Filed 1/16/20 C&D II Ranch, LLC v. Hayes CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

C&D II RANCH, LLC, et al.,

Plaintiffs and Appellants,

v.

DARRELL HAYES, et al.,

Defendants and Respondents.

F076381

(Super. Ct. No. 2008227)

OPINION

APPEAL from a judgment of the Superior Court of Stanislaus County. Timothy W. Salter, Judge.

Downey Brand and James M. Morris for Plaintiffs and Appellants.

Triebsch & Frampton and Michael G. Dini for Defendants and Respondents.

-ooOoo-

Plaintiffs and appellants C&D II Ranch, LLC (C&D) and DLM Ranch, LLC (DLM) (collectively appellants) challenge a judgment entered after the trial court’s granting of defendants’ and respondents’ Hayes Ranch, Inc. and Darrell Hayes’s motion to enforce the parties’ settlement agreement pursuant to Code of Civil Procedure section 664.6. We conclude the trial court correctly determined the settlement agreement created a valid easement, and correctly interpreted the settlement agreement with respect to the easement’s creation without adding any material terms to the agreement.

FACTS

The Parties and their Properties

David and Leslie Moreland own a 75% interest in C&D and a 95% interest in DLM. When this litigation commenced in the trial court, David Moreland was a manager of both companies. Hayes Ranch, Inc. is a family owned business, owned by respondent Darrell Hayes and his family.

Hayes owns agricultural land in Stanislaus County (Hayes’s property) and farms almonds and walnuts. In 2005, DLM acquired property (DLM’s property) adjacent to Hayes’s property. DLM’s property is located to the north of Hayes’s property, and the shared border between the properties spans approximately 3,337 feet. Beginning at the western end of the shared border, the border heads east for approximately 2,175 feet. The border then turns sharply southward and continues almost directly south for approximately 750 feet. The border then turns back towards the east and continues in that direction for approximately 412 feet. The shared border can be described as being made up of three segments.

DLM planted almonds and hired a management company to operate its property. In October 2009, Hayes took over the farming operations and farmed DLM Ranch from 2010 to 2013 without a written agreement. Hayes contended there was an oral agreement between Darrell Hayes and DLM for Hayes to farm the ranch for 25 years which DLM was to reduce to a writing and present to Darrell Hayes for signature. David Moreland presented a few versions of a written agreement to Darrell Hayes, but a binding agreement was never signed. During the term of the crop share arrangement, Hayes planted almond trees on its property close to its shared property line with DLM—so close that Hayes could not turn farm equipment around at the north end of its rows of trees without going onto DLM’s property. However, appellants did not complain since Hayes was farming both DLM’s property and its own.

In July 2010, C&D purchased a ranch in Stanislaus County (C&D’s property) north of and adjacent to DLM’s property. After purchasing the property, C&D signed a crop share agreement for Hayes to farm the almond and walnut orchards on C&D’s property. The agreement was for a 10-year term, but was cancelable on 90 days’ notice under certain circumstances. C&D alleged it terminated the agreement on March 25, 2014, but Hayes disputed the effectiveness of the termination and refused to surrender the property.

In March 2014, at the same time C&D attempted to cancel the crop share agreement with Hayes for C&D Ranch, DLM attempted to have Hayes cease any further activity on DLM Ranch. DLM was unsuccessful as Hayes refused to leave the property.

On April 28, 2014, C&D and DLM each filed separate lawsuits against Hayes for damages and declaratory relief. Hayes answered both complaints, and on June 13, 2014, filed cross complaints against C&D, DLM, and their principals, asserting appellants were estopped from asserting the statute of frauds in defense against the oral 25-year crop share agreements.

The Settlement

To settle their disputes in all of the cases, the parties retained the services of mediator The Honorable Hurl Johnson, a retired Stanislaus County Superior Court judge. On April 18, 2016, the parties, their attorneys, and the mediator held a mediation session which resulted in a comprehensive seven-page settlement agreement that was signed by the parties, their attorneys, and the mediator. The settlement agreement contained sixteen numbered paragraphs, each representing a separate term (or point) of settlement. As pertinent to this appeal, paragraph 9 of the settlement agreement provided for the creation of an easement in favor of Hayes over DLM’s property, and paragraph 12 provided for recovery of attorney fees and costs in the event a party had to resort to litigation to enforce the agreement. The settlement agreement read in relevant part as follows:

