Filed 2/24/14 Herrera v. A&P A uto Sales 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

CARLOS HERRERA, Plaintiff and Appellant,

v. A&P AUTO SALES et al., Defendants and Respondents. G048290 (Super. Ct. No. 30

- 2011

- 00522752)

O P I N I O N

Appeal from a post

judgment order of the Superior Court of Orange County,
David R. Chaffee, Judge. Affirmed.

Liberty & Associates, Louis A. Liberty and Ian Otto for Plaintiff and Appellant.
Law Offices of Kevin O ’ Connell & Associates, Kevin O ’ Connell and
Heather Duro for Defendant s and Respondent s A&P Auto Sales and Paul Nguyen.

Coleman & Horowitt, Darryl J. Horowitt and Jennifer T. Poochigian for Defendant and Resp ondent Wells Fargo Dealer Services.2 Car l o s Herrera appeals from the trial court ’ s order denying his attorney fee s motion. He asserts the terms of a settlement agreement he reached with A&P Auto Sales (A&P), its owner Paul Nguyen, and Wells Fargo Bank (WF B) , permitted him to file a motion for attorney fees after the case was dismissed. He complains the court erred in interpreting Herrera ’ s express waiver of fees, contained in his request for dismissal of the case, as grounds to deny his subsequent motion for attorney fees. We find the contention lacks merit and affirm the postjudgment order.
I Because the appeal does not concern the underlying lawsuit, our summary
of the facts need not be detailed. Suffice it to say, Herrera purchased a severely frame
d amaged 2006 Toyota Tundra from a used car dealership ( A&P ) , and obtained financing
from WFB. Herrera filed a lawsuit after he discovered A&P concealed the vehicle had been in an accident, the twisted frame needed to be replaced, the vehicle was a total loss , and it was unsafe to be operated on the public road.

Before trial

. the parties reached an agreement to settle the dispute. On November 24, 2012, A&P , Nguyen , and WFB entered into a settlement agreement (the Agreement) with Herrera , containing the f ollowing provisions: In the “ recitals ” section, the parties stated the defendants “ deny each of the allegations ” alleged in the complaint.
It also noted Herrera w as seeking the identity of 16 owners of vehicles purchased from
A&P. In the Agreement , t h e parties stated they desired to resolve their dispute “ in the interest of avoiding the adverse cost, expense and publicity of litigation. ” However, the Agreement also specified, “ This agreement shall not be treated as an admission of liability or wrongdo ing by any party, its subsidiaries or affiliates, or any directors, officers, agents, employees, or attorneys thereof, or any of them. ”

As part of the Agreement, Herrera received rescission damages ($7,110.70) and A&P paid off WFB ’ s lien ($11,104.74 )

. A &P agreed to, “ Stipulate to an injunction3

pursuant to which [A&P] will agree to abide by all laws and regulations re lating to the advertising of used vehicles, including, but not limited to AB1215 and disclosure of frame damage, in all future vehicle[] sal es and advertising. ”

Herrera agreed to, “ Waive any and all claims he may have against [A&P, Nguyen, and WFB], save and except [Herrera ’ s] claim to reimbursement of attorney [] fees and costs; [¶] . . . [¶] . . . [and] cause to be filed with the Orange Co unty Superior Court, a [r]equest for [d]ismissal, with prejudice ” of the action.

With respect to the issue of attorney fees, the parties agreed the prevailing party in any action brought to enforce or interpret the terms of the Agreement would be
entitle d to recover attorney fees and costs. In addition, the parties clarified, “ N othing
contained herein shall constitute a determination that either party is the ‘ prevailing party ’
as such term is defined in Code of Civil Procedure section 1032[, subdivision ] (a)(4). Notwithstanding this fact, [Herrera] may, at his option, fi l e a motion for attorney [] fees within the statutory time set forth in California Rules of Court, [r]ule 3.1702; [WFB] agrees it will not seek recovery of attorney [] fees. In the event s uch motion is filed, [A&P, Nguyen, and WFB] may, at their option, oppose any such motion on all grounds available to them. [¶] [] The parties agree that notwithstanding the dismissal that may be filed . . . the [c]ourt shall retain jurisdiction to hear a ny motion for attorney [] fees that is timely filed, as contemplated herein. ”

As contemplated by the A greement, Herrera filed a request for dismissal after being paid the agreed upon damages. On December 17, 2012, Herrera filed Judicial
C ouncil form CIV

- 110, requesting the action be dismissed. Herrera checked three boxes
on the f orm. He checked box number “ 1 ” indicating the matter should be dismissed with prejud ice. He checked box number “ 5 ” stating the req uest was for dismissal of all the parties and all cause s of action. He also checked box number “ 6 ” titled “ Other (specify) [.] ” Here, Herrera added the typewritten sentence , “ Each party to bear their own attorney [] fees and costs[.] ”4 Approximately one month later, Herrera filed a motion seeking an award of attorney fees , arguing he was the prevailing party. His counsel, Louis Liberty , filed a supporting declaration, stating, “ I am seeking $79,734.50 for hours worked and am asking for a multiplier of 2.0 for a total demand, exclusive of costs of $15 9,469.00 and a cost reimbursement of $12,847.20. The total request is $172,316.20. ”

