ATASH vs CITY OF ALBANY, CALIFORNIA

25CV146958: ATASH vs CITY OF ALBANY, CALIFORNIA 09/10/2026 Hearing on Demurrer Demurrer to Plaintiff's First Amended Complaint; filed by CITY OF ALBANY, CALIFORNIA (Defendant) CRS# 839754522045 in Department 16

Tentative Ruling - 09/09/2026 Victoria Kolakowski

Defendant City of Albany's Demurrer to the cause of action for breach of mandatory duty within the First Amended Complaint is sustained with leave to amend.

I.

Background

Plaintiff Nur Atash filed a First Amended Complaint against Albany arising from alleged damage that his vehicle sustained when an unsecured steel storm drain grate (located on or next to Gateview Avenue) became loose and struck his vehicle. (1st Am. Compl. ¶¶ 17–22, Feb. 19, 2026.) As relevant here, Atash asserted a cause of action for breach of mandatory duty. (Id. ¶¶ 59–66.) Atash alleged that the City had a mandatory duty to “protect members of the public from the risk of injury arising from dangerous conditions of public streets and storm drainage infrastructure.” (Id. ¶ 61.) For support, Atash cited to sections 5610, 5611 of the Streets and Highways Code, and section 835 of the Government Code. (Id.)

Albany demurred to the cause of action for breach of mandatory duty. (Notice Dem. & Dem. 1st Am. Compl., Mar. 24, 2026.) The City partly argued that the statutes cited by Atash in the First Amended Complaint did not show the existence of a mandatory duty. (Mem. Supp. Dem. 1st Am. Compl. 3:23–7:6, Mar. 24, 2026.) On September 1, 2026, the City filed a notice of nonopposition to the Demurrer. (See Albany’s Notice Non-opp’n to Dem. 1st Am. Compl., Sept. 1, 2026.) Two days later, Atash opposed the Demurrer. (Opp’n to Dem. 1st Am. Compl.)

II.

Legal Standard

A party may demur to a complaint if it “does not state facts sufficient to constitute a cause of action” or is “uncertain.” (Cal. Civ. Proc. Code § 430.10(e), (f); see also § 425.10(a)(1) (A complaint must contain “[a] statement of the facts constituting the cause of action, in ordinary and concise language.”).) The court must liberally construe the complaint “with a view to substantial justice between the parties.” (Cal. Civ. Proc. Code § 452; see also Perez v. Golden Empire Trans. Dist. (2012) 209 Cal. App. 4th 1228, 1238 (“This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.”).)

III.

Discussion

At the threshold, the Court notes that it did not consider Atash’s untimely opposition. An opposition is due nine court days before the hearing. (Cal. Civ. Proc. Code § 1005(b).) Here, nine court days before September 10, 2026, is August 27, 2026. Atash filed his opposition on September 3—four court days before the hearing, two days after the City filed a notice of nonopposition, and a day after Albany’s reply would have been due. (See § 1005(b) (providing that a reply is due “at least five court days before the hearing”).)

Further, counsel’s declaration does 25CV146958: ATASH vs CITY OF ALBANY, CALIFORNIA 09/10/2026 Hearing on Demurrer Demurrer to Plaintiff's First Amended Complaint; filed by CITY OF ALBANY, CALIFORNIA (Defendant) CRS# 839754522045 in Department 16 not explain why he waited until September 3 to file the opposition. (See Shalaby Decl. Opp’n to Dem. 1st Am. Compl. ¶ 3, Sept. 3, 2026 (declaring that he marked the opposition deadline as August 26 and “the deadline was incorrectly tracked”).) With that threshold issue settled, the Court next considers the merits of Albany’s Demurrer.

The Court sustains the Demurrer to the cause of action for breach of mandatory duty with leave to amend.

With exception, a public entity is liable for an injury proximately caused by the public entity’s breach of a “mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury.” (Cal. Gov’t Code § 815.6.) An action under section 815.6 has three elements: “(1) a mandatory duty was imposed on the public entity by an enactment; (2) the enactment was designed to protect against the particular kind of injury allegedly suffered; and (3) the breach of the mandatory statutory duty proximately caused the injury.” (B.H. v.

County of San Bernardino (2015) 62 Cal. 4th 168, 179.) The first element requires that “the enactment at issue be obligatory, rather than merely discretionary or permissive, in its directions to the public entity.” (Id. at 180 (quoting Guzman v. County of Monterey (2009) 46 Cal. 4th 887, 898).) The enactment “must require, rather than merely authorize or permit, that a particular action be taken or not taken.” (Id. (quoting same).) “Courts have construed this first prong rather strictly, finding a mandatory duty only if the enactment ‘affirmatively imposes the duty and provides implementing guidelines.’” (Id. (quoting same).)

Here, the Court finds that Atash did not identify a mandatory duty imposed by a constitutional provision, statute, charter provision, ordinance, or regulation. (See Cal. Gov’t Code § 810.6 (defining “enactment” as “constitutional provision, statute, charter provision, ordinance or regulation”).) Section 5610 provides that property owners shall maintain sidewalks to “not endanger persons or property and maintain it in a condition which will not interfere with the public convenience in the use of those works or areas.” (Cal.

Sts. & High. Code § 5610.) Next, section 5611 provides that the “superintendent of streets” must notify a property owner that a sidewalk is needing repair “[w]hen any portion of the sidewalk is out of repair or pending reconstruction and in condition to endanger persons or property or in condition to interfere with the public convenience in the use of such sidewalk.” (§ 5611.) And section 835 provides that a public entity is liable for injuries caused by a dangerous condition on its property. (Cal.

Gov’t Code § 835.) None of the statutes cited by Atash impose upon Albany a mandatory duty to maintain steel storm drain grates located on or next to public roads.

The Court permits Atash an opportunity to allege the existence of specific enactment that imposes upon Albany a mandatory duty to maintain steel storm drain grates located on or next to public roads.

IV. Orders The Demurrer is sustained with leave to amend.

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

25CV146958: ATASH vs CITY OF ALBANY, CALIFORNIA 09/10/2026 Hearing on Demurrer Demurrer to Plaintiff's First Amended Complaint; filed by CITY OF ALBANY, CALIFORNIA (Defendant) CRS# 839754522045 in Department 16

Atash must file an amended complaint no later than 20 days after Albany serves notice of entry of this order.

***

The Demurrer filed by CITY OF ALBANY, CALIFORNIA on 03/24/2026 is Sustained with Leave to Amend.

Maria Nozzolino (Attorney) representing CITY OF ALBANY, CALIFORNIA (Defendant) must forthwith serve a copy of this order on all counsel of record and self-represented parties, and file proof of service.

If a party does not timely contest the foregoing Tentative Ruling and appear at the hearing, the Tentative Ruling will become the order of the court.

How Do I Contest a Tentative Ruling? Find your case in eCourt at https://eportal.alameda.courts.ca.gov/ using “Case Search” or “Calendar Search” (after you log in) Select the Tentative Rulings Tab Select "Click to Contest this Ruling" Enter your name and briefly identify the issues you wish to argue. Select "Proceed"

You must also notify the department via email (Dept16@alameda.courts.ca.gov) and opposing parties by no later than 4:00 PM, one court day before the scheduled hearing.

Please provide this information to any opposing parties.

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SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

25CV146958: ATASH vs CITY OF ALBANY, CALIFORNIA 09/10/2026 Hearing on Demurrer Demurrer to Plaintiff's First Amended Complaint; filed by CITY OF ALBANY, CALIFORNIA (Defendant) CRS# 839754522045 in Department 16