Filed 6/27/23

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

DEREK RHEINHART,

Plaintiff and Appellant,

v.

NISSAN NORTH AMERICA, INC.,

et al.,

Defendants and Respondents.

 D079940

 (Super. Ct. No. 

 37-2020-00015737-CU-CO-CTL)

APPEAL from a judgment of the Superior Court of San Diego County, 

Timothy B. Taylor, Judge. Reversed.

Law Offices of Robert B. Mobasseri, Robert B. Mobasseri and David 

Alan Cooper for Plaintiff and Appellant. 

Wilson Turner Kosmo, Robert Allen Shields and Hang Alexandra Do

for Defendants and Respondents.

Civil Code1 section 1790.1 of the Song-Beverly Consumer Warranty Act 

(Song-Beverly Act or at times the Act; § 1790 et seq.) provides that “[a]ny 

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 

1 Undesignated statutory references are to the Civil Code. 
2

public policy and shall be unenforceable and void.” (§ 1790.1.) This appeal 

involves the effect of this antiwaiver provision on a release executed as part 

of a pre-litigation settlement between plaintiff and appellant Derek 

Rheinhart and defendants and respondents Nissan North America, Inc. and 

Mossy Nissan, Inc. (collectively Nissan)2 over issues that had arisen with 

Rheinhart’s leased Nissan vehicle. After Rheinhart entered into the 

settlement agreement and release, he filed a lawsuit alleging violations of the 

Act and seeking repurchase of his vehicle as well as other statutory remedies. 

Nissan moved for summary judgment on grounds the settlement agreement 

and release, which Rheinhart admitted he read and had an opportunity to 

review before signing, extinguished his claims. The trial court granted the 

motion, finding section 1790.1 applies to waivers of consumer warranties in 

connection with a product purchase, not to releases negotiated to end 

disputes about those warranties, and thus rejected Rheinhart’s argument

that the settlement was unenforceable under section 1790.1.

Rheinhart contends the court erred. He argues the settlement 

agreement and release violates section 1790.1 and is unenforceable as a 

matter of law. Rheinhart maintains the court’s ruling is contrary to the 

remedial purpose of the Act and bad public policy in that it defeats the 

statute’s purpose to remove defective vehicles from the road and marketplace. 

Rheinhart further contends the release is unconscionable given he was not 

represented by counsel. 

Though we reject the trial court’s reading of section 1790.1, we do not 

interpret the Act’s antiwaiver provision to categorically prohibit all

settlement agreements. However, we conclude under the circumstances of 

2 Rheinhart had also sued the lender, Nissan Motor Acceptance 

Corporation, but he does not challenge the judgment as to that defendant. 
3

this case the settlement agreement and release contravenes Rheinhart’s 

substantive rights under the Act and is void and unenforceable as against 

public policy. We reverse the summary judgment. 

FACTUAL AND PROCEDURAL BACKGROUND

The material facts are undisputed. In June 2019, Rheinhart leased a 

new Nissan vehicle3 from Mossy Nissan, paying $6,000 at signing and 

agreeing to monthly payments of $214.36. Twice in July and once in August 

2019 (when the vehicle had only 1,603 miles), he brought the vehicle back to 

Mossy Nissan, complaining about several issues, including on all three 

occasions malfunctioning of the rear-view camera screen. Between his first 

and second visits in July 2019, Rheinhart asked Nissan to repurchase the 

vehicle. Nissan declined to do so. Before Rheinhart’s third visit in August 

2019, Nissan offered to pay Rheinhart $2,000, then $2,500 as a compromise. 

When on August 20, 2019, Rheinhart counteroffered with a demand for 

$3,548.40, Nissan accepted it. Rheinhart retained the vehicle. 

Nissan thereafter sent Rheinhart a written settlement agreement and 

release (the Release), which Rheinhart reviewed, asking questions about 

some of its language. In response, Nissan referred him to the Release’s 

language that he “agrees he was given the opportunity to review this Release 

with a lawyer of his choice and acting on his behalf, and that he has read this 

Settlement Agreement and Release and fully understand [sic] it.” Rheinhart, 

who elected not to consult counsel, signed the Release on October 16, 2019. 

That same month, he received the settlement check from Nissan. 

3 Nissan’s separate statement on this basic point does not state the 

vehicle is new. However, to support this fact, Nissan referred to Rheinhart’s 

complaint, in which Rheinhart alleged the vehicle was new.
4

In part, the Release states that in consideration for Nissan’s cash 

payment, Rheinhart “hereby release[s] and forever discharge[s] Nissan North 

America, Inc., and all its associated or affiliated companies . . . from any and 

all claims, lawsuits, liens, debts, dues, damages, judgments. executions and 

demands of every kind, whether currently known or unknown, and whether 

arising in the past or present . . . which relate to [Rheinhart’s vehicle].” It 

further provides that Rheinhart “does not waive any unrelated personal 

injury or breach of warranty claims or causes of action, which may arise after

the execution of this Release.” In the Release, Rheinhart agreed that in the 

event Nissan later repurchased his vehicle from him, the repurchase amount 

would be offset or reduced by the amount Nissan paid in consideration for the 

Release. The Release states that Nissan North America, Inc. would continue 

to honor the terms of the car’s new vehicle limited warranty. 

In May 2020, Rheinhart sued Nissan for violations of the Act. He 

alleged the vehicle he leased suffered from repeated malfunctions of its 

dashboard media and safety camera system that had not been repaired, and 

Nissan “failed in [its] affirmative obligation to repurchase or replace the 

Vehicle.”4 Among other relief, he sought rescission and restitution of all 

payments for the vehicle, reimbursement, imposition of civil penalties,

attorney fees, and other litigation costs under sections 1793.2, subdivision (d) 

and 1794. 