A&P and Nguyen filed an opposition, arguing the following points: ( 1) the Agreement states there was no prevailing party in the action; (2) the motion was untimely; (3 ) an earlier rejected settlement offer in 2011 bar red recovery of attorney fees; (4) counsel engaged in fraudulent conduct; and (5) the fees sought were not reasonable. They also filed a motion to strike or tax costs, essentially raising the same argument s. Herrera filed a reply and opposed the motion to strike or tax costs. He also filed evidentiary objections.

WFB also filed an opposition to the motion seeking attorney fees and costs

. It argued the motion was “ improper ” in light of Herrera ’ s request for dismissal that expressly stat ed each party must bear their own attorney fees and costs. WFB argued the
motion to recover fees and costs “ are thus contrary to the dismissal, which is a court order that [Herrera] is bound by and controls here. ” In addition, WFB argued the motion was untimely filed and served, Herrera was not the prevailing party in the action, there was no basis for the award of fees against WFB , and Herrera failed to establish the fees requested were reasonable. WFB noted He rrera failed to timely serve a memorandum of

costs. WFB separately filed objections to Liberty ’ s declaration.

The court considered oral argument as well as several supplemental
declarations. On the record, the court stated, “ [I]t pains me to say this, but I think this is one of those unfortunate life lessons. The paper filed with the court on December 17 is clear enough that each par t y thereby agrees to bear their own attorney [] fees and costs. That supersedes the language of the Agreement of November 24. ”5 On March 15, 2013 , th e court filed a minute order stating it rejected
Herrera ’ s argument “ that it is clear from other terms in the settlement agreement that the parties intended that [Herrera ’ s] right to attorney[] fees would survive execution of the settlement agreement . . . [and] therefore . . . [the] argument regarding waiver is inequitable. ” The court explained the Agreement ’ s paragraph regarding attorney fees
contained “ no requirement for [Her rera] to include a fee

- and

- cost

- waiving clause in the request for dismissal. ” The court noted there were other problems and irregularities with the motion for fees and costs, however, the court did not consider them in light of
Herrera ’ s waiver. The court denied the motion for attorney fees and costs a nd granted A&P and Nguyen ’ s motion to strike the request for costs.
II A. Application of Waiver Doctrine

Herrera first argues the tria l court wrongly implied from his dismissal request that he intended to waive his right to seek attorney fees. In other words, Herrera asserts the court erred by applying the legal doctrine of waiver. He cites case authority setting forth the general rule that a waiver can only be found when there is an “ intentional relinquishment of a known right, ” and there must be “ clear and convincing evidence ” of a waiver . ( Citing Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 31 ; DRG/Beverly Hills, Ltd

. v. Chopstix Dim Sum Café & Takeout III, Ltd. (1994) 30 Cal.App.4th 54, 60 ( DRG ) ; Brookview Condominium Owners ’ Ass n. (1990) 218 Cal.App.3d 502, 513.) He concludes the court erred because there is no evidence of
intent to waive his right to seek reimbursement of attorney fees because the Agreement
establis hes a contrary intent

. He is wrong.

“ All case law on the subject of waiver is unequivocal: ‘“ Waiver always rests upon intent. Waiver is the intentional relinquishment of a known right after knowledge of the facts. [Citations]. The burden, moreover, is on the party claiming a waiver of a right to prove it by clear and convincing evidence that does not leave the6

matter to speculat ion, and “ doubtful cases will be decided against a waiver. ” ’ [Citations.] ” ( DR G, supra, 30 Cal.App. 4th at p. 60 .)

Herrera asserts the parties ’ intent regarding attorney fees is clearly demonstrated in the language of the Agreement. He focuses on two sections of the Agreement. First , there is the paragraph stating Herrera agreed to waive all claims

“ except ” his claim for re imbursement of attorney fees and costs. Second, the parties agreed the court would retain jurisdiction following the dismissal “ to hear any motion for attorney[] fees. ” We agree it clearly can be inferred from these two provisions that
Herrera intended t o file a motion for attorney fees when he executed the Agreement.

But this was not all the evidence contained in the Agreement regarding the parties ’ intent. Herrera ’ s right to file a motion seeking reimbursement of attorney fees was not supported by any written guarantees the motion would be successful. To the contrary, the Agreement expressly provided there was no admission of liability and no
determination “ that either party ” was the prevailing party. More importantly, the Agreement stated “ notwithst anding ” the lack of a determination of a prevailing party,
Herrera “ may, at [ his ] option ” file a motion seeking reimbursement for attorney fees. Thus, the Agreement merely gave Herrera the choice to file a postjudgment motion with the burden of having to c onvince the court he was the prevailing party e ntitled to fees

.

