Shin v. BNSF Railway Co. CA4/2

Filed 12/2/14 Shin v. BNSF Railway Co. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
YONGPAL SHIN,
Plaintiff and Appellant, E060056
v. (Super.Ct.No. RIC10016873)
BNSF RAILWAY COMPANY, OPINION
Defendant and Respondent.
APPEAL from the Superior Court of Riverside County. Daniel A. Ottolia, Judge.
Affirmed.
Law Offices of Baird A. Brown and Baird A. Brown, for Plaintiff and Appellant.
Sims Law Firm, Michael E. Murphy, and Selim Mounedji, for Defendant and
Respondent.
Plaintiff and Appellant Yongpal Shin appeals the grant of summary judgment in
favor of defendant and respondent BNSF Railway Company (BNSF). Shin’s 14-year-old
son, Samuel Shin, was hit by a Metrolink train while crossing the tracks on his way to
Arlington High School in Riverside. At the crossing where Samuel was hit, there were
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two sets of tracks. Just prior to the accident, the bells and lights were activated and the
gate for cars came down in anticipation of a first train that was going to go through the
crossing. Samuel waited as the first train passed in the westbound direction. However,
once it passed, and despite the car gates still being down and the lights still being
activated, he went under or around the gate and crossed the tracks. Tragically, at that
same time, a train was traveling eastbound on the other set of tracks. Samuel was hit by
the train and died at the scene.
Shin filed a complaint against several defendants, including BNSF. He filed suit
for negligence and premises liability. Shin contended that despite all of the existing
warnings in place, which complied with orders promulgated by the California Public
Utilities Commission (CPUC), BNSF had a duty to install pedestrian gates and additional
warning signs for the two sets of tracks. BNSF filed a motion for summary judgment and
the trial court granted BNSF’s summary judgment motion.
Shin claims on appeal that there was a triable issue of fact as to BNSF’s
negligence in failing to put in additional warning devices at the grade crossing, such as a
pedestrian gate and/or some additional warning about the potential for encountering two
trains at the same time at the grade crossing. We conclude that the motion for summary
judgment was properly granted.
I
STATEMENT OF FACTS
The following facts are taken from the undisputed material facts presented by
BNSF, the additional facts provided by Shin to which BNSF objected but that objection
2
was overruled by the trial court and other documents attached to the moving papers as
necessary.
Samuel was 14 years old when he was struck by a train while attempting to cross
two sets of railroad tracks at the Jackson Street crossing in Riverside on April 22, 2009.
Samuel had to cross the tracks to get to Arlington High School. He had crossed the
tracks approximately 140 to 147 times prior to that day. Samuel was familiar with the
crossing and knew there were two sets of tracks. As he walked toward the railroad tracks
that day, another student, David Mount, walked several feet behind Samuel.
The two sets of tracks at Jackson Street were clearly visible as pedestrians
approached the crossing. The railroad grade crossing was equipped with the usual active
warning devices, which included red flashing lights, red and white crossing gates, and
audible bells. The crossing also had passive warning devices that included a sign
warning of two tracks, railroad cross-bucks and the two sets of tracks that were clearly
visible. These warning devices were clearly visible to Mount and Shin.
As Shin and Mount approached the crossing, the flashing lights, bells and the
lowering car gates provided audible and visual warnings of an approaching train. A train
was traveling westbound and sounded its horn. Shin and Mount both stopped out of
harm’s way of the first train. Both Mount and Shin waited until the first train passed the
crossing.
After the westbound train cleared the crossing, the crossing warning devices
continued to be activated. In addition to these warnings, a second train, that was
traveling eastbound, sounded its horn. The eastbound train was clearly visible from
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where Samuel and Mount stopped to wait for the westbound train. The warning devices
operated normally at all times and provided over 40 seconds of constantly active warning
of the approaching trains.
Despite the warning devices still being activated, Samuel “negligently” started to
move across the railroad tracks. Mount yelled to Samuel to stop because he saw the
approaching eastbound train. Samuel did not respond and was hit by the train.
