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REALPRO, INC. v. SMITH RESIDUAL CO., LLC
203 Cal.App.4th 1215 (2012)
138 Cal. Rptr. 3d 255
REALPRO, INC., Plaintiff and Appellant,
v.
SMITH RESIDUAL COMPANY, LLC, et al., Defendants and Respondents.
No. E052369.
Court of Appeals of California, Fourth District, Division Two.
February 28, 2012.
OPINIONHOLLENHORST, J.— Plaintiff and appellant RealPro, Inc. (RealPro), appeals from a judgment in favor of defendants Smith Residual Company, LLC,
and J&A Gonzales, LLC (hereafter referred to collectively as Sellers), entered after the trial court sustained without leave to amend the demurrer of Sellers to RealPro's complaint to recover a real estate commission. The trial court found that RealPro "failed to allege facts giving rise to the existence of an enforceable written contract for the payment of a real estate commission . . . ." RealPro challenges the trial court's ruling. I. PROCEDURAL BACKGROUNDRealPro is a real estate broker conducting business under the fictitious business name of Landpro Network Realty. Sellers own 46.8 acres of vacant land in Riverside County (the Property). On or about September 21, 2005, Sellers retained the services of MGR Services, Inc. (MGR), a real estate broker, to act as their exclusive agent for the sale of the Property. Sellers entered into a "Standard Owner-Agency Agreement for Sale or Lease of Real Property" (the Listing Agreement) with MGR. The Listing Agreement was for a term from September 21, 2005, to April 1, 2006. It set forth the following sale price and terms: "$17,000,000.00 cash or for such other price and terms acceptable to [Sellers], and other additional standard terms reasonably similar to those contained in the `STANDARD OFFER, AGREEMENT AND ESCROW INSTRUCTIONS FOR THE PURCHASE OF REAL ESTATE,' published by the AIR Commercial Real Estate Association (`AIR') or for such other price and terms agreeable to [Sellers]." The Listing Agreement authorized MGR to list the Property in the appropriate local commercial multiple listing services, including AIR, and "`at [MGR's] election, cooperate with other real estate brokers (collectively "Cooperative Broker"). A Cooperative Broker may, as a third party beneficiary hereof, enforce the terms of this [Listing] Agreement against the [Sellers] or [MGR].'" On or about November 21, 2005, RealPro contacted MGR regarding the Property. The next day, RealPro delivered to MGR a written offer to purchase the Property for all cash at the full listing price of $17 million (Offer). The buyer was "ready, willing, and able to purchase the Property . . . on all material terms contained in the Loopnet listing as represented by MGR to be in the Listing Agreement . . . ."
1. Attached to Sellers' demurrer are copies of the Offer and Counteroffer.
2. Although the trial court did not find it necessary to take judicial notice of any documents other than the Listing Agreement, and RealPro faults Sellers for referencing those documents (Offer and Counteroffer), "on review of a demurrer, in addition to the allegations of the complaint, we may consider other relevant matters of which the trial court could have taken judicial notice and we may treat such matters as having been pleaded. [Citations.]" (Coopers & Lybrand v. Superior Court (1989) 212 Cal.App.3d 524, 538 [260 Cal.Rptr. 713].)
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