Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. CIV 450 995
Richman, J.
Plaintiff, a resident of Canada, filed a lawsuit in San Mateo County Superior Court. Two defendants filed a motion for security under Code of Civil Procedure section 1030. The trial court granted the motion, and ordered plaintiff to post security in the amount of $15,000, only $2,000 of which had to be posted in the near future. Plaintiff did not do as ordered, despite a series of letters from defendants’ counsel inquiring about the security, followed by an express threat to dismiss. Defendants moved for dismissal. The trial court granted the motion and dismissed plaintiff’s complaint.
Plaintiff appeals, making four arguments: (1) there is no substantial evidence supporting the original order to post the security; (2) the trial judge hearing the motion to dismiss abused his discretion by not reconsidering the original order; (3) the trial judge abused his discretion by not granting plaintiff’s request to defer the motion to dismiss; and (4) the dismissal should have been without prejudice. We affirm.
I. BACKGROUND
On November 18, 2005, plaintiff Francine Zelsman-Kerdman (plaintiff) filed a verified complaint in San Mateo County Superior Court, naming three defendants: WWMR, Inc. (WWMR), Executstaff HR, Inc. (Execustaff), and Susan Olsen, president of WWMR. The complaint explicitly alleged that “at all times relevant herein, plaintiff . . . was, and is a Canadian citizen” and “resides” in Canada. The complaint sought damages and equitable relief, and was premised on plaintiff’s brief employment at WWMR, where plaintiff had been hired into a senior management position—and from which she was terminated on September 21, 2005, nine days after she began. The reason for the termination alleged in the complaint was that at dinner on September 21, 2005, plaintiff had related to Olsen that she, plaintiff, had been assaulted by a social acquaintance on September 11, 2005; then, “Alluding to an act of violence that she (i.e., defendant OLSEN) had encountered or sustained, defendant OLSEN terminated plaintiff[’s] employment with defendants, WWMR, INC./EXECUSTAFF HR, INC. on the articulated ground that plaintiff . . . ‘lacked professional judgment’ and defendant OLSEN did not want someone who ‘lacked professional judgment running her company.’ ” The complaint alleged 11 causes of action, styled as follows: (1) breach of written employment agreement; (2) breach of the implied covenant of good faith and fair dealing; (3) employment discrimination in violation of the CFEHA; (4) fraud and deceit; (5) negligent misrepresentation; (6) breach of fiduciary duty; (7) Labor Code section 970, subdivision (b); (8) violation of RICO Act; (9) wrongful termination in violation of public policy; (10) intentional infliction of emotional distress; and (11) negligent infliction of emotional distress.
On December 16, 2005, WWMR and Olsen (sometimes referred to collectively as defendants) filed a demurrer to all causes of action, which demurrer was set for hearing on January 17, 2006. They also filed a motion to strike. The points and authorities supporting the demurrer noted that defendants “separately request judicial notice” of three documents that defendants claimed “plaintiff repeatedly incorporates by reference” in her complaint. The three documents were (1) a letter from WWMR accompanying the application for plaintiff’s work visa; (2) the United States Government’s approval of a work visa; and (3) plaintiff’s written employment agreement. A request for judicial notice requesting notice of these three documents was filed on December 19, 2005.
On December 30, 2005, plaintiff filed her opposition to the demurrer, which began with a “Prefatory Statement” which distilled plaintiff’s complaint, as follows: “plaintiff . . . a Canadian citizen, alleged that, by a written contract executed in August 2005, she was employed in a senior managerial position by co-defendants WWMR, INC./ EXECUSTAFF HR, INC., said contract reciting that her employment was at-will. [¶¶ 6, 20, 31, Complaint; see also, Exhibit 3, Request for Judicial Notice.] Plaintiff . . . also alleged that, in order to work in the United States, she obtained a TN-1 visa that defendant WWMR, INC. supported with a letter indicating that plaintiff[’s] . . . employment was for no more than one year. [¶ 23, Complaint; see also, Exhibit 1, Request for Judicial Notice. (Footnote omitted.) Plaintiff further referred to the September 21, 2005 dinner conversation with Olsen about the sexual assault, and asserted that immediately following that conversation, “defendants WWMR, INC/EXECUSTAFF HR, INC. terminated plaintiff[’s] . . . employment. [¶ 29, Complaint.]” In addition to the references quoted above, various other places in plaintiff’s opposition referred to documents as to which judicial notice had been requested, and plaintiff filed a “Non-Opposition to Request for Judicial Notice.”
The demurrer came on for hearing on January 17, 2006, before the Honorable Marie Weiner. Judge Weiner’s order ruling on the demurrer is not before us, but according to a representation by defendants below, Judge Weiner sustained without leave to amend, and dismissed, the sixth and eighth causes of action (respectively for breach of fiduciary duty and RICO); sustained with leave to amend the tenth and eleventh causes of action (respectively for intentional and negligent infliction of emotional distress); and overruled the demurrers to the remaining seven causes of action. Judge Weiner also dismissed individual defendant Olsen from the first, second, third, seventh, and ninth causes of action.
While the demurrer was pending, defendant Execustaff filed a petition to compel arbitration and to stay the action. Plaintiff filed opposition, and Execustaff a reply. The petition came on for hearing on January 26, 2006, before Judge Weiner, who adopted her tentative ruling and entered an order denying Execustaff’s motion. On March 24, 2006, Execustaff appealed from that order, which appeal was lodged in this court and numbered A113588. By order filed January 11, 2007, we issued an order in that appeal which concluded that “in the interest of judicial economy, all further proceedings in [No. A113588] should be, and hereby are, stayed pending either (1) a determination by us on the merits of appeal No. A116343, or (2) further order of this court pursuant to a motion filed by any party hereto.” On April 18, 2007, Execustaff filed a motion to dismiss its appeal in No. A113588, which we granted by order dated April 24, 2007.
