I dissent.
The respondent trial court was required to dismiss the action under subdivision (c) of Code of Civil Procedure section 581a,1 which calls for mandatory dismissal “if no answer has been filed after either service has been made or the defendant has made a general appearance, if plaintiff fails, or has failed, to have judgment entered within three years after service has been made or such appearance by the defendant, except where the parties have filed a stipulation in writing that the time may be extended.” It is undisputed that service of the summons was completed no later than February 16, 1971, when petitioner’s attorney agreed by letter to accept service on petitioner’s behalf, and that no answer was *457filed and no judgment was entered within three years thereafter. The majority, however, regard the statutory period as having been extended by a written stipulation embodied in a letter of January 7, 1972, from petitioner to plaintiff" confirming that petitioner had been granted an open extension of time to answer or otherwise respond to the complaint, terminable on 10 days’ written notice.
It is true that an agreement which expressly excuses the defendant from filing an answer impliedly and simultaneously stays the plaintiff’s power to take a default.2 Moreover, as the majority states, “It would be unconscionable to permit a plaintiff, after he had granted a defendant time to answer, to take default judgment during the extension.” (Italics supplied.) It is incorrect, however, to characterize the present agreement for a terminable open extension of time to plead as one which “precluded plaintiff from taking default judgment prior to expiration of the three-year period.” Although “the stipulation remained in force at expiration of the period,” it did so only because plaintiff had unilaterally chosen not to exercise its expressly reserved right to terminate the extension on 10 days’ notice. By giving such notice at any time after the agreement was made plaintiff could have eliminated all operative effects of the agreement upon either party within the specified 10 days. (See Elmhurst Packers v. Superior Court (1941) 46 Cal.App.2d 648, 649 [116 P.2d 487].) It is settled that the five-year period in which a case must be brought to trial to avoid dismissal under section 583 is not extended by an agreement requiring the plaintiff to give the defendant 90 days’ notice of the trial date. (Miller & Lux Inc. v. Superior Court (1923) 192 Cal. 333, 338 [219 P. 1006]; City of Los Angeles v. Superior Court (1921) 185 Cal. 405, 413 [197 P. 79].)3 Similarly the interposition of a contractual *458requirement of 10 days’ notice for terminating the open extension of time to plead and for restoring plaintiff’s freedom to take a default did not extend the three-year period within which section 581a, subdivision (c), required plaintiff to have judgment entered in the absence of an answer’s being filed.
In any event the express exception to section 581a, subdivision (c), relied upon by the majority, which was added in 1949 and declares that the subdivision shall operate “except where the parties have filed a stipulation in writing that the time may be extended,”4 does not cover stipulations which merely extend the time to plead. The extension contemplated by the statutory exception is of the time “to have judgment entered,” not just to plead. (See Miles & Sons, Inc. v. Superior Court (1960) 181 Cal.App.2d 151, 153 [5 Cal.Rptr. 73].) Although a stipulation extending the time to plead bars the plaintiff from taking a default during the extension, it does not fix a certain deadline for fulfillment of the plaintiff’s duty to have a default judgment entered. If no pleading is forthcoming by the end of the extension, the plaintiff ordinarily cannot obtain a default judgment instantaneously blit needs a reasonable time for that purpose. (Lynch v. Bencini (1941) 17 Cal.2d 521, 524-525, 530-533 [110 P.2d 662].) Thus to construe an agreed extension of the defendant’s time to plead as a stipulation extending the plaintiff’s time to have judgment entered does not fulfill but defeats the legislative policy correctly pointed out by the majority as underlying the exception—that of avoiding unseemly disputes between counsel over purported waivers of the right to dismissal. (See Tresway Aero, Inc. v. Superior Court (1971) 5 Cal.3d 431, 443-444 [96 Cal.Rptr. 571, 487 P.2d 1211] (dissenting opn.); Miller & Lux Inc. v. Superior Court, supra, 192 Cal. 333, 340.)
A stipulation which merely extends time to plead and is therefore outside the express exception to the dismissal requirements of section 581a, subdivision (c), can nevertheless be included in the acts and conduct of the parties which bring implied exceptions to the dismissal requirement into play. (Tresway Aero, Inc. v. Superior Court, supra, 5 Cal.3d 431, 440; Woley v. Turkus (1958) 51 Cal.2d 402, 407 [334 P.2d 12].) In Tresway we held that a defendant who received defective service of process and obtained a stipulation extending the time to plead from within to beyond the three-year period for filing a return of service under section 581a, subdivision (a), was estopped to move for dismissal under *459that subdivision. The plaintiff had filed a timely return of the defective service, and the defect was one which plaintiff could readily have cured by repeating the identical steps of service and filing while using a summons that contained additional wording which would supply a mandatory notice concerning service on a corporation. We held that by requesting the extension of time to plead, “defendant led plaintiff to believe that further service of process on defendant would be duplicatoiy and redundant [,]... lulled plaintiff into ... a ‘ “false sense of security,” ’ and probably prevented plaintiff from discovering her error and effecting valid service within the statutory period.” (Tresway Aero, Inc. v. Superior Court, supra, 5 Cal.3d at pp. 441-442.)
