Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. C-649881
Kline, P.J.
INTRODUCTION
Plaintiff Adebowale O. Osijo appeals in propria persona from an order of the Alameda County Superior Court, denying his motion to set aside a judgment entered in 1991, enforcing a settlement agreement that was fully performed long ago. Appellant contends that the trial court erred in refusing to set aside the judgment enforcing the settlement and in refusing to nullify the settlement agreement. He argues that the judgment enforcing the settlement was a void order because the settlement agreement was not signed by the party defendants, but rather by their attorneys and, therefore, pursuant to Levy v. Superior Court (1995) 10 Cal.4th 578, 583 (Levy), the court was without jurisdiction to order enforcement via the summary enforcement procedure of Code of Civil Procedure section 664.6. We shall affirm the order denying the motion.
All statutory references are to the Code of Civil Procedure, unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
Numerous unpublished appellate opinions have discussed the facts underlying this case and subsequent actions filed by appellant. In 2006, the Fifth Appellate District summarized the various actions to that point as follows: “In 1988, plaintiff was working as a security guard at an apartment complex in Oakland. While on duty, he was shot multiple times by an assailant or assailants with semi-automatic rifles. Plaintiff sued the owners of the apartment complex and his employer, a security guard company. . . . The company was insolvent and uninsured, but the apartment complex owners, though also insolvent, had insurance. After a mediation held under the auspices of the Judicial Arbitration and Mediation Service (JAMS), the parties [sic executed a settlement agreement on July 25, 1991, under which plaintiff and his counsel received $250,000. In these proceedings, plaintiff was represented by [attorney Georgia Ann] Michell-Langsam. The insurer, Home Insurance of America (Home), was represented by a law firm called Larson and Burnham, now known as Burnham Brown.
Some of those cases include: Osijo v. Housing Resources Management, Inc. (Jul. 16, 1992, A055045) (First App. Dist); Osijo v. Ganong and Michell (Apr. 12, 1996, A068661) (First App. Dist); Osijo v. Ganong and Michell (Feb 2, 1998, A077882) (First App. Dist); Osijo v. United States of America, et al. (C.D.Cal. Mar. 5, 1999, No. CV 98-1880-CAS (BQR) 1999 WL 358686), affirmed by Osijo v. Weiner et al. (9th Cir. 2000) 232 F.3d 895; Osijo v. Home Insurance Company (Sept. 7, 2004, F042329, F043325) (Fifth App. Dist.); and Osijo v. Sevigny (Dec. 12, 2006, F049063) (Fifth App. Dist.).
The signatories to the settlement agreement were appellant and his attorney, the attorney for the insolvent and uninsured defendant security company Prostaff Security Services, the attorney for the insolvent defendant apartment owners and their insurance company, and the attorney for intervenor Department of Industrial Relations.
“On July 26, 1991, the day after he signed the settlement agreement, plaintiff became dissatisfied and informed Michell-Langsam that he wanted to withdraw from it. The owners of the apartment complex filed a motion to enforce the agreement. The [Alameda County Superior Court] heard plaintiff’s objections and granted the motion to enforce in spite of them. The Court of Appeal [this court in 1992, in Osijo v. Housing Resources Management, Inc., supra (A055045) [nonpub opn.]] affirmed, rejecting plaintiff’s principal claim that the agreement was unenforceable because the JAMS mediator was not a current member of the State Bar.” (Osijo v. Sevigny, supra, 2006 WL 361643 at p. *1.)
In affirming the order enforcing the judgment, we related that plaintiff “had special damages in the form of medical bills of about $40,000. He had lost wages for a nine-month period of about $20,000. He has some residual physical limitations—for instance, he cannot stand for prolonged periods. The nature of any other cognizable damages or future loss of income remained quite speculative. In fact, appellant’s income, in his new career as an accountant, is much greater now than it was at the time of his injury. Appellant wanted between $500,000 and $2.5 million to settle his case.” (Osijo v. Housing Resources Management, Inc., supra, (A055045), at p. 2.) We also observed that “[u]ltimately, the case settled for $250,000, which appears to be a quite generous and fair settlement to appellant considering the problems with his claims.” (Id. at p. 3.)
