Harpel v. Spina

Filed 8/14/09 Harpel v. Spina CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

In this appeal, plaintiffs and appellants Gina and Mitchell Harpel (appellants) challenge: (1) the order of the trial court sustaining without leave to amend defendant and respondent R&S Homes, Inc.s (R&S) demurrer to their first amended complaint (FAC) against R&S for breach of contract and fraud; (2) the trial courts grant of respondent Robert Waals (Waal) motion for judgment on the pleadings (MJOP) without leave to amend on the same FAC; (3) the trial courts order granting R&S and Waals (collectively, respondents) motions for sanctions against appellants and appellants counsel in connection with the demurrer and MJOP; (4) the trial courts denial of appellants request to reconsider the aforementioned orders; and (5) the trial courts imposition of further sanctions against appellants and appellants counsel in response to appellants request for reconsideration. We affirm in part and reverse in part.

FACTUALAND PROCEDURAL BACKGROUND

This appeal has its origin in a dispute between appellants and the building contractor that they hired to perform a home renovation project. On November 9, 2006, appellants filed a complaint naming as defendants Chris Spina, the building contractor, his company Spina General Contracting, Inc. (SGC), and Does 1-40. The complaint sought general, special, and punitive damages for breach of oral contract, breach of written contract, and fraud.

In support of the cause of action for breach of oral contract, the complaint alleged that appellants entered into oral contracts with Spina and/or SGC to remodel appellants home for a sum of about $325,000, the terms of which included, but were not limited to, the remodeling of a kitchen. The complaint further alleged that Spina and/or SGC had breached the oral contracts, in part, by failing to complete the work; appellants paid Spina, SGC, and/or others over $250,000 under the oral contracts for work that was only worth $150,000; and, as a result of poor workmanship by Spina, SGC, and/or others, it will cost appellants over $200,000 to correct the work that was done by defendants and to complete the remodeling of their home. In support of the cause of action for breach of written contract, the complaint incorporated the allegations made in support of the breach of oral contract cause of action and added the allegations that on or about November 18, 2004 and/or December 14, 2004, Spina and/or SGC entered into written contracts with appellants to remodel appellants home and that Spina and/or SGC breached the terms of such written contracts, in part, by failing to complete the work.

In support of the cause of action for fraud, the complaint alleges that Spina and/or SGC falsely represented to appellants that the work would be performed in a workmanlike and correct manner; defendants representations were in fact false because the work was neither performed in a workmanlike manner nor was it completed; defendants made such representations knowing them to be false and with the intent to deceive appellants; appellants were ignorant of the falsity of defendants representations; and, in reliance upon the representations, appellants were induced to provide the funds as herein described.

On April 2, 2007, appellants filed their FAC. The FAC specified that each cause of action was against all defendants. In relation to the cause of action for breach of oral contract, the FAC added the allegation that the work covered by the oral contracts included not only the remodeling of the kitchen but also the addition of rooms to the house, the changing of the entrance to the house, alterations to the roofline of the house, and the installation of a drainage system. Further, the FAC alleged that none of these items had been completed when defendants had ceased working on the project. In regard to the cause of action for breach of written contract, the FAC included, as an attachment, a document entitled, Contract Addition remodel [sic] (contract). This document, as signed by Spina and appellant Gina Harpel, listed 71 separate items regarding the work to be performed by Spina and SGC at a total cost of $250,000. Item One of the contract stipulated, Plans and permits furnished by owners (not included). The FAC added no new causes of action and named no new defendants.