The pro visions cited by Herrera support this interpretation. Those provisions simply insured Herrera would not be restricted in the future from attempting to recover attorney fees , and the court would retain jurisdiction if Herrera decided to file a postjudgment motion . The Agreement also contemplated that if Herrera de cided to seek fees, his motion c ould be vigorously opposed, providing , “ In the event such a motion is filed, Defen dants may, at their option oppose any such motion on all grounds available to
them. ”
Based on all the relevant provisions contained in the Agreement (and not just the two sentences cited by Herrera) we can infer the parties disputed the issue of7

attorn ey fees and merely agreed to have the matter resolved by the trial court at a later
date . It is important to recognize the Agreement did not mandate resolution of this dispute. Rather the parties intended to give Herrera the future option of filing a mot ion. Because A&P and Nguyen refused to admit liability or concede Herrera was the prevailing par ty, it was uncertain whether Herrera would expend the money and

re sourc es to pursue the motion. Thus, contrary to Herrera ’ s argument, the only intent that

can be inferred from the Agreement is the intent to delay res olution of the attorney fee s dispute

. After executing the Agreement, Herrera filed a request to dismiss the entire
action and his counsel inserted the text “ [ e ] ach party to bear their own attorn ey [] fees and

costs. ” As noted by the trial court, the Agreement did not mandate this language be
added. By its clear and ordinary meaning, the language in the dismissal request indicated there would be no motion for attorney fees. The trial court could reasonably interpret
Herrera ’ s actions and statement as abandoning any prior intent to seek fees and an express waiver of this right.

W ithout supporting authority, Herrera maintains parties “ commonly and routinely ” add this language to CIV

- 110 forms. Ev en if this were true, Herrera does not

assert “ routine ” was the rea son he voluntarily inserted this language onto the pre

- printed form. Indeed, he offers no explanation as to why the language was included. His observation such language is commonly used seems to suggest Herrera perhaps made a
mistake by including the waiver and he never intend ed to pay his own attorney fees. However, i f Herrera believed he made a mistake , or there was a clerical er ror, he could have petitioned the trial court to set asid e or modify the dismissal . But he did not do so. Consequently, the trial court had no reason to assume Herrera did not intend to comply
with or abide to what he intentionally and v oluntarily submitted to the court.8 Thus, c ontrary to Herrera ’ s contenti on on appeal, the A greement is not the
sole measure of his intent. To accept this theory we would be require d to rewrite the Agreement. Specifically, we would have to modify the provision giving Herrera the option of filing a motion for attorney fees to a provision mandating that Herrera shall file a motion for attorney fees after the case ’ s dismissal, and the trial court shall determine this disputed issue. This we cannot do. ( Kwok v. Transnation Title Ins. Co. (2009)
170 C al. A pp. 4th 1562, 1571 [ “‘ [ W ] e do not rewrite any provision of any contract . . . for
any purpose ’” ].)

Simply stated, the Agreement gave Herrera a provisional right to seek attorney fees, and required f urther action on Herrera ’ s part. For this reason, Herrera ’ s right could be waived by subsequent contradictory actions or words. For example, after receiving the settlement money Herrera could have let the time pass for filing a motion seeking fees. He could have informed the court he had a change of heart and no longer wished to purs ue a fee motion. This could have been accomplished orally in court, or b y what occurred in this case

— Herrera submitted to the court a request to dismiss the case
in which he also expressly agreed to bear his own fees and costs. We conclude the trial

cour t correctly recognized Herrera ’ s request for dismissal contained an express waiver,
and qualified as a “ intentional relinquishment of a known right. ” ( DR G, supra, 30 Cal.App.4th at p. 60.) We find no error in the court ’ s legal determination that the
dis missal, which Herrera never claimed was filed by mistake, was a n express waiver of his right to later petition for the reimbursement of fees

. B. No Modification

Herrera argues the trial court erred in holding the request for dismissal superseded or modif

ied the terms of the Agreement. He states that under basic rules of contract interpretation, the court could not ignore the Agreement ’ s provision mandating any modification be in writing and signed by “ all parties. ” This contention misconstrues
the court ’ s ruling and the record.9 There is no evidence suggesting the court ruled the Agreement was
modified. The court ’ s tentative ruling, the reporter ’ s transcript of the hearing, and the
minute order do not contain any language from which it can be inferred the court applied the legal theory of contract modification. We recognize that at one point t he court stated
the waiver superseded the Agreement . However, the court was referring to the timing of
the wai ver. Specifically, rights outlined in the Agreement were contradicted and superseded by a subsequent express waiver . We have carefully reviewed the record, and it clearly show s the trial court appl ied and relied only on the legal doctrine of w aiver
when making its ruling.
III

The postjudgment order is affirmed. Respondents shall recover their costs on appeal.

O’LEARY, P. J.

WE CONCUR:

RYLAARSDAM, J.

THOMPSON, J.