Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC354138 Barbara Meiers, Judge.
Charles G. Kinney for Plaintiff and Appellant.
Richardson & Fair, Manuel Dominguez for Defendants and Respondents.
KITCHING, J.
INTRODUCTION
Plaintiff Kimberly Kempton appeals a judgment finding that plaintiff had no easement over a portion of the lot owned by plaintiff’s neighbors, defendants Jeffrey and Judy Harris, finding that fencing on the Harrises’ property was neither a public nor a private nuisance, and denying injunctive relief as to that fencing. We find that Kempton has not produced evidence that defendants admitted causing a public or private nuisance, has not shown that the Harrises’ fencing was either a public or private nuisance, and cannot claim lost property value because of the existence of a nuisance. We find that a 1991 written 15-year easement extinguished any prior easement rights, and when it terminated no easement rights were resumed by or reverted to plaintiffs. Furthermore plaintiff has not shown that adverse use by the public of the disputed portion of defendants’ property created an easement, and has not shown she is entitled to rescission of the 199115-year easement. We find no abuse of discretion in the exclusion of unauthenticated, irrelevant aerial photographs of properties owned by the parties, and find no error in the trial court’s determination that the Harrises were the prevailing parties or in the award of attorney’s fees and costs to the Harrises. We affirm the judgment for the defendants.
FACTS
Plaintiffs Kimberly Kempton and Charles Kinney (the K’s) own 3525 Fernwood Avenue in the Silver Lake district of Los Angeles, known as Lot 116 of Tract 5720. Defendants Jeffrey Harris and Judy Harris (the H’s) own 1920 Cedar Lodge Terrace in Los Angeles, known as Lot 118 of Tract 5720.
At the northern end of the K’s rectangular lot is a detached garage. A paved driveway west of the house extends only part way toward the garage; a retaining wall blocks access to the garage and that part of the driveway is unpaved. Entry to the garage from this direction is by a door for persons, not a garage door for automobiles. The north side of the rectangular garage corresponds to the south property line of Lot 118, owned by the H’s. The garage has a garage door on its north side. A partially paved, triangular driveway area provides vehicular access from the north side of the garage, across Lot 118 owned by the H’s, to Cedar Lodge Terrace. The paved area does not extend across the width of the garage, and is wide enough for only one car. This triangular driveway is “the disputed area.” The disputed area is part of Lot 118, which is owned by the H’s.
A five-foot strip running parallel to the curb of Cedar Lodge Terrace crosses the disputed area and Lot 118. The City of Los Angeles owns, or has an easement on, this five-foot strip. This strip, if improved, might be a sidewalk, but the City has not developed this dedicated land and has not exercised or used its easement-type dedication rights, which has allowed property owners to put improvements on the dedicated City strip. These improvements included the cement-paved portion of the disputed area and the H’s fence on Cedar Lodge Terrace.
The K’s house and garage on Lot 116 were built in 1933. From 1933 until 1972, there was common ownership of Lots 116 and 118. The owner in 1972, Vendla S. Blanford, sold Lots 116 and 118 to Harvey B. Briggs, Jr. and Roy W. Stroup, Jr. The garage on Lot 116 was originally built in 1933 during the period of common ownership of both lots. The alteration of the garage to create an opening in the rear of the garage, and the cement paving of the disputed area and parts of the dedicated City strip, occurred during the period of common ownership during the 1950’s, or at the latest during the 1970’s.
Although the cemented area of part of the disputed area was designed for human and vehicular ingress to and egress from the rear of the Lot 116 garage to Cedar Lodge Terrace, from 1985 to September 2005 (when the K’s acquired Lot 116), the garage was mainly used for storage and was virtually without “in and out” vehicle use. Cars associated with the owners of Lot 116 used Fernwood Avenue for parking.
Briggs and Stroup sold Lot 118 to Steven A. Domski on October 31, 1977. Lot 118 was sold at least once more before November 6, 1986, when Lawrence S. and Linda Lou Fishman sold Lot 118 to Jeffrey and Judy Harris.
