Bailey v. Fosca Oil Co., Ltd.

BROWN, J.

Respondents have moved this court to dismiss the appeal on the ground that appellants attempt to appeal from an order which is not appealable.

[308]

Appellants, stockholders of Fosca Oil Co., Ltd., brought a derivative action against the corporation and certain officers and directors of the corporation, the complaint containing three alleged causes of action. Respondents’ motion for an order requiring plaintiffs to furnish security for costs was denied. On appeal, the order of denial was affirmed as to the first and second causes of action and remanded to the trial court with directions to reconsider the motion as to the third cause of action.

(Bailey

v.

Fosca Oil Co.,

180 Cal.App.2d 289 [4 Cal.Rptr. 474].) Appellants served and filed a notice of intention to enter the default of respondents. Respondents’ motion for an order staying proceedings and extending time to answer or otherwise plead, made pursuant to section 834 of the Corporations Code, was granted by an order providing in material part as follows:

“It is ordered by the Court that the motion for order staying prosecution and extending time to plead be, and it is hereby granted,

and the plaintiff shall not apply for a default

and the defendant shall not be required to file any pleading until ten (10) days after the defendant’s motion for security under Corporations Code section 834 is disposed of.” (Emphasis added.)

This appeal is from that order. Respondents contend it is an order staying proceedings and nonappealable. Appellants contend it is an injunctive order and appealable.

Concededly, an order staying proceedings in the same action is not an appealable order; the remedy is by application for a

mandamus

to compel the trial court to proceed

(Rhodes