On January 26, 2006, plaintiff filed a verified first amended complaint, alleging nine causes of action. Defendants demurred to the eighth and ninth causes of action, which demurrer again came on for hearing before Judge Weiner. On March 9, 2006, Judge Weiner entered her order overruling the demurrer to the eighth cause of action and sustaining without leave to amend the demurrer to the ninth cause of action (negligent infliction of emotional distress). On March 17, 2006, defendants filed their verified answer to the first amended complaint, and the matter was at issue as to defendants WWMR and Olsen.
Meanwhile, on March 3, 2006, WWMR and Olsen filed four motions. Three of the motions concerned discovery, and are only tangentially relevant to the issues here. The fourth motion was the one leading to the within appeal—a motion to compel plaintiff to file an undertaking. The motion was based on Code of Civil Procedure section 1030 , which provides in pertinent part as follows: “(a) When the plaintiff in an action . . . 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. For the purposes of this section, ‘attorney’s fees’ means reasonable attorney’s fees a party may be authorized to recover by a statute apart from this section or by contract.
The three discovery motions were to compel plaintiff’s response (1) to document requests, (2) special interrogatories, and (3) questions at deposition; all three discovery motions also sought sanctions. The discovery motions were apparently never ruled on.
Unless otherwise indicated, all statutory references are to the Code of Civil Procedure.
“(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 in support of the grounds for the motion and by a memorandum of points and authorities. The affidavit 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 . . . .”
The accompanying points and authorities asserted that plaintiff could not “establish a prima facie case for any of her causes of action,” which fundamental contention was followed by a cause-of-action-by-cause-of-action analysis which defendants asserted demonstrated that plaintiff’s claims lacked merit. The motion was accompanied by a declaration of defendants’ attorney Kristen Pezone, who testified that if the case were to proceed through trial, defendants would incur “recoverable reasonable costs and attorneys’ fees” in the amount of $211,540. A supplemental declaration of Ms. Pezone increased the amount to $217,414.50, some $139,000 of which was for attorneys’ fees defendants asserted they could recover.
On March 23, 2006, plaintiff filed her opposition to the motion to furnish security, as well as opposition to the three discovery motions on March 21. On March 24, 2006, defendants filed their replies.
The record on appeal did not contain plaintiff’s opposition to the motion to furnish security, a fact pointed out at oral argument. Counsel for plaintiff was given an opportunity to address this fact, and his letter of September 21, 2007 showed that the opposition was in fact designated as part of the record on appeal, and thus the absence of the opposition was apparently due to an error by the clerk’s office below. Counsel’s letter also included a copy of the opposition, and on our own motion we augment the record to include that opposition.
The motion for security came on for hearing on April 5, 2006 before Judge Weiner, and a transcript of that hearing is in the record. From indications in that transcript, Judge Weiner had issued a tentative ruling prior to the hearing, granting the motion and ordering plaintiff to post security in the amount of $15,000. That tentative ruling itself is not in the record.
In the course of the argument Judge Weiner made some observations pertinent to the issues here, including one in response to plaintiff’s counsel’s argument based on Judge Weiner’s overruling of the demurrers, counsel arguing that the “Court has said there is prima facie case made in the event . . . . Plaintiff can prove those facts.” Judge Weiner responded that while she had ruled “that there is a prima facie showing for purposes of pleadings. [She] made zero evidentiary rulings.” Then, in response to plaintiff’s argument that “the second condition of 1030 is not met,” Judge Weiner replied that “even on the pleadings, it seems there is a reasonable possibility of them prevailing.” And, Judge Weiner stated, she was “going to stick with [the] tentative ruling.”
Counsel for plaintiff pressed on, seeking a stay essentially based on the Execustaff appeal. Judge Weiner heard additional argument, and then concluded she would “augment [the] tentative ruling. [¶] The motion to compel an undertaking is granted in the amount of $15,000. Plaintiff is to post $2,000 within ten days and the remainder posted upon lifting of the stay . . . due to the issue of arbitration on appeal.”
Counsel for plaintiff persisted, and requested that plaintiff have 30 days to post the $2,000, to which Judge Weiner replied, in apparent astonishment. The following is the colloquy with which the hearing ended:
“[Counsel for plaintiff]: Your Honor, with one exception. And I would ask rather than ten days, that you give her 30 days.
“The Court: She can’t post a bond for [$]2,000 in ten days?
“[Counsel for plaintiff]: Your Honor, I suspect she can. But it’s oftentimes difficult with regard to where she is in Canada. And sometimes she’s out of the country for purposes of job interviews and the like.
“The Court” She can have 20 days.
“[Counsel for plaintiff]: Thank you, your Honor.
“The Court: Do you want to waive notice?
“[Counsel for defendants]: Yes, your Honor.
“[Counsel for plaintiff]: Yes, your Honor.
“The Court: Thank you.
“[Counsel for defendants]: Thank you.”
The 20 days came and went, and no security was forthcoming. Finally, on June 21, 2006—almost 60 days past the date the security was due—defendants’ attorney sent a brief letter to plaintiff’s attorney, inquiring whether “plaintiff has posted a bond pursuant to the court’s prior order,” and asking for documentation if she had. Plaintiff’s attorney sent a one sentence response on June 23, 2006, advising that plaintiff “has not posted a bond.”
Defendants’ attorney responded on June 27, 2006. The full text of his letter is as follows: “Dear Mr. Abraham: [¶] Your one sentence letter of June 23, 2006 advises that ‘Ms. Zelsman-Kerdman has not posted a bond.’ On April 5, 2006, the court ordered plaintiff to post a bond in the amount of $2,000 within 20 days—or April 25. ‘If the plaintiff fails to file the undertaking with 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.’ Code Civ. Proc. § 1030(d); also Shannon v. Sims Service Center, Inc. (1985) 164 Cal.App.3d 907, 909, 916-917 [(Shannon)]. Please let me know whether plaintiff will belatedly obey the court’s order and, if so, by what date. Absent an affirmative response from plaintiff, Defendants WWMR and Susan Olsen will move to compel enforcement of the court’s order and seek both monetary and terminating sanctions. Thank you in advance for your anticipated prompt response.”
