Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CV013530
SIMS, Acting P. J.This appeal involves a simple settlement agreement intended to end a lawsuit filed by plaintiff Allan Askew against defendants California Live Floors, Inc., Dean Berkenbile, Dwana Berkenbile, and the Berkenbile Revocable Trust (collectively CLF) in order to foreclose on a mechanic’s lien. Askew constructed a building for CLF. The 2001 settlement agreement called for Askew to repair three deficiencies in CLF’s building foundation in exchange for final payment of $10,881. The parties expected the terms of the agreement to be quickly fulfilled. However, as an ancient Roman writer observed, “There are some remedies worse than the disease.” (Publilius Syrus, Maxim 301, quoted in Bartlett’s Familiar Quotations (15th ed. 1980) p. 111.)
Over the next seven years, disputes over the terms of the settlement agreement festered and resulted in exchanges of sharp letters between the parties’ attorneys. CLF did not deposit the funds until Askew moved for judgment to enforce the settlement agreement pursuant to Code of Civil Procedure section 664.6. Even though Askew’s motion for judgment was granted in 2004, he still has not performed any of the work required by the agreement.
Undesignated statutory references are to the Code of Civil Procedure, except as otherwise noted.
Both parties appeal from the trial court’s partial grant of CLF’s motion to enforce the settlement agreement. On appeal, Askew contends (1) the trial court exceeded its jurisdiction to enforce the settlement agreement under section 664.6 by finding that he refused to perform his obligations, and (2) even if section 664.6 allowed the court to make factual findings regarding noncompliance with the settlement agreement, substantial evidence did not support the trial court’s finding. CLF contends that Askew’s appeal must be dismissed for lack of an appealable order or judgment.
On the same day that the trial court partially granted CLF’s motion to enforce the settlement agreement, the court also issued an order to show cause. The order to show cause constituted an exasperated court’s attempt to “kill the case” by informing the parties of its intent to dismiss the action. After a hearing, the trial court concluded that full performance of the settlement agreement was unlikely to occur. The court dismissed the case but stayed dismissal pending our resolution of the parties’ appeals.
CLF appeals from the same order that it characterizes as nonappealable for Askew. CLF also appeals from the order to show cause. On appeal, CLF requests relief for Askew’s noncompliance with the settlement agreement. Askew responds that CLF’s appeal must be dismissed due to lack of appealability and defective briefing.
We conclude that Askew properly appeals from an order after judgment. We reject Askew’s contention that the trial court lacked power to determine whether he had complied with the settlement agreement. And, we affirm the trial court’s order in which Askew was found to have refused to perform his obligations under the settlement agreement.
CLF also properly appeals from the order after granting enforcement of the settlement agreement. However, CLF’s additional appeal from the order to show cause must be dismissed because the order was merely preliminary to a later, final determination of the issues. Although CLF’s appeal from the order granting enforcement of judgment is proper, we conclude that CLF’s deficient briefing forfeits its arguments.
CLF has not appealed from the ruling on the order to show cause, and we therefore do not address the propriety of the ruling on the order.
FACTUAL AND PROCEDURAL HISTORY
Construction Dispute
Dean Berkenbile (Berkenbile) and his wife own California Live Floors, Inc., which operates a trailer repair business. In 1998, Berkenbile hired Askew to construct a commercial building on CLF’s property. Askew completed the foundation and steel structure but with a few deficiencies. The approved plans required the outside concrete apron to be two inches lower than the interior floor. But the outside concrete apron was constructed on the same level as the interior floor. As a result, rain water does not drain away from the metal building.
Upon completion of the work, Askew sought to collect the remaining amount due, which was approximately $10,000. CLF refused to pay, and Askew filed a mechanic’s lien on the property. In August 2000, Askew filed a complaint seeking foreclosure on his mechanic’s lien.
On June 19, 2001, the San Joaquin Building Inspector issued a correction notice for the building. In relevant part, the notice listed the following deficiencies: “(5) Caulking missing at closure strips [¶] (6) Door jam [sic] slots for flood proofing plan calls for 1/8” pl[ates] [¶]... [¶] (8) Cement on south side is poured above bottom of steel siding panels.”
Settlement Agreement
On June 25, 2001, the parties reached a settlement agreement at a mandatory settlement conference. Terms of the agreement were recited orally in open court as follows:
“THE COURT: Who would like to recite the understanding?
“[Counsel for CLF]: I will, Your Honor. We have a list of nine items set forth on a correction notice issued by the County of San Joaquin. And that notice is to be the determinative notice for purposes of reciting settlement. [¶] Item number five on that settlement will be performed by the plaintiff. Item number eight will be performed by the plaintiff. [¶] Item number six will be performed in the following manner: Mr. Berkenbile will build or fabricate the plates, Mr. Askew will install those plates. [¶] On [sic] all other items on the correction notice list are to be resolved by California Live Floors.”
Askew’s counsel clarified the settlement terms regarding item eight on the correction notice as follows:
“[Counsel for Askew]: Let me just refine that a little bit. [¶] With respect to paragraph eight, which reads, cement on south side is poured above bottom of steal [sic] siding panels. The plaintiff’s obligation is to clear that item from the punch list. That does not necessarily mean that the concrete will be removed. Replaced at a lower level. [¶] There is [sic] a number of alternative approaches to that that we have considered. His obligation is to clear that item from the punch list. There is no requirement as to how he is going to do that.
“THE COURT: But it must meet with the approval of the County of San Joaquin as to code; is that right?
“[Counsel for Askew]: Well, with the County of San Joaquin. If they will remove that punch item, that is what he has to do. And there is also –- no, the three items that were mentioned is what he has to do. If there is no requirement that the building be finaled out because there is [sic] numerous other reasons why the building might not be finaled out that have nothing to do with this punch list and nothing to do with this plaintiff.
“[Counsel for CLF]: We understand that.”
As part of the settlement agreement, CLF agreed to deposit $10,881 with the court, which represented the amount owed to Askew as the final payment plus his costs in bringing the action. The money was to be paid to Askew upon completion of the three items of repair and his release of the mechanic’s lien. CLF also agreed to dismiss a complaint against Askew that had been filed with the Contractors’ State License Board.
