Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 460614
Siggins, J.
Phillip Hwee appeals the dismissal of his claims against Ronald and Jannie Mar who sold Hwee their condominium. Hwee contends the trial court erred when it struck his second amended complaint without leave to amend, and awarded attorney fees and costs to the Mars. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Hwee is a licensed attorney and real estate broker who entered into a contract to buy a condominium from the Mars. Robyn Kaufman of the Pacific Union Real Estate Group, Ltd., acted as the Mars’ agent. Hwee obtained his real estate broker license in order “to qualify for the 2.5% ($22,950) cooperating broker fee, which he used to reduce his out-of-pocket expenses on the purchase of the condominium.” In February 2007, Hwee filed an action to rescind the sale due to alleged misrepresentation by the Mars and their representatives of the square footage of the property. According to Hwee’s complaint, the condominium was “130 square feet smaller than what [the Mars] had le[d] him to believe through marketing materials and communications from Kaufman.”
Several exhibits were attached to the complaint intended to depict the actual and represented square footage of the condominium, along with a copy of Hwee’s offer to purchase the property and a copy of the contract of sale. Neither the offer nor the contract specified the square footage of the property, and the contract further provided: “Brokers do not certify or verify lot size, boundary lines or interior square footage, information contained in inspection reports, or representations of others.” Hwee’s initials appeared next to the paragraph containing that provision.
A month later Hwee filed a first amended complaint (FAC), asserting causes of action for misrepresentation, deception, fraud, untrue/misleading advertising, unfair competition, negligent misrepresentation, conspiracy to defraud, unconscionability, rescission, failure to disclose construction defect, and “(POSSIBLE) UNLAWFUL PRACTICE OF REAL ESTATE BY NON-LICENSEE.” The FAC further alleged: “In February 2006, several weeks after escrow closed, the San Francisco Assessor-Recorder ‘recorded’ the square footage of the Subject Property as 1,034, which is still 108 square feet or 9.5% smaller than what the SELLERS, through their agent Kaufman, represented to HWEE.” In April 2007, Hwee forwarded copies of his FAC to various public officials and requested that they investigate his allegations.
Attached to the FAC were most of the exhibits that had been attached to the original complaint, with the exception of a floor plan diagram reflecting square footage figures of 1,102 and 1,177. Also attached was a copy of a floor plan from Kaufman’s website that showed square footage of 1,142.
Hwee sent copies of the FAC, with a cover letter, to his local and state representatives, the California Attorney General, the San Francisco District Attorney, and the Commissioner of the California Department of Real Estate. Hwee also sent a copy of his letter to a local television reporter.
The Mars demurred to the FAC “on the grounds that the [FAC] fails to state facts sufficient to constitute a cause of action on the grounds stated or on any other ground, that the [FAC] is uncertain, ambiguous and unintelligible as a verified pleading and that the first amended complaint is defective due to a misjoinder or failure to join parties who are indispensable.” The Mars also moved to strike “on the grounds that the [FAC] fails to conform to the proper style of a complaint as it has been established through adherence to the California Rules of Court and through custom and practice, and that the [FAC] is riddled with irrelevant, false and improper matters as well as legal conclusions all in contravention of the Code of Civil Procedure.” Hwee did not file opposition to the motions, nor did he appear at the hearing. The court sustained the demurrer and granted the motion to strike the FAC, with 30 days leave to amend.
In June 2007, Hwee filed his second amended complaint (SAC). The SAC asserted the same 11 causes of action as the FAC, with a slight change in the order of the first three. The SAC also added prefatory language attacking the court’s ruling on the demurrer to the FAC on the asserted ground that “[t]he MARS lacked standing to bring said motion because HWEE had never served the FAC (or his original complaint) upon them.” The Mars moved to strike the SAC pursuant to Code of Civil Procedure section 436. The Mars argued that “after this court sustained [their] demurrer to the [FAC] and granted [their] motion to strike, [Hwee] has filed a [SAC] in all substantive aspects virtually identical to the prior complaint such that it may be ordered stricken by this court as a frivolous and sham pleading.” The Mars also sought costs and attorney fees pursuant to the terms of the contract of sale. Again, Hwee filed no opposition and made no appearance in the trial court. In July 2007, the court granted the motion to strike the SAC without leave to amend, and ordered entry of judgment of dismissal. In August 2007, the court granted the Mars’ unopposed motion for attorney fees of $16,800 and costs of $1,085.10. Judgment was entered for the Mars and Hwee timely appealed.
