour complained, but to no avail. The Association hopes to obtain approval of Placer County and the Tahoe Regional Planning Association to redesign the resort to consolidate all the time-share units onto the lakeside parcel to minimize travel across the highway. The plan is to have a 10-foot-wide walking path and landscaping on the land on which plaintiffs claim an easement, which would impede the vehicular access claimed by plaintiffs.” (Beyer, supra, 129 Cal.App.4th at pp. 1468-1470.)
The trial court’s original judgment stated that “no valid easements were created by the 1981 time-share documents or any subsequent conveyances. The judgment further stated the dedication of common areas to the time-share project constituted servitudes that would have priority over any subsequent easements. [¶] The judgment nevertheless held plaintiffs had acquired easements by prescription, as follows: (1) a limited easement for ingress, egress, and utilities over Lot 12; (2) an easement for parking and building access on Lot 12; and (3) an encroachment easement. (The trial court stated in the intended decision there was no lakeside easement by prescription because plaintiffs' use of the lakeside access over Lot 12A was infrequent and seasonal.)” (Beyer, supra, 129 Cal.App.4th at pp. 1468-1470, footnote omitted.)
Beyer and Ghandour appealed, and we reversed the judgment. (Beyer, supra, 129 Cal.App.4th at p. 1480.) We remanded the case to the trial court “to determine whether injunctive or any other relief is appropriate in light of our opinion” that the 1981 trust deed created the easements asserted by Beyer and Ghandour. (Id. at p. 1479.)
Proceedings on Remand
On remand, the trial court conducted a three-day trial on the issue of whether Ghandour (now sole owner of the home parcel) was entitled to injunctive relief. The court concluded that Ghandour had shown the need for injunctive relief with respect to all three easements.
The trial court noted that repeated violations of Ghandour’s easement rights compelled the granting of permanent injunctive relief. Specifically, the court found “that [Tahoe Sands] unreasonably interfered with the rights of [Ghandour] to use each of the three easements and that there is a substantial threat of future interference. Therefore, it is appropriate for the court to exercise its broad equitable powers, taking into account the fixed principles of equity. Here, the evidence demonstrates that unreasonable interference by [Tahoe Sands] is likely to recur and remedies at law would be inadequate. When balanced, the equities are decidedly with [Ghandour]....”
Lakeside Easement Injunctive Relief
The court found that Tahoe Sands had repeatedly frustrated Ghandour’s use of the lakeside easement as follows: “[Tahoe Sands] placed a series of heavy planters at the entrance of the lakeside easement, blocking [Ghandour’s] vehicular access to the easement. This was done without [Ghandour’s] consent and for no credible or legitimate justification discernable to the court. The court does not accept [Tahoe Sands’s] apparent suggestion that this act of blocking the access to the easement was borne of a genuine concern for fire, traffic or guest safety. Indeed, the court finds that blocking access over the easement with these planters provides weighty proof – in both the literal and legal senses – that [Tahoe Sands] will continue to frustrate [Ghandour’s] clear right to vehicular or other use of the easement. For example, Exhibit 61, a photograph taken earlier this year depicting three potted trees across the pavement adjacent to the Lanai Building, speaks volumes about [Tahoe Sands’s] ongoing disregard for [Ghandour’s] easement rights.
“Similarly, [Tahoe Sands] has planted trees in the easement area near the Lake.... This also serves to lessen [Ghandour’s] ‘access to the Lake Tahoe Beachfront, ’ as set forth in the legal description. The trees were not planted with the consent or cooperation of [Ghandour]. Moreover, the trees impair the view as one approaches the Lake.
“During the winter snow months, [Tahoe Sands] clears snow from the area and leaves sizable snow berms that impede [Ghandour’s] ability to access the easement. Again, this is done with little apparent concern for [Ghandour’s] rights to travel across the area.
“Also consistent with [Tahoe Sands’s] pattern of disregard for [Ghandour’s] rights is [Tahoe Sands’s] treatment of parking spaces in the lakeside easement area. [Tahoe Sands] moved the parking from its original location on the opposite side of the pavement on the west side of the easement. [Ghandour was] not consulted about this change, and objected to it.... [Tahoe Sands] attempts to justify this unilateral modification of the historical parking use by suggesting the modification is borne of safety concerns. [Tahoe Sands] claim[s] falling icicles near the Lanai Building pose dangers of property damage to vehicles parked adjacent to the building and to the personal safety of time-share users. As noted at trial, however, there is no proof that icicles falling on vehicles posed any appreciable risk in previous years, including between 1985 and 1994, for example. [Tahoe Sands] contends also that traffic safety and fire safety concerns motivated [Tahoe Sands] to move the parking. This strikes the court as a post hac attempt to justify [Tahoe Sands’s] unwarranted actions. [Tahoe Sands] suggests that fire department concerns prompted the moving of these parking spaces; however, no direct evidence from the fire department was offered on this point. Nor was testimony produced from any traffic or fire safety expert.”
The trial court explained the need for permanent injunctive relief regarding the lakeside easement as follows: “If [Tahoe Sands] is not enjoined from placing barriers, such as in the form of snow berms, potted trees, or other objects, [Ghandour] will be hampered in effectively accessing [her] residence. Removal or prevention of such barriers will pose no particular hardship to [Tahoe Sands]. Time-share owners may still share the use of the area. In a similar vein, removal of the pavement currently located in the easement would frustrate [Ghandour’s] effective and practical ability to enjoy their ‘right of access to the Lake Tahoe Beachfront.’ Maintaining the paved portions of the easement, on the other hand, will leave [Tahoe Sands] in the same position in which it has been for many years and, at the same time, will not preclude [Tahoe Sands] from submitting other or future redevelopment plans which honor [Ghandour’s] rights. Relocating the parking spaces to the Lanai Building side of the easement will reestablish safe access for [Ghandour] and result in no substantial safety concern or burden to [Tahoe Sands]. Dependent on the ultimate outcome and configuration of [Tahoe Sands’s] redevelopment plans in the lakeside easement, it is reasonably likely that constructing buildings or other improvements in the area would substantially impair [Ghandour’s] right of access to the Lake. Given the history of this dispute, the court undoubtedly will be asked to decide those future issues.”