“Stipulation for Settlement

“IT IS HEREBY STIPULATED by and between the parties through the respective counsel or representative of each that the above-reference[d] case has been settled according to the terms memorialized below. This settlement document is intended by the parties to be binding and enforceable in court—in state court by motion pursuant to C.C.P. § 664.6 and Evidence Code § 1123, or in federal court by motion pursuant to the inherent power of the court to enforce settlement agreements and in accordance with applicable federal rules and procedures and evidence. [¶] … [¶]

“The terms, conditions and content of this stipulation are the product of the counsel and not the mediator, the parties acknowledge that the mediator serves only as scribe not originator. All relevant parties must sign below. [¶] … [¶]

“9. Plaintiffs will give to defendants an easement running with the land on the North side of the defendants’ ranch to allow for defendants turn-around of vehicles for farming/harvesting purposes; cost of easement to be defendants’ expense; [¶] … [¶]

“12. In the event that any party would bring an action to enforce this settlement agreement the prevailing party shall be entitle[d] to recover reasonable attorney fees and costs.”

On April 22, 2016, appellants’ counsel filed a notice of conditional settlement of the consolidated cases. The notice stated (1) the settlement agreement conditioned dismissal of the case on the satisfactory completion of specified terms that would not be performed within 45 days and (2) a request for dismissal would be filed within one year.

Post-Mediation Discussions

In the months that followed, Hayes’s counsel prepared draft versions of a proposed declaration of easement. In the early drafts exchanged between the parties, each of the parties attempted to broaden the easement terms beyond those expressed in paragraph 9 of the settlement agreement. For example, Hayes sought a broader right–of–way use to allow for “ingress and egress” instead of mere “turn-around” rights, and also sought to specify that the easement be 50 feet wide, although the settlement agreement did not specify a width. Hayes additionally sought to have the maintenance costs of the easement be shared equally by the parties. All of these items were unacceptable to appellants.

Appellants, on the other hand, sought to include a 2023 easement termination date, arguing it was unnecessary for the easement to be perpetual. They explained that Hayes caused the need for the easement by planting its almond trees so close to the property line it shared with DLM’s property that Hayes could not turn its farm equipment around at the end of rows without going onto DLM’s property. However, according to appellants, Hayes’s almond trees will have a useful life until 2023, at which point the offending trees can be removed, and the need for the easement will then be eliminated. Thus, in appellant’s view, the easement should be of limited duration. Hayes rejected this argument and responded that the parties never before discussed the easement being of limited duration. Hayes also maintained that, since the easement’s width was unspecified, Hayes would be allowed to use a width of the easement as governed by notions of “reasonable use.”

After being unable to agree on an acceptable declaration of easement for almost a year, Hayes informed appellants it would be filing a motion to enforce the settlement agreement under section 664.6.

On February 24, 2017, before Hayes filed its section 664.6 motion, appellants filed a complaint for specific performance of the settlement agreement and for declaratory relief. Appellants allege in the complaint the parties have entered into a settlement agreement and Hayes has not complied with its obligations thereunder. Appellants request in the complaint that the trial court declare each parties’ duties under the settlement agreement, including with respect to the easement. Hayes filed an answer to this complaint, and the complaint is still pending in the trial court.

Section 664.6 Motion

On June 13, 2017, Hayes filed its motion for entry of judgment enforcing the settlement agreement under section 664.6. Hayes argued the motion was appropriate because the parties intended the settlement agreement to be binding and enforceable. Appellants opposed the motion, arguing the parties did not intend for paragraph 9 of the settlement agreement (the easement paragraph) to be binding; rather, the parties intended to continue negotiating with respect to several terms, including the duration, length and location, and width of the easement, as well as with respect to the parties’ maintenance obligations concerning the easement. As appellants stated in their opposition papers: “This case doesn’t involve merely an ambiguity in the Stipulation for Settlement; essential terms were left out. The parties never agreed to how long the easement would exist. [¶] … [¶] Other open items are the dimensions of the easement—its length, width, and location—who will maintain it, and who will be responsible for repairing damage to it.”

At the motion hearing, appellants’ counsel asserted, for the first time, the easement length does not span the entire shared border of DLM’s property and Hayes’s property, but rather is be confined to that certain segment of the border that begins at the western border of the two properties and extends eastward for approximately 2,175 feet. Appellants’ reasoning was that the settlement agreement provided that the easement would be on “the North side of the [Hayes’s] ranch,” and, according to appellants, the remainder of the shared border was along the east side of Hayes’s property. Hayes’s counsel called this argument “preposterous” because Hayes had rows of almond trees along the property’s entire shared border, and thus an easement to turn equipment would be needed along the entire length of the border.

