Feliz v. Ajamian

Filed 2/11/10 Feliz v. Ajamian CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

In a property dispute between neighboring landowners who were also parties to a failed construction contract, a jury found against appellant Sandra Terzian-Feliz and for respondents Vartan and Margarita Ajamian on all causes of action. Terzian-Feliz appeals the judgment ordering her to pay $13,000 in net damages to the Ajamians. She challenges (1) the trial courts nonsuit on her breach of contract cause of action; (2) the sufficiency of evidence supporting the jurys award of damages on the Ajamians breach of contract claim; (3) the jury finding that she had not established a prescriptive easement to use the Ajamians driveway; (4) the trial courts nonsuit on her cause of action for an implied easement over the same driveway; and (5) the jurys determinations of express and prescriptive easements in favor of the Ajamians over her property. We affirm the judgment.

I. FACTS

A. Property History

In 1954, Adalbert and Marie Louise von Rotz subdivided a single Fairfax parcel into two lots40 Steven Court (No. 40) and 60 Steven Court (No. 60).[1] The lots were located on steep terrain in a remote area. In 1956, they sold No. 60 to Gustav and Helen Scheuermann, reserving to themselves and their successors a triangular piece of landcalled Parcel 5 on some mapsas an easement for driveway purposes benefitting No. 40. This triangular part of No. 60 is adjacent to Steven Court, where that street meets the overlapping entrance to the driveways to No. 40 and No. 60.[2]

In 1957, the von Rotzes sold No. 40 to James and Josephine Biagini. The No. 40 deed gave the Biaginis an express easement to use the reserved portion of No. 60 for driveway purposes. In 1961, the Biaginis sold No. 40 to Stanley and Lois Purdom, who conveyed the property to Robert and JoAnne Mager the following year. Both the 1961 and 1962 deeds repeated the express driveway easement that had been set out in the 1957 Biagini deed. During their ownership of No. 40, the Magers paved their driveway along the line of a rock wall that was regarded as the boundary line between No. 40 and No. 60. Later surveys showed that the rock wall actually sat on the No. 60 lot, as did a long narrow strip of the No. 40 paved driveway.

By 1972, Gustav Scheuermann had died and Helen Scheuermann sold the property at No. 60. It changed hands several times until 1976, when appellant Sandra Terzian-Feliz and Rodney Johnson acquired it as joint tenants. In 1978, Johnson moved out and by 1982, Terzian-Feliz had acquired his part of No. 60 from him.

By 2001, both Robert and JoAnne Mager had died. In an estate sale that year, Robert Mager, Jr. sold No. 40 as is to respondents Vartan and Margarita Ajamian. As before, the deed to the Ajamians set out the right to an express easement over Parcel 5 for driveway purposes.

Vartan Ajamian was a licensed contractor and the principal of a construction company, respondent Ajamian Enterprises, Inc. (AEI). By the time they purchased No. 40 in 2001, Vartan and Margarita Ajamian had been married for more than 20 years. They remodeled the house and by 2005, they sought to sell the property.

B. Construction Contract

Until June 2005, the Ajamians and Terzian-Feliz enjoyed a mutually friendly and neighborly relationship. When Terzian-Feliz wanted to remodel part of her home, she asked Vartan Ajamian for advice about her plans. He suggested ways in which she could lower her overall costs. She decided to engage AEI in part, because she trusted her friends, the Ajamians.

By April 2005, AEI had arranged to have drawings for the remodel done, a structural engineer had installed some reinforcement and Terzian-Feliz had selected new appliances for her kitchen. She had paid for plans, drawings and permit fees, and the city had approved the plans. In May, demolition on the project began and Terzian-Feliz paid AEI an initial payment of $35,000. The parties had not yet signed a contract, but had discussed a contract price of at least $150,000.

On June 3, 2005, Terzian-Feliz entered into a formal construction agreement with AEI to remodel the dining room, kitchen and exterior decks of her home. She agreed to pay AEI $179,000 for this work under the terms of the contract. At this point, the kitchen design was yet to be completed.

When the work started, the AEI workers used a bathroom at Terzian-Felizs house as needed. After a few days, she grew concerned that the workers were damaging her carpets. At her request, Ajamian arranged for a portable toilet for their use. The toilet was placed in a location that required a truck to use Terzian-Felizs concrete aggregate driveway to access it for regular cleanout. She objected to this placement, fearing that the cleanout truck would damage her driveway.

On June 13, 2005, she verbally terminated the construction agreement and on June 19, 2005, Terzian-Feliz notified the Ajamians in writing that she was terminating that agreement.[3] She had the portable toilet moved onto the Ajamians property, with its doorway facing vegetation in a manner that effectively prevented its use. The toilet was removed after the Ajamians called the sheriff.

On July 1, 2005, the Ajamians wrote a letter to Terzian-Feliz, withdrawing their earlier permission to allow her to take delivery of an appliance over their driveway and through the fence at the property line. In this letter, they disputed her repeated claims that their driveway constituted an easement over her property, asserting instead that the entire driveway was on their property. They also claimed a right to repave the driveway. On July 7, Terzian-Feliz objected to the Ajamians repaving plans, again claiming that the driveway was an easement on her property.

On June 22, 2005, Terzian-Feliz paid approximately $10,000 to a subcontractor who had done work on the project before the AEI contract was terminated but who presented a bill for those services after termination of the contract.

C. Complaint and Cross-complaint

On July 11, 2005, Terzian-Feliz filed a complaint against the Ajamians, AEI[4] and IndyMac Bank, F.S.B. (IndyMac).[5] In it, she alleged causes of action against the Ajamians for breach of contract, fraud/violation of statute, misappropriation of funds/willful breach of fiduciary duty, and elder financial abuse.[6] She sought to quiet title to a prescriptive easement entitling her to use the No. 40 driveway in a cause of action alleged against the Ajamians and IndyMac. Terzian-Feliz sought damages, declaratory and injunctive relief, and an order quieting title to a prescriptive easement. Terzian-Feliz also filed a lis pendens against the Ajamians property.

