.:: Economical Services --

California Civil Procedure Code provides that no action for recovery of real property or recovery of possession thereof can be maintained unless the plaintiff or his predecessor is in possession of property within five years immediately before the commencement of action. (Cal Code Civ Proc § 318). The instant complaint failed to provide anything to prove that the plaintiff or his predecessor in interest were in possession of the property five years immediately prior to the institution of complaint. The complaint is also uncertain regarding how the plaintiff derived title to the property, this make the complaint fatally flawed. Although the complaint may be capable of amendment to correct this uncertainty, the continuous possession and enjoyment of the property by the defendant for the last 9 years renders the defendant title to the property absolute. Accordingly, the defendant's demurrer must be sustained without leave to amend.

In July, 1994, the defendant purchased a duplex from the family of her deceased landlord. Sometime in September, 1994, she sought to rent one of the two units and was approached by a 40 year old acquaintance and former neighbor, who is the predecessor in interest of the plaintiff. Acquaintance applied for the rental unit, but complained about the condition. Defendant thereafter accepted $25,000 from the acquaintance, as a loan, to make needed repairs to the unit before `acquaintance would take possession.. Defendant apparently signed a Grant Deed relinquishing 1/2 half of her interest in said duplex to the acquaintance. The acquaintance took possession and paid $350 monthly in rent and then vacated the unit approximately two years later. Nothing was heard about the acquaintance until 2003, and all these time, the defendant was in continuous possession and enjoyment of the property.

I. PLAINTIFF'S COMPLAINT IS DEMURRABLE FOR FAILURE TO STATE FACTS SUFFICIENT TO CONSTITUTE A CAUSE OF ACTION AND FOR UNCERTAINTY.

The party against whom a complaint . . . has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds . . .

(e) The pleading does not state facts sufficient to constitute a cause of action.

A defendant in an unlawful detainer action may demurrer to the Complaint. Code of Civil Procedure § 1170. An objection to a complaint may be taken by demurrer when the ground for such objection appears on the face of the Complaint. Code of Civil Procedure § 430.30(a). Here, the grounds for the objection appear on the face of the Complaint, as the Complaint fails to allege legal title over the property to entitle him for partition.

III. PLAINTIFF'S FAILURE TO TAKE NECESSARY ACTION WITHIN TIME LIMIT RENDERS THE COMPLAINT UNENFORCEABLE.

Cal Code Civ Proc § 318 provides that; Seisin within five years, when necessary in action for real property.No action for the recovery of real property, or for the recovery of the possession thereof, can be maintained, unless it appear that the plaintiff, his ancestor, predecessor, or grantor, was seised or possessed of the property in question, within five years before the commencement of the action.

In the present case, the predecessor in interest of the plaintiff was paying rent to the defendant till 1997 and left the property in 1997. Till 2003 nothing has been heard either about plaintiff or about the plaintiff's predecessor in interest. Therefore the defendant is entitled for demurrer.

Kleinclaus v. Dutard, 147 Cal. 245, 249 (1909) provides that; "Following the maxim that equity aids the vigilant and not those who slumber on their rights, it has been universally declared that only conscience, good faith, and reasonable diligence can call a court of equity into activity, and that, entirely independent of any statutory period of limitations, stale demands will not be aided where the claimant has slept upon his rights for so long a time and under such circumstances as to make it inequitable to enter upon an inquiry as to the validity thereof. Where such is the condition, the demand is, in a court of equity, barred by laches."

A demurrer on statute of limitations grounds is not barred. See Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 881

Cal. Civ. Proc. Code § 325 provides that; "What constitutes adverse possession under claim of unwritten title

For the purpose of constituting an adverse possession by a person claiming title, not founded upon a written instrument, judgment, or decree, land is deemed to have been possessed and occupied in the following cases only:

Provided, however, that in no case shall adverse possession be considered established under the provisions of any section or sections of this code, unless it shall be shown that the land has been occupied and claimed for the period of five years continuously, and the party or persons, their predecessors and grantors, have paid all the taxes, state, county, or municipal, which have been levied and assessed upon such land."