With respect to appellants’ contention the easement should have a termination date, the trial court noted at the hearing the settlement agreement says the easement “shall run with the land” and makes no provision for a termination date.

On August 3, 2017, the court granted Hayes’s motion. Judgment was entered on September 18, 2017, providing, in relevant part:

“1. The court hereby declares that a general right of way easement running with the land exists over the Southern portion of land owned by DLM RANCH, LLC (Stanislaus County APN 015-002-045) for turn-around of vehicles for farming and/or harvesting purposes and for the benefit of present and future owners of land commonly known as HAYES RANCH (Stanislaus County APN 015-002-011 and 015-015-063), as more fully set forth as follows:

“DLM Ranch, LLC, is the owner of a portion of that land more particularly described in that certain Grant Deed recorded as Document Number 2005-0032088 in the Official Records of the County of Stanislaus, said lands being shown on that certain Record of Survey filed in Book 29 of Surveys, Page 51, Stanislaus County Records (the “Servient Estate”). That portion of the Servient Estate that borders the Dominant Estate, as described below, is declared to be, and hereby is, subject to an easement appurtenant along the South borders of the Servient Estate for non-obstructive turning of vehicles for farming and/or harvesting purposes. Such easement will be binding upon successor owners and runs with the land.

“The easement shall be for the non-exclusive use and benefit of the present and future owners of the land described in the Grant Deed recorded in the Official Records of Stanislaus County Document Number 2013-0053647 (the “Dominant Estate”), and their guests, invitees, agents and tenants.

“It is further declared that, the cost of the easement maintenance shall be defendants’ expense.”

Appellants timely filed a notice of appeal of the judgment.

DISCUSSION

Appellants appear to raise two claims on appeal. Their first claim seems to be that the trial court erred in finding that paragraph 9 of the settlement agreement created a valid easement. They maintain paragraph 9 does not contain the essential terms for the creation of a valid easement. However, this runs contrary to their position in their complaint for specific performance and declaratory relief—which is still pending below—in which they necessarily maintain paragraph 9 is enforceable. We perceive their second claim to be that the trial court impermissibly added material terms to the settlement agreement to which the parties had not agreed.

We conclude the trial court’s implied finding that paragraph 9 of the settlement agreement created a valid easement was supported by substantial evidence. We further conclude the trial court properly interpreted the terms of the settlement agreement—as it was allowed to do under section 664.6—and did not impermissibly add material terms to the agreement. We affirm the judgment.

I. Standard of Review

A trial court’s factual findings on a motion pursuant to section 664.6 are reviewed under the substantial evidence standard. (Karpinski v. Smitty’s Bar, Inc. (2016) 246 Cal.App.4th 456, 461.) Where the question on appeal involves the interpretation of the settlement agreement, the general rules regarding contract interpretation apply. (Winet v. Price (1992) 4 Cal.App.4th 1159, 1165 (Winet).) Thus, the standard of review when interpreting a settlement agreement depends on whether conflicting extrinsic evidence was presented. (Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865–866.) If the trial court interpreted the agreement without resorting to extrinsic evidence, or if the relevant evidence was not in conflict, our review is de novo. (Argonaut Ins. Co. v. Transport. Indem. Co. (1972) 6 Cal.3d 496, 502; Abers v. Rounsavell (2010) 189 Cal.App.4th 348, 357.) If, however, the trial court considered conflicting evidence to aid in its interpretation, we will uphold a reasonable construction of the agreement if supported by substantial evidence. (In re Marriage of Fonstein (1976) 17 Cal.3d 738, 746–747 (Fonstein).)

