I dissent.
Although, like the majority, I cannot look with approval on “defendant’s maneuver in getting additional time to plead,” I cannot agree with them that such conduct operated to estop defendant from seeking dismissal on the ground of noncompliance with section 581a of the Code of Civil Procedure.1 Neither can I agree with the strong implication of the majority —albeit in dictum—that in analogous circumstances a defendant would be estopped to seek dismissal under section 583 for failure to bring an action to trial within five years.
In sum, the majority in their efforts to fashion a result for the particular case have obscured and confused, if not uprooted, well-established rules whose former clarity was. designed to insure certainty and precision in practice and procedure.
Section 581a, like section 583, contains express exceptions to the re*443quirement of dismissal. Thus, an action will not be dismissed in spite of failure to serve the summons and make return thereon within three years if (1) “the parties have filed a stipulation in writing that the time may be extended,” or (2) “the party against whom the action is prosecuted has made a general appearance in the action,” or (3) defendant was not amenable to the process of the court during some portion of the three-year period, in which case the time is extended accordingly. (§ 581a, subds. (a) and (d).) It is clear that none of these express exceptions is applicable to this case.
Our opinion2 in Wyoming Pacific Oil Co. v. Preston (1958) 50 Cal.2d 736 [329 P.2d 489] also indicates that implied exceptions similar to those applied under section 583 may also obtain in cases involving section 581a. Clearly then one cannot dispute that the implied exception of estoppel, which has long been recognized in cases interpreting section 583, may in similarly appropriate circumstances also have application in section 581a cases. However, to state that the doctrine of estoppel can have possible application in section 581a cases as a class is not to determine the circumstances under which it will be applied in a particular case.
The operation of the doctrine of estoppel in this area is best considered in the context of the reasons underlying the express “written stipulation” exception set forth in sections 581a and 583.3 In the early case of Miller & Lux Inc. v. Superior Court (1923) 192 Cal. 333, 340 [219 P. 1006], we stated: “The provision that a written stipulation be entered into was intended to preclude all disputes, with their attendant charges and counter-charges of overreaching and unethical conduct, by a requirement that clear and uncontrovertible evidence be presented to the court that the statutory time was deliberately intended to be extended by both parties.”4 Holding *444that the mere insistence of counsel for the defendants that another case precede the three actions before the court was not sufficient to satisfy the requirements of section 583, we went on to explain: “Such an insistence falls far short of attaining the dignity of an oral stipulation in open court and certainly does not come within the category of written stipulations. The waiver of defendants’ right to dismiss and a consent to an indefinite continuance can only be implied or inferred from such conduct. To hold that this inferential consent is the same as a written stipulation would be to give to this section a strained constuction, which, while it might relieve the harshness of the result in these particular cases, would be to render futile the salutary provisions of this section intended to secure preciseness of practice and procedure. The very harshness of the rule would seem to be intended to put the plaintiff on the qui vive to secure irrefutable evidence of the defendant’s consent to an extension of the statutory time.” (Original italics.) (Miller & Lux Inc. v. Superior Court, supra, 192 Cal. at p. 340.)
It is in view of these rational underpinnings that the implied' exception of estoppel has been applied sparingly and in a very narrow area. The classic case is one where, although there has been no written stipulation extending time as provided for in the statute, the parties have appeared in open court and have made such a stipulation on the record. Here the thought is that the stipulation is in a sense “written” within the meaning of the statute because it is memorialized on the written records of the court. Even if it is not deemed to be “written” in that sense, it nevertheless meets the standard of certainty and precision exemplified by the express exception and avoids the dangers designed to be eliminated by it. “[I]f such a stipulation entered in the minutes of the court does not literally comply with the language of section 583, supra, it does estop the petitioner from thereafter making a motion to dismiss the cause for want of prosecution under such section; . . .” (Govea v. Superior Court (1938) 26 Cal.App.2d 27, 31 [78 P.2d 433]; see also Preiss v. Good Samaritan Hospital (1959) 171 Cal.App.2d 559 [340 P.2d 661].)
