Herrera v. A&P Auto Sales CA4/3

Filed 2/24/14 Herrera v. A&P Auto 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, G048290

v. (Super. Ct. No. 30-2011-00522752)

A&P AUTO SALES et al., OPINION

Defendants and Respondents.

Appeal from a postjudgment 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 Defendants and Respondents A&P Auto Sales and Paul Nguyen. Coleman & Horowitt, Darryl J. Horowitt and Jennifer T. Poochigian for Defendant and Respondent Wells Fargo Dealer Services.

Carlos Herrera appeals from the trial court’s order denying his attorney fees 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 (WFB), 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 damaged 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 following provisions: In the “recitals” section, the parties stated the defendants “deny each of the allegations” alleged in the complaint. It also noted Herrera was seeking the identity of 16 owners of vehicles purchased from A&P. In the Agreement, the 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 wrongdoing 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 injunction