B242400

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND ApPELLATE DISTRICT DIVISION FIVE

EMPERATRIZ MARINA MENDOZA GOMEZ, ET AL.

Appellants,

v.

DOLE FOOD COMPANY, INC., ET AL.

Respondents.

Appeal from the Superior Court of Los Angeles The Honorable Jane L. Johnson, Presiding

Case No. BC412620

BRIEF OF RESPONDENT DOLE FOOD COMPANY, INC.

GIBSON, DUNN & CRUTCHER LLP Theodore J. Boutrous, Jr., SBN 132099

Andrea E. Neuman, SBN 149733 William E. Thomson, SBN 187912

KatieLynn B. Townsend, SBN 254321 333 S. Grand Ave, Suite 5317 Los Angeles, California 90071

Telephone: (213) 229-7121

Attorneys for Respondent Dole Food Company, Inc.

CERTIFICATE OF INTERESTED ENTITIES OR PERSONS

(CAL. RULES OF COURT, RULE 8.208)

Respondent is aware that David H. Murdock beneficially owns 10

percent or more of Dole Food Company, Inc. He owns that interest directly

through the David H. Murdock Living Trust dated May 28, 1986, as

amended, for which Mr. Murdock is the trustee, and indirectly through Cas-

tie & Cooke Holdings, Inc., which is wholly-owned indirectly by Mr. Mur-

dock. Dole Food Company, Inc. is not aware of any entities or persons that

must be listed under California Rules of Court, rule 8.208( e )(2).

DATED: February 26, 2013 Respectfully submitted,

GIBSON, DUNN & CRUTCHER LLP

By: ~ 4 ~ !vv-~ ANDREA E. NEUMAN

Attorneys For Respondent ,Dole Food Company, Inc.

TABLE OF CONTENTS

I. INTRODUCTION AND SUMMARY OF ARGUMENT ........................ 1

II. FACTUAL AND PROCEDURAL HISTORy ........................................ 6

A. In September 2010, the Superior Court Dismisses the Claims of 185 Plaintiffs and Enters Judgment for Dole Food by Sustaining the Demurrers and Granting Its Cost Bond Motion ................................................................... 8

B. This Court Affirms the Superior Court's Order Sustaining the Demurrers, but Reverses the Denial of Leave to Amend .................................................................... 12

C. The Remaining 183 Plaintiffs Fail to Timely File a Second Amended Complaint Following Remand and the Superior Court Dismisses Their Claims, but Provides an Opportunity to Seek Discretionary Relief Pursuant to Section 473 ; ....................................................... 14

D.· Sixty-Five Plaintiffs File a Motion for Relief From Dismissal ............................................................................... 18

E. Sixty-Five Plaintiffs File a Motion for Relief From the Cost Bond Order .................................................................... 20

F. The Superior Court Exercises Its Discretion to Deny Plaintiffs' Motions to Set Aside the Dismissal and Cost Bond Order ................................................................... 21

III. STANDARDS OF REVIEW ................................................................ 23

IV. DISCUSSION ....................................................................................... 24

A. The Superior Court Correctly Found Section 473's Mandatory Provision Inapplicable To The Circumstances Before It. ....................................................... 24

1. California Law Is Clear That the Mandatory Provision Applies Only to Unopposed Dismissals-the Only Dismissals "Akin" to Defaults ...................................................................... 26

1

TABLE OF CONTENTS (cont'd)

2. Section 473's Mandatory Provision Must Be Construed According to Its Terms and in Harmony With Applicable Discretionary Statutes and Provisions .............................................. 31

3. Section 473' s Legislative History Evidences The Legislature's Intent To Limit Mandatory Relief To Unopposed Dismissals .............................. 34

4. Appellants Misconstrue Justice Epstein's Dissent in Yeap, Which Addresses Questions Not at Issue Here ....................................................... 39

5. Appellants Availed Themselves of an Opportunity to Appear and Oppose Dismissal .......... 44

a. Not Only Did Appellants Oppose Dismissal, The Trial Court Gave Them an Additional Opportunity to Seek Discretionary Relief ........................................ 44

b. The Superior Court Properly Dismissed Appellants' Claims Pursuant to Dole Food's Ex Parte .............................................. 46

B. Appellants' Claim That "Most" Of Them Were Not Required To File An Amended Pleading Is Without Merit. ..................................................................................... 49

C. The Superior Court Did Not Abuse Its Discretion By Denying Plaintiffs' Motion To Set Aside The Cost Bond Order ............................................................................ 51

1. Plaintiffs' Contention That The Cost Bond Order Applies To Only Two Former Plaintiffs Is Belied By The Order Itself And The Factual Record Before This Court .......................................... 51

11

TABLE OF CONTENTS (cont'd)

2. The Superior Court Did Not Err in Finding That Appellants' Decision Not to Challenge the Cost Bond Order on Appeal Precluded Challenging it on Remand ................................................................. 54

3. Appellants Had Ample Opportunity To Submit Evidence Of Their Claimed Indigency ...................... 57

v. CONCLUSION ...................................................................................... 59

111

TABLE OF AUTHORITIES

Page(s)

CASES

Alshajie v. Lallande (2009) 171 Cal.App.4th 421 .................................................................. 59

Avila v. Chua (1997) 57 Cal.App.4th 860 .................................................................... 39

Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427 ............................................................ 23,58

Barratt American, Inc. v. Transcontinental Ins. Co. (2002) 102 Cal.App.4th 848 .................................................................. 55

Bernasconi Commercial Real Estate v. St. Joseph's Regional Healthcare System (1997) 57 Cal.App.4th 1078 .................................................................. 26

Billings v. Health Plan of America (1990) 225 Cal.App.3d 250 .......................................... ; .................. 28,35

Castro v. Sacramento County Fire Protection Dist. (1996) 47 Cal.App.4th 927 .................................................................... 26

English v. IKON Business Solutions, Inc. (2001) 94 Cal.AppAth 136 ...................................... 26,35,36,38,40,43

Gonzales v. R.J. Novick Constr. Co. (1978) 20 Ca1.3d 798 ............................................................. ~ ..... 6,54, 57

Gotschall v. Daley (2002) 96 Cal.App.4th 479 .................................................. 26,27,29,45

Graham v. Beers (1994) 30 Cal.App.4th 1656 .......................................... 26,32,33,37,38

Hossain v. Hossain (2007)157 Cal.App.4th 454 ............................................................. 41,44

Huhv. Wang (2007) 158 Cal.App.4th 1406 ................................................................ 23

In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92 ................................................................ 47,48

In reMarriage of Hock & Gordon-Hock (2000) 80 Cal.App.4th 1438 .................................................................. 39

IV

In re Matthew C.

TABLE OF AUTHORITIES (cont'd)

Page(s)

(1993) 6 Cal. 4th 386 ............................................................................. 56

Jerry-'s Shell v. Equilon Enterprises, LLC (2005) 134 Cal.AppAth 1058 .......................................................... 41,44

Leader v. Health Industries of America, Inc. (2001) 89 Cal.AppAth 603 ................ 3,27,28,29,31,32,33,34,36,45

Los Angeles Cty. Fire Dep't v. Workers' Compo Appeals Bd. (2010) 184 Cal.AppAth 1287 .......................................................... 54, 56

Matera v. McLeod (2006) 145 Cal.AppAth 44 .............................................................. 29,39

Medical Center Pharmacy V. Holder (5th Cir. 2011) 634 F.3d 830 ................................................................. 55

Niko v. Foreman 1(2006) 144 Cal.AppAth 344 ................................................................. 24

Pagarigan v. Aetna U~S. Healthcare of California, Inc. (2007) 158 Cal.AppAth 38 ........................................................ 23, 49, 51

Peltier v. McCloud River R.R. Co. (1995) 34 Cal.AppAth 1809 .......................... 3, 26, 32, 33, 35, 36, 37, 38

Prieto V. Loyola Marymount Unviversity (2005) 132 Cal.AppAth 290 .................................................................. 40

ReadyLink Healthcare v. Cotton . (2005) 126 Cal.AppAth 1006 ................................................................ 55

SJP Limited Partnership v. City of Los Angeles (2006) 136 Cal.AppAth 511 .................................................................. 45

Stoll v. Shuff (1994) 22 Cal.AppAth 22 ...................................................................... 24

Tustin Plaza Partnership v. Wehage (1994) 27 Cal.AppAth 1557 ................................................ 26,32,37,42

Vaccaro v. Kaiman (1998) 63 Cal.AppAth 761 .............................................................. 42,43

Whalen V. Smith (1912) 163 Cal. 360 ............................................................................... 54

Yao v. Superior Court (2002) 104 Cal.AppAth 327 .................................................................. 56

v

TABLE OF AUTHORITIES (co nt' d)

Page(s)

Yeap v. Leake (1997) 60 Cal.AppAth 591 .................................. 2,23,24,30,40, 41, 42

STATUTES

Civ. Proc. Code § 436 ................................................................................. 34

Civ. Proc. Code § 472b ............................................................................... 14

Civ. Proc. Code § 473 ................................................................................... 2

Civ. Proc. Code § 473(a) ............................................................................. 34

Civ. Proc. Code § 473(b) ............................................................................ 31

Civ. Proc. Code § 581(f)(2) ........................................................................ 48

Civ. Proc. Code §1030 .................................................................................. 6

RULES

CRC 8.124(B)(2) ........................................................................................... 8

OTHER AUTHORITIES

Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 1997) ~ 7:138.1-138.2 ........................................................................................ 20

VI

TABLE OF ABBREVIATIONS

The following citation abbreviations are used in Respondent's Brief:

AOB Citations to Appellants' Opening Brief appear as "(AOB#)." The number following the AOB abbreviation is the page number of the cited material.

JA Citations to documents included in the Joint Appendix submitted with Appellants' Opening Brief appear as "(#JA#)." The number preceding the JA abbreviation is the volume number of the relevant volume of the Joint Appendix. The number following the JA abbreviation is the page number of the cited material.

As indicated in the Joint Appendix, the entirety of the record in the prior appeal in this matter (Case No. B228876) is incorporated by reference therein pursuant to Rule of Court 8.124(b )(2).

RT Citations to the Reporters' Transcript of Proceedings filed with the Court on November 13,2012 appear as "(RT#:#)." The numbers following the RT abbreviation are the page and line numbers of the cited material.

Vll

I. INTRODUCTION AND SUMMARY OF ARGUMENT

The trial court correctly dismissed this case when appellants failed to

meet the deadline to amend their complaint set by longstanding California

law. Appellants offered no compelling justification for their failure, admit­

ting that they had made no attempt to determine the deadline. Instead, they

blamed the trial court and defendant Dole Food Company, Inc. for not hav­

ing reminded them of the requirements set by the Code of Civil Procedure.

Moreover, at the time Dole Food moved to dismiss it was more than

four months after this Court had remanded the case to permit appellants to

amend their complaint to include specific allegations of individual delayed

discovery, and more than two weeks after appellants' deadline had run.

Appellants conceded that they were unable to adequately amend their com­

plaint at that time, and needed many additional weeks. But five months

earlier, appellants had told this Court that, if it granted them leave to

amend, they could do so immediately: "[W]e've already had these discus­

sions with them [the named plaintiffs], Your Honors. I'm just waiting to,

hopefully, file an amended complaint." (Sept. 7, 2011 Recorded Oral Ar­

gument [end]; see also 5JAll18.) And when appellants finally submitted

an amended pleading-six weeks after Dole Food moved to dismiss-they

dropped from the case almost two-thirds of the previously named plaintiffs,

and the proposed pleading contained specific delayed discovery allegations

as to only eight. (5JA1226.)

1

Appellants' account of the trial court proceedings, and their argu-

ments on appeal, bear little relation to the actual record below. Appellants

have abandoned their principal argument in the trial court, effectively con-

ceding that they cannot meet the standard for discretionary relief under sec-

tion 473 of the Code of Civil Procedure. 1 Instead, appellants claim that the

mandatory provision of section 473 stripped the trial court of any discretion

to deny them leave to file an untimely amended complaint-an argument to

which appellants devoted two scant paragraphs below. Appellants' con-

struction of section 473 contradicts on-point case law and the provision's

legislative history, rests upon misstatements of other cases (including Jus-

tice Epstein's dissent in Yeap v. Leake (1997) 60 Cal.App.4th 591

("Yeap")), and would render section 473 's discretionary provisions super-

fluous. Not only is appellants' reading of the statute unfounded, but its

adoption would effectively repeal statutes that expressly vest trial courts

with broad discretion to dismiss actions for failure to timely amend and to

grant (or deny) plaintiffs leave to file untimely amended complaints.

