Nunn v. JPMorgan Chase Bank

Filed 5/18/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
GERALD L. NUNN et al.,
Plaintiffs and Appellants, A160286
v.
(Napa County Superior Court
JPMORGAN CHASE BANK, N.A. Case No. 26-56767)
et al.,
Defendants and Respondents.
GERALD L. NUNN et al.,
Petitioners, A160794
v. (Napa County Superior Court
THE SUPERIOR COURT OF Case No. 26-56767)
NAPA COUNTY,
Respondent,
JPMORGAN CHASE BANK, N.A.
et al.,
Real Parties in Interest.
This consolidated appeal and petition for writ of mandate call upon us to
apply two provisions in the Code of Civil Procedure: section 583.320 limits to
three years the time within which a plaintiff, having succeeded on appeal,
may bring a case to trial after the remittitur is filed in superior court, and
section 583.330 allows the parties to extend that deadline by agreement. (All
1
statutory references are to the Code of Civil Procedure, unless otherwise
indicated.) We conclude the parties’ agreement here to a trial date outside the
three-year period extended the statutory deadline to that trial date, and on
that basis we reverse the judgment dismissing this case for failure to
prosecute.
BACKGROUND
Gerald and Judith Nunn, husband and wife, owned a home in Napa
with a mortgage they refinanced in July 2006 through Washington Mutual
Bank, F.A. The loan was a negative amortization loan, and when the Nunns’
payments jumped from less than $2,900 per month to almost $4,300 in August
2008, they defaulted on the loan. In January 2009, the Nunns filed an
application for a loan modification with JPMorgan Chase Bank, N.A. (Chase),
which had acceded to Washington Mutual’s loan. In 2010, Chase denied the
Nunns’ modification application but continued negotiations with them until
the Nunns finally sued.
In August 2011, the Nunns filed the underlying action against Chase
and its affiliates (Chase Defendants), alleging wrongful foreclosure, quiet title,
and negligence, among other things, based on allegations that Chase had
“dual track[ed]” them during loan modification negotiations. (See Jolley v.
Chase Home Finance, LLC (2013) 213 Cal. App. 4th 872, 904–905 [describing
“dual tracking”].) The superior court granted the Chase Defendants’ motion
for summary judgment in 2013 and entered judgment in their favor.
The Nunns appealed, and in 2016 this court reversed the judgment,
finding that the Nunns stated valid causes of action for negligence and
violation of the implied covenant of good faith and fair dealing. (See Nunn v.
JPMorgan Chase Bank, N.A. (May 13, 2016, A139718) [nonpub. opn.]
(Nunn I).) This court’s appellate opinion was followed by a remittitur filed in
2
the superior court on July 18, 2016. The following month, Chase sold the
Napa house in a foreclosure sale, in which Chase itself was the highest bidder
and acquired the property. In April 2017, the Nunns filed a notice of lis
pendens against the property, giving any potential purchaser notice that it
was subject to litigation.
Under section 583.320, the Nunns had until July 18, 2019 to bring their
case to trial, which was three years from the date the remittitur was filed in
the superior court. Meanwhile, the parties resumed pre-trial activities, which
included amending pleadings, filing demurrers, and conducting discovery. In
March 2019, the Chase Defendants filed a case management conference
statement in which they advised the court of their intent to complete
discovery by “Summer 2019” and to file a motion for summary judgment prior
to trial.
On May 16, 2019, a case management and trial setting conference was
held before the Honorable Victoria Wood without a court reporter. The
minutes from this hearing indicate that the parties “apprised” the court that
the matter was ready to be set for trial and a trial date was set for January
13, 2020.
On August 30, 2019, with the January 2020 trial date pending, the
Chase Defendants moved to dismiss the Nunns’ case pursuant to section
583.320 on the ground that the three-year deadline for bringing the case to
trial had passed. Defendants argued dismissal was mandatory because they
had not stipulated or agreed in open court to extend the three-year deadline.
The Nunns opposed this motion on various grounds: compliance with the
statutory deadline was impracticable due to the death of their former counsel
and their own illnesses; the Chase Defendants were estopped from seeking
dismissal because they abused the discovery process; the court’s calendar
3
precluded setting an earlier trial date; and the trial deadline was reset by a
pleading amendment changing the gravamen of their complaint.
On September 26, 2019, the Honorable Monique Langhorne dismissed
this action, finding that the Nunns failed to carry their burden of establishing
a statutory exception to the three-year mandatory dismissal statute. In
December 2019, the Nunns’ attorney, Ronald Freshman, sought permission to
withdraw as counsel, which was granted on January 14, 2020. On January
30, the court entered a judgment of dismissal with prejudice and notice of
entry of judgment was given on February 18, 2020.
The Nunns, with the assistance of new trial counsel, filed two post-
judgment motions on February 18, 2020. They filed a motion to correct the
minutes of the May 16, 2019 hearing, seeking to have the minutes reflect that
the January 2020 trial date was set “by the agreement of the parties and to
accommodate [the Chase Defendants’] request for a trial date sufficiently in
the future to take deposition discovery and bring a motion for summary
judgment.” Opposing this motion, the Chase Defendants argued the
correction requested by the Nunns was “improper” because there was no
evidence that the Chase Defendants “expressly agreed to waive Plaintiffs’
deadline” for bringing their case to trial.
The Nunns also filed a motion for a new trial on the ground that their
case should not have been dismissed because the trial date was set pursuant
to an agreement between the parties, which was enforceable under section
583.330. The Nunns argued that, even if the record was not corrected to
reflect this agreement, theories of waiver or estoppel extended the deadline for
bringing the case to trial. In their opposition to this motion, the Chase
Defendants admitted requesting a trial date that would allow them to conduct
further discovery and move for summary judgment, but they argued this fact
4
was irrelevant because the Nunns did not object to the trial setting or obtain a
waiver of the statutory deadline.
On March 13, 2020, Judge Langhorne denied the Nunns’ motion to
correct the minutes, treating it as an improper motion for reconsideration of
her September 2019 order of dismissal. On April 3, 2020, the court denied the
Nunns’ new trial motion for “the reasons set forth in defendant[s’] opposition.”
On June 1, 2020, the Nunns filed the instant appeal from the judgment and
the orders denying their motions to correct the record, and for a new trial.1
On June 1, 2020, the Chase Defendants filed a motion in the superior
court to expunge the lis pendens the Nunns had filed against the property.
The court granted the expungement motion and ordered the lis pendens
expunged effective August 28, 2020, giving the Nunns time to seek an
appellate remedy. On August 26, 2020, the Nunns filed a petition for writ of
mandate in this court, seeking an order directing the trial court to vacate its
order expunging the lis pendens.
The Nunns, who are both 80 or nearly 80 years old, filed a motion for
calendar preference, a motion for a stay of the order expunging the lis
pendens, and a motion to consolidate their writ petition with their appeal. We
granted the stay pending further order of this court, granted the motion to
1 The Nunns’ notice of appeal was timely under emergency rules
adopted in response to the COVID-19 pandemic. We grant the Nunns’ motion
for judicial notice of COVID-related court rules and of the appellate record in
Nunn I.
The order denying the motion to correct the minutes was not a
separately appealable order. (Griess v. State Investment etc. Co. (1892) 93 Cal.
411, 413; Simmons v. Santa Barbara Ice etc. Co. (1958) 162 Cal. App. 2d 23,
27.) We may address it as an intermediate order on appeal from the judgment
of dismissal (§ 906; see In re Marriage of Griffin (1993) 15 Cal. App. 4th 685,
689), which did not become appealable until the Nunns’ motion for a new trial
was decided (Cal. Rules of Court, rule 8.108(b)(1)(A)).
5
consolidate, and set an expedited schedule for briefing and oral argument.
Unable to obtain a transcript for dispositive hearings, the parties proceed on
appeal in part by way of a settled statement of proceedings had on May 16,
2019 and September 26, 2019, as certified by the superior court on July 14,
2020. (See Cal. Rules of Court, rule 8.137.)
DISCUSSION
I. The Parties Agreed to Extend the Mandatory Trial Deadline
The Nunns contend the judgment dismissing this action under section
583.320 must be reversed because the statutory deadline for bringing their
case to trial was extended to January 13, 2020 pursuant to section 583.330.
We review a judgment of dismissal under section 583.320 for abuse of
discretion. (Gaines v. Fidelity National Title Ins. Co. (2016) 62 Cal. 4th 1081,
1100.) Under this standard, “ ‘[t]he trial court’s findings of fact are reviewed
for substantial evidence, its conclusions of law are reviewed de novo, and its
application of the law to the facts is reversible only if arbitrary and
capricious.’ ” (Ibid.) Thus, while we review the trial court’s order for abuse of
discretion, to the extent our decision requires us to construe sections 583.320
or 583.330, the de novo standard of review applies. (Gaines, at p. 1100; see
Williams v. Superior Court (2017) 3 Cal. 5th 531, 540.)
Section 583.310 sets forth the requirement of bringing a case to trial in
five years, and section 583.320 lays out the three-year deadline following
appeal and remand. Dismissal is mandatory for a violation of either statute
absent a statutory exception. (§ 583.360, subd. (a).) While this case was
dismissed under the three-year statute, we also consider cases applying the
five-year statute because the same policies apply to both statutes. (See e.g.,
Hattersley v. American Nucleonics Corp. (1992) 3 Cal. App. 4th 397, 401.)
6
The Nunns rely on an exception to the mandatory dismissal statutes,
which allows parties to stipulate to an extension of the statutory deadline.
Section 583.330 provides: “The parties may extend the time within which an
action must be brought to trial pursuant to this article by the following
means: [¶] (a) By written stipulation. The stipulation need not be filed but, if
it is not filed, the stipulation shall be brought to the attention of the court if
relevant to a motion for dismissal. [¶] (b) By oral agreement made in open
court, if entered in the minutes of the court or a transcript is made.”
The record shows that the trial date in this case was set beyond the
three-year statutory deadline in open court at the May 16, 2019 hearing. The
disputed issue is whether this trial date was set pursuant to an oral
agreement made in open court and enforceable under the statute.
Section 583.330 does not address what terms comprise an oral
agreement extending the trial deadline. Nor do the parties cite case authority
interpreting the oral agreement prong of this statute. However, we find
useful guidance in cases involving written stipulations. Miller & Lux Inc. v.
Superior Court (1923) 192 Cal. 333, 337–338 (Miller & Lux) construed former
section 583, a predecessor statute authorizing extension of the statutory trial
deadline by written stipulation. In that case, our Supreme Court concluded
that parties may extend the trial deadline either by expressly waiving the
benefit of the mandatory dismissal statute or by agreeing to postpone the trial
to a specific date that is beyond the statutory period. (Miller & Lux, at
pp. 337–338.) The justification for permitting parties to extend the trial
deadline without expressly referring to the dismissal statute is that “[a]
stipulation to extend the time of trial beyond the [statutory] period necessarily
waives the right to a dismissal of the action” under the statute. (Smith v.
Bear Valley Milling & Lumber Co. (1945) 26 Cal. 2d 590, 599; see also J. C.
7
Penney Co. v. Superior Court (1959) 52 Cal. 2d 666, 669 [stipulations must
“extend in express terms the time of trial to a date beyond the five-year period
or expressly waive the right to a dismissal”]; Larkin v. Superior Court (1916)
171 Cal. 719, 723 [stipulations of many forms, including “stipulations
continuing the trial to a date beyond the five year period, . . . suffice as an
answer to a motion to dismiss”].)
The reasoning of Miller & Lux has been extended to the written
stipulation prong of section 583.330. (Munoz v. City of Tracy (2015) 238
Cal. App. 4th 354, 360–361 [collecting cases].) Munoz was a personal injury
action against the City of Tracy. Under section 583.310, the five-year
deadline for bringing the plaintiff’s case to trial was due to expire in December
2013. A few months before that deadline, the parties executed a written
stipulation to continue the trial to June 16, 2014. (Munoz, at p. 357.)
Nevertheless, in February 2014, the trial court dismissed the action, finding
that the written stipulation was ineffectual because it did not include an
express waiver of the five-year deadline or of the defendant’s right to
dismissal under section 583.310. The Court of Appeal reversed, holding that
the trial deadline was extended to June 16, 2014 pursuant to the parties’
written stipulation and, therefore, the trial court erred in granting the City’s
motion to dismiss. (Munoz, at pp. 361–362.) Applying Miller & Lux and its
progeny, the Munoz court found there was no need for the defendant expressly
to waive the benefit of section 583.310 because an agreement to extend trial to
a specific date beyond the five-year period necessarily waived, until that date,
the right to dismissal under the five-year statute. (Munoz, at p. 360.)2
2 The dissent relies on two older Court of Appeal decisions for the
following proposition: “Under Miller & Lux, simple agreement on a trial date
that, without either party realizing it, happens to be beyond the deadline, is
8
We interpret the oral agreement prong of section 583.330 to be
consistent with its written stipulation counterpart in authorizing parties to
extend the statutory trial deadline by agreeing to postpone trial to a specific
date beyond the statutory period. This construction is permissible under the
statutory language, creates parity with respect to judicial treatment of written
and oral agreements, and is grounded in relevant precedent. Our
interpretation of this provision also furthers legislative intent. When the
Legislature enacted the mandatory dismissal statutes it was cognizant of the
tension created by two important policies, one requiring reasonable diligence
in the prosecution of an action and the other requiring cooperation among all
parties in bringing the action to trial or other disposition. (§ 583.130.) We
reconcile these policies in accordance with the Legislature’s admonishment
that “[e]xcept as otherwise provided by statute or by rule of court . . ., the
policy favoring the right of parties to make stipulations in their own interests
and the policy favoring trial or other disposition of an action on the merits are
generally to be preferred over the policy that requires dismissal for failure to
proceed with reasonable diligence in the prosecution of an action.” (Ibid.)
not enough. The parties must have in mind the setting of a date they both
understand extends ‘the statutory time.’ ” (Dis. opn. of Streeter, J., post at
p. 18 [citing Anderson v. Erwyn (1966) 247 Cal. App. 2d 503, 506; Rosenfelt v.
Scholtz (1936) 17 Cal. App. 2d 443, 445].) We do not read either case to support
this proposition, as in neither was a trial date ever set. In Anderson, the
parties stipulated simply to taking a pretrial conference “off calendar subject
to being reset at a mutually convenient time.” (Anderson, at p. 507.) And in
Rosenfelt, although the parties stipulated that the “case may be set for trial at
any time on or after” a certain date, they never mentioned or agreed to any
particular trial date. (Rosenfelt, at p. 444.) Their stipulation did not act to
extend the statutory period because it was not one in which “ ‘a different limit
has been fixed.’ ” (Ibid.) By contrast, in Munoz and in our case the parties
fixed a different limit when they agreed to a specific trial date outside the
statutory period.
