                                                                              FILED
                           NOT FOR PUBLICATION
                                                                              MAR 30 2020
                    UNITED STATES COURT OF APPEALS                         MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


GURPREET SINGH, Individually, and as             No.   18-16683
Successor in Interest on behalf of heirs and
Estate of Amarjit Singh, Deceased;               D.C. No. 4:17-cv-02425-JSW
BALWINDER KAUR; SUMANDEEP
KAUR; RAMANDEEP KAUR;
BHUPUINDER KAUR,                                 MEMORANDUM*

              Plaintiffs-Appellants,

 v.

NATIONAL RAILROAD PASSENGER
CORPORATION, DBA Amtrak, a District
of Columbia corporation; UNION
PACIFIC RAILROAD COMPANY, a
Utah corporation; KEVIN GNIADEK,

              Defendants-Appellees.


                    Appeal from the United States District Court
                       for the Northern District of California
                     Jeffrey S. White, District Judge, Presiding

                     Argued and Submitted February 11, 2020
                            San Francisco, California




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: RAWLINSON and CALLAHAN, Circuit Judges, and BOLTON,**
District Judge.

      Gurpreet Singh, individually, and as successor in interest on behalf of the

heirs and estate of Amarjit Singh, along with Balwinder Kaur, Sumandeep Kaur,

Ramandeep Kaur, and Bhupuinder Kaur (together, Appellants) appeal the district

court’s entry of summary judgment in favor of Appellees.1 We have jurisdiction

under 28 U.S.C. § 1291, and review de novo. See Animal Legal Def. Fund v. U.S.

Food & Drug Admin., 836 F.3d 987, 988 (9th Cir. 2016) (en banc).

       Appellants failed to establish a genuine issue of material fact as to their

wrongful death claim. Appellants proposed two theories of liability: (1) failure to

sound the train horn in accordance with federal guidelines (horn theory); and (2)

failure to sufficiently warn about and fence the railroad crossing (warning theory).

A wrongful death claim encompasses all the elements of a negligence claim. See

Novak v. Cont’l Tire N. Am., 22 Cal. App. 5th 189, 195 (2018). Consequently,

Appellants would be required to establish (1) breach of an existing duty (2) that

proximately caused (3) an injury. See id.

      Under the horn theory of negligence, Appellants failed to raise a genuine

      **
             The Honorable Susan R. Bolton, United States District Judge for the
District of Arizona, sitting by designation.
      1
            Appellees are National Railroad Passenger Corporation (Amtrak),
Union Pacific Railroad Company (Union Pacific), and Kevin Gniadek (Gniadek).
                                            2
issue of material fact regarding compliance with federal guidelines. Gniadek

testified that the horn was sounded in accordance with the guidelines and the event

data recorder corroborated that testimony. The declaration of one eyewitness who

could not recall whether he heard more than one horn blast did not raise a genuine

issue of material fact. See Fresno Motors, LLC v. Mercedes Benz USA, LLC, 771

F.3d 1119, 1125 (9th Cir. 2015) (“A fact is material only if it might affect the

outcome of the case, and a dispute is genuine only if a reasonable trier of fact could

resolve the issue in the non-movant’s favor. . . .”) (citation and internal quotation

marks omitted). In sum, Appellants failed to raise a genuine issue of material fact

regarding breach of the duty to comply with the regulation addressing sounding the

horn.

        Appellants similarly failed to raise a genuine issue of material fact regarding

their warning theory. The California Public Utilities Commission (CPUC) was

authorized to adopt regulatory policies on railroad crossings. See Cal. Pub. Util.

Code § 1202(a). The CPUC exercised that authority by issuing General Orders

75D and 88A, prescribing required warning signals for railroad crossings. There

was no contention that Appellees failed to comply with the General Orders, or that

there had been any prior problems at that particular crossing.

        Appellants rely upon Hogue v. S. Pac. Co., 460 P.2d 965 (Cal. 1969), to


                                            3
support their argument that Appellees breached a duty to warn about or fence the

crossing. However, this reliance is misplaced because in Hogue, the record

reflected that the railroad had failed to comply with CPUC General Order 75B.

See id. at 968. No such dereliction exists in this case, and Appellants have thus

failed to raise a genuine issue of material fact on the warning theory underlying

their assertion that Appellees breached a duty owed to them.2

      Finally, the district court did not abuse its discretion by resolving the

summary judgment motion without receiving testimony or considering transcribed

witness statements. See Fed. R. Civ. P. 78(b) (“By rule or order, the court may

provide for submitting and determining motions on briefs . . .”).

      AFFIRMED.




      2
             In view of our conclusion that Appellants failed to raise a genuine
issue of material fact regarding breach, we need not and do not address the
proximate cause and injury elements of Appellants’ wrongful death claim. See
Gonzalez v. Arizona, 677 F.3d 383, 407 n.35 (9th Cir. 2012).
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