In August 2005, the Ajamians answered the complaint. That same month, the Ajamians also filed a cross-complaint against Terzian-Feliz, alleging causes of action for breach of contract and quantum meruit. They sought compensatory damages, attorney fees and costs. Terzian-Feliz demurred to and moved to strike this cross-complaint.

In December 2005, the Ajamians filed a verified first amended cross-complaint, adding causes of action for intentional and negligent misrepresentation, rescission, promissory estoppel, declaratory relief about the scope of an express easement, and slander of title. They sought to quiet title to a prescriptive easement, to rescind the construction contract, and to obtain declaratory and injunctive relief. In addition to their earlier request for damages, they sought special and punitive damages, as well as damages for mental and emotional distress. This filing rendered moot Terzian-Felizs demurrer and motion to strike.

The property dispute aspect of the lawsuit concerns parts[7] of a 12-foot-wide asphalt driveway that sits primarily on No. 40 but also laps over the property line onto No. 60. One disputed piece of Terzian-Felizs property is Parcel 5, the express easement that the owners of No. 40 were entitled to use for driveway purposes. As Parcel 5 formed part of the driveways to both No. 40 and No. 60, the Ajamians and Terzian-Feliz each sought the right to maintain the appearance of Parcel 5 consistent with their driveways.

The other part of Terzian-Felizs property that is at issue is a narrow strip running along the far edge of the Ajamians driveway, running between the hypotenuse of the Parcel 5 triangle and the actual boundary line between No. 40 and No. 60. This strip measures approximately 18 inches at its widest point adjacent to the street and tapers away about midway down the Ajamians asphalt driveway where it meets a rock wall. The parties disagreed about both where the boundary line between the Terzian-Feliz and the Ajamian properties lay, and whether each side had a right to use and maintain that part of the driveway.

D. Pretrial Matters

The parties continued to dispute the right to use the disputed property after the lawsuit beganremoving survey markers, repaving the driveway, painting over part of it in white paint, erecting and removing fences and plantings, and accusing each other of trespass.[8] There was evidence from which a jury could conclude that the parties harassed each other during the pendency of the action.

Terzian-Feliz moved for a preliminary injunction. In December 2005, the trial court granted the motion. During the pendency of the action, the Ajamians were enjoined from interfering with Terzian-Felizs use and enjoyment of the alleged prescriptive easement. In January 2006, she posted a $75,000 bond in order to obtain the injunction.

Terzian-Feliz demurred to the Ajamians first amended cross-complaint. The demurrer to the intentional misrepresentation and rescission causes of action was sustained with leave to amend. Her demurrer to the negligent misrepresentation, promissory estoppel and slander of title causes of action was sustained without leave to amend. At the Ajamians request, these five causes of action were dismissed without prejudice. Terzian-Feliz filed an answer to the remaining causes of action in the first amended cross-complaint. She also moved for summary judgment on her prescriptive easement quiet title cause of action, but the motion was denied.

On June 13, 2006, the trial court increased the bond that Terzian-Feliz was required to file in order to continue her preliminary injunction from $75,000 to $150,000. She was given 10 business days to file a supplemental bond in order to continue the injunction in effect. Two weeks later, the preliminary injunction was dissolved after Terzian-Feliz failed to post the supplemental bond.

The Ajamians moved for summary adjudication on Terzian-Felizs prescriptive easement quiet title cause of action. They were also permitted to amend their answer to Terzian-Felizs complaint to add a bona fide purchaser affirmative defense. Terzian-Feliz demurred to the first amended answer. She filed a first amended complaint in August 2006, adding a cause of action for an implied easement against the Ajamians and IndyMac to her earlier claims. The Ajamians amended their pending motion for summary adjudication to challenge the prescriptive easement and implied easement causes of action alleged in Terzian-Felizs first amended complaint. Ultimately, the motion for summary adjudication was denied.

The Ajamians moved to expunge the lis pendens that had been filed against their property. In September 2006, the trial court granted the motion to expunge, concluding that Terzian-Feliz had not established that it was likely that she would prevail on her real estate claim. Terzian-Feliz moved to reinstate the lis pendens order and sought a protective order against alleged elder abuse. The trial court denied the motions in November 2006.

In October or November 2006, the Ajamians repaved their driveway, including Parcel 5. The repaved asphalt followed the historic path and dimensions of the previous driveway.

The Ajamians sought a temporary restraining order compelling Terzian-Feliz to stop harassing them. In March 2007, the trial court granted the motion, precluding Terzian-Feliz from digging up asphalt until trial was completed and ordering both parties to maintain the status quo. No party was to change Parcel 5. It denied the Ajamians request for an order precluding Terzian-Feliz from interfering with the sale of their home, finding that no interference with brokers or agents had occurred.

E. Trial

By the time this matter went to trial before a jury in July 2007, Terzian-Feliz was 71 years old. From 1967 to 1991, she had practiced law.[9] In 1990, she suffered debilitating injuries in a truck accident.

She testified that she used the driveway at No. 40 to have large objects delivered to her homethat there was no other reasonable way to do so, given the topography of the land and the narrow access on her site. She used this driveway when it was owned by the Magers and later, when the Ajamians lived at No. 40. She used it to move in large items to and from the downstairs part of her house and various workers used it to maintain her property. Over the years, Terzian-Feliz used the No. 40 driveway to load and unload items to the downstairs of her house and the lower part of her lot. She also had her own, separate concrete aggregate driveway that she used to access the upper part of No. 60.

Terzian-Feliz told the jury that when she moved in, the Magers invited her to use the driveway to move things into her new home. They told her that everyone who had lived at No. 60 moved things downstairs using the No. 40 driveway. Robert Mager told her that much of the No. 40 driveway was actually on her property. He said that they both had a right to use the drivewaythe Magers had an easement and Terzian-Feliz owned most of the underlying property. This report seemed correct to Terzian-Feliz, whose title report made mention of an easement.

