Taliaferro v. Wampler

DOOLING, J.

Plaintiff appeals from a judgment entered after the court sustained a demurrer to his second amended complaint (hereinafter called the complaint) without leave to amend. Appellant appears in propria persona and the complaint gives every evidence of being the pleading of one who is not skilled in the law. It attempts to allege an action for injunction and damages against five defendants who are described collectively in the caption of the complaint as “Councilman of the City of San Pablo,” the city

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itself, and the defendant Youngberg, who is alleged in the body of the complaint to have occupied the position of building inspector at all times mentioned in the complaint up to and including October 29, 1951.

The complaint does not allege that any of the defendants is a councilman of the city of San Pablo, but we pass that fact. It alleges that the plaintiff is a taxpayer and resident of the city of San Pablo and the owner of a large number of parcels of real property therein. It alleges that defendants “upon numerous occasions . . . issued and caused to be issued illegally and unlawfully in violation of Ordinance No. 47 of the Ordinances of the City of San Pablo . . . known as an Ordinance Creating a Zoning Ordinance for the City of San Pablo . . . permits ... to build buildings in violation thereof and to occupy and maintain buildings in violation thereof. ’ ’

We note that the ordinance is not properly pleaded and hence cannot be considered a part of the complaint. If the pleader elects not to allege the adoption and effect of the ordinance in detail he must allege its title and the day of its passage. (Code Civ. Proc., § 459;

Simpson

v.

City of Los Angeles,

40 Cal.2d 271, 277 [253 P.2d 464] ;

City of Tulare

v.

Hevren,

126 Cal. 226 [58 P. 530].) It is clear that the quoted allegation, even if the ordinance were properly pleaded, states no more than the pleader’s legal conclusions. The same criticism applies to the succeeding allegation that the defendants “have failed, refused and neglected to enforce the provisions of said Ordinance.”