Filed 7/16/13 Gomez et al. v. Dole Food Co. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
EMPERATRIZ MARINA MENDOZA B242400
GOMEZ et al.,
(Los Angeles County Super. Ct.
Plaintiffs and Appellants, No. BC412620)
v. ORDER MODIFYING OPINION
AND DENYING REHEARING
DOLE FOOD COMPANY, INC., [NO CHANGE IN JUDGMENT]
Defendants and Respondents.
THE COURT:*
It is ordered that the opinion filed herein on June 24, 2013, and not certified for
publication, be modified as follows.
On page 6, line 2 under subheadings II A., replace subdivision (f)(1) with
subdivision (f)(2) so that the sentence reads: Dole filed an ex parte application for
dismissal of the action with prejudice pursuant to sections 472b and 581, subdivision
(f)(2), to be heard on Wednesday, February 15, 2012, at 8:30 a.m.
There is no change in the judgment. The petition for rehearing is denied.
________________________________________________________________________
* MOSK, Acting P. J. KRIEGLER, J.
Filed 6/24/13 Gomez et al. v. Dole Food Co. CA2/5 (unmodfied version)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
EMPERATRIZ MARINA MENDOZA B242400
GOMEZ et al.,
(Los Angeles County Super. Ct.
Plaintiffs and Appellants, No. BC412620)
v.
DOLE FOOD COMPANY, INC.,
Defendant and Respondent.
APPEAL from the judgment and orders of the Superior Court of Los Angeles
County, Anne I. Jones, Judge. Reversed.
Conrad & Scherer, Terrence P. Collingsworth, Eric Hager; and David Seth
Grunwald for Plaintiffs and Appellants.
Gibson, Dunn & Crutcher, Theodore J. Boutrous, Jr., Andrea E. Neuman, William
E. Thomson and KatieLynn B. Townsend for Defendant and Respondent.
____________________________________
In this action for wrongful death and related claims, plaintiffs‟ and appellants‟ 65
heirs appeal from the order of February 15, 2012, dismissing their action against Dole
Food Company, Inc., under Code of Civil Procedure section 581, subdivision (f)(2),1 and
judgment of July 2, 2012, in favor of Dole following the denial of plaintiffs‟ motions to
set aside the dismissal under section 473 and for relief from a cost bond order under
section 1030. Plaintiffs contend the orders dismissing the action and denying mandatory
relief from dismissal under section 473, subdivision (b) were erroneous as a matter of
law. Plaintiffs further contend the denial of relief from cost bond was an abuse of
discretion. We reverse.
STATEMENT OF FACTS AND PROCEDURE
I. Prior Proceedings
A. Complaint
On April 28, 2009, 73 plaintiffs, who were heirs of 51 deceased Colombian
nationals, filed a complaint against Dole, a corporation headquartered in California, for
wrongful death and related causes of action. It was alleged the decedents were murdered
in or around banana plantations in Colombia that Dole owned or operated between 1994
and November 2007 by members of Autodefensas Unidas de Colombia (“AUC”), a
paramilitary organization hired by Dole and Dole‟s wholly-owned subsidiary CI Tecnicas
Baltime de Colombia SA (“Tecbaco”) to provide security and protection services.
1 Hereinafter, all statutory references will be to the Code of Civil Procedure, unless
noted otherwise.
2
B. First Amended Complaint
On April 9, 2010, a first amended complaint was filed alleging wrongful death,
battery, assault, negligent hiring and supervision, intentional and negligent infliction of
emotional distress, civil conspiracy, and negligence. Plaintiffs were 67 of the original 73
plaintiffs, plus 118 new plaintiffs. Plaintiffs were heirs of 167 decedents.
C. Proceedings on Demurrer to First Amended Complaint and Motion for
Cost Bond
1. Demurrer and Motion for Cost Bond
On May 17, 2010, Dole filed a demurrer to the first amended complaint on the
grounds, among others, of failure to: (1) comply with the applicable two-year statute of
limitations; (2) adequately allege Dole‟s liability for the conduct of Tecbaco; and (3)
join Tecbaco as a necessary and indispensible party. On May 27, 2010, Dole filed a
motion for cost bond under section 1030, on the grounds all plaintiffs resided outside
California and there was a reasonable possibility Dole will prevail in the action.