4 As discussed below, this affirmative obligation (Kirzhner v. MercedesBenz USA, LLC (2020) 9 Cal.5th 966, 971) of the Song-Beverly Act requires a 

manufacturer to “ ‘promptly’ repurchase or replace a defective vehicle” (ibid.)

if, after a reasonable number of attempts, the manufacturer or its 

representative is unable to repair the vehicle to conform to the applicable 

express warranty. (§ 1793.2, subd. (d)(2).) 
5

Nissan moved for summary judgment or alternatively summary 

adjudication of issues. In part, it argued all of the vehicle’s nonconformities 

arising before October 16, 2019, were barred by the Release, which no facts 

showed was obtained by fraud, deception, misrepresentation, duress or undue 

influence. Nissan presented evidence that Rheinhart admitted he had read 

the Release and understood all of its provisions, that he was given an 

opportunity to review it with an attorney of his choice but did not, and that 

by signing the Release, he agreed to be bound by it.5 

In opposition, Rheinhart argued the Release was void as a matter of 

law under section 1790.1, which deems contrary to public policy,

unenforceable and void “[a]ny waiver by the buyer of consumer goods of the 

provisions of this chapter, except as expressly provided in this chapter . . . .”

He cited to federal authorities involving manufacturers’ attempted 

disclaimers of Song-Beverly Act rights (Gusse v. Damon Corporation

(C.D.Cal. 2007) 470 F.Supp.2d 1110; Clark v. LG Electronics U.S.A., Inc.

(S.D.Cal., June 7, 2013, No. 13-cv-485) 2013 WL 2476145, as well as cases in 

the Proposition 65 context (Consumer Defense Group v. Rental Housing 

Industry Members (2006) 137 Cal.App.4th 1185; Consumer Advocacy Group, 

5 Nissan also argued there was no evidence that Rheinhart sought to 

have post-October 16, 2019 nonconformities repaired more than once. It 

asked the court to “exclude as issues of fact any concerns (in addition to the 

pre-October 16, 2019 issues which are barred) that were presented to the 

dealer for repair on just one occasion.” Rheinhart responded that he did not 

rely on any presentations after October 16, 2019, as part of his express 

warranty claim. His evidence showed that in 2019, before entering into the 

settlement agreement, he brought his vehicle in at least three times for the 

same complaint (regarding the asserted backup-camera malfunction), among 

others. In reply, Nissan did not dispute this evidence; it reiterated its 

position that any pre-October 16, 2019 alleged defects were barred as a 

matter of law by the Release. 
6

Inc. v. Kintetsu Enterprises of America (2006) 141 Cal.App.4th 46) in which 

courts reversed settlements or consent judgments reached by the parties due 

to lack of adequate corrective action. Rheinhart maintained Nissan could not 

attempt a similar strategy by settling the case and thereby avoiding its 

affirmative statutory duty under section 1793.2 to offer him a repurchase or 

replacement of his vehicle. According to Rheinhart, Nissan’s failure to abide 

by its statutory obligations endangered vehicle owners and the public by 

allowing a malfunctioning and unsafe vehicle to remain on the road. In 

reply, Nissan objected to some of Rheinhart’s evidence.

Overruling Nissan’s objections, the trial court granted Nissan’s motion. 

Observing there was no California authority applying the Act’s antiwaiver 

provision, the court ruled “a reasonable and commonsense interpretation of 

section 1790.1 is that it[ ] applies to waivers of consumer warranties sought 

on the front end, in connection with the purchase of a product—not to

releases negotiated to end disputes about those warranties. Indeed, if a 

lemon law plaintiff is prohibited from waiving the provisions of the SongBeverly Act in order to settle, no settlement would ever be possible. That 

would contradict the well-established public policy in California that favors 

and encourages settlement of litigation. [Citations.] [¶] Accordingly, the 

Release bars plaintiff’s express warranty claim—which is based on the 

presentations made in June, July, and August 2019—as a matter of law.” 

Rheinhart filed this appeal from the ensuing judgment.

DISCUSSION

I. Standard of Review

The applicable review standards are settled: A motion for summary 

judgment “shall be granted if all the papers submitted show that there is no 

triable issue as to any material fact and that the moving party is entitled to a 
7

judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) “[F]rom 

commencement to conclusion, the party moving for summary judgment bears 

the burden of persuasion that there is no triable issue of material fact and 

that he is entitled to judgment as a matter of law. . . . There is a triable 

issue of material fact if, and only if, the evidence would allow a reasonable 

trier of the fact to find the underlying fact in favor of the party opposing the 

motion in accordance with the applicable standard of proof.” (Aguilar v. 

Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) The moving party bears 

the initial burden of production to show the nonexistence of a triable factual 

issue, and if that party does so, the burden switches to the opposing party to 

make a prima facie showing that such an issue exists. (Ibid.) 

“[T]he placement and quantum of the burden of proof at trial [are] 

crucial for purposes of summary judgment.” (Aguilar v. Atlantic Richfield 

Co., supra, 25 Cal.4th at p. 851.) How the parties moving for and opposing 

summary judgment may each carry their burden of persuasion and/or 

production depends on “which [party] would bear what burden of proof at 

trial.” (Ibid.; Pollock v. Tri-Modal Distribution Services, Inc. (2021) 11 

Cal.5th 918, 946.) Thus, a defendant moving for summary judgment on an

affirmative defense has an initial burden of producing evidence to establish a 

prima facie showing of the nonexistence of any triable issue of material fact 

as to each element of that defense. (Aguilar, at p. 850; Code Civ. Proc., 

§ 437c, subds. (o)(2), (p)(2); Dagher v. Ford Motor Co. (2015) 238 Cal.App.4th 

905, 914.) If the defendant makes this showing, the burden shifts to the 

plaintiff to show with admissible evidence that a triable issue of material fact 

exists. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, at p. 850; Dagher, at pp. 

914-915.) 
8

We independently review the record and the trial court’s 

determination, applying the same legal standard as the trial court to 

determine if there are genuine issues of material fact. (Kahn v. East Side 

Union High School Dist. (2003) 31 Cal.4th 990, 1003; Quidel Corporation v. 

Superior Court of San Diego County (2020) 57 Cal.App.5th 155, 164.) We are 

not bound by the trial court’s stated reasoning or rationales. (County of San 

Diego v. Superior Court (2015) 242 Cal.App.4th 460, 467.) “ ‘[W]e view the 

evidence in a light favorable to the losing party . . . , liberally construing [the] 

evidentiary submission while strictly scrutinizing the moving party’s own 

showing . . . .’ ” (Quidel, at p 164.) “[A]ny doubts as to the propriety of 

granting a summary judgment motion should be resolved in favor of the party 

opposing the motion.” (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 535; 

Quidel, at p. 164.)

