Filed 6/26/14 Sarnecky v. Barratt Developments CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE
STATE OF CALIFORNIA

JAMES SARNECKY et al., Plaintiffs and Appellants,

v. BARRATT DEVELOPMENTS, PLC, Defendant and Appellant. D063848

(Super. Ct. No. 37-2010-00092634-CU-OR-CTL)

APPEAL from a judgment of the Superior Court of San Diego County, Luis R. Vargas and Joan M. Lewis, Judges. Affirmed. Aguirre, Morris & Severson, Michael J. Aguirre, Christopher S. Morris and Maria C. Severson for Plaintiffs and Appellants. Chapin Fitzgerald Sulliv an & Bottini, Kenneth M. Fitzgerald and Keith M. Cochran for Defendant and Appella nt Barratt Developments, PLC.2 I. INTRODUCTION Plaintiff James Sarnecky, to gether 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 Developmen ts, 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 ove r 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 th at exceeded the true value of the units, and that the true value of the un its was substantially le ss than the price the plaintiffs paid due to poor construction practi ces and defects in the resulting construction. The 6AC alleges three causes of action agains t Barratt: intentional misrepresentation, negligent misrepresentation, and concealment of material facts. Barratt is the former parent compa ny of an American subsidiary, Barratt American, Incorporated (Barratt American), which filed for bankruptcy protection in 2008. However, Barratt sold its interest in Ba rratt American in August 2004. Although the 6AC makes certain generalized allegations that some of the misrepresentations3 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 condu ct about which the plaintiffs are complaining appears to have occurred after August 2004. In fact, some allega tions 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 allega tions against Barratt pertained to events that occurred after Barratt had sold its interest in Barratt Am erican, and, on this basis, concluded that the plaintiffs could not state a claim against Barratt, even under an alter ego theory with respect to Ba rratt American. The trial court therefore sustained Barratt's demurrer without granting the plai ntiffs leave to amend. Th e 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 th e trial court erred in sustaining Barratt's demurrer. The plaintiffs also contend that they are entitled to ma ndatory relief from the dismissal pursuant to Code of Civil Procedure 1 section 473, subdivision (b), because their counsel did not have th e opportunity to or ally oppose the demurrer due to having miscalendared the time of the hearing.

1 Statutory references are to the Code of Civil Procedure, unless otherwise specified.4 Barratt cross-appeals from the trial court' s order denying its request for sanctions for having to oppose a motion for rec onsideration 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 cour t's order sustaining Barratt's demurrer without leave to ame nd should be affirmed. Pl aintiffs have filed seven complaints in this matter. Although the plaintiffs did not name Barratt as a defendant until the fourth amended complain t, they could have done so at an earlier point in the litigation, since Barratt's relationship to Ba rratt American was known from the outset. Despite having had more than a year and half since the filing of th eir original complaint to investigate Barratt's role, if any, in the underlying events, the plaintiffs have failed to present anything more than ge neralized assertions that Barra tt was involved in the alleged misrepresentations regarding the Seahaus projec t, 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 pl aintiffs are not entitled to mandatory relief under the statute, and the tr ial court acted within its discretion in denying relief under the discretionary relief provision. Finally, we conclude that the trial cour t did not abuse its discretion in denying Barratt's request for sanctions. We therefor e affirm the judgment of the trial court.5 II.
FACTUAL AND PROCEDURAL BACKGROUND 2
Barratt is a British homebuilder. In 19 80, Barratt formed Barratt American to construct housing in southern California. In 2002, Barra tt, 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. 3 The 6AC alleges that on five occasions pr ior to or during August 2004, defendants CLB Partners, Ltd., (CLB), a Texas limited pa rtnership doing business in San Diego and a developer of the Seahaus project, as well as another defendant, Webcor Development, Inc. (Webcor), the "constructi on contractor," devi ated from the construction plans that had been submitted to, and approved by, the City of San Diego. 4 The allegations in the

2 In accordance with the ru les governing appellate review of a superior court's ruling on a demurrer, the followi ng factual recitation is taken from the allegations of the plaintiffs' 6AC. ( Aubry v. Tri-City Hospital Dist . (1992) 2 Cal.4th 962, 966-967.)
3 According to other allegations of the 6AC, however, it appears that some construction may have be gun on the project as early as January 2004. The exact date on which construction began is not clear from the 6AC.
4 It is not clear why the 6AC alleges that at least one deviation from the approved plans occurred prior to the date on which the plans are alleged to ha ve been approved by the City of San Diego.6 6AC include notations from and/or summaries of "field reports" and/or e-mails written by two individuals affiliated with defendant D'Amato Conversano, Inc. (DCI), the engineer for the project. 5 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 Ba nk construction loan." As

