Filed 6/30/15
                               CERTIFIED FOR PUBLICATION




                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                THIRD APPELLATE DISTRICT
                                             (San Joaquin)
                                                 ----




ROSA ELENA MUNOZ, a Minor, etc.,                                       C075955

                  Plaintiff and Appellant,                         (Super. Ct. No.
                                                             39200800198928CUPOSTK)
        v.

CITY OF TRACY,

                  Defendant and Respondent.


      APPEAL from a judgment of the Superior Court of San Joaquin County, Linda L.
Lofthus, Judge. Reversed.

      Southwest Legal Group, Anthony R. Lopez and Daniel D. Castillo for Plaintiff
and Appellant.

       Arata, Swingle, Sodhi & Van Edmond, Bradley J. Swingle and Ameet S. Birring
for Defendant and Respondent.



        Plaintiff Rosa Elena Munoz appeals from a judgment dismissing her personal
injury action against the City of Tracy (City) for failure to bring the action to trial within
five years, as required by Code of Civil Procedure section 583.310 et seq. (Code Civ.



                                                  1
Proc., § 583.310.)1 She contends the trial court erred in dismissing her case because the
parties had executed a written stipulation extending the time for trial to a date certain
beyond the five-year deadline. We agree and reverse.


                                     BACKGROUND
        On December 3, 2008, Munoz, a minor at the time, filed a complaint for
negligence and premises liability against the City. The complaint alleged that Munoz
was injured by a falling tree branch while playing at a City park.
        On March 8, 2012, the parties participated in nonbinding arbitration. The
arbitrator entered an award in favor of the City. On March 19, 2012, Munoz filed a
request for trial de novo, which was granted.
        On December 13, 2012, the trial court denied the City’s motion for summary
judgment. Trial was set for January 14, 2013.
        On January 8, 2013, the parties entered into a written stipulation to continue the
trial from January 14, 2013, to October 28, 2013.
        On October 8, 2013, Munoz gave notice of an ex parte application to continue the
trial to an alternative date between March and June 2014. The application explained that
a new attorney, Benjamin Swanson, would be trying the case for Munoz, and Swanson’s
calendar was such that he could not be available for trial until March 2014, at the earliest.
The application, which was never heard, did not reference the five-year deadline for
bringing the case to trial, which was due to expire on December 3, 2013.
        On October 14, 2013, the parties entered into a second written stipulation to
continue the trial. The stipulation states: “ALL PARTIES HEREBY STIPULATE, by
and through their respective attorneys of record, that the Trial Date, currently set for




1   Undesignated statutory references are to the Code of Civil Procedure.

                                              2
October 28, 2013, be vacated and continued to June 16, 2014.” The stipulation does not
reference section 583.310, or the five-year deadline for bringing the case to trial.
       On January 6, 2014, more than five months before the stipulated trial date, the
City filed a motion to dismiss pursuant to sections 583.310 and 583.360. Munoz opposed
the motion, emphasizing the stipulation to continue the trial to June 16, 2014.
       The City’s motion to dismiss was heard on February 6, 2014. In anticipation of
the hearing, the trial court issued a tentative ruling granting the City’s motion. Relying
on Sanchez v. City of Los Angeles (2003) 109 Cal.App.4th 1262 (Sanchez), the trial court
tentatively concluded that a stipulation extending the five-year period must “extend in
express terms the time of trial to a date beyond the five-year period or expressly waive
the right to dismissal.” Framing the issue somewhat differently, the trial court expanded
this conclusion to require “an express waiver of the five year [sic] statute.”
       During the hearing, the trial court reiterated that a stipulation extending trial
beyond the five-year period must “expressly waive” the right of dismissal. According to
the trial court, “You have to say—it is the plaintiff’s duty to say we need to continue this
case to next April because our attorney can’t do it because he’s got—his wife is having a
baby; he has two conflicts in his schedule. Then you need to say this is going to be
beyond the five-year statute; do you waive that. And that’s what didn’t happen in this
case. That’s a problem.” Following additional argument, the trial court adopted the
tentative ruling as the order of the court and dismissed the action with prejudice.
       Munoz filed a timely notice of appeal.

                                       DISCUSSION
       We independently review a ruling on a motion to dismiss for failure to bring an
action to trial within the five-year period provided by section 583.310 to the extent the
ruling is based on an interpretation of the statute. (Brown & Bryant, Inc. v. Hartford
Accident & Indemnity Co. (1994) 24 Cal.App.4th 247, 252.)



