Longfellow v. County of San Luis Obispo

Opinion

ABBE, J.

This is an appeal from judgment for defendant County of San Luis Obispo (County) after a demurrer was sustained to plaintiffs’ second amended complaint without leave to amend. On October 23, 1980, the plaintiff, Helene Longfellow, fell while walking on a sidewalk within the city limits of the City of Atascadero (Atascadero). She and her husband brought suit against both County and Atascadero to recover damages for injuries she sustained as a result of her fall.

Atascadero became an incorporated city on July 2, 1979, and it thereupon entered into a contract with County which obligated the County to maintain the streets within the city until June 30, 1980. Government Code section 35448, subdivision (a) requires a county to continue to furnish all services to a territory formerly unincorporated whenever a city is incorporated there for the remainder of the fiscal year during which the incorporation became effective. The services so required include maintenance of streets. Pursuant to Streets and Highways Code section 989, Atascadero became the owner of the streets on July 1, 1979, the date of the incorporation, but did not become responsible for the control and maintenance of the streets until July 1, 1980.

The plaintiffs admit that the demurrer to the first cause of action of the second amended complaint, based on a theory of dangerous condition

[383]

of public property, must be affirmed by this court if we agree with the decision in

Tolan

v.

State of California

ex rel.

Dept. of Transportation

(1979) 100 Cal.App.3d 980 [161 Cal.Rptr. 307], We do. The

Tolan

decision holds that the public property upon which liability is based must be owned or controlled by the public entity at the time of the injury. It is not disputed in this case that the County did not own or control the property in question in this case at the time of the injury. The