In approximately 1991, the last of the former co-owners of Lots 116 and 118, Roy W. Stroup, Jr., died, leaving an executor of his estate as successor in interest to act for his estate, which included Lot 116, 3525 Fernwood Avenue. Lot 116 was put up for sale and an offer was received from buyers, with a condition that the buyers wanted a written easement conveyed to them as new owners of the property, in lieu of whatever undefined and undocumented easement rights, if any, existed over the disputed area. Desiring to accept the buyers’ offer, the executor proposed to the H’s that in return for a payment they grant an easement in favor of the owner of Lot 116 over the disputed area. On May 10, 1991, the executor of the Estate of Roy W. Stroup, Jr. sold Lot 116 to Brad Kembel and Michele R. Clark. In connection with this sale, the Estate of Roy W. Stroup, Jr. paid $2,500 to Jeffrey and Judy Harris, who conveyed to Kembel and Clark a 15-year easement beginning July 1, 1991, “for the purpose of ingress and egress only over a portion of Lot 118[.]” The easement stated: “The easement is for the benefit of and appurtenant to Lot 116... subject to the following limitations[.]” There followed 10 limitations, which specified, inter alia, that the easement was granted solely to provide ingress and egress to the existing garage for resident owners of the house at 3525 Fernwood Avenue, and for no other purpose, and prohibited parking of vehicles or storage of items on the easement. The grant deed easement was recorded and made part of the history, title, and interest of Lots 116 and 118.
A limitation made the grantees responsible for maintenance and repair of the paved and landscaped portions of the easement, and prohibited paving of the landscaped area of the easement without the Harrises’ consent. Other limitations stated that if the existing garage was enlarged, relocated, removed, destroyed, or used for any illegal purpose, or if the existing house at 3525 Fernwood Avenue was remodeled so as to eliminate adequate access from Fernwood Avenue to the garage, or was relocated, removed, or destroyed, the easement would immediately terminate. A final limitation stated that the grantees—Kembel and Clark—indemnified, defended, and held the Harrises harmless from and against all claims, liabilities, costs and expenses, including attorneys fees and costs, arising out of or in connection with the grant and use of the easement by the grantees or any third parties.
On September 24, 2005, Michele R. Clark sold Lot 116 to plaintiffs Kinney and Kempton. When they bought Lot 116, the K’s were aware of the written 1991 easement grant deed, of the limitation in its duration, and of the other limitations. Once the K’s acquired Lot 116, they claimed to have used the garage from February 2006 to November 2007 to house a car and motorcycle, but such use was de minimis, with only Kempton living at the property for much of that period. After Kempton moved to San Francisco by November 2007, tenants occupying the Lot 116 house did not use the garage for vehicles or the curtilage for trash cans. From approximately 1985 to the time of suit, there was essentially no employment of the garage for the housing or use of cars.
The Complaint:
On June 19, 2006, the K’s filed a complaint against the H’s. The fourth amended complaint is the operative complaint. A cause of action for “adverse use” sought declaratory relief declaring that the K’s and Lot 116 held a prescriptive easement over a portion of the H’s Lot 118 and declaring the rights and obligations of the K’s and H’s and their respective properties. A cause of action to quiet title sought the same relief regarding a claimed adverse use prescriptive easement and quieting title as to those easement rights in the K’s and Lot 116. A cause of action for injunctive and other equitable relief sought a declaration that plaintiffs had an equitable interest in or an equitable easement over the disputed area on Lot 118 which gave plaintiffs and their successors-in-interest the right to ingress to and egress from the K’s garage across the disputed area to Cedar Lodge Terrace. This cause of action also sought injunctive relief determining whether the H’s should be required to remove or relocate their fence built on the public sidewalk because it interfered with plaintiffs’ use as car drivers on the public street and as pedestrians of a sidewalk right-of-way on Cedar Lodge Terrace. A cause of action for nuisance alleged that defendants placed a fence on the sidewalk right-of-way, which interfered with plaintiffs’ rights as pedestrians walking on, and as car drivers exiting their garage to, Cedar Lodge Terrace.
The Trial Court’s Statement of Decision:
Trial was by the court, which found that no easement existed over the H’s property, Lot 118. Any easement rights, titles, or interests, and any other claim or interest that may have run with the land as rights appurtenant to plaintiffs’ Lot 116, including those in the July 31, 1991, easement deed, ended on June 20, 2006. Lot 118 was free and clear of all encumbrances, and the court quieted title in Lot 118 (1920 Cedar Lodge Terrace) and in its present owners in this respect. The trial court found judgment against plaintiffs and in favor of defendants on all equity causes of action regarding plaintiffs’ claimed interests in defendants’ real property.
