Heimberger

Donald Heimberger purportedly appeals after the court sustained, without leave to amend, the general demurrer of respondent City of Fairfield to appellant’s first amended complaint. The record on appeal does not include a judgment of dismissal; an order sustaining a demurrer is not appealable. (3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, §§ 843, 850, pp. 2448-2449, 2453.) However, where the questions are of law and the parties have invited the appellate court to decide the issues, the court may dismiss the appeal after rendering an opinion dealing with the merits. (6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 225, pp. 4214-4215.)

Appellant sought recovery for injuries allegedly sustained in the course of efforts of city firemen to rescue him when he was trapped by a fire in the boarding house in which he resided. In sustaining the general demurrer without leave to amend, the court took the view that appellant’s claim was defeated by Government Code section 850.4, which provides for governmental immunity for fire-fighting activities.

Appellant contends that Government Code section 850.4 relieves respondent from liability only for injury caused, in fighting…