Davidson v. Superior Court

ARDAIZ, P. J.

I respectfully dissent.

As I shall explain, (1) the stipulated judgment in issue in this case is not invalid or void, and its violation may form the basis for a judgment of contempt against these petitioners, and (2) Mr. Elbert Ernest Davidson and Mr. Edward Warkentine have had ample opportunity to litigate the issue of whether they authorized Attorney Lempel to settle this case by stipulation in 1987, but for reasons best known to them have chosen not to do so.

First of all, I am in somewhat of a quandary with this case because I am fencing with shadows of things that never were regarding legal positions that cannot be. This case arises from a writ of habeas corpus taken from a *532contempt. The contempt is the result of a judgment entered in 1987. The petitioners have argued to this court that Code of Civil Procedure section 664.61 applies. Utilizing that assumption regarding section 664.6, they spin their argument into a full-blown defense from which this court is importuned to take up their cause. My first response is that section 664.6 does not apply at all to this case. I contend here, as I did in 1994 in a unanimous opinion, that section 664.6 is a procedural vehicle to enforce a stipulation in order to obtain a judgment. Section 664.6 is not a procedural vehicle to enforce a judgment already obtained. It has nothing to do with a judgment already obtained. The petitioners throw up the argument that an attorney acting without authority could stipulate to a judgment and submit the stipulation to the court, thereby resulting in a judgment being entered without the authorization of the attorney’s clients. Even assuming for the moment that an attorney would be so cavalier or so foolish about the interests of his or her clients, the argument has no application to the mechanism of section 664.6. Secondly, the petitioners herein have never properly asked any court at any time to hold a hearing on the issue of whether their attorney in 1987 had authority to enter into this agreement which resulted in a judgment. The reference in the majority opinion that in 1992, regarding the “authority” of counsel, the issue was raised, begs the question. (Maj. opn., ante, at p. 519.) The point is that it was not argued. Petitioners’ counsel has never requested a hearing on that issue. We noted that in our 1997 opinion, signed by the same judges in the majority in this very case:

“The declaration of E. Robert Wright submitted in support of appellant’s ‘Motion for Order to Set Matter for Jury Trial’ stated that Mr. Wright had appeared at an April 1992 hearing on appellant’s 1992 motion to rescind the 1987 stipulated order. The declaration asserted that ‘[due] to the court’s schedule, the issue of whether or not [appellant’s] former counsel had authority to enter into the stipulation was put over for a subsequent trial.’ No court order to that effect was presented by appellants in support of their ‘Motion for Order to Set matter for Jury Trial.’ No trial took place in 1992. Rather, appellants appealed in 1992 from the denial of their 1992 motion to rescind the 1987 stipulated order.” (City of Mendota v. Davidson (Nov. 3, 1997) F025807 [nonpub. opn.].)

Further, and most notably, in this writ application, petitioners never argue that the judgment was entered pursuant to a stipulation that was not authorized. They did not attempt to defend in the trial court on the basis that their counsel was not authorized. And under the majority opinion they apparently never will have to so show because the majority concludes that unless a *533judgment is entered with the written agreement of the parties, any judgment so obtained is void. Not voidable, void! Thus, petitioners never address the obvious question: did their attorneys have authority? The silence in the face of this question is deafening. The petitioners use a statute which does not apply to secure a conclusion they do not deserve on grounds that they lost years ago and, under the majority view, they prevail.

Having stated the foregoing to clearly illustrate the thrust of my position, I will now discuss the procedural history of this case.

Facts and Procedural History

On November 1, 1982, the City of Mendota brought an action in superior court against Davidson and Warkentine. The city sought an injunction prohibiting Davidson and Warkentine from operating a junkyard or vehicle dismantling establishment on certain properties which allegedly were not zoned for such a use. The case was settled in December of 1987 when the city, Davidson, and Warkentine entered into a “Stipulation for Settlement and Entry of Order.” This document was signed by the attorney for the city (Mr. Stephen E. Carroll) and by the attorney for Davidson and Warkentine (Mr. J. Stephen Lempel). Paragraph 6 of the “Stipulation for Judgment and Entry of Order” stated: “This stipulation shall be entered in the file of the Superior Court and the Court shall be requested to enter an Order consistent with the matters set forth herein.” The bottom of the fourth and final page of the “Stipulation for Settlement and Entry of Order” contained a proposed order for a judge to sign. It said: “It Is by the Court Ordered that the provisions of this Stipulation be and they, hereby are deemed an Order of the Superior Court.” On December 16, 1987, Judge Stephen Henry signed the above-quoted order. For ease of discussion we will refer to this December 16, 1987, order as “the stipulated order” but it has been agreed by all that it is, in effect, a judgment. In fact, this was the position of petitioners in the first appeal and has continued as their position.

