Filed 9/14/21 Carter v. Mike Thompson Recreational Vehicles 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

JAMES M. CARTER,

 Plaintiff and Appellant,

v.

MIKE THOMPSON RECREATIONAL 

VEHICLES,

 Defendant and Respondent.

 G058205

 (Super. Ct. No. 30-2016-00876571)

 O P I N I O N

Appeal from an order of the Superior Court of Orange County, Walter P. 

Schwarm, Judge. Affirmed in part, reversed in part and remanded with instructions.

Law Offices of Jim O. Whitworth and Jim O. Whitworth for Plaintiff and 

Appellant.

Sutton & Murphy and Thomas M. Murphy; Schlichter & Shonack, Kurt A. 

Schlichter and Steven C. Shonack for Defendant and Respondent.
2

INTRODUCTION

Appellant James Carter was dissatisfied with a vehicle he purchased. After 

bringing consumer warranty claims against two entity defendants – one of which 

manufactured the vehicle, and the other of which sold him the vehicle – Carter and the 

two defendants entered into a written, integrated settlement agreement. 

Under the Song-Beverly Consumer Warranty Act (Civ. Code, §1790 et 

seq.) (Song-Beverly Act), prevailing buyers must be permitted to recover attorney fees 

and costs. (See Civ. Code, §1794, subd. (d).) However, by the explicit terms of the 

parties’ settlement agreement, and due to an indemnity agreement between the 

defendants, only one of the two defendants was responsible to pay said fees and costs. In 

an unfortunate twist of fate, this defendant entered into receivership in its native Canada 

shortly after Carter obtained a ruling fixing the amount of attorney fees it would need to 

pay him. Now, Carter seeks to hold the other defendant responsible for those fees. We 

hold he cannot do this and affirm the other defendant’s dismissal. But we reverse and 

remand the trial court’s dismissal of the action as against the responsible defendant so the 

attorney fee award against it may be reduced to judgment.

FACTS

In 2012, Carter purchased a Roadtrek recreational vehicle manufactured by 

Edwin Hymer Group North America, Inc. (EHGNA) from respondent Mike Thompson 

Recreational Vehicles, a dealer (Thompson). He experienced various issues with the 

vehicle and in September 2016, he filed a complaint against EHGNA1 and Thompson,

amongst others, for violations of the Song-Beverly Act. The first cause of action for 

breach of express warranty was against the manufacturers and the second cause of action 

for breach of implied warranty was against all defendants, including Thompson. 

1 Carter originally named Roadtrek Adventures, Inc. as a defendant in his complaint. However, 

EHGNA accepted service of the summons on behalf of Roadtrek Adventures, Inc., claiming it was erroneously sued 

in that name. 
3

A notice of settlement was filed and the parties entered into a written 

settlement agreement. In exchange for the return of the vehicle and a request for 

dismissal with prejudice of the entire case against all defendants, appellant was to receive 

from “defendants” a check for a specified sum as well as “[p]ayment of attorneys’ fees 

and costs as determined by the Court pursuant to Section 5” of the agreement. Section 5 

provided “[a]s further consideration for the settlement,” EHGNA would pay Carter and 

his counsel “reasonably incurred attorneys’ fees and costs incurred in the prosecution of 

this lawsuit as they are agreed to be the prevailing party.” Carter was to bring a motion 

for attorney fees as a prevailing party in order to fix the amount of fees owed. 

Once it was notified of the settlement, the trial court set an order to show 

cause regarding dismissal which was continued a number of times, finally to August 31, 

2018. The court advised the parties it would dismiss the entire action with prejudice if 

there were no appearances at the order to show cause hearing. A few weeks prior to the 

hearing, respondents and EHGNA, jointly represented throughout the proceedings, 

substituted in new defense counsel. The court was concerned that dismissing the case 

would cut off its jurisdiction to hear appellant’s fee motion, and so it scheduled a case 

management conference for November 6, 2018, intending to hear the fee motion on the 

same date. 