On December 3, 2007, appellants filed an amendment to the FAC naming Doe Defendant One as Robert Waal. On April 23, 2008, appellants filed a second amendment to the FAC, this time naming Doe Defendant Two as R&S Homes, Inc.[1] On May 21, 2008, in connection with their complaint against Waal, appellants counsel filed a declaration regarding the certificate of merit requirement of Code of Civil Procedure section 411.35.[2] Although appellants counsel acknowledged the certificate of merit requirement of section 411.35 in his declaration, he did not set forth any facts alleging a cause of action for professional negligence, either in this declaration or in his subsequent filings. In this filing, appellants counsel merely asserted that he had 60 days from May 7, 2008, i.e., until July 6, 2008, within which to file a section 411.35 certificate.[3]

On May 29, 2008, R&S filed a demurrer to the FAC and requested sanctions in the amount of $2,409 against appellants and appellants attorney. R&S demurred to the cause of action for breach of oral contract on the grounds that (1) appellants had failed to attach a certificate of merit to their complaint as required by section 411.35; (2) appellants had made no allegation regarding the existence or breach of any oral contract between appellants and R&S; and (3) a written contract existed between appellant, Gina Harpel, and R&S. In addition, R&S demurred to the cause of action for breach of written contract on the grounds that (1) appellants failed to attach a copy of the written contract with R&S to either the initial complaint or the FAC; (2) appellants made no allegation regarding the existence or breach of a written contract between appellants and R&S; and (3) appellants set forth no verbatim terms of the contract between appellants and R&S. Finally, R&S demurred to the cause of action for fraud on the grounds that appellants had failed to attach a certificate of merit to their complaint against R&S as required by section 411.35, and that appellants made no allegation regarding any element of fraud with respect to R&S. R&S based its request for sanctions pursuant to section 128.7 on its contention that the pleadings at issue were without any legal merit or evidentiary basis.

On June 5, 2008, Waal moved for judgment on the pleadings and requested sanctions in the amount of $1,850 against appellants and appellants counsel.[4] Waal based this motion on contentions that were substantially the same as those raised by R&S in its demurrer. Waal sought judgment on the grounds that (1) appellants had failed to file a certificate of merit as required by section 411.35; (2) appellants had failed to allege facts sufficient to demonstrate a claim against Waal for breach of either oral or written contract; and (3) appellants had failed to allege any element of fraud against Waal. In addition, Waal, like R&S, sought sanctions pursuant to section 128.7 on the basis that appellants pleadings were without any legal or evidentiary basis and added the allegation that appellants had not acted in good faith in order to avoid the costs and fees of preparing the motion.

On June 26, 2008, appellants filed oppositions to the MJOP, the demurrer, and to both motions for sanctions. In their opposition to the MJOP and the demurrer, appellants asserted that the facts alleged in the complaint, for example that Waal as one of the defendants breached the terms of the written contract(s) by failing to complete the work in a proper manner at the agreed price, must be presumed to be true. In their opposition to the MJOP, appellants asserted the additional facts that they had cancelled checks made payable to Waal, which carried no reference to any contract or the type of services to be provided by Waal and that they had no original set of plans to call their own. In their opposition briefs, appellants also set forth allegations that could be included in an amended complaint, such as: Waal made errors and omissions amounting to ordinary negligence when providing . . . design services such as omitting notes, schedules, finishes, and elevations; Waal was the enabler for Spina to get a permit in his own name (so that [p]laintiffs could not get a copy of those original plans even though they paid for the plans and the permit) because none of the plans showed [p]laintiffs paid for them or that [p]laintiffs owned the plans; and Waal was part of a conspiracy to defraud [p]laintiffs because, by placing his stamp on almost every page, the County did a cursory review and did not notice the lack of detail when issuing the original permit, which allowed Spina to do work not on the plans and yet have the excuse that (improper) work could be done.

Appellants contested the trial courts tentative ruling granting defendants motions to dismiss. A hearing was held on July 11, 2008, at the conclusion of which the court orally adopted its tentative ruling sustaining the demurrer and granting the MJOP, both without leave to amend. The only modification by the court to its tentative ruling was to reduce the amount of sanctions awarded to respondents from $3,500 to the amount of $1,750. The court ordered defense counsel to prepare an order to that effect.

