State v. Ctr. Point

Full title: THE STATE OF CALIFORNIA, acting by and through the HIGH-SPEED RAIL…

Court: California Court of Appeals, Fifth District

Date published: Feb 23, 2023

No. F080961 (Cal. Ct. App. Feb. 23, 2023)

Opinion

F080961

02-23-2023

THE STATE OF CALIFORNIA, acting by and through the HIGH-SPEED RAIL AUTHORITY, Plaintiff and Respondent, v. CENTER POINT, LLC, Defendant and Appellant.

Wanger Jones Helsley, Oliver W. Wanger, Jay A. Christofferson and Benjamin C. West for Defendant and Appellant. Erin E. Holbrook, Chief Counsel, G. Michael Harrington, Deputy Chief Counsel, Lucille Y. Baca and Samuel Law, Assistant Chief Counsel, Jeffrey A. Wilcox, Stacy J. Lau and Deborah L. Goodman, Deputy Attorneys, for Plaintiff and Respondent.

MEEHAN, J.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

APPEAL from a judgment of the Superior Court of Madera County Super. Ct. No. MCV072655, James E. Oakley, Judge.

Wanger Jones Helsley, Oliver W. Wanger, Jay A. Christofferson and Benjamin C. West for Defendant and Appellant.

Erin E. Holbrook, Chief Counsel, G. Michael Harrington, Deputy Chief Counsel, Lucille Y. Baca and Samuel Law, Assistant Chief Counsel, Jeffrey A. Wilcox, Stacy J. Lau and Deborah L. Goodman, Deputy Attorneys, for Plaintiff and Respondent.

OPINION

MEEHAN, J.

INTRODUCTION

After settling eminent domain proceedings brought by the State Public Works Board (State) against Center Point, LLC (Center Point) related to the California HighSpeed Rail (HSR) project, the parties requested the trial court enter a stipulated judgment, which reserved to the trial court jurisdiction under Code of Civil Procedure section 664.6 to enforce the stipulated judgment until its terms had been performed in full.¹

1 All statutory references are to the Code of Civil Procedure, unless otherwise indicated.

Approximately five months after it was entered, Center Point filed a motion to enforce the stipulated judgment on grounds State had breached its performance obligations. The motion remained pending for approximately 18 months while the parties worked to resolve their disputes. When the motion was heard in January 2020, the parties had resolved all but two issues. The trial court interpreted the terms of the stipulated judgment, concluded State had not been shown to have breached the terms, and denied Center Point's motion.

On appeal, Center Point contends the trial court failed to properly interpret the stipulated judgment's provision 6A² regarding a 35-foot wide easement to which State had promised to give Center Point access, but could deliver only a 20-foot wide easement. Center Point also argues there was no evidence to support the trial court's finding as to State's compliance with provision 6D requiring State to use its best efforts to relocate a railway traction power station (TPS). At oral argument, State asserted for the first time this court lacks jurisdiction over the appeal because the underlying judgment is a consent judgment that is not appealable under section 904.1, subdivision (a)(1) (section 904.1(a)(1) or § 904.1(a)(1)) and, thus, the court's postjudgment order here is not appealable under section 904.1, subdivision (a)(2) (section 904.1(a)(2) or § 904.1(a)(2)).

2 Further references to provisions are to provisions in the parties' stipulated judgment, unless otherwise indicated.

Center Point has a right to appeal the trial court's postjudgment order under section 904.1(a)(2), which supplies this court with subject matter jurisdiction. Neither the general rule against the appealability of consent judgments or Center Point's waiver of the right to appeal the judgment precludes appellate review under the circumstances here. As for Center Point's contentions of error, we conclude the trial court's interpretation of provision 6A was correct, and State's provision of access to a 20-foot wide easement fulfilled its obligations under that provision. Further, under our de novo construction of provision 6D, we conclude the evidence does not compel a factual finding, as a matter of law, that State failed to use its best efforts to relocate the TPS. For the reasons stated below, we affirm.

BACKGROUND

I. The Underlying Eminent Domain Actions

This appeal arises from the settlement of two consolidated eminent domain actions filed by State against Center Point. In general terms, these eminent domain actions sought the acquisition of approximately 24 acres from Center Point's 633 acres in Madera County for the HSR managed by the High-Speed Rail Authority (HSRA). The approximate 24 acres needed to construct a rail corridor through this area for the HSR had the effect of splitting Center Point's parcels to the north and south of Avenue 11 in Madera County. In addition, construction of the rail corridor through the southwest corner of Center Point's land would separate a 3.79-acre remnant parcel (remnant parcel) from Center Point's other remaining land, which State was required to purchase pursuant to Government Code section 7267.7, subdivision (a).³

3 Pursuant to this statute, in public condemnation actions, if the acquisition of only a portion of a property would leave the remaining portion in such shape or condition as to constitute an uneconomic remnant, the public entity shall offer to acquire the entire property if the owner so desires. (Gov. Code, § 7267.7, subd. (a).)

State originally made a probable compensation deposit of $3,149,000 for the taking, and made a deposit of this amount with the court. This valuation was based on Center Point's use of the property as agricultural land-specifically, almond orchards. Center Point, however, asserted it had already invested millions of dollars to develop the land as a 600-plus acre industrial port, the value and feasibility of which depended on access to Highway 99 and freight rail lines. According to Center Point, because the HSRA's acquisition corridor split Center Point's parcels in a manner that interfered with access to rail lines to the east and access to the highway to the west and substantially reduced the useable size of the remaining parcels, Center Point's industrial port project was a total loss. Center Point provided expert testimony the land and Center Point's damages from the taking totaled over $70 million. On August 16, 2017, upon motion and after an evidentiary hearing, the trial court redetermined the total probable compensation for the property to be $9,000,000, and State deposited the requisite additional sum. Meanwhile, in May 2017, State was granted an order for immediate possession of the acquisition area at issue in the consolidated actions.

II. March 14, 2018, Stipulated Judgment

After continued litigation, the parties appeared for a mandatory settlement conference on February 22 and March 1, 2018. On March 1, 2018, believing they had reached a settlement, the parties attempted to place the terms of their agreement on the record, but they discovered there was not full consensus about the remnant parcel and certain other items. The parties reconvened in the hallway outside the courtroom to discuss the issues, managed to resolve them, and returned to the courtroom to recite the general terms of the settlement on the record with an understanding they would subsequently execute a more detailed and written stipulated judgment.

Center Point's counsel gave the following recitation of the terms: "The State will pay Center Point $36 million. Center Point will remain in possession of a remnant [assessor parcel number] ... MF20914-01-02. The State will provide access to that certain parcel remnant. There will be a sleeve for water that will be conveyed under the right-of-way to that remnant to be placed by the State. There will be a sleeve for electrical utilities on the northern parcel to be placed by the State. The State will use best efforts to move a traction station on the property to the lowest point on a triangle located on the Center Point Property. [|¶ The-all parties will execute a stipulated judgment to resolve the litigation, and this settlement would resolve all claims against the State ._"⁴The parties requested the court retain jurisdiction under section 664.6 to enforce the agreement to the extent that it was adopted by State.

4 State's counsel and its representative agreed to these terms as recited, with the exception of the remnant parcel number, which was 0914-01-01, and noted the agreement was contingent upon State's approval.

On March 14, 2018, the parties filed a stipulated judgment whereby State would pay $36 million to Center Point in exchange for approximately 24 acres of Center Point's land needed for HSR's rail corridor. The agreement also included several nonmonetary terms, including Center Point's retention of the remnant parcel, which would be separated from the rest of Center Point's property by the HSR's rail corridor, with provisions for Center Point's physical access to the remnant, water and electricity to the remnant, and an agreement the parties would use their "best efforts" to relocate HSRA's planned TPS to a different location. Additionally, the stipulation contained a jurisdiction clause providing the court would retain jurisdiction over the parties to enforce the terms under section 664.6. The stipulated judgment was signed and entered by the court on March 15, 2018.

Within weeks of the stipulated judgment, however, issues arose regarding all four of its special nonmonetary provisions. In August 2018, Center Point filed a motion to enforce the stipulated judgment under section 664.6, but the hearing on the motion was continued multiple times while the court encouraged the parties to resolve their dispute. In July and August 2019, the parties filed supplemental briefs and declarations indicating there was still work to be done, and the hearing was continued again. The parties completed a second round of supplemental briefing with additional supporting declarations in December 2019 and January 2020, and two hearings on the motion were subsequently held on January 10 and January 24, 2020.

At the January 10, 2020, hearing, the remaining issues between the parties centered on special provision 6A and the easement State was to provide to the remnant parcel and on special provision 6D regarding the relocation of the TPS. The parties presented argument and agreed the matters could be submitted to the court for decision with additional briefing and/or an evidentiary hearing if required based on the trial court's consideration of the issues.

At a second hearing on January 24, 2020, the court provided the parties with a tentative ruling in favor of State on both issues, the parties made additional arguments, and the motion was submitted for a decision. On February 5, 2020, the court issued an order denying Center Point's motion to enforce the stipulated judgment, finding State had fully complied with provisions 6A and 6D. This appeal followed.

DISCUSSION

Raised for the first time at oral argument, State contends there is no right to appeal the postjudgment order at issue under section 904.1(a)(2). As this argument implicates our jurisdiction over the appeal, we permitted the parties to file additional supplemental briefs on this issue and we consider it notwithstanding the timing of State's contention. (See Long Beach Unified Sch. Dist. v. State of California (1990) 225 Cal.App.3d 155, 177 [contention that any tribunal lacks subject matter jurisdiction can be raised at any time].)

I. Appealability of Postjudgment Order After Stipulated Judgment A. Right to Appeal Pursuant to Section 904.1

The right to appeal in California is wholly governed by statute and appellate courts have no jurisdiction to entertain appeals except as provided by the Legislature. (In re Marriage of Loya (1987) 189 Cal.App.3d 1636, 1638; Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696 ["A trial court's order is appealable when it is made so by statute."] (Griset); see Smith v. Smith (2012) 208 Cal.App.4th 1074, 1083 ["In the absence of a statute authorizing an appeal, we lack jurisdiction to review a case ...."].)

Section 904.1 is the "primary statute" addressing the appealability of judgments and orders in civil actions. (Smith v. Smith, supra, 208 Cal.App.4th at p. 1083.) Under section 904.1, "An appeal, other than in a limited civil case, . may be taken . [¶] (1) [f]rom a judgment, except an interlocutory judgment"; and (2) "[f]rom an order made after a judgment made appealable by paragraph (1)." (§ 904.1(a)(1)-(2).) As section 904.1(a) allows appeal "'[f]rom a judgment, except . an interlocutory judgment'" it effectively codifies the one final judgment rule. (Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 740-741.) A judgment is final (and not interlocutory) when it is a final determination of the rights of the parties. (Griset, supra, 25 Cal.4th at p. 698.) In eminent domain proceedings, a judgment "means the judgment determining the right to take the property by eminent domain and fixing the amount of compensation to be paid by the plaintiff" (§ 1235.130), and a "'[f]inal judgment'" is statutorily defined as "a judgment with respect to which all possibility of direct attack by way of appeal, motion for a new trial, or motion under Section 663 to vacate the judgment has been exhausted." (§ 1235.120.)

B. Section 664.6

Section 664.6, subdivision (a), provides that "[i]f 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."

With respect to appellate jurisdiction over appeals related to judgments and orders entered under section 664.6, one procedural posture includes an appeal taken from a trial court's entry of judgment based on a party's motion to enforce a settlement. For example, parties may choose to settle pending litigation and agree to dismiss the case, but defer entry of judgment; in doing so, the parties may indicate under section 664.6, subdivision (a), that the court is to retain jurisdiction to enforce the settlement until performance of the settlement terms is accomplished in full. After settlement in such a case, either of the parties may bring a motion under section 664.6 to enforce the settlement and request that the court enter judgment pursuant to the settlement's terms. In this posture, if the court grants the motion and enters judgment, the judgment is appealable under section 904.1(a)(1) so long as the judgment finally determined the rights of the parties in the action. (Hines v. Lukes (2008) 167 Cal.App.4th 1174, 1183.) On the other hand, if the court denies the motion to enter judgment pursuant to the terms of the settlement, that order is ordinarily not appealable under section 904.1(a)(1) since no judgment was entered and there are, therefore, issues left for consideration in the trial court. (Doran v. Magan (1999) 76 Cal.App.4th 1287, 1293-1294 [this order denying entry of judgment under § 664.6 is "perhaps most akin" to a nonappealable order denying summary judgment].)

A slightly different posture arises when parties settle pending litigation in the requisite manner under section 664.6 and request that the trial court enter a stipulated judgment that states the terms of the settlement and reserves the trial court's jurisdiction to enforce the settlement under section 664.6 until its terms are performed in full. (See Ironridge Global IV, Ltd. v. ScripsAmerica, Inc. (2015) 238 Cal.App.4th 259, 262-263 [after settlement, parties consented to entry of judgment reserving jurisdiction under § 664.6 to enforce the settlement as recited in the judgment until its terms were performed in full].) In this second scenario, if a party subsequently files a motion seeking to enforce the settlement as stated in the stipulated judgment under section 664.6, and the trial court denies the motion, a judgment exists that may be deemed final as required under section 904.1(a)(1) (unlike in the first scenario described ante) as well as a postjudgment order (under § 904.1(a)(2)) made after a judgment made appealable under section 904.1(a)(1). (See Bernardi v. City Council (1997) 54 Cal.App.4th 426, 433-434 &fn. 9 [appellate court had jurisdiction under § 904.1(a)(2) to review appeal from postjudgment order denying motion to modify a stipulated judgment].)