5 The alleged "Plan Devia tion[s]" identified in the 6AC arising from these field reports that include dates prior to or during August 2004 are items such as the following: (a) on January 25, 2004, in a memo from so meone at DCI to an unknown recipient: "Building E the 91/2 TJ I/10 floor joists were installed at 16 [inches] on center instead of the 12 [inches] on center specified on the structural drawings and the joist ship drawings"; (b) on June 2, 20 04, in an e-mail from someone at DCI to someone else at DCI: "Building K no anchor bolts placed in sl ab. 'Webcor has been getting into the habit of just guessing where things go instead of asking for clarifications or direction or looking at the details' "; (c) on June 2, 2 004, in an e-mail fro m someone at DCI to someone at Webcor: "I realize you guys are un der a lot of pressure to get these buildings done, but it always takes longer for both you guys and DCI to try to figure out how to fix something after the fact"; (d ) on July 8, 2004, in an e- mail from someone at DCI to someone at M.W. Steele: "Jason Armison (Barra tt) has asked us to look into changing most of the trellises on the Seahaus project from steel to woods, b ecause the pricing on the steel trellises cam e in rather high." It is not clear whether, or how, any of these claimed "deviations" created problems with the ultimate construction. Further, at least with respec t to some of these communications, it is not at all apparent wh ether any deviation from the plans actually occurred—for example, the allegation regardin g "look[ing] into changing most of the trellises" does not state that any of the trelli ses were, in fact, alte red from the original plans. Nor does the 6AC alle ge why or how such a devi ation, if it occurred, was problematic. Further, other than the allega tion regarding "look[ing] into changing most of the trellises," there is no allegation in th e 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 ma terial omissions with respect to these purported "deviations" fro m the approved plans.7 alleged in the 6AC, this $23 million was part of $165 million that Barratt withdrew from
Barratt American when Barratt sold its in terest in the American subsidiary. 6 The plaintiffs allege that on March 30, 20 05, "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 and about March 2005, for the purpose of closing the Seahaus sales escrows and consummating sa les of the Seahaus units to generate funds for themselves, defendants Webcor, through Ken Summers (Senior Project Manager) and Jeremy Bishop (Project Engineer); CLB through Luke Daniels, Seth Rhea, and Hal Adams; M.W. Steele through Mark Steel e and Andrew Duncan; D'Amato Conversano through Robert Heeringa, Richard Hemmen, Diane Earnest; and Weyerhauser through Terry K. Metzker, Curt Nieman, Jim Nicodemus, and Tuong Ba nh, knowingly and willfully conspired and agreed to misreprese nt and suppress facts needed to make those [facts that were previ ously] stated not misleading with the purpose of closing the escr ows and consummating sales on for [ sic ] the Seahaus project. Defendan ts misrepresented facts and suppressed facts with the intent to keep plaintiffs, City of San Diego building inspectors, and Californi a Department of Real Estate enforcement agents from discoveri ng defects and deviations from the approved plans outlined above." In the immediately succeeding paragraph, however, the plaintiffs allege that Barratt and Barratt American agreed to "conc eal the defects and shoddy construction practices," and that "[t]his ag reement was made and carried ou t before the sale of British Barratt Developments PLC's interest in Barratt American was closed." The 6AC

6 According to the 6AC, Barratt's taking of the $2 3 million from the construction loan was damaging to the plaintiffs because "w hen the defects detailed in this operative complaint were disc overed there was [ sic ] insufficient funds to pa y for repairs needed."8 included no specifics as to the timing of th e alleged concealments by Barratt, or the alleged agreement to conceal be tween Barratt and Barratt American. Unaware of the water damage to the PSL Parallam beams, the pl aintiffs closed the purchases on their condominiums between May 2005 and January 2007. In December 2008, Barratt Amer ican filed for bankruptcy. The plaintiffs filed their original complaint on May 21 , 2010, as a putative class action. The plaintiffs cont ended that they br ought suit "after material construction defects were discovered at [the Seahaus proj ect] . . . ." The plaintiffs named as defendants the developers, architect, genera l contract, engineer, framing beam supplier, and numerous lenders who financed the mortgage s that the plaintiffs used to purchase their condominium units. Acco rding to Barratt, the plainti ffs did not name Barratt as a defendant in the first four iterations of th e complaint, but first amended the operative complaint to name Barratt as a defendant in their fourth amended complaint. 7

The trial court sustained Barratt's de murrer to the fourth amended complaint. 8 However, since the plaintiffs had filed a fifth amended complaint while Barratt's demurrer to the fourth amended complaint wa s pending, and, given that the "allegations against Barratt PLC remain the sa me in the [fifth amended comp laint] as those previously

7 The plaintiffs did not name Barratt Am erican as a defendant in their fourth amended complaint, their fifth amended complain t, or in the 6AC. According to Barratt's briefing, the plaintiffs neve r named Barratt American as a defendant in this litigation.
8 The record does not reveal what happened with respect to the pl aintiffs' first four complaints.9 alleged in the [fourth amended complaint]," the trial court treated its ruling as applying to both the fourth amended complaint and the fi fth amended complaint. The court granted the plaintiffs an opportunity to amend their pleadings. The plaintiffs then filed th e 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 ac tion 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 orde r 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. 9 There was no court reporter at the hearing. The trial court heard argument from Barratt 's counsel and took the matter under submission.

