Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06AS04351
SCOTLAND, P. J.
Amy Grant sued Waste Management, Inc. (WMI), which she believed was her employer, for sexual harassment and constructive termination. The trial court granted WMI’s motion to quash service of summons.
On appeal, Grant contends the court erred in (1) finding that it lacked personal jurisdiction over the corporation, (2) denying her motion for reconsideration, (3) denying her the right to present oral argument on the motion for reconsideration, and (4) denying her leave to amend her complaint to substitute her actual employer, USA Waste of California (USA Waste), for a Doe defendant.
We shall affirm the order granting the motion to quash and shall dismiss the appeal from the order denying reconsideration and the order denying leave to amend the complaint.
FACTS
After receiving a right to sue letter from the Department of Fair Employment and Housing, Grant sued her former supervisor, Robert Dishman, and WMI for sexual harassment in violation of the Fair Employment and Housing Act, breach of contract, and constructive termination.
WMI moved to quash service of summons on the ground the court lacked personal jurisdiction over WMI. (Code Civ. Proc. 418.10; further section references are to the Code of Civil Procedure unless otherwise specified.) According to WMI, it had no direct involvement with the employment of Grant, who, along with Dishman, was employed by USA Waste, a subsidiary of WMI. WMI submitted the following evidence: It is a Delaware corporation with its principal place of business in Houston, Texas. It does not own real property, conduct business, or have any employees in California. It is a holding company whose “only assets generally are the stock of its subsidiaries.” WMI neither provides services to nor conducts business with consumers; it conducts all its operations through subsidiaries. Its subsidiaries have their own officers and directors, and any intra-company transactions between WMI and its subsidiaries are conducted at arm’s length. The phrases “Waste Management” and “WM Waste Management” are service marks, used by the subsidiaries in connection with offering waste services throughout the United States and do not refer to WMI individually. Its subsidiaries use these service marks to show their affiliation with WMI, but the usage indicates only that the separate legal entities are affiliates as defined by federal securities laws.
Contending that USA Waste was WMI’s alter ego, Grant opposed the motion to quash. She observed that WMI’s website identified the company as “the leading provider of comprehensive waste and environmental services in North America.” According to Grant, WMI “takes credit for all its subsidiaries as if the company itself is the only acting entity,” and presents itself as one big company. For example, when speaking of its subsidiaries, WMI uses the terms “our” and “we.” And WMI’s website enables job seekers to apply for positions at all of the subsidiaries. Grant argued that the website “clearly indicates there is a pervasive and continual element of control and even business dealings with the parent corporation and its subsidiary corporations.”
Claiming that Grant failed to present evidence supporting her alter ego theory, WMI argued that the fact a parent corporation is a holding company which owns a subsidiary doing business in California, without more, is insufficient to subject the parent company to personal jurisdiction in California. WMI asserted that its website clearly disclosed WMI does not directly operate any businesses in California, and its uncontroverted evidence explaining its business relationship with USA Waste overcame any ambiguities created by the website. WMI reiterated the phrase “Waste Management” as used on the website is simply a service mark employed by all of the subsidiaries and this did not make WMI their alter ego. All of WMI’s filings with the Securities and Exchange Commission, which could be accessed from the website, identified WMI as a holding company. Its Annual Report for 2005 explained: “The financial statements in this report represent the consolidation of Waste Management, Inc., a Delaware corporation, our wholly-owned and majority-owned subsidiaries and certain variable interest entities for which we have determined that we are the primary beneficiary. Waste Management, Inc. is a holding company that conducts all of its operations through subsidiaries. The terms ‘the Company,’ ‘we,’ ‘us’ or ‘our’ refer to Waste Management, Inc., its consolidated subsidiaries and consolidated variable interest entities. When we use the term ‘WMI,’ we are referring only to the parent holding company.”
The trial court granted WMI’s motion to quash, ruling that Grant failed to meet her burden of establishing WMI had sufficient minimum contacts with California. The court observed that simply being the parent company of an affiliate doing business in California is not sufficient to confer jurisdiction, and Grant failed to demonstrate an alter ego relationship between USA Waste and WMI.