As the Superior Court correctly recognized, California courts that

have addressed the issue have consistently held that section 473' s mandato-

ry provision applies solely to dismissals that are unopposed, a conclusion

1 Unless expressly stated, all statutory references herein are to the Code of Civil Procedure.

2

that finds ample support-indeed, is compelled by-the statute's legislative

history, its purpose, and fundamental principles of statutory interpretation.

(See Peltier v. McCloud River R.R. Co. (1995) 34 Cal.App.4th 1809, 1821-

1822 ("Peltier"); Leader v. Health Industries of America, Inc. (2001) 89

Cal.App.4th 603 ("Leader").) Appellants urge this Court to reject that rule,

and to conclude, instead; that relief under section 473 is mandated any time

there has been a "failure to file a charging pleading," and that the mandato­

ry provision required the Superior Court to not only set aside its order of

dismissal, but also to permit appellants to file an untimely amended plead­

ing. (AOBI8-28.) But section 473's mandatory provision was intended to

provide plaintiffs an opportunity to oppose dismissal where-due to the

mistake or inadvertence of counsel-· they were deprived of that opportuni­

ty. The mandatory provision goes no further. Thus, where plaintiffs have

already been given an opportunity to present to the trial court their "reasons

for delay" in filing an amended complaint, and the trial court has evaluated

those reasons in determining how to exercise its discretion to dismiss plain­

tiffs' claims or permit the filing of a proposed untimely amended pleading,

the mandatory provision of section 473 serves no purpose and has no appli­

cation. (See Leader, supra, 89 Cal.App.4th at p. 620.)

Here, plaintiffs' counsel not only appeared and opposed Dole Food's

request for dismissal-both orally and in writing-but plaintiffs were also

provided an additional opportunity to seek discretionary relief from dismis-

3

sal under section 473 and discretionary leave to file an untimely Second

Amended Complaint. Accordingly, the Superior Court did not err in find­

ing that section 473's mandatory provision did not apply. And because ap­

pellants do not argue in their opening brief that the trial court abused its

discretion in denying them relief under section 473's discretionary provi­

sions, any such contention has been waived.

In addition, appellants make a number of new arguments for the first

time on appeal. Among other things, appellants assert for the first time a

procedural objection to the ex parte procedure the trial court followed, and

claim that they did not need to appeal the trial court's cost bond order in the

previous appeal because it supposedly applied only to the two plaintiffs·

whose claims the trial court found not to be time-barred in the 2010 pro­

ceedings. These arguments are untimely and waived. And, in any event,

they have no merit.

The ex parte procedure the trial court followed is expressly author­

ized by statute, and appellants in fact appeared and opposed Dole Food's

application both in writing and orally. And when, for good measure, the

trial court then afforded appellants more than six additional weeks to pre­

pare a motion to set aside the dismissal, appellants put forth exactly the

same cursory and unconvincing "excuse" for their failure to timely file their

amended pleading as they had at the ex parte hearing: that neither the trial

court nor Dole Food reminded them of the requirements in the Code of Civ-

4

il Procedure. As before, it was apparent appellants had made no effort to

determine whether any deadline applied on remand. Because appellants'

counsel "routinely practice[s] in federal courts," he had simply assumed, he

said, "thatthe parties would meet and confer to set a schedule subject to the

court's approval." (5JA1212-1214l The ex parte was both proper and

non-prejudicial.

Similarly, appellants' claim that the Superior Court abused its dis-

cretion in denying their motion for relief from their cost bond obligations

warrants little consideration. Appellants' new, disingenuous claim that the

Superior Court's cost bond order applied to only two former plaintiffs is not

only waived, but is belied by the plain language of the order itself and the

record. The simple fact that all appellants sought relief from that order in

the trial court confirms this.

Recognizing that they all had been ordered to post a cost bond as a

precondition to pursuing their claims against Dole Food, all appellants

asked the Superior Court to set aside its unappealed order based on evi-

2 At no time during the four months after this Court ordered the trial court to afford appellants another opportunity to adequately allege delayed discovery did anyone representing appellants ever initiate any "meet and confer" with Dole Food regarding the filing of an amended pleading. (8JA1879.) Appellants apparently expected Dole Food to initiate any such "meet and confer" to advise appellants of their need to discharge their obligations under the Code of Civil Procedure.

5

dence of claimed indigence-evidence that they had failed to submit either

in opposition to the cost bond motion or after entry ofthe cost bond order.

As the court correctly determined, however,· the September 14, 2010 judg­

ment expressly incorporated the cost bond order, and to the extent appel­

lants wished to challenge it-on any basis-they had been required to do

so, at the latest, in their appeal from that judgment. Because they elected

not to challenge the cost bond order on appeal, appellants are bound by it.

(8JA2103; see Gonzales v. R.J. Novick Constr. Co. (1978) 20 Ca1.3d 798,

805, n. 6 ["an appeal from a distinct and independent part of a judgment

does not bring up the other parts for review in the appellate court, and [] a

reversal of the part appealed from does not affect the portions not depend­

ent thereon" which "will stand as final adjudications"] ("Gonzalez").) The

Superior Court did not abuse its discretion in denying appellants' belated

request to revisit its two-year-old cost bond order on remand.

Accordingly, the Superior Court's judgment of dismissal should be

affirmed in all respects.

II. FACTUAL AND PROCEDURAL HISTORY

Appellants are 65 of the 185 Colombian plaintiffs who previously

appealed from a September 14, 2010 Superior Court judgment in favor of

respondent Dole Food dismissing their claims with prejudice on the basis of

orders sustaining demurrers to plaintiffs' First Amended Complaint and re-

6

quiring "each plaintiff in this action" to post a cost bond, pursuant to Code

of Civil Procedure section 1030, as a prerequisite to pursuing their claims.

(4JA788-789.) In their initial appeal plaintiffs challenged only that portion

of the Superior Court's judgment sustaining Dole Food's demurrers without

leave to amend as to 183 ofthe 185 plaintiffs' claims. On October 27,

2011, this Court issued an opinion "affirm[ing] the order sustaining the de­

murrer, but revers[ing] the order's denial ofleave to amend," and remand­

ing this matter "to permit" those 183 "plaintiffs to amend the First Amend­

ed Complaint to remedy the defects identified in [the Court's] opinioq.."

(5JAlI05, 1131.) Plaintiffs failed to file an amended pleading within the

30-day period proscribed by section 472b following remand. The trial

court dismissed the case, but afforded plaintiffs six weeks to seek discre­

tionary relief from dismissal, pursuant to section 473, and to submit a pro­

posed Second Amended Complaint, prior to entry of judgment. On April 2,

2012, fewer than half of the 185 plaintiffs who were party to the initial ap­

peal in this matter filed a motion for relief under section 473, as well as a

separate motion to set aside their obligation to post a cost bond pursuant to

the Superior Court's July 7, 2010 order. Those 65 plaintiffs now appeal

from the judgment entered in favor of Dole Food following the Superior

Court's denial of both motions.

7

A. In September 2010, the Superior Court Dismisses the Claims of 185 Plaintiffs and Enters Judgment for Dole Food by Sustaining the Demurrers and Granting Its Cost Bond Motion

On April 28, 2009, plaintiffs' counsel initiated this action, then-

styled Juana Perez IA [or "Jane Doe lA"] v. Dole Food Company, Inc., on

behalf of 73 Colombian residents, alleging that Dole Food or its former Co-

lombian subsidiary, Tecbaco, knowingly financed and aided and abetted

violent acts, including murders, committed by the paramilitary group, Au-

todefensas Unidas de Colombia ("AUC"). (lJAI-68.) Plaintiffs' counsel

filed a First Amended Complaint ("F AC") on April 9, 2010 on behalf of

185 plaintiffs. (lJA69-227.i

On May 17, 2010, Dole Food demurred to plaintiffs' F AC pursuant

to section 430.10, subdivisions (d), (e) and (t), and section 430.50, subdivi-

sion (a) (hereinafter "Demurrers"). (lJA228-55.) Shortly thereafter, on

May 27,2010, Dole Food filed a motion for cost bond pursuant to section

1030 to secure its estimated recoverable litigation costs in the event it pre-

vailed at trial (hereinafter "Cost Bond Motion"). (2JA256-74.)

Dole Food's Cost Bond Motion was based on the statutory grounds

set forth in section 1030, namely that all the plaintiffs reside outside of Cal-

3 The complete factual and procedural history that preceded the Superior Court's September 14,2010 judgment is set forth in the briefing submit­ted by Dole Food in the initial appeal in this matter, which Dole Food incorporates by reference herein. (See 4JA916-928.)

8

ifornia, and there is a "reasonable possibility" that Dole Food will prevail

against each plaintiff. In support of its motion, Dole Food submitted, inter

alia, five declarations under penalty of perjury from current or former Tec­

baco employees, all of whom were directly involved with Tecbaco's day­

to-day operations, including managing security, monitoring all company

expenditures, and managing relations with banana workers and unions in

the Magdalena region during the time period at issue in the Amended Com­

plaint. (2JA275-415.)

Among other things, these declarations describe in detail how Tec­

baco was a victim-not a supporter-of guerilla and paramilitary groups in

Colombia who vandalized and burned Tecbaco property, forced Tecbaco to

abandon operations at certain farms, and threatened, kidnapped and mur­

dered Tecbaco employees, including, in 1992, Peter Kessler, then Tecba­

co's head of production. (See 2JA373-377; see also 2JA406, 409.) The

declarations state unequivocally that, in spite of these threats and acts of

violence, neither Dole Food nor Tecbaco gave in to demands for payment

from the AVC, or any other guerilla or paramilitary group. (2JA376-377;

see also 2JA346-347, 350,411 [stating that Tecbaco "suffered for refusing

to pay the organizations of guerrillas and paramilitaries in the region of

Magdalena. . .. [I]t is not right that after suffering all of the above, we are

now sued."].)

9

On July 7, 20 I 0, the Superior Court, the Honorable Ann I. Jones,

sustained the Demurrers on three separate and independent grounds.

(3JA 734-756.) First, the court found that the claims of all but two plain­

tiffs-Are1is Margarita Hernandez Rivera ("Hernandez") and Julio Nestor

Medina ("Medina")-were facially time-barred by the applicable two-year

statute of limitations found in section 335.1, and that plaintiffs had failed to

meet their burden to justify equitable tolling. (3JA736-744.) Second, the

court concluded that plaintiffs had failed to allege facts sufficient to support

a finding of agency or alter ego liability, noting that the FAC "simply con­

cludes that Dole Food is liable for alleged wrongful conduct on the part of

Tecbaco and its alleged employees, and purports to 'define' 'Dole' collec­

tively as Dole Food or its former subsidiary Tecbaco .... " (3JA745,747.)

Third, the court sustained Dole Food's Demurrers on the basis of plaintiffs'

failure to join Tecbaco, a necessary and indispensable party. "Because

Tecbaco is alleged to be a primary participant in the alleged wrongdoing"

and "because of its conduct, ... may be the only party liable," the court

concluded that Tecbaco's "failure to be added [wa]s fatal to the instant ac­

tion." (3JA751.)

The trial court sustained Dole Food's Demurrers with prejudice as to

all 183 plaintiffs who had alleged time-barred claims. (3JA755.) With re­

spect to the remaining two plaintiffs, Hernandez and Medina, the trial court

10

granted leave to amend, and ordered them to file amended complaints with-

in 45 days. (3JA755.)

Also on July 7,2010, the Superior Court granted Dole Food's Cost

Bond Motion, finding it "undisputed" that all of the plaintiffs reside outside

of California, and concluding that Dole Food had "met its burden" to show

"a 'reasonable possibility' that [it would] prevail at trial":

Dole has presented competent evidence that overwhelmingly refutes plaintiffs' primary claim, i.e., that Dole and its Col[o]mbian subsidiary, Tecbaco, conspired with, and made payments to, the AUC in exchange for violent security ser­vices. (FAC, ~ 343). Dole's evidence, in fact, establishes that Tecbaco never made any payments to the AUC for "security services."

