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NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 This opinion has not been certified for publication 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 Sullivan & Bottini, Kenneth M. Fitzgerald and Keith M. 

Cochran for Defendant and Appellant Barratt Developments, PLC. 
2 

I. 

INTRODUCTION 

 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 
3 

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 Procedure1 section 473, subdivision (b), because 

their counsel did not have the opportunity to orally 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 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. 
5 

II. 

FACTUAL AND PROCEDURAL BACKGROUND2

 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, 2004.3 

 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.4 The allegations in the 

 

2 In accordance with the rules governing appellate review of a superior court's 

ruling on a demurrer, the following 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 begun 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 have 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 Bank construction loan." As 

 

5 The alleged "Plan Deviation[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 someone at DCI to an unknown recipient: 

"Building E the 91/2 TJI/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, 2004, in an e-mail from someone at DCI to someone else at 

DCI: "Building K no anchor bolts placed in slab. '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, 2004, in an e-mail from someone at DCI to 

someone at Webcor: "I realize you guys are under 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 (Barratt) has asked us to look into changing 

most of the trellises on the Seahaus project from steel to woods, because the pricing on 

the steel trellises came 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 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. 
7 

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.6

 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 and about March 2005, for the purpose of closing the Seahaus 

sales escrows and consummating sales 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 Steele 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 Banh, knowingly and willfully 

conspired and agreed to misrepresent and suppress facts needed to 

make those [facts that were previously] stated not misleading with 

the purpose of closing the escrows and consummating sales on for 

[sic] the Seahaus project. Defendants misrepresented facts and 

suppressed facts with the intent to keep plaintiffs, City of San Diego 

building inspectors, and California Department of Real Estate 

enforcement agents from discovering 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 "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 

 

6 According to the 6AC, Barratt's taking of the $23 million from the construction 

loan was damaging to the plaintiffs because "when the defects detailed in this operative 

complaint were discovered there was [sic] insufficient funds to pay for repairs needed." 
8 

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.7

 The trial court sustained Barratt's demurrer 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 was pending, and, given that the "allegations 

against Barratt PLC remain the same in the [fifth amended complaint] as those previously 

 

7 The plaintiffs did not name Barratt American as a defendant in their fourth 

amended complaint, their fifth amended complaint, or in the 6AC. According to Barratt's 

briefing, the plaintiffs never named Barratt American as a defendant in this litigation. 

8 The record does not reveal what happened with respect to the plaintiffs' 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 fifth amended complaint. The court granted 

the plaintiffs an opportunity to amend their pleadings. 

 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.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 for November 16 at 10:30 a.m., but because of 

a scheduling conflict, the court reset the hearing for November 26 at 9:00 a.m. Upon 

learning of the error, and the fact that hearing had taken place without plaintiffs' counsel's 

participation, counsel immediately called the court to apologize. 
10 

 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 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 March 2005. [Citation.] The 6AC 

alleges no false representations made by Barratt PLC. Since Barratt 

PLC is alleged to have sold Barratt American in August 2004, 

Barratt PLC cannot be held liable under an alter ego theory for 

conduct alleged to have occurred after 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 deficiencies 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 conspiracy 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 specific facts regarding Barratt PLC's 

knowledge or concealment of any construction defects prior to 

August 2004, or any specific misrepresentations made by Barratt 

PLC regarding those defects. The 6AC also fails to allege Barratt 

PLC made misrepresentations to Plaintiffs regarding the construction 

loan, or that Plaintiffs were induced to purchase units based on how 

the project was financed. Moreover, Plaintiffs' fraud-based causes 

of action seek damages in the amount 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 is 
11 

unconnected to the allegations regarding the alleged diversion of 

construction loan proceeds. 

"The 6AC fails to attribute any false statements to Barratt PLC or its 

alleged alter ego, Barratt American. The 6AC also fails to allege 

any fraudulent statements and concealments 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 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. 
12 

III. 

DISCUSSION 

A. The plaintiffs' appeal

1. The trial court did not err in sustaining Barratt's demurrer to the 6AC 

without leave to amend 

 a. Legal standards

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.) 
13 

 b. Analysis

 i. The trial court did not err in sustaining Barratt's demurrer

 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)10 as to a material fact; (2) knowledge 

of its falsity or scienter; (3) intent to defraud; (4) justifiable reliance; and (5) resulting 

damage. (Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 990.) The 

essential elements of negligent 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 deceit. (See Civ. Code, §§ 1710, subd. (3), 

1572, subd. 3; Lovejoy v. AT&T Corp. (2004) 119 Cal.App.4th 151, 158.) The elements 

of a cause of action for concealment are substantially similar to the elements of a cause of 

action for making a false but affirmative representation: "(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 plaintiff, (3) the defendant must have intentionally concealed or 

suppressed the fact with the intent 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 the 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 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 
15 

