Opinion
WISEMAN, J. J.Murphy’s Law states that if anything can go wrong, it will. Petitioners Elbert Ernest Davidson and Edward Warkentine have had more than a taste of Murphy’s Law in this case, which sports a complex and jumbled procedural history spanning over 10 years. Briefly stated, the petitioners run a junkyard establishment on their property. The City of Mendota filed a lawsuit to make them clean it up. A purported settlement was reached which was signed by petitioners’ then attorney and the City of Mendota’s attorney, but not by the petitioners. It was presented ex parte to a judge, who signed a judgment confirming the settlement.
Later, when there were compliance problems followed by contempt allegations, petitioners claimed, among other things, that their attorney (who coincidentally by this time was now the city attorney for the City of Mendota) never had authority to bind them to the settlement agreement. They also complained their attorney had fraudulently concealed a conflict of interest which they had not waived.
[517]Matters looked like they might come to a head on April 7, 1992, which was the date set for the contempt action and a motion to rescind the judgment. Unfortunately, the trial court was short of time and the contempt action and motion to rescind ended up being separated for hearing without any resolution of the authority issue. To make a long story short, the trial court later denied the petitioners’ rescission motion; this ruling went up on appeal, and that is when petitioners’ legal troubles really began.
On appeal, we affirmed the trial court’s decision to deny the rescission motion, in effect finding no fraud, and the case went back to the trial court. In doing so, we noted that an authorized signature of an attorney can bind that attorney’s client to a written settlement agreement.
Another contempt proceeding went forward but a finding of contempt was ultimately vacated because notice was not given to the petitioners’ attorney. In an effort to get someone to decide the authority issue, the petitioners filed a “Motion for Order to Set Matter for Jury Trial.” This motion was denied because of “the staleness of the claim” and because petitioners were barred from raising the claim that Levy v. Superior Court (1995) 10 Cal.4th 578 [41 Cal.Rptr.2d 878, 896 P.2d 171], applied. Once again, petitioners filed an appeal to this court, which was dismissed as “an attempt to appeal a nonappealable order.” There was still no resolution of the authority issue.
Time marched on. The City of Mendota again initiated contempt proceedings. This time petitioners were found in contempt and sentenced to five days in jail. The trial court cannot be faulted for this decision in light of our two prior opinions which had soundly rejected all of petitioners’ affirmative defenses, and dutifully applied the law of the case doctrine. Petitioners filed a petition for writ of habeas corpus, and requested a stay. We directed an order to show cause issue, and stayed the contempt order.
Recently, our Supreme Court in Levy v. Superior Court, supra, 10 Cal.4th 578, examined Code of Civil Procedure section 664.6 (section 664.6), and held that under its summary procedures, a written settlement agreement is not enforceable unless it is signed personally by the litigant. (10 Cal.4th at p. 580.) Thus, consistent with Levy, we hold the judgment obtained by the City of Mendota behind the purported settlement agreement is void for purposes of enforcement in contempt proceedings premised on its violation. The purported settlement agreement in this case was never signed by the petitioners — only by their attorney. As a result, there was no summary mechanism available to the City of Mendota to enable them to obtain an enforceable judgment in the absence of compliance with section 664.6. Our conclusion is not changed by the fact there was no motion made to enforce [518]settlement pursuant to section 664.6. We recognize there are other more cumbersome methods to enforce the settlement — motions for summary judgment, separate suits in equity and amendments to the pleadings — but none of these procedural mechanisms were used either.
Not only is the judgment void, but it is also questionable whether there is even a valid settlement agreement. Regrettably, to this day, petitioners have never been able to obtain a factual resolution of the claim that their then attorney lacked authority to bind them to the settlement agreement. The petitioners’ efforts to have an evidentiary hearing on this subject have been thwarted at every turn.
Whatever the outcome of such a hearing might have been is not before us. The bottom line: the contempt order issued against the petitioners is invalid since it is not premised on a valid judgment. The judgment of contempt is annulled, and a permanent writ of mandate shall issue to vacate the void order.
