dissenting:
I dissent because I cannot distinguish this case from Kuntsman v. Mirizzi, 234 Cal.App.2d 753, 44 Cal.Rptr. 707 (Cal.Ct.App.1965) in any meaningful way. In Kuntsman, an attorney had represented the plaintiff in settlement negotiations with an insurance company. The plantiff alleged in her complaint that she was injured in an automobile accident, that she engaged an attorney, that the attorney entered settlement negotiations with the insurance adjuster, that the insurance adjuster told the attorney that liability was clear and it was only a question of how much, that the attorney advised the adjuster of difficulty he was having obtaining a medical report, that the adjuster reaffirmed his principal’s decision that “this ‘is a case that we will settle’ as soon as the medical information is available,” 234 Cal.App.2d at 755, 44 Cal.Rptr. at 708, and that the adjuster’s conduct “lulled her attorney into a sense of security which caused him to defer the filing of a complaint in the belief that the cause of action would be settled,” Id. at 755, 44 Cal.Rptr. at 709.
The court of appeal held in Kuntsman that the complaint failed to state a cause of action for estoppel of the insurance company to rely on the statute of limitations. The court reasoned that for the doctrine of equitable estoppel to apply, the defendant
*1342must have wrongfully obtained an advantage, id. at 756, 44 Cal.Rptr. at 709, and that the law does not favor estoppels, especially where the party attempting to raise the estoppel in represented by an attorney, id. at 757, 44 Cal.Rptr. at 710. The Kunts-man court concluded,
“She [Kuntsman] was being protected by an attorney, who is charged with knowledge of the law____ To permit one who has knowledge of the law to attempt to negotiate a settlement and subsequently plead estoppel would not only destroy the effect of the legislative statutes of limitation but would seriously impair the climate and effectiveness of the present method of encouraging settlement without litigation.”
Id. at 758, 44 Cal.Rptr. at 710. Thus, the thrust of the court’s reasoning is that if a plaintiff is represented by an attorney, the plaintiff cannot estop an insurance company from raising a statute of limitations defense, absent fraud or a fiduciary relationship.
In our case, as in Kunstman, the plaintiff’s attorney talked about a settlement with the insurance company.1 Also, as in Kunstman, plaintiff alleged an agreement that liability was clear, leaving only the question of how much. As long as there was no agreement on amount, however, the parties had nothing but an agreement to agree, which, as every first year law student knows, is no agreement at all. Kunstman makes it clear that under California law, an attorney may not ignore the statute of limitations on the hope that a settlement will be reached with the insurance company at a later time.
The majority cites Muraoka v. Budget Rent-A-Car, 160 Cal.App.3d 107, 206 Cal.Rptr. 476 (Cal.Ct.App.1984), as authority for its position. In my view, Muraoka is distinguishable from the case at bar because the plaintiff seeking estoppel there was not represented by an attorney. Id. at 116, 206 Cal.Rptr. at 480. In that case the court held that the defendant could be estopped because it was the protagonist for the delay. Id. at 117, 206 Cal.Rptr. at 481. I think that the controlling case is Kunst-man, not Muraoaka, because Kunstman, like this case, involved an attorney.
I respectfully dissent.
. Here, as in Kunstman, the plaintiff retained an attorney from a different state. As the court held in Kunstman, an attorney "is charged with knowledge of the law in California as far as the statute of limitations is concerned even though he may practice in other states____” Id. at 758, 44 Cal.Rptr. at 710.