NOT TO BE PITPLISHED IN OFFICIAL REPORTS IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO 41 ALEXANDER "SKIP" SPENCE, an Filed OCT 30 1997 Incompetent Person, etc., Plaintiffs and Respondents, A0729633 V. (City and County of San Francisco MATTHEW KATZ, Super. Ct. No. 957731) Defendant and Appellant. Alexander "Skip" Spence (Spence), by and through his Guardian Ad Litem, Adam Spence, James Robert Mosley (Mosley), by and through his Guardian Ad Litem, Margaret M. Mosley, Donald J. Stevenson (Stevenson), Peter Lewis (Lewis), and Jerry A. Miller (Miller) (collectively, the band) formed the musical band named the Moby Grape. The band members filed a complaint for declaratory relief, requesting the court to declare a 1973 stipulated settlement between the band and its former manager, Matthew Katz (Katz), "void and of no force or effect." The trial court granted summary judgment against Katz, which should not have aroused in the band the sentiment expressed in the song "Murder in My Heart for the Judge" by the Moby Grape (written by Miller and Stevenson). The court's ruling, however, did not have such a salubrious impact on Katz, and he challenges the judgment. We reject Katz's claims. BACKGROUND In the 1960's, Spence, Mosley, Stevenson, Lewis, and Miller formed the musical band named Moby Grape. Katz and various members of the band entered into several I contracts in 1966, which included a personal manager's agreement, a pub 11shing agreement, and a popular songwriter's contract. Shortly thereafter, two of the band members began experiencing mental problems. In 1966 or 1967, Spence became acutely schizophrenic, and a few years later Mosley suffered from the same ailment. According to John S. Smolowe, M.D., Spence has been continuously disabled from his mental ailment since 1972. In March of 1969, the other three band members, Lewis, Stevenson, and Miller filed an action with the Labor Commission requesting to set aside their contracts with Katz. The Labor Commissioner ruled the contracts were void on February 25, 1970, and Katz appealed the decision. While the appeal was pending, the band's record company, CBS Records, a Division of Columbia Broadcasting System, Inc. (CBS Records), withheld royalties claimed by both Katz and the band. The subsequent manager of the band was David Rubinson (Rubinson). In 1972, Nicholas Clainos (Clainos), an entertainment lawyer, performed legal services for Rubinson and had a desk at Rubinson's office. Rubinson asked Clainos to work on the dispute between the band and Katz. Clainos stated it was "likely" he did not have a fee or legal services agreement with the band members, and sent his bills regarding the band's lawsuit against Katz to Rubinson. Clainos, claiming to be petitioner's counsel, filed a motion to dismiss Katz's appeal for failure to prosecute. On March 7, 1973, the court granted the dismissal. Rubinson sent a copy of the dismissal to CBS Records, and requested the money due from publishing royalties. Katz later moved to set aside the dismissal, and the court granted this motion on April 25, 1973. Sometime prior to August 28, 1973, Clainos said he met twice with members of the band (other than Spence and Mosley) in Rubinson's office, and reviewed with them the terms of the proposed settlement. Rubinson also said Clainos met with several of the 2 band members in his office. The band members, however, deny ever meeting with Clainos or knowing about his representation. Clainos also claimed to have met with Spence and the person running the facility where Spence was confined. The person running the facility, according to Clainos, told him that Spence was "not mentally incompetent." During this time, Owen J. Sloane (Sloane) provided legal counsel for Lewis and Stevenson regarding their entitlements as members of Moby Grape, and Richard Rosenberg (Ros enberg) provided legal counsel for other members of the band. Sloane stated he had no recollection of ever speaking to Clainos or seeing or approving any document or arrangement authorizing Clainos to act as the attorney for Lewis or Stevenson. Although both Clainos and Rubinson were aware that Sloane and Rosenberg provided legal counsel to some of the band members, Clainos admitted he never discussed the band's lawsuit against Katz with either attorney. On August 28, 1973, Clainos made a "general appearance" to the court and stated he was representing Mosley and Spence. On this same date, Clainos executed a stipulated settlement and order thereon in the superior court, which purported to settle the claims between the band and Katz. The settlement was on behalf of all the band members, although neither Spence nor Mosley had participated in the original action. None of the band members signed the stipulated settlement, nor did they attend the settlement conference. After settlement, Katz obtained exclusive ownership to 13 songs, and he gave up the rights to his portion of the royalties due from CBS Records According to Robert E. Gordon (Gordon), an