Opinion
Does the superior court retain jurisdiction to dismiss litigation for failure to diligently prosecute (Code Civ. Proc., §§ 583.410, 583.420) after submission of the cause to judicial arbitration? Yes.
I
Hye Cha Ice filed a tort action against Mary Nanfito on August 26, 1986. The at-issue memorandum did not follow until June 1991, two months before the lawsuit’s fifth anniversary. At that time plaintiff also unilaterally elected to submit the case to arbitration.
Nanfito responded with a motion to dismiss for failure to diligently prosecute. On July 11, 1991, before the motion was heard, however, the presiding judge of the Orange County Superior Court, acting on plaintiff’s *318election, ordered the case to mandatory arbitration.1 The judge slated to hear Nanfito’s motion to dismiss then determined plaintiff’s election and the superior court’s order for arbitration stripped him of any jurisdiction to rule. He conceded it was “a strange situation,” but added, “in any event, I can’t overrule . . . another judge.”2
Nanfito petitioned for a peremptory writ of mandate. We stayed the arbitration and invited responses from the court and the real party in interest. None was received. Issuance of an alternative writ would not assist our resolution of this matter and would cause unnecessary delay. A peremptory writ in the first instance is appropriate. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171 [203 Cal.Rptr. 626, 681 P.2d 893].)
II
The superior court’s power to terminate litigation previously ordered into arbitration depends on the nature of the arbitration, i.e., judicial or true. In true arbitration, e.g., where parties stipulate to binding arbitration (Dodd v. Ford (1984) 153 Cal.App.3d 426, 432, fn. 7 [200 Cal.Rptr. 256]) or where the superior court has compelled arbitration and stayed court proceedings pursuant to the terms of a written arbitration agreement (Code Civ. Proc., § 1295; Byerly v. Sale (1988) 204 Cal.App.3d 1312 [251 Cal.Rptr. 749]), tihe “arbitration has a life of its own outside the judicial system, and only the arbitrator should determine whether there has been an unreasonable delay in prosecution which would justify dismissal.” (Byerly, supra, at p. 1316; see also Young v. Ross-Loos Medical Group, Inc. (1982) 135 Cal.App.3d 669, 673 [185 Cal.Rptr. 536] [if superior court action is stayed pending ordered arbitration under written arbitration agreement, arbitrator’s decision to dismiss proceeding for failure to prosecute is binding on superior court].) Under these circumstances, “the pleadings in the civil action, having fulfilled their purpose, [become] virtually functus *319officio” and any attempt by the court to terminate the dispute is an idle act.3 (Dodd v. Ford, supra, 153 Cal.App.3d at pp. 431-432.)
Judicial arbitration is a different animal, however. As we previously obvserved, “[¡Judicial [arbitration is obviously an inapt term, for the system it describes is neither judicial nor arbitration. The hearing is not conducted by a judge, and the right to a trial de novo removes the finality of true arbitration. ‘Extrajudicial mediation’ would be closer to correct.” (153 Cal.App.3d at p. 432, fn. 7.) Where the arbitration is of this type, the matter is only on a sabbatical from the courthouse and the superior court retains full jurisdiction to dismiss for lack of diligent prosecution. (See, e.g., D’Hondt v. Regents of University of California (1984) 153 Cal.App.3d 723, 730 [200 Cal.Rptr. 628].)
Moreover, special rules pertain where a plaintiff’s election to arbitrate is “attempted in the last three months before the running of the five-year statute[.] [That] requires permission of the court. At this time, ‘the trial court should consider the factors relevant to motions to dismiss under the discretionary dismissal provisions of [Code of Civil Procedure] section 583.240 prior to the entry of any order on the merits of the motion.’ ” (Jackson v. Garmon (1990) 217 Cal.App.3d 860, 866, fn. 6 [266 Cal.Rptr. 201].)4 No such consideration occurred here, and issuance of the writ is justified on that basis alone.
*320In short, not only does the superior court retain jurisdiction to dismiss actions it has previously ordered to judicial arbitration, it should also refuse to authorize such arbitrations where a plaintiff has waited an unreasonable time to seek that alternative resolution of the litigation.
Let a peremptory writ of mandate issue directing respondent court to hear petitioner’s motion to dismiss. Our stay of the arbitration hearing is dissolved effective upon the resolution of that motion.
Sills, P. J„ and Wallin, J., concurred.