1.                  §  425.10. Statement of facts;  demand for judgment

 

 (a) A complaint or cross-complaint shall contain both of the following:

 

 (1) A statement of the facts constituting the cause of action, in ordinary and concise language.

 

 (2) A demand for judgment for the relief to which the pleader claims to be entitled.  If the recovery of money or damages is demanded, the amount demanded shall be stated.

 

 (b) Notwithstanding subdivision (a), where an action is brought to recover actual or punitive damages for personal injury or wrongful death, the amount demanded shall not be stated, but the complaint shall comply with Section 422.30 and, in a limited civil case, with Section 72055 of the Government Code.

 

2.                  §  452. Liberal construction

 

 PLEADINGS TO BE LIBERALLY CONSTRUED.  In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.

3.                  California Code of Civil Procedure §  430.10. Objection by defendant;  grounds

 

 The party against whom a complaint or cross-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:

 

 (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading.

 

 (b) The person who filed the pleading does not have the legal capacity to sue.

 

 (c) There is another action pending between the same parties on the same cause of action.

 

 (d) There is a defect or misjoinder of parties.

 

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

 

 (f) The pleading is uncertain.  As used in this subdivision, "uncertain" includes ambiguous and unintelligible.

 

 (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.

 

 (h) No certificate was filed as required by Section 411.35.

 

 (i) No certificate was filed as required by Section 411.36.

 

4.                  Cases

4.1.            Lodi v. Lodi

Court of Appeal, Third District, California.

 

Oreste LODI, Reversioner, Plaintiff and Appellant,

v.

Oreste LODI, Beneficiary, Defendant and Respondent.

 

3 Civ. 25210.

 

Oct. 22, 1985.

As Modified Nov. 7, 1985.

 

SIMS, Associate Justice.

 

 This case started when plaintiff Oreste Lodi sued himself in the Shasta County Superior Court.

 

 In a complaint styled "Action to Quiet Title Equity," plaintiff named himself, under the title "Oreste Lodi, Beneficiary," as defendant.   The pleading alleges that defendant Lodi is the beneficiary of a charitable trust, *630 the estate of which would revert to plaintiff Lodi, as "Reversioner," upon notice.  Plaintiff attached as Exhibit A to his complaint a copy of his 1923 New York birth certificate, which he asserts is the "certificate of power of appointment and conveyance" transferring reversioner's estate to the charitable trust.  Plaintiff Lodi goes on to allege that for 61 years (i.e., since plaintiff/defendant was born), defendant has controlled the estate, that plaintiff has notified defendant of the termination of the trust by a written "Revocation of all Power" (which apparently seeks to revoke his birth certificate), but that defendant "intentionally persist [sic ] to control said estate...."  Plaintiff requested an order that he is absolutely entitled to possession of the estate, and terminating all claims against the estate by any and all persons "claiming" under defendant. [FN1]

 

 

FN1. The purpose of plaintiff's action is not entirely clear. However, we note plaintiff caused a complimentary copy of his complaint to be served upon the Internal Revenue Service.   It may be that plaintiff hoped to obtain a state court judgment that, he thought, would be of advantage to him under the Internal Revenue Code.

 

 

 The complaint was duly served by plaintiff Lodi, as "Reversioner," upon himself as defendant/beneficiary.   When defendant/beneficiary Lodi failed to answer, plaintiff/reversioner Lodi had a clerk's default entered and thereafter requested entry of a default judgment.   At the hearing on the entry of a default judgment, the superior court denied the request to enter judgment and dismissed the complaint. [FN2]

 

 

FN2. The minute order indicates that the court also suggested to plaintiff/reversioner/defendant/beneficiary that he seek the assistance of legal counsel.

 

 

 [1] **118 In this court, appellant and respondent are the same person.  [FN3]  Each party has filed a brief.

 

 

FN3. Plaintiff/reversioner filed a notice of appeal from the order of dismissal.   No judgment was entered.   However, in the interest of judicial economy, we treat the notice of appeal as one from the judgment. (Cal.Rules of Court, rule 2(c).)

 

 

 The only question presented is whether the trial court properly dismissed the complaint even though no party sought dismissal or objected to entry of judgment as requested.

 

 [2] As is obvious, the complaint states no cognizable claim for relief.  Plaintiff's birth certificate did not create a charitable trust;  consequently, there was no trust which could be terminated by notice.   In the arena of pleadings, the one at issue here is a slam-dunk frivolous complaint.

 

 [3] We conclude the trial court was empowered to strike or dismiss the complaint by section 436 of the Code of Civil Procedure [FN4] which provides in pertinent part:  "The court may, upon a motion ... or at any time in its *631 discretion, and upon terms it deems proper:  ... [¶ ] (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court."

 

 

FN4. All further statutory references are to this code.

 

 

 Section 425.10 provides in pertinent part:  "A complaint ... shall contain ... the following:  [¶ ] A statement of the facts constituting the cause of action, in ordinary and concise language."

