Swiss Park, Inc. v. City of Duarte

Opinion

KINGSLEY, J.

Plaintiff appeals from an order of dismissal entered after a demurrer to its first amended complaint was sustained without leave to amend. We affirm the order as to two causes of action and reverse it as to two others.

Plaintiff is the owner of a tract of land in defendant city, devoted to use as a recreational area. The city desires, as part of a redevelopment plan, to convert that area to multiple condominiums. This action is an attempt by plaintiff to prevent that result.

I

By its first cause of action, plaintiff alleges that, under the terms of the redevelopment plan, it was entitled to a “Certificate of Conformity” which would enable it to continue its present ownership and use, and that the city has illegally denied it such a certificate.

Defendants’ first contention is that plaintiff has sought the wrong remedy in that its complaint seeks an injunction and declaratory relief when it should have sued in mandamus. That contention cannot sustain the denial of leave to amend. The complaint, on its face, states sufficient facts to entitle plaintiff to some relief; an amendment to the prayer would easily meet that objection.

However, the complaint alleged only parts of the redevelopment plan. The trial court took judicial notice of the actual text of the plan and of the map which was part of that plan. We do likewise. It is well settled that, in ruling on a demurrer, a court may take judicial notice of facts that contradict the face of the complaint. (3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, § 798, p. 2412.) Examination of the plan and map clearly show that the area in question was designated as for “High Density Multiple” a use obviously inconsistent with plaintiff’s present use of the area. It follows that plaintiff is not, under the provisions it relies on, entitled to a certificate that its present use “conformed” to the plan. The

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demurrer to the first cause of action was properly sustained without leave to amend.

II

By its second cause of action, plaintiff alleges that, under the terms of the plan, it was entitled to a first opportunity to negotiate with the redevelopment agency for development in accordance with the plan and also to “participate” in any development by another. It alleges that those provisions were not complied with.