Grant moved for reconsideration on the ground of a newly discovered document, the Territory Manager 2006 Sales Incentive Plan, that was obtained after the hearing on the motion to quash. (§ 1008, subd. (a).) She alleged the document demonstrated that WMI set the policies and procedures for USA Waste, including the compensation packages for employees. And she argued that a subsidiary’s contacts with the forum state can satisfy the minimum contacts test for the parent company if the subsidiary is the “general agent” for the parent in the forum state. In her view, the new evidence showed that USA Waste was nothing more than a general agent for WMI in California, which was sufficient to establish jurisdiction.
WMI opposed the motion on the ground Grant did not demonstrate new or different facts, circumstances, or law that could not have been presented earlier with the exercise of reasonable diligence. WMI pointed out that Grant’s attorney, Rod McClelland, had obtained a copy of the allegedly new document approximately three months prior to the hearing on the motion to quash. McClelland had obtained the information while representing one of Grant’s former coworkers, Heather Carpenter, at an administrative hearing before the Labor Commissioner concerning unpaid sales commissions. The attorney for USA Waste, who also represented WMI in the current action, had provided the document to McClelland. The document did not demonstrate that WMI had any contacts in California or that it was Grant’s employer. The only reference to “employer” in the document was to Waste Management, which was a service mark used by all of WMI’s subsidiaries and not a reference to WMI.
The trial court denied the motion, ruling (1) Grant did not establish why she could not, with reasonable diligence, have presented the new evidence at the hearing on the motion to quash, and (2) even if the court considered the evidence, it did not establish that USA Waste was WMI’s general agent in California, i.e., that it “was established for, or is engaged in, activities that, but for the existence of the subsidiary, [WMI] would have to undertake itself.”
Pursuant to section 474, Grant moved to amend her complaint to substitute USA Waste for a Doe defendant. Grant and McClelland submitted declarations asserting they were truly ignorant of the correct name of Grant’s employer. McClelland had not received or reviewed any of Grant’s wage documents prior to filing the complaint, and Grant truly believed WMI was her employer.
WMI’s codefendant, Robert Dishman, opposed the motion on the ground Grant’s W-2 disclosed her employer was Waste USA, which meant she was not truly ignorant of USA Waste’s identity or the facts giving rise to its liability. Dishman also argued that McClelland, who represented Grant’s coworker Carpenter in her action before the Labor Commissioner, properly named USA Waste as the defendant in that action, not WMI, and that since Carpenter’s action was filed before Grant’s complaint, McClelland knew that WMI was the proper defendant in the present action.
The court denied Grant leave to amend, ruling “there was no good faith, bona fide ignorance as required by section 474.” The court found Grant’s W-2 identified her employer as USA Waste, and this information was available to her prior to the filing of her complaint.
DISCUSSION
I
Grant contends the trial court erred in granting WMI’s motion to quash service of summons on the ground the court lacked personal jurisdiction over WMI. Prior to addressing her claim, it is helpful to set forth the pertinent legal framework.
A
When a defendant moves to quash service of process for lack of jurisdiction, plaintiff has the initial burden of demonstrating facts by a preponderance of the evidence justifying the exercise of jurisdiction in California. (Snowney v. Harrah's Entertainment, Inc. (2005) 35 Cal.4th 1054, 1062 (hereafter Snowney).) Plaintiff must do more than merely allege jurisdictional facts; plaintiff must provide affidavits and other authenticated documents demonstrating competent evidence of jurisdictional facts. (In re Automobile Antitrust Cases I & II (2005) 135 Cal.App.4th 100, 110.) “Once the plaintiff satisfies the initial burden of proof of showing a defendant’s minimum contacts in California, the burden shifts to the defendant to present a compelling case demonstrating that the exercise of jurisdiction by our courts would be unreasonable.” (Id. at pp. 110-111.)