Relying on Tresway, plaintiff claims estoppel in the present case, asserting that during the year between the filing of the complaint and the open extension of time to plead, petitioner’s course of conduct in requesting and obtaining extensions of time to plead led plaintiff to believe “that pleading technicalities would not be invoked.” Some of the extension requests were made after previous extensions had expired, and the petitioner’s letters confirming the extensions were informally phrased and made no reference to these expirations of previously granted extensions. This informality during the early part of the three-year period of section 581a, subdivision (c), could not reasonably be construed by plaintiff’s counsel as a misrepresentation that the subdivision’s requirements for timely entry of default judgment in the absence of an answer would be waived. Unlike the situation in Tresway, the stipulations did not specify a pleading date beyond the three-year period, and there was no crucial hidden defect which would probably have been revealed in the absence of the stipulations (see id., at p. 441) and of which petitioner sought to take advantage once the period had expired. Similarly, petitioner’s acceptance in January 1972 of the terminable open extension of time to plead could not reasonably be regarded by plaintiff’s counsel as a commitment by petitioner not to raise any legally available defense in the event that plaintiff refrained from giving a 10-day notice to terminate the extension throughout the ensuing 2 years.
Plaintiff further alleges in its return to the alternative writ that its delay in giving notice to plead was in reliance not only upon petitioner’s request for the extension of time but also upon the partial performance of the obligations on which the suit had been brought and petitioner’s assurances over a period of more than three years that plaintiff’s claims would be satisfied by completion of such performance. Plaintiff alleges *460that it finally gave petitioner notice to answer only after recognizing that the controversy was not going to be resolved in this manner. Whatever effect these events might have had upon plaintiff’s reasonable belief as to the necessity for ultimately going through with a trial, they offered plaintiff no ground to refrain from giving petitioner a notice to answer and otherwise complying with section 581a, subdivision (c). Although petitioner allegedly requested the open extension of time granted in January 1972, there is no indication that petitioner’s assurances of performance were conditioned upon plaintiff’s withholding the agreed-to-10-day notice to plead so long as to preclude fulfillment of the statutory requirements before expiration of the 3-year period in September 1974.
Plaintiff makes no claim that its failure to have a timely default judgment entered was excused by the implied exception for impracticability and futility which we have recognized as applicable to the dismissal provisions of section 581a. (See Busching v. Superior Court (1974) 12 Cal.3d 44, 53 [115 Cal.Rptr. 241, 524 P.2d 369]; Wyoming Pacific Oil Co. v. Preston (1958) 50 Cal.2d 736 [329 P.2d 489]; McKenzie v. City of Thousand Oaks (1973) 36 Cal.App.3d 426 [111 Cal.Rptr. 584].) Although a stipulation that is insufficient to invoke an exception expressly provided by the statute may nevertheless be material evidence on the issue of impracticability and futility (Woley v. Turkus, supra, 51 Cal.2d at p. 408; Pacific Greyhound Lines v. Superior Court (1946) 28 Cal.2d 61, 67 [168 P.2d 665]), the stipulations here had no such effect. The stipulations other than that for an open extension had terminated by the end of the first of the 3 years which section 581a, subdivision (c), gave plaintiff to take a default judgment, and thereafter the agreed open extension interposed no barrier more formidable than the necessity for giving a simple 10-day notice to plead. (See J. C. Penney Co. v. Superior Court (1959) 52 Cal.2d 666, 671-672 [343 P.2d 919].)
Since in my view petitioner, was entitled to a dismissal under subdivision (c) of section 581a, I deem it unnecessary to determine whether petitioner also had a right to dismissal under subdivision (a).
I would issue the writ.
Sullivan, J., and Richardson, J., concurred.
Petitioner’s application for a rehearing was denied November 25, 1975. Wright, C. J., Sullivan, J., and Richardson, J., were of the opinion that the application should be granted.
All section references hereinafter are to the Code of Civil Procedure unless otherwise indicated.
Section 585, subdivisions I and 2, authorizes the taking of a default only if no answer or other proper response to the complaint has been filed “within the time specified in the summons, or such further time as may be allowed.”
“The provision contained in the stipulation for a continuance of October 4, 1915, that at least ninety days’ notice shall be given of the resetting of the cause for trial, did not operate in any way to extend the running of the five-year period. The plaintiff was at liberty to have the trial set for the day after the stipulated year of continuance had expired, and could have served notice thereof at any time within ninety days of such date. It had no more right to have a continuous extension of its time in which to bring the case to trial under this ninety days’ stipulation than it would have had under the five-day notice required by statute. It is true that under this stipulation for ninety days’ notice there would have been no date within ninety days of the expiration of the five-year period for bringing the cause to trial when it could have been set without the consent of defendant, but that was one of the contingencies arising under the stipulation that plaintiff was bound to provide against. No such attempt to set for trial was made, but it could not have extended plaintiff’s rights in the premises if it had been made and opposed by defendant.” (185 Cal. at p. 413.)
See Statutes 1949, chapter 463, section 1, page 810, adding this form of proviso to what are now subdivisions (a) and (c) of section 581a.