Viney v. Leal Grupp

Full title: KENNETH VINEY, Plaintiff and Appellant, v. LEAL GRUPP et al., Defendants…

Court: California Court of Appeals, First District, Fourth Division

Date published: Oct 19, 2011

A120208, A120993, A121704 (Cal. Ct. App. Oct. 19, 2011)

Opinion

KENNETH VINEY, Plaintiff and Appellant, v. LEAL GRUPP et al., Defendants and Appellants. KENNETH VINEY, Plaintiff and Appellant, v. CYNTHIA GRUPP et al., Defendants and Appellants. A120208, A120993, A121704 California Court of Appeal, First District, Fourth Division October 19, 2011

NOT TO BE PUBLISHED

Napa County Super. Ct. No. 2630185

Reardon, J.

These consolidated appeals stem from a dispute over use of a road easement among landowners of adjacent parcels in rural Napa County. At trial, all but one of appellant Kenneth Viney’s causes of action turned on his belief that appellants Susan Curtis, Leal and Cynthia Grupp, and Tranquility Group, LLC had conspired to deprive him of the right to improve an access road across an easement leading to his planned home site. After Viney presented his case-in-chief, motions for nonsuit were granted on all conspiracy-based causes of action. On the remaining cause of action for unreasonable interference with his easement, a jury found the Grupps and Tranquility Group liable to Viney for $360,000 in damages. The trial court granted Leal Grupp judgment notwithstanding the verdict and reduced the total damage award to $240,000, but denied Cynthia Grupp and Tranquility Group judgment notwithstanding the verdict. It ordered Viney to pay part of Curtis’s attorney fees, but denied any fee award to the Grupps and Tranquility Group because it found that Viney was the prevailing party in his action against them.

On appeal from the judgment, the Grupps and Tranquility Group raise various challenges to the finding of unreasonable interference with Viney’s easement. Viney cross-appeals, contending that the trial court erred in excluding evidence, in granting motions for nonsuit on his conspiracy-based causes of action and in entering judgment notwithstanding the verdict for Leal Grupp. (Case no. A120208.)

In their appeal from the order denying their motion for attorney fees, the Grupps and Tranquility Group argue that they were prevailing parties on many causes of action and thus were contractually entitled to attorney fees for them. (Case no. A120993.) In the third appeal, Viney challenges the order requiring him to pay part of Curtis’s attorney fees. Curtis cross-appeals, contending that the trial court erred by awarding her less than her full request for attorney fees. (Case no. A121704.)

We conclude that the trial court properly granted nonsuit on the conspiracy-based claims and properly granted judgment notwithstanding the verdict to Leal Grupp. We uphold the jury verdict finding Cynthia Grupp and Tranquility Group liable for unreasonable interference with easement, but remand for a limited retrial on the issue of damages for that interference. We reverse the order denying attorney fees to Tranquility Group and the Grupps and remand that issue to the trial court for consideration after the limited retrial on damages for unreasonable interference with easement is complete. We affirm the Curtis attorney fees order.

I. FACTS

A. The Properties

In 1998, Kenneth and Susan Viney¹ bought 36 acres of unimproved real property off Soda Canyon Road in Napa County. A year later, Susan and Lonen Curtis² purchased an adjacent, unimproved parcel for $440,000. The Viney parcel was landlocked, with access to Soda Canyon Road by means of an express easement burdening the Curtis parcel. An unpaved road ran 800 to 1, 000 feet across the Curtises’ property, starting at Soda Canyon Road, crossing a stone bridge over a creek and running onto the Viney parcel.

1 Susan Viney is not a plaintiff in the underlying action. For convenience, this opinion refers to her husband Kenneth Viney alone as the party representing their joint interests.

2 In December 2004, Susan Curtis’s husband Lonen died. For convenience, all references to “Curtis” refer to Susan Curtis.

The Vineys and the Curtises hoped to build residences on their respective parcels, both of which commanded splendid views of the surrounding rural area. The steep topography of the sites raised challenges to these plans. The prime building sites on the Curtis and Viney parcels overlooked an existing home occupied by Leal and Cynthia Grupp, raising the specter of view intrusion. The Grupps had lived on their two adjacent parcels for more than 25 years before the Curtises and the Vineys purchased their land.

Viney was not a licensed contractor, but had worked for many years in the construction business. He sought to minimize his development costs by doing much of the construction work himself, rather than by hiring a licensed contractor. Because he had the right to an easement adjacent to his property, he believed that he was entitled to work on that easement without the need for a licensed contractor.

B. History of Neighborhood Disputes

Property owners in this area have had various disputes with one another over many years’ time. Some of these disputes were litigated to resolve underlying property-related issues. We review the disputes most pertinent to the issues posed in this appeal.

1. Location of Easement

Initially, it was assumed that the unpaved road on the Curtis parcel coincided with the location of Viney’s recorded easement. In fact, by 2002, it was clear that the recorded easement crossed onto land owned by the Grupps and other neighbors who are not parties to this action. Both the location and the width of the Viney easement have been plagued by lot line disputes among the various neighbors. Attempts to sort out these issues have met with limited success.

Viney’s plans to develop his parcel depended on his right to an access easement that met county standards. If his recorded easement was relocated completely onto the Curtis parcel, he believed that the lot line issues could be resolved and his easement could be widened enough to provide legal access to the site of his planned residence.

2. Proposed Curtis-Viney Land Swap

In 2000, Viney sought to add a knoll on the Curtises’ parcel to his planned building site. He told the Curtises that the steep topography leading to the knoll from their lot would make it impossible to build a road that would access a home there. However, he believed that he could access the knoll from his property, because the topography of his parcel near their knoll was less steep. He persuaded the Curtises that an exchange of small pieces of their parcels would be in their mutual interest. Viney would acquire part of their knoll and the Curtises would receive a part of his property that was thought to be more suitable for growing grapes. In August 2000, the Curtises and Viney signed a letter agreeing to make this land swap. After obtaining this letter, Viney filed a lis pendens against the Curtis parcel, effectively barring them from selling it.

3. Curtis-Viney Access Improvement

Meanwhile, the Curtises and Viney had agreed that the unpaved road had to be improved before either could obtain occupancy permits for the residences they hoped to build on their respective parcels. They agreed to split the cost of road improvements. In April 2000, Viney obtained county approval to grade the dirt road across both parcels and in the fall of 2000, he began doing the work, which involved some blasting.

Adjacent neighbors who were involved in the lot line dispute with Viney believed that the road work had been done in an improper manner, rendering the road unstable. One proposed solution was to build a retaining wall at the same time that the roadbed was stabilized. As the lot line issue arose, concerns about the proposed lot line adjustment and the retaining wall became intertwined.

The Curtises made a few payments to Viney for their half of the cost of the roadwork, but by January 2001, they became concerned that his work rendered unsafe the stone bridge that sat on their property. Fearing that they would be liable for any damage resulting from his work, the Curtises instructed Viney not to do any more work without their permission.³ They raised their concerns with county officials, complaining that Viney had not used a licensed contractor to perform the work. The Curtises and the Grupps both contacted state Department of Fish and Game officials about potential creek pollution resulting from his work.

3 One condition of the permit required that Viney coordinate his work with the owners of the property over which his easement ran. He believed that this obligation was satisfied if he informed the property owners of his plans, but county officials later advised him that he was required to obtain their permission.

When Viney obtained an amended permit from local officials to improve the road and the bridge, the Curtises appealed that decision to the county board of supervisors. Viney was unable to work on the project until the appeal was resolved. The board imposed additional conditions of approval for the bridge work in September 2003. These conditions required Viney to pay $12,500 for an engineering study of the structural integrity of the bridge and its proposed design changes. If the independent engineer identified corrective actions, the county required Viney to make them. The board also concluded that state law required Viney to have the work performed by a licensed contractor.

4. Grupp-Viney Litigation

Twice before the action underlying this appeal, the Grupps had sued Viney. The first—a property line dispute—was settled in November 2001. In the course of Viney’s work, he encroached on the Grupps’ property, removing soil and vegetation. On the basis of this encroachment, the Grupps brought a second action against Viney, seeking to quiet title to the disputed portion of land and to obtain damages for trespass. During the course of the litigation, Viney stated that he did not see the wooden surveyor’s stakes that had been placed at 100-foot intervals marking the Grupp property line. A judgment for $10,000⁴ was given for the Grupps, who were declared to be the sole owners of the disputed property. Viney’s encroachment was characterized as reckless, but unintentional. On his appeal, that judgment was affirmed. (Grupp v. Viney (Aug. 23, 2005, A106917) [nonpub. opn.].)

4 At the time of trial in September 2007, this judgment was still unpaid.

5. Curtis-Viney Litigation

In November 2001, the Curtises also sued Viney, seeking to void the August 2000 land swap agreement. Viney cross-complained, praying for damages of the Curtises’ unpaid share of the cost of the access improvements, for enforcement of the land swap agreement, and to quiet title to the easement. On May 7, 2004—with the approval of a trial court judge—the Curtises and the Vineys entered into a handwritten settlement agreement. As part of that agreement, Viney waived any claim to the Curtises’ knoll and to any further payment from the Curtises for road improvements. The Curtises agreed to relocate his easement completely onto their parcel; to cooperate to resolve lot line issues with other neighbors; to withdraw their complaints to governmental entities about Viney’s work, including withdrawal of an unfavorable engineering report; and to refrain from making any future complaints about his work. The Curtises also agreed to pay Viney $20,000. In July 2004, the Curtises and the Vineys signed a typewritten settlement agreement and mutual release memorializing the terms of their May 2004 handwritten agreement. Viney believed that this settlement would allow him to complete his access road and to do so without the need for a licensed contractor.

C. Postsettlement Agreement Events

1. Agreement for Sale of Curtis Parcel to Tranquility Group, LLC

In October 2002, Lonen Curtis developed brain cancer. By this time, the Curtises had abandoned their plan to build a home on their parcel. Now focused on health concerns, they sought to sell their parcel and to end the dispute with Viney. Knowing that Lonen Curtis was ill, Viney offered to purchase their parcel for $220,000, but the offer—half of what they had paid for it—was rejected.

The Grupps had also expressed an interest in purchasing the Curtis parcel. They hoped to prevent any building on the knoll that might intrude into the privacy of their own nearby home. In the spring of 2004, Lonen Curtis asked the Grupps if they wanted to purchase the Curtis parcel.⁵ At first, the Grupps were reluctant to do so—they could not obtain a bank loan to purchase undeveloped land and Viney’s lis pendens clouded its title. Once the May 7, 2004 settlement agreement was signed and approved, the Grupps knew that the lis pendens would soon be withdrawn. The Curtises offered to finance the purchase, eliminating the Grupps’ lending concern. Within days after the settlement agreement, the Grupps had agreed in principle to purchase the Curtis parcel.

5 During the negotiations for the Curtis/Viney settlement agreement, the judge mediating that dispute actually spoke with the Grupps about the conditions under which they might be interested in purchasing the Curtis parcel. The Curtises’ attorney spoke with the Grupps’ counsel while the language of the July 2004 agreement was being worked out. He did not want anything in the final settlement agreement to discourage the Grupps from purchasing the Curtis parcel.

On May 14, 2004, in anticipation of the purchase of this property, Leal and Cynthia Grupp formed Tranquility Group, LLC, which was owned and managed by them and their two adult children. On June 8, 2004, the Grupps and the Curtises met to discuss the terms of sale and to sign a formal purchase agreement. A copy of the May 2004 settlement agreement was attached to that purchase agreement. One feature of the settlement agreement—the requirement that the Curtises cooperate with neighbors about lot line issues of importance to Viney—was incorporated into the purchase agreement. The Curtises’ agreement precluding any future governmental complaints about Viney’s work was not made part of the purchase agreement.⁶

6 The settlement agreement provided inter alia that Curtis would “not make any further complaints” about the road or bridge work on the parcel “or any future work performed, except regarding work or activities which are illegal or which overburden the easement or damage the Curtis property.”

