18CV-00162 Luz Alvarado vs. County of Merced, et al.

Demurrer to Complaint

The Court GRANTS, pursuant to Evidence Code section 452, subdivision (h), defendant County of Merced’s request for judicial notice of the facts (1) 257 W. Donna Drive in Merced has been within the City of Merced since 1978; and (2) the County of Merced does not own or control the sidewalk at 257 W. Donna Drive in Merced.

Defendant County of Merced’s unopposed general demurrer to the first cause of action for dangerous condition of public property is SUSTAINED without leave to amend. The sidewalk where plaintiff allegedly tripped and fell is not public property owned or controlled by the County of Merced therefore plaintiff has not alleged sufficient facts to constitute a cause of action against the County. (See Longfellow v. County of San Luis Obispo (1983) 144 Cal.App.3d 379, 382-383.)

Defendant County of Merced’s unopposed general demurrer to the second cause of action for vicarious liability for the wrongful acts or omissions by public entity employees and/or for retention of unfit employee pursuant to Government Code section 815.2 is SUSTAINED without leave to amend. The second cause of action does not allege sufficient facts to constitute a cause of action against the County of Merced. First, it is undisputed that the public property where plaintiff allegedly tripped and fell is not owned or controlled by the County. Second, even assuming the public property is owned and controlled by the County, a public employee is not liable for injuries caused by a condition of public property where the condition exists because of any act or omission of the employee within the scope of their employment. (Gov. Code, § 840.) Since the employee is immune, the public entity cannot be held vicariously liable for the acts of the employee. (Longfellow v. County of San Luis Obispo, supra, 144 Cal.App.3d at 383.) Public entity liability for property defects is not governed by the general rule of vicarious liability provided in Government Code section 815.2 but rather by provisions in sections 830 to 835.4. (Ibid.) Third, plaintiff’s vague allegations of negligent retention of an unfit employee are conclusory and insufficient to constitute a cause of action against the County.

Plaintiff has not filed any opposition indicating what new or different facts plaintiff could allege to state a viable cause of action against the County therefore the demurrer is sustained without leave to amend.