Plaintiff’s attorney did not respond, and on July 5, 2006 defendant’s attorney sent by facsimile a short letter, confirming the non-response and stating that “Absent a response by plaintiff at noon of July 7, 2006, WWMR and Susan Olsen will seek terminating sanctions against plaintiff pursuant to Section 1030(d).”
By letter dated July 7, 2006, sent by mail and facsimile, plaintiff’s attorney responded, which letter provided in pertinent part as follows: “I am in receipt of your June 27 and July 4, 2006 letters . . . . [¶] In support, you cite to the latter portion of CCP § 1030(d), yet neglect to reflect the requirement in the earlier part of that very subsection indicating that the time period within which the undertaking must be posted commences ‘. . . after service of the court’s order requiring it . . . .’ No such service has been accomplished, and such service was not waived at the April 5, 2006 hearing. In that regard, please note that Shannon v. Sims Service Center, Inc.[, supra, ] 164 Cal.App.3d 907 [at p.] 910 is factually inapposite. [¶] I am confident that you will attend to this service oversight. Should you do so, however, please note that, as much as she has no desire to ignore or disobey the court’s April 5, 2006 order, upon service of the court’s April 5, 2006 order, Ms. Zelsman-Kerdman will be unable to file such a bond in that she is currently impecunious. In accord, unless her financial condition changes in the future (a prospect that is remote and not expected), in the event that WWMR pursues the April 5, 2006 undertaking filing order, Ms. Zelsman-Kerdman will seek reconsideration of the court’s requirement to require an undertaking, or in the alternative, will seek a waiver of the requirement due to her impecuniosity—notably a condition that is a result of WWMR’s termination of Ms. Zelsman-Kerdman’s employment.”
As discussed at length post, on July 7, 2006, defendants filed their motion to dismiss. Before discussing that motion, we complete the correspondence between counsel. On July 8, plaintiff’s counsel sent the following facsimile letter: “On the heels of faxing you my response to your June 27 and July 5, 2006 letters yesterday, I received WWMR’s motion to dismiss the above-referenced action. In light of the WWMR’s failure to serve the April 5, 2006 court order as required by CCP §1030(d), you might wish to withdraw the aforesaid motion—at least until you accomplish such service. Additionally, you might also wish to consider that, as noted in my July 7, 2006 letter, when she is served with the April 5 order, Ms. Zelsman-Kerdman will still be unable to file such a bond in that she is currently impecunious. In the event that WWMR refiles its motion to dismiss, Ms. Zelsman-Kerdman will seek reconsideration of the court’s requirement to require an undertaking, or in the alternative, will seek a waiver of the requirement due to her impecuniosity. [¶] Please advise as to whether WWMR intends to withdraw its current motion to dismiss.”
Defendants’ counsel responded by facsimile of July 10, as follows: “I had previously asked you to respond by noon on Friday. Your July 7 facsimile transmission was timed 3:57 p.m., after the motion to dismiss had been filed and service upon plaintiff was in process. Hearing no timely response from you, Defendants WWMR and Susan Olsen filed and served a motion to dismiss plaintiff’s complaint prior to receipt of your July 7 letter. [¶] Please note that service was waived at the April 5, 2006 hearing. Plaintiff remains in violation of the court’s order. [¶] Please consider carefully presenting to the court that Ms. Zelsman-Kerdman is ‘currently impecunious.’ Ms. Zelsman-Kerdman currently is employed, resides in a nice apartment in a fashionable Toronto neighborhood and, ironically, the woman claiming that Susan Olsen discriminated against her because she is Jewish (even though Susan Olsen did not know that plaintiff is Jewish) continues to lease a German luxury car, a Mercedes-Benz. In addition, Ms. Zelsman-Kerdman—in January of this year—received a substantial sum in settlement of some of her other employment litigation. Furthermore if as you now claim, plaintiff was reduced to ‘impecuniosity’ as a result of termination of her employment, that issue was not previously raised, and therefore waived because plaintiff was more ‘impecunious’ at the time of the hearing than the currently employed plaintiff is now. Also please note that Ms. Zelsman-Kerdman was unemployed before she started work for WWMR and, after her short tenure, received a generous severance payment. Plaintiff was not reduced to ‘impecuniosity,’ she was returned to her prior state of employment.”
As noted, on July 7, 2006, WWMR and Olsen filed a motion to dismiss for failure to comply with the court order to post a bond. The motion was simple and straightforward, supported by an 11-line argument, in one paragraph, supported by reference to section 1030, subdivision (d) and Shannon, supra, 164 Cal.App.3d at p. 909. The motion was also supported by a short declaration from defendants’ attorney, who testified about the communications with plaintiff’s attorney, and attached copies of the referenced correspondence.
On July 21, 2006, plaintiff filed her opposition. It included a memorandum of points and authorities, a declaration of plaintiff’s attorney, and a request for judicial notice of the transcript of the April 5, 2006 hearing on the original motion. There was no declaration of plaintiff.
The declaration of plaintiff’s attorney testified about his “recall” and “review of [his] notes” from the April 5 hearing which, he asserted, had led him to believe that notice had not been waived, and that he told plaintiff to await such notice and “to make preparations for the posting of an undertaking consistent with the court’s . . . order.” The declaration then went on to describe the correspondence set out above, and that after counsel received the July 10 letter he had requested a transcript of the April 5 hearing, on receipt of which he learned for the first time that notice had been waived. The declaration concluded with the following paragraph. “15. Although both the undersigned counsel and plaintiff ZELSMAN-KERDMAN looked into the particulars pertaining to posting the required undertaking at such time as the court’s April 5, 2006 order was served, based on the undersigned counsel’s advice (i.e., his belief that the time to post the undertaking had not yet commenced due to the lack of service of the court’s April 5, 2006 order), plaintiff . . . neither posted the required undertaking nor, upon finding that she was financially unable to do so, did she file her motion for waiver from the undertaking requirement at that time.”