Plaintiffs submitted evidence from the World Bank and other public sources that
plaintiffs lived in a poor area of Colombia, the per capital gross national income for
Colombia was $4,620, and the per capital gross domestic product for the region where
plaintiffs resided was $2,649.66.
2. Trial Court Rulings on Demurrer and Cost Bond Motion
On July 7, 2010, the trial court ruled the statute of limitations barred the action as
to all plaintiffs except for Arelis Margarita Hernandez Rivera (“Hernandez”) and Julio
Medina Coronado (“Medina”). “As to all plaintiffs except these two, the demurrer is
granted without leave to amend.” “As to these two plaintiffs, their current allegations
3
against Dole under the doctrines of alter ego and agency are insufficient as a matter of
law and, further, necessitate adding Tecbaco as an indispensible party.”2 The court
granted the two plaintiffs leave to amend. Hernandez and Medina did not file an
amended pleading.
In a separate order on July 7, 2010, the trial court “decline[d] to waive or reduce
the posting of security in this action.” The court found “plaintiffs have not made the
requisite prima facie showing to justify waiving a bond.” Accordingly, the court ordered,
“each plaintiff in this action must post $16,926 within 30 days of entry of this order.” No
plaintiff posted a cost bond.
D. Dole’s Ex Parte Motion to Dismiss
On September 10, 2010, Dole filed an ex parte application to dismiss with
prejudice the claims of all plaintiffs except Hernandez and Medina under section 581,
subdivision (f)(1), on the ground the trial court sustained Dole‟s demurrer without leave
to amend except as to the claims of Hernandez and Medina. Dole asked the court to
dismiss with prejudice Hernandez‟s and Medina‟s claims under section 581, subdivision
(f)(2), on the ground the demurrer was sustained with leave to amend and they failed to
timely file an amended pleading. Dole also asked the court to dismiss with prejudice
Hernandez‟s and Medina‟s claims under section 1030, subdivision (d), for failure to post
a cost bond.
E. Trial Court Dismissal Ruling
On September 14, 2010, the trial court gave judgment to Dole against all plaintiffs,
including Medina and Hernandez, and ordered the action dismissed with prejudice. The
judgment stated: “On August 25, 2010, Dole Food appeared before this Court to request
2 The court also found the first amended complaint adequately stated causes of
action for conspiracy, intentional torts, and negligence.
4
that the above-captioned action be dismissed with prejudice pursuant to . . . sections 581[,
subdivision] (f)(1) and (2), and 1030[, subdivision] (d), and that judgment be entered in
Dole Food‟s favor. By separate order, the Court has granted Dole Food‟s request and
dismissed plaintiffs‟ First Amended Complaint with prejudice.”
Plaintiffs appealed from the “judgment of dismissal after an order sustaining a
demurrer.”
F. Court of Appeal Ruling
On October 27, 2011, this court affirmed the order sustaining the demurrer,
reversed the denial of leave to amend, and remanded the matter to permit plaintiffs to
amend the first amended complaint. We agreed with the trial court that the causes of
action of all plaintiffs were predicated on killings that occurred prior to April 28, 2007,
and thus accrued prior to that date. Sustaining the demurrer without leave to amend,
however, was an abuse of discretion. Under the delayed discovery rule, the limitations
period did not begin to run until Dole‟s role was publicly disclosed in May 2007. For
pleading purposes, the claims in the original complaint were viable under the discovery
rule. The claims first brought in the first amended complaint were presumptively time-
barred, but we granted leave to amend because plaintiffs represented on appeal they could
amend the first amended complaint to adequately plead delayed discovery.3
We affirmed the trial court‟s ruling that the first amended complaint failed to
allege “agency and alter ego liability with sufficient specificity to overcome the legal
presumption that Tecbaco functioned as a separate corporate entity” and granted leave to
amend to cure this pleading defect. We rejected the trial court‟s finding that Tecbaco is a
necessary and indispensible party as premature.