The parties requested that the court retain jurisdiction to enforce the agreement under section 664.6. The settlement agreement included the parties’ waiver of Civil Code section 1542. The parties personally indicated their assent to the recitation of the terms set forth by the attorneys. The oral recitation of the settlement agreement was not reduced to writing.
Civil Code section 1542 provides, “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.”
Dispute Regarding Terms of the Settlement Agreement
On June 27, 2001 - - two days after the settlement conference - - CLF directed Askew to stay off the property until it provided him with a timetable for completion of the project. CLF explained that a timetable would be delivered within a week.
Berkenbile sent Askew a certified letter on July 15, 2001, in which he gave the dates of August 6 to 31, 2001, for Askew to perform the repairs. On August 6, 2001, Berkenbile followed up on the letter giving Askew a 30-day window to complete the repair. The letter noted that he was “very flexible” about scheduling but explained that he was anxious to have the repairs completed before winter arrived. Finally, the letter stated that a complaint with the Contractors’ State Licensing Board had been dismissed. Askew did not receive these two letters.
CLF retained Mike Smith, an engineer, to determine what needed to be done to secure an occupancy permit from San Joaquin County (County). Smith would eventually produce three letters calling for (among other things) removal of all concrete surrounding the building, excavation and removal of the subgrade, adding new subgrade, and pouring a new apron and landings. The County agreed that the remediation steps specified in the Smith letters were necessary to secure an occupancy permit.
During the next three years, counsel for the parties exchanged letters regarding who was to perform first and under what conditions. Askew believed he had no obligation to perform until CLF deposited $10,881 with the court. Askew also expressed concern that CLF’s property might have experienced soil movement causing serious damage to the building foundation he was obligated to repair. CLF considered Askew’s inaction to demonstrate unwillingness to perform his obligations.
In July 2004, frustration with the inability to resolve the matter caused CLF’s attorney to inform Askew’s counsel: “My client is now unwilling in any manner to allow your client to perform any work. Because of your client’s nonperformance, [CLF] is relieved of any obligation to pay any moneys at all to your client, and your client is obligated to release his mechanic’s lien.”
Judgment Pursuant to Section 664.6
In October 2004, Askew filed a motion to enter judgment pursuant to section 664.6. The trial court granted the motion on November 30, 2004. The parties exchanged several letters in an attempt to agree on the language for the judgment. CLF’s counsel insisted that Askew’s work comply with three Smith letters. Askew refused to comply with the Smith letters, noting that two of them were prepared after the June 2001 settlement agreement.
On January 31, 2005, the trial court entered an order granting Askew’s motion to enter judgment pursuant to section 664.6. In relevant part, the court ruled:
“IT IS ORDERED that the motion be, and it hereby is, granted and that judgment be entered pursuant to the terms of the Stipulated Settlement, as follows:
“1) Defendant California Live Floors, Inc. shall deposit the amount of $10,881.00 with the court within ten (10) days after service of Notice of Entry of this order.
“2) Defendant California Live Floors, Inc. shall coordinate the schedule (taking into account the weather) with Plaintiff for Plaintiff to complete the work set forth below in this Order after the deposit has been made and proof thereof served on Plaintiff.
“3) Plaintiff shall be solely responsible to perform all work (and shall provide all labor and materials) that would have been required by the San Joaquin Building Inspector (the ‘Building Inspector’) to clear Item Number 5 as described in the San Joaquin County Community Development Department Correction Notice, dated June 19, 2001 (the ‘Correction Notice’), a copy of which is attached hereto and incorporated into this Order in this reference.
“4) Plaintiff shall be solely responsible to perform all work (and shall provide all labor and materials) that would have been required on or about June 25, 2001 by the Building Inspector to clear Item Number 8 as described in the Correction Notice.
“5) Defendant California Live Floors, Inc. fabricated the plates required by the Stipulated Settlement for Item Number 6 of the Correction Notice several years ago. Plaintiff shall be responsible for installing the plates and shall then be solely responsible to perform all work (and shall provide all labor and materials (except for the plates)[)] that would have been required on or about June 25, 2001 by the Building Inspector to clear Item Number 6 as described in the Correction Notice.
“6) The completion of this work will require: [¶] a) Both parties to comply with the construction schedule agreed upon; [¶] b) Both parties to act at all times in a professional manner; [¶] Defendant California Live Floors, Inc. to provide access to the property during the regular business hours of the business of Defendant California Live Floors, Inc. so that Plaintiff can perform the obligation Plaintiff is ordered to perform under this Order, and so that the Building Inspector can inspect Plaintiff’s work; [¶] Defendant California Live Floors, Inc. to provide reasonable access during the regular business hours of the business of Defendant California Live Floors, Inc. to onsite utilities for use by Plaintiff in the completion of the obligations Plaintiff is ordered to perform under this Order as a duly licensed contractor; [¶] e) Plaintiff to use reasonable efforts to not interfere with the business of Defendant California Live Floors, Inc.;
“7) After compliance in full with Paragraphs 3, 4, 5 and 6 of this Order and clearance by the Building Inspector of Item Numbers 5, 6 and 8 of the Correction Notice, Plaintiff shall dismiss this action, with prejudice, shall record a full release of his mechanic’s lien, and shall provide Defendants with Unconditional Upon Final Lien Releases from Plaintiff and all potential mechanic’s lien claimants in accord with Civil Code section 3262(d)(4).
“8) After completion of the requirements of Paragraph 7 of this Order, Defendant will instruct the Court to release the funds identified in Paragraph 1 of this Order.
“9) Plaintiff and Defendants agree to use their best efforts to fulfill the requirements of the settlement reached, as repeated in this Order.
“10) Plaintiff shall reimburse counsel for Defendants the sum of $11.00, which represents one-half of the cost incurred by Defendants to prepare the Reporter’s Transcript of the Stipulated Settlement.
“11) Until final completion of all matters enumerated herein, the Court shall retain jurisdiction under Code of Civil Procedure §664.6.”
Notice of entry of order was given on February 8, 2005, and CLF deposited $10,881 with the court 10 days later.