Plaintiff’s opposition had four arguments. The first was that counsel believed the April 5, 2006 order had to be served on him. The second was that “upon reconsideration, the April 5, 2006 order should be revoked obviating any objection of plaintiff to post an undertaking . . .,” the claimed basis of which “reconsideration” seems to be a rehash of the argument(s) made at the original hearing. The third argument was that in the event the undertaking order remains, the court “defer its ruling on . . . the motion to dismiss to allow plaintiff additional time to file her motion for waiver of the undertaking requirement based on her indigence,” the essence of which motion would be that plaintiff is “indigent/impecunious and financially unable to post the undertaking.” The fourth argument was that if the action were dismissed, such dismissal be without prejudice.
On July 26, 2006, defendants filed their reply. Their brief was less than 3 pages, and its fundamental position was that “[p]laintiff’s opposition establishes that allegedly inadvertent failure to follow the court’s order is now willful.” Defendants’ reply also included a supplemental declaration of defendants’ counsel which appended anInternet printout showing that plaintiff was employed at the College of Family Physicians of Canada. One page of this printout included a highlighted item: “Appointment/Notice: Francine Kerdman, Manager, Continuing Professional Development/CME,” which item went on to describe plaintiff’s background and record in glowing terms. Plaintiff did not object to this proffered printout.
The motion came on for hearing on August 4, 2006, before the Honorable Steven L. Dylina. Judge Dylina had issued a “very brief tentative ruling,” which again is not in the record before us, but which was apparently not favorable to plaintiff, as the hearing began with plaintiff’s counsel’s request for “clarification” whether the dismissal would be with or without prejudice. Judge Dylina indicated that “[p]laintiff failed to post the undertaking. And that being the previous order of the court, the dismissal was going to be with prejudice.”
Counsel for plaintiff then wanted to address “two issues,” and proceeded as follows:
“[Counsel for plaintiff]: Based on that, then, your Honor, let me address two issues: One, is the issue under 1030. The other is the issue, which is actually under CCP 581, as to whether the Court should or should not dismiss with or without prejudice.
“Your honor, with regard to 1030, plaintiff recognizes that the language in 1030(d) is mandatory. That is to say, if there’s an order, and it’s not complied with with regard to posting of an undertaking, that the court shall dismiss the complaint.
“We are not—we are not suggesting that the court not take that action. We are suggesting to the court that the court defer its action and put this matter off calendar for later determination. That is done on several grounds, your Honor: number one, we believe that there is an appropriate motion for reconsideration that can and should be made.
“We believe that the court’s original order was erroneous, and now that we have the transcript to that, we are aware that the court merely made its determination based on the allegations in the complaint and nothing more.”
Judge Dylina listened to rather extensive argument, at the conclusion of which he ruled that “The motion to dismiss is granted with prejudice. [¶] There’s been no compliance with 1030(d) of the Code of Civil Procedure. There’s been no adequate showing why there has been no compliance. And I think this really rests with your client, not with you, Mr. Abraham, but with your client. [¶] The Court, therefore, grants the motion, but only as to the moving part[ies] . . .”
On September 5, 2006, Judge Dylina entered a written order granting the motion to dismiss, and defendants’ attorney gave notice of that order. Then, following correspondence from plaintiff’s counsel, on November 3, 2006, Judge Dylina entered an order rescinding the September 5, 2006 order to the extent it dismissed the action in its entirety, and issuing an amended order dismissing the case as to WWMR and Olsen only. On November 7, 2006, counsel for plaintiff filed a notice of entry of the November 3, 2006 order, and also a timely appeal from it.
II. DISCUSSION
A. The Order Is Appealable
We begin with discussion of the first issue raised by defendants’ brief: that the order that plaintiff post an undertaking is not appealable.
It is true that subdivision (g) of section 1030 provides that “an order granting or denying a motion for an undertaking under this section is not appealable.” (See also Yao v. Superior Court (2002) 104 Cal.App.4th 327, 330, fn. 2.) While defendants’ argument is accurate in the abstract, it does not apply here, as plaintiff’s appeal is not from the order requiring the security, but from the November 3, 2006 order dismissing the action. And that order concludes as follows: “IT IS HEREBY ORDERED, pursuant to . . . section 1030(d), plaintiff’s complaint be, and hereby is, DISMISSED with prejudice as to defendants WWMR, Inc. and Susan Olsen . . .”
Efron v. Kalmanovitz (1960) 185 Cal.App.2d 149 is instructive. The appeal there was from three orders, one of which denied defendants’ motion under Corporations Code [former] section 834 that plaintiffs furnish security for their derivative suit. Concluding that an order denying a motion was nonappealable, the court began by discussing the law involving an order granting sucha motion: “In reaching this conclusion, it is to be observed that the Legislature has provided in Corporations Code, section 834, that in the event an order for security is made and is not furnished, ‘the action shall be dismissed.’ Although the section does not expressly provide for the entry of judgment of dismissal, it appears to be contemplated and is the established practice. A judgment of dismissal is obviously appealable. Thus, it appears that the Legislature has expressly provided a right of appeal where a motion for security in a stockholders’ derivative suit is granted and the security is not furnished . . . .” (Efron v. Kalmanovitz, supra, at pp. 156-157.) This case is certainly analogous to the situation here, and supports the conclusion that the November 3, 2006 order is appealable.
So, too, the facts that the November 3 order was in writing, it was signed by the court, and it was filed in the action. It is thus treated as a judgment. (See, e.g., § 581d.) And it is appealable. (Kahn v. Lasorda’s Dugout, Inc. (2003) 109 Cal.App.4th 1118, 1120, fn. 1; Vernon v. Great Western Bank (1996) 51 Cal.App.4th 1007, 1011, fn. 2.) We thus turn to the substance of plaintiff’s appeal, and conclude it has no merit.