Terzian-Feliz testified that when she first met the Ajamians in 2001, she told them that their driveway was on her property and that they had an easement to use it.[10] Still, she wanted to be sure that it would not be inconvenient for the Ajamians for her to use the driveway when she wanted to do so. Margarita Ajamian told her that it would not be a problem for her to use the No. 40 driveway. Terzian-Feliz testified that she did not ask permission to use the driveway, but admitted that she did check with her No. 40 neighbors to be sure that her use would be convenient. Until the contract dispute with the Ajamians arose in June 2005, no one told Terzian-Feliz that she needed anyones consent to use the driveway.

She put on evidence that prior owners of her lot used the driveway of No. 40 to reach the lower part of No. 60, particularly for large items. She also offered evidence that none of the prior owners asked permission to use the driveway.

Terzian-Feliz also testified about the remodeling contract with AEI. She told the jury that she had planned to live in another part of her house while the work was to be done. She denied ever telling the Ajamians that she intended to leave her home during the remodel. She had wanted the portable toilet placed on Steven Court. She told the jury that the Ajamians did not want to place it on Steven Court because they were trying to sell their house and they feared that it would be an eyesore discouraging potential purchasers. She was upset that Vartan Ajamian seemed more concerned about his needs than hers. She did not want to terminate the contract with AEIher house was torn apart and she feared that she would have difficulty finding another contractor to finish the work on short notice.

According to Terzian-Feliz, on June 12, 2005, Vartan Ajamian agreed that he would place the toilet where Terzian-Feliz asked. By the following morning, he had changed his mindnow, he would put the toilet contract in her name, allowing her to place the portable wherever she wanted. Giving her a written change order, he also told her that all future communications about the job would have to be in writing. Terzian-Feliz told Vartan Ajamian that this plan to communicate only in writing was unacceptable to her. He left. Later that day, Terzian-Feliz and Margarita Ajamian exchanged angry words about the project. At this point, Terzian-Feliz announced her intention to cancel the contract.

By the end of June 2005, Terzian-Feliz had engaged a new contractor.[11] Her new contractor estimated that it would cost her $275,000 to finish what AEI had begun. He opined that AEI could not have completed the work without taking a loss on the project. In his opinion, AEI had completed only about 5 percent of the work it owed Terzian-Feliz under its contract with her.

Vartan Ajamian testified that when he and his wife were remodeling their home, they put a portable toilet at a location that they believed was on their property. Terzian-Feliz did not object to the placement. By the time of trial, he knew that the location was actually on her lot. Once Terzian-Feliz claimed that she had a prescriptive easement to use their driveway, he refused her permission to use it.

After Terzian-Feliz rested her case-in-chief, the Ajamians moved for nonsuit on all causes of action. The trial court denied most aspects of the motion, but granted nonsuit on Terzian-Felizs cause of action against the Ajamians for breach of contract. It found that the breach of contract cause of action was based on the disagreement about the placement of the portable toilet, which did not rise to the level of a breach of the implied covenant of good faith and fair dealing. This ruling strengthened the Ajamians cross-claim that Terzian-Feliz was unjustified in terminating the AEI contract and may have breached the contract herself. However, the trial court did not resolve the Ajamians breach of contract issue, leaving it for the jury to determine.

Vartan Ajamian also testified on his own behalf. He told the jury that when they were negotiating about the contract price, Terzian-Feliz told him that she had a budget of $200,000. He charged Terzian-Feliz a reduced rate because she was a good friend. The Ajamians anticipated lower than usual costs, assuming that Terzian-Feliz would be living off-site during the construction and that she would reuse some of her existing appliances instead of buying new ones.[12] In fact, the AEI costs were almost $2,900 higher because the Ajamians had to purchase a covered trailer in which to store his tools after Terzian-Feliz insisted that he remove them from the jobsite each evening. The Ajamians offered evidence that until Terzian-Feliz terminated the AEI contract, they intended to complete the job.

When the contract was terminated, AEI had already begun excavation work on Terzian-Felizs home. Piers had been drilled and some rebar had been placed in the pier holes in preparation for being cast in concrete. The Ajamians expert estimated that the work done before the contract ended had a reasonable value of $58,274.[13] He also estimated that the amount of the contract work that had been earned by that time was $42,680. The contract amount was lower than the reasonable value of the work because AEI had charged Terzian-Feliz a reduced rate. Their evidence suggested that about a quarter of the contract work had been done, leaving about 75 percent remaining to be completed at the time of contract termination.

The Ajamians put on evidence that prior owners of No. 40 only rarely allowed No. 60 owners to use their driveway. The No. 40 prior owners gave permission for each use, including to Terzian-Feliz herself. These prior owners believed that the No. 40 driveway belonged to them. No one told the Ajamians that they could expect their neighbors at No. 60 to use their driveway.

Both Vartan and Margarita Ajamian testified that before June 2005, Terzian-Feliz had never asserted a right to use their driveway. They permitted Terzian-Feliz or people working for her to use their driveway. The Ajamians also put on evidence that workers could access No. 60 without using their driveway.

At the time of trial, the Ajamians were still trying to sell their home at No. 40. Terzian-Feliz testified that she had not interfered with the sale of their home, saying that she would love it if they sold it and left.

Initially, the trial court denied the Ajamians motion for nonsuit on Terzian-Felizs implied easement cause of action. When the presentation of evidence had been completed, the trial court determined that Terzian-Feliz had offered insufficient evidence to warrant jury instruction on this cause of action.