(3JA761.) The court ordered "each plaintiffin this action" to post a cost

bond in the amount of $16,926 within 30 days ("Cost Bond Order").

(3JA767.)

Plaintiffs Hernandez and Medina failed to file an amended pleading,

and no plaintiff posted the requisite cost bond. (3JA755.) Accordingly, on

September 10,2010, Dole Food gave plaintiffs the required statutory notice

of its intent to appear ex parte to seek "dismissal with prejudice" of all 185

plaintiffs' claims and entry of judgment in its favor "pursuant to Code of

Civil Procedure sections 581(f)(1)-(2) and 1030(d)" on the basis of the trial

court's "July 7, 2010 rulings on Dole Food's demurrers and cost bond mo-

tion .... " (3JA784.) Plaintiffs did not appear or otherwise oppose Dole

Food's ex parte application.

11

On September 14,2010, the Superior Court dismissed plaintiffs'

FAC with prejudice pursuant to section 580(f), and section 1030(d), and

entered judgment in Dole Food's favor (4JA786-834 (hereinafter "Final

Judgment")). The Final Judgment sets forth the specific grounds for dis-

missal and entry of judgment, and attaches and expressly incorporates by

reference the July 7, 2010 rulings on the Demurrers and Cost Bond Motion.

(4JA788-789.)

B. This Court Affirms the Superior Court's Order Sustaining the Demurrers, but Reverses the Denial-of Leave to Amend

All 185 plaintiffs appealed from the Final Judgment. (4JA845-846;

4JA849-853.)4 Plaintiffs, however, appealed only that part of the judgment

incorporating the trial court's ruling on the Demurrers. (4JA847-898.) As

Dole Food noted in its respondent's brief-and plaintiffs did not dispute-

plaintiffs elected "not to challenge the trial court's ruling on Dole Food's

Cost Bond Motion," despite the fact that it was part of the Final Judgment.

(4JA930, fn. 8; see also 4JA966-969.) Accordingly, as this Court

acknowledged, the Cost Bond Order was "not at issue" on appeal.

(5JAI124.)

4 Plaintiffs' counsel later represented to this Court that Hernandez and Medina "elected to forego their appeal" sometime after plaintiffs' open­ing brief was submitted. (4JA966.)

12

On October 27,2011, this Court issued an unpublished opinion af-

finning the trial court's "order sustaining the demurrer, but revers[ing] the

order's denial ofleave to amend." (SJA110S.)

With respect to the Superior Court's ruling sustaining Dole Food's

Demurrers on statute of limitations grounds, the Court concluded that plain-

tiffs should have been "afforded the opportunity to make specific factual

allegations in support of delayed discovery" and because, "[a]t oral argu-

ment, plaintiffs' counsel represented that he could make such allegations by

further amendment," held the Superior Court abused its discretion in deny-

ing leave to amend. (SJAll18.)5

As to plaintiffs' failure to adequately allege facts that would support

a finding of alter ego or agency liability, the Court highlighted a "funda-

mental problem" in the F AC:

By using a collective tenn for both Dole and Tecbaco-and by failing to differentiate between agency and alter ego liabil­ity-plaintiffs created an inherent ambiguity running throughout its factual allegations and rendering it all but im­possible to distinguish the wrongful acts attributable to Dole

5 Specifically, plaintiffs' counsel, Mr. Collingsworth, stated to this Court during the September 7, 2011 recorded oral argument "I'm representing to your Honors that I can cure what even Judge Jones said were the gen­eralities about the statute of limitations. Every one of the 183 plaintiffs will have a detailed allegation about what they knew and when they knew it, and why they didn't know sooner, to satisfy anyone's pleading standard. "

13

directly from those in which liability depends on proof of an agency or alter ego relationship.

(5JAl126, 1127.) Noting that plaintiffs "represent[ed] that they can amend

the pleading to correct these defects," the Court concluded that plaintiffs

were entitled to an opportunity to do so. (5JAl127.)

Finally, as to the Superior Court's finding that Tecbaco was a neces-

sary and indispensable party, this Court found that, "once again," the "prob-

lem with the FAC is that the convention of pleading 'DOLE' collectively to

include Tecbaco renders their allegations so ambiguous as to preclude an

assessment of the key question of whether Dole and Tecbaco are joint tort-

feasors or whether Tecbaco is the primary participant." (5JAl130-1131.)

The Court remanded "to permit plaintiffs to amend [the FAC] to

remedy the defects identified in [its] opinion." (5JAl131.) The clerk of

this Court mailed notice of the issuance of the remittitur two months later,

on December 27,2011. (5JAl132.)

C. The Remaining 183 Plaintiffs Fail to Timely File a Second Amended Complaint Following Remand and the Superior Court . Dismisses Their Claims, but Provides an Opportunity to Seek Discretionary Relief Pursuant to Section 473

No plaintiff filed an amended pleading within the 30-day time period

proscribed by section 472b. (See Civ. Proc. Code, § 472b ["When an order

sustaining a demurrer without leave to amend is reversed or otherwise re-

manded 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 no-

14

tice of the issuance of the remittitur."]) Accordingly, more than three

months after this Court issued its opinion, on February 14,2012, Dole Food

gave plaintiffs' counsel the required statutory notice of its intent to appear

ex parte to seek "dismissal and entry of judgment" in light of [p ]laintiffs'

failure to timely file an amended complaint." (5JAI189.)

Dole Food's request for dismissal was heard by the Superior Court,

the Honorable Jane L. Johnson, on February 15,2012. At the outset of the

hearing, Dole Food's counsel, at the request of plaintiffs' counsel, provided

the Superior Court with a copy of a letter brief setting forth plaintiffs' "ob­

ject[ions] to [Dole Food's] motion" to dismiss. (5JA1219-1220;

RT 1 0 1: 17 :23.) In addition to reviewing plaintiffs' letter brief, the Superior

Court made clear that it wanted "to hear from [plaintiffs]," to give them an

"opportunity" to oppose Dole Food's dismissal motion. (RT304: 10-14,

306:9-14,307:8-308:2.) Accordingly, the trial court permitted plaintiffs'

counsel, Terry Collingsworth of the law firm of Conrad & Scherer, LLP, to

appear telephonically, at his request. (5JA1219-1220; RT301:17-302:6,

308:1-28.)

During oral argument, Mr. Collingsworth attempted to excuse plain­

tiffs' failure to timely file an amended pleading solely on the ground that he

and plaintiffs' local counsel were unaware of section 472b's statutory dead­

line, stating they "were surprised" to "learn that there's a provision" that

"required [plaintiffs] to amend within 30 days." (RT311:17-22.) He made

15

clear that plaintiffs were in no position to file any amended pleading at that

time, stating, inter alia, that plaintiffs' counsel needed to "reinterview hun­

dreds of people in order to be able to add the specific tolling provisions to

each plaintiff who needs to amend on that score." (RT312:1-4; 316:18-22

[stating that it was "taking some time" to prepare an amended pleading be­

cause "we were given very specific directions by the court of appeals [sic]

about what we had to add"]; see also 5JA1219-1220 [proposing that Dole

Food "agree to provide [plaintiffs] until on or before April 1, 2012 to file

the [SAC]" because plaintiffs "will have completed all interviews in that

time frame"].)

Plaintiffs' counsel-arguing that plaintiffs could make a showing

that their failure to timely file an amended pleading was "based on inad­

vertence mistake or excusable neglect" of counsel "sufficient" to satisfy

section 473' s discretionary provisions-requested that the Superior Court,

rather than dismiss plaintiffs' claims, grant them an additional six weeks,

until April 1,2012, in which to file a Second Amended Complaint.

(RT312:9-14, 313:2-8,317:10-24.)

Dole Food's counsel urged the Superior Court to dismiss plaintiffs'

claims on the basis of plaintiffs' failure to comply with the straightforward

requirement of section 472b, and their apparent failure to take any action to

prepare an amended pleading following remand. (RT314:7-315:6, 304:15-

20 ["They've had many months to prepare an amended pleading. From all

16

indications, they don't have one ready. From all indications they haven't

evert been working on one."]) Dole Food's counsel expressed surprise as to

plaintiffs' counsel's stated need for additional time to conduct "interviews"

with plaintiffs in order to amend-stating that this Court "granted leave to

amend based on representations" that plaintiffs "in fact, could amend," and

"the notion that here, four months out," they "don't have sufficient specif­

ics to file an amended pleading is rather surprising"-and informed the Su­

perior Court that California law required plaintiffs to "say more than simp­

ly, 'we didn't know the law," to warrant discretionary relief from dismissal

under section 473. (RT313:28-315:6, 304:21-305:25 [" ... the case law is

very clear that simply not knowing and not having made any attempt to as­

certain the law is not a valid reason to set aside ajudgment"].)

After considering the arguments of counsel, the Superior Court dis­

missed plaintiffs' claims, telling plaintiffs' counsel that "1 realize you're

out of state, but you do have local counsel. And if you practice all around

the country, you know that the local statutes and rules apply, and you ought

to be familiar with them." (RT315:21-316:6.) At the same time, however,

the Superior Court set a briefing schedule and hearing date to provide plain­

tiffs an opportunity to seek discretionary relief pursuant to section 473-to

"show [the Superior Court] why" plaintiffs had failed to timely file-and,

as part of that," to prepare and file a proposed Second Amended Com­

plaint." (RT315:21-316:6, 317:10-24; 317:25-26; see also 5JA1192-

17

1199.) The Superior Court ordered plaintiffs, specifically, to show what

actions they had taken following this Court's October 27,2011 decision to

prepare an amended pleading-"how soon [plaintiffs] started doing what­

ever [they] need[ed] to do to get that amended pleading filed." (5JAI192-

1199; see also RT317:4--6, 317:25-26.) And plaintiffs' counsel represented

to the Superior Court that plaintiffs would submit attorney declarations de­

tailing "all [of the] history of what we've been doing since the court of ap­

peal's decision," because "that, I think, would give the [Superior Court]

some comfort that we're not simply sitting back and waiting for something

to happen." (RT317:10-24.)

The trial court gave plaintiffs the amount of time they requested­

six weeks-to file a motion for relief from dismissal and to submit a pro­

posed Second Amended Complaint. (5JAI193.)

D. Sixty-Five Plaintiffs File a Motion for Relief From Dismissal

On April 2, 2012,65 plaintiffs-barely one-third of the plaintiffs

who were parties to the initial appeal in this matter (5JAI222)-filed a mo­

tion for relief from dismissal ("Motion to Set Aside Dismissal") based pri­

marily-indeed, almost exclusively-on their contention that "discretion­

ary relief under section 4 73 [was] appropriate under the circumstances."

(5JAI200-1209.) In two brief paragraphs at the end of their motion plain­

tiffs asserted, "in the alternative," that they were "entitled to mandatory re-

lief." (5JAI200-1209.)

18

As an exhibit to their motion, plaintiffs' counsel submitted a pro­

posed Second Amended Complaint on behalf of those 65 plaintiffs. The

proposed pleading attempted to include "individualized allegations regard­

ing delayed discovery" for only eight plaintiffs. (5JAI226.)

Despite plaintiffs' counsel's representation that the motion would be

accompanied by attorney declarations setting forth "all [of the] history of

what [ they] been doing since the court of appeal's decision" to prepare an

amended pleading (RT317:4-24), plaintiffs submitted two attorney declara­

tions in support of their motion-from Mr. Collingsworth and plaintiffs'

local counsel, David Grunwald-that were completely silent on that issue.

Those declarations identified no action that had been taken by plaintiffs fol­

lowing this Court's October 27,2011 decision and, instead, simply repeated

what plaintiffs' counsel had already informed the Superior Court at the

dismissal hearing-that Mr. Collingsworth and Mr. Grunwald were "una­

ware of the deadline" imposed by section 472b and had made no effort to

ascertain it. (5JAI211-1214.) Specifically, Mr. Collingsworth averred that

because he "routinely practice[s] in federal courts," he had simply assumed,

"that the parties would meet and confer to set a schedule subject to the

19

court's approval." (5JA1212-1214l Similarly, Mr. Grunwald declared

that he was "unaware of the deadline" because he had not "in [his] prior

practice" encountered "an appeal of a demurrer that was granted and then

reversed on appeal." (5JA1211.)