II. Basic Legal Principles

A. Formation of an Enforceable Settlement Agreement

1. Motions Under Section 664.6

The strong public policy of California is to encourage the voluntary settlement of litigation. (Osumi v. Sutton (2007) 151 Cal.App.4th 1355, 1359 (Osumi).) Section 664.6 promotes this public policy by providing an expedited procedure for enforcing a settlement once the parties have agreed to it. (Id. at p. 1360.) This expedited procedure permits the entry of a judgment on the settlement without the filing of a new lawsuit. Section 664.6 provides in full:

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

Before judgment can be entered under section 664.6, two key prerequisites must be satisfied. (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 797.) “First, there must be contract formation. The litigants must first agree to the material terms of a settlement contract before a judgment can be entered ‘pursuant to the terms of the settlement.’ If no meeting of the minds has occurred on the material terms of a contract, basic contract law provides that no contract formation has occurred. If no contract formation has occurred, there is no settlement agreement to enforce ….” (Ibid.) “Second, there must be a ‘writing signed by the parties’ that contains the material terms.’ ” (Ibid.)

2. Standards of Contract Interpretation

The interpretation of a contract involves “a two-step process: ‘First the court provisionally receives (without actually admitting) all credible evidence concerning the parties’ intentions to determine “ambiguity,” i.e., whether the language is “reasonably susceptible” to the interpretation urged by a party. If in light of the extrinsic evidence the court decides the language is “reasonably susceptible” to the interpretation urged, the extrinsic evidence is then admitted to aid in the second step—interpreting the contract.’ ” (WYDA Associates v. Merner (1996) 42 Cal.App.4th 1702, 1710 (WYDA).)

“[T]he interpretation of a settlement agreement is governed by the same principles applicable to any other contractual agreement ….” (Winet, supra, 4 Cal.App.4th at p. 1165.) The California Supreme Court has stated: “The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties [as it existed at the time of contracting ….] (Civ. Code, § 1636.) If contractual language is clear and explicit, it governs. (Civ. Code, § 1638.)” (Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1264; accord, Horath v. Hess (2014) 225 Cal.App.4th 456, 463–464 (Horath).) “ ‘The language of a contract is to govern its interpretation, if the language is clear and explicit, and does not involve an absurdity.’ [Citation.] ‘When a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone, if possible ….’ ” (WYDA, supra, 42 Cal.App.4th at p. 1709; see Horath, at p. 463.)

“ ‘California recognizes the objective theory of contracts [citation], under which “[i]t is the objective intent, as evidenced by the words of the contract, rather than the subjective intent of one of the parties, that controls interpretation.” ’ ” (Iqbal v. Ziadeh (2017) 10 Cal.App.5th 1, 8 (Iqbal).) “[E]vidence of the undisclosed subjective intent of the parties is irrelevant to determining the meaning of contractual language.” (Winet, supra, 4 Cal.App.4th at p. 1166, fn. 3.) “It is the outward expression of the agreement, rather than a party’s unexpressed intention, which the court will enforce.” (Id. at p. 1166; see Salehi v. Surfside III Condominium Owners’ Assn. (2011) 200 Cal.App.4th 1146, 1159.)

III. The Settlement Agreement Created a Valid Easement

Appellants contend paragraph 9 was not an enforceable provision of the settlement agreement because it lacked the essential terms for the creation of a valid easement. Specifically, they posit that a writing purporting to create an easement must specify the easement’s duration, length and location, and width, as well as the parties’ maintenance obligations with respect to the easement, in order for the easement to be valid. We conclude none of these terms are essential to create a valid easement, and in turn conclude the trial court’s finding that the settlement agreement created a valid easement was supported by substantial evidence.

A. Intent to be Bound

We note at the outset that at the top of the settlement agreement the following words are printed: “This settlement document is intended by the parties to be binding and enforceable in court—in state court by motion pursuant to C.C.P. § 664.6 and Evidence Code § 1123[] ….” The plain meaning of this language is that the parties intended for the entire settlement agreement to be binding. There is no other language anywhere in the settlement agreement, nor any extrinsic evidence in the record, indicating paragraph 9 was not intended to be binding and enforceable.

B. Valid Easement Created

An easement is defined as “a burden or servitude upon land, whether or not attached to other land as an incident or appurtenance, that allows the holder of the burden or servitude to do acts upon the land.” (Civ. Code, § 887.010.) In essence, the easement holder has a right to use someone else’s land for a specified purpose. (Kazi v. State Farm Fire & Casualty Co. (2001) 24 Cal.4th 871, 880.)