A $250,000 settlement check from Home was deposited into the client trust account of plaintiff’s counsel. Under the terms of the settlement, the settling defendants paid $250,000 to Osijo and his counsel. Michell-Langsam, however, took for herself 45 percent of the settlement proceeds, or $112,500, not the 40 percent or $100,000 authorized by the written agreement for any settlement. (Osijo v. Gagnon & Michell, supra (A077882) [nonpub.opn.], at p. 3.)
“In the succeeding years, plaintiff filed a series of lawsuits against Michell-Langsam, Burnham Brown, Home, and a variety of other parties. In the first of these, plaintiff recovered $12,500 against Michell-Langsam for withholding as fees more of the settlement proceeds than her retainer agreement permitted. There is no indication in the record that plaintiff recovered anything in any of the other cases. In a malicious prosecution action in Fresno County Superior Court (Michell v. Osijo (Super. Ct. Fresno County, 2004, No. 02 CE CG 00003)), Michell-Langsam obtained a judgment against plaintiff of more than $165,000 based on his actions in two previous cases.” (Osijo v. Sevigny, supra, 2006 WL 3616431, at p. *2.)
In the appeal Osijo v. Sevigny, supra, 2006 WL 3616431, the Fifth Appellate District rejected appellant’s claim that the order enforcing the settlement agreement was void because of an attorney conflict of interest and because the judgment was executed by means of a rubber-stamp replica of the judge’s signature rather than the actual signature. Appellant also argued that various judgments and orders of various courts were also void because they gave effect to or declined to invalidate the allegedly void settlement agreement and the judgment enforcing it. (Id. at pp.*2, *6.)
Thereafter, Michell-Langsam moved in the Fresno County Superior Court to declare plaintiff to be a vexatious litigant. (§ 391, subd. (b)(2).) In an order filed May 10, 2007, the superior court denied the motion, opining that a trio of cases, Levy, supra, 10 Cal.4th 578, Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299 (Harris), and Davidson v. Superior Court (1999) 70 Cal.App.4th 514 (Davidson), “suggest that the judgment enforcing the settlement agreement could be void.” The Fresno court determined that it was without jurisdiction to determine whether the judgment was void, but stated it would “not provide a roadblock to plaintiff’s efforts to set the judgment aside in a court of competent jurisdiction.”
In the order denying Michell-Langsam’s vexatious litigant motion, the Fresno court recognized that “[p]laintiff may be repeatedly relitigating an action he has lost.” However, the court opined that “it is possible that he should not have lost the original action.” The superior court referenced Levy, supra, 10 Cal.4th 578, holding that the term “parties” in section 664.6 meant that the litigants themselves, not merely their attorneys, must assent to the settlement agreement before it can be enforced under that section; Harris, supra, 74 Cal.App.4th 299, holding that the reference to “parties” meant, that pursuant to Levy, both the party trying to enforce the settlement agreement and the party against whom the settlement agreement was being enforced must have signed the agreement for it to be enforceable under the expedited procedure of section 664.6; and Davidson, supra, 70 Cal.App.4th 514, holding that a 1987 judgment confirming a settlement was in excess of the court’s jurisdiction and could not support a contempt order since the settlement was signed by the parties’ attorney, but not by the parties themselves.
On June 27, 2007, the Fresno County Superior Court denied Michell-Langsam’s motion to reconsider her vexatious litigant motion. We note the same court did declare plaintiff a vexatious litigant as to defendant Burnham Brown in an order filed June 12, 2007, at the same time it sustained Burnham Brown’s demurrer to a complaint filed by plaintiff against Burnham Brown, Michell-Langsam and others.
On May 18, 2007, plaintiff moved the Alameda County Superior Court to set aside the enforcement order and to nullify the settlement agreement, arguing that the 1991 judgment enforcing the settlement agreement was “void” pursuant to Levy, supra, 10 Cal.4th 578 and its progeny. The Alameda County Superior Court heard the motion on June 21, 2007 and denied it. As a preliminary matter, the Alameda court recognized that plaintiff had been declared a vexatious litigant, and that his name appears on the vexatious litigant list prepared and maintained by the Administrative Office of the Courts. However, because the case preceded the order declaring him a vexatious litigant, the matter was not new litigation requiring a prefiling order.Ruling on the motion to vacate the judgment, the court concluded that the “instant motion seems to be an untimely motion for reconsideration.” It denied the motion on the grounds that plaintiff had failed to explain why his request for relief was not a veiled motion for reconsideration and that he had failed to comply with the requirements of section 1008 for such motions. This timely appeal followed.