Center Point's appeal arises in this second posture: the parties settled the case in the requisite manner under section 664.6, they stipulated to the entry of judgment that incorporates the terms of their settlement, the stipulated judgment retains the trial court's jurisdiction under section 664.6 to enforce the terms of the settlement, and the trial court subsequently issued an order denying Center Point's motion to enforce the judgment under section 664.6. The jurisdictional question raised by State is whether this postjudgment order denying relief under section 664.6 is an appealable postjudgment order under section 904.1(a)(2).

C. Analysis

Relying on City of Gardena v. Rikuo Corp. (2011) 192 Cal.App.4th 595 (Gardena) and Howeth v. Coffelt (2017) 18 Cal.App.5th 126, 131 (Howeth), State argues that because the underlying judgment was entered by stipulation, and stipulated judgments are ordinarily nonappealable, a stipulated judgment is not an appealable judgment within the meaning of section 904.1(a)(1). By extension, State maintains, a subsequent order made after a stipulated judgment, such as the order denying Center Point's motion to enforce, is not an appealable postjudgment order under section 904.1(a)(2).

A consent judgment (or a stipulated judgment) is "a judgment entered by a court under the authority of, and in accordance with, the contractual agreement of the parties [citation], intended to settle their dispute fully and finally [citation]." (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 400 (Norgart).) As explained in the high court's decision in Mecham v. McKay (1869) 37 Cal. 154 (Mecham), a consent judgment is generally not appealable based "on the theory that by consenting to the judgment or order the party expressly waives all objection to it, and cannot be allowed afterwards, on appeal, to question its propriety, because by consenting to it he has abandoned all opposition or exception to it." (Id. at pp. 158-159.) The rule "is to be limited to cases wherein it does not appear from the record that the consent was given only pro forma to facilitate an appeal, and with the understanding on both sides that the party did not thereby intend to abandon his right to be heard on the appeal in opposition to the judgment or order." (Id. at p. 159.)

This "'rule'" of nonappealability of a stipulated judgment, however, is not jurisdictional in nature and does not undercut the court's jurisdiction under section 904.1(a). (Norgart, supra, 21 Cal.4th at pp. 399-400.) In Norgart, a critical disputed issue was the date of accrual of the plaintiffs' wrongful death cause of action under the discovery rule for purposes of the statute of limitations. (Id. at p. 402.) The plaintiffs consented to entry of summary judgment in favor of the defendant following an adverse determination regarding the discovery rule issue by the Court of Appeal in another case, a ruling that appeared dispositive of the defendant's motion for summary judgment. (Id. at p. 393.) The plaintiffs appealed, the Court of Appeal reversed the trial court's entry of summary judgment, and our high court granted review. (Id. at p. 394.)

At oral argument, the high court called into question whether the judgment was properly appealed. (Norgart, supra, 21 Cal.4th at p. 399.) In its decision, the court explained its questions of appealability did not "go to such fundamental issues as whether the [plaintiffs] were aggrieved parties or whether the Court of Appeal had appellate jurisdiction. For it is plain that [they] were such parties, since they had an 'interest recognized by law in the subject matter of the judgment, which interest [was] injuriously affected' thereby [citation], and that [the appellate court] had such jurisdiction, since it had before it a judgment that a statute (Code Civ. Proc., § 904.1, subd. (a)(1)) made appealable [citation]." (Ibid.) Rather, the questions were whether the superior court's judgment was nonappealable under the rule in Mecham because it had been consented to and whether the doctrine of invited error barred the plaintiffs' appeal. After answering both questions in the negative, the court proceeded to consider the merits of the appeal.

State relies on Gardena, which appears to hold that under Mecham's general rule, a consent judgment is not a judgment that may be appealed under section 904.1(a)(1). (Gardena, supra, 192 Cal.App.4th at p. 601.) Gardena involved an eminent domain action filed by the city against the defendant. (Id. at p. 598.) Following mediation, the parties settled the action; pursuant to their stipulation, the court entered a judgment and final order of condemnation and retained jurisdiction (without specifying any procedural mechanism to do so) to determine the costs of ongoing remediation. (Id. at pp. 598-599.) Two orders regarding mediation costs were entered after the judgment in favor of the city. (Id. at p. 599.) The defendant appealed those orders arguing they were appealable under section 904.1(a)(2). (Gardena, supra, at p. 599.) The appellate court reasoned that when a consent judgment is not appealable under the Mecham rule, it is not a judgment under section 904.1(a)(1) that may be appealed. (Gardena, supra, at pp. 600-601.) Therefore, the court concluded, orders following a nonappealable judgment are not appealable under section 904.1(a)(2). (Gardena, supra, at p. 601.)

The court in Howeth cited and followed Gardena for this proposition. (Howeth, supra, 18 Cal.App.5th at pp. 130-131.) In Howeth, neighbors had a dispute over a shared driveway easement. (Id. at p. 128.) A lawsuit was filed, and the parties subsequently reached a settlement agreement that included a stipulation to entry of judgment. (Ibid.) The agreement purported to allow the parties to seek fines in court if the other neighbor refused to comply with the agreement. (Ibid.) When one neighbor allegedly began to disregard the agreement on the use of the driveway, the other neighbor filed a postjudgment motion seeking an interim judgment consisting of the fines provided for breach of the agreement plus attorney's fees. (Ibid.) The trial court concluded it had no continuing jurisdiction to consider the motion, and the motioning party appealed. (Ibid.) Among other things, the appellate court relied on Gardena to conclude the postjudgment order was not appealable under section 904.1(a)(2) because the underlying judgment was a consent judgment-the postjudgment order was not an order made after a judgment made appealable by section 904.1(a)(1). (Howeth, supra, at pp. 130-131.)

Gardena's analysis, and Howeth's adoption of it, rests on the premise that a judgment otherwise appealable under section 904.1(a)(1) can be rendered nonappealable under the statute by the Mecham rule. However, Gardena cites no authority for this ultimate proposition, and Norgart indicates just the opposite. The nonappealability of consent judgments explained in Mecham was not framed as an issue of appellate jurisdiction in either Mecham or Norgart; indeed, the high court in Norgart expressly declined to apply it as such. (Norgart, supra, 21 Cal.4th at pp. 399-400 [question of nonappealability of stipulated order granting summary judgment under Mecham rule did not go to fundamental issues of jurisdiction under § 904.1(a)(1) or standing to appeal]; see Water Replenishment Dist. of Southern California v. City of Cerritos (2012) 202 Cal.App.4th 1063, 1069 [holding that the rule a party may not appeal a consent judgment "does not affect the appellate court's subject matter jurisdiction, but instead is a separate rule of nonappealability"] (Water Replenishment); see also Bernardi v. City Council, supra, 54 Cal.App.4th at p. 434, fn. 9 [appellate court had jurisdiction under § 904.1(a)(2) to review appeal from postjudgment order denying motion to modify a stipulated judgment].) Norgart appears to squarely address this issue by concluding, before it even reached the question of appealability under Mecham, that jurisdiction existed over a summary judgment entered on the parties' stipulation. Gardena did not consider Norgart's jurisdictional discussion, and we respectfully decline to follow Gardena or Howeth as they appear inconsistent with Norgart in this regard.

The judgment of condemnation here, albeit entered by stipulation, qualified as an eminent domain "judgment" because it determined State's right to take the property at issue by eminent domain, and it fixed the amount to be paid by State. (§ 1235.130.) The judgment was final as it eliminated all possibility of direct attack by way of appeal, motion for a new trial, or motion to vacate the judgment (§ 1235.120), and it was intended as a final determination of the rights of the parties. (See Olson v. Cory (1983) 35 Cal.3d 390, 399 ["'where no issue is left for future consideration except the fact of compliance or noncompliance with the terms of the first decree, that decree is final'"].) A statutory right to appeal a final judgment exists under section 904.1(a)(1), and the statute contains no exclusion for judgments entered by consent or stipulation. The trial court's subsequent postjudgment order denying Center Point's motion to enforce the judgment under section 664.6 was "an order made after a judgment made appealable by [section 904.1(a)(1)]." However, not every postjudgment order that follows a judgment made appealable by section 904.1(a)(1) is appealable. (Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 651 (Lakin).) To be appealable under section 904.1(a)(2), a postjudgment order must satisfy two additional prerequisites: (1) the issues raised by the postjudgment order must be different than those arising from judgment;⁵ and (2) the order must either affect the judgment or relate to it by enforcing it or staying its execution. (Lakin, supra, at pp. 651-652.) Here, the issues raised in the postjudgment order involve the parties' postjudgment conduct and, thus, do not present issues identical to those arising from the judgment itself. Yet, the order is related to the judgment by interpreting it and enforcing it according to the parties' mutual intent. (Ibid.) This court has jurisdiction under section 904.1(a)(2) over Center Point's appeal from the trial court's January 2020 postjudgment order issued pursuant to section 664.6.

5 The reason for this general rule is that to allow an appeal from an order raising the same issues as the judgment would have the effect of allowing two appeals from the same ruling and might permit circumvention of the time limitations for appealing from the judgment. (Lakin, supra, 6 Cal.4th at p. 651.)

Mecham's separate and nonjurisdictional rule limiting the appealability of consent judgments does not preclude Center Point's appeal. Center Point is not seeking to appeal the stipulated judgment itself; rather, Center Point seeks review of the trial court's postjudgment order regarding enforcement of the stipulated judgment-an order of enforcement, which the stipulated judgment anticipated and reserved the trial court's jurisdiction to issue under section 664.6. By reserving jurisdiction under section 664.6, the trial court was empowered to issue enforcement orders related to but separate and distinct from the judgment itself, which the parties clearly contemplated.⁶ Thus, the general rule stated in Mecham is not applicable or controlling. (See Water Replenishment, supra, 202 Cal.App.4th at pp. 1069-1070 [postjudgment orders for which judgment reserved jurisdiction to the trial court to enter were appealable even though original judgment entered by consent]; see also Ruiz v. California State Automobile Assn Inter-Insurance Bureau (2013) 222 Cal.App.4th 596, 606 [postjudgment fee order appealable in class action case where underlying judgment was entered by consent and contemplated further proceedings and postjudgment orders] (Ruiz); Rancho Pauma Mutual Water Co. v. Yuima Municipal Water Dist. (2015) 239 Cal.App.4th 109, 114-115 [rejecting Gardena and holding rule of nonappealability of consent judgment was inapplicable to appeal of postjudgment orders where stipulated judgment expressly reserved jurisdiction for trial court to effectuate and enforce terms of the stipulated judgment] (Rancho Pauma).)⁷

6 The proper retention of jurisdiction under section 664.6 also distinguishes Gardena and Howeth, as Center Point notes. Gardena did not involve any retention of jurisdiction under section 664.6 (Gardena, supra, 192 Cal.App.4th at p. 607); and, in Howeth, the appellant's invocation of section 664.6 was irrelevant because the postjudgment issues involved new disputes that arose after judgment was entered-the disputed matters did not actually involve enforcement of the judgment itself and went beyond the scope of section 664.6 (Howeth, supra, 18 Cal.App.5th at p. 134).

7 Among other things, these three cases are distinguishable from Gardena because there the stipulated judgment recited that it was intended to resolve all the issues in controversy between the parties, including the manner over which disputes about costs of remediation would be resolved. (Gardena, supra, 192 Cal.App.4th at p. 603.) Any subsequent postjudgment order on the remediation costs the defendant was seeking in Gardena would not have been distinct from the issues arising under the consent judgment and would effectively result in an appeal from a consent judgment in violation of the Mecham rule. That was not the situation with the postjudgments orders on appeal in Ruiz, Water Replenishment or Rancho Pauma, which dealt with postjudgment issues distinct and jurisdictionally carved out from those arising under the stipulated/consent judgments. (Ruiz, supra, 222 Cal.App.4th at p. 606 [distinguishing Gardena because consent judgment in Ruiz expressly left open postjudgment issue of attorney's fee and incentive payments, which were the subject of order separate from judgment and thus appealable]; Water Replenishment, supra, 202 Cal.App.4th at p. 1070 [explaining that broad grant of postjudgment jurisdiction unique to water rights cases to modify the judgment to ensure ongoing beneficial use of water was distinct from cases like Gardena, where the judgment was intended to resolve all issues in controversy, leaving nothing outside the consent judgment to be decided]; Rancho Pauma, supra, 239 Cal.App.4th at pp. 114-115 [rejecting Gardena as inapplicable because stipulated judgment expressly reserved jurisdiction for court to effectuate and enforce terms of stipulated judgment by separate order distinct from judgment].)

