Opinion
C040676.
7-18-2003
ROBERTSON FAMILY RANCH et al., Plaintiffs, Cross-Defendants and Appellants, v. ANDRE R. POTOCHNIK et al., Defendants, Cross-Complainants and Respondents. RONALD WALDEAR et al., Plaintiffs, v. JAMES MARTIN et al., Defendants. JAMES E. MARTIN, Plaintiff, v. RONALD WALDEAR et al., Defendants. JAMES MARTIN et al., Plaintiffs, v. RONALD WALDEAR et al., Defendants.
Plaintiffs Robertson Family Ranch, Ltd., John C. Robertson as the Trustee of the Marie M. Robertson Trust, James Martin, Mary Martin, Rod Landreth, Cindy Landreth, Don Landreth, and Lorene Landreth appeal from the trial courts post-judgment order that defendants Karen Waldear, Ronald Waldear, and Andre Potochnik are entitled to a utility easement across the plaintiffs land in accordance with a stipulated judgment entered pursuant to Code of Civil Procedure section 664.6. (Further section references are to the Code of Civil Procedure unless otherwise specified.)
Plaintiffs contend the trial court exceeded the scope of the judgment on the settlement agreement when it granted defendants an easement for a telephone line across plaintiffs property. For reasons that follow, we shall affirm the post-judgment order.
FACTS
This case arises out of four complaints that ultimately were consolidated for trial.
The Robertson Family Ranch and John C. Robertson filed an action against defendants to quiet title against defendants claim of an easement for ingress and egress across the Robertson Family Ranch property.
The Martins and the Landreths also filed a quiet title action against defendants, concerning approximately 30 acres of land along defendants southern boundary line. In addition, James Martin filed a petition for an injunction prohibiting the Waldears from harassing him.
Defendants filed an action against all the plaintiffs, seeking to quiet title, set boundaries, and establish ingress, egress, and utility easements across property known as Waldears Path on the plaintiffs lands. Defendants asserted the easements were essential because there was no other means of connecting their utilities or accessing their property. They sought to enjoin plaintiffs from destroying defendants utility connections and to prevent plaintiffs from interfering with defendants telephone lines.
On February 24, 1999, which was the sixth day of trial, the parties reached a settlement, the terms of which were placed on the record in the presence of the court pursuant to section 664.6.
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."
Due to plaintiffs failure to provide a thorough explanation regarding the background of this case and the basis of the parties claims against each other, or to provide any citations to evidence in the record depicting the location of all the parties property in relationship to each other, it is difficult to place the terms of the agreement in context or to conceptualize the location of the telephone easement that is the subject of this appeal.
In any event, the parties agreed to resolve their dispute and dismiss their claims against each other as follows in pertinent part:
The Martins and the Landreths agreed to grant the Waldears a 20-foot non-exclusive easement for egress, ingress, and utilities over Waldears Path to the Waldears property. The Waldears agreed to bear the expense of a boundary line adjustment joining the aforementioned 31— acre parcel along the southern boundary of the Waldears property to 40 acres owned by them. The Waldears and Potochnik agreed to "execute a quitclaim [deed] in favor of the Robertson Family Trust as to the real property of the Robertsons which includes that No. 1 gate and where the telephone line is. [P] The Robertsons agreed to give the Waldears a year to relocate the telephone ease — line, bip, whatever."
After the entire agreement was placed on the record, including various other terms that are not relevant on appeal, all of the parties informed the court that they consented to the agreement. Plaintiffs attorney indicated he would prepare a written draft of the agreement, which the parties would sign and return to the court within three weeks.
A year later, during which time the parties were unable to agree about the appropriate wording for the written settlement agreement, plaintiffs filed a motion for entry of judgment as to what they perceived to be the terms of the stipulated settlement. They included their draft of the written settlement agreement with their moving papers.
Defendants filed an opposing motion for entry of judgment, and included their own written version of the settlement agreement.