9 The hearing had originally been set fo r November 16 at 10:30 a.m., but because of a scheduling conflict, the court reset the hear ing for November 26 at 9:00 a.m. Upon learning of the error, and the fact that hearin g had taken place without plaintiffs' counsel's participation, counsel immediately called the court to apologize.10 On December 6, 2012, the trial court i ssued 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 6AC alleges Barratt PLC sold its American subsidiary, Barratt American, in August 2004. [Citation. ] Thus, as alleged in the 6AC, after August 2004, Barratt PLC was no longer the parent company of Barratt American, and had divested itself of any interest in Barratt American. "The 6AC further alleges Barratt PLC participated in a conspiracy to defraud Plaintiffs beginning in Ma rch 2005. [Citation.] The 6AC alleges no false representations ma de by Barratt PLC. Since Barratt PLC is alleged to have sold Ba rratt American in August 2004, Barratt PLC cannot be held liable under an alter ego theory for conduct alleged to have occurred af ter the sale. The 6AC also does not allege Barratt PLC was involved in the Seahaus project after its sale of Barratt American in August 2004. "The twelve (12) new paragraphs alleged against Barratt PLC in the 6AC [citation] fail to cure the defi ciencies noted by the court in its ruling on Barratt PLC's Demurrer to Plaintiffs' Fifth Amended Complaint. [Citation.] The 6AC alleges in conclusory terms: 1) Barratt PLC concealed defects before August 2004, even though the 6AC repeatedly alleges the cons piracy began in March 2005 [citation]; 2) Barratt PLC made unidentified misrepresentations about construction defects before August 2004 [citation]; and 3) Barratt PLC diverted $23 million of construction funds [citation]. "The 6AC fails to plead any speci fic facts regarding Barratt PLC's knowledge or concealment of any construction defects prior to August 2004, or any specific misr epresentations made by Barratt PLC regarding those defects. The 6AC also fails to allege Barratt PLC made misrepresentations to Pl aintiffs regarding the construction loan, or that Plaintiffs were indu ced to purchase units based on how the project was financed. Moreov er, Plaintiffs' fraud-based causes of action seek damages in the am ount of the difference between the value of the units as purchased versus the units' actual value [citation]; thus, the fraud measure of damages in the 6AC is11 unconnected to the allegations re garding the alleged diversion of construction loan proceeds. "The 6AC fails to attribute any fals e statements to Barratt PLC or its alleged alter ego, Barratt American . The 6AC also fails to allege any fraudulent statements and conc ealments before August 2004, when Barratt PLC divested itself of ownership of Barratt American. These defects cannot be cured by further amendment." The plaintiffs moved for re consideration of the order pu rsuant to section 1008, and also sought relief from the dismissal of Barra tt pursuant to section 473, subdivision (b). The trial court denied the motions, concluding that the plaintiffs ha d not offered any new or different facts, circumstances or law that would justify reconsideration, and concluding that the plaintiffs had not demonstrated th at the order sustaining Barratt's demurrer was the result of counsel's "purport ed mistake, inadvertence, surp rise or excusable neglect." Barratt moved for sanctions under sec tion 1008, subdivision (d), on the ground that the plaintiffs had failed to meet the require ments of subdivision (a) of that provision. The trial court denied Barratt's request for sa nctions. The court's reasons for denying the request were not set forth in the order. The trial court entered judgment in favo r 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 time ly notices of appeal.12 III. DISCUSSION
A. The plaintiffs' appeal
1. The trial court did not err in sust aining Barratt's demurrer to the 6AC without leave to amend

a. Legal standards We review de novo an order sustaini ng 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 co mplaint states a cause of action. ( Palestini v. General Dynamics Corp. (2002) 99 Cal.App.4t h 80, 86.) " 'A judgme nt 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, "w e 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 reve rse; if not, there has been no abuse of discretion and we affirm. [C itations.] The burde n of proving such re asonable possibility is squarely on the plaintiff." ( Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.)13 b. Analysis i. The trial court did not err in sustaining Barratt's demurrer The causes of action alleged against Barra tt are all based on claims for "fraud and deceit." Specifically, the plaintiffs allege that Barratt is liable for (1) intentional misrepresentation, (2) "suppression of materi al facts," which we interpret to be a claim for "concealment," and (3) negl igent misrepresentation. To state a fraud cause of action, plaintiffs must allege (1) a misrepresentation (a false representation, concealment or nondisclosure) 10 as to a material fact; (2) knowledge of its falsity or scienter; (3) intent to de fraud; (4) justifiable reliance; and (5) resulting damage. ( Robinson Helicopter Co., Inc. v. Dana Corp . (2004) 34 Cal.4th 979, 990.) The essential elements of negligen t misrepresentation are the same as the above, except that a cause of action for negligent misrepresentation does not require knowledge of falsity but instead, requires a misrepresentation of fact by a person who has no reasonable grounds for believing it to be true . (Civ. Code, § 1710, subd. 2; Gagne v. Bertran (1954) 43 Cal.2d 481, 488; West v. JPMorgan Chase Bank, N.A . (2013) 214 Cal.App.4th 780, 792.)

