AARON, J.
Plaintiff James Sarnecky, together with a putative class of other homeowners in the Seahaus La Jolla condominium project (the Seahaus project), appeal from a judgment in favor of defendant Barratt Developments, PLC (Barratt), a British homebuilding company, after the trial court sustained Barratt's demurrer to the plaintiffs' sixth amended complaint (6AC).
The putative class action seeks redress over the allegedly fraudulent marketing and sale of condominiums that the plaintiffs claim were defectively constructed. The plaintiffs also named the developer, architect, general contractor, engineer, framing beam supplier, and numerous lenders who financed mortgages used to purchase the allegedly defective units, in the 6AC. The main thrust of the 6AC is that the defendants defrauded the plaintiffs into purchasing condominium units at prices that exceeded the true value of the units, and that the true value of the units was substantially less than the price the plaintiffs paid due to poor construction practices and defects in the resulting construction. The 6AC alleges three causes of action against Barratt: intentional misrepresentation, negligent misrepresentation, and concealment of material facts.
Barratt is the former parent company of an American subsidiary, Barratt American, Incorporated (Barratt American), which filed for bankruptcy protection in 2008. However, Barratt sold its interest in Barratt American in August 2004. Although the 6AC makes certain generalized allegations that some of the misrepresentations occurred prior to August 2004, when Barratt was still involved in the Seahaus project through Barratt American, other, more specific allegations of the complaint demonstrate that virtually all of the conduct about which the plaintiffs are complaining appears to have occurred after August 2004. In fact, some allegations of the complaint assert that the conspiracy to misrepresent and conceal material facts did not commence until March 2005.
The trial court concluded that the allegations against Barratt pertained to events that occurred after Barratt had sold its interest in Barratt American, and, on this basis, concluded that the plaintiffs could not state a claim against Barratt, even under an alter ego theory with respect to Barratt American. The trial court therefore sustained Barratt's demurrer without granting the plaintiffs leave to amend. The court ruled on the demurrer after hearing oral argument from Barratt only, due to a calendaring error by plaintiffs' counsel.
On appeal, the plaintiffs contend that the trial court erred in sustaining Barratt's demurrer. The plaintiffs also contend that they are entitled to mandatory relief from the dismissal pursuant to Code of Civil Procedure
Barratt cross-appeals from the trial court's order denying its request for sanctions for having to oppose a motion for reconsideration filed by the plaintiffs.
After reviewing the allegations of the complaint de novo and considering the parties' arguments on appeal, we conclude that the trial court's order sustaining Barratt's demurrer without leave to amend should be affirmed. Plaintiffs have filed seven complaints in this matter. Although the plaintiffs did not name Barratt as a defendant until the fourth amended complaint, they could have done so at an earlier point in the litigation, since Barratt's relationship to Barratt American was known from the outset. Despite having had more than a year and half since the filing of their original complaint to investigate Barratt's role, if any, in the underlying events, the plaintiffs have failed to present anything more than generalized assertions that Barratt was involved in the alleged misrepresentations regarding the Seahaus project, and these assertions conflict with other portions of the 6AC.
We further conclude that the trial court did not err in denying the plaintiffs' request for relief pursuant to section 473, subdivision (b). The plaintiffs are not entitled to mandatory relief under the statute, and the trial court acted within its discretion in denying relief under the discretionary relief provision.
Finally, we conclude that the trial court did not abuse its discretion in denying Barratt's request for sanctions. We therefore affirm the judgment of the trial court.
Barratt is a British homebuilder. In 1980, Barratt formed Barratt American to construct housing in southern California. In 2002, Barratt, through Barratt American, "initiated . . . the Seahaus La Jolla, then known as Inns at La Jolla." Barratt, through Barratt American, acquired the land and obtained construction loans to build Seahaus.
According to the 6AC, as of April 13, 2004, "[n]one of the 138 condominiums in the Seahaus La Jolla project had been built." In fact, construction plans for the project and building permits were not issued until April 9, 2004.
The 6AC alleges that on five occasions prior to or during August 2004, defendants CLB Partners, Ltd., (CLB), a Texas limited partnership doing business in San Diego and a developer of the Seahaus project, as well as another defendant, Webcor Development, Inc. (Webcor), the "construction contractor," deviated from the construction plans that had been submitted to, and approved by, the City of San Diego.
