# Kunau v. Superior Court CA3

> California Court of Appeal · May 1, 2026

URL: https://www.frixlaw.com/law-library/cases/11319184

## Case

- **Court:** California Court of Appeal
- **Decided:** May 1, 2026
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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

6
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

7
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11319184. Public record. Not legal advice.