3 We rejected plaintiffs‟ contention that Dole is estopped by equitable estoppel from
relying on the statute of limitations, because plaintiffs did not allege direct
misrepresentations or other active concealment of their role and, moreover, plaintiffs
failed to show they exercised reasonable diligence in discovering Dole‟s role.
5
G. Issuance of Remittitur
The remittitur and notice of issuance of the remittitur were issued on
December 27, 2011.
II. Current Proceedings
A. Dole’s Ex Parte Application for Dismissal
Dole filed an ex parte application for dismissal of the action with prejudice
pursuant to sections 472b and 581, subdivision(f)(1), to be heard on Wednesday,
February 15, 2012, at 8:30 a.m. Notice of the motion, but not the motion papers, was
served on plaintiffs‟ counsel by e-mail on February 14, 2012.4 Dole contended plaintiffs
failed to timely file an amended complaint within 30 days of the mailing of notice of the
issuance of the remittitur, as required by the section 472b. Plaintiffs‟ counsel responded
in a letter to Dole,5 stating notice was too short for counsel to be able to attend the
hearing in person6 and requested that Dole provide plaintiffs with “a few additional
days.” “I request that you work with us to schedule a hearing date next week that will
permit an appearance by counsel for the Plaintiffs.” Counsel also objected to the
requested relief, contending that dismissal of the claims of the 67 plaintiffs in the original
complaint was improper because this court in the previous appeal ruled those claims
timely under the discovery rule and, to the extent the claims alleged theories of direct
liability against Dole which the trial court found sufficient to withstand demurrer, the
4 The e-mail notice was transmitted at 12:45 p.m.
5 At plaintiffs‟ request, Dole filed the letter with the court at the hearing on
February 15.
6 Plaintiffs‟ lead counsel was based in Washington, D. C. Plaintiffs‟ local counsel
could not appear because he had a conflict on the morning of February 15.
6
claims could proceed without amendments to the allegations of alter ego and agency.
Plaintiffs‟ counsel further objected on the ground he was not aware of the 30-day
statutory deadline, and had he been aware, he would have requested an extension of time
to amend the complaint. Counsel asked Dole to agree to plaintiffs filing a second
amended complaint April 1, to obviate the need for proceedings for relief for dismissal
under section 473, subdivision (b). Dole refused to agree to reschedule the hearing or to
plaintiffs filing the second amended complaint April 1.
At the hearing on February 15, 2012, Dole appeared through counsel, but plaintiffs
were not present. Dole had a substantive, ex parte colloquy with the trial court which
encompassed seven pages of reporter‟s transcript, before plaintiffs‟ counsel joined the
hearing via telephone. In the colloquy, Dole argued the merits of dismissal, relief from
dismissal, and the underlying action. Dole characterized the nature of the prior
proceedings and orders and the nature of plaintiffs‟ past and present conduct in the
litigation.