attorney who has testified as an expert witness in the field of music/entertainment law, the band members did not derive any significant benefit from the 1973 settlement and gave up valuable rights which included their entire interests in 13 specific songs and valuable claims for damages and recoveries against Katz and CBS Records. Spence also gave up his separate rights to songs he had written apart from the 3 Moby Grape. Additionally, the settlement did not comply with the Copyright Act of the United States at that time (I 7 U. S.C. former 'I et seq.) and at the present time (I 7 U. S.C.  101 et seq.), because the federal law requires the assignments of copyright be in writing and executed by the copyright proprietor. Clainos never spoke with any of the members of the band after the settlement. He believed as a result of the settlement Rubinson "was successful inprocuring the money from CBS [Records]." Rubinson testified that he recalls discussing the settlement with the band members after August 28, 1973. On January 10, 1994, the individual members of the band filed a complaint for declaratory relief against Katz, Sony Music Entertainment, Inc., and CBS Records. The complaint, among other things, sought to set aside the 1973 stipulated settlement. The court dismissed the complaint against the corporate entities on October 7, 1994; therefore Katz remained the sole defendant. Katz moved for summary judgment, and the band moved to set aside the settlement. The court treated the band's request to set aside as a motion for summary judgment, The court denied Katz's motion and granted the band's motion for summary judgment, which vacated the order regarding the 1973 stipulated settlement. In granting the band's motion for summary judgment, the court found, in pertinent part: "Plaintiffs were not informed of the proceedings in 1973 that concluded in the August 1973 Stipulated Settlement and Order Thereon.... [] The attorney who claimed to be representing Plaintiffs in 1973 was actually representing the interests of their former manager and producer. ... All of the proceeds of the 1973 settlement were diverted to the former manager/producer, RUBINSON, and his attorneys so that Plaintiffs received nothing by way of settlement.... [] ... [] The attorney who executed the August 28, 1973 Stipulated Settlement did so without the knowledge or permission of Plaintiffs rendering that agreement void contrary to his representations to the Court at the time of settlement.... Plaintiffs SPENCE and MOSLEY 4 were never parties to the Action which was settled on August 28, 1973.... The August 1973 Settlement was one-sided, unfair and unreasonable to Plaintiffs.... Plaintiffs SPENCE and MOSLEY were both mentally incompetent and therefore psychiatrically and legally disabled in August of 1973 and incapable of entering into any legally binding agreements on their own.... [] The attorneys who did represent these Plaintiffs in 1973 were never advised of the August 28, 1973 Stipulated Settlement. . . Katz filed a timely notice of appeal from the order entering judgment. DISCUSSION 1 Standard of Review The trial court granted summary judgment against Katz. Summary judgment is properly granted if the record establishes no triable issue as to any material fact and the moving party is entitled to a judgment as a matter of law. (Code Civ. Proc.,  437c, subd. (c); all further unspe cified code sections refer to the Code of Civil Procedure.) A plaintiff moving for summary judgment has met the burden of showing there is no defense to a cause of action if the plaintiff has proved each element of the cause of action. ( 437c, subd. (o)(1).) Once the plaintiff meets this burden, the defendant must show a triable issue of fact exists as to that cause of action. (Ibid.) We review the record de novo. (Chevron U.S.A., Inc. v. Superior Court (1992) 4 Cal.App.4th 544, 548.) 11. Delay in Bringing Action Katz, who is pro se, contends the statute of limitations bars the band's claim for declaratory relief. Katz did not raise this issue at the trial court, and the running of the statute of limitations is generally an issue of fact (see Adams v. Paul (I 995) 1 1 CalAth 583, 599). Katz cannot raise this issue for the first time on appeal (see Wilson v. Lewis (I 980) 106 Cal.App.3d 802, 805). Further, the statute of limitations does not apply to the band's claim for declaratory relief. The band premised its claim to set aside the settlement order on extrinsic fraud. "[W]here extrinsic fraud is practiced upon a court there is no statutory limitation upon the 5 time within which application for relief may be made. [Citations.]" (Daut v. Daut (1950) 98 Cal.App.2d 375, 379.) The defense of laches, however, can be asserted against a claim in equity. Although Katz did not raise this issue on appeal, he did raise this defense in his answer to the complaint and in his opposition to the band's motion for summary judgment. Even when laches is not pleaded as an affirmative defense, courts "in extraordinary cases have denied relief on their own motion when laches is disclosed by the complaint or appears from the evidence ...... (San Bernardino Valley Audubon Society v. City of Moreno Valley (1996) 44 Cal.App.4th 593, 608.) Since more than 20 years has lapsed from the date of the stipulated order to the filing of this lawsuit and Katz raised this issue as a defense, we will consider whether this delay was unreasonable. "'The defense of laches requires unreasonable delay plus either acquiescence in the act about which plaintiff complains or prejudice to the defendant resulting from the delay.' [Citation.]" (Board of Administration v. Wilson (1997) 52 CaI.App.4th 1 109, 1126.) "[U]nreasonable delay by the plaintiff is not sufficient to establish laches. There must also be prejudice to the defendant resulting from the delay or acquiescence by the plaintiff.' [Citation.] 'Prejudice is never presumed; rather it must be affirmatively demonstrated by the defendant in order to sustain his burdens of proof and the production of evidence on the issue. [Citation.] Generally speaking, the existence of laches is a question of fact to be determined by the trial court in light of all of the applicable circumstances, and in the absence of manifest injustice or a lack of substantial support in the evidence its determination will be sustained. [Citations.]' [Citation.]" (Id. at pp. 1126-1127.) The trial court found Katz had failed to establish prejudice. In support of his summary judgment motion, Katz stated he had expended time, money and energy promoting the 13 songs he received, and he expended over $80,000 promoting the band. Additionally, he brought four separate actions against the band to enjoin the unauthorized 6 use of the name Moby Grape. The only evidence Katz offered to support these assertions was his own affidavit, and it contained no information regarding the income he received as a result of the settlement. Rather than being harmed by the delay, the court found Katz benefited by receiving income that would have otherwise gone to Spence. We conclude that Katz's failure to furnish the court with any evidence that his costs for promoting the 13 songs (and for enforcing the settlement) exceeded the income he earned as a result of the settlement, provide substantial support for the court's finding that the delay did not cause prejudice to Katz. M. Extrinsic Fraud The band requested the court to set aside the stipulated settlement based on extrinsic fraud. Extrinsic fraud justifying relief occurs: "Where the unsuccessful party has been prevented from exhibiting fully his case, by fraud or deception practised on him by his opponent, as by keeping him away from court, a false promise of a compromise; or where the defendant never had knowledge of the suit, being kept in ignorance by the acts of the plaintiff, or where an attorney fraudulently or without authority assumes to represent a party and connives at his defeat; or where the attorney regularly employed corruptly sells out his client's interest to the other side,-these, and similar cases which show that there has never been a real contest in the trial or hearing of the case, are reasons for which a new suit may be sustained to set aside and annul the former judgment or decree, and open the case for a new and a fair hearing." (United States v. Throckmorton (1878) 98 U.S. 61, 65-66.) Katz contends the band cannot establish extrinsic fraud because Clainos had the authority, as the band's attorney, to bind the parties. The band responds that an attorney cannot bind his or her clients when only the attorney signs the settlement (Levy v. Superior Court (1995) 10 Cal.4th 578 (Levy); Burckhard v. Del Monte Corp. (1996) 48 Cal.App.4th 1912 (Burck-hard)). 7 The trial court did not find extrinsic fraud simply because the band members did not sign the settlement. Instead, it found Clainos did not have the authority to represent the band and the band did not approve or the settlement. The court explained: "Plaintiffs were not informed of the proceedings in 1973 that concluded in the August 1973 Stipulated Settlement and Order Thereon. The attorney who claimed to be representing Plaintiffs in 1973 was actually representing the interests of their former manager and producer.... [] The attorney who executed the August 28, 1973 Stipulated Settlement did so without the knowledge or permission of Plaintiffs rendering that agreement void contrary to his representations to the Court at the time of settlement.... The attorneys who did represent these Plaintiffs in 1973 were never advised of the August 28, 1973 Stipulated Settlement. . . The law is clear that even if Clainos did represent the members of the band, he could not bind his clients to the substantive terms of a settlement without their consent ( 283; Bice v. Stevens (1958) 160 Cal.App.2d 222, 231 [attorney may not compromise client's claim]; Linsk v. Linsk (1969) 70 Cal.2d 272, 277-278 [attorney cannot abdicate a substantial right of