Singleton v. Friedberg CA4/1

Filed 8/19/20 Singleton v. Friedberg CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

TERRY L. SINGLETON et al., D076029

Plaintiffs and Respondents,

v. (Super. Ct. No. 37-2014-
00016556-CU-OR-CTL)
THOMAS F. FRIEDBERG et al.,

Defendants and Appellants;

CREATIVE SMARTSCAPE,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of San Diego County,
Katherine A. Bacal, Judge. Affirmed.
Law Office of John W. Cutchin and John W. Cutchin for Defendants
and Appellants Thomas F. Friedberg and Sarah L. Bunge.
Daley & Heft, Lee H. Roistacher and Samuel C. Gazzo for Defendant
and Respondent Creative Smartscape, Inc.
The Viviano Law Firm and Charles A. Viviano; Blain Morrison Law
Corporation and Rebecca Blain Morrison for Plaintiffs and Respondents.
 Appellants Thomas F. Friedberg and Sarah Bunge appeal the trial
court’s order enforcing a settlement pursuant to Code of Civil Procedure
section 664.6, and in particular the court’s decision that the underlying
settlement agreement required them to remove a tree blocking their

neighbors’ view.1 Appellants challenge the court’s interpretation of the
settlement agreement, argue the settlement agreement was unenforceable,
and contend the court’s determination that the tree needed to be removed
was not supported by substantial evidence. We reject all of these contentions
and affirm the court’s decision.
FACTUAL AND PROCEDURAL BACKGROUND
In 2014, appellants were sued by their neighbors, Terry L. Singleton
and Margaret R. Singleton, individually and as trustees of a family trust (the

Singletons).2 The underlying dispute concerned such issues as a common
wall appellants had installed on the Singletons’ side of the property line,

1 Further statutory references are to the Code of Civil Procedure unless
otherwise specified.
2 Because the record does not include any of the filings that preceded the
parties’ global settlement, our understanding of the presettlement
proceedings is derived from information in the parties’ appellate briefs and in
papers filed in support of the parties’ cross-motions to enforce the settlement
agreement in the trial court. Yet even this information is incomplete.
Although the underlying action apparently consisted of two consolidated
lawsuits, and unspecified “claims, cross-claims, and counterclaims,” we are
not told what the specific causes of action were or how the parties were
aligned as to each of them. However, we are able to decide the merits of this
appeal without this information. The settlement, which we conclude was
enforceable, resulted in dismissal of the entire action. Thereafter, the trial
court retained jurisdiction under section 664.6 only to enforce the settlement
agreement. This appeal involves only a challenge to the trial court’s order
enforcing the settlement, which we can resolve on this record without
additional information regarding the dismissed claims.

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overgrown vegetation in appellants’ yard, and, of singular importance in this

appeal, a podocarpus tree3 that blocked the Singletons’ view. Appellants, in
turn, sued Creative Smartscape, Inc. (Smartscape), the builder of the
common wall.
On July 11, 2018, the day of trial, the parties consented to a settlement
conference before the trial judge. This effort succeeded, and the following
settlement was placed on the record:
“[THE COURT]: There will be an easement granted by the
Singletons to Friedberg-Bunge for [the common] wall [between
their properties]. The Friedberg-Bunge attorney will prepare
the formal easement.

“Mr. Friedberg, Ms. Bunge will pay to the Singletons the sum
of $150,000. That will be paid within five court days of the
recording of the easement.

“The Podocarpus tree on the Friedberg-Bunge property will be
trimmed to their roofline, that’s their highest roofline, if the
tree can handle it.

“Their arborist, Mr. [Safford], will prepare a proposal and
provide it to counsel, Mr. Prindle, who will then distribute it to
the plaintiffs, defendants, and anyone else who has an interest
and a request.

“The report will include how far the tree can be trimmed and
can handle it. Mr. [Safford] will also review the other trees on
the Friedberg-Bunge property and make a recommendation as
to their trimming.

“If the tree cannot be trimmed to an appropriate height, as an
alternate to the trimming of the Podocarpus tree, the
Podocarpus tree will be removed and replaced.

3 Podocarpus is “a genus of evergreen trees (family Taxaceae) widely
distributed in the southern hemisphere and having a pulpy fruit with one
hard seed[.]” (Webster’s 3d New Internat. Dict. (2002) p. 1748, col. 2.)

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 “The Singletons will contribute $50,000 to the removal and
replacement. SmartScape will contribute $10,000 to the
removal and replacement.

“SmartScape will also pay, not as an alternative, but as a part
of the general settlement, the sum of $10,000 to the
Singletons.

“Mr. [Safford] will prepare his proposal by July 17th. And the
tree, if it is going to be trimmed, will be trimmed by the end of
the month.

“All parties will bear their own costs and attorneys’ fees.

“This Court will retain jurisdiction under [section] 664.6. The
case will be dismissed with prejudice.”

After reciting these terms, the court had the following exchange with
appellants’ counsel:
“THE COURT: Mr. Prindle, anything that you wanted to add
or clarify?

“MR. PRINDLE: One of the phrases about trimming the tree,
I think, was ‘if the tree can take it.’ Maybe we need to define
that a little bit more. Is that—I don’t want something to be so
vague.

“He’s going to have to decide whether it can be trimmed
without endangering the health or esthetics of the tree.

“THE COURT: Why don’t we say we’ll trim the tree to
whatever amount the tree can handle and remain healthy.