The trial court began by stating it made sense to continue the hearing to the
following week so that plaintiffs could make an appearance. Dole stated plaintiffs could
appear that day by phone. Dole‟s counsel wanted the matter heard immediately. The
court asked if there was an emergency. Dole‟s counsel stated there was no emergency,
but Dole was very eager to get “the outlandish and scurrilous charges” dismissed as soon
as possible. Counsel quoted language from a prior order that Dole‟s evidence
“„overwhelmingly refutes plaintiffs‟ primary claim[,]‟” to explain to the court what “the
company has been subjected to, for almost three years now.” Dole argued that it did not
rush to file the motion to dismiss; the appellate opinion was filed October 27, 2011, and
that it was now two weeks after the deadline to amend. Dole argued that this was the
second time plaintiffs had missed a deadline to file an amended complaint after a
demurrer was sustained with leave to amend. Dole wanted the matter resolved quickly,
“given the scurrilous nature of the claims and the attempts to publicize them, and that sort
of thing.” After reading plaintiffs‟ letter, the court stated that, if she dismissed the action,
it was likely she would vacate the dismissal and give plaintiffs leave to amend under
7
section 473 because plaintiffs were not aware of the statutory deadline. The judge stated
she would rather not dismiss the action without giving plaintiffs “some opportunity to file
some opposition.” Dole encouraged the court to call plaintiffs‟ counsel right then,
stating, “they‟ve had many months to prepare an amended pleading. From all
indications, they don‟t have one ready. From all indications, they haven‟t even been
working on one.” Quoting from an appellate opinion, Dole argued the law was clear that
it was not enough under section 473 to simply claim “„we didn‟t know the law.‟” Dole
reiterated, “this is the second time we‟ve been here on exactly the same posture, where a
deadline to amend has come and gone; they‟ve done nothing.” Dole‟s counsel argued
plaintiffs will have to show good cause for missing the deadline and the details of what
they have been doing. Dole contended that a prior, final order, required each plaintiff to
post a cost bond and “there‟s no indication that they are prepared to do that. [¶] Without
doing that, . . . there would be no way for them to continue with the case or amend the
complaint.”
The trial court asked, “isn‟t it better to be safe than sorry? Wouldn‟t it be better to
have this all on the table, and I give them a date by which they have to file [the
amendment], and that they have to file the cost bond at the same time?” Dole‟s counsel
disagreed, preferring the dismissal to be entered and then let plaintiffs try to set it aside.
“But from our past experience and what we . . . would expect to happen now, I would be
very surprised if, in fact, they‟re able to make the kind of showing that they would need
to do to set aside the entry of dismissal. [¶] They‟ve had a long time to amend this
complaint, and they‟ve basically done nothing, as far as one can tell, your honor.”
Suspecting the matter would return to the Court of Appeal again if the action were
dismissed, the trial court stated, “why don‟t we just act reasonably here and put a cap on
it?” The court proposed setting the ex parte motion to dismiss in 30 days, allowing
plaintiffs the 30 days to file an amended complaint and post a cost bond. Dole argued
against this proposal. “They haven‟t made any showing of good cause . . . that would
even remotely get them around the code provision that required them to have filed their
amended complaint two weeks ago. [¶] . . . There‟s no indication that one is even in the
8
works.” At that point, plaintiffs‟ counsel was brought into the hearing via telephone.
When plaintiffs‟ counsel was contacted by telephone, he asked the court to grant
plaintiffs until April 1 to file the second amended complaint, stating they were in the
process of re-interviewing hundreds of people in Colombia to add the necessary tolling
provision allegations. Plaintiffs reiterated that, in any event, since the first group of
plaintiffs had viable claims of direct liability that were timely, the entire case should not
be dismissed. Counsel advised the court plaintiffs were also being re-interviewed to
establish they were entitled to be excused from posting the cost bond. The court ordered
the action dismissed with prejudice, but allowed plaintiffs six weeks to file an application
under section 473 for relief from the order of dismissal and to file a proposed second
amended complaint.
B. Proceedings on Plaintiffs’ Motion for Relief from Dismissal Under
Section 473 and on Plaintiffs’ Motion for Relief From Cost Bond Order
Under Section 1030
1. Plaintiffs’ Motion Under Section 473, Filed April 2, 2012; Dole’s
Opposition
Plaintiffs7 contended, among other things, that mandatory relief from dismissal
must be granted pursuant to section 473, subdivision (b). Plaintiffs submitted attorney
affidavits stating the attorneys were unaware of the deadline imposed by section 472b,
accompanied by a proposed second amended complaint.
Dole contended section 473‟s provision for mandatory relief did not apply in this
case, because plaintiffs appeared and opposed the request to dismiss.
7 There were 65 plaintiffs. The two plaintiffs to whom the trial court gave leave to
file an amended complaint dropped out of the lawsuit.