“When the evidence of jurisdictional facts is not in dispute, whether the defendant is subject to personal jurisdiction is a legal question subject to de novo review. [Citation.] When evidence of jurisdiction is in dispute, the trial court’s determination of factual issues is reviewed for substantial evidence.” (DVI, Inc. v. Superior Court (2002) 104 Cal.App.4th 1080, 1091 (hereafter DVI).)
California courts may exercise personal jurisdiction on any basis consistent with the Constitution of California or the United States. (Code Civ. Proc., § 410.10.) “The exercise of jurisdiction over a nonresident defendant comports with these Constitutions ‘if the defendant has such minimum contacts with the state that the assertion of jurisdiction does not violate “‘traditional notions of fair play and substantial justice.’”’ Citations.” (Pavlovich v. Superior Court (2002) 29 Cal.4th 262, 268, quoting International Shoe Co. v. Washington (1945) 326 U.S. 310, 316 90 L.Ed. 95, 101-102; Snowney, supra, 35 Cal.4th at p. 1061.) Under the minimum contacts test, personal jurisdiction may be either general or specific. (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 445 (hereafter Vons).)
A nonresident defendant is subject to the forum’s general jurisdiction where the defendant’s contacts are substantial continuous, and systematic. (Perkins v. Benguet Consol. Min. Co. (1952) 342 U.S. 437, 445, 446 [96 L.Ed. 485, 492, 493].) In that situation, the cause of action need not be related to the defendant’s contacts. (Vons, supra, 14 Cal.4th at p. 445.) “Such a defendant’s contacts with the forum are so wide-ranging that they take the place of physical presence in the forum as a basis for jurisdiction.” (Id. at p. 446.)
If the nonresident defendant does not have substantial and systematic contacts with the forum state, the defendant may be subject to specific jurisdiction. “A court may exercise specific jurisdiction over a nonresident defendant only if: (1) ‘the defendant has purposefully availed himself or herself of forum benefits’ [citation]; (2) ‘the “controversy is related to or ‘arises out of’ [the] defendant’s contacts with the forum”’ [citation]; and (3) ‘“the assertion of personal jurisdiction would comport with ‘fair play and substantial justice’”’ [citation].” (Pavlovich v. Superior Court, supra, 29 Cal.4th at p. 269.)
For example, Empire Steel Corp. v. Superior Court (1961) 56 Cal.2d 823 held a foreign corporation could be subject to specific jurisdiction in California where the claims asserted arose out of the parent’s manipulation of the subsidiary. (Id. at p. 832.) The court concluded the parent corporation was subject to jurisdiction in California because it “knowingly caused its California subsidiary to make the contracts in suit” and therefore “engaged in activities creating substantial contacts within California in relation to the claim asserted.” (Ibid.)
In determining whether a nonresident parent corporation can be subjected to general jurisdiction in California, “[w]e start with the firm proposition that neither ownership nor control of a subsidiary corporation by a foreign parent corporation, without more, subjects the parent to the jurisdiction of the state where the subsidiary does business.” (Sonora Diamond Corp. v. Superior Court (2000) 83 Cal.App.4th 523, 540 (hereafter Sonora), italics added.) There generally are three circumstances that will subject a parent corporation to general jurisdiction based upon its subsidiaries’ contacts with the forum: (1) an alter ego theory; (2) an agency theory; and (2) the representative services doctrine. (Id. at pp. 538, 540-541, 543.) “Under these theories, the jurisdictional analysis bypasses the foreign defendant’s direct ‘minimum contacts’ with California as the contacts of that company are imputed via the presence of the local agent, through whom the foreign principal acts.” (F. Hoffman-La Roche, Ltd. v. Superior Court (2005) 130 Cal.App.4th 782, 796 (hereafter Hoffman-La Roche).)
A party asserting alter ego liability must establish (1) “such a unity of interest and ownership between the corporation and its equitable owner that the separate personalities of the corporation and the shareholder do not in reality exist” and (2) “an inequitable result if the acts in question are treated as those of the corporation alone.” (Sonora, supra, 83 Cal.App.4th at p. 538 .)