An easement may be created in a number of ways, including by grant deed or by contract. A contract or conveyance purporting to create an easement must comply with the same formal requirements as those required for creation of an estate in land of like duration. (Rest.3d Property, §§ 2.1, com. a, 2.7.) Those formal requirements are (1) compliance with the statute of frauds and (2) identification of the grantor, the grantee, and the servient estate. (Civ. Code, § 1624, Code Civ. Proc. § 1971; French, Basic Easement Law: California and the Restatement (Third) of Property: Servitudes (Cont.Ed.Bar 2019) § 1.20.) Compliance with the statute of frauds requires a written instrument signed by the owner of the land or estate to be burdened by the easement. (Civ. Code, § 1624; Code Civ. Proc., § 1971.)

Here, the settlement agreement was in writing and signed by all parties and their counsel, thus satisfying the statute of frauds. Additionally, the settlement agreement clearly identifies appellants as the grantors as they are granting the easement to Hayes, who is the grantee. The settlement agreement also makes clear the purpose of the easement: “for the turn-around of vehicles for farming and harvesting purposes.” Paragraph 9 of the settlement agreement created a valid and enforceable easement.

C. Non-Essential Terms

Although appellants contend duration, length and location, width, and maintenance obligations are essential terms that must be included in the writing purporting to create an easement, they cite no legal authority in support of this proposition. Hayes therefore urges us to deem appellants’ argument regarding the essentiality of terms forfeited. Hayes aptly states that “[a] legal contention stated as a bare assertion without supporting authority is forfeited.” (People v. Watkins (2009) 170 Cal.App.4th 1403, 1410.) Furthermore, we note that “[w]e are not bound to develop appellants’ arguments for them.” (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830.) Notwithstanding Hayes’s legitimate contention that appellants have forfeited their argument regarding the essentiality of their enumerated terms, we will nevertheless proceed in our analysis. Given our conclusion that this case is devoid of any error, we find it unnecessary to decide—at least at this juncture—whether appellants have indeed forfeited this argument.

We can locate no authority holding that duration, length and location, width, and maintenance obligations are essential terms to create a valid easement. In fact, we found authority that says just the opposite. With respect to the dimensions of an easement, in Southern California Edison Company v. Severns (2019) 39 Cal.App.5th 815 (Severns), the Court of Appeal reiterated the rule that “ ‘easements and licenses may, but need not, have definite boundaries other than the boundaries of the servient tenements themselves. An easement granted in general terms, nonspecific as to its particular nature, extent or location, is … perfectly valid. It entitles the holder to choose a “reasonable” location and to use such portion of the servient tenement as may be reasonably necessary for the purposes for which the easement was created.’ ” (Id. at p. 823.) Also, with respect to width, when the instrument creating an easement appurtenant is silent as to width, the dominant tenement is entitled to use “such portion of the servient tenement as may be reasonably necessary for the purposes for which the easement was created.” (Ibid.) Finally, with respect to the parties’ maintenance obligations, Civil Code section 845 places the onus on the servient tenement to maintain a private right-of-way easement in repair. Since the servient tenement has a statutory duty to maintain the easement, it is unsurprising we find no authority holding that maintenance obligations must be specified in writings creating easements.

We conclude that none of appellants’ enumerated terms are required to be specifically provided for in a writing purporting to create an easement. We now proceed to the issue of whether the trial court impermissibly added terms to the settlement agreement to which the parties had not agreed.

IV. The Judgment’s Interpretation of the Easement

Section 664.6 allows a trial court to interpret, but not add terms to, the settlement agreement reached by the parties. Appellants contend the trial court impermissibly added “material terms” to the settlement agreement, but do not specify which material terms were purportedly added. For sake of our analysis, we will assume appellants contend each of the enumerated terms that were purportedly essential were also impermissibly added into the agreement. We conclude the trial court accurately interpreted and did not add any material terms to the settlement agreement. In other words, the judgment entered was an accurate interpretation of the settlement agreement.

The trial court impliedly found that the settlement agreement provided the duration, length and location, and the parties’ maintenance obligations with respect to the easement, and we conclude these findings were supported by the evidence. As the settlement agreement was silent as to the width of the easement, we conclude the trial court was correct to omit any mention of width from the judgment. We discuss each of these terms in turn.

A. Duration

Although the settlement agreement does not expressly state the easement “shall be perpetual in duration,” the agreement contains words tantamount to that effect. The agreement says appellants shall give Hayes “an easement running with the land.” In the law of covenants, to run with the land means to “benefit or be binding upon each successive owner” of land affected by the covenant. (Civ. Code, § 1468.) A covenant that runs with the land “bind[s] the ‘assigns of the covenantor’ and vest[s] in the ‘assigns of the covenantee.’ ” (Hudson Oil Co. v. Shortstop (1980) 111 Cal.App.3d 488, 493.)