But this has been the law in California for decades, and its require-

ments are clear. For this reason, California's leading civil procedure prac-

tice treatise, The Rutter Group Guide, includes a highlighted "practice

pointer," cautioning counsel that "[y]ou cannot wait for the trial court to

take action. Your time to amend runs from the clerk's mailing the notice of

issuance of remittitur .... " (Weil & Brown, Cal. Practice Guide: Civil Pro-

cedure Before Trial (The Rutter Group 1997) ~ 7:138.1-138.2.)

E. Sixty-Five Plaintiffs File a Motion for Relief From the Cost Bond Order

At the February 15,2012 dismissal hearing, Dole Food's counsel in-

formed the trial court that each plaintiff was required by the Cost Bond Or-

der to post security in order to proceed with their claims. (See RT305:26-

306:8 ["And I would also note, your Honor, that Judge Jones entered a cost

bond order against the plaintiffs, ordering each plaintiff, as a precondition

to continuing the lawsuit, to file a cost bond. . .. [w ]ithout doing that, your

6 No attorney representing plaintiffs made any effort to meet and confer with counsel for Dole Food regarding the filing of an amended pleading. (8JA1879.)

20

Honor, there would be no way for them to continue with the case or amend

the pleading."].) In response, plaintiffs' counsel stated that "[they] were

working on, as part of our individual interviews of the plaintiffs, establish-

ing that all of them would meet the requirement of being paupers that

would excuse their posting ofa bond." (RT313:9-15.) The Superior Court

ordered plaintiffs to be "prepared to address" the Cost Bond Order at the

scheduled hearing on plaintiffs' Motion to Set Aside Dismissal. (RT318:1-

12.)

On Apri12, 2012, plaintiffs filed a motion for relief from the Cost

Bond Order pursuant to section 1030 ("Motion to Set Aside Cost Bond Or-

der") on the grounds that the "prior imposition" of a cost bond requirement

was "inappropriate" in light of plaintiffs , indigence. (6JA1323, 1333.)

F. The Superior Court Exercises Its Discretion to Deny Plaintiffs' Motions to Set Aside the Dismissal and Cost Bond Order

Following a full hearing on the merits (RT601-652), on May 31,

2012, the Superior Court denied plaintiffs' Motion to Set Aside Dismissal,

concluding that plaintiffs were "not entitled to discretionary relief' because,

inter alia, plaintiffs' counsel's failure to determine the statutory deadline

within which to file an amended pleading following remand was inexcusa-

ble. The Superior Court also rejected plaintiffs' "alternative" argument that

relief was mandatory, finding that section473's mandatory provision was

"not applicable" because plaintiffs "had an opportunity to appear and op-

21

pose" dismissal of their claims, having "appeared at the ex parte hearing

and filed a written letter opposition to [Dole Food's] ex parte motion."

(8JA1989-1997.)

That same day, the trial court denied plaintiffs Motion to Set Aside

Cost Bond Order. (8JA1983-1988.) Finding that the order was "clearly

part" of the September 14,2010 Final Judgment, the Superior Court con­

cluded that "because plaintiffs did not challenge on appeal that portion of

the judgment incorporating the cost bond order, they have 'waive[ d] [their]

right to challenge [it] on remand.'" (8JA1985, 1987.)

On July 2,2012, the trial court entered judgment in favor of Dole

Food as to all 183 plaintiffs who were party to the initial appeal. (8JAat

1998-2011.) The 65 plaintiffs who moved to set aside the Cost Bond Order

and the February 15,2012 dismissal appealed from that judgment.

(8JA2115-2116; see also AOB at Attachment 2.)

22

III. STANDARDS OF REVIEW

A trial court's decision to deny relief under the discretionary provi­

sions of section 473 "will not be disturbed on appeal unless there has been a

clear abuse of discretion. '" (Yeap, supra, 60 Cal.App.4th at p. 598.) Thus,

in reviewing the evidence in support of a motion for discretionary reliefun­

der section 473, the appellate court is to '''extend all legitimate and reason­

able inferences to uphold the judgment.'" (Ibid.) Similarly, "[w]here an

appeal involves factual determinations that affect [a party's] entitlement to

mandatory relief" under section 473, the appellate court reviews the trial

court's decision granting or denying such relief for abuse of discretion.

(Huh v. Wang (2007) 158 Cal.App.4th 1406, 1418 ("Huh"); see also Pa­

garigan v. Aetna U.S. Healthcare of California, Inc. (2007) 158

Cal.App.4th 38,45-46 ("Pagarigan").) Where an appeal turns on the

statutory interpretation of section 473' s mandatory provision, the trial

court's construction of that provision is reviewed de novo. (Huh, supra,

158 Cal.App.4th at p. 1418.)

A trial court's decision to grant or deny a motion for relief from an

order requiring a party to post a cost bond pursuant to section 1030 is re­

viewed for abuse of discretion. (Baltayan v. Estate ofGetemyan (2001) 90

Cal.App.4th 1427, 1434 ("Baltayan").) It is "generally accepted that the

appropriate test of abuse of discretion is whether or not the trial court ex-

23

ceeded the bounds of reason, all of the circumstances before it being con-

sidered." (Yeap, supra, 60 Ca1.AppAth at p. 599.)

IV. DISCUSSION

A. The Superior Court Correctly Found Section 473's Mandatory Provision Inapplicable To The Circumstances Before It

Appellants do not challenge the Superior Court's denial of their re-

quest for discretionary relief under section 473-the primary, almost exclu-

sive focus of their Motion to Set Aside Dismissal-but, instead, contend

solely that the Superior Court erred in finding the mandatory provision of

that statute inapplicable.7 Relying entirely on the supposed "view" of Jus-

tice Epstein-as purportedly reflected in dicta in his dissenting opinion in

Yeap, supra, 60 Ca1.AppAth 591-appellants contend that section 473's

mandatory provision applies to any dismissal that is the result of a "failure

to file a charging pleading." (See AOBI8-28.) And, because this action

was dismissed following appellants' failure to timely file an amended com-

7 While plaintiffs cursorily assert in a footnote that they "believe[]" the Superior Court erred in denying discretionary relief, they have expressly chosen to confine their arguments to application of the "mandatory pro­vision of section 473." (AOBI6-17, fn. 9.) Because plaintiffs have made no "serious effort to raise the issue," they have waived any claim that the Superior Court abused its discretion by denying discretionary relief. (Stoll v. Shuff(1994) 22 Ca1.AppAth 22,25, fn. 1 [holding that any error had been waived as to issue that was not discussed in the body of defendants' opening brief, but mentioned only in a footnote]; see also Niko v. Foreman (2006) 144 Ca1.AppAth 344,368 ["One cannot simply say the court erred, and leave it up to the appellate court to figure out why."D

24

plaint pursuant to section472b, appellants contend the Superior Court was

required by section 473 not only to set aside its dismissal, but also to per­

mit appellants to file a belated Second Amended Complaint. Appellants are

wrong.

As discussed in detail below, Justice Epstein's Yeap dissent reflects

only the notion that mandatory relief is not available in the absence of an

actual dismissal. While this view has indeed been endorsed by other

courts, it is not inconsistent with (indeed, it does not speak to) the only rule

at issue here: that application of section 473's mandatory provision is lim­

ited to those circumstances in which plaintiffs, through the mistake or inad­

vertence of counsel, have been deprived of an opportunity to oppose dis­

missal. And, contrary to the impression appellants attempt to create by

misleading citation to inapposite authority, there is no conflict in the case

law as to this sound rule; Regardless of whether or not a dismissal is the

result of a failure to timely file an amended pleading, California courts

have-consistent with the statute's legislative history and basic principles

of statutory interpretation-construed section 473' s mandatory provision to

be inapplicable where, as here, plaintiffs appeared and actually opposed

dismissal of their claims pursuant to a discretionary dismissal statute.

25

1. California Law Is Clear That the Mandatory Provision Applies Only to Unopposed Dismissals-the Only Dismis­sals "Akin" to Defaults

California courts have consistently, since the statute's amendment in

1992, interpreted section 473's mandatory provision as applicable "only

[to] those dismissals which occur through failure to oppose a dismissal mo-

tion-the only dismissals which are procedurally equivalent to a default."

(Peltier, supra, 34 Cal.AppAth at p.1817, emphases added; see also, e.g.,

Graham v. Beers (1994) 30 Cal.AppAth 1656, 1661 ("Graham"); Tustin

Plaza Partnership v. Wehage (1994) 27 Cal.AppAth 1557, 1565-1566 [in

dicta] ("Tustin Plaza"); Castro v. Sacramento County Fire Protection Dist.

(1996) 47 Cal.AppAth 927,933; Bernasconi Commercial Real Estate v. St.

Joseph's Regional Healthcare System.(1997) 57 Cal.AppAth 1078,1082;

English v. IKON Business Solutions, Inc. (2001) 94 Cal.AppAth 136, 145-

146 ("English"); Gotschall v. Daley (2002) 96 Cal.AppAth 479,483-484

("Gotschall"). )

In Gotschall, for example, the court of appeal reversed a trial court

order granting relief from dismissal under section 473's mandatory provi-

sion. Stating the general rule that the "mandatory provision only applies

narrowly to defaults and dismissals 'akin' to defaults," the Gotschall court

concluded that it had "no application" to the case before it, where plaintiffs

"had an opportunity to contest the dismissal," and plaintiff s "[ c ]ounsel did

not fail to oppose" it. (Gotschall, supra, 96 CaLAppAth at pp. 482-485

26

[stating that the mandatory provision "applies only to those situations in

which the mistake causes a failure to oppose a dismissal motion, such as

failing to appear for the hearing on the motion"].) As the Gotschall court

explained, a "[l]ack of success in contesting a motion [to dismiss] does not

equate to plaintiff losing his day in court. 'Day in court' does not guarantee

a trial on the merits, but, rather, is interpreted to confer an opportunity to

present evidence and argument in opposition to a motion to dismiss."

(Ibid.)

The Second Appellate District reached a similar conclusion in Lead­

er, supra, 89 Cal.App.4th 603, which-contrary to appellants' unavailing

attempts to distinguish it-is on point. The plaintiffs in Leader failed to

timely file an amended pleading following a trial court order sustaining the

defendant's demurrer to their third amended complaint with leave to

amend. More than a month after the expiration of the time period within

which to amend, plaintiffs' counsel; "'just dropped [a belated proposed

amended pleading], on the court" at a status conference. (Id at p. 608.)

The trial court instructed plaintiffs' counsel to bring a proper motion for

leave to file the untimely amended complaint.

Thereafter, plaintiffs filed a motion pursuant to section 473, request­

ing that plaintiffs' proposed pleading be filed, and that they "be relieved of

'what, if any default or dismissal may have been entered in this matter. '"

(Ibid.) Defendants opposed plaintiffs' motion and filed a separate motion

27

to strike the proposed amended complaint and for dismissal. (ld. at p. 610.)

The trial court granted defendants' motion to strike and dismissed plain-

tiffs' claims pursuant to section 581(f)(2). (ld. at pp. 610-611.) Plaintiffs

appealed, asserting that they were entitled to mandatory relief. (ld. at p.

614.)

The Leader court disagreed, finding section 473' s mandatory provi-

sion inapplicable to "discretionary dismissals based on the failure to file an

amended complaint after a demurrer has been sustained with leave to

amend, at least where, as here, the dismissal was entered after a hearing on

noticed motions which required the court to evaluate the reasons for delay

in determining how to exercise its discretion." (Id. at p. 620.) Concluding

that because the purpose of the mandatory provision was simply to ensure

that plaintiffs had an "opportunity to appear and present evidence and ar-

gument in opposition" to dismissal,8 and there was no "question that plain-

tiffs availed themselves of that opportunity," the Leader court held that

plaintiffs ''were not entitled to mandatory relief." (ld. at p. 621.)