9
Turning to the facts of the present case, we ask whether the parties
agreed at the May 16, 2019 hearing either to waive the three-year statute or
to postpone trial to a specific date beyond the three-year deadline. The settled
statement describes the hearing as follows: “Plaintiffs’ counsel, Ronald
Freshman, and defendants’ counsel, David Harford, appeared by telephone.
The plaintiffs, Gerald and Judith Nunn, were in the courtroom. [¶] The court
confirmed with both attorneys that the matter was ready for trial. The court
suggested November 2019, but Mr. Harford indicated November would be too
early because defendants intended to file a summary judgment motion and
needed to take the plaintiffs’ depositions before filing that motion. [¶] The
court then proposed a trial for January 13, 2020. The lawyers both indicated
to the court that they had no objection to the trial being set on January 13,
2020. The Nunns told the court that date was alright with them. [¶] The
court set dates for a settlement conference and for a trial management
conference. The proceedings then concluded.”
We conclude this interchange constitutes an oral agreement within the
meaning of section 583.330. The judge proposed a trial date beyond the
statutory deadline to accommodate the Chase Defendants, who requested
additional time to conduct discovery and bring a summary judgment motion.
The parties expressed their agreement to extend the trial deadline to this date
when counsel for both sides “indicated” on the record that they had “no
objection” to a January 13, 2020 trial date. The Nunns, who were present in
court, also verbally agreed to the proposed date. On appeal, the Chase
Defendants do not dispute these factual circumstances, which we find to be
dispositive under the reasoning of Miller & Lux and Munoz. By explicitly
agreeing to the January trial date, the parties implicitly agreed to extend the
statutory period to January 13, 2020.
10
The Chase Defendants argue that dismissal of this action was
appropriate because the Nunns violated their duty as plaintiffs to keep track
of the three-year deadline. (Citing e.g., Hill v. Bingham (1986) 181
Cal. App. 3d 1; Perez v. Grajales (2008) 169 Cal. App. 4th 580.) A plaintiff who
contends the statutory period for bringing a case to trial was tolled due to
impossibility, impracticability, or futility (§ 583.340, subd. (c)) must show that
he or she exercised reasonable diligence to overcome obstacles to compliance
with the mandatory trial deadline. (Hill, at p. 10; Perez, at p. 590.) The
question here, however, is not whether the Nunns violated their duty of
diligence but whether the parties agreed to extend the statutory deadline.
The Chase Defendants argue that the settled statement does not
contain evidence of an agreement because it shows only that the Nunns
“acquiesced” to a trial date that was set by the court beyond the three-year
deadline, which is insufficient to avoid operation of the mandatory dismissal
statute. (Quoting Central Mutual Ins. Co. v. Executive Motor Home Sales, Inc.
(1983) 143 Cal. App. 3d 791, 795.) This argument ignores many relevant facts:
The court proposed a January 2020 trial date to accommodate the interests of
the Chase Defendants, as expressed first in their case management conference
statement and then at the telephonic conference; and the Nunns and counsel
for both parties did not merely acquiesce in, but affirmatively accepted, the
proposed date beyond the three-year deadline. In particular, the Chase
Defendants’ lawyer, having just rejected the court’s proposal of a date in
November 2019 as premature, “indicated” that the January 2020 date was
acceptable; he had no objection to the later date.3 Taken together, these
3 The dissent argues that the trial date was “imposed on the parties”
rather than mutually agreed (Dis. opn. of Streeter, J., post at p. 6), but we
would view this case very differently if the Chase defendants had objected or
11
expressions of mutual assent constitute an agreement to extend the deadline
for bringing this case to trial until January 13, 2020.
The Chase Defendants rely heavily on Sanchez v. City of Los Angeles
(2003) 109 Cal. App. 4th 1262 (Sanchez). In that 1997 wrongful death action
against a city and two police officers, a trial date was first set for December
1997 but was continued several times, often at plaintiffs’ request. In July
2001, counsel for one defendant committed suicide and the parties stipulated
to continue the trial and to request a trial date of December 18, 2001. (Id. at
p. 1267.) When the matter was discussed at a September 2001 telephone
conference, the court inquired about trial readiness and then set a trial date
for January 29, 2002. Nobody alerted the court this date was after the five-
year deadline of January 10, 2002. (Id. at p. 1267.) The court did not discover
that fact until January 17, at a final status conference held in the court’s
chambers. During the conference, plaintiffs’ counsel indicated that he
believed the five-year period would expire in June or July 2002 but when the
court reviewed the file it discovered the trial deadline had already passed.
(Ibid.) Defendants responded to this news by filing a motion to dismiss, which
the trial court granted.
The Sanchez plaintiffs opposed the motion to dismiss on the ground that
the five-year period was tolled due to impracticability, impossibility, or futility
responded to the court’s November proposal by saying they preferred an
earlier trial date, and the court had nonetheless set trial for a date in
November 2019. Boyd v. Southern Pacific R. R. Co. (1921) 185 Cal. 344, 347 is
not to the contrary. The “complete answer” to the argument in Boyd that the
defendant acquiesced in setting the case for trial outside the statutory period
was “that it does not appear that the defendant did so acquiesce”; it “may have
contested the motion to set or . . . asked for an earlier date which, upon the
plaintiff’s objection, was refused.” (Ibid.) (Cf. dis. opn. of Streeter, J., post at
pp. 40–41, fn. 25.)
12
because the suicide by defense counsel caused an earlier trial date to be
vacated and several months of delay. (Sanchez, supra, 109 Cal.App.4th at
p. 1268.) Rejecting this claim, the trial court found the case could have been
tried within five years if plaintiffs’ counsel had brought the matter to the
court’s attention, and concluded further that the “ ‘only’ ” reason trial was set
for a date beyond the deadline was to accommodate the trial schedule of
plaintiffs’ counsel. (Ibid.) Affirming the judgment, the Sanchez court found
that plaintiffs’ impracticability claim was properly rejected; there was no
causal connection between defense counsel’s suicide and plaintiffs’ failure to
comply with the five-year statute, and plaintiffs’ noncompliance was
attributable to lack of diligence by plaintiffs’ counsel, who misapprehended
the five-year date and acquiesced to a trial date beyond the deadline. (Id. at
p. 1273.)
The Chase Defendants contend that the judgment in this case should be
affirmed under Sanchez. We disagree. The issue here is whether the parties
agreed to extend the statutory trial deadline, not whether the three-year
period was tolled due to impracticability. Sanchez addresses extension
agreements only peripherally, in a footnote rejecting plaintiff’s contention that
the five-year deadline was extended by a stipulation the parties made after
defense counsel died. (Sanchez, supra, 109 Cal.App.4th at p. 1269, fn. 3.)
That stipulation did not extend the five-year period, the court found, because
“ ‘[s]tipulations that merely extend the time for trial within the five-year
period, absent a showing that the parties intended otherwise, will not extend
the five-year period.’ ” (Ibid., italics partially omitted.) The parties’ agreement
had been to a December trial date within the statutory period, not to the
January trial date that fell outside it. In the present case, unlike Sanchez, the
parties agreed to extend the trial to a date beyond the statutory deadline.
13
The Chase Defendants also rely on Wright v. Groom Trucking Co. (1962)
206 Cal. App. 2d 485, which affirmed a judgment dismissing an action under
former section 583. In that case the plaintiffs argued that a pretrial
conference order setting a trial date beyond the statutory deadline was itself a
written stipulation within the meaning of the former statute. (Id. at p. 490.)
The Wright court rejected this claim because the order did not mention a
stipulation entered into between the parties, nor was such a stipulation
recorded elsewhere in the trial court’s minutes. (Id. at pp. 492–493.) The
Wright court explained that it could not “look behind the court’s pretrial
conference order and in effect change it, by construing it as a written
stipulation” between the parties. (Id. at p. 492.)
The Chase Defendants contend this case is controlled by Wright because
the settled statement suffers from the same deficiency as the pretrial
conference order, in that it does not refer to an “agreement” or “stipulation”
between the parties to extend the three-year deadline. Because Wright was
decided before the statute allowed parties to extend a trial deadline by oral
agreement, that case does not purport to address what formalities are
necessary to prove that such an agreement was made. Further, if the Chase
Defendants are suggesting that Wright requires parties to use the word
“stipulation” in order make a binding agreement, we disagree. The pretrial
order analyzed in Wright could not be construed as a stipulation because it
made no mention of a stipulation and the court found no evidence of such an
agreement anywhere else in the court minutes. Here, the settled statement
recounts words and actions by the parties that constitute objective evidence of
an agreement to set the trial for a specific date, one that was beyond the
three-year deadline. Specifically, the settled statement shows that the Chase
Defendants explicitly asked for a trial date after November 2019 (i.e., beyond
14
the statutory deadline), and that both parties affirmatively agreed to the
January 13, 2020 date.
The Chase Defendants’ role in setting a trial date beyond the three-year
period makes this case more analogous to Govea v. Superior Court (1938) 26
Cal. App. 2d 27 (Govea). In Govea, a trial that had been set for a date within
the five-year period was continued to a date beyond that period during a court
hearing. The superior court minutes from the hearing reflected that the
defendant made a motion to continue the trial to the later date and the
plaintiff stipulated to the postponement. (Id. at pp. 29–30.) Subsequently,
the trial date was continued again pursuant to the court’s own motion, and
when that date arrived, the defendant moved to dismiss the action for want of
prosecution. The trial court denied the motion, finding that the parties’
stipulation, made in open court and entered in the minutes, qualified as a
written stipulation under former section 583. (Id. at p. 30.)
The Govea defendant filed a writ petition challenging the denial of his
motion to dismiss, which was also denied. (Govea, supra, 26 Cal.App.2d at
p. 28.) The Govea court held that even if the stipulation that was recorded in
the minutes did not “literally comply with the language of [former] section
583,” it estopped the defendant from “thereafter making a motion to dismiss
the cause for want of prosecution” because “a party to an action cannot be
allowed in such manner to play fast and loose with the court.” (Id. at p. 31.)
Because Govea was decided before the statutory trial deadline could be
extended by oral agreement, the court relied on estoppel principles to affirm
the finding that the trial deadline was extended in that case. (Ibid.; see also
Woley v. Turkus (1958) 51 Cal. 2d 402, 408; Tresway Aero, Inc. v. Superior
Court (1971) 5 Cal. 3d 431, 439.) We have no need to resort to estoppel
principles here, but note the Govea court’s implicit finding that the parties
15
had entered into an oral agreement to extend the trial deadline based on
evidence that the defendant requested a trial date that fell beyond the five-
year deadline and the plaintiff stipulated to that trial date. Those same facts
are present here.
Thus, with the benefit of the settled statement of the May 16, 2019
hearing, we conclude that the superior court record shows the parties orally
agreed to a trial date that extended the three-year statutory deadline for
bringing this case to trial to January 13, 2020. (See § 583.330.) Because the
settled statement was not part of the superior court record when this case was
dismissed, the Nunns’ do not appeal the September 2019 dismissal order but
instead limit their challenge to the post-dismissal orders to which we next
turn.
II. The Post-Dismissal Orders
The Nunns contend the trial court erred by denying their motion to
correct the minutes of May 16, 2019 on grounds the motion was untimely and
procedurally improper. The record shows that Judge Langhorne treated the
Nunns’ motion to correct the court minutes as an untimely motion for
reconsideration of her September 2019 order granting the Chase Defendants’
motion to dismiss. We note that the Chase Defendants do not defend this
ruling in their appellate brief.
The Nunns’ motion was not untimely because a correction to court
minutes may be made at any time. (Siegal v. Superior Court (1968) 68 Cal. 2d
97, 101 (Siegal); Haynes v. Lost Angeles R. R. Corp. (1927) 80 Cal. App. 776,
780.) Moreover, any correction that was warranted had to be made in the
superior court because the veracity of a trial court’s minutes cannot be
collaterally attacked in the appellate court. (Govea, supra, 26 Cal.App.2d at
pp. 32–33.)
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Nor did the Nunns’ motion seek reconsideration of the court’s ruling on
the tolling arguments that proved unsuccessful in opposing the motion to
dismiss. Instead, they sought to invoke the court’s inherent power to correct
its own records. “ ‘The rule is well settled in this state that every court of
record has the inherent power to correct its records so that they shall conform
to the facts and speak the truth, and likewise correct any error or defect
occurring in a record through acts of omission or commission of the clerk in
entering of record the judgments or orders of the court, and such correction
may be made at any time by the court on its own motion.’ ” (Siegal, supra, 68
Cal.2d at p. 101; see also Dalley v. B. & H. Transportation Co. (1931) 114
Cal. App. 320, 322 [court may correct “clerical error or omission in its minutes
so that they will speak the truth”].) “ ‘The power exists independently of
statute and may be exercised in criminal as well as in civil cases. . . . The
court may correct such errors on its own motion or upon the application of the
parties.’ ” (People v. Mitchell (2001) 26 Cal. 4th 181, 185.)
Finally, Judge Langhorne found that there was “nothing to ‘correct’ ” in
the May 16, 2019 proceeding because the minute order “correctly report[ed]
that the Court set trial for January 13, 2020.” This cursory observation fails
to address whether relevant facts about the May 2019 proceeding were
omitted from the clerk’s record of that hearing. The court’s power to correct
its record includes the power to cure omissions, so that a minute order
accurately and completely captures the proceedings. (Siegal, supra, 68 Cal.2d
at p. 101.) Here, Judge Langhorne did not have first-hand knowledge as to
whether relevant facts were omitted because she was not present at the trial-
setting conference, which Judge Wood presided over. But she did have a
declaration from Judith Nunn to the effect that the lawyers had agreed at the
17
hearing to the January 13, 2020 trial date, which would have been legally
significant.
To the extent Judge Langhorne determined that the court minutes do
not contain a clerical error, her decision is not conclusive. Usually a trial
court decision about whether to correct its own records is afforded great
deference (Conservatorship of Tobias (1989) 208 Cal. App. 3d 1031, 1034), but
this treatment rests on an assumption that the decision whether to correct
will be made by the judge who presided over the hearing at issue. (Carpenter
v. Pacific Mut. Life Ins. Co. (1939) 14 Cal. 2d 704, 708–709; Brown v. Brown
(1958) 162 Cal. App. 2d 314, 318.) When “[t]he facts were completely and solely
within [the] knowledge” of the trial judge, such that he or she “alone knew
whether a mistake had been made and how it had been made,” the judge’s
determination of the facts is “ ‘conclusive.’ ” (Carpenter, at p. 709.) In the
present case, the relevant facts were completely within the knowledge of
Judge Wood and, although Judge Wood did not rule on the correction motion,
we can still benefit from her knowledge because she is the judge who certified
the settled statement of the May 2019 hearing.
