Kunau v. Superior Court CA3

Filed 5/1/26 Kunau v. Superior Court CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Shasta)

CODY KUNAU, C104107

Petitioner,

(Super. Ct. No. 24CV0205953)

v.

THE SUPERIOR COURT OF SHASTA

COUNTY,

Respondent;

CITY OF REDDING et al.,

Real Parties in Interest.

Petitioner Cody Kunau was injured by falling tree branches while walking on a

public sidewalk in the City of Redding (the City). Kunau sued the City and Sysco

Corporation (Sysco), real parties in interest, for personal injuries. The City moved to

strike some of the allegations of Kunau’s complaint, including references to Government

Code section 815.6.1 Respondent trial court granted the motion, finding the operative

complaint failed to identify an enactment imposing a mandatory duty on the City.

1 Undesignated statutory references are to the Government Code.

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Kunau seeks writ review of the trial court’s order. He argues the City’s

ordinances establish a mandatory duty to care for municipal trees. We disagree.

Accordingly, we will deny the petition.

I. BACKGROUND

Kunau was injured when “he was struck on the head, neck, back and shoulders by

large tree branches and limbs” that fell from trees planted near the intersection of Tehama

and Market Streets in the City. According to the operative first amended complaint, the

branches and limbs had grown to the point that they extended over the street and

interfered with vehicles coming and going from Tehama and Market Streets. The first

amended complaint alleges a Sysco delivery truck “struck the low hanging branches and

limbs located alongside . . . Tehama and Market Streets which caused them to be

dislodged from the trees and strike” Kunau.

The first amended complaint asserts two causes of action against the City:

negligence and dangerous condition of public property. The negligence cause of action

refers to several provisions of the Government Code, including section 815.6.2 The

negligence cause of action also refers to Redding Municipal Code sections 13.40.040 and

13.40.050.

The City filed a motion to strike the references to section 815.6, arguing the first

amended complaint failed to identify an enactment imposing a mandatory duty on the

City, as required by section 815.6. Kunau opposed the motion, arguing Redding

Municipal Code sections 13.40.040 and 13.40.50 impose on the City a mandatory duty to

maintain trees in public areas.

The trial court issued a tentative ruling granting the City’s motion. As relevant

here, the trial court tentatively concluded the only part of Redding Municipal Code

2 The negligence cause of action also refers to sections 815.2, 815.4, 820, and 835.

Those theories are not at issue here.

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sections 13.40.040 and 13.40.50 that could possibly establish a mandatory duty was

section 13.40.040, subdivision (a), which directs the park foreman to plant, inspect,

maintain, and remove trees. However, the trial court continued, the mandatory duty to

maintain trees itself involves the exercise of discretion. Therefore, the trial court

concluded, Redding Municipal Code section 13.40.040, subdivision (a) does not establish

the type of mandatory duty required by section 815.6. What’s more, the trial court said,

section 815.6 requires proximate cause (that is, cause “ ‘unbroken by any efficient

intervening cause,’ ” quoting Whitcombe v. County of Yolo (1977) 73 Cal.App.3d 698,

702-703) and “a vehicle hitting a tree could be considered an efficient intervening cause.”

Following argument, the trial court affirmed the tentative ruling and granted the motion

to strike.

Kunau petitioned for a writ of prohibition or mandate directing the trial court to

vacate the order granting the City’s motion to strike. We summarily denied the petition.

Kunau then petitioned for review in the California Supreme Court. By order dated

October 15, 2025, our Supreme Court granted the petition and transferred the matter back

to us, with directions to issue an order to show cause to respondent court why relief

should not issue. The City filed a return, and Kunau filed a reply.

II. DISCUSSION

A. Standard of Review

“A trial court may ‘[s]trike out any irrelevant, false, or improper matter inserted in

any pleading’ and ‘all or any part of any pleading not drawn or filed in conformity with

the laws of this state, a court rule, or an order of the court.’ (Code Civ. Proc., § 436,

subds. (a), (b).) Generally, we review a ruling on a motion to strike for abuse of

discretion. (Cal-Western Business Services, Inc. v. Corning Capital Group (2013) 221

Cal.App.4th 304, 309.) But where, as here, the ruling concerns ‘the proper interpretation

of a statute, and its application to undisputed facts,’ it is a question of law which we

review de novo.” (Ng. v. Superior Court (2025) 108 Cal.App.5th 382, 386.)