In 1974, the CPUC authorized a request from the City of Riverside to update the
Jackson Street crossing to include four CPUC Standard No. 9 automatic car gates and
they were installed in 1975. In 1995, a second set of tracks was installed at the crossing.
Samuel was the only pedestrian versus train accident that had ever occurred at the
Jackson Street grade crossing.
At the time of the accident, the warning devices at the Jackson Street crossing
consisted of CPUC Standard No. 8 flashing lights, CPUC Standard No. 9 automatic
gates, crossbuck signs, and “two track” signs, which complied with CPUC General Order
75-D (75-D) which was the regulatory order for crossings for cars and pedestrians. The
segment at the Jackson Street crossing was authorized to have trains travel at a maximum
speed of 80 miles per hour.
Shin presented additional facts that the train that hit Samuel was traveling at 55
miles per hour and only five or six seconds elapsed between the time the first and second
train passed the crossing. The crossing abutted Arlington High School. It had no
pedestrian protection such as gates, barriers, walkways or overpasses. The car gates did
not extend over the sidewalk. It was a rare occurrence for two trains to converge at the
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Jackson Street crossing; Mount estimated it was once or twice each month. Mount had
taken a step toward the tracks after the first train passed, but stopped because he heard the
second train and saw it approaching. Samuel did not appear to hear Mount yell at him to
stop.
II
PROCEDURAL BACKGROUND
A. Complaint
Shin filed a wrongful death action against Southern California Regional Rail
Authority (SCRRA) dba Metrolink; Riverside Unified School District; and BNSF on
February 8, 2010.1 He alleged causes of action for general negligence and premises
liability. He specifically alleged against BNSF as to negligence and premises liability
that “Defendants negligently maintained a dangerous condition (railroad crossing
unguarded as to pedestrians), failed to warn of the dangerous condition, failed to protect
against the dangerous condition, and failed to take precautions to protect school students
such as Samuel Shin.”
It was further alleged that BNSF owned public property upon which a dangerous
condition existed, the public entity had actual notice of the existence of the dangerous
condition in sufficient time prior to the injury to have corrected it, and the condition was
created by employees of the defendant public entity.
BNSF filed an answer denying all of the allegations in the complaint.
1 BNSF is the only defendant remaining in this case as the school district was
dismissed in the trial court and Shin dismissed his appeal against Metrolink.
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B. Summary Judgment Motion Filed by BNSF
On January 26, 2012, BNSF filed its summary judgment motion. The motion was
based on the separate statement of undisputed facts, the declarations of Dennis Skeels,
John Shurson and David Mount, and other attached exhibits. It asked for summary
adjudication of seven issues as follows:
Issue 1: BNSF contended it complied with its duty to provide reasonable warning
of the presence of the tracks. The warning devices all worked. It argued that there were
clearly visible and audible warnings of the dual tracks. This included red flashing lights,
red and white crossing gates, and audible bells. There were signs warning of two tracks,
railroad cross-bucks, and the two tracks were clearly visible. Shin stopped for the first
train showing the tracks and warnings were visible to him.
Issue 2: BNSF contended that it had no duty to install other warning devices at the
Jackson Street crossing such as pedestrian gates, barriers, walkways, or to put other
warning signs. BNSF argued that the two tracks at the Jackson Street crossing were open
and obvious, and therefore, the conditions served as a reasonable warning. It had no duty
to warn that trains may use both sets of tracks at Jackson Street.
As part of this argument, BNSF contended that it was precluded by state law from
putting up additional warning devices and signs. BNSF stated that the CPUC had the
exclusive regulatory authority and 75-D defined the scope of adequate warning devices at
public railroad grade crossings in California. According to 75-D, the warnings required
were two Standard No. 8 flashing lights, bells, and four Standard No. 9 automatic gates.
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In addition, California Public Utilities section 17592 states that the CPUC has exclusive
jurisdiction to regulate warning devices and construction of railroad crossings. This
precluded superior court intervention about the adequacy of the warnings at Jackson
Street.