In August 2005, Askew’s counsel wrote to CLF in order to schedule the work on the property. CLF’s counsel responded that the building code requirements might have changed and that an engineer was reviewing the project. CLF’s follow-up letter stated that changed circumstances favored Askew because changes in the building codes meant that he had to do less work in completing items five and six. CLF stated that it would allow Askew to complete his work between September 12 and October 12, 2005.
On August 27, 2005, Berkenbile wrote to Askew in order to confirm the September 12 to October 12, 2005, window to perform the work. Berkenbile noted that he agreed with Smith’s proposal to save Askew work in remedying the flood channels by allowing them to be ground down. However, the letter assumed that Askew would fix the door landings on the south, east, and west sides of the building.
Askew responded that Berkenbile was changing the scope of the work required of him by relying on the post-settlement Smith letters’ recommendations. Askew objected to Smith’s recommendation that the concrete apron around the entire building be removed and replaced.
In September 2005, Askew filed an ex parte motion for enforcement and/or modification of the January 31, 2005, order. The motion was denied.
Attorneys for Askew and CLF exchanged a flurry of letters over the next six months in which each accused the other party of violating the terms of the settlement agreement in attempting to redefine the scope of the work. Askew reiterated his position that the Smith recommendations were not part of his obligation under the settlement agreement. CLF maintained that Askew refused to honor his commitment to clear items five, six, and eight from the correction notice.
In March 2006, Askew filed a motion to enforce the settlement agreement pursuant to section 664.6. The motion asserted that changed circumstances in the condition of the soil around the building as well as dishonesty by CLF and its attorney should excuse Askew from performing any work under the agreement. CLF responded that the motion was defective. CLF also argued that the motion represented another attempt by Askew to shirk his responsibilities. The motion was denied.
Attorneys for Askew and CLF again exchanged letters restating their conflicting positions regarding the scope of work to be performed under the settlement agreement and accusing each other of intransigence.
CLF’s Motion to Enforce the Settlement Agreement
In October 2007, CLF filed its own motion to enforce the settlement agreement under section 664.6. As part of the motion, CLF requested that the court declare Askew to be in breach of the settlement agreement.
On February 20, 2008, the trial court issued an order granting CLF’s motion as follows:
“There have been several efforts to ‘enforce’ the terms of the parties’ settlement. Plaintiff Askew filed a motion to enter judgment pursuant to stipulated settlement which culminated in Judge McNatt’s Order of January 31, 2005. This order did not alter or modify the material terms of the settlement. The Order instead set a time table for completion of the parties’ respective obligations—-a step by step sequence whereby specified acts or obligations were to be completed by a designated party on or before a series of specified deadlines. Had the parties both adhered to the schedule contained in this Order, this case would now be closed.
“The court does not have authority to modify the terms of the parties’ settlement. The court may, however, enforce certain terms of a settlement agreement when required to give effect to the parties’ intentions or to protect the substantive rights of a party who has performed. For example, a court may order a complaint dismissed when the defendant has performed its settlement obligations. A court may authorize and direct the county clerk to sign a release of lien or similar document when necessary to protect a litigant who has fully performed.
“In this case, the court is satisfied that Defendants have performed (perhaps somewhat belatedly) their settlement agreement obligations except as excused by Plaintiff’s lack of performance, have generally acted in accordance with the schedule established in the January 31 Order, and have otherwise made good faith efforts to consummate the parties’ settlement. Plaintiff, for his part, claims his performance has been delayed, hindered, or prevented in some way by Defendants and that his performance is thereby excused. Whatever the true reason might be, it appears to the court that Plaintiff does not intend to fully perform his obligations under the settlement agreement. Under these circumstances, and given Defendants’ substantial performance, it would be unfair to deny Defendants the benefits for which they bargained.
“Therefore, for good cause appearing, the court hereby grants Defendants’ motion, in part. Specifically: [¶] 1. Plaintiff’s mechanic’s lien recorded August 14, 2000, shall be expunged. If Plaintiff fails or refuses to voluntarily release or expunge said lien, the court will make an appropriate order on Defendants’ noticed application; and [¶] 2. The sum of $10,881.00, deposited by Defendants with the court, and which was to be paid to Plaintiff upon Plaintiff’s performance as stated above, is hereby ordered returned to Defendants forthwith.
“Defendants, in light of their substantial performance and Plaintiff’s demonstrated non-performance, have also asked the court to order Plaintiff to pay the actual and reasonable cost of hiring a third party to complete Plaintiff’s obligations under the agreement, plus Defendants’ expenses incurred to the extent the subject building permit, plus Defendants’ attorneys’ fees incurred trying to obtain Plaintiff’s performance. The court is sympathetic. However, in the court’s view these particular amounts are beyond the court’s authority. In the court’s view, such losses or claims are in the nature of damages arising from an alleged breach of the settlement agreement. The court cannot summarily declare any party to be in breach and award the aggrieved side money damages.” (Footnotes omitted.) As part of the order, the court retained continuing jurisdiction to enforce settlement “until the settlement terms are performed in full.”
The same day, the trial court also issued an order to show cause, which stated in relevant part:
“The Court is considering, on its own motion, making the following orders: [¶] 1. That the complaint and cross-complaint herein be dismissed with or without prejudice pursuant to the parties’ settlement agreement recited in court on June 25, 2001; and [¶] 2. That the court decline any further retention of jurisdiction to supervise or enforce settlement.
“[¶]... [¶]
“The court’s proposed action is motivated by the following: [¶] This is an extremely old case. The complaint was filed August 24, 2000, and the Cross-Complaint was filed October 4, 2000; [¶] 2. The settlement agreement, the terms of which have yet to be completed, was made June 25, 2001; [¶] 3. There have been several efforts to ‘enforce’ the terms of the parties’ settlement. Plaintiff Askew filed a motion to enter judgment pursuant to stipulated settlement which culminated in Judge McNatt’s Order of January 31, 2005, wherein a specific timetable was made for completion of the parties’ respective obligations.... [¶] 4. It is evident from the papers submitted by the two sides that the parties are mistrustful and antagonistic towards each other. Each side, with some justification, blames the other for delays or failures to perform and complete the terms of settlement; [¶] 5. Recent delays appear to the court to be primarily attributable to Plaintiff. In candor, the court at this time entertains a strong suspicion that Plaintiff does not intend to complete, or even attempt to complete, his obligations due under the parties’ settlement; [¶] 6. The court fully expects the parties’ impasse to continue indefinitely unless the court takes some action.