In 1992 Davidson and Warkentine filed a motion to rescind the stipulation and the stipulated order. The motion was made “on the grounds that, at the time of the entry of the Stipulation, their attorney had a conflict of interest which had not been waived by either Defendant.” Davidson and Warkentine contended that Attorney Lempel had been negotiating to become city attorney for the City of Mendota while simultaneously representing Davidson and Warkentine. Lempel did ultimately become city attorney for the City of Mendota in October of 1988, approximately 10 months after signing the “Stipulation for Settlement and Entry of Order” on behalf of Davidson and *534Warkentine. Davidson’s and Warkentine’s reply to the city’s opposition to the motion referred to the two defendants collectively as “Davidson” and also argued that “since Davidson did not sign the stipulation, and since the stipulation for settlement was not entered into orally before the court, it is not binding.” Notably absent from Davidson’s and Warkentine’s motion was any argument that they had in fact never authorized Lempel to settle the case on their behalf in accordance with the provisions of the “Stipulation for Settlement and Entry of Order.” If Lempel had never in fact been authorized to settle the case at all, one wonders why it would even matter whether he had a conflict of interest or not when he signed the document purportedly on behalf of Davidson and Warkentine. We note that the record suggests that Davidson and Warkentine were unwilling to waive any attorney-client privilege with regard to what they may or may not have in fact authorized Lempel to do on their behalf. In short, they chose not to litigate the issue of what they in fact did or did not authorize Attorney Lempel to do on their behalf. The superior court denied Davidson and Warkentine’s motion to rescind. Davidson and Warkentine appealed that ruling. We affirmed the superior court’s order denying the motion to rescind. Our February 28, 1994, opinion in that case became final in March of 1994.

The 1987 Stipulated Order Is Not Void

In our 1994 opinion, we addressed the same issues which had been addressed by the superior court in denying Davidson’s and Warkentine’s motion to rescind the stipulation and the stipulated order. These were (1) whether the superior court erred in concluding that the December 1987 stipulated order was not the result of extrinsic fraud, and (2) whether section 664.6 rendered the December 1987 stipulated order invalid as a matter of law due to the fact that the stipulation was not signed by Davidson and Warkentine personally, but rather by their attorney. The first of these two issues no longer concerns us here. "When contempt proceedings were begun against Davidson and Warkentine in June of 1998, Davidson and Warkentine asserted as a defense that the 1987 stipulated order they were accused of violating was invalid because it had not been signed by the defendants personally. “An order of contempt cannot stand if the underlying order is invalid.” (In re Misener (1985) 38 Cal.3d 543, 558 [213 Cal.Rptr. 569, 698 P.2d 637]; in accord, People v. Gonzalez (1996) 12 Cal.4th 804, 816 [50 Cal.Rptr.2d 74, 910 P.2d 1366].) The superior court’s order holding Davidson and Warkentine in contempt again rejected their contention that the December 1987 stipulated order was invalid. As I shall explain, the superior court was correct.

When Davidson and Warkentine moved in 1992 to rescind the December 1987 stipulation and stipulated order, section 664.6 stated: “If parties to *535pending litigation stipulate, in writing 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.” This is also the way the statute read when it was enacted in 1981 and the way it read when the stipulated order was made in December of 1987. In our 1994 opinion affirming the superior court’s denial of Davidson’s and Warkentine’s motion to rescind the December 1987 stipulation and stipulated order, we concluded that (1) section 664.6 did not apply when a stipulated judgment already exists,2 (2) nothing in section 664.6 prohibits parties to litigation from stipulating, in a written stipulation signed by their attorneys, that a case be settled and that the terms of the written settlement agreement be entered as an order of the court, and (3) even if section 664.6 applied to any stipulation to settle a case, section 664.6 was satisfied because the word “parties” in that statute included attorneys who are acting on behalf of their clients. In my view, the first two of these three conclusions were and still are correct. The third, as we subsequently learned when the California Supreme Court decided Levy v. Superior Court (1995) 10 Cal.4th 578 [41 Cal.Rptr.2d 878, 896 P.2d 171], was not. Our 1994 conclusion that the word “parties” in section 664.6 included attorneys acting on behalf of those parties relied on in our decision nine years earlier in Haldeman v. Boise Cascade (1985) 176 Cal.App.3d 230 [221 Cal.Rptr. 412], In Haldeman we concluded that the word “parties” included attorneys acting on behalf of those parties. Levy expressly disapproved of Haldeman (see Levy v. Superior Court, supra, 10 Cal.4th at p. 586, fn. 4) and held that “the term ‘parties’ as used in section 664.6 . . . means the litigants themselves, and does not include their attorneys of record.” (10 Cal.4th at p. 586, fn. omitted.)

