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Anandan v. Singapore Airlines Ltd.4/5/2005
ave waived both issues, and for that reason, we conclude that there is no reason to exercise our discretion to consider an issue not raised in the opening brief, and only briefly mentioned as a conclusion in the reply brief. (See Hibernia Sav. and Loan Soc. v. Farnham, supra, 153 Cal. at p. 584.)
1.Dismissal versus Stay
Appellants contend that the trial court should have stayed the action, rather than dismiss it, and should have added conditions to the order.
"When a court upon motion of a party or its own motion finds that in the interest of substantial justice an action should be heard in a forum outside this state, the court shall stay or dismiss the action in whole or in part on any conditions that may be just." (§ 410.30, subd. (a).) Thus, whether to stay or dismiss, or whether to stay rather than dismiss, is committed to the sound discretion of the trial court. (See Stangvik, supra, 54 Cal.3d at pp. 754-756.)
As respondents point out, appellants did not ask the trial court to stay the action, rather than dismiss it, and did not suggest that the order contain conditions. It is "inappropriate and futile for us to attempt to review for abuse a discretion the court was never requested to exercise and did not purport to exercise." (Agricultural Labor Relations Bd. v. Laflin & Laflin (1979) 89 Cal.App.3d 651, 667, fn. 16.)
Appellants claim that they did, in fact, ask the trial court to stay the action and to include conditions, by means of a letter to opposing counsel, dated March 9, 2004, in which appellants' counsel objected to the proposed order submitted by respondents, signed by the judge, and entered on April 16, 2004. As we have already observed, appellants have attached a copy of the letter to their opening brief, and have not shown that this letter was before the trial court. "As a general rule, documents not before the trial court cannot be included as a part of the record on appeal. [Citation.]" (Doers v. Golden Gate Bridge etc. Dist., supra, 23 Cal.3d at p. 184, fn. 1.)
In any event, even if the trial court had the letter before it and interpreted it as a request for a different order, it would not have had authority to act on it, since the court had already entered its final order on February 26, 2004, and the minutes constituted the final, appealable judgment. (See § 904.1, subd. (a)(3).) Once a judgment has been entered, the trial court loses the power to modify it (other than to correct clerical errors), unless it is explicitly authorized by a relevant statute, such as Code of Civil Procedure section 657 (motion for new trial), section 663 (motion to set aside judgment and enter new judgment), or section 473 (motion to amend order), and the statutory conditions are satisfied. (Craven v. Crout (1985) 163 Cal.App.3d 779, 782.) Appellants made no motion for a new trial or to vacate the order and enter a different order, and we have no power to review the denial of an order for which appellants never applied. (See Dei Tos v. Dei Tos (1951) 105 Cal.App.2d 81, 83.)
Appellants contend that because section 410.30, subdivision (a), states that the court "shall stay or dismiss . . . on any conditions that may be just," it confers no discretion upon the trial court, and the court must impose conditions that may be just. Appellants reason that since respondents promised to submit to the jurisdiction of the Singapore courts and to waive the statute of limitations, conditioning the order on such promises would have been just, and therefore mandatory.
We agree that the suggested conditions would have been just, and since the trial court based its decision in part upon its finding that respondents had agreed
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