Barratt sold Barratt American on August 30, 2004. The plaintiffs allege that prior to the sale, Barratt "used its control of Barratt American to carry out its plan to withdraw and divert $23 million from the Seahaus La Jolla Guaranty Bank construction loan." As alleged in the 6AC, this $23 million was part of $165 million that Barratt withdrew from Barratt American when Barratt sold its interest in the American subsidiary.
The plaintiffs allege that on March 30, 2005, "a decision was made to seal up the Seahaus buildings, despite the discovery of extensive water damage to the manufactured PSL Parallam." Plaintiffs further allege:
In the immediately succeeding paragraph, however, the plaintiffs allege that Barratt and Barratt American agreed to "conceal the defects and shoddy construction practices," and that "[t]his agreement was made and carried out before the sale of British Barratt Developments PLC's interest in Barratt American was closed." The 6AC included no specifics as to the timing of the alleged concealments by Barratt, or the alleged agreement to conceal between Barratt and Barratt American.
Unaware of the water damage to the PSL Parallam beams, the plaintiffs closed the purchases on their condominiums between May 2005 and January 2007.
In December 2008, Barratt American filed for bankruptcy.
The plaintiffs filed their original complaint on May 21, 2010, as a putative class action. The plaintiffs contended that they brought suit "after material construction defects were discovered at [the Seahaus project]. . . ." The plaintiffs named as defendants the developers, architect, general contract, engineer, framing beam supplier, and numerous lenders who financed the mortgages that the plaintiffs used to purchase their condominium units. According to Barratt, the plaintiffs did not name Barratt as a defendant in the first four iterations of the complaint, but first amended the operative complaint to name Barratt as a defendant in their fourth amended complaint.
The trial court sustained Barratt's demurrer to the fourth amended complaint.
The plaintiffs then filed the 6AC, which sets forth 11 causes of action against the various defendants. Barratt is named in only the first three causes of action. The first cause of action alleges a claim for "Fraud and Deceit: Intentional Misrepresentation of Fact." The second cause of action alleges a claim for "Fraud and Deceit: Suppression of Material Facts." The third cause of action alleges a claim for "Fraud and Deceit: Negligent Misrepresentation of Fact."
Barratt demurred to the 6AC. After briefing on the matter, on November 16, 2010, the trial court issued a tentative order proposing to overrule Barratt's demurrer. The trial court was set to hear argument from the attorneys 10 days later. However, plaintiffs' counsel apparently miscalendared the time of the hearing. Believing the hearing to be scheduled for 10:30 a.m. rather than 9:00 a.m., plaintiffs' counsel failed to appear for the hearing.
On December 6, 2012, the trial court issued a minute order sustaining, without leave to amend, Barratt's demurrer to the first, second, and third causes of action, on the following grounds:
The plaintiffs moved for reconsideration of the order pursuant to section 1008, and also sought relief from the dismissal of Barratt pursuant to section 473, subdivision (b). The trial court denied the motions, concluding that the plaintiffs had not offered any new or different facts, circumstances or law that would justify reconsideration, and concluding that the plaintiffs had not demonstrated that the order sustaining Barratt's demurrer was the result of counsel's "purported mistake, inadvertence, surprise or excusable neglect."
Barratt moved for sanctions under section 1008, subdivision (d), on the ground that the plaintiffs had failed to meet the requirements of subdivision (a) of that provision. The trial court denied Barratt's request for sanctions. The court's reasons for denying the request were not set forth in the order.
The trial court entered judgment in favor of Barratt and against the plaintiffs on the causes of action asserted against Barratt, and dismissed Barratt from the action with prejudice.
Both parties filed timely notices of appeal.
We review de novo an order sustaining a demurrer to determine whether the complaint alleges facts sufficient to state a cause of action. (CPF Agency Corp. v. Sevel's 24 Hour Towing Service (2005) 132 Cal.App.4th 1034, 1042.) We exercise our independent judgment as to whether the complaint states a cause of action. (Palestini v. General Dynamics Corp. (2002) 99 Cal.App.4th 80, 86.) "`A judgment of dismissal after a demurrer has been sustained without leave to amend will be affirmed if proper on any grounds stated in the demurrer, whether or not the court acted on that ground.' [Citation.]" (Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1153.)
