Judge Lisa R. Jaskol, Case Number: 19STCV46120, Date: 2023-08-21 Tentative Ruling

All parties are urged to meet and confer with all parties concerning this tentative ruling to see if they can reach an agreed-upon resolution of their matter.  If you are able to reach an agreement, please notify the courtroom staff in advance of the hearing if you wish to submit on the tentative ruling rather than argue the motion by notifying the court by e-mailing the court at: SSCDEPT28@lacourt.org. Include the word "SUBMITS" in all caps and the Case Number in the Subject line. In the body of the email, please provide the date and time of the hearing, your name, your contact information, the party you represent, and whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, intervenor, or non-party, etc.

            Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may still appear at the hearing and argue the matter, and the court could change its tentative based upon the argument. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If you submit, but still intend to appear, include the words "SUBMITS, BUT WILL APPEAR" in the Subject line.    If you elect to argue your matter, you are urged to do so remotely, via Court-Connect.

            Note that once the Court has issued a tentative, the Court has the inherent authority not to allow the withdrawal of a motion and to adopt the tentative ruling as the order of the court.

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Having considered the moving, opposing and reply papers, the Court rules as follows.

On December 19, 2019, Plaintiff Erick Melara (“Plaintiff”) filed this action against Defendants David Higuera ("Higuera"), Union Pacific Railroad (“Union Pacific”), and Does 1-100 for negligence, negligence per se, vicarious liability, negligent entrustment of a motor vehicle and negligent hiring, retention, supervision and training.

On June 17, 2021, the Court dismissed the action without prejudice under Code of Civil Procedure section 581, subdivision (b)(3). On August 6, 2021, the Court granted Plaintiff’s motion to vacate the dismissal.

On October 12, 2021, Union Pacific filed an answer. On February 28, 2022, Higuera filed an answer.

On October 25, 2022, Plaintiff amended the complaint to include Defendant Nolan Dooley as Doe 1.

On June 1, 2023, Union Pacific filed a motion for summary judgment or, in the alternative, summary adjudication set to be heard on August 15, 2023. The Court continued the hearing to September 11, 2023. On August 1, 2023, Plaintiff filed an opposition. On August 10, 2023, Union Pacific filed a reply.

Union Pacific requests that the Court grant summary judgment or, in the alternative, summary adjudication.

“‘[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.’” (LAOSD Asbestos Cases (2023) 87 Cal.App.5th 949, 945, quoting Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar)) “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Aguilar, supra, 25 Cal.4th at p. 850.)

When the moving party is a defendant, it must show that the plaintiff cannot establish at least one element of the cause of action. (Aguilar, supra, 25 Cal.4th at p. 853.) “The defendant has shown that the plaintiff cannot establish at least one element of the cause of action by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.) The defendant must “present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Ibid.) Thus, “the defendant must ‘support[ ]’ the ‘motion’ with evidence including ‘affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice’ must or may ‘be taken.’ [Citation.] The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff’s cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.” (Id. at p. 855, original emphasis.)

“Supporting and opposing affidavits or declarations . . . shall set forth admissible evidence.” (Code Civ. Proc., § 437c, subd. (d).) “Matters which would be excluded under the rules of evidence if proffered by a witness in a trial as hearsay, conclusions or impermissible opinions, must be disregarded in supporting affidavits.” (Hayman v. Block (1986) 176 Cal.App.3d 629, 639.)

In addition, a party moving for summary judgment or summary adjudication must support the motion with “a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence.” (Parkview Villas Assn. v. State Farm Fire & Casualty Co. (2006) 133 Cal.App.4th 1197, 1209 (Parkview Villas), quoting Code Civ. Proc., § 437c, subd. (b)(1).) The party opposing the motion must file with the opposition papers “a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating whether the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts that the opposing party contends are disputed. Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence.” (Code Civ. Proc., § 437c, subd. (b)(3).) If either party fails to comply with the applicable separate statement requirement, that failure may in the court’s discretion constitute a sufficient ground to decide the motion adversely to the offending party. (Code Civ. Proc., § 437c, subds. (b)(1), (3).)