The Curtises conveyed a 30 foot wide express easement to Viney by deed, as required by the settlement agreement. In so doing, they moved Viney’s easement completely onto their property, more or less coexistent with the road. Then, on July 30, 2004, Tranquility Group formally purchased the still-unimproved Curtis parcel, burdened by the Viney access easement, for $450,000. Part of the purchase price was paid at the time of sale. The remainder was financed under the terms of a promissory note that Tranquility Group gave to the Curtises.

2. Execution of Settlement Agreement Requirements

As required by the settlement agreement, Viney withdrew his lis pendens against the Curtis parcel and dismissed his cross-action against them. For their part, the Curtises paid Viney $20,000, dismissed their action against him and withdrew their earlier objections to county permits.

Viney knew before he signed the settlement agreement that the county’s permit requirements would not be vacated by the Curtises’ withdrawal of these objections. County officials agreed to process an administrative modification of the permit on Viney’s application if none of the neighbors objected. He also knew when he signed the May 2004 settlement agreement that the Curtises hoped to sell their parcel. He knew that the Grupps—who would not need to access the parcel along his easement—were potential purchasers, but he did not believe that they could afford to buy it. Viney did not know that they were in the process of purchasing it.

3. Tranquility Letter to County

In August 2004, Tranquility Group advised county officials that it was the new owner of what came to be known as Tranquility parcel. It reported that Viney had not complied with a condition of his permit requiring him to obtain an independent engineering evaluation of the bridge.⁷ It noticed its intention to require that any work on the easement and bridge be performed by a licensed, bonded contractor, consistent with the requirements of Viney’s permit. In October 2004, Tranquility Group received a new engineering report raising significant concerns about the structural integrity of the bridge, based on an inspection conducted that month.

7 Payment for this evaluation was required in 2003. Viney paid it in June 2006.

4. Staking of Viney Easement

In the fall of 2004, Cynthia Grupp—acting as manager of Tranquility Group—verbally advised Viney that any further road work had to be done by a licensed, bonded contractor, not by Viney himself. The exchange of words between Cynthia Grupp and Kenneth Viney was angry and unsettling.

At Cynthia Grupp’s instruction, wooden surveyor’s stakes were placed along the length of Viney’s easement in April 2005. She recalled that Viney had claimed not to have seen similar surveyor’s stakes that had been placed 100 feet apart at an earlier time. By mid-July 2005—again, acting as Tranquility Group’s manager—she had six-foot high metal stakes connected by a strand of barbed wire erected every 15 to 30 feet along the length of the location where the surveyor was informed that Viney’s easement lay across the Tranquility parcel. The stakes narrowed the 30-foot easement in some places to 14 or 15 feet. By late July 2005, Viney had twice objected to the staking of his easement, but Tranquility Group refused to move the stakes, asserting that they correctly identified the extent of his easement. Cynthia Grupp testified that Tranquility Group later realized that the placement of the stakes was incorrect, as it had been based on an outdated survey of Viney’s easement. Soon after Tranquility Group realized this mistake, the stakes and fencing were removed. The evidence of the timing is vague, but it appears that the removal was made in the early months of 2006.

5. Viney Assessment of Situation

Viney was frustrated by these developments. He viewed the Tranquility Group letter to county officials as a complaint of the sort that he had hoped that the settlement agreement with the Curtises would preclude. As Tranquility Group was not a party to that agreement, it was not bound by its terms. He read the settlement agreement to infer to him a right of first refusal to purchase the Curtis property or to find a purchaser who would cooperate with him in completing the common access road improvements. Curtis disagreed, finding nothing in the settlement agreement barring the sale of the parcel to Tranquility Group or obligating her to disclose to Viney any details of her plans to do so.

Viney believed that the Grupps were not financially able to purchase the Curtis parcel. Once the parcel was transferred, he remained convinced that the Grupps were not the true owners of Tranquility parcel, but that Curtis still owned it.⁸ He believed that the Curtises had tricked him into entering into the settlement agreement—Viney thinking that he would be able to complete the access road to the site of his planned home; the Curtises knowing that they intended to sell the parcel to the Grupps who would not be bound by the terms of that agreement. He was certain that the Curtises and the Grupps had conspired against him to prevent him from enjoying the benefits of the settlement agreement and, by extension, the use of his property.

8 This suspicion was apparently fueled by public records that did not disclose the names of all members of Tranquility Group. Viney sought to learn the names of the members, but the Grupps instructed their attorney not to reveal this information to him, fearing that he might harass their adult children.

D. The Lawsuit

1. Pretrial Matters

In July 2005, Viney sued Curtis, the Grupps and Tranquility Group, LLC. His fourth amended complaint⁹ filed in January 2007 alleged causes of action seeking rescission, declaratory and injunctive relief, damages and costs. Six of his nine causes of action—those for fraud, breach of implied covenant of good faith and fair dealing, conspiracy, interference with contract, breach of contract and promissory fraud—were grounded in Viney’s belief that Curtis and the Grupps had conspired against him to deprive him of the benefits of the 2004 settlement agreement. Two causes of action sought related injunctive and declaratory relief.¹⁰ Viney alleged a final cause of action against the Grupps and Tranquility Group alone for unreasonable interference with his easement, based on the staking and fencing of it.

9 The parties’ appendices do not contain a copy of the original complaint.

10 Viney dismissed these two causes of action shortly before trial.

Curtis, the Grupps and Tranquility Group answered the complaint, denying that Curtis had any role in the LLC or that the Grupps or Tranquility Group had acted as her agent. In April 2006, Curtis filed a cross-complaint for breach of contract against Viney, asserting that his lawsuit violated the terms of the settlement agreement.¹¹ She prayed for damages, enforcement of the settlement agreement and reasonable attorney fees.¹² (Code Civ. Proc., § 664.6.)

11 Tranquility Group also filed a cross-action, alleging causes of action for intentional and negligent damage to real property, injunctive and declaratory relief. The record on appeal does not reveal the outcome of these cross-claims.

12 During the course of the litigation, Curtis made repeated unsuccessful attempts to enforce the 2004 settlement agreement. By the time the trial court granted her motion for nonsuit on all causes of action that Viney alleged against her in his complaint, her cross-complaint was little more than a vehicle for an attorney fees request.

2. Viney’s Case-in-chief

a. Viney Testimony

Viney presented his case-in-chief over the course of seven days in a jury trial. He testified that at one time, he was opposed by the county board of supervisors, the Grupps, the Curtises, and other neighbors over the location of his easement and his road work. He claimed that he had spent almost $200,000 defending against Curtis and Grupp lawsuits. He entered into the May 2004 settlement agreement believing that it would give him a legal width easement relocated onto the Curtises’ property without any encroachment on neighboring properties. That legal easement would, in turn, allow him to pave the roadway and to set up power lines to his building site.

Viney knew when he signed the May 2004 settlement agreement that the Curtises wanted to sell their parcel. Sale to another third party would have been acceptable to him, but he did not know that they planned to sell to the Grupps, which was unacceptable.¹³ The Grupps had other means of accessing the Tranquility parcel, so they did not share his need to improve the road along his easement. He believed that the Grupps intended to prevent him from building his home and to create a larger parcel that would support another home for them, making them millions of dollars. He believed that the settlement agreement implied to him a right of first refusal to purchase the Curtis parcel.

13 Viney admitted that he never told the Curtises that he did not want them to sell their parcel to the Grupps.

Viney also opined that the Curtises needed to retain their property for six to eight months in order to be able to perform all the obligations of the agreement. If he had known that the Curtises planned to sell their parcel to the Grupps, he would not have signed the settlement agreement. He believed that Tranquility Group was created by the Grupps to hide the fact that Curtis, in fact, still owned the parcel. Curtis and the Grupps had worked together to frustrate him. He had been tricked into signing the settlement agreement. He believed that Tranquility Group acted as Curtis’s agent when it filed complaints against him. When pressed, Viney admitted that he had no evidence to support his conspiracy theory, although he insisted Curtis and the Grupps had acted in concert.

Viney told the jury that after Tranquility Group acquired the Curtis parcel, he did road work on his easement. In September 2004, Cynthia Grupp confronted him angrily about it and told him to stop. The police were called. She insisted that he could not do any work on the roadway—that all work had to be done by a licensed contractor. When steel posts were placed along the access road by July 2005, at least one part of his easement was narrowed to 14 or 15 feet—less than the minimum width required by the county for legal access. Large vehicles could not be used to haul construction equipment to his building site, making transport of these materials more costly. He asked Tranquility Group to remove the stakes, but it refused, filing a trespass action against him instead. That action was later dismissed. Viney admitted that by winter 2006, the metal stakes had been removed.

On cross-examination, Viney conceded that the Grupps had the right to complain about illegal work being done on property adjacent to theirs. He appeared to concede that the county required him to have a licensed contractor do the road work, but insisted that the settlement agreement allowed him to do this work himself. He believed that he would have been allowed to do so if Tranquility Group had not complained to the county that he had not used a licensed contractor. He denied that the goal of his lawsuit was to obtain the knoll on the Tranquility parcel. Viney testified that he had made sufficient progress on his own building site that he no longer needed the knoll. He told the jury that he hoped that if he sued the Grupps, they would see that he had rights under the settlement agreement with which they had to comply.

Viney testified that he stopped work on his home after the Grupps narrowed his road access because he was unable to get gravel and fuel trucks up the steep, unpaved road. He estimated that he lost $1.1 million as a result of the actions of Curtis, the Grupps and Tranquility Group, because he had been unable to finish his home. He argued that his damages were ongoing and continued at the time of trial. He measured his damages as the difference between what he thought that the settlement agreement would give him and what he actually received from it.

b. Curtis and Grupp Testimony

Susan Curtis, Leal Grupp and Cynthia Grupp each testified before the jury. All three denied that Curtis had any role in Tranquility Group or that the LLC or the Grupps had acted as her agent. The sale of the Curtis parcel to Tranquility Group was not a sham transaction. Documentary evidence of payment of some of the installments due on the note was admitted into evidence. Cynthia Grupp testified that all payments were made. None of them entered into the Tranquility parcel purchase agreement with an intent to frustrate the settlement agreement or to defraud Viney.

The Curtises honored all the requirements of the settlement agreement with Viney. That agreement did not preclude the sale of the parcel, which had not been a subject of settlement negotiations. Viney knew that the Curtises wanted to sell their parcel; that was why they required him to withdraw his lis pendens as part of the settlement agreement. The agreement did not give Viney a right of first refusal to purchase the parcel.

While the Grupps had indicated an interest in purchasing the Curtis parcel, no agreement to purchase the parcel for a particular price was reached until after the May 2004 settlement agreement had been reached. After the settlement agreement was approved in May 2004, the purchase price for the parcel was still being negotiated and the lis pendens had yet to be removed. The original date for close of escrow on the purchase was extended because the lis pendens had not been removed by the time that the planned closing date occurred.

The Grupps offered evidence that Tranquility Group, LLC was created to prevent the county from merging the small Tranquility parcel with one of the Grupps’ adjacent lots, which was also small. If merger of the two small lots was compelled under county ordinances because of common ownership, a second home could not be built on the merged parcel. The LLC arrangement also allowed the Grupps to give an interest in real estate to their children for later development. The elder Grupps had no intention of building a home on the Tranquility parcel—they had a home on their existing property.

