Kingsbury v. Tevco, Inc.

Opinion

REGAN, J.

The trial court sustained, without leave to amend, a general demurrer to plaintiff’s first amended complaint.

The complaint is based upon an alleged erroneous survey made pursuant to the order of the court and “the agreement of the parties” by Tevco, acting by and through defendant Roecker, in a previous action in superior court captioned Russell R. Ford v. Emma J. Kingsbuiy, No. 210857, seeking an injunction against plaintiff here and involving a boundary line dispute. The court, after a trial, rendered judgment that the Tevco survey was true and correct and marked the boundary line between the litigants contiguous lands. The judgment enjoined plaintiff Kingsbuiy from encroaching on the Ford land.

In the action before us on appeal, one of the allegations in the complaint is that at the time Arthur Roecker was making the survey for the court in the earlier bbundary dispute case plaintiff herein “verbally informed him of the error he was making . . . but the said Arthur Roecker refused to change his survey . . . and verbally advised plaintiff that his concern was to make a survey according to the wishes of defendant Russell R. Ford.”

Defendants state the demurrer was properly sustained as plaintiff cannot state a cause of action and that no amendment to the complaint would allow plaintiff relief under any legal or equitable theory.

[317]

Plaintiff contends the first cause of action does not speak' exclusively in tort, but states facts sufficient to indicate that she is entitled to relief on

some

theory, hence, sustaining the demurrer to the first amended complaint without leave to amend was improper.

1: is true, as argued by plaintiff, that the form of action is immaterial if a pl.vintiff has stated facts showing an entitlement to relief in law or equity. (See, e.g.,

Lacy

v.

Laurentide Finance Corp.