To establish agency liability, a party must demonstrate “the nature and extent of the control exercised over the subsidiary by the parent is so pervasive and continual that the subsidiary may be considered nothing more than an agent or instrumentality of the parent, notwithstanding the maintenance of separate corporate formalities . . . .” (Sonora, supra, 83 Cal.App.4th at pp. 540-541.) But the degree of control over the subsidiary must “be over and above that to be expected as an incident of the parent’s ownership of the subsidiary,” and must “reflect the parent’s purposeful disregard of the subsidiary’s independent corporate existence.” (Id. at p. 542.)
The “‘representative services’” doctrine (a species of agency) “supports the exercise of jurisdiction when the local subsidiary performs a function that is compatible with, and assists the parent in the pursuit of, the parent’s own business.” (Sonora, supra, 83 Cal.App.4th at p. 543.) But the representative services theory is inapplicable to a holding company because “[t]o find the holding company subject to jurisdiction simply because the holding company chose to invest rather than operate would swallow the distinction, made in the case law . . . between holding companies and operating companies . . . .” (Id. at p. 545.)
B
The authorities cited above demonstrate it is not enough to merely allege that a defendant corporation should be subject to California’s jurisdiction because the corporation has minimum contacts within California. The plaintiff must identify the jurisdictional theory pursued, and present evidence and analysis supporting the chosen theory or theories. The various theories are not interchangeable; it is not sufficient simply to cook up a jurisdictional soup comprised of a “smidge” of one theory and a “dash” of another.
Our review of Grant’s appeal is hampered by the fact that she does not expressly articulate the specific basis for personal jurisdiction. She contends that her true employer, USA Waste, represented itself to her as “Waste Management” on a daily and continuous basis during her employment. She asserts that on its website located at www.wm.com, WMI “is presented as a single seamless single entity working in communities throughout North America” and as a “whole, monolithic entity.” The website does not have an obvious disclaimer that the term “Waste Management” is “an alliance of separate and distinct corporations, affiliates, subsidiaries or entities,” and does not clearly provide notice that WMI is merely a holding company. Grant argues that the use of the Waste Management service mark is confusing and that if WMI “is not the ‘employer’ entity, then it is either seeking to hide behind its subsidiaries, or is providing a protective tent of protection to its subsidiaries such as USA [Waste], by confusion caused by the common and frequent use of [“WMI”] and/or the use of their service marks.” According to Grant, WMI and the trial court failed to “deal[] with the fact that conducting business in the forum state via corporate agents does result in sufficient contacts, even where the agents are subsidiary coporations [sic].”
We presume Grant is continuing to pursue the only identifiable contention that she raised in the trial court--general jurisdiction over a parent corporation under an alter ego and/or agency theory.
We deny Grant’s request that we take judicial notice of various documents that were not presented in the trial court in support of her opposition to the motion to quash. (People v. Preslie (1977) 70 Cal.App.3d 486, 493.)
As discussed previously, to establish jurisdiction via an alter ego theory, it was essential for Grant to submit evidence demonstrating (1) there is “such a unity of interest and ownership” between USA Waste and its equitable owner WMI “that the separate personalities of the corporation and the shareholder do not in reality exist,” and (2) there would be “an inequitable result if the acts in question are treated as those of the corporation alone.” (Sonora, supra, 83 Cal.App.4th at p. 538.)
The first element requires an examination of “numerous factors, including inadequate capitalization, commingling of funds and other assets of the two entities, the holding out by one entity that it is liable for the debts of the other, identical equitable ownership in the two entities, use of the same offices and employees, use of one as a mere conduit for the affairs of the other, disregard of corporate formalities, lack of segregation of corporate records, and identical directors and officers. [Citation.] No single factor is determinative, and instead a court must examine all the circumstances to determine whether to apply the doctrine. [Citation.]” (VirtualMagic Asia, Inc. v. Fil-Cartoons, Inc. (2002) 99 Cal.App.4th 228, 245 (hereafter VirtualMagic).)
