Filed 5/5/22 Davis v. Nicholsen CA1/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

MONICA DAVIS,
Plaintiff and Appellant, A161594
v.
HAMILTON NICHOLSEN, (Napa County
Defendant and Respondent. Super. Ct. No. 16CV000201)

This is an appeal from final judgment after the trial court granted
defendant Hamilton Nicholsen’s motion to enforce a settlement agreement
pursuant to Code of Civil Procedure1 section 664.6. Plaintiff Monica Davis
seeks reversal on the grounds that there was no enforceable settlement
agreement between the parties and even if there were, the judgment
impermissibly altered its terms. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The parties are adjacent property owners in Napa County. Plaintiff
purchased her property in 1994 with a 20-foot deeded access easement
(hereinafter, Easement) over the property located next door, which was
purchased by defendant in 2006. The Easement provided plaintiff access to

Unless otherwise stated, all statutory citations herein are to the Code
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of Civil Procedure.

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her home from Mund Road, a nearby public roadway. However, rather than
accessing her property from Mund Road by way of the Easement, plaintiff for
years used an existing paved roadway that also crossed defendant’s property
(hereinafter, Paved Roadway).2 This led to disagreement between the
parties.
I. The October 2017 Agreement.
In June 2016, plaintiff filed an amended complaint against defendant
to quiet title to easement and for trespass. Shortly thereafter, defendant
filed a verified cross-complaint for abandonment of easement, for trespass,
and to quiet title. The parties, represented by counsel, participated in a
mandatory settlement conference beginning in September 2017. During this
conference, plaintiff learned defendant did not own a small portion of the
Paved Roadway. Rather, this small portion was owned by a limited liability
company set up by defendant’s mother, Susanna Kelham.
The parties were unable to resolve their property dispute during this
conference. However, they continued negotiating out of court and, on October
4 and 5, 2017, executed a document entitled “Settlement Agreement” that set
forth in a numbered list format the basic terms of an agreement (October
2017 Agreement). Among other things, this agreement laid out a procedure
by which the existing Paved Roadway would be recorded as a new easement
and the existing Easement would be quitclaimed by defendant. Specifically,
the October 2017 Agreement provided:
“1. Fences adjacent to or within the Easement as well as the gate at
Mund Road shall remain as is. Latch to be mutually agreed upon through
counsel, cost spilt [sic] 50/50. The gate on Mund Road may be locked. The

Plaintiff refers to the Paved Roadway as the “existing right-of-way or
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driveway.”

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gate at the Davis property line may not be locked but must be secured with a
closed latch that is easy to open. . . .
“2. The existing right-of-way to remain as is, but may be improved to a
maximum of 20 feet, including shoulders, at Davis’s sole expense if Davis is
required to do so by a governmental entity or her homeowner’s insurance
carrier. Davis shall only be solely responsible for the expense of an
improvement to the right of way if Davis is the one requesting the
improvement or is solely the one required to make the improvement. . . .
“3. Davis and Nicholsen shall cooperate with a lot line adjustment and
shall split the costs 50/50 with Davis’ share not to exceed $7,000.
“4. Gate at Davis property line may be replaced with a gate of Davis’s
selection with a 50/50 cost split, subject to Nicholsen’s approval, such
approval shall not be unreasonably withheld.
“5. Amendment of deeded 20-foot easement to a metes and bounds
description in a location mutually agreed upon through counsel along the
existing right-of-way. Easement to be 20 feet wide including shoulders.
“6. 50/50 cost sharing to amend deeded easement as per No. 5.
“7. Mutual Release of all Claims and 1542 waiver. Waiver of costs and
attorney’s fees by both sides.
“8. Davis to select either Terra Firma or Albion Surveys to survey lot
line adjustment and amendment to deeded easement.
“9. Court to retain jurisdiction to enforce settlement pursuant to CCP
section 664.6.
“10. Nicholsen and Davis to cooperate in quitclaiming the express
easement and recording a new easement. Any costs to be split 50/50.
“11. Parties to sign a final full-form binding settlement agreement
consistent with these terms. . . .”