In so ruling, the trial court rejected Tahoe Sands’s contention that Tahoe Regional Planning Agency “regulations now prevent use of the lakeside easement for vehicular use. [Ghandour] contend[s] otherwise, asserting [her] use is grandfathered in as a permitted use. The court does not decide an issue that belongs to TRPA. However, [Tahoe Sands’s] argument, and [Tahoe Sands’s] related desire to limit the easement to non-vehicular, pedestrian uses, are consistent with [Tahoe Sands’s] historical attempts to chisel away or ignore [Ghandour’s] easement rights....”
The court entered a judgment in favor of Ghandour that provided the following permanent injunctive relief: “As to the [lakeside easement], [Tahoe Sands] is prohibited from (a) blocking vehicular or pedestrian access to the easement by the placement of barriers, snow berms or other obstructions; (b) removing pavement from the easement area in a manner that unreasonably interferes with [Ghandour’s] right to enjoy safe access to Lake Tahoe Beachfront, except such removal as may occur in the course of normal maintenance and replacement of the pavement; (c) locating parking spaces within the easement; and (d) constructing buildings or placing other permanent structures or landscaping within the easement that would block, impede overburden or unreasonably interfere with [Ghandour’s] use of the [lakeside easement] for vehicular and pedestrian travel.”
Mountainside Easement Injunctive Relief
One of the key issues litigated on remand concerned whether Ghandour had the right to park on the mountainside easement. The trial court concluded that the easement did allow her to park in three areas on the mountainside parcel. The court explained: “The mountainside easement is legally described as ‘a perpetual nonexclusive right of way and easement for ingress and egress, including the right to install, maintain, repair and replace a driveway, and an easement for the installation and maintenance of public utilities, including the right to connect to the existing sewer line, water, gas and electricity over and upon [Parcel Three]...’ [Emphasis added.] A portion of [Ghandour’s] residence is on the mountainside easement. [Ghandour has] also maintained a garden within the mountainside easement, near the residence.
“In addition to using the easement for its obvious purpose and intended purposes of ingress and egress to the house, [Ghandour has] used the parking areas therein, denominated as areas ‘A, ’ ‘B’ and ‘C’.... [Ghandour’s] parking in these areas has not been shown to be excessive or interfering of [Tahoe Sands’s] rights. [Ghandour’s] parking in these areas is a necessarily included feature of [her] right to use the paved driveway to get to the residence. On the other side of the coin, [Ghandour] claim[s] that [Tahoe Sands] has unreasonably interfered with these longstanding uses. [Tahoe Sands] denies doing so; however, the evidence establishes otherwise. According to [Michael] Hansen, there are well over two thousand time-share owners. He acknowledges that the resort’s front desk sometimes instructed time-share owners to park in areas ‘B’ and ‘C.’ This interfered with [Ghandour’s] own ability to park in those areas and to comfortably access [her] residence by vehicles. Although [Tahoe Sands] disclaim[s] owning boats, the reasonable [inference] is that boat trailers that completely blocked the paved driveway to [Ghandour’s] residence this past summer were placed there by the resort’s time share owners. If the resort’s front desk staff encouraged time-share owners to park their vehicles in parking areas ‘B’ and ‘C, ’ it is just as likely time-share owners were encouraged to store their boat trailers in the area.
A copy of the map showing the mountainside easement and parking areas used by Ghandour is attached as an appendix to this opinion.
Michael Hansen is co-owner of the entity that manages the Tahoe Sands property. At trial, he testified on behalf of Tahoe Sands.
“[Ghandour] also claim[s] [Tahoe Sands] had a part in the parking of a white truck in parking area ‘C’ in October 2005. This even was followed with a red truck being parked in the same area for a period of eight months or more. The unsightly nature of this is well-depicted in Exhibits 53 and 54. [Ghandour’s] belief is that the red truck belonged to a maintenance employee of Tahoe Sands. Although [Tahoe Sands] disclaims any ownership, knowledge or responsibility for either of these trucks being parked in this area, the reasonable inference is to the contrary. Especially given the proximity of the resort to these parking areas, the parking of the red truck in this area by a resort employee would be consistent with [Tahoe Sands’s] instructions to its time-share owners to use the parking areas in the easement. Finally, in terms of evidencing a pattern of unreasonable interference with [Ghandour’s] easement rights, it is significant to the court that all these activities all took place after the Beyer decision was issued, which decision should have left no doubt as to [Ghandour’s] legal rights to the easements.” (First ellipsis in original.)
The trial court also noted the threat to Ghandour’s use of the mountainside easement based on Tahoe Sands’s preliminary redevelopment plans: “Going forward, there is a threat that [Tahoe Sands’s] development plans as presently constituted, if carried out, would significantly impact parking areas ‘A, ’ ‘B’ and ‘C.’ Given the topography and snowy climate, [Ghandour’s] ability to use the driveway for normal and reasonable access would effectively be eliminated if the pavement was either removed, narrowed or otherwise substantially altered, which certainly would occur under [Tahoe Sands’s] currently proposed plans.
“Finally, underscoring the need for injunctive protection at this time is [Tahoe Sands’s] apparent desire to redevelop the resort property with the inclusion of multiple buildings, located on both sides of the driveway. The plans depicting this are shown in Exhibit 51, which the court admitted for the limited purpose of generally illustrating and making sense of Mr. Hansen’s verbal description of the plans. As the court understands it, the plans are preliminary only at this point and no specific development rights have vested. Nonetheless, [Ghandour is] properly concerned that such plans, if carried out, would impair [her] rights to reasonable use of the easement. As the plans are only preliminary, the court cannot determine whether actual future redevelopment or the footprints of any of the new buildings will meet all legal concerns, including the interests of [Ghandour] in protecting [her] hard-fought easement rights. However, the preliminary plans do bear relevance to the court’s present determination as to whether prospective injunctive relief is warranted. The fact that these particular plans are being proposed is relevant to highlight the degree of [Tahoe Sands’s] consistent and ongoing disregard for [Ghandour’s] rights and the need for future protection. Quite naturally, [Ghandour] would be concerned, for example, that the construction and use of a pool on the westerly side of the easement might result in several thousand time-share users crossing back and forth over the paved driveway access during peak summer months. Likewise, Ghandour would be justifiably concerned that the construction of several sizable new buildings in the easement area, and the attendant increased use of the area by hundreds of time-share users, would unquestionably interfere with their easement rights. In other words, [Tahoe Sands’s] proposals lend evidentiary support to [Ghandour’s] fears that [Tahoe Sands’s] past interference with their rights will continue in the future, but to a much larger extent.”