No respondent’s brief has been filed in this appeal. We have received letters from various persons served by appellant including: David J. Van Dam, purportedly served as counsel for Prostaff Security Services; Larson & Burnham, purportedly served as attorneys for defendants owners of the property; and California Insurance Guarantee Association (CIGA), purportedly for Home Insurance Company in Liquidation and for defendant Housing Resources Management, Inc. These persons and entities advised us that they do not now (and in some cases never have) represented parties to this action and would not be filing briefs.
Van Dam relates that neither he nor his current law firm represents Prostaff, that his firm never represented Prostaff, and that he last represented Prostaff in 1991 when the case was resolved through mediation. At the time Prostaff was uninsured, insolvent, had ceased to do business and has not been active since.
DISCUSSION
Appellant does not address the superior court’s determination that he had made an untimely motion for reconsideration (§ 1008.) Rather, he argues that the judgment enforcing the settlement agreement was void because the Alameda County Superior Court lacked subject matter jurisdiction to enforce it under the summary procedures of section 664.6, because defendants had not personally signed the agreement. He further contends that because the judgment enforcing the settlement agreement was void, he may attack it at any time, citing Davidson, supra, 70 Cal.App.4th 514. We disagree with his premise that the judgment was void for lack of subject matter jurisdiction and we find Davidson distinguishable.
A. Levy and Davidson
In Levy, supra, 10 Cal.4th 578, the court resolved a conflict among the districts when it held that a written settlement agreement is not enforceable under the section 664.6 summary procedures for enforcement of a settlement agreement, unless it is signed personally by the litigant. (Id. at p. 580.) The court did not find the settlement agreement itself was void or unenforceable, and expressly noted that alternative nonsummary means of enforcement, such as a motion for summary judgment, a separate suit in equity, or an amendment to the pleadings, may exist. (Id. at p. 586, fn. 5.) Levy upheld the trial court’s denial of the section 664.6 motion to enforce the settlement agreement, as plaintiff had refused to sign it. (Id. at pp. 580-581.) Levy has been held to apply retroactively. (Johnson v. Department of Corrections (1995) 38 Cal.App.4th 1700, 1709; Burckhard v. Del Monte Corp. (1996) 48 Cal.App.4th 1912, 1916-1917, fn. 4.)
In Davidson, supra, 70 Cal.App.4th 514, the City of Mendota filed a civil action seeking to prohibit the petitioners from operating a junkyard on their property. The parties purportedly reached a settlement requiring petitioners to stop their junkyard activities. A “Stipulation for Settlement and Entry of Order” was signed by the petitioners’ attorney and the city attorney, but not by the petitioners. It was presented ex parte to a judge, who signed a judgment confirming the settlement in 1987. (Id. at pp. 516, 518.) The petitioners later contended their attorney never had authority to bind them. (Id. at p. 516.) The city initiated contempt proceedings against petitioners in late 1991 for failing to comply with the stipulated settlement and petitioners moved to vacate the stipulated order, arguing, among other things that since it was not signed by them nor approved in open court, it was not binding. (Id. at pp. 516, 518-519.) The contempt proceeding and the motion to rescind were separated for hearing; the rescission motion was denied and the appellate court affirmed, noting that the authorized signature of an attorney could bind the client to a written settlement agreement. Thereafter, the petitioners sought to set the matter for jury trial to decide the issue whether their attorney had authority to bind them. This motion was denied and another appeal was dismissed as an attempt to appeal a nonappealable order. (Id. at p. 517.) The City of Mendota again initiated contempt proceedings. Petitioners were found in contempt and sentenced to five days in jail. Petitioners filed a petition for writ of habeas corpus, requesting a stay. The appellate court issued the order to show cause and stayed the contempt order.