The trial court rejected the claim that a prescriptive easement existed before the 1991 written 15-year easement and after that written easement expired. Any purported easement was created when a single owner owned both Lots 116 and 118, and therefore was not “adverse” to any owner’s interest. Any easement by implication which began in 1977, when common ownership of Lots 116 and 118 ended, itself ended when terminated by the 199115-year written easement. The trial court concluded that the 1991 written 15-year easement extinguished any prior existing easement by agreement and that plaintiffs, the owners of Lot 116, could no longer claim any easement over Lot 118. The trial court found that fee title was completely quieted in the H’s with respect to the disputed area.
As to whether the H’s fence was a public or private nuisance and whether an injunction should issue to force the H’s to remove the fence from the dedicated City area, the City did not object to the H’s use of the dedicated area. There was no public right of way established in the fenced area for a public walkway and the fence did not create a public nuisance. Among other reasons, the trial court found no basis for injunctive relief as to the fence, because plaintiffs’ easement rights ended as of June 30, 2006, and they had no further property interest to protect and would suffer no further harm from any nuisance as to their easement area. The trial court denied the grant of any equitable relief as to the nuisance claims.
Judgment was entered on November 12, 2009. As amended on January 8, 2010, and February 4, 2010, the judgment determined Jeffrey Harris and Judy Harris to be the prevailing party, and awarded them attorney fees of $49,350, costs of $22,119.65, and expert witness fees of $12,141.30.
On January 11, 2010, plaintiff Kempton filed a notice of appeal from the judgment entered November 12, 2009. On March 8, 2010, plaintiff Kempton filed a notice of appeal from the post-trial orders granting attorney’s fees and costs.
ISSUES
Kempton claims on appeal that:
1. Harris admitted facts showing that defendants caused a public nuisance per se and a private nuisance;
2. The garage access, curb cut, and door were obvious;
3. The implied easement from 1977 was not extinguished;
4. There is a presumption of adverse use;
5. The public used the disputed area, so adverse rights existed;
6. The Estate of Roy W. Stroup, Jr. did not agree to development restrictions in the written easement;
7. The Harrises’ fence continues to be a public and a private nuisance;
8. The trial court failed to follow published opinions;
9. Kempton suffered damage;
10. The trial court improperly excluded evidence; and
11. The trial court improperly awarded costs and fees.
DISCUSSION
I. The Easement Claims
A. The 1991 Written 15-Year Easement Deed Extinguished Any Prior Easement, and When It Terminated After 15 Years No Easement Rights Were Resumed By or Reverted to the Owners of Lot 116
Kempton claims that the Harrises saw the garage door, curb cut, and driveway from Lot 116 across Lot 118 before purchasing that property in 1986, knew a car would have to cross their land, and accepted this open, notorious, obvious encumbrance of the Harrises’ land by their purchase of Lot 118. Kempton argues that the trial court abused its discretion by holding that the obvious encumbrance no longer existed to benefit Kempton and that substantial evidence did not support that holding. Kempton also claims there was an implied easement from 1977 which was not extinguished by the 1991 written easement deed.
The trial court, however, found that the execution, for consideration, of the 199115-year easement extinguished any prior, existing easement by implication. We agree.
No easement existed when the Harrises purchased Lot 118. The common ownership of Lots 116 and 118 until 1977 meant that no easement existed over Lot 118, because common ownership of two properties, uniting ownership of the dominant and servient tenements, extinguishes the easement. (Zanelli v. McGrath (2008) 166 Cal.App.4th 615, 624-628; Civ. Code, § 811(1).) Once extinguished, an easement does not come into existence again upon severance of the united estates; any easement must be newly created by express stipulation in the conveyance severing the properties or from implication of circumstances from the severance. (Zanelli v. McGrath at p. 634.)
There is no evidence that the owners of Lot 116 granted an easement over Lot 118 when they sold Lot 118 in 1977. No easement by grant was in effect between 1977 and 1991.
