Filed 4/2/15 Anaheim Hills Planned Com. Assn. v. Chen CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

ANAHEIM HILLS PLANNED COMMUNITY ASSOCIATION, Plaintiff and Respondent,

v. KANG-SHEN CHEN et al., Defendants and Appellants. G046408, G047582 (Super. Ct . No. 30-2009-00292597)

O P I N I O N

Appeals from judgments and orders of the Superior Court of Orange County, Franz E. Miller, Judge. The appeal in case No. G046408 is dismissed. In case No. G047582, the second amende d judgment is affirmed as modified and the orders are
affirmed. Kang-Shen Chen and Shu-Jen Chen, in pro. per.; Morris & Stone and Aaron P. Morris for Defendants and Appellants. Gordon & Rees, Jeffrey A. Swedo, Tara L. Martin, Stephanie P. Alexander
and Nathaniel J. Tarvin fo r Plaintiff and Respondent.
* * *2 Plaintiff and respondent Anaheim H ills Planned Community Association (Association) commenced litigation against de fendants and appella nts Kang-Shen Chen and Shu-Jen Chen in connection with a plethora of purported violati ons of the covenants, conditions and restrictions (CC& R’s) affecting their residentia l real property. An oral
settlement was reached on the re cord, for the Chens to take certain actions to remediate the violations. The court subsequently ente red a stipulated judgment encapsulating the terms of the settlement, ordering an injuncti on, finding that the Ch ens already were in default of the injunction, and providing that the Associati on was entitled to an expedited trial on damages. Before the trial took place, the Chens filed a notice of appeal, in case No. G046408 (First Appeal). While the First Appeal was pending, the trial on damages went forward. The court, in a second amended judgment, awarded the Association $508,589.46 in damages. The Chens filed a second notice of appeal, from the damages award and from two attorney fees awards, in case No. G047582 (Second Appeal). We conclude the First Appeal was taken from a nonappealable judgment. The judgment appealed from wa s an interlocutory decree, in asmuch as it specifically contemplated a trial on damages in order to fu lly resolve the dispute between the parties. Given that, this court has no jurisdiction to hear the First Appeal and it is hereby
dismissed. In the Second Appeal, we decline to review the Chens’ argument that the
Association’s consent to the se ttlement agreement was defectiv e, inasmuch as they failed to make an objection below, so the trial c ourt and the Association could have corrected any deficiency. Furthermore, we reject the Chens’ contention that the settlement agreement is unenforceable due to a lack of meeting of th e minds. However, we agree that the court overstepped its bounds in findi ng that the Chens were in violation of an injunction that had never been issued and in creating terms for the parties. On remand, the second amended judgment shall be modified to reflect that the Ch ens were in default3 of the settlement agreement, as opposed to th e injunction, to delete the damages award,
and to reflect that the Association is entitled to an expedited trial on damages only after it has performed remediation work. We a ffirm the second amended judgment as so modified and affirm the attorney fees awar ds. In addition, we deny the Association’s request for judicial notice and for the making of evidentiary findings on appeal.

I
FACTS A. Presettlement Litigation: The Association filed a lawsuit agai nst the Chens for nu isance, breach of contract (CC&R’s), injunctive relief and decl aratory relief. The Association alleged, inter alia, that the Chens had failed to comp ly with various provisions of the CC&R’s affecting their residential real property. Th ey alleged, for example, that the Chens had built various outbuildings on thei r property without Associati on approval, some of which were either abandoned or only partially cons tructed, that the Chens had used unapproved fencing materials including barbed wire, that they had left their swimming pool either empty or partially filled with stagnant wa ter, that they had stored on the property unsightly debris, trash, and construction materials including barbed wire, and that they had discharged waste water into a natu ral stream emanating from a spring. With trial set for June 20, 2011, the Association, on May 5, 2011, filed an ex parte application for an order compelling th e Chens to permit a site inspection of their property. The Association represented th at the Chens had said they would remedy claimed violations if pr ovided with a list of them, but that they repeatedly had refused to cooperate in the activities necessa ry for the Association to prepare a list. Purportedly, Association representatives me t with Kang-Shen Chen and the Chens’ architect on the property on September 16, 2010, and the ar chitect agreed to prepare a site plan documenting each improvement on the property. Th e intention was to use the site plan as
a basis for the discussion of the various vi olations. However, the Association later4 learned that the architect had been discharg ed and no site plan was forthcoming. The Association further represented that, thereafte r, it retained its own architectural expert to perform a site inspection and, on March 23 , 2011, noticed an Ap ril 29, 2011 site inspection. However, when the date and time for the site inspection arrived, the Chens refused to permit access to the property. Consequently, th e Association requested the court order compelling the Chens to permit a site inspection. The court granted the request for an order compelling a site inspection, to take place on May 24, 2011. It further ordered the Chens to pay $2,250 in sanctions to
the Association.