II. The Act, Manufacturer Obligations and Buyer Remedies 

The Act “was enacted to address the difficulties faced by consumers in 

enforcing express warranties. Consumers frequently were frustrated by the 

inconvenience of having to return goods to the manufacturer for repairs and 

by repeated unsuccessful attempts to remedy the problem. [Citation.] The 

Act protects purchasers of consumer goods by requiring specified implied 

warranties, placing strict limitations on how and when a manufacturer may 

disclaim those implied warranties, and providing mechanisms to ensure that 

manufacturers live up to the terms of any express warranty.” (Cummins, Inc. 

v. Superior Court (2005) 36 Cal.4th 478, 484.) For example, it requires 

manufacturers to make service and repair facilities available to carry out 

terms of express warranties, and time frames within which repairs under an 

express warranty must be provided. (Id. at pp. 484-485.)
9

“In those instances when the goods cannot be repaired to conform to an 

express warranty after a ‘reasonable number of attempts,’ the Act specifies a 

remedy, in what has been referred to as the ‘refund-or-replace’ provisions.”

(Cummins Inc. v. Superior Court, supra, 36 Cal.4th at p. 485, citing in part

§ 1793.2., subd. (d)(1) & (2).) In the case of new motor vehicles under 

warranty with defects, “[t]he Act allows buyer or lessees . . . of [such vehicles] 

the manufacturer is unable to repair after a reasonable number of attempts 

to elect one of two remedies: Consumers may choose either a replacement 

vehicle or restitution ‘in an amount equal to the actual price paid or payable 

by the buyer.’ ” (Kirzhner v. Mercedes-Benz USA, LLC, supra, 9 Cal.5th at 

p. 969.)6 

6 “ ‘A defect or nonconformity for purposes of Song-Beverly is defined as 

“a nonconformity which substantially impairs the use, value, or safety of the 

new motor vehicle to the buyer or lessee.” ’ ” (Anderson v. Ford Motor Co.

(2022) 74 Cal.App.5th 946, 959, fn. 3; see § 1793.22, subd. (e)(1).) “The 

reasonableness of the number of repair attempts is a question of fact to be 

determined in light of the circumstances, but at a minimum there must be 

more than one opportunity to fix the nonconformity. . . . Each occasion that 

an opportunity for repairs is provided counts as an attempt, even if no repairs 

are actually undertaken.” (Robertson v. Fleetwood Travel Trailers of 

California, Inc. (2006) 144 Cal.App.4th 785, 799.) Section 1793.22, 

subdivision (b) gives rise to a rebuttable presumption as to the reasonable 

number of repair attempts under various circumstances including, if, in the 

first 18 months or 18,000 miles, the same defect/nonconformity “results in a 

condition that is likely to cause death or serious bodily injury if the vehicle is 

driven and the nonconformity has been subject to repair two or more times by 

the manufacturer . . . .” (§ 1793.22, subd. (b)(1).) In situations not involving 

a condition causing death or serious bodily injury, the presumption will arise 

if “[t]he same nonconformity has been subject to repair four or more times by 

the manufacturer . . . .” (§ 1793.22, subd. (b)(2).) This presumption affects 

the burden of proof. (§ 1793.22, subd. (b)(2); Jiagbogu v. Mercedes-Benz USA

(2004) 118 Cal.App.4th 1235, 1244-1245.) In its reply brief, Nissan did not 

dispute Rheinhart’s characterization of the backup camera malfunctioning as 

a “serious safety issue.” 
10

Specifically, “[s]ection 1793.2, subdivision (d)(2) sets forth the 

manufacturer’s affirmative obligation to ‘promptly’ repurchase or replace a 

defective vehicle it is unable to repair . . . .” (Kirzhner v. Mercedes-Benz USA, 

LLC, supra, 9 Cal.5th at p. 971.) Under that section, “if a manufacturer is 

‘unable to service or repair a new motor vehicle . . . to conform to the 

applicable express warranties after a reasonable number of attempts, the 

manufacturer shall either promptly replace the new motor vehicle in 

accordance with subparagraph (A) or promptly make restitution to the buyer 

in accordance with subparagraph (B).’ In turn, the restitution remedy in 

section 1793.2, subdivision (d)(2)(B) states that ‘the manufacturer shall make 

restitution in an amount equal to the actual price paid or payable by the 

buyer, . . . including any collateral charges such as sales or use tax, license 

fees, registration fees, and other official fees, plus any incidental damages to 

which the buyer is entitled under [s]ection 1794, including, but not limited to, 

reasonable repair, towing, and rental car costs actually incurred by the 

buyer.’ Finally, section 1794 is the Act’s general damages provision,

providing that a buyer may seek damages for a manufacturer’s ‘failure to 

comply with any obligation under this chapter or under an implied or express 

warranty,’ the measure of which includes the restitution and replacement 

remedies as well as the remedies allowed by the California Uniform 

Commercial Code, including incidental damages.” (Kirzhner v. MercedesBenz USA, LLC, supra, 9 Cal.5th at pp. 971-972.) The buyer is “free to elect 

restitution in lieu of replacement, and in no event shall the buyer be required 
11

by the manufacturer to accept a replacement vehicle.” (§ 1793.2, subd. 

(d)(2).)7 

Once the duty to offer replacement or restitution arises, a

manufacturer must “promptly” comply regardless of whether a buyer 

requests those remedies. (See Krotin v. Porsche Cars North America, Inc. 

(1995) 38 Cal.App.4th 294, 300, 302-303 [Song-Beverly Act “does not require 

consumers to take any affirmative steps to secure relief for the failure of a 

manufacturer to service or repair a vehicle to conform to applicable 

warranties—other than . . . permitting the manufacturer a reasonable 

opportunity to repair the vehicle”; “[T]he consumer’s request [for replacement 

or restitution] is not mandated by any provision in the Act”].) Indeed, once 

the manufacturer’s duty to promptly provide a replacement vehicle or 

restitution arises after a reasonable number of repair attempts, “the buyer no 

longer has the same ownership interest in the vehicle since the manufacturer 

can (and should) replace or repurchase it at any moment.” (Kirzhner v. 