There is no evidence that the use of Lot 118 by the owners of Lot 116 between 1977 and the sale to the Harrises in 1986 created an implied easement. Judy Harris testified that the owners of Lot 118 did not use the disputed area at any time to access Cedar Lodge Terrace from the garage. Carolyn Cooper, who lived next door to Lot 116 for 24 years, testified that when Briggs and Stroup owned Lot 116, neither owner parked a car in the garage or in the disputed area. Cooper testified that only Briggs drove, and he parked a car off of Fernwood Avenue in the driveway in front of the house. Even if an implied easement was in effect between 1977 to 1991, such an implied easement is extinguished by its owner’s disuse for the statutory period (Civ. Code, § 811(4)).
Finally, any easement existing over Lot 118 was extinguished by the 1991 written 15-year easement, which also contained a release of the 15-year easement by its owner at the end of the 15-year term of the grant. “An easement appurtenant to land... may be extinguished by a surrender or release to the owner of the servient estate.” (Westlake v. Silva (1942) 49 Cal.App.2d 476, 478.) The 1991 easement deed supplanted any prior existing easement that benefitted Lot 116, its termination in 2006 ended the easement rights granted in the easement deed, and the extinguishment of those easement rights did not entitle an owner of Lot 116 to the resumption of or reversion to any prior easement. (Fryer v. Fryer (1944) 63 Cal.App.2d 343, 347; Johnson v. Ocean Shore Railroad Co. (1971) 16 Cal.App.3d 429, 435.)
B. Plaintiff Has Not Shown That Adverse Use of the Disputed Area by the Public Created an Easement
Plaintiff claims that adverse use of the disputed area by the public created an easement for use by the public, and by plaintiff, to walk and drive on the disputed area.
Plaintiff cites testimony by Judy Harris which they interpret as an admission that the public used the small triangle of land, the disputed area, since the Harrises bought it in 1986. The testimony is as follows:
“Q. And have you observed other houses along Cedar Lodge Terrace in Fernwood?
“A. Yes.
“Q. Have you observed other property owners using what we now describe as the City right-of-way or easement area?
“A. Yes.”
Judy Harris’s testimony does not refer to the triangle-shaped disputed area between the garage on Lot 116 and Cedar Lodge Terrace. Instead it refers to the five-foot-wide strip of dedicated City land paralleling the curb of Cedar Lodge Terrace. The “use” that other property owners made of that five-foot wide strip was to place fencing and to plant large shrubs in the City easement. Such use by property owners of the dedicated City five-foot strip paralleling Cedar Lodge Terrace does not establish adverse use of the disputed area by owners of Lot 116.
Plaintiff provides no evidence that a public use of the triangular disputed area existed. As defendants point out, the complaint alleged adverse use by plaintiff’s predecessors-in-interest, the previous owners of Lot 116; the complaint did not allege adverse use of the disputed area by the public created a prescriptive easement. Plaintiff raises this theory for the first time on appeal. Contentions or theories raised for the first time on appeal are not entitled to consideration. (City of San Diego v. D.R. Horton San Diego Holding Co., Inc. (2005) 126 Cal.App.4th 668, 685.)
C. Plaintiff Has Not Shown She Is Entitled to Rescission or Invalidation of the 199115-Year Easement
Plaintiff argues that defendants wrongly inserted a development restriction into the 199115-year written easement, and that the Estate of Stroup did not agree to and did not pay for, any development restriction.
The 1991 written easement contained provisions stating that the easement would terminate if the existing garage was enlarged, relocated, removed, or destroyed, or if the house at 3525 Fernwood Avenue was remodeled to eliminate automobile access from Fernwood Avenue to the garage, or was relocated, removed, or destroyed. Plaintiff characterizes these provisions as “development restrictions, ” claims that the Harrises inserted these provisions and that the Estate of Stroup did not agree to or pay for these provisions, and argues that the Harrises cannot take advantage of their own wrong. We disagree.
First, there is no evidence that the Estate of Stroup did not agree to these provisions.
Second, this claim of error was not alleged in the complaint or raised at trial. Contentions raised for the first time on appeal are not entitled to consideration. (City of San Diego v. D.R. Horton San Diego Holding Co., Inc., supra, 126 Cal.App.4th at p. 685.)
Third, plaintiff claims that the development restrictions caused a failure of consideration and made consent not mutual and given by mistake, which entitles plaintiff to rescind the contract. Plaintiff, however, is not entitled to the remedy of rescission of a contract to which she was not a party. (Viterbi v. Wasserman (2011) 191 Cal.App.4th 927, 935-936.)