The settled statement is an authorized substitute for a reporter’s
transcript of a proceeding, the purpose of which is to provide an adequate
record for an appellate court to decide an issue on appeal. (Cal. Rules of
Court, rule 8.137; see Randall v. Mousseau (2016) 2 Cal. App. 5th 929, 933–
934.) In certifying the settled statement in this case, Judge Wood properly did
not decide whether the parties made an oral agreement that was binding, but
she did provide a factual account of the proceeding that is certain and
undisputed, and that enables us to determine whether an oral agreement was
made. (See HM DG, Inc. v. Amini (2013) 219 Cal. App. 4th 1100, 1109 [“ ‘if the
material facts are certain or undisputed, the existence of a contract is a
18
question for the court to decide’ ”]; Miller & Lux, supra, 192 Cal. at p. 341
[whether defendant has waived its right to dismissal is a question of law].)
The undisputed facts recorded in the settled statement show that the parties
orally agreed in open court to a trial date that was beyond the three-year
deadline. By the same token, this unassailable evidence also shows that
Judge Langhorne’s summary denial on erroneous procedural grounds of the
Nunns’ motion to amend the court minutes was prejudicial error.
The record also shows that this prejudice infected the trial court’s
adjudication of the Nunn’s new trial motion. The Nunns moved for a new trial
on the specific ground that the parties extended the three-year deadline
pursuant to an oral agreement at the May 2019 hearing. This new trial
motion was a proper mechanism for the Nunns to challenge the judgment of
dismissal for failure to prosecute. (See Finnie v. District No. 1—Pacific Coast
Dist. etc. Assn. (1992) 9 Cal. App. 4th 1311, 1316.) Moreover, they were not
restricted to legal arguments that they had made prior to the judgment.
(Hoffman-Haag v. Transamerica Ins. Co. (1991) 1 Cal. App. 4th 10, 15.)
Nevertheless, the court denied the motion as moot because the Nunns’ motion
to correct the minutes of the May 2019 hearing had already been denied.
Relatedly, the court denied the motion “for reasons stated in the [Chase
Defendants’] opposition” to the new trial motion. The Chase Defendants had
opposed the new trial motion on the ground that there was no evidence of an
oral agreement “entered in the minutes of the court or a transcript.” Thus,
the erroneous denial of the motion to correct the minutes was inextricably
intertwined with the denial of the new trial motion.4 For the trial court to
4 In light of this conclusion, we need not address the Nunns’ contention
that procedural constraints relating to the COVID-19 pandemic deprived the
Nunns of their due process right to a proper consideration of their new trial
motion.
19
deny the Nunns’ motion for a new trial was to compound the error of having
summarily denied their motion to correct the minutes.
III. The Petition for Writ of Mandate
The Nunns contend that the order granting the Chase Defendants’
motion to expunge the lis pendens must be reversed because it is premised on
the judgment of dismissal, which must also be reversed. The Chase
Defendants counter that the judgment was properly dismissed and, in any
event, the Nunns failed to carry their burden of proving the probable merit of
their real property claims.
“ ‘A lis pendens is a recorded document giving constructive notice that
an action has been filed affecting title or right to possession of the real
property described in the notice.’ ” (Kirkeby v. Superior Court (2004) 33
Cal. 4th 642, 647.) The notice may be recorded by any party who “asserts a
real property claim” in the action. (§ 405.20.) “A lis pendens clouds title until
the litigation is resolved or the lis pendens is expunged, and any party
acquiring an interest in the property after the action is filed will be bound by
the judgment.” (Slintak v. Buckeye Retirement Co., L.L.C., Ltd. (2006) 139
Cal. App. 4th 575, 586–587.)
Section 405.30 authorizes a party or nonparty “with an interest in the
real property” to file a motion to expunge the lis pendens. The court “shall
order the notice expunged if the court finds that the pleading on which the
notice is based does not contain a real property claim” (§ 405.31), or the real
property claim “lacks evidentiary merit.” (Park 100 Investment Group II, LLC
v. Ryan (2009) 180 Cal. App. 4th 795, 808.) The party opposing a motion to
expunge a lis pendens has the burden to show that a real property claim has
been alleged and has probable validity based upon a preponderance of the
evidence. (§§ 405.32, 405.30.)
20
In the present case, the Chase Defendants moved to expunge the lis
pendens on the ground that the Nunns could not establish the probable
validity of their real property claims because judgment was entered against
them on January 30, 2020. The trial court issued a tentative ruling denying
this motion on the ground that the matter was stayed pending appeal.
However, after the Nunns conceded the matter was not stayed, the court
issued another tentative ruling granting the motion. The court first rejected
the Nunns’ argument that their new trial motion should have been granted.
Then the court found the Nunns failed to establish the probable validity of
their claims for the reasons set forth in Nunn I. In reaching this conclusion,
the court refused to consider the Nunns’ offer of proof that their claims are
probably valid. The court adopted this second tentative ruling at the
conclusion of a July 29, 2020 hearing, and two days later it signed an order
expunging the lis pendens.
These circumstances raise concerns that warrant issuance of a writ of
mandate so the trial court may reconsider the expungement motion following
reversal of this judgment. The trial court relied, at least in part, on the
judgment dismissing this case under the mandatory dismissal law, which was
the only ground upon which the Chase Defendants’ based their motion. The
court’s alternative finding that the Nunns’ claims are likely to fail for reasons
set forth in Nunn I appears to overlook the fact that Nunn I found there were
triable issues precluding summary judgment against the Nunns. Moreover,
the Nunns contend this aspect of the trial court’s order violated their due
process rights to adequate notice and an opportunity to present evidence.
(Citing San Diego Watercrafts, Inc v. Wells Fargo Bank (2002) 102
Cal. App. 4th 308, 316 [when order will have significant impact on proceedings,
due process requires proper notice and opportunity to present evidence].)
21
Although we need not decide the constitutional issue, it appears that the
COVID-19 pandemic added an element of confusion to the procedure employed
to decide the expungement motion.
DISPOSITION
The judgment is reversed and this case is remanded for further
proceedings consistent with this opinion. The petition for writ of mandate is
granted. Let a peremptory writ of mandate issue directing the superior court
to vacate the July 31, 2020 expungement order and reconsider the Chase
Defendants’ motion to expunge the lis pendens in light of this decision. The
Chase Defendants are to bear costs in these consolidated proceedings.
TUCHER, J.
I CONCUR:
POLLAK, P. J.
22
STREETER, J., Dissenting.
By “long-settled principle” in our civil courts, plaintiffs have the
responsibility “ ‘ “to call to the attention of the court the necessity for setting
the trial for a time within the period fixed by [Code of Civil Procedure1
section 583.320].” ’ ” (Howard v. Thrifty Drug & Discount Stores (1995)
10 Cal. 4th 424, 434.) This is so “because it is they who have the interest, and
the statutory duty under section 583.310, to timely prosecute their cases.”
(Ibid.) Mindful of this principle, I must respectfully dissent.
A. The Record
1. The Settled Statement
Without considering the provenance of the settled statement
memorializing what happened at the May 16, 2019 case management
conference, the majority finds pivotal significance in the certification of that
statement by Judge Wood, who presided at the conference and set the trial
date at issue in this case. Not only does the settled statement as certified
show that “both parties affirmatively agreed to the January 13, 2020 [trial]
date” (maj. opn. ante, at p. 15), the majority concludes, but it was manifestly
prejudicial to the Nunns for Judge Langhorne to deny their motion to correct
the minutes of the May 2019 conference. (Maj. opn. ante, at pp. 17–19.) In so
concluding, the majority adopts the Nunns’ core assertion that the Chase
Defendants “agreed” to a January 2020 trial date at the May 2019 case
management conference.
This assertion is unsupported by the record.
First, when the Nunns submitted their proposed settled statement to
Judge Wood for certification, they included language stating that “[t]he
1Further undesignated statutory references are to the Code of Civil
Procedure.
1
lawyers agreed” to the January 13, 2020 trial date. Judge Wood struck that
language and ordered a correction saying instead that “[t]he lawyers both
indicated to the court that they had no objection to the trial being set on
January 13, 2020.” Judge Wood’s refusal to find that the “lawyers agreed” to
a trial date beyond the three-year deadline should end all discussion here.
She presided; she knows that the trial date was set by order, not by
agreement of the parties; and if her order set an “agreed” trial date, she
would have certified that version of events. It is simply not the case that
Judge Wood “did not decide whether the parties made an oral agreement.”
(Maj. opn. ante, at p. 18.) She was asked to certify that there had been such
an agreement, which was in substance the same request that had been made
to Judge Langhorne via the earlier minutes correction motion. Both judges
rejected the request.
Second, Judge Wood struck language in the Nunns’ proposed settled
statement saying that, at the outset of the May 2019 case management
conference, “The lawyers and the court discussed trial dates.” The sequence
of events recited in the settled statement, as corrected, shows that the first
thing Judge Wood did was “confirm[] with both attorneys that the matter
was ready to set for trial.” Only later, after she indicated she was considering
a trial date in November 2019, did the issue of the Chase Defendants’
interest in filing a summary judgment motion arise.2 Implicit in the Nunns’
2 In their case management statement filed March 29, 2019, the Chase
Defendants reported that they expected to file a summary judgment motion
before trial, that they expected to complete the Nunns’ depositions by “April
2019,” and that they expected to complete expert discovery by “summer
2019.” In late March 2019, when the Chase Defendants made these
statements, there was still ample time before the expiration of the three-year
deadline to complete these items. When they filed and briefed their motion to
2
argument in this appeal is that Judge Wood chose a trial date after the three-
year deadline to accommodate the Chase Defendants’ needs, but that is not
consistent with her corrections to the sequence of events at the conference.
This was not some mediation-like process in which she entertained
“discussions” of when the trial should take place, resulting in a date set by
consensus. She opened the conference by confirming both sides’ readiness for
trial—not after some period of time designed to meet any party’s needs, but
right then and there, on whatever date she set.
This detail matters because, in the Nunns’ portrayal of what happened
at the May 2019 case management conference, “Chase wasn’t ready” for trial,
needed “extra time,” and requested a trial date beyond the three-year
deadline. The majority uncritically adopts that position, stating that “the
Chase Defendants admitted requesting a trial date that would allow them to
conduct further discovery and move for summary judgment” (maj. opn. ante,
at p. 4)—indeed they did—but that ignores the context. The settled
statement is ambiguous about what motivated Judge Wood to set a trial date
on the date she chose, but a perfectly reasonable reading of it in light of her
corrections is as follows: She first confirmed the parties’ readiness for trial;
then selected a date in November 2019 that was convenient to the court; and
then gave counsel some input, which led her to order a date six months
beyond the three-year deadline, rather than four months beyond it. If that is
what occurred, and the Chase Defendants tried to make the best of what they
were presented with—a late 2019 trial date at the earliest—it is irrelevant
that they wanted enough time on the schedule contemplated by the court to
dismiss for failure to bring the case to trial in timely fashion under section
583.320, the Chase Defendants believed that our remittitur following the first
appeal was not filed until August 31, 2016, and thus that the three-year
deadline ran August 31, 2019, the date they filed their motion to dismiss.
3
prepare a motion that might avoid trial altogether. The fact the Chase
Defendants “indicated” they had no objection bears only on whether they
preserved their ability to argue on appeal that the trial setting order was
legally erroneous, something they have never suggested. And to say that
they “accepted” (maj. opn. ante, at p. 11) the date Judge Wood ultimately set
beyond the deadline is like saying they “accepted” an evidentiary ruling from
her at trial. Of course they accepted it. They had no choice.
Third, if we step back and take the broader procedural context into
account, it becomes even clearer why the Nunns’ suggestion that “Chase
wasn’t ready” for trial and sought a date after the three-year deadline
because they needed “extra time” is contrary to the record. In the nearly
three years that elapsed leading up to the May 2019 case management
conference, this case came on for a case management conference eight times
and eight times the Nunns failed to request the setting of a trial date.3 As of
May 2019, the Nunns—continuing a pattern of delay that had been going on
3 For the eighth case management conference, the one at issue in this
appeal, on May 16, 2019, the Nunns did not even bother to file the required
case management conference statement in advance of the conference. That
form of statement (Judicial Council form CM-110) required them to report to
the court whether there was any basis for trial preference. Had they done so,
answering the question yes as was plainly the case—not only was the three-
year deadline rapidly approaching but the Nunns were both well over seventy
years of age at the time (see § 36, subds. (a) & (e))—the issue presented in
this appeal would never have arisen.
4
for years4—repeatedly failed to appear for deposition,5 thus obstructing the
Chase Defendants’ plan to bring a summary judgment motion. The pattern
that emerges is, at best for the Nunns, one of lethargy, and at worst, one of
evasion. Drawing inferences in favor of the order under review, as we must,
the most reasonable reading of the record is this: The Chase Defendants,
faced with a delay into the final months of 2019—a delay that was brought
about not because either party requested it, but because no earlier date
appears to have been available on the court’s calendar—simply wished to
make sure there was enough time on the trial schedule set by the court so
that they would not face a repeat of the situation in Spring 2019, with the
Nunns once again refusing to appear for deposition and running the clock out
on a motion for summary judgment. We ought to credit the trial court’s
4 The property at issue in this wrongful foreclosure case is not the
Nunns’ primary residence, but a rental property. The Chase Defendants
argued in their motion to dismiss that “the reason Plaintiffs have failed to
diligently move . . . forward is because their primary objective was not to get
to trial, but rather to drag the litigation out as long as possible so that they
could continue to collect[] [rent] . . . without having made a loan payment . . .
in nearly ten years.”
5 The Nunns failed to appear for noticed depositions on March 19, 2019
(Gerald Nunn) and March 20, 2019 (Judith Nunn), respectively; April 17,
2019; and May 17, 2019. Each time they claimed medical inability due to the
stress of sitting for deposition. Granting a motion to compel after the third
non-appearance, Judge Langhorne took note of a newspaper article published
May 18, 2019, explaining that “[t]he article shows the Nunns protesting with
a large banner in front of a home and [reports that] they are fighting to
reclaim the property . . . .” She questioned whether the act of “engaging in a
protest of the very case supposedly causing them stress may itself increase
and exacerbate [their] purported stress,” and ruled that “in light of this
evidence, and the limited information provided in the doctors letters, the
Court finds the Nunns have made an insufficient showing of medical inability
to sit for their requested depositions.”
5
ability to see and account for things like this, rather than accept spin from
the Nunns that is designed to justify reversal.
2. We Should Defer to the Trial Court’s View of the Record
Because this appeal turns on inferences the majority draws from an
ambiguous record, we should resolve it under ordinary standard of review
principles. “Stipulations under [former] section 583 . . . are no different from
other contracts [citation] and are subject to the same rules of construction.”
(J. C. Penney Co. v. Superior Court (1959) 52 Cal. 2d 666, 669 (J. C. Penney).)