The Tranquility parcel was burdened by Viney’s easement. Tranquility Group had not relinquished its right to complain about any problems with Viney’s work that arose after the purchase. Any problems about which Tranquility Group might complain were the Grupps’ issues with him about their property, not the earlier concerns of the Curtises. The Grupps insisted that the road work be performed by a licensed contractor only to protect themselves and their children from liability. Cynthia Grupp testified that the purchase agreement required Tranquility Group to cooperate with neighbors on the outstanding lot line issues, and that she intended to do so.

On the interference with easement cause of action, the Grupps knew that Viney’s easement had been relocated onto the Curtis parcel under the terms of the settlement agreement. Leal Grupp did not tell Viney to stop working on the easement, but Cynthia Grupp did and a letter was sent making this demand on behalf of Tranquility Group. Cynthia Grupp arranged to have metal stakes and barbed wire fencing placed, intending to mark the limits of Viney’s easement. The Grupps admitted that their surveyor placed the stakes incorrectly, based on an outdated survey rather than the easement deeded to Viney as a term of the settlement agreement. Once the mistake was discovered, the stakes were not moved to the correct location; they were removed.

3. Dismissal of Conspiracy Causes of Action

At the close of Viney’s case-in-chief, Curtis, the Grupps and Tranquility Group moved for nonsuit on all causes of action alleged against them. (Code Civ. Proc., § 581c, subd. (a).) The trial court agreed that Viney had offered no evidence of any agreement to purchase the property before the May 2004 settlement agreement and no evidence of any conspiracy after the sale of the parcel from the Curtises to Tranquility Group. It found that Curtis had no duty at the time of the settlement agreement to reveal to Viney that the Grupps planned to purchase the Curtis parcel. It granted nonsuit on all causes of action alleged against Curtis and all claims except the interference with easement cause of action alleged against the Grupps and Tranquility Group. Judgment for Curtis was ordered.

4. Interference with Easement Cause of Action

When trial resumed, the jury was told that Curtis was no longer a defendant and that the only cause of action remaining to be resolved by the jury was the claim against the Grupps and Tranquility Group for unreasonable interference with Viney’s easement. Tranquility Group and the Grupps asked the trial court to instruct the jury not to consider evidence it viewed as relevant only to the conspiracy-related causes of action which were no longer actionable. The trial court refused to give this specific instruction, instead giving a generic instruction that allowed the jury to consider all evidence admitted at trial. (See CACI No. 3900.) The Grupps and Tranquility Group also sought a directed verdict on damages, without success.

During closing argument, Viney described the Grupps’ interference with his easement as vehement and unreasonable. He rejected the Grupps’ stated concerns about liability as false and cited their insistence on his use of a licensed contractor as evidence of unreasonable interference. Viney argued that the Grupps purchased the Tranquility parcel as part of an “ongoing war” against him, with the intent to stop him from building his road. He rejected the Grupps’ testimony that the stakes were put in the wrong place by mistake, arguing that they had done so deliberately. He urged the jurors to consider the entire history between the parties when determining their verdict. He invited the jurors to assess damages running from the date that Tranquility Group took title to the parcel until the time of trial. He reasoned that he should be compensated for many forms of damage, including past inconvenience and his pain and suffering—his humiliation, anxiety and annoyance.

The Grupps told the jury that they purchased the Tranquility parcel to protect their privacy and the view they had from their existing home. They argued that, given their past experience with Viney’s failure to work within the law, their requirement that the road work be done by a licensed contractor was reasonable. They also urged the jury to find that their staking of the easement was not planned, but was a mistake. Once Tranquility Group realized its mistake, the stakes were removed. As the county did not permit construction work to be done during the winter months, the actual time of interference with Viney’s easement was short. They also noted Viney’s testimony that he chose to stop work on the road, opting to file a lawsuit against the Grupps instead, when arguing that their actions had not damaged him.

In October 2007, the jury first awarded Viney a total of $507,000 from the three defendants. When the trial court learned that the jury had improperly averaged their damage awards in violation of the jury instructions, the Grupps and Tranquility Group unsuccessfully moved for a mistrial. Instead, the trial court ordered the jurors to resume deliberations after again being instructed not to average its award. This time, the jury rendered general verdicts awarding Viney $360,000 in total damages—$120,000 each from Leal Grupp, Cynthia Grupp and Tranquility Group.

5. Posttrial Motions

The Grupps and Tranquility Group moved for a remittitur, arguing that the $360,000 verdict exceeded the amount of Viney’s prayer for $230,000 in damages on this cause of action. The trial court denied the motion without prejudice. A renewed motion for mistrial was also denied. Judgment for Viney against Leal and Cynthia Grupp and Tranquility Group, LLC was entered according to the jury’s $360,000 verdict.

The Grupps and Tranquility Group then moved for a new trial on various grounds, including excessive damages, jury misconduct, insufficiency of evidence and instructional error. They also moved for judgment notwithstanding the verdict on insufficiency of evidence grounds, arguing that Viney had offered no evidence of damage from interference with his easement. Leal Grupp also argued that there was no evidence that he interfered with the easement in any way, such that he could not be held liable for unreasonable interference with easement.

The trial court rejected the claims that the jury considered irrelevant evidence when considering the unreasonable interference with easement cause of action. Although it conceded that it would not have reached the verdict that the jurors did, it declined to act as a thirteenth juror. The trial court denied the motion for new trial, granted Leal Grupp’s motion for judgment notwithstanding the verdict, and denied such judgment for Cynthia Grupp or Tranquility Group. A February 2008 amended judgment awarded Viney $240,000—$120,000 each from Cynthia Grupp and Tranquility Group, LLC—and about $14,000 in costs. The Grupps and Tranquility Group appeal—and Viney cross-appeals—from different aspects of this judgment.¹⁴ (Case no. A120208.)

14 Leal Grupp died during the pendency of this appeal. We granted Cynthia Grupp’s request to be allowed to pursue his appeal on behalf of his estate.

6. Attorney Fees

The Grupps and Tranquility Group sought an award of more than $148,000 in attorney fees and costs, reasoning that they were prevailing parties on all but one of the causes of action that Viney asserted against them. Viney opposed the motion, arguing that the amended judgment of $240,000 made him the prevailing party in the action. The trial court found that Viney was the prevailing party against Tranquility Group and Cynthia Grupp. In January 2008, it denied their motion for attorney fees, prompting a second appeal. (Case no. A120993.)

For her part, Curtis sought more than $235,000 in attorney fees and costs. Over Viney’s opposition, in May 2008, the trial court found Curtis to be the prevailing party and awarded her almost $168,000 in attorney fees. It rejected her remaining request for fees because it found that the second attorney representing her did not contribute sufficiently to her representation. Viney appeals and Curtis cross-appeals from this order. (Case no. A121704.)

II. EXCLUSION OF EVIDENCE

A. Testimony about Payments

In his cross-appeal from the judgment, Viney contends that the trial court committed prejudicial error when it excluded certain evidence that he reasons was relevant to his conspiracy claims. First, he complains that the trial court refused to allow him to introduce any evidence of whether Tranquility Group made all payments due on the promissory note. He argues that if he could have shown that the Grupps did not make all payments due under the note, this evidence would have demonstrated that the purchase of Tranquility parcel was a sham transaction.

A judgment cannot be set aside on the basis of erroneous exclusion of evidence unless we conclude that any error resulted in a miscarriage of justice. (Evid. Code, § 354.) While the trial court did not permit Viney to question Susan Curtis on this subject, Cynthia Grupp testified under questioning by her own counsel that Tranquility Group made all monthly payments due on the promissory note. The exclusion of evidence that has only a cumulative effect will not justify reversal on appeal. (Horn v. General Motors Corp. (1976) 17 Cal.3d 359, 371; Canavin v. Pacific Southwest Airlines (1983) 148 Cal.App.3d 512, 537 fn. 13; see Evid. Code, § 354.) Thus, we reject this claim of error.

B. Testimony of Opposing Counsel

Viney also contends that the trial court erred by refusing to permit him to call counsel for Cynthia Grupp and Tranquility Group as a witness to prove his conspiracy claims. He asserts that because the attorney was involved in negotiating the terms of the Curtis-Viney settlement agreement, her conduct could be imputed to her clients on an agency theory. He reasons that evidence of the attorney’s involvement in drafting the language of the July 2004 typewritten settlement agreement was relevant to his conspiracy claims.

Before trial, Cynthia Grupp and Tranquility Group successfully moved to bar Viney from calling their attorney as a witness. Viney was only entitled to call opposing counsel as a witness if he proved that no other means existed to obtain the information sought, that this information was relevant and not privileged, and that it was crucial to his case. (Spectra-Physics, Inc. v. Superior Court (1988) 198 Cal.App.3d 1487, 1494-1495.) Viney was advised of the need for such a showing several months before trial, but he failed to make one. As such, the trial court properly precluded Viney from calling the attorney for Cynthia Grupp and Tranquility Group as a witness.

C. Exclusion of Entire Exhibit

Next, Viney contends that the trial court erred by refusing to admit all pages of an exhibit after admitting a partial copy of it. On May 24, 2004, attorneys for neighbors who are not parties to this lawsuit sent a six-page letter attempting to resolve issues relating to the encroachment of Viney’s easement onto the neighbors’ property. Curtis’s counsel was sent a copy of the letter, but counsel for the Grupps was not. In response to Viney’s discovery request, counsel for Cynthia Grupp and Tranquility Group produced a partial copy of the letter—one that was missing a single page. The trial court admitted into evidence the incomplete copy of this letter as evidence that counsel for Cynthia Grupp and Tranquility Group had received this document.

Then, Viney sought to introduce a copy of the letter containing the missing page, in which the neighbors insisted that any retaining wall adjacent to his easement not be built on their property. The trial court did not admit this proffered evidence because the missing page had not been produced during discovery and because Viney had not laid a foundation for its admission. Viney claimed that opposing counsel had removed the missing page before producing the partial letter during discovery. The trial court did not admit the full version of the letter, because Viney had failed to follow up on his suspicion by seeking additional discovery.

On appeal, Viney contends that this missing page was crucial to his contention that the Grupps and Tranquility Group never intended to cooperate with lot line issues as required by the settlement agreement and the purchase agreement. He reasons that the Grupps knew that the other neighbors would not allow the retaining wall to be built on their parcel and entered into the purchase agreement without any intention of allowing him to build a retaining wall on their new parcel. Viney reasons that the missing page should have been admitted to make understandable the partial letter that was admitted into evidence. (Evid. Code, § 356.)

The trial court acted within its authority when it excluded the proffered evidence of the missing page. Although the evidence established that counsel for Cynthia Grupp and Tranquility Group counsel received the incomplete letter, Viney did not offer any evidence that their counsel received the missing page. Unless he could establish the foundational fact of receipt of this page, the content of it could not be imputed to Cynthia Grupp or Tranquility Group. The relevance of the proffered evidence turned on the preliminary fact of opposing counsel’s receipt of that page. (Evid. Code, §§ 210, 350, 403, subd. (a)(1).) As the proponent of the evidence, Viney had the burden of producing evidence of the foundational fact of receipt. (Id., § 403, subd. (a).) His assertion that opposing counsel must have removed it before producing the incomplete letter during discovery is speculation, not evidence. Having failed to produce evidence of the preliminary fact of receipt, the trial court properly excluded the additional page of this letter.¹⁵

15 The jury saw other evidence that, before the purchase of the Curtis parcel, the Grupps and Tranquility Group were aware that their neighbors did not want a retaining wall built on their property. Thus, even if we assume arguendo that the trial court erred in excluding the missing page, this error would have been harmless.

