South Shore Land Co. v. Petersen

• Decision Date: 29 April 1964
• Court: California Court of Appeals Court of Appeals
• Parties: SOUTH SHORE LAND COMPANY, Plaintiff, Cross-Defendant and Respondent, v. Elinor E. PETERSEN, Defendant, Cross-Complainant and Appellant. Civ. 20709.

Page 392

38 Cal.Rptr. 392

226 Cal.App.2d 725

SOUTH SHORE LAND COMPANY, Plaintiff, Cross-Defendant and Respondent, v. Elinor E. PETERSEN, Defendant, Cross-Complainant and Appellant.

Civ. 20709.

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

April 29, 1964.

Although the trial court's minute order recites that the demurrer to the second amended answer and the cross-complaint was sustained because 'said matters do not state a cause of action,' it is apparent that the ground upon which the demurrer to the answer was sustained is that it does not state facts sufficient to constitute a defense. (See Code Civ.Proc. § 444, subd. 2.) Generally speaking, the determination whether an answer states a defense is governed by the same principles which are applicable in determining if a complaint states a cause of action. (Chadbourn, Grossman, Van Alstyne, Cal. Pleading, §§ 1331, 1336, pp. 488, 492.)

These well-defined principles include the following: '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 L. A. v. Security First Nat. Bank of Los Angeles, 84 Cal.App.2d 575, 579, 191 P.2d 78); the allegations of the pleading demurred to must be regarded as true (Stigall v. City of Taft, 58 Cal.2d 565, 567-568, 25 Cal.Rptr. 444, 375 P.2d 289; Hopper v. Hopper, 224 A.C.A. 593, 594, 36 Cal.Rptr. 767); a demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading (Marin v. Jacuzzi, 224 A.C.A. 702, 705, 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 therein (Griffin v. County of Colusa, 44 Cal.App.2d 915, 918, 113 P.2d 270), or facts impossible in law (Griffin v. County of Colusa, supra, 44 Cal.App.2d p. 918, 113 P.2d 270), or allegations contrary to facts of which a court may take judicial knowledge. (Chavez v. Times-Mirror Co., 185 Cal. 20, 23; Griffin v. County of Colusa, supra, 44 Cal.App.2d p. 918, 113 P.2d 270; 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.) The following basic principle is also applicable to general demurrers, to wit: all that is necessary against a general demurrer is that upon a consideration of all the facts stated, it appears that the party whose pleading is attacked by such a demurrer is entitled to any relief at the hands of the court against his adversary, notwithstanding the facts may no be clearly stated, or may be intermingled with a statement of other facts irrelevant to the cause of action or defense shown, or although the plaintiff, in his complaint, or the defendant, in his answer, may demand relief to which he is not entitled under the facts alleged. (See Gressley v. Williams, 193 Cal.App.2d 636, 639, 14 Cal.Rptr. 496.)

There are, however, certain important differences between these two kinds of demurrer. An important difference is that in the case of a demurrer to the answer, as distinguished from a demurrer to the complaint, the defect in question need not appear on the face of the answer. ⁶ The determination of the sufficiency of the answer requires an examination of the complaint because its adequacy is with reference to the complaint it purports to answer. (Chadbourn, Grossman, Van Alstyne, Cal. Pleading, § 1334, pp. 490, 491; Miller & Lux, Inc., v. San Joaquin Light & Power Corp., 120 Cal.App. 589, 600, 8 P.2d 560.) This requirement, however, does not mean that the allegations of the complaint, if denied, are to be taken as true, the rule being that the demurrer to the answer admits all issuable facts pleaded therein and eliminates all allegations of the complaint denied by the answer. (Miller & Lux, Inc., v. San Joaquin Light & Power Corp., supra, 120 Cal.App. p. 600, 8 P.2d 560; Sheward v. Citizens' Water Co., 90 Cal. 635, 639, 27 P. 439; Chadbourn, Grossman, Van Alstyne, Cal. Pleading, § 1334, p. 489.) Another rule, particularly applicable to the case of a demurrer to the answer, is that each so-called defense must be considered separately without regard to any other defense. (Code Civ.Proc. § 441; Miller & Lux, Inc., v. San Joaquin Light & Power Corp., supra, 120 Cal.App. p. 601, 8 P.2d 560; Chadbourn, Grossman, Van Alstyne, Cal. Pleading, § 1335, pp. 490, 491.) Accordingly, a 'separately stated defense or counterclaim which is sufficient in form and substance when viewed in isolation does not become insufficient when, upon looking at the answer as a whole, that defense or counterlclaim appears inconsistent with or repugnant to other parts of the answer.' (Chadbourn, Grossman, Van Alstyne, Cal. Pleading, § 1335, pp. 490, 491; Miller & Lux, Inc., v. San Joaquin Light & Power Corp., supra, 120 Cal.App. p. 601, 8 P.2d 560; Banta v. Siller, 121 Cal. 414, 418, 53 P. 935; Buhne v. Corbett, 43 Cal. 264, 269; Southern Glass Co. v. Beverly Dairies, 7 Cal.App.2d 451, 454, 45 P.2d 1023.) Therefore, if one of the defenses or counterclaims is free from the objections urged by demurrer, then a demurrer to the entire answer must be overruled. (Eich v. Greeley, 112 Cal. 171, 173-174, 44 P. 483; Ramsey v. Flournoy, 58 Cal. 260, 261.) Furthermore, because a defendant is entitled to plead inconsistent defenses, where one separate answer denies all of the allegations of the plaintiff's complaint, the plaintiff is not excused from making proof of the material facts because of admissions of some or all of them found in other and separate answers of the defendant. (Southern Glass Co. v. Beverly Dairies, supra, 7 Cal.App.2d p. 454, 45 P.2d 1023; McDonald v. Southern Cal. Ry. Co., 101 Cal. 206, 212-213, 35 P. 643.)