B. Settlement Agreement: On June 24, 2011, the Association filed a memorandum of settlement, in which it represented that the Chens had agr eed to a stipulated judgment on the terms stated therein. It also filed a joint list of exhibits to the settlement agreement. One of those exhibits was a five-page matrix of vi olations. The terms of the settlement were
read into the record at a hearing that same date. As stated verbally on th e record, the parties agreed to a stipulated judgment including an injunction requiri ng the Chens to remediate or re move any and all violations specified in the matrix, in a manner that complied with the Asso ciation’s CC&R’s and architectural standards, as well as the suba ssociation’s CC&R’s. The Chens agreed to hire a licensed architect to prepare a co mprehensive removal and remediation plan addressing each point identified in the matr ix. The comprehensive plan would be
submitted to both the Associ ation and the subassociation for approval and the Chens
would undertake no work before obtaining those approvals. The Chens further agreed that they would submit their first comprehensive plan no later than 60 days after June 24, 2011. The Association’s architectural review
committee would a pprove or reject the plan within 45 days. If the plan was rejected, up5 to two more 60-day-submission/45-day-review periods would follow. The Chens would have one year from the date of ap proval to complete the work. The stipulated judgment was to c ontain a mandatory injunction requiring the Chens to perform in the above described manner. It was to further provide: “If there’s a default . . . [the Association] will have the right to an expedited court . . . trial to prove up the costs to [the A ssociation] of having to demolis h and remediate things on the property that are in violation of the CC&R’s. . . . [The Association] has the right to enter their property and commence that work at any time.” The parties also agreed that the Association would have a right to bring an attorney fees motion. However, the issue of the prevailing party was reserved for court
determination. The parties expressed their intention to prepare a formal written settlement agreement. However, they furt her agreed that, if they were unable to reach agreement on a writing, the court transcript plus the e xhibits would constitute a binding settlement agreement, enforceable under Code of Civil Procedure section 664.6. 1

After counsel for the Association fi nished reciting the agreement for the record, the Chens each expressed their understanding and agreement to the terms.

C. Judgment and First Appeal: Two months later, the Association filed a motion for entry of judgment pursuant to section 664.6. In its motion, th e Association represented that it had prepared a written settlement agreement encapsulating th e agreed-upon terms, but that the Chens had refused to sign it. So, the Association requested that the cour t enter judgment on the stipulated settlement.

1 All subsequent statutory references are to the Code of Civil Procedure, except where otherwise specifically stated.6 On January 5, 2012, the court entere d a judgment and permanent injunction in favor of the Association, pursuant to se ction 664.6. That judg ment included a first injunction “for remediation an d/or removal of all conditi ons on the subject property which presently violate” the CC&R’s affecting the property. It also included a second injunction authorizing the Asso ciation to enter the property “and demolish, repair, or remediate each and every CC&R violation on the Subject Prop erty as set forth in the
attached Matrix of Violations . . . .” Th e judgment recited that the Chens had already defaulted under the provisions of the first in junction and that the Association had a right to an expedited court trial, on April 2, 2 012, to prove up the cost of the demolition and
remediation of the violations.
The Chens filed a motion for reconsideration. The motion was denied on January 18, 2012. An amended judgment was entered on January 23, 2012. The amended judgment clarified that it was entered “against Defendants, Kang-Shen Chen, an individual; Shu-Jen Chen, an individual; and Shu-Jen Chen, as Trustee of the Shu-Jen Chen Trust[.]” The Chens filed the First Appeal. On February 8, 2012, th e Association filed a motion for attorney fees and costs, seeking an award of $149,337.14 as the preva iling party in the dispute.

D. Second Amended Judgment and Second Appeal: On July 5, 2012, while the First Appeal was pe nding, the court held a trial on damages. On July 30, 2 012, it entered a “second amended judgment.” (Capitalization omitted.) The second amended judgment restated the provisions of the first amended judgment and added a new provision entitled “judgment for damages.” (Capitalization omitted.) That provision stated the Association had “exercise d its right to an expedited trial to prove up the cost of demolition and remedi ation of all violations . . . .” The court awarded $508,589.46 in damages.7 By minute order dated August 31, 2 012, the court awarded the Association $134,494.30 in attorney fees and costs. On September 24, 2012, the Association served
the Chens with notice of entry of the award. Thereafter, the Association filed a motion dated September 26, 2012, seeking an additional $56,331.70 in attorney fe es and costs, with respect to the damages
trial. The court awarded the Association an additional $40,190.20 in attorney fees and

costs. The Chens filed the Second Appeal. This court consolidated the First and Second Appeals.