B. Plaintiff’s Appeal Has No Merit
1. Introduction
Section 1030 was enacted in 1872, originally as section 1036. It was renumbered and amended by Statutes 1933, chapter 744, section 189, p. 1900, and amended several times since. The original section 1030 was held unconstitutional in not providing a hearing to determine the validity of the claim, the reasonableness of the amount of the security, and plaintiff’s inability to pay. (Gonzales v. Fox (1977) 68 Cal.App.3d Supp. 16, 18.) Then, following a Law Revision Commission recommendation, section 1030 was rewritten in 1980, and amended in 1982 and 1988 to read as it does today. There are relatively few cases dealing with section 1030 and its predecessors in its entire 135-year history. And since the last relevant amendment there are only two cases dealing with the issues pertinent here: Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427 (Baltayan) and Shannon, supra, 164 Cal.App.3d 907, both of which plaintiff relies on in support of her position here.
2. Substantial Evidence Supports Judge Weiner’s April 5, 2006 Order
Plaintiff first contends that there is no substantial evidence to support Judge Weiner’s original order that plaintiff post security. Plaintiff’s reply brief distills her argument thusly: “The gravamen of plaintiff[’s] . . . challenge to the trial court’s April 5, 2006 Order is that said Order was based exclusively on the First Amended Complaint, and therefore, without any other factual information before it, for purposes of ruling on [defendants’] undertaking motion, the trial court was required to treat the allegations as true. Bank of America v. Superior Court (1967) 255 Cal.App.2d 575, 578.” As noted, in claimed support plaintiff cites to both Baltayan and Shannon, and we begin with discussion of them.
Baltayan was a personal injury lawsuit brought by a resident of Washington State for injuries allegedly suffered in a traffic accident in Los Angeles county. (Baltayan, supra, 90 Cal.App.4th at p. 1430.) Defendants filed a motion for security under section 1030, and included with the motion the police department report of the accident. The trial court continued the motion in light of a pending arbitration. The arbitration resulted in an award for defendants, from which plaintiff filed a timely request for a trial de novo. Defendants renewed their motion to require plaintiff to post security, citing the arbitration award as additional evidence. The trial court granted the motion, and ordered plaintiff to post a $22,000 undertaking in ten days. (Baltayan, supra, 90 Cal.4th at p. 1431.)
Though ultimately ruling for plaintiff on the basis that the trial court abused its discretion in dismissing the case after plaintiff was granted in forma pauperis status, the Court of Appeal first held that the order to post security was supported by substantial evidence: defendant “direct[ed] the court to the arbitration award, the arbitrator’s letter and the police report.” (Baltayan, supra, 90 Cal.App.4th at p. 1432.)
Shannon was also a personal injury action, which also included an arbitration award for defendant which it put before the court. (Shannon, supra, 164 Cal.App.3d at p. 914.) As pertinent here, the Court of Appeal held that defendant carried its burden by showing “a reasonable possibility of prevailing by proper reference to the results of the earlier arbitration hearing. . . . ‘[R]eference to the arbitration proceedings or arbitration award during any subsequent trial,’ which is prohibited by Code of Civil Procedure section 1141.25, does not preclude reference to these proceedings or the award during pretrial matters. Recognizing that it is impossible to predict in advance the outcome of a trial by jury, respondent, however, presented the best evidence available to divine the possible outcome of the trial de novo, which is all that section 1030, subdivision (a) of the Code of Civil Procedure requires.” (Ibid.)
Interestingly, and particularly apt to one of plaintiff’s positions here, Shannon went on to hold that “[t]he subject of the appellant’s ability to furnish an undertaking . . . is a point that appellant does not develop except by rhetoric. . . . There are no facts asserted in the record before us that appellant did or did not have the ability to post an undertaking. We hold that it is appellant’s burden to prove inability to furnish an undertaking and he has not done so. . . .” (Shannon, supra, 164 Cal.App.3d at p. 914.)
Neither Baltayan nor Shannon demonstrates that Judge Weiner’s April 5, 2006 order is not supported by substantial evidence.
To begin with—and contrary to plaintiff’s fundamental assertion—there was more before Judge Weiner than just the four corners of the complaint. There was, for example, plaintiff’s contract of employment, which was before the court in connection with the original demurrer via a request for judicial notice—a request, as noted, with which plaintiff expressly agreed. The employment contract showed that plaintiff’s annual salary was $160,000, in addition to which plaintiff was to be eligible to receive an annual performance-based target bonus of 17 percent. That contract also provided, as plaintiff expressly alleged, that it was for “no specific period” and that “WWMR . . . is free to conclude its at-will employment relationship with [plaintiff] at any time, with or without cause.”
The effect of such a contract was recently confirmed by the Supreme Court in Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 392, where, quoting the leading case, the court held that “ ‘An at-will employment may be ended by either party ‘at any time without cause,’ for any or no reason, and subject to no procedure except the statutory requirement of notice.’ (Guz v. Bechtel National, Inc., [(2000)] 24 Cal.4th [317,] 335 [(Guz)].)”
The documents before Judge Weiner also included documentation to the Immigration and Naturalization Service (INS), seeking to allow plaintiff to obtain a work permit to allow her to work legally in the United States, as well as the INS’s grant of the work permit. These documents demonstrated that before plaintiff began her employment in California, defendants knew that plaintiff was Canadian (the claimed basis for her national origin discrimination claim) and that she was female (the claimed basis for her sex discrimination claim). And why, we wonder, would defendants spend all that preemployment expense on such a high-ranking, exceptionally well-paid executive, to terminate her for discriminatory/fraudulent reasons nine days after her employment began?
But even if there were nothing more before Judge Weiner than the four corners of the complaint, we see nothing in the statute that says that cannot be sufficient. Indeed, Judge Weiner—who, it must be recalled, had handled the earlier demurrers and had seen the various discovery motions—remarked that, while she had ruled “that there is a prima facie showing for purposes of pleadings [she] made zero evidentiary rulings,” further noting that “even on the pleadings, it seems there is a reasonable possibility of them prevailing.”
