This is an appeal by the plaintiff from a judgment of dismissal after the trial court sustained a general demurrer to the second amended complaint and plaintiff declined to further amend.
The chronology of events is as follows: Plaintiff's original complaint was filed January 15, 1960, and was entitled a "COMPLAINT FOR CANCELLATION." Plaintiff apparently sought the cancellation and rescission of a deed by which plaintiff and one Alfred W. Robertson, now deceased, granted to defendant City of Santa Barbara (sometimes hereinafter referred to as "City"), in 1948, a parcel of property consisting of 6.20 acres. A general and special demurrer to this complaint was sustained.
On April 1, 1960, plaintiff filed his "FIRST AMENDED COMPLAINT FOR CANCELLATION" whereby he continued to seek cancellation and rescission of the aforementioned deed. Defendant City again interposed a general and special demurrer which was sustained with leave to amend.
On August 11, 1960, plaintiff filed his "SECOND AMENDED COMPLAINT" which is the complaint with which we are concerned in this appeal. This complaint is totally different from the previous two complaints in that several allegations which were contained in the prior two complaints are omitted and plaintiff has added other allegations, and in effect is no longer seeking a cancellation or rescission of the aforesaid deed. Instead,
In substance, the allegations in the "SECOND AMENDED COMPLAINT" are as follows:
That prior to March 1, 1948, plaintiff and one Alfred W. Robertson were the owners of 6.20 acres of land in Santa Barbara (a description of said land was set forth); that title to said land was held by County National Bank and Trust Company of Santa Barbara as Trustee for the plaintiff and Robertson, pursuant to a trust agreement under which the trustee would convey the property to whomsoever the plaintiff and Robertson would direct and that the trustee had no right, title or interest in the said property other than the legal title for the said beneficiaries who were the real parties in ownership of the property; that on March 1, 1948, at the request and order of plaintiff and Robertson, the trustee "executed and delivered a deed to said real property to the said defendant, City of Santa Barbara as to said 6.20 acres." A copy of the deed was attached to the complaint (i.e. Exhibit "A") and incorporated by reference. The deed on its face was a grant
In Paragraph VI it is alleged that "said real property was conveyed to the City for the express purpose of erecting a water filtration plant thereon in connection with the water system then and there owned by the said City for the use and benefit of the inhabitants of the City of Santa Barbara; that the plaintiff and ... Robertson made the conveyance to the said City with the intent and purpose that the said land should be used by the said City as a filtration plant and it was so accepted by the said City Council. That specifically on the said 4th day of March, 1948 the said deed, a Torrens Title Deed from said trustee was accepted by the said City of Santa Barbara by a motion duly made and adopted by the City Council for the purpose of constructing a water filtration
It is further alleged (Paragraph VII) that the City Council, on May 21, 1959, adopted a resolution to divert the use of the land from a site for a filtration plant into a park and recreation area "without the consent of the plaintiff herein and that prior thereto, the plaintiff and ... Robertson were the owners of a tract of land contiguous to said 6.20 acres which had been annexed to the said City ... at or about the time of the conveyance of said land to said City and that thereafter ... Robertson caused to be conveyed and granted to plaintiff by said trustee, all of his right, title and interest in and to said adjoining real property and all right and interests incident thereto and that plaintiff, prior to the commencement of this action, was and still is the sole owner of said real property and this cause of action." It is alleged in Paragraph VIII that "because the ... City has diverted the purpose and use of said land from the filtration plant to that of a park and recreation area, plaintiff's adjoining land and his right to the use and enjoyment thereof has been damaged and will be damaged if the City continues the use of said area for park and recreation purposes." Finally, it is stated in Paragraph IX that "a controversy has arisen between the plaintiff herein and the defendant City with respect to the use of said 6.20 acres in that the City contends and claims that under the proceedings and grant said City has the lawful right to divert the use of said acreage for the purpose of a public park while the plaintiff herein asserts and claims that the diversion of such use is contrary to the specific purpose of said grant and that the City should be restrained and enjoined from making such use of said land for a public park or that said land should be reconveyed by said City to the plaintiff, and further, that plaintiff has been damaged by the action of said City in changing the use of said land." Plaintiff prayed for a "decree declaring the rights, obligations and duties existing between the City and the plaintiff in connection with the said conveyance of said 6.20 acres to the said City and the right, title and interest of the plaintiff therein, if any, and determine whether or not because of the change of use by said City, the title to said real property should revert to the plaintiff herein and that appropriate relief be granted to the plaintiff when the rights and obligations of the parties have been declared."