8 The Leader court expressly rejected the argument appellants advance here-that "based on the facts of' Billings v. Health Plan of America, (1990) 225 Cal.App.3d 250, 256-257 ("Billings"), discussed in more detail below-plaintiffs' failure to file a timely amended pleading was '''precisely' the type of situation to which the mandatory relief provision was intended to apply. (Leader, supra, 89 Cal.App.4th at p. 617.)

28

The Leader court's holding was not, as appellants' suggest, limited

to "deciding whether the plaintiffs' preemptive use" of section 473 to "pre-

clude entry of dismissal" was improper. (AOB32-33.) The court expressly

based its holding on its conclusion "that mandatory relief under [section

473] was simply unavailable to plaintiffs, regardless of whether the motion

was brought before or after entry of dismissal." (Leader, supra, 89

Cal.App.4th at p. 616, italics added.)9

Nor does appellants' newfound (and thus waived) argument that

their claims were not subject to dismissal under section 581(f)(2)-a spe-

cious contention addressed in Section IV.A.5, below-provide any rri.ean-

ingful basis for distinguishing Leader. Whether "a different deadline for

filing [an amended pleading] applie[d]" here (AOB34), is irrelevant to ap-

plication of the Leader court's holding that the mandatory provision has no

application where plaintiffs miss the applicable deadline for filing an

amended pleading, and the trial court, in an exercise of its discretion, and

over the opposition of plaintiffs' counsel, dismisses plaintiffs' claims.

9 Other courts have recognized Leader's holding as to the inapplicability of section 473' s mandatory provision to discretionary dismissals follow­ing a failure to timely file an amended complaint. (See, e.g., Matera v. McLeod (2006) 145 Cal.App.4th 44,64-65 ("Matera"); Gotschall, 96 Cal.App.4th at p. 483.)

29

In a final, fruitless effort to convince this Court that Leader "pro­

vides no guidance" on the issues before it, appellants assert that the Leader

court "fail[ed] to consider" Justice Epstein's dissenting opinion in Yeap,

supra, 60 Cal.AppAth 591, as "relevant authority," and thus "reflects a mis­

taken view of what dismissals qualify for mandatory relief' under section

473. (AOB34-36.) As discussed in detail in Section IV.AA, below, the

Leader court did not recognize Yeap as being "precisely on point," for the

simple reason that it is not. Neither the majority nor dissenting opinion in

Yeap speaks to the application of section 473' s mandatory provision where

plaintiffs have opposed the discretionary dismissal of their claims. (See

Section IV.AA, infra.) Appellants' attempt to characterize Leader as "out­

dated"-even though it was decided in 2001, years after the 1992 amend­

ment to section 4 73-because of its purported "failure" to address an inap­

posite dissenting opinion is wholly without merit. (AOB34-35.)

Leader is on point; it is no "outlier" (AOB23), and it-along with

the other authority cited herein-plainly supports the Superior Court's ap­

plication of the rule that section 473's mandatory provision has no applica­

tion where, as here, plaintiffs had an opportunity to, and in fact did, oppose

the discretionary dismissal of their claims following their failure to timely

file an amended pleading.

30

2. Section 473's Mandatory Provision Must Be Construed According to Its Terms and in Harmony With Applicable Discretionary Statutes and Provisions

Appellants' interpretation of the scope of section 473' s mandatory

provision also is irreconcilable with section 473' s plain language, discre-

tionary dismissal statutes like section 581(f)(2), and other statutory provi-

sions that expressly vest trial courts with the discretion to grant (or deny)

leave to file an untimely amended pleading.

First, appellants' opening brief is predicated on the fundamental

misconception that section 473' s mandatory provision would require the

Superior Court not only to set aside its order of dismissal, but also to auto-

matically accept appellants' untimely Second Amended Complaint. The

mandatory provision, however, on its face, requires a trial court to do noth-

. ing more than "vacate" any resulting default, "default judgment or dismis-

sal." (Civ. Proc. Code § 473(b); accord ibid. [discretionary provision per-

mitting court to "relieve a party" from "a judgment, dismissal, order, or

other proceeding taken against him or her" and requiring that any applica-

tion for discretionary relief be "accompanied by a copy of the answer or

. other pleading proposed to be filed therein"].) Put simply, the mandatory

provision does not require a trial court to accept the untimely filing of an

amended pleading. (See Leader, 89 Cal.AppAth at pp. 613, 619.) Thus,

even if it applied here-which it does not-appellants would still be re-

31

quired to seek discretionary leave to file their proposed Second Amended

Complaint. 10

Second, appellants' interpretation of section 473-as mandating re-

lief from any dismissal entered for failure "to file a charging pleading"

(AOB18)-confiicts with statutes vesting trial courts with broad discretion

. to determine whether to dismiss an action for failure to timely file an

amended complaint. It is well-settled that "[t]he words of the statute must

be construed in context, keeping in mind the statutory purpose, and statutes

or statutory sections relating to the same subject must be harmonized, both

internally and with each other, to the extent possible." (Graham, 30

Cal.App.4th at p. 1661.) "[T]he repeal or abrogation of statutes by implica-

tion is disfavored, as is any construction of a statute that would render re-

lated statutes a nullity." (Peltier, supra, 34 Cal.App.4th at p.1817.) As the

Leader court recognized, appellants' broad interpretation of section 473

would abrogate trial courts' statutory discretion to dismiss untimely claims.

(Leader, 89 Ca1.App.4th at p. 619.)

10 The plain language of section 473 is, in this way, consistent with the rule that mandatory relief is available only where plaintiffs-due to the mistake or inadvertence of their counsel-have been deprived of any opportunity to oppose dismissal. (See id. at p. 621.) By requiring only that the dismissal itself be set aside, and only under those circumstances, section 473 ensures plaintiffs only "a chance to respond to an otherwise unopposed request for dismissal." (Tustin Plaza, supra, 27 Cal.App.4th at pp. 1565-1566.)

32

Here, as in Leader, the Superior Court "evaluate [ d] the reasons for

[appellants'] delay in determining ... whether to dismiss the action" pursu-

ant to section 581(f)(2), a discretionary dismissal statute, "where demurrers

had been sustained with leave to amend but plaintiffs failed to amend with-

in the time specified." (Jd. at p. 619.) And, the Superior Court having al-

ready "considered the reasons for [appellants'] delay in exercising its dis-

cretion under the above statute[], it would be an 'absurd result' [] to 'have

the case reinstated based on the same facts offered, but discarded, in the

hearing on the request to dismiss. '" (Id. at pp. 619-620, citation omitted.)

Indeed, had the Legislature intended to "undermine the court's discretion"

in that manner, "through its enactment of the [1992 amendment] to section

473, it would have said so." (Graham, 30 Ca1.App.4th at p. 1661; see also

Peltier, supra, 34 Ca1.App.4th at pp. 1820-1821.)11

Third, appellants' proffered interpretation of section 473 is also ir-

reconcilable with trial courts' discretionary authority to determine whether

to grant (or deny) leave to file an untimely amended pleading. It is well-

settled that leave to file a belated amended complaint "is always of grace,

11 The courts in Graham and Peltier addressed application of the mandato­ry provision to dismissals under section 583.410, a discretionary dismis­sal statute authorizing a trial court to "dismiss an action for delay in prosecution ... if to do so appears to the court appropriate under the cir­cumstances of the case."

33

not of right." (Leader, supra, 89 Cal.App.4th at pp. 612-613.) Indeed, a

trial court generally has "wide discretion" in determining whether to permit

a party to file an amended pleading and, in exercising that discretion, must

consider a number of factors, "including the conduct of the moving party

and the belated presentation of the amendment." (Ibid.; see also Civ. Proc.

Code, § 473(a).)12

In short, after the statutory time period to file an amended pleading

had expired, appellants were required to seek leave from the Superior Court

to file an untimely amended complaint. Whether or not their proffered "ex-

cuses" justified permitting them to do so, or warranted dismissal oftheir

claims, was a determination within the sound discretion of the Superior

Court. (Leader, supra, 89 Cal.App.4th at p. 619.) Section 473's mandatory

provision does not abrogate that discretion. (Id. at p. 618.)

3. Section 473's Legislative History Evidences The Legisla­ture's Intent To Limit Mandatory Relief To Unopposed Dismissals

Nothing in section 473's legislative history suggests the Legislature

intended to mandate relief any time "a dismissal occurs because the plain-

tiff fails to file a timely amended complaint." (AOBI9-20.) On the contra-

ry, courts that have considered the statute's legislative history have con-

12 A trial court may also, "at any time in its discretion," strike an amended pleading that is not timely filed. (Civ. Proc. Code, § 436.)

34

cluded that "when the Legislature incorporated dismissals into [the manda­

tory provision in 1992] it intended to reach only those dismissals which oc­

cur through failure to oppose a dismissal motion-the only dismissals

which are procedurally equivalent to a default." (Peltier, supra, 34

Cal.App.4th at pp. 1817, 1820; see also English, 94 Cal.App.4th at pp. 145-

146.)

As originally enacted, section 473 required a trial court to grant re­

lief only from a "default judgment." (See English, supra, 94 Cal.App.4th at

p. 138 [discussing legislative history]; see also Peltier, supra, 34

Cal.App.4th at p. 1820 [same].) Given that limited scope, in 1990, the

court of appeal in Billings, supra, 225 Cal.App.3d 250, concluded that sec­

tion 473 could not require a trial court to grant relief from a dismissal en­

tered against a plaintiff, and it noted, similarly, that the mandatory provi­

sion's "reference to 'default judgments' could be construed to preclude

mandatory relief when only the default, as opposed to the default judgment,

has been entered." (Jd. at p. 256-257, fn. 2.)

In 1991, shortly after Billings, the Legislature amended section 473

to require trial courts to grant relief from a "resulting default ... which will

result in entry of a default judgment." (See English, supra, 94 Cal.App.4th

at p. 138.) Even after that amendment, however, the mandatory provision

35

"did not apply outside the realm of defaults and default judgments."

(Ibid.) 13

In 1992, at the urging of the State Bar, the Legislature again amend-

ed section 473. (Ibid.) In what the 1992 report of the Assembly Committee

on Judiciary characterized as a "noncontroversial" revision, the Legislature

inserted the word "dismissal" into the statute's mandatory provision, noting

that the State Bar-"the source of [this] provision"-had concluded that it

was "illogical and arbitrary to allow mandatory relief for defendants when a

default judgment has been entered against them due to defense counsel's

mistakes and to not provide comparable relief to plaintiffs whose cases are

dismissed for the same reason." (See Peltier, supra, 34 Cal.AppAth at p.

1820, internal citation omitted.)

Since 1992, California courts have looked to this pronouncement in

interpreting the scope of section 473' s mandatory language. The court in

13 Plaintiffs ignore the 1991 amendment in arguing that this Court should infer that the 1992 amendment was intended as a response to Billings. (AOBI9-20.) In any event, as the Leader court explained, even assum­ing that the 1992 amendment was, indeed, "a response to Billings," that fact would be "of no aid" to plaintiffs. (Leader, supra, 89 Cal.AppAth at p. 616.) "The Billings court held that the mandatory relief provision as it then existed did not apply to dismissals. It did not hold that, if the statute had extended to dismissals, relief would necessarily be appropri­ate whenever it could be claimed that a plaintiff s attorney was at fault in failing to file an amended pleading following the sustaining of a de­murrer with leave to amend." (Ibid.)

36

Peltier, for example, assuming that the amendment was intended to grant a

dismissed plaintiff "comparable relief' to that obtained by a defaulting de-

fendant,14 concluded that an interpretation of section 473 that restricted the

availability of mandatory relief "to [that] subset of dismissed plaintiffs"

who had no opportunity to oppose dismissal was consistent with that intent.

Following earlier decisions by the Fourth Appellate District (Tustin Plaza,

27 Cal.App.4th 1557), and the Second Appellate District (Graham, 30

Cal.App.4th 1656), the Peltier court reasoned that just as a "defaultjudg-

ment is entered when a defendant fails to appear, and, under section 473,

relief is afforded where the failure to appear is the fault of counsel," simi-

larly, "a dismissal may be entered where a plaintiff fails to appear in oppo-

sition to a dismissal motion, and relief is afforded where that failure to ap-

pear is the fault of counsel." (Peltier, supra, 34 Cal.App.4th at pp. 1820-

1821; see also Tustin Plaza, supra, 27 Cal.App.4th at pp. 1565-1566 ["Sec-

tion 473 originally eased the harsh impact on a defendant who failed to re-

spond to an action .... The amendment now offers this same relief to a "de-

faulting" plaintiff, i.e., a chance to respond to an otherwise unopposed re-

14 The Peltier court noted that the State Bar's view with respect to the pur­pose of the 1992 amendment was "not an index of legislative intent." However, it concluded that "even assuming the State Bar's view" was "cognizable legislative history," that view was consistent with its inter­pretation of the statute. (Ibid.)