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: 

"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 Jolla Guaranty Bank construction loan. British 

Barratt Develop[ments] PLC organized this plan so that Seahaus La 

Jolla purchasers would reimburse Guaranty Bank for the $23 million 

British Barratt Developments PLC planned 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 PLC'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 deficiencies 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 British Barratt Developments PLC 

withdrew and diverted from the Guaranty construction loan for the 

Seahaus La Jolla project should have been used to make repairs 

needed to correct the construction deficiencies and shoddy work 
16 

done at the project, which British Barratt Developments PLC knew 

that by its removal and diversion of the $23 million, the money 

needed for repairs would not be feasible." 

 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: 

"In and about March 2005, for the purpose of closing the Seahaus 

sales escrows and consummating sales 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 Steele and Andrew Duncan; D'Amato 

Conversano through Robert Heeringa, Richard Hemmen, Diana 
17 

Earnest; and Weyerhaeuser through Terry K. Metzker, Curt Nieman, 

Jim Nicodemus, and Tuong Banh, knowingly and willfully 

conspired and agreed to misrepresent 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 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: 

"The principles of Barratt American and British Barratt 

Developments PLC agreed amongst themselves for their own 

personal benefit and profit to conceal 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 interest 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 construction loan with Guaranty 

Bank. 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 omission that concealed the shoddy construction 

practices and defects at the Seahaus La Jolla project." 

 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. 
18 

 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.11

 

11 There is a single allegation of a misrepresentation/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]" the audience that Seahaus "was a high-quality 

project that was being looked after carefully by a dedicated construction team of expert 

engineers, builders, and contractors." The 6AC alleges that Steele's comments were false 

because he "did not correct the representations or provide the after acquired information 

he discovered to plaintiffs that there were material defects embedded in the Seahaus 

project, that there were material deviations from the approved plans and that the City had 
19 

 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: 

"Defendants, in their individual or entity capacity, and/or as part of a 

conspiracy, made misrepresentations by making false representations 

as to the Seahaus La Jolla condominiums and common areas with 

knowledge of the falsity, with the intent to defraud Plaintiffs and to 

induce their reliance, such reliance which was justified and that 

harmed Plaintiffs." 

 The plaintiffs' claims in the second cause of action ("Fraud and Deceit: 

Suppression of Material Facts") contain slightly more specific allegations, such as: 

"The facts that Defendants intentionally concealed and failed to 

disclose involved the substandard 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 levels exceeding applicable [sic] those 

permitted by applicable standards." 

 With respect to the third cause of action ("Fraud and Deceit: Negligent 

Misrepresentation of Fact Against Defendants"), 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 Occupancy." Inherent in this allegation is that the falsity of 

Steele's statements became apparent and/or required correction only after the project was 

being built, allegedly with shoddy workmanship and material deviations from the plans. 

However, Barratt was not involved with the project during the majority of the 

construction. 
20 

property and common area improvements, amenities, facilities and 

residential structures in the respective 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 levels exceeding those permitted by 

applicable standards." 

 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: 

"While British Barratt Developments PLC had control of the 

Seahaus La Jolla project, British Barratt Developments PLC and 

Barratt American omitted material facts and made false statements 

that hid the faulty construction practices and defects at the Seahaus 
21 

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 were induced to purchase and did 

purchase units in the project based on false statements and omissions 

of material facts." 

 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.12

 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. 

 

12 Although the 6AC includes allegations regarding $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 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." 
23 

(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 
24 

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. 

ii. Plaintiffs have not shown that the trial court abused its 

discretion in denying leave to amend 

 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. 
25 

 2. The trial court did not abuse its discretion in denying relief under section 

 473, subdivision (b) 

 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: 

"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 certification 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 change but not the time change 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 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: 

"The court may, upon any terms as may 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 excusable neglect. Application for this 

relief shall be accompanied by a copy of the answer or other 

pleading proposed to be filed therein, 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. . . . Notwithstanding any other requirements 

of this section, the court shall, whenever 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 clerk against his or her client, and 

which will result in entry of a default 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 based on an attorney's affidavit of 

fault, direct the attorney to pay reasonable compensatory legal fees 

and costs to opposing counsel or parties. However, this section shall 

not lengthen the time within which an action shall be brought to trial 

pursuant to Section 583.310." 