Apparently, a portion of the dispute centered on whether defendants were required to move their telephone line or only their telephone bip, which is the service box to which the line attaches. The trial court reviewed the reporters transcript of the settlement agreement and made various factual rulings regarding the parties disagreements. As to the phone line, the court found that the transcript was "consistent with the wording of paragraph 10, which allows the [Waldears] up to one year to relocate the telephone bip."
Defendants filed objections to, and a request for clarification of, the trial courts ruling regarding issues other than the phone bip. Plaintiffs also filed objections, but did not argue that the courts ruling about the phone bip was erroneous.
The trial courts ruling on the parties requests for clarification makes no mention of the telephone issue.
Defendants moved for entry of judgment in accordance with their version of the written settlement agreement, which the trial court previously had found comported with the oral agreement that the parties placed on the record. There is no evidence in the appellate record that all the parties ever signed the agreement.
On March 21, 2001, the trial court entered judgment pursuant to section 664.6 and incorporated the version of the written agreement submitted by defendants. Notice of entry was filed on March 28, 2001, and there is no evidence in the appellate record that plaintiffs ever appealed from that judgment, which is now final.
The written agreement incorporated in the judgment provides in pertinent part: "[Defendants] will execute a quitclaim deed in favor of ROBERTSON FAMILY TRUST as to the real property of the ROBERTSON FAMILY TRUST, which includes the property at the No. 1 gate . . . and where the telephone line and service box are currently located. . . . ROBERTSON FAMILY TRUST will allow WALDEARS one (1) year from the date this Settlement Agreement is executed to relocate the WALDEARS[] telephone bip from the ROBERTSON FAMILY TRUST property."
The agreement also provides: "MARTIN and LANDRETH will provide WALDEARS a legal twenty (20) foot non[-]exclusive easement for ingress, egress and utility purposes over an existing road referred to as Waldear[]s Path from the gate most easterly on Armstrong Road to the entrance to the 31-acre parcel currently in the possession of WALDEARS (the Easement)."
In addition, the written agreement states: "The promises, terms and conditions of this Settlement Agreement supersede any prior or contemporaneous oral or written representation, agreement, or understanding concerning the nature or effect of this Settlement Agreement. This Settlement Agreement and its Exhibits constitute[] the entire understanding between the parties. Notwithstanding the foregoing, however, the parties acknowledge and agree that the Transcript which is attached hereto as Exhibit A shall be admissible in any proceeding brought to enforce any of the terms of this Settlement Agreement."
The agreement also provides that the parties expressly request the trial court to retain jurisdiction to enforce the settlement agreement.
On May 11, 2001, defendants filed a motion to enforce the settlement agreement pursuant to section 664.6. Apparently, plaintiffs refused to close escrow because of escrow documents containing descriptions of easements that plaintiffs disputed were granted to defendants.
Defendants attorney represented that the legal description of the easements and maps were attached to the settlement agreement filed with the trial court on March 12, and that plaintiffs never objected to the descriptions or sought to vacate the courts order entering judgment on the settlement agreement.
The trial court continued the matter to give plaintiffs an "opportunity to present a more full factual proper dispute" and to give the parties an opportunity to attempt to reach an agreement about the disputed easement descriptions.
By the time of the subsequent hearing in October, the parties had failed to reach an agreement and the plaintiffs persisted in alleging that a utility easement for defendants telephone line was beyond the scope of the settlement agreement. The trial court requested additional briefing on the matter.
Plaintiffs post-hearing brief asserts that defendants are not entitled to any utility easement except on Waldears Path, which was the agreement reflected in the judgment entered on the settlement agreement. According to plaintiffs, defendants were attempting to obtain an easement across the Martin/Landreth property to which plaintiffs never agreed and that was not part of the judgment. In particular, plaintiffs objected to "Exhibit E of Plaintiffs Exhibit 4 at the hearing of October 4, 2001 . . . a proposed easement which cuts across Parcel D and connects to WALDEARS PATH in Parcel C." They also objected to "Exhibit F or Plaintiffs Exhibit 5 . . . another easement which was never granted or intended by the parties." On appeal, plaintiffs do not identify to whom these parcels belong or which one of the easements relates to the challenged telephone easement outside of Waldears Path.