D. Violation of Stipulation

Viney also claims that exclusion of the missing page related to another trial issue—whether opposing counsel could be called as a witness for his case. When the trial court ruled that the attorney would not be a witness, it did so with the understanding that counsel would make every effort to stipulate to any documentary evidence that could be admitted. (See pt. II.B., ante.) Viney urges us to find that opposing counsel’s objections to admission of the missing page violated this understanding, which in turn made it improper for the court to exclude this evidence. We disagree. The trial court’s admonition that the parties attempt to stipulate to the admission of documentary evidence did not require opposing counsel to waive foundational requirements or discovery failings. The trial court acted within its authority when it excluded the proffered evidence.

III. NONSUIT ON CONSPIRACY CAUSES OF ACTION

A. Standard of Review

Viney also contends that the trial court erred in granting nonsuits to Curtis, the Grupps and Tranquility Group on all six of the conspiracy-related causes of action—for fraud, breach of implied covenant of good faith and fair dealing, conspiracy, interference with contract, breach of contract and promissory fraud. Curtis, the Grupps and Tranquility Group were entitled to nonsuit on these causes of action if, as a matter of law, Viney’s evidence was insufficient to permit a jury to find in his favor. (See Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291; Syufy Enterprises v. City of Oakland (2002) 104 Cal.App.4th 869, 877.) On appeal, we conduct a de novo review of a trial court’s order granting a nonsuit. In so doing, we evaluate the evidence in the light most favorable to Viney and resolve all presumptions, inferences and doubts in his favor. (See Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 838–839 (Carson); Wolf v. Walt Disney Pictures & Television (2008) 162 Cal.App.4th 1107, 1124 (Wolf).) A judgment of nonsuit will be upheld if Viney’s proof amounts to no more than speculation, surmise or conjecture. There must be some substance to his evidence about which reasonable minds could differ in order for us to overturn a nonsuit. (See Carson, supra, 36 Cal.3d at p. 839; Wolf, supra, 162 Cal.App.4th at pp. 1124-1125; Abreu v. Svenhard’s Swedish Bakery (1989) 208 Cal.App.3d 1446, 1457; Doria v. International Union (1961) 196 Cal.App.2d 22, 33.) We reverse only if substantial evidence could support Viney’s claim. (See Wolf, supra, at p. 1125.)

B. Attack on Trial Court Findings

1. Timing of Purchase

Viney attacks several trial court conclusions underlying its decision to grant the motions for nonsuit. First, Viney contends the trial court erred in finding no evidence that the Grupps had agreed to purchase the Curtis parcel at the time of the May 2004 settlement agreement. He reasons that the short time between the settlement agreement and the Curtises’ presentation to the Grupps of a draft agreement to purchase the Curtis parcel raises a reasonable inference that the Grupps had agreed to purchase the parcel before the May 2004 settlement agreement was approved.

As the text of the cited letter demonstrates, even a draft agreement to purchase had not yet been executed. A few days after the May 2004 settlement agreement, the parties agreed in principle to the purchase, but many details had yet to be resolved. Tranquility Group, LLC had yet to be formed. The purchase price was still unresolved. Most significantly, Viney’s lis pendens had not been removed. The evidence was undisputed that until that cloud on the title to the Curtis parcel was dissolved, the sale would not take place. In fact, the time for closing escrow on this transaction was delayed until Viney actually removed the lis pendens. Given the undisputed evidence before the trial court that several material terms of purchase were unresolved at the time of the May 2004 settlement agreement, the contrary inference that Viney would have us draw from the proffered evidence—that a binding agreement to purchase the Curtis parcel had been reached—is unreasonable.

Viney also cites the fact that the Grupps were called during the May 2004 settlement negotiations about their interest in purchasing the property as evidence tending to establish that a deal had been made by that time. In support of this contention, Viney cites Cynthia Grupp’s testimony about the substance of the conversations that she had with the Curtises’ counsel and the judge negotiating the settlement. She testified that they discussed fencing issues and that she told the judge that the Grupps would not purchase the parcel if it was burdened with fencing restrictions.

Viney’s speculations aside, this evidence does not raise a reasonable inference that the Grupps had already agreed to purchase the property at that time. In fact, it supports a contrary reasonable inference that no final agreement to purchase the parcel had been reached by then. The trial court properly concluded that there was no evidence that the Grupps had agreed to purchase the Curtis parcel before the May 2004 settlement agreement was completed.

2. Concealment of Material Fact

Viney next argues that the trial court erred in finding that Curtis’s contemplated sale to the Grupps was not a material fact that had to be disclosed. This claim of error misstates the trial court’s conclusion. As we read the record, the trial court found that at the time that the parties entered into the settlement agreement, all parties knew both that the Curtises intended to sell the property and that the Grupps were potential buyers. It found—not that these facts were immaterial—but that they were not concealed.

Viney’s own testimony supports this finding. At trial, he admitted that at the time of the settlement agreement, he knew that Curtis intended to sell the parcel—that was why she required him to withdraw the lis pendens against it. Viney also admitted that at that time, he believed that the Grupps were “ideal” purchasers of the parcel, although he did not think that they could afford to purchase it. Viney’s own testimony makes clear that he was aware of the possibility that the Grupps were potential purchasers of the Curtis parcel, which the Curtises actively sought to sell. When a party makes an admission, we may rely on that admission to support factual findings. (See, e.g., D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21-22 [deposition admission resolves summary judgment motion].) As such, the trial court properly found that there was no concealment of these material facts.

3. Duty to Disclose

Finally, Viney contends that the trial court erroneously concluded that Curtis had no duty to disclose that a sale of the parcel to the Grupps was contemplated at the time that Curtis entered into the settlement agreement. Nondisclosure or concealment may constitute fraud in four circumstances: if a fiduciary relationship existed between Viney and Curtis, if Curtis had exclusive knowledge of material facts not known to Viney, if Curtis actively concealed a material fact from Viney, or if Curtis made partial representations while suppressing some material facts. (Heliotis v. Schuman (1986) 181 Cal.App.3d 646, 651; see 5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, §§ 793-799, pp. 1148-1157.) None of these circumstances exist in the case before us.

Viney admitted that he did not tell Curtis during the settlement negotiations that it was important to him that the Grupps not purchase the parcel. The issue of whether or not the Grupps might purchase the parcel was not discussed at all. Viney knew that this was a possibility, although he discounted its likelihood. (See pt. III.B.2., ante.) Nothing in the settlement agreement prohibited a sale of the Curtis parcel or gave Viney the right to be advised of the identity of a potential purchaser. As a matter of law, Curtis owed Viney no legal duty to disclose that the Grupps might be potential purchasers of the parcel.

C. Causes of Action against Curtis

1. Fraud

The resolution of these overriding factual issues demonstrates that the trial court properly granted Curtis’s motion for nonsuit on Viney’s fraud cause of action.¹⁶ Viney alleged that Curtis induced him to enter into the settlement agreement by implying that she intended to comply with it, while instead intending to sell the property to the Grupps, who would not be bound by its terms. Misrepresentation or concealment is an essential element of fraud. (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294; Building Permit Consultants, Inc. v. Mazur (2004) 122 Cal.App.4th 1400, 1415.) To prove fraud, Viney was required to show that Curtis failed to disclose a material fact that she had a duty to disclose. (San Diego Hospice v. County of San Diego (1995) 31 Cal.App.4th 1048, 1055.) He did not do so. The trial court correctly concluded that no agreement to purchase had been reached at the time of the settlement agreement, that no concealment of the possibility that the Grupps might purchase the Curtis parcel had occurred and that Curtis had no duty to disclose the proposed sale of her parcel to Tranquility Group. (See pt. III.B., ante.) As such, it properly granted Curtis’s motion for nonsuit on Viney’s fraud cause of action.

16 The cause of action alleging that the Grupps and Tranquility Group had interfered with the settlement agreement was not alleged against Curtis. As a party to the settlement agreement, Curtis could not be liable for third party interference with it. (See Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 514.)

2. Implied Covenant of Good Faith and Fair Dealing

Viney’s cause of action for breach of implied covenant of good faith and fair dealing assumes that Curtis failed to perform implied obligations of the contract. Every contract imposes on each party an implied covenant of good faith and fair dealing that neither will do anything to frustrate the right of the other to receive the benefit of the agreement that was actually made. However, this implied covenant protects only the express terms of the contract. It has no existence independent of the contract and does not operate to impose duties beyond those incorporated into the specific terms of the contract. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 349-350; Carma Developers (Cal.), Inc. v. Marathon Development California, Inc. (1992) 2 Cal.4th 342, 373; McClain v. Octagon Plaza, LLC (2008) 159 Cal.App.4th 784, 806; Tilbury Constructors, Inc. v. State Comp. Ins. Fund (2006) 137 Cal.App.4th 466, 474, 476.)

On appeal, Viney contends that Curtis’s secret intention to sell the parcel to the Grupps and the actual sale of it to Tranquility Group constituted a breach of this implied covenant. He asserts that Curtis never intended to fulfill her obligations under the settlement agreement and breached a duty to him by failing to require the Grupps to assume her obligation to refrain from making future complaints about his work.¹⁷ This claim fails for two reasons. First, Curtis had no secret intention to sell to the Grupps. As the trial court properly concluded, Viney knew that Curtis wanted to sell, and that the Grupps might want to purchase the parcel. The court also properly concluded that Curtis had no duty to disclose that a sale was in progress. (See pt. III.B.2.-3., ante.)

17 In his reply brief, Viney rejected any assertion that he had an implied right of first refusal to purchase her property.

Second, the settlement agreement did not designate the duty to refrain from filing complaints about Viney’s work as a covenant running with the land. To the extent that Viney would imply a covenant running with the land into the settlement agreement, he would have us impose a duty going beyond the language of the settlement agreement. The implied covenant of good faith and fair dealing does not extend so far. (See Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 349; McClain v. Octagon Plaza, LLC, supra, 159 Cal.App.4th at p. 806.) Viney’s assertion that Curtis breached the settlement agreement by failing to require Tranquility Group and the Grupps to assume this obligation does not support his implied covenant cause of action against Curtis.

Viney also asserts that Curtis sold the parcel to Tranquility Group, knowing that the Grupps did not intend to cooperate with a lot line adjustment, which had become intertwined with the need for a retaining wall. This assertion turns on a factual predicate that Curtis knew that the Grupps would not have allowed the retaining wall to be built. The evidence Viney cites in support of this factual claim is a June 2004 e-mail from the Tranquility Group attorney to Curtis’s counsel, stating that the Grupps did not want the retaining wall built on the Curtis parcel.

We disagree with Viney’s assertion of the meaning of this evidence. The e-mail explains that if a wall was built on the Curtis property before the purchase agreement was executed, the Grupps wanted to oversee the construction process. Viewed as a whole, the e-mail does not allow an inference that the Grupps would never allow a retaining wall to be built once Tranquility Group purchased the parcel. Instead, it supports a contrary reasonable inference that the Grupps actually contemplated that a retaining wall would be built.

That contrary inference is consistent with Leal Grupp’s testimony that no decision had been reached before the Tranquility Group purchase that a retaining wall could not be built on the property. The purchase agreement expressly required Tranquility Group to cooperate with neighbors on this issue, and the Grupps testified to their willingness to do so. In fact, Leal Grupp conceded that a retaining wall—a key part of the lot line adjustment process for Viney—would be required. The issues of the lot line adjustment and the retaining wall had not been resolved at the time of trial. The only evidence before the court about why those issues were unresolved was that Viney—not Tranquility Group or the Grupps—was unwilling to cooperate with his other neighbors. As there was no substantial evidence of the factual predicate underlying Viney’s theory that Curtis breached an implied covenant, the trial court properly sustained her motion for nonsuit on that cause of action.