The judgment sets forth the following permanent injunction: “As to the [mountainside easement], [Tahoe Sands] is prohibited from (a) blocking or unreasonably impeding [Ghandour’s] right of access on the existing paved driveway, including the placement of snow berms; (b) interfering [with Ghandour’s] right to park vehicles in the parking areas shown as areas ‘A, ’ ‘B’ and ‘C’ on Exhibit A attached hereto and incorporated herein by this reference; (c) storing vehicles, or allowing long-term placement of vehicles or other objects in areas ‘A, ’ ‘B’ and ‘C’ as shown on Exhibit A; (d) removing pavement from the driveway to [Ghandour’s] residence, areas ‘A’ and ‘B, ’ and removing gravel from area ‘C, ’ all as shown on Exhibit A, except as may occur in the course of normal maintenance thereof; and (e) constructing buildings or placing other permanent structures or landscaping that would block, impede, overburden or unreasonably interfere with [Ghandour’s] use of the existing driveway, and areas ‘A, ’ ‘B’ and ‘C’ for vehicular and pedestrian ingress, egress or parking.”
Encroachment Easement Injunctive Relief
The trial court explained the need for injunctive relief to address the encroachment easement on which Ghandour’s house stands as follows: “Appearing at trial on behalf of [Tahoe Sands], Hansen was coy about the actual intentions and redevelopment plans of Tahoe Sands. He confirmed Tahoe Sands has submitted a preliminary application to Placer County to determine whether redevelopment of the resort property is feasible. The parking configuration noted in previous plans appears to be carried forward in the current iteration of the plans. According to Mr. Hansen’s understanding of the redevelopment plans being contemplated by [Tahoe Sands], the plans call for removal of the pavement, landscaping and parking in the area. To be certain, [Tahoe Sands] has not made efforts to share current plans directly with their neighbor [Ghandour], and [Ghandour has] stated [her] objections to Placer County.” Thus, the trial court concluded that “[t]he potential construction of structures in this area may result in significant impairment of [Ghandour’s] rights to this easement....”
Based on this conclusion, the trial court’s judgment grants Ghandour the following relief: “As to the [encroachment easement], [Tahoe Sands] is prohibited from constructing buildings or placing other permanent structures or landscaping within the easement that would interfere with [Ghandour’s] current setback.”
Attorney Fees
The trust agreement that created the easements also contained an attorney fee provision that states:
“12.4 Attorneys’ Fees. If legal action be commenced to enforce or declare the effect of any provisions of this Agreement, the prevailing party in such action shall be entitled to recover from the other party all costs and attorneys’ fees incurred therein by the prevailing party.”
Following entry of judgment after remand, Ghandour moved for $243,872.40 in attorney fees under paragraph 12.4 of the trust agreement. The trial court denied the motion for fees, and Ghandour timely filed a notice of appeal.
DISCUSSION
Appeal by Tahoe Sands
I
Ghandour’s Right to Park on the Mountainside Easement
Tahoe Sands contends the trial court erred in ruling that Ghandour has the right to use the mountainside easement for vehicle parking. Specifically, Tahoe Sands argues that “[a] non-exclusive easement for ingress and egress cannot be reasonably construed to include a right to residential tenant parking on the burdened parcel.”
On the facts of this case, we disagree.
A
In contrast to the detailed description of the location of the lakeside and encroachment easements, the trust agreement does not specify where the mountainside easement lies on the mountainside parcel. (Beyer, supra, 129 Cal.App.4th at pp. 1464-1465.) Instead, the trust agreement describes the mountainside easement only as “a perpetual nonexclusive right of way and easement for ingress and egress, including the right to install, maintain, repair and replace a driveway, and an easement for the installation and maintenance of public utilities including sewer, including the right to connect to the existing sewer line, water, gas and electricity over and upon” the mountainside parcel. (Id. at p. 1464.)
Despite the lack of physical description in the trust agreement, no dispute exists regarding location and shape of the mountainside easement. Exhibit A (attached to the trial court’s judgment and this decision) is a map showing a curved span of pavement leading from the rear of the resort’s buildings to the front of Ghandour’s house. The easement’s terminus at Ghandour’s house is marked as area “A” and shows a turnaround with space for several parked vehicles. A bit farther from Ghandour’s house lies another paved area, marked “B” on the map, which also admits the parking of several vehicles. Adjacent is area “C, ” which is marked on the map as a “dirt parking area.”
The shapes of areas A, B, and C – and their location adjacent to a paved driveway – indicate that they are not necessary for travel between Ghandour’s house and Highway 28. Instead, they are located next to the driveway in a manner indicating that they are intended for vehicle parking. Other than areas A, B, and C, the map indicates no other parking available to Ghandour. The home parcel does not appear to have a garage or other vehicle storage area.
The location and shape of the paved areas has not changed since the Huntley and Bernard families dedicated part of their land to the time-share resort in 1981. The Huntleys and Bernardses used areas A, B, and C to park their vehicles when they resided in the house now occupied by Ghandour. When Ghandour moved into the house in November 1986, her family continued the former owners’ practice of parking in areas A, B, and C.
In 2001, Tahoe Sands acquired the resort properties after the Ghandours lost the resort parcels through foreclosure. Despite losing the resort properties, the Ghandours continued to park in areas A, B, and C on the mountainside parcel. Tahoe Sands did not complain.
Tahoe Sands first began using the parking areas around October 2005. At that time, Tahoe Sands parked a derelict truck in area C for several months. After the first truck was removed, a red truck and a trailer were parked in the area for extended periods of time. In the summer of 2006, Tahoe Sands started instructing time-share users to park their boat trailers in area C.
B
In Beyer, supra, 129 Cal.App.4th at page 1472, we explained that “‘[a]n easement is a nonpossessory “‘interest in the land of another that gives its owner the right to use the land of another or to prevent the property owner from using his land.’” [Citations.]’ (Kazi v. State Farm Fire & Casualty Co. (2001) 24 Cal.4th 871, 880.) In contrast to fee simple property ownership, which provides the owner the right to the surface and to everything permanently situated beneath or above it, ‘an appurtenant easement is a burden on land that creates a right-of-way or the right to use the land only.’ ([Civ. Code, ] § 801.)... [¶] ‘The land to which an easement is attached is called the dominant tenement; the land upon which a burden or servitude is laid is called the servient tenement.’ (§ 803.)”