II
DISCUSSION A. First Appeal (G046408): (1) Supplemental briefing order— By order of January 30, 2015, we directed the parties to file supplemental letter briefs addressing, inter alia, “whether the first amended judgment was a final, appealable judgment, or a nonapp ealable interlocutory decree ( Sargon Enterprises, Inc. v. University of Southern California (2013) 215 Cal.App. 4th 1495, 1507; Critzer v. Enos (2010) 187 Cal.App.4th 12 42, 1251-1252).” We gave each party an opportunity to file a responsive supplemental letter brief. Each pa rty filed a supplemental letter brief and the Chens filed a responsive supplemental letter brief. (2) One final judgment rule— “The existence of an appealable judgme nt is a jurisdictional prerequisite to an appeal. Thus, this court is obligated to review the question of appealability. [Citations.]” ( Doran v. Magan (1999) 76 Cal.App.4th 1287, 1292.) So, the first point for
our consideration is whether the first ame nded judgment was final and appealable, or whether the First Appeal must be dismisse d as taken from a nonapp ealable interlocutory8 decree. The parties now appear to largely agree that the First Appeal was taken from a nonappealable judgment. As the Association well observes, our Supreme Court has stated: “The right to appeal is wholly statutory. [Cita tion.] Code of Civil Procedure section 904.1 lists appealable judgments and orders. Ch ief among them is a ‘judgment’ that is not interlocutory, e.g., a final judgment. A judg ment is the final dete rmination of the rights of the parties [citation] ‘“‘when it termin ates the litigation betw een the parties on the merits of the case and leaves nothing to be done but to enforce by execution what has been determined.’”’ [Citations.] ‘“It is not the form of th e decree but the substance and effect of the adjudication whic h 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 excep t 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 co urt is essential to a final determination of the rights of the parties, the decree is interlocutory.”’ [Citations.]” ( Dana Point Safe Harbor Collective v. Superior Court (2010) 51 Cal.4th 1, 5, fn. omitted.) In the matter before us, the first amended judgment did not terminate the litigation between the parties, le aving nothing to be done but enforcement. It is not the
case that there was “‘“ no issue . . . left for future cons ideration except the fact of compliance or noncompliance with th e terms of the first decree . . . . ”’” ( Dana Point Safe Harbor Collective v. Superior Court , supra , 51 Cal.4th at p. 5.) Rather, something “‘“further in the nature of judicial action on the part of the court [was] essential to a final determination of the rights of the parties . . . .”’” ( Ibid. ) Specifically, a trial on damages
for the Chens’ breach of their settlement obligations was required in order to make a final determination of the rights of the parties. Indeed, the first amended judgment stated explicitly that the Association was entitled to a trial, to be held on April 2, 2012, on the
costs to it of demolition and remediation.9 True, it is generally the case “that a judgment on an order granting a motion
to enforce a settlement under section 664.6 is appealable . . . .” ( Critzer v. Enos , supra , 187 Cal.App.4th at p. 1251.) This notwithsta nding, for the judgment to be appealable, it must finally dispose of the litigation, and it is the substance and effect of the judgment
which determines whether it is appealable, not its label. ( Id. at p. 1250.) When “‘the intended substance and effect of the judgment is to finally dispose of the . . . action, the judgment is appealable . . . .’” ( Id. at pp. 1250-1251.) But here, the intended substance and effect of the first amended judgment wa s to determine that the parties had entered into a binding settlement agreem ent, which the Chens had alr eady breached, and to set a trial date for the determination of damages. Clearly, the first amen ded judgment did not finally dispose of the lawsuit.
The Chens cite Walton v. Magno (1994) 25 Cal.App.4th 1237 as “[a] highly analogous case.” There, the pl aintiffs sued the defendant fo r malicious prosecution and a judgment in favor of the defe ndant was entered in accordance with the jury verdict. The court thereafter granted the plaintiffs’ moti on for judgment notwithstanding the verdict and ordered a trial on damages. The defenda nt filed an appeal from the order granting the plaintiffs’ motion. ( Id. at p. 1239.) The appellate cour t dismissed the appeal as taken from a nonappealable order. It stated that the defendant was “in effect appealing from an interlocutory judgment of liability while the i ssue of damages [had] yet to be tried.” ( Id. at p. 1241.) It also said: “The actions be tween the parties have not yet been finalized. To permit an appeal at this j uncture would result in at least two appeals, a practice which is to be discouraged.” ( Ibid. ) Walton v. Magno , supra , 25 Cal.App.4th 1237 is dis tinguishable in that the appeal in that case was taken from a nonapp ealable order granting a motion for judgment notwithstanding the verdict ( id. at p. 1240), whereas the Firs t Appeal in the present case was taken from an amended judgment. Noneth eless, the first amended judgment in the case before us, like the order in Walton , is tantamount to “an in terlocutory judgment of10 liability while the issue of damage s [had] yet to be tried.” ( Id. at p. 1241.) That being so,
Walton provides persuasive authority in support of our conclusion that the first amended judgment in the case before us is a nonappealable interlocutory decree. Interestingly, while the Chens appear to concede that the first amended judgment is a nonappealable interlocutor y decree, they nonetheless state that “[a]lternatively, the Amended Judgment could be viewed as final since it determined all the rights of the parties by enforcing the putative Settlement Agreement.” (Boldface omitted.) In other words, th e first amended judgment determ ined that the parties had entered into a binding settlement agreement on the record, and further determined that the Chens were in breach, the Asso ciation had a right to enter the property and perform the remediation work, and the Association was also entitled to an expedite d trial on damages. All the parties’ rights had been determined; only the amount of damages, like the amount of attorney fees, remained to be determined. This argument would have been more persuasive had the court entered a self-contai ned stipulated judgment simply reciting the terms of the settlement agreement. But here , the first amended judgment stated that a
trial on the cost of the remediation work would follow, on a specified date, clearly contemplating further court action to re solve the dispute between the parties. The Chens further argue that just as the right to bring a subsequent attorney fees motion does not preclude an appeal from a judgment, a right to have a subsequent trial on damages ought not preclude an appeal from the first amended judgment. They overlook the fact that a postjudgment order aw arding attorney fees is a separately appealable order, under secti on 904.1, subdivision (a)(2).11 For the foregoing reasons, we concl ude the First Appeal was taken from a nonappealable judgment and must be dismissed. 2

B. Second Appeal (G047582): (1) Scope of appeal— In their second notice of appeal, f iled October 26, 2012, the Chens stated their appeal was taken “from the Judgement en tered on August 31, 2012 . . . (including ruling on 10-23-12)[.]” They al so said: “Notice of entry of Judgement was served . . . , [o]n September 13, 2012.”
We construe the referen ce to the August 31, 2012 judgment as intending to be a reference to the August 31, 2012 postjudgment orde r awarding $134,494.30 in attorney fees and costs. We construe the reference to the October 23, 2012 ruling as a reference to the October 23, 2012 postjudgmen t order awarding an additional $40,190.20 in attorney fees and costs. The question is the significance of th e statement: “Notice of entry of Judgement was served . . . , [o]n September 13, 2012.” In their opening brief in the Second Appeal, the Chens state September 13, 20 12 was the date of filing (as opposed to service) of the notice of entry of the second amended judgment. They argue that it was perfectly clear that their notice of appeal therefore addressed not only the two orders awarding attorney fees, but also the damages award under the second amended judgment. In support of their argument, the Ch ens cite an inapposite page of the record showing only that the second amende d judgment was filed on July 30, 2012. We have located on our own a copy of the notice of entry of the second amended judgment,

