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

Shelley R. COTHRAN, individually, and Shelley R. Cothran, as Executor of the Last Will and Testament of Edward E. Cothran, Deceased, Plaintiffs and Appellants, v. SAN JOSE WATER WORKS, a Public Utility Corporation, Defendant and Respondent. *

Civ. 19948.

Decided: April 24, 1962

Everett P. Rowe, San Jose, for appellants. C. B. Leib, Leib & Leib, San Jose, Robert Minge Brown, McCutchen, Doyle, Brown & Enersen, San Francisco, for respondent.

Plaintiffs appeal from judgment based upon order sustaining defendant's demurrer to the first count in their fourth amendmed complaint and upon order sustaining defendant's demurrer to the sixth amended complaint.


1. Fourth amended complaint—does it state a cause of action?

2. Sixth amended complaint—does it state a cause of action?

3. Did the trial court abuse its discretion in sustaining the demurrers without leave to amend?


This action was commenced November 4, 1947, by the filing of a ‘Complaint Reverse Condemnation Injuries to Property.’ Thereafter demurrers were sustained with leave to amend to the original and all amended complaints up to the fourth amended complaint. As to that complaint the general demurrer to the first count was sustained without leave to amend. A special demurrer to the second count was sustained with leave to amend. Plaintiffs then filed a fifth amended complaint attempting to amend said second count. A demurrer to that complaint was sustained with leave to amend. Plaintiffs then filed their sixth amended complaint. A general demurrer to it was sustained without leave to amend.

All the complaints were filed by plaintiffs in propria persona. After the last mentioned action of the court plaintiffs employed an attorney who moved for reconsideration of the order sustaining demurrer to the sixth amended complaint. The court denied the motion and affirmed the previous order sustaining that demurrer.

The rule applying to inverse condemnation is well stated in Bauer v. County of Ventura (1955) 45 Cal.2d 276, 282–283, 289 P.2d 1, 5: ‘California Constitution, Article 1, section 14 provides: ‘Private property shall not be taken or damaged for public use without just compensation having first been made to, or paid into court for, the owner * * *.’ The taking of private property by the state for a public use is universally recognized as one of the indisputable attributes of sovereignty. [Citations.] But the state must, except under special circumstances not here present, follow the constitutional procedure which requires the payment of compensation before the private owner is dispossessed of his property. When this requirement is not fully satisfied, an action will lie against the state to recover the value of the property so taken. [Citations.] Based upon section 14, the appropriate action is sometimes designated a proceeding in inverse condemnation.

‘Section 14, however, is designed not to create new causes of action but only to give the private property owner a remedy he would not otherwise have against the state for the unlawful dispossession, destruction or damage of his property. The state is therefore not liable under this provision for property damage that is damnum absque injuria. If the property owner would have no cause of action against a private citizen on the same facts, he can have no claim for compensation against the state under section 14. [Citations.] The effect of section 14 is to waive the immunity of the state where property is taken or damaged for public purposes. To bring his complaint within the provision, the plaintiff must show not only a taking or damaging for a public use but also that it is actionable under the general law.’

To entitle a property owner to damages in inverse condemnation there must be an actual ‘taking’ of the property or some interest in it by the public body, as distinguished from a temporary trespass or interference.


With the rule set forth in Bauer in mind, we proceed to examine, first, the first count of the fourth amended complaint.1 It alleges that defendant is a public utility corporation engaged in the public distribution and sale of water in and about Santa Clara County and possesses the power of eminent domain; that plaintiffs own the described real property. (These allegations are admitted by defendant.) The character of the property is alleged. A certain county road known as Wright Road, starting at Wright Station, provides the most feasible and practical means of ingress and egress to and from the property. About April 14, 1949, defendant destroyed a culvert at Wright Station and has used portions of the road.

The gist of the allegations seems to be that because of certain acts of defendant hereafter mentioned on Wright Road, plaintiffs are deprived of ingress, egress and access to their property and that such acts constitute a taking of plaintiffs' property. Plaintiffs' property lies contiguous to Cothran Raod, which joins Wright Road. Cothran Road serves plaintiffs' property ‘exclusively.’ The most feasible access to plaintiff's property is by Wright Road into Cothran Road. Another access is by a steep, circuitous route containing 15 per cent grades.