Defendants responded "they never intended to relocate their telephone line, which was buried underground and which would have required a quitclaim as to certain [of plaintiffs] parcels, but only agreed to extend the telephone line to accommodate relocation of the telephone "BIP" from the Robertson property. Thus, [defendants] contend, the settlement agreement, and the record, contemplate only moving the "BOX," not anything else. The [plaintiffs], on the other hand, contend that even though the Settlement Agreement, on its face refers only to a quitclaim in favor of the Robertsons, and refers only to relocation of the "BIP," [defendants] are obligated to dig up and re— bury all of their telephone line."
According to defendants, the settlement agreement reflects that they only agreed to move the bip, not the telephone line, "and, more importantly, agreed to move it only relative to the Robertson property." In addition, their agreement to quitclaim any interest in the Robertson property referred to defendants ingress and egress across the property. Defendants did not agree to dig up the telephone line, which had been buried in its present location for 25 years; and without the easement in question, "it would be virtually impossible to relocate the telephone box without having to dig up a quarter mile of road and buried cable."
Furthermore, according to defendants, all the parties were aware that there is no telephone service north of the current "bip" or "box," which is located within 10 feet of Armstrong Road on the Robertson property. This means the box is "the last service available on that side of Armstrong Road." In order to relocate the box and maintain telephone service, defendants had to come up with an alternate location for the first 100 feet of telephone line, thereby necessitating the easement described in Exhibit "F," "which runs along the Robertson/Brower property line on the Browers side." This involves "backing up 100 feet of buried telephone line and then making a turn to Armstrong Road to meet the existing bip."
Defendants asserted that they were not trying to get something for nothing, as plaintiffs counsel alleged. Rather, they were attempting "to describe easements that would completely effect the intentions of the parties" and they never intended to do anything other than quitclaim as to the Robertson property.
Defendants submitted the declaration of Ronald Waldear, in which he asserted that he believed the purpose of the deed to the Robinsons was to quitclaim the Waldears ingress and egress over the first 100 feet of their driveway over the Robertsons property. He did not know the deed was supposed to result in the elimination of the phone line also, since the Robertsons lawsuit did not mention defendants phone line.
In addition, defendants submitted Karen Waldears declaration, in which she stated that, during the settlement discussions, she explained to plaintiffs about the lack of telephone access further north and the cost involved if they dug up their telephone line to move it off the Robertson property. According to Waldear, Marie Robertson then said: "Fine, I just want that box out of there." Waldear told plaintiffs that she would have the phone company move the box over to the road, which meant to Waldear that the box would be moved approximately ten feet over to the phone companys easement in the countys easement on Armstrong Road.
Waldear declared that, unless the phone line can stay on the Robertson property, the easement set forth in Exhibit F is necessary. She explained that nine-tenths of the telephone line comes down Waldears Path and the remainder of the line turns down towards Armstrong Road. The current box is within 10 feet of Armstrong Road on the Robertson property. To move the box to the county right of way, the Waldears would have to back up 100 feet of buried cable and then make a turn to Armstrong Road to meet the existing bip. Waldear asserted: "That turn is reflected on Exhibit F, which runs along the Robertson/Brower property line on the Browers side." Waldear declared that, without such an easement, it would be virtually impossible to relocate the box without digging up a quarter mile of road and buried cable, and without finding an alternate location for the first 100 feet of phone cable. She pointed out that nothing in the written agreement states the Waldears are to dig up and remove their phone line, and that "the fact that [they] were asked to quitclaim as to the Robertsons for ingress and egress is completely consistent with the fact [defendants] never intended to have to move [their] telephone line."