10 Concealment is a species of fraud or dece it. (See Civ. Code , §§ 1710, subd. (3), 1572, subd. 3; Lovejoy v. AT&T Corp. (2004) 119 Cal.A pp.4th 151, 158.) The elements of a cause of action for concealment are substan tially similar to the el ements of a cause of action for making a false but affirmative repr esentation: "(1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plai ntiff, (3) the defendant must ha ve intentionally concealed or suppressed the fact with the inte nt to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of th e concealment or suppression of the fact, the plaintiff must have sustained damage." ( Marketing West, Inc. v. Sanyo Fisher (USA) Corp . (1992) 6 Cal.App.4th 603, 612–613.)14 "In California, fraud must be pled specifi cally; 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 repr esentations 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, th e plaintiff must "allege the names of the persons who made the allegedly fraudulent re presentations, 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 sust ain 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 app lies not only to the alleged misrepresentation (or material omission), but also to the elem ents of causation and damage. "In order to recover for fraud, as in any other tort, the pl aintiff must plead and prove the 'detriment proximately caused' by the defendant's torti ous conduct. (Civ. Code, § 3333.) . . . 'Whatever form it takes, the injury or damage must not only be distinctly alleged but its15 causal connection with the reliance on the repres entations 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 Seah aus project. However, the plaintiffs' causes of action for fraud and deceit against Barratt ar e 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: "57. British Barratt Developments PLC used its control of Barratt American to carry out its plan to withdraw and divert $23 million from the Seahaus La Jo lla Guaranty Bank construction loan. British Barratt Develop[ments] PLC organized this plan so th at Seahaus La Jolla purchasers would reimburse Gu aranty Bank for the $23 million British Barratt Developments PLC pl anned to and did remove from the Guaranty Bank construction loan. "58. While the Seahaus La Jolla project and Barratt American were under British Barratt Developments PL C's control, agents of Barratt American—as alleged in detail in this operative complaint—were made aware of the significant and detailed construction defects, shoddy workmanship and deficienci es in the construction of the Seahau[s] La Jolla project. This shoddy work was performed at the Seahaus La Jolla project while British Barratt Developments PLC was still in control of Barratt American. "59. The $23 million that Br itish Barratt Developments PLC withdrew and diverted from the Gu aranty construction loan for the Seahaus La Jolla project should ha ve been used to make repairs needed to correct the constructi on deficiencies and shoddy work16 done at the project, which Britis h Barratt Developments PLC knew that by its removal and diversio n of the $23 million, the money needed for repairs woul d not be feasible." While the 6AC alleges that Barratt a nd/or Barratt American were aware of "significant and detailed constr uction defects, shoddy workma nship and deficiencies in the construction" during the time Barratt stil l owned Barratt American, it does not state when the alleged defective construction occu rred, 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 constructi on was completed prior to the time that Barratt divested itself of its ownership of Barratt Am erican, and further suggests that the real problems occurred, and were hidden from potential purchasers, in 2005

. For example, elsewhere in the 6AC, the pl aintiffs allege that "[n]one of the 138 condominiums in the S eahaus 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 i ssued until 9 April 2004." In Paragraph 120, the first paragraph under the subheading titled "THE CONSPIRACY," the plaintiffs allege:

" In and about March 2005 , for the purpose of closing the Seahaus sales escrows and consummating sa les of the Seahaus units to generate funds for themselves, defendants Webcor, th[r]ough Ken Summers (Senior Project Manager) and Jeremy Bishop (Project Engineer); CLB through Luke Daniels, Seth Rhea, and Hal Adams; M.W. Steele through Mark Steel e and Andrew Duncan; D'Amato Conversano through Robert Heeringa, Richard Hemmen, Diana17 Earnest; and Weyerhaeuser through Terry K. Metzker, Curt Nieman, Jim Nicodemus, and Tuong Ba nh, knowingly and willfully conspired and agreed to misreprese nt and suppress facts needed to make those stated not misleading with the purpose of closing the escrows and consummating sales on for [ sic ] the Seahaus project." ( Italics added .) Notably, this paragraph identifies th e date of commencement of the alleged "conspiracy" as March 2005, and does no t include Barratt or any of Barratt's representatives in the allegation. However, in the paragraph that immediately follows, Paragraph 121, the plainti ffs allege the following: "The principles of Barratt American and British Barratt Developments PLC agreed among st themselves for their own personal benefit and profit to c onceal the defects and shoddy construction practices used to build the Seahaus La Jolla project. This agreement was made and carried out before the sale of British Barratt Developments PLC's inte rest in Barratt American was closed. British Barratt Developments PLC used its control of Barratt American and the Seahaus La Jolla project to obtain and divert $23 million from the Seahaus La Jolla c onstruction loan with Guaranty Bank. Agents of British Barratt Development and Barratt American, as alleged herein, used false and in flated equity in the Seahaus La Jolla project based on inflated prices supported by the false statements and omission that co ncealed the shoddy construction practices and defects at the Seahaus La Jolla project." Paragraphs 131 through 137 detail specif ics about the alleged misrepresentations and omissions, which, notably, ar e alleged to have occurred during and after March 2005. Significantly, ther e 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 in terest in Barratt American.18 Paragraph 160 of the 6AC alleges that only certain defendants (Webcor, CLB, M.W. Steele, and DCI) were involved in prepar ing the site for inspection, and that these four defendants suppressed the alleged defects and de viations from the approved plans. It also demonstrates that this co nduct is alleged to have occurre d 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 iden tified in Paragraph 161 begin, at the earliest, in March 2005. Section "VI." of the 6AC, titled "M ISREPRESENTATIONS AND SUPPRESSED FACTS," begins with the allegation in Para graph 172 that "[i]n and about March 2005, the following defendants made the following material misrep resentations, and suppressed the following material facts, in fu rtherance of the conspiracy to de fraud plaintiffs . . . ." This statement is followed by a chart with a list of specific alleged misrepresentations and/or suppressed facts. Beyond the allega tion that these misrepresentations and/or suppressed facts occurred "[i]n and about Ma rch 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, fo r that matter, to Barratt American. 11

