Judge: Mark H. Epstein, Case: 23SMCV04555, Date: 2024-03-07 Tentative Ruling

Case Number: 23SMCV04555    Hearing Date: March 7, 2024    Dept: I

The motion to strike is GRANTED.  Plaintiff sues for negligence against various defendants including the City of Santa Monica.  Plaintiff alleges she was jogging on a sidewalk when a gate on Brazill’s property opened and struck her.  Plaintiff claims that the gate was obscured by shrubbery and the like and that the City negligently maintained the roadway, signage, shoulders, and shrubbery in the area where she jogged.  Santa Monica has moved to strike on the theory that the cause of action will not lie absent an alleged breach of a mandatory duty pursuant to Government Code section 815.6.  The City further states that plaintiff has failed to allege a mandatory duty, and therefore the action against it cannot stand.  

The City is correct that section 815.6 requires the breach of a mandatory duty—that is a duty that the City is obligated to perform.  (Washington v. County of Contra Costa (1995) 38 Cal.App.4th 890.)  To plead a mandatory duty, the complaint must set forth the applicable statute or regulation.  (Sullivan v. City of Sacramento (1987) 180 Cal.App.3d 1070.)  Absent that, the complaint is infirm.  (Becerra v. County of Santa Cruz (1998) 68 Cal.App.4th 1450.)

Plaintiff adverts to the Streets and Highways Code, specifically sections 1806, 1921, and 5011, as well as the Santa Monica Municipal Code and Charter, including sections 200 and 713.  However, the court does not believe these statutes are sufficient.

A mandatory duty is one where the public agency is stripped of discretion.  That means the enactment must be obligatory, not merely discretionary or permissive.  It must require, not just authorize, that a particular action be taken.  (Haggis v. City of Los Angeles (2000) 22 Cal.4th 490.)  And, critically, while a public officer might be under an obligation to perform a function, if the performance of the function involves the exercise of discretion, the duty is not mandatory.  Rather, the function must include implementing rules and guidelines that are explicit and forceful.  (State Department of State Hospitals v. Superior Court (2015) 61 Cal.4th 339.)  The problem plaintiff has is that none of the statutes or ordinances dictate precisely how the streets should be maintained.  In other words, how the City fulfills its obligations to maintain the streets is left to the City.  The closest plaintiff comes is section 713 of the Santa Monica City Charter.  It states that the Street Superintendent has the general care and supervision of City streets and the power to inspect.  But that is not enough of a mandatory duty to trigger liability under GC 815.6.

The problem is that plaintiff has simply failed to allege liability.  The motion is therefore GRANTED WITH LEAVE TO AMEND.  While the court does not see a mandatory duty to the extent of inspections, to the extent that the claim is that the City issued a permit that itself allowed or created the dangerous condition, that is different.  Plaintiff can amend to make it clear which is which.  To the extent that the City, for example, specifically issued a permit that created the dangerous condition, the City is not immune from suit, at least as a pleading matter.