At the subsequent hearing on the matter, defense counsel argued the parties simply agreed to have defendants move their bip 10 feet to the phone companys box on Armstrong Road, not to have defendants move the 100 feet of telephone cable buried under the Robertson property. Moreover, there is no phone service north of the present box, so it was illogical to believe that defendants would agree to move their phone line and box to a location which did not receive phone service. In defendants view, their agreement to quitclaim as to the Robertsons did not address the phone issue, so it did not preclude a determination that defendants were entitled to an easement for their phone line in order to effectuate the agreement to move their phone bip to Armstrong Road.
Plaintiffs counsel asserted the agreement for a quitclaim deed was inconsistent with an agreement to retain an easement in the Robertsons property.
On January 14, 2002, the trial court entered its ruling regarding the telephone line. It noted that it had the authority to determine a dispute between the parties concerning any ambiguous terms in the settlement agreement, and that the agreement was governed by the same legal principles applicable to contracts generally. The court found that, although the provision in the agreement concerning the telephone line did not expressly describe or specify the easements described in Exhibits E and F, such easements were implicit in the agreement and in the parties objective manifestations that the phone easement follow a course which would be the most cost effective and least disruptive of the property rights of the parties.
The trial court pointed out that the parties agreement reflected the Waldears would move the telephone bip from the Robertson property and relocate it a short distance away on the county right— of-way; however, when the Waldears agreed to move their phone bip and to extinguish their 100 foot easement for ingress and egress from Armstrong Road over Robertson property, it was not contemplated by the parties that the Waldears would have to pursue the crushing expense of digging up a quarter mile of telephone line and relocating it simply to connect it to a new bip located within 10 feet of the present bip.
The court also pointed out that there is no telephone service north of the present bip, and the only connection once the bip is relocated would require a short distance easement for telephone purposes only across the Robertson property — an easement far less burdensome than the heavy expense of digging up the phone line and relocating it. Therefore, the court concluded, the easement proposed by Exhibit F appears to be the least burdensome to the Robertson property, and none of the plaintiffs objected to this easement at the time that the Waldears agreed to relocate the bip and extinguish their ingress and egress easement. The court found the easement was consistent with the courts interpretation of the settlement agreement and conduct of the parties at the time of the agreements execution.
Thereafter, plaintiffs filed a motion for reconsideration, which the trial court denied. Plaintiffs appeal from the courts post-judgment order on January 14, 2002, in which the court ruled that defendants were entitled to an easement for their phone line.
DISCUSSION
I
Prior to addressing plaintiffs contentions, it is necessary to set forth some rules of appellate procedure that delimit the scope of our review.
The trial courts judgment is presumed to be correct, and all intendments and presumptions are indulged to support it on matters as to which the record is silent. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564, 86 Cal. Rptr. 65, 468 P.2d 193; Spitler v. Childrens Institute International (1992) 11 Cal.App.4th 432, 442.) It is the appellants burden to affirmatively demonstrate error, which includes providing an adequate record. (Denham v. Superior Court, supra, 2 Cal.3d at p. 564; Spitler v. Childrens Institute International, supra, 11 Cal.App.4th at p. 442 .; Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295, 240 Cal. Rptr. 872, 743 P.2d 932; Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502.)
In a challenge to a judgment, it is incumbent on the appellant not only to present factual analysis and legal authority on each point made, but to support any argument with appropriate citations to the material facts in the record; otherwise, appellant may be deemed to have waived the argument. (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856; In re Marriage of Nichols (1994) 27 Cal.App.4th 661, 672-673, fn. 3; Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979; In re Marriage of Ananeh-Firempong (1990) 219 Cal. App. 3d 272, 278, 268 Cal. Rptr. 83.)
In fact, established rules of appellate procedure provide that each brief must "support any reference to a matter in the record by a citation to the record," and that appellant must "provide a summary of the significant facts limited to matters in the record." (Cal. Rules of Court, rule 14(a)(1)(C) & (2)(C).) And it is appellants responsibility to support claims of error with citation and authority; this court is not obligated to perform that function on appellants behalf. (Estate of Hoffman (1963) 213 Cal. App. 2d 635, 639, 29 Cal. Rptr. 60; Metzenbaum v. Metzenbaum (1950) 96 Cal. App. 2d 197, 199, 214 P.2d 603.)