Procedural History
In 1982 the City of Mendota (the City) filed a civil action against petitioners Elbert Ernest Davidson and Edward Warkentine. The action sought to obtain an injunction prohibiting Davidson and Warkentine from operating “a junkyard or vehicle dismantling establishment” on four parcels of property that had been zoned to permit single-family dwellings. The action purportedly settled in 1987 with a “Stipulation for Settlement and Entry of Order.” This document was signed by the attorney for the City (Stephen E. Carroll) and by the then attorney for petitioners (J. Stephen Lempel), but not by the parties themselves. It was presented ex parte by the City for a judge’s signature and became a judgment or order (the 1987 stipulated order). Under the terms of the 1987 stipulated order, petitioners agreed to stop their junkyard activities. According to the City, petitioners did not comply with the 1987 stipulated order.
In the meantime, in October of 1988, Lempel became the city attorney for the City of Mendota. The City initiated contempt proceedings against petitioners in late 1991. Petitioners countered by moving in 1992 to vacate the 1987 stipulated order. Initially, they argued the stipulation should be rescinded because at the time of its entry, their attorney had a conflict of interest which had not been waived by either petitioner. Additionally, they alleged this lack of disclosure constituted a form of extrinsic fraud. Petitioners supplemented these contentions with an argument that since the stipulation was not signed by the parties nor approved in open court, it was not [519]binding. As a separate ground, petitioners sought a hearing on whether Lempel had authority to enter into the stipulation on their behalf.
Both the contempt action and the rescission motion were set for hearing on April 7, 1992. At the hearing the City argued that this was simply a case of “buyer’s remorse,” i.e., petitioners had, in fact, agreed to the stipulation but later changed their minds. Petitioners’ counsel, E. Robert Wright, countered, however, that the question of Lempel’s authority had yet to be tried: “First, Your Honor, what’s been overlooked is Mr. Davidson, in his deposition, testified [un]equivocally that Mr. Lempel never asked him for authority to sign a stipulation on his behalf, and that Mr. Davidson did not agree to it, and that it was his understanding that before there could be any settlement, he would have to sign something. . . . It’s absolutely unequivocal. We attached a declaration of Mr. Warkentine in which he testified to the same effect. So we have testimony from the defendants before the Court that they simply did not agree to it;.....”
The issue of authority was deferred, however, because the court did not have time to take testimony at the April 7, 1992, hearing; there was a pending motion to compel; and to avoid unnecessarily having to deal with the attomey/client privilege problems, which were very delicate because Lempel was now employed by the City and a trial on the underlying lawsuit was a future possibility.
The City agreed that the matter regarding authority should be continued to the order to show cause re contempt proceeding (OSC hearing) when the motion to compel could also be heard:
“[I]t really is the handicap I am working under with regard to Mr. Lempel’s testimony, I have only been able, through one reference in his deposition transcript, to show that he was — that he believed he was authorized, he believed, to enter into the stipulation. Throughout, I have been blocked by the attomey/client privilege. I brought a motion to compel. The judge that heard that assumed this testimony would come out at the OSC re contempt.
“I have nothing to cite to you with regard to Mr. Lempel’s version of how this settlement came about, because every discussion between him and his clients was blocked by Mr. Wright.
“Under the circumstances, if this Court plans on addressing the issue of authority, at the very least, I believe it should be deferred until the OSC re contempt is heard so that that testimony can be brought out. And I will [520]represent to the Court that I will call Mr. Lempel first. And if his testimony does not satisfy the Court, at that point, we won’t have added any more time than having Mr. Lempel take the stand and be examined, assuming I can get into that point.”
Counsel for petitioners noted that the motion to compel had been put “over for the judge hearing this matter.” The court set April 13, 1992, for its ruling on petitioners’ rescission motion, and noted the OSC hearing, if necessary, would be set for a later date. Lempel, who was present at the April 7 hearing, asked whether he would need to return to testify on April 13. The court stated: “Not in that proceeding. I guess in the contempt, which would be a later date. If it is determined that you are needed, I will have to — we will reset it for everything that one day.”