                                              3
       We independently review the trial court’s interpretation of a written stipulation,
including the resolution of any ambiguity, unless the interpretation depends on the court’s
resolution of factual questions concerning the credibility of extrinsic evidence.
(Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865.) Where, as here, the
trial court’s ruling does not turn on the credibility of extrinsic evidence, our review of the
court’s interpretation of a written stipulation is de novo. (Dowling v. Farmers Ins.
Exchange (2012) 208 Cal.App.4th 685, 694.)
       “An action shall be brought to trial within five years after the action is
commenced against the defendant.” (§ 583.310.) An action which is not brought within
the prescribed period must be dismissed. (§ 583.360, subd. (a).) These requirements are
mandatory “and are not subject to extension, excuse, or exception except as expressly
provided by statute.” (§ 583.360, subd. (b).) The purpose of the five-year dismissal
statute is to prevent the prosecution of stale claims where defendants could be prejudiced
by loss of evidence and diminished memories of witnesses. (Lewis v. Superior Court
(1985) 175 Cal.App.3d 366, 375.) The statute also protects defendants from the
annoyance of having unmeritorious claims against them unresolved for unreasonable
periods of time. (Ibid.) While the goals of the five-year limit are somewhat analogous to
those underlying statutes of limitation, the five-year limit involves policy considerations
that are somewhat less crucial because once an action has been filed defendants can take
steps to protect their interests. (General Motors Corp. v. Superior Court of Los Angeles
County (1966) 65 Cal.2d 88, 91.)
       Under section 583.330, the five-year period may be extended by written
stipulation or oral agreement made in open court. (§ 583.330.) Section 583.330 does not,
by its terms, require that a stipulation extending the five-year period include any
particular formalities. (§ 583.330.) Our consideration of whether a stipulation extends
the five-year limit under section 583.330 is guided by section 583.130, which states that
“the policy favoring the right of parties to make stipulations in their own interests and the

                                              4
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 in construing the provisions of this chapter.”
(§ 583.130.)
       Munoz contends that the present case is governed by our Supreme Court’s opinion
in Miller & Lux. Inc. v. Superior Court of County of Merced (1923) 192 Cal. 333 (Miller
& Lux). In Miller & Lux, the parties entered into a series of stipulations continuing the
trials of three related actions, both in writing and by oral agreement in open court. (Id. at
pp. 335-336.) The last written stipulation continued the trials to March 24, 1920. (Id. at
p. 336.) The last oral agreement in open court continued the trials to September 28, 1920.
(Id. at p. 337.) On October 19, 1920, the trial court on its own motion continued the trials
to November 15, 1920. (Ibid.) On November 10, 1920, after expiration of the parties’
last extension, the defendants filed a motion to dismiss pursuant to former section 583.2
(Miller & Lux, at p. 337.) The trial court denied the motion and the defendants filed
petitions for writs of mandate, which were granted. (Ibid.)
       In granting the petitions, the Miller & Lux court explained: “It is, of course, well
settled that any stipulation of the defendants extending the statutory period did not
operate as a waiver for all future time of the right of defendants to a dismissal after the
expiration of the extended period. [Citation.] Neither did any of the written stipulations
entered into within the five-year period continuing the trials from time to time within the
statutory period have the effect of extending the time beyond the five-year period.
[Citations.] . . . A written stipulation, however, expressly waiving the benefit of the
section, or postponing the case to a time beyond the statutory period, would have the




2 The 1984 legislative revisions also added section 583.130. (Stats. 1984, ch. 1705, § 5,
p. 6177.)

                                              5
effect of extending the statutory period to the date to which the trial was postponed.
[Citation.]” (Miller & Lux, supra, 192 Cal. at pp. 337-338, italics added.)
       Relying on the italicized language in the preceding paragraph, Munoz argues that
a stipulation extending the five-year period must either expressly waive section 583.310
or continue the trial to a specific date beyond the five-year period. In the present case,
Munoz observes, the stipulation continued the trial to a specific date outside of the five-
year period. Therefore, Munoz concludes, the stipulation properly extended the five-year
period, and there was no need for the City to “expressly waive” the benefit of section
583.310, as any such waiver would have been superfluous. We agree and conclude that
the parties’ written stipulation extended the time for bringing the case to trial, and had
“the effect of extending the statutory period to the date to which the trial was postponed.”
(Miller & Lux, supra, 192 Cal. at p. 338; see also J.C. Penney Co. v. Superior Court
(1959) 52 Cal.2d 666, 669 (J.C. Penney).)
       The City attempts to distinguish Miller & Lux on the grounds that the Supreme
Court construed former section 583, which was repealed in 1984 and replaced by
section 583.310 et seq. (Stats. 1984, ch. 1705, §§ 4-5.) We conclude that the differences
between the present and former versions of the statute are not so significant as to
preclude reliance on Miller & Lux. (Compare § 583.330 [“The parties may extend the
time within which an action must be brought to trial . . . [b]y written stipulation”] with
former § 583, subd. (b) [establishing an exception to the five-year dismissal rule “where
the parties have filed a stipulation in writing that the time may be extended”].) In any
event, a number of cases have recognized that the parties may stipulate to extend the five-
year period by expressly extending the date for trial to a date beyond the five-year limit,
including Sanchez, on which the City relies. (See In re Thatcher’s Estate (1953) 120
Cal.App.2d 811, 813 [parties stipulated to extension of statutory deadline by expressly
extending the date for trial to a date beyond the five-year limit]; Taylor v. Shultz (1978)
78 Cal.App.3d 192, 195 [parties stipulated to extension of statutory deadline by expressly