Center Point's waiver of its right to appeal stated in the stipulated judgment also does not preclude appellate review of the postjudgment enforcement order at issue here. The stipulated judgment recited that the parties, "having waived Statement of Decision, Notice of Entry of Judgment, Notice of Recording of the Final Order of Condemnation, costs, interest, litigation expense (including but not limited to attorney's fees and expert witness fees), the right to appeal from Judgment after entry, and all other claims for compensation other than the amount set forth in this Judgment" agreed to judgment as stated in the stipulation. As noted, the stipulated judgment also included a reservation of the trial court's jurisdiction under section 664.6 to enforce the judgment. As Center Point correctly observes, the parties clearly contemplated the possibility of subsequent postjudgment enforcement orders issued under section 664.6. Considering that the stipulated judgment's precise language regarding waiver of the right to appeal was limited to the judgment itself, in concert with the reservation of jurisdiction under section 664.6 for purposes of enforcement, Center Point's appeal waiver was intended to extend only to the judgment and not to the right to appeal any postjudgment orders of enforcement issued under section 664.6. (See Ruiz, supra, 222 Cal.App.4th at p. 605 ["if the parties to a contract want their agreement to encompass a waiver of the right to appeal from an anticipated judicial ruling, they must say so explicitly and unambiguously; they cannot leave their intent to be inferred from the language of the agreement"].)

This is distinct from the waiver of appellate rights in Gardena, which that court held to be an additional ground the postjudgment order at issue was not appealable. There, the parties' stipulated judgment indicated the parties waived "'the right to appeal as to any and all claims and issues related to the taking of the Subject Property.'" (Gardena, supra, 192 Cal.App.4th at p. 604.) This broad waiver of appellate rights encompassed any appeal from the court's postjudgment orders determining remediation costs. (Id. at p. 605.) The waiver in this case is strictly limited to the stipulated judgment itself and does not encompass subsequent postjudgment orders enforcing the settlement under section 664.6.

Based on the foregoing, this court has jurisdiction over Center Point's appeal under section 904.1(a)(2), and the postjudgment order at issue is not rendered unappealable by either the Mecham rule or Center Point's waiver of the right to appeal the stipulated judgment. We proceed to the merits of Center Point's appeal.

II. Center Point's Contentions of Error

Center Point seeks reversal of the trial court's order denying enforcement under section 664.6, arguing the court erred in interpreting the terms of the stipulated judgment and finding State had met its obligations under provisions 6A and 6D.

The procedure under section 664.6 empowers the trial court hearing the motion to enforce a stipulated judgment to determine if disputed factual issues have arisen regarding the settlement agreement. Moreover, it permits the court "to entertain challenges to the actual terms of the stipulation, that is, whether there actually was a settlement" and to interpret the terms and conditions to settlement. (Fiore v. Alvord (1985) 182 Cal.App.3d 561, 565.) In ruling on a section 664.6 motion, the trial court acts as a trier of fact. (Osumi v. Sutton (2007) 151 Cal.App.4th 1355, 1360 (Osumi); Skulnick v. Roberts Express, Inc. (1992) 2 Cal.App.4th 884, 889.) In the exercise of its sound discretion, the trial court may receive oral testimony, or it may determine the motion upon declarations alone. (Corkland v. Boscoe (1984) 156 Cal.App.3d 989, 994.)

On review, the appellate court affirms the factual determinations made by the trial court if they are supported by substantial evidence (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 815 (Weddington)), but review of the trial court's legal conclusions is performed de novo (Sully-Miller Contracting Co. v. Gledson/Cashman Construction, Inc. (2002) 103 Cal.App.4th 30, 36).

A. Provision 6A: A Shared Easement 35 Feet in Width 1. Background

Provision 6A of the stipulated judgment provides, in relevant part, that "Center Point's access to [the remnant] parcel ... shall be by way of a shared easement 35' in width running along the northern edge of the toe of slope for the western approach to the Avenue 10 overcrossing to the nearest point along the western boundary of [assessor parcel number] MF-20-0914-01-01 [(the remnant parcel)]."

A few weeks after the stipulated judgment was signed by the court, a dispute began over this provision. On April 4, 2018, State communicated to Center Point that while provision 6A indicated the accessway to this easement is 35 feet wide, the shared accessway was only 20 feet wide. State asserted it had no ability to grant any other accessway.

Center Point responded on May 30, 2018, that the stipulation provided for a 35-foot wide shared easement, and Center Point intended to utilize that easement and asked that State provide it with that access. State responded on June 5, 2018, that it had already explained why no such 35-foot wide accessway was available. Center Point reiterated in a June 15, 2018, letter that "it was always the intent of the parties to have a 35-foot easement as reflected in written communication prior to the signing of the judgment and its express inclusion of that term within the judgment itself. The 35 feet are needed to allow Center Point access to its property with all of the necessary equipment." State responded there was "no additional land available to widen the shared access made available to Center Point, nor was there ever any discussion of obtaining additional land from neighboring property owners in order to do so before, during or after the settlement conference. In fact, access to this parcel was specifically agreed to be by way of the accessway designated along the to[e] of slope alongside the Avenue 10 overcrossing berm. That access is 20' wide, not 35.'"

In July 2018, Center Point asserted it had "been negotiating with HSR[A] engineers and right-of-way agents to provide a 35' foot wide easement to access this parcel.... It is HSR[A] that proposed Center Point share access along the toe of the slope of the Avenue 10 overcrossing without consulting with the engineers from HSR[A] or its contractors. This overcrossing access easement is only 20 feet wide and is therefore unacceptable.."

State responded access for Center Point was not contemplated until the settlement conference where, "in the hallway outside of Department 44, Mr. Hanna, Ms. Gonzales, you and I discussed the transfer of possessory rights to this parcel back to Center Point for the first time. No one at that discussion mentioned the width of the accessway that would be required. Instead, it was agreed that access would be shared over the Bureau of Reclamation easement, which is on land belonging to the State. That accessway is twenty feet wide. Unfortunately, the stipulated judgment describes it as thirty-five feet wide, although the error was quickly corrected by [Wilcox's] letter of April 4, 2018."

Upon filing its motion under section 664.6, Center Point argued that since the stipulated judgment unambiguously required State to provide an "easement 35' in width," State had violated the terms of the stipulation by providing only a 20-foot wide access. State asserted the parties agreed that Center Point would have access to the remnant parcel by way of a shared easement with the Bureau of Reclamation (Bureau). The Bureau's easement is only 20 feet wide. State argued the "35' in width" language in the stipulation is latently ambiguous-it is a misdescription of the easement at that location and does not match anything that actually exists, nor does it reflect what the parties understood or bargained for at the settlement conference.

In opposition, State submitted several declarations regarding the parties' discussions at the March 1, 2018, settlement conference. Wilcox, State's counsel, explained he was present for the settlement conferences held on February 22, 2018, and March 1, 2018, along with Sharon Parsons, the Assistant Deputy Director of Real Property for HSRA. On March 1, 2018, Danielle Gonzales, HSRA's right-of-way agent, joined them at the settlement conference. Wilcox maintained he specifically discussed the shared access arrangement with Hanna, Center Point's principal, during negotiations over this provision, and they referred to a set of drawings on which the shared access was depicted. "There was no discussion about the width of this accessway at that time and the drawing that we referred to did not indicate its width." Wilcox also indicated the reference to the 35-foot wide accessway in the stipulation was an error that he brought to Center Point's attention on April 4, 2018.

Steve Milton, an engineer for HSRA, provided a declaration confirming there was an existing accessway to the remnant parcel that was purchased from Center Point's neighbor for the purpose of providing access to the Bureau and Madera County, and Center Point had been allowed to share this access easement.

Parsons submitted a declaration regarding her recollections of the settlement negotiations. She explained State had originally included the remnant parcel in its acquisition area because it was separated from the rest of Center Point's property and public roads, but Center Point wished to retain that remnant parcel. As a solution, Danielle Gonzales, HSRA's right-of-way agent, suggested Center Point be given shared access to the Bureau's existing easement that was used to access a canal located adjacent to the parcel. Parsons asserted Hanna agreed to this shared access plan, but the width of the existing easement to be shared was never discussed. Parsons also stated it would be impossible to add width to the easement without condemnation of land from Center Point's neighbor. As adding width to the easement would not be necessary to the HSRA project, it would be impossible for State to use condemnation proceedings to procure any additional land for Center Point's use.

Gonzales submitted a declaration indicating she had a conversation with Hanna on March 28, 2017, regarding the ongoing negotiations for the purchase of portions of Center Point's property. They discussed that State's purchase offer included the remnant parcel because it was severed from access. Hanna expressed an interest in keeping the parcel, knowing the only available means of access to it would be through the shared use of an existing easement used by the Bureau. However, they never discussed the width of the existing easement to be shared. Attached to Gonzales's declaration were her diary notes reflecting the substance of her communication with Hanna on March 28, 2017.

The trial court concluded provision 6A's reference to "a shared easement 35' in width running along the northern edge of the toe of slope for the western approach to the Avenue 10 overcrossing to the nearest point along the western boundary of [assessor parcel number] MF-20-0914-01-01" is ambiguous because the access easement available to be shared at the location described is not 35 feet wide. The court reasoned that "the weight of the evidence indicates that this ambiguity resulted from a drafting mistake and that the parties' intent at the time the agreement was reached at the Settlement Conference was for Center Point to access [assessor parcel number] MF-20-0914-01-01 by way of the existing, shared, 20' wide access easement used by the Bureau of Reclamation/Madera Irrigation District. As this shared access easement has been available to Center Point since the Judgment was entered, the State has fully complied with this requirement of the Judgment."

2. Analysis

On appeal, Center Point argues the trial court misconstrued the writing by improperly admitting extrinsic evidence to flatly contradict the document's unambiguous language and impermissibly added terms to the parties' agreement or otherwise modified the stipulated judgment in a manner outside the court's jurisdiction under section 664.6.

Stipulated judgments entered pursuant to section 664.6 are considered contracts and must be interpreted according to contract principles. (Estate of Jones (2022) 82 Cal.App.5th 948, 952.) The cardinal goal of contract interpretation is "to give effect to the mutual intention of the parties as it existed at the time of contracting." (Civ. Code, § 1636; accord, Hartford Casualty Ins. Co. v. Swift Distribution, Inc. (2014) 59 Cal.4th 277, 288.) The parties' mutual intent is interpreted according to objective, rather than subjective, criteria. (Wolf v. Walt Disney Pictures &Television (2008) 162 Cal.App.4th 1107, 1126.) "'The parties' undisclosed intent or understanding is irrelevant to contract interpretation.'" (Cedars-Sinai Medical Center v. Shewry (2006) 137 Cal.App.4th 964, 980.)

To determine how and whether to enforce obligations under an agreement, contract interpretation principles require a court to first interpret the writing to determine what obligations it imposes on the parties. (See Scheenstra v. California Dairies, Inc. (2013) 213 Cal.App.4th 370, 389-392 (Scheenstra) [to determine breach of contract, court must first interpret the language of the contract to determine parties' obligations].) To ascertain what the writing requires, the threshold question is whether the contract is ambiguous-that is, reasonably susceptible to more than one interpretation. (Winet v. Price (1992) 4 Cal.App.4th 1159, 1165.) Where no extrinsic evidence is presented or if it is not in conflict, the resolution of any ambiguity is a question of law, subject to independent de novo review on appeal. (Wolf v. Superior Court (2004) 114 Cal.App.4th 1343, 1351.)

Provision 6A provides "Center Point's access to [the remnant] parcel ... shall be by way of a shared easement 35' in width running along the northern edge of the toe of slope for the western approach to the Avenue 10 overcrossing to the nearest point along the western boundary of [the remnant parcel]."

The parties' basic dispute is whether the purported description mistake of the easement as "35' in width" renders the language of provision 6A ambiguous, and whether the trial court properly considered extrinsic evidence in construing it. Center Point claims the writing unambiguously means exactly what it says: State is to provide Center Point with access to the remnant parcel by way of "a shared easement 35' in width." State argues the extrinsic evidence shows the language is also susceptible to mean Center Point is to share the Bureau's existing easement at the specific location described, whatever its actual width, which happens to be 20 feet.

a) Ambiguity

The analysis of ambiguity is not necessarily limited to the words of a contract. Trial courts are required to receive provisionally any proffered extrinsic evidence that is relevant to show whether the contractual language is reasonably susceptible to a particular meaning. (Pacific Gas &E. Co. v. G.W. Thomas Drayage etc. Co. (1968) 69 Cal.2d 33, 39-40 (Pacific Gas).) Such extrinsic evidence might expose a latent ambiguity when the contract appears unambiguous on its face. (Id. at p. 40 & fn. 8.)

State's proffered extrinsic evidence establishes there is an existing easement at the specific location described in provision 6A (running along the northern edge of the toe of slope for the western approach to the Avenue 10 overcrossing to the nearest point along the western boundary of the remnant parcel). That easement is used by the Bureau and it is only 20 feet wide. There is no other easement at this location, and State has no additional property at this location to share with Center Point. The parties did not discuss the width of the easement in their negotiations at the settlement conference; they referred to a map of the Bureau's existing easement, which did not specify its width. Gonzales had discussed this particular easement with Hanna in 2017 as the only existing accessway to the remnant parcel, but they never discussed its width, either. In negotiating over Center Point's retention of the remnant parcel at the settlement conference, Gonzales was the one who suggested Center Point be given use of this existing easement to access the remnant parcel.

This extrinsic evidence was undisputed. While Center Point maintains in its opening brief that the "exact width of 35 feet" was discussed during settlement negotiations, Center Point's citations for this proposition refer to counsel's arguments made at the January 10, 2018, hearing, not any actual evidence. Notably, Center Point's declaration evidence and supporting documentation does not dispute Wilcox's and Parson's statements that the width of the easement was not discussed by the parties when they negotiated this provision at the settlement conference, nor does Center Point offer any evidence of communications before or after the settlement conference showing the width of this easement was negotiated in formulating the stipulated judgment.