“Does that satisfy? It’s a proposal.

“MR. PRINDLE: Yeah. I guess we’re saying whatever degree
Mr. [Safford] thinks it can be trimmed to accommodate those
things.

“THE COURT: Right. Okay. Good.”

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 The parties thereafter agreed on the record that they had heard and
understood the terms of the settlement, had no questions, had been provided
sufficient time to consult with counsel, and understood that if the agreement
was made the order of the court, they would be bound by it. The court found
the parties had entered into a “knowing, voluntary, and intelligent
settlement agreement which is the order of the Court,” ordered the action
dismissed with prejudice, and “retained jurisdiction to enforce the terms of
the settlements that have been recited on the record pursuant to
section 664.6.”
Unfortunately, disputes arose soon thereafter, culminating in cross-
motions to enforce the settlement agreement under section 664.6. Our
understanding of what occurred after the settlement proceeding is based on
the information and evidence submitted with these cross-motions.
On July 17, 2018, as contemplated by the terms of the parties’
settlement, the arborist submitted his report. It stated in part:
“This brief report and proposal follows the inspection of your
large Podocarpus gracilior that you requested I make to
consider reducing its height to accommodate your neighbor’s
view. To reduce the canopy to the level of the apex of the
gazebo would seriously degrade the health and dignity of this
tree. To make the large heading cuts necessary to so
drastically reduce the tree would surely result in decay at the
point where new growth would sprout out after the heading.
Furthermore, the natural shape of the tree would be
compromised.

“I am recommending reducing the canopy of the tree only 4-6
feet using a less drastic technique called drop crotch pruning
which reduces a larger higher branch back to another lateral
branch to reduce sucker growth and maintain the more
natural look of the rounded canopy.”

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 On July 23, 2018, appellants’ counsel, Patrick L. Prindle, sent an e-mail
to counsel for the Singletons, notifying him that appellants intended to have
the podocarpus trimmed as recommended by the arborist. Two weeks later,
Prindle advised that the trimming had been completed.
At this point, a dispute arose over whether appellants had satisfied
their obligations under the settlement agreement by trimming the tree in
accordance with their arborist’s recommendation. The Singletons claimed
the trimming was insufficient and that the tree would have to be removed
since it could not be lowered any further.
Appellants maintained they had fully discharged their obligations by
trimming the tree, although their reasoning in support of this position varied.
In an August 8, 2018 letter to the Singletons’ attorney, Prindle asserted that
his clients had trimmed the podocarpus to the correct height, a conclusion he
reached by claiming an antenna on their roof qualified as their “highest roof
line.” In an October 11, 2018 e-mail, Prindle changed course and claimed his
clients believed the Singletons had forfeited their right to insist on removal of
the tree by failing to object to the arborist’s recommendation before the tree
was trimmed. Prindle claimed “the transcript of the settlement” supported
his clients’ position, although he offered no citations to the part of the
transcript that contained the purported objection requirement. Although he
consistently opposed the tree’s removal, in each of these communications
Prindle acknowledged the settlement agreement required removal of the tree
if it could not be lowered to his clients’ highest roofline.
The standoff persisted, and on January 3, 2019, the Singletons filed a
motion to enforce the settlement agreement under section 664.6. They
argued the settlement required appellants to trim the podocarpus to their
highest roofline, “conditioned on Mr. Safford’s determination that the tree

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could handle it.” They noted that the arborist’s report had cautioned against
trimming the podocarpus to the apex of appellants’ gazebo and had
recommended a lesser reduction of four to six feet. Not only was the apex of
appellants’ gazebo the wrong roofline, the Singletons argued, but the tree had
not even been lowered to this level. They claimed appellants were therefore
in breach of the agreement and requested that the court issue an order
instructing appellants to remove the tree.
In opposition to the Singletons’ motion, appellants, represented by new
counsel (including Friedberg himself), argued the settlement had never
required them to remove the podocarpus. According to appellants, when the
court stated during the settlement proceedings, “Why don’t we say we’ll trim
the tree to whatever amount the tree can handle and remain healthy,” it had
proposed a new settlement term that superseded the earlier terms relating to
the tree. Thus, the removal requirement had been withdrawn, and they were
not in breach because they had trimmed the podocarpus in accordance with
their arborist’s recommendations, which was all the settlement agreement
required them to do.
Meanwhile, appellants filed their own motion to enforce the settlement
agreement in which they sought an order compelling the Singletons to

execute the easement for the common wall4 and requiring the Singletons to
provide their taxpayer identification numbers, information appellants’
insurer apparently required before it would issue the $150,000 settlement
payment to the Singletons.

4 A copy of the proposed easement was submitted in support of the
motion. Apparently, the Singletons had refused to sign it, not because of any
objection to its contents, but because of their belief appellants were already in
breach of the settlement agreement, relieving them of their own duty to
perform.

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 The hearing on both motions was set for March 1, 2019. On
February 28, 2019, the court issued a tentative ruling stating its intention to

grant each motion in part,5 order the Singletons to execute the easement
within five court days, and order appellants to remove the podocarpus tree
within 45 days. In the tentative ruling, the court found the settlement
agreement “straight-forward, with three main parts:
“- Friedberg/Bunge will either trim their Podocarpus tree or, if
the tree cannot be trimmed to the appropriate height, they
will remove and replace it, with the Singletons and
Smartscape contributing to the removal and replacement;

“- the Singletons will give Friedberg/Bunge a formal easement
for the common wall; and

“- Smartscape was to pay the Singletons $10,000, separate and
apart from potential contribution for removing the tree.”