3. Interference with Easement

Viney’s cause of action for unreasonable interference with easement against Curtis turns on his allegation that the Grupps and Tranquility Group acted as her agent when interfering with his easement. At trial, he offered no evidence that Curtis played any role in the staking of Viney’s easement by Cynthia Grupp and Tranquility Group. The Grupps and Curtis denied that any agency relationship existed, and Viney offered nothing more than his suspicion to the contrary to support the allegations of this cause of action against Tranquility Group. Mere suspicion does not constitute sufficient evidence to overcome a motion for nonsuit. (Carson, supra, 36 Cal.3d at p. 839; Wolf, supra, 162 Cal.App.4th at pp. 1124-1125.) The trial court properly granted Curtis’s motion for nonsuit on this cause of action.

4. Breach of Contract

Viney’s cause of action against Curtis for breach of the settlement agreement’s requirement that she cooperate with neighbors about lot line adjustments¹⁸ turns on his factual claim that she passed on this obligation to Tranquility Group in the purchase agreement, knowing that the Grupps would not allow a retaining wall to be built on their property. Again, this claim turns on Viney’s suspicion that the Grupps would block the building of any retaining wall. As we have already concluded, the evidence does not support this inference and instead supports a contrary one. (See pt. III.C.2., ante.) As Viney offered no evidence to support this key factual assertion, the trial court properly granted Curtis’s motion for nonsuit on the breach of the contract cause of action.

18 He also alleged that Curtis failed to assure that his easement would be relocated onto her property, but in his brief, Viney concedes that a deed doing so has been filed.

5. Promissory Fraud

Fraud in the inducement occurs when a contracting party’s consent to a contract is induced by fraud, making the resulting contract voidable. (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 415; Hinesley v. Oakshade Town Center, supra, 135 Cal.App.4th at pp. 294-295.) Viney’s cause of action against Curtis for promissory fraud is based on his assertion that she falsely asserted an intent to perform the duties set out in the settlement agreement while having already contracted to sell the property to Tranquility Group and the Grupps. As there was no evidence that any purchase agreement existed before the May 2004 settlement agreement, Curtis was entitled to a nonsuit on the cause of action for promissory fraud. (See pt. III.C.1., ante.)

This cause of action fails for another reason, too. Fraud exists when a promise is made without any intention of performance. The lack of an intent to perform the contract is the essence of fraud. (Building Permit Consultants, Inc. v. Mazur, supra, 122 Cal.App.4th at p. 1414.) Our focus must be on Curtis’s intent at the time that she entered into the settlement agreement. (See, e.g., Edmunds v. Valley Circle Estates (1993) 16 Cal.App.4th 1290, 1300.) Viney offered no evidence of Curtis’s fraudulent intent—only his speculation. Speculation is not sufficient to overcome a motion for nonsuit. (Carson, supra, 36 Cal.3d at p. 839; Wolf, supra, 162 Cal.App.4th at pp. 1124-1125.)

6. Civil Conspiracy

Finally, Viney alleged a cause of action for civil conspiracy.¹⁹ To prove the elements of a civil conspiracy, he was required to offer evidence of wrongful conduct in furtherance of a conspiracy. (Applied Equipment Corp. v. Litton Saudi Arabia Ltd., supra, 7 Cal.4th at p. 511; Kidron v. Movie Acquisition Corp. (1995) 40 Cal.App.4th 1571, 1581.) If two persons agree to perform a wrongful act, each may be held liable for civil conspiracy. (Wyatt v. Union Mortgage Co. (1979) 24 Cal.3d 773, 784.) Once the evidence of wrongful conduct that could be attributed to Curtis—either on her own part or as an agent for others—had been found insufficient to survive a motion for nonsuit, Viney lacked any evidence of this essential element of conspiracy. Thus, the trial court properly granted Curtis a nonsuit on all causes of action asserted against her including the civil conspiracy cause of action.

19 In his opening brief, Viney argues that Curtis failed to challenge the conspiracy cause of action in her motion for nonsuit. We are satisfied that her moving papers challenge all causes of action on which the trial court entered nonsuit. In his reply brief, Viney appears to concede that he did not offer substantial evidence that Curtis conspired to breach the settlement agreement. We address this issue out of an abundance of caution.

D. Causes of Action against the Grupps and Tranquility Group

1. Fraud and Promissory Fraud

We conclude that the trial court also properly entered nonsuits for the Grupps and Tranquility Group on all of the conspiracy-based causes of action.²⁰ Viney’s fraud cause of action against the Grupps and Tranquility Group was premised on two factual allegations—that they knew Curtis had no intention of complying with the settlement agreement when she signed it and that the Grupps formed Tranquility Group to circumvent that agreement. The trial court properly concluded that Curtis complied with all terms of the contract. As for the purpose for which the Grupps formed Tranquility Group LLC, the undisputed evidence was that the Grupps set up the LLC in order to avoid merger of the Curtis parcel with their other property and to include their children in the benefits of property ownership. Viney’s assertion that the formulation of Tranquility Group LLC was based on an ulterior motive was pure speculation, which is not evidence sufficient to defeat a motion for nonsuit. (Carson, supra, 36 Cal.3d at p. 839; Wolf, supra, 162 Cal.App.4th at pp. 1124-1125.)

20 Viney’s cause of action for Curtis’s breach of an implied covenant in the settlement agreement was not alleged against the Grupps or Tranquility Group, as they were not parties to that agreement.

Viney’s promissory fraud cause of action against the Grupps and Tranquility Group alleges that they conspired with Curtis to induce him to enter into the settlement agreement. We have already concluded that the trial court properly found that there was no evidence that an agreement to purchase the Curtis parcel had been reached before the May 2004 settlement agreement. (See pt. III.B.1., ante.) Thus, the Grupps and Tranquility Group were properly granted a nonsuit on the promissory fraud cause of action, as well.

2. Interference with Contract

Viney also alleged that the Grupps and Tranquility Group interfered with the settlement agreement, inducing the Curtises to breach it. One element of third party interference with a contractual relationship is an actual breach of the underlying contract by a party to it. (See Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 55.) As Curtis did not breach the settlement agreement, as a matter of law, no interference with contractual relationship occurred. (See pt. III.C.4., ante.)

3. Breach of Contract

Viney’s cause of action for breach of the settlement agreement is grounded in his allegation that the Grupps and Tranquility Group assumed the obligation to cooperate with neighbors about the lot line adjustments, but failed to do so. As Viney offered no evidence from which a reasonable juror could infer that the Grupps or Tranquility Group failed to cooperate on the lot line issue—including the related issue of the retaining wall—the trial court properly granted their motion for nonsuit on his breach of contract cause of action. (See pt. III.C.2. & 4., ante.)

4. Civil Conspiracy

Finally, the trial court properly granted the motion of the Grupps and Tranquility Group for nonsuit on the civil conspiracy cause of action. That cause of action alleged a conspiracy with Curtis to commit wrongful conduct against Viney.²¹ Once Curtis had been dismissed from the action and the other allegations of wrongful conduct underlying the civil conspiracy cause of action had been found insufficient, Viney lacked evidence to prove a civil conspiracy cause of action against the Grupps and Tranquility Group. (See Kidron v. Movie Acquisition Corp., supra, 40 Cal.App.4th at pp. 1581-1583 [nonsuit proper if no substantial evidence that alleged conspirator could be found to have conspired with third party].) Thus, we conclude that the trial court properly dismissed all of Viney’s causes of action except his claim against the Grupps and Tranquility Group for interference with his easement.

21 Viney contends that the Grupps and Tranquility Group did not argue in the trial court that they were entitled to a nonsuit on his claims and thus were not entitled to a nonsuit on this cause of action. We disagree. Their points and authorities argue in support of their motion for nonsuit on all conspiracy-related causes of action.

IV. JUDGMENT NOTWITHSTANDING THE VERDICT

A. Standard of Review

Viney also contends that the trial court erred in granting Leal Grupp’s motion for judgment notwithstanding the verdict. The jury found Leal Grupp liable for interference with Viney’s easement, but the trial court entered judgment notwithstanding the verdict for him, finding no evidence to support the jury’s verdict. On appeal, Viney asserts that there was evidence from which a reasonable juror could find that Leal Grupp participated in a course of conduct that intentionally interfered with his easement.

The purpose of a motion for judgment notwithstanding the verdict is to prevent a miscarriage of justice when a jury verdict is rendered without foundation. (Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 284; Sukoff v. Lemkin (1988) 202 Cal.App.3d 740, 743.) When considering this motion, the trial court applies the substantial evidence test. (Bank of America v. Superior Court (1990) 220 Cal.App.3d 613, 623-624.) It construes the evidence in favor of the jury’s verdict and against the party seeking judgment notwithstanding that verdict. (Hasson v. Ford Motor Co. (1977) 19 Cal.3d 530, 546, overruled on another ground in Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 573-580; Trujillo v. North County Transit Dist., supra, 63 Cal.App.4th at p. 284.) It has no power to weigh the evidence or judge the credibility of witnesses. If the evidence or any reasonable inference from it can be drawn supports the verdict, the motion must be denied. (Clemmer v. Hartford Insurance Co. (1978) 22 Cal.3d 865, 877-878; Hansen v. Sunnyside Products, Inc. (1997) 55 Cal.App.4th 1497, 1510; see 7 Witkin, Cal. Procedure (5th ed. 2008) Trial, § 437, pp. 509-510.) On appeal, we apply the same standards to determine whether substantial evidence supports the jury’s verdict. (Trujillo v. North County Transit Dist., supra, 63 Cal.App.4th at p. 284; see Hasson v. Ford Motor Co., supra, 19 Cal.3d at p. 546.)

B. Leal Grupp’s Personal Liability

Viney contends that substantial evidence supports the jury’s finding that Leal Grupp was personally liable for interference with his easement on various grounds. First, he reasons that Leal Grupp interfered with his easement by refusing to acknowledge an obligation to refrain from making future complaints about Viney’s work. We disagree.

This claim of error assumes that Tranquility Group and/or Leal Grupp had a duty to assume the Curtises’ settlement agreement duty not to make complaints against Viney about work that might interfere with Leal Grupp’s use of the property on which the easement sat. The settlement agreement did not make this duty one that ran with the land if the parcel was sold. It did not limit the right of Leal Grupp or Tranquility Group to object to Viney’s future work. Once it purchased the parcel, Tranquility Group could have been exposed to liability if Viney’s work had been done in a dangerous or improper manner. Leal Grupp’s testimony was nothing more than an assertion of a property owner’s lawful authority to control the use of its property. That testimony cannot constitute an interference with Viney’s easement.

Next, Viney asserts that Leal Grupp was liable for the acts of Tranquility Group, as a manager of the LLC. He cites the August 2004 letter that Tranquility Group sent to county officials containing a demand that all easement work be conducted by a licensed contractor in support of this assertion. His claim of error assumes that Tranquility Group’s letter constituted Leal Grupp’s personal interference with his easement. It did not, for several reasons. First, this letter appears to be nothing more than a statement of intent on the part of the new property owner to require Viney to act in accordance with permit requirements that the county had already imposed. Second, even if the letter could reasonably be construed as a complaint about Viney’s work, Tranquility Group had no obligation to refrain from complaining about the manner in which Viney conducted work on the easement if that work that might expose the LLC—the owner of the property over which Viney’s easement ran—to liability.

Even if this evidence supports a finding that Tranquility Group was liable for interference, it does not establish any personal liability on Leal Grupp’s part. The purpose of forming a limited liability corporation such as Tranquility Group LLC is to limit the personal liability of its members. Some personal participation in tortious conduct was required to make Leal Grupp liable. (Corp. Code, § 17101, subds. (a), (c).) Viney offered plenty of speculation, but no evidence from which a reasonable inference could be drawn to show that Leal Grupp participated in tortious conduct such that personal liability could attach to him. (See Corp. Code, § 17101, subd. (c).)