On March 26, 1947, defendant's armed employees erected a barbed wire fence across Wright Road at Wright Station and at ‘Call of the Wild,’ stopping access to and from plaintiffs' property by way of Wright Road. Signs marked ‘Public Water Supply—No Trespassing, San Jose Water Works' are now on said county road, and defendant's armed employees have arrested persons for trespassing on said road. Defendant destroyed a culvert across said county road and has used portions of the road as a flume. The road is now used in part as a flume line, and as ‘reservoir land’ for the exclusive benefit of defendant. Since March 26, 1947, defendant has been in exclusive possession of said county road without paying any condemnation damages to plaintiffs nor to the County of Santa Clara. The county has contracted to waive damages for injuries to said road by making a gift of the road to defendant. Plaintiffs cannot use their lands for resort, recreational, nor subdivision purposes because the general public will not use the existing road. Defendant's acts have taken from plaintiffs all access, ingress and egress to and from their property.

This count does not state a cause of action. There is alleged no ‘taking’ by defendant of any of plaintiffs' rights. All of the acts charged occurred on a county road away from plaintiffs' property. It is significant, in view of the allegation that the county made a gift of Wright Road to defendant, that there is no allegation that defendant's acts thereon were not authorized by the county. In any event, in spite of plaintiffs' conclusionary allegations to the contrary, access, ingress, and egress to plaintiffs' property was not taken away. As stated by the Honorable W. W. Jacka, Judge of the Superior Court, in sustaining the demurrer, the complaint ‘merely recites the inconvenience of using a less desirable route to and from said properties.’

Plaintiffs cannot state a cause of action in inverse condemnation for defendant's acts on Wright Road for the same reasons that justified the sustaining of the demurrer, plus the added fact, as stated in the judge's opinion, the closing of that road ‘was by action of the Board of Supervisors of Santa Clara County and not by the Defendant,’ and any relief would have to be sought against Santa Clara County.


Although this complaint is replete with conclusionary allegations of the taking of plaintiffs' property without compensation and is a hopeless jumble of facts and conclusions of law, many of both being immaterial to any cause of action attempted to be stated (see Foerst v. Hobro (1932) 125 Cal.App. 476, 478–479, 13 P.2d 1055, holding that to state a cause of action facts, not conclusions, must be alleged; and Babcock v. Community Redevelopment Agency (1957) 148 Cal.App.2d 38, 306 P.2d 513, holding that allegations which are conclusions are not admitted by demurrer), nevertheless there are some allegations of fact which if properly pleaded might state a cause of action. Plaintiffs contend that their theory is that under the guise of health restriction and the practice of protecting public health, defendant has taken plaintiffs' property or at least the beneficial use thereof and continues to hold it. This defendant did by employing deputy sheriffs to order plaintiffs under penalty or threats of arrest, violence and even of death, to stop building subdivision sites, trout ponds and picnic grounds, irrigating a vegetable garden and repairing dams, on plaintiffs' own property. Defendant prevented the use by plaintiffs of the riparian rights in the streams crossing plaintiffs' property and insisted that plaintiffs desist from the use thereof. Defendant gave written notice to all persons that said property was part of the public water supply and devoted to public use by defendant, and that all trespassers were under penalty of arrest. Plaintiffs allege that said acts prevented plaintiffs from using and developing their property; that defendant, by the armed patrol which defendant conducted to take the uses of plaintiffs' property without condemnation, forced plaintiffs to desist from the use of said property for subdivision, recreational, agricultural and prospective industrial uses;2 that defendant interfered with and stopped a sale made by plaintiffs to the Blue Mountain Development Company because defendant had taken the ‘uses of said real property’ and because the health authorities had requested that defendant purchase the property.

The complaint is full of uncertainties and ambiguities, and most allegations are by way of recital rather than by positive allegation. (A special demurrer was filed by defendant with its general demurrer. The court took no action thereon.) For example, it is not clear as to whether the specific acts of which plaintiffs complain, such as the patrol by armed men, the threats to prevent plaintiffs from using their property as alleged, and the interference with plaintiffs' rights, are continuing, or ceased in 1952, nor whether plaintiffs were building or intended to build subdivision sites, trout ponds or picnic grounds.

Defendant contends that the acts of which plaintiffs complain were not done by them but by the health authorities enforcing the provisions of Health and Safety Code, sections 4450–4461, or were isolated trespasses by defendant prior to 1952, and that in either event they could not constitute a ‘taking.’ However, the complaint alleges that defendant performed the acts. Moreover, there is nothing in sections 4450–4461 which would justify defendant (or even the health authorities, if their acts were in question here, which they are not), in stopping plaintiffs from using their land for subdivision purposes, trout ponds, picnic grounds, vegetable gardens, in armed patrolling of plaintiffs' land or in interfering with their riparian rights. Nor is there any authority for defendant as charged to give written and oral notice to all persons that trespassers on plaintiffs' property will be arrested. These charges have been badly pleaded. Perhaps there is enough in them to show the germ of a cause of action for ‘taking’ plaintiffs' beneficial use of their land. It may very well be, as defendant contends, that these charges are not true or that the deputy sheriffs are not employees of defendant and that the acts charged against defendant are those of the health authorities for whose acts, of course, defendant is not responsible; but these would be matters of defense if plaintiffs properly pleaded a cause of action. It may be that any cause of action plaintiffs may have is barred by the statutes of limitation, and that such fact will be shown, if plaintiffs more clearly plead the time of the acts than they do in this complaint.