BNSF also cited to section 1202, which provides that the CPUC has the exclusive
power over installation, alteration, operation, maintenance, use and protection at grade
crossings. 75-D was the exclusive regulation on the warning devices required for
crossings. Moreover, the CPUC had to approve any additions to the approved warnings.
Shin did not allege that the exiting warning devices at the Jackson Street crossing
violated 75-D. The trial court lacked subject matter jurisdiction to base a finding of
negligence and damages on the existence, adequacy, and safety of the CPUC authorized
signs and devices. Finding that the warning devices were inadequate would interfere
with the regulatory power of the CPUC. BNSF had a complete defense to the negligence
and premises liability claims regarding its duties at the crossing.
BNSF also claimed that it would have been illegal for it to post an additional
warning sign because local authorities had jurisdiction over Jackson Street.
Issue 3: BNSF also contended it had no duty to provide a crossing guard. That
was controlled by city or county government.
Issue 4: BNSF further argued that no evidence supported the elements of a
dangerous condition of property. BNSF alleged that the railroad track itself was a
2 All further statutory references are to the California Public Utilities Code
unless otherwise indicated.
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warning of possible danger. BNSF complied with reasonable warning of the presence of
the tracks and the crossing had been safely crossed for 50 years before the accident
involving Samuel. Samuel himself had crossed 140-147 times without incident.
Issue 5: BNSF also provided that it had done nothing or failed to do anything that
caused or contributed to the accident. The undisputed facts proved that BNSF was free of
negligence. Samuel’s negligence was the only substantial factor in causing the accident.
Samuel was negligent per se. Samuel ignored the warning devices that were in place.
Issues 6 and 7 involved preemption by federal law as to the speed of the trains and
two trains passing each other at the crossing.
BNSF attached several exhibits. Shawn Casteel was a police officer. In his
deposition, he stated that Vehicle Code section 22451 required a pedestrian shall not
proceed if a ‘“clearly visible electric or mechanical signal gives warning of the approach
or passage of a train’ and ‘[a]n approaching train is plainly visible or emitting an audible
signal and by reason of its speed or nearness is an immediate hazard.’” In his opinion,
Samuel violated the Vehicle Code.
BNSF also attached 75-D. It included language that, “IT IS HEREBY ORDERED
by the Public Utilities Commission of the State of California, that the following
regulations governing the standards for warning devices for at-grade highway-rail
crossings for motor vehicles, pedestrians, and/or bicycles, hereinafter referred to as at-
grade crossings, be observed in this State unless otherwise authorized or directed by the
Commission.” The purpose of the rules was “to reduce hazards associated with at-grade
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crossings by establishing uniform standards for warning devices for at-grade crossings in
the State of California, . . .”
75-D then set forth the specifications for crossings: (1) crossbuck sign; (2)
Standard No. 8, which was defined as an automatic flashing light signal, which flashed
red lights when a train was approaching; (3) Standard No. 8-A which required additional
flashing lights on a cantilever arm; and (4) Standard No. 9 which was an automatic gate
arm with Standard No. 9-A flashing lights. The gate must have arms down 20 seconds
before at-grade crossing by a train and not go up until the back of the train clears the
crossing and no other train is approaching. Bells must be included with automatic
warning devices. As for modifications of these warnings, 75-D provided, “The removal,
reduction, addition, or change in type of warning devices at each public at-grade
crossing, . . . shall not be permitted unless authorized by the Commission.”
C. Shin’s Opposition to the Summary Judgment Motion Filed by BNSF
Shin filed his opposition to BNSF’s summary judgment motion on March 28,
2012. Shin relied upon a 2006 meeting where representatives from the CPUC, Metrolink
and BNSF inspected the Jackson Street crossing. He alleged that at that time, they agreed
that the crossing was a pedestrian safety concern because of the proximity to Arlington
High School. All three entities agreed that the crossing should be ‘“treated for pedestrian
usage which would include . . . pedestrian gates and emergency exit swing gates.’” Shin
alleged that other students at the crossing would cross the tracks immediately after a first
train passed while the car gates were still down. Shin additionally alleged that the
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standard of care applicable to Samuel was a special subjective standard; not an objective
standard due to his age.