9
2. Plaintiffs’ Motion Under Section 1030, Filed April 2, 2012; Dole’s
Opposition; Ruling
Plaintiffs filed a motion for relief from the $16,926.00 per plaintiff cost bond on
the ground of indigency, supported by declarations from 63 plaintiffs which showed the
2011 income of each of those plaintiffs. The incomes ranged from zero to $14,848, with
most of the incomes less than $4,000. Plaintiffs also filed evidence that cost bonds were
not available on less than full collateral. Dole contended plaintiffs‟ motion was barred
because they failed to challenge the cost bond order in their appeal from the judgment
dismissing the action.
3. Trial Court’s Ruling
The trial court denied both motions on May 31, 2012.
The trial court ruled that section 473‟s mandatory relief provision only applies in
cases where the dismissal is akin to a default. Mandatory relief was not available here,
because plaintiffs appeared and presented evidence at the hearing on Dole‟s motion to
dismiss.
Concerning relief from the cost bond order of July 7, 2010, the trial court stated
the August 25, 2010 dismissal of the action expressly incorporated the cost bond order
and was part of the September 14, 2010 judgment. Plaintiffs‟ failure to raise in the
appeal any issue concerning the cost bond order precluded them from challenging the
determination on remand.
On July 2, 2012, judgment was entered against all plaintiffs. This timely appeal
followed.
10
DISCUSSION
Error in Granting Dole’s Ex Parte Application to Dismiss the Action
Plaintiffs contend the trial court erred in granting Dole‟s ex parte application to
dismiss the action for failure to comply with section 472b, because Dole‟s ex parte
application was unauthorized.8 We agree with the contention.
Where, as here, the applicability of a statutory provision does not turn on disputed
facts and presents a pure question of law, review is de novo. (Leader v. Health Industries
of America, Inc. (2001) 89 Cal.App.4th 603, 612.)
Section 472b provides: “When an order sustaining a demurrer without leave to
amend is reversed or otherwise remanded by any order issued by a reviewing court, any
amended complaint shall be filed within 30 days after the clerk of the reviewing court
mails notice of the issuance of the remittitur.”
California Rules of Court, rule 3.1320,9 cited by Dole to support the contention it
was proper to apply for dismissal ex parte, provides: “(h) A motion to dismiss the entire
action and for entry of judgment after expiration of the time to amend following the
sustaining of a demurrer may be made by ex parte application to the court under . . .
section 581[, subdivision] (f)(2).” Section 581, subdivision (f) provides: “The court may
dismiss the complaint as to that defendant when: [¶] . . . [¶] (2) . . . after a demurrer to
the complaint is sustained with leave to amend, the plaintiff fails to amend it within the
time allowed by the court and either party moves for dismissal.”
8 Plaintiffs also contend Dole violated the rules of civility in litigation, incorporated
in rule 3.26 of the Superior Court of Los Angeles County, Local Rules. While those rules
are, by their terms, “recommendations” (Super. Ct. L.A. County, Local Rules, rule 3.26
[“The guidelines adopted by the Los Angeles County Bar Association are adopted as
civility in litigation recommendations to members of the bar . . . .”]), they are
admonishments that counsel should heed in the absence of unusual circumstances.
9 Hereinafter, all reference to rules refer to the California Rules of Court.
11
Although Dole purported to bring the motion to dismiss under section 581,
subdivision (f)(2), the terms of that provision apply to an order by the superior court that
establishes the deadline for filing an amended complaint. It does not apply to the
circumstances presented to the trial court here, where the filing deadline was established
by a statute. As rule 3.1320‟s provision for bringing a dismissal motion on an ex parte
basis applies by its terms only to applications under section 581, subdivision (f)(2), and
the application in this case was not governed by that section, rule 3.1320 did not
authorize Dole to move for dismissal ex parte. Dole has cited no other authority to
support its ex parte application. Accordingly, plaintiffs should have been afforded an
opportunity to make a full appearance to defend against the motion.
In the circumstances of this case, counsel‟s telephonic appearance did not amount
to a full appearance. Counsel was given less than 24 hours notice of the hearing. This
was not enough time for him to be able to be present in person. He requested the
minimum courtesy of putting the motion over for a few days so he could appear in
person. Dole should have granted the request, as no urgent circumstances existed that
required an immediate hearing on the motion. Counsel did not participate in the full
colloquy between the court and Dole. One-third of the hearing had taken place before he
was brought in via telephone.