The petitioners’ problems began when their rescission motion was denied. They filed a petition for writ of mandate and requested a stay of the pending OSC hearing, and subsequently filed an appeal to this court. We consolidated the writ petition and appeal, stayed further proceedings, and subsequently affirmed the denial of the motion in an unpublished opinion filed in February 1994. (See City of Mendota v. Davidson (Feb. 28, 1994) F017841, F017770 (the first appeal).) We expressly refused to consider Lempel’s authority to sign the stipulation on behalf of petitioners because “the question of whether Lempel was acting with or without the authority of the clients was not before the court.” In retrospect, given the fact the OSC hearing, including the issue of Lempel’s authority, was still pending for trial, the first appeal should have been dismissed as premature.
In 1995, the City once again initiated contempt proceedings for alleged noncompliance by petitioners with the 1987 stipulated order. As a result, in June of 1995, the trial court ordered Davidson and Warkentine to appear and show cause why they should not be held in contempt of the 1987 stipulated order. Davidson and Warkentine were each personally served with the “Order to Show Cause Re Contempt” and appeared without counsel at the contempt hearing. After the hearing, Judge O’Neill issued an August 28, 1995, “Order After Contempt Hearing” in which he found petitioners in contempt of the 1987 stipulated order. He sentenced them to five days in jail, but stayed imposition of the sentence until 5:00 p.m. on September 21, 1995. He further ordered that if petitioners belatedly complied with the requirements of the 1987 stipulated order by 5:00 p.m. on September 21, their jail sentences would be suspended.
On September 21, petitioners, through counsel, sought an ex parte order vacating the contempt order. The thrust of their attack was that even though [521]each had been personally served with the order to show cause, their attorneys of record (Thomas, Snell et al.) had not been served and were unaware of the OSC hearing. The court later determined, in March of 1996, that the City had not given notice to petitioners’ counsel in June 1995 of the OSC hearing, and the appropriate remedy was to vacate the August 28 “Order After Contempt Hearing” and to begin anew. The court set the new contempt hearing for April 24, 1996.
Meanwhile, petitioners, represented by Wright, filed a “Motion for Order To Set Matter For Jury Trial” on February 26, 1996, in an attempt to try the issue of Lempel’s authority to stipulate to the settlement of their case. As accurately set forth in Wright’s declaration in support of the motion, trial of this issue had previously been put over due to the court’s schedule on April 7, 1992. The motion was heard by Judge Kane, and on March 4, 1996, he denied petitioners’ motion as follows:
“1. Defendants’ Motion for Order to Set Matter for Jury Trial is hereby denied.
“2. Because of the staleness of the claim, Defendants are barred from raising the issue of Defendants’ former attorney, Steven Lempel, having authority to enter into the December 14, 19[87] Stipulation for Settlement and Entry of Order.
“3. Likewise, because of the staleness of the claim, Defendants are barred from raising the claim that Levy v. Superior Court (1995) 10 Cal.4th 578 [41 Cal.Rptr.2d 878, 896 P.2d 171], applies to this case.” (Italics added.)
Shortly afterward, petitioners filed a notice of appeal from Judge Kane’s March 4, 1996, order denying their “Motion For Order To Set Matter For Jury Trial.” We dismissed the second appeal on November 3, 1997, as an attempt to appeal a nonappealable order. We gave the issue of authority short shrift, stating, “they [petitioners] requested a jury trial on the purported ‘issue’ of whether their 1987 counsel had had authority to enter into the 1987 stipulation with the City. We are aware of no authority which permits a party to request a trial years after a final judgment has been entered, and then appeal from an order denying the motion requesting a trial.” (City of Mendota v. Davidson (Nov. 3, 1997) F025807 [nonpub. opn.] (the second appeal).) The April 24, 1996, trial date for the contempt was vacated.
Events Postdismissal of the Second Appeal
The remittitur issued on January 5, 1998, and on April 10, 1998, the City filed another order to show cause re contempt. After a hearing, Judge Gary [522]D. Hoff found petitioners in contempt of the 1987 stipulated order. On June 9, 1998, they were sentenced to five days in county jail. This sentence was ordered stayed until July 24, 1998, at 5:00 p.m. If, prior to July 24, the petitioners complied with the 1987 stipulated order, as determined by the City, the sentence would be suspended. If petitioners failed to comply, the City was authorized to enter petitioners’ properties, clean them up, and obtain a lien for the cleanup.