There is a great deal of other surplusage in the complaint, such as the allegations concerning pollution. This makes it difficult to determine whether the real theory of the complaint is, as contended by defendant, that the acts alleged were due to the enforcement of health laws combined with the fact that such enforcement is to protect the water in defendant's reservoir, or, as contended by plaintiffs in their briefs, the acts were those of defendant and not authorized by the health laws.

Because, at best, merely the nucleus of a cause of action on the latter theory appears in the complaint, and because of the extremely bad pleading, the court properly sustained the demurrer.

This brings us to the question——


As to the first count of the fourth amended complaint it is obvious that as the alleged acts occurred on a county road (either abandoned or not abandoned), away from plaintiffs' property, no cause of action in inverse condemnation could lie, and hence there was no abuse of discretion in the sustaining of the demurrer to that count without leave to amend.

Nor can we hold (as we must if we were to reverse the trial court's action in sustaining the demurrer to the sixth amended complaint without leave to amend) that the court abused its discretion in refusing to allow plaintiffs another opportunity to amend their complaint. This litigation had been pending almost 13 years. While it is true that a considerable portion of the delay was stipulated to by the parties, plaintiffs had ample time to seek legal advice as to whether or not they really had a cause of action. It was not until they had filed their seventh attempt to state a cause of action, and the court had sustained a demurrer without leave to amend to their last attempt, that they decided to get a lawyer. The court had been extremely indulgent and patient with them in allowing so many amendments. Plaintiffs allege that the property on March 1, 1946, was reasonably worth $500,000, and that defendant's acts have damaged them in that amount. They further allege that a ‘feud existed between Defendant and Plaintiffs.’ Surely, under those circumstances it was inexcusable negligence for plaintiffs to attempt to carry on the litigation without expert help, particularly as from time to time their legal inexpertness was fully demonstrated in the sustaining by the court of demurrers to their many amended complaints.

This court can only reverse the action of the trial court in refusing to allow further amendment of a complaint or other pleading where there has been a clear abuse of discretion by that court. The rule is well stated in Consolidated Concessions Co. v. McConnell (1919) 40 Cal.App. 443, 446, 180 P. 842, 843. There the trial court had sustained a general and special demurrer to the fifth amended complaint. ‘The main contention of the plaintiff on this appeal appears to be that the trial court sustained said demurrer without leave to amend. Had this been a demurrer to the original complaint, there might be some reason or force to this contention, but there is a limit to which the patience of the trial court may be extended in the matter of allowing repeated attempts to amend a faulty pleading. This was pointed out in the case of Billesbach v. Larkey, 161 Cal. 649, 120 Pac. 31, wherein the Supreme Court, in affirming a judgment rendered after a third ineffectual attempt to amend a complaint, said: ‘Ordinarily the trial court should be liberal in allowing amendments where the defect in the complaint is one of form only. This, however, is a matter which is almost entirely within the discretion of the court, and this court can reverse the case only where there is a manifest abuse of discretion in giving final judgment on demurrer without leave to amend. The plaintiff does not have a positive right to amend his pleading after a demurrer has been sustained to it. His leave to amend afterwards is always of grace, not of right. * * * In the present case the final pleading of plaintiffs was the third amended complaint. It was therefore their fourth attempt to state a cause of action. * * * The refusal of leave to amend was not an abuse of discretion.’' (Emphasis added.)

In Ruinello v. Murray (1951) 36 Cal.2d 687, p. 690, 227 P.2d 251, p. 253, a case in which Mr. Justice Carter dissented because in his opinion the complaint did state a cause of action, the court said: ‘Although the deficiencies in plaintiff's complaints were raised in defendant's demurrers, after three attempts he has not overcome them. The trial court could reasonably conclude that he was unable to do so, and accordingly, it did not abuse its discretion in sustaining the demurrer to the third amended complaint without leave to amend. Wing v. Forest Lawn Cemetery Ass'n, 15 Cal.2d 472, 485, 101 P.2d 1099, 130 A.L.R. 120; Dukes v. Kellogg, 127 Cal. 563, 565, 60 P. 44; Werner v. Hearst Publications, Inc., 65 Cal.App.2d 667, 673, 151 P.2d 308; Thayer v. Magill, 13 Cal.App.2d 21, 27, 55 P.2d 1272; Whittemore v. Davis, 112 Cal.App. 702, 708–709, 297 P. 640.’ (See Potter v. Richards (1955) 132 Cal.App.2d 380, 385, 282 P.2d 113; Taliaferro v. Wampler (1954) 127 Cal.App.2d 306, 310, 273 P.2d 829, complaint filed in propria persona; fatally defective in three attempts.)

