Filed 1/22/20; Certified for Publication 2/13/20 (order attached)




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                    SECOND APPELLATE DISTRICT

                               DIVISION SEVEN


IRMA YOLANDA MUNOZ                                B289712
SOTO,
                                                  (Los Angeles County
        Plaintiff and Appellant,                  Super. Ct. No. BC638956)

        v.

UNION PACIFIC RAILROAD
COMPANY et al.,

        Defendants and
        Respondents.



      APPEAL from a judgment of the Superior Court of
Los Angeles County, Dennis J. Landin, Judge. Affirmed.
      Haffner Law, Joshua H. Haffner, Graham G. Lambert,
Michael K. Teiman; Martinian & Associates, Tigran Martinian
and Suzanna Abrahamian for Plaintiff and Appellant.
      Pacific Employment Law, Joseph P. Mascovich; Union
Pacific Railroad Co., Melissa Ann Sandoval; Murphy, Campbell,
Alliston & Quinn and Stephanie Lynn Quinn for Union Pacific
Railroad Company, Robert Finch and Scott King.
                   _______________________

       Irma Yolanda Munoz Soto sued Union Pacific Railroad
Company and two of its employees, Scott King and Robert Finch
(collectively Union Pacific parties), for wrongful death (premises
liability and general negligence) after Soto’s 16-year-old daughter
was struck and killed by a freight train on an at-grade railroad
crossing in Santa Clarita. The court granted the Union Pacific
parties’ motion for summary judgment, concluding as to Soto’s
premises liability claim Union Pacific had no duty to remedy a
dangerous condition because it did not own or control the railroad
crossing. As to Soto’s negligence claim, the court ruled Soto could
not establish that Union Pacific employees had negligently
operated the train. On appeal from the judgment entered after
the motion was granted, Soto contends she raised triable issues of
material fact sufficient to defeat summary judgment. Although
we cannot overstate the tragic scope of Soto’s loss, based on the
evidence and governing law, we affirm.
       FACTUAL AND PROCEDURAL BACKGROUND
      1. The Accident
      Soto’s teenage daughter, Kimberly Jimenez-Soto, routinely
walked along an unpaved path near the intersection of Rainbow
Glen Drive and Soledad Canyon Road in Santa Clarita to get to
her school bus stop. To reach the bus stop, it is necessary to
traverse an at-grade railroad crossing for a railway line (then
known as the Saugus line), which runs parallel to and just south
of Soledad Canyon Road. The railway line is owned by the




                                2
Southern California Regional Rail Authority, doing business as
Metrolink.
       The railroad crossing was marked with signs, flashing
lights, warning bells, a mast and cantilever structure containing
additional lights, and automatic levers that lowered as trains
approached the crossing, preventing vehicular traffic from
entering the crossing until after the trains had passed. There
was no separate pedestrian barrier or gate.
       On the morning of November 7, 2014, as Jimenez-Soto and
other children took their regular route to the bus stop, the bells,
whistles, flashing lights and automatic lever blocking vehicular
traffic were all working and activated, indicating the approach of
an oncoming train. Jimenez-Soto, walking on the unpaved path
with her head down, did not heed any of the warnings. She
continued unimpeded through a large open space near the
vehicular gates and stepped directly onto the tracks. Almost
immediately, a Union Pacific freight train, operated by conductor
Robert Finch and engineer Scott King, fatally struck Jimenez-
Soto.
       2. Soto’s Lawsuit
       Soto’s wrongful death action alleged causes of action for
premises liability (against Union Pacific only) and negligence
(against all the Union Pacific parties). As to the first claim, Soto
alleged Union Pacific owned the crossing, knew it posed a danger
to the public and failed to ensure proper safety measures, such as
a pedestrian barrier, were in place to prevent or discourage
children from accidentally walking onto the track. In support of
her negligence cause of action, Soto alleged Finch and King had
breached their duty of care to operate the train safely and Union
Pacific was vicariously liable for their negligence.