When a demurrer is sustained without leave to amend, "we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff." (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
The causes of action alleged against Barratt are all based on claims for "fraud and deceit." Specifically, the plaintiffs allege that Barratt is liable for (1) intentional misrepresentation, (2) "suppression of material facts," which we interpret to be a claim for "concealment," and (3) negligent misrepresentation.
To state a fraud cause of action, plaintiffs must allege (1) a misrepresentation (a false representation, concealment or nondisclosure)
"In California, fraud must be pled specifically; general and conclusory allegations do not suffice." (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645 (Lazar).) The heightened pleading standard for fraud requires "`pleading facts [that] "show how, when, where, to whom, and by what means the representations were tendered."' [Citation.]" (Ibid.) Further, "`[a] plaintiff's burden in asserting a fraud claim against a corporate employer is even greater. In such a case, the plaintiff must "allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written."'" (Hamilton v. Greenwich Investors XXVI, LLC (2011) 195 Cal.App.4th 1602, 1614, quoting Lazar, supra, at p. 645.) The normal policy of liberally construing pleadings against a demurrer will not be invoked to sustain a fraud cause of action that fails to set forth such specific allegations. (Lazar, supra, at p. 645.)
In addition, every element of a fraud cause of action must be specifically pleaded. (Service by Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4th 1807 (Service by Medallion); Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.) This pleading requirement of specificity applies not only to the alleged misrepresentation (or material omission), but also to the elements of causation and damage. "In order to recover for fraud, as in any other tort, the plaintiff must plead and prove the `detriment proximately caused' by the defendant's tortious conduct. (Civ. Code, § 3333.) . . . `Whatever form it takes, the injury or damage must not only be distinctly alleged but its causal connection with the reliance on the representations must be shown.' [Citation.]" (Service by Medallion, supra, at p. 1818.)
The plaintiffs' fraud and deceit causes of action against Barratt are based on allegations that Barratt was involved in a conspiracy to conceal from plaintiffs the existence of construction defects in the Seahaus project. However, the plaintiffs' causes of action for fraud and deceit against Barratt are deficient in a number of respects. In order to better explain these deficiencies, we provide, verbatim, some of the allegations from the 6AC.
In the portion of the 6AC in which the plaintiffs attempt to describe the defendants, the plaintiffs allege the following:
While the 6AC alleges that Barratt and/or Barratt American were aware of "significant and detailed construction defects, shoddy workmanship and deficiencies in the construction" during the time Barratt still owned Barratt American, it does not state when the alleged defective construction occurred, or when, prior to the filing of the lawsuit, Barratt or Barratt American were made aware of the defects. Further, the 6AC fails to identify any misrepresentations and/or omissions that either Barratt or Barratt American made to conceal the alleged defects. In fact, the 6AC appears to suggest that very little, if any, of the actual construction was completed prior to the time that Barratt divested itself of its ownership of Barratt American, and further suggests that the real problems occurred, and were hidden from potential purchasers, in 2005.
For example, elsewhere in the 6AC, the plaintiffs allege that "[n]one of the 138 condominiums in the Seahaus La Jolla project had been built as of 13 April 2004." In fact, according to the 6AC, "the construction plans for the project were not approved and building permits were not issued until 9 April 2004." In Paragraph 120, the first paragraph under the subheading titled "THE CONSPIRACY," the plaintiffs allege:
Notably, this paragraph identifies the date of commencement of the alleged "conspiracy" as March 2005, and does not include Barratt or any of Barratt's representatives in the allegation. However, in the paragraph that immediately follows, Paragraph 121, the plaintiffs allege the following:
Paragraphs 131 through 137 detail specifics about the alleged misrepresentations and omissions, which, notably, are alleged to have occurred during and after March 2005. Significantly, there are no allegations of any specific misrepresentations or material omissions made by either Barratt or Barratt American during the time period that Barratt still retained an interest in Barratt American.
Paragraph 160 of the 6AC alleges that only certain defendants (Webcor, CLB, M.W. Steele, and DCI) were involved in preparing the site for inspection, and that these four defendants suppressed the alleged defects and deviations from the approved plans. It also demonstrates that this conduct is alleged to have occurred no earlier than April 2005. Other "overt acts" that the "[d]efendants" are alleged to have taken "in furtherance of the conspiracy to defraud the plaintiffs" as identified in Paragraph 161 begin, at the earliest, in March 2005.
