The opinion
LUI, Acting P. J
I dissent.
This appeal presents the question of whether the court had the authority to dismiss the action under former section 581, subdivision 3, of the Code of Civil Procedure.
If the verbal agreement had been incorporated into a written document filed with the court and entered into the minutes of the court’s records, then the trial court would have had jurisdiction to dismiss the action under former section 581, subdivision 3, and the decision in Wilson v. City of Los Angeles (1958) 156 Cal.App.2d 776 [ 320 P.2d 93 ]. In view of the lack of any court order effectuating the stipulation and making it binding on the parties, and in the absence of any prejudice to defendants so as to justify the enforcement *1058 of such verbal agreement under the doctrine set forth in Smith v. Whittier (1892) 95 Cal. 279 [ 30 P. 529 ], the trial court lacked authority to dismiss the case under Smith v. Whittier or any of the other cases relied upon by the majority.
Plaintiff in propria persona filed an amended complaint after a demurrer was sustained with leave to amend against his original complaint. Defendants again demurred, but took the demurrer off calendar when the parties reached an out-of-court verbal agreement that plaintiff would seek legal counsel and amend the complaint a second time by a certain date, which was later courteously extended to September 10, 1984, by defendants. Defendants memorialized their version of the verbal agreement in several letters to plaintiff; however, defendants’ self-serving letters were not the stipulation. Defendants admitted at oral argument that the verbal agreement went no further than to specify the date by which plaintiff was to amend and not the consequences if he failed to do so.
When plaintiff failed to file his proposed amended complaint on the date agreed, defendants moved to dismiss citing the trial court to former section 581, subdivision 3, of the Code of Civil Procedure. 1
Plaintiff filed his proposed second amended complaint for the trial court’s consideration. “[Section] 473 authorizes the trial court, in its ‘discretion,’ to allow amendments ‘in furtherance of justice.’ The policy of great liberality in permitting amendments at any stage of the proceeding was declared at an early date and has been repeatedly restated. [Citations.]” (5 Witkin, Cal. Procedure (3d ed. 1985) Pleading, § 1121, p. 537.) Plaintiff’s proposed second amended complaint was filed on October 19, 1984, 39 days later than the last date extended by defendants.
Defendants urge that the order of dismissal is proper under former section 581, subdivision 3, and the decision in Wilson v. City of Los Angeles, supra, 156 Cal.App.2d 776 . Section 581, subdivision 3, however, provides no support for the trial court’s entertainment or ruling on the motion to dismiss. There was never an agreement that the demurrer was sustained “without leave to amend” as defendants admitted at oral argument, nor was there any action by the trial court’s specifying that plaintiff “amend [the com *1059 plaint] within the time allowed by the court.” (Italics added; see former § 581, subd. 3, ante, fn. 1.) A plain and simple reading of the statute indicates that there is no basis for the court’s action dismissing the plaintiff’s complaint.
Similarly, Wilson is of no assistance to defendants’ position. In Wilson , the trial court actually entered an order which incorporated the parties’ agreement that the demurrer be Sustained with leave to amend the complaint within 20 days. Seven years later, plaintiff sought to amend the complaint and the trial court’s order of dismissal was affirmed by the Wilson court. Wilson is clearly distinguishable from the present case both on the length of the delay and the critical factor of the presence of a trial court order implementing the parties’ agreement, both as to the sustaining of the demurrer and the time for the filing of the amended complaint.
Because there was no cqurt approval of the verbal agreement and because it was never entered into the minutes of the court or reduced to writing and filed with the clerk of the court, the verbal agreement was “not therefore legally binding upon the trial court.” (Blackwood v. Cutting Packing Co. (1886) 71 Cal. 461, 465 [ 12 P. 493 ]; § 283, subd. I.) 2
Finally, there is absolutely no showing of prejudice to the defendants as a result of plaintiff’s 39-day delay in filing his proposed amended complaint, other than the fact that they gave up their right to have the trial court rule on their demurrer to the first amended complaint on July 20, 1984.
Plaintiff candidly admits in his opposing papers to the motion to dismiss and in his briefs on appeal that he entered into the verbal agreement to file an amended complaint by the dates indicated. 3 He offers a reasonable explanation that the delay was caused by his inability to find adequate legal counsel and then that his legal counsel was delayed further by caseload problems.
In Smith v. Whittier, supra, 95 Cal. 279, 288 , the court states: “If under the terms of a mutual stipulation, which was only verbal, one party has received the advantage for which he entered into it, or the other party has *1060 at his instance given up some right or lost some advantage, so that it would be inequitable for him to insist that the stipulation was invalid, he will not be permitted to repudiate the obligation of his own agreement, upon the ground that it had not been entered in the minutes of the court. [Citations.]” 4 (Italics added.)
