Prichard

Plaintiffs purchased a parcel of real property from defendant Reitz, without knowing, and without being told, that the foundation under the house on the property was so defective that the house could not legally or safely be occupied. When they discovered the defect, their only remedy was to tear down the existing house and rebuild with an adequate foundation. They attempted in three versions of their complaint to state a cause of action against defendant Reitz as well as other defendants. The trial court sustained without leave to amend a demurrer to their final (second) amended complaint. We reverse.

Plaintiffs’ first two contentions are without merit. These contentions are that the trial court erred in sustaining the demurrers to the second and third causes of action of the first amended complaint. By electing to amend, as they did, after the court sustained the demurrers to the first amended complaint, plaintiffs waived any error in the ruling sustaining those demurrers. (See 5 Witkin, Cal. Procedure (3d ed. 1985) Pleading, § 940, pp. 375-376, and cases cited therein.)

Under Easton v. Strassburger (1984) 152 Cal.App.3d 90, 99 [ 199 Cal.Rptr. 383 ], a licensed real…