Section "VI." of the 6AC, titled "MISREPRESENTATIONS AND SUPPRESSED FACTS," begins with the allegation in Paragraph 172 that "[i]n and about March 2005, the following defendants made the following material misrepresentations, and suppressed the following material facts, in furtherance of the conspiracy to defraud plaintiffs. . . ." This statement is followed by a chart with a list of specific alleged misrepresentations and/or suppressed facts. Beyond the allegation that these misrepresentations and/or suppressed facts occurred "[i]n and about March 2005"—i.e., long after Barratt was no longer involved in the project and no longer had any interest in Barratt American—there is no reference to Barratt, or, for that matter, to Barratt American.
In the paragraphs set out under the headings for each relevant cause of action pertaining to defendant Barratt (i.e., the first through third causes of actions), the plaintiffs do not set out any specifics regarding the misrepresentations and/or omissions that they attribute to Barratt. Instead, the plaintiffs make allegations such as the following:
The plaintiffs' claims in the second cause of action ("Fraud and Deceit: Suppression of Material Facts") contain slightly more specific allegations, such as:
With respect to the third cause of action ("Fraud and Deceit: Negligent Misrepresentation of Fact Against Defendants"), the plaintiffs alleged in part:
The allegations regarding the misrepresentations and omissions involved problems that plaintiffs claim occurred during the construction of the condominium buildings. For example, the plaintiffs' theory of liability as to Barratt appears to be the following: "Agents of British Barratt Development and Barratt American, as alleged herein, used false and inflated equity in the Seahaus La Jolla project based on inflated prices supported by the false statements and omissions that concealed the shoddy construction practices and defects at the Seahaus La Jolla project." In other words, the plaintiffs allege that Barratt was somehow involved in making false statements and omissions regarding defective construction. However, the 6AC does not identify what false statements or material omissions the plaintiffs are alleging that Barratt, or Barratt American, made during the time Barratt still owned Barratt American. Rather, the 6AC relies on general, conclusory allegations such as the following:
Nowhere does the 6AC identify what specific false statements or material omissions anyone at Barratt or Barratt American made, who made them, or when such alleged conduct occurred.
Further, it does not appear from the allegations of the 6AC that Barratt was involved in the project during the time that most of the construction occurred, or specifically, when the alleged defective construction is said to have occurred. Again, as the trial court noted, the 6AC alleges only in a conclusory manner that Barratt made misrepresentations and/or omissions and concealed defects prior to August 2004, and the 6AC also alleges more specifically, and repeatedly, that the actual fraudulent conduct began in March 2005. There is a total failure to plead with any specificity at all—despite the overall specificity of the 6AC with respect to many of the other defendants and their conduct—any facts that would suggest that Barratt had knowledge of the alleged construction defects or that it was at all involved in any concealment of the construction defects prior to August 2004.
One may reasonably infer from the belated identification and addition of Barratt to this lawsuit that the plaintiffs decided to add Barratt as a defendant only after they had solidified their theory of the case, and after they had already alleged as to the other defendants that the plan to misrepresent the true nature of the construction project and omit information about construction defects occurred in March 2005 and later. Essentially, the gist of the allegations in the operative complaint is that a group of defendants who were responsible for developing and marketing the Seahaus condominium project sold condominiums that suffer from construction defects that resulted from defective construction practices and the installation of defective components—i.e., problems that arose during construction of the project. According to the plaintiffs, these defects rendered their condominiums less valuable than they would have been absent the defects. Plaintiffs allege that certain defendants, who plaintiffs claim knew about the defective practices and defective components at the time the practices occurred and/or the components were installed, failed to inform the condominium purchasers of the defects. However, the allegations in the earlier iterations of the 6AC tend to contradict the more recently added allegations regarding Barratt. These contradictory and general allegations are insufficient to state a claim against Barratt.