37

quest for dismissal."].) In short, the Peltier court did not "[i]gnore the ob­

vious parallel between a default and dismissal resulting from the failure to

file the relevant pleading" (AOB28), but rather determined-after careful

consideration of the statute's legislative history-that the appropriate "par­

allel" to the relief provided a defaulting defendant was relief from the fail­

ure to oppose dismissal. (Peltier, supra, 34 Cal.AppAth at pp. 1820-1821.)

Moreover, as the Peltier court explained, any broader meaning of the

word "dismissal" in the mandatory provision would not be, as the Legisla­

ture intended, "noncontroversial." (Peltier, supra, 34 Cal.AppAth at pp.

1820-1821; see also Graham, supra, 30 Cal.AppAth at p. 1661.) As the

Peltier court also pointed out, a "long line of authority prior to the 1992

amendment [that] had construed section 473 with respect to dismissals as a

provision for relief to plaintiffs who excused their failure to oppose dismis­

sal motions on the ground of mistake, surprise, inadvertence, or neglect, not

as a detour around the dismissal statutes." (Peltier, supra, 34 Cal.AppAth

at pp. 1820-1821.) As explained in English, a case relied upon by appel­

lants, "the legislative intent" behind the 1992 amendment was "to achieve

parity between defendants and plaintiffs in their entitlement to relief' under

section 473 's mandatory provision, and the Peltier court "gave effect" to

that intent when it "concluded the Legislature 'intended to reach only those

dismissals which occur through failure to oppose a dismissal motion. '"

(English, supra, 94 Cal.AppAth at p. 145.)

38

4. Appellants Misconstrue Justice Epstein's Dissent in Yeap, Which Addresses Questions Not at Issue Here

In the face of overwhelming authority supporting the court's conclu-

sion that section 473's mandatory provision "only applies narrowly" to un-

opposed dismissals (8JA21 10-2111), appellants point to dicta from a dis-

senting opinion that does not speak to-and is not inconsistent with-that

general rule.

Following the 1992 amendment, appellate courts reached different

conclusions regarding whether or not the mandatory provision applied in

circumstances that were deemed analogous to a default "even if there was

no actual default, default judgment, or dismissal." (Matera, supra, 145

Cal.App.4th at pp. 64-66 [noting the conflict in case law, but finding the

conflict irrelevant to the case before it because the trial court "actually en-

tered defendants' defaults and a default judgment"].)

Some courts took a more expansive approach, holding that mandato-

ry relief was available in the absence of an actual default, default judgment

or dismissal. (See, e.g., In re Marriage of Hock & Gordon-Hock (2000) 80

Cal.App.4th 1438, 1444 [appellant entitled to mandatory relief from a

judgment on spousal support and the division of property]; Avila v. Chua

(1997) 57 Cal.App.4th 860, 868 [plaintiff entitled to mandatory relief from

a summary judgment].) Other courts rejected that reasoning, holding that

section 473' s mandatory provision applied only in the context of true de-

39

faults and dismissals. (See, e.g., Prieto v. Loyola Marymount University

(2005) 132 Cal.App.4th 290, 295 [mandatory relief provision did not apply

to a summary judgment]; English, supra, 94 Cal.App.4th at pp. 148-149

[same].)

Among the decisions that took a more expansive view of the manda-

tory provision was Yeap. The Yeap majority held that relief was required

where "the plaintiff initially fail [ ed] to appear at [an] arbitration, resulting

in the entry of a defense award, and then fail [ ed] to timely request a trial de

novo," reasoning that because "the plaintifflos[t] the opportunity to partic-

ipate in the arbitration due to negligence of counsel, and the award

bec[ arne] final also due to attorney misfeasance" the mandatory provision

applied. (Yeap, supra, 60 Cal.App.4th at p. 594; see also id. at p. 601

["[The] judgment entered in this matter was analogous to a default because

it came about as a result of appellant's failure to appear and litigate at the

arbitration hearing."].)

Justice Epstein, in dissent, argued that applying the mandatory pro-

vision where no default or dismissal had occurred contravened the statute's

express language. (Id. at p. 603 (dis. opn. of Epstein, J.).) He explained

why the trial court's action could not "by any stretch ... properly be de-

scribed as a dismissal":

Without belaboring the obvious, it should suffice to say that, in the context of pleadings and motions, a dismissal is the withdrawal of an application for judicial relief by the party

40

seeking such relief, or the removal of the application by a court. A leading law dictionary defines it as' [a]n order or judgment finally disposing of an action, suit, motion, etc., without trial of the issues involved.' [Citations.]

(ld. at pp. 603-604; see also, id. at 604 ["There was no dismissal in this

case .... What happened is the arbitration award ripened to ajudgment."].)

Subsequent cases have endorsed that view, concluding that the man-

datory provision does not apply where there has been no actual default or

dismissal. (See Hossain v. Hossain (2007)157 Cal.App.4th 454,459 [man-

datory provision did not apply to the failure to timely file or oppose a mo-

tion to enforce a settlement agreement since "[n]o default was entered by

the clerk, and there was no default judgment"]; see also Jerry's Shell v.

Equilon Enterprises, LLC (2005) 134 Cal.App.4th 1058, 1071-1073 ("Jer-

ry's Shell") [declining to "reconsider [the majority's] holding in Yeap"].)

Because there is no dispute here that appellants sought relief under section

4 73 from an actual dismissal, those opinions simply have no bearing on the

outcome of this appeal.

None of the cases cited by appellants-and, to respondent's

knowledge, no court-· has interpreted Justice Epstein's Yeap dissent to

suggest that when there has been a discretionary dismissal "for failure to

file a charging pleading," over plaintiffs' opposition, relief under section

473 is mandatory. Indeed, not only is that interpretation not a fair reading

41

of that dissent,15 but, there is nothing inconsistent about the notion that a

"dismissal" within the meaning of section 473 includes-or is even limited

to-dismissals that result from a "failure to file a charging pleading," and

the rule that mandatory relief is unavailable where, as here, plaintiffs have

. already been provided, and availed themselves of, an opportunity to oppose

dismissal.

Indeed, Vaccaro, a case relied upon by appellants, illustrates this

point. There the plaintiff failed-not to timely file an amended pleading-

but to timely file a version signed by his attorney. (Vaccaro v. Kaiman

(1998) 63 Cal.AppAth 761, 765 ("Vaccaro").) A signed version was sub-

mitted-belatedly-with plaintiff s opposition to a motion to strike filed by

the defendant concurrently with a demurrer. At "the commencement" of

the hearing on defendant's motion and demurrer, the trial court simply "an-

nounced 'case dismissed,'" without any prior notice of its intent to dismiss

the matter, and without providing plaintiff with an opportunity to oppose

dismissal. (ld. at pp. 765-766.) As the Vaccaro court explained:

15 It is highly unlikely Justice Epstein intended such an interpretation, giv­en his citation to Tustin Plaza, supra, 27 Cal.AppAth 1557. (Yeap, su­pra, 60Cal.AppAth at p. 604 (dis. opn. of Epstein, J.).) As discussed above, the Tustin Plaza court concluded that the mandatory provision applies only to unopposed dismissals. (Tustin Plaza, supra, 27 Cal.AppAth at pp. 1565-1566.)

42

The [trial] court acted hastily and unreasonably. [It] immedi­ately dismissed the action, despite the fact that defendants had not requested dismissal in the motion to strike nor had the court given any prior notice it intended to dismiss.

(ld. at pp. 768-769.) The appellate court therefore concluded not only that

the trial court erred in dismissing the action, but that section 473 's manda-

tory provision required the trial court to set aside the dismissal. (ld. at pp.

770-771.)16 The Vaccaro court did not hold, and nothing in its opinion

suggests, that any time there has been a dismissal "for failure to file a

. charging pleading" section 473 '8 mandatory provision applies.

To the extent the authority cited by appellants directly addresses the

issue before this Court, it supports the Superior Court's ruling. For exam-

pIe, English, supra, 94 Ca1.App.4th 130-which appellants cite as an ex-

ample of a court "endors[ing] Justice Epstein's discussion of the scope of

section 473" (AOB24)-makes clear that the mandatory provision

"reach [ es] only those dismissals which occur through failure to oppose a

dismissal motion." (English, supra, 94 Cal.App.4th at pp. 145-146.) In-

deed, not only was English cited by the Superior Court as support for its

finding that the mandatory provision was inapplicable (8JA2110), but it

16 Recognizing that the mandatory provision required the trial court to do nothing more than set aside the dismissal, the Vaccaro court separately concluded that the "trial court abused its discretion when it refused to consider the belatedly filed signature or to grant leave to amend." (Id. at p.768.)

43

was also cited favorably by Justice Epstein in two separate opinions, as a

case that "interpret[s] the mandatory provision according to its terms."

(Hossain, supra, 157 Ca1.App.4th at p. 458; see also Jerry's Shell, supra,

134 Ca1.App.4th at p. 1075 (cone. opn. of Epstein, J.).)

5. Appellants Availed Themselves of an Opportunity to Ap­pear and Oppose Dismissal

a. Not Only Did Appellants Oppose Dismissal, The Trial Court Gave Them an Additional Opportunity to Seek Discretionary Relief

The Superior Court took measured steps to ensure that appellants

had a fair opportunity to explain why they had failed to timely file an

amended pleading at the February 15,2012 dismissal hearing-including

calling plaintiffs' counsel, at his request, to allow him to appear telephoni-

cally. (RT304:10-14, 306:9-14, 307:8-308:2.) The court dismissed appel-

lants' claims only after hearing plaintiffs' counsel's proffered excuses-

that they were unaware of the statutory deadline in section 472b, and had

made no effort, whatsoever, to learn of it (RT311: 17-22)-and only after

being informed by plaintiffs' counsel that they were in no position to file an

amended pleading at that time (RT312:1-4).

A "meaningful" opportunity to oppose dismissal does not require

that plaintiffs be permitted "to make a personal"-rather than telephonic-

appearance at a dismissal hearing, or require the filing of "a proper opposi-

tion brief." (AOB30.) Appellants appeared at the hearing and, through

their counsel's oral and written opposition to dismissal, gave the Superior

44

Court an opportunity to "evaluate[] and consider[] [their] excuses for de­

lay" in filing a Second Amended Complaint. (Leader, 89 Ca1.App. at p.

619.) Section 473 requires nothing more. (See Gotschall, 96 Ca1.AppAth

at pp. 482-484 [concluding that the mandatory provision had "no applica­

tion" where plaintiffs' counsel "did not fail to oppose" defendants' oral

motion to dismiss]; cf. SJP Limited Partnership v. City of Los Angeles

(2006) 136 Ca1.AppAth 511 [mandatory provision applicable where plain­

tiffs had no opportunity to be heard at dismissal hearing, despite their best

efforts to attend].)

Moreover, appellants' cries of purported "unfairness" are particular­

ly misplaced here. The Superior Court allowed plaintiffs six additional

weeks to seek discretionary relief from dismissal under section 473; as well

as leave to file an untimely amended complaint, prior to entry of judgment.

(RT312:9-14, 313:2-8, 317:4-6, 317:25-26.) After that six weeks expired,

and contrary to their representations to the Superior Court, plaintiffs' coun­

sel filed a motion for relief accompanied by attorney declarations that did

nothing more than restate what plaintiffs' counsel had already told the Su­

perior Court at the dismissal hearing-that he and plaintiffs' local counsel

were unaware of the deadline in section 472b and had made no attempt to

ascertain it. (See Section II.C, supra.) Thus, the Superior Court fully con­

sidered the extent of appellants' proffered "excuses" and explanations for

failing to timely file an amended pleading not only in response to Dole

45

Food's dismissal request, but also in connection with their noticed Motion

to Set Aside Dismissal.

