Covo v. Lobue

Plaintiff John Peter Covo appeals from a judgment of dismissal entered upon the sustaining without leave to amend of a demurrer to his first amended complaint.

Plaintiff’s amended complaint purports to set forth two separate causes of action: Count I alleges that Shearer had leased from Berryessa 60 acres of pastureland in Santa Clara County, for raising some 60 head of cattle, and employed plaintiff to care for them; that defendants Lobue were the owners of real property contiguous to the property leased by Shearer; that on July 27, 1959, these defendants, without the authority, permission or consent of Berryessa or Shearer, directed and ordered their employee and servant, Santa Clara Sand and Gravel Company, to enter upon the Berryessa property for the purpose of constructing a road; that defendant company entered the Berryessa property, removed 300 feet of the barbed wire fence standing upon this land, and commenced constructing a road; that defendant company then proceeded to remove large quantities of earthen materials and to damage and destroy 30 or 40 oak trees; that the earth so removed and the branches, stumps and roots of the trees were dumped into a creek running through the Berryessa property; that on July 28, 1959, some of Shearer’s cattle began to wander across the creek toward the gap in the fence; that plaintiff, in his capacity as Shearer’s employee, was forced to go into the creek in an effort to drive the cattle

Defendants Lobue demurred generally to the complaint.

Before turning to a detailed examination of appellant’s complaint, we call attention once again to the rule that a general demurrer should not be sustained if the pleading, liberally construed, states a cause of action on any theory. (Lloyd v. California Pictures Corp. (1955) 136 Cal.App.2d 638 , 643 [ 289 P.2d 295 ].) The mere fact that the plaintiff’s attorney may be an inept pleader does not justify the dismissal of an action. (M. G. Chamberlain & Co. v. Simpson (1959) 173 Cal.App.2d 263 , 267 [ 343 P.2d 438 ].)

Even where the defect is one of substance, a demurrer should not be sustained without leave to amend if there is a possibility that subsequent amendments will supply omitted allegations and the plaintiff has not had a fair opportunity to do so. (Loper v. Flynn (1946) 72 Cal.App.2d 619 , 623-625 [ 165 P.2d 256 ].)

In the light of these rules, we are convinced that the complaint in the instant case was not so fatally deficient as to justify the sustaining of respondents’ demurrer after appellant had made only one attempt to amend. To the contrary, the trial court’s ruling appears to have been the result of considerable confusion on the part of both appellant and respondents as to whether the complaint sounded in trespass or negligence. In clarifying this issue, it must be noted that appellant was on the Berryessa property as an employee of the lessee. Under such circumstances, he was clearly not in possession of the property and was not entitled to institute an action for trespass to recover for injury to the property. (Lightner Mining Co. v. Lane (1911) 161 Cal. 689 , 694-695 [ 120 P. 771 , Ann.Cas.l913C 1093].) The allegations of the complaint do establish, however, that appellant was on the premises as an invitee (Oldham v. Atchison, T. & S. F. Ry. Co. (1948) 85 Cal.App.2d 214 , 218 [ 192 P.2d 516 ]; Miller v. Pacific Constructors, Inc. (1945) 68 Cal.App.2d 529 , 544-545 [ 157 P.2d 57 ]), whereas respond

Count II of appellant’s amended complaint, as we have noted, charges that respondents were negligent in directing their employee to go upon the Berryessa property. It is further alleged that said employee was negligent in removing 300 feet of the fence standing upon the property. Although there is no specific allegation that the employee was negligent in piling earth and trees into the creek running through the property, we take this oversight to be the result of ineptness in pleading. At the hearing on the demurrer, appellant’s counsel stated that the complaint was intended to “imply” that the piling of the debris into the creek, as well as the removal of the fence, was done in a negligent manner. Since this omission could readily have been corrected by amendment, the question remaining is whether the complaint, if so amended, would be sufficient to state a cause of action against respondents. This question must be answered in the affirmative.

We do not believe it can be said as a matter of law that appellant’s injuries were not a readily foreseeable result of the conditions negligently created by the Santa Clara Sand and Gravel Company. Since it was appellant's job to tend the Shearer cattle, it could reasonably have been anticipated that he would seek to prevent them from escaping through the gap which had been made in the fence. It was equally foreseeable that, in so doing, he might become entangled among the debris which had been dumped in the creek. Since the complaint alleges that the Santa Clara Sand and

Count II of appellant’s amended complaint was not so fatally defective as to justify the sustaining of respondents’ demurrer without leave to amend. Since the judgment must accordingly be reversed, it becomes unnecessary to consider whether or not Count I was also sufficient to set forth a cause of action against respondents. It may be noted in passing, however, that Count I of the original complaint alleged that each of the defendants “acted maliciously and were guilty of wanton disregard of the rights of plaintiff.” This count included a prayer for punitive damages in the amount of $50,000. In amending this count, appellant eliminated all reference to the defendants’ malicious and wanton conduct and also eliminated the prayer for punitive damages. We find it impossible to ascertain whether this count, as set forth in the amended complaint, is intended to state a separate cause of action or is merely a repetition of the allegations set forth in Count II. Appellant should be allowed to clarify this uncertainty by way of amendment.

Agee, J., concurred.