Appellant filed the fee motion on November 6 itself, and set it for hearing 

on January 22, 2019. The notice of motion sought fees based on actual time expended 

under Civil Code section 1794, subdivision (d) “and as agreed to by [EHGNA] and” 

himself. However, appellant’s brief focused on the statute’s edict permitting a prevailing 

plaintiff to recover actual fees; there was no discussion of who was required to pay 

them.2 

2 Appellant sought $160,798 in fees. 
4

Both EHGNA and respondent filed a joint opposition to appellant’s fee 

motion. They argued that, under Civil Code section 1794, subdivision (d), appellant was 

only entitled to actual time expended to the extent the attorney fees were reasonably 

incurred. 

The trial court heard the fee motion on January 22, 2019. It awarded 

appellant $112,698 pursuant to Civil Code section 1794, subdivision (d). Another order 

to show cause hearing regarding dismissal was set for March 8, 2019, but it was 

continued to March 15. 

EHGNA’s counsel requested it issue the check to pay appellant’s fee 

award, but in February 2019, EHGNA went into receivership in Canada. On March 15, 

appellant had the court clerk issue a writ of execution against Thompson, seeking to 

collect on the fee award. A few weeks later, Thompson filed an ex parte application to 

recall and quash the writ of execution, arguing EHGNA, not it, was responsible under the 

settlement agreement for paying appellant’s fees. 

Relying on the collective definition of “defendants” in the settlement 

agreement, appellant opposed the ex parte application on the ground that it constituted an 

untimely and meritless application for the court to reconsider its ruling on the fee motion. 

Respondent’s ex parte application was heard on March 29, 2019. The court granted the 

application and quashed the writ of execution against Thompson, finding only EHGNA 

was obligated to pay fees under the settlement agreement. 

Because it owed no further amounts to appellant, respondent filed a motion 

to enforce the parties’ settlement, seeking dismissal of the case as against it. In 

opposition, appellant for the first time argued the settlement agreement was 

unenforceable because it had not been signed by an authorized principal of Thompson, 

and because it was void or voidable under the Song-Beverly Act. In reply, Thompson 

pointed out EHGNA had agreed to defend and indemnify it against appellant’s claims, 

and appellant had been paid the primary settlement already. Thompson also attached a 
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declaration from its general manager, Mark Rosenbaum, who had signed the settlement 

agreement, stating he had authority to do so.

The trial court granted the motion and also dismissed the entire action with

prejudice. Carter appeals the dismissal. 

DISCUSSION

Carter contends the trial court erred in two respects. First, he claims the 

settlement agreement was not enforceable under Code of Civil Procedure section 664.6, 

for several reasons we shall take up below. Second, he contends the trial court 

improperly reconsidered and modified its attorney fee ruling by quashing his writ of 

execution against Thompson. Because we conclude Thompson was not responsible to 

pay Carter’s attorney fees, we need not address the second issue.

I. Standard of Review

Our analysis of the first issue employs a mixed standard of review. 

“‘The trial court’s factual findings on a motion to enforce a settlement pursuant to [Code 

of Civil Procedure] section 664.6 “are subject to limited appellate review and will not be 

disturbed if supported by substantial evidence.”’ (Osumi v. Sutton (2007) 151 

Cal.App.4th 1355, 1360.) ‘Consistent with the venerable substantial evidence standard of 

review, and with our policy favoring settlements, we resolve all evidentiary conflicts and 

draw all reasonable inferences to support the trial court’s finding that these parties 

entered into an enforceable settlement agreement and its order enforcing that agreement.’

(Ibid.)” (J.B.B. Investment Partners Ltd. v. Fair (2014) 232 Cal.App.4th 974, 984.) 

However, in determining whether Thompson’s motion satisfied the statute’s 

requirements, our review is de novo since the question is one of law. (Ibid.) 

II. Enforceability of Settlement Agreement

Carter’s attack on the enforceability of the settlement agreement is 

threefold. First, he argues Rosenbaum’s signature did not meet Code of Civil Procedure 

section 664.6’s requirement that a “party” sign the settlement agreement. Second, he 
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claims the agreement itself was uncertain on several material terms. Third, he contends 

enforcement of the agreement, as a practical matter, resulted in an unlawful waiver of his 

statutory right to attorney fees and costs as a prevailing plaintiff under the Song-Beverly 

Act.

A. Signature of a Party

At all times relevant to this case,3 Code of Civil Procedure section 664.6 

stated as follows: “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.” 

