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District Court of Appeal, First District, Division 2, California.

Eric 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.

Civ. 16423.

Decided: June 28, 1955

Hoberg & Finger, San Francisco, for appellant. Bronson, Bronson & McKinnon, San Francisco, Edmund G. Brown, Atty. Gen., John E. Fourt, Deputy Atty. Gen., for respondents.

This is an appeal from a judgment of dismissal in a tort action against the State of California and the National Guard of this state.

The complaint herein alleged that Eric Pianka, a minor, was injured as the result of the explosion of a dud shell which had been negligently left on a public firing range by members of the National Guard of the State of California, and which appellant carried away from the range on the day following the demonstration. There was an allegation to the effect that the firing demonstration was held for the entertainment and education of the public generally, was widely advertised, and members of the public were invited to attend. This, appellant asserts, is an allegation that the activity was proprietary. Respondents demurred generally and upon the grounds that the court had no jurisdiction of either the subject matter or of the respondents. Respondents also filed a motion to dismiss based on the same grounds as the demurrer, and supported said motion with an affidavit of the Adjutant General of the State of California setting forth that the firing demonstration was conducted solely for the purpose of gaining recruits for the National Guard and that there was no charge for admission. After hearing, the trial court granted the motion to dismiss.

Appellant contends that the afdavit in support of respondents' motion to dismiss was inadmissible and should not have been considered by the trial court. The effect of admitting the affidavit, appellant says was to determine the fact question of whether or not the National Guard was acting in a governmental, rather than a proprietary capacity, at the demurrer stage. A general demurrer may not introduce into the controversy any factual matter that is not already there. Mackay v. Clark Rig Bldg. Co., 5 Cal.App.2d 44, 55, 42 P.2d 341; Kleiner v. Garrison, 82 Cal.App.2d 442, 187 P.2d 57. Appellant, admits however that defects in a complaint may be exposed by motion to dismiss as well as by general demurrer, Monahan v. Blossom, 88 Cal.App.2d 951, 952, 199 P.2d 738, but argues that in either instance the court is not warranted in considering factual matter stated in an affidavit.

Respondents agree that a demurrer attacking the sufficiency of the complaint cannot be supported by affidavit, but point out that the affidavit herein was not in support of the demurrer, but in support of the motion to dismiss. There is no doubt but that the defense of sovereign immunity raises a jurisdictional question. People v. Superior Court, 29 Cal.2d 754, 756, 178 P.2d 1.

It is well established that upon a showing of the court's lack of jurisdiction an action will be dismissed. Gallagher v. McGraw, 132 Cal. 601, 64 P. 1080; In re Estate of Palmieri, 120 Cal.App. 698, 700, 8 P.2d 152. An affidavit may be used in support of a motion to dismiss. Section 2009, Code of Civ.Proc.; Cunha v. Anglo California Nat. Bank, 34 Cal.App.2d 383, 93 P.2d 572.

While sections 581 and 583 provide for situations in which dismissals may be had on motion of the defendant, there is considerable authority that those sections do not cover every possible use of the motion to dismiss. In Cunha v. Anglo California Nat. Bank, supra, 34 Cal.App.2d at pages 388–389, 93 P.2d at page 575, it was said that the motion to dismiss in that case was not made pursuant to the provisions of sections 581–581b of the Code of Civ.Proc., but that, ‘as to the power to dismiss, those sections are not exclusive.’ The court stated further that ‘The power to dismiss was formerly exercised by courts of chancery and later it was exercised in the law courts. * * * The same rules apply to a dismissal at law or in equity under code procedure unless modified by statute. * * * As the court had the jurisdiction to enterain the motion the defendants had the right to support their motion with affidavits.’ The granting of a motion to dismiss has been upheld in cases where it has been used to raise the defense of the court's lack of jurisdiction. Gould v. Executive Power of the State, 112 Cal.App.2d 890, 247 P.2d 424. Such motion may also be used to dismiss an action in certain cases involving the defense of res judicata and where the complaint is sham and frivolous. McKenna v. Elliott & Horne Co., 118 Cal.App.2d 551, 258 P.2d 528; Stafford v. Yerge, 129 Cal.App.2d 165, 276 P.2d 649; Best v. Fitzgerald, 81 Cal.App.2d 965, 185 P.2d 377; Olwell v. Hopkins, 28 Cal.2d 147, 168 P.2d 972, and, see, 36 Cal.Law Rev. 465, 467; 40 Cal.Law Rev. 192, 197–198. Therefore, if the affidavit here used in support of the motion showed that the court lacked jurisdiction because of the defense of sovereign immunity for a purely governmental activity, then the trial court's action in granting the dismissal was proper.