 

 Discussing the notion of a "cause of action," Witkin writes:  "California follows the 'primary right theory' of Pomeroy:  'Every judicial action must therefore involve the following elements:  a primary right possessed by the plaintiff, and a corresponding primary duty devolving upon the defendant;  a delict or wrong done by the defendant which consisted in a breach of such primary right and duty;  a remedial right in favor of the plaintiff, and a remedial duty resting on the defendant springing from this delict, and finally the remedy or relief itself....  Of these elements, the primary right and duty and the delict or wrong combined constitute the cause of action.....  [T]he existence of a legal right in an abstract form is never alleged by the plaintiff;  but, instead thereof, the facts from which that right arises are set forth, and the right itself is inferred therefrom.   The cause of action, as it appears in the complaint when properly pleaded, will therefore always be the facts from which the plaintiff's primary right and the defendant's corresponding primary duty have arisen, together with the facts which constitute the defendant's delict or act of wrong.' "  (4 Witkin, Cal.Procedure (3d ed. 1985) Pleading, §  23, pp. 66-67, quoting Pomeroy, Code Remedies (5th ed.) p. 528, emphasis in original.)

 

 Here, plaintiff's complaint fails to state facts showing a primary right by plaintiff or a primary duty devolving on defendant or a wrong done by defendant.  The complaint therefore fails to state facts constituting a cause of action as required by section 425.10.   Consequently, the complaint was not drawn in conformity with the laws of this state and was thus properly subject to the court's own motion to strike under section 436, subdivision (b).

 

 We need not consider whether the court's power under this statute should be exercised where plaintiff seeks leave to amend.   Here, so far as the record before us shows, plaintiff made no such request nor is any prospect of saving the pleading by amendment apparent.   The trial court therefore properly struck and dismissed the complaint on its own motion.  (§  436, subd. (b).)

 

 In the circumstances, this result cannot be unfair to Mr. Lodi.   Although it is true that, as plaintiff and appellant, he loses, it is equally true that, as defendant and respondent, he wins!   It is hard to imagine a more even handed *632 application of justice.   Truly, it would appear that Oreste Lodi is **119 that rare litigant who is assured of both victory and defeat regardless of which side triumphs.

 

 We have considered whether respondent/defendant/beneficiary should be awarded his costs of suit on appeal, which he could thereafter recover from himself. However, we believe the equities are better served by requiring each party to bear his own costs on appeal.

 

 The judgment (order) is affirmed.   Each party shall bear his own costs.

 

 

 REGAN, Acting P.J., and CARR, J., concur.

 

4.2.            Schaefer v. Berinstein

District Court of Appeal, Second District, Division 3, California.

 

Martin F. SCHAEFER

v.

Samuel BERINSTEIN

 

Civ. 21144.

 

March 27, 1956.

Hearing Denied May 23, 1956.

 

* * *

 

It seems necessary to repeat the rules which should govern a trial court in the consideration of a demurrer on the ground a pleading does not state facts sufficient to constitute a cause of action and which govern a reviewing court in considering an appeal from a judgment entered on the sustaining of a demurrer on that ground. On appeal from a judgment sustaining a demurrer to a complaint the allegations of the complaint must be regarded as true. It must be assumed that plaintiff can prove all the facts as alleged. Wirin v. Horrall, 85 Cal.App.2d 497, 500, 193 P.2d 470. 'The court must, in every stage of an action, disregard any defect in the pleadings which does not affect the substantial rights of the parties. Code Civ.Proc., sec. 475. 'Pleadings must be reasonably interpreted; they must be read as a whole and each part must be given the meaning that it derives from the context wherein it appears.' Speegle v. Board of Fire Underwriters, 29 Cal.2d 34, 42, 172 P.2d 867, 872. All that is necessary as against a general demurrer is to plead facts entitling the plaintiff to some relief. Tristam v. Marques, 117 Cal.App. 393, 397, 3 P.2d 947. 'In determining whether or not the complaint is sufficient, as against the demurrer upon the ground that it does not state facts sufficient to constitute a cause of action, the rule is that if, upon a consideration of all the facts stated, it appears that the plaintiff is entitled to any relief at the hands of the court against the defendants, the complaint will be held good, although the facts may not be clearly stated or may be intermingled with a statement of other facts irrelevant to the cause of action shown, or although the plaintiff may demand relief to which he is not entitled under the facts alleged.' Matteson v. Wagoner, 147 Cal. 739, 742, 82 P. 436, 438. In passing upon the sufficiency of a pleading, its allegations must be liberally construed with a view to substantial justice between the parties. Buxbom v. Smith, 23 Cal.2d 535, 542, 145 P.2d 305;Gerritt v. Fullerton Union High School Dist., 24 Cal.App.2d 482, 486, 75 P.2d 627. 'While orderly procedure demands a reasonable enforcement of the rules of pleading, the basic principle of the code *289 system in this state is that the administration of justice **121 shall not be embarrassed by technicalities, strict rules of construction, or useless forms.' Buxbom v. Smith, 23 Cal.2d 535, 542, 145 P.2d 305, 308.' Hardy v. San Fernando Valley Chamber of Commerce, 99 Cal.App.2d 572, 577, 222 P.2d 314, 317.