The majority relies on Levy to hold that “the 1987 stipulated order was in excess of the court’s jurisdiction because it was not entered in compliance with section 664.6 or some other settlement enforcement mechanism” and “[t]hus, it is void . . . .” (Maj. opn., ante, at p. 529.) Levy does not hold that an existing judgment is void if it is not entered in compliance with section 664.6 or some other settlement enforcement mechanism. Indeed, under the majority’s holding, the stipulated order would apparently be deemed void even if authorized in fact or if Mr. Davidson and Mr. Warkentine had personally signed.it. This would be because it was not obtained by way of a section 664.6 motion or some other settlement enforcement mechanism.

*536In Levy, the attorneys for each side negotiated what appeared to be a settlement of a civil action. Mr. Golant, represented by Attorney Owens, had sued Mr. Levy, who was represented by Attorney Friedman. Attorney Friedman drafted a five-page letter containing the terms of the proposed settlement. Owens then wrote on the letter “ ‘This document, with the few changes we discussed, is acceptable’ ” and also signed the letter. (10 Cal.4th at p. 580.) A formal settlement agreement was drafted, but Owens’s client Golant “refused to sign the formal settlement agreement.” (10 Cal.4th at p. 580.) Levy moved under section 664.6 for a judgment pursuant to the terms of the alleged settlement as set forth in the letter. The superior court denied Levy’s motion. It relied on Nicholson v. Barab (1991) 233 Cal.App.3d 1671 [285 Cal.Rptr. 441], a case which disagreed with our Haldeman opinion and which held that the word “parties” in section 664.6 did not include the parties’ attorneys. The California Supreme Court resolved the issue in Levy by holding that Nicholson was correct and Haldeman was not — the word “parties” in section 664.6 was not intended by the Legislature to include the parties’ attorneys, but rather referred to the parties personally. But Levy says nothing about the validity of stipulated judgments. Nor does Robertson v. Chen (1996) 44 Cal.App.4th 1290 [52 Cal.Rptr.2d 264], or Williams v. Saunders (1997) 55 Cal.App.4th 1158 [64 Cal.Rptr.2d 571], the other two cases relied on by the majority. Both of those cases involved the erroneous granting of section 664.6 motions. No such motion was ever made or ruled upon in the present case.

Prior to the enactment of section 664.6, there was a split of authority as to whether courts could entertain a nonstatutory motion to enforce the terms of a purported settlement when one side either disagreed that there had in fact been a settlement, or just had “buyer’s remorse” and refused to abide by the terms of the settlement. One view was that the party alleging that a settlement had been reached had to either (1) amend its pleadings to allege there had been a settlement, and then move for summary judgment, or (2) file a separate suit in equity to enforce the alleged settlement. One problem with the first procedure was that the opposing party could defeat the summary judgment motion if that party was willing to present a declaration denying that a settlement had been reached. This would create a triable issue of fact warranting denial of the motion. (§ 437c, subd. (c).) A problem with both of these methods was that they were procedurally cumbersome. (See Gopal v. Yoshikawa (1983) 147 Cal.App.3d 128, 132 [195 Cal.Rptr. 36].) A defendant who amended his answer to the complaint to assert settlement as a defense, and then moved for summary judgment and lost, would still have to try the case, and would have yet one more issue to try at trial. Similarly, a separate suit in equity was just that — yet another lawsuit. So, instead of one settled case, there were two pending cases. As Levy itself pointed out, the Legislature resolved the dispute as to whether courts had the authority to entertain *537a motion to enforce an alleged settlement by giving the courts statutory authority to hear such a motion, i.e., by enacting section 664.6. (Levy v. Superior Court, supra, 10 Cal.4th 578.)

