Hilltop Properties, Inc. v. State

• Decision Date: 31 March 1965
• Parties: , 37 A.L.R.3d 109 HILLTOP PROPERTIES, INC., Plaintiff and Appellant, v. The STATE of California, Defendant and Respondent. Civ. 21800.
• Court: California Court of Appeals Court of Appeals

Page 605

43 Cal.Rptr. 605

233 Cal.App.2d 349, 37 A.L.R.3d 109

HILLTOP PROPERTIES, INC., Plaintiff and Appellant, v. The STATE of California, Defendant and Respondent.

Civ. 21800.

District Court of Appeal, First District, Division 1, California.

March 31, 1965.

Rehearing Denied March 31, 1965.

As Modified on Denial of Rehearing April 30, 1965.

Kouns & Sturges, by Robert S. Sturges, San Jose, for appellant.

Harry S. Fenton, Sacramento, Holloway Jones, Jack M. Howard, Robert J. DeFea, San Francisco, for respondent.

MOLINARI, Justice.

Plaintiff appeals from the judgment dismissing its amended complaint after it failed to further amend said complaint to which defendant's demurrer had been sustained. Plaintiff's amended complaint purported to state two causes of action, one based on inverse condemnation, the other, on breach of contract predicated upon promissory estoppel. Among the grounds listed in its demurrer, defendant urged the defense of failure to state a cause of action. It was on this ground, as to both causes of action, that the demurrer was sustained.

Questions Presented

1. Does plaintiff's complaint state a cause of action in inverse condemnation?

2. Does plaintiff's complaint adequately plead a promissory estoppel and a cause of action predicated thereon against defendant?

The Complaint

The 'First Cause of Action' of plaintiff's amended complaint alleges essentially that plaintiff is the owner of certain real property in the City of San Jose which includes two strips of land designated as parcels one and two; that these parcels, which aggregate approximately 1.645 acres and which possessed a market value of $20,000, were taken by defendant on September 8, 1961 for public purposes, that is, the widening of the adjacent Bayshore Freeway for highway and freeway purposes, without a preceding resolution to condemn said property. It is further alleged in said cause of action that during the months of July 1960 through September 1961, defendant, acting through its Department of Public Works, appointed the Planning Commission of the City of San Jose to communicate to plaintiff defendant's desires and needs with respect to plaintiff's property for the proposed highway use; that in compliance with the expressed needs of defendant, and at defendant's 'specific instance, request, and requirement' plaintiff developed its land for subdivision purposes reserving parcels one and two for such proposed highway use; that these two parcels of land consist of long, narrow strips of land which cannot be used for residential, agricultural or any other use; and that they will remain useless until defendant determines that such land is necessary for highway widening purposes. It is then alleged that plaintiff has not been paid any compensation for such 'appropriation,' and that its claim therefor filed with the State Board of Control on June 23, 1962 was denied by said board on December 13, 1962.

In its 'Second Cause of Action' plaintiff repleads all of the foregoing allegations and alleges further as follows: That during the months of May, July, August and September 1961 defendant, by and through authorized agents on behalf of its Department of Public Works, 'made certain promises and representations to plaintiff' with regard to said parcels one and two, to wit: that if plaintiff would reserve said parcels from its proposed subdivision, defendant would proceed to purchase said property for highway widening purposes at an agreed price of $12,820; that said intent was communicated to plaintiff in writing and is contained in a proposed 'Right of Way Contract,' dated September 7, 1961, approved by two of defendant's right-of-way agents; that plaintiff relied upon defendant's said promise and representation and did change its position in reliance thereon by leaving parcels one and two isolated and undeveloped while it proceeded to develop the balance of its property into single-family residential lots, thus rendering said parcels useless and of no value; that defendant should have expected, and did expect, a substantial change of position by plaintiff in reliance upon said promise; that on November 9, 1961 defendant repudiated its proposal to purchase said parcels; and that plaintiff is ready, able and willing to perform all of the terms and conditions of said agreement. ¹