F. Verdicts

On August 3, 2007, the jury returned general and special verdicts against Terzian-Feliz on all claims and cross-claims presented to them for determination. It found for the Ajamians on Terzian-Felizs causes of action for fraud, misappropriation or breach of fiduciary duty, and elder financial abuse. It rejected her claim that she had established that a prescriptive easement to use their driveway had existed at the time that the Ajamians purchased their property. It also found that the Ajamians were bona fide purchasers of their property, thus establishing an affirmative defense to any prescriptive easement cause of action.

On the Ajamians cross-complaint, the jury found that Terzian-Feliz had breached her contract with AEI. It awarded the Ajamians $58,000 in damages for breach of contract as measured in quantum meruit.[14] On their declaratory relief cause of action, the jury found that the term driveway purposes in the Parcel 5 express easement set out in the Ajamians deed meant all purposes of a driveway including paving (costs as well as choice of materials), maintaining and any and all uses normally associated with a driveway. The jury determined that a prescriptive easement existed benefitting the Ajamians property and burdening the property of Terzian-Feliz, to maintain that part of Terzian-Felizs property lying between the rock wall and the actual boundary line between No. 40 and No. 60. It also found that the Ajamians had established an easement to maintain the property that continued along the first prescriptive easementa narrow strip of Terzian-Felizs property running along their driveway between Parcel 5 on one side and the No. 60 driveway and rock wall on the other.

G. Posttrial Matters

On August 7, 2007, the trial court entered judgment consistent with the jurys verdicts and the courts nonsuit rulings. On August 18, 2007, Terzian-Feliz moved for judgment notwithstanding the verdict and to vacate part of the judgment. The trial court granted the motions in limited respects, making minor modifications in the judgment. In all significant respects, it denied these motions. In so doing, it rejected Terzian-Felizs attacks on the judgment rendered against her on her claim of a prescriptive easement over the Ajamians driveway, the Ajamians cause of action to quiet title to their prescriptive easement and their cause of action for declaratory relief about their right to maintain the express easement.

II. BREACH OF CONTRACT

A. Procedural History

First, Terzian-Feliz contends that the trial court erred when it granted the Ajamians motion for nonsuit on her cause of action for breach of contract. She argues that her evidence demonstrated sufficient evidence of a breach of the implied covenant of good faith and fair dealing, such that the breach of contract issue should have gone to the jury. Her letter advising the Ajamians that she believed that they had breached this implied covenant cited the placement of the portable toilet as the basis of this conclusion. Her complaint alleged that the Ajamians ownership of the neighboring property led them to make contractual decisions based on their own interests rather than their contractual obligations to heranother oblique reference to the portable toilet placement.

In the trial court, she argued that she presented evidence of the Ajamians breach of the implied covenant of good faith and fair dealing by placing the portable toilet in a location that they did, reasoning that a different placement might have impeded their house sale. The trial court rejected Terzian-Felizs claim that the Ajamians location of the toilet constituted a conflict of interest yielding a breach of contract cause of action. It found that Terzian-Feliz failed to make a sufficient showing of a breach of an implied covenant of good faith and fair dealing.

Terzian-Feliz also argued in the trial court that the contract was terminated because the Ajamians were unable to discuss contractual matters with her in a rational manner, continued to deny that the placement of the portable toilet created a conflict of interest, and refused to communicate with her about the contract except in writing. The trial court disagreed, concluding that termination of the contact was prompted by the placement of the portable toileta matter that was not part of the contract. Thus, the trial court granted the Ajamians motion for nonsuit on Terzian-Felizs breach of contract claim.

B. Standard of Review

A motion for nonsuit allows defendants to test the sufficiency of a plaintiffs evidence before presenting their own case to the jury. (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 838 (Carson).) It constitutes a demurrer to the evidence and thus presents a question of lawwhether the evidence offered by the plaintiff could support a judgment. (Loral Corp. v. Moyes (1985) 174 Cal.App.3d 268, 272.) A nonsuit may only be granted if no evidence supports a jury verdict in the plaintiffs favor. (Elmore v. American Motors Corp. (1969)70 Cal.2d 578, 583.) If there is any doubt, the trial court must deny the motion and let the case go to the jury for determination. (Golceff v. Sugarman (1950) 36 Cal.2d 152, 153.) Thus, a grant of a nonsuit is proper only if judgment for the Ajamians on Terzian-Felizs breach of contract cause of action was required as a matter of law. (See Carson, supra, 36 Cal.3d at pp. 838-839; Markowitz v. Fidelity Nat. Title Co. (2006) 142 Cal.App.4th 508, 520 (Markowitz).)

When reviewing a pure question of law such as the one before us, we conduct a de novo review. (See Santa Barbara Pistachio Ranch v. Chowchilla Water Dist. (2001) 88 Cal.App.4th 439, 445 (Santa Barbara Pistachio).) In this review, we may not weigh evidence or assess credibility. (Carson, supra, 36 Cal.3d at pp. 838-839; Markowitz, supra, 142 Cal.App.4th at p. 520; Santa Barbara Pistachio, supra, 88 Cal.App.4th at p. 445.) Instead, we give all Terzian-Felizs evidence the value to which it is legally entitled. We accept her evidence and all evidence reasonably related to it as true, drawing all inferences that may legitimately be drawn in her favor and disregarding any contradictory evidence. (See Carson, supra, 36 Cal.3d at pp. 838-839; Markowitz, supra, 142 Cal.App.4th at p. 520; Santa Barbara Pistachio, supra, 88 Cal.App.4th at p. 444.)

However, the rules governing a nonsuit do not relieve Terzian-Feliz of the burden of establishing the elements of her case. She must produce evidence supporting a logical inference in her favor, based on more than speculation or conjecture. (See Markowitz, supra, 142 Cal.App.4th at p. 520; Alvarez v. Jacmar Pacific Pizza Corp. (2002) 100 Cal.App.4th 1190, 1209.) Reversal of a grant of nonsuit is warranted only if there is some substance to the plaintiffs evidence about which reasonable minds could differ. (See Carson, supra, 36 Cal.3d at p. 839.)