 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 
27 

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.' 
28 

[Citation.]" (Id. at pp. 618-619.)13 In other words, " 'when the Legislature incorporated 

dismissals into section 473, it intended to reach only those dismissals which occur 

through failure to oppose a dismissal motion—the only dismissals which are procedurally 

equivalent to a default.' [Citation.]" (English v. Ikon Business Solutions (2001) 94 

Cal.App.4th 130, 141.) 

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 

 

13 The court in Generale Bank Nederland v. Eyes of the Beholder Ltd. (1998) 61 

Cal.App.4th 1384, 1396, summarized the development of the statute with respect to the 

addition of dismissals, in addition to defaults: " 'Enacted in 1988, the attorney affidavit 

provision of section 473 originally 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 precipitating more litigation in the form of malpractice suits." 

[Citation.] In the words of the author, " 'Clients who have done nothing wrong are often 

denied the opportunity to defend themselves, simply because of the mistake or 

inadvertence of their attorneys 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 change 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 plaintiffs whose cases are dismissed for the same reason.' " 

[Citation.] [¶] Although the statute on its face affords relief from unspecified 

"dismissal" caused by attorney neglect, our courts have, through judicial construction, 

prevented it from being used indiscriminately by plaintiffs' attorneys as a "perfect escape 

hatch" [citation] to undo dismissals of civil cases. Thus it has been held that the 

provision does not apply to dismissals under section 583.410 for delay in prosecution of 

the action because virtually all such dismissals are attorney caused and such a 

construction would result in a disfavored repeal of the discretionary dismissal statute by 

implication. . . . ' [Citation.]" (Ibid., italics omitted.) 
29 

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.14 Mandatory relief under section 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 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 

 

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 reached." However, the plaintiffs did not 

"lose their day in court." In fact, plaintiffs participated in full briefing 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 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.15 

 

15 "The only occasion for the application of section 473 is where a party is 

unexpectedly placed in a situation 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 classified 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, inadvertence, 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 trial 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 could not have changed 

this basic fact. It is the deficiencies of the 6AC, and not the lack of oral argument 

opposing Barratt's demurrer, that led to the ultimate dismissal 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 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 
32 

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. 

B. Barratt's cross-appeal

1. The trial court did not abuse its discretion 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 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. 
33 

Subdivision (a) of section 1008 provides: 

"When an application for an order has 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 party affected by the order may, 

within 10 days after service 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 application shall state by affidavit 

what application was made before, when and to what judge, what 

order or decisions were made, and what new or different facts, 

circumstances, or law are claimed to be shown." 

 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."16 It is clear from the language of the provision on which Barratt relies that it 

 

16 Section 128.7, in turn, provides in relevant part: 
34 

 

"(a) Every pleading, petition, written notice of motion, or other 

similar paper shall be signed by at least one attorney of record in the 

attorney's individual name, or, if the party is not represented by an 

attorney, shall be signed by the party. Each paper shall state the 

signer's address and telephone number, if any. Except when 

otherwise provided by law, pleadings need not be verified or 

accompanied by affidavit. An unsigned 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 attorney 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 following conditions are met: 

"(1) It is not being presented primarily 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 other legal contentions therein are 

warranted by existing law or by a nonfrivolous argument for the 

extension, modification, or reversal of existing law or the 

establishment of new law. 

"(3) The allegations and other factual contentions have evidentiary 

support or, if specifically so identified, are likely to have evidentiary 

support after a reasonable opportunity 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 reasonable opportunity to respond, the 

court determines that subdivision (b) has been violated, the court 

may, subject to the conditions stated below, impose an appropriate 

sanction upon the attorneys, law firms, or parties that have violated 

subdivision (b) or are responsible for the violation. In determining 
35 

is permissive, rather than mandatory. In other words, subdivision (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 attorney 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 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: 

 

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 violation of subdivision (b) shall be 

limited to what is sufficient to deter repetition of this conduct or 

comparable conduct by others similarly situated. Subject to the 

limitations in paragraphs (1) and (2), the sanction may consist of, or 

include, directives of a nonmonetary nature, an order to pay a 

penalty into court, or, if imposed on motion and warranted for 

effective deterrence, an order directing payment to the movant of 

some or all of the reasonable attorney'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 violation of this section and explain the 

basis for the sanction imposed." 
36 

"Upon motion, a court may award attorneys' 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 make the award appropriate, and (c) 

such fees should not in the interest of justice be paid out of the 

recovery, if any. With respect to actions involving public entities, 

this section applies to allowances against, but not in favor of, public 

entities, and no claim shall be required to be filed therefor . . . ." 

 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." 
37 

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. 

IV. 

DISPOSITION 

 The judgment is affirmed. The parties are to bear their own costs on appeal. 

 

AARON, J. 

WE CONCUR: 

 

 McCONNELL, P. J. 

 

 HALLER, J.