                                 3
       3. The Union Pacific Parties’ Motion for Summary
          Judgment
             a. Premises liability
       The Union Pacific parties moved for summary judgment.
Addressing Soto’s cause of action for premises liability, Union
Pacific argued it had no duty to make the premises safe for
pedestrians because it did not own, possess or control the railroad
tracks, the land or the crossing. Union Pacific supplied evidence
that its predecessor-in-interest, Southern Pacific Transportation
Company, sold the land, the railroad tracks and all
improvements in October 1990 to the Los Angeles County
Transportation Commission (Commission), the predecessor-in-
interest to Metrolink. In 1992 Southern Pacific and the
Commission entered into a shared-use agreement to delineate
“their respective rights and obligations concerning operation of
the Saugus [l]ine after its acquisition by the Commission . . . and
to preserve [Southern Pacific’s] Rail Freight Service both now
and in the future on a service competitive-basis.” In the
agreement the Commission granted Southern Pacific an
“easement and trackage rights on and over” the Santa Clarita
crossing.
       Section 2.2 of the shared-use agreement granted Union
       1
Pacific the right to use the tracks, crossing and the warning
                                              2
systems (collectively “shared-use facilities”) for its freight train

1
      For clarity, in explaining the parties’ rights under the
shared-use agreement, we refer to Union Pacific and Metrolink
rather than to their predecessors-in-interest.
2
      Section 1.56 of the shared-use agreement defined shared-
use facilities as “[t]he Shared Use Tracks, all improvements
relating thereto, all improvements used in rail service located




                                  4
service. Union Pacific had no other rights to those facilities
“other than the rights expressly provided” in the shared-use
agreement. The agreement also provided that Metrolink, which
owned the shared-use facilities, had “exclusive control” over their
operation, maintenance and repair.
      Citing the shared-use agreement, Union Pacific argued it
had only a limited easement to use the tracks for its freight train
service. Because it did not own, possess or control the crossing,
Union Pacific asserted, it had no duty to ameliorate any
dangerous condition located on the property, including the duty
to construct a pedestrian barrier.
            b. The negligence claim
      The Union Pacific parties argued they were not negligent
as a matter of law in operating the freight train. In support of
their motion they submitted the expert declaration of Brian P.
Heikkila, a railroad consultant with more than 40 years’
experience in the railroad industry. Heikkila had reviewed the
track imaging recording (TIR), which, among other data,
contained a video recording of the view from the front of the train
                                                        3
as it approached the crossing and struck Jimenez-Soto. He also
reviewed, among other materials, Union Pacific’s Air Brake and
Train Handling Rules, the General Code of Operating Rules
(GCOR) for railroads in the United States and Metrolink’s

within the Right-of-Way as of the date of execution of this
Agreement . . . and all other Tracks and other facilities
constructed pursuant to any provisions of this Agreement except,
unless otherwise agreed to in the future by [Metrolink] and
[Union Pacific] . . . .”
3
      The TIR was filed under seal in the trial court pursuant to
a stipulated protective order.




                                 5
System Special Instructions and Additions and Revisions to the
       4
GCOR.
       In Heikkila’s opinion the train was operated in full
compliance with federal regulations and all Union Pacific safety
guidelines and could not have been stopped prior to its impact
with Jimenez-Soto. Heikkila explained, “Engineer King was
operating [the train] at approximately 44 m.p.h. leading up to
and at the time of the incident, which was in compliance with the
45 m.p.h. timetable speed limit set for freight trains by Metrolink
at this location, and well below the 60 m.p.h. federal freight train
speed limit for [Federal Railroad Administration (FRA)] Class 4
track (49 C.F.R. Part 213.9). . . . [¶] . . . My analysis of the TIR
and event recorder data also indicates that the warning bell and
warning horn sequence sounded by Engineer King commenced
approximately 18 seconds prior to the train’s arrival at the
Rainbow Glen Drive crossing, as required by the [GCOR] (GCOR,
Rule[s] 5.8.1, 5.8.2) and FRA regulations (49 C.F.R. Part 222.21),
thereby providing a total of approximately 19 seconds of bell and
horn warning prior to impact.
       “. . . The Rainbow Glen Drive grade crossing features an
array of warning devices for approaching pedestrians and
motorists that includes railroad crossing pavement markings,
reflectorized cross buck warning signs, mast-mounted red
flashing warning lights, automated crossing gates with additional

4
      Based on his review of these materials, Heikkila described
the freight train that killed Jimenez-Soto as consisting of two
locomotives pulling from the front, two remotely controlled
locomotives in the rear and 67 empty rail cars. The train was
approximately 3,377 feet long and weighed approximately
2,010 tons.




