I respectfully dissent. The central question raised by this petition is what effect, if any, the decision in Hocharian v. Superior Court (1981) 28 Cal.3d 714 [170 Cal.Rptr. 790, 621 P.2d 829], has had upon the previously established implied exceptions to Code of Civil Procedure section 581a. Although several Court of Appeal opinions have cited or discussed Hocharian, until now none has attempted to determine its effect upon the pre-Hocharian list of exceptions to section 581a.1 The majority herein essentially conclude that Hocharian did not add a new “implied exception” to the three previously suggested, i.e., impossibility, impracticability, and futility.
*488“As we read Hocharian, we believe that it holds simply that the mandatory dismissal of section 581a may not apply, where despite reasonable diligence on the part of plaintiff, service could not be effected upon the defendant within the statutory three-year period.” (Maj. opn., p. 483.) The majority view is that Hocharian wrought only a modification. “Put differently, the ‘implied exceptions’ to section 581a have now been modified so that, for example, it is not necessary to show that service of summons was an ‘impossibility.’ It is enough to show that plaintiff was ‘reasonably diligent,’ though unsuccessful, in attempting to serve defendant in the three-year interval.” (Maj. opn., p. 484.)The majority has succinctly delimited Hocharian's reasonable diligence standard: “the concept of ‘reasonable diligence’ relates to an inability to effect service within the statutory time.” (Maj. opn., p. 484.) The majority then conclude that because the real party in interest clearly at all times had the ability to serve petitioner and unilaterally decided to forego service, section 581a even as elaborated in Hocharian mandates dismissal.
The majority’s view is reasonable, but I offer the thought that it is unduly restrictive or narrow. Particularly is this the case in light of the Hocharian court’s emphasis upon the primary purpose of section 581a. That purpose “is to assure reasonable diligence in the prosecution of lawsuits... to insure that defendants ... have a reasonable opportunity to locate evidence and witnesses in preparing a defense.” (Hocharian, supra, 28 Cal.3d at p. 724.)
Consequently, I argue that Hocharian paints with a broader brush than that perceived by the majority. Hocharian, pages 719 through 721, *489explains that in order to avoid an unfair result appellate courts perform a counter-balancing act rather than subjecting statutes such as section 581a to inflexible interpretation. Thus, statutes that are “apparently mandatory” are found to be subject to “implied exceptions.” As regards section 581a, the policy of the law as declared by the courts contemplates that when a plaintiff prosecutes that action with reasonable diligence, the action should be tried on the merits; when reasonable diligence is found to be lacking, dismissal of plaintiff’s action is signaled. Initially, of course, the trial court functions to implement this policy by the exercise of its sound discretion. Prior to Hocharian, the appellate decisions had “suggested” to the trial courts hearing section 581a motions, three (four when “estoppel” is counted) “implied exceptions” without formulating any “fixed rules” for their application. Until Hocharian, these “exceptions” were generally viewed as being “carefully limited to two restricted categories, excusing plaintiff’s delay where (1) defendant is estopped to complain (Tresway Aero., Inc. v. Superior Court (1971) 5 Cal.3d 431, 441-442 ...), or (2) there are circumstances beyond plaintiffs control which made it ‘impracticable, impossible, or futile’ to comply with section 581a (Ippolito v. Municipal Court (1977) 67 Cal.App.3d 682, 687 ...); Highlands Inn, Inc. v. Gurries (1969) 276 Cal.App.2d 694, 698 ...).” (Hocharian, at p. 726, Richardson, J., dissenting.)
As focused upon by Justice Richardson, no prior case had excused compliance with either section 581a or section 583 “based upon circumstances which are within plaintiff’s control, such as the failure to discover relevant facts or evidence.” (Id., at p. 727.) He noted that the plaintiff in Hocharian conceded that there was no basis for a finding that the defendant should be estopped from relying upon section 581a and he asserted that “plaintiff must acknowledge that timely service upon defendant Hocharian was wholly within her control, for defendant was amenable to process throughout the entire period in question.” (Id., at p. 726.) (Such is the case, of course, herein.) Justice Richardson predicted that the majority ruling would lead to the unsettling consequence of leaving “innumerable civil actions entirely open-ended subject to the vagaries of a case-by-case inquiry as to the ‘reasonableness’ of plaintiff’s conduct and the ‘prejudice’ to defendant.” (Id., at p. 728.)
Along similar lines, Justice Clark, in a separate dissent, opined that the decision went well beyond prior law and removed “all substantive effect from section 581a,” causing it to equate with the two-year statute *490for bringing a case to trial (Code Civ. Proc., § 583, subd. (a)). (Id., at pp. 728-729.)