Points not urged in the trial court may not be raised for the first time on appeal. (Dimmick v. Dimmick (1962) 58 Cal.2d 417, 422, 24 Cal. Rptr. 856, 374 P.2d 824; Damiani v. Albert (1957) 48 Cal.2d 15, 18, 306 P.2d 780; 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 393, p. 444.) "It is not the province of an appellate court to act as counsel for either party to an appeal by prosecuting a search of the record for the purpose of discovering errors not pointed out in the briefs" (County Nat. Bank etc. Co. v. Sheppard (1955) 136 Cal. App. 2d 205, 223, 288 P.2d 880), or to ascertain whether a party properly preserved a point in the trial court. (Estate of Cleland (1953) 119 Cal. App. 2d 18, 21, 258 P.2d 1097.)
Moreover, appellant may not simply incorporate by reference arguments made in the papers filed in the trial court rather than brief the arguments on appeal. (Garrick Development Co. v. Hayward Unified School Dist. (1992) 3 Cal.App.4th 320, 334.) Such arguments are not considered on appeal. (Ibid .)
An argument raised for the first time in a reply brief without a showing of good cause may be deemed waived. (Garcia v. McCutchen (1997) 16 Cal.4th 469, 482, fn. 10, 940 P.2d 906; Neighbours v. Buzz Oates Enterprises (1990) 217 Cal. App. 3d 325, 335, fn. 8, 265 Cal. Rptr. 788.)
Where appellant challenges the sufficiency of the evidence, the reviewing court must start with the presumption that the record contains evidence sufficient to support the judgment; it is the appellants burden to demonstrate otherwise. (Foreman & Clark Corp . v. Fallon (1971) 3 Cal.3d 875, 881, 92 Cal. Rptr. 162, 479 P.2d 362.) Appellants brief must set forth all of the material evidence bearing on the issue, not merely the evidence favorable to appellant, and also must show how the evidence does not sustain the challenged finding. (Id. at p. 881; Niederer v. Ferreira (1987) 189 Cal. App. 3d 1485, 1510, 234 Cal. Rptr. 779.) If appellant fails to do so, the claim of insufficiency of the evidence is waived. (Foreman & Clark Corp. v. Fallon, supra, 3 Cal.3d at p. 881; Niederer v. Ferreira, supra, 189 Cal. App. 3d at p. 1510.)
Lastly, appellants failure to advance any pertinent or intelligible legal argument may be deemed an abandonment of the appeal. (Berger v. Godden (1985) 163 Cal. App. 3d 1113, 1117, 210 Cal. Rptr. 109; accord, Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699.)
In other words, an appellant may not simply tender his or her contentions without providing the requisite context, factual support, and legal authority and, in effect, say to the appellate court, "You figure it out." The appellate court is not omniscient and is not required to decipher what happened in the trial court or whether error occurred, without reasonable assistance from the appellant.
II
Plaintiffs contend their appeal "concerns a telephone line which at the commencement of the litigation was located on the ROBERTSON property and, according to [plaintiffs], was to be relocated to the agreed-upon road and utility easement which only went through the MARTIN/LANDRETH property." They claim the trial court did not have jurisdiction to modify the settlement agreement by adding terms that were not part of the parties agreement. In addition, they argue the evidence does not support the courts factual findings.
To address these contentions, we need more information than provided by plaintiffs, who have not set forth record citations to the majority of the relevant facts in the record in support of their arguments. Plaintiffs do not point to any evidence, in the record, that clearly describes the location of the challenged easement or the location of the parties property in relation to each other. Nor do they explain the basis of the underlying litigation, which is necessary to place the settlement agreement in context. This information is crucial to determining whether the easement granted by the trial court contravenes the parties settlement agreement. Most of the facts set forth in this opinion are the product of our independent search through the record in an attempt to make heads or tails out of plaintiffs appellate arguments.