Viney also contends that Leal Grupp is liable for the acts of Cynthia Grupp, because she is his wife. At trial, she admitted that—acting in her capacity as manager of Tranquility Group—she had stakes placed on the easement and that they were placed in an incorrect location. Leal Grupp admitted that she ordered the stakes to be placed along the easement. Viney argues that because Cynthia Grupp used the plural form when she testified about these acts, a reasonable jury could infer that she and Leal Grupp had a tacit agreement to interfere with the easement. The trial court rejected this theory of liability. Given the dearth of evidence supporting this cause of action against Leal Grupp, we are also satisfied that the evidence is too speculative to support an implication of a conspiracy.

Leal Grupp testified that he did not tell Viney to stop his road work. In fact, the evidence was uncontradicted that he was physically unable to visit the Tranquility parcel. Without conceding that Leal Grupp could not have physically interfered with his easement, Viney argues that the evidence before the jury was sufficient to infer that Leal Grupp conspired with Cynthia Grupp and Tranquility Group to incorrectly stake his easement.

Civil conspiracy requires two persons who agree to perform a wrongful act. (Wyatt v. Union Mortgage Co., supra, 24 Cal.3d at p. 784.) An agreement may be inferred from the nature of the acts done, the relationship of the parties, the interests of the alleged conspirators, and other circumstances. (Id. at p. 785.) Tacit consent may form a basis for liability for civil conspiracy. (Ibid.) However, there must be some evidence on which to base an inference that an agreement to commit a wrongful act arose. In this matter, the speculative nature of the proffered evidence that Viney cites satisfies us that the circumstances surrounding the staking of his easement were not such that liability for conspiracy would attach to Leal Grupp because of the actions of his wife or the LLC.

Viney’s cause of action against Leal Grupp was not supported by any evidence, only by speculation and conjecture. As no reasonable juror could have lawfully imposed liability on Leal Grupp for interference with his easement, the trial court properly granted Leal Grupp’s motion for judgment notwithstanding the verdict.

V. UNREASONABLE INTERFERENCE WITH EASEMENT

A. Easement Rights

In their appeal from the judgment, Cynthia Grupp and Tranquility Group raise a series of challenges to the jury’s award of $240,000 in damages to Viney based on its finding of unreasonable interference with his easement.²² They reason that the evidence did not support a finding that the staking prevented him from using his easement and that there was insufficient evidence that Viney suffered any damage from the placement of the stakes. Before we delve into these questions, we set out the general legal principles guiding our analysis.

22 The jury found Cynthia Grupp, Leal Grupp and Tranquility Group liable for $360,000 in damages. The trial court reduced these damages to $240,000 after properly granting Leal Grupp’s motion for judgment notwithstanding the verdict. (See pt. IV., ante.) We evaluate the propriety of the jury award, as later reduced by the trial court.

An easement entitles its holder—in this case, Viney, as the owner of dominant tenement—to limited use of real property that is owned by another—Tranquility Group, as the owner of the servient tenement. (See Civ. Code, § 806; City of Long Beach v. Daugherty (1977) 75 Cal.App.3d 972, 977; see also 12 Witkin, Summary of Cal. Law (10th ed. 2005) Real Property, § 382, pp. 446-447.) In essence, an easement is a privilege to use another’s property to the detriment of the servient tenement owner. (Blackmore v. Powell (2007) 150 Cal.App.4th 1593, 1598.)

An easement holder may do everything reasonably necessary to use that easement. (Herzog v. Grosso (1953) 41 Cal.2d 219, 225; see Oliver v. Agasse (1901) 132 Cal. 297, 299.) However, the easement holder cannot use the easement in a manner that creates a new burden on the servient tenement or materially increases the existing burden. (Scruby v. Vintage Grapevine, Inc. (1995) 37 Cal.App.4th 697, 702 (Scruby); Wall v. Rudolph (1961) 198 Cal.App.2d 684, 686; see Pasadena v. California-Michigan etc. Co. (1941) 17 Cal.2d 576, 581 (Pasadena).) This is so because every aspect of ownership not inconsistent with the enjoyment of the easement is reserved to the owner of the servient tenement. (Scruby, supra, 37 Cal.App.4th at p. 702; City of Los Angeles v. Ingersoll-Rand Co. (1976) 57 Cal.App.3d 889, 893-894; City of Los Angeles v. Howard (1966) 244 Cal.App.2d 538, 543; see 12 Witkin, Summary of Cal. Law, supra, Real Property, § 412, pp. 483-485.) Servient tenement owners have an obligation to use the land in a manner that does not unreasonablyinterfere with the easement. (Pasadena, supra, 17 Cal.2d at p. 579; Camp Meeker Water System, Inc. v. Public Utilities Com. (1990) 51 Cal.3d 845, 867.)

B. Viney’s Cause of Action and Standard of Review

Viney’s cause of action for unreasonable interference with easement alleged that Tranquility Group and the Grupps restricted his access over the easement roadway for a nine-month period, from July 2005 until March 2006, when the easement was staked to a width of approximately 15 feet. This reduced the road to one lane and prevented heavy truck deliveries of building materials, which increased Viney’s delivery costs by as much as 50 percent. Large fuel truck suppliers refused to use the road, forcing Viney to deliver the fuel along the steep, narrow roadway in smaller truckloads. He alleged that the costs to deliver those smaller loads were 50 to 60 percent higher than the large fuel truck delivery costs. He alleged that these delays damaged him by increasing his trucking costs, equipment depreciation, housing rentals, material costs and taxes. He also asserted as damages the loss of use of his planned home and the cost of rebuilding or recertifying the bridge. Viney estimated his direct losses in excess of $25,000, the loss of use of construction equipment at $30,000 per year, and the loss of use of his property as an amount in excess of $100,000 per year. In his prayer, he sought $230,000 in damages for this cause of action.

Whether a particular use of land by a servient tenement owner constitutes an unreasonable interference with the rights of the easement holder is a question of fact. (Pasadena, supra, 17 Cal.2d at p. 579; Blackmore v. Powell, supra, 150 Cal.App.4th at p. 1599; Scruby, supra, 37 Cal.App.4th at p. 703; Pacific Gas & Elec. Co. v. Hacienda Mobile Home Park (1975) 45 Cal.App.3d 519, 528.) On appeal, we must uphold the trier of fact’s findings if they are based on conflicting evidence. (Scruby, supra, 37 Cal.App.4th at p. 703; Pacific Gas & Elec. Co. v. Hacienda Mobile Home Park, supra, 45 Cal.App.3d at p. 528.)

C. Sufficiency of Evidence

1. Unreasonable Interference

First, the Grupps and Tranquility Group argue that Viney failed to establish that the physical staking of his easement prevented him from using the roadway. They reason that because Viney himself was able to transport items that larger trucks would not deliver along the narrowed easement, he was not damaged by the placement of the metal stakes and fencing. We disagree.

In the July 2004 deed, as part of the settlement of the Curtis-Viney lawsuit, the Curtises conveyed to the Vineys an easement “for ingress, egress, roadway, utility and all purposes incidental thereto....” The easement was described as “a strip of land 30 feet wide, lying 15 feet on each side” of a center line that was then described in the deed. When—as in the Curtis easement deed—the width of an easement is fixed by the language of the conveyance, the use of that easement may be interpreted to constitute the entire width of it. (Scruby, supra, 37 Cal.App.4th at p. 704; see Ballard v. Titus (1910) 157 Cal. 673, 680-681.) The metal stakes were placed such that Viney’s easement was narrower than the 30 feet allowed by the deed. The easement was narrowed to 14 or 15 feet in some places. The evidence of interference with the full 30-foot wide use of Viney’s easement supports the jury’s finding of interference.

We must also determine if the jury had evidence from which it could conclude that this interference was unreasonable. (Pasadena, supra, 17 Cal.2d at p. 579; see Camp Meeker Water System Inc. v. Public Utilities Com., supra, 51 Cal.3d at p. 867.) Viney offered evidence that his use of the easement was impeded because it had been rendered too narrow for construction vehicles to use to access his home site. By its verdict, it is apparent that the jury gave credence to Viney’s concerns. Whether interference was unreasonable is a question of fact for the jury to determine. (See, e.g., Pasadena, supra, 17 Cal.2d at p. 579; Blackmore v. Powell, supra, 150 Cal.App.4th at p. 1599; Scruby, supra, 37 Cal.App.4th at p. 703; Pacific Gas & Elec. Co. v. Hacienda Mobile Home Park, supra, 45 Cal.App.3d at p. 528.) We are satisfied that this evidence supports the jury’s finding that the interference was unreasonable.

2. Actual Damage

The Grupps and Tranquility Group also contend that Viney failed to introduce any evidence of monetary damages resulting from the placement of the metal stakes. Again, we disagree. Viney testified that the narrowed easement prohibited larger vehicles from hauling fuel and materials to his building site, making it more expensive to transport those materials when he used a smaller truck. This evidence was sufficient to establish that Viney suffered damage from the unreasonable interference with his easement.

D. New Trial on Damages

1. Generally

Despite our conclusion that the jury properly found that Viney suffered damage for purposes of unreasonable interference with his easement, we are troubled by the excessive amount of damages awarded for that cause of action.²³ Many factors lead us to conclude that this matter must be remanded to the trial court for a new trial on the amount of damages. (See Code Civ. Proc., § 657, subd. 5.)

23 The Grupps and Tranquility Group moved for a new trial on several grounds, including excessive damages, thus preserving this issue for appeal. (See Schroeder v. Auto Driveaway Co. (1974) 11 Cal.3d 908, 918-919; see also Johns, Cal. Damages: Law and Proof (5th ed. 2010) Review of Damage Awards, ch. 20, § 20.2(a), pp. 20-5 to 20-6.)

2. Scope of Evidence of Unreasonable Interference

a. Physical Interference

The evidence that Viney offered in support of his cause of action of unreasonable interference with easement falls into three general categories—Tranquility Group’s physical staking of his easement that narrowed it from its deeded 30-foot width; its demands that his improvement work on the easement be performed by a licensed, bonded contractor; and evidence relevant to the conspiracy-based causes of action to show the improper purpose of Tranquility Group and the Grupps. Only the physical staking supports the jury’s finding of unreasonable interference with easement. (See pt. V.C.1., ante.)

b. Licensed Contractor

Viney’s vehemently held view that Tranquility Group improperly insisted on his use of a licensed contractor for any work performed on the easement permeated the trial, to the prejudice of the Grupps and Tranquility Group. At trial, he offered this evidence in support of his cause of action for unreasonable interference with easement. He noted that this demand was contained in an August 2004 letter from Tranquility Group’s attorney to county officials; in verbal instructions he received from Cynthia Grupp in September 2004; and in a July 2005 letter from Tranquility Group’s counsel. On appeal, Viney argues that as an easement holder, he was entitled to do any and all work on the easement himself, without the need for a licensed contractor to do the work.

Before 2010, the Contractors State License Board (CSLB) did not require a property owner building or improving “an appurtenance” to his or her property to obtain a contractor’s license. (Former Bus. & Prof. Code, § 7044, subd. (a).) Viney reasons that this provision applied to his easement, which he characterizes as an appurtenance to his property. An easement for a right-of-way is often described as appurtenant to land. (Civ. Code, § 801, subd. 4; see Murphy v. Burch (2009) 46 Cal.4th 157, 163; Blackmore v. Powell, supra, 150 Cal.App.4th at p. 1601 fn. 4.) However, when Viney asked the CSLB about the need for a license to work on the easement, he was advised in an opinion letter that work could be done without a license (1) by the legal owners of the property or (2) if he entered into a joint venture with the property owners.