Dole contends plaintiffs forfeited the contention that dismissal under section 581,
subdivision (f)(2), was unauthorized by their failure to assert the contention in opposition
to dismissal or in support of mandatory relief under section 473. We disagree. Because
plaintiffs‟ counsel was given less than 24 hours notice of the dismissal motion and was
not served with a copy of the motion papers, counsel did not have an effective
opportunity to raise all legal grounds in opposition to the dismissal motion. As to the
application for mandatory relief, section 473, subdivision (b), by its terms, addresses
attorney mistakes resulting in a dismissal, not trial court errors in granting the dismissal.
In any event, the contention raises a pure question of law which we may address for the
first time on appeal. (In re Sheena K. (2007) 40 Cal.4th 875, 886-887; Ward v. Taggart
(1959) 51 Cal.2d 736, 742.)
12
As a matter of law, the trial court erred in dismissing the action on an
unauthorized, ex parte application.
In addition, we agree with plaintiffs‟ contention that a viable action existed
following the first appeal. The first amended complaint adequately stated causes of
action alleging Dole‟s direct liability for conspiracy, intentional torts, and negligence, as
determined by the trial court in its July 7, 2010 ruling on the demurrer to the first
amended complaint. We concluded in the prior appeal that the claims of the original
plaintiffs who remained in the action were timely under the two-year statute of
limitations in section 335.1 [“Within two years: An action for assault, battery, or injury
to, or for the death of, an individual caused by the wrongful act or neglect of another.”].
Accordingly, at the time of the trial court‟s dismissal of this action, there was an
operative complaint in place to be amended in accordance with our appellate opinion.
Dismissal was therefore erroneous.
Error in Denying Mandatory Relief Under Section 473, subdivision (b)
Our resolution of the first issue in this opinion arguably renders moot any
discussion of the trial court‟s ruling denying relief from dismissal under section 473,
subdivision (b). However, we exercise our discretion to address the issue, as the question
of granting leave to file the second amended complaint will undoubtedly arise after
issuance of the remittitur, and should the trial court again deny mandatory relief from
dismissal on the ground the dismissal was not akin to a default, the issue will return to
this court for a third appeal.
Whether section 473, subdivision (b)‟s mandatory relief provision applies in the
present case, where there are “no factual determinations that affect entitlement to
mandatory relief,” is a question of statutory construction, which we review de novo.
(Huh v. Wang (2007) 158 Cal.App.4th 1406, 1418.)
Section 473, subdivision (b) provides: “The court may, upon any terms as may be
just, relieve a party or his or her legal representative from a judgment, dismissal, order, or
13
other proceeding taken against him or her through his or her mistake, inadvertence,
surprise, or excusable neglect. Application for this relief shall be accompanied by a copy
of the answer or other pleading proposed to be filed therein, otherwise the application
shall not be granted, and shall be made within a reasonable time, in no case exceeding six
months, after the judgment, dismissal, order, or proceeding was taken. . . .
Notwithstanding any other requirements of this section, the court shall, whenever an
application for relief is made no more than six months after entry of judgment, is in
proper form, and is accompanied by an attorney‟s sworn affidavit attesting to his or her
mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the
clerk against his or her client, and which will result in entry of a default judgment, or (2)
resulting default judgment or dismissal entered against his or her client, unless the court
finds that the default or dismissal was not in fact caused by the attorney‟s mistake,
inadvertence, surprise, or neglect.”