The statutory language does not clarify who qualifies as “the parties.”4 However, prior 

to the passage of the recent amendments, the California Supreme Court held a settlement 

agreement must be signed by a litigant, and not a litigant’s attorney, in order to be 

enforceable under the statute. (Levy v. Superior Court (1995) 10 Cal.4th 578, 586 

(Levy).)

Relying on Levy and Gauss v. GAF Corp. (2002) 103 Cal.App.4th 1110 

(Gauss), Carter urges that Rosenbaum’s signature on the settlement agreement was 

insufficient, because he was an agent for Thompson. We believe Carter misapprehends 

the holdings of these cases. 

Gauss purported to foreclose use of the Code of Civil Procedure section 

664.6 procedure to “enforce a settlement agreement signed only by a party’s agent.” 

(Gauss, supra, 103 Cal.App.4th at p. 1121.) But, as we suggested in Provost v. Regents 

of University of California (2011) 201 Cal.App.4th 1289 (Provost), Gauss does not 

3 The Legislature passed amendments to Code of Civil Procedure section 664.6 which became 

effective on January 1, 2021, long after the trial court made its ruling on Thompson’s motion to enforce settlement. 

4 Amongst other things, the recent amendments added language permitting attorneys representing 

parties and agents of insurers to sign as a “party.” (Code Civ. Proc., § 664.6, subd. (b).) 
7

require a corporate officer to sign the settlement agreement. (Provost, supra, 201 

Cal.App.4th at p. 1296.) Rather, the Gauss court recognized the signature of an 

“authorized corporate representative” would be adequate under Code of Civil Procedure 

section 664.6. (Gauss, supra, 103 Cal.App.4th at p. 1120.) The signatory in Gauss was 

not such a representative, but rather a completely separate nonprofit corporation

“established . . . to administer all aspects of . . . litigation of asbestos-related claims 

brought against” it and other similarly situated companies. (Id. at p. 1113.) 

We believe the present circumstance is more in line with Provost, in which 

we held sufficient the signature of an attorney employed in the defendant’s office of the 

general counsel. (Provost, supra, 201 Cal.App.4th at p. 1296.) The appellant in Provost

also relied on Gauss and Levy to argue the in-house attorney’s signature was lacking

because she was not a corporate officer, but rather an employee appointed as party 

representative and authorized to sign the settlement agreement for the entity defendant. 

(Id. at pp. 1293, 1296-1297.) We found the appellant’s litmus test too exacting, noting 

“the well-established rule that a corporation acts through its agents and employees.” (Id.

at p. 1296.) Because the employee signatory was properly authorized by the company to 

undertake settlement, she “was in as good or better a position as anyone to best protect 

[the defendant’s] interests in the settlement,” which was a main concern for the California 

Supreme Court in Levy.

5 (Provost, supra, 201 Cal.App.4th at p. 1297.)

We further theorized in Provost that an authorized corporate representative 

could lie anywhere in the corporate hierarchy between an employee and upper-echelon 

management based on the facts of the case: “Our decision should not be extended to 

apply to any employee of a corporation in any circumstance; obviously some would lack 

5 We observed that Levy required a litigant’s signature because “‘[t]he litigants’ direct participation 

tends to ensure that the settlement is the result of their mature reflection and deliberate assent. This protects the 

parties against hasty and improvident settlement agreements by impressing upon them the seriousness and finality of 

the decision to settle, and minimizes the possibility of conflicting interpretations of the settlement. [Citations.] It 

also protects parties from impairment of their substantial rights without their knowledge and consent. [Citation.]’” 

(Provost, supra, 201 Cal.App.4th at p. 1297, quoting Levy, supra, 10 Cal.4th at p. 585, fn. omitted.)
8

the appropriate qualifications. On the other hand holding that an officer, as opposed to 

another designated and qualified employee, must sign a settlement for it to be enforceable 

under [Code of Civil Procedure] section 664.6 makes no practical sense. One can hardly 

expect an officer of Ford Motor Company or Wal-Mart Stores, Inc., to participate in 

every settlement of every case . . . to be eligible to take advantage of the mechanism 

provided by [Code of Civil Procedure] section 664.6.” (Provost, supra, 201 Cal.App.4th 

at p. 1297.)