“Preliminarily, Code of Civil Procedure section 664.6 is permissive—-the court ‘may’ retain jurisdiction to enforce settlement. Here, since it seems unlikely that the parties’ settlement will be performed anytime soon, it seems pointless for the court to retain jurisdiction. The parties are advised that this court is not content to allow this matter to remain in a state of limbo.
“The parties have each given consideration to the other—-each has made promises in return for promises. At a minimum, the parties have released all claims, whether known, or unknown, or unsuspected, against the other. In other words, the parties accepted the other side’s promise of performance in full satisfaction of all claims. Civil Code section 1541 provides, in full: [¶] ‘An obligation is extinguished by a release therefrom given to the debtor by the creditor, upon a new consideration, in writing, with or without new consideration.’
“Thus, as a matter of contract, the settlement agreement recited on June 25, 2001, extinguished all obligations, claims, and causes of action, known and unknown, that existed between the parties at the time.
“The issue here concerns remedies. It is the court’s view that if one party believes that another party has reneged or breached a material term of the settlement agreement, the aggrieved party’s remedy is a new action for breach of contract.
“The court is of the opinion that it may, on its own motion, dismiss both the complaint and cross-complaint. Such action would end the present litigation. At the same time, an aggrieved party may pursue lawful remedies as it chooses. The court recognizes that dismissing the instant action and requiring an aggrieved party to pursue remedies for breach of the settlement agreement in a new action is aggravating and inefficient. However, good alternatives appear non-existent.” (Footnotes omitted.)
On March 4, 2008, Askew filed a notice of appeal from the order granting the motion to enforce the settlement agreement.
On March 13, 2008, CLF filed a request to dismiss Askew’s complaint with prejudice and its own cross-complaint without prejudice. The next day, CLF filed a motion to expunge the mechanic’s lien and for sanctions.
On April 17, 2008, CLF filed a notice of appeal from the order granting its motion to enforce the settlement agreement and from the order to show cause.
Dismissal of the Complaint and Cross-complaint
On April 17, 2008, the trial court conducted a hearing on its order to show cause. Frustrated with the parties’ inability to make any progress toward resolving the litigation over the course of seven years, the court noted that it was “trying to kill the case.”
On June 20, 2008, the trial court ordered the action dismissed. The court’s order provides, “The complaint and cross-complaint in this action shall be dismissed with prejudice pursuant to the parties’ settlement agreement recited in open court on June 25, 2001. Further, with such dismissal, the court shall relinquish further retention of jurisdiction and will refuse to further supervise or enforce said settlement.” The court’s order further explained, “The trial court has supervised the parties’ post-settlement conduct for over 7 years. During this time, the court has granted motions to ‘enforce’ the settlement, has set timetables for completion of the parties’ respective obligations, and has made orders to release money and encumbrances. However, the court cannot effectively compel Plaintiff’s affirmative personal obligation required under the agreement. As a practical matter, there is little this court can do to enforce the parties’ agreement. Continued judicial supervision appears pointless. After the mechanics’ lien is released or expunged, and the action dismissed, the parties will have to determine their respective lawful remedies and decide whether to pursue them.” (Footnotes omitted.)
The court stayed dismissal of the action pending appeal. So far as the record discloses, no party has appealed from the June 25, 2008, order dismissing the action, presumably because the order was stayed pending resolution of this appeal.
DISCUSSION
I
Appealability
Each party contends the other’s appeal must be dismissed. We conclude that the appeals by Askew and CLF are properly taken from the February 20, 2008, order granting enforcement of the settlement agreement. However, CLF’s appeal from the trial court’s order to show cause must be dismissed.
A
Askew contends his appeal is properly taken from the trial court’s order granting CLF’s motion to enforce the settlement agreement. Askew argues that the order should be considered to be a judgment and therefore appealable. CLF counters that Askew’s appeal must be dismissed because there has never been a judgment entered in this case. We conclude that Askew’s appeal properly lies as from an order made after judgment.
An appealable judgment or order constitutes a jurisdictional prerequisite for an appeal. (Harrington-Wisely v. State (2007) 156 Cal.App.4th 1488, 1494.) A final judgment disposes of all issues between the parties and is appealable. (§ 904.1, subd. (a)(1); Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 743.) Although judgments typically resolve a contest of law or facts, they also may be entered to enforce a settlement agreement.
Section 664.6 expressly grants the trial court power to enforce a settlement agreement by entering a judgment incorporating the terms of the parties’ agreement. In its entirety, section 664.6 provides: “If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.” Upon motion by a party and a finding of a valid settlement agreement, the trial court “should grant the motion and enter a formal judgment pursuant to the terms of the settlement.” (Hines v. Lukes (2008) 167 Cal.App.4th 1174, 1182-1183 (Hines).)
Here, the trial court granted Askew’s motion to enter judgment pursuant to settlement on January 31, 2005. The court ruled: “IT IS ORDERED that the motion be, and it hereby is, granted and that judgment be entered pursuant to the terms of the Stipulated Settlement, as follows:” (Italics added.) The terms are then set forth with specificity, and the ruling does not contemplate any further rendition of judgment. In short, the trial court disposed of all issues between the parties.
True, the trial court’s granting of Askew’s motion did not include formal entry of a separate judgment. The lack of a separately filed document entitled “judgment” does not prevent an order under section 664.6 from having the effect of a judgment for purpose of appeal. It is the substantive effect of a trial court’s ruling that governs appealability. (Hines, supra, 167 Cal.App.4th 1174.) As the California Supreme Court has explained, “It is not the form of the decree but the substance and effect of the adjudication which is determinative. As a general test, which must be adapted to the particular circumstances of the individual case, it may be said that 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, but where anything further in the nature of judicial action on the part of the court is essential to a final determination of the rights of the parties, the decree is interlocutory.” (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 698.)