“Section 473, subdivision (b) provides for two distinct types of relief. Under the
discretionary relief provision, on a showing of „mistake, inadvertence, surprise, or
excusable neglect,‟ the court has discretion to allow relief from a „judgment, dismissal,
order, or other proceeding taken against‟ a party or his or her attorney. Under the
mandatory relief provision, on the other hand, upon a showing by attorney declaration of
„mistake, inadvertence, surprise, or neglect,‟ the court shall vacate any „resulting default
judgment or dismissal entered.‟ [¶] The range of attorney conduct for which relief can
be granted in the mandatory provision is broader than that in the discretionary provision,
and includes inexcusable neglect. But the range of adverse litigation results from which
relief can be granted is narrower. Mandatory relief only extends to vacating a default
which will result in the entry of a default judgment, a default judgment, or an entered
dismissal.” (Leader v. Health Industries of America, Inc., supra, 89 Cal.App.4th at
pp. 615-616.)
“Relief is mandatory only from those dismissals which are the „procedural
equivalent of a default‟; i.e., those which deprive plaintiffs of their day in court. . . . For
example, this may include dismissals based on plaintiffs‟: failure to amend or file
14
pleadings within the time ordered by the court . . . ; or failure to oppose a dismissal
motion[.]” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The
Rutter Group 2012) ¶ 5:299.2, p. 4-76 (rev. #1, 2011) [italics in original].)
“If the prerequisites for the application of the mandatory relief provision of
section 473, subdivision (b) exist, the trial court does not have discretion to refuse relief.”
(SJP Limited Partnership v. City of Los Angeles (2006) 136 Cal.App.4th 511, 516.)
Here, relief was mandatory under section 473, subdivision (b). There was an
entered dismissal, and it was akin to a default because it was based on plaintiffs‟
negligent failure to amend the complaint within the time allowed by statute. (See Weil &
Brown, supra, ¶ 5:299.2, p. 4-76 (rev. # 1, 2011); compare Leader v. Health Industries of
America, Inc., supra, 89 Cal.App.4th at p. 616 [mandatory relief was not available where
the prerequisites for it did not exist: the action had not been dismissed and counsel‟s
conduct was deliberate, not neglectful].) Accordingly, the trial court erred as a matter of
law in failing to grant mandatory relief under section 473, subdivision (b), and on
remand, leave to amend the complaint shall not be denied on the ground the complaint
was not timely amended under section 472b.
The Order Denying Relief From Cost Bond Was an Abuse of Discretion
Plaintiffs contend denial of their motion for relief from the cost bond was an abuse
of discretion. We agree.
We “[review] the trial court‟s decision whether to waive the requirement an out-
of-state plaintiff post an undertaking under an abuse of discretion standard[.]” (Alshafie
v. Lallande (2009) 171 Cal.App.4th 421, 430.) “The appropriate test for abuse of
discretion is whether the trial court exceeded the bounds of reason.” (Shamblin v.
Brattain (1988) 44 Cal.3d 474, 478.) “„[A] court‟s discretion must “„be “„exercised in
conformity with the spirit of the law and in a manner to subserve and not to impede or
defeat the ends of substantial justice.‟” [Citations.]‟ [Citation.]” (Alshafie v. Lallande,
supra, at pp. 431-432.)
15
Section 1030 provides: “(a) When the plaintiff in an action or special proceeding
resides out of the state, . . . the defendant may at any time apply to the court by noticed
motion for an order requiring the plaintiff to file an undertaking to secure an award of
costs and attorney‟s fees which may be awarded in the action or special proceeding. . . .
[¶] (b) The motion shall be made on the grounds that the plaintiff resides out of the state
. . . and that there is a reasonable possibility that the moving defendant will obtain
judgment in the action or special proceeding. The motion shall be accompanied by an
affidavit . . . [which] shall set forth the nature and amount of the costs and attorney‟s fees
the defendant has incurred and expects to incur by the conclusion of the action or special
proceeding. [¶] (c) If the court, after hearing, determines that the grounds for the motion
have been established, the court shall order that the plaintiff file the undertaking in an
amount specified in the court‟s order as security for costs and attorney‟s fees. [¶] (d)
The plaintiff shall file the undertaking not later than 30 days after service of the court‟s
order requiring it or within a greater time allowed by the court. If the plaintiff fails to file
the undertaking within the time allowed, the plaintiff‟s action or special proceeding shall
be dismissed as to the defendant in whose favor the order requiring the undertaking was
made.”