Furthermore, the allegations within the four corners of the complaint included that plaintiff was hired, and terminated, by Olsen. This brings into play the so-called single actor doctrine we applied in Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 809, where, citing several cases, we observed that “ ‘ “. . . where the same actor is responsible for both the hiring and the firing of a discrimination plaintiff, and both actions occur within a short period of time, a strong inference arises that there was no discriminatory motive.” [Citations.]’ ” As observed by the Fourth Circuit: “ ‘ “One is quickly drawn to the realization that ‘[c]laims that employer animus exists in termination but not in hiring seem irrational.’ From the standpoint of the putative discriminator, ‘[i]t hardly makes sense to hire workers from a group one dislikes (thereby incurring the psychological costs of associating with them), only to fire them once they are on the job.’ ” ’ ” (Accord, West v. Bechtel Corp. (2002) 96 Cal.App.4th 966, 980-981 [age discrimination; jury verdict for plaintiff reversed with directions where same manager hired and fired 62-year-old employee]; Slatkin v. University of Redlands (2001) 88 Cal.App.4th 1147, 1158 [religious discrimination; same dean who hired Jewish academic later voted to deny her tenure; summary judgment for defendant affirmed].)
Likewise before Judge Weiner was the fact that defendants had incurred significant expense to assist plaintiff in obtaining the visa, including hiring counsel. Why would they do all that, only to terminate plaintiff nine days after she began her employment? The answer is provided by plaintiff’s own complaint, which alleged that she was terminated after plaintiff told Olsen of the assault by the social acquaintance and Olsen terminated her because plaintiff “lacked professional judgment” and did not want someone who “lacked professional judgment running her company.” We, of course, are not in a position to “second-guess an employer’s business judgment.” (Guz, supra, 24 Cal.4th at p. 375.)
Section 1030 imposed on defendants the burden of showing only a “reasonable possibility” they would obtain a judgment. In the words of Baltayan, defendants were “not required to show that there was no possibility that [plaintiff] could win at trial, but only that it was reasonably possible that [defendants] would win.” (Baltayan, supra, 90 Cal.App.4th at p. 1432.) Defendants made such showing here.
Bank of America v. Superior Court, supra, 255 Cal.App.2d 575, the case cited by plaintiff, is not to the contrary. There, the Court of Appeal denied defendants’ writ petition following a trial court ruling denying defendants’ motion that plaintiff be ordered to post security. The Court of Appeal concluded as follows: “Petitioners assert an abuse of discretion upon another ground, the pleadings. They point out that only the third cause of action of the complaint is directed against them, the basis for liability being statements alleged to be false . . . Petitioners emphasize that their answer denies the making of the alleged false statements and that the answers of the other defendants also deny the charge. . . . [¶] When a motion of this character is predicated solely upon the pleadings, the allegations of the complaint must be deemed to be true for the purposes of the particular motion. The trial court was not bound to accept the allegations in the various answers as correct and those of the complaint as false upon conflicting questions of fact. Indeed, to resolve conflicting fact matters raised by the pleadings in this manner would constitute a gross abuse of discretion.” (255 Cal.App.2d at p. 578.)
Here, defendants were not relying on their answer. And even assuming that plaintiff’s allegations must be accepted as true, they do not demonstrate that defendants did not have a “reasonable possibility” of prevailing, not in light of the at-will employment contract, the essential nature of plaintiff’s claims, and the applicable law.
3. Judge Dylina’s Failure To Reconsider Was Not An Abuse Of Discretion
Plaintiff’s second argument is that Judge Dylina abused his discretion by “failing to reconsider” the motion for undertaking before ruling on the motion to dismiss. As plaintiff frames what happened below, “In her Response in Opposition to Defendant[’s] . . . under § 1008(a), plaintiff . . . sought reconsideration of the trial court’s April 5, 2006 order requiring that plaintiff . . . file a $2,000 undertaking by April 26, 2006 . . . As explained in the plaintiff[’s] opposition brief, the basis for the requested reconsideration was that plaintiff . . . could not have anticipated that the trial court would base a determination that defendants/appellees WWMR/OLSEN had a reasonable possibility of prevailing in this action based exclusively on the allegations in the First Amended Complaint.” Such argument fails on numerous grounds, both procedural and substantive.
First, and as plaintiff’s argument concedes, no real motion for reconsideration was even made. Rather, all plaintiff did was argue for reconsideration in her opposition.
Second, even assuming such a request could support reconsideration, such request was probably time-barred, as it was made in opposition filed July 21, 2006, seeking reconsideration of an April 5, 2006 order. And the statue providing for reconsideration says it must be sought “within 10 days after the service upon the party of written notice of entry of order.” (§ 1008, subd. (a); Advanced Building Maintenance v. State Comp. Ins. Fund (1996) 49 Cal.App.4th 1388, 1392.)
As noted, the statutory language states that the 10-day time limit runs only from “service . . .of written notice of entry” of the order. (§ 1008, subd. (a).) Thus, there is arguably an issue whether such period began here, as there is no indication in the record that anyone ever served such notice of entry. However, according to the leading commentary, this should not be a factor here. As the authors put it: “Effect of waiver of notice? The wording of the statute suggests there is no time limit when notice is waived. But this seems contrary to the statutory purpose, and judges may therefore hold the 10-day period runs from the date of waiver. (In any case, the longer the delay, the less receptive the court may be to the motion.)” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2007) ¶ 9:326, p. 119-120.)
Third, any motion for reconsideration must be made to the same judge who made the order. (Davcon, Inc. v. Roberts & Morgan (2003) 110 Cal.App.4th 1355, 1361.) That was Judge Weiner, not Judge Dylina.
Fourth, any such motion would fail on the merits, as we held in Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1499-1500, because plaintiff made no showing of “new or different facts, circumstances, or law” as required by section 1008. As has been recently noted, plaintiff’s burden on a motion for reconsideration “is comparable to that of a party seeking a new trial on the ground of newly discovered evidence: the information must be such that the moving party could not, with reasonable diligence, have discovered or produced it at the trial.” (New York Times Co. v. Suerior Court (2005) 135 Cal.App.4th 206, 212-213.) Moreover, plaintiff is held to a showing of diligence, and must present “a satisfactory explanation for failing to provide the evidence earlier, which can only be described as a strict requirement of diligence.” (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690.) Plaintiff’s claimed basis—that she could not anticipate the original motion being granted—is manifestly insufficient.