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B. Applicable Legal Principles

“Public entities in California are not liable for tortious injury unless liability is

imposed by statute.” (San Mateo Union High School Dist. v. County of San Mateo

(2013) 213 Cal.App.4th 418, 427 (San Mateo); see § 815, subd. (a) [“A public entity is

not liable for an injury, whether such injury arises out of an act or omission of the public

entity or a public employee or any other person”].) “However, this broad grant of

immunity is subject to the exception contained in . . . section 815.6 for certain ministerial

acts not subject to the exercise of discretion.” (Danielson v. County of Humboldt (2024)

103 Cal.App.5th 1, 13.)

Section 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.” (See § 810.6 [“ ‘Enactment’ means a

constitutional provision, statute, charter provision, ordinance or regulation”].) “Thus, the

government may be liable when (1) a mandatory duty is imposed by an enactment, (2) the

duty was designed to protect against the kind of injury allegedly suffered, and (3) breach

of the duty proximately caused injury.” (State Dept. of State Hospitals v. Superior Court

(2015) 61 Cal.4th 339, 348 (State Hospitals).) We are concerned with the first of these

requirements.

Our Supreme Court has explained that “application of section 815.6 requires that

the enactment at issue be obligatory, rather than merely discretionary or permissive, in its

directions to the public entity; it must require, rather than merely authorize or permit, that

a particular action be taken or not taken.” (Haggis v. City of Los Angeles (2000) 22

Cal.4th 490, 498.) “ ‘It is not enough, moreover, that the public entity or officer have

been under an obligation to perform a function if the function itself involves the exercise

of discretion.’ ” (State Hospitals, supra, 61 Cal.4th at p. 348.) Courts have construed the

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mandatory duty requirement “rather strictly, finding a mandatory duty only if the

enactment ‘affirmatively imposes the duty and provides implementing guidelines.’ ”

(Guzman v. County of Monterey (2009) 46 Cal.4th 887, 898.)

Whether a particular enactment “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.” (Creason v. Department of Health Services (1998) 18

Cal.4th 623, 631.) “We must, therefore, examine the language, function and apparent

purpose” of each cited enactment “to determine if any or each creates a mandatory duty

designed to protect against the kind of injury plaintiff allegedly suffered here.” (Haggis

v. City of Los Angeles, supra, 22 Cal.4th at p. 500.)

C. Analysis

Kunau argues Redding Municipal Code sections 13.40.040 and 13.40.050 together

establish a mandatory duty to maintain trees planted alongside public roadways to

prevent injury to pedestrians. We conclude the specified enactments establish an

obligation to perform a discretionary function, which does not support liability under

section 815.6.

Redding Municipal Code section 13.40.040 entitled “Maintenance and removal on

public areas,” provides: “A. The parks foreman is authorized and directed to plant,

inspect and maintain trees in planting strips and public areas, and remove such trees when

they institute a hazard or impediment to public travel. [¶] B. Before removing any such

tree, the parks foreman shall give the adjoining property owner at least ten days’ advance

written notice thereof and of the property owner’s right to file an objection to the removal

with the commission, whose decision thereon shall be final. [¶] C. Before removing

any such tree, the parks foreman shall obtain the concurrence of the director of

community services or his designee. [¶] D. No such notice or concurrence shall be

required in the case of manifest public hazard and immediate necessity.”

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Redding Municipal Code section 13.40.050, entitled “Property owner –

Maintenance,” provides: “A. Notwithstanding Section 13.40.040, the parks foreman

may permit a property owner to maintain trees in the parking strip adjoining his property,

provided that the type of tree planted therein is one of the trees listed in the

comprehensive tree plan. [¶] B. All trimming and other maintenance work upon such

trees shall be done by a licensed tree trimmer as provided in section 13.40.070A or by the

owner under the general supervision of the parks foreman and in accordance with the

rules established by the comprehensive tree plan.”

Kunau purports to find support for a mandatory duty in Redding Municipal Code

sections 13.40.040 and 13.40.050, considered together. However, he primarily relies on

Redding Municipal Code section 13.40.040, subdivision (A). As the trial court observed,

subdivision (A) comes closest to establishing the existence of a duty (though not, as the

court concluded, close enough). Accordingly, we begin with subdivision (A).