Center Point argues the extrinsic evidence cannot possibly show the 35 feet wide measurement is reasonably susceptible to meaning 20 feet. According to Center Point, 35 feet is a unit of measurement that is not subject to any ambiguity. Center Point also contends the fact the provision refers to "'a shared easement'" casts no doubt on what 35 feet means-the parties are not disputing the easement's exclusivity, they are disputing its width. Had the parties meant "a shared easement" to refer to the Bureau's existing easement, they would have made reference to the Bureau in the stipulation, or they would have described it as the shared easement rather than a shared easement, but the stipulation does not do so, and it does not define the phrase a shared easement. As such, the extrinsic evidence is offered only to contradict the express terms of the writing, which is impermissible.

Mistakes of fact that result in ambiguity, like that which State claims occurred here, are sometimes referred to as "a subdivision of extrinsic[, i.e., latent,] ambiguity ._" (Praxair, Inc. v. Hinshaw &Culbertson (7th Cir. 2000) 235 F.3d 1028, 1034; accord, Goldstein, The Public Meaning Rule: Reconciling Meaning, Intent, and Contract Interpretation (2013) 53 Santa Clara L.Rev. 73, 138 [latent ambiguity cases are sometimes "better understood as mutual mistakes of fact rather than true ambiguity"].) The case of Raffles v. Wichelhaus (1864) 159 Eng.Rep. 375 (Raffles) is perhaps the most famous example of a mistake that created a latent ambiguity in a contract. There, the parties contracted for a shipment of cotton from Bombay to be delivered in a ship named Peerless. As it turned out, there were two ships named Peerless sailing from Bombay, and "each party had a different ship of that name in mind." (Praxair, supra, at p. 1034.) This type of latent ambiguity occurs "'where there are two or more persons or things exactly measuring up to the description'" in the document, and it is not clear which one was meant. (Estate of Russell (1968) 69 Cal.2d 200, 207, quoting Estate of Donnellan (1912) 164 Cal. 14, 20 (Donnellan).) As recognized in the context of donative documents, another type of latent ambiguity that can result from mistake or inadvertence in drafting is "'where no person or thing exactly answers the declarations and descriptions of the will, but where two or more persons or things in part though imperfectly do so answer.'" (Russell, supra, at p. 207.)

In Donnellan, for example, the court was presented with the following provision: "'to my niece Mary, a resident of New York, said Mary being the daughter of my deceased sister Mary ....'" (Donnellan, supra, 164 Cal. at p. 16.) Extrinsic evidence showed the deceased sister, Mary, had two daughters: Annie Sheridan and Mary Smith. Annie lived in New York, while Mary lived in Ireland and had never been to the United States. The court held there was a latent ambiguity because no one person exactly matched the description in the will, and extrinsic evidence was admitted to determine the testator's intent. (Id. at pp. 23-24.)⁸

8 These cases articulate types of latent ambiguities that occur in written instruments resulting from mistakes of fact or inadvertence, but they are not dispositive of how latent ambiguities are to be resolved. Some latent ambiguities, such as in Raffles, may reflect the parties never reached mutual agreement on a material term of the contract. Donative documents, such as in Donnellan, are not negotiated instruments; they generally reflect the testator's intent regarding things already in existence, not performance obligations that may occur in the future.

As these cases exemplify, proffered extrinsic evidence may be admitted to show a latent ambiguity caused by a mistake, but it cannot be admitted to "flatly contradict the express terms of the agreement." (Consolidated World Investments, Inc. v. Lido Preferred Ltd. (1992) 9 Cal.App.4th 373, 379 (Consolidated World Investments).) In other words, "if the contract calls for the plaintiff to deliver to [the] defendant 100 pencils by July 21, 1992, parol evidence is not admissible to show that when the parties said 'pencils' they really meant 'car batteries' or that when they said 'July 21, 1992[,]' they really meant 'May 13, 2001.'" (Ibid.)

Here, if the stipulated judgment had described Center Point's access to the remnant parcel only with the words by way of an easement 35' in width, the rule articulated in Consolidated World Investments might apply. Without language that arguably makes reference to an existing easement, extrinsic evidence showing State has only a 20-foot wide existing easement would not necessarily expose any latent ambiguity.

In actuality, however, provision 6A refers to access by way of "a shared easement 35' in width running along the northern edge of the toe of slope for the western approach to the Avenue 10 overcrossing ._" When the phrase "a shared easement 35' in width" is descriptively paired with the precise location indicated, and then applied to the real-world extrinsic fact that the only existing easement at that location that State could share with Center Point is 20 feet wide, the words reveal a latent ambiguity whether the provision refers to sharing the existing easement at the described location or refers to a newly acquired 35 feet wide easement at that location. The fact that 35 feet is not ambiguous in and of itself is not dispositive.

In Raffles, there was nothing ambiguous about the word Bombay or Peerless, but when those terms together were applied to the real-world fact there was more than one ship from Bombay called Peerless, the contract description was rendered ambiguous.⁹Similarly, in Donnellan, the phrase "'to my niece Mary, a resident of New York, said Mary being the daughter of my deceased sister Mary'" was deemed latently ambiguous, but not because any of the words themselves were subject to any ambiguity. (Donnellan, supra, 164 Cal. at pp. 16-17.) Mary's name did not ambiguously mean "Annie," nor was New York interpreted to ambiguously refer to "Ireland." (Id. at p. 17.) The ambiguity as to the testator's intent arose when those words were descriptively paired together and applied to the real-world circumstances that Mary, who lived in Ireland, had never been to the United States, while Annie-another daughter of the deceased sister Mary-was a resident of New York. (Id. at p. 23.) The fact there is nothing ambiguous about 35 feet as a unit of measurement does not mean there is no latent ambiguity when that description is paired with other descriptive language and considered in light of the real-world conditions that it describes. Moreover, because the Bureau's easement exists at the specific location described, the provision's reference to a shared easement rather than the shared easement is still susceptible to meaning the Bureau's existing easement.

9 The Seventh Circuit Court of Appeals has observed the contract in Raffles was "[c]lear as a bell. Only there were two (if not more) ships Peerless, and it was impossible to tell which one the contract referred to. The contract was unclear because clarity in a contract is a property of the correspondence between the contract and the things or activities that it regulates, and not just of the semantic surface." (AM International, Inc. v. Graphic Management Associates, Inc. (7th Cir. 1995) 44 F.3d 572, 575; see Zissler v. Saville (2018) 29 Cal.App.5th 630, 645 [contract patently unambiguous on its face].)

Center Point next argues the stipulated judgment is the only objective evidence of the parties' intent: Parsons and Wilcox indicate the width of the easement was never discussed at the settlement conference, so any assertion the parties intended the easement to be 20 feet wide is merely State's subjective, undisclosed intent, which is irrelevant and incompetent evidence. (See, e.g., San Pasqual Band of Mission Indians v. State of California (2015) 241 Cal.App.4th 746, 757 [evidence of undisclosed subjective intent of parties is irrelevant evidence].)

This argument misses the mark. Whether the Bureau has an existing 20-foot wide easement at that location that can be shared with Center Point is an objective fact established by declaration evidence and supporting documentation, and one which Center Point offers no evidence to dispute. Further, Parsons's and Wilcox's declarations do not claim State intended "a shared easement" to be of any specific width; rather, they state it was intended Center Point would share the Bureau's existing easement, which was expressly described in the special provision and happens to be only 20 feet wide. These declarations were not offered for the purpose of showing State's undisclosed subjective intent to specifically offer a particular-width easement.

When read as a whole and applied to the extrinsic evidence, provision 6A is reasonably susceptible of the meaning urged by State. The provision's reference to "a shared easement" in combination with the location description "running along the northern edge of the toe of slope for the western approach to the Avenue 10 overcrossing to the nearest point along the western boundary of [the remnant parcel]" can be understood as describing the Bureau's existing easement at that precise location, and the reference to "35' in width" as an inaccurate attempt to describe that existing easement, which is actually only 20 feet wide. In light of the extrinsic evidence, State's proffered interpretation is one of two reasonable interpretations: (1) the writing refers to a 35-foot wide easement State will acquire at that particular location, which can be shared with Center Point; or (2) the writing refers to the Bureau's existing easement at that location, which is 20 feet wide.

b) Resolving the Ambiguity

Having determined the language is reasonably susceptible of State's proffered interpretation, the analysis proceeds to the second step: interpreting the contract. (Winet v. Price, supra, 4 Cal.App.4th at pp. 1165-1166.) Relevant and competent extrinsic evidence is admissible to prove which of the two reasonable interpretations reflect the mutual intent of the parties. (Pacific Gas, supra, 69 Cal.2d at p. 37 [test of admissibility of extrinsic evidence is whether it is relevant to prove a meaning to which the language of an instrument is reasonably susceptible].)

State argues there is substantial evidence to support the trial court's resolution of this ambiguity. That, however, is not the standard. When the competent parol evidence is not conflicting-and even undisputed extrinsic evidence that gives rise to competing inferences is not conflicting-we employ independent, de novo review to resolve any ambiguity. (Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 866 (Parsons); Hess v. Ford Motor Co. (2002) 27 Cal.4th 516, 527 (Hess).)

That is the case here-none of State's declarations and supporting documentation are disputed with regard to these facts: (1) there is an existing easement at the location specified in the stipulated judgment that is used by the Bureau and can be shared with Center Point; (2) the actual width of this existing easement is 20 feet; (3) the parties did not discuss the width of the easement to the remnant parcel when the parties reached agreement on this provision at the settlement conference; (4) no reference to the easement's width was made when the agreement was placed on the record at the settlement conference; (5) the Bureau's existing easement lies on land owned by a private land owner; and (6) to provide an additional 15-foot wide easement at that location, State would have to acquire additional property for Center Point's use as State has no rights to additional property for a wider access at this location.

To give effect to the mutual intent of the parties in resolving the ambiguity, courts consider "the words used in the agreement, as well as extrinsic evidence of such objective matters as the surrounding circumstances under which the parties negotiated or entered into the contract; the object, nature and subject matter of the contract; and the subsequent conduct of the parties." (Morey v. Vannucci (1998) 64 Cal.App.4th 904, 912 (Morey).) Where a contract is susceptible to two interpretations, courts must give such an interpretation as will make it lawful, operative, definite, reasonable, and capable of being carried into effect. (Edwards v. Arthur Andersen LLP (2008) 44 Cal.4th 937, 953-954.)

State argues the parties' mutual intent was to provide Center Point access to the remnant parcel by way of the Bureau's existing easement, whatever its width-they did not bargain for, or even discuss, a specific-width easement. The reference to 35 feet was simply an inaccurate description of the existing easement at that location the parties intended Center Point to share, not an agreement that State would provide an additional easement to create wider access than actually exists currently. Center Point argues the stipulated judgment means exactly what it says: State is to provide access to "'a shared easement 35' in width'" at the described location. The fact that there is only a 20-foot wide easement at this location does not obviate what the writing plainly requires, and the fact the width was not recited when the settlement was placed on the record is not dispositive-many specifics of the agreement were not placed on the record.

Based on the language of the parties' agreement, and aided by the extrinsic evidence in the record, we conclude State's interpretation is the most reasonable. Not only is the Bureau's existing easement in the location described the only one State has to share with Center Point currently, State has no additional property at that location that could be shared in the future. While it is theoretically possible for State to acquire additional property (even if this could not be accomplished by a condemnation proceeding as Parsons explains in her declaration), provision 6A does not even hint at State's obligation to obtain additional land or how additional access rights would result in "a shared easement" (as opposed to the existing easement plus an additional easement purchased separately) if State acquired land separate from the Bureau's existing easement.

Moreover, there is no evidence the parties discussed access different from the Bureau's existing easement. The undisputed extrinsic evidence is that when this access was negotiated at the settlement conference, Gonzales "suggested Center Point be given shared access to the existing Bureau of Reclamation easement used to access the [Madera Irrigation District] canal located adjacent to the parcel[, and] Center Point's principal agreed to this shared access plan. The width of the existing easement to be shared was never discussed." Neither Hanna nor Christofferson, also present during these negotiations, offered a declaration disputing Parsons's characterization of their discussions.

Even when Wilcox explained in his April 2018 letter that the reference in provision 6A to "35' in width" was an error, Center Point did not offer any argument they had specifically discussed the width or negotiated for a specific-width easement access. There is no correspondence between the time of the settlement and when the stipulated judgment was reduced to a writing that indicates the parties negotiated or even discussed the width of the easement. Had the parties' intent been ensuring a specific-width easement, as opposed to just ensuring access through the existing easement, the parties would have certainly discussed it at some point in their negotiations.

