On April 1, 1957, appellant sued in a single cause of action for a real estate broker’s commission. Demur*61rers to the first complaint and a second complaint which was in two causes of action, were sustained, the latter being sustained without leave to amend. An appeal was taken by appellant, and the judgment entered upon the order sustaining the demurrer was affirmed as to the first cause of action and reversed as to the second cause of action, with instructions to the trial court to grant plaintiff leave to amend. (Lane v. Davis, 172 Cal.App.2d 302 [342 P.2d 267].) The remittitur was filed on September 23,1959.
After remand to the trial court, amended complaints having been filed, a demurrer to the second cause of action of the fourth amended complaint was sustained without leave to amend, but a demurrer to the first cause of action of said fourth amended complaint was overruled. No judgment was entered upon and no appeal taken from the order sustaining without leave the demurrer to the second cause of action of the fourth amended complaint.
Respondents’ answer to the first cause of action was filed on July 25, 1960. After a pretrial conference held in August 1962, trial was set for October 29, 1962. On October 19, 1962, respondents moved to dismiss on the ground that appellant had failed to bring the action to trial within three years as required by section 583 of the Code of Civil Procedure.
The pertinent portion of section 583 reads as follows:
“... When in an action after judgment, an appeal has been taken and judgment reversed with cause remanded for a new trial ... the action must be dismissed by the trial court, on motion of defendant ... or of its own motion, unless brought to trial within three years from the date upon which remittitur is filed by the clerk of the trial court. ”
The motion was granted and this appeal is from the judgment entered on the order granting the motion under section 583.
The decisive question presented is whether the judgment and remand of the appellate court (Lane v. Davis, supra) permitting amendment of the second cause of action of the second amended complaint, is the granting of a new trial within the meaning of section 583.
On all fours with the facts of this ease are the eases of McDonnell v. American Trust Co., 178 Cal.App.2d 325 [2 Cal.Rptr. 826], and Robertson v. Superior Court, 180 Cal. App.2d 372 [4 Cal.Rptr. 297] (hearing denied by the Supreme Court). Each case holds that a situation such as described here is a new trial within the meaning of the pertinent portion of section 583 and that, if the action is not *62brought to trial within three years from date of remittitur, the court must dismiss. In McDonnell the court reviews prior decisions and says at page 328:
“Not one of these decisions support appellants’ argument that the trial court must apply its discretion to temper the rigidity of the rule. ’ ’
Appellant further contends that Berri v. Superior Court, 43 Cal.2d 856 [279 P.2d 8] suggests a different interpretation.
In Berri, a demurrer was sustained without leave to amend. No judgment, however, was entered thereon. Shortly prior to the expiration of the five-year period provided for in the first portion of section 583, plaintiff sought to enter a judgment on the order sustaining without leave. Pending the signing of such judgment by the trial court, however, the five-year period expired and defendant (in that action) made a motion to dismiss under section 583. Plaintiff petitioned in mandate to compel the trial court to sign the judgment she had presented.
In Berri, the court speaking directly on the facts of that case said at page 861:
“Inasmuch, however, as the trial court may change its ruling on the demurrer, as no judgment has been entered, the trial court is hereby directed to render judgment, or if it deems advisable, give consideration to a reexamination of its ruling. In case it does the latter, however, the action is not subject to dismissal because under the above reasoning there has been, in effect, a partial trial of the action and section 583 is inoperative. A partial trial of an action will take the case out of the operation of section 583. (City of Los Angeles v. Superior Court, 15 Cal.2d 16 [98 P.2d 207]; see O’Day v. Superior Court, supra, 18 Cal.2d 540 [116 P.2d 621].) Let the writ issue directing the trial court to enter a judgment of dismissal or overrule the demurrer. ”
The Berri ease was prior to McDonnell and Robertson. It is cited in neither and a hearing was denied in Robertson.
In Berri the court decided that a demurrer sustained without leave to amend upon which no judgment was entered, was only a partial trial because on presentation of a judgment the trial court might, as it had the right to do, change its mind and overrule the demurrer. This situation is not the same as it was in McDonnell and Robertson.
On rationale it would appear that the Legislature did not intend to penalize a litigant for diligence in bringing a case to trial, yet if the statute is applied as interpreted by Me-*63Donnell and Robertson, the result could he a penalty for diligence. Thus, a litigant could appeal on a question of law such as a judgment entered on a demurrer sustained without leave and be remanded to the trial court within six months after filing a complaint. Applying section 583 as interpreted by McDonnell and Robertson, reduces the time allowed plaintiff to bring an action to trial from five years to three and one-half.
On the facts here involved, however, more than five years had expired from the time the complaint was filed. Appellant thus had the advantage of the five-year limitation and the three-year limitation.
Appellant urges that when respondents at the pretrial conference held in August 1962 permitted without objection the trial of the case to be set for October 29, 1962, which date was 10 days after the expiration of the three-year period, respondents estopped themselves from making any objection or waived any objection.
There is no showing that respondents or either of them knew, when a pretrial date was set, that the trial date was beyond the expiration of the three-year period, nor has any case been cited to us and we know of none which makes it respondents’ duty, even if they knew, to call such fact to appellant's attention. There is present in this case not the slightest evidence squinting at fraud or connivance on respondents’ part to have a trial date fixed to a time when the three-year period would have expired.
It seems to be clear too that the portion of section 583 here involved cannot be extended even with written stipulation; thus in Neustadt v. Skernswell, 99 Cal.App.2d 293, at page 295 [221 P.2d 694] the court says: “It should be noted however that the portion of section 583 applicable here does not incorporate the exception found in the other portions of the section excusing the delay when a written stipulation extending time has been made. Cases holding that the ‘written’ stipulation might be excused under certain exceptional circumstances have no application to the last sentence of the section which is applicable here and which admits of no stipulation written or oral.”
The judgment is affirmed.
Kincaid, J. pro tern.,* concurred.
Retired judge of the superior court sitting pro tempore under assignment by the Chairman of the Judicial Council.