Fourth, any error is now moot; the 15-year 1991 easement ended in 2006 and any development restrictions are without current effect on plaintiff, present owner of Lot 116.
II. The Nuisance Claims
A. Kempton Has Not Produced Defendants’ Admissions Showing That They Caused a Public or a Private Nuisance
Kempton first claims that Jeffrey Harris’s testimony admitted facts showing that defendants caused a public nuisance per se and a private nuisance. These facts were that when he bought the property, Harris knew there was a driveway from the Lot 116 garage across his property. Plaintiff’s nuisance claim, however, concerned the Harrises’ fence on a five-foot strip of City property parallel to Cedar Lodge Terrace. Harris’s knowledge of a driveway from the garage on Lot 116 across his property is irrelevant to this cause of action.
Kempton claims that Harris admitted to adding a development restriction to the recorded 15-year easement, but cites no such admission in Harris’s testimony. A development restriction to the recorded 15-year easement over the disputed area is, moreover, irrelevant to the cause of action for public and private nuisance.
Citing the testimony of Judy Harris and Jeffrey Harris, Kempton claims that the Harrises admitted to allowing anyone to use the small triangle of land in the disputed area for more than 23 years. The cited testimony, however, does not contain this admission.
Kempton claims that the Harrises admitted to blocking Kempton’s access to her garage in February 2006, citing trial exhibit 3. Trial exhibit 3 is a photograph of the disputed area with trash containers and a portable basketball backboard, hoop, and net. It does not constitute the Harrises’ admission to blocking Kempton’s access to her garage.
Kempton claims that while owning the land since 1986, the Harrises saw children play on the disputed area, cars turn around on it, and dog-walkers on it. The testimony cited to, however, was by Lynne Harris White, the sister of Jeffrey Harris. White, an attorney, was involved in negotiating the 199115-year written easement. In the cited testimony White states that she understood that the Harrises were giving up part of their side yard which was used by their two-and-a-half-year-old child and neighborhood children as a play yard.
Kempton claims that when Jeffrey Harris wanted to notify the public about toxic material on their fence, he posted warning signs inside the disputed area for the public to read. In the cited testimony, Jeffrey Harris stated that he posted a no trespassing sign in the disputed area. After the Harrises learned that the disputed area had been sprayed with a dog repellant that made dogs sick, he posted a second sign to inform people that the area was not a good area for their dogs. Because the public nuisance claim concerned the Harrises’ fence on dedicated City property along Cedar Lodge Drive, the posting of signs visible from the disputed area is irrelevant to that public nuisance claim.
B. Plaintiff Has Not Shown That the Harrises’ Fence Was Either a Public or a Private Nuisance
Plaintiff claims that the Harrises’ fence on the five-foot City strip of land along Cedar Lodge Terrace continues to be public and a private nuisance.
1. Public Nuisance
Plaintiff asserts that the City cited the Harrises for a public nuisance and issued a nuisance notice ordering them to remove the encroaching fence. Plaintiff, however, fails to refer to further testimony by an official of the City of Los Angeles Public Works Department that after a hearing, a written decision was issued cancelling the nuisance notice and allowing the fence to remain.
A public nuisance is one “which ‘affects at the same time an entire community or neighborhood, or any considerable number of persons.’ ” (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1104, quoting Civ. Code, § 3480.) The trial court found there was no evidence that the fence affected the entire community, neighborhood, or considerable number of persons. Plaintiff claims that the City’s inaction in allowing the Harrises’ fence to remain does not prevent her from suing the Harrises for abatement of the public nuisance, because plaintiff had special injury given that she cannot see oncoming traffic when exiting the garage. Interference with ingress to and egress from a public street constitutes a public nuisance and may constitute a special injury to an individual (Friends of H Street v. City of Sacramento (1993) 20 Cal.App.4th 152, 160). Plaintiff, however, has no easement over Lot 118, and thus has no right of ingress to or egress from the Lot 116 garage to Cedar Lodge Terrace. Thus the maintenance of the Harrises’ fence elsewhere on Lot 118 causes no special injury to plaintiff.
2. The Trial Court Did Not Erroneously Fail to Follow Kempton v. City of Los Angeles (2008) 165 Cal.App.4th 1344
Regarding the public nuisance, plaintiff claims that the trial court failed to follow Kempton v. City of Los Angeles (2008) 165 Cal.App.4th 1344 (Kempton).