client without client's consent.) The question of authority, however, is generally a question of fact (Thompson v. Occidental Life Ins. Co. (I 969) 276 Cal.App.2d 559, 564). Here, the record contains the following evidence to support the band members' claim that Clainos did not have authority to represent them and they did not consent to the settlement: (1) Clainos was providing legal services for Rubinson when Rubinson hired Clainos to settle the lawsuit between the band and Katz. (2) Clainos stated it was "likely" he did not have a fee or legal services agreement with the band members. (3) The billing was sent to Rubinson. (4) Rubinson benefited from the stipulated settlement. (5) The band members stated they were never informed about Clainos's representation. (6) Both Clainos and Rubinson knew attorneys Sloane and Rosenberg represented some of the band members, but they never contacted the band's counsel about Katz's lawsuit or the terms of the lawsuit. (7) 8 Clainos signed the agreement, and none of the band members signed the agreement or attended the settlement conference. (8) Clainos never spoke with any of the members of the band after the settlement. (9) According to Gordon, an attorney who has testified as an expert witness in the field of music/entertainment law, the band members did not derive any significant benefit from the 1973 settlement and gave up valuable rights which included their entire interests in 13 specific songs and valuable claims for damages and recoveries against Katz and CBS Records. Katz, however, did provide some evidence of Clainos's authority to act on behalf of the band and the band's approval of the settlement. Clainos testified that he met with at least some of the members of the band twice in Rubinson's office, and reviewed the terms of the settlement with them. Rubinson, at his deposition, also testified about a meeting in his office with Clainos and several of the band members. Rubinson also recalled discussing the settlement with the band members after August 28, 1973. The evidence offered by Katz, although weak, is sufficient to raise a triable issue of fact as to Clainos's representation of at least three band members, Stevenson, Lewis, and Miller. Katz did not present evidence-other than Clainos's statement that he visited Spence at the institution and a person at the institution told him Spence was not mentally incompetent-to contradict the band's evidence that both Spence and Mosley were mentally disabled and unable to understand the legal significance of the settlement. It is undisputed Mosley did not have a conservator appointed until 1994. Spence had a conservator appointed in 1973, but Katz presents no evidence to indicate the conservator was provided any notice of the lawsuit or terms of the settlement. Although we conclude there is a triable issue of fact as to Clainos's authority to represent Stevenson, Lewis, and Miller, we will affirm the trial court if we determine any legal basis supports its order (see Cohen v. Equitable Life Assurance Society (1987) 196 Cal.App.3d 669, 673 [the Court of Appeal does not review the trial court's reasoning, but only looks to see whether the trial court's action is correct on any legal theory]). Thus, if 9 the band members' failure to sign the stipulated settlement makes the settlement voidable under the reasoning of Levy, the trial court properly granted summary judgment. The band contends the settlement is "void" under Levy and Burckhard. A "void" agreement is not enforceable and has no legal effect. (Progressive etc. Bureau v. Whealion (1944) 62 Cal.App.2d 873, 876.) The parties' failure to sign a settlement does not void the settlement under Levy and Burckhard, but rather makes the settlement voidable. Although there is some confusion over the terms void and voidable, "[a] judgment is void if the court rendering it lacked subject matter jurisdiction or jurisdiction over the parties. Subject matter jurisdiction 'relates to the inherent authority of the court involved to deal with the case or matter before it.' [Citation.] Lack of jurisdiction in this '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.' [Citation.]" (Carlson v. Eassa (1997) 54 Cal.App.4th 684, 691.) The court rendering the settlement order in 1973 clearly had jurisdiction over the matter. In contrast, a voidable settlement "'takes its full and proper legal effect unless and until it is disputed and set aside by some tribunal, entitled so to do. [Citation.] ... A voidable contract is one which may be rendered null at the option of one of the parties, but is not void until so rendered. [Citation.]... (White Dragon Productions, Inc. v. Performance Guarantees, Inc. (1987) 196 Cal.App.3d 163, 172.) Although the band members rely on Levy and Burckhard, they fail to address their applicability to a 1973 stipulated settlement. Levy, supra, 10 CalAth at p. 580, holds a settlement pursuant to section 664.6. requires the litigants' signature. Section 664.6 created a summary expedited procedure to enforce settlement agreements, but it was enacted in 1981 (Stats. 