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On October 6, 2017, the parties then filed a notice of settlement of
entire case.
II. Defendant’s Motion to Enforce the October 2017 Agreement.
After trying unsuccessfully for several months to gain plaintiff’s
cooperation in designating a surveyor in accordance with paragraph 8 of the
October 2017 Agreement—a prerequisite to completing the lot line
adjustment and recording a new easement—defendant moved for
enforcement under section 664.6. Plaintiff opposed the motion, arguing there
was no meeting of the minds because defendant “ha[d] no intention of
acquiring any of the Kelham property through a lot line adjustment in order
to accommodate [her] amended easement.”
A hearing was held May 30, 2018. Before continuing the matter, the
trial court ordered plaintiff to comply with the October 2017 Agreement by
retaining Terra Firma Surveys (Terra Firma) to perform the necessary
surveying work. The trial court also ordered that the survey include the
“Kelham portion of the disputed area.” This order was subsequently
amended to substitute Albion Surveys (Albion) for Terra Firma, as it became
clear the former was unavailable.
In compliance with this court order, plaintiff retained Albion, and in
June 2018 the parties signed an agreement with the company to perform the
surveying work to complete the lot line adjustment. During the course of its
work, Albion advised the parties the land parcels owned by defendant and
Susanna Kelham that comprised the Paved Roadway would need to go
through a “merger process” in order to complete the lot line adjustment. On
October 22, 2018, defendant’s attorney filed a declaration in court attesting
that this merger process was complete and that Placer Title Company was in
the process of recording and issuing a new deed for the merged parcels.

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According to counsel, once the new deed was issued, Albion would be able to
complete the application for the lot line adjustment; submit it to the county
for approval; and, once approved, finalize the adjustment process.
In December 2019, defendant’s attorney filed a new declaration
attesting that, as of December 9, 2019, he had incurred over $15,700 in fees
to complete the lot line adjustment in accordance with the October 2017
Agreement.
Finally, on February 21, 2020, the lot line adjustment between
defendant’s and Kelham’s parcels was completed and recorded with the
County of Napa.
In July 2020, defendant renewed his motion to enforce the October
2017 Agreement because plaintiff refused to sign a final settlement
agreement in accordance with paragraph 11. The renewed motion was heard
August 19, 2020. Ruling in defendant’s favor, the court found plaintiff
waived her argument that there was no meeting of the minds as to the
settlement terms when she agreed in court to proceed under the October 2017
Agreement by retaining Terra Firma to perform the surveying work. The
court further found that uncontroverted evidence disproved plaintiff’s
argument that the parties never reached agreement on the location of the
new easement. The court pointed out that, in opposing defendant’s motion,
plaintiff argued her “ ‘main goal of the settlement’ ” was “ ‘resolving the
discrepancy between [her] deeded easement and her existing driveway [i.e.,
the existing paved driveway].’ ” According to the court, “[t]he lot-line
adjustment [completed by Albion] involves two of Defendant’s parcels and the
Kelham parcel, and it results in an easement, benefiting Plaintiff, that
incorporates the driveway. [Citation.] Plaintiff fails to present any evidence
to the contrary. For this reason, the uncontroverted evidence of Defendant’s

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performance under the Settlement Agreement tends to support [his]
contention that he has provided Plaintiff with exactly what it is she now
argues she understood she was entitled to under the Settlement Agreement.”
Accordingly, on October 7, 2020, the court entered judgment in
defendant’s favor pursuant to the terms of the October 2017 Agreement. This
appeal followed.
DISCUSSION
Plaintiff contends the trial court erred in finding that the October 2017
Agreement was enforceable under section 664.6.3 Alternatively, plaintiff
contends the judgment entered by the trial court after granting defendant’s
section 664.6 motion improperly altered the terms of the October 2017
Agreement. We begin with the applicable law.
I. The Applicable Law.
“Section 664.6 permits a court to enter judgment pursuant to the terms
of a settlement if the parties stipulate . . . in writing to settle all or part of a
case. [Citation.]” (Skulnick v. Roberts Express, Inc. (1992)