Levy recognized that the old methods of enforcing a settlement could still be utilized. Speaking about section 664.6, the Levy court stated: “We note that this statutory procedure is not the exclusive means to enforce a settlement” and “[alternative procedures are a motion for summary judgment, a separate suit in equity, or an amendment to the pleadings in this action.” (Levy v. Superior Court, supra, 10 Cal.4th at p. 586, fn. 5.) In making this observation, Levy cited this court’s case of Kilpatrick v. Beebe (1990) 219 Cal.App.3d 1527 [269 Cal.Rptr. 52], in which we rejected a contention that the enactment of section 664.6 was intended to supersede preexisting methods for enforcing a settlement agreement. In Kilpatrick we observed that “[i]f the Legislature had intended to make section 664.6 an exclusive remedy, it could have expressed that intention” but “[i]t failed to do so.” (219 Cal.App.3d at p. 1530; see also Weil & Brown, Civ. Proc. Before Trial 3 (The Rutter Group 1998) U 12: 958, p. 12(II)-72: “Even if not enforceable under CCP § 664.6, settlements signed by counsel alone may be enforceable in separate proceedings: e.g., by motion for summary judgment (after amending the pleadings to allege settlement defense); or in a separate suit in equity. [Citation.]”)

In Blanton v. Womancare, Inc. (1985) 38 Cal.3d 396, 403 [212 Cal.Rptr. 151, 696 P.2d 645, 48 A.L.R.4th 109], the Supreme Court affirmed the proposition that “. . . the authority of the attorney to bind his client by agreement or stipulation[] is governed by the principles of agency.” Thus, a client is bound by the acts of the attorney agent within the scope of the attorney’s actual authority (express or implied) or his apparent or ostensible authority, or by unauthorized acts ratified by the client. (Ibid.) In Blanton, the court held that an attorney does not have “ ‘implied or ostensible authority to bind his client to a compromise settlement of pending litigation’ ” based only on the fact of his or her employment as the attorney for the client. (Blanton, supra, 38 Cal.3d at p. 404; Levy, v. Superior Court, supra, 10 Cal.4th at p. 583.) By effectively invalidating every settlement not arrived at in conformity with section 664.6, the majority has revoked the law of agency insofar as it heretofore pertained to the relationship of attorney and client, and, in doing so, overturned Blanton to the extent it affirmed the application of agency principles to such relationship. As a result of this opinion, a settlement agreement entered into by the attorney is void, even if it can be proved that the attorney had actual authority to do so or that the client subsequently ratified the attorney’s unauthorized act.

*538“In this state it is clearly the law that the violation of an order in excess of the jurisdiction of the issuing court cannot produce a valid judgment of contempt.” (In re Berry (1968) 68 Cal.2d 137, 147 [65 Cal.Rptr. 273, 436 P.2d 273].) “Speaking generally, any acts which exceed the defined power of a court in any instance, whether that power be defined by constitutional provision, express statutory declaration, or rules developed by the courts and followed under the doctrine of stare decisis, are in excess of jurisdiction . . . .” (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 291 [109 P.2d 942, 132 A.L.R. 715]; In re Berry, supra, 68 Cal.2d at p. 147.) The position of the majority, as I understand it, is that a court has no jurisdiction to make an order declaring the terms of a stipulated settlement even though both parties, acting through their attorneys in a written stipulation, ask the court to do so. “Parties may stipulate to entry of judgment or to the content of the judgment.” (1 Witkin, Cal. Procedure (4th ed. 1996) Attorneys, § 302, p. 372.) “A party to an action may allow judgment to be rendered against him without opposition by express consent or stipulation to entry of a particular judgment in a pending action, before or during trial.” (6 Witkin, Cal. Procedure (4th ed. 1997) Proceedings Without Trial, § 92, p. 495.) There is a rebuttable presumption that an attorney has authority to settle a case on behalf of his or her client. (Ford v. State of California (1981) 116 Cal.App.3d 507, 517 [172 Cal.Rptr. 162], disapproved on another ground in Duran v. Duran (1983) 150 Cal.App.3d 176 [197 Cal.Rptr. 497]; see also Gagnon Co., Inc. v. Nevada Desert Inn (1955) 45 Cal.2d 448, 459-461 [289 P.2d 466].) In short, the court has jurisdiction to enter a stipulated judgment, and such a judgment is not void.

