Opinion
NOT TO BE PUBLISHED
Superior Court County of Ventura No. SC028244 William Q. Liebmann, Judge
Nicolas Shirilla, in pro. per., for Plaintiff and Appellant.
Law Offices of Richardson & Fair, Craig L. Wildey for Defendants and Respondents.
PERREN, J.
Nicolas Shirilla appeals from a judgment of dismissal for failing to bring his case to trial within five years. (Code Civ. Proc., §§ 583.310, 583.360.) He asserts the trial court erred in dismissing his personal injury action because the statute of limitations was tolled by the parties' agreement to arbitrate and the trial court had no jurisdiction to dismiss the lawsuit. There was no such stipulation. Accordingly, we affirm.
All statutory references are to the Code of Civil Procedure.
FACTUAL AND PROCEDURAL HISTORY
Shirilla was injured when an automobile driven by respondent Chloe D. Schwartz collided with his automobile. He filed a personal injury lawsuit against Schwartz and Schwartz's parents, respondents William A. Schwartz and Pam Schwartz, on November 30, 2000. In June 2002, preliminary discussions of a possible binding arbitration were discussed between counsel for the parties. On June 13, defendants' counsel sent a draft arbitration agreement to Shirilla’s attorney. On June 24, the parties' attorneys represented to the court that they were preparing a stipulation for binding arbitration. On July 10, Shirilla’s attorney returned the arbitration agreement to defendants' counsel unsigned and with material changes to the terms proposed by defendants. In response, defendants’ attorney sent a letter to Shirilla’s attorney that the changes were not acceptable.
On July 11, 2002, the court dismissed the action without prejudice based on counsel's representation that the case would be arbitrated. The order states: "No further court action needed at present. Case is dismissed without prejudice, reserving jurisdiction to vacate dismissal to enforce terms of arbitration agreement and award, and to enter judgment on arbitration award." Although no arbitration agreement had been finalized or signed, Shirilla’s attorney filed a request for dismissal without prejudice that day.
Neither party took action to prosecute the lawsuit, including finalizing and signing the arbitration agreement. On November 2, 2005, less than a month before the running of the five-year statute, a new attorney representing Shirilla filed an application for an ex parte order shortening time to hear Shirilla's motion for order vacating dismissal without prejudice and for order compelling arbitration by November 30. On November 3, Judge Hutchins denied the application without prejudice. On November 23, the court denied the motion to vacate and compel arbitration on the grounds that no written agreement to arbitrate existed and Shirilla had not established that any of the limited circumstances existed for enforcement of the purported oral stipulation.
On April 28, 2006, Shirilla filed another motion for an order vacating dismissal under section 473. On May 23, Judge Liebmann granted the motion and vacated the July 11, 2002, dismissal.
On June 26, 2006, defendants filed a motion to dismiss for failure to bring the case to trial within five years. Defendants argued that dismissal of the case was mandatory based on section 473, subdivision (b), which states, in pertinent part: "[T]his section shall not lengthen the time within which an action shall be brought to trial pursuant to Section 583.310." On August 8, 2006, Shirilla filed a petition to compel arbitration and application to stay further proceedings.
On September 1, 2006, the trial court granted defendants' motion to dismiss on the grounds that Shirilla (1) failed to establish any basis for estopping defendants from claiming there was no arbitration agreement, (2) failed to demonstrate that the court's jurisdiction to try the action was suspended at any time, and (3) failed to demonstrate that his ability to prosecute the action was impossible or impracticable. The court denied Shirilla's motion to compel arbitration as moot. A judgment of dismissal was filed on October 2, 2006.
DISCUSSION
An Agreement to Arbitrate Must Be in Writing
The right to arbitrate a dispute is purely statutory. Interpretation of a statute is a question of law which we review de novo. (Argaman v. Ratan (1999) 73 Cal.App.4th 1173, 1176.)
Section 1281 provides: "A written agreement to submit to arbitration an existing controversy or a controversy thereafter arising is valid, enforceable and irrevocable, save upon such grounds as exist for revocation of any contract." Despite this clear language, Shirilla asserts that a written agreement is not necessary and that the oral representation to the trial court by the parties' attorneys to arbitrate and the court's minute order reflecting the representation are sufficient to bind the parties to arbitration. We disagree. "[T]he statutes permit the courts to specifically enforce only written agreements to arbitrate . . . ." (Law Offices of Ian Herzog v. Law Offices of Joseph M. Fredrics (1998) 61 Cal.App.4th 672, 677.) "[I]f there was no valid contract to arbitrate, the petition [to compel arbitration] must be denied. . . . 'There is no public policy favoring arbitration of disputes which the parties have not agreed to arbitrate.'" (Banner Entertainment, Inc. v. Superior Court (1998) 62 Cal.App.4th 348, 356, quoting Boys Club of San Fernando Valley, Inc. v. Fidelity & Deposit Co. (1992) 6 Cal.App.4th 1266, 1271.)