As the California Supreme Court has noted, “With deeds as any other contracts, ‘[t]he primary object of all interpretation is to ascertain and carry out the intention of the parties. [Citations.] All the rules of interpretation must be considered and each given its proper weight, where necessary, in order to arrive at the true effect of the instrument. [Citation.]” (City of Manhattan Beach v. Superior Court (1996) 13 Cal.4th 232, 238, quoting Burnett v. Piercy (1906) 149 Cal. 178, 189.)
The intent of the parties is “‘derived from the language of the deed, together with the surrounding circumstances. [Citations.]’ (Mammoth Gold Dredging Co. v. Forbes. [(1940)] 39 Cal.App.2d [739, ] 750.) The court therefore places itself in the position of the contracting parties to the extent possible. [Citations.] Relevant surrounding circumstances may include uses of the property. ‘In determining the intent of the parties, consideration may be given not only to actual uses being made at the time of the grant, but also to such uses as the facts and circumstances show were within the reasonable contemplation of the parties at the time of the conveyance. [Citation.]’ (Neff v. Ernst (1957) 48 Cal.2d 628, 635-636.) Additionally, the intent underlying a conveyance may be shown by ‘the practical construction placed upon it by the parties. [Citations.]’ (Gramer v. City of Sacramento (1935) 2 Cal.2d 432, 440.)
“That the actions of the parties should be used as a reliable means of interpreting an ambiguous contract is, of course, well settled in our law. Supported by many authorities this rule is summarized... as follows: ‘The acts of the parties under the contract afford one of the most reliable means of arriving at their intention; and, while not conclusive, the construction thus given to a contract by the parties before any controversy has arisen as to its meaning will, when reasonable, be adopted and enforced by the courts.’” (Crestview Cemetery Assn. v. Dieden (1960) 54 Cal.2d 744, 752-753, second brackets added.)
In Heath v. Kettenhofen (1965) 236 Cal.App.2d 197, at page 2001, the Court of Appeal considered whether an easement “for roadway and utilities” across a servient parcel gave the owner of the dominant parcel the right to park on the easement. The Heath court concluded that “the rights of the parties in and to the easement, for roadway purposes, are coexisting and equal, and that these rights embrace as necessary incidents thereto the reasonable use of the easement by each party for such transitory parking as will not interfere with the rights of the other.” (Id. at p. 204.) The court further stated that it was “clear that no right of the plaintiffs is in any manner impaired” by held by the defendant (the dominant tenement’s owner). (Id. at pp. 204-205.) In this case, as in Heath, the right of the dominant tenement’s owner to nonexclusive parking on the servient parcel does not wrongfully impair the rights of the servient tenement’s owner.
The trust agreement executed by the Huntleys/Bernardses insufficiently describes the mountainside easement to determine where it is located. However, even a glance at the map showing the location and shape of the paved area on the mountainside easement indicates that there are three parking areas intended for vehicles traveling on the paved easement to Ghandour’s house. Moreover, the map shows that the house belonging to the dominant tenement has no garage or other space for parking.
Historical use by the owners of the home parcel confirms that the mountainside easement was used not only for traveling between the house and Highway 28 but also for vehicle parking. Testimony at trial established that the owners of the house on the home parcel have used the parking in areas A, B, and C for nearly three decades. This evidence shows that the mountainside easement was intended to include the right of the home parcel owner to use the easement for nonexclusive parking because “a practical construction placed by the parties upon the instrument is the best evidence of their intention.” (Crestview Cemetery Assn. v. Dieden, supra, 54 Cal.2d at p. 753, quoting Universal Sales Corp. v. California etc. Mfg. Co., supra, 20 Cal.2d at p. 761.)
Further reinforcing the trial court’s finding that the mountainside easement included the right to nonexclusive parking is the fact that Tahoe Sands did not begin to complain about Ghandour’s parking on the easement or begin storing vehicles in parking area C until 2005.
Without the ability to park on the mountainside easement, the home parcel owner would be required to walk at least from Highway 28 because he or she would be unable to park a vehicle any closer to the house. At best, the home parcel owner would be able to drop off persons and items before storing the vehicle at an off-site location. Such inconvenient restriction on the use of the mountainside easement lies at odds with the historical use of the mountainside easement by the Huntleys/Bernardses and the Ghandour family. The trial court did not err in determining that Ghandour had the right to continue to use the mountainside easement for vehicle parking.
Tahoe Sands contends the judgment erroneously conveys to Ghandour an exclusive right to park on the mountainside easement. Not so. The trial court’s grant of permanent injunctive relief regarding parking restrains Tahoe Sands from any action “interfering [with Ghandour’s] right to park vehicles in the parking areas [designated] areas ‘A, ’ ‘B’ and ‘C’... [or]... constructing buildings or placing other permanent structures or landscaping that would block, impede, overburden or unreasonably interfere with [Ghandour’s] use of the existing driveway, and areas ‘A, ’ ‘B’ and ‘C’ for vehicular and pedestrian ingress, egress or parking.”
The injunction does not restrain Tahoe Sands from using or parking on the mountainside easement or any other portion of the mountainside parcel. Instead, the trial court merely required Tahoe Sands to stop interfering with Ghandour’s right to do the same. For this reason, we reject Tahoe Sands’s reliance on Keeler v. Haky (1958) 160 Cal.App.2d 471.
Keeler v. Haky addressed the issue of whether an easement for a 20-foot-wide roadway allowed the owner of the dominant estate to install a permanent parking lot, prevent access to everyone else, and completely block the roadway. (Keeler v. Haky, supra, 160 Cal.App.2d at pp. 473-474.) The Keeler court held that such exclusive use plainly exceeded the rights granted by an easement “to pass and repass” upon it. (Id. at pp. 473, 475.) As Keeler explains, “It is obvious that any permanent occupation by way of parking, or otherwise, which excludes the use of plaintiffs and others having a like right to pass and repass, is entirely foreign to the grant.” (Id. at p. 476, italics added.)