                                 6
red flashing warning lights, and warning bells that are activated
by approaching trains. . . . A review of the TIR and witness
testimony indicates that the gates, lights, and bells were
activated during the train’s approach and at the time of the
incident.
       “. . . Based on my analysis of the TIR video . . .
Ms. Jimenez-Soto was first present on the track at the Rainbow
Glen Drive crossing approximately 1.2 seconds prior to impact.
Analysis of the event recorder and TIR also indicates that
Engineer King put the train into emergency braking shortly after
impact, which then required a distance of approximately 1,096
feet to stop over a period of approximately 32 seconds. In order to
have stopped the train prior to impact, it would have been
necessary to apply the emergency brakes approximately 1,096
feet prior to impact. However, at that point, the train would have
been more than 16 seconds away, not counting perception-
reaction time, with no indication to the crew of any need to apply
the emergency brakes.
       “. . . [T]he first opportunity for Engineer King to get a
glimpse of Ms. Jimenez-Soto beginning to pass the lowered
crossing arm and the mast it was attached to, was approximately
3.2 seconds prior to impact. However, in order to have stopped
the train prior to the impact, it would have been necessary to
apply the emergency brakes approximately 1,096 feet prior to
impact. At that point, the train would have been more than 16
seconds away, not counting perception-reaction time, with no
indication to the crew of any need to apply the emergency brakes.
       “. . . Under the circumstances, during the closing seconds
prior to impact when Ms. Jimenez-Soto first stepped past the
gate there was no opportunity for the crew to stop or slow the




                                7
train, or take any additional evasive action that could have
prevented the incident. [¶] . . . In summary, based on my site
inspection and review of the materials, the train was operated in
accordance with Union Pacific rules and federal regulations, and
consistent with standards of care in the railroad industry. . . .”
       In their separate declarations in support of Union Pacific’s
motion, train conductor Finch and locomotive engineer King
stated the train was travelling eastbound at approximately
45 miles per hour. About one-quarter mile from the crossing, at
                                 5
the location of the whistle board, King sounded the locomotive’s
horn in the proper sequence (two long sounds, a short sound, and
a long sound). As the train approached the crossing, both Finch
and King observed Jimenez-Soto walking northbound “about
100 yards” from the crossing. At the time of their observation, all
safety features had been activated at the crossing: The crossing
arm gates were in the downward position; the warning lights
were flashing; and vehicular traffic was stopped behind the gates.
King continued to sound the horn. Suddenly, Jimenez-Soto
“walk[ed] past the activated warning devices and past the area
where the cars were stopped” and onto the tracks. As soon as he
saw Jimenez-Soto step onto the tracks, King moved the
locomotive controls from the power position to idle and applied
the emergency brakes.
      The Union Pacific parties also provided the deposition
testimony of Frank Ferraro, who was in his car behind the
vehicular gates, waiting for the train to pass, when the accident


5
       A whistle board, in railroad usage, is a sign marking a
location where a locomotive engineer is required to sound the
horn or whistle.