On July 7, 1998, Davidson and Warkentine filed this petition for writ of habeas corpus, and requested a stay. On July 16, 1998, we directed that an order to show cause issue regarding why petitioners were not entitled to relief, and that the contempt order be stayed.
Discussion
Petitioners correctly contend the 1987 stipulated order is void, and thus, the failure to comply cannot result in a valid contempt order. We begin by observing that this case is complicated by its convoluted procedural history and a clarification of the law made by our California Supreme Court.
A. The law of contempt
The law of contempt was summarized in People v. Gonzalez (1996) 12 Cal.4th 804, 816 [50 Cal.Rptr.2d 74, 910 P.2d 1366], as follows: “Contempt of a valid order of a court may be punished in two ways. First, an order to show cause regarding an alleged act of contempt may issue in the court that made the order that was violated, commencing a separate action in the ordering court. Upon a finding of contempt, the contemner may be punished with up to five days in jail and a fine. [Citations.] Because of the potential punishment, this type of proceeding is considered quasi-criminal, and the defendant possesses some of the rights of a criminal defendant. [Citations.] The contemner possesses no right of appeal, however, and review of the contempt judgment is by extraordinary writ. [Citations.]” It is axiomatic that “[a]n 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]; People v. Gonzalez, supra, 12 Cal.4th at p. 816.)
A contempt judgment is not appealable (Code Civ. Proc., §§ 904.1, subd. (a)(1), 1222) and must be reviewed, if at all, by writ. (Bermudez v. Municipal Court (1992) 1 Cal.4th 855, 861, fn. 5 [4 Cal.Rptr.2d 609, 823 P.2d 1210].) Petitioners here seek a writ of habeas corpus or in the alternative a writ of certiorari. “Either remedy is properly invoked.” (In re Buckley (1973) 10 Cal.3d 237, 240, fn. 1 [110 Cal.Rptr. 121, 514 P.2d 1201, 68 A.L.R.2d 248].)
[523]B. Validity of the 1987 stipulated order
Petitioners contend the 1987 stipulated order is void under section 664.6 and Levy v. Superior Court, supra, 10 Cal.4th 578. Based on this underlying premise, petitioners argue the contempt order must be set aside or vacated.
(1) The unraveling of the first appeal
Petitioners first raised the applicability of section 664.6 in the “supplemental reply” of their motion to rescind the stipulated settlement and order in 1992. A hearing on the motion was held on April 7, 1992. As we noted in the first appeal:
“At the April 7 hearing, counsel for Davidson and Warkentine argued that the lack of personal signatures of Davidson and Warkentine was a sufficient basis upon which to rescind the stipulation and order. Counsel for the city called the court’s attention to this court’s decision in Haldeman v. Boise Cascade (1985) 176 Cal.App.3d 230 [221 Cal.Rptr. 412], in which we pointed out that an authorized signature of an attorney can bind that attorney’s client to a written settlement agreement, and that such a document can constitute a written stipulation of the parties for settlement within the meaning of Code of Civil Procedure section 664.6.2 The parties also argued the issue of the alleged conflict of interest. Six days later the court announced its decision denying the motion to rescind. The court stated:
“ ‘All right. The Court’s ruling with regard to this motion to rescind or to set aside the stipulation, the court finds there was not any fraud in the — any intrinsic fraud. The court finds that the [Haldeman] case does apply and that the signature of the attorney binds the parties or clients. Therefore the motion is denied.’ ”
We affirmed the trial court’s ruling, stating:
“Even if we assume that section 664.6 applies, as appellants contend, we are not of the view that the words ‘[i]f parties to pending litigation stipulate, [524]in writing ... for settlement’ require that the ‘writing’ must be personally signed by the client.
“We decided this precise issue in Haldeman v. Boise Cascade (1985) 176 Cal.App.3d 230 [221 Cal.Rptr. 412], where we stated, with reference to the word ‘parties’ in section 664.6: ‘Common sense and common practice indicate that the term “party” should include the individual litigant or his attorney of record acting on his behalf. ... In enacting section 664.6, had the Legislature intended “parties” to have a meaning other than this commonly understood meaning, it could and would have provided so in the statute.’ (Haldeman v. Boise Cascade, supra, 176 Cal.App.3d at pp. 233-234.)”