Contracts require mutual assent. No contract could have been formed here
because the January 13, 2020 trial date was imposed on the parties, not
produced by their mutual assent or choice. Because Judge Wood recognized
this basic reality and rejected the Nunns’ proposal that she certify language
stating that she set a trial date that all counsel “agreed to,” we have no power
to second-guess her and find an agreement on appeal.
Even if, sitting as fact finders, we were inclined to think the “words and
actions by the parties” at the May 2019 case management conference
“constitute objective evidence of an agreement to set the trial for a specific
date . . . beyond the three-year deadline” (maj. opn. ante, at p. 14)—I do not,
but I will accept the majority’s contrary assessment for argument’s sake—we
must still affirm because there is reasonable and credible evidence of solid
value pointing the other way, and thus the substantial evidence standard
dictates the correct outcome. (Winograd v. American Broadcasting Co. (1998)
68 Cal. App. 4th 624, 627–629, 633 [substantial evidence standard requires
affirmance of trial court’s determination that counsel’s on-the-record colloquy
6
with the court concerning the timing of arbitration evidenced no objective
manifestation of intent to extend the five-year deadline].)6
The majority’s willingness to find it was error to deny the Nunns’
motion to correct the minutes is even more mystifying than its disregard of
the substantial evidence standard. Judge Langhorne’s determination that
there was “nothing to correct” fell well within the bounds of reasonableness
and violated no legal principle. (See Cahill v. San Diego Gas & Electric Co.
(2011) 194 Cal. App. 4th 939, 957 [no abuse of discretion where a decision
“falls within the permissible range of options set by the applicable legal
criteria”].) Her decision to deny the Nunns’ correction request was not only
consistent with Judge Wood’s later certification of the settled statement, but
the specific “correction” the majority faults her for refusing to make—
declining to accept a revision of the minutes to show that Judge Wood set the
January 2020 date by “agreed” order—went beyond her power to order a nunc
pro tunc correction “to make [the court’s] records conform to the actual facts”
(Siegal v. Superior Court (1968) 68 Cal. 2d 97, 101).
Based on the precedent the majority cites in conceding the wide
latitude trial courts enjoy when dealing with requests to correct clerical error
short of nunc pro tunc entry of an order (Conservatorship of Tobias (1989)
208 Cal. App. 3d 1031, 1034), Judge Langhorne’s denial of the Nunns’ motion
6 See Preiss v. Good Samaritan Hospital (1959) 171 Cal. App. 2d 559,
564 (“There is a conflict between the declaration of defendant’s counsel and
the affidavit of plaintiff’s counsel as to whether any oral stipulation had been
entered into for a continuance beyond the five-year period. In granting the
motion to dismiss, the court impliedly found that no such stipulation had
been entered into. ‘ “An appellate court will not disturb the implied findings
of fact made by a trial court in support of an order, any more than it will
interfere with express findings upon which a final judgment is predicated.
When the evidence is conflicting, it will be presumed that the court found
every fact necessary to support its order that the evidence would justify.” ’ ”).
7
to correct the minutes was within her discretion. Indeed, I would go further
and say it would have been an abuse of discretion to grant the motion.
(Hamilton v. Laine (1997) 57 Cal. App. 4th 885, 890–892 [reversing “nunc pro
tunc order [that] was not made to cure a clerical error or omission in the
order originally rendered, but was made solely to remedy perceived judicial
error”].) To the extent a minute order diverges from the proceedings it
purports to memorialize, it is presumed to be the product of clerical error.
(People v. Mesa (1975) 14 Cal. 3d 466, 471.)7 Because the Nunns argued that
the minutes of the May 16, 2019 case management conference provided an
incomplete summary of what was discussed in the colloquy with Judge Wood
that day—not that the minutes mistakenly showed Judge Wood ordering one
thing, when she intended another—they alleged clerical error. I fail to see
how it could possibly be an abuse of discretion for Judge Langhorne to deny
an after-the-fact request for a better clerical summary in the minutes of what
happened at the May 2019 case management conference. The Nunns did not
contend anything in the minutes was wrong; they contended the minutes
7 Clerical error occurs when the record fails to reflect what the court
actually ordered (Hamilton v. Laine, supra, 57 Cal.App.4th at p. 891), while
judicial error occurs when the record reflects what the judge actually ordered,
but fails to reflect what she “ought to have” ordered. (Estate of Eckstrom
(1960) 54 Cal. 2d 540, 545–547.) The line of cases drawing this distinction
typically involves whether a court has nunc pro tunc power to revise a prior
order. To state the rule generally, if the error is judicial, the answer is no; if
it is clerical, the answer is yes. The language the majority relies upon from
Carpenter v. Pacific Mut. Life Ins. Co. (1939) 14 Cal. 2d 704, 708–709
(Carpenter) (maj. opn. ante, at p. 18)—which involved the vacatur of an order
of dismissal two years after it was entered in the minutes on the ground that
the dismissal was never ordered—addresses the power of the original judge
who issued the order to decide whether the error was clerical or judicial.
That judge’s view about the error being clerical, the court held, is
“ ‘conclusive.’ ” (Id. at p. 709.) No such issue is presented here.
8
should be enhanced. Rather than seek correction of what the record showed
the court ordered, they were looking for a summary more to their liking of
what the parties said and did. If the Nunns wanted a fulsome summary of
this kind, they should have arranged for a court reporter.
The majority criticizes Judge Langhorne for denying the minutes
correction motion on “erroneous procedural grounds” (maj. opn. ante, at
p. 19), but of course when reviewing for abuse of discretion we review the
result not the reasons. (D’Amico v. Board of Medical Examiners (1974)
11 Cal. 3d 1, 19.) And in any event, not only was Judge Langhorne right on
the merits to reject a request to transform the minutes correction process into
a retroactive request for better clerical notetaking, but there was nothing
procedurally improper about what she did either. The Nunns, as appellants,
bear the burden of showing that they requested their motion be assigned to
Judge Wood and that she was available to decide it. They cannot meet that
burden because they made no such request. When record correction requests
are decided by a judicial officer other than the one who presided at the
proceeding in question—as they often are, of necessity—a variety of sources
may be called upon to evaluate the request, including a declaration or
testimony from the judge who allegedly made the order (Estate of Doane
(1964) 62 Cal. 2d 68, 70–71), the judge’s handwritten notes (In re Roberts
(1962) 200 Cal. App. 2d 95, 98; Carpenter, supra, 14 Cal.2d at pp. 709–710),
the court reporter’s transcript or declaration (Nathanson v. Murphy (1957)
147 Cal. App. 2d 462, 468; Carpenter, at p. 710), or declarations from attorneys
present when the decision was rendered (Nathanson, at pp. 467–468).
Whether Judge Langhorne had “first-hand knowledge” of the May 16,
2019 case management conference (maj. opn. ante, at p. 17) is therefore
irrelevant. She had before her a full set of declarations from the lawyers who
9
attended the May 16, 2019 case management conference as well as from the
Nunns themselves. The Nunns take the position the corrections they sought
were relevant to the arguments they wished to make on appeal, but that is
what the settled statement process is designed for. The problem the Nunns
faced, and still face, is that if we apply ordinary standard of review
principles, the facts in the settled statement are insufficient to demonstrate
that the January 13, 2020 trial date was set by agreement. Obviously, we
cannot charge Judge Langhorne with a duty to predict we would change the
law on appeal. And unless we are prepared to say it was unreasonable for
her to conclude based on prevailing law there was no “oral agreement” to
extend the three-year deadline (Cahill v. San Diego Gas & Electric Co.,
supra, 194 Cal.App.4th at p. 957 [“there is no abuse of discretion requiring
reversal if there exists a reasonable or fairly debatable justification under the
law for the trial court’s decision”])—a topic I shall discuss in depth in the next
section—it cannot have been an abuse of discretion for her to deny the
minutes correction request.
On the record Judge Langhorne had before her, what is most
significant about these declarations is what they do not say. None of them
purports to say that the Chase Defendants requested a trial date after the
three-year cut-off, or were not ready for trial in May 2019. Nor do any of the
declarations state that Judge Wood chose to look to the end of 2019 for a trial
date because of the Chase Defendants’ desire to bring a summary judgment
motion or need for discovery. These are the critical facts the Nunns rely upon
here, and they are most definitely disputed, as shown by the fact the Chase
Defendants opposed placing the inaccurate statement that their counsel
“agreed” to a January 2020 trial date in the minutes by correction or in the
settled statement by certification. There is a reason the declarations omit
10
these disputed facts: They are hindsight inferences that the Nunns’ new
lawyer, Charles Dell’Ario, who replaced Ronald Freshman and who did not
attend the crucial May 2019 case management conference, invites us to draw.
By taking up that invitation, my colleagues are not relying on Judge Wood’s
account of the proceedings. (Maj. opn. ante, at pp. 17–19.) They are relying
on the Nunns’ account. The only declaration that said anything about anyone
agreeing on anything at the May 16, 2019 case management conference was
from Judith Nunn, who recounted from her lay perspective what she
observed in a judicial proceeding. She declared that, as she understood it, the
“lawyers agreed” to the January 13, 2020 date. But that happens to be the
very language Judge Wood struck when asked to certify it in the settled
statement. It is odd, but telling, that the majority suggests Judge Langhorne
erred by refusing to accept this version of events. (Maj. opn. ante, at pp. 17–
19.)
B. The Law
Lying behind the differences I have with the majority about the proper
reading of the record in this case is a sharp departure by my colleagues from
more than a century of settled case law. No case—until today—has implied
from bits and pieces of the parties’ words and conduct at a trial setting
conference an oral agreement to extend a mandatory trial deadline. I believe
the majority’s holding on this point will have significant unintended
consequences. Under the new rule we announce today, a plaintiff faces little
or no risk for standing mute at a trial setting conference in the face of an
imminent statutory trial deadline, safe in the assumption that the
defendant’s acquiescence to any trial date set without objection will
“ ‘necessarily’ ” amount to an agreed extension of the deadline (maj. opn. ante,
at p. 7). That, in my view, undermines the independent responsibility trial
11
courts have to manage delay. (See Cal. Stds. Jud. Admin., § 2.1(a)–(b).) But
what is perhaps most unfortunate is that the step the majority takes here is
unnecessary. The answer to the statutory interpretation question framed for
decision here may be found in established precedent going back many
decades. All we need to do to understand the meaning of an “oral agreement”
under section 583.330, subdivision (b), is to apply the law as our predecessors
have given it to us, rather than reinvent it in the guise of statutory
interpretation.
Because I believe a course correction is as necessary as it is inevitable,
whether on review in this case or in some future case, I shall explain below in
considerable detail exactly where the majority’s opinion is legally incorrect,
unpeeling the errors layer by layer.
1. The Statute and the Majority’s Interpretation of It
I begin with the text of the statute. Section 583.330 provides that
“[t]he parties may extend the time within which an action must be brought to
trial pursuant to this article” by two “means,” either by “written stipulation”
under subdivision (a) or by “oral agreement” under subdivision (b). Because
there is no contemporaneous record of any “oral agreement” having been
made on May 16, 2019—such an oral agreement must be “entered in the
minutes of the court or a transcript”—the majority’s reasoning collapses with
its mistaken analysis of Judge Langhorne’s denial of the Nunns’ motion to
correct the minutes. The statute’s textual requisites for an “oral agreement”
have not been met. This appeal could have and should have been resolved in
a brief unpublished affirmance on that issue alone. (Preiss v. Good
Samaritan Hospital, supra, 171 Cal.App.2d at p. 563.)
The absence of any contemporaneous record of an “oral agreement” is
the most conspicuous of the errors in my colleagues’ analysis, but my greater
12
concern is with their treatment of the pertinent case law. Our Supreme
Court decided in 1923 that anyone seeking to rely on an agreed extension to
the statutory time to bring a case to trial, whether written or oral, must meet
the burden of proving such an agreement by “clear and uncontrovertible
evidence.” (Miller & Lux, Inc. v. Superior Court (1923) 192 Cal. 333, 339–340
(Miller & Lux).) Ever since Miller & Lux was decided, this heightened
standard of proof has been elemental to the law governing dismissal for
failure to bring an action to trial within prescribed statutory timeframes. If
Miller & Lux is to be declared outmoded, that should be done openly—and
not by us—rather than by treating the holding there as if it supports a
reversal on this record, when it plainly does not.
Stating that it finds guidance in Miller & Lux, the majority holds that a
defendant’s “acceptance” of a trial date after the statutory three-year period
under section 583.320 “necessarily” implies an agreement to extend the
statutory period. It concludes by neatly tying up the logic, claiming
consistency with “precedent” under the “written stipulation” prong of section
583.330, subdivision (a)—actually one case, Munoz v. City of Tracy (2015)
238 Cal. App. 4th 354 (Munoz)—and with legislatively declared policies
codified in section 583.130 (prioritizing cooperation in bringing cases to trial
and “the right of parties to make stipulations in their own interests” over the
competing policy of timely prosecution). (Maj. opn. ante, at p. 9.)
There is much to unpack here, but the main problem is that, far from
being supported by Miller & Lux and the generations of precedent building
upon it, the majority turns Miller & Lux on its head. Without accounting for
differences in the text and structure of section 583.330 that justify why
written extension agreements and oral extension agreements have always
been treated differently—as is plainly evident in Miller & Lux itself—the
13
majority extends the holding in Munoz to oral agreements, undermining
more than a hundred years of case law in the process. Tying this flawed
analysis to legislatively declared policy does not save it; section 583.130
simply codifies prior judicial declarations of policy in longstanding case law.
If the settled understanding of Miller & Lux over the last one hundred years
began to conflict with these policy statements at some point, no one has
discovered it until today. And in any event, any reappraisal of Miller & Lux
as a matter of policy is something only the Supreme Court can undertake.
2. The 1984 Statutory Revision
Section 583.310 sets forth the requirement of bringing a case to trial in
five years, and section 583.320 lays out the three-year deadline following
appeal and remand. Section 583.360, subdivision (a) makes dismissal
mandatory for a violation of either statute in the absence of a statutory
exception. “The mandatory dismissal statute is founded upon the policy of
the diligent prosecution of actions. [Citation.] A plaintiff . . . has the duty
‘ “at every stage of the proceedings to use due diligence to expedite his case to
a final determination.” ’ ” (Perez v. Grajales (2008) 169 Cal. App. 4th 580,
589.) “ ‘ “[T]he purpose of the [five-year or three-year] statute is ‘to prevent
avoidable delay for too long a period.’ ” ’ ” (Tamburina v. Combined Ins. Co.
of America (2007) 147 Cal. App. 4th 323, 328 (italics omitted).) “The burden of
avoiding the consequences of section 583[.320] is cast on the party seeking to
prevent a dismissal thereunder.” (Anderson v. Erwyn (1966) 247 Cal. App. 2d
503, 506.)