Grant does not address any of these factors, other than saying certain corporate board members of USA Waste are also board members for WMI, and she does not point to any supporting evidence that was presented to the trial court in opposition to the motion to quash. She simply refers to claims she made in her points and authorities in support of her motion for reconsideration. Our review of the denial of the motion to quash is limited to evidence presented to the trial court in conjunction with the motion. (DVI, supra, 104 Cal.App.4th at p. 1091.)
In essence then, Grant’s argument is merely that WMI’s website and the use of the Waste Management service mark confused her because it leads one to believe that WMI and its subsidiaries are one big entity. But this is insufficient to establish jurisdiction on an alter ego basis. Moreover, Grant points to no injustice that would result if the wrongful conduct alleged in her complaint is treated as that of USA Waste alone and WMI is not held accountable. The fact she may face procedural impediments to suing USA Waste at this point in time is not a reason to subject its nonresident parent corporation to California’s jurisdiction. Any inequity was caused by Grant’s own failure to name the correct defendant, which was the employer listed on her W-2.
Turning to the principal/agent theory, this is a fact-driven question. The focus is on the nature of the control exercised by the parent over the subsidiary, and it must be beyond the degree of control that is an ordinary and necessary incident of the parent’s ownership of the subsidiary. (Sonora, supra, 83 Cal.App.4th at p. 542.) Ordinary control “comprehends such common characteristics as interlocking directors and officers, consolidated reporting, and shared professional services. [Citations.] The relationship of owner to owned contemplates a close financial connection between parent and subsidiary and a certain degree of direction and management exercised by the former over the latter.” (Id. at pp. 540-541.) The principal/agent theory will not be invoked unless the degree of control exceeds this level and reflects the parent’s purposeful disregard of the subsidiary’s independent corporate existence. The parent corporation must exercise “such a degree of control over its subsidiary corporation that the subsidiary can legitimately be described as only a means through which the parent acts, or nothing more than an incorporated department of the parent . . . .” (Id. at p. 541.) “As a practical matter, the parent must be shown to have moved beyond the establishment of general policy and direction for the subsidiary and in effect taken over performance of the subsidiary’s day-to-day operations in carrying out that policy.” (Id. at p. 542, original italics; accord, VirtualMagic, supra, 99 Cal.App.4th at p. 245.)
“It is the ‘rare occasion’ where a court is willing to treat a parent and subsidiary as one entity for jurisdictional purposes. [Citation.] In the absence of a showing of fraud or injustice, courts will generally respect the presumption of corporate separateness in a jurisdictional analysis. [Citations.]” (Hoffman-La Roche, supra, 130 Cal.App.4th at p. 797.)
Again, Grant fails to make the requisite factual showing necessary to establish that USA Waste was operating as WMI’s agent. She presents no evidence that WMI controlled USA Waste’s day-to-day operations rather than merely establishing general policy. Grant simply relies on the united front presented by the website. But the use of the terms “we” or “the company,” as well as consolidated financial reports, joint employment of professional services, and consolidated media releases “are typical and actually expected of affiliated or wholly owned companies, and such facts do not establish agency for purposes of jurisdiction. (Hoffman-La Roche, supra, 130 Cal.App.4th at p. 801.)
Relying on Paneno v. Centres for Academic Programmes Abroad Ltd. (2004) 118 Cal.App.4th 1447, 1455-1457 (hereafter Paneno), Grant contends WMI should be subject to California’s jurisdiction because of its confusing use of the same generic trade name “Waste Management” for itself and its subsidiaries, which she construes as “trickery” to avoid having to answer claims in California. We are not persuaded.