Here, Rosenbaum signed the agreement as “GM” of Thompson. He 

submitted a declaration stating he was the General Manager of Thompson and had 

express authority to sign the agreement on Thompson’s behalf. With this uncontroverted 

evidence, the trial court reasonably concluded Rosenbaum was an appropriately 

“designated and qualified employee[.]” (Provost, supra, 201 Cal.App.4th at p. 1297.)

B. Uncertainty or Missing Material Terms

Carter next argues there was no enforceable contract because the settlement 

agreement was uncertain as to the amount of attorney fees to be paid; and because there 

was no meeting of the minds on who was liable to pay them. We start with the former 

issue. 

1. Uncertainty

While the amount of attorney fees was not explicitly fixed in the settlement 

agreement, the document clearly contemplated court involvement in “facilitat[ing]”

payment of the fees by way of a motion for prevailing party attorney fees and costs. As a 

practical matter, then, there was no need to fix the amount of fees in the agreement itself

in order for the parties to be assured Carter would be awarded a just amount. Whether he 

proceeded through trial and obtained attorney fees pursuant to posttrial motion, or simply 

filed a motion by the terms of the settlement agreement, the trial court’s judgment as to 

the appropriate amount of fees was going to ultimately be dispositive. As such, the 

amount of fees was not essential to form the contract.
9

Carter relies on Weddington Productions, Inc. v. Flick (1998) 60 

Cal.App.4th 793 (Weddington) to argue a settlement agreement may not be enforced 

under Code of Civil Procedure section 664.6 if its terms are uncertain. But Weddington

was a very different case. There was no fully integrated, executed settlement agreement 

between the parties as there was here. Rather, the parties had reached the point of a 

“Deal Point Memorandum” which the mediator in an alternative dispute resolution forum 

forcibly imposed. (Id. at p. 799.) The court in Weddington observed that a contract was 

certain enough for enforcement if it provided “a basis for determining what obligations 

the parties have agreed to” so that a breach of those obligations could be ascertained. (Id.

at p. 811.) And it would be uncertain if “‘an essential element is reserved for the future 

agreement of both parties’ . . . . [Citation.]” (Id. at p. 812.) 

Here, there was a basis for determining if defendants had breached the 

settlement agreement – one could simply look at the trial court’s ruling on the motion for 

attorney fees and see the amount owed. The amount was not reserved for the parties’ 

future agreement – it was reserved for the court’s resolution. Thus, we hold the lack of 

an explicit amount of attorney fees did not render the agreement uncertain.

2. Party Responsible for Fees

Carter fares no better on the second issue. He says his understanding was 

always for both EHGNA and Thompson to be liable. For this, he points to the preamble 

of the agreement, which defines EHGNA and Thompson collectively as “defendants,” 

and goes on to state: “Hereinafter, plaintiff and defendants may be referred to collectively 

as the ‘parties’ or individually as a ‘party.’” He further claims defense counsel assured 

him either defendant would be liable for the fees, even though EHGNA had agreed to 

indemnify Thompson in the litigation. He points to an email from the defendants’ former 

counsel stating both defendants had “bought their peace” through the litigation. 

These arguments are unavailing because the attorney fee provision of the

agreement was crystal clear. It required “defendant [EHGNA] . . . to pay plaintiff and his 
10

counsel” their fees. It specifically identified EHGNA as the defendant responsible for 

them. Thompson was not among the parties designated to pay fees, nor was the 

collective term “defendants” from the preamble used. Where the contractual language is 

clear and explicit and does not involve an absurdity, it governs interpretation of the 

contract. (See Civ. Code, § 1638.) The contract clearly required EHGNA, not 

Thompson, to pay Carter’s attorney fees.

C. Waiver of Rights under the Song-Beverly Act

Carter’s third argument against enforceability is based on the following 

provision in the Song-Beverly Act: “Any waiver by the buyer of consumer goods of the 

provisions of this chapter, except as expressly provided in this chapter, shall be deemed 

contrary to public policy and shall be unenforceable and void.” (Civ. Code, § 1790.1.) 

The law contains an attorney fee provision favoring prevailing consumers: “If the buyer 

prevails in an action under this section, the buyer shall be allowed by the court to recover 

as part of the judgment a sum equal to the aggregate amount of costs and expenses, 

including attorney’s fees based on actual time expended, determined by the court to have 

been reasonably incurred by the buyer in connection with the commencement and 

prosecution of such action.” (Civ. Code, § 1794, subd. (d).) Because prevailing buyers 

are entitled to reasonable attorney fees, Carter believes it would be unlawful to allow 

Thompson to escape liability for fees despite the settlement agreement’s language.

