I concur in the result only.
Plaintiff Brookview Condominium Owners’ Association did not serve the summons and complaint on defendant and respondent Heltzer EnterprisesBrookview (Enterprises) within three-years after filing suit. In this court Brookview contends Enterprises made a general appearance before its motion to dismiss and therefore cannot assert the bar of the three-year statute. As the lead opinion states, a general appearance after an untimely service does not affect a defendant’s right to dismissal. (Blank v. Kirwan (1985) 39 Cal.3d 311, 333 [216 Cal.Rptr. 718, 703 P.2d 58]; Busching v. Superior Court (1974) 12 Cal.3d 44, 52 [115 Cal.Rptr. 241, 524 P.2d 369]; Dale v. ITT Life Ins. Corp. (1989) 207 Cal.App.3d 495, 499, fn. 4 [255 Cal.Rptr. 8]; Tires Unlimited v. Superior Court (1986) 180 Cal.App.3d 974, 982 [226 Cal.Rptr. 25]; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 1989) §§ 11:73-11:75, p. 11-27.)
Brookview’s primary contention is that Enterprises’ conduct after its general appearance estopped it from claiming the protection of the statute. The trial court considered, and rejected, this argument and I agree with the lead opinion that this was not an abuse of discretion.
Of course, deciding it was not an abuse of discretion necessarily implies the view that a defendant who not only makes a general appearance, but also actively involves itself in a lawsuit for an extended period of time may be deemed estopped from claiming the right to a dismissal. Here Enterprises chose, for reasons not clear in the record, to answer the complaint, cross-complain against new parties, and aggressively involve itself in the discovery process. In considering whether this conduct amounted to an estoppel, the trial court correctly assumed that it had the discretion to deny the motion to dismiss.
No reported cases discuss what conduct after an untimely service is sufficient to estop a defendant from obtaining a dismissal. While the trial court’s ruling renders it unnecessary to determine what conduct bars assertion of the statute, this case comes perilously close to the line. Certainly a defendant who wants to waive the statutory protection and proceed with the litigation, despite the late service, is free to do so. Had Enterprises begun the trial it would be estopped from seeking the protection of the *516statute. What conduct short of trying the case constitutes a waiver or estoppel is a question for another day.
A petition for a rehearing was denied March 28, 1990.