Here, the trial court’s grant of permanent injunctive relief did not grant to Ghandour an exclusive right to park on the mountainside easement. Instead, the judgment reflects the historical practice of the home parcel’s owners in their nonexclusive use of areas A, B, and C for vehicle parking. The trial court did not err in granting injunctive relief to Ghandour so that she may continue to park on the mountainside easement.
II
Permanent Injunctive Relief Awarded to Ghandour
Tahoe Sands next contends the trial court erred in granting permanent injunctive relief for “unspecified and speculative future conduct.” More particularly, Tahoe Sands argues that “the lower court restrained [it] from performing future unspecified construction activities” in sections 3 through 5 of the judgment. We are not persuaded.
A
Sections 3 through 5 of the judgment granted permanent injunctive relief to Ghandour as follows:
“3. THE LAKESIDE EASEMENT. [¶]... [¶] 3.2. Injunctive Relief. As to the [lakeside easement], [Tahoe Sands] is prohibited from (a) blocking vehicular or pedestrian access to the easement by the placement of barriers, snow berms or other obstructions; (b) removing pavement from the easement area in a manner that unreasonably interferes with [Ghandour’s] right to enjoy safe access to Lake Tahoe Beachfront, except such removal as may occur in the course of normal maintenance and replacement of the pavement; (c) locating parking spaces within the easement; and (d) constructing buildings or placing other permanent structures or landscaping within the easement that would block, impede overburden or unreasonably interfere with [Ghandour’s] use of the [lakeside easement] for vehicular and pedestrian travel.
“4. THE MOUNTAINSIDE EASEMENT. [¶]... [¶] 4.2. Injunctive Relief. As to the [mountainside easement], [Tahoe Sands] is prohibited from (a) blocking or unreasonably impeding [Ghandour’s] right of access on the existing paved driveway, including the placement of snow berms; (b) interfering [with Ghandour’s] right to park vehicles in the parking areas shown as areas ‘A, ’ ‘B’ and ‘C’ on Exhibit A attached hereto and incorporated herein by this reference; (c) storing vehicles, or allowing long-term placement of vehicles or other objects in areas ‘A, ’ ‘B’ and ‘C’ as shown on Exhibit A; (d) removing pavement from the driveway to [Ghandour’s] residence, areas ‘A’ and ‘B, ’ and removing gravel from area ‘C, ’ all as shown on Exhibit A, except as may occur in the course of normal maintenance thereof; and (e) constructing buildings or placing other permanent structures or landscaping that would block, impede, overburden or unreasonably interfere with [Ghandour’s] use of the existing driveway, and areas ‘A, ’ ‘B’ and ‘C’ for vehicular and pedestrian ingress, egress or parking.
“5. THE ENCROACHMENT EASEMENT. [¶]... [¶] 5.2. Injunctive Relief. As to the [encroachment easement], [Tahoe Sands] is prohibited from constructing buildings or placing other permanent structures or landscaping within the easement that would interfere with [Ghandour’s] current setback.”
B
The Code of Civil Procedure provides that “[a]n injunction may be granted... [¶] [w]hen it appears, during the litigation, that a party to the action is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the rights of another party to the action respecting the subject of the action, and tending to render the judgment ineffectual.” (Code Civ. Proc., § 526, subd. (a)(3).)
The decision to grant or deny permanent injunctive relief is addressed to the trial court’s sound discretion and will not be disturbed on appeal without a showing that the court acted in a manner that is arbitrary, capricious, or exceeds the bounds of reason. (Haley v. Casa Del Rey Homeowners Assn. (2007) 153 Cal.App.4th 863, 872.) “The exercise of discretion must be supported by the evidence and, ‘to the extent the trial court had to review the evidence to resolve disputed factual issues, and draw inferences from the presented facts, [we] review such factual findings under a substantial evidence standard.’ [Citation.] We resolve all factual conflicts and questions of credibility in favor of the prevailing party and indulge all reasonable inferences to support the trial court's order.” (Ibid., quoting Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 390.)
Here, the trial court found that “the evidence demonstrates that unreasonable interference by [Tahoe Sands] is likely to recur and remedies at law would be inadequate. When balanced, the equities are decidedly with [Ghandour].” The trial court’s conclusion rested on evidence at trial showing that Tahoe Sands had repeatedly infringed upon Ghandour’s easement rights.
Tahoe Sands placed physical barriers in the way of Ghandour’s vehicular access to Lake Tahoe on the lakeside easement. The association also reconfigured the parking spaces for time-share guests to use part of the easement as their parking area. Moreover, the trial court found that the evidence “confirms that [Tahoe Sands] is still preparing and submitting preliminary redevelopment plans that would serve to minimize [Ghandour’s] rights to use the lakeside easement.”
Continuing a strategy of being “coy” about the redevelopment, Tahoe Sands argues that its intent and plans cannot be gleaned from the evidence. In particular, Tahoe Sands views its success in having exhibits 50 and 51 (showing preliminary redevelopment plans) admitted only for the limited purpose of illustrating Hansen’s testimony as proof positive that its redevelopment goals are too inchoate to allow for any findings of fact regarding potential infringement on Ghandour’s rights. In so arguing, Tahoe Sands ignores substantial evidence showing its plans to redevelop the lakeside and mountainside parcels in derogation of Ghandour’s easement rights.
Hansen acknowledged that “it’s the desire of Tahoe Sands to redevelop the property....” To this end, Tahoe Sands hired an architectural design firm to prepare redevelopment plans. The association has already submitted an initial project application to Placer County. Hansen denied that the plans in exhibits 50 and 51 were the same as those submitted to the county. Nonetheless, he was able to compare the exhibits with the latest plans he had seen in order to provide significant details regarding building sizes, fire lane location, the site for a swimming pool, and placement of other resort features. As to the configuration of the driveway and parking areas, Hansen admitted that exhibit 50 was “basically close” to Tahoe Sands’s redevelopment plans.