In Kempton, plaintiff and Charles Kinney sued the City of Los Angeles seeking damages and an injunction requiring the City to bring proceedings to force the Harrises to remove their fences from the City’s right-of-way along Cedar Lodge Terrace, claiming—as plaintiff claims here—that the fences diminished sightlines when entering and leaving their garage, prevented pedestrian access to the unimproved pedestrian walkway along Cedar Lodge Terrace, and created dangerous conditions for pedestrians. Plaintiffs appealed from a judgment on the pleadings for defendant City. (Kempton, supra, 165 Cal.App.4th at pp. 1346-1347.) Kempton found that plaintiffs had not alleged facts showing that they had suffered monetary damages, and could not maintain a cause of action for negligent infliction of emotional distress because the City allowed fencing to remain on public property. (Id. at p. 1348.)
Kempton stated that plaintiffs’ remedy was in equity for an injunction on a theory of public nuisance. It was in this context that Kempton stated: “Blocking a public sidewalk constitutes a public nuisance per se.” (Kempton, supra, 165 Cal.App.4th at p. 1348.) Kempton cited two cases, neither of which uses the term “nuisance per se.” In both cases, Kitzman v. Newman (1964) 230 Cal.App.2d 715 and Ex parte Taylor (1890) 87 Cal. 91, the public used an existing sidewalk. Kitzman affirmed a judgment that a building erected on that existing sidewalk was a nuisance that reduced the value of plaintiffs’ property. (Kitzman, at pp. 722, 729.) Taylor found that the city had the right to enact an ordinance prohibiting sidewalk obstructions, that the ordinance did not conflict with the general laws of the state, and that the judgment finding that the defendant violated the ordinance by building on a sidewalk should be sustained. (Taylor, at pp. 92-96.)
Unlike Kitzman or Taylor, there was and is no sidewalk on the Harrises’ Lot 118 along Cedar Lodge Terrace, and thus no obstruction of a sidewalk created a nuisance. Moreover, Kempton held that plaintiffs should be allowed to amend their complaint to allege an action against the City of Los Angeles for a public nuisance. (Kempton, supra, 165 Cal.App.4th at p. 1349.) Kempton explained that such an action “would not force the City to prosecute others for nuisance on private property, but rather require [the] City to take such action as is necessary so that it no longer suffers a nuisance on its own property.” (Ibid.) Kempton thus does not support Kempton’s action for nuisance against the Harrises; it supports Kempton’s action against the City of Los Angeles to abate a public nuisance when the individual suffers harm specially injurious to herself. (Ibid.)
Furthermore, Kempton states: “Appellants’ alleged fear of injury to pedestrians caused by the fences would be suffered by all members of the public and therefore would not alone constitute a special injury to appellants actionable for public nuisance.” (Kempton, supra, 165 Cal.App.4th at p. 1349.) And citing the allegation that the fences blocked plaintiffs’ sight lines upon entering and exiting their garage, Kempton stated that “[i]nterference with the ingress and egress to and from a public street constitutes ‘both a private and public nuisance’ and may constitute a special injury actionable by an individual.” (Ibid.) Our determination that Kempton has no right of ingress and egress to Cedar Lodge Terrace from the Lot 116 garage precludes Kempton from claiming any special injury, and thus bars any action for nuisance.
3. Private Nuisance
“The essence of a private nuisance is an interference with the use and enjoyment of land. [Citation.] Impairment of an owner’s right of access to and from an abutting public street constitutes... a private... nuisance.” (Friends of H Street v. City of Sacramento, supra, 20 Cal.App.4th at p. 160) Plaintiff alleges a special injury because the Harrises’ fence blocks her view of traffic as she leaves her garage. As stated, however, plaintiff has no easement over Lot 118, and thus has no right of ingress to or egress from the rear of the Lot 116 garage to Cedar Lodge Terrace. Thus there is no special injury to plaintiff by the maintenance of the Harrises’ fence elsewhere on Lot 118.
Plaintiff also claims that the Harrises’ fence is a private nuisance because it prevents her from using the public sidewalk. There is no public sidewalk along Cedar Lodge Terrace on the Harrises’ Lot 118 or on the neighboring lot to the west of Lot 116. “[T]o proceed on a private nuisance theory the plaintiff must prove an injury specifically referable to the use and enjoyment of his or her land.” (Koll-Irvine Center Property Owners Assn. v. County of Orange (1994) 24 Cal.App.4th 1036, 1041.) Kempton’s private nuisance theory does not allege injury specifically referable to the use and enjoyment of her land, but to her use of land owned by the City and/or by the Harrises.