The court reasoned that while appellants “contend that the tree only
needed to be trimmed if it could handle such a trimming and remain
healthy,” this interpretation ignored the following terms of the agreement:
“Under the agreement, Friedberg/Bunge’s arborist
(Mr. Safford) was to report on how far Friedberg/Bunge’s
Podocarpus tree could be trimmed and remain healthy.
[Citation.] If Mr. Safford said the tree could be trimmed to
Friedberg/Bunge’s highest roofline, then the tree was to be
trimmed. [Citation.] However, if the tree could not be so
trimmed, it would be removed and replaced, with the
Singletons contributing $50,000 and Smartscape contributing
$10,000.”

The court also found the arborist’s report failed to demonstrate that
trimming the podocarpus tree to the apex of appellants’ gazebo would

5 In addition to seeking removal of the tree, the Singletons had also
asked the court to order appellants to trim other vegetation, and they had
requested sanctions.

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compromise its health. In the court’s view, the arborist’s reference to
“compromis[ing] the shape of the tree” was a matter of esthetics rather than
health, and the prediction that “new growth” would sprout was an indication
the tree would survive. The court nevertheless concluded that removal of the
tree was warranted: “[S]ince Friedberg/Bunge are apparently of the view
that the tree cannot be reduced to the agreed-upon height, it must be

removed and replaced.”6
During the hearing on the parties’ motions, a dispute arose regarding
the timing of the parties’ exchange of their respective settlement payments.
The court continued the hearing to March 22, 2019, stating it would issue a
new tentative ruling to resolve these additional issues. On March 5, 2019,
the court issued the new tentative ruling, which was substantively identical
to its prior tentative, except that the new tentative ruling included the
deadlines by which the parties were to exchange their settlement payments
and added the following sentence to the court’s analysis of the arborist’s
report: “Mr. Safford did not state that the required trimming would kill or
substantially injure the tree.”
On March 11, 2019, appellants applied ex parte for permission to file a
supplemental declaration and report from Mr. Safford stating that trimming
the tree further “would ultimately risk the survivability of the tree.” The
court denied the application, indicating it had already issued its revised
tentative ruling and was “not inclined to hear further evidence.”

6 The court denied the Singletons’ request for an order requiring
trimming the other vegetation, finding insufficient evidence it had not
already been trimmed, and further denied their request for sanctions. It also
refused to require the Singletons to provide taxpayer identification
information to appellants, finding this was not one of the terms of the
settlement.

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 Following the March 22, 2019 hearing, the court issued a minute order
confirming its March 5, 2019 tentative ruling. On April 26, 2019, appellants

timely appealed this minute order.7
DISCUSSION
Appellants challenge the portion of the minute order requiring them to
remove the podocarpus tree. Appellants contend that the trial court
misinterpreted the settlement agreement, that the version of the settlement
agreement adopted by the trial court was unenforceable because it was
uncertain or missing material terms, that there was no “meeting of the
minds” regarding the requirements governing the podocarpus tree, and that
the court’s determination that the tree needed to be removed was not
supported by substantial evidence.
I.
Governing Law and Standard of Review
The minute order was entered pursuant to section 664.6, which
provides: “If parties to pending litigation stipulate, in a writing signed by the
parties outside 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.”

7 No judgment was requested, presented, or entered in the trial court.
However, a minute order granting a motion to enter judgment under
section 664.6 constitutes an appealable order where, as here, “it purports to
finally resolve all issues between these particular parties [citations], required
no further judicial action and left nothing to be done but to enforce what had
been determined [citations], and enforced the parties’ settlement agreement.
[Citations]” (Pangborn Plumbing Corp. v. Carruthers & Skiffington (2002)
97 Cal.App.4th 1039, 1046, fn. 3.)

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 Section 664.6 “ ‘created a summary, expedited procedure to enforce
settlement agreements when certain requirements that decrease the
likelihood of misunderstandings are met. Thus the statute requires the
“parties” to stipulate in writing or orally before the court that they have
settled the case. The litigants’ direct participation tends to ensure that the
settlement is the result of their mature reflection and deliberate assent. This
protects the parties against hasty and improvident settlement agreements by
impressing upon them the seriousness and finality of the decision to settle,
and minimizes the possibility of conflicting interpretations of the
settlement. . . . It also protects parties from impairment of their substantial
rights without their knowledge and consent.’ ” (Elyaoudayan v. Hoffman
(2003) 104 Cal.App.4th 1421, 1429, quoting Levy v. Superior Court (1995)
10 Cal.4th 578, 585.)
When presented with a motion pursuant to section 664.6, “[i]t is for the
trial court to determine in the first instance whether the parties have entered
into an enforceable settlement.” (Osumi v. Sutton (2007) 151 Cal.App.4th
1355, 1360 (Osumi).) “In making that determination, ‘the trial court acts as
the trier of fact, determining whether the parties entered into a valid and
binding settlement. [Citation.] Trial judges may consider oral testimony or
may determine the motion upon declarations alone. [Citation.] When the
same judge hears the settlement and the motion to enter judgment on the
settlement, he or she may consult his or her memory. [Citation]’ ” (Ibid.)
“A trial court’s factual findings on a motion to enforce a settlement
pursuant to section 664.6 are subject to limited appellate review and will not
be disturbed if supported by substantial evidence.” (Machado v. Myers (2019)
39 Cal.App.5th 779, 790-791 (Machado).) Where the resolution of a
section 664.6 motion raises questions of law, they are reviewed de novo. (Id.