Code of Civil Procedure section 436 provides: “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: [¶] (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. [¶] (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.”
The contract provided: “In any action, proceeding or arbitration between Buyer and Seller arising out of this Contract, the prevailing party shall be entitled to reasonable attorney fees and costs from the non-prevailing party.”
DISCUSSION
Since Hwee filed no opposition to the Mars’ motions in the trial court, his arguments on appeal were never raised below, and we consider them waived. (See In re Aaron B. (1996) 46 Cal.App.4th 843, 846 [“ ‘[A] party is precluded from urging on appeal any point not raised in the trial court’ ”]; Sommer v. Gabor (1995) 40 Cal.App.4th 1455, 1468 [“ ‘Ordinarily the failure to preserve a point below constitutes a waiver of the point’ ”]; 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 394, p. 444 [“An appellate court will ordinarily not consider procedural defects or erroneous rulings in connection with relief sought or defenses asserted, where an objection could have been, but was not, presented to the lower court by some appropriate method”].)
During oral argument, Hwee contended that his arguments present questions of law that may be considered for the first time on appeal. (See, e.g., Redevelopment Agency v. City of Berkeley (1978) 80 Cal.App.3d 158, 167.) Even assuming this to be true, Hwee also acknowledged that any such consideration would be at this court’s discretion and Hwee has offered us no persuasive reason to consider his arguments and thereby depart from the general rule precluding our consideration of arguments not first presented to the trial court.
Hwee also cannot show that the trial court erred when it struck his SAC and awarded attorney fees and costs to the Mars pursuant to the parties’ contract. (See Muller v. Tanner (1969) 2 Cal.App.3d 438, 443 [court has inherent power to dismiss an action when “plaintiff seeks to proceed on a complaint which in form is similar to one which already has been successfully attacked by demurrer”; Taliaferro v. Prettner (1955) 135 Cal.App.2d 157, 160 [“When, as here, the court reasonably concludes that the plaintiff has made no real effort to comply with the permission once given him to amend his complaint, the amended complaint becomes nothing but a sham”].)
In his opening brief Hwee argues his SAC was not subject to dismissal for delay in prosecution, because the complaint had been filed only five months earlier and was never served on the Mars. But the Mars’ motion to strike the SAC was not based on delay. It was instead based upon Hwee’s failure to amend his FAC as required by the court’s previous orders.
In his reply brief, Hwee contends the demurrer to his FAC was wrongly sustained, and suggests that “it appears that the superior court was not afforded an opportunity to review the challenged complaints as a whole in context . . . .” But when a litigant elects to file an amended complaint, he ordinarily waives any challenge to the validity of the trial court’s ruling on an earlier demurrer. (See County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 312; Metzenbaum v. Metzenbaum (1948) 86 Cal.App.2d 750, 752.) Hwee also has not shown that the order sustaining the demurrer to the FAC with leave to amend was erroneous, especially in light of the multiple deficiencies identified in the Mars’ moving papers. Finally, Hwee has provided neither relevant argument nor an adequate record that would enable us to review the attorney fees awarded by the court pursuant to the Mars’ unopposed motion. No error in the trial court’s rulings has been shown.
While Hwee now maintains he was not served with the Mars’ demurrer to and motion to strike the FAC, the attached proof of service shows a copy was mailed to Hwee at the address listed on his complaint. The declaration of the Mars’ counsel also states that she spoke to Hwee by telephone about the motions approximately two weeks before the hearing.
The Mars have moved for sanctions on appeal. This court advised Hwee that we were considering imposition of sanctions and allowed him an opportunity to file an opposition. He has done so. After reviewing Hwee’s opposition, we conclude his appeal is not so totally and completely without all arguable merit as to justify an award of sanctions under the demanding standards of In re Marriage of Flaherty (1982) 31 Cal.3d 637, 649-650. Respondent has also requested an award of attorney fees on appeal as the prevailing party on the contract. Respondent may seek such fees in the trial court.
DISPOSITION
The judgment is affirmed. The request for sanctions is denied. Costs are awarded to respondents.
We concur: Pollak, Acting P.J., Jenkins, J.