Moreover, the parties likely would have placed that term on the record at the time of settlement, but it is undisputed they did not do so. While Center Point is correct this is not dispositive given that many of the specifics of the parties' agreement were not recited on the record at that time, if ensuring particular width access was really a feature of the access negotiated, it seems unlikely it would not have been recited as one of the terms. This is especially so because the settlement had to be approved by State before it could be finalized. Had the parties not been simply referring to the Bureau's existing easement, but specifically negotiated for a 35-foot easement regardless of the size of the existing easement, the parties would have intended to implicate a potential land acquisition by State. Any settlement that might implicate an additional land acquisition by State, especially outside condemnation proceedings, would certainly have been an aspect of the settlement requiring State's approval-yet, there is no mention of this anywhere in the settlement negotiations, including when the basic terms were recited for the record. Without any evidence the width of the easement was specifically negotiated, it strongly supports an interpretation that the "35' in width" description of the easement was a misdescription of the Bureau's existing easement, not a reflection the parties intended State to ensure 35 feet of access at that location, regardless of the width of the existing easement.

Moreover, Wilcox's declaration underscores that the inclusion of the "35' in width" was an error that occurred after the parties' agreement, and its placement in the stipulated judgment was an incorrect description of the existing easement. This was reiterated in his April and June 2018 letters to Center Point.

The lack of any access to the remnant parcel other than through the Bureau's existing easement was known to the parties. State had included the remnant parcel in its acquisition area for this very reason, as Parsons's declaration points out. Center Point was aware of this issue, as its principal Hanna had discussed this easement with Gonzales about a year before the settlement conference, but they never discussed its width. This too suggests the parties intended "a shared easement" at the location described to reference the Bureau's existing easement.

In arguing the materiality of the "35' in width" language, Center Point notes that during the litigation prior to settlement there was repeated discussion and testimony relating to the large trucks that Center Point utilizes in its farming operations and the need for 35 feet wide turn rows at certain places and wide access roads. This, however, is unavailing of what the parties intended with respect to this particular easement to this specific parcel of land at the time of the settlement conference.

Hanna's declarations indicate HSRA engineers were attempting to provide a 35-foot easement to the remnant parcel after the stipulated judgment was entered, but this too does not shed light on what the parties intended when they made their agreement. While subsequent conduct may be relevant to the parties' mutual intent at the time of entering into a written agreement (Morey, supra, 64 Cal.App.4th at p. 912), State's willingness to resolve the dispute after the stipulated judgment was entered, without something more, does not establish what the parties intended at the time of the settlement. In view of the correspondence between the parties after the settlement, it was always State's position the reference to a 35-foot wide easement was a misdescription of what was agreed to at the settlement conference. This is not a case where State's postsettlement conduct reflects anything more than an attempt to resolve the dispute on this issue.

c) Step Three: Applying the Interpretation

Center Point contends that even if the stipulated judgment did mistakenly describe the easement as 35 feet wide, a fact Center Point does not concede, disregarding that portion of the provision is not an interpretation, it is a modification to the judgment that the trial court had no jurisdiction to accomplish under section 664.6. According to Center Point, a party must avail itself of other procedural remedies, including modifying the judgment under section 473, subdivision (b), but that remedy is unavailable because it was not timely sought.¹⁰

10 Section 473, subdivision (b), provides jurisdiction to the court to modify the terms of a judgment or other order entered by mistake, inadvertence, surprise or excusable neglect, so long as the application for relief under this section is made no more than six months after entry of judgment.

The authorities Center Point cites hold that a trial court's authority to enforce a settlement is limited to what the parties themselves agreed upon. Thus, a court may not insert newly created terms into a judgment the parties never mutually agreed to at the time of their settlement. (Weddington, supra, 60 Cal.App.4th at p. 810, accord, Steller v. Sears, Roebuck &Co. (2010) 189 Cal.App.4th 175, 180; Harris v. Spinali Auto Sales, Inc. (1962) 202 Cal.App.2d 215, 219.)

For example, in Weddington, a private mediator created the terms of a licensing agreement the parties had never mutually negotiated or agreed upon. In fact, one of the parties was not even present at the mediation when the mediator fashioned certain terms. (Weddington, supra, 60 Cal.App.4th at pp. 806-807.) On appeal, it was determined the trial court had erred by enforcing the licensing agreement the mediator had crafted without the assent of the parties under the guise of section 664.6. (Weddington, supra, at pp. 818-819.)

Similarly, in Hernandez v. Board of Education (2004) 126 Cal.App.4th 1161 (Hernandez), the court recognized section 664.6 did not confer the court with jurisdiction that went beyond enforcing the parties' settlement. (Hernandez, supra, at pp. 11751177.) Hernandez was a school desegregation case that was settled after over 30 years of plenary court supervision of the affairs of a school district. In concluding the settlement divested the trial court of those broad, plenary supervision powers, the appellate court recognized the trial court's retention of jurisdiction under section 664.6 simply "reserved the power to enforce, according to its terms, the contract [the parties had] negotiated amongst themselves." (Hernandez, supra, at p. 1176.)

While Weddington and Hernandez give contour to the limits of jurisdiction under section 664.6, the jurisdiction conferred by the statute nonetheless includes "'jurisdiction over both the parties and the case itself, that is, both personal and subject matter jurisdiction.'" (Lofton v. Wells Fargo Home Mortgage (2014) 230 Cal.App.4th 1050, 1061 (Lofton), quoting Wackeen v. Malis (2002) 97 Cal.App.4th 429, 439.) Here, the parties' stipulated judgment expressly reserves the trial court's jurisdiction under section 664.6 to enforce the settlement until full performance of its terms. Construing the stipulated judgment is an interpretive matter well within the parameters of section 664.6 as necessary to enforce the terms of the parties' agreement. (Lofton, supra, at p. 1061.)

The extrinsic evidence establishes the parties agreed Center Point would have access to the Bureau's existing easement. This interpretation is not tantamount to an insertion of new terms to which the parties never mutually agreed such as in Weddington. Although this interpretation effectively reads out the "35' in width" description, courts must often construe documents in this manner to effectively resolve ambiguity. (See Estate of Duke (2015) 61 Cal.4th 871, 887-888 [observing that construction of ambiguous will to accomplish testator's intent often has the effect of reforming the will]; see also In re Marriage of Schu (2014) 231 Cal.App.4th 394, 400-401 [construing the word until to mean when to resolve ambiguity created by a purportedly purposeful mistake in stipulated judgment]; Manson v. Koppikus (1858) 11 Cal. 89, 90 [deed where boundary line described both by parallel of latitude and by map showing boundary several miles below that parallel created a latent ambiguity to be construed by extrinsic evidence as to which boundary line would be disregarded].) Section 664.6 supplied the trial court with jurisdiction to enforce the terms of the parties' settlement, which necessarily included construing any latent ambiguity to conform to the parties' intent.

Center Point similarly maintains any modification to the judgment had to be accomplished under section 473, subdivision (b), but the time to do so had expired long before the trial court denied Center Point's motion to enforce the judgment. As explained, construing an ambiguity in a written instrument to conform to the intent of the parties, particularly an ambiguity created by a mistake, is often accomplished by what is arguably or effectively a reformation of the document. As the court had retained jurisdiction to construe the terms of the stipulated judgment under section 664.6 according to the parties' intent, it had no need of the jurisdiction conferred under section 473, subdivision (b), to amend or modify a judgment.

Moreover, even if the court had resolved Center Point's motion by considering the reference to "35' in width" as a mistake that created no ambiguity, but nonetheless entitled State to reformation, the court would have had jurisdiction to do so under section 664.6. A court's retention of jurisdiction under section 664.6 includes the court's equitable authority. (Lofton, supra, 230 Cal.App.4th at p. 1062.) "This equitable authority 'is not restricted to setting aside the former judgment; to the contrary, the court has power to provide any appropriate equitable remedy ....'" (Ibid.) In a similar vein, the court in Osumi concluded the trial court had retained authority under section 664.6 to alter a settlement agreement by setting a new closing date for the sale of real property to best effectuate the parties' intent with respect to their agreement and provide them meaningful relief. (Osumi, supra, 151 Cal.App.4th at pp. 1360-1361; cf. Hess, supra, 27 Cal.4th at p. 525 [equitable remedy of reformation for mistake available to avoid enforcement of erroneous terms].)

In sum, we conclude provision 6A is susceptible to the meaning proffered by State, and the parties intended to confer Center Point shared access to the Bureau's existing easement at the location described in the provision. The trial court's interpretation of the provision was not erroneous.

B. Provision 6D: TPS Relocation

In its order denying Center Point's motion to enforce the stipulated judgment, the trial court concluded "[t]he State has fully complied with the Special Provision at [provision] 6D of the Judgment relating to the relocation of a [TPS] sited adjacent to Center Point's property." Among other things, provision 6D states the parties would "use their best efforts to relocate the [TPS] ._" Center Point argues the trial court's order is unsupported by any evidence State exercised its best efforts to relocate the TPS.

1. Background

During the condemnation proceedings, Center Point had unsuccessfully lobbied State to relocate its planned TPS to a "triangular" piece of Center Point's property. At that time, State's refusal to move the TPS, although not predicated on a formal cost analysis, was based on the facts that Center Point's proposed relocation site was outside the environmental footprint, moving it would incur additional costs related to environmental clearances and obtaining a larger acquisition area, and the planned location was more easily accessible through existing accessways.¹¹

11 Hanna's September 2018 declaration indicates the only concern HSRA engineer Marissa Nishikawa had ever raised with regard to relocating the TPS was the cost of obtaining an additional 1.6 acres of land to provide access to the TPS. At her November 2017 deposition, Nishikawa testified the purchase of an access road was one cost factor related to TPS relocation, but there were also cost concerns regarding environmental clearance and the criteria for the access road that would have to be created to connect the TPS to Avenue 12.

When the parties settled the condemnation actions, State agreed to use its best efforts to relocate the TPS to this triangle, described in the stipulated judgment as "a point approximately 1,000 feet south and adjacent to the right of way." In negotiating this aspect of the settlement, Parsons had explained that any relocation would have to involve a land swap where State would trade Center Point the land under the planned site in exchange for a same size and shaped piece of Center Point's property for the relocation site. Parsons emphasized State could not guarantee the relocation, but if the relocation site was feasible, State would use its best efforts to relocate the TPS. Wilcox similarly stressed that since there may have been a sound engineering or other reason why the system site could not be relocated, State could commit only to using its best efforts to achieve relocation.

Wilcox indicated State could be liable for delay damages accruing during any stretch of time that the location of the facility remained unresolved, and there would have to be a definite deadline after which construction would be allowed to proceed. Hanna countered that in his development experience it would take years to subdivide the property through the Subdivision Map Act (SMA),¹² but Parsons told him that was not a problem, and subdivision could be accomplished through the authority of eminent domain, and that it would not take HSRA any time to achieve this.

12 The SMA is codified at Government Code section 66410 et seq. It is "'the primary regulatory control' governing the subdivision of real property in California." (Gardner v. County of Sonoma (2003) 29 Cal.4th 990, 996.) Center Point cites two California county government websites with general information about subdividing property under the SMA in those counties. (as of Feb. 23, 2023 [Riverside County noting subdivision takes one to five years]; as of Feb. 23, 2023 [Los Angeles County Public Works FAQ indicating subdivision may take 12 to 18 months for the simplest lot split].) While these are not specific to Madera County or the subdivision here, they tend to establish subdivision is generally measured in months to years, not weeks. Additionally, Hanna's declaration indicates he is a real estate developer in California and has 35 years of experience in planning, development, permitting, approval, construction and marketing of commercial and industrial property. He indicated to Parsons that in his experience, it would take years to divide Center Point's property through the SMA.

When they arrived at agreement, the basic terms of the settlement were recited on the record and included that "State [would] use best efforts to move a traction station on the property to the lowest point on a triangle located on the Center Point property." The parties' stipulated judgment, filed two weeks later, provided the parties would "use their best efforts to relocate the [TPS] ._" The provision detailed that as the relocated TPS would be placed on land currently owned by Center Point, it was the parties' intent that Center Point would deed to State a similarly sized and shaped parcel as that currently designated for the TPS, along with a 35-foot wide access easement, through land owned and controlled by Center Point. It further provided that Center Point would have six months from the date the stipulated judgment was signed to subdivide certain of its parcels and transfer that land to State. Once the relocation parcel was subdivided from Center Point's property and deeded to State, State was to transfer to Center Point the parcel currently dedicated for the TPS. If the parties were unable to complete the terms in this provision, the agreement provided State would proceed with construction of the TPS in the location currently designed.

In the months after the stipulated judgment was filed, disputes about the relocation process began. On March 15, 2018, the day the stipulation was signed, Hanna met with Matthew Kalt, Senior Project Engineer for Tutor Perini/Zachry/Parsons (TPZP), State's design builder. In an email summarizing their discussions, Kalt indicated he would send a letter to HSRA asking for clarification regarding the overall terms of the new settlement agreement, particularly the section requiring relocation of the TPS. Kalt indicated he was waiting for HSRA to send him something in writing. After no further substantive response from Kalt was received, Hanna called Steve Milton, who indicated he would look into matters but never called Hanna back. Hanna then informed his counsel, and this initiated communications between the parties' counsel.

On May 30, 2018, Center Point articulated to State the specific TPS relocation area Center Point desired, and asserted it had made every effort to communicate with HSRA and TPZP pertaining to TPS relocation, but nothing had been done or communicated by State in response. Center Point included a map and identified the relocation site as "within the 'triangle' that has been identified under the arrow stating, 'Uneconomic Remnant 371,429 sq. ft.' ... Center Point has identified that parcel as [assessor parcel number] #047-131-033-000, also known as Lot No. 61."

