Judge Jill Feeney, Case 22STCV26199 2023-03-29 Tentative Ruling

Department 30, Spring Street Courthouse

Demurrer and Motion to Strike filed by Defendant City of Los Angeles

City’s demurrer as to the second cause of action is sustained with leave to amend.

Government Code § 815.6 provides: "Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty." An enactment for purposes of Government Code § 815.6 includes a statute. (Govt. Code § 810.6.)

The determination of whether an enactment creates a mandatory duty on which a public entity's liability may be based is a question of law for the court. (Guzman v. County of Monterey (2009) 46 Cal.4th 887, 898 ("Guzman") [" 'Whether a particular statute is intended to impose a mandatory duty, rather than a mere obligation to perform a discretionary function, is a question of statutory interpretation for the courts.' [Citations omitted.]," quoting Creason v. Department of Health Services (1998) 18 Cal.4th 623, 631.) Three elements must be present: "(1) an enactment must impose a mandatory duty; (2) the enactment must be meant to protect against the kind of risk of injury suffered by the party asserting section 815.6 as a basis for liability; and (3) breach of the mandatory duty must be a proximate cause of the injury suffered. [Citation omitted.]" (Ellerbee v. County of Los Angeles (2010) 187 Cal.App.4th 1206, 1215.)

Here, Plaintiff does not allege a statute creating a mandatory duty that was violated by the City. Section 835 does not count as that would be circular.

The motion to strike with leave to amend is granted as to Section 815.6 and is otherwise denied.

If Plaintiff wishes to file an amended complaint, Plaintiff must do so within 30 days after the date of this order.

Moving party to provide notice.