In ruling on the motion, the court must consider all the evidence and all the inferences reasonably drawn from it and must view such evidence and inferences in the light most favorable to the opposing party. (Aguilar, supra, 25 Cal.4th at p. 843.)

“The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1159.)

“Landowners under California law are required to maintain land in their possession and control in a reasonably safe condition.” (Williams v. Fremont Corners, Inc. (2019) 37 Cal.App.5th 654, 663 (Williams), citing Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674 (Ann M.).) “The underlying principle, set forth in Civil Code section 1714, subdivision (a), is that “‘[e]veryone is responsible ... for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person . . . .’” (Ibid.) This rule “‘establishes the general duty of each person to exercise, in his or her activities, reasonable care for the safety of others.’” (Ibid., quoting Vasilenko v. Grace Family Church (2017) 3 Cal.5th 1077, 1083 (Vasilenko); see Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 214 (Brown).)

“ ‘ “ ‘Courts ... invoke[ ] the concept of duty to limit generally “the otherwise potentially infinite liability which would follow from every negligent act ....” ’ ” ’ ” (Williams, supra, 37 Cal.App.5th at p. 663, quoting Vasilenko, supra, 3 Cal.5th at p. 1083.) “Our Supreme Court has explained that an exception to the general rule of Civil Code section 1714 must be “ ‘ “ ‘clearly supported by public policy.’ ” ’ ” (Ibid., quoting Vasilenko, supra, 3 Cal.5th at p. 1083.) “Courts look to what are commonly called ‘the Rowland factors’ in determining whether policy considerations favor such an exception.” (Ibid., citing Vasilenko, supra, 3 Cal.5th at p. 1083.) “These are “ ‘ “the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.” (Rowland [v. Christian (1968)] 69 Cal.2d [108,] 113, 70 Cal.Rptr. 97, 443 P.2d 561 [(Rowland)].)’ ” (Ibid., quoting Vasilenko, supra, 3 Cal.5th at p. 1083.)

In considering the Rowland factors, the court “determine[s] ‘not whether they support an exception to the general duty of reasonable care on the facts of the particular case before us, but whether carving out an entire category of cases from that general duty rule is justified by clear considerations of policy.’ ” (Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 629.)

In addition, “[c]ausation is an essential element of plaintiff’s complaint.” (Christoff v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 126 (Christoff).) “Causation may be determined as a question of law if reasonable minds would not differ.” (Ibid.) “If causation is lacking, the complaint cannot stand.” (Ibid. [“the trial court’s ruling of lack of causation disposes of the entire complaint and suffices to affirm summary judgment in favor of defendant”].)

A. Union Pacific has carried its initial summary judgment burden on the issues of duty and causation

“As a general rule, an owner or possessor of land owes no duty to warn of obvious dangers on the property.” (Christoff, supra, 134 Cal.App.4th at p. 126.) “[T]he presence of railroad tracks is a warning of an open and obvious danger.” (Ibid.) “ ‘A railroad track upon which trains are constantly run is itself a warning to any person who has reached years of discretion, and who is possessed of ordinary intelligence, that it is not safe to walk upon it, or near enough to be struck by a passing train . . . .’ ” (Ibid., quoting Holmes v. South Pac. Coast Ry. Co. (1893) 97 Cal. 161, 167, and citing Green v. Los Angeles Terminal Ry. Co. (1903) 143 Cal. 31, 36 [the railroad track must itself be regarded as a sign of danger].)

On December 26, 2017, Plaintiff was struck by a train as he was walking to work on Union Pacific’s railroad tracks. At the time, Plaintiff was wearing earbuds and listening to music. (UMF 1-2.)

Plaintiff knew that he was walking on active tracks where trains traveled. (Witkin Dec., Exh. B (Depo.) p. 17.) He understood that railroad tracks are dangerous. (Depo. pp. 16-17.) He understood that railroad tracks themselves are a warning of danger.^{^[1]} (Depo. p. 48.) He understood that he did not have permission from Union Pacific to be on the tracks.^{^[2]} (Depo. p. 16.)