The plaintiff in Paneno contracted with a California affiliate (CAPA-USA) of a British company (CAPA-UK) for education abroad services, and was severely injured on the premises of his leased residence in Italy. CAPA-UK actually administered the programs and entered into contracts with local entities in the home countries to house the foreign students. CAPA-USA was not a subsidiary but was an “administration arm” of CAPA-UK. CAPA-USA marketed and recruited the students, and entered into the contracts with them and the educational institutions within California for the provision of international study programs, all in furtherance of and as an extension of CAPA-UK’s business. The students paid their money to CAPA-USA, which transmitted the funds directly to CAPA-UK. (Paneno, supra, 118 Cal.App.4th at pp. 1451-1452.) Paneno affirmed the exercise of jurisdiction over CAPA-UK, emphasizing that, unlike the parent company in Sonora, CAPA-UK was not just a holding company but was itself engaged in business operations closely connected to CAPA-USA, which performed functions solely to assist CAPA-UK in its business. (Paneno, supra, 118 Cal.App.4th at pp. 1456-1457.) Paneno also emphasized that the two companies had specifically designed their operating structure by trickery--with one company to recruit students and the other to provide accommodations abroad--all to avoid either company having to answer claims in California for injuries incurred abroad. (Id. at p. 1457.)
Grant presented no evidence of either factor. WMI, unlike CAPA-UK, is a true holding company. There is nothing to suggest that WMI’s subsidiaries do not operate autonomously or that they operate solely to further WMI’s business activities. Nor is there any evidence that WMI’s corporate structure is designed or conducted through trickery or deception. Grant merely alleges this is so, but an allegation is not evidence. Moreover, Grant was able to sue the subsidiary USA Waste in California, unlike the plaintiff in Paneno.
Grant’s appellate arguments about the evidentiary import of WMI’s website appear to morph from an assertion of general jurisdiction on an agency theory into an assertion of specific jurisdiction based on WMI’s alleged purposeful solicitation of business in California via the company website. To support her position, she relies on Snowney, supra, 35 Cal.4th 1054.
To the extent Grant is attempting to raise an alternate theory of personal jurisdiction, it is forfeited because of (1) her failure to raise the theory in the trial court in her opposition to the motion to quash, and (2) her failure to clearly articulate any other jurisdictional theory under an appropriate argument heading, with supporting analysis relating the evidence to the elements of the particular theory advanced by Grant. (Brown v. Boren (1999) 74 Cal.App.4th 1303, 1316 [a litigant may not change his or her position on appeal and assert a new theory because to permit this change in strategy would be unfair to the trial court and the opposing litigant]; Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 [when an appellant fails to raise a point, or fails to support a point with reasoned argument and citations to authority, it is forfeited]; Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830-1831, fn. 4 [appellant must present each point separately in the opening brief under an appropriate heading, showing the nature of the question to be presented and the point to be made].)
In any event, her contention is unavailing because Snowney is not even remotely apposite. There, a California resident brought a class action against a group of Nevada hotels, alleging causes of action for fraudulent business practices, breach of contract, unjust enrichment, and violations of Business and Professions Code section 17500 et seq., based on the hotels’ conduct in failing to provide notice of an energy surcharge imposed on hotel guests. (Snowney, supra, 35 Cal.4th at pp. 1059-1060.) The hotels did not conduct business in California or have California bank accounts or employees, but they advertised heavily in the state using California publications and media, specifically targeted California residents and regularly sent mailings advertising their hotels to selected California residents, and received a significant portion of their business from California residents. (Id. at pp. 1059, 1064-1065.) Snowney held (1) the hotels’ conduct established they purposefully and voluntarily directed their activities toward California such that they should expect to be subject to California courts’ jurisdiction based on their contacts with this forum, and (2) the injury suffered by the plaintiff “relates directly to the content of defendants’ advertising in California.” (Id. at pp. 1067, 1070, italics in original.) Thus, it would not be unfair or unreasonable to exercise jurisdiction over the hotels in California. (Id. at p. 1070.)