From early on following its adoption in 1905, former section 583 was
understood as giving a defendant a “right” to a dismissal if the plaintiff
missed his or her five-year or three-year deadline for bringing the case to
trial. (Miller & Lux, supra, 192 Cal. at p. 338.) Still today, the current
14
mandatory dismissal statutes establish the “trial court’s duty to enter a
mandatory dismissal, and the defendant’s right to obtain one for lack of
prosecution.” (M & R Properties v. Thomson (1992) 11 Cal. App. 4th 899, 902.)
“Thus, unless some specified exception applies, a trial court has a mandatory
duty to dismiss an action and a defendant has an absolute right to obtain an
order of dismissal, once five years has elapsed from the date the action was
commenced.” (Id. at p. 903.) The same rule applies if the plaintiff fails to
bring the action to trial within three years after the filing of a remittitur after
an initial appeal. (§ 583.320.)
Former section 583 was only one of a number of related statutes
governing the duty of diligent prosecution, all dating from the early twentieth
century. Together as a package, these statutes were revised in 1984. (Gaines
v. Fidelity National Title Ins. Co. (2016) 62 Cal. 4th 1081, 1090 (Gaines); see
Stats. 1984, ch. 1705, § 5, pp. 6176–6180.) “The legislative history makes
clear that the revision was prepared by the California Law Revision
Commission. The Legislature and commission intended largely to codify, not
supplant, the quasi-common law developments in this area that had evolved
over the preceding decades. (See Assem. Com. on Judiciary, Rep. on Sen. Bill
No. 1366 (1983–1984 Reg. Sess.) as amended July 3, 1984, p. 3 [‘ “The major
purpose of the bill is to clarify ambiguities in the law, to bring the statutes
into conformity with case law interpreting them, and to reconcile
discrepancies in statutes and cases.” ’]; Revised Recommendation Relating to
Dismissal for Lack of Prosecution (June 1983) 17 Cal. Law Revision Com.
Rep. (1984) p. 916 [(1984 Cal. Law Revision Rep.)] . . . .)” (Gaines, supra,
62 Cal.4th at p. 1090.)
Before the 1984 revision, courts developed a series of exceptions to
former section 583, reading the exceptions into the statute by implication.
15
Lack of diligent prosecution may be excused, courts held, where
circumstances beyond the plaintiff’s control render it impossible or
impracticable to bring a case to trial in timely fashion.8 Applying equitable
principles, other courts invoked the doctrine of estoppel where a defendant
engaged in conduct that lulled the plaintiff into believing timely prosecution
was not required,9 or the doctrine of waiver where a defendant engaged in
conduct inconsistent with an intention to insist upon timely prosecution.10 To
guard against rigid and mechanical application of the statute, the case law
also made clear that, as a general matter, the policy of diligent prosecution is
subordinate to preferred policies favoring decision on the merits11 and giving
effect to agreed arrangements between the parties.12 Subject to a handful of
clarifying changes, what the Legislature did in 1984 was to codify and restate
this decisional law.13 With respect to section 583.330, subdivision (b), in
8 Christin v. Superior Court (1937) 9 Cal. 2d 526, 533.
Tresway Aero, Inc. v. Superior Court (1971) 5 Cal. 3d 431, 437–438
9
(Tresway).
10 Southern Pacific Co. v. Seaboard Mills (1962) 207 Cal. App. 2d 97,
104.
11 Denham v. Superior Court (1970) 2 Cal. 3d 557, 566.
12 General Ins. Co. v. Superior Court (1975) 15 Cal. 3d 449, 454.
13 Responding to the recommendations of the Law Revision
Commission, the 1984 revisions clarified the language of former section 583
in five principal ways. First, the revised statutory scheme—set forth in
sections 583.110 through 583.360—expressly recognizes exceptions to
mandatory dismissal that had been implied by judicial construction, and
expressly codifies statements of policy that were formerly discernible only in
case law. (1984 Cal. Law Revision Rep., supra, at pp. 915–937.) Second,
section 583.140 expressly states that nothing in the revised statutory scheme
“abrogates or otherwise affects the principles of waiver and estoppel,” thus
confirming the continuing applicability of cases that apply these equitable
principles in construing the statute. (1984 Cal. Law Revision Rep., at
16
particular, the Law Revision Commission explicitly stated that the statute
“codifies existing case law.”14 In construing subdivision (b), therefore, “a
substantial body of case law [must] guide[] our analysis.” (Gaines, supra,
62 Cal.4th at p. 1090.)
3. Section 583.330 and the Case Law It Codifies
a. The Statute and the Case Law Treat Written Stipulations and
Oral Agreements Differently
The majority expresses concern for ensuring that section 583.330,
subdivision (a), dealing with “written stipulation[s],” and section 583.330,
subdivision (b), dealing with “oral agreement[s],” are interpreted in a
congruent manner. (Maj. opn. ante, at pp. 8–9.) But section 583.330, on its
face, and in its structure, treats written stipulations and oral agreements
differently. In the case of a written stipulation under section 583.330,
subdivision (a), there is no requirement that the court have any knowledge or
awareness of the extension at the time the parties enter into it. By contrast,
an extension of the statutory deadline effected by oral agreement under
section 583.330, subdivision (b) must be brought to the court’s attention when
pp. 929–930, comment on proposed § 583.140.) Third, section 583.330
overrules prior case law holding that, due to the omission of any language
referring to extension by “written stipulation” in the statute dealing with the
three-year period following issuance of remittitur, only the five-year period
could be extended by agreement. (1984 Cal. Law Revision Rep., at p. 935,
comment on proposed § 583.330.) Fourth, section 583.330 makes clear that
extensions by written and oral agreement may be effectuated in both the five-
year and three-year scenarios. (1984 Cal. Law Revision Rep., at p. 935,
comment on proposed § 583.330.) And fifth, the requirement in former
section 583 that “written stipulations” to extend must be filed with the court
was deleted. (1984 Cal. Law Revision Rep., at p. 935, comment on proposed
§ 583.330.)
141984 Cal. Law Revision Rep., supra, at page 935, comment on
proposed section 583.330.
17
entered. Such an agreement must be “made in open court” and either
“entered in the minutes of the court” or memorialized in a “transcript.”
(§ 583.330, subd. (b).)
These are not arbitrary formalities. The case law explains their
purpose. They are there to minimize after-the-fact disputes about whether
an agreement of the parties was actually made in the first place. As the
Supreme Court explained, the Miller & Lux clear statement in open court
protocol—read into former section 583 and carried forward in
section 583.330, subdivision (b)—is designed to “preclude all disputes, with
their attendant charges and countercharges of overreaching and unethical
conduct, by a requirement that clear and uncontrovertible evidence be
presented to the court that the statutory time was deliberately intended to be
extended by both parties.” (Miller & Lux, supra, 192 Cal. at p. 340 (italics
added); accord Miles v. Speidel (1989) 211 Cal. App. 3d 879, 883.) Under
Miller & Lux, simple agreement on a trial date that, without either party
realizing it, happens to be beyond the deadline, is not enough. The parties
must have in mind the setting of a date they both understand extends “the
statutory time.” (Anderson v. Erwyn, supra, 247 Cal.App.2d at p. 506;
Rosenfelt v. Scholtz (1936) 17 Cal. App. 2d 443, 445.) This test applies not just
to the substance of what must be proved (Weddington Productions, Inc. v.
Flick (1998) 60 Cal. App. 4th 793, 811 [“ ‘[c]onsent is not mutual, unless the
parties all agree upon the same thing in the same sense,’ ” quoting Civ. Code,
§ 1580]), but also to the form in which such agreements must be made.
Agreements to extend the “statutory time” may be either written or oral, but
if oral, they must be confirmed on the record in open court.
The stringent Miller & Lux clear statement protocol governing
agreements to extend the statutory three-year and five-year deadlines is not
18
an artifact that may be discounted as a relic of the past or treated as an
anomaly. Miller & Lux was consistently cited in cases applying former
section 583 in the decades after it was decided (e.g., Camille’s Corp. v.
Superior Court (1969) 270 Cal. App. 2d 625, 628–629; Bank of America etc. v.
Superior Court (1937) 22 Cal. App. 2d 450, 452), and after the repeal of former
section 583 in 1984, it is still cited in cases decided under section 583.330.
(E.g., Gaines, supra, 62 Cal.4th at pp. 1092–1093; Miles v. Speidel, supra,
211 Cal.App.3d at p. 883.) The continuing vitality of Miller & Lux should not
be surprising. Strictly enforced formal protocols for certain kinds of
agreements made in the course of litigation have been a common feature of
California civil procedure since well before Miller & Lux.15 Thus, section
15 E.g., Code of Civil Procedure section 283, subdivision (1)
(stipulations of counsel in civil actions must be “filed with the clerk” or
“entered upon the minutes of the court”), see Smith v. Whittier (1892) 95 Cal.
279, 287 (when an “attorney . . . enter[s] into an agreement for the purpose of
binding his client, there shall be such a record thereof as will preclude any
question concerning its character or effect”); Code of Civil Procedure
section 664.6, subdivision (a) (authorizing entry of judgment upon terms of
settlement made “in a writing signed by the parties outside the presence of
the court or orally before the court”), see Sully-Miller Contracting Co. v.
Gledson/Cashman Construction, Inc. (2002) 103 Cal. App. 4th 30, 37
(“[b]ecause of its summary nature, strict compliance with the requirements of
§ 664.6 is prerequisite to invoking the power of the court to impose a
settlement agreement”); Family Code section 2550 (manner of division of
community estate upon terms of oral or written agreement), see In re
Marriage of Huntley (2017) 10 Cal. App. 5th 1053, 1062 (“[t]he requirement of
[Fam. Code §] 2550 that an agreement either be written or orally stated in
open court is strictly construed”). The justifications for conditioning
enforceability on a writing or oral agreement confirmed in open court vary in
each of these settings, but avoiding the need to resolve after-the-fact disputes
is common to all of them. (Smith v. Whittier, supra, 95 Cal. at p. 287 [Code
Civ. Proc., § 283, subd. (1)]; Levy v. Superior Court (1995) 10 Cal. 4th 578, 585
[Code Civ. Proc., § 664.6]; In re Marriage of Dellaria & Blickman-Dellaria
(2009) 172 Cal. App. 4th 196, 204 [Fam. Code, § 2550].)
19
583.330, subdivision (b)—along with the case law it codifies and restates—
has plenty of company in the statute books.
b. Miller & Lux v. Superior Court
It is ironic that the majority relies on Miller & Lux because that much-
cited case gives us the classic statement for why courts have always taken a
strict approach to proving up orally agreed extensions of the statutory time to
commence trial under former section 583. The full background of the case is
worth considering in some detail. It arose when, after three lawsuits were
filed by the plaintiffs in the years 1905 through 1908, the plaintiffs entered a
stipulation proposed by the defendants providing that the setting of trial in
these cases would take place only after a related case, known as the “Turner
case,” was prosecuted to judgment. (Miller & Lux, supra, 192 Cal. at
pp. 335–337.) But because the Turner case was beset by protracted delays,
the trial dates in the plaintiffs’ cases were not set until 1920, many years
after the expiration of the statutory deadline for commencing trial. (Ibid.)
The plaintiffs took the position that the parties’ agreement that the trial
setting in their case trail the trial in the Turner case implicitly extended the
five-year deadline to commence trial. (Id. at pp. 340–341.)
That frames the precise issue addressed in Miller & Lux, but another
relevant aspect of the case is its legal backdrop. While the long-running
Miller & Lux litigation was still pending in the trial court, the Supreme
Court decided Larkin v. Superior Court (1916) 171 Cal. 719, 722. In Larkin,
the court suggested in dicta that it was a “serious question” whether an oral
agreement recited in open court and entered upon the court minutes might be
given the same force and effect as a written stipulation under former section
583. (Larkin, at p. 722.) Citing Larkin, the Miller & Lux court accepted for
purposes of analysis that oral agreements confirmed in open court may be
20
treated as equivalent to written stipulations extending a statutory trial
deadline.16 (Miller & Lux, supra, 192 Cal. at p. 340.) On that assumed
premise, the Miller & Lux court rejected an attempt to prove up such an
agreement. The holding in Miller & Lux thus cuts directly against the
Nunns. And the position the Nunns take here fails for the same reason it
failed in Miller & Lux: They have not presented “clear and uncontrovertible”
evidence of deliberate, mutual intent by the parties to extend the statutory
deadline, proved up based on an agreement recited in open court. (Ibid.)
Under a fair reading of Miller & Lux, we must be mindful of what the
Supreme Court said in explaining why no oral agreement was shown on that
record. The Miller & Lux defendants’ stipulation to the setting of trial only
upon completion of all proceedings in the Turner case—in essence, an open-
ended extension of time that made no mention of the five-year deadline—fell
“far short of attaining the dignity of an oral stipulation in open court and
certainly [did] not come within the category of written stipulations.” (Miller
& Lux, supra, 192 Cal. at p. 340.) “The waiver of defendants’ right to dismiss
and a consent to an indefinite continuance can only be implied or inferred
from such conduct,” the court observed. (Ibid.) “To hold that this inferential
consent is the same as a written stipulation would be to give to this section a
16 I will address this aspect of the evolution of Miller & Lux in greater
detail below, but in short, decades later, in Woley v. Turkus (1958) 51 Cal. 2d
402 (Woley), the Supreme Court expressly adopted the assumed premise of
the Miller & Lux holding, announcing in 1958 that oral agreements stated
clearly in court minutes are enforceable. (Woley, at pp. 408–409.) The first
case to hold that oral agreements to extend statutory trial deadlines are
enforceable, if made in open court and recorded in court minutes, was Govea
v. Superior Court (1938) 26 Cal. App. 2d 27 (Govea). The Supreme Court
endorsed Govea in Woley, supra, 51 Cal.2d at page 408, citing it with
approval and applying it. (See 1984 Cal. Law Revision Rep., supra, at p. 917,
fn. 49.)
21
strained construction, which, while it might relieve the harshness of the
result in these particular cases, would be to render futile the salutary
provisions of this section intended to secure preciseness of practice and
procedure. The very harshness of the rule would seem to be intended to put
the plaintiff on the qui vive to secure irrefutable evidence of the defendant’s
consent to an extension of the statutory time.” (Ibid.)