Previously, when walking on the railroad tracks, Plaintiff moved to the side as soon as he heard the train’s whistle. (Depo. p. 54.) “Anybody – even the people that walk with me. Anybody. ‘Oh, hey, train. Let’s go. Let’s get off.’ ” (Depo. p. 54.)

Plaintiff could have walked on a sidewalk or alleyway but he was feeling lucky that day and thought he was going to find something that had been left on the railroad tracks. (Depo. pp. 53, 56.) The railroad tracks were also a shortcut to get to his destination faster. (Depo. p. 55.) He knew, however, that the railroad tracks were not the safest route he could be taking. (Depo. pp. 54-55.)

When Plaintiff got onto the railroad tracks, he lowered his music and started looking down to see if he could find anything. (Depo. p. 56.) Then his girlfriend called him and he spoke with her on the phone. (Depo. p. 56.) “Right when [Plaintiff] got off the phone with [his girlfriend], you could say two minutes later, everything went black.” (Depo. pp. 56-57.) The next thing Plaintiff remembers was that he was under the train and someone was asking him if he was okay. (Depo. p. 57.)

Plaintiff never heard a train honk or whistle before the train hit him. (Depo. pp. 14-15, 51, 54.) Plaintiff admits, however, that “the whistle was sounded in a toot, toot succession up and until the engineer finally placed the train into emergency braking approximately 7-8 car lengths away from impacting [Plaintiff].” (Opposition p. 6.)

Asked if he had any regrets about his actions that day, Plaintiff responded that he should have paid more attention to his surroundings. (Depo. p. 56.)

With this evidence, Union Pacific has carried its initial burden on summary judgment of proving it had no duty to protect Plaintiff from an open and obvious danger. (See Rowland, supra, 69 Cal.2d at p. 113; Christoff, supra, 134 Cal.App.4th at p. 126.) In addition, Union Pacific has carried its initial burden on summary judgment of proving its actions did not cause Plaintiff’s injury. (See Christoff, supra, 134 Cal.App.4th at p. 126.) The burden on these negligence issues is shifted to Plaintiff.

B. Union Pacific has carried its initial summary adjudication burden on the issue of federal preemption

Plaintiff’s claim for negligent hiring, retention, supervision and training is preempted by the Federal Railroad Safety Act.

Congress enacted the Federal Railroad Safety Act (FRSA) in 1970 “to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents.” (49 U.S.C. § 20101.) The FRSA contains an express preemption clause stating, in part: “A State may adopt or continue in force a law, regulation, or order related to railroad safety . . . until the Secretary of Transportation . . . prescribes a regulation or issues an order covering the subject matter of the State requirement.” (49 U.S.C. § 20106(a)(2).) FRA regulations generally preempt covered state and local statutes and regulations, as well as covered common law tort claims. (CSX Transp., Inc. v. Easterwood (1993) 507 U.S. 658, 664 (CSX Transp.); Fair v. BNSF Railway Co. (2015) 238 Cal.App.4th 269, 278; Prentice v. National Railroad Passenger Corporation (N.D.Cal. 2014) 2014 U.S. Dist. LEXIS 108585 at p. *16, 2014 WL 3868221 (Prentice).) Under the governing standard, a state law relating to railroad safety will be preempted if its subject matter is “substantially subsume[d]” by federal regulation. (CSX Transp., supra, 507 U.S. at p. 664.) A state law or regulation “ ‘covers the same subject matter’ as an FRA regulation if it addresses the same safety concerns as the FRA regulation.” (Burlington Northern R. Co. v. State of Mont. (9th Cir. 1989) 880 F.2d 1104, 1105.) A party may still seek damages under state law, however, for injury resulting from a railroad’s failure to comply with federal regulations or the railroad’s own rules created pursuant to federal regulation. (49 U.S.C. § 20106(b)(1)(A), (B).)