Plaintiffs "`"may not discard factual allegations of a prior complaint, or avoid them by contradictory averments, in a superseding, amended pleading," [citation]' [citation]" and "must explain inconsistencies between the prior and proposed pleadings." (Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 653; Shoemaker v. Myers (1990) 52 Cal.3d 1, 12 [where a party amends a verified pleading to avoid the effect of a damaging factual allegation, a court may disregard new inconsistent allegations].) These principles clearly apply to inconsistent facts alleged within the same pleading, as well. (Reichert v. General Ins. Co. (1968) 68 Cal.2d 822, 836.) "A plaintiff may plead inconsistent counts or causes of action in a verified complaint, but this rule does not entitle a party to describe the same transaction as including contradictory or antagonistic facts." (Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1381; Beatty v. Pacific States Sav. & Loan Co. (1935) 4 Cal.App.2d 692, 697 [the rules of pleading do "not permit the pleader to blow both hot and cold in the same complaint on the subject of facts of which he purports to speak with knowledge under oath"].)
Plaintiffs' allegations in the 6AC regarding the time period during which they claim Barratt participated in the fraud specifically conflict with other allegations in the 6AC regarding the misrepresentations and omissions that the plaintiffs allege were made by the other named defendants, such as Webcor, CLB, M.W. Steele, and DCI, concerning the construction defects. In addition, the allegations regarding Barratt's role in the misrepresentations and/or omissions are conclusory and lacking in any detail. There are simply no specific allegations as to any misrepresentations or omissions made by Barratt. Rather, the only specific misrepresentations and omissions in the complaint are alleged to have been made by other defendants. Further, there are no allegations that would indicate that Barratt played any part in a "conspiracy" to defraud the plaintiffs. The conclusory allegations in the 6AC with respect to Barratt are fatally defective. The trial court therefore did not err in sustaining Barratt's demurrer.
We next consider whether the trial court abused its discretion in sustaining Barratt's demurrer without leave to amend. As stated previously, the burden is on the plaintiff to establish that there is a reasonable possibility that the identified defects in the pleading can be cured by amendment. (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.) "`[A p]laintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.' [Citation.]" (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) A plaintiff may meet this burden on appeal. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)
Apparently believing that the operative pleading does not suffer from any defects, the plaintiffs do not attempt to demonstrate how they could amend the 6AC to state a viable claim against Barratt. Plaintiffs have thus failed to meet their burden to prove that there is a reasonable possibility that the defects can be cured. We therefore affirm the trial court's sustaining of the demurrer without leave to amend.
The plaintiffs contend that the trial court erred in denying them mandatory relief from the order in which the court sustained Barratt's demurrer without leave to amend (and the resulting dismissal), based on counsel's declaration of fault.
Plaintiffs' counsel attested that it was her fault that she failed to appear at the correct time for the oral argument on the motion. Specifically, counsel attested, by way of a declaration:
The plaintiffs suggest that this situation "call[s] for mandatory relief" under section 473, subdivision (b). They argue, "Mistakes of counsel that lead to dismissal of actions can qualify for mandatory relief from a judgment."
Section 473, subdivision (b), on which the plaintiffs rely, provides in relevant part:
As this provision makes clear, section 473, subdivision (b) provides for both discretionary and mandatory relief. The mandatory relief provision requires the trial court to vacate any "default entered by the clerk against [a] client, and which will result in entry of a default judgment," or any "default judgment or dismissal entered against [a] client" in situations in which an attorney attests that his or her "mistake, inadvertence, surprise, or neglect" resulted in the default, default judgment, or dismissal at issue.
Despite counsel's acknowledgement of fault, we conclude that the mandatory relief portion of section 473, subdivision (b) does not apply to this situation. By its terms, section 473, subdivision (b) requires that a court vacate only a "default," "default judgment," or "dismissal." Although "[t]he range of attorney conduct for which relief can be granted in the mandatory provision is broader than that in the discretionary provision, and includes inexcusable neglect," the "range of adverse litigation results from which relief can be granted is narrower." (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 616 (Leader).) "Mandatory relief only extends to vacating a default which will result in the entry of a default judgment, a default judgment, or an entered dismissal." (Ibid.)
"`"There is no evidence the amendment was intended to be a catch-all remedy for every case of poor judgment on the part of counsel which results in a dismissal." [Citation.]' [Citation.] Courts have therefore interpreted the mandatory relief provision concerning dismissals so as to harmonize its stated goal (giving dismissed plaintiffs comparable relief to that afforded to defaulted defendants) with the statutes which authorize dismissal: `The relevant provision of section 473 may be reconciled with the discretionary dismissal statutes only if limited to those dismissals which are the procedural equivalent of defaults—i.e., those which occur because the plaintiff's attorney has failed to oppose a dismissal motion.' [Citations.]" (Leader, supra, 89 Cal.App.4th at p. 618, italics omitted.) "`[A] plaintiff may obtain mandatory relief under section 473 from a dismissal entered under the discretionary dismissal statutes (§ 583.410 et seq.) only if it occurred because the plaintiff's attorney failed to oppose the defendant's motion for dismissal; the plaintiff may not obtain mandatory relief merely by filing an affidavit in which his or her counsel avows that the dismissal came about through counsel's fault.' [Citation.]" (Id. at pp. 618-619.)