The language in the settlement agreement is thus plain and unambiguous, and appellants’ explanation of why the easement is not going to be needed after year 2023 plainly contradicts this language. There is no evidence appellants or their counsel ever communicated the idea of an easement termination date to Hayes until after the settlement agreement had been duly signed by all parties, which is to say there is no evidence the parties ever contemplated a termination date. Under California law, the undisclosed subjective intent or expectation of a party to the contract is irrelevant to determining the meaning of the language communicated in the document the parties signed. (Iqbal, supra, 10 Cal.App.5th at p. 8 [words of the contract are evidence of the objective intent]; Alexander v. Codemasters Group Limited (2002) 104 Cal.App.4th 129, 141, declined to follow on other grounds by Reid v. Google, Inc. (2010) 50 Cal.4th 512, 524.) As the trial court stated during the hearing on the section 664.6 motion: “I think the settlement agreement is pretty clear, and one of the provisions regarding that paragraph 9 was that the easement shall run with the land, so [appellants’] contention that after 2033 or whenever it was, there’s not going to be any need for the easement, sorry, but that’s not what the settlement agreement says.”

We conclude the trial court’s implied finding that the easement is of perpetual duration was supported by substantial evidence and appellants’ declarations are insufficient to compel a contrary finding. Even under de novo review, we would conclude the settlement agreement created an easement of perpetual duration. We additionally conclude the trial court’s judgment accurately reflects what the settlement agreement says regarding the easement’s duration. The judgment grants an easement “running with the land” over DLM Ranch, and additionally says the easement shall be for “the benefit of the present and future owners of [Hayes’s property] and their guests, invitees, agents and tenants.” This language merely reflects what was in the settlement agreement and does not add any material terms.

B. Length and Location

The settlement agreement provided that the easement is to be on “the North side of [Hayes’s] ranch to allow for defendants turn-around of vehicles for farming/harvesting purposes.” The judgment contains different wording. It says the easement “exists over the Southern portion of land owned by DLM … for turn-around of vehicles for farming and/or harvesting purposes.” The judgment additionally says: “That portion of the Servient Estate that borders the Dominant Estate … is declared to be, and hereby is, subject to an easement appurtenant along the South borders of the Servient Estate for non-obstructive turning of vehicles for farming and/or harvesting purposes.”

Appellants contend the language of the settlement agreement should have been interpreted to provide that the easement spanned only a segment of the shared border between DLM’s property and Hayes’s property. They contend the trial court erred by interpreting the settlement agreement to span the entire length of the shared border. We conclude that the judgment properly interpreted the settlement agreement to provide for an easement spanning the entire shared border.

In the trial court, appellants argued the language in the settlement agreement referring to “the North side of the [Hayes’s] ranch” denoted only the 2,175-foot section of the shared border that runs from the far west border and extends eastward, stopping at the point that the border turns southward. Appellants maintained that the remaining length of the shared border is on the east side of Hayes’s ranch, not the north side. Hayes called this interpretation “preposterous,” given that almond trees are planted along the entire length of the shared border, thus necessitating an easement spanning the entire length. To Hayes, “the North side of the [Hayes’s] ranch” referred to the entire length of the shared border between Hayes’s and DLM’s properties. The trial court impliedly rejected appellants’ interpretation and found the easement spanned the entire shared border.

That the parties ascribed conflicting meanings to the phrase “the North side of the [Hayes’s] ranch” presents us with a question of contract interpretation involving a two-step analysis. (WYDA, supra, 42 Cal.App.4th at p. 1710.) The first step is to determine whether the contract provision in question is reasonably susceptible to more than one meaning. (Ibid.) In making this determination, we may look to surrounding circumstances to discern what the parties intended. (Brown v. Pacifica Foundation, Inc. (2019) 34 Cal.App.5th 915, 930.) Only if we find that the provision is reasonably susceptible to more than one meaning do we proceed to the second step to determine whether the meaning the trial court ascribed to the provision was supported by substantial evidence. (WYDA, supra, 42 Cal.App.4th at p. 1710; Fonstein, supra, 17 Cal.3d at pp. 746–747.) Extrinsic evidence may be introduced to explain the meaning of the provision “ ‘ “[if] the meaning urged is one to which the [provision is] reasonably susceptible,” ’ but cannot be used to ‘ “add to, detract from, or vary the terms of” ’ ” the provision. (Otay Land Co., LLC v. U.E. Limited LP (2017) 15 Cal.App.5th 806, 855.)