FRA regulations prescribe standards for the “eligibility, training, testing, certification and monitoring” of locomotive engineers. (49 C.F.R. § 240.1(b) (2015).) Among other things, these regulations establish criteria for eligibility of an individual as a locomotive engineer based on prior safety conduct (49 C.F.R. § 240.109); require the railroad to provide training on personal safety, operating rules and practices, condition of equipment, train handling, and safety rules (49 C.F.R. § 240.123); require testing for qualification as a locomotive engineer (49 C.F.R. § 240.125); require the railroad to determine that a person demonstrates safe skills, including proper application of rules, prior to certifying the person as an engineer (49 C.F.R. § 240.211); require procedures for monitoring the performance of locomotive engineers (49 C.F.R. § 240.129); and require locomotive engineers to be recertified every three years (49 C.F.R. § 240.201). 49 Code of Federal Regulations, part 240.5, states that these regulations generally preempt any state law or regulation covering the same subject matter.

Plaintiff’s state law claims for negligent hiring, training, supervision, and retention of a locomotive engineer therefore are preempted by FRA regulations. (Prentice, supra, 2014 U.S. Dist. LEXIS 108585, at pp. *18-29, 2014 WL 3868221 [“claims based on a state law standard of care regarding negligent hiring, supervision, discipline or retention” of engineer preempted]; see Union Pacific R. Co. v. California Public Utilities (9th Cir. 2003) 346 F.3d 851, 868; Carter v. AMTRAK (N.D.Cal. 2014) 63 F. Supp.3d 1118, 1155-1157; Abboud v. Union Pac. R.R. Co. (N.D.Cal. 2004) 2004 U.S. Dist. LEXIS 32245, at pp. *30-31.) Rather than base claims for negligent hiring, training, and retention on a state law standard, “the only state law claim that a plaintiff may pursue on these subjects must demonstrate that the railroad violated the federal standards set forth in the FRA regulations.” (Prentice, supra, 2014 U.S. Dist. LEXIS 108585, at p. *27, 2014 WL 3868221.)

It is undisputed that Union Pacific Engineer David Higuera was certified as an engineer by the FRA at the time of the accident. (UMF 7.) Plaintiff has failed to identify any violation of an FRA regulation (or a railroad rule based on a federal regulation) with respect to Higuera’s hiring, training, supervision, or retention. Without evidence of such a violation, Plaintiff’s claim “is based only a state law duty of care, which is preempted.” (Prentice, supra, 2014 U.S.Dist. LEXIS 108585, at pp. *25-26, 2014 WL 3868221.) Therefore, Union Pacific has carried its initial burden on summary adjudication for this claim.

The Court has reviewed Plaintiff’s evidence and arguments. The lack of a functioning event recorder on the train does not raise a triable issue regarding the open and obvious nature of the danger, causation, or Higuera's hiring, training, supervision, or retention. The same is true of Plaintiff's other evidence and arguments. Plaintiff has failed to carry his burden of raising a triable issue of material fact concerning Union Pacific’s duty, causation, or federal preemption.

Therefore, the Court grants Union Pacific’s motion for summary judgment. The Court also grants Union Pacific’s motion for summary adjudication of Plaintiff’s separate claims.

The Court GRANTS Union Pacific Railroad’s motion for summary judgment. In the alternative, the Court GRANTS Union Pacific Railroad’s motion for summary adjudication of all claims.

Moving party is ordered to file the proof of service of this ruling with the Court within five days.

[1] Later in the deposition Plaintiff changed his testimony on this point and stated it was not dangerous to walk on the railroad tracks “because I walk there often.” (Depo p. 59.) He did not, however, retract his testimony that he knew he was walking on active tracks where trains traveled.

[2] Asked again if he agreed he did not have permission to be on the tracks, Plaintiff said, “No, I don’t agree because there’s no signs, so there’s no sign, there’s nobody telling me, so I’m going to pursue what I’m doing because I’ve been doing it for years.” (Depo p. 16.)