Case Number: 19SMCV00133 Hearing Date: September 19, 2019 Dept: P

TENTATIVE RULING

Albert Massachi et al. v. City of Beverly Hills et al. Case No.: 19SMCV00133

Hearing Date: 9/19/2019

City of Beverly Hill’s Demurrer & Motion to Strike Portions of Second Amended Complaint

A tree maintained by defendant City of Beverly Hills collapsed, damaging plaintiffs’ home. Defendant City demurs to the second and fifth causes of action for failure to perform mandatory duties and breach of nondelegable duty. The City moves to strike plaintiffs’ request for emotional distress damages (para. 27 of SAC) and the portion of the caption identifying a sixth cause of action for promissory estoppel.

Second and Fifth Causes of Action—Mandatory Duty

A public entity cannot be held liable for an act or omission causing injury “[e]xcept as otherwise provided by statute.” Cal. Gov. Code §810 et seq. When a public entity “is under a mandatory duty imposed by an enactment designed to protect against the risk of a particular kind of injury,” that entity is liable for an injury of the kind caused by its failure to discharge that duty. Cal. Gov. Code §815.6. A mandatory duty must be “obligatory, rather than merely discretionary or permissive[.]” Lawson v. Superior Court (2010) 180 Cal.App.4th 1372, 1392. If a public entity is obligated to perform a function but the function itself involves exercise of discretion or the act “lend[s] itself to a normative or qualitative debate over whether it was adequately fulfilled,” no mandatory duty is created. Id.

Plaintiffs’ second cause of action alleges the City violated statutes and ordinances (Cal. Gov. Code §§1815 and 835, Cal. Streets & Highways Code §§2200 et seq. and Beverly Hills Muni. Code §§ 1-2-1, 3-2-3-701(G), and 5-6-1001) that created mandatory duties regarding maintenance of public property/vegetation. SAC at pgs. 10-14. Defendant argues none creates a mandatory duty within the meaning of Gov. Code §815.6.

Under Gov. Code §815.6, a public entity may be liable for failing to discharge a mandatory duty. It does not, in itself, impose a duty that gives rise to liability. Gov. Code §835 sets forth the principle that a public entity can be liable for creating a dangerous condition but imposes no requirement to perform any specific function. Neither code section alone gives rise to “mandatory duty” liability.

BH Municipal Code §§1-2-1 and 5-6-1001 define the term “shall” and make it unlawful for people to interfere with public vegetation. They do not impose mandatory duties. Municipal Code §2-3-701(G) provides the Beverly Hills City Manager “shall . . . [p]lan, install, construct, plant, and maintain all cultivated and landscaped public grounds, and trees thereon[.]” The word “shall” implies existence of a duty. Alleging the City owned the tree, allowed it to rot and collapse, causing property damage, sufficiently alleges – for pleading purposes – that the City had a duty to “maintain all cultivated and landscaped public grounds” and breached that duty.

Defendant demurs to the fifth cause of action on essentially the same grounds—that plaintiffs have not sufficiently alleged a failure to perform a mandatory duty. That fails for the reasons set forth above. OVERRULED.

Motion to Strike

Defendant moves to strike plaintiffs’ request for emotional distress damages (para. 27). A plaintiff cannot recover for emotional distress in an action arising solely out of property damage. Cooper v. Superior Court (1984) 153 Cal.App.3d 1008, 1012. The gravamen of this cause of action is that defendants’ negligence caused the tree to collapse, damaging plaintiffs’ property. This does not involve direct physical injury to plaintiffs’ family. Emotional distress damages are not recoverable under the facts alleged.

The City moves to strike the portion of the caption for “promissory estoppel,” on the grounds that no such cause of action is alleged in the SAC. Plaintiff acknowledges this error, and states that a notice of errata will be filed to remedy the issue.

Motion to strike is GRANTED as to emotional distress damages and MOOT as to promissory estoppel.