Once we have determined via the two-step analysis whether the trial court properly interpreted the meaning of the phrase “the North side of the [Hayes’s] ranch” in the settlement agreement, we then must decide whether the judgment accurately reflected this interpretation.

1. Meaning in the Settlement Agreement

To determine whether the phrase “the North side of [Hayes’s] ranch” is reasonably susceptible to more than one meaning, we may look to the map of the two properties as well as to the parties’ statements. From looking at the map, we observe that although Hayes’s property is not perfectly square, it is roughly comprised of north, south, east, and west sides. However, we believe reasonable minds could differ regarding where the “north” side ends and the “east” side begins. One reasonable person could opine from examining a map of Hayes’s property that the north side ends, and the “east” side begins, at the point the shared border turns south, while another could opine the “north” side is comprised of the entire length of the shared border. Concerning the latter interpretation, all three segments that make up the length of the shared border have a northerly aspect. In particular, the portion of the border that begins at the point at which the border turns southward and then continues eastward until the border ends could be described as having a north-eastern orientation. We therefore believe the phrase is reasonably susceptible to more than one meaning.

We turn now to the meaning the trial court ascribed to the phrase. The trial court impliedly interpreted the phrase “the North side of [Hayes’s] property” to refer to the entire length of the shared border, and we believe this interpretation was supported by substantial evidence. We also believe this interpretation did not impermissibly add to, modify, or contradict the language in the phrase “the North side of [Hayes’s] property” because, as we have explained, all three segments comprising the shared border retain a northerly aspect. Specifically, there was substantial evidence the parties intended, at the time they entered into the settlement agreement, for the phrase “the North side of [Hayes’s] ranch” to refer to the entire length of the shared border. The strongest evidence of this intent was the uncontroverted fact that Hayes has rows of trees along the entire length of the shared border, which necessitates an easement that extends the entire length in order for Hayes to be able to turn around its farm equipment at the end of each row. If the easement did not extend the entire length of the shared border, then Hayes would not be able to turn around its farm equipment at the end of rows located east of the point at which the shared border turns south without trespassing on DLM’s property. We find it difficult to believe the parties mutually intended the easement to extend only to the point at which the border turns south.

We also observe there is nothing in the record indicating appellants ever conveyed to Hayes at any point before the motion hearing the notion that the easement does not span the entire length of the shared border, which indicates the concept was not conceived until after the settlement agreement was signed. In light of all the facts and surrounding circumstances, we believe it is highly unlikely during settlement negotiations, or when the settlement agreement was signed, that the parties ever contemplated the easement would extend to only a segment of the shared border as opposed to the entire length of the border.

We conclude there was substantial evidence to support the trial court’s interpretation that the settlement agreement created an easement spanning the entire length of the shared border.

2. Interpretation in the Judgment

Having determined there was substantial evidence to support a finding the settlement agreement provided for an easement spanning the entire length of the shared border, we now review whether this finding was properly interpreted in the judgment. We conclude it was.

The settlement agreement and the judgment define the length of easement from different reference points. The settlement agreement defines the length with reference to Hayes’s property whereas the judgment defines it with reference to DLM’s property. The settlement agreement states the easement is “on the North side of the [Hayes’s] ranch.” On the other hand, the judgment states: “That portion of [DLM’s property] that borders [Hayes’s property] … is declared to be, and hereby is, subject to an easement appurtenant along the South borders of [DLM’s property] ….” We conclude the language from the settlement agreement has the same meaning as the language from the judgment with respect to the easement’s length and location.

C. Maintenance Obligations

The judgment places the maintenance obligations of the easement wholly on Hayes, who owns the dominant tenement. Appellants contend that although the settlement agreement did not provide who would be responsible for maintenance obligations, the trial court nevertheless properly placed the obligations on Hayes because Hayes agreed post-settlement to be responsible for the obligations. The trial court, however, placed the maintenance obligations on Hayes for a different reason. At the motion hearing, the trial court stated that the terms of the settlement agreement place the maintenance obligations wholly on Hayes. The trial court thus evidently interpreted the phrase “Cost of easement to be defendants’ expense” as referring to the cost of maintaining the easement. We believe the trial court’s interpretation here was reasonable and supported by substantial evidence. But in any event, appellants do not argue with the judgment’s placing the maintenance obligations wholly on Hayes.