The only advantage plaintiff gained was a delay in the trial court’s ruling on the demurrer and an agreement to file an amended complaint by a certain date. It is obvious that the verbal agreement between the parties envisioned that the demurrer would have been sustained with leave to amend. Therefore, the advantage plaintiff gained by the delay was the lack of formal court action sustaining the demurrer. The appropriate action by the trial court in this case, in my judgment, would have been to sustain the demurrer on the first amended complaint and to assess monetary sanctions against plaintiff, as appropriate, occasioned by the delay. The sanction of dismissal is simply out of proportion to any harm caused by the 39-day delay, because defendants have shown absolutely no prejudice, in their moving papers before the trial court and their briefs on appeal, other than the loss of time. The 39- *1061 day delay here seems rather minuscule when compared to the normal time span involved in pretrial pleading matters in cases tried in the Los Angeles Superior Court.
It has always been the policy of the courts in California to resolve a dispute on the merits of the case rather than allowing a dismissal on technicality. As stated in Gould v. Stafford (1894) 101 Cal. 32, 34 [ 35 P. 429 ]: “The rule is that courts will be liberal in allowing an amendment to a pleading when it does not seriously impair the rights of the opposite party . . . .” The trial court’s order granting the motion to dismiss under former section 581, subdivision 3, was in excess of its jurisdiction and resulted in the unjust dismissal of plaintiff’s action at a very early stage in the proceedings.
For these reasons, I would reverse the order entered below.
A petition for a rehearing was denied February 26, 1986, and appellant’s petition for review by the Supreme Court was denied April 23, 1986. Broussard, J., was of the opinion that the petition should be granted.
Hereinafter, all statutory references shall be to the Code of Civil Procedure unless otherwise indicated.
Former section 581 reads in pertinent part as follows: “An action may be dismissed in the following cases: . . . [H] 3. By the Court, when either party fails to appear on the trial and the other party appears and asks for the dismissal, or when a demurrer is sustained without leave to amend, or when, after a demurrer to the complaint has been sustained with leave to amend, the plaintiff fails to amend it within the time allowed by the court, and either party moves for such dismissal.” (Italics added.)
Section 283 provides in pertinent part as follows: “An attorney and counselor shall have authority: [K] 1 To bind his client in any of the steps of an action or proceeding by his agreement filed with the Clerk, or entered upon the minutes of the Court, and not otherwise; . . .” (Italics added.)
I cannot accept the reasoning of the majority transposing plaintiff’s admission (contained in his opposition papers to the motion to dismiss) into the court’s records on the very eve of the dismissal of his case. Section 283 must be construed to reflect that such stipulations be inserted into the court’s records at the earliest possible date after they are made and not later when a party seeks to enforce it, especially when there is no showing of prejudice.
The majority also relies on certain other appellate decisions (see majority opn., ante, p. 1052); such reliance is not well-founded. In Waybright v. Anderson (1927) 200 Cal. 374 [ 253 P. 148 ], the Supreme Court was faced with an appeal from an order granting a motion to set aside default judgments of dismissal. There was some question as to whether counsel had entered into a verbal agreement regarding the amendment of complaints after the demurrers had been sustained with leave to amend by a date certain. Defendants had secured the default judgments when the complaints had not been amended by such date. In setting aside the default judgments, the trial court concluded that counsel had entered into a stipulation leaving open the time for filing and serving the amended complaints. The Supreme Court refused to reach a contrary conclusion. It is clear that the decision in Waybright was addressed toward resolving the appeal to allow a trial on the merits ana r ' . dismissal on a technicality. That is the context in which the court stated at page 379: We are familiar with the general rule that a stipulation of counsel cannot be enforced unless put in writing, or entered in the minutes of the court (sec. 283, Code Civ. Proc.), but the courts have been indisposed to give this otherwise general rule application to default judgments. [Citations.]” (Italics added.) The majority’s reliance on Waybright is misplaced because it deals with a motion to set aside a default judgment where the courts allow a great deal of liberality to ensure a trial on the merits. The Waybright court was thus attempting to construe the stipulation to allow a trial on the merits and not a dismissal (the result achieved by the majority in this case).
Further, while Webster v. Webster (1932) 216 Cal. 485 [ 14 P.2d 522 ] relies on Smith v. Whittier, supra, 95 Cal. 279 , the stipulation in Webster was made in open court and contained in the reporter’s notes. (See 216 Cal. at p. 489 .)
Finally, the majority’s reliance on Fidelity & Casualty Co. v. Abraham (1945) 70 Cal.App.2d 776 [ 161 P.2d 689 ], is equally misplaced. Fidelity Casualty does not deal with a stipulation concerning the amendment of a pleading by date certain but rather deals with an agreement entered into by counsel with the apparent consent of his client which was proven by uncontradictory evidence at trial. The Court of Appeal held that the estoppel doctrine applied to prevent plaintiff from repudiating the agreement and held that it would be inequitable to reach such a result. Fidelity Casualty is distinguishable because plaintiff does not necessarily seek to repudiate the verbal agreement made concerning the amendment of the complaint and because there is no showing of prejudice or inequity by virtue of plaintiff’s failure to file the proposed second amended complaint by the date indicated.