The evidence also established the threat to Ghandour’s house due to the proposed placement of a maintenance building near to the home parcel. When asked whether the plan called for maintenance facilities to be placed “right in front of Ghandours’ house, ” Hansen responded:
“What I see is that the architect has drawn some buildings utilizing that area of Tahoe Sands property. And my personal opinion, being in front of the Ghandours I don’t think has much – there’s not much damage. The area there is so steep, the terrain, that the Ghandours would have no trouble seeing over the building.” Based on this answer, the court sua sponte asked Hansen a follow-up question as follows:
“THE COURT: Have you seen a configuration at some point for the redevelopment of the property that includes a maintenance building or more within 100 feet of the front of the Ghandour residence?
“THE WITNESS: Yes, your Honor, I have.”
Although guarded in many respects, Hansen’s testimony provided sufficient detail of Tahoe Sands’s plans to allow the trial court to determine that injunctive relief was necessary to protect Ghandour’s easement and property rights.
Evidence that Tahoe Sands repeatedly disregarded Ghandour’s rights and drew up redevelopment plans placing a maintenance building close to the Ghandour residence warranted permanent injunctive relief – especially given the disregard of Ghandour’s easement rights since our decision in Beyer. The trial court did not err in granting permanent injunctive relief.
We reject Tahoe Sands’s assertion that the injunctive relief specified in the judgment “improperly restrains unspecified and speculative future conduct.” To the contrary, the trial court’s injunctive relief is specific and directly addresses past actions by Tahoe Sands that infringed on Ghandour’s easement rights. The judgment enjoins Tahoe Sands from (1) blocking the lakeside and mountainside easements as it did by placing heavy planters and trees at the entrance of one of the easements, (2) placing snow berms in her path of travel on the easements, (3) moving parking onto the lakeside easement as it had previously done, (4) obstructing the mountainside easement as had been the case when storage of boat trailers “completely blocked” Ghandour’s path of travel, and (5) redeveloping the resort in a manner that blocks or encroaches on Ghandour’s easements.
As to the prohibition on redevelopment, the judgment disallows only such construction as would encroach on the easements. The location of the lakeside, mountainside, and encroachment easements are well established. The prohibition on construction of buildings or parking lots on these easements is neither uncertain in scope nor unjustified by the evidence of Tahoe Sands’s recurring disregard for Ghandour’s easement rights.
We note that the trial court did not anticipate the permanent injunctive relief specified in the judgment to constitute the last word on how Tahoe Sands may redevelop its properties. Regarding the injunctive relief for the lakeside easement, the trial court noted: “Dependent on the ultimate outcome and configuration of [Tahoe Sands’s] redevelopment plans in the lakeside easement, it is reasonably likely that constructing buildings or other improvements in the area would substantially impair [Ghandour’s] right of access to the Lake. Given the history of this dispute, the court undoubtedly will be asked to decide those future issues.” (Italics added.)
The trial court demonstrated an approach that limited injunctive relief to preventing recurrence of Tahoe Sands’s past acts that concretely infringed on Ghandour’s easement rights. The trial court did not enjoin all future redevelopment plans but only plans which would block or encroach on Ghandour’s easements. In so tailoring the injunctive relief, the trial court did not abuse its discretion.
III
Pavement Maintenance on the Mountainside Easement
Tahoe Sands argues that the trial court erred in disallowing the association from removing pavement from the lakeside and mountainside easements. Tahoe Sands asserts this prohibition has “the effect” of requiring it “to maintain its pavement for the benefit of Ghandour’s use.” We disagree.
At trial, Edmond Ghandour testified on behalf of his wife, the plaintiff. Edmond stated that if Tahoe Sands removed the pavement from the lakeside and mountainside easements, he and his wife would be unable to drive from the highway to their house or to the lake. Edmond further explained that Tahoe Sands’s moving of the parking lot onto the lakeside easement precipitated the present lawsuit.
The trial court found that Ghandour is “properly concerned that [redevelopment] plans, if carried out, would impair [her] rights to reasonable use of the easement.... The fact that these particular plans are being proposed is relevant to highlight the degree of [Tahoe Sands’s] consistent and ongoing disregard for [Ghandour’s] rights and the need for future protection.... In other words, [Tahoe Sands’s] proposals lend evidentiary support to [the Ghandours’] fears that [Tahoe Sands’s] past interference with their rights will continue in the future, but to a much larger extent.” (Italics added.)
As this court has recognized, “When a person interferes with the use of an easement he deprives the easement’s owner of a valuable property right....” (Moylan v. Dykes (1986) 181 Cal.App.3d 561, 574.) Based on the credible threat to the Ghandour’s rights, the trial court properly enjoined Tahoe Sands from interfering with the easements by removing the pavement necessary to use the access easements. As the trial court noted, the terrain and adverse winter conditions would prevent Ghandour from reaching her house if the pavement were removed.
Tahoe Sands’s related argument that the permanent injunction requires it to maintain the pavement misconstrues the nature of the relief granted to the Ghandours. The trial court’s prohibition on removal of pavement did not impose an affirmative duty on Tahoe Sands to maintain the road surface. At trial, the testimony established that Ghandour (along with her co-owner at the time) paid for repairs to the mountainside easement pavement. Tahoe Sands paid for none of the pavement work on the mountainside easement. Edmond Ghandour’s testimony indicated no interest in shifting the costs of pavement repairs to Tahoe Sands, but only to have the association disallowed from interfering with the ability of the Ghandours to drive on the access easements. Because the judgment does not require Tahoe Sands to maintain the easement pavement for Ghandour, but prohibits only affirmative removal of pavement, Tahoe Sands’s argument regarding the association’s duty to do so has no purchase.
The trial court did not err in enjoining Tahoe Sands from removing pavement on the lakeside and mountainside easements.
Appeal by Anna Ghandour
IV
Attorney Fees and Costs
Ghandour’s sole argument on cross-appeal concerns the trial court’s denial of her request for attorney fees as authorized by the 1981 trust agreement. She argues that the trial court erred in concluding that she was not entitled to any attorney fees even though she was the prevailing party. We conclude that the trial court erred.
A
After Tahoe Sands prevailed in the original judgment, it moved for attorney fees and costs based on the fee-shifting provision in the trust agreement. Tahoe Sands argued: “Section 12.4 of the Trust Agreement includes a provision altering the obligation of each side to pay their own attorney fee in litigation involving the document. It provides: [¶] ‘12.4. Attorney fees. If legal action be commenced to enforce or declare the effect of any provisions of this Agreement, the prevailing party in such action shall be entitled to recover from the other party all costs and attorneys’ fees incurred therein by the prevailing party.” Tahoe Sands quoted the fee-shifting provision as contained in an exhibit it moved into evidence during the first trial.
