Pianka v. State

Decision Date10 February 1956
Citation293 P.2d 458,46 Cal.2d 208
CourtCalifornia Supreme Court
PartiesEric Roger PIANKA, by and through his guardian ad litem Walter Pianka, Plaintiff and Appellant, v. STATE of California and National Guard of the State of California, Defendants and Respondents. S. F. 19361.

Hoberg & Finger and Ingemar E. Hoberg, San Francisco, for appellant.

Bronson, Bronson & McKinnon, E. D. Bronson, Jr., San Francisco, Edmund G. Brown, Atty. Gen., John E. Fourt and Richard S. F. Roddis, Deputy Attys. Gen., for respondents.

GIBSON, Chief Justice.

Plaintiff, a minor, is seeking damages for personal injuries resulting from the explosion of a shell which was left by the National Guard on a public firing range of the city of Yreka at the conclusion of a public demonstration. Defendants, without filing an answer, raised the defense of sovereign immunity by means of a motion to dismiss supported by an affidavit. The court granted the motion, and plaintiff has appealed from the judgment of dismissal.

The complaint alleges that the firing demonstration was held for the entertainment of the public generally, that it was widely advertised in the local newspapers and that all members of the public were invited to attend. It is further alleged that defendant negligently left an unexploded shell on the public firing range where it would be attractive to young children and that, as a proximate cause of such negligence, plaintiff was injured. A claim, which was duly served and filed pursuant to section 16041 of the Government Code, 1 was denied.

The affidavit in support of the motion to dismiss stated that the firing demonstration had been conducted solely for the purpose of gaining recruits for the National Guard and that no admission charge was made.

The state and its agencies are immune from liability for tort in the discharge of governmental duties and activities, but liability exists for negligence in connection with proprietary activities such as the operation of an industrial or business enterprise. Gov.Code, § 16041; Guidi v. State of California, 41 Cal.2d 623, 625 et seq., 262 P.2d 3; People v. Superior Court, 29 Cal.2d 754, 757 et seq., 178 P.2d 1, 40 A.L.R.2d 919, and cases cited. Governmental immunity turns on the nature of the particular activity that led to the injury, not on the identity of the governmental subdivision or agency carrying on the enterprise, and it has been held that the state may be acting in a proprietary capacity when it enters into activities designed to amuse and entertain the public. Guidi v. State of California, 41 Cal.2d 623, 627, 262 P.2d 3; Cf. Chafor v. City of Long Beach, 174 Cal. 478, 163 P. 670, L.R.A.1917E, 685; Rhodes v. City of Palo Alto, 100 Cal.App.2d 336, 223 P.2d 639; Sanders v. City of Long Beach, 54 Cal.App.2d 651, 129 P.2d 511.

The complaint states a cause of action on the theory of negligence in carrying on a proprietary activity, and, so far as appears from the face of the pleading, there is no lack of personal or subject matter jurisdiction.

Defendant raised the defense of sovereign immunity by means of a procedure commonly called a 'speaking motion' which, although not authorized by statute, has been permitted by the courts under certain circumstances in the exercise of their inherent power to prevent an abuse of judicial process. Crowley v. Modern Faucet Mfg. Co., 44 Cal.2d 321, 324-325, 282 P.2d 33; McKenna v. Elliott & Horne Co., 118 Cal.App.2d 551, 555, 258 P.2d 528; Cunha v. Anglo California Nat. Bank, 34 Cal.App.2d 383, 388-389, 93 P.2d 572; see Witkin, California Procedure (1954) 1500- 1501. However, nonstatutory speaking motions have now been superseded by the procedure governing motions for summary judgment contained in section 437c of the Code of Civil Procedure. 2 This section was originally very limited in scope, but it has been broadened by a series of amendments and now applies 'in any kind of action' and provides that the 'word 'action' * * * shall be construed to include all types of proceedings.' Under this section a motion supported by affidavit of a person having knowledge of the facts may be made after answer whenever it is claimed that the action has no merit, and the complaint may be dismissed unless the other party shows facts sufficient to present a triable issue. The remedy afforded by this section is broad enough to cover all situations in which speaking motions have been employed, and there is therefore no longer any need for the nonstatutory procedure. In the interests of orderly and efficient administration of justice the litigant should be required to employ the statutory remedy, and a speaking motion to dismiss should be treated as a motion for summary judgment in order to preserve the safeguards provided by the statute.

The procedure followed by defendants here wholly failed to meet the requirements of section 437c. However, the statute does not expressly state that it was intended to supersede speaking motions, and the parties did not consider its applicability in this proceeding. Accordingly, since this is the first time the question has been decided, we have tested the propriety of the judgment...

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  • Akins v. Sonoma County
    • United States
    • California Court of Appeals
    • December 21, 1966
    ...the amusement and entertainment of the public. (Guidi v. State of California, 41 Cal.2d 623, 627, 262 P.2d 3; Pianka v. State of California, 46 Cal.2d 208, 210, 293 P.2d 458; Chafor v. City of Long Beach, 174 Cal. 478, 489-490, 163 P. 670; Sanders v. City of Long Beach, supra, 54 Cal.App.2d......
  • Vesely v. Sager
    • United States
    • United States State Supreme Court (California)
    • June 24, 1971
    ...... Additionally, we reaffirm our decision in Pianka v. State of California (1956) 46 Cal.2d 208, 293 P.2d 458, and hold that a nonstatutory speaking motion to strike or dismiss a complaint should be ......
  • Thornton v. Victor Meat Co.
    • United States
    • California Court of Appeals
    • March 27, 1968
    ...answering has been upheld. (Snider v. Snider (1962) 200 Cal.App.2d 741, 746--747, 19 Cal.Rptr. 709; and see Pianka v. State of California (1956) 46 Cal.2d 208, 211--212, 293 P.2d 458; and Callahan v. Chatsworth Park, Inc. (1962) 204 Cal.App.2d 597, 599, 22 Cal.Rptr. 606.)3 The agreement is ......
  • Levy v. Superior Court, S035538
    • United States
    • United States State Supreme Court (California)
    • June 22, 1995
    ......Sager (1971) 5 Cal.3d 153, 167-169, 95 Cal.Rptr. 623, 486 P.2d 151; Pianka v. State of California (1956) 46 Cal.2d 208, 211, 293 P.2d 458) had to be treated as motions for summary judgment that could be granted only if all ......
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