Following the issuance of the courts verbal order denying appellants leave to amend their complaint, appellants filed an amended certificate of merit. In the amended certificate, appellants counsel stated that, if the court allowed him to amend the complaint against [Waal] and/or [R&S] (collectively WAAL) for professional negligence, if any, with respect to the activities done on, or for, the [p]laintiffs house in Alamo, CA in or about 2004, he would then pursue such a claim under the doctrine of res ipsa loquitur,[5] which obviated any need for appellants to file a certificate of merit

with the court under section 411.35.[6]

On July 30, 2008, the court issued its written order sustaining the demurrer without leave to amend, granting the MJOP, and imposing sanctions against appellants and appellants counsel in the amount of $1,700. The trial court ruled as follows: Plaintiffs failed to file the appropriate certificate of merit pursuant to [Code of Civil Procedure] section 411.35 before filing suit against Defendant Waal. . . . [] Plaintiffs complaint further fails to make out a claim of breach of contract or fraud against Defendant Waal. . . . [] [F]or the same reasons, R&S Homes, Inc.s demurrer is sustained without leave to amend. . . . [] [D]efendants request for sanctions for having to bring these motions is granted. (Emphasis omitted.)

Subsequent to the issuance of the courts written order denying appellants leave to amend their complaint, appellants filed a further amended certificate of merit on August 11, 2008. Appellants again sought to amend their FAC to include a cause of action for professional negligence against Waal and/or R&S using the same language as they had in their amended certificate filing of June 29, 2008. Appellants stated that they would now pursue this cause of action on the bases of both res ipsa loquitorand on the theory of failure to inform of the consequences of a procedure by adding the following language to their earlier filing: and on the failure to inform [p]laintiffs of the consequences of a procedure (e.g., the plans as drawn by Waal do not have to be followed by the contractor Spina). Appellants also stated that their pursuit of this cause of action on the bases of res ipsa loquitor and the failure to inform of the consequences of a procedure obviated any need for appellants to file a certificate of merit with the court under section 411.35.[7] On August 11, 2008, appellants also filed a request for reconsideration of the trial courts order on the demurrer, the MJOP, and the imposition of sanctions. In response to appellants request, respondents filed an opposition to the request for reconsideration in which they sought additional sanctions against appellants and appellants counsel in the amount of $2,775 to cover the cost of opposing the motion for reconsideration.

On September 26, 2008, the trial court issued its order denying the request for reconsideration of its earlier rulings and awarding additional sanctions to respondents in the amount of $1,000. The trial court ruled as follows: [T]he Request for Reconsideration . . . of the Order sustaining the demurrer of R&S Homes, Inc. is denied. Plaintiffs have failed to comply with section 1008 of the Code of Civil Procedure. The request fails to allege actual new facts, circumstances, or law that has changed that would support reconsideration of this ruling. [] [T]he Request for Reconsideration . . . of the Order granting the motion for judgment on the pleadings of defendant Robert Waal is denied. Plaintiffs have failed to comply with section 1008 of the Code of Civil Procedure. The request fails to allege actual new facts, circumstances or law that has changed that would support reconsideration of this ruling. [] [T]he Request for Reconsideration . . . of the Order granting sanctions against plaintiffs and plaintiffs' counsel is denied. Plaintiffs have failed to comply with section 1008 of the Code of Civil Procedure. The request fails to allege actual new facts, circumstances or law that has changed that would support reconsideration of this ruling. [] [D]efendants motion for further sanctions against plaintiffs and plaintiffs counsel is granted in the amount of $1,000 . . . for filing this unmeritorious pleading. This ruling is based on the lack of new facts, circumstances, or law put forward by the plaintiffs in this motion, as well as the inherently inconsistent position taken by the plaintiffs in their pleadings in this case and the conflicting declarations submitted under penalty of perjury. On October 24, 2008, appellants filed a timely notice of appeal.[8]