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at p. 791; see Provost v. Regents of University of California (2011)
201 Cal.App.4th 1289, 1301 (Provost) [reviewing de novo whether the terms
of a settlement agreement were too uncertain to enforce].)
II.

The Trial Court’s Interpretation of the Settlement Agreement
Was Not Erroneous

Appellants challenge the trial court’s interpretation of the settlement
provisions governing the fate of the podocarpus tree. The trial court viewed
the agreement as “straight forward” and found it contained the following
pertinent provisions relating to the tree: “[the] arborist was to report on how
far [appellants’] Podocarpus tree could be trimmed and remain healthy.
[Citation.] . . . [I]f the tree could not be so trimmed, it would be removed and
replaced . . . .” Appellants dispute this interpretation and contend the trial
court’s statement during the settlement proceedings—“Why don’t we say
we’ll trim the tree to whatever amount the tree can handle and remain
healthy”—was a proposal of an alternative settlement term intended to
supersede the earlier terms relating to the tree. As a result, appellants
contend, the settlement agreement merely required them “to reduce the
height of the Podocarpus tree as low as the arborist said the tree could be
trimmed and remain healthy,” and did not require them to remove the tree.
Although appellants characterize these arguments as raising a
substantial evidence challenge to the trial court’s interpretation of the
settlement agreement, they do not actually dispute any underlying findings
of fact by the court. Instead, they argue the plain language of the settlement
transcript supports their interpretation of the agreement. Their challenge
thus presents issues of contract interpretation subject to de novo review.
(Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 810-811

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(Weddington) [“A settlement agreement is a contract, and the legal principles
which apply to contracts generally apply to settlement contracts.”]; accord
Estate of Thottam (2008) 165 Cal.App.4th 1331, 1340.) “ ‘When considering a
question of contractual interpretation, we apply the following rules. “A
contract must be so interpreted as to give effect to the mutual intention of the
parties as it existed at the time of contracting, so far as the same is
ascertainable and lawful.” [Citation.] “The language of a contract is to
govern its interpretation, if the language is clear and explicit, and does not
involve an absurdity.” [Citation.]’ ” (Horath v. Hess (2014) 225 Cal.App.4th
456, 463 (Horath).)
“ ‘When a dispute arises over the meaning of contract language, the
first question to be decided is whether the language is “reasonably
susceptible” to the interpretation urged by the party. If it is not, the case is
over. [Citation.] If the court decides the language is reasonably susceptible
to the interpretation urged, the court moves to the second question: what did
the parties intend the language to mean? [Citation.]’ ” (Horath, supra,
225 Cal.App.4th at p. 464.) “If a contract is susceptible to two different
reasonable interpretations, the contract is ambiguous.” (Ibid.) “ ‘A court
must then construe that ambiguous contract language ‘by applying the
standard rules of interpretation in order to give effect to the mutual intention
of the parties.’ ” (Ibid.) “On appeal, a ‘trial court’s ruling on the threshold
determination of “ambiguity” (i.e., whether the proffered evidence is relevant
to prove a meaning to which the language is reasonably susceptible) is a
question of law, not of fact. [Citation.] Thus[,] the threshold determination
of ambiguity is subject to independent review.’ ” (Ibid.)
Applying these principles, we reject appellants’ contention that the trial
court erred when it interpreted the settlement agreement as including the

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requirement that they trim the podocarpus to their highest roofline or else
remove the tree. Appellants have failed to overcome the threshold
requirement of demonstrating the settlement agreement is reasonably
susceptible to their interpretation.
The settlement transcript, which serves as the operative agreement
and which we therefore consider as a whole, does not support appellants’
interpretation of the agreement. (Civ. Code, § 1641 [“The whole of a contract
is to be taken together, so as to give effect to every part, if reasonably
practicable, each clause helping to interpret the other.”].) Earlier in the
proceedings, the court recited the following settlement terms relating to the
podocarpus:
“The Podocarpus tree on the Friedberg-Bunge property will be
trimmed to their roof line, that’s their highest roof line, if the
tree can handle it.

“Their arborist, Mr. [Safford], will prepare a proposal and
provide it to counsel, Mr. Prindle, who will then distribute it to
the plaintiffs, defendants, and anyone else who has an interest
and a request.

“The report will include how far the tree can be trimmed and
can handle it. Mr. [Safford] will also review the other trees on
the Friedberg-Bunge property and make a recommendation as
to their trimming.

“If the tree cannot be trimmed to an appropriate height, as an
alternate to the trimming of the Podocarpus tree, the
Podocarpus tree will be removed and replaced.

“The Singletons will contribute $50,000 to the removal and
replacement. SmartScape will contribute $10,000 to the
removal and replacement.”

The court made the statement at issue in this appeal during this
subsequent exchange with appellants’ counsel:

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 “THE COURT: Mr. Prindle, anything that you wanted to add
or clarify?

“MR. PRINDLE: One of the phrases about trimming the tree,
I think, was ‘if the tree can take it.’ Maybe we need to define
that a little bit more. Is that—I don’t want something to be so
vague.

“He’s going to have to decide whether it can be trimmed
without endangering the health or esthetics of the tree.

“THE COURT: Why don’t we say we’ll trim the tree to
whatever amount the tree can handle and remain healthy.