2 Cal.App.4th 884, 889

 (Skulnick).)
      A settlement agreement is a contract, subject to basic contract
principles. (Weddington Productions, Inc. v. Flick (1998)

60 Cal.App.4th 793, 810

 (Weddington).) As such, to be enforceable, the material terms of the
settlement agreement must be reasonably well-defined and certain. (Id. at p.
811.) Further, the parties’ outward manifestations must demonstrate that

      3  Section 664.6 provides in relevant part: “If parties to pending
litigation stipulate, in a writing signed by the parties outside of the presence
of the court or orally before the court, for settlement of the case, or part
thereof, the court, upon motion, may enter judgment pursuant to the terms of
the settlement. If requested by the parties, the court may retain jurisdiction
over the parties to enforce the settlement until performance in full of the
terms of the settlement.” (§ 664.6, subd. (a).)


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they agreed to promised contractual performance. (Ibid.) When the material
details are left to a future agreement, the settlement agreement is too
uncertain to be enforceable. (Id. at p. 817.) “ ‘The paramount rule governing
the interpretation of contracts is to give effect to the mutual intention of the
parties as it existed at the time of contracting, so far as it is ascertainable and
lawful [citation]. The [intention] of the parties must, in the first instance, be
derived from the language of the entire contract.’ [Citations.]” (City of Chino
v. Jackson (2002)

97 Cal.App.4th 377, 382

.)
        When, as here, a party sues to enforce a settlement under section 664.6,
the trial court assesses whether the material terms of the settlement were
reasonably certain and whether the parties expressly acknowledged that they
understood and agreed to be bound by those terms. (In re Marriage of Assemi
(1994)

7 Cal.4th 896, 911

 (Marriage of Assemi).) In making this assessment,
a trial court may in the sound exercise of its discretion consider oral
testimony or declarations. (Corkland v. Boscoe (1984)

156 Cal.App.3d 989, 994

.)
        On appeal, we consider only whether the trial court’s decision to
enforce the settlement agreement was supported by substantial evidence.
(Marriage of Assemi, supra,

7 Cal.4th at p. 911

.) Since the appellant bears
the burden of proving the absence of substantial evidence, we may deem an
evidentiary challenge waived if the appellant presents only facts and
inferences favorable to its position while disregarding the unfavorable
evidence. (Pope v. Babick (2014)

229 Cal.App.4th 1238, 1246

.)
II.     Substantial evidence supports the trial court’s finding that the
        October 2017 Agreement is enforceable.
        Plaintiff contends there is no evidence supporting the trial court’s
finding that she had a “meeting of the minds” with defendant with regard to
the settlement terms. Specifically, plaintiff argues that she never agreed to


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the location of the new 20-foot easement as required under paragraph 5 of the
October 2017 Agreement.4 Having reviewed the record in its entirety, we
reject this argument.
      First, plaintiff filed a declaration with the court attesting, “The
‘existing right-of-way’ referred to in Paragraph 5 is my driveway that travels
over [defendant’s] property. A site map of my driveway, prepared by Terra
Firma Surveys, Inc., shows that a portion of my driveway crosses over a
portion of Parcel No. 021-301-008. That parcel is owned by Kelham
Vineyards & Winery, LLC. My understanding is that that entity is controlled
by Mr. Nicholsen’s mother.” Consistently with this declaration, plaintiff
confirmed, in opposing defendant’s enforcement motion, that she “understood
Paragraph 5 as meaning that her relocated deed easement would follow her
existing driveway.” Her position is wholly consistent with defendant’s
position that under the October 2017 Agreement, “[plaintiff] was entitled to a
newly deeded easement along the existing paved road that was 20 feet wide,
including shoulders.”
      Thus, contrary to plaintiff’s claim, substantial evidence demonstrates
the October 2017 Agreement contained all the material terms required to
accomplish the parties’ shared intentions of (1) recording access for plaintiff
across defendant’s property in the location along the existing Paved Roadway
that she used to access Mund Road and (2) extinguishing the Easement that
plaintiff was not using for that purpose. To the extent outstanding issues
remained with respect to preparing a precise “metes and bounds” description
of the new “deeded 20-foot easement” (Oct. 2017 agreement, par. 5) and