2 To the extent we construe the Chen s’ first notice of appeal as encompassing the January 18, 2012 order denying their mo tion for reconsideration, we note that an order denying a motion for reconsideration is also nonappealable. ( Powell v. County of Orange (2011) 197 Cal.App.4th 1573, 1576-1577; Tate v. Wilburn (2010) 184 Cal.App.4th 150, 156.)12 which the Association served on the Chens on September 12, 2012 and which was filed on September 13, 2012. We must disagree with the Chens that it was perfectly clear that when they filed a notice of appeal from an August 31, 2012 “judgment” and stated notice of entry was served on September 13, 2012 (rather than September 12, 2012), they meant to challenge the damages award under the July 30, 2012 second amended judgment. Perhaps they misstated th e date of service of the August 31, 2012 order. Or, perhaps, as the Chens now suggest, they misdescribed the ruling they intended to challenge, notice of entry of which was filed, not served, on September 13, 2012. As the Chens correctly observe, Califor nia Rules of Court, rule 8.100(a)(2) provides in pertinent part: “T he notice of appeal must be lib erally construed. The notice is sufficient if it identifies the particular ju dgment or order being appealed.” The notice will be liberally construed “‘“so as to protect the right of appeal if it is reasonably clear what appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced.”’ [Citations.]” ( Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 20.) Although we question whether it was re asonably clear what the Chens were trying to appeal from, the Association doe s not argue the point. Rather, in its respondent’s brief, it says: “The Notice of Appeal does not refer to the Second Amended Judgment specifically but it does refer to a Notice of Entry of Judgment served on September 13, 2012.” Moreover, the Asso ciation concedes “the second amended judgment is at issue in this appeal,” and addresses the second am ended judgment in its respondent’s brief. This be ing the case, we cannot co nclude the Association was prejudiced by the lack of clarity in the Chens’ notice of appeal. Consequently, we construe the notice of appeal in the Second Appeal as challenging: (1) the August 31, 2012 postjudgment orde r awarding $134,494.30 in13 attorney fees and costs; (2) the October 23, 2012 postjudgment order awarding an additional $40,190.20 in attorney fees and co sts; and (3) the second amended judgment. (2) Code of Civil Pr ocedure 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 se ttlement. If requested by the pa rties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the
terms of the settlement.”
The standard of review when a set tlement agreement is the subject of a section 664.6 motion was explained in Skulnick v. Roberts Express, Inc. (1992) 2 Cal.App.4th 884. “A trial court, when ruling on a section 664.6 motion, acts as a trier of fact. [Citation.] Section 664.6’s ‘express au thorization for trial courts to determine whether a settlement has occurred is an impl icit authorization for the trial court to interpret the terms and conditi ons to settlement.’ [Citation. ] The proper standard of review, therefore, is whether the trial court’ s ruling [construing] th e settlement . . . is supported by substantial ev idence. [Citation.]” ( Id. at p. 889.) “[A] trial court cannot enforce a se ttlement under section 664.6 unless the trial court finds the parties expr essly consented . . . to the material terms of the settlement. [Citation.]” ( Bowers v. Raymond J. Lucia Companies, Inc. (2012) 206 Cal.App.4th 724, 732.) “A settlement agreement is a contract , and the legal principles which apply to contracts generally apply to settlement contracts. [Citation.] An essential element of any contract is ‘consent.’ [Cita tions.] The ‘consent’ must be ‘mutual.’ [Citations.]” ( Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 810-811.) “‘The existence of mutual consent is determined by objective rather than subjective criteria, the test being what the outward ma nifestations of consent woul d lead a reasonable person to believe.’ [Citation.]” ( Id. at p. 811.) “The parties’ outwa rd manifestations must show14 that the parties all agreed ‘u pon the same thing in the sa me sense.’ [Citation.]” ( Ibid. ) We must be mindful that “nothing in section 664.6 authorizes a judge to create the material terms of a settlement, as opposed to deciding what terms the parties themselves have previously agreed upon.” ( Weddington Productions, Inc. v. Flick , supra , 60 Cal.App.4th at p. 810.)
We address whether the trial court’ s determinations are supported by substantial evidence only af ter we determine whether the statutory requirements of
section 664.6 are met. The construction and a pplication of the statut e raise questions of law, subject to our independent review. ( Conservatorship of McElroy (2002) 104 Cal.App.4th 536, 544.) (3) Litigant Consent— The Chens argue that the court erred in entering a judgment on the parties’ purported settlement agreement because the Asso ciation never stated on the record that it agreed to the terms. They further argue th at, because of this, th e court had no subject matter jurisdiction to enter judgment. Finally, th ey contend that they are free to raise this issue of subject matter jurisdic tion for the first time on appeal. (a) Background Right before reciting the settlement agreement for the r ecord, counsel for
the Association stated: “First I’d like to introduce my clients who are here. Tom Oblonsky, who is the president of the Associ ation, and Paul Beck man of Alta Property Management, they are the property manager fo r the Association.” He continued: “And Mr. Beckman has the full authority of the Association’s board of directors, their subdirectors. They voted to approve the settlement and to vest in Mr. Oblonsky all authority to enter into this settlement today.” At the end of the hearing, the cour t questioned each of the Chens about their understanding of, and agreement to, the se ttlement terms. The court then stated that representatives from both sides were pres ent and it found “that both sides [had]15 knowingly, voluntarily, and intelligently en tered into [the] ag reement with a full understanding of its meanings an d terms.” Counsel for the Asso ciation said, “So agreed.” However, the Association concedes on appeal th at the court did not specifically elicit the consent of either Oblonsky or Beckman on the record, and that it accepted the representation of counsel that the Association did consent. (b) Manifestation of consent According to the Chens, the court erre d in doing so. As they well point out, the Supreme Court in Levy v. Superior Court (1995) 10 Cal.4th 578, in a case having to do with a written settlement agr eement, interpreted section 6 64.6 to require an expression of consent by the litigants themse lves, not their attorneys. ( Levy v. Superior Court , supra , 10 Cal.4th at pp. 580, 584.) This inte rpretation has been extended to oral settlement agreements as well. ( Critzer v. Enos , supra , 187 Cal.App.4th at pp. 1254- 1255.)