It is my humble opinion that a reasonable interpretation of the Hocharian decision can be drawn from a reading of the majority decision as criticized by the dissent. Petitioner posits two possible interpretations of Hocharian: (1) Petitioner’s view that Hocharian has added no new exception for “reasonable diligence” by the plaintiff but has merely said that in applying the old exceptions the court must make sure the plaintiff has been reasonably diligent (this view although stated differently seemingly approximates the majority view herein); and (2) the trial court’s view that even if none of the traditional exceptions exists a plaintiff may, by proving reasonable diligence, obtain relief from the otherwise mandatory terms of the statute. (On its face, the following quote from Hocharian appearing in footnote 6, page 722, seems to support this view: “While the specific considerations may be different, the underlying question is the same: whether or not unreasonable conduct on the part of plaintiff gave rise to the noncompliance. Moreover, trial courts, familiar with the balancing process central to negligence determinations, are well equipped to resolve this question.”)
In my view neither of these interpretations is wholly accurate. Rather, it would seem that the Hocharian court has at least nominally retained the traditional exceptions but has liberalized the circumstances in which they would apply and has created a procedural framework for determining applicability. Pivotal to explaining Hocharian are the court’s statements (at p. 722) that “[i]n applying any of these exceptions to a given factual situation, the critical question is whether a plaintiff used reasonable diligence in prosecuting his or her case. The particular factual context or cause of the noncompliance should not be determinative; rather, the primary concern must be the nature of the plaintiffs conduct.” (Italics added.) Thus, courts will no longer wrestle abstractly with the question of whether the serving of the complaint would have been “impossible, impracticable, or futile” because of circumstances beyond the plaintiff’s control. Instead they will determine impracticability or futility by examining whether the failure to returh service within three years occurred despite reasonable diligence on the part of the plaintiff. If a reasonably diligent plaintiff was unable to accomplish service and return thereof within the three-year period, then it was “impossible, impracticable, or futile” to do so regardless of whether the circumstances were in a literal sense within the plaintiff’s “control.”
*491This trial court concluded that there were no grounds for an estoppel and that “it was not impossible, impracticable or futile” to serve petitioner within the three-year period because his identity was known and he was amenable to process from the outset. However, the court found that the plaintiff acted reasonably and with due diligence in prosecuting the action and in serving Dr. Lesko when he did. Thus, the motion to dismiss was denied.
My understanding of Hocharian, if correct, compels the observation that the court’s order is internally inconsistent. If the plaintiff was reasonably diligent there must have been “impossibility, impracticability, or futility” preventing a timely return of service. What the trial court apparently was saying is that under pre-Hocharian interpretation of those terms, none of the exceptions existed. However, Hocharian has reinterpreted the exceptions and focused inquiry upon the plaintiff’s diligence. Having found due diligence, the trial court’s conclusion that there was impossibility, impracticability or futility was erroneous. This error was not harmful, however, since the important question was whether plaintiff had met the burden of showing due diligence in serving and returning service on the summons. If the evidence supports the trial court’s finding concerning due diligence, its decision should be upheld.2
The evidence supports the trial court’s finding of diligence. From the beginning real parties pursued settlement in preference to litigation, advising counsel for petitioner within three months of the filing of the original complaint that “any Complaints which may be placed on file in order to protect against the running of the statute of limitations, will not be served on your clients until you and I have had an opportunity to explore the possibility of such negotiations.” Petitioner appeared receptive to the possibility of settlement, agreeing to give “serious consideration” to a demand to settle for $250,000. Ultimately, because of a medical examination favorable to petitioner, petitioner rejected the original demand, but suggested real parties’ counsel confer with his clients and reconsider the amount required to resolve the dispute. During the course of the correspondence nothing was said about the need to *492serve petitioner within three years and a deadline for response to real parties’ final letter was set without any hint from petitioner that he expected timely service of summons in spite of the continuation of settlement negotiations.
Whether the actions of plaintiff should be considered “reasonable diligence” is a difficult question because the cause of the delay is different from that involved in Hocharian and cases analyzed there. In Hocharian, the delay was caused by failure to discover the identity of the potential defendant, and in most of the prior cases the plaintiffs encountered difficulties in serving known defendants. (See Hocharian, supra, 28 Cal.3d, at p. 722, fn. 6.) Here there was a known defendant who could have been served within the period of the statute, but plaintiff chose to defer service and advised defendant of that choice. Thus, the question is not whether plaintiff acted diligently in attempting to serve defendant but whether the “reasonable diligence” standard is met by a plaintiff who deliberately chooses not to serve a known defendant who is amenable to service. In other words, must the “reasonable diligence” requirement relate directly to attempts to discover and serve a defendant, or may it be satisfied by a plaintiff who is, reasonably diligent in seeking to avoid the need for service of summons but in the process deliberately or inadvertently violates the three-year statute?