                                              6
extending date for trial to a date beyond the five-year limit; case properly dismissed when
trial did not take place on or before stipulated date].) Relying on Miller & Lux, our
Supreme Court reiterated that a stipulation extending the five-year period “must be
written and extend in express terms the time of trial to a date beyond the five-year period
or expressly waive the right to a dismissal” in J.C. Penney. (J.C. Penney, supra,
52 Cal.2d at p. 669, citing Miller & Lux, supra, 192 Cal. at p. 338.) The Court of Appeal
for the Second Appellate District quoted J.C. Penney in Sanchez, which post-dates the
1984 revision to section 583. (Sanchez, supra, 109 Cal.App.4th at p. 1269, fn. 3.) As
noted, the trial court relied on Sanchez to grant the City’s motion to dismiss.3
       Although the parties do not directly address the issue, we acknowledge a potential
ambiguity in the requirement that a written stipulation “extend in express terms the time
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.) On the one hand, the phrase “extend in express
terms the time of trial to a date beyond the five-year period” could refer to a specific date
beyond the five-year period, as Munoz suggests. On the other hand, the phrase could
require an express reference to the statute, or the five-year period, as the trial court
apparently believed. 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
section 583. (Smith v. Bear Valley Milling & Lumber Co. (1945) 26 Cal.2d 590, 599 [“A
stipulation to extend the time of trial beyond the five-year period necessarily waives the
right to a dismissal of the action under section 583, which would otherwise accrue
because of such delay”].) We have not identified any subsequent cases that reject this



3 Sanchez did not involve the validity or interpretation of a stipulation to extend the five-
year limit. (Sanchez, supra, 109 Cal.App.4th at p. 1269, fn. 3.) Instead, Sanchez
involved the application of section 583.340, which excludes certain periods from the five-
year period for bringing a case to trial, including periods in which prosecution of the case
would be “impossible, impracticable, or futile.” (Id. at pp. 1271-1274; § 583.340.)

                                               7
approach. (See generally 6 Witkin, Cal. Procedure (5th ed. 2008) Proceedings Without
Trial, § 383, p. 826.) Further, we conclude that it is consistent with the policies
underlying section 583.130.
       As noted, section 583.130 establishes a general policy favoring the parties’ right to
make stipulations in their own interests. (§ 583.130.) Here, the parties stipulated to
continue the trial date to June 16, 2014, more than six months after the expiration of the
five-year period. Although the parties do not appear to have discussed the five-year
deadline for bringing the case to trial, their stipulation “reflects a mutual intent to defer
the proceedings,” and “must be enforced to effectuate the whole of the instrument.”
(Wheeler v. Payless Super Drug Stores, Inc. (1987) 193 Cal.App.3d 1292, 1303; see also
General Ins. Co. v. Superior Court of Alameda County (1975) 15 Cal.3d 449, 455-456.)
Section 583.130 also establishes a statutory preference for trial on the merits. (§ 583.130;
see also Sierra Club v. San Joaquin Local Agency Formation Com. (1999) 21 Cal.4th
489, 509 [“all things being equal, we deem it preferable to apply our decisions in such a
manner as to preserve, rather than foreclose, a litigant’s day in court on the merits of his
or her action”].) Applying section 583.130, we conclude that the parties’ written
stipulation extended the time for bringing the case to trial to June 16, 2014. We therefore
conclude that the trial court erred in granting the City’s motion to dismiss.
       Accordingly, we reverse.




                                               8
                                      DISPOSITION
       The judgment is reversed. Munoz shall recover her costs on appeal. (Cal. Rules
of Court, rule 8.278(a)(1) & (2).)



                                               RENNER                     , J.



       We concur:



       RAYE                 , P. J.



       HULL                 , J.




                                           9