On June 5, 2018, State responded that "it sounds as though Center Point has identified a general location to which it would like the [TPS] relocated," but Center Point needed to provide "the metes and bounds of the parcel it intends to transfer," including the necessary access easement. State maintained it would then review the materials provided to assure the relocation site's utility for the TPS, and assuming the proposed relocation site would work, Center Point would have to subdivide that site from the balance of the assessor parcel number and transfer the subdivided parcel to State.

Center Point then requested a meeting with State's engineer immediately to discuss the proposed location, and the necessary mechanism to move the TPS to determine definitively without delay whether it could be done.

State immediately responded it was "continu[ing] to use its best efforts to determine the financial and operational feasibility of the proposed relocation. Toward this end, [HSRA] has requested a detailed description of the impacts of such relocation." In response to the request for a meeting, State replied "such a meeting would be pointless before the detailed impacts of any such relocation are better understood. I will follow up with you as soon as there is more information available."

On July 17, 2018, after several noted written communications between the parties' counsel that are not contained in the record, Center Point communicated that it had clearly identified the desired relocation area was "to be placed in the bottom triangle of the parcel identified as [assessor parcel number] 047-131-033-000, also known as lot number 61." The letter reiterated that it would take Center Point two years to subdivide the parcel and deed it to HSRA. Center Point maintained it had understood that HSRA was exempt from the SMA and that an exchange of parcels could be accomplished swiftly by HSRA as Parsons had asserted at the settlement conference.

In July 2018, State responded that Center Point needed to provide the specific metes and bounds for the desired TPS relocation site. The letter indicated that, "even if the State is able to help Center Point satisfy its obligations under [provision] 6D, it will need these metes and bounds in order to do so. [|¶ The broader issue with respect to TPS relocation is that Center Point, rather than the State, currently owns the relocation site, and thus the State cannot build a TPS (or anything else) on it until Center Point transfers it to the State. To resolve this, the stipulated judgment required the Parties to use their best efforts to complete a land transfer, and specifically requires Center Point to subdivide a new parcel from its holdings for this purpose.. . . [|¶ . . . [¶] In addition to the foregoing, there are likely to be a broad range of specific engineering issues that arise from relocation, and those we are still in the process of gathering from the DesignBuilder." State's letter again deferred a meeting until TPZP supplied the full range of relocation consequences. The letter also asked Center Point to explain its objectives for relocation to see if there was a more efficient means for Center Point to reach those objectives. Finally, the letter indicated the six-month deadline related to all the requirements of the stipulation: delineation, subdivision, transfer and recording of a relocation parcel and access easement to State-which, State maintained, were Center Point's obligations.

On July 30, 2018, Center Point responded that, due to continued delay regarding completion of the stipulation's provisions, Hanna had scheduled a meeting with HSRA representatives Steven Milton and Robert Campbell, which Center Point's lawyers would not attend.

Hanna met with Milton, Campbell and Wilcox on August 2, 2018. In preparation for the meeting, Hanna sent Milton and others an email with attachments for them to review regarding outstanding issues. When it came time to discuss TPS relocation at the meeting, Milton indicated this was not his area of expertise, and he was not prepared to discuss it. After the meeting, Hanna sent an email to Terry Ogle of HSRA describing, from his perspective, the lack of communication and cooperation he was experiencing with HSRA personnel.

On August 10, 2018, State provided an update. The letter indicated State was "collecting information about the feasibility of such a move as well as the estimated costs associated with making it. However, before committing additional funding to this relocation, the State must have confidence in its real property rights to the relocation site. To address this, the stipulated judgment requires Center Point to subdivide an appropriate parcel and then transfer it to the State. [¶] When asked, Mr. Hanna indicated that Center Point has yet to commence this subdivision process. We are therefore holding off on committing further resources until Mr. Hanna can indicate whether Center Point will satisfy its obligations under [the stipulation] in a timely fashion."

In August 2018, Center Point filed its motion to enforce the stipulated judgment under section 664.6, but the hearing on the motion was continued many times for the parties to attempt to resolve their disputes. In March 2019, HSRA was still looking into options/feasibility for the relocation of the TPS, and there was discussion to move the site north of Avenue 12. In May and June 2019, Hanna unsuccessfully sought status updates from HSRA personnel.

On July 25, 2019, Wilcox communicated an offer to Center Point to relocate the TPS to the only site available based on environmental clearances:

"Enclosed please find a diagram identifying the feasible relocation position for the [TPS] that would meet with Center Point's request to maintain the maximum amount of frontage along Avenue 12 for commercial use. The diagram depicts both the existing site (adjacent to Avenue 12) and the new site (located approximately 1000 feet to the south nearer to the pinch point) outlined in yellow. The attached also indicates the area of the access easement (crosshatched in red) which will be necessary for vehicles to access the relocated system site. The slightly wider area of the access easement adjacent to the relocation site is to allow vehicles to turn around.

"The roadway on this access easement would be constructed by the State and maintained by Center Point.

"Final maps delineating the exact parameters of the land exchange necessary to effectuate this relocation will be developed by the State based on Center Point's approval of the enclosed diagram. Final maps will be available approximately four to six months from my receipt of Center Point's approval of the enclosed diagram and the system site relocation and land exchange plan described herein. Through this land exchange, the State will transfer the existing system facility site to Center Point in fee, and Center Point will transfer the relocation site to the State, in fee. Center Point will also transfer the access easement to the State. All transfers will occur simultaneously once the State completes final mapping based on the diagram enclosed."

There is no evidence Center Point accepted this offer, and by December 2019 State felt it was unreasonable to devote more cost and time resources to relocation. The relocation would cost just under a million dollars; it would require considerable additional efforts by HSRA, the contractor and design consultants; and it would change the right-of-way footprint, requiring several additional months for environmental clearance, all of which would cause considerable delay to HSRA's project schedule. After the parties had filed two additional sets of supplemental briefs and supporting documents, two hearings were held on Center Point's motion in January 2020.

In its order denying Center Point's motion to enforce, the court concluded State had fully complied with its obligations under provision 6D. Center Point argues there is no evidence sufficient for the trial court to conclude State exercised its best efforts to relocate the TPS.

2. Analysis a) Interpreting Provision 6D

To review the trial court's ruling as to provision 6D, the nature of the parties' performance obligations must be determined from the parties' agreement. (See Scheenstra, supra, 213 Cal.App.4th at pp. 393-394 [first step of contract analysis is to interpret and construe contract terms].) In the absence of conflicting extrinsic evidence, the trial court's interpretation of the relevant agreement is reviewed de novo. (Parsons, supra, 62 Cal.2d at p. 866.)

The parties agree that provision 6D required them to use their respective "best efforts" to accomplish TPS relocation to the area specified. And, they agree generally that provision 6D required completion of three basic tasks: (1) State had to determine the feasibility of the proposed relocation site; (2) Center Point had to deed to State the land for the relocation site and an access easement to it; and (3) in exchange, State had to deed to Center Point the land for the originally planned TPS site. The parties disagree, however, on whether formal subdivision of Center Point's property was required for relocation and, if so, who was responsible for performing the subdivision and when in the process it was to occur.

Center Point asserts any subdivision of its property was unnecessary to accomplish the TPS relocation and amounts to an idle act that State never should have insisted upon.

Further, Center Point argues, even if subdivision was required under the stipulated judgment, State's obligation to determine the feasibility of the relocation site was a condition precedent to subdivision, which State took no steps to evaluate. According to Center Point, there was no point in subdividing any portion of the triangle before State deemed it a feasible relocation site, and State was wrong for insisting otherwise. And, in any event, Center Point asserts, State was required to use its best efforts to assist Center Point with subdivision as it represented in settlement negotiations, which it unreasonably took no steps to do.

State argues that as part of the land swap, the agreement expressly and unambiguously placed on Center Point the obligation to subdivide the relocation parcel from its other property and deed it to State. That obligation, State argues, is a condition precedent to any TPS relocation. Pointing to the express language of the agreement and to Parsons's and Wilcox's declarations about the settlement conference negotiations, State asserts it was very clear the land swap was essential for any relocation. To accomplish this land swap, Center Point's property necessarily had to be subdivided, and provision 6D expressly places this obligation solely on Center Point. As any relocation of the TPS was contingent on subdivision, when Center Point failed to take any steps to subdivide its property in the six-month period, State had no obligation to relocate the TPS, whatever the feasibility of the move. Moreover, State argues, in its efforts to study feasibility, State twice asked Center Point to provide a pinpoint location within the triangle it was willing to convey, but Center Point refused to give any specific answer. Only Center Point knew what portion inside the triangle it was willing to subdivide. Without that information, State was not only unable to complete a feasibility determination, it could not have helped with any subdivision even if it somehow had the obligation to do so.

In construing the parties' obligations under the agreement, the threshold question is whether the writing is ambiguous-i.e., susceptible to more than one interpretation. (Scheenstra, supra, 213 Cal.App.4th at p. 389.) If, in light of any extrinsic evidence provisionally received, the court concludes the language of the agreement is susceptible to only one interpretation, then that clear and explicit meaning governs. (Id. at p. 390.) If no extrinsic evidence was presented, or if the extrinsic evidence is not in conflict, the resolution of the ambiguity is a question of law subject to de novo review. (Ibid.) Even where uncontradicted evidence allows for conflicting inferences to be drawn, the interpretation of the writing remains solely a judicial function. (Ibid.)

Provision 6D provided as follows:

"The parties will use their best efforts to relocate the [TPS] currently designed for a location immediately west of the high speed train right of way and adjacent to Avenue 12, to a point approximately 1,000 feet south and adjacent to the right of way. [¶]

"As the relocated [TPS] will be placed on land currently owned by Center Point, it is the parties' further intent that Center Point will deed to the State a fee simple absolute interest in a to-be-subdivided relocation parcel similarly sized and shaped as the parcel currently designed for the [TPS] adjacent to Avenue 12, together with a permanent 35' wide access easement connecting the relocation parcel with Avenue 12 through land owned and controlled by Center Point. [¶]

"Center Point will have 6 months from the earliest date that the concurrently filed Stipulation for Judgment in Condemnation was signed, to subdivide parcels 59 and/or 60 in such manner as will allow the desired relocation of the [TPS] parcel and to record the necessary deed to transfer to the State the relocation parcel as well as the permanent access easement through parcels 59 and 60. [¶]

"Once the relocation parcel is subdivided and the deed for it and the access easement are recorded, the State will transfer to Center Point LLC the parcel currently dedicated for the [TPS] adjacent to Avenue 12. [¶]

"If the parties are unable to complete the terms of this provision for the relocation of the [TPS] within the allotted time, then the State will proceed with construction of the [TPS] in the location as currently designed adjacent to Avenue 12 and none of this Special Provision D relating to the relocation of the [TPS] shall remain in effect. [¶] "All remaining provisions of this Order shall remain in full force and effect irrespective of whether this Special Provision D for the relocation of the [TPS] is voided."

Provision 6D is prefaced with a best-efforts clause. The parties are in accord that when an agreement, such as this one, does not define the phrase "best efforts," courts construe it to mean that a party must use diligent and reasonable efforts in light of the circumstances. (California Pines Property Owners Assn. v. Pedotti (2012) 206 Cal.App.4th 384, 395 (California Pines) [where not otherwise defined, best efforts means that promisor will use the diligence of a reasonable person under comparable circumstances]; Samica Enterprises v. Mail Boxes Etc. USA, Inc. (C.D. Cal. 2008) 637 F.Supp.2d 712, 717 ["'best efforts'" require "'a party to make such efforts as are reasonable in ... light of that party's ability and the means at its disposal and of the other party's justifiable expectations'"].) Before pausing to consider this best-efforts clause in more depth, we turn first to the conditions that follow it.

Provision 6D describes three conditions precedent to relocation of the TPS. A condition precedent is an act that must be performed or an uncertain event that must happen before the promisor's duty of performance arises. (Estate of Jones, supra, 82 Cal.App.5th at p. 953; Civ. Code, § 1436.) "Conditions precedent may be created either expressly-by words such as '"subject to"' or 'conditioned upon'-or impliedly." (Estate of Jones, supra, at p. 953.) Provision 6D expressly describes the following conditions to relocation: (1) subdivision of the relocation site from Center Point's property, (2) a deed trade between Center Point and State, and (3) a six-month timeframe.

These were rendered conditions precedent to relocation by provision 6D's statement that "[i]f the parties are unable to complete the terms of this provision for the relocation of the [TPS] within the allotted time, then the State will proceed with construction of the [TPS] in the location as currently designed ._" (See Diepenbrock v. Luiz (1911) 159 Cal. 716, 718-719 [words like "if" and "provided" often signal a condition precedent].) Undisputed extrinsic evidence confirms the parties' intentions in this regard: Parsons's declaration indicates the parties discussed in their settlement negotiations that any relocation would be subject to a land swap, and Wilcox's declaration indicates the parties discussed that leaving the relocation of the TPS unresolved for too long would result in possible delay damages accruing to HSRA, so there would have to be a definite deadline after which State would be allowed to proceed with its planned TPS site. In their subsequent dealings, the parties treated subdivision, deed transfer, and the six-month deadline as conditions precedent to any relocation. (See Schwab v. Bridge (1915) 27 Cal.App. 204, 207 [conditions precedent ascertained from words of contract and facts and circumstances surrounding its execution].)