After discussing several cases that petitioners contended were in conflict with our Haldeman opinion (Haldeman v. Boise Cascade (1985) 176 Cal.App.3d 230 [221 Cal.Rptr. 412]), we concluded in the first appeal that to the extent they were in conflict, “we reaffirm our holding in Haldeman for the reasons stated therein.” We also noted the issue was then before the California Supreme Court in Levy. According to petitioners, they filed a petition for review in the California Supreme Court but review was denied.
In Levy, the court disapproved our Haldeman holding. (Levy v. Superior Court, supra, 10 Cal.4th at p. 586, fn. 4.)
“In this case, the agreement to settle was signed only by the attorneys for the litigants, rather than the parties themselves. Because the settlement of a lawsuit is a decision to end the litigation, it obviously implicates a substantial right of the litigants themselves. Given this circumstance and section 664.6’s focus on settlements, we conclude that in providing for an enforcement mechanism for settlements by ‘parties,’ the Legislature intended the term to literally mean the litigants personally. This conclusion is also supported by the circumstances preceding and surrounding the enactment of section 664.6.
“Section 664.6 was enacted in 1981. (Stats. 1981, ch. 904, § 2, p. 3437.) As this court noted recently in In re Marriage of Assemi (1994) 7 Cal.4th 896, 904-905 . . . , prior to 1981 the Courts of Appeal had expressed conflicting views concerning the proper procedures to enforce settlement agreements in pending litigation.
“Under one line of authority, settlement agreements preceding the enactment of section 664.6 in 1981 could be enforced only by a motion for summary judgment, a separate suit in equity, or an amendment to the [525]pleadings. This became the dominant view. [Citations.] It was based on the theory that nonstatutory motions to enforce settlements were motions based on facts outside the pleadings and, under this court’s decisions [citations], had to be treated as motions for summary judgment that could be granted only if all of the papers submitted showed there was no triable issue of fact. [Citations.]
“A second line of authority permitted motions to enforce settlements based on facts outside the pleadings if the fact of settlement and the terms of the settlement were not subject to reasonable dispute. [Citations.] The theory underlying this approach was that the statutory means of enforcing settlements by motions for summary judgment, separate suits in equity, or amendments to pleadings were inadequate, and that a court therefore must have authority to enforce settlements as a means of controlling proceedings before the court and protecting the interests of the parties. [Citation.]
“The conflict was resolved in 1981 when the Legislature enacted section 664.6, which created a summary, expedited procedure to enforce settlement agreements when certain requirements that decrease the likelihood of misunderstandings are met. . . .” (Levy v. Superior Court, supra, 10 Cal.4th at pp. 584-585, fns. omitted.)
The court went on to conclude that the term “parties” as used in section 664.6 means the litigants themselves, and does not include their attorneys of record. (Levy v. Superior Court, supra, 10 Cal.4th at p. 586.) The effect of Levy is to completely undermine the reasoning we relied upon in denying petitioners relief in the first appeal. As a result, the only remaining question is whether petitioners should receive relief now.
(2) The statement of decision
The trial court concluded petitioners were not entitled to relief. As relevant to this appeal, the court made the following factual findings and legal conclusions: (1) no motion was ever filed pursuant to section 664.6 to convert the settlement into a judgment; (2) the 1987 stipulated order is valid even absent the petitioners’ signatures or on record consent because the judgment was entered without the benefit of section 664.6; (3) Levy v. Superior Court, supra, 10 Cal.4th 578 is procedurally distinguishable and does not affect this case because here no party sought to enter the stipulation as an order under section 664.6, but instead, the order was issued without a motion directly to the court; (4) Levy does not apply because the authority for the 1987 stipulated order was the agreement of the parties as set forth in clause 6 of the stipulation; and (5) since the Court of Appeal had already [526]rejected similar attacks on the validity of the 1987 stipulated order, its validity was law of the case. ■
Specifically, with regard to application of the law of the case, the court once again rejected petitioners’ claim that Lempel was not authorized to enter into the stipulated settlement. Petitioners noted in their opposition to the OSC hearing that “Lempel signed the December 16, 1987 Order without first consulting with his clients.” Counsel for petitioners argued at the hearing that “We have a lawyer, without authority, signing a settlement agreement that fundamentally affects the interests of my clients.” The court rejected this issue as follows: “This Court has already considered the issue of whether the December 16th, 19[8]7, order was invalid due to the fact that it was based upon a stipulation that had not been agreed to or signed by the defendants. That issue was raised and rejected by the Court’s ruling and the order of the Court on March 4th, 1996 [by Judge Kane]. The defendants also lost that argument when their appeal of the March 4th, 1996, order was dismissed by the appellate court.” (Italics added.) ,
(3) Levy is not distinguishable
The first ground relied upon by the trial court is twofold: (1) the facts of this case and those of Levy are distinguishable; and (2) since section 664.6 was not used, its requirements do not come into play. Although we relied on this reasoning in the first appeal, neither of these conclusions can withstand scrutiny in light of Levy. The trial court can hardly be faulted, however, because in dictum in the first appeal, we stated: “Whatever the Supreme Court may decide, however, we do not think that it would make any difference in the present case. This is because, as we have explained, respondent city never utilized section 664.6 to obtain'the stipulated judgment in the first place.”