Last, but by no means incidentally, plaintiff must demonstrate an abuse of discretion in connection with any denial of reconsideration. (Lucas v. Santa Maria Public Airport Dist. (1995) 39 Cal.App.4th 1017, 1027.) To make such a showing, plaintiff must demonstrate that Judge Dylina “exceed[ed] the bounds of reason, all of the circumstances before [him] being considered.” (Denham v. Superior Court (1970) 2 Cal.3d 557, 566 (Denham).) Indeed, plaintiff must show not only “ ‘ “a clear case of abuse” ’ ” but also “ ‘ “a miscarriage of justice.” ’ ” (Blank v. Kirwan (1985) 39 Cal.3d 311, 331; Denham, supra, 2 Cal.3d at p. 566.) Neither is shown here.
4. Judge Dylina Did Not Abuse His Discretion By Refusing To Defer Ruling On The Motion To Dismiss
Plaintiff’s third argument, similar to her second, is that Judge Dylina abused his discretion by “failing to defer” ruling on the motion to dismiss, apparently so that plaintiff could have “additional time to file the necessary motion/papers [sic] to request relief from the court-ordered undertaking due to [plaintiff’s] indigence.” Such argument has no merit.
It is perhaps enough to note that a request to defer is but another way of asking for a continuance. And the rule is that whether a particular hearing should be postponed is, yet again, a matter within the trial court’s discretion (See Forthmann v. Boyer (2002) 97 Cal.App.4th 977, 984; Mahoney v. Southland Mental Health Associates Medical Group (1990) 223 Cal.App.3d 167, 170-171), with the burden on plaintiff to demonstrate such abuse. (Denham, supra, 2 Cal.3d at p. 566.) Again, plaintiff has failed to meet her burden, which would include, by the way, proof of her inability to furnish the undertaking—which is lacking here. (Shannon, supra, 164 Cal.App.3d at p. 914.)
The record before us contains nothing presented to the trial court from defendant herself—no declaration, no financial statement, no balance sheet, nothing. This is in marked contrast to the plaintiff in Baltayan, who filed a motion accompanied by his “declaration stating that he had no savings and neither he nor his wife owned real property. His declaration also said that his family’s income for 1999 was the same as that reflected on the attached copies of their 1997 and 1998 federal income tax returns. . . . The returns reflected adjusted gross income of $15,150 in 1997 and $14,248 in 1998.” (Baltayan, supra, 90 Cal.App.4th at p. 1434.) Plaintiff’s “showing” was a far cry, much like the inadequate showing in Shannon where, as the Court of Appeal described it, “All we have are counsel’s arguments . . . but no facts advanced to support the contention . . . . (Shannon, supra, 164 Cal.App.3d at p. 916, fn. 6.)
Not only were there no facts from plaintiff supporting any claimed “impecuniosity,” the facts in the record showed otherwise. As discussed above, defendants had put before the court a website printout which revealed that plaintiff was employed at the College of Family Physicians, at a prestigious enough level, we hasten to add, that the college described it to the point of bragging that plaintiff brings “her many years of collective experience in industry, non-profit, as well as owner of her own company, Medical Insights, Ltd.” And, we are constrained to note, that website page is from May 2006, some two months before plaintiff’s attorney was declaring under penalty of perjury that he would be seeking relief based on plaintiff’s “indigence/impecuniosity.” Such advocacy is not to be condoned. (See Rules of Prof. Conduct, rules 5-200(A) & (B) [in presenting a matter to a court a member “shall employ, for the purpose of maintaining the causes confided to the member, only those as are consistent with truth.” Thus, an attorney must not do any of the following: “. . . mislead the judge, judicial officer, or jury by an artifice or false statement of fact or law.”]; see generally, 1 Witkin, Cal. Procedure (4th ed. 1996) Attorneys, § 521, p. 621.)
To complete this picture, we note that in January 2007, plaintiff’s counsel filed in this court an application for waiver of court fees and costs on Judicial Council form 982(a)(17). Based on the claimed financial information on that form, apparently prepared under penalty of perjury by plaintiff, that her $6250 monthly income was “not enough to pay for the common necessities of life for me and the people in my family whom I support and also pay court fees and costs,” on January 10, 2007, we issued an order granting plaintiff’s application “as to filing fee only.”
With that as background, plaintiff’s opening brief states that “[a]s this court’s record reflects, by court order, plaintiff[’s] . . . Application for Waiver of Court Fees and Costs in this court was granted and she is proceeding herein in forma pauperis. The trial court took no action with respect to plaintiff[’s] . . . Application for Waiver of Court Fees and Costs filed therein, and therefore, due to its inaction, she is likewise proceeding in forma pauperis in the trial court. California Rules of Court, Rule 3.57.”
We have three comments. First, we have no further record about any capacity in which plaintiff is “proceeding in the trial court.” Second, there is no order that plaintiff is proceeding in forma pauperis. (See, generally, Cal. Rules of Court, rules 3.50-3.63, especially rule 3.56.) Third, we trust that plaintiff’s counsel is not intending to assume the “in forma pauperis” description to attempt to bring plaintiff within the holding of Baltayan, that granting in forma pauperis status compels a court to vacate an order to furnish security. (Baltayan, supra, 90 Cal.App.4th at pp. 1430-1435.)
5. Judge Dylina Properly Dismissed The Complaint With Prejudice
Section 1030 provides that if a plaintiff does not furnish the security ordered, the court “shall” dismiss the action. As quoted above, counsel for plaintiff acknowledged in the trial court that under section 1030 dismissal is “mandatory.” However, section 1030 does not say whether the dismissal shall be with or without prejudice, and plaintiff’s final argument is that Judge Dylina erred by dismissing the case with prejudice, apparently contending that the dismissal must be without prejudice. We are not persuaded.