Relying upon Levy, supra, 10 Cal.4th 578, the appellate court held “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.” (Davidson, supra, 70 Cal.App.4th at p. 517.) “The bottom line: the contempt order issued against the petitioners is invalid since it is not premised on a valid judgment.” (Id. at p. 518.) The court annulled the judgment of contempt and issued a permanent writ of mandate to vacate the void 1987 stipulated order. (Ibid.) The court identified “the underlying principle that ‘[a]n order of contempt cannot stand if the underlying order is invalid.’ (In re Misener [(1985)] 38 Cal.3d [543,] 558.)” (Davidson, at p. 529.) The court recognized well-settled California authority “ ‘that “the violation of an order in excess of 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.’ ” [Citation.]’ ” (Id. at p. 529.) The Davidson court took no position on whether the stipulated settlement agreement was valid or legally enforceable. (Ibid.) “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.” (Ibid., fn. omitted.) The court expressly noted that in California, courts “ ‘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.]’ ” (Id. at pp. 529-530, fn. 2.)
In reaching its determination, the Davidson court rejected the claim that law of the case applied to the claim that the petitioners’ then attorney was not authorized to enter into the stipulated settlement, recognizing that the intervening change in the law wrought by Levy was “reason to ignore the doctrine because it is simply a procedural rule. [Citation.]” (Davidson, supra, 70 Cal.App.4th at p. 530.) Davidson also relied on authority that “ ‘the doctrine of the law of the case should not be adhered to when its application results in a manifestly unjust decision. [Citations.]’ ” (Id. at p. 530.) Observing that because the 1987 stipulated order was invalid under Levy, and the viability of the contempt finding depended on the viability of that stipulated order, the court stated that “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. [Citations.]” (Id. at p. 531.)
“The doctrine of law of the case applies to later proceedings in the same case. [Citation.] The doctrines of res judicata and collateral estoppel apply to later litigation to give conclusive effect to a former judgment or an issue determined in a former proceeding. [Citation.]” (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 701-702.)
B. Finality
As related above, in 1992, we affirmed the order enforcing the settlement agreement in Osijo v. Housing Resources Management, Inc., supra, (A055045). The California Supreme Court denied plaintiff’s petition for review on September 30, 1992, and the remittitur issued on October 26, 1992. The case is final. Once the remittitur issues, the lower court cannot reopen the case on the facts, allow the filing of amended or supplemental pleadings, nor retry the case, even in the event of an intervening change in the law. (See Griset v. Fair Political Practices Com., supra, 25 Cal.4th at pp. 701-702.)
“A motion to vacate or set aside the judgment, if made after the statutory time has elapsed for direct attack by motion, or if made on grounds or procedure not authorized by statutes governing direct attack, is a collateral attack. [Citations.]” (8 Witkin, Cal. Procedure (4th ed. 1997) Attack on Judgment in Trial Court § 8, p. 516.)
A collateral attack on a judgment for an error committed in the exercise of the court’s jurisdiction is not permitted. (Aerojet-General Corp. v. American Excess Ins. Co. (2002) 97 Cal.App.4th 387, 398; 8 Witkin, Cal. Procedure (2007 supp.) Attack on Judgment in Trial Court, § 6, p. 189.) “Except in the case of extrinsic fraud, ‘[a] judgment on the merits that is not void on its face and [thus] subject to collateral attack is protected by the doctrine of res judicata after the time for ordinary direct attack has passed.’ ([8 Witkin, Cal. Procedure, supra, Attack on Judgment in Trial Court,§ 214,] at p. 718.)” (Aerojet-General Corp, at p. 398, fn. 3.)
Moreover, plaintiff is simply wrong when he asserts that the court acted without subject matter jurisdiction. Subject matter jurisdiction and personal jurisdiction are jurisdiction in the fundamental sense. (See 2 Witkin, Cal. Procedure (4th ed. 1996) Jurisdiction, § 323, pp. 899-900; id., § 328, pp. 908-909.) The court had the authority to hear the section 664.6 motion and to decide it. “In ruling upon [a section 664.6] motion, trial courts are empowered to resolve all underlying factual disputes and ‘ultimately determine whether the parties reached a binding mutual accord as to material terms.’ [Citations.]” (Haning et al., Cal. Practice Guide: Personal Injury (The Rutter Group 2007) ¶ 4:534.)