Our 1997 opinion dismissing the appeal of petitioners herein, likewise never concluded petitioners could not defend on the basis of lack of authorization. Rather, it specifically addressed an appeal from denial of a “Motion for Order To Set Matter for Jury Trial” regarding the judgment which was an effort to obtain a jury trial on a final judgment. We stated then: “We wish to emphasize that the record contains no motion by any party seeking any ruling as to what defense or defenses the appellants could assert in any contempt trial. Judge Kane’s March 4 order denying appellants’ ‘Motion for Order to Set Matter for Jury Trial’ simply denied appellants’ motion for a jury trial in the already-concluded civil action and stated his reasons for denying that motion. As Judge Kane stated at the hearing, ‘That’s what I understand is the only motion before me.’ We wish to further emphasize that we express no opinion here as to what defense or defenses appellants may or may not assert in any contempt trial.” (City of Mendota v. Davidson, supra, F025807.) Thus we made the issue unmistakably clear that the proper focus regarding authorization was as a defense to a contempt action. This is that contempt action. Where is the defense?

*539Petitioners Have Chosen Not to Litigate the Authority Issue

The majority’s assertion that Mr. Davidson and Mr. Warkentine have made “efforts to have an evidentiary hearing” on the issue of whether they authorized Attorney Lempel to settle the case in 1987, and that these efforts “have been thwarted at every turn” is simply not supported by the record. (Maj. opn., ante, at p. 518.) Mr. Davidson and Mr. Warkentine have avoided litigating this issue, all the while attempting to avoid compliance with the stipulated order by litigating other issues. This case is before us on petition for writ of habeas corpus after the superior court found Mr. Davidson and Mr. Warkentine in contempt of court for violating the 1987 stipulated order. At their contempt hearing, neither Mr. Davidson nor Mr. Warkentine testified or presented any other evidence that they had not authorized Attorney Lempel to enter into the 1987 stipulation. Their defense was that the stipulated order was invalid and void because they had not personally signed it. Similarly, when they moved to vacate the stipulated order in 1992, they contended that the stipulated order should be set aside because Attorney Lempel had a conflict of interest that had compromised his representation of them. This issue was litigated, and Mr. Davidson and Mr. Warkentine lost. They appealed that ruling to this court, and lost again. On that appeal they successfully argued that the 1987 stipulated order had all the attributes of a final judgment. They also argued, and we agreed, whether rightly or wrongly, that the denial of their motion to vacate was an appealable post-judgment order. But they failed to demonstrate any error in the superior court’s denial of the motion to vacate the stipulated order. When they later filed a “Motion for Order to Set Matter for Jury Trial,” they were requesting a trial in a case that they already admitted had ended in 1987 with the stipulated order. Not surprisingly, that motion was denied. Then later this contempt hearing took place, and Mr. Davidson and Mr. Warkentine still avoided the authority issue that they have had many years and ample opportunity to raise.

I say again, section 664.6 does not apply in this case. While I would agree that when a judgment has been entered without authority that may be a defense to a contempt for failure to abide by the judgment, that is not the case here and it never has been. The majority’s expressions of concern about lawyers acting without authority if section 664.6 is not made to apply to a judgment might strike more of a sympathetic chord with me if petitioners ever produced evidence there was no authority. Petitioners would place the burden of proof as to authority upon the respondent herein and the majority would place that burden upon the respondent. If they have the defense of lack of authorization then the burden is on petitioners to show there was no *540authority. Clearly they have never been denied that opportunity and they should hang their heads when they claim here to be aggrieved.

I would affirm the judgment of contempt.

A petition for a rehearing was denied March 23, 1999, and the petition of real party in interest for review by the Supreme Court was denied May 19, 1999. Werdegar, J., was of the opinion that the petition should be granted.

All further statutory references are to the Code of Civil Procedure unless otherwise stated.

“First, we note that nothing in section 664.6 says that parties to litigation cannot stipulate to a settlement of a case and stipulate that the terms of the written settlement be entered as an order or judgment of the court. The purpose of section 664.6 appears to be to enable a party who has stipulated to a settlement of the case (in writing or orally before the court), but who does not have a judgment reflecting such a stipulation, to obtain such a judgment so that the terms of the settlement can be enforced in the event that the other party refuses to abide by the terms of the stipulation. When a stipulated judgment already exists, section 664.6 simply is not needed.” (City of Mendota v. Davidson, supra, F017841 [nonpub. opn.].)