On appeal, Terzian-Feliz focuses her attack on the trial courts conclusion that the placement of the portable toilet was an insufficient basis for a breach of implied covenant of good faith and fair dealing. She argues that her evidence showed that she also terminated the construction contract with the Ajamians because their conduct frustrated any collaboration and violated her justified contractual expectations. In essence, Terzian-Feliz asserts that the Ajamians made it impossible for her to work with them. She contends that she was entitled to terminate the contract because the Ajamians frustrated her ability to obtain the benefit of the contract. She reasons that she put on enough evidence of this failure to collaborate and frustration to warrant a jury trial on her breach of contract cause of action.

We need not concern ourselves with whether the trial courts specific analysis on the nonsuit motion was correct. As we determine the propriety of a grant of nonsuit anew on appeal, the trial courts method of analysis is moot. (See Santa Barbara Pistachio, supra, 88 Cal.App.4th at p. 445.) The only question we must decide on appeal is whether the trial court correctly ruled that, as a matter of law, the Ajamians were entitled to a nonsuit on Terzian-Felizs breach of contract cause of action. (Carson, supra, 36 Cal.3d at pp. 838-839; Markowitz, supra, 142 Cal.App.4th at p. 520.) At issue is the nonsuit ruling, not the reasoning that the trial court cited in support of its decision.

C. Good Faith and Fair Dealing

Every contract imposes on each party a duty of good faith and fair dealing in its performance and enforcement. (Carma Developers (Cal.), Inc. v. Marathon Development California, Inc. (1992) 2 Cal.4th 342, 371 (Carma); see Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 349.) Neither party is free to engage in conduct that would injure another partys right to receive the benefits of the agreed-to contract. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 349; Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1393 (Careau).) The covenant of good faith and fair dealing supplements a contracts express terms, preventing a contracting party from engaging in conduct that frustrates the other partys rights to the benefits of the contract. (Racine & Laramie, Ltd. v. Department of Parks & Recreation (1992) 11 Cal.App.4th 1026, 1031-1032 (Racine).)

While breach of a specific term of the contract is not required, the scope of conduct prohibited by the covenant of good faith and fair dealing is limited by the express terms and purpose of the contract. The covenant does not operate to protect general public policy interests that are not linked to the contract. Those interests are protected by tort law, not a contractual covenant of good faith and fair dealing. (Carma, supra, 2 Cal.4that p. 373 & fn. 13; Racine, supra, 11 Cal.App.4th at p. 1031.) The implied covenant of good faith and fair dealing cannot create obligations that are not contemplated in the contract. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at pp. 349-350; Pasadena Live v. City of Pasadena (2004) 114 Cal.App.4th 1089, 1094; Racine, supra, 11 Cal.App.4th at p. 1032.)

It is relatively simple to determine whether specific conduct is within the bounds of a contracts express terms: The conduct is either expressly permitted or not prohibited by that contract. It is more difficult to decide whether conduct that is not prohibited is nevertheless contrary to the contracts purposes and the parties legitimate, reasonable expectations. (Carma, supra, 2 Cal.4th at pp. 373, 376.)

It has been suggested that the issue of whether there has been a breach of this implied covenant should be determined on a case-by-case basis. (See Carma, supra, 2 Cal.4th at p. 372.) Even so, in some cases, a breach of an implied covenant of good faith and fair dealing can be determined as a matter of law. For example, a breach of the covenant of good faith and fair dealing arises not simply from an honest mistake, bad judgment or negligence. An actionable breach involves a conscious and deliberate act that unfairly frustrates the agreed common purposes and disappoints the reasonable expectations of the other party, thus depriving that party of the contracts benefits. (Careau, supra, 222 Cal.App.3d at p. 1395.) The precise nature and extent of the duty imposed depends on the contracts purposes. (Egan v. Mutual of Omaha Ins. Co. (1979) 24 Cal.3d 809, 818; Careau, supra, 222 Cal.App.3d at p. 1393.) With these principles in mind, we turn to Terzian-Felizs specific contentions.

D. Violation of Expectations

Terzian-Feliz reasons that the evidence showed that the Ajamians breached the implied covenant of good faith and fair dealing by violating the contracting parties common purpose and justified expectations. In support of this claim, she cites her testimony that the Ajamians refused to move her refrigerator in order to make it more convenient for her to live in her home during the remodeling. However, the contract did not require the Ajamians to move her refrigerator. An implied covenant does not create obligations beyond those contemplated by the contract. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at pp. 349-350; Pasadena Live v. City of Pasadena, supra, 114 Cal.App.4th at p. 1094; Racine, supra, 11 Cal.App.4th at p. 1032.) This evidence cannot support a finding of a breach of the implied covenant of good faith and fair dealing.

The only other evidence that she cites in support of the claim that her expectations were violated is her complaint about the placement of the portable toilet. A breach of the duty imposed by the covenant of good faith and fair dealing requires that a partys conduct be objectively unreasonable. (See, e.g., Carma, supra, 2 Cal.4th at pp. 372-373.) It is clear to us that Terzian-Felizs expectations about the placement of the toilet were not objectively reasonable. No reasonable jury would find that a breach of the implied covenant of good faith and fair dealing occurred in this matter because of the Ajamians initial decision to place a portable toilet at a location on Terzian-Felizs property that she found objectionable.[15]

E. Frustration of Contractual Obligations

Terzian-Feliz also argues that the Ajamians breached the covenant of good faith and fair dealing by frustrating her ability to collaborate with them. In support of this claim, she cites evidence of a pattern of conduct on the part of the Ajamians. She specifically complains that the Ajamians did not discuss contractual matters with her in a calm, rational manner and that they required communications about the contract to be made in writing. She points to the contractual requirement of collaboration on her kitchen design to bolster her claim that the Ajamians failed to live up to their contractual obligations.[16]

We disagree. In our view, these are objections to the manner in which the collaborations between the contracting parties would occur. They demonstrate, not a breach of the contractual duty to collaborate with her, but that the Ajamians anticipated that further collaboration would occur. A breach of the duty imposed by the covenant of good faith and fair dealing requires that a partys conduct be objectively unreasonable. (See, e.g., Carma, supra, 2 Cal.4th at pp. 372-373.) This manner of collaboration may have frustrated Terzian-Feliz, but that frustration was not objectively reasonable, particularly in light of her own poor conduct toward the Ajamians.