Here, Grant fails to demonstrate that WMI (as opposed to its subsidiaries) purposefully availed itself of the benefits of doing business in California such that it could expect to be subject to the jurisdiction of the California courts. (Snowney, supra, 35 Cal.4th at p. 1062.) Grant did not submit any evidence showing that WMI purposely directed any marketing efforts to Californians or that it specifically solicited business from California residents. The Waste Management website she believes is so compelling (see, www.wm.com) simply provides information regarding the various nationwide services available from WMI’s subsidiaries and enables job applicants to apply for positions with the various subsidiaries. If potential customers or job applicants visiting the website seek further information or wish to use any of these services, they are directed to Waste Management companies operating within their state of residence after they provide their location or zip code. There is no evidence that WMI provides any of the available services or receives any of the revenues. As a holding company that owns shares of the subsidiary companies, WMI may eventually benefit financially from the subsidiaries’ activities. But Grant does not provide any authority that this attenuated benefit to a shareholder is the equivalent of the shareholder purposefully availing itself of the privilege of doing business in California. (Id. at p. 1062.)
Grant also fails to establish another requisite element for specific jurisdiction, i.e., the controversy must be related to or arise out of WMI’s contacts with California. (Snowney, supra, 35 Cal.4th at pp. 1062, 1067.) In Snowney, the defendant hotels advertised in California for the purpose of soliciting California residents to patronize defendants’ hotels in Nevada, which led plaintiffs in the class action to patronize the Nevada hotels and thus be subjected to the challenged energy surcharge without fair notice. Grant presented no similar evidence in trial court showing the website led her to become employed by USA Waste, which then led to her being sexually harassed by Dishman, followed by her constructive termination.
For all the reasons stated above, Grant has not met her burden of demonstrating that the trial court erred in granting WMI’s motion to quash service of summons.
II
Next, Grant challenges the trial court’s denial of her motion for reconsideration. She also contends the trial court deprived her of the right to present oral argument to support her motion for reconsideration.
WMI argues the appeal from this ruling must be dismissed because an order denying reconsideration is not appealable.
This court has held that an order denying reconsideration is not appealable. (Reese v. Wal-Mart Stores, Inc. (1999) 73 Cal.App.4th 1225, 1229-1230 (hereafter Reese).) Other courts have similarly ruled that an order denying reconsideration, like an order denying a new trial or denying a motion to vacate a prior judgment, is not appealable. (See, e.g., Annette F. v. Sharon S. (2005) 130 Cal.App.4th 1448, 1458-1459; Crotty v. Trader (1996) 50 Cal.App.4th 765, 768-769; Estate of Simoncini (1991) 229 Cal.App.3d 881, 891; In re Jeffrey P. (1990) 218 Cal.App.3d 1548, 1550, fn. 2.) “[T]o hold otherwise would permit, in effect, two appeals for every appealable decision and promote the manipulation of the time allowed for an appeal.” (Reese, supra, 73 Cal.App.4th at p. 1242.)
We acknowledge there is a split in authority and some case law has held the denial of a motion for reconsideration may be treated as an “order made after a judgment” (§ 904.1, subd. (a)(2)) and deemed appealable, if the original order is appealable and if the motion for reconsideration is based on new and different facts. (See, e.g., Blue Mountain Development Co. v. Carville (1982) 132 Cal.App.3d 1005, 1011 (hereafter Blue Mountain).) However, the court that decided Blue Mountain later rejected its holding and “determined that the better ruling is that a denial of a motion for reconsideration is a nonappealable order.” (Rojes v. Riverside General Hospital (1988) 203 Cal.App.3d 1151, 1160, overruled on other grounds in Passavanti v. Williams (1990) 225 Cal.App.3d 1602, 1607.)
Accordingly, we shall dismiss Grant’s appeal from the order denying reconsideration (Reese, supra, 73 Cal.App.4th at pp. 1229-1230), which necessarily includes her challenge to the court not affording her the opportunity to present oral argument concerning the motion for reconsideration.