An occupant of real property who enters into possession thereof under claim of title and remains in such possession continuously for a period of five years acquires prescriptive title to the property. See Wilson v Peterson (1950) 96 Cal App 2d 84, 214 P2d 597. It has been provided in Garabaldi v Shattuck (1886) 70 Cal 511, 11 P 778 Grantor of land who remains in adverse possession thereof for period prescribed by statute of limitations obtains title as against his grantee, and title subsequently acquired by him inures to his benefit, and not to benefit of grantee.

Where a grantor retains hostile possession of premises, openly and notoriously asserting title thereto, he may acquire title by prescription against his grantee, in spite of a preceding deed of conveyance. See Merritt v Rey (1930) 104 Cal App 700, 286 P 510.

Defendant has been in continuous enjoyment and possession of the property since 1994. Plaintiff relies solely on the grant deed allegedly executed by defendant in favour of his mother and claims that he is entitled to one-half of the undivided share in the property on the strength of the said deed.

Plaintiff's predecessor in interest were paying rent to the defendant till 1997 and the relationship between the plaintiff's predecessor in interest and the defendant was that of and tenant and landlord. This is evident from the payment of rent by the plaintiff's predecessor in interest to the defendant.

III. GRANT DEED ALLEGEDLY EXECUTED BY THE DEFENDANT DOES NOT TRANSFER ANY INTERST IN THE PROPERTY TO PLAINTIFF OR HIS PREDECESSOR IN INTERST.

It has been observed in Gray v. Walker , 157 Cal. 381 (1910) that cause of action for adverse possession was not destroyed by the execution of a deed by plaintiff to defendant because plaintiff might have acquired a perfect title by adverse possession after the execution of the deed.

In the present case the deed executed by the defendant is one loan agreement and same does not confer any title to the property either to plaintiff predecessor in interest or to the defendant. By paying rent to the defendant, the plaintiff's predecessor in interest has admitted the fact that execution of such document such document had not transferred any title.

It has been observed in Long v. Smith, 99 Cal. App. 450 (1929), that, it is essential to the validity of the transfer of real property that there be a delivery of the conveyance with intent to transfer the title, and the true test under which delivery is to be determined is in ascertaining whether in parting with the possession of the conveyance the grantor intended thereby to divest himself of title. If he did, there was an effective delivery of the deed. If not, there was no delivery. The solution of this question is grounded entirely on the intention of the grantor, and this essential matter of intention is a question of fact to be determined by the trial court from a consideration of all the evidence in a given case bearing upon the question.

In Mondine v. Labaig, 44 Cal. App. 781 (1919), plaintiffs filed a complaint against defendants to quiet title to land. Defendants' answer asserted ownership of an undivided one-half of the property, and by way of cross-complaint they demanded a partition of the land, or, if the same could not have been had without material injury, then that it be sold and that the proceeds be divided. Defendants also asked for an accounting of the rents collected by plaintiffs. The trial court entered judgment in favor of plaintiffs. The court affirmed. The court held that plaintiffs' allegation in their complaint that they were the owners in fee of the property was sufficient to present and dispose of the question of title by adverse possession. The court also determined that there were specific findings upon all the issues raised by the pleadings, including the cross-complaint and answer thereto, which were sufficient, and which amply supported the judgment. In addition, the evidence of dominion and control of the property on the part of plaintiffs, in addition to the assertion of ownership and adverse title for a continuous period, was sufficient to demonstrate a claim of adverse possession.

The Complaint is subject to demurrer because it fails to allege sufficient facts to constitute a cause of action and is uncertain. Since plaintiff's failure to provide sufficient facts to constitute a cause of action is incurable, the demurrer must be sustained without leave to amend.