Knapp

Valerie Knapp, defendant in a personal injury case, seeks a writ of mandate after respondent court denied her motion to dismiss the action pursuant to Code of Civil Procedure section 581a, subdivision 1 on the ground that plaintiffs (real parties in interest herein) had failed to return the summons within three years.

Facts

Real parties filed the complaint on May 3, 1974, and served petitioner with summons and complaint on March 14, 1977. On April 25, 1977, their attorney and a representative of petitioner’s insurance carrier agreed orally that petitioner would have an open extension of time to *802 plead, terminable on 10 days’ notice. On April 26, 1977, a representative of petitioner’s insurance carrier confirmed this agreement in a letter to real parties’ attorney. On August 2, 1977, real parties’ attorney requested that petitioner file an answer within 10 days. Petitioner thereupon moved to dismiss the action on the ground that the summons had not been returned.

On September 19, 1977, respondent court denied petitioner’s motion to dismiss pursuant to Code of Civil Procedure section 581a, subdivision (a), on the ground that the April 26, 1977, letter from…

I dissent.

The question is whether an informal agreement between real parties and the insurance carrier of petitioner (referred to in the April 26, 1977, letter of petitioner’s insurance carrier), giving petitioner “an open extension of time with 10 days written notice to answer, demur or otherwise plead to the Summons and Complaint,” brought into effect one of the exceptions to the general rule of dismissal of Code of Civil Procedure section 581a, subdivision (a).

One of these exceptions is where the defendant has made a general appearance. In Woodruff v. McDonald’s Restaurants (1977) 75 Cal.App.3d 655 [ 142 Cal.Rptr. 367 ], a judgment of dismissal pursuant to section 581a, subdivision (a), was affirmed, the court holding that a written stipulation extending time in which to plead constitutes a general appearance only where the stipulation was entered into between attorneys. The contrary rule, preferred by the majority, does not seem so clearly correct as to justify creating a conflict of decisions.

Another exception may arise under the doctrine of estoppel. In regard to estoppel the Woodruff court stated, in footnote 2 of the opinion, as follows: “. .. plaintiff raises the…

Bruce A. Bailey for Real Parties in Interest.

OPINION

RAGAN, J. [*]

Valerie Knapp, defendant in a personal injury case, seeks a writ of mandate after respondent court denied her motion to dismiss the action pursuant to Code of Civil Procedure section 581a, subdivision (a), [1] on the ground that plaintiffs (real parties in interest herein) had failed to return the summons within three years.

Real parties filed the complaint on May 3, 1974, and served petitioner with summons and complaint on March 14, 1977. On April 25, 1977, their attorney and a representative of petitioner's insurance carrier agreed orally that petitioner would have an open extension of time to plead, terminable on 10 days' notice. On April 26, 1977, a representative of petitioner's insurance carrier confirmed this agreement in a letter to real parties' attorney. On August 2, 1977, real parties' attorney requested that petitioner file an answer within 10 days. Petitioner thereupon moved to dismiss the action on the ground that the summons had not been returned.

On September 19, 1977, respondent court denied petitioner's motion to dismiss pursuant to Code of Civil Procedure section 581a, subdivision (a), on…