                                 8
occurred. Ferraro testified he saw Jimenez-Soto weave through
other children on the unpaved path as she walked toward the bus
stop. Other children were stopped at the crossing. Ferraro
expected Jimenez-Soto to stop, too; but she continued onto the
tracks and was struck by the freight train.
       4. Soto’s Opposition to the Motion for Summary Judgment
       In her opposition papers Soto did not dispute that
Metrolink owned the land, the tracks and the crossing and
warning systems. However, citing section 2.5 of the shared-use
agreement entitled “Additional Improvements,” which provided
that Metrolink “shall permit additional improvements to the
Shared Use Facilities reasonably requested by [Union Pacific],
which approval shall not be unreasonably withheld,” Soto argued
Union Pacific had sufficient control of the premises to impose a
duty of care to ameliorate a dangerous condition at the crossing.
Soto also cited the testimony of Michelle Martinson, Union
Pacific’s person-most-knowledgeable concerning the shared-use
facilities. Martinson confirmed Union Pacific had requested at
least one improvement on another part of the Saugus line—
enlarging tunnel clearances so Union Pacific could run taller
freight trains—and Metrolink had approved that request without
issue.
       In addition, Soto provided a declaration from civil engineer
Brad Avrit. Avrit opined the crossing presented a dangerous
condition because a pedestrian walking along the unpaved
pathway would be able to travel in a straight line from one part
of the unpaved road onto the tracks without encountering a
barrier. According to Avrit, the most effective barrier to protect
unwary pedestrians, including children, from harm would be “a
physical barrier like a swing gate or a lever arm designed to block




                                9
the pedestrian path.” Union Pacific objected to much of Avrit’s
testimony that the crossing presented a dangerous condition,
arguing it was conclusory, lacked proper foundation and was
based on speculation and conjecture. The court sustained those
objections.
       Jimenez-Soto’s sister stated in her declaration it was
Jimenez-Soto’s practice to wear earphones on her way to school
and there was no reason to believe Jimenez-Soto did not act
consistently with that practice on the day she died. (Soto
surmised Jimenez-Soto’s earphones were the likely reason
Jimenez-Soto did not hear bells and whistles warning of the
train.)
       Soto’s counsel also provided a declaration stating he had
deposed King only a few days prior to submitting Soto’s
opposition papers and, as a consequence, King’s deposition
transcript was not yet available. In lieu of a transcript Soto’s
counsel averred King had testified he had adopted a practice
since the accident of slowing the train down at all at-grade
crossings. The court sustained the Union Pacific parties’
objection to this evidence because Soto’s counsel had failed to
explain the reasons he could not obtain an expedited transcript to
submit the court.
       Finally, highlighting the findings of Union Pacific’s own
expert, Heikkila, that King had waited until impact to apply the
emergency brakes, Soto argued a triable issue of material fact
existed as to whether the failure to apply the brakes earlier was
reasonable and, if not, whether that unreasonable delay had
caused the accident.




                                10
      5. The Court’s Ruling Granting Summary Judgment
      The court granted the Union Pacific parties’ motion for
summary judgment. Relying on the rights and duties prescribed
in the shared-use agreement, the court ruled Union Pacific did
not own, possess or control the crossing and therefore lacked the
duty to mitigate or prevent any dangerous condition on the
         6
property. The court also ruled Soto could not establish the
Union Pacific parties were negligent in their operation of the
train. The court entered judgment in favor of the Union Pacific
parties. Soto filed a timely notice of appeal.
                          DISCUSSION
       1. Standard of Review
       A motion for summary judgment is properly granted only
when “all the papers submitted 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,
subd. (c).) We review a grant of summary judgment de novo and,
viewing the evidence in the light most favorable to the
nonmoving party (Ennabe v. Manosa (2014) 58 Cal.4th 697, 703),
decide independently whether the facts not subject to triable
dispute warrant judgment for the moving party as a matter of
law. (Hampton v. County of San Diego (2015) 62 Cal.4th 340,
347; Schachter v. Citigroup, Inc. (2009) 47 Cal.4th 610, 618.)




6
      Alternatively, as to the premises liability claim, the court
ruled the PUC’s exclusive jurisdiction over warning systems at
railroad crossings preempted Soto’s action to the extent it was
based on the failure to install a pedestrian barrier.