However, a legion of cases have held that conduct on the part of the defendant, however much it may operate to “lull [the plaintiff] into' a false sense of security,” is not sufficient to raise an estoppel to avoid the mandate of the applicable dismissal statute. (See, for example, Pacific Greyhound Lines v. Superior Court (1946) 28 Cal.2d 61, 67 [168 P.2d 665];5 Christin *445v. Superior Court (1937) 9 Cal.2d 526, 529-530 [71 P.2d 205, 112 A.L.R. 1153];6 Grafft v. Merrill Lynch, Pierce, Fenner & Beane (1969) 273 Cal.App.2d 379, 383-384 [78 Cal.Rptr. 42];7 Camille’s Corp. v. Superior Court (1969) 270 Cal.App.2d 625, 629-630 [75 Cal.Rptr. 868]; Anderson v. Erwyn (1966) 247 Cal.App.2d 503, 508-509 [55 Cal.Rptr. 634]; Bella Vista Dev. Co. v. Superior Court (1963) 223 Cal.App.2d 603, 613-614 [36 Cal.Rptr. 106];8 Mass v. Superior Court (1961) 197 Cal.App.2d 430, 437-438 [17 Cal.Rptr. 549];9 Berger v. McMahan (1953) 116 Cal.App.2d 328, 330-331 [253 P.2d 543];10 Hunt v. United Artists Studio (1947) 79 Cal.App.2d 619 [180 P.2d 460];11 Breakstone v. Giannini *446(1945) 70 Cal.App.2d 224, 231-233 [160 P.2d 887]; Bank of America v. Moore & Harrah (1942) 54 Cal.App.2d 37, 42-44 [128 P.2d 623];12 Elmhurst Packers v. Superior Court (1941) 46 Cal.App.2d 648 [116 P.2d 487]; see generally 2 Wilkin, Cal. Procedure, Proceedings Without Trial, §§ 29-30, 40-41, 48, pp. 1667-1669, 1677-1679, 1683-1684, and 1967 Supplement regarding those sections.)
The majority, however, purport to find in the case of Woley v. Turkus (1958) 51 Cal.2d 402 [334 P.2d 12] a fatal crack in this edifice of authority. Woley was a section 583 case in which the plaintiff filed a memorandum to set and notice of motion to advance for trial 19 days before the five-year period was to elapse. At the hearing on the motion “the defendant requested a continuance on the ground that nothing had been done in the case for almost five years and that the 12 days’ notice was inadequate for trial preparation. The request was made with the representation by the defendant in open court that the plaintiff was not to be prejudiced by such a continuance.” (Italics added; 51 Cal.2d at p. 404.) Pursuant to this request and also pursuant to a written stipulation executed pursuant to the express exception set forth in the statute, the court granted a continuance to a date 15 days beyond the five-year period. However the action was not tried on the indicated date after defendant asked for further continuance. Finally defendant’s motion to dismiss was granted on the ground that the written stipulation had extended the time only to the date 15 days beyond the mandatory period.
We reversed the judgment of dismissal on two grounds. First, recognizing that the written stipulation was of no effect beyond the date to which the cause was originally continued, we nevertheless held that the defendant’s request for further time on that date, together with his earlier representation in open court that plaintiff would suffer no prejudice from contin*447uance, were tantamount to an extension of time entered into in open court —which, on the authority of Govea v. Superior Court, supra, 26 Cal.App. 2d 27, 31, brought the case within the narrow rule of estoppel announced in that case. Second, we held that another implied exception in section 583 cases—to wit, that which excuses compliance with the mandatory provision when it is impossible, impractical, or a futile gesture to bring the matter to trial within the period (see Pacific Greyhound Lines v. Superior Court, supra, 28 Cal.2d 61, 67)—was applicable.13
Surely the Woley case is no authority for the broad rule of estoppel which the majority announce and apply in this case. Insofar as that case involves estoppel it is conceived only with the narrow implied exception set forth in the Govea case—an exception which is manifestly not involved in the instant case where none of the representations upon which the majority would base an estoppel occurred in open court.
Of the section 581a cases from which the majority seek to draw sustenance, only Flamer v. Superior Court (1968) 266 Cal.App.2d 907 [72 Cal.Rptr. 561] deserves any significant consideration.14 There, according to plaintiff’s declarations her attorney had been disbarred after the complaint was filed and summons served but before a return on the summons had been made. An agent of the defendant’s insurer informed the plaintiff that it would not be necessary or wise to contact another attorney and that he, the agent, would contact her in order to discuss settlement. The Court of Appeal held that in light of these declarations the trial court properly refused to dismiss upon a section 581a motion by the defendant, but it issued a writ of mandate in order that the motion might be reheard so that “both sides [could] be given a reasonable opportunity to develop the facts on the issue of estoppel.” (266 Cal.App.2d at p. 917.) This decision, although it therefore recognized the possibility of an estoppel outside the context of written or in-court stipulation, nevertheless was firmly grounded in the basic principle of Miller & Lux: A rule whose purpose is to prevent unseemly conflicts between counsel with respect to claimed oral stipulations and unethical conduct (Miller & Lux Inc. v. Superior Court, supra, 192 *448Cal. 333, 340; Preiss v. Good Samaritan Hospital, supra, 171 Cal.App. 2d 559, 565 [concurring opinion]) should not be applied to&permit a defendant to take unfair advantage of an uninformed, plaintiff who through no fault of his own finds himself deprived of counsel after commencement of the action.” (Italics added; 266 Cal.App.2d at p. 917.)