      4Paragraph 5 of the October 2017 Agreement provides: “Amendment
of deeded 20-foot easement to a metes and bounds description in a location
mutually agreed upon through counsel along the existing right-of-way.
Easement to be 20 feet wide including shoulders.”


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securing and recording the necessary legal documents (id., par. 10), the
agreement provided a procedure for accomplishing them. This procedure
included selecting a surveying firm to complete the lot line adjustment and
amend the Easement (id., par. 8).
      Further, the record shows that after the parties signed the October
2017 Agreement, they each took steps in compliance with this procedure,
with plaintiff’s retaining Albion to complete the lot line adjustment and
defendant’s then paying Albion over $15,000 in surveying fees.
      This evidentiary record provides ample support for the trial court’s
finding that the parties had a meeting of the minds with respect to the
location of the new easement for purposes of paragraph 5 of the October 2017
Agreement.5 (See Marriage of

Assemi, supra,

 7 Cal.4th at pp. 911–912
[upholding trial court’s enforcement of a settlement agreement where
substantial evidence proved “the parties, represented by counsel, engaged in
settlement negotiations over an extended period of time, advised the retired
judge of their desire to enter into a settlement disposing of all the matters
that were to be arbitrated, explicitly defined and placed on the record the


      5 At oral argument, plaintiff’s counsel noted that in March 2020, as
soon as plaintiff received from defendant a copy of the final easement map
prepared by Albion, she told defendant the proposed easement site “ ‘is not
and has not been agreed to by me.’ ” Plaintiff’s counsel neglected to mention
what thereafter transpired between the parties. Defendant’s counsel
responded by pointing out the proposed easement location on the Albion map
was precisely what the parties discussed. Counsel then requested that
plaintiff provide a proposal of where she believed the easement should be and
that plaintiff agree to meet and confer on the issue. However, for weeks,
plaintiff refused to meet either request. Finally, after plaintiff failed to
commit to one of several proposed meet and confer dates in July 2020,
defendant filed this enforcement motion. On this record, the trial court was
entitled to discount plaintiff’s claim there was no meeting of the minds as to
the easement’s location. (Pope v. Babick, supra,

229 Cal.App.4th at p. 1246

.)


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terms of the settlement, . . . and expressly stated they understood and agreed
to those terms”]; Okun v. Morton (1988)

203 Cal.App.3d 805

, 819–821
[upholding trial court’s enforcement of a settlement agreement despite
disagreements between the parties regarding the extent of their
responsibilities where “both defendant and plaintiff acted in strict accord
with the provisions of the contract”].)
       This same record undermines plaintiff’s argument that the October
2017 Agreement was merely an “ ‘agreement to agree’ ” at a later date. As
just explained, the material terms of the October 2017 Agreement were both
reasonably clear and well understood when the parties willingly executed it.
Thus, while paragraph 11 of the agreement calls for the parties to “sign a
final full-form binding settlement agreement consistent with these terms,”
our case law holds, “Where the writing at issue shows ‘no more than an
intent to further reduce the informal writing to a more formal one’ the failure
to follow it with a more formal writing does not negate the existence of the
prior contract. [Citation.]” (Harris v. Rudin, Richman & Appel (1999)

74 Cal.App.4th 299, 307

.) Applying this principle here, we uphold the court’s
enforcement of the October 2017 Agreement.
III.   The judgment comports with the October 2017 Agreement.
       Last, plaintiff argues the judgment entered by the trial court
impermissibly altered the terms of the October 2017 Agreement.6 The
following standard applies.