11 There is a single allegation of a misrep resentation/omission made prior to March 2005 in the table, i.e., that in March 2004, at a " 'Meet the Architect ' Night," Mark Steele, the project architect, essentially "assur[ed]" th e audience that Seahaus "was a high-quality project that was being looked after carefully by a dedicated construc tion team of expert engineers, builders, and contractors." The 6A C alleges that Steele's comments were false because he "did not correct th e representations or provide the after acquired information he discovered to plaintiffs that there were material de fects embedded in the Seahaus project, that there were material deviations from the approved plans and that the City had19 In the paragraphs set out under the head ings for each relevant cause of action pertaining to defendant Barratt (i.e., the fi rst through third causes of actions), the plaintiffs do not set out any specifics regard ing the misrepresentations and/or omissions that they attribute to Barratt. Instead, th e plaintiffs make allegations such as the following: "Defendants, in their individual or entity capacity, and/or as part of a conspiracy, made misrepresentati ons by making false representations as to the Seahaus La Jolla cond ominiums and common areas with knowledge of the falsity, with the intent to de fraud Plaintiffs and to induce their reliance, such relianc e which was justified and that harmed Plaintiffs." The plaintiffs' claims in the second cause of action ("Fra ud and Deceit: Suppression of Material Facts") contain sli ghtly more specific allegations, such as: "The facts that Defendants inten tionally concealed and failed to disclose involved the substand ard construction, materials, installation, sound attenuation issues , and further included but were not limited to the fact that a materially significant number of PSL Parallam beams used to frame the Seahaus La Jolla buildings had been exposed to moisture le vels exceeding applicable [ sic ] those permitted by applicable standards." With respect to the third cause of action ("Fraud a nd Deceit: Negligent Misrepresentation of Fact Against Defenda nts"), the plaintiffs alleged in part: "237. Defendants or their agents, officers, or employees represented that no escrow would close until all Seahaus La Jolla association

not issued a Certificate of Occu pancy." Inherent in this alle gation is that the falsity of Steele's statements became apparent and/or required correction only after the project was being built, allegedly with sh oddy workmanship and material deviations from the plans. However, Barratt was not involved with th e project during the majority of the construction.20 property and common area improv ements, amenities, facilities and residential structures in the resp ective phase had been completed and a notice of completion had been filed. "238. Defendants or their agents, officers, or employees presented Plaintiffs with the REAL ESTATE TRANSFER DISCLOSURE STATEMENT and a PUBLIC REPORT that did not disclose the construction and product defects as set forth in this complaint, including but not limited to, that a materially significant number of PSL Parallam beams used to frame the Seahaus La Jolla buildings had been exposed to moisture leve ls exceeding those permitted by applicable standards." The allegations regarding the misreprese ntations and omissions involved problems that plaintiffs claim occurred during the construction of the condominium buildings. For example, the plaintiffs' theo ry of liability as to Barratt appears to be the following: "Agents of British Barratt Deve lopment 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 omissi ons that concealed the shoddy construction practices and defects at the Seahaus La Jolla proj ect." In other words, the plaintiffs allege that Barratt was somehow invo lved in making false statements and omissions regarding defective construction. However, the 6AC do es not identify what false statements or material omissions the plain tiffs are alleging that Barratt , or Barratt American, made during the time Barratt still owned Barratt Americ an. Rather, the 6AC relies on general, conclusory allegations such as the following: "While British Barratt Developmen ts PLC had control of the Seahaus La Jolla project, Britis h Barratt Developments PLC and Barratt American omitted material facts and made false statements that hid the faulty construction pr actices and defects at the Seahaus21 La Jolla project. The false and fraudulent omissions and misstatements were made in sales documents and the Public Report used to sell units in the La Jolla Seahaus project while the project and marketing of the project were under the control of British Barratt Developments PLC. Purchasers we re induced to purchase and did purchase units in the project based on false statemen ts and omissions of material facts." Nowhere does the 6AC identify what sp ecific false statements or material omissions anyone at Barratt or Barratt Ameri can made, who made them, or when such alleged conduct occurred. 12 Further, it does not appear from the a llegations of the 6AC that Barratt was involved in the project duri ng the time that most of th e construction occurred, or specifically, when the alleged defective construc tion 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 omi ssions and concealed defects prior to August 2004, and the 6AC also alleges more specifically, and rep eatedly, 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 6A C with respect to many of th e 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 i nvolved in any concealment of the construction defects prior to August 2004.