Because all of the same things may be said here about recognizing an
extension agreement by “inferential consent” (Miller & Lux, supra, 192 Cal.
at p. 340), I draw a very different lesson from Miller & Lux than the majority
does. Though today the exact protocol governing written stipulations to
extend the statutory deadline under section 583.330, subdivision (a) is
somewhat more lax than it is for oral agreements under section 583.330,
subdivision (b)—since written stipulations need not be brought to the
attention of the court when made—the enduring significance of Miller & Lux
is quite simple: The burden of proving such an agreement, whether written
or oral, remains a demanding one. A qualifying agreement need not be
written, but it must be express. (Miller & Lux, supra, 192 Cal. at p. 340.) We
do not imply it from conduct or infer it from silence. (Ibid.) And the
formalities, the “preciseness of practice and procedure” (ibid.), matter.
c. Wright v. Groom Trucking Co.
Wright v. Groom Trucking Co. (1962) 206 Cal. App. 2d 485, 495 (Wright),
the earliest of a series of four Court of Appeal cases (see fn. 17, post, pp. 24–
25) to address the issue before us, is on point and should control the outcome
here. Just as the Nunns contend that statements memorialized in the settled
statement may be read as an “agreement” to extend an unmentioned
statutory deadline, the plaintiff in Wright argued the same thing, focusing on
language in a pretrial conference order setting a trial date beyond the five-
22
year deadline. (Id. at p. 490.) In an opinion written by then First District
Court of Appeal Justice Raymond Sullivan, a panel of this court disagreed.
“By emphasizing certain words of the order,” the court explained, the
“plaintiffs suggest that evidence of [a] stipulation of the parties can be found
in the recital that the estimated trial time was four days, that a jury was
demanded by defendants, and that notice of trial was waived.” (Id. at p. 492,
italics omitted.) But these recitals showing acceptance by the parties that a
trial would take place after the deadline—as confirmed by the defendant’s
affirmative conduct in providing an estimate of the length of trial, demanding
a jury, and waiving notice—did not amount to an agreed extension. (Id. at
pp. 491–492.) The trial date was imposed, not set by agreement. Consent of
the parties was not required for the setting of the trial date, the court pointed
out. “It is clear that the above words upon which plaintiffs lay great stress
and in which they find great significance do not, either singly or together,
amount to” a stipulation to extend the five-year deadline, the court said. (Id.
at p. 492.)
Though the majority suggests by innuendo that the Chase Defendants’
argument in this case rests on a quibble over the fact that no one uttered the
word “stipulation” (maj. opn. ante, at p. 14), it does not. The Chase
Defendants make no argument that the deficiency in the record here is the
parties’ failure to employ some particular form of terminology, and that was
not the issue in Wright either. The Wright court relied on J. C. Penney, then
the most recently decided case from the California Supreme Court under
former section 583. (Wright, supra, 206 Cal.App.2d at p. 492.) This aspect of
Wright is particularly significant because J. C. Penney explicitly reaffirms the
Miller & Lux holding that, to be enforceable under former section 583 (and
now section 583.330), an agreement must “extend in express terms the time
23
of trial to a date beyond the five-year period or expressly waive the right to a
dismissal.” (J. C. Penney, supra, 52 Cal.2d at p. 669.) Justice Roger
Traynor’s opinion for the court in J. C. Penney rejected an argument from the
plaintiff that a written stipulation to continue the pretrial conference in that
case on an open-ended basis could be treated as equivalent to a written
stipulation to extend the five-year deadline, even though such an intention
was not expressly stated in the language the parties employed. (Id. at
pp. 670–671.) The plaintiff conceded that the requirement to show express,
deliberate intention to extend the five-year deadline defeated its argument,
but asked the Supreme Court to “reappraise[]” Miller & Lux and its progeny,
which the court refused to do. (Id. at p. 669.)
It is beside the point that Wright was decided “before the statute
allowed parties to extend a trial deadline by oral agreement.” (Maj. opn.
ante, at p. 14.) Oral extension agreements were enforceable then, as they are
enforceable today, so long as, in the words of Miller & Lux, they “attain[] the
dignity of an oral stipulation in open court” and thus “come within the
category of written stipulations.” (Miller & Lux, supra, 192 Cal. at p. 340.) If
it were correct, as the majority implies, that the enforceability of oral
agreements to extend the statutory deadline was an innovation of section
583.330, subdivision (b), the Wright court would simply have said the alleged
agreement there was not in writing, without more. But the court said far
more, discussing at length why the defendant’s words and actions as
memorialized in the pretrial order did not meet the Miller & Lux standard.17
17 Three other cases to the same effect are Sanchez v. City of Los
Angeles (2003) 109 Cal. App. 4th 1262, 1269, footnote 3 (Sanchez) (finding no
stipulation “in express terms” to extend five-year deadline of January 10,
2002, where the parties appeared at a September 25, 2001 trial setting
24
(Wright, supra, 206 Cal.App.2d at pp. 492–493.) It did so because, by the
time Wright was decided in 1962, the enforceability of clearly expressed oral
extension agreements made in open court had been established for more than
two decades under Govea, arguably going even further back to Miller & Lux.
In the end, the nub of the problem the Nunns face is that, having failed
to say anything in open court about an imminent statutory deadline to try
conference, no one mentioned the approaching deadline, and despite the
parties’ request for a December 18, 2001 trial date, the court set a date of
January 29, 2002, without objection by either side), Taylor v. Shultz (1978)
78 Cal. App. 3d 192, 195, 197 (defendant’s conduct in appearing for a trial
setting conference before the expiration of the five-year deadline, agreeing to
attend a mandatory settlement conference after the deadline, and requesting
a later trial date, was not “tantamount to a written stipulation or oral
stipulation entered in the minutes extending the five-year period”), and
Singelyn v. Superior Court (1976) 62 Cal. App. 3d 972, 975 (defendant’s
conduct in attending trial setting conference four months before expiration of
five-year deadline where the court set a trial date one day after the deadline,
“without objection by either side,” did not bar it from obtaining mandatory
dismissal under former section 583).
The majority brushes aside Sanchez on the ground that its discussion of
this point (Sanchez, supra, 109 Cal.App.4th at p. 1269, fn. 3) appears
“peripherally, in a footnote” while the body of the opinion focuses mainly on
the impracticability exception. (Maj. opn. ante, at p. 13.) However the
Sanchez opinion is characterized, the plaintiffs’ claim of an oral agreement in
that case was squarely presented—there was a written stipulation requesting
a date within the five-year deadline, but the plaintiff argued the defendant’s
acquiescence to the setting of a final status conference after the deadline
amounted to consent—so the court’s resolution of the issue was necessary to
the decision. The court dealt with the issue by addressing it in a footnote
because, until today, attempts to imply oral agreements from conduct and
statements at pretrial conferences have been viewed as so plainly contrary to
Miller & Lux that, except for the plaintiff in J. C. Penney—which forthrightly
and unsuccessfully asked that Miller & Lux be overruled—plaintiffs have
tended to advance these arguments as a last resort. The fact the Sanchez
court dealt with the issue in a footnote is a sign of how out of step with
precedent the majority’s holding is, not evidence that Sanchez lacks
precedential value.
25
this case, they cannot show that anyone was aware of the need for an
extension, statutory or otherwise. That leaves them with nothing more than
a claim of agreement by inadvertence, which is not only an oxymoron, but as
case after case has recognized since Miller & Lux, is insufficient to meet the
test of deliberate intent to extend a statutory deadline. The plaintiffs in
Wright had the same problem. As the Wright court explained: “No claim is,
or on the record could be, made that plaintiffs’ counsel called the court’s
attention to the fact that the trial date it was setting was beyond the five-
year period. . . . At the time of the pretrial conference approximately three
and one-half months remained. There is no showing or contention that
plaintiffs ‘took any steps, by motion to advance or otherwise, to have the case
specially set within the available period, or that it was impossible to reach
said result.’ ” (Wright, supra, 206 Cal.App.2d at pp. 496–497.)
d. Munoz v. City of Tracy
Without discussing the holdings in Miller & Lux, supra, 192 Cal. at
page 340, J. C. Penney Co. supra, 52 Cal.2d at pages 669–671, and a legion of
cases applying the Miller & Lux clear statement rule, the majority states that
section 583.330, subdivision (b), “does not address what terms comprise an
oral agreement extending the trial deadline.” (Maj. opn. ante, at p. 7.)
Section 583.330, subdivision (a) does not address what the term “written
stipulation” means either, and no court has ever seen a need to decide that
question as a matter of statutory interpretation.18
18 Wheeler v. Payless Super Drug Stores, Inc. (1987) 193 Cal. App. 3d
1292, 1302 (“The statutes governing dismissal for delay in prosecution do not
expressly define the term ‘written stipulation’ or prescribe the elements of
such a stipulation. [Citation.] However, nothing in the legislative history
indicates an intention to depart from existing precedents governing the
content of such stipulations. [1984 Cal. Law Revision Rep., supra, at
p. 917.]”).
26
At least no court saw such a need until Munoz v. City of Tracy, supra,
238 Cal. App. 4th 354, a 2015 Third District Court of Appeal opinion that,
until today, has been cited in a published case only once, and there only for a
background point concerning the purpose of the statute mandating dismissal
for failure to meet the prescribed statutory trial deadlines. Munoz holds that,
to be effective, a written stipulation extending the date of trial beyond the
statutory deadline need not recite section 583.310 or mention the existence of
a statutory deadline, since an agreement to a date after the deadline
necessarily shows an intent to extend the deadline. Having declared that we
must decide the counterpart question for oral agreements under
section 583.330, subdivision (b)—never mind that the Legislature told us in
1984 that it was simply restating and codifying prior case law, and that we
should look there for the answer—the majority adopts the reasoning in
Munoz and declares that we should have a unified approach to identifying
written extensions and oral agreements to extend. (Maj. opn. ante, at p. 9.)
As I shall explain below, I think the majority’s reliance on Munoz is ill-
advised. The result reached in Munoz may be correct, to be sure. The
language of the written stipulation at issue there appears to meet the Miller
& Lux standard because, in it, the parties expressed their clear and
unequivocal mutual intent to set a trial date past the five-year deadline after
the plaintiff had secured a trial date within the deadline. (Munoz, supra,
238 Cal.App.4th at p. 357; see Estate of Thatcher (1953) 120 Cal. App. 2d 811,
814 [same].) Because, by contrast in this case, there was never any
established trial date within the deadline and there is no evidence anyone
understood anything was being continued or extended, Munoz is inapposite.
Relying on Munoz, and extending it to oral extension agreements, creates
problems that are not relevant to written stipulations, since written
27
stipulations need not be memorialized in open court and may be construed as
a matter of law based on their plain language. Without considering these key
differences, the majority finds the reasoning in Munoz persuasive enough to
adopt under section 583.330, subdivision (b), which is unfortunate, because it
is the reasoning in Munoz, not the result, that is problematic.
Munoz begins with the unexceptional premise that, as described by
Miller & Lux in a background discussion of how former section 583 worked—
and section 583.330 works today since it codifies prior law—the parties may
enter into a “ ‘written stipulation . . . expressly waiving the benefit of the
section, or postponing the case to a time beyond the statutory period, [which]
would have the effect of extending the statutory period to the date to which the
trial was postponed.’ ” (Munoz, supra, 238 Cal.App.4th at p. 360, italics in
original, quoting Miller & Lux, supra, 192 Cal. at p. 338.) In this quotation,
by the use of italics for emphasis, Munoz recognizes that there are two ways
to relieve a plaintiff of the duty of diligence by agreement: The parties may
lift that duty in an agreement by which the defendant waives its right to
enforce the mandatory trial deadline indefinitely, or they may lift it by
increments of time, enlarging the statutory period to bring a case to trial by
agreeing on a specific trial date after the statutory deadline.19 Either one
19 Larkin v. Superior Court, supra, 171 Cal. at page 723 (“A stipulation
in terms waiving the benefit of this section, or one in terms providing that the
time fixed by the section within which trial must be had, shall be extended
indefinitely or for a definite time, or a series of stipulations continuing the
trial to a date beyond the five year period, might any of them suffice as an
answer to a motion to dismiss, and constitute a stipulation in writing that the
time (the five year period) shall be extended.”); see Koehler v. Peckham (1936)
11 Cal. App. 2d 481 (stipulation to specific trial date after five-year period),
cf. General Ins. Co. v. Superior Court, supra, 15 Cal.3d at page 452 (“open
extension of time to answer or otherwise respond” deprived plaintiff of right
28
works. Munoz reasons that, to make a written stipulation extending the five-
year deadline clear, it is not necessary to include bootstrap language waiving
the enforceability of the statute and agreeing to a specific date beyond the
deadline. (Munoz, at p. 360.) I have no quarrel with that common-sense
proposition, although in this case, the predicate clause in the quotation from
Miller & Lux is the one that deserves emphasis—“ ‘written stipulation . . .
expressly waiving’ ” (Miller & Lux, supra, 192 Cal. at p. 338, italics added)—
since the word “ ‘expressly’ ” captures the actual holding in Miller & Lux.
But it is the next step in the Munoz court’s reasoning that takes a
wrong turn and ends up causing things to go badly off track in this case. The
majority contends that Munoz “[a]ppl[ied] Miller & Lux and its progeny.”
(Maj. opn. ante, at p. 8.) That is only partially true. Munoz relied on Miller
& Lux for its initial point focusing on the two ways to extend the statutory
deadline by stipulation, but the critical second step of its analysis comes from
Smith v. Bear Valley Milling & Lumber Co. (1945) 26 Cal. 2d 590 (Smith), and
Smith alone. Pivoting to the heart of the issue before it—whether the
language of the stipulation at issue was sufficiently clear to meet the Miller
& Lux standard—the Munoz court says this: “Our Supreme Court has found
that a stipulation to extend trial to a specific date beyond the five-year period
necessarily waives the right of dismissal under former section 583.” (Munoz,
supra, 238 Cal.App.4th at p. 361.) This ipse dixit is the key to the Munoz
court’s logic, since it renders all verbiage in the written stipulation at issue
there unnecessary except the words agreeing on a specific date beyond the
five-year deadline. Whether it was necessary to do anything more in Munoz
than cite to Estate of Thatcher, supra, 120 Cal. App. 2d 811, seems debatable,
to take default and prevented defendants from prevailing on motion to
dismiss after three years under former § 581a, subd. (c)).
29
but the flaw in the logic of this broader holding as extended to section
583.330, subdivision (b)—fundamentally, the problem is that it rests on a
misreading of Smith—becomes much more apparent than it is in a
subdivision (a) written stipulation case.
e. Smith v. Bear Valley Milling & Lumber Co.
Without delving into whether the phrase “necessarily waives” fits the
context we have here, the majority seizes upon Munoz’s reading of Smith and
makes it the linchpin of its own analysis. (Maj. opn. ante, at pp. 7–8.) What
we are not given, in Munoz, or by the majority, is any context from Smith to
explain why the Supreme Court employed the phrase “necessarily waives.”