In the first appeal we explained: “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. It has long been the rule that parties to litigation can stipulate, through a written agreement signed by their attorneys, to settle the case, to include in their agreement a provision that the terms of the settlement be entered as a judgment, and to obtain such a judgment by stipulation.” (Italics added.)
[527]We then relied upon Pacific Tel. & Tel. Co. v. Fink (1956) 141 Cal.App.2d 332 [296 P.2d 843] to support this premise. As already noted, however, Levy disagreed with our interpretation of section 664.6. As Levy made clear, in 1981 the Legislature resolved the conflict among the courts concerning the proper procedures to enforce settlement agreements in pending litigation when it enacted section 664.6. As of 1981, the only “summary, expedited procedure to enforce settlement agreements when certain requirements that decrease the likelihood of misunderstandings are met. . .” is section 664.6. (Levy v. Superior Court, supra, 10 Cal.4th at p. 585.) The other, more formal and cumbersome statutory means of enforcing settlements by motions for summary judgment, separate suits in equity, and amendments to the pleadr ings remained available. (Id. at p. 586, fn. 5.) Fink, which was decided in 1956, obviously had no bearing on the later enacted section 664.6, as interpreted by Levy.
Further, Fink did not even involve a stipulation for settlement of the case. It clearly is not authority for the position that a stipulation to settle a matter signed by the attorneys may become a binding judgment on the parties simply by having it signed by a judge, absent a summary judgment motion, suit in equity, amendment of the pleadings, or compliance with section 664.6.
In Fink, the stipulation entered by counsel did not settle the underlying dispute. To the contrary, the matter was to be fully litigated before the Public Utilities Commission (PUC). The stipulation would not even become a judgment unless the defendants failed to obtain the relief they were seeking from the PUC. (Pacific Tel. & Tel. Co. v. Fink, supra, 141 Cal.App.2d at pp. 333-334.) This was the reason the court held the attorneys had implied authority to enter the stipulation:
“Upon the authority of Gilmore v. American Central Ins. Co., 67 Cal. 366, 367 [7 P. 781], and Stone v. Bank of Commerce, 174 U.S. 412 [19 S.Ct. 747, 43 L.Ed. 1028], it would seem to be the rule that where two actions, each pending, involve the same disputed issue raised between the same adverse parties represented, respectively, by the same attorneys in each proceeding, the attorneys of record have apparent or implied authority to enter into a stipulation that disposition of the issue in one proceeding shall be determinative in the other. As stated by respondent, ‘In the instant action, Appellants herein asserted a counterclaim for damages based upon the allegedly wrongful refusal of the Respondent to accept for advertising in the “Yellow Pages” of the Classified Telephone Directory certain listings desired by Appellants. This very issue was the subject matter of the judicial administrative proceeding instituted by the Appellants herein against the Respondent before the Public Utilities Commission of the State of California.
[528]“ ‘The parties were identically aligned and were represented, respectively, by the same counsel in both proceedings.’ ” (Pacific Tel. & Tel. Co. v. Fink, supra, 141 Cal.App.2d at p. 339.)