Mercedes-Benz USA, LLC, supra, 9 Cal.5th at p. 980.) A buyer’s unequivocal 

request for a “vehicle repurchase” is sufficient to trigger a manufacturer’s 

duty to promptly make restitution. (Lukather v. General Motors, LLC (2010) 

181 Cal.App.4th 1041, 1050.)

“[A] manufacturer’s willful failure to promptly provide restitution or a 

replacement vehicle may result in an award of civil penalties pursuant to 

7 A buyer who “prevails in an action” under the Act may recover “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.” (§ 1794, 

subd. (d).) Permitting a prevailing buyer to recover attorney fees is designed 

to “ ‘provide[ ] injured consumers strong encouragement to seek legal redress 

in a situation in which a lawsuit might not otherwise have been economically 

feasible.’ ” (Wohlgemuth v. Caterpillar (2012) 207 Cal.App.4th 1252, 1262.)
12

section 1794. [Citations.] But section 1794 also allows buyers to recover 

damages for nonwillful violations of the Act. [Citation.] Subdivision (a) of 

section 1794 allows a buyer ‘who is damaged by a failure to comply with any

obligation under [the Act] or under an implied or express warranty or service 

contract’ to ‘bring an action for the recovery of damages.’ ” (Kirzhner v. 

Mercedes-Benz USA, LLC, supra, 9 Cal.5th at p. 984.)

The Act is “ ‘ “manifestly a remedial measure, intended for the 

protection of the consumer [and] should be given a construction calculated to 

bring its benefits into action.” ’ ” (Kirzhner v. Mercedes-Benz USA, LLC, 

supra, 9 Cal.5th at p. 972.) 

III. Public Policies Concerning Settlement Agreements

California has a strong public policy favoring the voluntary settlement 

of disputes. (Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 793; 

Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 260 [“the 

law favors settlements”]; Kaufman v. Goldman (2011) 195 Cal.App.4th 734, 

745 (Kaufman); Osumi v. Sutton (2007) 151 Cal.App.4th 1355, 1359 [“[i]t is, 

of course, the strong public policy of this state to encourage the voluntary 

settlement of litigation”].) Settlement agreements “are highly favored as 

productive of peace and good will in the community, and reducing the 

expense and persistency of litigation.” (McClure v. McClure (1893) 100 Cal. 

339, 343.)

Notwithstanding that policy, courts can declare settlement agreements 

and releases, which the law treats like any other contracts (Timney v. Lin 

(2003) 106 Cal.App.4th 1121, 1127), void and unenforceable on the basis of 

other public policies, illegality or unfairness. (City of Santa Barbara v. 

Superior Court (2007) 41 Cal.4th 747, 777 & fn. 53 [agreement purporting to 

release liability for future gross negligence against disabled child violates 
13

public policy and is unenforceable]; California State Auto. Assn. Inter-Ins. 

Bureau v. Superior Court (1990) 50 Cal.3d 658, 664 [court may reject a 

stipulated settlement that is contrary to public policy or that incorporates an

erroneous rule of law]; Kaufman, supra, 195 Cal.App.4th at p. 746; Graylee v. 

Castro (2020) 52 Cal.App.5th 1107, 1114-1115 [courts cannot “ ‘endorse or 

enforce a provision in a settlement agreement or stipulation which is illegal, 

contrary to public policy, or unjust’ ”], quoting Timney, at p. 1127; see 

generally Vitatech Internat., Inc. v. Sporn (2017) 16 Cal.App.5th 796, 807 

[“ ‘[A] court cannot validly enter a judgment or order which is void even if the 

parties agree to it’ ”]; § 3513 [“[A] law established for a public reason cannot 

be contravened by a private agreement”]; Azteca Construction, Inc. v. ADR 

Consulting, Inc. (2004) 121 Cal.App.4th 1156, 1166 [“[A] party may waive a 

statutory right where its ‘ “public benefit . . . is merely incidental to [its] 

primary purpose,” ’ but a waiver is unenforceable where it would ‘ “seriously 

compromise any public purpose that [the statute was] intended to serve” ’ ”].) 

These principles apply to other types of favored contracts or contractual 

provisions. (See Verdugo v. Alliantgroup, L.P. (2015) 237 Cal.App.4th 141, 

146-147 (Verdugo) [California courts will not give effect to a contractual 

forum selection clause, normally favored under California law, “ ‘if to do so 

would substantially diminish the rights of California residents in a way that 

violates our state’s public policy’ ”; citing cases]; Wimsatt v. Beverly Hills 

Weight etc. Internat., Inc. (1995) 32 Cal.App.4th 1511, 1522 (Wimsatt); Hall v. 

Superior Court (1983) 150 Cal.App.3d 411, 417-418 [choice of forum clause in 

private securities agreement unenforceable as violating public policy].) “ ‘ “A 

promise or other term of an agreement is unenforceable on grounds of public 

policy if legislation provides that it is unenforceable or the interest in its 

enforcement is clearly outweighed in the circumstances by a public policy 
14

against the enforcement of such terms.” ’ ” (Dunkin v. Boskey (2000) 82 

Cal.App.4th 171, 183.) 

To invalidate a contract on this ground, the public policy violation must 

be “ ‘ “entirely plain . . . .” ’ ” (City of Santa Barbara v. Superior Court, supra,

41 Cal.4th at p. 777, fn. 53.) “ ‘ “ ‘The power of the courts to declare a 

contract void for being in contravention of sound public policy . . . should be 

exercised only in cases free from doubt’ ” ’ ” (ibid.; Kaufman, supra, 195 

Cal.App.4th at p. 746) and where the contract is “ ‘clearly injurious to the 

interests of society.’ ” (City of Santa Barbara, at p. 777, fn. 53.)

The court in Timney v. Lin, supra, 106 Cal.App.4th 1121 invalidated an 

otherwise illegal forfeiture clause despite the parties inclusion of it in a 

settlement agreement. (Id. at p. 1123 [“we hold that an illegal forfeiture 

provision is unenforceable, even if the illegal provision is included in a 

settlement agreement”].) The lower court had enforced the settlement 

agreement under Code of Civil Procedure section 664.6, but Timney, pointing

to case law involving stipulated judgments, held that statute “does not allow 

a court to endorse or enforce a provision in a settlement agreement or 

stipulation which is illegal, contrary to public policy, or unjust.” (Id. at p. 