It is manifest that the Flamer case provides absolutely no support for an implied estoppel exception of the scope claimed by the majority. At most Flamer stands for the proposition that estoppel may be applied when the policy considerations underlying the mandatory dismissal statutes are not pertinent to the case at bench because the plaintiff is without counsel. Surely it is no. authority for the application of estoppel in a case where both parties are represented by counsel and those policy considerations are directly involved.15
In view of the foregoing authorities I am wholly at a loss to understand how the majority can conclude that the conduct of defendant’s attorney in this case operated to estop defendant from seeking dismissal under section 581a. Plaintiff was represented by a duly admitted member of the California Bar who must be presumed to know that section 581a required him to serve the summons and make a return thereon within three years or obtain a written stipulation extending that time on pain of dismissal. That attorney, rather than acting promptly to fnlfill .the requirements of the section, waited until eleven days before the expiration of the three-year statutory period before he made any attempt to serve the defendant—even though the defendant was at all times amenable to process.16 Shortly after service and return of the summons, defendant’s attorney requested a 20-day extension of time in which to answer. Plaintiff’s attorney presumably knew that if he did not grant the extension defendant’s responsive pleading would have been due one day before the statutory time of section 581a expired, and that a responsive pleading filed on that day would have been a general appearance which would have barred dismissal under section 581a even if service had been defective. He also presumably knew that if he granted the extension of time beyond the statutory period defendant would be free to quash service if it were defective and thereby obtain a dismissal. There was only one course of action which would both protect his client the plaintiff and accommodate his brother at the bar, and that course of action was *449clearly set out on the face of section 581a: to require a written stipulation extending the statutory time for service and return of summons. By failing to do so plaintiff’s attorney, under the unanimous body of authority which I have summarized above, left his client vulnerable to a fatal motion to quash service. That motion was duly made by defendant after the statutory time had expired and was properly granted by the trial court. The cases as I read them required that the subsequent motion to dismiss be granted.
Clearly such a result entails hardship for the plaintiff. However, to repeat what we said in Miller & Lux Inc. v. Superior Court: “To hold that . . . inferential consent is the same as a written stipulation would be to give to this section a strained construction which, while it might relieve the harshness of the result in these particular cases, would be to render futile the salutary provisions of this section intended to secure preciseness of practice and procedure.” (192 Cal. at p. 340.) The fact that the client’s reliance on' his attorney to know the rules was misplaced, while it might give to that client legal cause for redress against his attorney, should not result in an obliteration of the rules themselves.
I would grant the petition in all respects and order issuance of a peremptory writ of mandate as prayed for.
Wright, C. J., and McComb, J., concurred.
Hereafter, unless otherwise indicated, all section references are to the Code of Civil Procedure.
It has been pointed out that Wyoming Pacific involved the third express exception noted above and the discussion of implied exceptions in that case was not necessary to the decision (Hill v. Superior Court (1967) 251 Cal.App.2d 746, 754-755 [59 Cal.Rptr. 768]; Witkin, Cal. Procedure, 1967 Supp., p. 597.) The court in Hill observed: “A careful reading of the opinion in Wyoming Pacific in the light of these facts convinces us that the court did not in fact create an ‘implied exception’ to section 581a, but went no further than to apply the provision of that section that ‘no dismissal shall be had under this section as to any defendant because of the failure to serve summons on him during his absence from the State, or while he has secreted himself within the State to prevent the service of summons on him.”
The rules governing the validity of a stipulation to extend time undér section 583 are equally applicable to such a stipulation under section 581a. (Wyoming Pacific Oil Co. v. Preston supra, 50 Cal.2d 736, 740; Miles & Sons, Inc. v. Superior Court (1960) 181 Cal.App.2d 151, 153 [5 Cal.Rptr. 73].)
In view of this language it is difficult to understand how the majority can state that “any distinction between words spoken in open court or over the telephone, or *444between words spoken to an attorney or to a layman would be purely arbitrary.” (Italics added.) It is one thing to say that the distinction drawn by this court in Miller & Lux was erroneous; it is another to say that that distinction was arbitrary.
“Certainly the oral stipulation ‘that said matter would remain off calendar pending the return of Earl Bagby, Jr. to civilian status’ is not, as such, competent to defeat the dismissal [citing Miller & Lux] . . . .” (28 Cal.2d at p. 67.)
“It is suggested . . . that the conduct of petitioners [defendants] in delaying the action by the proceedings instituted for change of venue, and further by their acts inducing the plaintiff to allow the cause to go off calendar pending negotiations for settlement, justifies the application of the doctrine of estoppel. On this ground it is argued that the respondent court acted within its jurisdiction in denying the motion, and that consequently prohibition will not lie. But estoppel resulting from such conduct does not appear to be a proper ground for creating an exception to the terms of the statute. [Citing Miller & Lux]." (9 Cal.2d at pp. 529-530.)