In Critzer v. Enos , supra , 187 Cal.App.4th 1242, the appellate court held that the trial court erred in granting a motion to enforce a settlement under section 664.6. ( Id. at pp. 1246, 1260.) There, two of the parties were not present when the oral settlement agreement was recited on the record, although their attorn eys were present. ( Id. at pp. 1257, 1261.) The court held that the settlement was unenforceable because those two parties had not given their pers onal consent to the recited terms. ( Id. at p. 1257.) The case before us is distinguishable, of course, because here the Association’s representative was present. The Chens say this makes no difference, citing Conservatorship of McElroy , supra , 104 Cal.App.4th 536. In that case, th ree parties and their attorneys were
in court when the settlement was recited. The reporter’s transc ript showed that two of the parties were asked about their understanding, a nd that the court stated “they nodded their assent.” ( Id. at pp. 546-547.) The reporter’s transcri pt did not show th at the third party was asked whether she agreed. However, a vide otape of the proceeding indicated that the16 third party’s own attorney aske d her whether she agreed. ( Id. at p. 547.) This being the case, the appellate court said the trial court’ s remark that “they nodded their assent” was ambiguous as to whether he was referring to three of the parties or only two. ( Ibid. ) In the end, however, it did not matter. The appe llate court held “nod s are insufficient to show oral assent under the statute . . . .” ( Id. at p. 552.) According to the Chens, Conservatorship of McElroy is dispositive because it shows that even when a party is present in court with his or he r attorney when the settlement is recited on the record, and nods in agreement, there will be a failure of litigant cons ent as required under section
664.6. (c) Waiver of argument The Association argues it is too late to raise the issue of defective litigant consent on appeal. We agree. “It is a fundamental proposition that ‘“[a]n appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection w ith relief sought or defenses asserted, where an objection could ha ve been but was not pr esented to the lower court by some appropriate method . . . .” [Citation.]’ [Citation.]” ( Critzer v. Enos , supra , 187 Cal.App.4th at p. 1261.) “‘“[I]t is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial.”’” ( People v. Alistar Ins. Co. (2003) 115 Cal. App.4th 122, 126, fn. omitted.) We apply that rule here. The Asso ciation’s representative was present at the hearing and could have verbalized hi s agreement had the Ch ens made a timely objection. 3

3 The record on appeal contains the declaration of Oblonsky wherein he stated he was president of the Association’s bo ard of directors at the time of the June 24, 2011 hearing, at which he was present. Obl onsky declared that he had authority to enter into the settlement agreement pl aced on the record and that he was standing next to the Association’s counsel as he recited the terms before the court. In conclusion, Oblonsky stated that, by his declaration, he acknowl edged the Association’ s agreement to the settlement terms. The Association argues th e foregoing shows that it would have been17 The Chens argue against the app lication of the rule, again citing Critzer v.

Enos , supra , 187 Cal.App.4th 1242. They say the court in Critzer acknowledged that an appellate court usually will not consider proc edural defects where no objection was made in the trial court, but decided to address th e issue of litigant consen t anyway because the issue involved undisputed evidence a nd raised a pure question of law.
Their characterization of the decision in Critzer v. Enos , supra , 187 Cal.App.4th 1242 is misleading. In Critzer , counsel for the parties opposing enforcement of the settlement raised the issue of party co nsent orally at the hearing on the section 664.6 motion. The attorney “noted that not a ll of the parties had given their assent when the [s]ettlement was recited on the record and raised a question as to whether the matters recited in court were subject to en forcement under section 664.6.” ( Critzer v. Enos , supra , 187 Cal.App.4th at p. 1261 .) He stated “‘the record [was not] truly a 664.6 settlement, . . . inasmu ch as the HOA’s representative was not there to affirm the terms . . . .’” ( Ibid. ) In addressing whether to consider th e issue of party consent on appeal, the Critzer court stated that “although [t he opposing parties] could have been more expansive
in their discussion of whether the absence of consent by all parties precluded enforcement of the [s]ettlement under section 664.6, we conc lude that they raised the issue sufficiently below . . . to preclude its forfeiture.” ( Critzer v. Enos , supra , 187 Cal.App.4th at p. 1262.) The court continued: “Moreover, ‘whe n the issue involves undisputed evidence and raises a pure question of la w, we may consider it for the first time. [Citation.]’ [Citation.]” ( Ibid. )