Without benefit of any citation to the record for the vast majority of the facts, plaintiffs claim there is no substantial evidence to support the trial courts decision. And they do not cite to all of the evidence in the record, only the evidence that is favorable to them. Moreover, they rely heavily on the parties oral settlement agreement, and overlook that the judgment was entered on the written settlement agreement. Plaintiffs did not timely appeal from said judgment, either on the ground that the written agreement was not signed by the parties as required by section 664.6, or that it did not accurately reflect their oral agreement.
Plaintiffs also argue that defendants agreement to quitclaim to the Robertson Family Ranch the property on which the phone line lies is inconsistent with an intention to reserve an easement for a phone line. However, plaintiffs provide no argument or legal authority regarding the meaning and effect of a quitclaim deed to support their claim.
Under the circumstances, and in light of the appellate rules of procedure set forth in part I of the opinion, ante, plaintiffs challenge to the trial courts post-judgment order is waived.
In any event, as best we can discern, the trial courts ruling interpreting the settlement agreement provides that defendants may keep their phone line where it currently is located on Robertson Family Ranch property and extend the line 10 more feet to meet up with a new bip location on Armstrong Road.
The legal principles that apply to contracts generally also apply to settlement contracts. (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 810.) The primary objective of interpreting a contract is to carry out the intention of the parties. (City of Manhattan Beach v. Superior Court (1996) 13 Cal.4th 232, 238, 914 P.2d 160 (City of Manhattan Beach).)
In order to ascertain this intention, we must, of course, first resort to the language of the contract itself. (Machado v. Southern Pacific Transportation Co. (1991) 233 Cal. App. 3d 347, 359, 284 Cal. Rptr. 560.) However, courts may consider extrinsic evidence where it will assist in determining a contracts meaning. "The test of admissibility of extrinsic evidence to explain the meaning of a written instrument is not whether it appears to the court to be plain and unambiguous on its face, but whether the offered evidence is relevant to prove a meaning to which the language of the instrument is reasonably susceptible. [Citations.] [Citation.]" (City of Manhattan Beach, supra, 13 Cal.4th at p. 246.)
Here, the settlement agreement provides for an easement for ingress, egress, and utilities over a portion of the Martin/ Landreth land, and that the Waldears are to move their phone bip from, and to give a quitclaim deed to, the Robertson Family Ranch. The agreement is silent regarding the portion of the Waldears telephone line buried under the Robertson Family Ranch property.
But the settlement agreement must be viewed in the context of the parties lawsuits, since it is these lawsuits that the parties intended to resolve via the agreement. The Robertsons complaint was concerned with quieting title to defendants claim of an easement for egress and ingress, and said nothing regarding defendants phone line. Defendants complaint sought to protect their phone access and claimed they had a right to an easement for utilities.
Thus, for all we know from the scanty information provided by plaintiffs, the agreed upon easement for ingress, egress, and utilities across the Martin/Landreth land was intended only to accommodate the portion of the phone line crossing this property and had nothing to do with whether the remaining portion of the line could continue to traverse the Robertson Family Ranchs land to the new phone bip location. Furthermore, the quitclaim deed may have been intended only to relinquish any claim by the Waldears to an easement for ingress and egress across the Robertson Family Ranch land and had nothing to do with any claim for a utility easement. Given that the Robertson Family Ranchs pleadings complained only about defendants using their land for ingress and egress, the defendants agreement to give the Robertson Family Ranch a quitclaim deed is not necessarily inconsistent with the defendants retention of an easement for phone access as plaintiffs allege, particularly if the easement is indispensable. (Jersey Farm Co. v. Atlanta Realty Co. (1915) 28 Cal.App. 128, 131-132, 151 P. 547 [parole evidence is admissible to show that a quitclaim deed was not intended as an extinguishment of an easement, but for the purpose of ending certain litigation].)