Plaintiff's first contention is that the second amended complaint states facts sufficient to constitute a cause of action.
"... On appeal from a judgment sustaining a demurrer to a complaint the allegations of the complaint must be regarded as true.
"The rule just stated (supra, § 199) coupled with the principle that pleadings should be truthful (supra, § 176) has an important application against the pleader: The recitals, if contrary to allegations in the pleading, will be given precedence, and the pleader's inconsistent allegations as to the meaning and effect of an unambiguous document will be disregarded." (See Alphonzo E. Bell Corp. v. Bell etc. Syndicate, 46 Cal.App.2d 684, 691 [116 P.2d 786], "... All these conclusions of the pleader are contrary to the express terms of the instrument creating the trust which is pleaded in full and made a part of the complaint. Under these circumstances the court will, in hearing on the demurrer, examine the exhibits and treat the pleader's conclusions as surplusage.")
The judgment is affirmed.
Wood, P.J., and Lillie, J., concurred.
Appellant's petition for a hearing by the Supreme Court was denied January 9, 1962.
"... [T]he plaintiff's second amended complaint ... does not state facts sufficient to constitute a cause of action.
"... [T]he cause of action herein attempted to be pleaded is barred by the statute of limitations, Section 318 and 319, California Code of Civil Procedure.
"... [T]he cause of action therein attempted to be pleaded is barred because of laches.
"There is a defect of parties plaintiff, in that Alfred W. Robertson and the County National Bank and Trust Company of Santa Barbara are alleged to have been the grantors of the property herein described and said parties are not named as either party plaintiff or party defendant.
"... [T]he purported agreement alleged by the plaintiff is not in writing as required by C.C.P. 1971 and 1973(4)."
"COUNTY NATIONAL BANK AND TRUST COMPANY OF SANTA BARBARA, a corporation organized under the laws of the UNITED STATES OF AMERICA, ... in consideration of TEN DOLLARS ($10.00), to it in hand paid, receipt of which is hereby acknowledged, does hereby grant to the CITY OF SANTA BARBARA, a Municipal Corporation, the real property in the County of Santa Barbara, State of California, described as follows:
"... (Description set forth).
"IN WITNESS WHEREOF, said Corporation has caused its corporate name and seal to be affixed hereto and this instrument to be executed ... this 1st day of March, 1948."
"A RESOLUTION OF THE COUNCIL OF THE CITY OF SANTA BARBARA, CALIFORNIA, ACCEPTING THE ATTACHED DEED, AND RECOGNIZING THE SAME AS SUCH BY THE GRANTEE THEREIN NAMED, EVIDENCING THE SAME, AND REQUIRING, ORDERING, AND CONSENTING TO THE RECORDING OF SAID DEED.
"BE IT RESOLVED BY THE COUNCIL OF THE CITY OF SANTA BARBARA:
"That the attached deed be and the same is hereby accepted and recognized as such by the Grantee therein named; that said acceptance and recognition be and the same are hereby evidenced; that said deed accepted and recognized as such be duly recorded in the office of the County Recorder of the County of Santa Barbara, California. That said recordation be and the same hereby is required and ordered and consented to by the Grantee in said deed named.
"ADOPTED BY THE CITY COUNCIL AT ITS REGULAR MEETING HELD ON THE 4th day of March, 1948 2:00 P.M."