possible to cure, by declaration, any defect in the Associa tion’s expression of consent, had the Chens only made a timely objection. (See Elyaoudayan v. Hoffman (2003) 104 Cal.App.4th 1421, 1427, 1432 .) Even were this true, we would not consider the declaration because it was filed only after th e second amended judgment was entered, and therefore was not considered by the court in making its determination.18 Critzer v. Enos , supra , 187 Cal.App.4th 1242 is di stinguishable. Where in that case the opposing parties did raise the issue of defective litigant consent in the trial court, such that their argumen t was not forfeited, here the Ch ens failed to raise the issue
in the trial court. Although the Critzer court in dictum provided an alternate ground for considering the argument on appeal, we noneth eless decline to consid er the issue for the first time on appeal in the matter before us. A timely objection from the Chens would have given both the trial court and the Asso ciation an opportunity to put Oblonsky’s
consent on the record.
The Chens maintain that they have not waived thei r right to raise the issue of defective consent for the first time on appe al, inasmuch as it pertains to the subject matter jurisdiction of the trial court. ( Casa De Valley View Owner’s Assn. v. Stevenson (1985) 167 Cal.App.3d 1182, 1191 , fn. 4 [subject matter jurisdiction may be raised for the first time on appeal].) They explain th at, without the agreemen t of all parties as required by section 644.6, the court had no jurisdiction to grant the motion for entry of judgment. They cite Wackeen v. Malis (2002) 97 Cal.App.4th 4 29 in support of their position.
Wackeen addressed whether the court ha d jurisdiction to enforce a settlement agreement after the la wsuit had been dismissed. ( Wackeen v. Malis , supra , 97 Cal.App.4th at p. 433.) The court held that section 664.6 provides “courts with continuing jurisdiction over par ties and their litigation, for th e purposes of enforcing their settlement agreement, despite a suit’s having been dismissed after the execution of the agreement,” provided certain requirements are met. ( Ibid. ) The parties are required, for example, to make a request for retention of ju risdiction before the lawsuit is dismissed. If they fail to do so, “enforcement of the agreement must be left to a separate lawsuit.” ( Ibid. ) In the case before it, the Wackeen court held that the par ties had failed to make a request for retention of jurisdiction before th e lawsuit was dismissed and that, therefore,19 the trial court lacked subject matter jurisdic tion over the section 664.6 motions to enforce a settlement agreement. ( Id. at pp. 432-434, 437, 439.) The matter before us is distinguishabl e. Here, the Association brought its
section 664.6 motion before dismissal. The c ourt did not lack subjec t matter jurisdiction over the motion. To the contrary, “[w]hen a c ourt has jurisdiction over the parties and the subject matter of a suit, its jurisdiction co ntinues until a final judgment is entered. [Citation.]” ( Wackeen v. Malis , supra , 97 Cal.App.4th at p. 437.) No final judgment had
been entered when th e Association brought its motion and the court had subject matter jurisdiction to ru le upon it. (4) Terms of Settlement Agreement— The Chens argue that even if this court concludes the trial court did not err in entering a judgment, there are a number of reasons why the court erred in fashioning the terms of the judgment. (a) Second amended judgment The second amended judgment, in pa rt one thereof, ordered an injunction compelling the Chens to submit their comprehensive arch itect-prepared remediation plan to the designated architectural committees wi thin certain timeframes, and to perform the remediation work within one ye ar of approval. It furthe r provided that the Chens’ “failure to comply with any of the above provisions set forth in Part I of this Amended Judgment shall constitute a default . . . of this Amended Judgment and Injunction.” In part two, the second amended ju dgment stated that the Chens already had defaulted “under the provisions of the Inj unction set forth in Part I” and that the Association had “the right to an expedited court (non-jury) trial on April 2, 2012, to prove up the cost of demolition and remediation of all violations on the Subject property . . . .” The second amended judgment conti nued: “Further, a second Injunction is hereby issued authorizing [the Associa tion] to enter the Subject Property and demolish, repair, or remediate each and every CC&R violation on the Subject Prop erty as set forth in the20 attached Matrix of Violations . . . . [The Association] shall have the option of entering the Subject Property before or after the damages trial as provided in this Part II.” (Italics added.) In addition, the second amended judg ment recited that the Association had “exercised its right to an expedited tria l to prove up the cost of demolition and
remediation of all violations . . . . After having fully considered the arguments of all parties . . . , as well as the evidence presen ted, the Court award[ed] damages . . . in the sum of $508,589.46.” The second amended judgment contin ued: “[The Association] may expend an amount not to exceed $508,5 89.46 to remediate the violations on the Subject Property. [The Association] shall obtain bids from no fe wer than two licensed, qualified contractors to perform the work . . . . [T he Association] is to accept the lower bid . . . . If the remediation is completed for le ss than the damages award, [the Association] is to refund the balance of any money collected on the judgment to [the Chens].” (b) Court creation of terms The Chens argue that, in entering th e second amended judgment, the court erred in creating material terms to which the Chens never agreed. Th ey call attention to the provision stating “[the Association] sh all have the option of entering the Subject Property before or after the damages trial . . . .” 4 (Italics added.) They say they never agreed to a provision that would allow a tria l on damages, and an aw ard of damages, for
work the Association had never undertaken. Ra ther, they expected onl y that, in the event of their default, the Association could enter th eir property and make repairs, then request reimbursement, and only after that obtain a trial on damages.

4 To be precise, we observe the reco rd indicates that the judgment, first amended judgment, and second amended judgme nt were each drafted by counsel for the Association.21 The reporter’s transcript shows that the following term wa s recited into the record: “If there’s a default in part one, th e Chens stipulate that [the Association] will have the right to an expedited court . . . trial to prove up the costs to [the Association] of having to demolish and remediat e things on the property that are in violation of the CC&R’s. [The Chens] today stipulate that [t he Association] has th e right to enter their property and commence that work at any time. Of course, . . . if the [Chens] are in compliance with part one, [the Association] will not do this.” 5 The foregoing language shows the partie s agreed that if the Chens failed to perform their obligations, the Association had “the right to enter their property and commence . . . work at any tim e.” The words “any time” are simple enough and show the parties did not contemplate that the Associat ion would have to await a trial on damages before commencing work. The Chens agree to this much. However, those words also indicate that the Association could delay, th at it was not required to undertake work as
soon as the Chens defaulted. The question is whether those words ar e fairly construed to mean that the
Association could first obtain an award of damages and then undertake the work. We read the words “any time” together with the language of the agreement that the
Association was entitled “to an expedited court . . . trial to prove up the costs to [the Association] of having to demolish and re mediate” the items shown on the matrix of violations. Query whether these provisions co uld be construed as giving the Association a right to an immediate trial on damages, with the work to be performed afterwards. If so