1127, citing California State Auto. Assn. Inter–Ins. Bureau v. Superior Court, 

supra, 50 Cal.3d at p. 664 [involving a stipulated judgment; “ ‘the court 

cannot surrender its duty to see that the judgment to be entered is a just 

one’ ”] & Plaza Hollister Ltd. Partnership v. County of San Benito (1999) 72 

Cal.App.4th 1, 12-13 [“court cannot validly enter a judgment or order which 

is void even if the parties agree to it”].) 

Timney held “even though there is a strong public policy favoring the 

settlement of litigation, this policy does not excuse a contractual clause that 

is otherwise illegal or unjust.” (Timney v. Lin, supra, 106 Cal.App.4th at p. 
15

1127.) “[O]ur Supreme Court and other California courts have rejected the 

notion that a settlement judge may properly act to ‘approve’ an illegal 

contract and thereby shield it from invalidation. [Citations.] We have found 

no case, and the parties have cited none, holding an illegal forfeiture 

provision may be enforced by the courts, even as part of a settlement 

agreement. Applying legal principles pertinent to all contracts, the deposit 

forfeiture provision in issue is invalid as constituting a forbidden forfeiture.” 

(Id. at p. 1129.)

IV. The Effect of Statutory Antiwaiver Provisions

“A public policy that cannot be waived qualifies as fundamental.” (G 

Companies Management, LLC v. LREP Arizona, LLC (2023) 88 Cal.App.5th 

342, 353.) Statutory antiwaiver provisions intended to promote consumer 

and other public protections, like section 1790.1 here, reflect competing

important public policies that can impact the enforceability of a contractual 

provision. (See Crosno Construction, Inc. v. Travelers Casualty and Surety 

Company of America (2020) 47 Cal.App.5th 940, 951 [section 8122 antiwaiver 

provision in statutory scheme to resolve payment disputes in construction 

contracts]; Verdugo, supra, 237 Cal.App.4th 141 [Labor Code section 219, 

subdivision (a) antiwaiver provision covering rights and remedies relating to 

employee compensation, providing “no provision of this article can in any way 

be contravened or set aside by a private agreement, whether written, oral, or 

implied”]; 1-800-Got Junk? LLC v. Superior Court (2010) 189 Cal.App.4th 

500, 517-518 [California Franchise Relations Act (CFRA) section 20010, 

providing: “Any condition, stipulation or provision purporting to bind any 

person to waive compliance with any provision of this law is contrary to 

public policy and void”; but holding antiwaiver statute did not invalidate 

parties’ choice of Washington law provision because Washington afforded
16

franchisee “far greater protection from summary termination of a franchise” 

than California law, and was not a waiver of compliance with the CFRA]; 

America Online, Inc. v. Superior Court (2001) 90 Cal.App.4th 1, 11

[Consumer Legal Remedies Act (CLRA) antiwaiver provision providing that 

“[a]ny waiver by a consumer of the provisions of this title is contrary to public 

policy and shall be unenforceable and void”]; Wimsatt, supra, 32 Cal.App.4th 

at pp. 1513, 1520-1522 [antiwaiver provision in California Franchise

Investment Law (Corp. Code, § 31512) providing: “Any condition, stipulation 

or provision purporting to bind any person acquiring any franchise to waive 

compliance with any provision of this law or any rule or order hereunder is 

void”]; Hall v. Superior Court, supra, 150 Cal.App.3d at pp. 417-418

[antiwaiver provision in Corporate Securities Law voiding “ ‘[a]ny condition, 

stipulation or provision purporting to bind any person acquiring any security 

to waive compliance with any provision of this law’ ”];8 Kaufman, supra, 195 

8 Our sister division in Hall v. Superior Court relied on Wilko v. Swan 

(1953) 346 U.S. 427 to invalidate on public policy grounds the choice of forum 

clause in a private securities agreement based on this antiwaiver statute. 

(Hall v. Superior Court, supra, 150 Cal.App.3d at p. 418.) The United States 

Supreme Court overruled Wilko in Rodriguez de Quijas v. Shearson/
17

Cal.App.4th at p. 744 [antiwaiver provision in city rent stabilization 

ordinance, providing: “Any waiver by a tenant of rights under this Chapter 

shall be void as contrary to public policy”, italics omitted]; accord, G 

Companies Management, LLC v. LREP Arizona, LLC, supra, 88 Cal.App.5th 

at p. 352 [usury law provision (§ 1916-2) specifying that if an agreement or 

contract contains a provision requiring interest in excess of the allowable 

rate, it “ ‘shall be null and void as to any agreement or stipulation therein 

contained to pay interest . . . .’ ”].) 

Such antiwaiver provisions in consumer protection laws are “[o]ne of 

the most important protections California offers its . . . citizens . . . .” 

(Wimsatt, supra, 32 Cal.App.4th at p. 1520; see also Verdugo, supra, 237 

American Exp., Inc. (1989) 490 U.S. 477, finding Wilko to be “pervaded by . . . 

‘the old judicial hostility to arbitration . . . .’ ” (Rodriguez, at p. 480.) In 

Rodriguez, the court declined to interpret an antiwaiver provision in section 

14 of the Securities Act of 1933 (15 U.S.C. § 77n, prohibiting a binding 

stipulation “to waive compliance with any provision” of the Act; Rodriguez, at 

p. 477) to prohibit agreements to arbitrate future disputes relating to the 

purchase of securities. The court observed that “ ‘[b]y agreeing to arbitrate a 

statutory claim, a party does not forgo the substantive rights afforded by the 

statute; it only submits to their resolution in an arbitral, rather than a 

judicial, forum.’ ” (Id. at p. 481.) Further, Rodriguez stated the right to 

select the judicial forum and wider choice of courts were “not such essential 

features” of the Securities Act that the antiwaiver clause was properly 

construed to bar any waiver of those provisions. (Id. at p. 481.) “Nor are they 

so critical that they cannot be waived under the rationale that the Securities 

Act was intended to place buyers of securities on an equal footing with 

sellers.” (Ibid.) It found “no sound basis for construing the prohibition in 

[section] 14 . . . to apply to these procedural provisions.” (Id. at p. 482.) The 

court in Rodriguez, however, left open a party’s ability to demonstrate that 

the arbitration agreement resulted from “ ‘the sort of fraud or overwhelming 

economic power that would provide grounds “for the revocation of any 

contract.” ’ ” (Id. at pp. 483-484.) Here, the Act’s remedies for buyers are not 

mere procedural provisions but are critical, essential features of the Act. 
18

Cal.App.4th at p. 149.) In Wimsatt, involving California’s Franchise 

Investment Law, the court held as a matter of first impression that when 

“determining the ‘validity and enforceability’ of forum selection provisions in 

franchise agreements,” a different set of burdens apply. (Id. at pp. 1521-

1522.) Given legislative recognition of franchisees’ need for special 

protection, as well as the need to prevent easy circumvention of the 

antiwaiver statute, Wimsatt decided the law put the burden on the franchisor 

to show that litigation in the contract forum will not diminish in any way the 

substantive rights afforded California franchisees under California law. (Id. 

at p. 1522.) 

