Consolidated Dock & Storage Co. v. Superior Court

The petitioners here are the defendants in an action brought by alleged shareholders in the right of a domestic corporation. The defendants’ motion for security for costs under Corporations Code section 834 1 *951 was denied by the superior court upon the ground that “it has been waived by failure to make it within the 30 days.” This petition has been brought to compel the superior court to hear the motion on' its merits. We have concluded that there was no waiver, and that the defendants are entitled to have the merits of their motion decided in the trial court.

On May 21, 1970, the shareholders’ suit was filed. Summons and complaint were served on June 25, 1970. In a telephone conversation between the attorneys for the respective parties on July 1, it was agreed that defendants might have until July 16, 1970, “to move, answer or otherwise plead to the complaint.” The oral agreement was confirmed by a letter sent by defendants’ attorney the same day, a copy of which was signed by one of the attorneys representing plaintiffs (real parties in interest).

On the telephone the attorneys agreed it would be desirable for them to meet to try to dispose of the case. Such a…