Opinion
12-11-1957
The PEOPLE of the State of California on relation of John AVERNA and Harlan D. Ellmaker, Relators, Plaintiff and Appellant, v. CITY OF PALM SPRINGS, a Municipal Corporation in the County of Riverside, State of California, Defendant and Respondent. * Civ. 5599.
Edmund G. Brown, Atty. Gen., Eugene B. Jacobs and Delbert E. Wong, Deputy Attys. Gen., Joseph A. Lazaroni and E. W. Cunningham, Los Angeles, for appellant. Jerome J. Bunker, Palm Springs, for respondent.
The PEOPLE of the State of California on relation of John AVERNA and Harlan D. Ellmaker, Relators, Plaintiff and Appellant,
v.
CITY OF PALM SPRINGS, a Municipal Corporation in the County of Riverside, State of California, Defendant and Respondent. *
Dec. 11, 1957.
Rehearing Denied Jan. 6, 1958.
Hearing Granted Feb. 5, 1958.
Edmund G. Brown, Atty. Gen., Eugene B. Jacobs and Delbert E. Wong, Deputy Attys. Gen., Joseph A. Lazaroni and E. W. Cunningham, Los Angeles, for appellant.
Jerome J. Bunker, Palm Springs, for respondent.
MUSSELL, Justice.
This is a proceeding in quo warranto brought to test the validity of the annexation of uninhabited territory to the city of Palm Springs. Defendant's demurrer to the amended complaint was sustained without leave to amend and plaintiff appeals from the judgment of dismissal thereupon entered.
It is alleged in the complaint that the annexation proceedings conducted by the city of Palm Springs were null and void and many grounds and alleged defects in the proceedings were specifically set forth. It is not necessary to here enumerate all of the said grounds in view of the rules hereinafter announced. The sole question here involved is whether the complaint states, or could be amended to state, facts sufficient to constitute a cause of action in quo warranto proceedings.
In People ex rel. Skelton v. City of Los Angeles, 133 Cal. 338, 340-341, 65 P. 749, 750, it was held that my modern usage, the proceedings in quo warranto must conform to the general principles and rules of pleading which govern in ordinary civil actions; that if a pleader sets out specific facts, those facts must show a cause of action; that 'The mode of pleading in such cases is now by no means uniform. It is undoubtedly true that the state may charge a corporation with the usurpation of a franchise in general terms, and call upon it to allege and prove the facts showing its right, and thus place the burden upon the defendant. (People ex rel. Palmer v. Woodbury, 14 Cal. 43; People v. Reclamation District, 121 Cal. 522, 50 P. 1068, 53 P. 1085.) An information on behalf of the state may, however, allege the specific grounds or defects relied upon to show usurpation, instead of charging usurpation in general terms, and this mode of pleading has become quite common.'
In People ex rel. Stephenson v. Hayden, 9 Cal.App.2d 312, 313, 49 P.2d 314, 315, a demurrer to the amended complaint in a proceeding to determine defendant's right to hold an office was sustained with leave to amend, but plaintiff declined to amend and judgment went to defendant. Plaintiff appealed from the judgment and the court said: 'The original complaint pleaded grounds upon which the pleader claimed that the defendant was unlawfully usuping the office. When the demurrer was sustained to this complaint these were all abandoned, and the amended complaint pleaded in general terms that defendant was 'usurping, intruding into, and unlawfully holding and exercising the office of Supervisor. * * *' The rule seems to be well settled that, in a proceeding of this character prosecuted by the state, it is sufficient to plead in general terms the ultimate fact of usurpation. (Citations.) The theory upon which the rule rests is that in quo warranto the state is not required to prove the usurpation or unlawful holding, but the entire proceeding is one in the nature of an order upon the defendant to show that he is lawfully holding and exercising the office. Though the rule of pleading has been often criticized, it has not been rejected by our Supreme Court, and it is therefore binding upon us.'
In People ex rel. Paganini v. Town of Corte Madera, 97 Cal.App.2d 726, 727-728, 218 P.2d 810, 811, the court, in commenting on People ex rel. Stephenson v. Hayden, supra, said: 'This court had occasion in People ex rel. Stephenson v. Hayden, 9 Cal.App.2d 312, 49 P.2d 314, 315, to consider the question of pleading in quo warranto cases. We held there that a complaint which pleaded in general terms that defendant was 'usurping, intruding into, and unlawfully holding and exercising the office of Supervisor, * * *' was sufficient. "It was a peculiarity of both the common-law writ of quo warranto and information in the nature of quo warranto that the ordinary rules of pleading were reversed and the state was bound to show nothing' 22 Cal.Jur., p. 220. It seems to be settled law in this state that a complaint in quo warranto may be drawn in either of two ways, i. e., by charging in general terms that an office or franchise is being usurped, 'or by alleging specific grounds or defects relied upon to show usurpation', 22 Cal.Jur. 220-1.'
The general rule is that it is an abuse of discretion to sustain without leave to amend a demurrer to an original complaint unless the complaint shows on its face that it is incapable of amendment. Phillips v. Phillips, 137 Cal.App.2d 651, 653, 290 P.2d 611. In Augustine v. Trucco, 124 Cal.App.2d 229, 236, 268 P.2d 780, 785, the court said: 'All that is necessary as against a general demurrer is to plead facts entitling the plaintiff to some relief. Tristam v. Marques, 117 Cal.App. 393, 397, 3 P.2d 947. 'In determining whether or not the complaint is sufficient, as against the demurrer upon the ground that it does not state facts sufficient to constitute a cause of action, the rule is that if, upon a consideration of all the facts stated, it appears that the plaintiff is entitled to any relief at the hands of the court against the defendants, the complaint will be held good, although the facts may not be clearly stated or may be intermingled with a statement of other facts irrelevant to the cause of action shown, or although the plaintiff may demand relief to which he is not entitled under the facts alleged.' Matteson v. Wagoner, 147 Cal. 739, 742, 82 P. 436, 438.'
In the instant case the plaintiff has charged in general terms that the annexation was void and has also alleged specific grounds or defects relied upon to sustain its contention. Under the rules announced in the foregoing decisions, it is apparent that the complaint could be amended so as to state a cause of action. It therefore follows that the court abused its discretion in sustaining the demurrer without leave to amend.
The judgment of dismissal is reversed.
BARNARD, P. J., concurs. --------------- * Opinion vacated 331 P.2d 4.