It is useful to consider decisions assessing the impact of antiwaiver 

statutes on contractual provisions or contracts. This court in Crosno 

Construction, Inc. v. Travelers Casualty and Surety Company of America, 

supra, 47 Cal.App.5th 940 decided the issue in a summary judgment context, 

affirming a lower court’s ruling invalidating a provision in a construction 

subcontract. The antiwaiver statute there, section 8122, was included 

in a statutory scheme to resolve payment disputes in construction projects, 

what we described as “expansive remedial legislation to protect 

subcontractors . . . .” (Id. at pp. 950, 961.) Crosno declined to enforce a “paywhen-paid” subcontract provision as doing so would “postpone [the crosscomplainant’s] right to recover under the payment bond for an indefinite time 

period until” certain litigation concluded, and that result would 
19

“unreasonably affect or impair [the cross-complainant’s] statutory payment 

bond remedy . . . .” (Id. at p. 946.)9 

Verdugo, supra, 237 Cal.App.4th 141 involved a mandatory forum 

selection clause in a plaintiff’s employment agreement designating Texas as 

the exclusive forum for employment and other disputes. (Id. at pp. 144, 146.) 

Forum selection clauses are favored in California if voluntarily entered into 

and their enforcement is not unreasonable. (Handoush v. Lease Finance 

Group, LLC (2019) 41 Cal.App.5th 729, 734, quoting America Online Inc. v. 

Superior Court, supra, 90 Cal.App.4th at p. 11; Verdugo, at p. 147.) The 

plaintiff in Verdugo brought a class action, and the defendant successfully 

moved to stay or dismiss it under the forum selection clause, which the trial 

court found was enforceable. (Id. at p. 146.)

The appellate court reversed, holding the forum selection clause 

unenforceable as against public policy. (Verdugo, supra, 237 Cal.App.4th at 

pp. 144, 162, fn. 10.) Verdugo adopted Wimsatt’s shifting burden rationale, 

9 Unlike section 1790.1 here, the antiwaiver clause in Crosno expressly 

permitted a written waiver and release, providing: “ ‘An owner, direct 

contractor, or subcontractor may not, by contract or otherwise, waive, affect, 

or impair any other claimant’s rights under this part, whether with or 

without notice, and any term of a contract that purports to do so is void and 

unenforceable unless and until the claimant executes and delivers a waiver 

and release under this article.’ ” (Crosno Construction, Inc. v. Travelers 

Casualty and Surety Company of America, supra, 47 Cal.App.5th at p. 951.) 

And Crosno made clear it was not invalidating all pay-when-paid provisions: 

“We do not suggest that every pay-when-paid provision is unenforceable as an 

impairment of payment bond rights under section 8122. Instead, we conclude 

that this one is unenforceable because it unreasonably forestalls accrual of 

Crosno’s payment bond rights for an indefinite period of time while the direct 

contractor pursues litigation against the owner.” (Id. at p. 960.)
20

explaining that ordinarily the party opposing enforcement of a forum 

selection clause bears the burden of proving why it should not be enforced. 

(Verdugo, at pp. 144, 147.) But that burden is reversed “when the claims at 

issue are based on unwaivable rights created by California statutes. In that 

situation, the party seeking to enforce the forum selection clause bears the 

burden to show litigating the claims in the contractually-designated forum 

‘will not diminish in any way the substantive rights afforded . . . under 

California law.’ ” (Verdugo, supra, at p. 147; see also America Online, Inc. v. 

Superior Court, supra, 90 Cal.App.4th at p. 10 [party seeking enforcement 

must “prove that enforcement of the forum selection clause would not result 

in a significant diminution of rights”].) 

The court observed all of the plaintiff’s claims were based on Labor 

Code statutory rights (pertaining to when and how employers must (1) pay 

overtime and other forms of compensation, (2) provide meal and rest breaks, 

and (3) provide accurate wage statements), which were “important statutory 

rights the Legislature made unwaivable through an express antiwaiver 

provision.” (Verdugo, supra, 237 Cal.App.4th at p. 156; see Lab. Code, § 219,

subd. (a) [declaring such rights cannot “in any way be contravened or set 

aside by a private agreement, whether written, oral, or implied” (italics 

added)].)10 The statutory provisions “further[ed] California’s fundamental 

public policy of requiring California employers to fully and promptly pay all 

wages due their employees.” (Id. at p. 156.) They also established specific 

10 Verdugo found it irrelevant that the Labor Code antiwaiver provision 

did not include the words “waiver” or “void”; the appellate court found the 

statute had the same legal effect as the antiwaiver provisions in the 

Franchise Investment Law and CLRA. (Verdugo, supra, 237 Cal.App.4th at 

p. 152.) “[C]ase law uniformly recognizes these statutory provisions make the 

rights unwaivable.” (Ibid.)
21

remedies for an employer’s violation of these provisions, including recovery of 

unpaid wages, interest, civil penalties, and attorney fees. (Id. at p. 145.)

Verdugo explained that putting the burden of proof on the defendant 

was intended “to prevent the forum selection clause from operating as a 

waiver of [plaintiff’s] unwaivable Labor Code rights . . . .” (Verdugo, supra, 

237 Cal.App.4th at p. 151.) The court stated the forum selection clause at 

issue “has the potential to contravene an antiwaiver statute designed to 

protect California residents from business practices that do not meet Labor 

Code standards. If enforced, the forum selection clause would require [the 

plaintiff] to litigate her Labor Code wage claims in Texas, where the 

Employment Agreement’s choice-of-law clause would require the court to 

apply Texas law unless a Texas court decides not to enforce the choice-of-law 

clause.” (Ibid.) Although the defendant contended that the Texas court 

would “ ‘most likely’ ” apply California law to employee’s claims (id. at p. 