Kunau emphasizes Redding Municipal Code section 13.40.040, subdivision (A)’s

use of the word “directed.” He notes that “direct” means, inter alia, “[t]o cause

(something or someone) to move on a particular course,” “[t]o guide (something or

someone); to govern,” and “[t]o instruct (someone) with authority.” (Black’s Law Dict.

(12th ed. 2024).) He suggests the compulsory nature of the word supports the notion that

subdivision (A) requires the parks foreman to maintain trees and thus establishes a

mandatory duty.

We readily accept that Redding Municipal Code section 13.40.040, subdivision

(A) imposes an obligation on the City, through the parks foreman, to maintain trees.

However, we are not convinced the enactment imposes a mandatory duty, rather than an

obligation to perform a discretionary function.

“While the dividing line between a discretionary and mandatory duty is not always

definitive, the California Supreme Court has articulated ‘rigid requirements for

imposition of governmental liability under . . . section 815.6.’ ” (San Mateo, supra, 213

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Cal.App.4th at p. 429.) “Even where an enactment imposes an obligation, it does not

necessarily follow that the obligation gives rise to a mandatory duty. The key question is

whether the obligation involves an exercise of discretion. As the Supreme Court

explained, ‘[i]t is not enough . . . that the public entity or officer have been under an

obligation to perform a function if the function itself involves the exercise of

discretion.’ ” (County of Los Angeles v. Superior Court (2012) 209 Cal.App.4th 543, 549

(County of Los Angeles).)

“Therefore, specific terms used in the enactment are not dispositive. For example,

in some contexts, use of the word ‘shall’ will impose a mandatory duty [citation], while

in others it will not [citation]. As the Court of Appeal explained in de Villers[ v. County

of San Diego (2007)] 156 Cal.App.4th[ 238,] 260): ‘In determining whether a mandatory

duty actionable under section 815.6 had been imposed, the Legislature’s use of

mandatory language (while necessary) is not the dispositive criteria. Instead, the courts

have focused on the particular action required by the statute, and have found the

enactment created a mandatory duty under section 815.6 only where the statutorily

commanded act did not lend itself to a normative or qualitative debate over whether it

was adequately fulfilled.’ ” (County of Los Angeles, supra, 209 Cal.App.4th at pp. 549-

550, italics omitted.) But if an enactment “leaves implementation to an exercise of

discretion, ‘lend[ing] itself to a normative or qualitative debate over whether [the duty]

was adequately fulfilled,’ an alleged failure in implementation will not give rise to

liability.” (State Hospitals, supra, 61 Cal.4th at p. 350.) A mandatory duty must thus be

based on a precisely formulated duty that is phrased in “explicit” and “forceful” language

and leaves no room for the public entity’s discretion or judgment. (Id. at p. 351; see also

Guzman v. County of Monterey, supra, 46 Cal.4th at pp. 910-911.)

Does Redding Municipal Code section 13.40.040, subdivision (A)’s instruction to

“maintain trees” amount to an explicit and forceful directive to the City or parks foreman

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that leaves no room for the exercise of discretion or judgment? We think the answer is

clearly, “no.”

Redding Municipal Code section 13.40.040, subdivision (A) does not direct the

parks foreman to maintain trees in any particular way. It does not establish specific

criteria for trimming low hanging branches or ensuring any minimum clearance between

such branches and the street or sidewalk. Subdivision (A) does not even require that

potentially hazardous branches be removed. Thus, subdivision (A) does not by its terms

impose any mandatory or ministerial duty on the City or parks foreman. If anything,

subdivision (A)’s use of the word “maintain” suggests an obligation involving the

exercise of discretion.

Redding Municipal Code section 13.40.010, subdivision (C) defines “maintain” to

include “trimming, pruning, cutting, spraying, fertilizing, propping, treating for disease or

injury and any other similar acts which promote the life, growth, health or beauty of trees,

except watering, unless specifically so stated.” The definition does not specifically

require that the parks foreman remove low hanging branches or ensure any minimum

clearance from such branches to the street or sidewalk. The definition instead leaves the

decision how best to maintain trees to the parks foreman. It is up to the parks foreman,

then, to decide whether low hanging branches should be pruned or trimmed (and if so, by

how much), or whether they should instead be propped or treated for disease or injury.