Shirilla’s attorney made several modifications to the proposed arbitration agreement drafted by defendants' counsel and returned it unsigned. Defendants’ attorney notified Shirilla’s counsel in writing that defendants rejected the changes made by Shirilla’s attorney.
"California law is clear that there is no contract until there has been a meeting of the minds on all material points." (Banner Entertainment, Inc. v. Superior Court, supra, 62 Cal.App.4th 348, 357-358.) “Thus, the failure to reach a meeting of the minds on all material points prevents the formation of a contract even though the parties have orally agreed upon some of the terms, or have taken some action related to the contract." (Id. at p. 359, italics omitted; see also Bustamante v. Intuit, Inc. (2006) 141 Cal.App.4th 199, 215 [same].) In this case, there was no manifestation of mutual assent and no enforceable agreement to arbitrate. (American Employers Group, Inc. v. Employment Development Dept. (2007) 154 Cal.App.4th 836, 847.)
For the first time on appeal, Shirilla argues that the case is not subject to the rules of contractual arbitration in section 1281 et seq. He argues that the arbitration was a judicial (§ 1141.10 et seq.), not a contractual, arbitration and no written agreement was required. The argument is without merit. Shirilla's theory in the trial court was that the case was one governed by the rules for contractual arbitration. A party may not change the theory of his case on appeal. (City of Newport Beach v. Sasse (1970) 9 Cal.App.3d 803, 812.) Moreover, Shirilla failed to comply with the procedures for judicial arbitration, such as filing an election for judicial arbitration in which he agreed that the award could not exceed $50,000. (§ 1141.11, subd. (a).)
We agree with the trial court that Shirilla has failed to establish any exception to the rule that an agreement to arbitrate must be in writing.
The Trial Court Did Not Err in Dismissing the Action for Failure to Prosecute
Section 583.310 provides: "An action shall be brought to trial within five years after the action is commenced against the defendant." Dismissal for noncompliance within the five-year limit is "mandatory . . . except as expressly provided by statute." (§ 583.360, subd. (b).) Section 583.310 imposes an affirmative duty on a plaintiff to make every reasonable effort to bring the case to trial. "Indeed, the diligence required of a litigant increases as the five-year deadline approaches. It is then that the greatest diligence is required." (Wilshire Bundy Corp. v. Auerbach (1991) 228 Cal.App.3d 1280, 1287.)
Shirilla contends the five-year statute is inapplicable because the parties agreed to arbitrate the matter and therefore the statute was tolled. We disagree. There was no enforceable agreement to arbitrate. Even if an enforceable agreement existed, the five-year statute was not tolled because Shirilla failed to comply with section 1281.4 requiring that a motion be filed to stay the action pending arbitration. (See, e.g., Dial 800 v. Fesbinder (2004) 118 Cal.App.4th 32, 45 ["The party seeking resolution via contractual arbitration must also file a motion in the action at law to stay it . . .; it will not be stayed automatically"].)
Shirilla's jurisdictional arguments also are without merit. He contends the trial court had no jurisdiction to consider defendants' motion to dismiss because he, not the defendants, filed the motion to vacate the dismissal. The argument is without authority and fails. The court properly exercised its authority to grant his motion to vacate the dismissal under section 473. (See Basinger v. Rogers & Wells (1990) 220 Cal.App.3d 16, 21-22 [even after voluntary dismissal with prejudice has been filed, the trial court has jurisdiction to vacate the judgment of dismissal under section 473].) The reinstatement of jurisdiction after a motion to vacate a dismissal is granted does not depend on which party filed the motion. After the motion to vacate the dismissal was granted, the court was reinvested with full jurisdiction over the parties and the subject matter of the lawsuit until final judgment was entered. (Wackeen v. Malis (2002) 97 Cal.App.4th 429, 437.)
Shirilla's argument that the court had no power or authority to vacate a dismissal ordered by a different judge is neither supported by authority nor does it aid his case. Had the court denied the motion to vacate the dismissal, the action would have been finally concluded in 2002 when the voluntary dismissal was entered.
The trial court did not err in dismissing the action for failure to prosecute.
The judgment of dismissal is affirmed. Costs are awarded to respondents.
We concur: GILBERT, P.J. COFFEE, J.