“Does that satisfy? It’s a proposal.

“MR. PRINDLE: Yeah. I guess we’re saying whatever degree
Mr. [Safford] thinks it can be trimmed to accommodate those
things.

“THE COURT: Right. Okay. Good.” (Italics added.)

Read in context, the court’s statement is not reasonably susceptible to
appellants’ contention that the court was proposing a new settlement term
intended to supersede the earlier provisions relating to the podocarpus tree.
First, the court was responding to appellants’ counsel’s stated concern that
“we need to define” the phrase “if the tree can take it,” since he did not want
a provision “to be so vague.” Although the words “if the tree can take it” are
slightly different from the court’s actual words, “if the tree can handle it,”
given that this was an oral proceeding, it is sufficiently clear he was referring
to the latter phrase. The court’s response to a request for a definition is most
readily taken as just that—an offer of a definition for an existing settlement
term—not a modification and replacement of a material component of the
parties’ agreement. Second, if either appellants’ counsel or the court had
meant to supersede, rather than clarify, the earlier provisions, we would
expect them to have said so, including by using words like “withdraw” or

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“supersede” that are commonly used for that purpose. (Civ. Code, § 1638
[“The language of a contract is to govern its interpretation, if the language is
clear and explicit, and does not involve an absurdity.”].) Nothing in the
words of this exchange indicates any such intent. Instead, the court’s
statement is reasonably susceptible to only one interpretation, namely that
the court intended to clarify what was meant by the requirement that the
tree would be trimmed if it could “handle it”—a determination that would be
based on whether the tree would “remain healthy” after being trimmed to the
highest roofline. This view is consistent with the interpretation adopted by
the trial court.
Appellants point out that after reciting the terms of the settlement, the
court asked: “Ms. Bunge and Mr. Friedberg, did you hear the terms of the
agreement cited by me with the clarifications made by counsel?” They
apparently regard the italicized words as an indication the court’s exchange
with their counsel was intended to supersede, rather than clarify, the terms
relating to the podocarpus tree. However, the court’s use of the word
“clarifications” only supports the conclusion appellants are trying to avoid,
namely that the exchange with their counsel merely resulted in a
clarification, not a replacement, of the earlier provisions relating to the tree.
Appellants also argue that since the settlement agreement required
other vegetation on their property to be trimmed based on the
recommendation of the arborist, the same trimming standard must also have
applied to the podocarpus tree. Yet the settlement agreement was structured
to address the trimming requirements for the podocarpus separately from the
requirements for appellants’ other vegetation, which suggests the parties
intended different standards to apply to each. Appellants make a related,
equally unsupported argument that there is “no evidence” the parties agreed

16
to give the arborist the power to determine the fate of the tree. Yet the
record shows the parties gave the arborist precisely this authority when they
expressly agreed his opinion would determine the degree to which the tree
could be trimmed.
Next, appellants claim the trial court must have meant to replace the
earlier provisions relating to the podocarpus, because, they maintain, the
earlier provisions contained uncertain terms (namely, “highest roofline” and
“appropriate height”) or were missing material terms. However, none of
these purported deficiencies was raised by their attorney at the time of the
settlement. Instead, the only uncertainty appellants’ counsel identified, and
the only uncertainty the court was attempting to address in providing its
clarification, was the potential ambiguity in the phrase “handle it.” Nothing
in the record supports appellants’ position that the court was attempting to
address any other concerns, including the ones they raise here. Moreover,
their claims of uncertainty and omitted material terms are meritless, as we
discuss in section III, post.
Finally, as an additional basis for rejecting appellants’ challenge, we
note that if their interpretation were adopted, it would render parts of the
settlement agreement superfluous. “A contract term should not be construed
to render some of its provisions meaningless or irrelevant.” (Estate of
Petersen (1994) 28 Cal.App.4th 1742, 1753, fn. 4.) “We must give significance
to every word of a contract, when possible, and avoid an interpretation that
renders a word surplusage.” (In re Tobacco Cases I (2010) 186 Cal.App.4th
42, 49.) If the court intended to eliminate any possibility of removing the
podocarpus as appellants contend, then the terms under which the Singletons
were to contribute $50,000, and Smartscape $10,000, to the removal and
replacement of the tree, would never take effect. Appellants try to avoid this

17
problem by asserting that these contingencies were also superseded. We
reject this assertion because it is not supported by the transcript.
In sum, because appellants have failed to demonstrate that the court’s
mid-proceeding statement is reasonably susceptible to their interpretation
that it was intended to supersede, rather than clarify, the earlier provisions
relating to trimming or removal of the tree, we find no ambiguity in the
settlement agreement and conclude it was correctly interpreted by the trial
court.
III.