Shin addressed each of the issues raised by BNSF. First, BNSF did not provide
reasonable warning of the presence of two sets of tracks. Drivers were blocked by gates
but pedestrians were not. There was no reasonable warning of the unexpected
convergence of two trains next to Arlington High School at 7:30 a.m. on a school day.
Second, BNSF had a duty to install other warning devices. The CPUC’s 75-D did not
preempt the BNSF’s duty to install additional pedestrian warnings. Further, the CPUC
had recommended a pedestrian gate in 2006. Third, Shin argued that Samuel did not
violate Vehicle Code section 22451, subdivision (a)(1) because no signal or device
warned of a second train. Shin argued that whether BNSF was negligent was a jury
question.
Shin did not contest BNSF’s argument that it couldn’t install signs because that
duty belonged to state and local authorities. Shin did not contest that BNSF had no duty
to provide a crossing guard. Further, Shin did not contest that he had no evidence to
support the essential elements of a dangerous condition of public property claim.
Further, Shin did not contest that BNSF’s argument that train speed and two trains
passing was preempted by federal law. Shin concluded that there were triable issues of
BNSF’s duties and negligence.
Shin attached to his opposition the Consumer Protection and Safety Division Rail
Crossings Engineering Section meeting notes, e.g. notes from the meeting on the Jackson
Street crossing in 2006. The subject of the notes was “Riverside Quiet Zone” and the
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notes were dated February 8, 2006. The notes provided a meeting was conducted to
discuss the City of Riverside’s plans to establish a “Quiet Zone” for several crossings,
including at the Jackson Street Crossing. Both BNSF and Metrolink operated trains on
these tracks.
With the quiet zone, signs stating “no train horn” would have to be installed. In
addition, a traffic signal before the tracks should be installed. It also noted, “All
Pedestrian Approaches shall be equipped with tactile strips as a minimum in absence of
any other pedestrian improvements.” It also included, “All crossings which have
pedestrian approaches should be equipped with flange-way gap filler. This device
eliminates the gap in the path of travel for pedestrians crossing railroad tracks.”
The notes included language, “Due to the nearby school on Indiana Avenue
between Gibson and Jackson Street, pedestrian safety was a concern at this crossing.”
The City of Riverside was to conduct a study of the number of pedestrians crossing at the
Jackson Street crossing. It also included, “[B]NSF . . . recommended the east side of the
crossing be treated for pedestrian usage which would include extending the sidewalk over
the crossing, pedestrian gates, and, emergency exit swing gates. Because there was no
sidewalk on the west side of the crossing, the diagnostic team recommended the existing
fencing be moved closer to the roadway to discourage pedestrian usage. In addition it
was recommended that the City place uninviting vegetation on the west side of the
crossing to further discourage pedestrian usage.”
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D. BNSF’s Reply To Shin’s Opposition
BNSF filed objections to Shin’s separate statement of undisputed facts.3 BNSF
first noted that Shin admitted almost all of the undisputed facts provided by BNSF.
BNSF then recounted what Shin had admitted, which included that Samuel was familiar
with the two tracks and crossing, that the existing warnings and lights all were
functioning, and that BNSF had complied with the CPUC regulations for the crossing.
BNSF contended that based on the undisputed material facts, the mere presence of the
two train tracks gave adequate warning of the dangerous condition, and even if there was
more warning required, BNSF had no duty to provide additional warnings. BNSF
complied with the only requirements for the crossing and that did not include pedestrian
gates, barriers, walkways or overpasses. Further, Shin was essentially arguing that the
state standards of warning signs at Jackson Street were inadequate and that was within
the purview of CPUC.
In addition, BNSF attached a deposition of John Shurson who worked for BNSF.
He had attended the 2006 meeting. He stated that the meeting “subject matter . . . was to
review the crossing for a proposed quiet zone.” Shurson also stated he was concerned
about pedestrian safety “at quiet zones.” He stated that the flashing lights and bells that
were in existence at the Jackson Street crossing had been determined adequate for
pedestrians.