The gravamen of the breach of contract claim in her complaint is that the Ajamians subjugated her interests to their own by initially placing the portable toilet in a location that displeased her. She contends, in essence, that the Ajamians decision to place the portable toilet in a location that might be more desirable to them as sellers of their own home was a conflict of interest constituting a breach of contract to remodel her home. In so doing, she confuses the duty required by the covenant of good faith and fair dealing and a fiduciary duty. The two duties differ; the implied covenant does not create a fiduciary duty, but merely affords a basis for redress of a breach of contract. (Wolf v. Superior Court (2003) 107 Cal.App.4th 25, 31.) Terzian-Feliz would impute to the Ajamians obligations that were not contemplated by the contract. We cannot do so. (Pasadena Live v. City of Pasadena, supra, 114 Cal.App.4th at p. 1094.)

The purpose of a motion for nonsuit is to remove from jury consideration an alleged cause of action thateven if the alleged facts are deemed to be trueoffers no legal basis for relief. (See Carson, supra, 36 Cal.3d at pp. 838-839; Loral Corp. v. Moyes, supra, 174 Cal.App.3d at p. 272.) Although all inferences must be weighed in Terzian-Felizs favor, this view of the evidence does not relieve her of the burden of establishing the elements of her case. (See Markowitz, supra, 142 Cal.App.4th at p. 520.) She has not done so. Rejecting any consideration of evidence in the Ajamians favor as we must, we are satisfied that no reasonable jury could have found that they breached the implied covenant of good faith and fair dealing by their conduct. Thus, the trial court properly granted nonsuit to the Ajamians on Terzian-Felizs cause of action for breach of contract.[17]

III. VALUATION

A. New Trial Motion

Next, Terzian-Feliz challenges the sufficiency of evidence supporting the jurys valuation of Vartan Ajamians construction work. She contends that the only evidence supporting the jury award rested on the testimony of a single witnessAjamian valuation expert John Donleywhich she argues should have been excluded at trial. She also complains that his testimony lacked evidentiary support, providing an insufficient basis to support the jurys valuation of the reasonable value of the Ajamians work.

Preliminarily, the Ajamians counter that Terzian-Felizs claim is one of excessive damagesa claim of error that cannot be raised for the first time on appeal, but must first be raised in the trial court by a motion for new trial asserted on this ground. Terzian-Feliz did not seek a new trial after the jury rendered its verdict against her.[18]

Excessive damages is a ground for a new trial. (See Code Civ. Proc.,  657, subd. 5.) An appellant may not challenge a damage award as excessive if the issue was not first raised in a motion for new trial. (Schroeder v. Auto Driveaway Co., supra, 11 Cal.3d at pp. 918-919; Jamison v. Jamison (2008) 164 Cal.App.4th 714, 719 (Jamison); Franck v. Polaris E-Z Go Div. of Textron, Inc. (1984) 157 Cal.App.3d 1107, 1115-1116 [claiming award is excessive as matter of law]; Glendale Fed. Sav. & Loan Assn. v. Marina View Heights Dev. Co. (1977) 66 Cal.App.3d 101, 122 (Glendale); see 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal,  405, pp. 463-464.)

The reason for the condition precedent of a trial court challenge to an award of excessive damages is sound. The trial court is in a better position than an appellate court to determine whether a jury verdict was influenced by passion or prejudice. The trial court is empowered to weigh evidence and resolve credibility issuesa power that is denied to an appellate court. Thus, if an issue relating to the amount of damages turns on witness credibility, conflicting evidence or other factual questions, the award may not be challenged as excessive without first asking the trial court to rule on them. (Schroeder v. Auto Driveaway Co., supra, 11 Cal.3d at p. 919; Jamison, supra, 164 Cal.App.4th at pp. 719-720; Glendale, supra, 66 Cal.App.3d at p. 122.) To ask us to resolve the underlying factual issues without the benefit of a trial court ruling on a motion for new trial unnecessarily burdens us with matters best resolved in that court. (Jamison, supra, 164 Cal.App.4th at p. 719.)

However, the failure to move for a new trial does not preclude an appellant from urging such legal errors as the erroneous admission of evidence, faulty jury instructions or the failure to apply the correct measure of damages, even if those errors result in an award of excessive damages. (Glendale, supra, 66 Cal.App.3d at pp. 122, 126; Mendoyoma, Inc. v. County of Mendocino (1970) 8 Cal.App.3d 873, 877-878 [inadequate damages]; Schmidt v. Macco Construction Co. (1953) 119 Cal.App.2d 717, 721; see 9 Witkin, Cal. Procedure, supra, Appeal,  405, pp. 463-464.)

In her reply brief, Terzian-Feliz argues that her valuation claim of error is a legal issue that fits within the exception to the rule requiring a motion for new trial as a prerequisite of a claim of excessive damages. Both of the cases she cites in support of this contention are less persuasive than they might otherwise be because, in both instances, the appellants did move for new trials specifically on grounds of excessive damages. (See Toscano v. Greene Music (2004) 124 Cal.App.4th 685, 691; Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 346.) As the issues in both cited cases arose in a different procedural context than the case before us, neither case strengthens Terzian-Felizs claim that a motion for new trial does not bar her from raising the errors that she would have us resolve on appeal.