The parties have cited no case, and we have found none, directly answering the question here. However, what authority we have found leads to the conclusion that a dismissal under section 1030 can be with prejudice.
The first indication is found in Lyons v. Wickhorst (1986) 42 Cal.3d 911 (Lyons), a case cited in Atkinson v. Elk Corporation (2003) 109 Cal.App.4th 739, one of two cases on which plaintiff heavily relies. Plaintiff quotes Atkinson as noting the claimed “general proposition” that “the power of the court to dismiss actions with prejudice ‘has in the past been confined to two types of situations: (1) the plaintiff has failed to prosecute diligently [citation]; or (2) the complaint has been shown to be ‘fictitious or sham’ such that the plaintiff has no valid cause of action. [Citations omitted.]’ ” Atkinson was quoting from the Supreme Court’s opinion in Lyons and quoted it accurately, stating at the end of the quotation “footnote omitted.” (Atkinson, supra, 109 Cal.App.4th at p. 749.) Plaintiff, however, does not quote the Lyons footnote, which states as follows: “Several additional grounds for dismissal have been recognized over the years. These include: (1) lack of jurisdiction; (2) inconvenient forum (see § 410.30 [generally without prejudice]); (3) nonjusticiable controversy; and (4) plaintiff’s failure to give security for costs (See 6 Witkin, op. cit. supra, § 212, pp. 517-518). . . .” (Lyons, supra, 41 Cal.3d at p. 915, fn. 4, italics added.) In short, the Supreme Court apparently recognized that dismissals for failure to post security could be —perhaps, must be—with prejudice.
Another indicator leading to our conclusion is that the Legislature certainly knew how to direct that dismissals be without prejudice, as manifest for example by section 581, entitled dismissal. Section 581 makes this clear, providing in relevant part as follows:
“(b) An action may be dismissed in any of the following instances:
“(1) With or without prejudice, upon written request of the plaintiff to the clerk . . . “[¶] . . . [¶] (3) By the court, without prejudice, when no party appears for trial following 30 days’ notice of time and place of trial.
“(4) By the court, without prejudice, when dismissal is made pursuant to the applicable provisions of Chapter 1.5 (commencing with Section 583.110).
“(5) By the court, without prejudice, when either party fails to appear on the trial and the other party appears and asks for dismissal.
“(c) A plaintiff may dismiss his or her complaint, or any cause of action asserted in it, in its entirety, or as to any defendant or defendants, with or without prejudice prior to the actual commencement of trial.
“(d) Except as otherwise provided in subdivision (e), the court shall dismiss the complaint, or any cause of action asserted in it, in its entirety or as to any defendant, with prejudice, when upon the trial and before the final submission of the case, the plaintiff abandons it.
“(e) After the actual commencement of trial, the court shall dismiss the complaint, or any causes of action asserted in it, in its entirety or as to any defendants, with prejudice, if the plaintiff requests a dismissal, unless all affected parties to the trial consent to dismissal without prejudice or by order of the court dismissing the same without prejudice on a showing of good cause.
“[¶] . . .[¶] (g) The court may dismiss without prejudice the complaint in whole, or as to that defendant, when dismissal is made under the applicable provisions of Chapter 1.5 (commencing with Section 583.110).
“(h) The court may dismiss without prejudice the complaint in whole, or as to that defendant, when dismissal is made pursuant to Section 418.10.
“[¶] . . .[¶] (l) The court may dismiss, without prejudice, the complaint in whole, or as to that defendant when either party fails to appear at the trial and the other party appears and asks for the dismissal.
“(m) The provisions of this section shall not be deemed to be an exclusive enumeration of the court’s power to dismiss an action or dismiss a complaint as to a defendant.
Finally, we note that if plaintiff’s position were correct, the few appellate cases on the books would not have been necessary as, assuming the limitation provisions had not run, the plaintiff could simply have filed a new action and begun anew.
The old case on which plaintiff relies, Rosenthal v. McMann (1892) 93 Cal.505, does not dictate a contrary result. That was an action for conversion of $500 in gold, and apparently the defendant claimed that the dismissal of an earlier action for failure to file security operated as a bar to the later action. As the Supreme Court stated it, the issue and defendant’s contention were as follows: “The proceedings which resulted in that judgment [in the first case] were under sections 1036 and 1037 of the Code of Civil Procedure. It is contended that the judgment so entered dismissing the action was a judgment on the merits, and therefore a bar to any other action founded upon the same cause of action. It is not denied that this suit is identical in respect with the first suit.” (93 Cal. at p. 509.) Then, after setting forth the basis of defendant’s position, the court concluded as follows: “This contention may be summarily disposed of by reference to subdivision 2 of section 1908 of the Code of Civil Procedure, by virtue of which the judgment is made a bar, if it be one. ‘The judgment or order is, in respect to the matter directly adjudged, conclusive,’ etc. [¶] The matter directly adjudged here was, that plaintiff had failed to give security for costs, and therefore could not be heard, and not that she had no cause of action, or that defendants had a valid defense. [¶] A judgment upon the merits is one which determines, either upon an issue of law or fact which party is right. A judgment that a party cannot be heard can only conclude as to that question. It could not determine the merits of the action which the court refused to consider at all. Although not on the merits, should it preclude an absent plaintiff, after becoming a resident here, or after he is able to give security, from bringing another suit? Not being a bar under the statute, we see no reason why it should.” (93 Cal. at pp. 509-510.)
It is not clear that Rosenthal holds that a dismissal for failure to file security must be without prejudice, but only that it is not a decision on the merits. But even were it to be so read, the later Supreme Court decision in Lyons appears to hold to the contrary.
III. DISPOSITION
The order of November 3, 2006, dismissing the action as to defendants WWMR and Olsen is affirmed.
We concur: Haerle, Acting P.J., Lambden, J.