Here is that context. In Smith, a few days before the expiration of the five-
year statute, which fell November 8, 1942, four defendants as a group agreed
in writing to waive their right to move to seek mandatory dismissal for lack
of diligent prosecution and further agreed in principle to a trial date beyond
the statutory deadline, without specifying the exact date. (Smith, supra,
26 Cal.2d at pp. 591–593.)
Pursuant to this stipulation, the parties agreed to a trial date of either
December 10, 1942, or to the “ ‘first available date thereafter’ ” if
December 10 was not convenient to the court. (Smith, supra, 26 Cal.2d at
p. 592.) The court selected a trial date of March 10, 1943. (Ibid.) There was
no dispute that that had the effect of extending the five-year period to
March 10, 1943, by written stipulation. At the request of the defendants,
however, and based on an oral agreement evidenced in correspondence
among counsel, the parties agreed to a further postponement, which resulted
in the setting of a trial date in June 1943. (Ibid.) The dispute in the case
arose when two of the defendants tried to back out of the oral agreement.
Counsel for these two reneging defendants filed a “unilateral ‘stipulation’ ”
30
with the court conditioning their clients’ agreement to continue the March 10,
1943 trial date on a purported reservation of their right to file a mandatory
dismissal motion. (Id. at pp. 593, 598–599.) In effect, they claimed that the
oral extension was invalid because there was no evidence it included a waiver
of the defendants’ ability to enforce the five-year period by motion for
mandatory dismissal (even though the original written stipulation did so).
On review, the California Supreme Court reversed an order of
dismissal under former section 583. Although the agreement to further
extend the five-year deadline beyond March 10, 1943, was oral, its “essential
terms were, in effect, prior to the postponement, reduced to writing, in that
they were evidenced without substantial dispute by separate writings signed
by the respective contracting attorneys and filed with the court . . . .” (Smith,
supra, 26 Cal.2d at p. 600.) The court did not mince words about what it saw
as the impropriety of this attempt to escape a perfectly valid written
stipulation to a continuance extending the date for commencing trial to an
unspecified future date that all parties understood would be after the five-
year deadline. The court rejected the argument that the later oral agreement
to a specific trial date was ineffective. The critical fact was that “the [oral]
agreement was made in fact; it relates . . . to the admittedly valid first
stipulation; and it is evidenced by writings signed by both the contracting
attorneys.” (Id. at p. 601.) “Under such circumstances,” said the court, “it
would belie the substance of truth and ravage justice to say that the
extension of time was not stipulated to or that such stipulation is not ‘in
writing’ within the reasonable contemplation of [former] section 583 of the
Code of Civil Procedure.” (Ibid.)
Unless one takes the view that Smith sub silentio overruled Miller &
Lux and no one noticed until 2015, this holding had nothing to do with
31
whether the parties’ words and conduct were clear enough to meet the Miller
& Lux test. The court’s analysis was based on waiver by inconsistent
conduct, which is an equitable concept akin to estoppel.20 Starting from the
premise that “the parties . . . stipulate[d] in writing . . . that the time of trial
should be extended for a specified (or ascertainable) term beyond the five-
year period” (Smith, supra, 26 Cal.2d at p. 592), the court used the doctrine of
waiver to block the two reneging defendants from disavowing their earlier
written stipulation. The court focused on the unilateral conduct of these two
defendants, not on sufficiency of the evidence to show a mutual
understanding of the parties. It cast aside the attempted reservation of
rights by these defendants, explaining that the earlier written stipulation
was “basically inconsistent with a reservation of . . . rights.” (Id. at p. 599.)
If a “stipulation in writing is made, in compliance with the statute,” the court
said, not only do the defendants executing such a stipulation “waive their
rights to a dismissal based on the agreed postponement but they preclude the
court from granting of its own motion a dismissal based on the agreed delay.”
(Ibid.)
Munoz mistook the “necessarily waives” language in Smith as a
statement about the sufficiency of an agreement to extend the statutory trial
deadline to a specific date, when, properly understood, it is a statement about
intolerably inconsistent conduct. The Smith court refused to recognize the
validity of the two reneging defendants’ purported reservation of the right to
bring a dismissal motion, when they had earlier signed a written stipulation
giving up that right, conduct that all other parties in the case and their
counsel knew of and relied upon. This holding, like many others in the body
202 Pomeroy’s Equity Jurisprudence (5th ed. 1941) § 451a, pages 286–
287 (Pomeroy).
32
of waiver and estoppel cases under former section 583, draws upon principles
of equity.21 What the Munoz court fails to see, however—perhaps because it
does not discuss Smith or consider the actual holding in the case—is that the
question whether a clear agreement to extend a statutory trial deadline
“necessarily waives” the right to bring a dismissal motion, is a wholly
different question than whether such an agreement exists in the first place.
The majority repeats the mistake, making it worse by extending the
“necessarily waives” language to oral agreements.
Confined to cases decided under section 583.330, subdivision (a), the
Munoz court’s misreading of Smith is relatively benign. Whether the words
21 In the era Smith was decided, the doctrine of waiver was often
employed interchangeably with the doctrine of estoppel. A cogent
explanation comes from Justice Benjamin Cardozo, who described the
animating principle behind both doctrines as “fundamental and
unquestioned.” (R. H. Stearns Co. v. United States (1934) 291 U.S. 54, 61–
62.) “Sometimes the resulting disability has been characterized as an
estoppel, sometimes as a waiver. The label counts for little. Enough for
present purposes that the disability has its roots in a principle more nearly
ultimate than either waiver or estoppel, the principle that no one shall be
permitted to found any claim upon his own inequity or take advantage of his
own wrong.” (Ibid.) Today, we draw finer terminological distinctions. We
now speak of “waiver,” which rests on express relinquishment of a known
right, as distinguished from “equitable forfeiture,” which is implied waiver by
failure to invoke a right. (Lynch v. California Coastal Com. (2017) 3 Cal. 5th
470, 476.) In both scenarios, the loss of rights rests on intent. “The intention
may be express, based on the waiving party’s words, or implied, based on
conduct that is ‘ “so inconsistent with an intent to enforce the right as to
induce a reasonable belief that such right has been relinquished.” ’ ” (Id. at
p. 475.) As relevant here, the bottom line is that the pairing of “waiver and
estoppel” in section 583.140 indicates a legislative intent to use the term
“waiver”—just as I believe Smith used the term in 1945—in the sense of
equitable forfeiture, which requires conduct by a party so flatly inconsistent
with an intent to invoke the right at issue that it induces detrimental
reliance by another.
33
employed by the parties in a writing are sufficient to evidence a deliberate
intent to extend a mandatory trial deadline can often be decided as a matter
of law, as it was in Munoz. But it is a different matter altogether to graft
Munoz’s reasoning onto section 583.330, subdivision (b) in the way the
majority does. As noted above, one of a handful of things the Legislature
changed in its 1984 revision of former section 583 was to drop any
requirement that written agreements under section 583.330, subdivision (a)
be filed with the court. (See fn. 13, ante, pp. 16–17.) For oral extension
agreements, by contrast, the requirement of contemporaneous
memorialization in court records was retained, which shows that avoiding
after-the-fact disputes remains a matter of greater legislative concern for oral
agreements than it is for written agreements and is a significant component
of the law the Legislature carried over from Miller & Lux in enacting section
583.330.
In its zeal to treat section 583.330, subdivision (a) “written
stipulation[s]” the same as section 583.330, subdivision (b) “oral
agreement[s]” (maj. opn. ante, at p. 9), the majority overlooks the difference
in the treatment of written and oral agreements both in the text of the
statute and in the precedent the Legislature codified and restated when it
enacted section 583.330. Because agreements implied from conduct almost
always give rise to factual disputes, our holding today promotes the very
problem Miller & Lux sought to eliminate. With the lawyers in this case now
squaring off on appeal over what was said and done in open court two years
ago before Judge Wood, the majority’s holding underscores the problem. My
colleagues take the Nunns’ side in an ongoing dispute about what happened
during the May 2019 case management conference. In my view, the fact that
34
there is an ongoing dispute of this nature, in and of itself, shows we are not
being faithful to Miller & Lux.
f. Govea v. Superior Court
The majority’s discussion of Govea v. Superior Court, supra,
26 Cal. App. 2d 27 provides a useful segue from Munoz and Smith. Govea is
the fountainhead of another line of cases applying principles of equity under
former section 583, in that case for oral extension agreements. It does for
oral agreements what Smith does for written stipulations: Once an oral
agreement is made and complies with Miller & Lux—meeting the requisites
of clear expression and recitation in court—the holding in Govea bars a
defendant from reneging on the agreement.
The key events in Govea, recited in court minutes, took place on
September 21, 1937, when the parties agreed to continue the date originally
set for trial, November 5, 1937, four days before the five-year statutory
deadline to commence trial was to expire. (Govea, supra, 26 Cal.App.2d at
p. 29.) The court continued the trial date to November 12, 1937, three days
after the deadline expired, “on motion of defendant’s counsel . . . stipulated to
by plaintiffs’ counsel.” (Ibid.) Later, on its own motion, the court ordered a
further continuance to January 21, 1938, to suit its own calendar needs, but
what produced the first date beyond the deadline was the parties’ stipulation.
(Ibid.) This was not something the Govea plaintiffs asked the Court of
Appeal panel to infer circumstantially, as the Nunns try to do here. The
court minutes showed undeniably that the defendant made a motion for the
setting of a date after the deadline, and the plaintiffs joined in it. (Id. at
p. 31.)
Because the defendant’s counsel telephonically reported to the court
clerk his desire for a continuance and the plaintiffs’ agreement to it, he
35
argued that he was not responsible for the post-deadline continuance because
he was not in court on September 21 (Govea, supra, 26 Cal.App.2d at p. 31)—
a bald challenge to the credibility of the clerk who recorded that the
continuance was granted based on his motion. In effect, he argued that
because he made what would later become commonplace as a telephone
appearance, any agreement evidenced by his motion was invalid under Miller
& Lux. Applying the doctrine of equitable estoppel, the Govea court
explained that “the records of a trial court import absolute verity and cannot
be questioned upon appeal . . . .” (Id. at p. 32.) A party will not be allowed to
deny what is clear and uncontrovertible in court minutes. (Ibid.) To do so,
said the appellate panel in Govea, would allow him to “play fast and loose
with the court.” (Id. at p. 31.)
Govea’s estoppel analysis is not an artifact of a time “before the
statutory trial deadline could be extended by oral agreement.” (Maj. opn.
ante, at p. 15.) The Law Revision Commission was crystal clear on this point.
In support of its explanatory comment that section 583.330, subdivision (b),
“codifies existing case law,”22 the Law Revision Commission cites Govea. This
shows that the statute does not supplant the holding in Govea—rather, it
embodies the holding in that case. We cannot, by our own lights, decide we
have “no need to resort” to it (maj. opn. ante, at p. 15) because skipping past
this foundational case ignores legislative intent. To apply section 583.330,
subdivision (b), in other words, is to apply Govea, whether the plaintiff can
meet the Miller & Lux standard or not.
Turning, then, to the application of Govea in this case, the primary
holding there was that an undeniable agreement to extend the five-year
221984 Cal. Law Revision Rep., supra, at page 935, comment on
proposed section 583.330, subdivision (b).
36
period, evident on “clear and uncontrovertible” facts, as confirmed
contemporaneously in court minutes—in other words, an agreement that
meets the demanding standard of Miller & Lux—will be enforced by estoppel
should the defendant attempt to deny it. But there is further nuance in
Govea that must not be overlooked. As important as the primary holding of
Govea is to the evolution of the case law, the flip side of it is more notable. In
cases where a plaintiff claims there was an oral agreement extending a
statutory trial deadline, but cannot show the agreement meets the strictures
of Miller & Lux, Govea recognizes that another form of estoppel may apply.
What this means, as a practical matter, is that plaintiffs, like the
Nunns, who insist there was an oral agreement to extend a statutory trial
deadline but cannot meet the Miller & Lux standard, are not automatically
out of court. Because equity softens the sometimes harsh consequences of
failure to meet mandatory trial deadlines, plaintiffs who find themselves in
this position may still argue that the defendant lulled them into a false sense
of security by conduct causing them to forebear to do some things which they
otherwise would have done and then took advantage of the inaction caused by
their own conduct. (Tresway, supra, 5 Cal.3d at pp. 437–438.) It is this
aspect of Govea—estoppel by deception23—that is specifically relevant to the
23 Under this species of estoppel, “courts of equity do not mean that the
defendant’s conduct in denying the validity of the agreement is actual
fraud,—a willful deception,—but simply that it is unconscientious.”
(3 Pomeroy, supra, § 803, at p. 186; see id. at p. 187 [“When all the varieties
of equitable estoppel are compared, it will be found . . . that the doctrine rests
upon the following general principle: When one of two innocent persons—
that is, persons each guiltless of an intentional, moral wrong—must suffer a
loss, it must be borne by that one of them who by his conduct—acts or
omissions—has rendered the injury possible.”].)
37
Nunns’ case, because they, too, attempt to build an argument from events
that were not contemporaneously documented.
But on this record the Nunns cannot call upon the secondary holding in
Govea. Under the classic definition of estoppel by deception as later
enunciated in Tresway, supra, 5 Cal. 3d 431, courts evaluate unilateral
conduct by the defendant and whether that conduct induced some action or
forbearance by the plaintiff to its disadvantage. (Id. at pp. 437–438.) An
estoppel will not be imposed in the context of a motion for mandatory
dismissal unless there was a duty on the part of the defendant to act and a
failure to do so. (Wright, supra, 206 Cal.App.2d at p. 494.) Focusing on the
Govea court’s pointed comment about “fast and loose” conduct by the
defendant’s counsel in that case (Govea, supra, 26 Cal.App.2d at p. 31; maj.
opn. ante, at p. 15)—the same type of gamesmanship, decried in Smith,
where two defendants attempted to back out of a written extension
agreement—the majority nods in this direction by asserting that the Chase
Defendants were complicit in the setting of a January 2020 trial date because
they requested it. I have pointed out the lack of factual support for this
assertion in the record, but the idea is legally unsound as well. Govea was
embraced by the California Supreme Court in Woley, supra, 51 Cal. 2d 402,
which marked a significant turning point in the evolution of the law
concerning trial deadline extensions by oral agreement.24 I turn next to
Woley, which shows that (1) a defendant’s request for a trial date after the
mandatory deadline is an insufficient basis for proving up an oral agreement
24 Before Woley, courts were generally resistant to the use of estoppel
as a mechanism to enforce oral agreements to extend statutory trial
deadlines. (Miller & Lux, supra, 192 Cal. at p. 339; Larkin v. Superior Court,
supra, 171 Cal. at pp. 725–726; Pacific States Corp. v. Grant (1927)
87 Cal. App. 108, 115–117.)
38
under Miller & Lux, and (2) unless the plaintiff can demonstrate that it
exercised diligence, the doctrine of estoppel is unavailable as well.
g. Woley v. Turkus
Without actually applying Govea, the majority attempts to fit the facts
of this case into Govea’s factual framework. (Maj. opn. ante, at pp. 15–16.) It
is a poor fit, and the Supreme Court’s decision in Woley, which the majority
nudges aside along with Govea, is instructive as to why. In Woley, the action
was filed on December 28, 1950. (Woley, supra, 51 Cal.2d at p. 404.) In early
December 1955, nearly five years later, with the statutory deadline to
commence trial about to expire, the plaintiff filed a motion bringing the
imminent deadline to the court’s attention and seeking an accelerated trial
date. (Ibid.) The court set a trial date of December 27, 1955, within the five-
year period, and calendared a motion for summary judgment by the plaintiff
for the same day. (Id. at p. 405.) In response, the defendant, claiming
nothing had been done to prepare the case for trial in five years, and that
more time was needed to respond to the plaintiff’s summary judgment
motion, moved for a continuance to January 13, 1956, upon an express
written stipulation explicitly acknowledging that the date was past the five-
year deadline. Defendant’s attorney acknowledged in open court that the
plaintiff “was not to be prejudiced” by the continuance. (Id. at pp. 404–405.)