12 Although the 6AC includes allegations re garding $23 million that Barratt allegedly withdrew from the construction loan proceeds as part of its sale of Barratt American, the 6AC does not indicate how Barratt's conduct in this regard, even if true, could form the basis of liability to the plaintiffs.22 One may reasonably infer from the belated identification and addition of Barratt to this lawsuit that the plainti ffs decided to add Barratt as a defendant only after they had solidified their theory of the case, and afte r 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 defect s 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 th at suffer from construction defects that resulted from defective construction practic es and the installation of defective components—i.e., problems that arose during construction of the project. According to the plaintiffs, these defects rendered their co ndominiums less valuable than they would have been absent the defects. Plaintiffs allege that cert ain defendants, who plaintiffs claim knew about the defective practices and defective components at the time the practices occurred and/or th e components were installe d, failed to inform the condominium purchasers of the defects. Howe ver, the allegations in the earlier iterations of the 6AC tend to contradict the more recen tly added allegations regarding Barratt. These contradictory and genera l allegations are insufficient to state a claim against
Barratt. Plaintiffs " ' "may not discard factual a llegations of a prior complaint , or avoid them by contradictory averments, in a s uperseding, amended pleading," [citation]' [citation]" and "must expl ain inconsistencies between the pr ior and proposed pleadings."23 ( Oakland Raiders v. Na tional 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 allega tion, a court may disregard new inconsistent allegations].) These principles clearl y apply to inconsis tent 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 act ion in a verified comp laint, but this rule does not entitle a party to describe the same transaction as including contradictory or antagonistic facts." ( Alfaro v. Community Housing Im provement System & Planning Assn., Inc . (2009) 171 Cal.Ap p.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 knowledg e under oath"].) Plaintiffs' allegations in the 6AC rega rding the time period during which they claim Barratt participated in the fraud specifically conflict with other allegations in the 6AC regarding the misrepresentat ions and omissions that the pl aintiffs allege were made by the other named defendants, such as Webc or, 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 conclu sory and lacking in a ny detail. There are simply no specific allegations as to any misrep resentations or omissi ons made by Barratt. Rather, the only specific misrepresentations and omissi ons in the complaint are alleged to have been made by other defend ants. Further, there are no a llegations that would indicate24 that Barratt played any part in a "conspiracy " to defraud the plain tiffs. The conclusory allegations in the 6AC with respect to Barratt are fatally defective. The trial court therefore did not err in su staining Barratt's demurrer. ii. Plaintiffs have not shown that the trial court abused its discretion in denying leave to amend We next consider whether the trial c ourt abused its discretion in sustaining Barratt's demurrer withou t leave to amend. As stated previously, the burden is on the plaintiff to establish that ther e is a reasonable possibility that the identified defects in the pleading can be cure d 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 plain tiff may meet this burden on appeal. ( Schifando v. City of Los Angeles (2003) 31 Cal.4t h 1074, 1081.) Apparently believing that the operative pleading does not suffer from any defects, the plaintiffs do not attempt to demonstrat e 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 de murrer without leave to amend.25 2. The trial court did not abuse its disc retion in denying relief under section 473, subdivision (b) The plaintiffs contend that the trial c ourt erred in denying them mandatory relief from the order in which the court sustained Barratt's demurrer with out leave to amend (and the resulting dismissal), based on counsel's declaration of fault. Plaintiffs' counsel attested that it was he r 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: "Oral argument on the hearing was originally scheduled for November 16, 2012 at 10:30 a.m. Because Plaintiffs' counsel had a conflict with a class certificat ion motion hearing in another department, the Court reset the oral argument for 26 November 2012, changing the time to 9:00 a. m. Inadvertently, my secretary calendared the date cha nge but not the time chan ge of the argument. "[¶] . . . [¶] "The hearing was not attended due to counsel's mistake, inadvertence or neglect. It was my office's intention, and remains my office's request, to attend a hearing on the demurrer, argue the merits of the demurrer opposition, and present facts that could cure any perceived deficiencies." The plaintiffs suggest that this situa tion "call[s] for mandatory relief" under section 473, subdivision (b). They argue, "Mis takes 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: "The court may, upon any terms as ma y be just, 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,26 inadvertence, surprise, or excusabl e neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therei n, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. . . . Notw ithstanding any ot her requirements of this section, the court shall, wh enever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence , surprise, or neglect, vacate any (1) resulting default entered by the cl erk against his or her client, and which will result in entry of a de fault judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect. The court shall, whenever relief is granted ba sed on an attorney's affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or par ties. However, this section shall not lengthen the time with in which an action sha ll be brought to trial pursuant to Section 583.310." As this provision makes clear, secti on 473, subdivision (b) provides for both discretionary and mandatory relief. The ma ndatory relief provision requires the trial court to vacate any "default ente red by the clerk against [a] client, and which will result in entry of a default judgment," or any "defau lt 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 fa ult, we conclude that the mandatory relief portion of section 473, su bdivision (b) does not apply to this situation. By its terms, section 473, subdivis ion (b) requires that a court vacate only a "default," "default judgment," or "dismiss al." Although "[t]he range of attorney conduct for which relief27 can be granted in the mandato ry 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 defau lt judgment, a default judgment, or an entered dismissal." ( Ibid .) " ' "There is no evidence th e 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 theref ore interpreted the mandatory relief provision concerning dismissals so as to harmonize its stated goal (giving dismissed plaintiffs comparable relief to that a fforded to defaulte d 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 defa ults—i.e., those which occur becau se the plaintiff's attorney has failed to oppose a dismissa l motion.' [Citations.]" ( Leader , supra , 89 Cal.App.4th at p. 618, italics omitted.) " '[A] plaintiff may obtain mandatory re lief under section 473 from a dismissal entered under the discretionary dismissal statutes (§ 583.410 et seq.) only if it occurred because the plaintiff's atto rney failed to oppose the defendant's motion for dismissal; the plaintiff may not obtain mand atory relief merely by filing an affidavit in which his or her counsel av ows that the dismissal came ab out through couns el's fault.'28 [Citation.]" ( Id . at pp. 618-619.) 13 In other words, " 'when the Legislature incorporated dismissals into section 473, it intended to reach only t hose dismissals which occur through failure to oppose a dismissal motion—th e only dismissals wh ich are procedurally equivalent to a default.' [Citation.]" ( English v. Ikon Business Solutions (2001) 94 Cal.App.4th 130, 141.) In this case, the plainti ffs' attorney did not fail to oppose the demurrer, and the dismissal was not procedurally equivalent to a default. Although co unsel 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