Still, it is true that not every question bearing on a damages award must first be raised in the trial court on a motion for new trial. The key to determining whether the issue before us requires such a prerequisite turns on whether the ascertainment of the amount of damages depends on the credibility of witnesses, conflicting evidence, or some other factual issues; or, alternatively, on legal questions such as the admissibility of evidence, the correctness of jury instructions given, or the proper legal measure of damages. (See Jamison, supra, 164 Cal.App.4th at pp. 719-720; Glendale, supra, 66 Cal.App.3d at pp. 122, 126; see also Toscano v. Greene Music, supra, 124 Cal.App.4th at p. 691 [legal measure of damages].) We evaluate each of Terzian-Felizs claims to determine whether the issue is a purely legal one that we may address or the question raises factual issues that are barred from our consideration on appeal by her failure to seek a new trial on those grounds.

B. Exclusion of Report

First, Terzian-Feliz contends that the jury had no substantial evidence to support its breach of contract award to the Ajamians because Donleys testimony should have been excluded from evidence. She reasons that this valuation testimony should not have been admitted because it was taken from his written report, which was excluded from evidence.[19] Such a claim of error appears to be a legal one that is properly before us, even without a prerequisite motion for new trial.[20] (See, e.g., Glendale, supra, 66 Cal.App.3d at pp. 122, 126.) Even so, we find Terzian-Felizs argument to be meritless.

In a quantum meruit action, an expert may offer opinion testimony about the reasonable value of work performed. (Burgermeister v. Wells Fargo Bank etc. Co.(1961) 191 Cal.App.2d 624, 631-632.) The measure of damages for breach of contract was in quantum meruit. (See fn. 13, ante.) At trial, Donley testified as an expert on construction costs and the value of construction services. An expert witness may offer an opinion based on matter known to him or her, regardless of whether or not the underlying matter is admissible, as long as the evidence is of a type that may reasonably be relied on by an expert forming an opinion on the subject at issue, unless the expert is precluded by law from relying on this matter as a basis of expert opinion. (Evid. Code,  801, subd. (b).) Consistent with this statutory authority, Donley could properly testify about his opinion of the reasonable value of the Ajamians services to Terzian-Feliz even if the report on which that valuation was based was not admitted into evidence.[21]

C. Other Challenges to Donleys Testimony

Terzian-Feliz also asserts that Donleys valuation testimony was not substantial evidence because it lacked evidentiary support. She argues that the valuation compensated the Ajamians for work that was not performed, improperly compensated them for administrative work that was not required by the contract, and rested on a markup that was itself unsupported by the evidence. She argues that Donley simply made up the valuation opinion that he offered in his testimony.

Terzian-Feliz made the same objection in the trial court when she argued that Donley should not be allowed to testify about valuation. The trial court rejected that argument, finding that her objections went to the weight of this evidence, not its admissibility. Despite this ruling, the trial court invited Terzian-Feliz to move to strike any of Donleys opinion testimony that went beyond what was legally relevant and was thus inadmissible. She did not make any effort to strike any part of his testimony when he was on the witness stand.

Notwithstanding Terzian-Felizs strained attempts to couch these issues that she would raise on appeal as legal ones, it is plain that our resolution of them would require us to assess the credibility of witnesses, weigh conflicting evidence and parse out complex factual matters. These are the type of factual issues that are best resolved in the trial court on a motion for new trial. (See, e.g., Jamison, supra, 164 Cal.App.4th at pp. 719-720.) As Terzian-Feliz failed to seek a motion for new trial,[22] we are barred from addressing them on appeal. (See Schroeder v. Auto Driveaway Co., supra, 11 Cal.3d at p. 919; Jamison, supra, 164 Cal.App.4th at pp. 719-720; Glendale, supra, 66 Cal.App.3d at p. 122.) Thus, we conclude that the jury could properly rely on Donleys valuation evidence when setting the amount of damages to which the Ajamians were entitled on their breach of contract cause of action.[23]

IV. PRESCRIPTIVE EASEMENT

A. Procedural History

Terzian-Feliz also challenges the jurys rejection of her claim that she had acquired a prescriptive easement to use the No. 40 driveway before the Ajamians acquired their property in 2001. In the trial court, she sought to establish a prescriptive easement for deliveries and brush clearance from the lower part of her property across her neighbors driveway. Over her objection, the trial court instructed the jury that she was required to prove the elements of a prescriptive easement by clear and convincing evidence.

After trial, the trial court denied Terzian-Felizs motion for judgment notwithstanding the jurys verdict against her on this cause of action, on both procedural and substantive grounds. It found her request to balance the equities between the parties to be improper, as it was beyond the scope of the correct inquiry into whether substantial evidence supported the verdict. The trial court concluded that even if it were empowered to balance the equities as Terzian-Feliz contended, she would not be entitled to a prescriptive easement. It found that she had other practical access to her property and that the burden a lack of an easement placed on her was not greatly disproportionate to the hardship to the Ajamians if she were allowed to use an easement.

On appeal, Terzian-Feliz raises three separate issues relating to her burden of proof, the evidence adduced at trial, and the effectif anythat the Ajamians status as bona fide purchasers would have on a prescriptive easement. The parties also raise various motions relevant to the prescriptive easement claim of error. Before we consider each of these questions in turn, we set out a brief overview of the law of prescriptive easements.[24]

B. Legal Standard

The necessary elements of a prescriptive easement are open and notorious use of anothers land, which use is continuous and uninterrupted for five years and is adverse to the lands owner. (Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 570 (Warsaw); Grant v. Ratliff (2008) 164 Cal.App.4th 1304, 1308; Applegate v. Ota (1983) 146 Cal.App.3d 702, 708; 12 Witkin, Summary of Cal. Law (10th ed. 2005) Real Property,  401, pp. 469-470.) These elements are intended to ensure that the owner of property being encroached on has actual or constructive notice of the adverse use and to provide a sufficient time to prevent adverse use from ripening into a prescriptive easement. (Brewer v. Murphy (2008) 161 Cal.App.4th 928, 938-939; Field-Escandon v. DeMann (1988) 204 Cal.App.3d 228, 235-236.) The elements of a prescriptive easement are questions of fact for the trier of fact to determine. (Warsaw, supra, 35 Cal.3d at p. 570; Brewer v. Murphy, supra, 161 Cal.App.4th at p. 938; Field-Escandon v. DeMann, supra, 204 Cal.App.3d at p. 235; Kerr Land & Timber Co. v. Emmerson (1969) 268 Cal.App.2d 628, 637; see 12 Witkin, Summary of Cal. Law, supra, Real Property,  402, pp. 470-472.) The findings of that trier of fact will not be disturbed on appeal if substantial evidence supports them. (Warsaw, supra, 35 Cal.3d at p. 570.)

