McKay v. County of Riverside

MONROE, J. pro tem.

*

Plaintiffs and appellants, being the surviving children and heirs at law of William Howard McKay, Sr., and his wife, bring action for damages for their death. The action is against county of Riverside, the Palo Verde Irrigation District and individual defendants. After answer, the irrigation district filed a motion to dismiss the action as to it upon the sole ground that the complaint failed to state a cause of action. The motion was granted and a judgment dismissing the action as to the Palo Verde Irrigation District was entered, from which judgment the plaintiffs appeal.

Plaintiffs contend first that the court erred in sustaining the motion to dismiss for the reason that such motion was not a proper remedy and, secondly, further claim if the complaint did not state a cause of action against the irrigation district that a cause of action could have been so stated.

Appellants rely largely upon the expression of the court in

Pianka

v.

State,

46 Cal.2d 208 [293 P.2d 458], to the effect that the statutory provision for summary judgment in section 437c of the Code of Civil Procedure should be followed as taking the place of the former procedure, commonly referred to as a “speaking motion.” That case, however, has to do with a situation where the defendant, by a motion to dismiss supported by affidavit, sought a dismissal of the action on the ground that the acts complained of were within the governmental immunity from actions for damages growing out of

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carrying on the activities of a governmental agency. In that case, the Supreme Court stated that in the interest of orderly and efficient administration of justice a party should be required to employ the statutory remedy by way of application for a summary judgment. It was further held that the affidavit merely created a conflict with the allegations of fact in the complaint and that, therefore, no summary judgment could have been properly rendered.

A different situation is presented by the case at bar. Here the sole question was whether or not a cause of action was stated against the irrigation district. It was the position of the defendant district that as a governmental agency it was not subject to liability for damages for injuries occasioned by carrying on the activities for which it was organized. The question of whether a cause of action could be maintained at all was one which could have been raised by demurrer.