We conclude that the CSLB did not take the view that Viney does of former section 7044 of the Business and Professions Code. The construction of a statute by an administrative agency charged with its enforcement—while not controlling—is entitled to great weight. (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1388; American Nat. Ins. Co. v. Low (2000) 84 Cal.App.4th 914, 924.) The CSLB’s opinion letter does not support Viney’s position, but is consistent with the county permit requiring him to obtain the consent of the owner of the servient tenement before doing any work. As a condition of granting their consent, Tranquility Group had the right to require that any work be done by a licensed contractor, regardless of whether the state would require that work to be done by a licensed contractor.²⁴

24 Viney does not meet the current statutory criteria for a license exemption, either. Section 7044, subdivision (a) was revised in 2009 to apply only to property owners, not those who own appurtenances. (Compare Bus. & Prof. Code, § 7044, subd. (a) [Stats. 2009, ch. 307, § 70] with former Bus. & Prof. Code, § 7044, subd. (a) [Stats. 1988, ch. 1035, § 1.3, pp. 3365-3366].) A homeowner is not required to have a contractor’s license to improve “his or her principal place of residence or appurtenances thereto....” (Bus. & Prof. Code, § 7044, subd. (a)(3).) However, Viney’s property appurtenant to the easement is not his principal place of residence, which is in Mexico. (See ibid.) He has not actually resided on the property appurtenant to his easement, because no residence has yet been completed. (See id., § 7044, subd. (a)(3)(B).)

Even if we assume arguendo that the CSLB would have allowed Viney to work on the easement without a license, Viney failed to establish that other legal authorities do not require him to have such a license to work on his easement. An easement carries with it rights essential to its use and enjoyment, such as the right to maintain and repair it. (Ward v. City of Monrovia (1940) 16 Cal.2d 815, 821-822; Scruby, supra, 37 Cal.App.4th at pp. 706-707; Williams v. Foster (1989) 216 Cal.App.3d 510, 522 fn. 9; City of Gilroy v. Kell (1924) 67 Cal.App. 734, 743 [prescriptive easement]; see Civ. Code, § 845, subd. (a).) However, the owner of an easement cannot change its character or materially increase the burden on the servient estate. (Ward v. City of Monrovia, supra, 16 Cal.2d at p. 822; Burris v. People’s Ditch Co. (1894) 104 Cal. 248, 252; Scruby, supra, 37 Cal.App.4th at p. 707.) As such, an easement may be maintained, but may not be substantially altered without the consent of the servient tenement owner. (Scruby, supra, 37 Cal.App.4th at pp. 706-707.)

To the extent that the work that Viney performed along his easement substantially altered it, he had to obtain Tranquility Group’s consent to do the work, which could be conditioned on having that work performed by a licensed contractor. The improvements that Viney planned to make to the road were substantial enough to require county approval, suggesting that it was more than routine maintenance. In his amended permit, county officials required that Viney obtain the permission of the owners of the servient tenement for the work he would do and that the work be done by a licensed, bonded contractor. As the county and Tranquility Group were within their rights to insist on the use of licensed contractor, evidence that they did so was not unreasonable interference, as a matter of law. This proffered evidence was irrelevant and should have been excluded. (See Evid. Code, § 210.)

c. Conspiracy Evidence

The evidence of the conspiracy-based causes of action tainted the trial of the single remaining cause of action after the trial court dismissed Viney’s other claims, prejudicing the Grupps and Tranquility Group and leading to an award of excessive damages. At trial, Viney recounted the history of his relationship with the Grupps and Tranquility Group—the evidence he had offered to prove his conspiracy-based causes of action—as evidence also supporting his cause of action for unreasonable interference with his easement. He reasoned that they purchased the Tranquility parcel with the intent to use it “as a tool to carry on [an] ongoing war” against him when he argued that their conduct against him constituted unreasonable interference with his easement.

We have two difficulties with this evidence as probative of unreasonable interference with his easement. The first is that this evidence was more relevant to his conspiracy-based causes of action, which proved to be baseless. All of those causes of action were dismissed by the trial court and we have upheld that decision. (See pt. III., ante.)

Our second difficulty with this evidence is that it does not demonstrate any physical interference with his easement. The gravamen of unreasonable interference with easement is that the easement holder is prevented from reasonable physical use of the easement. Unless some unreasonable restriction of Viney’s access occurred along his easement, no unreasonable interference with that easement can be shown. (See, e.g., Scruby, supra, 37 Cal.App.4th at pp. 706-707.) Any ill will on the part of the Grupps or Tranquility Group did not constitute interference with his right to make continued use of the accessway for the construction vehicles—only the physical barrier of the metal stakes and the strand of fencing did so.²⁵

25 Viney also cites the July 2005 letter from Tranquility Group’s attorney prohibiting him from moving the stakes as an unreasonable interference with his easement. This communication provided evidence of the physical staking, but did not alter his ability to use his easement for ingress and egress purposes beyond the actual physical staking of the easement itself.

Some of the ill will that Viney cites is almost inherent in the relationship formed by the easement. The competing rights of an easement holder and the possessor of the servient tenement make it important for each side to be reasonable in the exercise of their respective rights. (See City of Los Angeles v. Ingersoll-Rand Co., supra, 57 Cal.App.3d at p. 894; see also Civ. Code, § 803.) The common users of a nonexclusive easement must act reasonably to accommodate each other. (Scruby, supra, 37 Cal.App.4th at p. 703.) Viney’s tenaciously held and unreasonable expectations—including his belief in his right to make improvements to the roadway without a licensed contractor—led him to use his easement in a manner that was potentially damaging to the owners of the servient tenement. When those servient tenement holders asserted their lawful rights, the resulting dispute created a difficult situation for everyone involved.

d. Period of Damages

Another factor leading us to conclude that the jury’s award of damages was excessive was Viney’s exaggerated view of the period of damage from the unreasonable interference with his easement. At trial, he argued that he was entitled to damages calculated from the time that Tranquility Group acquired the parcel in July 2004 until the date of trial in September and October 2007. This contention is contradicted both by his pleading and by the evidence of unreasonable interference.

In his complaint, Viney alleged that the metal stakes interfered with his easement for nine months, from July 2005 through March 2006. This pleading necessarily limits the time during which he was damaged by this interference. Viewed in the light most favorable to Viney, the evidence adduced at trial established that the metal stakes and strand of barbed wire fencing were erected from July 2005 until the winter of 2006. (See pt. I.C.4., ante.) This evidence limits the period of damage resulting from the interference to that time frame, rather than the more expansive one that Viney argued to the jury at trial.

That short period of damage may be even more limited. Viney admitted that he was able to come and go along his easement in his own vehicle during that time. The damage he suffered was that large construction vehicles did not have reasonable ingress and egress during these months. As Napa authorities do not permit construction work to be conducted from October until April, the time during which the interference damaged Viney effectively ended once the 2005 construction season ended. On retrial, the duration of damage resulting from the metal staking must be appropriately limited to the pleadings and the evidence.

e. Type of Damages

The overbroad damage claims that Viney asserted at trial as flowing from the interference with his easement also bear on our conclusion that the jury’s award of damages was excessive. He argued that he should be compensated—not just for the monetary losses he suffered because construction vehicles were unable to use his easement to reach his home site—but for other types of damages such as inconvenience, humiliation, anxiety and annoyance. His complaint also alleged approximately $155,000 in losses from restriction of access, loss of use of construction equipment and loss of use of his property as a result of the unreasonable interference with easement. Viney did not plead a cause of action seeking damages for emotional distress. He cannot assert a claim for mental distress damages that he did not plead.

Much of Viney’s broad claim of damages is based on the conspiracy-related evidence that was admitted before the trial court properly determined that all his claims but the unreasonable interference with easement cause of action were groundless. As the only issue on retrial will be the appropriate amount of damages resulting from the actual interference with the easement, the conspiracy-related evidence will not be before the jury on retrial, nor will evidence of Viney’s baseless assertions that Tranquility Group improperly barred him from working without a licensed contractor. Thus, the jury on retrial will be limited in its consideration of the range of damages to those sought in Viney’s complaint for unreasonable interference with easement can be awarded.

In this regard, we particularly reject Viney’s assertion that he is entitled to be compensated for the costs of litigation. He contends that the Grupps persistently complained and harassed him, as well as insisted that all work on the easement be performed by a licensed contractor. This conduct, he reasoned, forced him to initiate litigation and made it economically infeasible for him to complete work on his home. Thus, he asserts, the costs of that litigation were compensable items of damage based on the finding of liability for unreasonable interference with easement. Viney cites no legal authority for this theory of damages. The costs of litigation may be awarded to the prevailing party pursuant to statute. (Code Civ. Proc., § 1033.) Typically, each party bears the costs of its own attorney fees, unless some contract, statute or other legal authority authorizes an attorney fees award. (See Code Civ. Proc., § 1033.5, subd. (a)(10); Salgado v. County of Los Angeles (1998) 19 Cal.4th 629, 651.) The trial court makes this determination after trial, based on its finding of who was the prevailing party. (Code Civ. Proc., § 1033.) This is not an appropriate element of damage.

3. Erroneous Instructions and Omitted Admonitions

Finally, we conclude that the trial court committed various instructional errors that contributed to an excessive damage award. The jury was erroneously instructed that Viney was not required to be a licensed contractor to work on his easement, as long as that work did not create an undue burden on Tranquility Group. (See pt. V.D.2.b., ante.) It was given a broad instruction on the scope of damages that failed to limit either the type or the period of damages that Viney urged the jury to award him. (CACI No. 3900; see pt. V.D.2.d. & e., ante.) Most significantly, once the trial court granted nonsuit to Curtis, the Grupps and Tranquility Group on all but the unreasonable interference cause of action, it failed to admonish the jurors to disregard the evidence relating to the conspiracy-related causes of action. (See pt. V.D.2.c., ante.) The trial court seemed reluctant to prejudice Viney by telling the jury about the nonsuits, but this seems to have signaled to the jury that the judge believed that the Grupps and Tranquility Group were in the wrong on all the claims that Viney raised against them, prejudicing them instead. The instructional failures allowed the jurors to believe incorrectly that the conspiracy claims were meritorious—thatthe trial court had ruled in Viney’s favor on these claims. (See pt. III., ante.)

E. Remand

A constellation of errors combine to convince us that the amount of the jury’s award of damages was excessive. The instructional errors, viewed against the backdrop of the limited time during which damage occurred, the physical staking and fencing alone as the actionable conduct, and the trial court’s failure to insulate Cynthia Grupp and Tranquility Group from the ongoing effects of evidence that was insufficient to establish the conspiracy-related causes of action and irrelevant to the unreasonable interference cause of action, make it apparent that an award of $240,000 for this cause of action must have been the result of passion and prejudice. (Seffert v. Los Angeles Transit Lines (1961) 56 Cal.2d 498, 507; see Johns, Cal. Damages: Law and Proof, supra, Review of Damage Awards, ch. 20, § 20.2(a), pp. 20-5 to 20-6.) The matter must be remanded for retrial on the amount of damages.

Although we have concluded that Cynthia Grupp and Tranquility Group were prejudiced by various errors bearing on Viney’s damages for their unreasonable interference with his easement, these errors do not require an unqualified reversal of the judgment. The jury’s resolution of the issue of liability was not affected by them. Thus, we conclude this is an appropriate case in which to order retrial only on the limited issue of the appropriate amount of damages. (Torres v. Automobile Club of So. California (1997) 15 Cal.4th 771, 776; 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 890, pp. 950-951.)