13 The court in Generale Bank Nederland v. Eyes of the Beholder Ltd . (1998) 61 Cal.App.4th 1384, 1396, summari zed the development of the st atute with respect to the addition of dismissals, in additi on to defaults: " 'Enacted in 1988, the attorney affidavit provision of section 473 origin ally applied only to defaults . Its purpose was "to relieve the innocent client of the burden of the attorney's fault, to impose the burden on the erring attorney, and to avoid precip itating more litigation in the fo rm of malpractice suits." [Citation.] In the words of th e author, " 'Clients who have done nothing wr ong are often denied the opportunity to defend themselves, simply because of the mistake or inadvertence of their atto rneys in meeting filing deadlines.' " [Citation.]' [Citation.] [¶] 'In 1992, the attorney affidavit provision was extended to provide mandatory relief from dismissals as well as defaults. The ch ange was considered to be among the " 'noncontroversial proposals . . .' " contained in an omnibus civil practice bill. The State Bar, which sponsored the amendment, argued that " 'it is illogical and arbitrary to allow mandatory relief for defendants when a default judgment has been entered . . . and not to provide comparable relief to pl aintiffs whose cases are dism issed for the same reason.' " [Citation.] [¶] Although the statute on its face affords relief from unspecified "dismissal" caused by attorney neglect, our courts have, th rough judicial construction, prevented it from being used indiscriminately by plaintiffs' attorneys as a "perfect escape hatch" [citation] to undo dismissals of civ il cases. Thus it has been held that the provision does not apply to dismissals under section 583.410 for dela y in prosecution of the action because virtually all such dism issals are attorney caused and such a construction would result in a disfavored repe al of the discretionary dismissal statute by implication. . . . ' [Citation.]" ( Ibid ., italics omitted.)29 this lawsuit as to Barratt b ecause there was no opposition to Barratt's demurrer. Rather, the court dismissed the lawsu it as to Barratt only after considering the merits of the motion and concluding that Barratt had establis hed that the plainti ffs' operative complaint was deficient as to Barratt, and concluding th at the plaintiffs had not demonstrated how they could remedy deficiencies. 14 Mandatory relief under secti on 473, subdivision (b) is not available in this circumstance. Under the discretionary relief provision of section 473, subdivision (b), a court may "relieve a party or his or her legal re presentative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect." The statut e specifies that the court "may" grant relief "upon any terms as may be just." The plai ntiffs focus on the manda tory relief provision of section 473, subdivision (b), and do not ev en argue that the failure to attend a demurrer hearing constitutes excusable ne glect for which discretionary relief may be granted. Nevertheless, we have considered the issue a nd conclude that the trial court did not abuse its discretion in denying the plaintiffs' reque st for discretionary re lief from judgment. As the party moving under section 473, su bdivision (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

14 The plaintiffs assert that "the attorney's mistake in calendaring the hour for the oral argument should not cause Appellants to lose their day in court and deprive them of an opportunity for the merits of the case to be reach ed." However, the plaintiffs did not "lose their day in court." In fact, plaintiffs participated in full brie fing of the issues that the court ultimately decided on the merits

.30 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 Co ntracting 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 counse l error include: "(1) the nature of the mistake or neglect; and (2) whether coun sel 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 pr operly 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 ex press statutory requirement of excusability and effectively eviscerate the concept of a ttorney malpractice." ( Ibid .) The scheduling problem that occurred in th is 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. 15