       6We note that plaintiff, in making this argument, relies in part on the
court’s tentative ruling that preceded the final appealed-from order. It is well
established a court’s tentative order may not be used to impeach its final
order or judgment. (Shaw v. County of Santa Cruz (2008)

170 Cal.App.4th 229, 268

.) Accordingly, we consider the judgment entered in this case
without reference to the court’s tentative ruling.


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      While the court may interpret the terms of the parties’ settlement
agreement, “nothing in section 664.6 authorizes a judge to create the material
terms of a settlement, as opposed to deciding what terms the parties
themselves have previously agreed upon.” (Weddington, supra,

60 Cal.App.4th at p. 810

; see Leeman v. Adams Extract & Spice, LLC (2015)

236 Cal.App.4th 1367, 1375

 [“While the court has the authority to refuse to issue
the requested consent judgment, what the court c[an] not do in considering
approval of a settlement under . . . section 664.6 [i]s to add to or modify an
express term of the settlement”].)
      Here, plaintiff contends the judgment strays from the October 2017
Agreement in providing, “ ‘The new legal boundary of the Easement is as
delineated in the red outline attached as Exhibit C.’ ” Defendant counters
that exhibit C (as well as exhibit B) to the judgment merely follows the terms
of the settlement without impermissibly creating new terms. We agree with
defendant.
      As discussed ante (pp. 7–10), the trial court found, based on substantial
evidence, the parties reached a meeting of the minds regarding the location of
the new easement referenced in paragraph 5 of the October 2017 Agreement.
Quite simply, this location was the existing Paved Roadway that crossed
defendant’s and Kelham’s properties that plaintiff already used as a right of
way. Exhibit B, incorporated into the judgment, is simply the recorded legal
description of the new easement. And exhibit C, also incorporated, is the plot
map prepared by Albion, the surveyor retained by plaintiff in accordance with
paragraph 8 of the agreement, that identifies the new easement’s precise
location.
      Under these circumstances, the court did not err by incorporating these
exhibits into the judgment. Case law recognizes, “Section 664.6’s ‘express



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authorization for trial courts to determine whether a settlement has occurred
is an implicit authorization for the trial court to interpret the terms and
conditions to settlement.’ ” (Skulnick, supra,

2 Cal.App.4th at 889

; see
Malouf Bros. v. Dixon (1991)

230 Cal.App.3d 280, 284

 [the court did not err
by determining that respondents complied with their repair obligations under
the agreement, as the court “merely resolved questions about the settlement,
by motion procedure as authorized by section 664.6”].)
      Accordingly, because substantial evidence supports the trial court’s fact
finding with regard to the October 2017 Agreement, the judgment stands.
(See Weddington, supra,

60 Cal.App.4th at p. 815

 [factual determinations
made by a trial court on a § 664.6 motion must be affirmed if the trial court’s
factual findings are supported by substantial evidence]; see also Corkland v.
Boscoe, supra,

156 Cal.App.3d at p. 992

 [“ ‘it is clear that the settlement
agreement includes not only that document denominated “Settlement
Agreement,” but the two promissory notes and deeds of trust executed
pursuant thereto and later withdrawn by Boscoe. It is indisputed that there
was a meeting of the minds of all the parties as to all material portions of the
notes and deeds, and there is no substantial reason to further delay the
consummation of the agreement’ ”].)
                                DISPOSITION
      The judgment is affirmed.




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                                  _________________________
                                  Jackson, P. J.


WE CONCUR:


_________________________
Simons, J.


_________________________
Burns, J.




A161594/Davis v. Nicholsen




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