On remand, evidence of unreasonable interference with easement should be limited to evidence of actual physical interference with ingress and egress along the 30-foot wide easement granted in July 2004. The period during which Viney pled and the evidence showed that the metal stakes and strand of barbed wire fencing barred his access—at best, from July 2005 until March 2006—necessarily limits the period for calculating damage resulting from that interference with Viney’s easement. Even that period may be more limited, considering the short construction season allowed by Napa authorities. Appropriate jury instructions should direct the jury to the properly limited evidence of unreasonable interference and the short damages period. The retrial will not be tainted by Viney’s conspiracy-related evidence, by expansive views of interference that do not constitute a physical impediment to the full use of the easement, by the misleading jury instructions given at the first trial or by the admonitions that were erroneously omitted.²⁶

26 In light of this conclusion, we deem the Grupps’ contention that the trial court should have granted a motion for mistrial based on jury misconduct to be moot.

VI. ATTORNEY FEES

A. The Grupps

1. Prevailing Parties

Cynthia Grupp and Tranquility Group²⁷ contend that the trial court erred in denying their motion for attorney fees. They argue that because Viney attempted to enforce the settlement agreement containing an attorney fees clause, he could have obtained attorney fees from them if he had been successful on his conspiracy-based causes of action. As he could have obtained fees from them, then they were entitled to attorney fees from him, Tranquility Group and the Grupps reason. The trial court appeared to agree with this legal theory, but concluded that no fees were warranted because it found that Viney was the prevailing party overall in his action against them. In part, that decision appears to have been prompted by the amount of the damage award. As we have concluded that this award was excessive and the matter is being remanded for retrial on the amount of damages, we deem it appropriate to remand determination of the prevailing party to the trial court for reconsideration after that retrial. (See pt. V., ante.) We address those issues raised on appeal that might benefit the trial court when it reconsiders the prevailing party issue.

27 As Leal Grupp was properly granted judgment notwithstanding the verdict, as a matter of law, he was the prevailing party against Viney in that part of the action. (See Civ. Code, § 1717, subd. (a).)

2. Nonsignatory Right to Contractual Attorney Fees

Cynthia Grupp and Tranquility Group argue that they could be found to be prevailing parties at trial on the causes of action grounded in the settlement agreement, despite the fact that they were not signatories to that agreement. Viney counters that because Tranquility Group and Cynthia Grupp were nonsignatories, he could not have recovered attorney fees from them if he had prevailed on his settlement agreement causes of action against them. As such, he reasons, they cannot recover fees from him.

Viney alleged several causes of action against Tranquility Group and Cynthia Grupp that were grounded in the settlement agreement—for fraud and promissory fraud based on the claim that Tranquility Group was formed in order to circumvent it; for conspiracy to breach it; for interference with contract by inducing the Curtises to breach it; and for breaching obligations of it that Tranquility Group assumed in the purchase agreement. He did not prevail on any of these causes of action. The settlement agreement provided that if a dispute arose about the meaning or interpretation of it, the losing party was required to pay the costs and attorney fees of the prevailing party.²⁸

28 Viney himself prayed for an award of attorney fees on all causes of action. (See International Billing Services, Inc. v. Emigh (2000) 84 Cal.App.4th 1175, 1186.)

When a contract provides that attorney fees and costs incurred to enforce it must be awarded either to one party or to a prevailing party, then the party who prevails on the contract—whether he or she is the party specified in the contract—is entitled to reasonable attorney fees and costs. (Civ. Code, § 1717, subd. (a); Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 128.) The mutuality of remedies purpose of this statute supports its interpretation by courts as providing a reciprocal remedy for nonsignatory defendants who are sued on a contract as if parties to it, when the plaintiff would clearly be entitled to attorney fees if found to be the prevailing party on those causes of action. (Id. at p. 128.) Nonsignatory defendants such as Tranquility Group and Cynthia Grupp have a right to receive attorney fees from a signatory plaintiff such as Viney who would have received such fees if he had prevailed in his contract claims against them. (See Leach v. Home Savings & Loan Assn. (1986) 185 Cal.App.3d 1295, 1306.) This statutory goal is thwarted when a party uses the threat of fees as a club and later attempts to avoid liability for fees. (International Billing Services, Inc. v. Emigh, supra, 84 Cal.App.4th at p. 1186; Jones v. Drain (1983) 149 Cal.App.3d 484, 489-490.)

Had Viney prevailed on his causes of action claiming that Tranquility Group and Cynthia Grupp had violated the terms of the settlement agreement, they would have been liable to him for attorney fees and costs pursuant to the attorney fees clause of that agreement. As such, we conclude that Tranquility Group and Cynthia Grupp were entitled to recover attorney fees from Viney on his contract-based causes of action. (See, e.g., Reynolds Metals Co. v. Alperson, supra, 25 Cal.3d at p. 129; see also International Billing Services, Inc. v. Emigh, supra, 84 Cal.App.4th at pp. 1189-1191.)

3. Scope of Attorney Fee Award

Viney also contends that Tranquility Group and the Grupps can only recover for attorney fees spent to defend against his breach of contract cause of action alone. He reasons that they were not entitled to attorney fees for the fraud, conspiracy and interference with contract causes of action because they were tort claims, not claims “on the contract.” In order to qualify for attorney fees, the underlying cause of action must sound in contract, not in tort. (Reynolds Metals Co. v. Alperson, supra, 25 Cal.3d at p. 129; Exxess Electronixx v. Heger Realty Corp. (1998) 64 Cal.App.4th 698, 709; Moallem v. Coldwell Banker Com. Group, Inc. (1994) 25 Cal.App.4th 1827, 1830, 1832.) However, the joinder of causes of action does not dilute the right to attorney fees. Such fees need not be apportioned when incurred for representation of an issue common to both a cause of action for which fees are permitted and one for which they are not. All expenses issued on the common issues qualify for an award. (Reynolds Metals Co. v. Alperson, supra, 25 Cal.3d at pp. 129-130.)

When liability issues are so interrelated that it is impossible to separate them into claims for which attorney fees are properly awarded and claims for which they are not, allocation is not required. (See Liton Gen. Engineering Contractor, Inc. v. United Pacific Insurance (1993) 16 Cal.App.4th 577, 588 [no allocation of multiple party liability].) Our reading of the record on appeal satisfies us that the claims underlying Viney’s conspiracy-based causes of action were so intertwined that any allocation of attorney fees between those contract and tort claims would be minimal.²⁹

29 This appears to be especially true for the right to attorney fees on the conspiracy cause of action, which alleged that Tranquility Group and the Grupps conspired to induce the Curtises to breach the contract.

4. Determination of Prevailing Party Status

The $240,000 jury verdict against Cynthia Grupp and Tranquility Group appears to have persuaded the trial court to declare Viney to be the prevailing party in the overall litigation. Given our finding that the award was excessive and that retrial on the amount of damages is required, the determination of prevailing party status must be made anew after retrial. At that time, the trial court will retain discretion to determine that issue based on its overall assessment of the case, even if Viney obtains a damages award for the unreasonable interference with easement cause of action that was a side issue to the gravamen of his lawsuit. (See, e.g., Sears v. Baccaglio (1998) 60 Cal.App.4th 1136, 1139.)

B. Curtis

1. Right to Award

Lastly, we consider the trial court’s attorney fees award to Curtis from Viney. He contends that because the trial court erred in granting nonsuit to Curtis, it also erred in finding her the prevailing party and in granting her motion for attorney fees. As we conclude that Curtis was entitled to nonsuit on all causes of action alleged against her, she was the prevailing party as a matter of law. (See pt. III.C., ante.) As Viney’s action was premised on Curtis’s failure to perform her contractual obligations, the attorney fees clause of the settlement agreement to which she was a signatory entitled her to an award of reasonable attorney fees and costs. (See Civ. Code, § 1717, subd. (a).)

2. Amount of Trial Court Fee

In her cross-appeal, Curtis contends that the trial court erred in reducing the $235,000 fee award that she sought. The trial court reduced that request by about $68,000, resulting in an award of less than $168,000. In so doing, it compensated Curtis for fees for the attorney who had represented her throughout the case, but not for fees associated with a second attorney who entered the case closer to the time of trial. The trial court found that the second counsel was not needed and did not improve Curtis’s representation. We may reverse a trial court’s broad discretion to fix a reasonable fee on appeal only if we find a manifest abuse of that discretion. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095; EnPalm, LLC v. Teitler (2008) 162 Cal.App.4th 770, 774.)

Curtis makes two attacks on the reduced attorney fees award. First, she argues that she was entitled to all of her requested attorney fees, because the attorney fees clause required the losing party to pay all costs and expenses incurred by the prevailing party, including attorney fees. She is incorrect. A trial court has broad discretion to determine the amount of a reasonable fee, applying principles of equity rather than strict rules of contractual construction. (PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at p. 1095.) An attorney fee award pursuant to a contractual provision must be determined based on the lodestar method. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1134; Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 322.) Under this approach, the fee may be adjusted—up or down—in order to arrive at a fair fee for the representation offered in the particular action. (Ketchum v. Moses, supra, 24 Cal.4th at p. 1132.) Thus, the language of the settlement agreement’s attorney fees clause did not preclude the trial court from awarding less than the total fee that Curtis sought.

Curtis also contends that the trial court should have reduced the rate of the second attorney’s fee, rather than eliminating all compensation for a second attorney. Applying the lodestar approach, a fee may be adjusted for various factors, including the skill that an attorney displays in presenting the legal issues. (Ketchum v. Moses, supra, 24 Cal.4th at p. 1132; Serrano v. Priest (1977) 20 Cal.3d 25, 49.) The value of the contribution that a second attorney brings to a case is a proper factor to consider in setting a reasonable attorney fee. An experienced trial judge is the best judge of the value of professional services rendered in his or her courtroom. (Ketchum v. Moses, supra, 24 Cal.4th at p. 1132; PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at p. 1095.)

After the trial court indicated that it was inclined to reduce the requested award, Curtis asked that if it did so that it reduce the rate for the second attorney, rather than eliminate it. The trial court rejected this request, concluding that it might have been inclined to do so if both attorneys had worked on the case from the beginning, but not in this case, when the second attorney was brought in shortly before trial began. Clearly, the trial court doubted the second attorney’s added value to the Curtises’ representation. While we might have made a different assessment of this matter, we have no power to substitute our judgment for that of the trial court judge who presided over the matter. (See Gouskos v. Aptos Village Garage, Inc. (2001) 94 Cal.App.4th 754, 762.)³⁰

30 In light of this conclusion, we deny Curtis’s request for attorney fees on appeal.

VII. REMITTITUR

The aspect of the judgment based on the orders granting nonsuit is affirmed, as is Leal Grupp’s judgment notwithstanding the verdict. The jury’s finding of liability on the part of Cynthia Grupp and Tranquility Group for unreasonable interference with easement is also affirmed, but the related damage award is reversed. On remand, the trial court shall conduct a limited retrial on the amount of damages to be awarded for this cause of action, consistent with the opinions expressed in this decision. (Case no. A120208.) The Grupp/Tranquility Group motion for attorney fees is also reversed and remanded for reconsideration of the prevailing party issue and any issues flowing from that determination after the limited retrial on damages is complete. (Case no. A120993.) The Grupps and Tranquility Group are entitled to costs on the first two appeals. (Cal.

Rules of Court, rule 8.278(a)(2), (3).) The order awarding attorney fees to Curtis is affirmed. Curtis and Viney shall each pay their own costs in the last appeal. (Id., rule 8.278(a)(3).) (Case no. A121704.)

We concur: Ruvolo, P.J.Rivera, J.