In this case, the plaintiffs' attorney did not fail to oppose the demurrer, and the dismissal was not procedurally equivalent to a default. Although counsel failed to appear for oral argument on the demurrer, the court had the benefit of counsel's arguments from the opposition papers that plaintiffs' counsel had filed. The trial court did not dismiss this lawsuit as to Barratt because there was no opposition to Barratt's demurrer. Rather, the court dismissed the lawsuit as to Barratt only after considering the merits of the motion and concluding that Barratt had established that the plaintiffs' operative complaint was deficient as to Barratt, and concluding that the plaintiffs had not demonstrated how they could remedy deficiencies.
Under the discretionary relief provision of section 473, subdivision (b), a court may "relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect." The statute specifies that the court "may" grant relief "upon any terms as may be just." The plaintiffs focus on the mandatory relief provision of section 473, subdivision (b), and do not even argue that the failure to attend a demurrer hearing constitutes excusable neglect for which discretionary relief may be granted. Nevertheless, we have considered the issue and conclude that the trial court did not abuse its discretion in denying the plaintiffs' request for discretionary relief from judgment.
As the party moving under section 473, subdivision (b), appellants had the burden of establishing entitlement to relief from the judgment. (Parage v. Couedel (1997) 60 Cal.App.4th 1037, 1041.) Where "`a party fails to show that a judgment has been taken against him through his mistake, inadvertence, surprise or excusable neglect the court may not grant relief. It has no discretion.' [Citation.]" (Id. at p. 1042.) To warrant discretionary relief, the proffered evidence must show that the attorney's error was excusable. (See Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 258; Solv-All v. Superior Court (2005) 131 Cal.App.4th 1003, 1007.) Neglect is excusable only if a reasonably prudent person in similar circumstances might have made the same error. (Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 276 (Bettencourt).) Relevant factors in assessing counsel error include: "(1) the nature of the mistake or neglect; and (2) whether counsel was otherwise diligent in investigating and pursuing the claim." (Ibid.) "Conduct falling below the professional standard of care, such as failure to timely object or to properly advance an argument, is not therefore excusable." (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 682.) "To hold otherwise would be to eliminate the express statutory requirement of excusability and effectively eviscerate the concept of attorney malpractice." (Ibid.)
The scheduling problem that occurred in this case does not constitute "excusable neglect," and counsel's failure to appear at the oral argument was not the cause of the dismissal. The trial court could therefore reasonably have denied discretionary relief.
Further, counsel's failure to appear at the hearing on the demurrer does not constitute "excusable neglect." Plaintiffs' counsel had sufficient notice of the hearing date and time, and had indicated to the court that counsel had received notice. Specifically, the date and time were provided to counsel at an ex parte hearing initiated by plaintiffs' counsel In addition, plaintiffs' papers filed in opposition to the demurrer noted the correct hearing date and time in the caption, and the tentative ruling regarding the demurrer noted the correct date and time of the hearing. In view of these facts, a reasonably prudent person would have been unlikely to make the same error. Thus, the neglect was not excusable. (See Bettencourt, supra, 42 Cal.3d at p. 276.)
Even if the court were to have found that the counsel's conduct constituted "excusable neglect," section 473, subdivision (b)'s discretionary relief provision is, by its terms, discretionary. Relief from the mistake or neglect is not an entitlement. Rather, a court "may" grant relief where the court deems it "just" to do so. The trial court could have reasonably determined that regardless of whether there had been "excusable neglect" in the plaintiffs' counsel failing to appear for the oral argument, granting relief from the dismissal in this situation would be futile given that the court had already concluded, on the merits, that the plaintiffs had failed to assert a valid cause of action against Barratt. In other words, the trial court could have concluded that nothing that counsel might have said during oral argument would have affected the court's ultimate determination.