The Waldears declarations support such an interpretation of the settlement agreement. Ronald Waldear asserted that the purpose of the quitclaim deed was to eliminate the Waldears easement for ingress and egress as was sought by the Robertson Family Ranchs litigation, and did not involve the Waldears phone line. Karen Waldear stated that, during settlement negotiations, she explained to plaintiffs about the cost involved in relocating the phone line from the Robertson Family Ranch property and the lack of telephone access further north from the existing box. Marie Robertson replied she just wanted the box off of her land, and Karen responded she would have the phone company move the box approximately 10 feet over to the phone companys box located on Armstrong Road. According to Waldear, without an easement, it would be virtually impossible to relocate the box without digging up a quarter mile of road and buried phone cable, and without finding an alternate location for the first 100 feet of cable. Because the settlement agreement did not require the Waldears to dig up their cable, the parties never intended to have the cable moved.
Plaintiffs assert the court erred in considering defendants parole evidence to interpret the settlement agreement. Plaintiffs argument is waived because they have failed to show that they objected to the challenged evidence on the same ground in the trial court (Dimmick v. Dimmick, supra, 58 Cal.2d at p. 422; Damiani v. Albert, supra, 48 Cal.2d at p. 18), and because their argument was raised for the first time in their reply brief without a showing of good cause (Garcia v. McCutchen, supra, 16 Cal.4th at p. 482, fn. 10; Neighbours v. Buzz Oates Enterprises, supra, 217 Cal. App. 3d at p. 335, fn. 8).
Plaintiffs do not cite to any evidence in the record on appeal establishing the Waldears declarations are factually inaccurate. Nor do plaintiffs explain how the Waldears can relocate their bip and still have phone service — the outcome defendants sought in their complaint — without extending the phone line 10 more feet to the phone companys box on Armstrong Road. Plaintiffs do not even demonstrate by citation to evidence in the record that moving the entirety of the phone line onto the Martin/Landreth land will provide the Waldears with phone access.
Given that one of the main reasons the Waldears sued the plaintiffs was to maintain phone access, it is illogical to assume the Waldears would agree to move their bip to a location that would make phone access impossible or very costly without clear evidence this is what they agreed to do.
Our review discloses the settlement agreement is reasonably susceptible to the interpretation proffered by defendants and accepted by the trial court. Based on the limited showing made by plaintiffs on appeal, they have failed to meet their burden of establishing that the court erred in granting defendants an easement for a phone line.
III
Plaintiffs last challenge to the trial courts order is as follows: "In this case, more than six months after the Judgment was entered on March 21, 2001, the Court made its Order on January 24, 2002, purporting to burden with easements real properties for which no Lis Pendens now existed. The Notice of Lis Pendens is to provide constructive notice that a claim affecting real properties is pending. Any taker of a subsequently created interest in that property takes the interest subject to any judgment rendered in the pending action. [Citation.] [P] Since the Judgment had been entered and the time for appeal had expired, [plaintiffs] were free to do with their real property as they saw fit and in fact, Appellant, MARTIN, had conveyed a parcel of property based on the Judgment entered March 21, 2001 and the Stipulated Settlement entered into on February 24, 1999. [Record citation.] That parcel could not now be burdened as proposed by the Trial Court."
There are several problems with this contention. Plaintiffs fail to establish that they raised this point in the trial court, as is required before raising a point on appeal. (Dimmick v. Dimmick, supra, 58 Cal.2d at p. 422; Damiani v. Albert, supra, 48 Cal.2d at p. 18.) The record citation they provide does not support their factual assertion that the property on which the easement was granted was sold, and they fail to provide any legal authority to support their claim that the court could not burden the property in the manner challenged on appeal. (Duarte v. Chino Community Hospital, supra, 72 Cal.App.4th at p. 856; In re Marriage of Ananeh-Firempong, supra, 219 Cal. App. 3d at p. 278; Estate of Hoffman, supra, 213 Cal. App. 2d at p. 639.) More importantly, plaintiffs do not establish that they, rather than the alleged new owner of the property, have standing to challenge the courts action on this ground.
Accordingly, plaintiffs challenge to the post-judgment order on this ground is waived.
DISPOSITION
The trial courts post-judgment order is affirmed.
We concur: BLEASE, J., and ROBIE, J.