1

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,

v.

JPMORGAN CHASE BANK, N.A.

et al.,

Defendants and Respondents.

A160286

(Napa County Superior Court 

Case No. 26-56767)

GERALD L. NUNN et al.,

Petitioners,

v.

THE SUPERIOR COURT OF 

NAPA COUNTY,

Respondent,

JPMORGAN CHASE BANK, N.A.

et al.,

Real Parties in Interest.

A160794

(Napa County Superior Court 

Case No. 26-56767)

 

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 
2

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 
3

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 
4

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 postjudgment 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 
5

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)).
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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.) 
7

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. 
8

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 
9

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.
10

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.
11

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 
12

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 fiveyear 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.)
13

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. 
14

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 
15

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 
16

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 fiveyear 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.)
17

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 trialsetting 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 
18

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 
19

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.
20

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.)
21

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].) 
22

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.
1

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 

1 Further undesignated statutory references are to the Code of Civil 

Procedure.
2

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 
3

argument in this appeal is that Judge Wood chose a trial date after the threeyear 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.
4

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 threeyear 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.
5

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.”
6

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 
7

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.” ’ ”).
8

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.
9

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 
10

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 
11

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 
12

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 
13

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 
14

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 
15

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. 
16

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.

9 Tresway Aero, Inc. v. Superior Court (1971) 5 Cal.3d 431, 437–438 

(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 
17

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 fiveyear 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.)

14 1984 Cal. Law Revision Rep., supra, at page 935, comment on 

proposed section 583.330.
18

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 
19

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].)
20

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 muchcited 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 
21

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 openended 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.)
22

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-
23

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 
24

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 
25

(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.
26

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 fiveyear 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.]”).
27

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 illadvised. 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 
28

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 
29

works. Munoz reasons that, to make a written stipulation extending the fiveyear 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)).
30

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 fiveyear 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’ ” 
31

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 fiveyear 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 
32

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 fiveyear 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 

20 2 Pomeroy’s Equity Jurisprudence (5th ed. 1941) § 451a, pages 286–

287 (Pomeroy).
33

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.
34

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 
35

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 
36

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 

22 1984 Cal. Law Revision Rep., supra, at page 935, comment on 

proposed section 583.330, subdivision (b).
37

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.”].)
38

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.)
39

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 fiveyear 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 fiveyear 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 
40

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 
41

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.
42

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 fiveyear [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 
43

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 
44

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 
45

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 
46

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.
47

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.
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)