Second, the issue in Fink was whether the stipulation entered into by counsel was authorized, not whether a proper procedure was used to enter it as a judgment. (Pacific Tel. & Tel. Co. v. Fink, supra, 141 Cal.App.2d at p. 335.) Obviously, “. . . an opinion is not authority for a proposition not therein considered.” (Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2 [39 Cal.Rptr. 377, 393 P.2d 689].) Finally, unlike in Fink, here the factual question of whether Lempel had authority to settle the matter has never been decided.
In short, Fink is not authority for the proposition that a purported settlement signed only by counsel for the parties may be transformed into a binding judgment on the parties based simply on a judge’s signature obtained in an ex parte, unreported proceeding.
For the same reason, the fact that in Levy the section 664.6 procedure was used, while it was bypassed here, makes no difference. Section 664.6 was the only summary, expedited procedure available when the 1987 stipulated order was entered, and there was no basis for bypassing this statutory procedure. (Accord, Robertson v. Chen (1996) 44 Cal.App.4th 1290, 1293 [52 Cal.Rptr.2d 264] [except for section 664.6, “[T]he only other summary procedure available [is] summary judgment”].) The trial court’s reasoning that the stipulation itself provided the procedure to be used,1 begs the question: If a stipulated settlement cannot be validly enforced absent the signatures of the litigants, a summary judgment motion, a suit in equity or an amendment to the pleadings, how can a clause within such a settlement stipulation be enforceable? The answer, we believe, is that it cannot. Without the protections provided in section 664.6, under Levy, a written stipulated settlement not signed by the parties cannot be made self-executing and enforceable as a judgment. To do so would, as petitioners contend, nullify section 664.6 and its protections. Consequently, the 1987 stipulated order was void and unenforceable under Levy because it could not be entered as a judgment absent compliance with section 664.6 or the other established statutory means for enforcing settlements. (Accord, Robertson v. Chen, supra, 44 Cal.App.4th at p. 1293.)
Our colleague contends that we have “revoked the law of agency” with respect to settlement agreements. (Dis. opn., post, at p. 537.) In our view, [529]however, the Supreme Court in Levy did not take issue with the law of agency, but rather, stated sound policy reasons for the enactment of section 664.6: “Thus the statute requires the ‘parties’ to stipulate in writing or orally before the court that they have settled the case. The litigants’ direct participation tends to ensure that the settlement is the result of their mature reflection and deliberate assent. This protects the parties against hasty and improvident settlement agreements by impressing upon them the seriousness and finality of the decision to settle, and minimizes the possibility of conflicting interpretations of the settlement. [Citations.] It also protects parties from impairment of their substantial rights without their knowledge and consent. (See Blanton v. Womancare, Inc. [(1985)] 38 Cal.3d [396,] 404.)” (Levy v. Superior Court, supra, 10 Cal.4th at p. 585, fn. omitted.)
(4) Void orders and contempt
This brings us back to the underlying principle that “[a]n order of contempt cannot stand if the underlying order is invalid.” (In re Misener, supra, 38 Cal.3d at p. 558.) As stated in People v. Gonzalez, supra, 12 Cal.4th at page 817: “The rule is well settled in California that a void order cannot be the basis for a valid contempt judgment. We established in In re Berry (1968) 68 Cal.2d 137, 147 . . . , a case involving a misdemeanor contempt prosecution, that ‘the violation of an order in excess of the jurisdiction of the issuing court cannot produce a valid judgment of contempt [citations], and that the “jurisdiction” in question extends beyond mere subject matter or personal jurisdiction . . . .’ Rather, ‘ “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.” ’- {Ibid.)”
Based on Levy, 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. Thus, it is void and cannot be the basis of a valid contempt order. We take no position on whether the stipulated settlement agreement is valid, binding, or legally enforceable. (See Williams v. Saunders (1997) 55 Cal.App.4th 1158, 1163-1164 [64 Cal.Rptr.2d 571]; Robertson v. Chen, supra, 44 Cal.App.4th at p. 1293.) We only hold the present judgment, i.e., the 1987 stipulated order, which was obtained in an unauthorized manner, is void for purposes of enforcement in contempt proceedings premised on its violation.2
[530](5) Law of the case
The question arises, however, whether the doctrine of law of the case bars petitioners from the remedy they seek because we have previously ruled the 1987 stipulated order was valid, even though under subsequently disapproved reasoning. In other words, petitioners have previously sought to have the 1987 stipulated order vacated on the ground now asserted — that it was invalid under section 664.6. The answer is that the intervening change in the law from Haldeman to Levy is reason to ignore the doctrine because it is simply a procedural rule. (Riemer v. Hart (1977) 73 Cal.App.3d 293, 296 [142 Cal.Rptr. 174].)