DISCUSSION

A.     Demurrer and MJOP

On appeal from an order sustaining a demurrer without leave to amend, we examine the pleading de novo to determine whether the facts alleged sufficiently state a cause of action under any possible legal theory. (See McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415.) [W]e give the complaint a reasonable interpretation and  [t]reat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions, or conclusions of fact or law.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 (Blank).) [I]n reviewing an order sustaining a demurrer without leave to amend, the allegations of the complaint must be liberally construed with a view toward attaining substantial justice among the parties. [Citations.] (King v. Central Bank (1977) 18 Cal.3d 840, 843.) We must also 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. (Blank, supra, 39 Cal.3d at p. 318.) We are not bound by the trial courts stated reasons, if any, supporting its ruling; we review the ruling, not its rationale. (Mendoza v. Town of Ross (2005) 128 Cal.App.4th 625, 631.) The same standard of review applies in an appeal from the granting of a MJOP. (Angelucci v. Century Supper Club (2007) 41 Cal.4th 160, 166; Gerawan Farming, Inc. v. Kawamura (2004) 33 Cal.4th 1, 32; Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216-1217.)

R&S demurred to each of the three causes of action alleged in appellants FAC: (1) breach of oral contract; (2) breach of written contract; and (3) fraud. The trial court sustained the demurrer without leave to amend on the grounds that appellants failed to state facts sufficient to support any of these causes of action. We agree.[9] In order for appellants to maintain their breach of oral contract cause of action, appellants pleadings must contain facts setting forth the necessary elements for such a claim: (1) the existence of a contract between appellants and R&S; (2) performance on that contract by appellants or an excuse therefrom; (3) breach of the contract by R&S; and (4) damage suffered by appellants resulting from that breach. (See Reichert v. General Ins. Co. (1968) 68 Cal.2d 822, 830 (Reichert).) An oral contract may be pleaded generally as to its effect, because it is rarely possible to allege the exact words. (Khoury v. Malys of California (1993) 14 Cal.App.4th 612, 616.) The burden of proof that an oral contract exists, however, is on the party alleging breach. (Sully v. Kern Drilling Corp. (1954) 126 Cal.App.2d 651, 654.)

We note at the onset that the FAC fails to allege the existence of an oral contract between R&S and appellants. As importantly, the FAC is devoid of any allegation regarding the terms of the oral contract between appellants and R&S, nor does the pleading allege facts describing a breach of those terms. [A] complaint for breach of contract must state the breach in unequivocal language. (Poirier v. Gravel (1891) 88 Cal. 79, 82.) The omission of these critical allegations is fatal to appellants claim. In their opposition to the demurrer, appellants admit that they did not clearly allege the terms of the contract or the acts resulting in breach but asserted that this deficiency should await results of discovery.[10] Given this significant concession, the trial court was correct in finding that appellants had failed to provide facts, which reasonably supported leave to amend. (See Blank, supra, 39 Cal.3d at p. 318.) Accordingly, the trial court did not err in sustaining R&Ss demurrer without leave to amend.

Similarly, the trial court did not err in sustaining the demurrer without leave to amend on the cause of action for breach of written contract. As in their cause of action for breach of oral contract, appellants failed to allege facts establishing either the operative terms of the agreement between appellants and R&S or any breach thereof. (See Reichert, supra, 68 Cal.2d at p. 830; see also Poirier v. Gravel, supra, 88 Cal. at p. 82.) [A]n allegation that a defendant might have breached a contract does not state a valid cause of action. (Melican v. Regents of University of California(2007) 151 Cal.App.4th 168, 174.) In the FAC, appellants presented no facts either describing the terms of the written contract claimed to have been breached or alleging the acts or omissions which resulted in the breach. Similarly, appellants have presented no additional facts, either in their oppositions to the demurrer and the MJOP or in their request for reconsideration, that, even when liberally construed, show that amendment would cure this flaw. (See post, Discussion,  C.) For example, in their opposition to the demurrer, appellants advance general and conclusory allegations such as: R&S was liable in some manner for [p]laintiffs injuries and a written contract was made, and it was breached regarding work to be performed by the defendants and each of them. (Italics added.) Generalized and conclusory statements such as these neither establish the terms of the written agreement between appellants and R&S nor do they elucidate how the contract was breached. Further, our review of the FAC, appellants filing in opposition to the demurrer, and their briefing on appeal fails to disclose any ground upon which the court reasonably could have granted leave to amend. In sum, because appellants have failed to (1) provide a copy of the contract; (2) specifically recite the terms of the contract allegedly breached; or (3) sufficiently identify any action or inaction by R&S that would indicate that a breach had occurred, we conclude that the trial court also acted properly in sustaining without leave to amend the demurrer of R&S to appellants breach of written contract cause of action. (See Reichert, supra, at p. 830.)