Here, the effect of the trial court’s granting of Askew’s motion for entry of judgment was to memorialize the terms of the settlement agreement. Thus, the trial court finally determined the rights and obligations of the parties by the expeditious enforcement mechanism provided by section 664.6. Even though the court retained jurisdiction under section 664.6, such retention of power to enforce the settlement agreement did not render the order interlocutory in nature. (See Hines, supra, 167 Cal.App.4th 1174.) The trial court’s order constituted a judgment for purposes of appealability.
Askew appeals from the trial court’s subsequent “ruling on defendants’ motion for order enforcing judicial settlement, modifying order, etc.” The ruling is an order, not a judgment. That Askew has appealed an order is not itself fatal to our jurisdiction. In addition to final judgments, the Code of Civil Procedure makes several types of orders appealable. (§ 904.1, subds. (a)(2)-(8), (10), (12)-(13), & (b).)
An order made after judgment is a type of order that generally may be appealed. (§ 904.1, subd. (a)(2).) The California Supreme Court has explained the practical need for making post-judgment orders appealable as follows: “‘The necessity for this... provision is apparent, when it is considered that an appeal from the judgment would only bring up the record of the proceedings resulting in the rendition of the judgment, and that such an appeal may have been taken, and even disposed of here, by affirmance or reversal, before the order complained of was made in the Court below; so that while an appeal from a judgment might in some instances be safely relied upon for the review of an order entered before its rendition, it would afford no reliable remedy against such an order only entered subsequently to its rendition.’” (Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 651 (Lakin), quoting Calderwood v. Peyser (1871) 42 Cal. 110, 116.)
The Lakin court further explained that “not every postjudgment order that follows a final appealable judgment is appealable. To be appealable, a postjudgment order must satisfy two additional requirements.... [¶] The first requirement... is that the issues raised by the appeal from the order must be different from those arising from an appeal from the judgment. (See Rooney v. Vermont Investment Corp. (1973) 10 Cal.3d 351.) ‘The reason for this general rule is that to allow the appeal from [an order raising the same issues as those raised by the judgment] would have the effect of allowing two appeals from the same ruling and might in some cases permit circumvention of the time limitations for appealing from the judgment.’ (Id. at p. 358.)... [¶] The second requirement... is that ‘the order must either affect the judgment or relate to it by enforcing it or staying its execution.’ (Olson v. Cory (1983) 35 Cal.3d 390, 400.)” (Lakin, supra, 6 Cal.4th at pp. 651-652, footnote omitted.)
Here, the order from which Askew appeals follows what we have explained constitutes a judgment entered in January 2005. As an order after judgment it is appealable because it challenges the trial court’s finding regarding compliance with the judgment. While the earlier judgment set forth the settlement agreement’s terms, the appealed order determined that Askew had not fulfilled his obligations under the agreement. The issues raised by the appeal from Askew’s appeal of the order are necessarily different than what could have been challenged on appeal from earlier judgment. Accordingly, Askew’s appeal from the order entered February 20, 2008, is properly taken. (Lakin, supra, 6 Cal.4th at pp. 651-652.)
B
CLF also appeals from the order enforcing the settlement agreement, reasoning that if “[Askew’s] appeal is proper, then California Live Floor’s cross-appeal also is proper.” CLF’s notice of appeal additionally specifies the order to show cause issued by the trial court on February 20, 2008. We conclude that the order to show cause is nonappealable but that CLF’s appeal properly lies from the order enforcing the settlement agreement.
As we have already explained, the trial court’s granting of CLF’s motion to enforce the settlement agreement constituted an order after judgment. Section 904.1, subdivision (a)(2), makes such orders appealable. (Lakin, supra, 6 Cal.4th at pp. 651-652.)
Askew argues that CLF may not appeal “from partial denial of a motion based on the general power of the court.” In so arguing, Askew relies on Doran v. Magan (1999) 76 Cal.App.4th 1287 (Doran). In Doran, the appellant purported to appeal from the denial of a motion to enter judgment pursuant to section 664.6. (Id. at p. 1290.) The Court of Appeal dismissed for lack of a judgment. (Id. at pp. 1293-1294.) The Doran court reasoned that denial of a motion to enter judgment pursuant to section 664.6 “is perhaps most akin to a motion for summary judgment, another motion by which a settlement agreement may be enforced. An order granting a motion for summary judgment is a nonappealable preliminary order, whereas a judgment entered thereunder is a final judgment, and therefore appealable. (§ 437c, subd. (l); Kelly v. Liddicoat (1939) 31 Cal.App.2d 75, 77.) On the other hand, the order denying a motion for summary judgment is nonappealable, and is ordinarily reviewable only on appeal from the final judgment. (Nevada Constructors v. Mariposa etc. Dist. (1952) 114 Cal.App.2d 816, 818.) [¶] We conclude that the order denying [appellant’s] motion for judgment under section 664.6 is nonappealable.” (Doran, supra, 76 Cal.App.4th at pp. 1293-1294.)
In contrast to Doran, a judgment was entered in this case in January 2005. Thus, the February 20, 2008, ruling by the trial court constitutes an appealable order after judgment. (§ 904.1, subd. (a)(2).) Had the trial court denied the order to enforce the settlement agreement, the reasoning of Doran would apply. Denial of an order or judgment allows an action to proceed until final judicial determination. (Doran, supra, 76 Cal.App.4th at p. 1293.)
If the trial court had granted all of the relief requested by CLF in seeking the order enforcing the settlement agreement, CLF would also have no right to appeal. A party must be aggrieved by an appealable order or judgment in order to take an appeal. (§ 902 [“Any party aggrieved may appeal in the cases prescribed in this title”].) As the California Supreme Court has explained, “One is considered ‘aggrieved’ whose rights or interests are injuriously affected by the judgment.” (County of Alameda v. Carleson (1971) 5 Cal.3d 730, 737.)
Here, the partial denial of relief sought by CLF in the trial court’s appealable order allows CLF to challenge the ruling on appeal. For this reason, we conclude that CLF properly appeals from the same order after judgment from which Askew appeals.
As to CLF’s purported appeal from the trial court’s order to show cause, we reach a different conclusion.