3 Since the trial court overruled the objections, we need not set forth the
objections here and we have included these facts in the statement of facts.
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E. Ruling
The trial court initially noted at the hearing that premises liability was no longer an
issue as to BNSF; Shin’s argument was that BNSF was negligent. It tentatively ruled,
“The undisputed facts, as the Court finds them with regards to the negligence claim, are
that the defendants were not negligent. Everything was functioning as it should have
functioned. There was compliance with local, state, and federal laws. And the
undisputed facts indicate that neither of the defendants had the ability to change the
intersection warning devices, even if they wanted to, because those are within the
purview of the California Public Utilities Commission and federal government.”
Shin argued that in 2006, Shurson had discussed with the CPUC adding additional
pedestrian gates at the Jackson Street crossing. The trial court responded that BNSF was
arguing that these gates were only being considered if the crossing became a quiet zone.
Shin disagreed and argued that the testimony of Shurson was unequivocal that there was
concern about pedestrian’s crossing the Jackson Street crossing regardless of the quiet
zone consideration. Shin argued the gates did not extend onto the sidewalk. The incident
would not have occurred had a pedestrian gate been installed. Shin also argued under
CPUC order 88-B it was a simple procedure to get approval from the CPUC to have
pedestrian protection installed. BNSF only needed to request the addition.
BNSF referred to Shurson’s deposition that the concern about pedestrian safety
was only if a quiet zone was required and the trains would not use their horns. BNSF
again argued that the warning devices all complied with 75-D. This was a CPUC
preclusion issue. The CPUC had exclusive jurisdiction over the railroad crossing and
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made orders as to how crossings should be regulated. The trial court took the matter
under submission.
In its written ruling submitted on April 20, 2012, the trial court granted BSNF’s
summary judgment motion. It found as follows: “The Court finds there is no triable
issue of material fact as to the Defendant’s lack of authority to control the warning
devices at the crossing . . . [¶] The Court finds there is no triable issue of material fact
that all warning devices were operational at the time of the incident. [¶] There is no
triable issue of material fact, based on eyewitness accounts, that the decedent ignored all
of the warning devices and proceeded to cross the railroad tracks.” Judgment was
entered on May 14, 2012. BNSF was originally awarded no attorney fees or costs. That
judgment was later corrected to award BNSF $5,880.75 in costs.
Shin filed his notice of appeal on July 12, 2012.
III
STANDARD OF REVIEW
Summary judgment properly is granted if the “affidavits, declarations, admissions,
answers to interrogatories, depositions, and matters of which judicial notice shall or may
be taken” in support of and in opposition to the motion “show that there is no triable issue
as to any material fact and that the moving party is entitled to a judgment as a matter of
law.” (Code Civ. Proc., § 437c, subds. (b)(1) & (c).)
“On review of a summary judgment in favor of the defendant, we review the
record de novo to determine whether the defendant has conclusively negated a necessary
element of the plaintiff's case or demonstrated that under no hypothesis is there a material
14
issue of fact that requires the process of trial. [Citation.]” (Ann M. v. Pacific Plaza
Shopping Center (1993) 6 Cal. 4th 666, 673-674, disapproved on other grounds in Reid v.
Google, Inc. (2010) 50 Cal. 4th 512.) “There is a triable issue of material fact if, and only
if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor
of the party opposing the motion in accordance with the applicable standard of proof.”
(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850, fn. omitted.)
“A defendant moving for summary judgment must prove the action has no merit.
He does this by showing one or more elements of plaintiff’s cause of action cannot be
established or that he has a complete defense to the cause of action. At this point,
plaintiff then bears the burden of showing a triable issue of material fact exists as to that
cause of action or defense.” (Towns v. Davidson (2007) 147 Cal. App. 4th 461, 466.)
IV
ANALYSIS
We conclude that the claims raised by Shin against BNSF were precluded under
section 1759 as the CPUC had exclusive regulatory authority over warnings required at
railroad crossings.