Finally, we conclude that the trial court properly sustained the demurrer without leave to amend on the cause of action for fraud. California has adopted a requirement of specific pleading for fraud in an attempt to prevent as many unmeritorious claims as possible from proceeding to trial. (See Committee on Childrens Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216-217.)  In California, fraud must be pled specifically; general and conclusory allegations do not suffice. [Citations.] Thus  the policy of liberal construction of the pleadings . . . will not ordinarily be invoked to sustain a pleading defective in any material respect. [Citation.]   (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184 (Small).) The elements of fraud are: (1) a misrepresentation; (2) made with knowledge of its falsity; (3) made with the intent to induce the reliance of another on the misrepresentation; (4) that does induce justifiable reliance; and (5) damage resulting to the party justifiably relying on the misrepresentation. (Conroy v. Regents of University of California(2009) 45 Cal.4th 1244, 1255.) Californias particularity requirement for the pleading of causes of action for fraud   necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered.    (Small, supra, 30 Cal.4th at p. 184.)

Appellants base their cause of action for fraud on the following general allegations in the FAC: . . . Defendants, and each of them, falsely and fraudulently represented to [p]laintiffs that their work and/or services would be performed in a workmanlike and correct manner for an agreed price. [] The representations . . . were in fact false. . . . [T]he work was not completed, [p]laintiffs had to overpay for the work done . . . . [] When [d]efendants, and each of them, made these representations, they knew them to be false; and these representations were made . . . with the intent to induce [p]laintiffs to act in the manner herein alleged. . . . [] . . . In reliance on these representations, [p]laintiffs were induced to and did provide approvals and/or funds as herein described. Had [p]laintiffs known the actual facts, they would not have taken such actions.

Appellants stood on these pleadings in their opposition to the demurrer, insisting that there was no need for them to identify each of the numerous misrepresentations allegedly made by respondents and claiming that their prior pleadings sufficiently satisfied Californias specificity requirement for pleading a cause of action for fraud. We disagree. As noted above, fraud must be pled with particularity under California law. (See Small, supra, 30 Cal.4th at p. 184.) Appellant provides no specific allegation that the plans provided by R&S were in anyway defective or misrepresented as to their form or content. Moreover, appellants allegation that defendants falsely and fraudulently represented to [p]laintiffs that their work and/or services would be performed in a workmanlike and correct manner simply does not rise to the level of actionable misrepresentation. (See Cohen v. S&S Construction Co. (1983) 151 Cal.App.3d 941, 946 [actionable misrepresentation must be one of existing fact; predictions as to future events, or statements as to future action . . . are deemed opinions, not actionable fraud ].) In sum, appellants allegations lack the requisite specificity to support a cause of action for fraud against R&S and the record fails to disclose any reasonable possibility by which these defects could be cured through amendment. (See Small, supra, 30 Cal.4th at p. 184 [cause of action for fraud must plead   facts which show how, when, where, to whom, and by what means the representations were tendered.   ].) Thus, we conclude that appellants have failed to state a cause of action for fraud against R&S and that the trial court acted correctly in sustaining without leave to amend R&Ss demurrer to the cause of action for fraud.[11]

B.                 Motion for Reconsideration

After an order is granted by a court, any party affected by the order may seek reconsideration based upon a showing of new or different facts. (Glade v. Glade (1995) 38 Cal.App.4th 1441, 1457.) A request for reconsideration of a courts orders made under section 1008 requires that the motion for reconsideration be based on new or different facts, circumstances, or law. A party seeking reconsideration also must provide a satisfactory explanation for the failure to produce the evidence at an earlier time. (New York Times Co. (2005) 135 Cal.App.4th 206, 212.) A trial courts ruling on a motion for reconsideration is reviewed under the abuse of discretion standard. (Glade v. Glade, supra, at p. 1457.) Under an abuse of discretion standard of review, we afford considerable deference to the trial court and, when two or more inferences can be drawn from the record, we defer to the decision of the court. (See Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479.) The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. (Id. at p. 478.) Unless an abuse of discretion is clearly established we must not disturb the order of the trial court. (See In re: Stephanie M. (1994) 7 Cal.4th 295, 318.) If the trial courts ruling may be sustained on any ground, we must affirm that ruling. (See Moore, supra, 128 Cal.App. at p. 666.)