The Settlement Provisions Governing the Podocarpus Tree
Were Not Unenforceable

Appellants appear to contend that the settlement agreement, as
interpreted by the trial court, was unenforceable because the terms “highest
roofline” and “appropriate height” are uncertain, and because it omitted
material terms.
Appellants forfeited these arguments because they failed to raise them
in the trial court. “ ‘New theories of defense, just like new theories of
liability, may not be asserted for the first time on appeal.’ ” (Nellie Gail
Ranch Owners Assn. v. McMullin (2016) 4 Cal.App.5th 982, 997.)
Even if appellants had properly preserved these arguments, we would
reject them. “A settlement is enforceable so long as it is ‘sufficiently certain
to make the precise act which is to be done clearly ascertainable.’ ” (Provost,
supra, 201 Cal.App.4th at p. 1301, quoting Civ. Code, § 3390, subd. (5).)
There is nothing ambiguous about the phrase “highest roofline.” A “roofline”
is simply “the outline of a rooftop” (Random House Unabridged Dict. (2d ed.
1993) p. 1670), and the “highest” roofline would be the one that stands above
the rest. (Appellants apparently have more than one roof.) This is a natural

18
reference point for trimming the tree to restore the Singletons’ view, since it
would lower the tree to the level where it no longer blocked their line of sight.
To the extent appellants argue the agreement was uncertain because it failed
to specify which of their rooflines was the highest one, their argument
ignores the principle “[t]hat is certain which can be made certain.”
(Civ. Code, § 3538; see Otey v. Carmel Sanitary Dist. (1933) 219 Cal. 310, 313
[holding the failure to fix the “ordinary high water mark” referenced in a
judgment did not render it uncertain, since the ordinary high water mark
was readily ascertainable at any time].) Here, it was not necessary to define
which of appellants’ rooflines was the highest, because this was an objective
matter that could be readily ascertained.
While appellants point out that following the settlement, the parties
were not able to agree on appellants’ “highest roofline,” this postsettlement

dispute is not an indication the term was uncertain.8 Extrinsic evidence is

8 Moreover, appellants contributed to the dispute by claiming a rooftop
antenna qualified as their “highest roofline,” a position they arrived at by
relying on City of San Diego Technical Bulletin BLDG-5-4. This technical
bulletin had no conceivable relevance to the interpretation of the settlement
agreement. Its stated purpose was to “illustrate how building height is
determined for buildings and structures in the Coastal Height Limitation
Overlay Zone,” a circumscribed coastal area in which the height limit for
buildings and structures, defined to include antennas, is 30 feet. (City of San
Diego Technical Bulletin BLDG-5-4, §§ I, II.B.) The settlement phrase
“highest roofline” was intended to create a reference point for the height of a
tree, not a building. Moreover, nothing in the record indicates the parties
agreed the technical bulletin would govern the determination of appellants’
“highest roofline.” (Medical Staff of Doctors Medical Center in Modesto v.
Kamil (2005) 132 Cal.App.4th 679, 683 [“The words of the contract are given
their ordinary and popular meaning unless used by the parties in a technical
sense.”].) Thus, appellants’ postsettlement dispute regarding the meaning of
“highest roofline,” even if it were relevant, would not be persuasive evidence
of the agreement’s uncertainty.

19
admissible to explain an ambiguity, not to create one. (Weber v. Dobyns
(1961) 193 Cal.App.2d 402, 406; Associated Lathing & Plastering Co. v. Louis
C. Dunn, Inc. (1955) 135 Cal.App.2d 40, 46.)
As for the words “appropriate height,” although they might seem vague
in the abstract, in context (“[i]f the tree cannot be trimmed to an appropriate
height”), they were a clear reference to appellants’ highest roofline—the
height to which the podocarpus tree was to be reduced. (Civ. Code, § 1641.)
Accordingly, this term was not uncertain.
Appellants also appear to argue the settlement agreement was
unenforceable because it was missing material terms, such as “who would
decide on the ‘appropriate height’ or the ‘highest roofline’ to which the tree
would be trimmed,” a process for objecting to the arborist’s recommendation,
a timeline for raising objections, and a procedure for resolving disputes over
the arborist’s recommendation.
This, too, is a meritless position. Nothing in the record indicates any of
these purportedly missing terms were important to the parties at the time of
settlement. (See Weddington, supra, 60 Cal.App.4th at pp. 799, 815 [finding
a licensing agreement was material to the parties’ settlement where their
settlement memorandum required them to “formalize a Licensing
Agreement” and the evidence demonstrated the critical importance of the
licensing agreement to all sides].) Moreover, “[i]t is well settled that an
agreement definite in its essential elements is not rendered unenforceable by
reason of uncertainty in some minor, nonessential detail.” (1 Witkin,
Summary of Cal. Law (11th ed. 2017) Contracts, § 146, p. 186.) At most, the
alleged omissions are “not material contract terms but details adjunct to the
substance of the agreement.” (Provost, supra, 201 Cal.App.4th at p. 1302
[where stipulated settlement required human resources to respond to

20
prospective employers’ requests with an agreed-upon neutral response,
absence of provisions in the contract specifying who in human resources
would handle inquiries or how all references would be handled were not
material terms].) Accordingly, the omission of these details did not render
the settlement agreement unenforceable.
IV.
Appellants’ “Meeting of the Minds” Argument Fails
Appellants contend that since they had a different understanding of the
settlement agreement than the Singletons, there was “never a meeting of the
minds and no enforceable agreement was reached.”
Appellants have forfeited this issue by raising it for the first time in
their reply brief without demonstrating good cause for failing to raise it
sooner. (See American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446,
1453 [“Points raised for the first time in a reply brief will ordinarily not be
considered, because such consideration would deprive the respondent of an
opportunity to counter the argument.”]; accord, Shade Foods, Inc. v.
Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 894,

fn. 10.)9
Moreover, appellants’ position lacks merit because it is based on the
mistaken notion that contract formation requires a subjective “meeting of the
minds.” “California recognizes the objective theory of contracts [citation],
under which ‘[i]t is the objective intent, as evidenced by the words of the
contract, rather than the subjective intent of one of the parties, that controls

9 We construe this “meeting of the minds” argument to be separate from
appellants’ contention that the settlement agreement was unenforceable
because some terms lacked certainty. Regardless of whether they were
intended to be separate arguments, or variations on the same claim, we find
appellants’ contentions unpersuasive and reject them.