We conclude that the trial court did not err in denying the plaintiffs mandatory and/or discretionary relief from the order sustaining Barratt's demurrer without leave to amend and the resulting dismissal.
Barratt contends that it is entitled to be reimbursed for the attorney fees that it incurred in opposing the plaintiffs' motion for reconsideration, as sanctions for the frivolous motion, and argues that the trial court abused its discretion in denying those requested fees "without explanation." According to Barratt, the plaintiffs' motion was improper, in that the plaintiffs presented no new law, circumstances, or facts in seeking reconsideration pursuant to section 1008.
Subdivision (a) of section 1008 provides:
Barratt contends that the failure of plaintiffs' counsel to appear for oral argument, and plaintiffs' counsel's request for an opportunity to present oral argument on the matter, does not constitute a new or different fact or circumstance sufficient to meet the requirements of section 1008. Barratt further contends that based on subdivision (d) of that provision, the plaintiffs' failure to present new or different facts, circumstances or law in making the motion for reconsideration entitles Barratt "to its fees in defending against Appellants' objectively noncompliant reconsideration motion."
Subdivision (d) of section 1008 provides: "A violation of this section may be punished as a contempt and with sanctions as allowed by Section 128.7. In addition, an order made contrary to this section may be revoked by the judge or commissioner who made it, or vacated by a judge of the court in which the action or proceeding is pending."
Barratt cites Henneberque v. City of Culver City (1985) 172 Cal.App.3d 837, 847 (Henneberque) for the proposition that "[a] trial court abuses its discretion in denying attorneys' fees when `the record discloses no reasonable basis for denying' a request for attorneys' fees." What Barratt fails to acknowledge is that Henneberque involved a request for attorney fees pursuant to a motion for an award of attorney fees under section 1021.5. That statute provides:
In holding that the trial court had abused its discretion in failing to award the prevailing plaintiff his attorney fees in that case, the appellate court concluded, "[T]he financial burden which this suit placed on [the plaintiff] was out of proportion to his personal stake in the case," and the plaintiff's attorney fees "`should not in the interest of justice be paid out of [his] recovery.'" (Henneberque, supra, 172 Cal.App.3d at p. 847.) Henneberque thus does not stand for the broad proposition for which Barratt cites it. Unlike section 1021.5, which provides multiple factors for the trial court to consider, section 1008, subdivision (d) merely grants the trial court discretionary authority to punish a violation of section 1008 as "a contempt and with sanctions." The statute does not entitle a party to demand that a trial court punish every technical violation of section 1008 "as a contempt" and impose sanctions. Rather, the statute permits the court to do so, in its discretion.
Seemingly aware that it is not truly "entitled" to its fees pursuant to section 1008, subdivision (d), Barratt next posits that the trial court's error was not simply in denying Barratt's request for fees as a sanction, but in denying that request "without explanation." Barratt provides no authority for its contention that the trial court must provide the reasons underlying its exercise of discretion not to impose sanctions, and the text of section 128.7, specifically referenced in section 1008, subdivision (d), suggests that the court is not required to do so. In particular, subdivision (e) of section 128.7 specifies, in relevant part: "When imposing sanctions, the court shall describe the conduct determined to constitute a violation of this section and explain the basis for the sanction imposed." (Italics added.) The statute requires the court to provide its reasoning and findings only in the situation in which it decides to impose sanctions, not when it declines to do so. Given this, we have no basis to conclude that the trial court abused its discretion in declining to impose the sanctions that Barratt requested simply because the court did so without explanation.
The judgment is affirmed. The parties are to bear their own costs on appeal.
McCONNELL, P. J. and HALLER, J., concurs.
It is not clear whether, or how, any of these claimed "deviations" created problems with the ultimate construction. Further, at least with respect to some of these communications, it is not at all apparent whether any deviation from the plans actually occurred—for example, the allegation regarding "look[ing] into changing most of the trellises" does not state that any of the trellises were, in fact, altered from the original plans. Nor does the 6AC allege why or how such a deviation, if it occurred, was problematic. Further, other than the allegation regarding "look[ing] into changing most of the trellises," there is no allegation in the 6AC that Barratt, or Barratt American, was aware of the any of these purported deviations from the plans, or that Barratt, or Barratt American, made any false statements or material omissions with respect to these purported "deviations" from the approved plans.