The trial court found that appellants presented no new facts justifying reconsideration of its orders in favor of respondents. We agree. The new and/or different facts presented by appellants in their motion for reconsideration were purportedly garnered from testimony heard in their ongoing trial against Spina. Assuming, arguendo, that these new and/or different facts were unavailable to appellants until after the commencement of their trial against Spina and SGC, these facts, even if true, fail to state a cause of action against either Waal or R&S for breach of oral contract, breach of written contract, or fraud. (See post, Discussion,  C.) Thus, the trial court did not abuse its discretion when it refused to reconsider its rulings in favor of respondents on the demurrer and MJOP. (See Shamblin v. Brattain, supra, 44 Cal.3d at p. 478.) Accordingly, we decline to disturb the trial courts ruling. (See Moore, supra, 128 Cal.App. at p. 666.)

C.                 Sanctions

On appeal from the imposition of sanctions, pursuant to section 128.7, we presume that the order of the trial court was correct and apply an abuse of discretion standard of review. (See Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 867 (Kurinij).) We will not overturn the trial courts order imposing sanctions unless, after considering all of the evidence in the light most favorable to the upholding the order and indulging all reasonable inferences in its favor, no judge could reasonably make the order. (See In re Marriage of Corona (2009) 172 Cal.App.4th 1205, 1225-1226.) To the extent that we are called upon to interpret the statutes relied on by the court to impose sanctions, we apply a de novo standard of review. (In re Marriage of Feldman (2007) 153 Cal.App.4th 1470, 1479.)

The trial court awarded sanctions to respondents on two occasions. Initially, the court imposed sanctions under section 128.7 in its order sustaining the demurrer and granting the MJOP. Thereafter, the court imposed sanctions in response to respondents opposition to appellants request for reconsideration of that order. We address each order in turn.

Regarding the initial award of sanctions granted in connection with respondents demurrer and MJOP, we note that respondents motion for sanctions was brought pursuant to section 128.7. Respondents joined their motions for section 128.7 sanctions with their demurrer and MJOP. Section 128.7, however, requires that A motion for sanctions under this section shall be made separately from other motions . . . . ( 128.7, subd. (c)(1), italics added.) It is not within the discretion of the trial court to circumvent the statutory procedural requirements of section 128.7 and we must reverse if the trial court has applied the wrong test to determine if the statutory requirements were satisfied. (Flannery v. California Highway Patrol (1998) 61 Cal.App.4th 629, 634.) Accordingly, we cannot uphold the trial courts sanction award under section 128.7 because respondents failed to comply with its strict procedural requirement that such motions be filed separately.[12] (See 128.7, subd. (c)(1); In re Marriage of Corona, supra, 172 Cal.App.4th at p. 1225, fn 7.)

The trial court also imposed sanctions on appellants under section 1008 in connection with its denial of respondents request for reconsideration. A request for reconsideration of a trial courts order, made under section 1008, must be based upon new or different facts, circumstances, or law. ( 1008, subds. (a)-(b).) A violation of section 1008 may be punished as a contempt and with sanctions as allowed by Section 128.7. ( 1008, subd. (d).) Under section 128.7, there is no requirement that a trial court make  a showing of subjective bad faith  in order to impose sanctions for conduct that is objectively unreasonable. (Guillemin v. Stein (2002) 104 Cal.App.4th 156, 167.) Under this standard, three types of submitted papers warrant sanctions: factually frivolous (not well grounded in fact); legally frivolous (not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law); and papers interposed for an improper purpose. (Ibid.) As with sanctions imposed pursuant to section 128.7, our review of sanctions imposed under section 1008 is for abuse of discretion. (See Kurinij, supra, 55 Cal.App.4th at p. 867.)