The parties also recognize a separate implied condition to relocation: State's determination that relocation was feasible. By simple logic, provision 6D's best-efforts clause does not guarantee relocation, so a feasibility condition is not precluded by the express terms of the agreement. Moreover, through their negotiations and conduct, it is clear the parties intended that State conduct a feasibility assessment as a predicate to any relocation. Both Parsons and Wilcox emphasized at negotiations that relocation could not be guaranteed from an engineering or cost perspective, and State could commit only to using its best efforts to do so.

The parties expressly acknowledged State's feasibility assessment in their subsequent communications from June through August 2018. In particular, State's letter of June 5, 2018, outlined the steps that were required for relocation, starting with State's feasibility determination, which Center Point did not dispute as a necessary precursor to relocation. By supplemental declaration, Hanna noted that State had never advised him of any type of engineering, monetary, or other limiting factor in relocating the TPS, implying his understanding that relocation was conditioned on State's feasibility determination. Indeed, the parties have never argued State was not entitled to make a feasibility determination before it would be obligated to relocate the TPS.

The parties also never attempted to define what feasibility meant in particular, but based on concerns cited by the parties, including the feasibility concerns State cited in 2017 when it originally rejected Center Point's relocation site, its touchstones related to engineering and design issues about where the TPS could be located and still adequately supply power to the rail system and cost and delay implications. Throughout the proceedings, including during settlement negotiations, State had invariably been clear that project delays always subjected HSRA to liability for delay damages asserted by its design builder. Given the undefined scope of relocation feasibility, a condition both parties repeatedly acknowledged in their subsequent dealings, State retained a fairly broad power to veto relocation on feasibility grounds bounded by State's obligation to use its best efforts to accomplish relocation. Therefore, the feasibility-assessment condition is best framed within the ambit of the best-efforts clause.

The best-efforts clause did not require State to conclude relocation was feasible, only that it would use its best efforts to make that determination in light of the circumstances, which included the short time period under provision 6D. (See California Pines, supra, 206 Cal.App.4th at pp. 394-395 [best efforts does not mean every conceivable effort; it requires a party to make reasonable efforts in light of all the circumstances].) Center Point maintains this feasibility determination was a condition precedent to subdivision, meaning that if State did not make a feasibility determination, Center Point-even assuming it had to do so on its own-had no obligation to subdivide. It is clear that relocation of the TPS was predicated on State's best-efforts feasibility assessment. But even so, Center Point still had an obligation to use its best efforts to accomplish relocation just as State did, and both parties were obligated to that duty throughout the process. Even if State failed to use its best efforts to determine feasibility, Center Point was not excused from doing everything it reasonably and diligently could to prepare for subdivision. That duty existed independent of State's best-efforts obligation.

As to which party was responsible for this subdivision, provision 6D's plain language places this obligation squarely on Center Point. The provision recited that the relocation site was to be "on land currently owned by Center Point," provided that "Center Point will deed to the State a fee simple absolute interest in a to-be-subdivided relocation parcel," and stated that "Center Point will have 6 months ... to subdivide parcels 59 and/or 60 ._" State maintains this language unambiguously requires Center Point-and only Center Point-to subdivide the property necessary for the relocation, and there was no reason to specify this obligation was on Center Point if State was going to assist.

Center Point advances an alternative interpretation based on extrinsic evidence in conjunction with provision 6D's express requirement that the parties "use their best efforts to relocate the [TPS.]" Center Point relies on extrinsic evidence showing it is all but impossible to subdivide property within six months under the SMA and Parsons's assurances that State was not subject to the SMA and could quickly and easily subdivide property. Combining the short timeframe for this process with Parsons's representations, Center Point maintains the best-efforts clause is reasonably susceptible to an interpretation State had to apply its best efforts to assist with the subdivision process. In light of this, Center Point asserts, provision 6D's language requiring Center Point to subdivide should not be read as placing the burden of subdivision solely on Center Point, but as an acknowledgment that relocation would require a land swap of Center Point's property to which both parties would apply their best efforts to subdivide.

We agree the language is reasonably susceptible to Center Point's interpretation. Undisputed extrinsic evidence establishes that parcel subdivision could not realistically occur within six months without State's assistance, and State represented during negotiations it could accomplish subdivision quickly outside the SMA in response to Hanna's concerns about the timing and difficulty involved in that process. While the language of the provision clearly places the obligation of subdivision on Center Point, which supports State's plain-meaning interpretation, it can also be construed to simply articulate the basic framework of the land swap whereby Center Point's property would be subdivided for the relocation site and easement access, and that this had to be done within six months. Combining provision 6D's short timeframe to accomplish the conditions precedent along with State's representation in negotiation that it could perform subdivision quickly, the provision's best-efforts clause read in concert with the subdivision requirement is reasonably susceptible to an interpretation State had to apply its best efforts to assist with the subdivision process. (Pacific Gas, supra, 69 Cal.2d at pp. 39-40 [court should provisionally consider any extrinsic evidence that supports a reasonable interpretation]; see Civ. Code, § 1641 [whole contract is to be taken together to give effect to every part, if reasonably practicable, each clause helping to interpret the other].)

Since there is more than one reasonable interpretation of the provision's language, we apply the appropriate canons of construction to resolve the ambiguity. Our primary intent in construing the agreement is to effectuate the mutual intentions of the parties. (Civ. Code, § 1636.) In resolving an ambiguity, we consider "the surrounding circumstances under which the parties negotiated or entered into the contract; the object, nature and subject matter of the contract; and the subsequent conduct of the parties." (Morey, supra, 64 Cal.App.4th at p. 912.) The extrinsic evidence is undisputed that the parties discussed the timing problem of subdivision under the SMA in negotiating this provision, and Parsons represented State could accomplish subdivision outside the SMA. Indeed, in subsequent negotiations in 2019, State offered to relocate the TPS by shepherding a parcel exchange with Center Point through a mapping process outside the SMA. State's interpretation that it had no best-efforts obligation to assist with subdivision does not reflect the parties' conversations in negotiations, nor does it match the tight timeframe for subdivision articulated in provision 6D. Had subdivision been solely on Center Point's shoulders, it would have been nothing short of impossible to achieve in six months; it is unreasonable to believe the parties mutually intended that to be the case. (City of El Cajon v. El Cajon Police Officers' Assn. (1996) 49 Cal.App.4th 64, 71 [courts should give ambiguous written instrument a construction that will make it capable of being carried into effect and avoid interpretation that makes instrument harsh, unjust, inequitable or result in absurdity].) Provision 6D is most reasonably understood as obligating both parties to use their best efforts to achieve relocation of the TPS, which included the subdivision of Center Point's property necessary for the land swap. (See California Pines, supra, 206 Cal.App.4th at p. 393 [best efforts clause must be reconciled with other clause in contract to the extent possible].)

Based on our de novo construction, provision 6D obligated the parties to use their respective best efforts to accomplish relocation of the TPS, which included (1) determining the feasibility of the relocation area identified; (2) subdividing the relocation site from Center Point's surrounding property; and (3) completing a land swap whereby Center Point was to deed the land for the relocation site and an easement to State, and in return, State would deed the original TPS site to Center Point. The bestefforts clause obligated the parties to undertake their best efforts to complete, and/or assist each other in completing, all conditions necessary for relocation within six months of signing the stipulated judgment.

b) Applying Provision 6D to the Facts

Having interpreted the parties' obligations under provision 6D, that construction must be applied to the facts in the case. Where the facts are undisputed, we perform this task de novo. (Scheenstra, supra, 213 Cal.App.4th at p. 391.) "Conversely, when the facts to which a contract provision must be applied are disputed or require the weighing of evidence, the application of that provision presents a question of fact." (Ibid., fn. 15.) Based on the construction of the parties' agreement above, the question here is whether State breached its obligation to use its best efforts to relocate the TPS. Determining whether a party used its best efforts is a factual question to be decided by the trier of fact. (Gilmore v. Hoffman (1954) 123 Cal.App.2d 313, 320; California Pines, supra, 206 Cal.App.4th at p. 393.) For purposes of deciding a motion under section 664.6, the trial court acts as a trier of fact, and its factual findings will not be disturbed if supported by substantial evidence. (Weddington, supra, 60 Cal.App.4th at p. 815; Osumi, supra, 151 Cal.App.4th at p. 1360.)

Center Point's motion to enforce the stipulated judgment was based on State's failure to perform-i.e., breach. "'A settlement agreement is a contract, and the legal principles which apply to contracts generally apply to settlement contracts.'" (Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 789; see generally California State Auto. Assn. Inter-Ins. Bureau v. Superior Court (1990) 50 Cal.3d 658, 663-664 [noting stipulated judgments bear the earmarks of both judgments entered after litigation and contracts derived through mutual consent].) To prove entitlement to relief for breach of contract, the party seeking relief must show, by a preponderance of the evidence, the existence of a contract, performance or excused nonperformance by the party seeking relief, breach by the other party, and damages. (First Commercial Mortgage Co. v. Reece (2001) 89 Cal.App.4th 731, 745 [elements]; People v. Burnick (1975) 14 Cal.3d 306, 310 [standard of proof].) Center Point's motion to enforce sought relief under the stipulated judgment and was framed around these breach-of-contract elements; State opposed the motion on grounds it had performed under the stipulated judgment and Center Point had not-i.e., that Center Point had not proven it was entitled to relief.

Even though section 664.6 is an alternative procedure to filing a new action for breach of contract based on the breach of a settlement agreement, as a general rule, the "party desiring relief" bears the burden of proof by a preponderance of evidence. (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 866; Evid. Code, § 500 [except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting].) There is no authority for applying a different rule in this context.

In denying Center Point's motion to enforce the stipulated judgment, the trial court expressly found "State has fully complied with the Special Provision 6D ... relating to the relocation ._" Given that Center Point had the burden of proof, this is tantamount to an express finding that Center Point, as the moving party with the burden of persuasion, failed to prove State had not used its best efforts to relocate the TPS.

When the appellant had the burden of proof below, determining whether a trial court's factual findings are supported by substantial evidence "takes on a unique formulation ...." (In re S.G. (2021) 71 Cal.App.5th 654, 671.)¹³ Specifically, the question becomes whether the appellant's evidence was "'(1) "uncontradicted and unimpeached" and (2) "of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding." [Citation.]'" (Eriksson, supra, 233 Cal.App.4th at p. 733; accord, Dreyer's Grand Ice Cream, Inc. v. County of Kern (2013) 218 Cal.App.4th 828, 838 (Dreyer's); see In re R.V. (2015) 61 Cal.4th 181, 201 [where party fails to meet its burden on an issue in the trial court, "the inquiry on appeal is whether the weight and character of the evidence . . . was such that the [factfinder] could not reasonably reject it"]; Fabian v. Renovate America, Inc. (2019) 42 Cal.App.5th 1062, 1066 [where court's order denying a motion to compel arbitration is based on the court's finding that the petitioner failed to carry its burden of proof, the question for the reviewing court is whether that finding is erroneous as a matter of law].)

13 The reason for this altered substantial evidence test is best illustrated by an example: when "the plaintiff has the burden of proving the elements of his claim and the court finds he has failed to satisfy that burden, judgment will be for the defendant-even if there is no evidence supporting the defense. There being no evidence for the defense, there could be no substantial evidence in the record to support the judgment. Yet, the plaintiff, who failed to prove his case, would clearly not be entitled to reversal of the defense judgment. Plainly, the substantial evidence standard, as it is usually stated, is an inadequate appellate tool in that situation." (Eriksson v. Nunnink (2015) 233 Cal.App.4th 708, 732-733 (Eriksson).)

"'Where, as here, the judgment is against the party who has the burden of proof, it is almost impossible for him to prevail on appeal by arguing the evidence compels a judgment in his favor. That is because unless the trial court makes specific findings of fact in favor of the losing [party], we presume the trial court found the [party's] evidence lacks sufficient weight and credibility to carry the burden of proof. [Citations.] We have no power on appeal to judge the credibility of witnesses or to reweigh the evidence.'" (Patricia A. Murray Dental Corp. v. Dentsply Internat., Inc. (2018) 19 Cal.App.5th 258, 270.) "The appellate court cannot substitute its factual determinations for those of the trial court; it must view all factual matters most favorably to the prevailing party and in support of the judgment. [Citation.] '"All conflicts, therefore, must be resolved in favor of the respondent." [Citation.]'" (Dreyer's, supra, 218 Cal.App.4th at p. 838.)

Beginning with feasibility, Center Point argues there is no evidence State took any steps to determine relocation feasibility, thus Center Point was entitled to a finding State had failed to use its best efforts to relocate the TPS as it had promised to do under provision 6D. Not so. The evidence is undisputed that State collected cost and design data for assessing feasibility of the relocation site. Milton stated he gathered data and input from various project teams within HSRA and from the design builder, and Wilcox maintained that since the settlement conference, State collected input and data related to the relocation.

Center Point contends these declarations are insufficient to establish any efforts were actually taken because the statements are vague, self-serving and unsupported by any evidence of what data collection steps were actually taken. This argument, however, goes to the weight ascribed the declarations. The fact they lack detail or fail to offer any additional evidentiary support for the statements therein is a matter of weight and credibility of which the trier of fact is the sole judge. (See United Health Centers of San Joaquin Valley, Inc. v. Superior Court (2014) 229 Cal.App.4th 63, 74 [reviewing court must accept trial court's resolution of disputed facts when supported by substantial evidence, and that applies to judgments based on affidavits or declarations].) It is not the role of the reviewing court to weigh the strength of this evidence. As these declarations were admitted and support the trial court's finding State complied with provision 6D, they cannot be disregarded.