The Answer

Appellant's second amended answer denies that respondent is the owner in fee of Parcel 2, and alleges that she is the owner in fee and in possession of 'all the parcel of submerged lands and tidelands embraced in Parcel 2'; and denies that respondent 'is in actual, exclusive and adverse' possession of Parcel 2, and avers that she is in possession of said parcel. As a further answer to respondent's allegation that it is in actual, exclusive and adverse possession of said parcel, appellant alleges that no person or corporation can take adverse possession of tidelands under the California Constitution, certain cited Federal and California statutes, and certain cited decisions, and further asserts that respondent has 'no right, title or possession whatsoever, other than the possession it has with the State of California and the Government of the United States, which is no adverse possession whatsoever,' of said parcel. Answering the allegation of respondent's complaint that appellant's claims are without any right and are void, appellant alleges that under the Constitution of the United States, which recognizes treaties with foreign countries as "supreme law of the land" and under "The Laws of Nationa," she has every right to the title and possession and the free enjoyment of the parcel in question under the Treaty of Guadalupe Hidalgo of 1848, 9 Stat. 922 and the Gadsden Treaty of 1853, 10 Stat. 1031 between the United States and Mexico; and further answering said allegation alleges that the nature of her claim and the 'proof of her title' to Parcel 2 is as follows: that in 1820 Don Luis Peralta received a grant to a tract of land called the Rancho San Antonio from the King of Spain; that this grant was acknowledged and reconfirmed in 1844 by the Republic of Mexico which had succeeded to the Spanish sovereignty; that in 1844 Don Luis Peralta granted said Rancho San Antonio to his four sons, one of whom was Antonio Maria Peralta; that this grant and the enjoyment and ownership thereof was guaranteed and protected by the Treaty of Guadalupe Hidalgo, whereby, in 1848, the United States of America succeeded to the Mexican sovereignty; that pursuant to an Act of Congress, approved March 3, 1851, entitled "An Act to Ascertain and Settle the Private Land Claims in the State of California," a portion of the original Rancho San Antonio was confirmed to Antonio Maria Peralta by a patent issued to him and recorded in Book A of Patents at pages 648-672, Official Records of Alameda County, California; that the boundaries of the tract confirmed by said patent included the subject Parcel 2; that on October 22, 1851, Antonio Maria Peralta deeded a portion of said tract, known as the "Encinal," to William W. Chipman and Gideon Aughinbaugh; that the "Encinal," was incorporated as the Town of Alameda in 1854; that Parcel 2 fell within the incorporated limits of the Town of Alameda (now the City of Alameda); that the interest of Gideon Aughinbaugh in Parcel 2 was distributed to the Estate of Ella Aughinbaugh, and from the latter estate was distributed to appellant; and that the interest of William W. Chipman in said parcel was distributed in probate to his wife, who thereafter deeded said interest to her daughter, Fannie Chipman, who subsequently granted it to one Carol E. Heche, who, in 1961, quitclaimed said interest to appellant.

As a further answer and separate defense to respondent's claim of adverse possession, appellant alleges that respondent cannot have adverse possession because it is a squatter, claiming possession upon lands held in trust by the Government of the United States and the State of California for purposes of fishing and navigation. Allegations are also found elsewhere in the answer to the effect that the title to the parcel in question is other than in appellant. These are to the effect that the Government of the United States 'maintains the trust' over the tidelands in question for purposes of fishing, navigation and commerce 'for the benefit of all the people of the United States'; that no persons, partnerships or corporations can take adverse possession of tidelands 'according to...