A judgment by a court lacking in jurisdiction of the subject matter is subject to collateral attack, as is a judgment by a court lacking jurisdiction of the person. (2 Witkin, Cal. Procedure, supra, Jurisdiction,§ 323, p. 899.) However, the question whether an act in excess of jurisdiction by a court that had both subject matter and personal jurisdiction is subject to collateral attack cannot be answered authoritatively, “for the cases are in conflict in their holdings, and the opinions have produced no clear statement of principles. This is partly due, perhaps, to the difficulty encountered in distinguishing total absence of jurisdiction from excess of jurisdiction, and also to the practical fact that some acts in excess of jurisdiction are more serious and objectionable than others.” (Ibid.)
As our Supreme Court explained in People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653: “The term ‘jurisdiction,’ ‘used continuously in a variety of situations, has so many different meanings that no single statement can be entirely satisfactory as a definition.’ (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 287 (Abelleira).) Essentially, jurisdictional errors are of two types. ‘Lack of jurisdiction in its most fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties.’ (Id. at p. 288.) When a court lacks jurisdiction in a fundamental sense, an ensuing judgment is void, and ‘thus vulnerable to direct or collateral attack at any time.’ (Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94, 119 (Barquis).)” (People v. American Contractors Indemnity Co., at p. 660.)
“However, ‘in its ordinary usage the phrase “lack of jurisdiction” is not limited to these fundamental situations.’ (Abelleira, supra, 17 Cal.2d at p. 288.) It may also ‘be applied to a case where, though the court has jurisdiction over the subject matter and the parties in the fundamental sense, it has no “jurisdiction” (or power) to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites.’ (Ibid.) ‘ “[W]hen a statute authorizes [a] prescribed procedure, and the court acts contrary to the authority thus conferred, it has exceeded its jurisdiction.” ’ (Id. at p. 290.) When a court has fundamental jurisdiction, but acts in excess of its jurisdiction, its act or judgment is merely voidable. [Citations.] That is, its act or judgment is valid until it is set aside, and a party may be precluded from setting it aside by ‘principles of estoppel, disfavor of collateral attack or res judicata.’ [Citation.] Errors which are merely in excess of jurisdiction should be challenged directly, for example by motion to vacate the judgment, or on appeal, and are generally not subject to collateral attack once the judgment is final unless ‘unusual circumstances were present which prevented an earlier and more appropriate attack.’ (Pacific Mut. Life Ins. Co. v. McConnell (1955) 44 Cal.2d 715, 727 [general rule is that a ‘final judgment or order is res judicata’ and not subject to collateral attack ‘even though contrary to statute where the court has jurisdiction in the fundamental sense, i.e., of the subject matter and the parties’]; 2 Witkin, Cal. Procedure[, supra, ] Jurisdiction, § 323, p. 899.)” (People v. American Contractors Indemnity Co., supra, 33 Cal.4th at p. 661.)
Witkin identifies one reason for the rule: “If there is jurisdiction of the subject matter and the parties, one who complains of the act is usually before the court. He has an opportunity to object, or to have the judgment or order reviewed by the usual methods of direct attack, such as new trial or appeal. He may also in many situations use the extraordinary writs . . . to directly attack and prevent or annul the unauthorized act. . . . [¶] . . . [A]cts merely in excess of jurisdiction, by a court having jurisdiction of the subject matter and parties, should not be subject to collateral attack unless exceptional circumstances precluded an earlier and more appropriate attack. [Citations.] [¶] The contrary view, that a judgment or order in excess of jurisdiction is as completely void as one made by a court lacking subject matter jurisdiction, is artificial and dangerous. If uniformly followed it would mean that any judgment or order which might be prevented by prohibition or annulled on certiorari would be subject to collateral attack. . . . To open up this vast field of departures from authorized procedure to collateral attack is neither necessary nor desirable.” (2 Witkin, Cal. Procedure, supra, Jurisdiction,§ 323, pp. 899-900.) Expanding on this discussion, Witkin observes that “[t]he theory that acts beyond a court’s authority are void and always subject to collateral attack . . . was abandoned in a series of cases beginning with Pacific Mut. Life Ins. Co. v. McConnell[, supra, 44 Cal.2d 715] . . . .” (2 Witkin, Cal. Procedure, supra, Jurisdiction, § 328, p. 907.) Consequently, “[a] judgment enforcing a contract is res judicata even though the defense of illegality is raised in the subsequent litigation.” (Ibid.)