On January 13, the court took the motion for summary judgment under
submission and continued the trial date—“without objection by the
defendant”—so that the trial could take place, if necessary, after the
summary judgment motion was decided. (Id. at p. 405.) The summary
judgment motion was eventually denied, and the case went back on the trial
calendar in June 1956, at which point the defendant moved for mandatory
39
dismissal for failure to bring it to trial within the five-year period as
expressly extended to January 13, 1956. (Id. at pp. 405–406.)
The Woley court held that the defendant’s conduct in requesting more
time to respond to the plaintiff’s summary judgment motion, in wanting to
see that motion decided before the case was tried, and in promising that the
continuance the defense sought should be without prejudice to the plaintiff,
would be enforced as an oral agreement to extend the five-year period for
however long it took to complete the summary judgment proceedings. (Woley,
supra, 51 Cal.2d at pp. 404–409.) Even though there was no formally
sufficient written agreement extending the deadline beyond January 13,
1956, the court specifically found that “[t]hrough no lack of diligence on the
part of the plaintiff the trial was not commenced on that date but was
postponed by the court.” (Id. at pp. 408–409.) It invoked Govea to estop the
defendant from denying an agreement to extend the five-year period,
distinguishing Miller & Lux and a string of other cases that refuse to
recognize trial deadline extensions by “inferential consent” (Miller & Lux,
supra, 192 Cal. at p. 340).25 “In each of those cases,” the Woley court pointed
25 The Woley court summarized these cases as having involved
situations where “a continuance was granted without objection from the
plaintiff ” (citing Miller & Lux, supra, 192 Cal. at pp. 336–337); “the plaintiff
orally acquiesced in continuances beyond the statutory period” (citing Boyd v.
Southern Pacific R. R. Co. (1921) 185 Cal. 344, 346); “the continuance was
obtained without the plaintiff’s objection” (citing Bank of America v. Moore &
Harrah (1942) 54 Cal. App. 2d 37, 42); or a “continuance was obtained over the
plaintiff’s objection” (citing Ravn v. Planz (1918) 37 Cal. App. 735). (Woley,
supra, 51 Cal.2d at p. 407 [citing and describing cases].) Among these cases,
Boyd is notable for its cogently explained rejection of the plaintiff’s
contention that the defendant’s failure to object to a trial date set beyond the
five-year deadline may be taken as an agreement or consent: “[T]he
plaintiff’s counsel seem[s] to mean by acquiescence the mere failure of the
40
out, the plaintiff failed to call to the trial court’s “attention . . . the necessity
for [a] trial date within the time required by [former] section 583.” (Woley,
supra, 51 Cal.2d at p. 407.)
The basis on which the Supreme Court distinguished this vein of
authority in Woley—an earlier generation of precedent anticipating Wright
and its progeny—shows beyond doubt that the majority’s effort to divine an
agreement from nonobjection and acquiescence has never been accepted as
the basis for an enforceable oral extension agreement. (See fn. 25, ante,
pp. 40–41.) The oral agreement enforced in Govea was expressly stated on
the record—a trial date had been secured by the plaintiff within the deadline,
the defendant moved to continue to a date after the deadline (which was an
offer), and the plaintiff stipulated to the motion (which was acceptance),
thereby giving up his pre-deadline trial date (consideration)—all as shown in
court minutes. There was no need to find “inferential consent.” (Miller &
Lux, supra, 192 Cal. at p. 340.) Agreements implied from conduct and
unrecorded in contemporaneous court records failed to meet the Miller & Lux
“clear and uncontrovertible evidence” standard (ibid.) at the time Govea was
decided, and still do not meet it today. That is why, ever since Govea, courts
have always applied Tresway-type estoppel by deception analysis in cases—
defendant to object to setting the cause for trial. But such failure alone
would neither constitute a consent or agreement to try the case at the time
set nor amount to a misleading of the plaintiff. Certainly, without one or the
other of these elements there could not be a waiver either direct or by
estoppel.” (Boyd v. Southern Pacific R. R. Co., supra, 185 Cal. at p. 347.) The
majority’s statement that it would “view this case very differently if the
Chase defendants had objected or responded to the court’s November
proposal by saying they preferred an earlier trial date” (maj. opn. ante, at
pp. 11–12, fn. 3, italics omitted) cannot be reconciled with Boyd.
41
like this one—where the plaintiff alleges an oral agreement drawn implicitly
from circumstances and conduct.
But to succeed with an estoppel by deception argument, Woley tells us
the key additional fact that must be present, triggering the estoppel, is that
both parties must be “aware of the necessity for expediting the proceedings in
order to avoid the mandatory provisions of [former] section 583 and that their
activities were carried on with this necessity in mind.” (Woley, supra,
51 Cal.2d at p. 408.) The Supreme Court held that Woley was a “comparable”
case to Govea, but on facts where the plaintiff brought the approaching
statutory deadline to the court’s attention and moved for an accelerated trial
date. (Id. at pp. 404, 408.) This case is not “comparable” to Govea because
the Nunns cannot make a similar showing of diligence. That is the essence of
the matter here, and it no doubt explains why my colleagues and I read the
record so differently.
The standards for waiver of a defendant’s right to dismissal under the
five-year statute (§ 583.310) are generally applicable to section 583.320,
except that “[u]nder a shorter statute of limitations the burden on the litigant
to demonstrate diligence in insuring that the matter will be brought to trial
in a timely manner is increased.” (Mesler v. Bragg Management Co. (1990)
219 Cal. App. 3d 983, 995.) The Nunns, as plaintiffs, had “ ‘a continuing duty
to correctly compute the statutory [three years] and to advise the court of the
impending deadline.’ ” (Wale v. Rodriguez (1988) 206 Cal. App. 3d 129, 133.)
“It is precisely when the five-year [or three-year] deadline looms that the
greatest diligence is demanded.” (Ibid.) “Central to this duty is the specific
duty to use every reasonable effort to bring the matter to trial within the five-
year [or three-year] period.” (Tejada v. Blas (1987) 196 Cal. App. 3d 1335,
1340.) “The duty is on the plaintiff to obtain a trial within the time required
42
by [former] section 583, subdivision (b). A plaintiff may not avoid the
operation of the statute by simply saying he acquiesced in the trial date set
by the court or clerk beyond five years from the commencement of the action.”
(Central Mutual Ins. Co. v. Executive Motor Home Sales, Inc. (1983)
143 Cal. App. 3d 791, 795.) Defendants are required to cooperate in bringing
actions to trial or other disposition (§ 583.130), but they have “ ‘ “ ‘no
affirmative duty to do more than meet the plaintiff step by step.’ ” ’ ” (State
Compensation Ins. Fund v. Selma Trailer & Manufacturing Co. (1989)
210 Cal. App. 3d 740, 754; accord Wright, supra, 206 Cal.App.2d at p. 495.)
No diligence was shown in this case. For nearly three years before the
May 2019 case management conference, the Nunns had failed to secure a
trial date. Given that failure of diligence, and given their failure to speak up
in May 2019 about the approaching statutory deadline, they cannot show the
Chase Defendants, by words and conduct, lulled them into giving up
something to their detriment (e.g., withdrawing a request for an accelerated
trial date before the deadline, or releasing a previously secured trial date and
agreeing to a later date after the deadline). The majority takes the view that
diligence is only relevant under section 583.340, subdivision (c), the exception
for impossibility, impracticability, or futility. (Maj. opn. ante, at p. 11.) I do
not agree. Because of the continuing role equity plays under the statutory
scheme as a whole (§ 583.140), and because of the codification of Govea in
particular for oral extension agreements (§ 583.330, subd. (b)), that cannot be
the case.
C. We Should Defer to the Trial Court’s Refusal To Apply Estoppel
in This Case
To wrap things up, I return briefly to the record in this case. The
majority correctly concludes it was appropriate for the Nunns to bring a new
trial motion raising their oral agreement theory for the first time after entry
43
of judgment. But the timing nonetheless shows what a Hail Mary pass this
was, which ought to raise a caution flag for us even if it does not bar the
Nunns from employing this line of argument. The Nunns retained their
current attorney, Dell’Ario, in February 2020, and he promptly filed the new
trial motion asserting the theory that there had been an extension of the
statutory trial deadline by oral agreement. But Dell’Ario did not attend the
May 2019 case management conference. His predecessor, Freshman, who did
attend the May 2019 case management conference on behalf of the Nunns,
never made any attempt to claim there had been an oral agreement at that
conference. Freshman prepared the Nunns’ opposition to the Chase
Defendants’ motion for mandatory dismissal in September 2019, and instead
of trying to argue some kind of oral extension agreement, he took the path
the law requires: Pointing out that the Chase Defendants engaged in
discovery abuse, and then at the case management conference that they
mentioned a need for further discovery and said they planned to file a
summary judgment motion, he argued the Chase Defendants should be
barred from seeking mandatory dismissal under equitable estoppel
principles.
Judge Langhorne rejected the argument. Granting the Chase
Defendants’ motion to dismiss for failure to bring the case to trial within the
three-year statutory period, Judge Langhorne pointed out that “delays caused
by plaintiff’s counsel’s tactical choices are not matters ‘over which plaintiff
had no control. . . .’ ”(Italics omitted.) Judge Langhorne also explained that
the Nunns had failed to show the Chase Defendants “engaged in deceptive
conduct designed to prevent [them] from bringing this case to trial prior to
the expiration of the statutory period or to induce them to refrain from filing
a motion to specially set the matter for trial.” These are matters of factual
44
assessment that are properly for the trial court. (Borglund v. Bombardier,
Ltd. (1981) 121 Cal. App. 3d 276, 281–282.) We review the trial court’s factual
findings relating to estoppel for substantial evidence (Schafer v. City of Los
Angeles (2015) 237 Cal. App. 4th 1250, 1263), and the ultimate equitable
determination whether to apply the doctrine for abuse of discretion (Blix
Street Records, Inc. v. Cassidy (2010) 191 Cal. App. 4th 39, 46–47 [judicial
estoppel]). Ultimately, the Nunns’ estoppel argument did not succeed when
presented to the trial court here because they failed to do what the plaintiffs
did in Woley—bring the approaching statutory deadline to the attention of
the court and move for an accelerated trial date.
Notably, moreover, in addition to specifically finding a failure to seek
an accelerated trial date, Judge Langhorne also made a more general finding
that “[t]here is no indication the Nunns have exercised diligence.” Because it
is a basic precept of equity that “ ‘ “he who seeks equity must do equity” ’ ”
(Dickson, Carlson & Campillo v. Pole (2000) 83 Cal. App. 4th 436, 446;
2 Pomeroy, supra, § 385, at pp. 51–55), this finding underscores the
overarching problem the Nunns face here. Their lack of diligence over the
three years following issuance of the remittitur, culminating in their failure
to inform the court in May 2019 of the imminent expiration of the deadline,
disqualifies them from calling upon equity for assistance.26
26 The Nunns’ failure to show diligence also disqualifies them from
relying on the policy favoring decision on the merits. In codifying the policy
favoring decision on the merits, the Legislature did not create a magic wand
that wipes away failures of diligence. (See Mesler v. Bragg Management Co.,
supra, 219 Cal.App.3d at p. 996, fn. 12 [“we are unable to discern that in
fostering the public policy in favor of ‘trials on the merits’ the Legislature
intended to cast to the four winds a requirement of diligence on the litigants
in pursuing that goal”].) For each of the favored policies declared in section
583.130—including the policy favoring the right of parties to make
45
CONCLUSION
Whatever the Chase Defendants did on May 16, 2019, no one accuses
them or their counsel of connivance, deception or other unfairness designed to
take advantage of their litigation adversaries on that day. The record in this
case, fairly read, shows that neither side was aware in May 2019 of the
imminent three-year deadline. The core issue here is who, if anyone, had the
burden of alerting the court to that deadline. The majority apparently
believes no one did.
I must disagree. I think there was such an obligation and that the
burden fell on the Nunns. And in order for them to make the showing of
diligence that is required to avoid mandatory dismissal, they had to raise the
issue. They did not, which closes the only route the law gives them based on
an argument that the “words and actions by the parties” at the May 2019
case management conference “constitute objective evidence of an agreement
to set the trial for a specific date . . . beyond the three-year deadline.” (Maj.
opn. ante, at p. 14.)
By conflating the rules governing enforceability of oral agreements that
meet the demanding standard of Miller & Lux with the rules governing oral
agreements by estoppel under Govea, the majority introduces confusion into
stipulations—what strikes the balance against the competing policy of
promoting diligent prosecution is the very existence within the statutory
scheme of a series of express, statutorily recognized exceptions to mandatory
dismissal. But the plaintiff must still prove the applicability of any given
exception in any given case. (See Salas v. Sears, Roebuck & Co. (1986)
42 Cal. 3d 342, 347 [“although the interests of justice weigh heavily against
disposing of litigation on procedural grounds—a policy we reaffirm—that
policy will necessarily prevail only if a plaintiff makes some showing of
excusable delay”].) On this record, the Nunns have proved none of the
various exceptions they tried to invoke at various times in response to the
Chase Defendants’ motion to dismiss.
46
each of these well-settled but subtly intertwined areas of law, while diluting
the standards that apply in both.
With respect, I must dissent.
STREETER, J.
47
Trial Court: Napa County Superior Court
Trial Judge: Hon. Monique Langhorne
Counsel: Alan Charles Dell’Ario for Plaintiffs and Appellants
Bryan Cave Leighton Paisner, Glenn J. Plattner, Joseph J.
Poppen, Daniel T. Rockey, and David Harford for Real
Parties in Interest
Nunn et al. v. JPMorgan Chase Bank, N.A. et al. (A160286, A160794)