In any event, Grant cannot satisfy the requirements of section 1008. It was not sufficient for her to present new or different facts; she also had to demonstrate that these facts could not have been presented earlier with the exercise of due diligence. (McPherson v. City of Manhattan Beach (2000) 78 Cal.App.4th 1252, 1265; Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 688.) Grant’s attorney had this information available to him prior to the motion to quash, and it is not a satisfactory excuse that he did not understand the import of the information or the need to submit it earlier. (In re Marriage of Burgard (1999) 72 Cal.App.4th 74, 81.) The trial court did not abuse its discretion in denying reconsideration. (Garcia v. Hejmadi, supra, 58 Cal.App.4th at p. 686 [the denial of a motion for reconsideration is reviewed under an abuse of discretion standard].)
III
Grant’s last contention is that the trial court erred in denying her leave to amend her complaint to substitute her true employer, USA Waste, for a Doe defendant.
An order denying leave to amend to substitute parties is not an appealable order. (Randall v. Beber (1950) 101 Cal.App.2d 179, 180-183.) A plaintiff denied leave to amend must (1) wait until a final judgment is entered as to all the parties actually in the case, (2) appeal from the judgment and raise the alleged erroneous denial of leave to amend, and (3) if the appellate challenge is successful, go through a second trial. (Randall v. Beber, supra, 101 Cal.App.2d at p. 182) “If this situation needs correcting it can be done only by the Legislature, which has specifically provided the instances in which an appeal lies, and has either declined or neglected to include an order of this kind.” (Ibid.)
The other alternative is for the plaintiff to seek review of the trial court’s order by filing a timely writ petition. “‘[M]andamus will lie when it appears that the trial court has deprived a party of an opportunity to plead his cause of action or defense. . . .’ [Citations.]” (Figueroa v. Northridge Hospital Medical Center (2005) 134 Cal.App.4th 10, 13 (hereafter Figueroa.) Grant did not pursue this option.
Relying on inapposite cases, Grant argues that the denial of leave to amend is an appealable order when “it has the effect of eliminating all issues between the plaintiff and a defendant so that there is nothing left to be tried or determined. [Citations.]” (Figueroa, supra, 134 Cal.App.4th at p. 12; see also Wilson v. Sharp (1954) 42 Cal.2d 675, 677 (hereafter Wilson); Ingram v. Superior Court (1979) 98 Cal.App.3d 483, 489 (hereafter Ingram).) In her view, that is what occurred. She is incorrect.
Figueroa is not helpful to Grant because it involved an order denying leave to amend to add class allegations, and the court ultimately ruled such an order is not appealable. (Figueroa, supra, 134 Cal.App.4th at p. 13.) Wilson concerned an order striking the only count of a multi-count complaint against the defendant county counsel. Because the order removed the defendant from the case, it was a final judgment as to him and was appealable as a final judgment. (Wilson, supra, 42 Cal.2d at p. 677.) The trial court in Ingram granted the plaintiff’s motion to add the Estate of Russell Marvin Parks as a defendant, and then granted a motion to substitute the administratrix of the estate in place of the Estate of Parks. Another defendant moved to strike the amendment and order of substitution, and the court granted the motion. (Ingram, supra, 98 Cal.App.3d at pp. 488-489.) The plaintiff appealed, and Ingram held the order was appealable since it had the effect of eliminating the Estate of Parks from the case and, thus, was a final judgment as to that defendant. (Id. at p. 489.)
Here, USA Waste was never named or added as a defendant and then removed from the case. The denial of leave to amend did not remove USA Waste from the action because it was never a party. Thus, the order denying leave to amend did not have the effect of eliminating all issues between the plaintiff and a defendant so that there was nothing left to be tried or determined. The trial court’s order is not appealable (Randall v. Beber, supra, 101 Cal.App.2d at p. 182), and we lack jurisdiction to hear the matter. (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696 [reviewing court has jurisdiction over a direct appeal only when there is an appealable order or an appealable judgment].)
DISPOSITION
The order granting the motion to quash is affirmed. Grant’s appeal from the order denying reconsideration and her appeal from the order denying leave to amend her complaint are dismissed. The parties shall bear their own costs on appeal.
We concur: BLEASE, J. DAVIS, J.