Section 995.240 provides: “The court may, in its discretion, waive a provision for
a bond in an action or proceeding and make such orders as may be appropriate as if the
bond were given, if the court determines that the principal is unable to give the bond
because the principal is indigent and is unable to obtain sufficient sureties, whether
personal or admitted surety insurers. In exercising its discretion the court shall take into
consideration all factors it deems relevant, including but not limited to the character of
the action or proceeding, the nature of the beneficiary, whether public or private, and the
potential harm to the beneficiary if the provision for the bond is waived.”
“„The purpose of [section 1030] is to enable a California resident sued by an out-
of-state resident “„to secure costs in light of the difficulty of enforcing a judgment for
costs against a person who is not within the court‟s jurisdiction.”‟ [Citation.] The statute
therefore acts to prevent out-of-state residents from filing frivolous lawsuits against
16
California residents.‟ [Citation.]” (Alshafie v. Lallande, supra, 171 Cal.App.4th at
p. 428.) “Even if the defendant establishes the grounds for an undertaking, the trial court
may waive the requirement if the plaintiff establishes indigency. . . . [¶] The public
policy underlying an indigent‟s entitlement to a waiver of security costs is essentially
„access trumps comfort.‟ [Citation.] „In ruling indigents are entitled to a waiver of
security for costs, [the State is] saying one party‟s economic interest in receiving its costs
of litigation should it win cannot be used to deny an indigent party his fundamental right
of access to the courts.‟ [Citations.]” (Id. at p. 429.)
“[T]o fulfill its statutory duties when exercising its discretion, the court must
review the plaintiff‟s showing, identify deficiencies, if any, and give the plaintiff the
opportunity to supply additional information that may be necessary to establish his or her
entitlement to a waiver under the circumstances of the particular case. Only by taking
such a proactive role can the trial court properly balance the respective rights of the
parties while minimizing the circumstances in which a potentially meritorious case is
dismissed solely because the plaintiff cannot post an undertaking.” (Alshafie v. Lallande,
supra, 171 Cal.App.4th at p. 435, fn. omitted.)
The trial court‟s denial of the motion for relief from the cost bond on the ground
plaintiffs‟ failure to appeal the 2010 cost bond ruling precluded them from challenging
the order on remand was error. The court sustained Dole‟s demurrer to the first amended
complaint as to all current plaintiffs without leave to amend in 2010. Accordingly, the
ruling requiring a $16,926 per plaintiff cost bond did not apply to plaintiffs but applied
only to the two individuals, no longer plaintiffs, who were granted leave to amend. In
these circumstances, the current plaintiffs had no standing to appeal the cost bond order.
“[O]nly a person aggrieved by a decision may appeal. ([Cf. § 902] [„Any party aggrieved
may appeal . . . .‟].) An aggrieved person, for this purpose, is one whose rights or
interests are injuriously affected by the decision in an immediate and substantial way, and
not as a nominal or remote consequence of the decision.” (In re K.C. (2011) 52 Cal.4th
231, 236.) Moreover, as plaintiffs‟ complaint was not dismissed in 2010 because they
failed to post the cost bond, the cost bond order was not an appealable order for them.
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(See § 1030, subd. (g) [“An order granting or denying a motion for an undertaking under
this section is not appealable.”].) Failure to raise an appellate challenge to a cost bond
order that did not apply to them and was not appealable by them did not preclude
plaintiffs from subsequently requesting a waiver of cost bond in the trial court on remand.
Plaintiffs presented individualized evidence of their indigency and inability to
obtain a cost bond from a surety. It was an abuse of discretion for the trial court to rule
on the motion without reviewing plaintiffs‟ evidence and all other relevant factors under
section 995.240.
DISPOSITION
The judgment and orders are reversed. Costs on appeal are awarded to plaintiffs.
KRIEGLER, J.
We concur:
MOSK, Acting P. J.
O‟NEILL, J.*
* Judge of the Ventura County Superior Court assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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