These are judgment calls that entail an evaluation and balancing of numerous

considerations, such as the needs of the particular tree, the time of year, weather and

hydrologic conditions, and the allocation of resources to other trees within the City. (See,

e.g., Bossi v. State of California (1981) 119 Cal.App.3d 313, 320 [“By definition,

highway maintenance involves considerable discretion. The department is not required

by law to simultaneously repair every portion of highway under its jurisdiction. It must

allocate its limited resources according to various priorities”].)

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That Redding Municipal Code section 13.40.040, subdivision (A) contemplates

that the parks foreman will exercise discretion in performing his duties can also be seen

in the direction that he “remove such trees when they institute a hazard or impediment to

public travel.” Here, again, the decision whether a tree should be removed, rather than

rehabilitated or restored to health, must equally involve considered judgment and the

application of expertise. At a minimum, the parks foreman would have to decide whether

the hazard was such that written notice of removal should be given to the adjoining

property order and the concurrence of the director of community services obtained (as

required by Redding Municipal Code section 13.40.040, subdivisions (B) and (C)), or

whether those procedures should be bypassed due to “manifest public hazard and

immediate necessity” (as permitted by subdivision (D)). Thus, the enactment as a whole

“leaves implementation to an exercise of discretion, ‘lend[ing] itself to a normative or

qualitative debate over whether [the duty] was adequately fulfilled.’ ” (State Hospitals,

supra, 61 Cal.4th at p. 350.)

County of Los Angeles provides a helpful analogy. There, the plaintiffs sued the

County of Los Angeles (county) and others after they were attacked by two pit bulls that

were running loose. (County of Los Angeles, supra, 209 Cal.App.4th at p. 547.) The

plaintiffs’ complaint alleged that county’s animal control department failed to comply

with an ordinance that said: “ ‘No animal shall be allowed to constitute or cause a

hazard, or be a menace to the health, peace or safety of the community.’ ” (Ibid.) The

ordinance instructed that the department “ ‘shall capture and take into custody . . . [a]ny

animal being kept or maintained contrary to the provisions of this Division.’ ” (Ibid.)

The trial court concluded the above-cited enactments gave rise to a mandatory duty to

take custody of the pit bulls before the attack. (Id. at p. 548.) The Court of Appeal

disagreed, stating “what constitutes a ‘hazard’ or ‘menace to the health, peace or safety of

the community’ is an inherently subjective question which requires the exercise of

considerable discretion based on consideration of a host of competing factors.

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[Citations.] It involves ‘debatable issues over whether the steps taken by the entity

adequately fulfilled its obligation.’ ” (Id. at p. 550.) So too here.

Redding Municipal Code section 13.40.050 does not change our conclusion.

Kunau points to subdivision (B), which provides, again, that maintenance work on

municipal trees “shall be done by a licensed tree trimmer” or an adjoining property owner

“under the general supervision of the parks foreman and in accordance with the rules

established by the comprehensive tree plan.”3 Kunau suggests subdivision (B)’s

reference to “the general supervision of the parks foreman” establishes the imposition of

a mandatory duty, when viewed in combination with Redding Municipal Code section

13.40.040. We disagree. That the parks foreman may supervise property owners from

time to time does not demonstrate that the drafters of the ordinance intended to make tree

maintenance a ministerial function. Nothing in subdivision (B) supports that view,

whether alone or in combination with Redding Municipal Code section 13.40.040.

Based upon our independent review, we conclude neither Redding Municipal

Code section 13.40.040 nor Redding Municipal Code section 13.40.050 constitute an

enactment imposing a mandatory duty on the City to care for trees, whether considered

separately or together. Accordingly, the trial court properly struck the allegations

referring to section 815.6 from the first amended complaint, and the petition must

therefore be denied.

3 Kunau does not argue before us that support for the existence of a mandatory duty can

be found in “the rules established by the comprehensive tree plan.”

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III. DISPOSITION

The writ petition is denied. In the interests of justice, the parties shall bear their

own costs in this writ proceeding. (Cal. Rules of Court, rule 8.493(a)(1)(B).)

/S/

RENNER, J.

We concur:

/S/

DUARTE, Acting P. J.

/S/

MESIWALA, J.

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