Plaintiff therefore has not shown any error in the judgment finding that the Harrises’ fence was neither a public nor a private nuisance.
C. Kempton Cannot Claim Lost Property Value Because of the Nuisances
Kempton claims she suffered $350,000 lost value to her property because of the nuisances and because she will have to disclose them upon sale.
The Harrises built the fences long before Kempton purchased Lot 116 in 2005. “A diminution in value [of Kempton’s property], if any, necessarily would have occurred when the fences were first built, which was before [Kempton and Kinney] purchased the property. [Kempton] cannot claim diminished property value when [Kempton and Kinney] purchased the property after the alleged diminution in value occurred.” (Kempton v. City of Los Angeles, supra, 165 Cal.App.4th at p. 1348.)
III. The Trial Court’s Exclusion of Unauthenticated, Irrelevant Aerial Photographs Was Not an Abuse of Discretion
Kempton claims the trial court improperly excluded her relevant evidence at trial.
The abuse of discretion standard governs this court’s review of a trial court’s ruling to exclude evidence under Evidence Code section 352 because it caused undue consumption of time, undue prejudice, confusion of the issues, or misleading of the jury. (Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 885.) An appellate court will not disturb a trial court’s discretionary ruling under Evidence Code section 352 absent an abuse of discretion. (People v. Lewis (2001) 26 Cal.4th 334, 374.)
Kempton attempted to introduce historical aerial photographs of the Fernwood Avenue-Cedar Lodge Terrace neighborhood, purporting to show a driveway from Cedar Lodge Terrace across the Harrises’ land into Kempton’s garage for the last 50 years. After questioning of plaintiff’s expert witness, the trial court sustained an objection to the photographs. When the plaintiff again tried to offer the photographs as a business record, the trial court found there was no foundational testimony from the entity which took the photographs and the custodian’s declaration was an attempt to offer hearsay evidence, and sustained the objection.
The aerial photographs were not properly authenticated. Evidence Code section 250 makes a photograph the equivalent of a writing. For purposes of laying a foundation and to authenticate a photograph, it should comply with all applicable requirements for admission of a writing under the Evidence Code. (Jones v. City of Los Angeles (1993) 20 Cal.App.4th 436, 440, fn. 5.) “Authentication of a writing is required before it may be received in evidence.” (Evid. Code, § 1401, subd. (a).) The photographer, or a person present at the time the photograph was made, did not testify that the proffered aerial photographs accurately depicted what they purported to show. Thus there was no legally sufficient foundation for their admission into evidence. (People v. Bowley (1963) 59 Cal.2d 855, 859.) Neither was the accuracy of the photographs established by expert testimony. (People v. Bowley (1964) 230 Cal.App.2d 269, 271.)
Plaintiffs never stated the purpose and relevance of the aerial photographs, but they were presumably proffered to show the existence of the partially paved driveway over the disputed area in 1949, 1952, and 1956, and that Lot 116 had an easement over that part of Lot 118 in that time. The common ownership of Lots 116 and 118 from 1933 to 1977, however, meant that no easement rights existed over the disputed area during that time, which made introduction of the aerial photographs irrelevant. There was no abuse of discretion in the trial court’s exclusion of the aerial photographs from evidence.
IV. Kempton Has Not Shown That the Trial Court Erroneously Awarded Attorney’s Fees and Costs
Kempton claims that the trial court erroneously awarded attorney’s fees, costs, and expert witness fees.
A. The Harrises Were the Prevailing Parties
Kempton claims that the trial court erroneously granted costs and expert witness fees because Kempton should have prevailed as to the elimination of private nuisance and the beneficial consequences to Kempton of the implied easement held by Stroup as of 1977. We have found no error in the judgment for defendants concerning private nuisance or implied easement. Defendants were the prevailing parties as to these claims.
B. The Indemnity Provision of the 1991 Written Easement Entitled Defendants to Attorney’s Fees and Costs
Kempton claims that the trial court erroneously granted attorney’s fees because of the extinguishment of the 1991 easement and the lack of mutual consent to that 1991 easement as reflected in the lack of signatures by Kempton, Michele Clark (purchaser of Lot 116 in 1991), or the attorney for the Estate of Stroup. Kempton cites Civil Code section 1717 (section 1717).