Again, we must disagree. Civil Code section 1794, subdivision (d) only 

requires the court to “allow” him to recover attorney fees as part of the judgment. It does 

not require all defendants to be liable for such fees. And it does not preclude one 

defendant from indemnifying another for payment of them. Here, the settlement 

agreement required EHGNA to pay fees and the trial court entered an attorney fee award 

against EHGNA. Carter was never forced to waive his right to fees under the SongBeverly Act.
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Carter claims EHGNA’s receivership necessarily means he will not recover 

his attorney fees. First and foremost, he has not tried. When the trial court suggested he 

could file a claim as a creditor against EHGNA in the Canadian proceedings, his counsel 

flippantly dismissed the notion: “We don’t have to . . . . We are right here in California 

with rights in California . . . . [¶] We don’t know what is going on in Canada.” We 

suggest counsel find out. In any case, EHGNA’s bankruptcy does not allow us or the 

trial court to modify the parties’ agreement to make Thompson responsible for attorney 

fees in EHGNA’s stead.6

Carter also argues upholding Thompson’s dismissal would allow it to 

escape liability without having paid any consideration, because Thompson has paid 

nothing out of its own pocket. But were dismissals contingent on each defendant paying 

sums out of pocket, the concept of indemnity would be effectively eviscerated. From a 

settling plaintiff’s point of view, it does not matter who pays, so long as the plaintiff is 

paid. In this case, Carter agreed the defendants (plural) would be responsible to pay the 

settlement check and EHGNA would be responsible to pay the attorney fees. If he had 

not received the settlement check, he could have pursued both EHGNA and Thompson 

for same. But he received it. Thompson’s role in the settlement was complete at that 

point.

On one point, however, Carter is correct: the dismissal of the entire case at 

this juncture cuts against the Song-Beverly Act’s fee statute. The trial court must “allow” 

the prevailing buyer to recover his attorney fees. The settlement agreement stated Carter 

would file a request for dismissal with prejudice in exchange for both the check and 

“[p]ayment of attorneys’ fees and costs as determined by the Court[.]” Thus, Carter is 

6 Because we hold Thompson was not liable for the attorney fees, it follows that Carter was not 

entitled to a writ of execution to recover those fees from Thompson, thus rendering Carter’s second argument on 

appeal moot.
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not obligated to dismiss the case until the attorney fees are paid by EHGNA. They have 

not been paid. 

The trial court’s rationale in dismissing the entire case was based on 

California Rules of Court, rule 3.1385, which requires it to “dismiss the entire case 45 

days after it receives notice of settlement unless good cause is shown why the case should 

not be dismissed.” (Id., subd. (b).) Granted, Carter had filed his notice of settlement on 

March 12, 2018. He had not filed a request to obtain more time to complete the 

settlement, as he could have done under subdivision (e) of the rule. The trial court was 

understandably perplexed as to why the case remained in its inventory well into 2019. 

But by the time it heard Thompson’s motion to quash the writ of execution, 

the trial court had become aware the attorney fee piece of the settlement had not been 

consummated. Nor had Carter’s attorney fee award against EHGNA been reduced to a 

judgment which he could then take to the Canadian court to file a creditor’s claim. 

Indeed, in its order granting the motion to quash writ of execution, the trial court opined 

that the attorney fee ruling in Carter’s favor was not an enforceable money judgment. 

Thus, it had been shown good cause why it should not dismiss the entire case yet. Such a 

dismissal would leave Carter holding the bag with no recourse against EHGNA for 

payment of his prevailing buyer fees. This result violated the Song-Beverly Act fee 

statute.

DISPOSITION

The court’s dismissal of Thompson is affirmed. Its dismissal of the entire 

action as it pertains to EHGNA is reversed and remanded with instructions to enter 
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judgment against EHGNA for $112,698, representing attorney fees owed to appellant. 

Thompson is to recover its costs on appeal.

BEDSWORTH, J.

WE CONCUR:

O’LEARY, P. J.

GOETHALS, J.