158), it preserved its ability to argue to the Texas court that Texas law should 

apply. (Ibid.) Further, its arguments constituted “conclusory speculation” 

that did not satisfy its burden of proof. (Ibid.) “As explained above, [the 

defendant] must show enforcing the forum selection clause ‘will not diminish 

in any way’ [the plaintiff’s] statutory rights.” (Ibid, quoting Wimsatt, supra,

32 Cal.App.4th at p. 1522 & America Online, supra, 90 Cal.App.4th at pp. 10-

11.) The defendant “carefully avoid[ed] making any specific and definitive 

argument that Texas courts either have applied or will apply California wage 

and hour laws despite a choice-of-law clause designating Texas law.” 

(Verdugo, at p. 158.) Because the defendant declined the opportunity to 

eliminate uncertainty by refusing to stipulate that California law applied, the 

Court of Appeal held the forum-selection clause was unenforceable as against 

public policy. (Id. at pp. 160, 162, fn. 10.)
22

Reaching a different conclusion in landlord/tenant contexts, the First 

District, Division One Court of Appeal in Kaufman, supra, 195 Cal.App.4th 

734 and Geraghty v. Shalizi (2017) 8 Cal.App.5th 593 (Geraghty) declined to 

invalidate settlement/lease buyout agreements despite an antiwaiver 

provision in a city rent ordinance providing “[a]ny waiver by a tenant of 

rights under this Chapter [except as provided in San Francisco 

Administrative Code section 37.10A, subdivision (g),] shall be void as 

contrary to public policy.” (Kaufman, at p. 744, italics omitted; S.F. Admin. 

Code, § 37.9, subd. (e); Geraghty, at p. 599.) Kaufman involved settlement of 

a landlord’s unlawful detainer action against a tenant. (Kaufman, at pp. 737-

738.) As part of the settlement, the tenant agreed to move out after seven 

years. (Id. at p. 738.) She also acknowledged she was waiving any future 

possession rights, including rights she might have under the ordinance. 

(Ibid.) Years later, in 2008, when the tenant would not leave, the landlord 

sued to enforce their settlement agreement. (Id. at pp. 738-739.) On the 

parties’ cross-motions, the trial court granted summary adjudication in the 

landlord’s favor. (Id. at p. 739.) 

On appeal, the tenant argued the settlement agreement’s move-out 

provision was a void waiver of her rights under the rent ordinance, and 

enforcing the agreement would violate public policy. (Kaufman, supra, 195 

Cal.App.4th at pp. 743-744.) The appellate court rejected the arguments and 

affirmed the order granting summary adjudication, holding the ordinance, 

which only voided waivers “in the context of an eviction or an owner movein,” did not apply “to the settlement of a legal claim that was made for 

valuable consideration in return for termination of litigation.” (Id. at p. 745.)

It continued: “Parties frequently settle landlord-tenant disputes, and moveout provisions are not uncommon. If [the antiwaiver provision] were deemed 
23

to apply to such move-out provisions, this would have a chilling effect on 

future settlements of unlawful detainer actions as landlords would have little 

incentive to enter into prelitigation negotiations.” (Ibid., fn. omitted.) The 

court concluded: “[W]e agree that the public policy in favor of protecting 

tenants is important. But the time to raise this issue is when a settlement 

agreement is negotiated with advice of counsel, not seven years after a tenant 

has enjoyed the benefits of the bargain.” (Id. at p. 746.) 

Kaufman relied on the strong public policy favoring settlement of 

disputes, recognizing a contract should be voided only when the situation is 

free from doubt: “ ‘Freedom of contract is an important principle, and courts 

should not blithely apply public policy reasons to void contract provisions.’ ” 

(Kaufman, supra, 195 Cal.App.4th at p. 745.) In reaching its holding, the 

Kaufman court found Timney v. Lin, supra, 106 Cal.App.4th 1121

inapplicable, as Timney involved an illegal forfeiture clause that was not 

present in the settlement agreement before it. (Kaufman, at p. 746.) 

Kaufman also rejected reliance on Consumer Advocacy Group, Inc. v. Kintetsu 

Enterprises of America, supra, 141 Cal.App.4th 46, stating only it “concerns a 

Proposition 65 consent judgment.” (Kaufman, at p. 746, fn. 7.) Geraghty 

relied on Kaufman to affirm a summary judgment for a landlord based on a 

pre-litigation lease buy-out agreement he had reached with his tenant. 

(Geraghty, supra, 8 Cal.App.5th at p. 595 [rejecting tenant’s claim the release 

was void; “For the same reasons expressed in Kaufman, we conclude the 

parties should be held to the terms of their negotiated disposition, which 

afforded benefits to both and avoided burdening the court with a lawsuit”].)

V. The Release Here Is Void as Against Public Policy

We apply Wimsatt and Verdugo to the circumstances here. That the 

Act is “strongly pro-consumer” (Murillo v. Fleetwood Enterprises, Inc. (1998) 
24

17 Cal.4th 985, 990) is reflected in its above-referenced antiwaiver provision, 

which deems “contrary to public policy” and “unenforceable and void” “[a]ny 

waiver by the buyer of consumer goods of the provisions of this chapter, 

except as expressly provided in this chapter . . . .” (§ 1790.1; see Murillo, at p. 

972; Duff v. Jaguar Land Rover North America, LLC (2022) 74 Cal.App.5th 

491, 500; Martinez v. Kia Motors America, Inc. (2011) 193 Cal.App.4th 187, 

195.) The Act’s antiwaiver provision is extremely broad; it is not limited to 

warranties or any particular time frame during the purchase process, but 

encompasses all mandated remedies afforded to buyers. Such an 

interpretation follows the directive to give the Act a “ ‘ “construction 

calculated to bring its benefits into action.” ’ ” (Kirzhner v. Mercedes-Benz 

USA, LLC, supra, 9 Cal.5th at p. 972.) We are not bound by the lower court’s 

interpretation of the law, which in our view is overly restrictive.11 

Here, Rheinhart’s right to remedies under the Act are substantive 

rights that the Legislature has declared unwaivable. Given the nature of 

those rights, Nissan’s summary judgment burden was not just to establish 

the existence of the Release and its validity, but to show that enforcing the 

Release would “ ‘not diminish in any way [Rheinhart’s] substantive rights 

11 To reiterate, section 1790.1 deems contrary to public policy and void 

“[a]ny waiver by the buyer of consumer goods of the provisions of this chapter” 

(italics added) unless the Act expressly provides otherwise. When statutory 

language is unambiguous, “ ‘then the Legislature is presumed to have meant 

what it said, and the plain meaning of the language governs.’ ” (Kirzhner v. 