Civil Code section 1717, subdivision (a) states, in relevant part: “In any action on a contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney’s fees in addition to other costs.”
“Attorney fees are not recoverable as costs unless a statute or contract expressly authorizes them.” (Sessions Payroll Management, Inc. v. Noble Construction Co. (2000) 84 Cal.App.4th 671, 677.) Section 1717 makes a unilateral contractual attorney fee provision reciprocal. “Where a contract accords a right to attorney fees to one party but not the other, Civil Code section 1717 creates a statutory reciprocal right to attorney fees in all parties to the contract.” (Myers Building Industries, Ltd. v. Interface Technology, Inc. (1993) 13 Cal.App.4th 949, 968.) Section 1717, however, is not relevant to this case, because this case does not involve a question whether section 1717 makes a unilateral contractual attorney fee clause reciprocal. The Harrises are the prevailing parties, not Kempton and Kinney, and section 1717 thus does not make an attorney fee clause unilaterally benefitting the Harrises reciprocal in favor of Kempton and Kinney.
Moreover, section 1717 does not apply to this attorney fee clause. The attorney fee provision in the 1991 easement is an indemnification provision. It states: “The Grantees hereby indemnify, defend, and hold Grantors harmless from and against all claims, liabilities, costs and expenses (including attorneys fees and costs) arising out of or in connection with the grant and use of the easement by Grantees or any third parties.” Section 1717, subdivision (a) expressly excludes indemnity provisions that allow recovery of attorney fees as an element of loss within the scope of the indemnity. (Baldwin Builders v. Coast Plastering Corp. (2005) 125 Cal.App.4th 1339, 1344.)
The Harrises, as grantors, are the indemnitees; Kempton and Kinney, as grantees (owners of Lot 116), are the indemnitors. An “[i]ndemnity is a contract by which one engages to save another from a legal consequence of the conduct of one of the parties, or of some other person.” (Civ. Code, § 2772.) “An indemnity against claims, or demands, or liability, expressly, or in other equivalent terms, embraces the costs of defense against such claims, demands, or liability incurred in good faith, and in the exercise of a reasonable discretion[.]” (Id. at § 2778, subd. 3.) As owners of Lot 116, Kempton and Kinney became grantees of the 1991 easement appurtenant to Lot 116. Their action against the Harrises arose out of, and was in connection with, the grant of the easement and their use of the easement. Therefore the indemnification clause made them liable for the Harrises’ costs and expenses, including attorney’s fees and costs, arising out of and in connection with the action by Kinney and Kempton against the Harrises. The trial court correctly awarded attorney’s fees and costs in favor of the Harrises.
C. Kempton Has Waived Arguments Based on Defendants’ Section 998 Offer
Kempton makes several arguments based on Code of Civil Procedure section 998.
Kempton claims that the Harrises’ section 998 offer was made for the third amended complaint, not for the operative fourth amended complaint. Kempton provides no authority for the proposition that filing the fourth amended complaint made the attorney fee provisions of section 998 inapplicable.
Kempton claims that the attorney’s fees were not properly allocated based on the portion of Lot 118 in the disputed area as distinguished from the five-foot strip of dedicated City land in the disputed area, or for the two-week period in which the 1991 easement was in effect. No further discussion, analysis, or authority is provided. The contention is waived when there is a failure to support them with reasoned argument and citations to authority (Berger v. California Ins. Guarantee Assn. (2005) 128 Cal.App.4th 989, 1007).
Kempton apparently construes this two-week period to be between the filing of the complaint on June 19, 2006, and expiration of the 1991 easement on June 30, 2006.
Kempton claims the section 998 offer was unreasonable given the Harrises’ economic exposure and the opinion in Kempton v. City of Los Angeles, supra, 165 Cal.App.4th 1344. The record on appeal does not contain the section 998 offer. This court also disregards a claim perfunctorily asserted without discussion, analysis, or references to the record. (Berger, supra, 128 Cal.App.4th at p. 1007; State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 611, fn. 7.)
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to defendants Jeffrey Harris and Judy Harris.
We concur: KLEIN, P. J., CROSKEY, J.