21
interpretation’ [citation].” (Founding Members of the Newport Beach Country
Club v. Newport Beach Country Club, Inc. (2003) 109 Cal.App.4th 944, 956.)
“The parties’ undisclosed intent or understanding is irrelevant to contract
interpretation.” (Ibid.; see Blumenfeld v. R. H. Macy & Co. (1979)
92 Cal.App.3d 38, 46 [“Under the objective test of contract formation, a
‘meeting of the minds’ is unnecessary. A party is bound, even if he
misunderstood the terms of a contract and actually had a different,
undisclosed intention.”]; Beard v. Goodrich (2003) 110 Cal.App.4th 1031,
1039-1040 [rejecting plaintiff’s “ ‘no meeting of the minds’ ” argument
because it was based on plaintiff’s “subjective intent”].) Thus, appellants’
undisclosed belief that the settlement merely required them to trim their
podocarpus, not to remove it, is irrelevant to the question of whether an
enforceable contract was formed.
It is true that unilateral mistake may serve as a basis for rescission.
(Civ. Code, §§ 1577, 1578, 1689, subd. (b)(1).) Here, appellants claim that
they were unilaterally mistaken as to the true meaning of the settlement
agreement, which is, “at most,” a mistake of law. (Hedging Concepts, Inc. v.
First Alliance Mortgage Co. (1996) 41 Cal.App.4th 1410, 1421.) However, a
unilateral mistake of law is a basis for rescission “only when 1) all parties
think they know and understand the law but all are mistaken in the same
way, or 2) when one side misunderstands the law at the time of contract and
the other side knows it, but does not rectify that misunderstanding.” (Ibid.)
Appellants do not contend, and the record does not reflect, that either of these
circumstances existed. To the contrary, the exhibits submitted with the
Singletons’ motion to enforce, particularly appellants’ counsel’s August 8,
2018 letter and October 11, 2018 e-mail, undermine any contention that
appellants misunderstood the settlement agreement. Instead, these

22
communications reflect a consistent understanding that appellants were
required to remove the podocarpus if they could not trim it to their highest
roofline.
V.
The Trial Court’s Order Was Supported by Substantial Evidence
Appellants raise two challenges to the trial court’s factual findings in
support of its decision to order removal of the tree. First, they argue that
once the trial court rejected the arborist’s opinion that the tree could not be
trimmed further and remain healthy, it lacked any evidence to support its
determination that they were obligated to remove the tree. Second, they
object to the court’s implied finding that the apex of their gazebo qualified as
their “highest roofline.”
As noted ante, the trial court’s factual findings on a motion to enforce a
settlement agreement are reviewed for substantial evidence. (Machado,
supra, 39 Cal.App.5th at p. 790.) “Consistent with the venerable substantial
evidence standard of review, and with our policy favoring settlements, we
resolve all evidentiary conflicts and draw all reasonable inferences to support
the trial court’s finding that these parties entered into an enforceable
settlement agreement and its order enforcing that agreement.” (Osumi,
supra, 151 Cal.App.4th at p. 1360.) Appellants’ first challenge is based on
the following findings in the trial court’s minute order:
“The arborist’s report does not demonstrate that trimming it
to the roofline would compromise the health of the tree.
Instead, Mr. Safford says lowering the canopy to the agreed-
upon height would ‘surely result in decay at the point where
new growth would sprout’ and compromise the health of the
tree. Mr. Safford did not state that the required trimming
would kill or substantially injure the tree. However, since
Friedberg/Bunge are apparently of the view that the tree

23
 cannot be reduced to the agreed-upon height, it must be
removed and replaced.”

Appellants argue the trial court erred when it construed the arborist’s
opinion as failing to demonstrate the tree would not “remain healthy” within
the meaning of the settlement agreement if it were trimmed further. Having
adopted this view of the arborist’s report, appellants contend, the court erred
when it nevertheless ordered them to remove and replace the tree.
We agree there are some ambiguities in the trial court’s reasoning on
this issue. “A condition precedent is one which is to be performed before
some right dependent thereon accrues, or some act dependent thereon is
performed.” (Civ. Code, § 1436.) “ ‘The existence of a condition precedent
normally depends upon the intent of the parties as determined from the
words they have employed in the contract.’ ” (Pfeifer v. Countrywide Home
Loans, Inc. (2012) 211 Cal.App.4th 1250, 1267.) Here, the removal of the
podocarpus tree was conditioned on the arborist’s determination that it could
not “be trimmed [to appellants’ highest roofline] and remain healthy.” The
court may have construed appellants’ argument as a concession that the
condition precedent to the tree’s removal was satisfied, or as a waiver of the
condition. (See Storek & Storek, Inc. v. Citicorp Real Estate, Inc. (2002)
100 Cal.App.4th 44, 58, fn. 11 [party may waive a condition precedent to
performance under a contract].) On the other hand, if the court read the
arborist’s report as failing to show the tree could not withstand more
trimming, the court lacked a contractual basis for ordering removal of the
tree; the court should instead have enforced the agreement by ordering
further trimming to the highest roofline.
Regardless, we uphold the court’s decision because substantial evidence
supported its finding that the condition precedent to the removal of the tree
had been met. In reviewing for substantial evidence, we consider all
24
reasonable inferences and resolve them in favor of the court’s order enforcing
the settlement. (Osumi, supra, 151 Cal.App.4th at p. 1360.) Moreover, “ ‘[w]e
uphold judgments if they are correct for any reason, “regardless of the
correctness of the grounds upon which the court reached its conclusion.”
[Citation.] “It is judicial action and not judicial reasoning which is the
subject of review . . . .” ’ ” (In re Jonathan B. (1992) 5 Cal.App.4th 873, 876.)
As appellants correctly note, this aspect of the court’s decision
depended entirely on the arborist’s July 11, 2018 report. Thus, there was no
conflicting evidence; there were merely conflicting inferences drawn from the
same document, namely the trial court’s view that the report did not
demonstrate further trimming would substantially injure the tree, and
appellants’ contention that it did. (At the time, appellants were claiming this
counseled against any further trimming of the tree.) When reviewing for
substantial evidence, “all reasonable inferences from the evidence (all
conflicts already having been properly resolved) must be drawn in favor of
the prevailing party.” (Le v. Pham (2010) 180 Cal.App.4th 1201, 1205-1206.)
The arborist’s report stated that “[t]o reduce the canopy to the level of the
apex of the gazebo would seriously degrade the health and dignity of this
tree.” (Italics added.) This language can reasonably be interpreted to mean
that trimming the tree to the apex of appellants’ gazebo would substantially