“[O]ur state Constitution . . . in article XII . . . Section 3 . . . provides, as relevant
here, that ‘[p]rivate corporations and persons that own, operate, control, or manage a line,
plant, or system for the transportation of people or property . . . , and common carriers,
are public utilities subject to control by the Legislature.’ Under this provision, ‘all
railroad carriers [are] subject to legislative control . . . .’ [Citation.] Section 1 of article
XII provides for the composition of the commission, and section 4 gives the commission
15
the power to ‘fix rates and establish rules for the transportation of passengers and
property by transportation companies’ (among other things).” (BNSF Railway Co. v.
Public Utilities Com. (2013) 218 Cal. App. 4th 778, 783-784.)
“Pursuant to this grant of power the Legislature enacted Public Utilities Code
section 701, conferring on the commission expansive authority to ‘do all things, whether
specifically designated in [the Public Utilities Act] or addition thereto, which are
necessary and convenient’ in the supervision and regulation of every public utility in
California. . . . The commission’s authority has been liberally construed. [Citations.]
Additional powers and jurisdiction that the commission exercises, however, ‘must be
cognate and germane to the regulation of public utilities. . . .’ [Citations.]” (Consumers
Lobby Against Monopolies v. Public Utilities Com. (1979) 25 Cal. 3d 891, 905.)
Section 1759, subdivision (a) provides: “No court of this state, except the
Supreme Court and the court of appeal, to the extent specified in this article, shall have
jurisdiction to review, reverse, correct, or annul any order or decision of the commission
or to suspend or delay the execution or operation thereof, or to enjoin, restrain, or
interfere with the commission in the performance of its official duties. . . .” A decision of
the CPUC is subject only to writ review by a Court of Appeal or the Supreme Court. (§§
1756, subd. (a), 1757, 1757.1, 1759.) Section 1201 gives the CPUC the power to permit
the construction of crossings of a “public road, highway, or street” and “the track of any
railroad corporation.” Subdivision (a) of section 1202 further provides in relevant part
that the CPUC has the exclusive power “[t]o determine and prescribe the manner,
including the particular point of crossing, and the terms of installation, operation,
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maintenance, use, and protection of . . . each crossing of a public or publicly used road or
highway by a railroad.” However, section 2106 provides that trial courts have the
authority to entertain a private action for damages arising out of any unlawful act by a
regulated utility, including the violation of any PUC order or decision. (§ 2106) “Our
high court has addressed the apparent tension between these two sections of the Public
Utilities Act in several decisions. [Citations.]” (Guerrero v. Pacific Gas & Electric Co.
(2014) 230 Cal. App. 4th 567, 572 (Guerrero).)
“[A]n action for damages against a public utility . . . is barred by section 1759 not
only when an award of damages would directly contravene a specific order or decision of
the commission, i.e., when it would ‘reverse, correct, or annul’ that order or decision, but
also when an award of damages would simply have the effect of undermining a general
supervisory or regulatory policy of the commission, i.e., when it would ‘hinder’ or
‘frustrate’ or ‘interfere with’ or ‘obstruct’ that policy.” (San Diego Gas & Electric Co. v.
Superior Court (1996) 13 Cal. 4th 893, 918, fn. omitted (Covalt).)
In Covalt, the Supreme Court established a three-part test for determining whether
an action is barred under section 1759: (1) “whether the commission has the authority to
adopt a policy” (id. at p. 923; see also id. at pp. 923-925); (2) “whether the commission
has exercised th[at] . . . authority” (id. at p. 926; see also id. pp. 926-934); and (3)
“whether the present superior court action would hinder or interfere with that policy” (id.
at p. 935; see also id. at pp. 935-943).
In Hartwell Corp. v. Superior Court (2002) 27 Cal. 4th 256 (Hartwell), the court
considered whether CPUC regulated water companies (and those not regulated by the
17
CPUC) could be sued for supplying unsafe drinking water. The court allowed the
plaintiff to sue on a claim that the defendants had supplied water that did not meet state
and federal drinking water standards, but did not allow claims to proceed on a theory that
the drinking water standards utilized by the PUC were themselves inadequate. (Id. at pp.