Nonappealable post-judgment orders, “although following an earlier judgment, are more accurately understood as being preliminary to a later judgment, at which time they will become ripe for appeal.” (Lakin, supra, 6 Cal.4th at p. 652.) Because an order to show cause is an preliminary step toward a determination of the issues noticed therein, the order is nonappealable until the issues are decided. (See ibid.)
Here, the trial court’s order to show cause was merely preliminary; its purpose was to give the parties notice of the court’s intent to dismiss the case. In the order to show cause, the trial court invited the parties to brief whether dismissal was the best remedy for the malady that the settlement agreement had become. Not until the June 25, 2008, order did the trial court resolve the issues specified in the earlier order to show cause. In the June 25 ruling, the trial court finally resolved the matter by ordering the case dismissed (stayed pending resolution of the present appeal). Thus, the order to show cause issued on February 20, 2008, was merely a step toward the trial court’s determination that the case should be dismissed.
As a preliminary ruling expressly contemplating future action on the issues, the order to show cause was nonappealable even though it was an order made after judgment. (Lakin, supra, 6 Cal.4th at p. 653.) Accordingly, we shall dismiss CLF’s appeal from the order to show cause entered on February 20, 2008.
II
Trial Court’s Fact-finding Ability Under Section 664.6
Askew contends that section 664.6 allows a trial court to make factual findings only as to whether the parties entered into a valid settlement agreement. Thus, he argues the trial court exceeded its jurisdiction by finding that he refused to comply with the settlement agreement. We disagree.
In considering whether section 664.6 allows a trial court to make factual findings regarding compliance with the terms of a settlement agreement, we apply the de novo standard of review. “Interpretation of section 664.6, and its application to this case, are issues of law. Issues of law are subject to a reviewing court's independent analysis.” (Wackeen v. Malis (2002) 97 Cal.App.4th 429, 437.) Our analysis must begin with consideration of the Legislature’s aim in enacting section 664.6.
Before the Legislature enacted section 664.6 in 1981, settlement agreements were enforceable only by cumbersome processes that required a party “to file a new action alleging breach of contract and seeking either contract damages or specific performance of the settlement terms, or alternatively... to supplement the pleadings in a pending case.” (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 809.) If the party sought enforcement of the agreement in an ongoing case by moving for summary judgment, the opposing party could cause the delay and expense of trial merely by denying any material fact regarding the agreement’s formation or terms. (Malouf Bros. v. Dixon (1991) 230 Cal.App.3d 280, 283-284.)
Section 664.6 was intended to make the process of enforcement more efficient by allowing a court to make findings of fact regarding the settlement agreement without the need for a trial. “The court ruling on the motion may consider the parties’ declarations and other evidence in deciding what terms the parties agreed to, and the court's factual findings in this regard are reviewed under the substantial evidence standard.” (Hines, supra, 167 Cal.App.4th at p. 1182; see also Malouf Bros. v. Dixon, supra, 230 Cal.App.3d at pp. 283-284 [holding that the trial court may make such findings regarding terms of settlement agreement on declarations alone].)
Under section 664.6, the trial court may make findings of fact regarding a party’s failure to comply with the settlement even after a judgment has been entered. Entry of judgment pursuant to a settlement agreement does not necessarily end the court’s role in ensuring fulfillment of the settlement agreement because section 664.6 provides that “[i]f 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.” The power of the court to retain jurisdiction provides an efficient manner to ensure the parties’ compliance. “Strong public policy in favor of the settlement of civil cases gives the trial court, which approves the settlement, the power to enforce it. In ruling on a motion to enforce settlement, it necessarily has the power to resolve factual disputes relating to the agreement.” (Osumi v. Sutton (2007) 151 Cal.App.4th 1355, 1358, 1357 (Osumi).)
In Osumi, the Court of Appeal rejected a challenge to the trial court’s finding, pursuant to section 664.6, that delay in selling a house was due to one party’s fault and that equity required the deadline to be extended. (Osumi, supra, 151 Cal.App.4th at pp. 1359, 1361.) In so holding, the Osumi court explained, “In ruling on a motion to enforce settlement, it necessarily has the power to resolve factual disputes relating to the agreement.... [I]t has the power to extend the deadline for performance in favor of a party who is not at fault and against a party who is at fault.” (Id. at p. 1357.) Thus, a trial court has power to find a party to be at fault for failing to comply with terms of the settlement agreement under the streamlined procedure of section 664.6.
Here, the trial court expressly reserved jurisdiction under section 664.6 to enforce the settlement agreement when it granted Askew’s motion to enter judgment in January 2001. Having the power to find a party at fault in failing to comply with the settlement agreement when asked to enter judgment on the agreement, the trial court retained the same fact-finding power by reserving jurisdiction under section 664.6. It would be nonsensical to allow a court to retain jurisdiction to enforce a settlement agreement if the court were unable to determine whether a party has complied with the agreement.
In support of Askew’s argument that the trial court lacked power to determine whether he complied with the settlement agreement, he relies on Viejo Bancorp, Inc. v. Wood (1989) 217 Cal.App.3d 200 (Viejo Bankcorp). In that case, the Court of Appeal construed former section 664.6 to hold that the trial court could not enforce a settlement agreement in a new action after dismissal of the case in which the agreement was reached. Viejo Bankcorp’s holding has been superseded by the Legislature’s 1993 amendment of section 664.6 to add the final sentence allowing the trial court to reserve jurisdiction after entry of judgment. (Stats. 1993, ch. 768, § 1.) That sentence provides, “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.” As Witkin explains, “[t]his jurisdictional problem [identified in Viejo Bankcorp] was solved by a 1993 amendment to C.C.P. 664.6: if requested by the parties, the court may retain jurisdiction for purposes of enforcing the settlement until it is fully performed.” (6 Witkin, Cal. Proc. 5th (2008) Proceedings Without Trial, § 125, p. 561.) Thus, Askew’s attack on the trial court’s power to find he refused to comply with the settlement agreement as memorialized in the judgment relies on superseded case law and ignores section 664.6’s provision allowing courts to retain jurisdiction to enforce the agreement until its terms are fulfilled.