C. Burden of Proof

Terzian-Feliz first takes issue with the trial courts instruction to the jury that she was required to prove her prescriptive easement cause of action by clear and convincing evidence.[25] This issue was debated before the jury was instructed that the parties respective claims for a prescriptive easement had to be proven by clear and convincing evidence. The issue of the applicable burden of proof is a legal issue for us to determine anew on appeal. (In re Marriage of Ettefagh (2007) 150 Cal.App.4th 1578, 1584.)

It has long been held that the burden of proving an adverse property right is on the claimantin this matter, Terzian-Feliz. (See, e.g., Clarke v. Clarke (1901) 133 Cal. 667, 669; San Juan G. Co. v. San Juan R. etc. Assn. (1939) 34 Cal.App.2d 159, 170; 12 Witkin, Summary of Cal. Law, supra, Real Property,  402, pp. 470-472.) In the past 27 years, a line of appellate cases have held that a party seeking to establish a prescriptive easement must prove its elements by clear and convincing evidence. (Grant v. Ratliff, supra, 164 Cal.App.4th at p. 1310; Brewer v. Murphy, supra, 161 Cal.App.4th at p. 938; Field-Escandon v. DeMann, supra, 204 Cal.App.3d at p. 235; Applegate v. Ota, supra, 146 Cal.App.3d at p. 708.) Terzian-Feliz argues that these cases are legally incorrect. She asserts that the general preponderance of evidence standard set out in the Evidence Code should apply because prescriptive easements are established by statute.

Neither of the statutes on prescriptive easements sets out the burden of proof to be applied when determining whether a prescriptive easement exists. (See Civ. Code,  1007; Code Civ. Proc.,  321.) The Legislature has provided that unless otherwise provided by law, the preponderance of evidence burden of proof applies to establish essential facts in a case. (Evid. Code,  115.) Terzian-Feliz asserts that the default preponderance of evidence standard should apply unless some legislative expression in the form of a constitutional or statutory provision expresses a different burden of proof.

We disagree with her assertion that case law about burdens of proof deserves less respect than legislative enactments about them. When the Legislature provided in the Evidence Code that a different burden of proof could be established by law, it also defined the term law to include case law. (Evid. Code,  160; see id.,  115.) In the specific context of the burden of proof statute, the Legislature explained that a burden of proof other than the preponderance of evidence applies if specifically required . . . by constitutional, statutory, or decisional law. (Assem. Com. on Judiciary com., reprinted at 29B pt. 1 Wests Ann. Evid. Code (1995 ed.) foll.  115, p. 12, italics added.) These enactments satisfy us that the Legislature authorized consideration of case law when determining whether it was appropriate to apply a greater or lesser burden of proof than the preponderance of evidence standard.

There is no question that decisional law specifically requires the use of the higher clear and convincing evidence standard in order to prove a prescriptive easement. (Grant v. Ratliff, supra, 164 Cal.App.4th at p. 1310; Brewer v. Murphy, supra, 161 Cal.App.4th at p. 938; Field-Escandon v. DeMann, supra, 204 Cal.App.3d at p. 235; Applegate v. Ota, supra, 146 Cal.App.3d at p. 708.) These holdings are consistent with older case lawincluding a decision handed down by the California Supreme Courtrequiring the clearest and most satisfactory proof of all elements of a prescriptive easement. (Clarke v. Clarke, supra, 133 Cal. at p. 669; MacDonald Properties, Inc. v. Bel-Air Country Club (1977) 72 Cal.App.3d 693, 702 [use]; Kerr Land & Timber Co. v. Emmerson, supra, 268 Cal.App.2d at p. 637 [adverse use]; Case v. Uridge (1960) 180 Cal.App.2d 1, 8 [same]; Hahn v. Curtis (1946) 73 Cal.App.2d 382, 389; San Juan G. Co. v. San Juan R. etc. Assn., supra, 34 Cal.App.2d at p. 170; Matthiessen v. Grand (1928) 92 Cal.App. 504, 510; Pyramid Land etc. Co. v. Scott (1921) 51 Cal.App. 634, 636.)

Terzian-Felizs situation is factually distinguishable from the case she cites in support of her argument on appeal. In that case, In re Marriage of Ettefagh, supra, 150 Cal.App.4th at pages 1584-1591, conflicting case law on the appropriate burden of proof and the equal nature of the risks at issue in a division of community property matter led the appellate court to apply a preponderance of evidence standard. In the case before us, the cases requiring clear and convincing evidence to prove a prescriptive easement are consistent with each other and with related California Supreme Court authority.

The selection of a burden of proof reflects the significance that we attach to the underlying issue, as it bears on the degree of confidence that we as a society believe that a fact finder should have in a particular determination. (Weiner v. Fleischman (1991) 54 Cal.3d 476, 487; In re Marriage of Ettefagh, supra, 150 Cal.App.4th at p. 1589.) A standard of proof also may turn on the gravity of the consequences that would result from an erroneous determination of the matter at issue. (Weiner v. Fleischman, supra, 54 Cal.3d at p. 487.) As a policy matter, the law should favor an owner of real property over one who claims a prescriptive e