Appellant earnestly contends that the complaint shows that the National Guard was acting in a proprietary capacity in carrying on the firing demonstration for the education and entertainment of the public. However, appellant filed no counter-affidavit to the affidavit of the Adjutant General which shows that this was a free demonstration given for the purpose of gaining recruits for a certain unit of the National Guard. We must therefore accept the uncontradicted fact that the purpose was purely governmental and in line with the usual activities and purposes of a military organization. It is provided by statute that such demonstrations and exhibitions made with the aid of National Guard personnel are to be entirely paid for from State funds. Section 176, California Military and Veterans Code. The basic purpose of this organization is to preserve the public peace and protect the State and Nation. Section 146, California Military and Veterans Code. The complaint made no allegation that the public was charged admission to this demonstration, and there is no denial of the statement in the affidavit that it was free to the public. Clearly, the purpose of the demonstration was in harmony with the purpose for which the National Guard exists, a purpose that is purely governmental—the security of the state. In Newiadony v. State, 276 App.Div. 59, 93 N.Y.S.2d 24, 26, a case involving the National Guard of that state, it was said, ‘There are some kinds of activities in which no private citizen engages which are functions characteristic of a sovereign. No private citizen undertakes to suppress an insurrection or defend the State against invasion, break up riots, and restore public order.’ In Dembrod v. State, 185 Misc. 1061, 58 N.Y.S.2d 490, plaintiff was injured when shot by a live shell negligently fired from a machine gun while he was watching a weapons demonstration by the New York state guard. In spite of the fact that New York has a statute expressly waiving sovereign immunity from torts caused by negligence of state officers and employees, it was held that the action was properly dismissed, that the militia was acting in a governmental capacity, that the waiver statute did not apply, and that to render the state liable for acts of the militia, a statute would have to be passed with such an intent clearly expressed. See, also, Goldstein v. State, 281 N.Y. 396, 24 N.E.2d 97, 129 A.L.R. 905; Farina v. State, 197 Misc. 319, 94 N.Y.S.2d 614. There is no California case in point involving the National Guard, but the New York cases are persuasive authority. The function of the National Guard is the same in California as in New York. Those cases are based on the general principle stated in Winthrop's Military Law and Precedents, Second Edition, pages 1382–1383, ‘that the Government is not legally liable for unauthorized wrongs or injurious acts done by its officers or soldiers to or against civilians, though occurring while engaged in the discharge of their official duties.’

Appellant bases his argument that a proprietary activity is involved upon the decision in Guidi v. State, 41 Cal.2d 623, 625, 262 P.2d 325, wherein it was held that the State was acting in a proprietary capacity when its Department of Agriculture conducted a horse show for the amusement and entertainment of the public. The court laid down the rule that governmental immunity ‘turns on the nature of the particular activity that leads to the plaintiff's injury, not on the identity of the governmental subdivision or agency carrying on the activity, or on the fact that the facility in question may also be used for governmental purposes.’ The court went on to state that it was ‘not concerned with the possible immunity of the state from liability for negligence in connection with agricultural and educational activities at the state fair, but only with its claim of immunity for negligence in the course of setting off fireworks and maintaining the horse arena.’ It is true that this case holds that the test is the nature of the particular activity engaged in, and that this is not determined simply by determining the usual purposes of such governmental agency. However, it does not change the rule that when acting in a governmental capacity a sovereign may not be sued, except where that doctrine has been changed by statutory or constitutional law. Section 16041, Government Code, providing for the filing of claims against the state for negligence, has been held to be procedural only, and not a waiver of sovereign immunity. Bettencourt v. State, 123 Cal.App.2d 60, 65, 266 P.2d 201.

In view of the fact that appellant did not deny the averments in the affidavits which clearly showed that the activity of defendant which resulted in appellant's injury, was purely governmental, the defense of sovereign immunity was established, and the court had no jurisdiction to hear the matter and properly dismissed it.

Had appellant raised an issue on the motion to dismiss as to sovereign immunity either by counter-affidavit or by oral testimony, then the motion to dismiss must of necessity have been denied because appellant could not be denied a trial on the merits on this issue.

Respondents also contend that the complaint on its face showed that the activity was governmental, even if the affidavit had not been filed. They argue that the allegation that the demonstration was held ‘for the entertainment and education of the public’ is sham and a mere conclusion of the pleader. With this contention we agree. The undisputed facts before the trial court were that the firing demonstration to which appellant attributes his injury was conducted by the California National Guard for the sole purpose of gaining recruits, was free of charge to those attending, and was in the pursuit of a governmental activity.

In view of the foregoing, the judgment of dismissal finds support in the record before us.

Judgment affirmed.

I cannot agree with the clear implication of the majority opinion that a complaint which states a good cause of action may be dismissed because an affidavit has been filed which contradicts one of its essential allegations. Either the complaint states a cause of action or it does not. If it does state a cause of action it is a revolutionary idea, which I cannot accept, that it can be attacked by a ‘speaking motion’ which contradicts one of its allegations. This court by its apparent holding that this can be done muddies the waters of procedure and unsettles a rule that I had believed too well settled for argument, that the allegations of a complaint which states a cause of action are invulnerable to attack except by answer and trial of the issues tendered in the ordinary way.

KAUFMAN, Justice.

NOURSE, P. J., concurs.

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