It is clear that the Superior Court, after full consideration of the rec-

ord and the proposed pleading before it, did not err in denying plaintiffs'

request for discretionary relief-a ruling that appellants do not even attempt

to challenge here and, accordingly, have elected to waive (see Section

IV.A, fn. 8, supra).17

h. The Superior Court Properly Dismissed Appel­lants' Claims Pursuant to Dole Food's Ex Parte

The February 15,2012 hearing on Dole Food's ex parte request for

dismissal took place almostfour months after this Court issued its opinion

remanding this matter to the Superior Court, almost two months after plain-

tiffs' counsel received notice of the issuance of the remittitur (see

5JAI220), and weeks after the expiration of the 30-day period within which

17 Appellants' proposed Second Amended Complaint is indicative of the lack of diligence justifying the Superior Court's denial of discretionary relief. Among other things, despite plaintiffs' counsel's representations to this Court that all 183 plaintiffs were prepared to amend "to ade­quately plead delayed discovery" (5JAI124), and plaintiffs' counsel's representation to the Superior Court in February, 2012, that they needed at least an additional month to file an amended pleading because they were "reinterview[ing] hundreds of people in order to be able to add the specific tolling provisions to each plaintiff who needs to amend on that score," (RT312: 1-4, italics added), plaintiffs' counsel submitted a pro­posed pleading on behalf of only 65 plaintiffs, and attempted to include "individualized allegations regarding delayed discovery" for only eight plaintiffs. (5JAI226.)

46

plaintiffs were required to file an amended pleading under section 472b.

Dole Food provided plaintiffs' counsel with the required statutory notice of

its intent to appear ex parte to request dismissal on the basis of plaintiffs'

"failure to timely file an amended complaint" (5JAI189), pursuant to sec-

tion 581(f)(2) (see 5JAI167-1168), 18 a statute that affords a trial court dis-

cretion to dismiss an action where "after a demurrer to the complaint is sus-

tained with leave to amend, the plaintiff fails to amend it within the time

allowed by the court and either party moves for dismissal." (Civ. Proc.

Code, § 581(f)(2).) Such ex parte applications are expressly authorized by

Rule of Court 3.1320(h). (See also AOBI2.) Appellants nonetheless now

contend-for the first time on appeal- that "section 581(f)(2) does not ap-

18 Appellants contend, in a footnote, that the Superior Court's judgment should be reversed due to "confusion" purportedly caused by an inad­vertent reference in Dole Food's ex parte application to section 581(f)(1)-which authorizes a trial court to dismiss an action following an order sustaining a demurrer without leave to amend. (AOBI2, fn. 6.) Dole Food's application makes clear that it was seeking dismissal with prejudice pursuant to section 581(f)(2). (See 5JAI167-1168.) Plain­tiffs did not express any "confusion" regarding the statutory basis for the Superior Court's discretionary dismissal of their claims at any time prior to the filing of their opening brief in this Court. Their attempt to do so now is disingenuous and precluded by their failure to raise the is­sue below. (In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 116-117 ("King").)

47

ply to the type of dismissal at issue here," and, accordingly, that Dole Food

"improperly used ex parte procedures." (AOBI2./9

As an initial matter, because appellants neither opposed dismissal

nor sought relief under section 473 on the ground that section 581(t)(2) did

not provide a proper statutory basis for dismissal of their claims, they are

precluded from raising that issue now. "It is well established that issues or

theories not properly raised or presented in the trial court may not be as-

serted on appeal, and will not be considered by an appellate tribunal. A

party who fails to raise an issue in the trial court has therefore waived the

right to do so on appeal." (King, supra, 80 Cal.App.4th at pp. 116-117.)

In any event, appellants' unsupported contention that section

581(t)(2) authorizes dismissal by way of an ex parte application following

a plaintiff s failure to timely file an amended pleading when a trial court

19 Appellants' assertion that Dole Food acted improperly by not reschedul­ing the dismissal hearing to allow appellants an additional month and a half within which to file an amended pleading is without merit. (AOBI4-16.) Appellants had months to file an amended pleading, and Dole Food properly, and with proper notice, sought dismissal when they failed to do so. Moreover, when plaintiffs' counsel informed Dole Food of the sole reason he believed he was unable to appear at the dismissal hearing-the fact that his law firm is "located in Washington, D.C." (5JAI219; AOBI4-15)-Dole Food's counsel reminded him of his ability to appear telephonically. (See RT301:27-302:4.) Plaintiffs' counsel not only indicated that he could appear telephonically but, as the record reflects, he did so. (Ibid.) Dole Food had no obligation to further "accommodate plaintiffs' counsel's schedule." (AOBI5.)

48

grants leave to amend in the first instance-but not when a trial court is di-

rected to do so by a court of appeal-is unavailing. Not only does appel-

lants' proffered distinction between the time to amend set forth in section

472b and the time to amend "impose[ d]" by the trial court serve no practi-

cal purpose, but appellants' argument ignores the plain language of Rule of

Court 3. 1320(h), which expressly allows that any motion to dismiss brought

"after expiration of the time to amend following the sustaining of a demur-

rer may be made by ex parte application to the court under Code of Civil

Procedure section 581 (f)(2). ,,20 Dismissal of appellants' claims pursuant to

Dole Food's ex parte request was proper.

B. Appellants' Claim That "Most" Of Them Were Not Required To File An Amended Pleading Is Without Merit

In another mischaracterization of the record, appellants assert the

Superior Court erred in dismissing their claims because the "majority" of

them "did not need" to file an amended pleading. (AOB36.) According to

appellants, "most" of them "have always had viable claims for direct liabil-

ity against Dole [Food] not requiring amendment" and no amended plead-

ing was required. (Ibid.) This is wrong.

20 Notwithstanding appellants' effort to distinguish it (AOBI4, fn.7), Pa­garigan evidences the propriety of dismissing an action for failure to timely file an amended pleading following remand pursuant to an ex parte request. (Pagarigan, supra, 158 Cal.App.4th 38.)

49

First, the Superior Court sustained Dole Food's Demurrers on three

separate and independent grounds, including plaintiffs' failure to join Tec­

baco. Even setting aside the Superior Court's two other grounds for sus­

taining the Demurrers, the Superior Court's finding that Tecbaco was "a

necessary and indispensable party" was alone "fatal to the instant action,"

and did not permit any plaintiff to proceed under the Amended Complaint.

(3JA751, 755.) On appeal, this Court reversed only the trial court's "denial

ofleave to amend," concluding, inter alia, that the Amended Complaint's

"convention of pleading 'Dole' collectively to include Tecbaco render[ed]

their allegations" fatally "ambiguous" on the issue of compulsory joinder,

and required plaintiffs to file a "new complaint" that would "adequately ad­

dress th[at] issue." (5JA1105, 1130-1131.) In short, at the very least, all

plaintiffs were required to amend to address "the key question of whether

Dole [Food] and Tecbaco are joint tortfeasors or whether Tecbaco is the

primary participant" in the wrongdoing plaintiffs' allege (5JA1131), re­

gardless of whether, as appellants' now claim, they did not "need" to "forti­

fy their allegations" regarding alter ego or agency liability. (AOB38.)

Second, appellants' argument that "the majority of the [p]laintiffs

participating in this appeal did not need to amend the active Complaint for

their claims to proceed" (AOB36), fails for an even more obvious reason:

there is no active complaint on file on behalf of any plaintiff. The Superior

Court dismissed the Amended Complaint, in its entirety, with prejudice.

50

This Court affirmed the Superior Court's order sustaining the Demurrers

and "remand [ ed] the matter" so that plaintiffs could file an amended plead-

ing "remedy[ing] the defects outlined in [the Court's] opinion." (5JAI131,

see also 5JAII05.) Plaintiffs were required to do just that.

Had any plaintiff intended to stand on the allegations of the Amend-

ed Complaint-on the theory that they "did not need to amend"

(AOB36)-they should have re-filed the Amended Complaint, or taken

some similar action within the time period set forth in section 472b that

"would have kept this case moving forward." (Pagarigan, supra, 158

Ca1.App.4th at pp. 42-43 [finding "no excuse for [plaintiffs'] inaction"

within section 472b's 30-day period].) Appellants' contention that the

"majority" of them were not required to do anything-or to have any plead-

ing on file-"for their claims to proceed" fails on its face. (AOB36.)

C. The Superior Court Did Not Abuse Its Discretion By Denying Plaintiffs' Motion To Set Aside The Cost Bond Order

1. Plaintiffs' Contention That The Cost Bond Order Applies To Only Two Former Plaintiffs Is Belied By The Order It­self And The Factual Record Before This Court

Dole Food's May, 2010 Cost Bond Motion was directed at all of the

then-185 plaintiffs who were party to this lawsuit, including appellants.

(2JA257,260.) And all ofthose 185 plaintiffs, including appellants, op-

posed that motion on, inter alia, the ground that they were "indigent."

(3JA677-679; 3JA683-684.) In its Cost Bond Order, the Superior Court-

51

identifying "plaintiffs" as the 185 "heirs of 167 decedents" described in the

Amended Complaint (3JA757; UA69)-concluded that "plaintiffs had not

made the requisite prima facie showing to justify waiving a bond," and re-

jected plaintiffs' argument that "obtaining a declaration from each of the

185 plaintiffs in order to support their claim of indigence would be a 'sig-

nificant burden of time and expense.'" (3JA767.) Accordingly, the Supe-

rior Court ordered "each plaintiff in this action" to post a bond in the

amount of$16,926. (3JA767, italics added.) Contrary to appellants' new

argument, nowhere does the Superior Court limit application of the Cost

Bond Order solely to former plaintiffs Hernandez and Medina. (AOB48-

49.)

Indeed, it is clear from the record that both parties, and the Superior

Court, intended and understood the Cost Bond Order to apply to a11185

plaintiffs. In fact, notwithstanding appellants' misleading selective quota­

tion of portions ofthe reporter's transcript,21 at the July 6, 2010 hearing on

Dole Food's Demurrers and Cost Bond Motion, the trial court made clear

21 At the time of the hearing, the Superior Court had issued only a tenta­tive ruling on Dole Food's Demurrers, and the parties did not know whether the Demurrers would be sustained and, if so, how many plain­tiffs, if any, would be granted leave to amend. (RT44:5-18.) Accord­ingly, Dole Food's counsel asked the trial court to clarify that its ruling on the Cost Bond Motion would not be impacted by its ruling on the Demurrers, and that any plaintiff granted leave to amend would be re­quired to post a bond to pursue their claims. (RT33:5-12.)

52

that the Cost Bond Order would apply to any of the 185 plaintiffs that re­

mained in the litigation. (RT33:9-12 ["If I were to conclude that these

plaintiffs survived demurrer or have leave to amend and come back, the

same concerns are here with whomever survives that process."].) That ap­

pellants were granted leave to amend only after an intervening appeal does

not relieve them of their obligation to post a cost bond.

And appellants did not-. until this appeal-contend that the Cost

Bond Order "did not apply to them." (AOB47.) On the contrary, Plaintiffs'

Motion to Set Aside Cost Bond Order expressly acknowledges that the Su­

perior Court "ordered each [p]laintiffto post [] security in this action," and

specifically requests that the Superior Court "vacate its order that 'each

plaintiff in this action must post $16,926'" on the ground that appellants are

"extremely impoverished and indigent." (6JA1323-1325; see also

6JA1326-1327; 8JAI986.) Nor did plaintiffs' counsel, at the February 15,

2012 dismissal hearing, take the position that application of the Cost Bond

Order was limited to only two former plaintiffs. Instead, he represented to

the court that counsel were "working on, as part of our individual inter­

views of the plaintiffs, establishing that all of them would meet the re­

quirement of being a pauper that would excuse their posting of a bond."

(R T313 :2-15.) In short, appellants sought relief from the Cost Bond Order

precisely because they knew they were bound by it.