276-277, 278-279.) Specifically, it held that “[a]n award of damages on the theory that
the public utilities provided unhealthy water, even if that water actually met . . . [C]PUC
standards, would interfere with a ‘broad and continuing supervisory or regulatory
program’ of the [C]PUC.” (Id. at p. 276.)
The recent appellate court case of Guerrero, which arose out of a natural gas
pipeline explosion that occurred in San Bruno, California, and caused death and extensive
property damage, further espouses that the superior court cannot interfere with the broad
power of the CPUC. Plaintiffs sued Pacific Gas & Electric Company on the grounds it
“[m]isrepresented and concealed material facts from plaintiffs when it used money
collected from ratepayers to pay shareholders and provide bonuses to its executives
instead of spending the money on infrastructure and safety measures. Additionally, the
class alleged that PG&E’s negligent handling of the pipe that exploded in San Bruno was
unlawful and arose from PG&E’s corporate culture that valued profits over safety.” (Id.
at p. 570].) The trial court granted PG&E’s demurrer to the complaint on the ground that
under section 1759, subdivision (a), the superior court lacked jurisdiction because the
litigation would interfere with the CPUC’s exercise of its jurisdiction. (Id. at p. 571.)
On appeal, the Guerrero court found, using the Covalt three-part test, that the
CPUC had the authority to set rates and had exercised its regulatory authority.
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(Guerrero, supra, at pp. 572-573.) It found as to the third prong, “[t]hat upon a fair
reading of the record of the administrative proceedings before the PUC, plaintiffs’ action
seeking disgorgement, restitution, and damages for misappropriation of PUC approved
funds interferes with the PUC’s ongoing authority over natural gas rates.” (Id. at p.
574].) It concluded that to allow a claim by the plaintiffs would hold PG&E liable for
charging rates expressly authorized by the CPUC. (Id. at p. 577.)
The Guerrero court distinguished its facts from Mata v. Pacific Gas & Electric
(2014) 224 Cal. App. 4th 309. It founds as follows: “In Mata, we considered whether an
order by the [C]PUC that established the minimum clearances of trees from high voltage
lines could bar an action for damages for wrongful death brought by the heirs of a
decedent killed in a tree trimming accident. In determining the action could proceed, we
concluded that the [C]PUC orders in question established a minimum standard that would
relieve PG&E of any claim of negligence per se, but did not establish a maximum
clearance. Hence, a private action could be brought on the basis that the trees in question
should reasonably have been trimmed to allow for greater clearance from high voltage
lines than required by the [C]PUC, and allowing such an action to proceed would
complement rather than hinder the [C]PUC’s jurisdiction. [Citation.] The private action
asserted here is quite different. The [C]PUC has in the past approved a precise measure
of rates chargeable by PG&E to its natural gas customers. Since the San Bruno
explosion, [C]PUC proceedings have taken into account the proper measure of expenses
for improvements to the natural gas transmission system that should be borne by PG&E
shareholders, and those that can be passed along to ratepayers. The ratepayers have
19
received recompense in these proceedings to the extent that PG&E shareholders have had
to bear the expense for improvements that otherwise would have been passed along to its
customers. Whether or not more should be done for ratepayers in these circumstances is
and remains for the [C]PUC to decide, not the courts.” (Guerrero, supra, at p. 576.)
In applying the three-part test in Covalt here, the first two parts are not disputed by
Shin. It is clear that the CPUC had the authority to adopt 75-D and it exercised that
authority. Shin’s claim is based on an argument that BNSF had an obligation to provide
additional warning signs despite meeting the CPUC guidelines at the Jackson Street
crossing. This involves a consideration of Covalt’s third prong.
A finding that BNSF should have applied for additional pedestrian warning gates
or warning signs as to the convergence of two trains would interfere and undermine the
CPUC’s authority to regulate at-grade crossings. 75-D covered the requirements at an at-
grade crossing for both cars and pedestrians. 75-D provided the “STANDARD
WARNING DEVICES.” It addressed where a “Number of Tracks” sign should be
placed. The only modifications to this policy were by approval of the CPUC. This was
not a minimum requirement at the crossings; it was the required standards set specifically
by the CPUC.
