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  • WEAVER VS COUNTY OF KERN23-CV Other PI/PD/WD - Civil Unlimited document preview
  • WEAVER VS COUNTY OF KERN23-CV Other PI/PD/WD - Civil Unlimited document preview
  • WEAVER VS COUNTY OF KERN23-CV Other PI/PD/WD - Civil Unlimited document preview
  • WEAVER VS COUNTY OF KERN23-CV Other PI/PD/WD - Civil Unlimited document preview
						
                                

Preview

Superior Court of California County of Kern Bakersfield Department 17 Hearing Date: 02/04/2021 Time: 8:30 AM - 12:00 PM WEAVER VS COUNTY OF KERN BCV-20-100049 Honorable: Thomas S. Clark Clerk: Linda K. Hall Court Reporter: . None Bailiff: Deputy Sheriff Interpreter: Language Of: PARTIES: Present: MAYERS, MERCEDES Plaintiff, Not Present DAVID SHAY Attorney, Present WEAVER, JESSIE Plaintiff, Not Present DAVID SHAY Attorney, Present CANO, MARGARITA Defendant, Not Present ANDREW HAMILTON Attorney, Present COUNTY OF KERN Defendant, Not Present ANDREW HAMILTON Attorney, Present Court Call NATURE OF PROCEEDINGS: DEMURRER & MOTION TO STRIKE Hearing Start Time:8:33 AM The above entitled cause came on regularly on this date and time with parties and/or counsel appearing as reflected above. Matter argued by counsel and submitted. The Court makes the following findings and orders: Defendant's Demurrer to Plaintiff's Second Amended Complaint - Sustained With Leave to Amend. Defendant County of Kern's general Demurrer to the fourth cause of action for negligent supervision and hiring of Plaintiffs' Second Amended Complaint is sustained for failure to state facts sufficient to constitute a cause of action against Defendant County with leave to amend. Defendant County of Kern is a public entity and it is well settled that public entity liability is statutory. (See Govt. Code section 815). The applicable statute and facts in support thereof must be pleaded with particularity. (See Searcy v. Hemet Unified Sch. Dist. (1986) 177 Cal. App. 3d 792, 802 - "Duty cannot be alleged simply by stating 'defendant had a duty under the law'; that is a conclusion of law, not an allegation of fact. The facts showing the existence of the claimed duty must be alleged. [citation omitted] Since the duty of a governmental agency can only be created by statute or 'enactment,' the statute or 'enactment' claimed to establish the duty must at the very least be identified. Here, the fourth cause of action asserted against Defendant County alleges direct, rather than vicarious, liability MINUTES Page 1 of 2 WEAVER VS COUNTY OF KERN BCV-20-100049 against Defendant County for negligent supervision and hiring of Defendant Cano. The fourth cause of action identifies the following statutes: Vehicle Code section 22350 to allege Defendant Cano, an employee of Defendant County, failed to travel at a safe speed, Govt. Code section 815.2(a), which sets out the rule regarding vicarious public entity liability for employee acts or omissions within the course and scope of employment, if the act or omission would, apart from this section, have given rise to a cause of action against that employee, Vehicle Code section 17001 regarding public entity liability for death or injury to person or property caused by a negligent or wrongful act or omission in the operation of any motor vehicle by an employee of the public entity acting within the scope of his employment, i.e. another vicarious liability statute. Neither Vehicle Code section 22350, nor Govt. Code section 815.2(a), nor Vehicle Code section 17001 impose direct liability on Defendant County for negligent supervision and hiring and it appears that there is no reasonable possibility that a direct liability theory against Defendant County, a public entity, for an alleged failure to properly supervise or hire Defendant Cano could be successfully alleged even with further amendment. (See Koussaya v. City of Stockton (2020) 54 Cal. App. 5th 909, [no statutory basis for declaring the public entity defendant directly liable for negligent hiring or supervision of officers. Defendant's Motion to Strike Portions of Plaintiffs' Second Amended Complaint - Moot. Clerk's minutes will be the order of the court. Further notice waived. FUTURE HEARINGS: April 16, 2021 10:00 AM Mandatory Settlement Conference Lampe, David R. Bakersfield Department 11 Sheriff, Deputy May 03, 2021 9:00 AM Jury Trial Clark, Thomas S. Bakersfield Department 17 Sheriff, Deputy MINUTES FINALIZED BY: LINDA HALL ON: 2/4/2021 MINUTES Page 2 of 2 WEAVER VS COUNTY OF KERN BCV-20-100049