15 "The only occasion for the applicati on of section 473 is where a party is unexpectedly placed in a s ituation to his injury without fault or negligence of his own and against which ordinary prudence could not have guarded. Neither inadvertence nor neglect will warrant judicial relief unless it may reasonably be clas sified as of the excusable variety upon a sufficient showing." ( Elms v. Elms (1946) 72 Cal.App.2d 508, 513, italics added.)31 First, the statute grants the court authority to "relieve a party or his or her legal representative from a judgment , dismissal, order, or other proceeding" that is "taken against him or her through his or her mistake, inadvert ence, surprise, or excusable neglect." In other words, the mistake or excusable neglect must be the cause of the order taken against him or her. Plaintiffs contend that the fact that the tria l court indicated in its tentative decision that it intended to overrule the demurrer demonstrates that plaintiffs' counsel's failure to appear at the hearing to orally oppose the demurrer was decisive. However, the 6AC was deficient as to Barratt , and oral argument co uld not have changed this basic fact. It is the deficiencies of the 6AC, and not the lack of oral argument opposing Barratt's demurre r, that led to the ultimate dismissa l of Barratt from the lawsuit. 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 ha d 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, plainti ffs' 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 fou nd that the counsel' s conduct constituted "excusable neglect," section 473, subdivision (b)'s discretionary relie f provision is, by its32 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 c ourt could have conclude d that nothing that counsel might have said duri ng oral argument would have affected the court's ultimate determination. We conclude that the trial court did no t err in denying the plaintiffs mandatory and/or discretionary relief from the order sust aining Barratt's demurr er without leave to amend and the resulting dismissal.
B. Barratt's cross-appeal
1. The trial court did not abuse its disc retion in denying Barratt's request for sanctions 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 c ourt abused its discretion in denying those requested fees "without explanation." Acco rding to Barratt, the plaintiffs' motion was improper, in that the plaintiffs presented no new law, circumstances, or facts in seeking reconsideration pursuant to section 1008.33 Subdivision (a) of s ection 1008 provides: "When an application for an order ha s been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any pa rty affected by the order may, within 10 days after se rvice upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the a pplication shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, a nd what new or different facts, circumstances, or law are claimed to be shown." Barratt contends that the failure of plain tiffs' counsel to appear for oral argument, and plaintiffs' counsel's request for an opportunity to presen t 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 diffe rent facts, circumstances or law in making the motion for reconsiderati on entitles Barratt "to its fees in defending against Appellants' objectively nonc ompliant 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 co urt in which the action or proceeding is pending." 16 It is clear from the language of th e provision on which Barratt relies that it

16 Section 128.7, in turn, provides in relevant part:34 "(a) Every pleading, petition, wr itten notice of motion, or other similar paper shall be signed by at le ast one attorney of record in the attorney's individual na me, or, if the party is not represented by an attorney, shall be signed by the pa rty. Each paper shall state the signer's address and telephone number, if any. Except when otherwise provided by la w, pleadings need not be verified or accompanied by affidavit. An uns igned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party. "(b) By presenting to the court, whether by signing, filing, submitting, or later advocating, a pleading, petition, written notice of motion, or other similar paper, an a ttorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the fo llowing conditions are met: "(1) It is not being presented prim arily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. "(2) The claims, defenses, and ot her legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or re versal of existing law or the establishment of new law. "(3) The allegations and other fact ual contentions have evidentiary support or, if specificall y so identified, are likel y to have evidentiary support after a reasonable opportuni ty for further investigation or discovery. "(4) The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief. "(c) If, after notice and a reasonabl e opportunity to respond, the court determines that subdivision (b) has been violated, the court may, subject to the conditions stat ed below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible fo r the violation. In determining35 is permissive, rather than ma ndatory. In other words, su bdivision (d) of section 1008 authorizes the trial court to punish a violation "as a contempt" and award sanctions; it does not, however, require that sanctions be imposed, nor does it entitle the party opposing the motion to its atto rney fees as sanctions. Barratt cites Henneberque v. City of Culver City (1985) 172 Cal.App.3d 837, 847 (Henneberque) for the proposition that "[a] trial c ourt abuses its discretion in denying attorneys' fees when 'the r ecord discloses no reasonable ba sis for denying' a request for attorneys' fees." What Barra tt fails to acknowledge is that Henneberque involved a request for attorney fees pursu ant to a motion for an award of attorney fees under section 1021.5. That statute provides:

what sanctions, if any, should be ordered, the court shall consider whether a party seeking sanctions has exercised due diligence. "[¶] . . . [¶] "(d) A sanction imposed for viola tion of subdivision (b) shall be limited to what is sufficient to de ter repetition of this conduct or comparable conduct by others simi larly situated. Subject to the limitations in paragraphs (1) and (2 ), the sanction may consist of, or include, directives of a nonmonet ary nature, an order to pay a penalty into court, or, if im posed on motion and warranted for effective deterrence, an order directing payment to the movant of some or all of the reasonable atto rney's fees and other expenses incurred as a direct result of the violation. "[¶] . . . [¶] "(e) When imposing sanctions, the court shall describe the conduct determined to constitute a violati on of this section and explain the basis for the sanction imposed."36 "Upon motion, a court may award a ttorneys' fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement . . . are such as to ma ke the award appropriate, and (c) such fees should not in the interest of ju stice be paid out of the recovery, if any. With respect to actions involving public entities, this section applies to allowances ag ainst, but not in favor of, public entities, and no claim shall be require d to be filed therefor . . . ." In holding that the trial court had abus ed its discretion in failing to award the prevailing plaintiff his attorney fees in that case, the appe llate court conc luded, "[T]he financial burden which this suit placed on [t he plaintiff] was out of proportion to his personal stake in the case," and the plaintiff's a ttorney 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 pr oposition for which Barratt cites it. Unlike section 1021.5, which pr ovides multiple factors for th e 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 fe es pursuant to section 1008, subdivision (d), Barratt next po sits that the trial court's er ror was not simply in denying Barratt's request for fees as a sanction, but in denying that request "without explanation."37 Barratt provides no authority for its conten tion that the trial court must provide the reasons underlying its exercise of discreti on not to impose sanctions, and the text of section 128.7, specifically referenced in s ection 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 cour t to provide its reasoni ng and findings only in the situation in which it d ecides 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.
IV. DISPOSITION The judgment is affirmed. The partie s are to bear their own costs on appeal.

AARON, J.
WE CONCUR:

McCONNELL, P. J.

HALLER, J.