Tahoe Sands sought $130,385 in attorney fees under the trust agreement’s fee-shifting clause. In support of its motion, Tahoe Sands asserted that “this litigation specifically included as a significant issue the interpretation of the Trust Agreement as it applied to the rights of the beneficiary to use the Resort Properties....” Tahoe Sands further argued that “an analysis of Anna Ghandour’s rights under the Trust Agreement was a necessary and important component of the case.”
In the earlier case, the trial court granted fees, explaining: “[Tahoe Sands’s] motion for attorneys fees is granted. It is uncontroverted that the Deed of Trust to the Bank of California contained an attorney’s fees provision. There was an issue which both sides litigated and argued, as to the legal effects which the deed of trust accomplished, and whether the creation of the deed of trust created such a division of the interest in the property so as to defeat the doctrine of merger. While the language of the document was not in dispute, the meaning and legal effect of the document was in dispute. That is, whether by its terms, it was such a plenary conveyance that it had the effect of establishing the easements to which it referred to [sic] in its own terms. As such, the issues in the lawsuit necessarily related to issues of enforcement or interpretation of the actual trust document. Ultimately the document had to be evaluated, as a whole, in light of contemporaneous transactions comprising the creation of the time share plan. Therefore, [Tahoe Sands] is entitled to an award of attorney fees.”
Although the court granted attorney fees to Tahoe Sands, it reduced the requested amount by 90 percent to reflect the court’s determination of the “portion of the suit which [was] related to the efficacy of the deed of trust.”
Following entry of judgment after remand, Ghandour moved for $243,872.40 in attorney fees under paragraph 12.4 of the trust agreement. The trial court found that Ghandour was the prevailing party, but nonetheless denied her motion for fees. The court ruled: “While [Ghandour] is entitled as the prevailing party to her allowable costs, she is not entitled to attorney fees except under certain specific conditions, none of which exist here. This action was about quieting title, injunctive relief, easements and encroachments on real property. The Trust Agreement was merely defense evidence used to support other evidence on the easements and encroachments.”
B
Absent a statutory or contractual provision to the contrary, each party to a lawsuit must bear its own attorney fees. (Code Civ. Proc., § 1021.) However, parties to a deed of trust may agree to incorporate a fee-shifting provision. (See, e.g., Star Pacific Investments, Inc. v. Oro Hills Ranch, Inc. (1981) 121 Cal.App.3d 447, 463.)
Contractual fee-shifting provisions are subject to subdivision (a) of Civil Code section 1717, which provides in pertinent part: “In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs.”
“The trial court exercises a particularly ‘wide discretion’ in determining who, if anyone, is the prevailing party for purposes of [Civil Code] section 1717(a). [Citations.] To overturn that determination on appeal, the objecting party must demonstrate ‘a clear abuse of discretion.’ [Citation.] However, the ‘determination of the legal basis for an award of attorney fees’ is a ‘question of law’ which the reviewing court will examine de novo. (Sessions Payroll Management, Inc. v. Noble Construction Co. (2000) 84 Cal.App.4th 671, 677 (Sessions).)” (Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 894.)
C
We begin by considering Tahoe Sands’s argument that the attorney fee motion was properly denied because Ghandour “failed to present to Judge Wachob a copy of the Declaration of Trust upon which her fee claim was based.” Tahoe Sands asserts that Ghandour failed to introduce admissible evidence of the fee shifting provision in the trust agreement. The argument lacks merit.
Tahoe Sands itself introduced the trust agreement in moving for attorney fees following entry of the original judgment. Tahoe Sands does not claim that the fee-shifting provision in the trust agreement is any different than that quoted in its own motion for attorney fees or its reply brief in the present appeal. Having been admitted into evidence, the terms of the trust agreement were properly before the trial court when it ruled on Ghandour’s motion for attorney fees.
Here, Ghandour’s action for declaratory and injunctive relief squarely presented issues regarding the nature and scope of the easements created in the trust agreement. Indeed, after entry of the original judgment, Tahoe Sands acknowledged that “Ghandour commenced this action to pursue claims of declaratory relief, quiet title and injunctive relief, each of which sought to establish the existence of or to protect either her deeded or prescriptive easements.” (Italics added.) In short, Ghandour sought and received relief for infringement of her easement rights arising out of the trust agreement. (Beyer, supra, 129 Cal.App.4th at p. 1472.) Section 12.4 of the trust agreement allows a prevailing party to recover attorney fees where a legal action is brought “to enforce... any provisions of this Agreement....” The disputed easements were contained in “provisions of this Agreement.” Both phases of trial in this case centered on enforcing provisions in the trust agreement: Ghandour’s easement rights. Under the fee-shifting provision in the trust agreement, Ghandour is entitled to attorney fees for enforcing provisions of the trust agreement.
Ghandour also defended against a cross-claim brought by Tahoe Sands to enforce or declare the effect of the trust agreement. The fee-shifting provision in the trust agreement applies to any action “to declare the effect of any provisions of this Agreement....” Ghandour prevailed against Tahoe Sands’s cross-action, which provides a redundant basis for her entitlement to attorney fees under section 12.4 of the trust agreement.
The trial court erred in reasoning that Ghandour relied upon the trust agreement only as a “defense” because her action as a plaintiff secured permanent injunctive relief against Tahoe Sands. Even if Ghandour had only defended against Tahoe Sands’s action, she would still be entitled to attorney fees. The Code of Civil Procedure renders “an otherwise unilateral right reciprocal, thereby ensuring mutuality of remedy, ... when a person sued on a contract containing a provision for attorney fees to the prevailing party defends the litigation ‘by successfully arguing the inapplicability, invalidity, unenforceability, or nonexistence of the same contract.’ (North Associates v. Bell (1986) 184 Cal.App.3d 860, 865.)” (Santisas v. Goodin (1998) 17 Cal.4th 599, 611.)
Tahoe Sands relies on Exxess Electronixx v. Heger Realty Corp. (1998) 64 Cal.App.4th 698 (Exxess) to argue that the trust agreement did not play a role in this case because Ghandour failed to mention the document in her complaint. Tahoe Sands emphasizes that its cross-complaint also did not mention the trust agreement. We reject the argument and find Exxess inapposite.