Appellants purported to provide new and additional facts garnered from Spinas trial in support of their request for reconsideration. However, the trial court nonetheless denied the request for reconsideration and imposed sanctions because appellants fail[ed] to allege actual new facts, circumstances or law that has changed or that would support reconsideration of its ruling on the demurrer or MJOP. (Italics added.) The trial courts decision to impose sanctions was not an abuse of discretion. In their motion for reconsideration, appellants alleged miscellaneous and disparate facts, such as: [I]solated foundation supports and hold-downs in walls . . . were different than as depicted in the plans; the engineering calculations by Waal required the use of a specific Simpson hold-down (e.g., PHD2), and that specific hold-down was not used in the wall framing in the family room; and Waal had testified that Spina could deviate from the plans on certain items without any adverse engineering consequences. Such allegations are legally frivolous in that they utterly failed to state a cause of action for breach of contract or fraud against respondents and provided no reasonable basis for reconsideration. Thus, the trial court acted within its discretion by imposing sanctions. (See Guillemin v. Stein, supra, 104 Cal.App.4th at p. 167 [sanctions may be awarded for asserting legally frivolous claims].) Accordingly, we affirm the trial courts order imposing sanctions on appellants, dated September 26, 2008.

DISPOSITION

The trial courts orders sustaining the demurrer of R&S without leave to amend; granting the MJOP of Waal without leave to amend; and imposing sanctions on appellants under section 1008, dated September 26, 2008, are affirmed. The order of the trial court, dated July 30, 2008, imposing sanctions on appellants under section 128.7 is reversed. Each party shall bear its costs on appeal.

_________________________

Jenkins, J.

We concur:

_________________________

McGuiness, P. J.

_________________________

Pollak, J.

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[1] Respondent Robert C. Waal is the president of R&S. Waal provided his engineering services to appellants through this company and entered into a written contract with appellants on the behalf of R&S to provide plans and specifications to appellants for their home renovation project. This contract, however, was never made part of the record.

[2] Section 411.35, subdivision (a), requires that In every action . . . arising out of the professional negligence of a person holding a . . . valid registration as a professional engineer . . . on or before the date of service of the complaint . . . on any defendant to . . . , the attorney for the plaintiff . . . shall file and serve the certificate specified by subdivision (b). ( 411.35, subd. (a).) Section 411.35, subdivision (b)(1), requires, in pertinent part, that the certificate, specified in subdivision (a), declare that the attorney has reviewed the facts of the case, that the attorney has consulted with and received an opinion from at least one . . . professional engineer . . . who is licensed and practices in this state . . . in the same discipline as the defendant . . . and who the attorney reasonably believes is knowledgeable in the relevant issues involved in the particular action and that the attorney has concluded on the basis of this review and consultation that there is reasonable and meritorious cause for the filing of this action. The person consulted may not be a party to the litigation . . . [and] shall render his or her opinion that the named defendant . . . was . . . or was not negligent in the performance of the applicable professional services. ( 411.35, subd. (b)(1).) All further statutory references are to the Code of Civil Procedure unless otherwise indicated.

[3] Appellants counsel based this timing calculation on section 411.35 subdivision (b)(2), which provides that counsel may file a certificate with the court declaring that counsel was unable to obtain the consultation required by paragraph (1) because a statute of limitations would impair the action and that the certificate required by paragraph (1) could not be obtained before the impairment of the action. If a certificate is executed pursuant to this paragraph, the certificate required by paragraph (1) shall be filed within 60 days after filing the complaint. ( 411.35 subd. (b)(2), italics added.) Appellants counsel asserted that he was entitled to a 60-day extension from May 7, 2008, because it was on that date he first discovered Waal was a licensed civil engineer. Under the statute, however, only an impairment resultant from a statute of limitations qualifies for a 60-day extension.