D. Width

Since the easement’s width was not specified in the settlement agreement, the trial court properly made no provision for it in the judgment. When the instrument creating an easement appurtenant is silent as to width, the dominant tenement is entitled to use “such portion of the servient tenement as may be reasonably necessary for the purposes for which the easement was created.” (Severns, supra, 39 Cal.App.5th at p. 823.) What constitutes reasonable use or a reasonable width here is a question not before us today because the trial court has not yet been asked to address it. All we are required to do here, as far as the easement’s width is concerned, is confirm that the easement is not invalid for not specifying the width, and confirm that the trial court properly omitted any mention of width from the judgment.

V. Attorney Fees on Appeal

In its section 664.6 motion, Hayes sought to recover its attorney fees and costs incurred in connection with the preparation and filing of the motion. The request was made pursuant to paragraph 12 of the settlement agreement, which allows the prevailing party in an action brought by any party to enforce the settlement agreement to recover “reasonable attorney fees and costs.” The trial court awarded costs but not attorney fees because, as the court explained, appellants acted properly in refusing to sign certain easement terms proffered to them by Hayes that were not included in the settlement agreement, namely that maintenance costs for the easement should be shared by the parties.

Hayes is not appealing the denial of its request for attorney fees incurred in connection with bringing the section 664.6 motion. It has, however, requested in its brief on appeal that it be allowed to recover its attorney fees and costs incurred in connection with this appeal. Hayes’s request is made pursuant to paragraph 12 of the settlement agreement and section 1021 ([except as provided by statute, the payment of attorney fees is left to the agreement by the parties]). Appellants, in their reply brief, contend Hayes is not entitled to attorney fees and costs on appeal because Hayes’s request (1) was not made in a cross-appeal and (2) is not supported by any argument or analysis. We conclude Hayes is entitled to recover reasonable attorney fees and costs on appeal.

It is well-settled “that fees, if recoverable at all—pursuant either to statute or parties’ agreement—are available for services at trial and on appeal.” (Serrano v. Unruh (1982) 32 Cal.3d 621, 637; Douglas E. Barnhart, Inc. v. CMC Fabricators, Inc. (2012) 211 Cal.App.4th 230, 250.) Since attorney fees and costs were expressly recoverable here pursuant to paragraph 12 of the settlement agreement, Hayes is entitled to recover its attorney fees and costs on appeal to be determined by the trial court. (§ 1021.)

Hayes is not required to request attorney fees and costs on appeal by way of a cross-appeal; again, it is not appealing the trial court’s denial of its request of attorney fees and costs incurred in connection with the trial court proceedings. An attorney fee request in the appellate court may be made either by motion included in the appellate brief or by separate formal motion. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2019) ¶ 14:119; see Ajida Technologies, Inc. v. Roos Instruments, Inc. (2001) 87 Cal.App.4th 534, 550; and see Banning v. Newdow (2004) 119 Cal.App.4th 438, 458–459 [request made in brief but denied due to lack of argument or analysis on issue].)

Additionally, Hayes’s request was supported by adequate argument and analysis. The request was set forth under a separate heading in the brief and Hayes quoted the language from paragraph 12 that entitles it to attorney fees and cited section to section 1021, which permits parties to recover attorney fees according to their express agreement. Hayes’s discussion proceeded in part: “Appellants’ actions have consequences. They chose to pursue this appeal knowing the standard of review, and knowing that substantial evidence supports the Judgment. [¶] … [¶] Having caused [Hayes] to incur expensive legal fees to oppose this meritless appeal, appellants should be compelled to bear that expense.” Hayes’s request was sufficiently set forth, and it is entitled to recover its reasonable attorney fees on appeal.

DISPOSITION

The judgment is affirmed. Hayes shall recover its attorney fees and costs in this appeal, but not fees and costs in connection with the lower court proceedings. The matter is remanded to the trial court to determine the amount of fees and costs. (SASCO v. Rosendin Electric, Inc. (2012) 207 Cal.App.4th 837, 849.)

Hayes’s unopposed request for judicial notice filed on June 12, 2018 is hereby granted.

SNAUFFER, J.

WE CONCUR:

FRANSON, Acting P.J.

MEEHAN, J.