injure the tree.10 Because the arborist’s report supports the reasonable
inference the tree would not “remain healthy” if trimmed further, the report

10 The trial court characterized the settlement term “remain healthy” to
mean the tree would not be killed or substantially injured. Appellants
dispute the court’s view that “remain healthy” meant the tree would not be
killed by the trimming. However, they do not dispute that the tree would
“remain healthy” if it was not substantially injured by the trimming.

25
was substantial evidence supporting the court’s finding that the condition
precedent to removal of the tree had been satisfied.
Appellants make a related argument, namely that the court erred when
it refused to consider their arborist’s supplemental declaration. However,
appellants offered this evidence to show further trimming of the podocarpus
would “risk the survivability of the tree.” If accepted, the supplemental
declaration would merely have served as additional support for the court’s
finding that the tree could not be trimmed further and had to be removed.
Thus, any perceived error in rejecting it was harmless. (§ 475 [“No judgment,
decision, or decree shall be reversed or affected by reason of any error, ruling,
instruction, or defect, unless it shall appear from the record that such error,
ruling, instruction, or defect was prejudicial . . . .”]; see Zhou v. Unisource
Worldwide (2007) 157 Cal.App.4th 1471, 1480 [“The trial court’s error in
excluding evidence is grounds for reversing a judgment only if the party
appealing demonstrates a ‘miscarriage of justice’—that is, that a different
result would have been probable if the error had not occurred.”].)
Finally, appellants contend there was insufficient support for the
court’s finding that the apex of their gazebo was the “agreed-upon height” to
which the tree needed to be trimmed. This is another forfeited position; not
only did appellants fail to assert it in the trial court, they effectively conceded
it, writing in their opposition to the Singletons’ motion to enforce that the
report showed “trimming to the roof line would jeopardize the tree’s health”
and, in the same brief, referring to the apex of their gazebo as “Defendants’

26
[i.e., appellants’] roofline.” In other words, appellants used the apex of the

gazebo as the reference point for the highest roofline on their property.11
Moreover, substantial evidence supported the court’s determination
that the apex of appellants’ gazebo was their highest roofline, the “agreed-
upon height” to which the tree needed to be reduced. “ ‘[S]ubstantial
evidence includes circumstantial evidence and the reasonable inferences
flowing therefrom.’ ” (Roy v. Superior Court (2011) 198 Cal.App.4th 1337,
1349.) The arborist’s report was addressed to Friedberg; was dated July 17,
2018, the deadline in the settlement agreement; and began with the
statement, “[t]his brief report and proposal follows the inspection of your
large Podocarpus gracilior that you requested I make to consider reducing its
height to accommodate your neighbor’s view.” These details indicate the
arborist’s reliance on the apex of appellants’ gazebo was not arbitrary, but
rather had a rational connection to the settlement requirement to reduce the
tree to appellants’ highest roofline. Appellants moved forward and had the
tree trimmed based on the arborist’s recommendation, an indication they
thought he had identified the correct roofline within the meaning of the

settlement agreement.12

11 Appellants’ counsel similarly acknowledged that the apex of the gazebo
was the relevant benchmark during the March 1 hearing. Counsel stated,
“we read [the arborist’s] report”—which specifically referred to the apex of
the gazebo—“to say that the health and dignity [of the tree] are going to be
impaired if you trim it to the roofline.”
12 Although appellants later took the position that a rooftop antenna
qualified as their “highest roofline,” this was not a legitimate interpretation
of the settlement agreement. (Ante, fn. 8.) Similarly, the fact that the
Singletons at one point argued for a lower roofline than the apex of the
gazebo does not demonstrate the trial court’s interpretation of the agreement
was erroneous.

27
 In sum, the factual findings in support of the court’s determination that
the settlement agreement required appellants to remove the podocarpus tree
were supported by substantial evidence.
DISPOSITION
The trial court’s March 22, 2019 minute order is affirmed. Respondents
are entitled to their costs on appeal.

GUERRERO, J.

WE CONCUR:

BENKE, Acting P. J.

HALLER, J.

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