Under section 664.6, the trial court had statutory authorization to find whether Askew refused to perform his obligations. Regardless of whether the trial court’s factual finding was supported by substantial evidence, the court had the ability to make findings of fact regarding whether the parties had complied with the agreement.
III
Sufficiency of the Evidence
Askew contends insufficient evidence supports the trial court’s finding that he refused to perform his obligations under the settlement agreement and that CLF acted in good faith in complying with the agreement. We disagree.
A
We review Askew’s contention under the substantial evidence standard of review. “The trial court's factual findings on a motion to enforce a settlement pursuant to section 664.6 ‘are subject to limited appellate review and will not be disturbed if supported by substantial evidence.’ (Williams v. Saunders (1997) 55 Cal.App.4th 1158, 1162.)” (Osumi, supra, 151 Cal.App.4th at p. 1360.)
“To be ‘substantial,’ evidence must be reasonable in nature, credible, and of solid value.” (Estate of Teed (1952) 112 Cal.App.2d 638, 644.) “Where there is conflicting evidence, or evidence susceptible of conflicting inferences, the general rule is not to disturb the judgment. All presumptions are in favor of the judgment.” (Rivard v. Board of Pension Commissioners (1985) 164 Cal.App.3d 405, 412.) “A judgment will not be reversed based on an evaluation of the strength of the opposing evidence or the relative weakness of supporting evidence when compared to opposing evidence. It can be reversed based only on the absence or insubstantiality of supporting evidence, as determined from a review of all related evidence in the record.” (Id. at p. 413.)
B
Askew asserts the trial court erred in concluding that his obligation to clear item eight from the notice of correction issued by the county building inspector required him to do more than fix the concrete slab on the south side of CLF’s building. As we shall explain, substantial evidence supports the trial court’s order.
The June 19, 2001, notice of correction listed the eighth deficiency as follows: “Cement on south side is poured above bottom of steel siding panels.” When the parties reached their settlement agreement in June 2001, Askew’s counsel clarified the agreement by stating that Askew agreed to remediate the problem described in item eight to the satisfaction of the county building inspector. On the record, Askew’s counsel explained:
“[Counsel for Askew]:... His obligation is to clear that item from the punch list. There is no requirement as to how he is going to do that.
“THE COURT: But it must meet with the approval of the County of San Joaquin as to code; is that right?
“[Counsel for Askew]: Well, with the County of San Joaquin. If they will remove that punch item, that is what he has to do.”
In January 2005, the trial court entered an order granting Askew’s motion to enter judgment that stated: “4) Plaintiff shall be solely responsible to perform all work (and shall provide all labor and materials) that would have been required on or about June 25, 2001 by the Building Inspector to clear Item Number 8 as described in the Correction Notice.” (Italics added.)
The purpose of a settlement agreement is to define the respective obligations of parties to the agreement. (In re Marriage of Hasso (1991) 229 Cal.App.3d 1174, 1180-1181.) Having bargained for Askew’s obligation to clear item eight from the notice of correction, CLF was entitled to insist that Askew complete the work necessary to secure approval from the county building inspector as to that item. (Ibid.)
Although item eight identifies a problem with the concrete foundation on the south side of the building, it does not articulate a solution for gaining approval from the county building inspector. CLF, which had the burden of remediating other problems with the building in order to secure an occupancy permit, sought advice from Smith. Smith, who originally designed the building, formulated a comprehensive plan for curing deficiencies with the building.
While the notice of correction indicated only a problem with the building’s concrete apron on the south side, Smith’s analysis showed that the entirety of the apron suffered the same problem. To remedy the problem, Smith set forth a solution for the entire concrete apron in a letter dated October 14, 2003. In relevant part, the letter states:
“[T]he following letter will discuss the items, which need to be addressed before the county building official can issue a certificate of occupancy....
“1. The concrete flat work surrounding the buildings [sic] was installed with the surface at the same elevation or higher than the floor inside the building. This will cause the steel wall sheathing to sit in water and result in premature deterioration. It will also make it impossible to keep driving rain from coming in under the doors. [¶] To correct this condition will require the existing concrete around the exterior of the building to be completely removed. The subgrade will need to be removed to allow a 2” elevation difference between the inside of the building and outside the building. The new concrete shall slope away from the building at ½ % minimum and not to exceed 2%. Landings need to be created at exit doors, which is no more than ½ ” below the threshold. This will require the concrete to ‘warp-up’ at main doors, at a 2% maximum slope resulting in a 6’-0” square landing.”
Although the Smith letter was written after the issuance of the notice of correction, Smith explained that “[a]t no time since the June 19, 2001 [notice of correction] have any building code requirements related to the lower elevation required for all of the outside concrete apron changed.” Smith also noted that “[a]t no time since June 19, 2001 have any of my letters changed any of the requirements needed to correct item 8 of the June 19, 2001 Correction Notice.”
The proposed remediation set forth in Smith’s October 14, 2003, letter received a stamp of approval from the county building inspector’s office. Michael Ehret, a deputy with the building inspector’s office, explained his approval of Smith’s plan for repairing the concrete apron in a declaration filed in the trial court by Askew. In relevant part, Ehret’s declaration states:
“One of my primary concerns in connection with this project is that appropriate corrective measures be taken so that the project is completed in compliance with the three Smith letters. The 10/14/03 Smith letter even received an official stamp of approval from the county building inspector’s office which I personally authorized. There will be no final clearance, or certificate of occupancy, on the project until the corrective measures spelled out in the Smith letters have been taken or substantial compliance has been established.” (Italics added.)
As the deputy building inspector made clear, Smith’s letter specified the scope of work required to clear item eight from the building inspector’s list of deficiencies. The deputy building inspector’s declaration constitutes solid and credible evidence of the work required to remedy the problem identified in item eight.
Given that the problem with the concrete apron extended around the building, curing the deficiency on only the south side would not have solved the problem to the satisfaction of the county building inspector’s office. Had Askew performed his work on only one side of the building, item eight would not have been removed from the list of deficiencies preventing a certificate of occupancy.