[4] Waal, acting in propria persona, filed an answer to the complaint on December 17, 2007, in which he generally denied all allegations. For this reason, Waal was procedurally required to file a MJOP rather than demur. (See People v. 20,000 U.S. Currency (1991) 235 Cal.App.3d 682, 691.) [A] motion for judgment on the pleadings on the ground that no valid cause of action is stated performs the same function as a general demurrer . . . . (Nunn v. State of California (1984) 35 Cal.3d 616, 620-621.) Indeed, the only significant difference between the two motions is in their timing. . . . The main difference between a motion for judgment on the pleadings and a general demurrer is that a motion for judgment on the pleadings may be made at any timeeven after all the pleadings are filed or at trial. [Citations.] (Currency, supra, 235 Cal.App.3d at p. 691.)

[5] Under the theory of res ipsa loquitur, appellants must show that (1) the cause of the injury is of a kind that does not occur ordinarily in the absence of someones negligence; (2) the injury was caused by an agency or instrumentality within the exclusive control of the defendant or of a third party for whose conduct the defendant is legally responsible; and (3) that the injury was not due to any voluntary action or contribution on the part of appellants. (See Shahinian v. McCormick (1963) 59 Cal.2d 554, 559; see also Levy-Zentner Co. v. Southern Pac. Transportation Co. (1977) 74 Cal.App.3d 762, 777-780.) Neither appellants amended certificate of merit nor their subsequent filings contained facts or allegations in support of any of these elements.

[6] We note that section 411.35, subdivision (d), allows that [w]here an attorney intends to rely solely on the doctrine of res ipsa loquitur . . . or exclusively on a failure to inform of the consequences of a procedure, or both, this section shall be inapplicable. . . . ( 411.35, subd. (d), italics added.)

[7] See ante, footnote 2.

[8] Appellants request for judicial notice, filed on July 20, 2009, is denied.

[9] We note that the trial court also sustained the demurrer on the ground that appellants failed to comply with the certificate of merit requirement of section 411.35. We have found no cases discussing the certificate of merit requirement of section 411.35 in the context of a cause of action for breach of contract or fraud against an engineer. We further note that, under section 411.35, a certificate is only required in an action for damages . . . arising out of the professional negligence of a person holding . . . valid registration as a professional engineer . . . . (Italics added.) In any event, whether the trial court erred in its application of section 411.35 to appellants causes of action for breach of contract and fraud is of no import here because, as we explain below, appellants have failed to sufficiently allege causes of action for breach of contract or fraud against respondents.

We also clarify here, consistent with statements made in appellants opening brief, that appellants did not allege a cause of action for professional negligence against Waal and/or R&S below. In addition, we note that, even assuming that appellants amended certificate and further amended certificate of merit could be construed as a request for leave to amend the FAC to assert a cause of action against respondents for professional negligence under a theory of res ipsa loquitur or failure to inform of the consequences of a procedure, appellants clearly failed to comply with the procedure requirements set forth in the Code of Civil Procedure. (See 473, subd. (a)(1) [motion seeking leave to amend requires notice of motion]; see also 1010 [notice of motion must state when and the grounds upon which the motion will be made]; Cal. Rules of Court, rule 3.1324(a) [motion to amend a pleading must state what allegations are proposed to be amended and provide the court a copy of the proposed amendment].) Thus, appellants never properly sought leave to amend to allege a cause of action for professional negligence. Accordingly, we confine our review to the stated causes of action set forth in the FAC.

[10] In any case, this excuse contradicts the statement made by appellants counsel, during arguments on the demurrer, that he had conducted discovery on respondents in preparation for trial but had failed to ask questions which may have provided information allowing him to satisfactorily plead the terms and breach of the contract.

[11] We affirm the order of the trial court granting the MJOP on the same bases as our affirmance of the demurrer because the support for and argument against both motions is identical, as is our standard of review.

[12] While we are not bound by the trial courts use of section 128.7 and may uphold the sanction order on any basis supported by the record (see In re Marriage of Corona, supra, 172 Cal.App.4th at p. 1225), the alternative statutory bases suggested by respondent at oral argument do not provide a basis for affirmance of the trial courts first sanction order.