Mercedes-Benz USA, LLC, supra, 9 Cal.5th at p. 972.) But as stated below,

we do not hold the antiwaiver provision bars parties in Song-Beverly Act 

cases from ever settling disputes. We may reject a literal construction that 

would lead to absurd results. (Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 

Cal.4th 12, 27.) This appeal gives us no occasion to enumerate the 

circumstances validating settlements of Song-Beverly Act claims, we simply 

hold that the Release here contravened Rheinhart’s rights to elect the Act’s 

substantive remedies.
25

afforded . . . under California law’ ” (Verdugo, supra, 237 Cal.App.4th at p. 

147) or “would not result in a significant diminution of [those] rights.” 

(America Online, Inc. v. Superior Court, supra, 90 Cal.App.4th at p. 10; see 

also G Companies Management, LLC v. LREP Arizona, LLC, supra, 88 

Cal.App.5th at p. 350.) Applying this standard gives effect to the Act’s 

manifestly remedial and consumer protection purposes.

Under the principles discussed above, and the factual circumstances of 

this case, Nissan cannot meet this burden.12 It is undisputed that Rheinhart 

presented the rear-view camera issue to Nissan on three occasions, and that 

thereafter Nissan agreed to pay him $3,548.40 in compromise. There is no 

evidence that before Nissan presented Rheinhart with the settlement 

agreement that it advised him of the Act’s replacement or restitution

12 Nissan’s motion did not mention, much less discuss, the Act’s 

antiwaiver provision or its impact on Rheinhart’s release. Understandably, 

Nissan did not address whether Rheinhart’s decision to settle for $3,548.40 

diminished his substantive rights under the Act, including his entitlement to 

“prompt” replacement or restitution, damages, civil penalties and attorney 

fees. After Rheinhart raised the Act’s antiwaiver provision in his summary 

judgment opposition, Nissan argued his cited authorities, including the 

Proposition 65 cases, were inapposite; that they had “no bearing on the issues 

here.” This treatment is akin to the cursory remark by Kaufman rejecting 

reliance on Consumer Advocacy Group, Inc. v. Kintetsu Enterprises of 

America, supra, 141 Cal.App.4th 46. (Kaufman, supra, 195 Cal.App.4th at p. 

746, fn. 7.) The court in Consumer Advocacy acknowledged the “general rule 

that a trial court should not approve an agreement contrary to law or to 

public policy” as well as the “specific rule that ‘ “the court cannot surrender 

its duty to see that the judgment to be entered [on a settlement] is a just one, 

nor is the court to act as a mere puppet in the matter.’ ” (Consumer 

Advocacy, at pp. 61-62.) These principles apply here. Nissan also asserted 

that “bargained-for releases are permitted under the Song-Beverly Act.” But 

the authority it cited for that proposition—Dorman v. International Harvester 

Co. (1975) 46 Cal.App.3d 11, 19—does not discuss or mention the SongBeverly Act.
26

remedies or the fact Nissan had an affirmative obligation to offer those 

remedies once it engaged in a reasonable number of repair efforts. There is 

no indication Nissan’s $3,548.40 settlement payment endeavored to 

approximate the vehicle’s purchase price or other sums owed under the Act 

for reimbursement. There is no evidence otherwise that Rheinhart, who was 

unrepresented by counsel, was aware of his rights under the Act or its 

antiwaiver provision. He did not expressly waive his rights under the Act. 

The circumstances suggest unequal bargaining strength between a consumer 

unaware of his rights and a manufacturer seeking to circumvent its statutory 

obligations.

And Rheinhart is unlike the plaintiff in Kaufman, who was apparently 

represented by counsel at the time she entered into the settlement and 

release, which expressly acknowledged her rights under the rent ordinance. 

(Kaufman, supra, 195 Cal.App.4th at pp. 738, 746.) We decline to extend

Kaufman (or Geraghty, which followed Kaufman) to these circumstances. In 

addition to the distinguishing aspects above, Kaufman involved unique facts 

and circumstances in that the tenant waited seven years after entering into 

the settlement and the court interpreted the antiwaiver provision as only 

voiding waivers “in the context of an eviction or an owner move-in.” (Id. at p. 

745.) Kaufman did not acknowledge a defendant’s burden to prove a 

settlement does not diminish substantive rights when dealing with 

antiwaiver provisions in the consumer protection context.

On this summary judgment record, the Release contravened 

Rheinhart’s right to elect the Act’s substantive remedies of replacement or 

restitution. On that basis, it is void as against public policy, and Nissan is 

not entitled to summary judgment on grounds the Release bars Rheinhart’s 

claims as a matter of law.
27

We emphasize that our holding is not that section 1790.1 precludes 

settlement and release of claims under the Act. To be sure, there are many 

instances where parties have settled disputes over a claimed breach of the 

Act. (See Madrigal v. Hyundai Motor America (2023) 90 Cal.App.5th 385 

[stipulated settlement on first day of trial].) In this respect, we do not 

disagree with the observations of McLaren Automotive Inc. v. Shaoo (C.D.Cal. 

2021) 2021 WL 4707001, that a buyer is not precluded from agreeing to settle 

his claim for a lesser amount than the full purchase price of the vehicle (id. at 

p. *10) and In re Volkswagen “Clean Diesel” Marketing, Sales Practices, and 

Product Liability Litigation (N.D.Cal. Sept. 8, 2020) 2020 WL 5371404, which 

generally declined to apply section 1790.1 to settlements or else “no 

settlement releasing any Song-Beverly Act . . . claim would be enforceable.”

(Id. at p. *6.)

VI. Rheinhart’s Unconscionability Argument

In view of our holding, we need not address Rheinhart’s argument that 

the Release is unconscionable due to his unrepresented status. 
28

DISPOSITION

The judgment is reversed. Rheinhart shall recover his costs on appeal.

O’ROURKE, J.

WE CONCUR:

HUFFMAN, Acting P. J.

DO, J.