‘The law is established in California that an appellate court will sustain the action of the trial court in denying an application for leave to file an amended pleading, unless it be made to appear that there has been an abuse of discretion.’ (Rose v. Ames (1942) 53 Cal.App.2d 583, 589, 128 P.2d 65, 68.)

While the courts are, and should be, very liberal in allowing amendments to complaints (and the trial court here was) ‘there must be a limit to the number of amended complaints.’ (Johnson v. Ehrgott (1934) 1 Cal.2d 136, 138, 34 P.2d 144, 145.) In our case no showing of abuse of discretion is made.

Authorities like Kauffman v. Bobo & Wood (1950) 99 Cal.App.2d 322, 221 P.2d 750, which held that the trial court abused its discretion in refusing to allow the particular complaint to be amended, are not in point for the reason that in those cases except for certain ambiguities and uncertainties the complaint stated a cause of action. The reviewing court held that the pleader should have been given an opportunity to clear up the uncertainties. Here we have no such situation. No cause of action is stated and at the very best it is doubtful if one can be stated.

The trial court undoubtedly concluded, and was justified by the history of the case in concluding, that the reason plaintiffs were unable to state a cause of action in inverse condemnation, was because under the true facts no such cause of action existed. A reading of the sixth amended complaint, as well as the other complaints, gives the impression that plaintiffs studiously avoided making positive statements of fact, but relied primarily on mere recitals and conclusions without factual support.

‘If the allegations in a pleading are silent as to dates, and it appears that such dates are material to the issue, it must be presumed that a statement of such dates would have weakened the pleader's case. The same rule applies when the pleader fails to make a clear specific statement of the facts relied upon. * * *’ (Whittemore v. Davis (1931) 112 Cal.App. 702, 708, 297 P. 640, 642.) ‘A plaintiff may not, without limit, replead after demurrer sustained. In this case another amended complaint would have been a fourth attempt to state a cause of action. The trial court was well within its discretion when it determined that, if appellants could not present a cause of action in the third attempt, the limit had been reached.’ (Whittemore, supra, p. 709, 297 P. at page 643.)

In considering whether a court abused its discretion in denying the pleader an opportunity to amend, consideration must be given to ‘the fact that he has not succeeded in three efforts in approaching the statement of a cause of action * * *.’ (Taliaferro v. Wampler, supra, 127 Cal.App.2d at p. 310, 273 P.2d at p. 832); also to what the pleader proposes to provide by amendment.

In our case, two motions for reconsideration were made. The first was directed to the order sustaining the demurrer to the first count of the fourth amended complaint. The notice of motion and the affidavit of plaintiff Shelley R. Cothran accompanying it made no suggestion of any desire to amend the complaint or of in what manner it could be amended. The moving papers were restricted entirely to arguing that count 1 as it existed stated a cause of action. The second motion for reconsideration was directed to the order sustaining demurrer to the sixth amended complaint. Neither the notice of motion nor the affidavit of the attorney accompanying it suggested in any way how the complaint could be amended. The moving papers were restricted to requesting that the attorney be given an opportunity to argue that the sixth amended complaint did state a cause of action.

On this appeal, plaintiffs' briefs stand primarily on the contention that the sixth amended complaint does state a cause of action, and while they contend that the court should not have sustained the demurrer without leave to amend, they in no way suggest what amendment could be made.

It may be that certain of the alleged acts of defendant might constitute the nucleus of a cause of action against defendant for trespass or some similar type of relief, but all the acts alleged do not indicate a cause of action in inverse condemnation. There was here no ‘taking’ of an easement or other interest in plaintiffs' real property. The trial court did not abuse its discretion in determining, in effect, that its patience with plaintiffs' actions was exhausted.

The judgment is affirmed.


1.  Plaintiffs' briefs do not discuss this complaint. However, at oral argument, they contended that the correctness of the ruling of the trial court is before us.

2.  There are other allegations which are irrelevant to the cause of action attempted to be set up, such allegations as arrest of persons on Wright Road, which we discussed hereinbefore in connection with the fourth amended complaint, and the objections of the health authorities of Santa Clara County to the sale of plaintiffs' properties.

BRAY, Presiding Justice.


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