While State provided undisputed evidence it collected cost and feasibility information from the time the stipulated judgment was signed until August 2018, it never actually completed its feasibility analysis. When it became apparent in August 2018 that subdivision and the land swap could not be timely completed, State placed all the blame on Center Point's failure to subdivide as the basis to pause its efforts to study feasibility. Yet, feasibility was a condition precedent to any obligation of either party to complete subdivision. The fact State did not complete its feasibility analysis suggests it may not have used its best efforts, particularly since the parties' correspondence after settlement indicate the six-month deadline to complete the subdivision and land transfer necessary for the relocation was inserted into the stipulated judgment at State's insistence. Thus, the question is whether State's suspension of its feasibility analysis was undisputed evidence of such great weight and character the trial court was compelled as a matter of law to conclude State had failed to use its best efforts to relocate the TPS. (Dreyer's, supra, 218 Cal.App.4th at p. 838.) The short answer is that it does not.

State never guaranteed it could perform all of the conditions precedent within the six-month period. Rather, State was obligated to use its best efforts to do so, which included studying the feasibility of the relocation site. Other than the fact State was unable to timely complete its feasibility analysis, there was no evidence that compelled a conclusion State's months' long data collection efforts were not diligent or reasonable. As emphasized in settlement negotiations and the parties' subsequent communications, relocating the TPS came with design implications for delivery of power to the railway itself as well as cost and timing feasibility in the broader scope of State's project. State had to collect this information, at least in part, from its design builder.

Although Center Point argues State's data collection effort was simply a pretext to run out the six-month deadline, especially in light of the fact State was not offering any details about its feasibility analysis and was not responsive to Center Point's and Hanna's requests for status updates, the trial court did not have to draw that inference. State had refused to meet with Hanna on several occasions, but it did so because it was still conducting its feasibility analysis and felt a meeting would not be productive without that information. In fact, even though State personnel met with Hanna on August 2, 2018, about a variety of issues but were unprepared to discuss TPS relocation, it had already informed Center Point on July 25, 2018, that it did not have enough feasibility information to productively discuss the TPS relocation. Center Point, as the moving party, had the burden to show what efforts State reasonably and diligently could or should have taken that would have necessarily resulted in a timely feasibility analysis. Yet, there was no evidence State could have finished its feasibility analysis yet unreasonably failed to do so.

There was also evidence from which the trial court could have concluded State's feasibility analysis was slowed by Center Point's unwillingness to provide a pinpoint location it was willing to part with inside the triangle. Twice State asked for a metes-and-bounds location within the triangle that Center Point was willing to part with for the relocation site, but Center Point never delivered that information. Center Point contends State had known since at least 2016 that Center Point wanted to move the TPS into the triangle Center Point identified in May 2018, and thus asserts it was unreasonable and unnecessary for State to insist on a metes-and-bounds location within the triangle. Further, Center Point maintains, it had no way to know State's design requirements for the relocation parcel so it could not have offered that information even if it had been necessary.

Center Point's view of the evidence is one way the trial court could have interpreted State's request for a pinpoint location, but it could also have viewed State's request as one for information about what portion of the triangle Center Point was willing to be subdivided to better inform State's feasibility analysis. If State spent time designing the relocation site only to find Center Point was unwilling to part with various portions within the triangle, it might waste resources and/or slow the feasibility analysis.¹⁴ To the extent Center Point could not offer a specific metes-and-bounds description without additional information, Center Point never asked for any specific clarification or made any suggestions about what portions of the triangle might be more or less desirable/acceptable-Center Point just demanded a meeting, which State declined. (Lee v. Amazon.com, Inc. (2022) 76 Cal.App.5th 200, 222 [reviewing court may not substitute its own view of the correct findings for that of trial court; it must instead accept any reasonable interpretation of the evidence that supports the trial court's decision].)

14 The map and description accompanying Center Point's identification of lot 61 in its May 2018 letter appear to indicate the triangle location was over 350,000 square feet, while the existing TPS location was approximately 14,000 square feet.

Center Point also maintains that if State truly did not have the precise location information, it could not actually have been doing its feasibility analysis. This argument is predicated on an incorrect assumption State could not have collected any feasibility information without a defined location within the triangle. Even if State ultimately needed Center Point to identify a precise location to complete its feasibility analysis, there is no basis to conclude State was not otherwise determining whether any location within the triangle would work for the purposes of engineering, design or cost. The request for a precise location inside the triangle did not require the trial court to conclude State was not otherwise conducting a diligent feasibility analysis. Rather, the trial court could consider it as suggesting Center Point was hampering State's progress on feasibility. (Donahue Schriber Realty Group, Inc. v. Nu Creation Outreach (2014) 232 Cal.App.4th 1171, 1183 [reviewing court must presume trial court found every fact and drew every permissible inference necessary to support the judgment].)

It is undisputed that State paused its feasibility determination after five months rather than continuing all the way to the six-month deadline, arguing Center Point had not taken any steps to subdivide the property. Under our interpretation of the agreement, State was incorrect to assert Center Point alone had the sole obligation to subdivide the property, but State's refusal to complete the feasibility analysis is not sufficient by itself to compel a finding State failed to use its best efforts. Center Point had an equal obligation to use its best efforts to relocate the TPS, which included offering reasonable efforts to assist State in determining feasibility and in accomplishing subdivision. State had asked for a specific metes-and-bounds location within the triangle, and the trial court could have reasonably viewed Center Point's refusal to provide that information as lacking diligent effort. This evidence could reasonably support a finding Center Point had failed to use its own best efforts to assist with feasibility and the subdivision process, hampering the parties' ability to complete these tasks within the deadline. (Stop Loss Ins. Brokers, Inc. v. Brown &Toland Medical Group (2006) 143 Cal.App.4th 1036, 1051 [to recover for breach of contract, nonbreaching party must prove that it has substantially performed conditions or that performance was excused].)

Moreover, there was evidence indicating that, by August 2018, the subdivision and land swap could not be timely completed within the six-month deadline regardless of how subdivision was accomplished. When State offered to relocate the TPS in July 2019, it also offered to shepherd the subdivision process through a mapping process. But even that process, which did not involve Center Point subdividing its property under the SMA, was going to take four to six months to conclude. As such, there was evidence to support a finding State's decision to stop the feasibility analysis in August 2018, one month short of the six-month deadline, was not unreasonable. Specifically, since there was evidence State had otherwise been pursuing feasibility data, the trial court could have found that State's best efforts did not require it to continue studying feasibility when there was no longer sufficient time for either or both parties together to complete subdivision and the land swap. (California Pines, supra, 206 Cal.App.4th at pp. 394-395 [best efforts do not mean every conceivable effort, but reasonable efforts in light of that party's ability and the means at its disposal and the other party's justifiable expectations].) In view of this evidence, State's failure to conclude its feasibility analysis within the six-month window, while undisputed, did not compel as a matter of law a finding that State failed to use its best efforts.

Even after the six-month deadline, there was evidence State resumed its feasibility analysis and eventually offered to relocate the TPS. Hanna's July 2019 declaration and supporting documents indicate that even though State had suspended its feasibility analysis in August, State continued to consider the feasibility of relocating the TPS, including to a location north of Avenue 12. In July 2019, State offered to relocate the TPS "to the location initially selected by Center Point" and concluded that "[b]ased on environmental clearances, no other relocation sites are available." State offered to effectuate the necessary land exchange through a four- to six-month mapping process State would perform. The trial court could have found this offer undercut any assertion State had failed to use its best efforts: although unable to complete its feasibility determination timely, State nonetheless resumed its feasibility analysis and ultimately offered to complete the TPS relocation outside that six-month period.¹⁵

15 Center Point asserts State has unequivocally refused or otherwise failed to cooperate with or assist Center Point with relocating the TPS and points to evidence that State was no longer willing to relocate the TPS by December 2019. There is no evidence Center Point accepted the July 2019 offer, or that State rescinded the offer without Center Point having an opportunity to consider it.

Having considered the entire record, there is no evidence conclusively establishing what additional efforts State could or should have taken to complete its feasibility analysis more quickly, or that State should have arrived at the July 2019 feasibility conclusion in the summer of 2018. As such, there was no evidence compelling, as a matter of law, a finding that State failed to use its best efforts inside the six-month deadline. Moreover, by resuming and then completing its feasibility assessment and offering to relocate the TPS in July 2019, there was evidence supporting a conclusion that State continued to use its best efforts to relocate the TPS despite expiration of the sixmonth deadline. Viewing the evidence in the light most favorable to State and the judgment, the evidence is not of such great character and weight as to compel a finding, as a matter of law, that State failed to use its best efforts to relocate the TPS.

Even if State, as the unmoving party defending against an assertion of breach, had the burden to prove it exercised its best efforts to relocate the TPS, there is substantial evidence to support a conclusion that it did so. (City of Maywood v. Los Angeles Unified School Dist. (2012) 208 Cal.App.4th 362, 386 [substantial evidence is defined as "'"'"enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached"'"'"].) It was undisputed State collected feasibility data from the date of the stipulated judgment, and by August 2018 there was substantial evidence to conclude subdivision and the land swap could not be completed inside the six-month deadline even with State's full assistance on subdivision. (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630-631 [substantial evidence standard "begins and ends with a determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, in support of the judgment"].) As such, substantial evidence supported a conclusion State had used its best efforts to study feasibility and had reasonably suspended that analysis when time had run out to complete the remainder of the conditions necessary to relocation.

Further, after the six-month deadline, State resumed evaluating relocation and determined the site Center Point initially desired was feasible given the parameters State defined in its July 2019 offer. That offer to relocate included doing so through a subdivision process outside the SMA, which State and Center Point would take the necessary steps to perfect. In other words, the evidence showed that State conducted a feasibility analysis, and when it was unable to conclude its feasibility analysis in time for the parties to meet the six-month deadline with respect to all the conditions precedent, including subdivision, State paused its feasibility determination. After expiration of the six-month deadline, State nonetheless resumed its evaluation process, offered to relocate the TPS to the initially sought location, and offered to shepherd the mapping and subdivision process necessary to complete the land swap, all notwithstanding the sixmonth condition.

3. Waiver and Estoppel

Center Point claims State's offer to relocate outside the six-month deadline constitutes waiver of the provision, or State should be judicially estopped from relying on the six-month deadline. "Like any other contractual terms, timeliness provisions are subject to waiver by the party for whose benefit they are made." (Galdjie v. Darwish (2003) 113 Cal.App.4th 1331, 1339, fn. omitted.) Further, "under general contract principles, in the absence of consideration or estoppel," a waiver of contractual rights "may be retracted" and the rights "restored at any time." (Storek & Storek, Inc. v. Citicorp Real Estate, Inc. (2002) 100 Cal.App.4th 44, 58, fn. 11.) Here, the six-month deadline was a condition to relocation that Center Point concedes was solely for State's benefit. Even assuming State waived that condition, there is no evidence State's decision to do so was supported by additional consideration, and, as noted below, substantial evidence supports an implied finding any claim to equitable estoppel was not established. As such, State was entitled to subsequently reassert the condition after its July 2019 offer was not accepted.

Center Point argues State should be equitably estopped from relying on the sixmonth condition as it never would have agreed to that deadline had it known State was going to refuse to timely determine feasibility of the relocation site and refuse to work with Center Point on subdivision of its property.

To establish equitable estoppel, it must be shown that (1) the party to be estopped was apprised of the facts; (2) that party intended its conduct to be acted upon, or must so act that the party asserting the estoppel has a right to believe it was so intended; (3) the other party must be ignorant of the true state of facts; and (4) that other party must rely upon the conduct to his injury. (Strong v. County of Santa Cruz (1975) 15 Cal.3d 720, 725.) In cases involving equitable estoppel against the government, a court must also weigh the policy concerns to determine whether the avoidance of injustice in the particular case justifies any adverse impact on public policy or the public interest. (City of Long Beach v. Mansell (1970) 3 Cal.3d 462, 496-497.)

The existence of estoppel is generally a factual question for the trier of fact to decide, unless the facts are undisputed and can only support one reasonable conclusion as a matter of law. (Platt Pacific, Inc. v. Andelson (1993) 6 Cal.4th 307, 319.) The party asserting application of equitable estoppel bears the burden of proof. (Pacific Gas &Elec. Co. v. Hacienda Mobile Home Park (1975) 45 Cal.App.3d 519, 531.) We review factual findings regarding the existence of estoppel under the substantial evidence test. (Schafer v. City of Los Angeles (2015) 237 Cal.App.4th 1250, 1263.)

As Center Point claims its assertions of waiver and equitable estoppel were presented to the trial court in its supplemental trial brief, the trial court's ruling necessarily implies a finding Center Point failed to prove its entitlement to relief on these grounds. In view of Center Point's burden and the evidence regarding the parties' performance discussed above, we are unable to conclude that, as a matter of law, the evidence compels application of equitable estoppel or waiver against State.

DISPOSITION

The judgment is affirmed. Center Point shall bear the costs of appeal. (Cal. Rules of Court, rule 8.278, subd. (a)(1).)

WE CONCUR: FRANSON, Acting P. J., PENA, J.