Shin argues that BNSF could have easily requested additional pedestrian gates and
warning signs for the two trains converging at the crossing. However, such argument
assumes that the warning devices at the crossing, which complied with the CPUC orders,
were inadequate. A finding that BNSF failed to provide additional warning signs would
interfere with the CPUC’s “broad and continuing supervisory or regulatory program”
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regarding railroad crossings. (Hartwell, supra, 27 Cal.4th at p. 276.) This is not a case
like Hartwell where some of the claims could be pursued because the plaintiffs alleged
that CPUC regulations were not followed. (Id. at pp. 276-278.) It must be remembered
that Shin admitted that “[t]he warning devices at the Jackson Street grade crossing at the
time of the accident consisted of CPUC Standard No. 8 flashing lights, CPUC Standard
No. 9 automatic gates, crossbuck signs, and ‘two track’ signs, which complied with
CPUC General Order 75-D.” As such, Shin was precluded from bringing such claims as
the superior court lacked subject matter jurisdiction.
Defendant has made general statements that 75-D does not have a preclusion or
preemption clause, that Hartwell had nothing to do with railroad crossings, and that he
would be left with no state or federal remedy. These arguments are not supported by
proper legal authority or analysis and we need not consider them. (Cal. Rules of Court,
rule 8.204 (a)(1)(B); Taylor v. Nabors Drilling USA, LP (2014) 222 Cal. App. 4th 1228,
1248 [“[A]rgument must include legal analysis.”].)
Defendant cites to Hogue v. S. Pac. Co. (1969) 1 Cal. 3d 253, contending that the
CPUC standards only provide for a “minimum” measure of care and that BNSF may be
required to provide additional safety measures depending upon the circumstances. Hogue
involved a wrongful death action in which the decedent drove his car across the railroad
tracks and was hit by a train. The jury found for the plaintiffs on a theory that the
defendants should have provided an additional set of signals at the crossing. On appeal,
the defendants argued that the jury verdict was improper because they had complied with
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CPUC orders regarding the warnings and lights required at railroad crossings. (Id. at pp.
256-258.)
The Hogue court determined that “[i]t was a question of fact for the jury as to
whether defendant was negligent in failing to provide an additional set of signals” at the
crossing. (Hogue, supra, at p. 258.) It based its finding on the fact that “General order
75B [the predecessor to 75-D] further specifies that the range of the signal lights be, on
tangent, at least 300 feet.” It found the jury could have concluded, based on the evidence
presented, that the defendants did not comply with this order. (Ibid.) Thereafter, the
court made the following statement: “However, even if there had been literal compliance
with General Order 75B [,] “‘It is well settled that such statutory regulations constitute
only the minimum measure of care required by the railroad, and it is usually a matter for
the jury to determine whether something more than the minimum was required under the
evidence in the case.” [Citation.] A railroad company is not necessarily free from
negligence, even though it may have literally complied with safety statutes or rules. The
circumstances may require it to do more. [Citation.]’ [Citations.]” (Ibid.)
Initially, the Hogue court never discussed section 1759. Moreover, since it
already found that the defendants had not complied with the CPUC orders, it is arguably
dicta to find that the 75B orders were only a minimum requirement. Finally, since that
time, the Supreme Court has decided Hartwell and Covalt which have found that the
CPUC has broad authority over public utilities and the court cannot interfere with that
authority. We need not follow Hogue.
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Finally, Shin argues that the CPUC had recommended in 2006 that pedestrian
gates and further warnings be installed. However, the evidence presented to the trial
court was clear that additional gates were recommended only if the crossing was
converted to a quiet zone.
Based on the foregoing, the trial court properly granted BNSF’s motion for
summary judgment.
V
DISPOSITION
The judgment is affirmed. BNSF is awarded its costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We concur:
RAMIREZ
P. J.
HOLLENHORST
J.
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