At oral argument, Askew’s counsel directed our attention to the fourth paragraph of the deputy building inspector’s declaration. This paragraph, counsel asserted, proved that Askew’s obligation to clear item eight did not include work on any portion of the building’s concrete apron other than that on the south side. The fourth paragraph of the declaration states:
“4. However, neither the 06/19/01 correction notice, nor the 01/31/05 court order, refer to or incorporate any of the three Smith letters. The 06/19/01 correction notice refers in line item 8 to a problem with the concrete apron on the South side of the building only. It is conceivable and theoretically possible that shifting and erosion over the last 5 years has exacerbated the problem originally noted in line item 8 of the 06/19/01 correction notice. It is also conceivable and possible that back in 06/19/01 the problem noted in line item 8 could have been corrected by removing and replacing concrete along the South Side of the building only.” (Italics added.)
The deputy building inspector’s ability to conceive of scenarios in which repair of the south side’s concrete alone might have sufficed to clear item eight constitutes speculation. Speculation does not negate the substantial evidence showing that Askew needed to do more to clear the deficiency from the notice of correction. Speculation does not render CLF’s evidence of Askew’s noncompliance insufficient to affirm the trial court’s finding that he refused to comply with the agreement.
The record demonstrates that Askew steadfastly refused to repair any portion of the concrete slab other than on the south side of the building. In October 2005, Askew’s counsel wrote to CLF’s counsel to object to the demand to remove and replace the concrete apron surrounding the entire building even while correctly noting that Askew was obligated to “clear” item eight. In November 2005, Askew’s counsel again objected that CLF’s demand regarding item eight exceeded the terms of the settlement agreement. In January 2006, Askew’s counsel wrote to CLF’s counsel to object to Berkenbile’s insistence that Askew repair the west door landings. From the time the trial court granted Askew’s motion to enforce the settlement agreement in November 2004 until CLF filed its own motion to enforce the agreement in October 2007, Askew consistently refused to make any repairs to the concrete apron on more than the south side of the building.
Substantial evidence supports the trial court’s finding that Askew refused to fulfill his obligation to clear item eight from the notice of correction as he agreed to do in the settlement agreement. Accordingly, we affirm the trial court’s order granting CLF’s motion for enforcement of the settlement agreement.
III
Appeal by CLF
CLF also appeals. As we explained in part IB, ante, CLF properly appeals from an order after judgment. (§ 904, subd. (a)(2).) Even so, we conclude that deficiencies in CLF’s briefing forfeit its contentions on appeal.
Except for an introductory paragraph, all of CLF’s arguments on cross-appeal are copied from its trial court motions and pasted nearly verbatim into its cross-appellants’ opening brief. By recycling snippets from its various trial court arguments, CLF submits an incoherent discussion regarding why appellate relief is warranted. Instead of explaining how the trial court erred, we have CLF’s renewed requests for relief that is granted only in the Superior Court.
CLF requests attorney fees pursuant to section 128.7. However, entitlement to sanctions under section 128.7 is determined exclusively in the trial court. (Bryan v. Bank of America (2001) 86 Cal.App.4th 185, 198 [“Considering that section 128.7 was based on a federal rule that applied only to trial courts and replaced a statute that also applied only to trial courts, there is no reason to believe the Legislature intended the new statute to apply to the courts of appeal and the Supreme Court”].)
We also generally do not order a party to pay “actual and reasonable costs” that have not yet been determined by the trial court. (See Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582, 1610 [explaining that the better practice requires the trial court to determine fees and costs in the first instance rather than an appellate court’s original ascertainment of the same].) As a reviewing court, we do not make factual determinations such as what a reasonable amount of costs or fees might be in a particular case. (Ibid.; Milman v. Shukhat (1994) 22 Cal.App.4th 538, 546.)
CLF’s copied arguments further suffer from their failure to account for later developments in the trial court. For example, CLF’s request that this court impose sanctions under section 128.7 is unaccompanied by an acknowledgement that CLF later withdrew its request for such sanctions in the trial court. In other words, CLF has failed to ensure that the copied arguments were not later abandoned.
Mere regurgitation of trial court briefing has not advanced CLF’s position on appeal. “[A]ppellate practice entails rigorous original work in its own right. The appellate practitioner who takes trial level points and authorities and, without reconsideration or additional research, merely shovels them in to an appellate brief, is producing a substandard product. Rather than being a rehash of trial level points and authorities, the appellate brief offers counsel probably their best opportunity to craft work of original, professional, and, on occasion, literary value.” (In re Marriage of Shaban (2001) 88 Cal.App.4th 398, 410.)
By reiterating its arguments made before the trial court ruled, CLF has failed to explain why the trial court’s ruling erred and demands appellate relief. (Paterno v. State of California (1999) 74 Cal.App.4th 68, 106 [explaining that “the appellant bears the duty of spelling out in his brief exactly how the error [by the trial court] caused a miscarriage of justice”].) CLF neither discusses the trial court’s errors nor provides an analysis of prejudice. As a consequence, CLF’s arguments have been forfeited. (Ibid.)
CLF’s arguments on cross-appeal also lack any citation to the appellate record. And, as we noted in part IIB, ante, CLF’s statement of facts lacks adequate citation to the record. These deficiencies further serve to forfeit CLF’s arguments. (Cal. Rules of Court, rule 8.204(a)(1)(B) and (C) [requiring any reference to a matter in the trial court to be supported by a citation to the appellate record]; Miller v. Superior Court (2002) 101 Cal.App.4th 728, 743 [lack of adequate citation to the record forfeits the claim of error].)
CLF does advance an original argument, but it does so for the first time at the end of its cross-appellant’s reply brief. Arguments may not be raised for the first time in a reply brief. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764.) What is true for appellants is true for cross-appellants. (See ibid. [collecting authority noting unfairness of depriving the opposing party of an opportunity to respond].) As a consequence, we will not consider an argument raised for the first time in a reply brief.
CLF has forfeited all of its arguments on cross-appeal.
DISPOSITION
The February 20, 2008, order granting enforcement of the settlement agreement is affirmed. CLF’s, cross-appeal from the February 20, 2008, order to show cause is dismissed. Each party shall bear its own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
We concur: RAYE, J., ROBIE, J.