53

2. The Superior Court Did Not Err in Finding That Appel­lants' Decision Not to Challenge the Cost Bond Order on Appeal Precluded Challenging it on Remand

The September 14,2010 Final Judgment dismissed all of the then-

185 plaintiffs' claims expressly based on the Court's order sustaining Dole

Food's Demurrers, and on the ground that "[n]o plaintiff in [this] action has·

posted a cost bond" pursuant to the Cost Bond Order. (4JA788-789.) The

Final Judgment attaches and expressly incorporates the Cost Bond Order in

its entirety. (4JA788-789.) As the Superior Court correctly concluded in

denying appellants' motion for relief under section 1030, the Cost Bond

Order was "clearly part" ofthe Final Judgment (8JAI987), and because

plaintiffs chose not to challenge that portion of the Final Judgment pertain-

ing to the Cost Bond Order on appeal, plaintiffs "waive [ d] their right to

challenge [it] on remand." (8JAI987.)

"It is a long-standing rule that a party may appeal from a specific

part of a judgment, leaving all other parts in full force .... " (Los Angeles

Cty. Fire Dep 't v. Workers' Compo Appeals Rd. (2010) 184 Cal.App.4th

1287, 1295 ("L.A. Fire Dep 't".) California law is clear that where, as here,

a party has "limit[ ed] its appeal to a particular portion" of a judgment, "a

reversal of the part appealed from does not affect the portions not depend-

ent thereon, [which] stand as final adjudications." (Gonzales V. R.J. Novic

Const. Co. (1978) 20 Cal.3d 798,804-05 & n.6, quoting Whalen V. Smith

(1912) 163 Cal. 360, 363-64; see also ReadyLink Healthcare V. Cotton

54

(2005) 126 Cal.App.4th 1006, 1014-1015 [an appeal from a portion of a

judgment "leave[s] the parts not appealed from unaffected," and "such un-

affected parts must be deemed final, being a final judgment of the facts and

rights which they determine"].) As one federal court of appeals succinctly

put it, "an issue that could have been but was not raised on appeal is forfeit-

ed and may not be revisited by the [lower] court on remand." (Medical

Center Pharmacy v. Holder (5th Cir. 2011) 634 F.3d 830,834, italics add-

ed; see also Barratt American, Inc. v. Transcontinental Ins. Co. (2002) 102

Cal.App.4th 848, 868 [appellants' failure to challenge a determination of

the trial court in its appeal from a judgment "waive[ d] [its] right to chal­

lenge th[at] determination on remand,,].)22

Appellants now contend that they "could not have appealed" the

Cost Bond Order because they "did not have standing" to challenge an or-

der that supposedly "did not apply" to them, and were precluded by section

1030(g) from raising the issue on appeal because there was purportedly no

"dismissal" based on the Cost Bond Order. (AOB52-54.) Neither argu-

ment has merit.

22 This is closely related to the "law-of-the-case doctrine," which "posits that when a court decides upon a rule of law, that decision should con­tinue to, govern the same issue in subsequent stages in the same case." (Medical Center, supra, 634 F.3d at p. 834.)

55

First, as discussed above, appellants themselves acknowledged the

Cost Bond Order applied to them. Their new claim that it applied only to

two former plaintiffs is specious. Second, appellants ignore the Final

Judgment they appealed from. Section 1030(g) states that "[a]n order

granting or denying a motion for an undertaking under this section is not

appealable." As the Superior Court concluded, this provision bars only in­

terlocutory appeals of orders granting a motion for a cost bond under sec­

tion 1030. (8JAI987.) It has no application where, as here, the order at is­

sue is part of a final, appealable judgment. Indeed, "[t]he phrase, 'not an

appealable order,' has long been applied to interlocutory orders that are not

immediately appealable, but are subject to review on appeal from a subse­

quent final judgment." (In re Matthew C. (1993) 6 Cal. 4th 386,393; see

also Yao v. Superior Court (2002) 104 CaLApp.4th 327, 330, n.2.)

Finally, appellants' arguments that this Court "implicitly acknowl­

edged that the cost bond issue would not have been properly raised in the

prior appeal" or, alternatively, that Dole Food "should have raised it with

the Court on the first appeal" are unavailing. (AOB57.) As the Superior

Court recognized, this Court "concerned itself only with the demurrer be­

cause that was all that plaintiffs appealed." (8JA2103.) And plaintiffs were

entitled-as they did-to appeal solely from that portion of the judgment

addressing the Superior Court's ruling on Dole Food's Demurrers, and to

leave all other parts of the judgment "in full force." (L.A. Fire Dep't, su-

56

pra, 184 Cal.App.4th at p. 1295.) Neither this Court, nor Dole Food, had

any reason to "raise" the Cost Bond Order in the prior appeal. Indeed, Dole

Food properly interpreted plaintiffs' decision not to challenge the Cost

Bond Order on appeal as a reflection of plaintiffs' intention to abide by it-

as a "final adjudication[]" of their obligation to post security-if and when

their claims were remanded to the·Superior Court. (See Gonzales, supra,

20 Ca1.3d at pp. 804-805 & n.6.)

3. Appellants Had Ample Opportunity To Submit Evidence Of Their Claimed Indigency

Appellants contend, as they did in the Superior Court, that they were .

denied an "opportunity to be heard" on the issue of whether they are "enti-

tied to waiver" of the Cost Bond Order on the basis of "indigency."

(AOB43.) This is false, and the Superior Court did not abuse its discretion

in conc~uding that appellants had ample opportunity to demonstrate indi-

gence, and to seek relief from the Cost Bond Order on that basis.

As an initial matter, appellants opposed the Cost Bond Motion on

the basis of their claimed indigence. The sole evidence submitted regarding

their financial means, however, consisted of generic statistics reflecting the

per capita gross national income and per capita gross domestic product of

Colombia, the per capita gross domestic product for the Department of

Magdalena, and a declaration from plaintiffs' counsel to the effect that he

believed all of the plaintiffs live "in poverty." (3JA683, 684.) The Superi-

57

or Court found that this purported evidence fell far short of the showing re-

quired to "justify waiving a bond.". (3JA 767.) In short, appellants were

not denied an opportunity to demonstrate their claimed indigence. They

simply failed to meet their burden to do so.

Nor, as the Superior Court recognized, did plaintiffs make any effort

to "provide supplemental evidence" of their claimed indigence "in the two

months between entry of the Cost Bond Order" and the September 14,2010

dismissal of their claims. (8JA1986.) In fact, plaintiffs' counsel did not

even bother to appear to oppose entry of the Final Judgment, which ex-

pressly incorporated the Cost Bond Order. This complete inaction stands in

sharp contrast to the cases upon which appellants' purport to rely. (See

AOB41-43.)23

In both Baltayan and Alshafle, for example, the plaintiffs not only

submitted additional evidence supporting their claims of indigence after the

trial court entered its cost bond requirement (but before the court entered an

order of dismissal), but each plaintiff also opposed dismissal of his claims

on the basis of that additional evidence. (Baltayan, supra, 90 Cal.App.4th

23 Appellants' contention that the Superior Court "claimed a deadline had existed and was missed" mischaracterizes the Superior Court's order. (AOB44.) The Superior Court did not impose an "arbitrary deadline." (AOB55.) It simply rejected plaintiffs' false assertion that "postjudg­ment" was the "first opportunity [they had] to present further infor­mation about their indigence." (8JA2102.)

58

at pp. 1431-1432; Alshafie v. Lallande (2009) 171 Cal.App.4th 421 ("Al-

shafie").) Moreover, when their opposition was unsuccessful, the plaintiffs

timely appealed the ensuing judgment.

Here, appellants made no attempt to supplement their initial, patently

insufficient showing in opposition to the Cost Bond Motion in the Superior

Court, even when faced with a proposed judgment expressly incorporating

the Cost Bond Order. (4JA785-786, 788-789.) Nor did they challenge the

Cost Bond Order on appeal from that judgment. Appellants have no basis

to assert that they were denied a fair "opportunity to prove their indigency."

(AOB41.) They did not attempt to.

v. CONCLUSION

F or the reasons set forth herein, Dole Food respectfully requests that

the judgment of the Superior Court be affirmed.

DATED: February 26,2013 Respectfully submitted,

GIBSON, DUNN & CRUTCHER LLP

By: ~2~J.r=') ANDREA E. NEUMAN I

Attorneys for Respondent Dole Food Company, Inc.

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CERTIFICATE OF COMPLIANCE

Pursuant to Rule 8.204(c) of the California Rules of Court, we here-

by certify that this brief contains 13,933 words, including footnotes. In

making this certification, I have relied on the word count function of the

computer program used to prepare the brief.

DATED: February 26,2013

Attorneys For Respondent Dole Food Company, Inc.

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CERTIFICATE OF SERVICE

I, Karen Minutelli, declare as follows:

I am employed in the County of Los Angeles, State of Cali fomi a, I am over the age of eighteen years and am not a party to this action; my business address is 2029 Century Park East, Suite 4000, in said county and· state. On February 26,2013, I served the foregoing document entitled:

BRIEF OF RESPONDENT DOLE FOOD COMPANY, INC.

on the parties stated below, by the following means of service:

Terrence P. Collingsworth, Esq. CONRAD & SCHERER, LLP 1156 15th Street NW, Suite 502 Washington, DC 20005 Telephone: (202) 543-4001 Facsimile: (866) 803-1125 Email: tc@iradvocates.org

VIA FEDEX OVERNIGHT: On the above-mentioned date, I placed a true copy of the foregoing document, together with an unsigned copy of this declaration, in a sealed envelope designated by F edEx with delivery fees paid or provided for, addressed to the person as indicated above and deposited same in a box or other facility regularly maintained by FedEx or delivered same to an authorized courier or driver authorized by FedEx to receive documents.

David Grunwald, Esq. DAVID GRUNWALD, ATTORNEY AT LA W 2029 Century Park East, Suite 4393 Los Angeles, CA 90067 Telephone: (323) 650-7988 Email: david@alaseniorliving.org

VIA MESSENGER: I placed a true copy ofthe foregoing document in an unsealed envelope addressed to the person at the address listed above and provided it to Rudy Ramirez in our Office Services Department for service for delivery before 5:30 p.m. on the above-mentioned date.

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Clerk of the Court For delivery to the Honorable Jane L. Johnson Superior Court of California, Central District 600 S. Commonwealth Avenue Los Angeles, CA 90005

VIA MESSENGER: I placed a true copy of the foregoing document in unsealed envelopes addressed to the persons at the addresses listed above and provided it to First Legal Support Services for service for delivery before 5:30 p.m. on the above-mentioned date.

Supreme Court of California 350 McAllister Street San Francisco, CA 94102-4797

VIA ELECTRONIC SUBMISSION: I served the foregoing document on the Supreme Court of California by electronic submission on the Court's website on the above-mentioned date.

VIA EMAIL: I served the foregoing document on the parties of this case listed above by electronic mail at the email addresses shown above.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this Certificate of Service was executed on February 26, 2013, at Los Angeles, California.

Karen Minutelli

2

CERTIFICATE OF SERVICE

I declare as follows:

I am employed in the County of Los Angeles, State of California, I am over the age of eighteen years and am not a party to this action; my business address is 2029 Century Park East, Suite 4000, in said county and state. On February 26, 2013, I received from Karen Minutelli an unsealed envelope containing a service copy ofthe foregoing document entitled:

BRIEF OF RESPONDENT DOLE FOOD COMPANY, INC.

I then sealed said envelope which was addressed as follows:

David Grunwald, Esq. David Grunwald, Attorney at Law 2029 Century Park East, Suite 4393 Los Angeles, CA 90067

and on the same date I served such envelope by personally delivering such envelope to said persons at the addresses listed above.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this Certificate of Service was executed on February 26,2013, at Los Angeles, California.

3

CERTIFICATE OF SERVICE

I declare as follows:

I am employed in the County of Los Angeles, State of California, I am over the age of eighteen years and am not a party to this action; my business address is 1511 West Beverly Blvd., Los Angeles, CA 90026, in said county and state. On February 26,2013, I received from Karen Minutelli an unsealed envelope containing a service copy of the foregoing document entitled:

BRIEF OF RESPONDENT DOLE FOOD COMPANY, INC.

I then sealed said envelope which was addressed as follows:

Clerk of the Court For delivery to the Honorable Jane L. Johnson Superior Court of California, Central District 600 S. Commonwealth Avenue Los Angeles, CA 90005

and on the same date I served such envelope by personally delivering such envelope to said persons at the addresses listed above.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this Certificate of Service was executed on February 26, 2013, at Los Angeles, California.

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