198 1, ch. 904,  2, p. 3437), subsequent to the stipulated settlement here. In Burckhard, supra, 48 Cal.App.4th at p. 1919, we held that Levy 10 applies retroactively to settlements made pursuant to section 664.6, and now we must decide whether Levy applies to settlements made prior to the enactment of section 664.6. Section 664.6 provides: "If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court 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. . . ." In Levy, the Supreme Court concluded the term "parties" in section 664.6 refers to the litigants personally and does not include the litigants' attorneys of record. (Levy, supra, 10 CalAth 578.) The Supreme Court acknowledged the term "parties" is susceptible to two meanings, but stressed the settlement of a lawsuit "is such a serious step that it requires the client's knowledge and express consent. [Citationj" (Id. at p. 583.) "Because the settlement of a lawsuit is a decision to end the litigation, it obviously implicates a substantial right of the litigants themselves." (Id. at p. 584.) The Supreme Court held the litigants' signature signifies the "litigants' direct participation" and ensures "that the settlement is the result of their mature reflection and deliberate assent." (Levy, supra, 10 CalAth at p. 585.) This rule "also protects parties from impairment of their substantial rights without their knowledge and consent. [Citation.]" (Ibid.) The reasoning underlying Levy applies equally to stipulated settlements prior to 1981, which were not made pursuant to the expedited procedure under section 664.6. Here, there is substantial evidence to indicate Clainos never received the band members' consent to the settlement, which underscores the reason for requiring the litigants' signature. Without the litigants' signature, there is no assurance there has been a real hearing of the case. "'.[Ajbsent express authority, it is established that an attorney does not have implied plenary authority to enter into contracts on behalf of his client. [Citation.]' [Citation.] And, that authority is not enlarged simply because the contract is 11 entered into in conjunction with pending litigation." (Blanton v. Womancare, Inc. (1985) 38 Cal.3d 396, 407.) Thus, just as we have held Levy applies retroactively to stipulated settlements pursuant to section 664.6 (Burckhard, supra, 48 Cal.App.4th 1912), we now hold stipulated settlements prior to 1981 are voidable when they are not signed by the litigants. This holding will not impact many settlements, since the defense of laches or ratification (see Blanton v.. Womancare, Inc., supra, 3 8 C al.3 d at p. 407 [unauthorized acts of attorney may be binding upon the client through ratification]) will defeat most requests to set aside a settlement prior to 1981. IV. Ratification Katz also claims the band ratified the settlement (see Redsted v. Weiss (1945) 71 Cal.App.2d 660). Katz, however, did not raise this issue at the trial court, and ratification is ordinarily a question of fact (Common Wealth Ins. Systems, Inc. v. Kerstan (1974) 40 Cal.App.3d 1014,1026). The facts regarding ratification are in dispute. To support ratification, Katz cites the testimony of both Clainos and Rubinson. Both men asserted that the band members benefited from the settlement. However, the band members seem to be contending, "Somebody else is back at home getting fat[, and] took it all away" (words from "Took It All Away," song by Moby Grape, written by Mosley). They claim they never received any benefit, and the record contains a declaration from an expert, Gordon, stating the band garnered nothing from the settlement, although it signed valuable rights away. Since the issue of ratification in this case is not based on undisputed evidence and Katz failed to raise this question at the trial level, he cannot raise it for the first time on appeal (see Wilson v. Lewis, supra, 106 Cal.App.3d at p. 805). V. Other Issues Katz raises other various claims on appeal. He claims his severe health problems prevented him from adequately defending the action and his trial counsel was ineffective. 12 Katz does not indicate the manner in which his health or his counsel's actions would have resulted in a different outcome. Moreover, neither his health nor counsel's effectiveness is a legally cognizable basis for appeal. Thus, we do not need to give any further attention to these claims. Katz also argues the band is a partnership under Corporations Code section 15006, subdivision (1). However, whether the band is a partnership would be relevant to a defense based on the statute of limitations (and whether the statute would be tolled for Spence and Mosley who were mentally disabled), but is irrelevant to the issues raised by this appeal. Thus, we need not consider whether the injury was to the individual members of the band or to a partnership. DISPOSITION We affirm the judgment and Katz is to pay costs. 13