In Exxess, plaintiff was a lessee of commercial premises who discovered serious defects in the property after coming into possession. Plaintiff sued its broker for failure to disclose the defects, and the broker pleaded the defense that the premises were leased “as is.” (Exxess, supra, 64 Cal.App.4th 703-704.) The parties reached a settlement that purported to allow the broker to retain the right to move for costs and attorney fees even after the case was dismissed. (Id. at pp. 707-708.) The trial court granted attorney fees, and the appellate court reversed for several reasons. (Id. at p. 702.) The reason most relevant to this appeal (and which is quoted by Tahoe Sands) was stated as follows: “[T]he lease authorizes attorneys’ fees ‘[i]f any Party or Broker brings an action or proceeding to enforce the terms hereof or declare rights hereunder.’ (Italics added.) While the ‘as is’ defense may have had the effect of ‘enforc[ing] the terms’ of the lease or ‘declar[ing] rights [there]under, ’ [the broker] did not ‘bring[ ] an action or proceeding’ to accomplish those goals. Under any reasonable interpretation of the attorneys’ fee provision, we cannot equate raising a ‘defense’ with bringing an ‘action’ or ‘proceeding.’” (Id. at p. 712.)
Here, both Ghandour’s complaint and Tahoe Sands’s cross-complaint sought declaratory and injunctive relief with respect to the easements created by the trust agreement. That the complaint and cross-complaint may not have expressly mentioned the deed of trust does not mean that the actions by Ghandour and Tahoe Sands did not directly implicate the terms of the trust agreement. To hold otherwise would allow parties to artfully plead rights arising under contract – but without expressly mentioning the contract – so that no risk of fee-shifting would be incurred. Such a result would undermine the ability of parties to incorporate fee-shifting agreements into their agreements. (But see Civ. Code, § 1717 [allowing for attorney fee shifting agreements].)
Tahoe Sands argues that “this action was commenced at a time well after the Declaration of Trust had terminated by consolidation of the legal and beneficial interests in the resort properties. (See, e.g., Beyer v. Tahoe Sands Resort, supra, 129 Cal.App.4th 1458, 1468.) Instead of seeking a declaration of its terms, Ghandour brought this action in her capacity as owner of a dominant parcel, at a time when the Declaration of Trust was extinguished ....” (Italics added.) This argument has no merit.
Tahoe Sands cites to a page in Beyer that recounts the facts of the Association’s consolidation of its property interests. (Beyer, supra, 139 Cal.App.4th at p. 1468.) The statement of facts regarding the origin of Tahoe Sands’s property rights does not hold that the trust agreement was coterminously extinguished. (See id. at pp. 1468-1469.) To the contrary, our decision in Beyer reversed a judgment declaring that Beyer and Ghandour’s easements – which were created by the trust agreement – had been extinguished. (Id. at p. 1462, 1466-1467, 1477-1478.) Just as the easements created by the trust agreement endured, so too the fee-shifting clause within the same document remained effective. Accordingly, we reject the Tahoe Sands contention that the trust agreement (along with its fee-shifting provision) was extinguished when the association consolidated its property holdings.
Tahoe Sands next argues that Ghandour should not be allowed to recover attorney fees under a trust agreement to which she was not a signatory. In support, Tahoe Sands relies on Pas v. Hill (1978) 87 Cal.App.3d 521.
Pas v. Hill offers no support to Tahoe Sands’s argument because the same court deciding that case subsequently overruled Pas in Saucedo v. Mercury Sav. & Loan Assn. (1980) 111 Cal.App.3d 309 (Saucedo). In Saucedo, the Court of Appeal held that “denial of the recovery of attorney fees in Pas v. Hill was in error.” (Id. at page 313.) The Saucedo court concluded that attorney fees may be awarded even to parties not in privity with the deed of trust. In Saucedo, nonassuming grantees of a property subject to a deed of trust were awarded attorney fees because they succeeded in preventing trust deed holders from enforcing due-on-sale clauses. (Id. at p. 312.) By preventing foreclosure, the nonassuming grantees avoided encumbrance of the property by debt, which certainly would have included attorney fees. (Id. at p. 315.) The Saucedo court reasoned that the plaintiffs were entitled to attorney fees because the “practical ‘liability’ of the nonassuming grantee is sufficient to call into play the remedial reciprocity established by Civil Code section 1717.” (Ibid.)
Here, as in Saucedo, the prevailing party defended rights arising under the trust agreement that also contained the fee-shifting provision. Ghandour’s entitlement to fees as the prevailing party derives from the centrality of the easements – as created and defined by the trust agreement – to this action and cross-action.
Tahoe Sands misplaces its reliance on Leach v. Home Savings & Loan Assn. (1986) 185 Cal.App.3d 1295 (Leach) and Clar v. Cacciola (1987) 193 Cal.App.3d 1032 (Clar).
In Leach, the Court of Appeal concluded that the beneficiary of a trust could not be liable for the trustee’s actions. (Leach, supra, 185 Cal.App.3d at p. 1298.) The beneficiary had no contractual right to attorney fees because she was not a signatory to the trust. For lack of reciprocal rights, the prevailing lenders to the trust could not in turn recover attorney fees against the beneficiary. (Id. at p. 1307.) Here, Ghandour was more than a mere beneficiary of trust. She held fee title to a property that entitled her to the easements at issue in this case. (Beyer, supra, 129 Cal.App.4th at p. 1470.) Having the right to seek legal relief for denial of her easement rights, Ghandour also had the right to legal fees under the instrument that created the easements.
Clar held that plaintiffs, who lacked standing to challenge the validity of a deed of trust, were not liable for attorney fees under the same deed of trust. (Clar, supra, 193 Cal.App.3d at pp. 1037-1038.) Clar does not apply because Ghandour clearly had standing. Having prevailed in her action to enforce the trust agreement, Ghandour was entitled to attorney fees under the agreement. (Civ. Code, § 1717, subd. (a).)
The trial court erred in denying Ghandour’s motion for attorney fees.
DISPOSITION
The judgment is affirmed. The order denying Ghandour’s motion for attorney fees is reversed. Ghandour shall recover her costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)
We concur: NICHOLSON, J., BUTZ, J.
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