However, “[i]n exceptional situations collateral attack is allowed, despite subject matter jurisdiction, where the judgment is contrary to statute: (1) ‘[W]here unusual circumstances were present which prevented an earlier and more appropriate attack’ [citation]. (2) Where a contempt adjudication is based on violation of an injunction or other equitable order made contrary to statute. [Citation.] ‘The decisions do not use the term, but the attack in such cases might be considered to be collateral, and the proceedings apparently fall in a special category because they are penal in nature.’ [Citation.]” (2 Witkin, Cal. Procedure, supra, Jurisdiction, § 328, pp. 907-908, italics added.)
This latter contempt adjudication exception is precisely the situation faced by the court in Davidson, supra, 70 Cal.App.4th 514. Indeed, the appellate court did not hold that the trial court lacked subject matter jurisdiction or jurisdiction in the fundamental sense. It specifically stated 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. Thus, it is void and cannot be the basis of a valid contempt order. . . . 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.” (Davidson, at p. 529, fn. omitted, italics added.) Clearly, the court applied the well-recognized exception to res judicata, allowing collateral attack on the contempt citation.
Levy, supra, 10 Cal.4th 578, which itself arose in the context of a petition for writ of mandate from the trial court’s denial of expedited enforcement of a settlement agreement pursuant to section 664.6, has been applied primarily in cases on direct appeal from a court order enforcing or refusing to enforce a settlement agreement pursuant to section 664.6. (See e.g., Gauss v. GAF Corp. (2002) 103 Cal.App.4th 1110, 1115-1123; Harris, supra, 74 Cal.App.4th 299, 302-306; Williams v. Saunders (1997) 55 Cal.App.4th 1158, 1160, 1162-1164; Burckhard v. Del Monte Corp., supra, 48 Cal.App.4th 1912, 1914-1915; Robertson v. Chen (1996) 44 Cal.App.4th 1290, 1292-1293; Cortez v. Kenneally (1996) 44 Cal.App.4th 523, 524-525, 528-530; Johnson v. Department. of Corrections, supra, 38 Cal.App.4th 1700, 1704-1710 .)
Unlike petitioners in Davidson, supra, 70 Cal.App.4th 514, plaintiff is not raising the alleged invalidity of the enforcement order as a defense to a contempt order. Although he has challenged the enforcement order and settlement agreement in numerous ways, until recently he never raised Levy or the failure of defendants to personally sign the settlement agreement as a basis for any challenge. The parties have fully performed under the terms of the settlement agreement. Plaintiff has not offered to return any settlement funds he has received. At this point, every former party defendant in the original action is insolvent, and even the insurer is in liquidation. Unlike Davidson, we cannot say here that “ ‘ “ ‘adherence to the previous decision would result in defeating a just cause . . . .’ ” ’ ” (See Davidson, supra, at p. 530, italics omitted.) It would be unjust and inequitable to allow appellant to unwind more than a decade of decisions in the circumstances presented by this case.
Such equitable considerations are highly relevant here. We note that in the direct appeal in Johnson v. Department of Corrections, the Court of Appeal rejected the defendants’ argument that equity weighed against retrospective application of section 664.6 because defendants had already tendered $83,000 to the plaintiff. However, plaintiff refused to accept the money and the trial court had not permitted the plaintiff’s attorney to withdraw the money from the client trust account until the dispute between plaintiff and the attorney was resolved. The appellate court observed that since the funds could be returned to defendants, defendants would not be harmed in any way by retroactive application of Levy. (Johnson v. Department of Corrections, supra, 38 Cal.App.4th at p. 1710.) In the instant case, it does not appear that the funds could be effectively returned and plaintiff has not sought to do so in any event.
DISPOSITION
The order denying appellant’s motion to set aside the judgment is affirmed.
We concur: Haerle, J., Richman, J.
Burnham Brown states they have received correspondence in connection with this matter and advises they do not represent any of the defendants in this lawsuit and that attorney David Pinelli (who took part in the settlement negotiations as counsel for the owners and insurer) has been deceased for many years.
Counsel for CIGA states they are not and have never been a party to the lawsuit, that they do not represent or stand in the shoes of Home Ins. Co in Liquidation or defendant Housing Resources Management, Inc., but that plaintiff continues to improperly serve them.