“Since at least 1930, the ‘modem view’ has been that the doctrine of the law of the case should not be adhered to when its application results in a manifestly unjust decision. [Citations.] ‘ “[W]here the controlling rules of law have been altered or clarified in the interval between the first and second appeal and adherence to the previous decision would result in defeating a just cause, it has been held that the court will not hesitate to reconsider its prior determination. [Citations.]” ’ ” (Building Industry Assn. v. City of Oceanside (1994) 27 Cal.App.4th 744, 759-760 [33 Cal.Rptr.2d 137].)
As stated in George Arakelian Farms, Inc. v. Agricultural Labor Relations Bd. (1989) 49 Cal.3d 1279, 1291 [265 Cal.Rptr. 162, 783 P.2d 749]:
“. . . Like res judicata, the doctrine of the law of the case serves to promote finality of litigation by preventing a party from relitigating questions previously decided by a reviewing court. [Citation.]
“Nevertheless we have recognized that as a procedural mle the law of the case may operate harshly, and we have fashioned a number of exceptions to the doctrine when (1) there has been an intervening change in the law, or (2) the disputed issue was not presented of considered in the proceedings below, or (3) application of the doctrine would result in a manifest injustice. [Citation.]”
“The principal ground for ignoring the doctrine, however, is an intervening or contemporaneous change in the law . . . .” (Davies v. Krasna (1975) 14 Cal.3d 502, 507, fn. 5 [121 Cal.Rptr. 705, 535 P.2d 1161, 79 A.L.R.3d 807]; Riemer v. Hart, supra, 73 Cal.App.3d at p. 296.)
[531]This is precisely the situation we have here. Although we had previously held the 1987 stipulated order to be valid, under the clarification in the law effected by Levy, it is clear the 1987 stipulated order is invalid. Since the validity of the contempt finding is dependent on the viability of the 1987 stipulated order, the procedural doctrine of law of the case must bow to the substantive rights of petitioners, especially given the quasi-criminal nature of the matter. (See Salazar v. Eastin (1995) 9 Cal.4th 836, 859 [39 Cal.Rptr.2d 21, 890 P.2d 43] [the court justified “a departure from the law-of-the-case doctrine [because] an intervening change in the controlling rules of law” eliminated the legal basis for the injunction]; People v. Gonzalez, supra, 12 Cal.4th at pp. 816-817 [a contempt order cannot stand if the underlying order is invalid].)
For these reasons, a writ vacating the order finding petitioners in contempt shall issue.
Disposition
The judgment of contempt and accompanying orders are annulled and a permanent writ of mandate will issue directing the superior court to vacate the void 1987 stipulated order. (Oksner v. Superior Court (1964) 229 Cal.App.2d 672, 691 [40 Cal.Rptr. 621].)
Costs are awarded petitioners against real party in interest with respect to writ of certiorari and writ of mandate. (Oksner v. Superior Court, supra, 229 Cal.App.2d at pp. 690-691.)
Vartabedian, J., concurred.
In 1987 Code of Civil Procedure section 664.6 stated: ‘If parties to pending 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.’ The section presently states: ‘If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally on the record before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.’ ”
Clause 6 provided: “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.”
Generally speaking, California, unlike other states which apply the “collateral bar” rule, does not require persons affected by injunctive orders to challenge them directly, and in the [530]meantime, to obey the order. As stated in People v. Gonzalez, supra, 12 Cal.4th at page 819: “California courts continue to reject the collateral bar rule adopted by other jurisdictions. Instead, they apply the rule that in the contempt proceeding, the contemner may, for the first time, collaterally challenge the validity of the order he or she is charged with violating. [Citations.]”