“If it be claimed, as appears to be the case, that defendants’ past actions estopped them from validly opposing the motion for an accelerated trial setting and thereafter moving to dismiss under the applicable statute, it is the rule that ‘ “Before estoppel can arise . . . there must have been a duty to act and a failure, to act in accordance with the duty. . . .” ’ (Preiss v. Good Samaritan Hospital, supra, 171 Cal.App.2d 559, 563.) In that connection, ‘The established doctrine in this state is that it is the plaintiff upon whom rests the duty to use diligence at every stage of the proceeding to expedite his case to a final determination. . . .’” (273 Cal. App.2d at pp. 383-384.)
“The attempts of real parties in interest to find an excuse and therefore relief by estoppel in the conduct of petitioners [defendants] is fully answered by the court in Miller & Lux Inc. v. Superior Court . . . .” (223 Cal.App.2d at pp. 613-614.)
“At best [the affidavit of the plaintiff] shows that petitioner’s [defendant’s] attorney was to inform him of a date satisfactory to petitioner, but without any agreement to waive the statute. Plaintiff, who has the burden of bringing the action to trial, must use diligence in doing so. [Citation.] Where plaintiff allows the three years to go by, he cannot make a case for diligence merely by showing that defendant stated he would let plaintiff know when he would be ready for trial. [Par.] Exceptions to the operation of dismissal statutes must be strictly construed. (See Miller & Lux Inc. v. Superior Court. . . .) Mere discussion of delay is not sufficient. There must be a specific agreement to waive the provisions of the section.” (197 Cal. App.2d at pp. 437-438.)
“Plaintiff filed a counteraffidavit in connection with the motion to dismiss in which he states that there were numerous conferences in an effort to negotiate and settle the case. He further stated that he had been led to believe through the various conferences had with counsel for the defendant that the matter would be negotiated and settled. . . . Plaintiff argues that under these circumstances the case should not have been dismissed. Negotiations for settlement do not except an action from the mandatory provisions of the statute.” (116 Cal.App.2d at pp. 330-331.)
“[N]either one nor all of the acts of respondent in orally acquiescing in such settings for trial had the effect of a written stipulation extending in express terms the time of trial to a date beyond the five-year period. The only means whereby *446the defendant is bound by a postponement of the date of trial to a time beyond the statutory period is by his written stipulation expressly extending the time beyond such period or by his express waiver by writing or in open court of his right to a dismissal . . . .” (79 Cal.App.2d at pp. 622-623.)
“As its second proposition plaintiff invokes the doctrine of equitable estoppel to preclude defendant Harrah from seeking dismissal of the action the trial of which was delayed on his own motion. The argument is ingenious but to support it we should have to join plaintiff’s able counsel in skipping over the lack of certain factual elements essential to its foundation, and, further, we should have to judicially write into section 583 of the Code of Civil Procedure provisions which the Legislature did not put there. . . . [Par.] It does not appear to us that a mere motion to place a case ‘off calendar on the ground that he [defendant] had filed a petition in bankruptcy . . . and that he should be given time within which to procure a discharge to enterpose [ric] as a defense’ can be construed as constituting either a factual basis for operation of the equitable principles above quoted or as the equivalent of a stipulation in• writing . . . that the time might be extended.” (54 Cal.App.2d at pp. 42-43.)
The case of General Motors v. Superior Court (1966) 65 Cal.2d 88 [52 Cal.Rptr. 460, 416 P.2d 492], which the majority seek to enlist in their cause by means of artistically selective quotation, is wholly concerned with this implied exception to the mandatory dismissal provisions of section 583. The language which the majority choose to quote, while perhaps applicable to a situation wherein it is claimed that compliance with section 581a was impossible, impractical, or futile (cf. fn. 1, ante), can have no bearing whatsoever when, as here, no such claim is made and the only question is whether the defendant’s conduct estops him from seeking dismissal.
The other two section 581a cases cited by the majority (Hill v. Superior Court, supra, 251 Cal.App.2d 746, Smith v. Herzer (1969) 270 Cal.App.2d 747 [76 Cal.Rptr. 77]) obviously provide no support for their position that estoppel should apply in this case; they are adequately distinguished in the majority opinion itself.
This distinction was recognized in Camille’s Corp. v. Superior Court, supra, 270 Cal.App.2d 625, 630, where the court indicated that Flamer represented an “additional implied exception” to be applied only in cases in which the plaintiff was without counsel.
The majority opinion indicates that the attorney delayed his service of summons because he was awaiting the result of a similar test case. It does not appear how practical considerations attendant upon the pendency of this other action justified the manifest risk of dismissal which was present in the instant action.