5 We note that this language tracks fairly closely the language contained in the Association’s memorandum of settlement filed by the Association on the date the settlement was placed verbally on the record. The memoran dum states: “In the event [the Chens] default under the Part I Injunction, [the Association] shall have the right to an expedited court (non-jury) trial to prove up the cost of demolition and remediation. [The Chens] now stipulate to a second injunction th at [the Association] has the right to enter [their] property and demolish, repair, or remediate all CC& R violations in the event [they] default under the Part I Injunction.”22 construed, however, the agreement would leav e unanswered questions about what would happen after the Association obtained a damages award. The court filled in the gap by providi ng that the Association was required to obtain at least two bids, accept the lower bi d, and refund to the Chens the difference between the cost of performing the work a nd the amount of the $508,589.46 judgment. At this point, we must agree w ith the Chens that the court cr eated material terms to which they did not agree. There is nothing in eith er the settlement recited on the record, or for
that matter the Association’s me morandum of settleme nt terms filed with the court on the hearing date, that described a bidding procedure or that made clear the Chens would have to pay a six-figure damages award before any work was performed a nd hope to receive a refund at some undesignat ed time in the future. Yet we also see nothing in either the settlement agreement recited on the
record or the Association’s memorandum of settlement terms that establishes the procedures the Chens prefer. The Chens asse rt that, because the CC &R’s were attached as an exhibit to the agreement, this shows the parties agreed to follow the provisions of Article IV, Section 7 thereof permitting the Asso ciation to perform repairs, then request reimbursement from the owner, and then record a mechanic’s lien if no reimbursement is made. They contend that they contemplated that these procedures would be followed before there was any damages trial. However, the Chens’ characterization of the settlement is inconsistent with the plain terms thereof. The te rm “expedited court trial” had to have some meaning. We construe it as providing the Association with the option of obtaining a court trial as soon as it had performed work on the property, no t as requiring it to pursue reimbursement from the Chens, record a mechanic’s lien, and thereafter go to trial.
The Association maintains that th e settlement entitled it to obtain a damages award before ever undertaking any wo rk. Moreover, it says that the Chens have waived any argument to the cont rary by failing to raise the i ssue in their briefing in the23 First Appeal. However, as we have alre ady said, the first amended judgment was a nonappealable interlocutory decree, and the Chen s had no right to appeal therefrom. That being the case, their argument is prope rly raised in the Second Appeal.
The Association also ma intains that the language of the settlement was perfectly clear—it was entitled to an expedite d court trial to prove up the costs of remediation. This, says the Association, means simply enough th at it was entitled to receive a damages award before ever perform ing any work on the property. We have already stated our reasons for concluding otherwise. (c) Meeting of the minds The disagreement between the partie s on the meaning of the provision regarding an expedited trial leads to the Chens’ last argument on the existence and enforceability of a settle ment. The Chens, citing Lindsay v. Lewandowski (2006) 139 Cal.App.4th 1618, contend that the settlemen t agreement is unenforceable because there was no meeting of the minds.