The reasonable answer to this question lies in the purpose of the statute, which is to “‘afford the party or parties against whom [the suit] is brought an opportunity to present such evidential support to any defense he or they may have thereto as may be available at the time the action is instituted, but which may be lost or destroyed through the death of witnesses or otherwise before the action is brought to issue by reasons of an unreasonably long delay in serving the defendant or defendants with appropriate legal process notifying him or them of the pendency of the action.’” (Hocharian, supra, 28 Cal.3d 714, 719-720, quoting from People v. Kings County Dev. Co. (1920) 48 Cal.App. 72, 76 [191 P. 1004].) Where, as here, the defendant has been notified of the lawsuit at or near the time of its filing but service has been delayed during legitimate settlement negotiations and the defendant has been informed of the intent to delay service and has acquiesced in that approach to service, it does not seem improper for a trial court to find “reasonable diligence” by the plaintiff and to relieve him from the strictures of section 581a. Strict application of the statute would in no way accomplish its purpose in such a situation.
*493Having found reasonable diligence, the trial court was further obliged, under Hocharian, to balance “the harm to the plaintiff if the motion [were] granted against the prejudice to the defendant if he [were] forced to defend the suit. As long as the court engages in this balancing process, its decision should not be disturbed on appeal absent an abuse of discretion. [Citation.]” (28 Cal.3d at pp. 724-725.) Although neither the partial transcript of the hearing on the motion nor the court’s order denying same mentions any balancing of prejudice, petitioner does not claim that the court failed to engage in the balancing process. Absent evidence to the contrary, it should be presumed that the court acted properly. Moreover, it is not clear that petitioner did or could have presented evidence of how the delay in service of summons prejudiced him, in light of the fact that his first notification of the lawsuit did not take place at the time of service.
To summarize, it would appear that a reasonable reading of the Hocharian decision finds that it has not added a separate exception for plaintiff’s reasonable diligence, but has recast the inquiry into “impossibility, impracticability, and futility,” making those exceptions applicable whenever a reasonably diligent plaintiff has failed to accomplish service and return of service within three years. Although the question of reasonable diligence will normally turn upon what efforts the plaintiff has made to discover or serve a defendant, the concept may also be applied in a situation such as this where the defendant has been notified of the suit and of plaintiff’s intention to delay service and has expressed no need for service within the statutory period. Though the trial court’s compliance with the balancing of prejudice requirement of Hocharian has not been revealed by the record, it is not contested by petitioner and there is no reason to think the balancing process did not take place.
I would discharge the alternative writ and deny the peremptory writ.
The petition of real parties in interest for a hearing by the Supreme Court was denied March 10, 1982.
In Searle v. Superior Court (1981) 117 Cal.App.3d 539, 544-545 [172 Cal.Rptr. 841], the court read Hocharian as requiring a hearing and findings of fact regarding *488the plaintiff’s diligence as well as a balancing of the harm to plaintiff against prejudice to defendant. It did not consider whether Hocharian had added a new exception to Code of Civil Procedure section 581a.
In Tandy Corp. v. Superior Court (1981) 117 Cal.App.3d 911 [173 Cal.Rptr. 81], the court merely returned the matter to the trial court where the court could reconsider to determine whether an excuse existed under Hocharian. It did not attempt to interHocharian.
In House v. State of California (1981) 119 Cal.App.3d 861, 874 [174 Cal.Rptr. 279], the court concluded that the estoppel exception was viable after Hocharian but that substantial evidence supported the trial court’s conclusion that estoppel did not apply.
Borglund v. Bombardier, Ltd. Internat. Assn. (1981) 121 Cal.App.3d 276 [175 Cal.Rptr. 150], and Holder v. Sheet Metal Workers’ Internat. Assn. (1981) 121 Cal.App.3d 321 [175 Cal.Rptr. 313], held, respectively, that the estoppel exception applied both to the five-year limit of Code of Civil Procedure section 583, subdivision (b) and the three-year limit for retrial after reversal on appeal (Code Civ. Proc., § 583, subd. (c)).
Real parties also assert that the court’s decision may be upheld on estoppel grounds. Thus, though the trial court found no grounds to estop petitioner from asserting the three-year statute, real parties argue that the trial court erred in that finding. They would have this court find an estoppel to support the trial court decision. In my view, the court need not consider the estoppel ground since the decision is supportable on due diligence.