Our consideration of whether the subject complaint states one or more causes of action requires that we examine it in relation to certain well-defined rules. These are: 'A demurrer reaches only to the contents of the pleading and such matters as may be considered under the doctrine of judicial notice' (Weil v. Barthel, 45 Cal.2d 835, 837, 291 P.2d 30, 31; County of Los Angeles v. Security First Nat. Bank, 84 Cal.App.2d 575, 579, 191 P.2d 78); the material and issuable facts pleaded in the complaint must be regarded as true (Flores v. Arroyo, 56 Cal.2d 492, 497, 15 Cal.Rptr. 87, 364 P.2d 263; Hauger v. Gates, 42 Cal.2d 752, 755, 269 P.2d 609; Stigall v. City of Taft, 58 Cal.2d 565, 567-568, 25 Cal.Rptr. 441, 375 P.2d 289; Hopper v. Hopper, 224 Cal.App.2d 446, 447, 36 Cal.Rptr. 767); a demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the complaint (Marin v. Jacuzzi, 224 Cal.App.2d 549, 552, 36 Cal.Rptr. 880; Howard v. City of Los Angeles, 143 Cal.App.2d 195, 197, 299 P.2d 294), or the construction placed on an instrument pleaded in the complaint (Griffin v. County of Colusa, 44 Cal.App.2d 915, 918, 113 P.2d 965), or facts impossible in law (Griffin v. County of Colusa, supra, p. 918, 113 P.2d 965), or allegations contrary to facts of which a court may take judicial knowledge. (Chavez v. Times-Mirror Co., 185 Cal. 20, 23, 195 P. 666; Griffin v. County of Colusa, supra, 44 Cal.App.2d p. 918, 113 P.2d 965; American Distilling Co. v. Johnson, 132 Cal.App.2d 73, 77, 281 P.2d 598; Livermore v. Beal, 18 Cal.App.2d 535, 540, 64 P.2d 987.) We are also to be guided by the following basic principle: All that is necessary against a general demurrer is that, 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 defendant, notwithstanding 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. (Gressley v. Williams, 193 Cal.App.2d 636, 639, 14 Cal.Rptr. 496.)

The essence of a cause of action is the existence of a primary right and one violation of that right, i. e., it arises out of an antecedent primary right and corresponding duty, and a breach of such primary right and duty by the person upon whom the duty rests. (Shell v. Schmidt, 126 Cal.App.2d 279, 291, 272 P.2d 82; Smith v. Minnesota Mut. Life Ins. Co., 86 Cal.App.2d 581, 590, 195 P.2d 457; Stryker v. Republic Pictures Corp., 108 Cal.App.2d 191, 195, 238 P.2d 670; Frost v. Witter, 132 Cal. 421, 426, 64 P. 705; Work v. County Nat. Bank etc. Co., 4 Cal.2d 532, 540, 51 P.2d 90; Wulfjen v. Dolton, 24 Cal.2d 891, 895, 151 P.2d 846.) The primary right and duty and the delict or wrong constitute the cause of action in the legal sense. (South Shore Land Co. v. Petersen, 226 Cal.App.2d 725, 740, 38 Cal.Rptr. 392; Smith v. Minnesota Mut. Life Ins. Co., supra, 86 Cal.App.2d p. 590, 195 P.2d 457.) 'The cause of action is simply the obligation sought to be enforced.' (Panos v. Great Western Packing Co., 21 Cal.2d 636, 638, 134 P.2d 242, 244; Eichler Homes of San Mateo, Inc. v. Superior Court, 55 Cal.2d 845, 847, 13 Cal.Rptr. 194, 361 P.2d 914.)

Inverse Condemnation

Although plaintiff, in its first cause of action, alleges that defendant 'took for public purposes' the subject parcels, this allegation is a statement of a legal conclusion and not of ultimate fact. Accordingly, it is not deemed admitted by the demurrer nor must such allegation be regarded as true. Although pleaded somewhat ineptly, it is apparent that the theory of this cause of action is that the subject parcels were taken for a public use when they were caused to be withheld from the development of the larger parcel at the instance and request of defendant pending negotiation for their acquisition.

In Frustuck v. City of Fairfax, 212 Cal.App.2d 345, 28 Cal.Rptr. 357, this court had occasion to discuss the nature of an action in inverse condemnation. We there stated as follows: 'The nature of the inverse condemnation suit is that the owner whose property is taken or damaged for a public use without the institution of a condemnation proceeding himself takes the procedural initiative by bringing an action for damages inherent in the particular taking or damaging. [Citations.] The inquiry posed by such an action is whether there has been a 'taking * * * for a 'public use' * * *.' [Citation.] Such a taking is not restricted to a mere change of physical possession, but includes a permanent or temporary deprivation of the owner of the use or enjoyment of his land. [Citations.] Thus it may consist of an act of dispossession, or of acts of appropriation, destruction or damage. [Citations.] Accordingly, it may consist of a single act.' (P. 364, 28 Cal.Rptr. p. 368.)

In Pacific Telephone, etc., Co. v. Eshleman, 166 Cal. 640, 644, 137 P. 1119, 50 L.R.A.,N.S., 652, it was held that the 'taking' of property within the meaning of the Constitution is not restricted to a mere change of physical possession, but includes a permanent or temporary deprivation of use to the owner, where such deprivation amounts to the abridgement or destruction, by reason of the actions of the state, of the lawful rights of an individual to the possession, use or enjoyment of his land. It has also been held that an undue restriction on the use of property is as much a taking for constitutional purposes as is an appropriation or destruction. (People v. Associated Oil Co., 211...