In Lindsay v. Lewandowski , supra , 139 Cal.App.4th 1618, this court held that a stipulated settlement agreement was unenforceable where various parties executed
different versions of a settle ment agreement, containing di fferent material terms. ( Id. at pp. 1620, 1623.) We ob served that “[a] settlement agreem ent, like any other contract, is unenforceable if the parties fail to agree on a ma terial term or if a material term is not reasonably certain. [Citations.]” ( Id. at pp. 1622-1623.) In the matter before us, the parties di d not sign two different versions of a settlement agreement. Rather, they stood in court together and agreed to terms recited on the record. Consequently, they all agreed to one set of terms. The question, then, is
whether “a material term is not reasonably certain.” ( Lindsay v. Lewandowski , supra , 139 Cal.App.4th at p. 1622.) The Association does not respond to the Chens’ arguments that the settlement agreement is unenforceab le due to a lack of meeting of the minds and that the24 agreement is not reasonably certain. It doe s, however, state generally that there is
substantial evidence to show th e judgment properly reflects the terms of the settlement agreement, including the pr ovision permitting the Association to obtain a judgment before performing any work, and that th ere was no error in entering judgment. As we have already stated, we disagr ee with the assertion that substantial evidence supports the provisions of the judgment regarding the Association’s (a) obtaining a damages award before any wo rk is done, (b) obtaining postaward bids, and (c) providing a refund if, after comple ting the work at some undesignated future time, the Association has spen t less than the amount of th e damages collected from the
Chens. The question is whether the settleme nt agreement provi sion regarding an expedited damages trial, as recited on the re cord, is reasonably certain. “‘Whether a contract is certain enough to be enforced is a question of law for the court.’ [Citation.]” ( Bowers v. Raymond J. Lucia Companies, Inc. , supra , 206 Cal.App.4th at p. 734.) We hold that the agreement regarding an exped ited damages trial is reasonably certain, for reasons already stated. In so holding, we are mindful that the “modern trend disfavors holding contracts unenforceable because of uncertainty and [the] defense of uncertainty applies only when the uncertainty prevents the court from knowing what to enforce.” ( Id. at p. 736.) The Association is entitled to an expedited trial on damages after it has performed remediation work. (5) Chens’ default— The Chens say they had good reason to refuse to sign the draft of the settlement agreement the Associ ation prepared, so the court erred in finding that they were in breach. However, it does not appear from the record that th e failure to sign the draft settlement agreement was the reason the court found the Chens to be in breach. Rather, the court found them to be in breach because they had failed to comply with the requirement of the settlement agreement that , within 60 days afte r the June 24, 201125 settlement date, they have an architect pr epare a comprehensive remediation plan and
submit it for architectural committee review . The reporter’s transcript provides
substantial evidence in su pport of this finding. The Chens also point ou t what they characterize as “an even stranger reality.” That is, when the court entered ju dgment, it found the Chens were in breach of an injunction that had never be en issued. We agre e with the Chens th at the judgment as worded presents a bit of a conundrum. As read, it does st ate the Chens were in default of the injunction contained therein—an injuncti on never before created . However, the court was correct that the parties had reached a se ttlement agreement on June 24, 2011, that required the Chens to take certain actions w ithin certain timeframes, and that further provided an injunction would issue to compel that performance. As we have already said, substantial evidence supports the court’s finding that the Chens had failed to comply
with those deadlines. Howeve r, while the court could proper ly find that the Chens had
breached the terms of the settleme nt agreement, as a technical point, is was not proper to find that they had breached an inj unction that had never been issued. (6) Individual Liability— (a) Background In its complaint, the Association named both of the Chens in their individual capacities, as well as Does 1 through 50, as defend ants. In his fourth amended cross-complaint, Kang-Shen Chen stated: “Cross-Complainant, KANG SHEN CHEN, is an individual . . . and are [ sic ] the owners of that certain real property . . . commonly
known as 6984 East Overlook Terrace, Anaheim, California (‘Property’).” He further stated: “Cross-Complainant is a member of, and resides in the Anaheim Hills Planned Community, and as a result is subject to th e Covenants, Conditions and Restrictions (‘CC&Rs’) governing the use of the Property.”
The Association’s memorandum of settle ment agreement stated, in part five
thereof: “The Answer of Shu Jen Chen, an individual, is sti pulated to be the answer of26 the Shu Jen Chen Trust, of which Mrs. Ch en is trustee.” At the hearing on the Association’s motion, Shu-Jen Chen stated to the court that she was speaking on behalf of the trust, “which [was] listed on part five . . . .” She stated that she was both the trustor and the trustee of the trust. She complained to the court: “The Plai ntiff served me [with] a summons on May 30th against the trust of Sh u-Jen Chen.” Counsel for the Association explained that the Association had filed a Doe amendment to bring in the trust. The court
indicated that the effect of the Doe amendmen t was to add Shu-Jen Chen as the trustee of
the trust as a defendant. Shu-Jen Chen replied: “Okay. And, your Honor, so they already sue me. Then why should they sue me again? . . . And they al ready sue me as the owner of the property. That’s good enough.” The court replied: “Well, as long as it’s good enough for you and you’re not going to make some claim that they can’t enforce this agreement because of the trust, then there’s not going to be a problem with that. . . . But the understanding is that this is the agreement . . . of everybody who’s here today, whatever capacity, the human beings that are in court today have the power to enter into this agreement and are agreeing to the terms of this agreement .” (Italics added.) It further stated to Shu-Jen Chen: “They just want to make sure there’s not going to be any claim on your side that you don’t have to comply with the agreement . . . . You understa nd that, don’t you?” Shu-Jen Chen replied: “But I still own that property.” Th e court checked with he r: “And you agree to
the terms of this settlement?” She replied: “Sure.”
The court then checked to make sure everyone understood and agreed to the terms of the settlement. Kang-Shen Chen ex pressed his understandi ng and agreement. The second amended judgment was en tered thereafter against each of the Chens in their individual capacities and against Shu-Jen Chen in her cap acity as trustee of the Shu-Jen Chen Trust, jointly and severally.27 (b) Argument The Chens now argue that the cour t could not enter judgment or award attorneys fees against either of them in their individual capa cities, because the property in question is owned not by them, but by Shu-Jen Chen’s trust. 6 They also argue that the court could not enter judgment against Shu- Jen Chen personally, in any capacity. They rely on various legal authorities, incl uding Civil Code former section 1354 7 (concerning the enforcement of CC&R’s against propert y owners) and Probate Code section 18001 (concerning the personal liability of a trustee ). As the Association contends, the Chens’ argument is waived for failure to raise it in the trial court. ( Critzer v. Enos , supra , 187 Cal.App.4th at p. 1261.) Even were this not the case, given the exchange on the record, and the agreement of the Chen s that they would be bound in whatever their capacities, their argument is untenable.

III
DISPOSITION The Association’s requests for j udicial notice and for the making of findings on appeal are denied. The First Ap peal is dismissed. The second amended judgment is ordered modified to reflect that the Chens were in default of the settlement agreement, as opposed to the in junction, to delete the damages award, and to reflect that

6 The Association has filed a request fo r judicial notice of a deed recorded July 10, 2008, showing that Shu-Jen Chen in her individual capacity transferred certain real property to herself as trustee of her trus t. It also requests that this court make a finding, based on that deed, that Shu-Jen Chen is the trustor of the trust. Both requests are denied. The Association has not shown that the deed was presented to the trial court. ( County of Orange v. Smith (2005) 132 Cal.Ap p.4th 1434, 1450.)

7 See now Civil Code section 5975.28 the Association is entitled to an expedited trial on damages only after it has performed
remediation work. The orders are affirmed. The Association shall recover its costs on appeal.

MOORE, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

BEDSWORTH, J.