                                 11
      2. The Court Did Not Err in Granting Summary Judgment
          on Soto’s Premises Liability Claim
             a. Governing law
      One who owns, possesses or controls land has a duty to act
reasonably to protect others from a dangerous condition on the
property. (Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1162 (Alcaraz);
see Civ. Code, § 1714, subd. (a) [imposing liability for failure to
exercise “ordinary care or skill in the management” of property].)
The “‘crucial element’” for imposing a duty in such circumstances
is control (Alcaraz, at p. 1160 [“‘[w]hoever controls the land is
responsible for its safety’”]), the rationale being that whoever has
the means to control the property can take steps to prevent the
harm. (See Salinas v. Martin (2008) 166 Cal.App.4th 404, 414
[quoting Alcaraz]; Martinez v. Bank of America (2000)
82 Cal.App.4th 883, 892 [landlord liability for dangerous
condition on property occupied by tenant depends upon landlord’s
degree of control; “‘the landlord must also have the opportunity
and the ability to eliminate the dangerous condition being
created by the tenant’”]; cf. Public Utilities Com. v. Superior
Court (2010) 181 Cal.App.4th 364, 378 (Millan) [“control” in the
context of premises liability depends on whether the defendant
had the “power to prevent, remedy or guard against the
dangerous condition”]; see generally Preston v. Goldman (1986)
42 Cal.3d 108, 119 [“we have placed major importance on the
existence of possession and control as a basis for tortious liability
for conditions on the land”].)
      Conversely, “[a] defendant cannot be held liable for a
defective or dangerous condition of property it did not own,
possess or control.” (Isaacs v. Huntington Memorial Hospital
(1985) 38 Cal.3d 112, 125; accord, Cody F. v. Falletti (2001)
92 Cal.App.4th 1232, 1241 (Cody F.) [“[t]he law does not impose




                                 12
responsibility where there is no duty because of the absence of a
right of control”]; cf. Alcaraz, supra, 14 Cal.4th at p. 1161
[“[D]efendant could not escape liability merely by establishing
that . . . a neighbor, rather than the defendant, actually held title
to the land containing the dangerous condition. As long as the
defendant exercised control over the land, the location of the
property line would not affect the defendant’s potential
liability”].)
       When the evidence concerning control is undisputed, as
here, the question of duty remains a legal question we review de
novo. (See Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1142
[“‘[d]uty is a question of law for the court, to be reviewed de novo
on appeal’”] Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764,
770 [same]; cf. Alcaraz, supra, 14 Cal.4th at p. 1162 & fn. 4
[although duty is a question of law, when evidence concerning
control is in conflict, summary judgment is improper].)
              b. The court properly ruled Union Pacific had no duty
                 to make the premises safe because it did not own,
                 possess or control the crossing
       Soto acknowledges that Union Pacific does not own the
land, the Rainbow Glen Drive crossing or any of the other shared-
use facilities and, consequently, whether it had a duty of care for
purpose of potential premises liability depends on the scope of
control conferred by the easement. (See Cody F., supra,
92 Cal.App.4th at p. 1243 [“[t]he nature of the duty owed by the
owner of an interest in real property must have a relationship to
the degree of control conferred by the scope of the ownership
interest itself”].) Relying on paragraph 2.5 of the shared-use
agreement, Soto contends Union Pacific’s contractual right to
request “additional improvements” to the Saugus line, coupled
with Metrolink’s contractual obligation not to unreasonably




                                 13
withhold its approval for such requests, gave Union Pacific
sufficient control of the crossing to impose a duty to remedy a
dangerous condition. According to Soto’s argument, all Union
Pacific had to do to protect the lives of children was request that
Metrolink install a pedestrian barrier. Metrolink would have
certainly granted such a reasonable request; and, if Metrolink did
not, Union Pacific had the additional power to enforce the shared-
use agreement in arbitration under the contract’s terms.
       Soto’s expansive interpretation of section 2.5 relies upon a
flawed assumption. Simply stated, Union Pacific’s contractual
right to enforce Metrolink’s obligation to exercise good faith in
evaluating Union Pacific’s requests for improvement, without
more, is not sufficient control of the premises to impose liability
for failing to correct a dangerous condition. (See Millan, supra,
181 Cal.App.4th at p. 379 [PUC’s ability to file a lawsuit to
enforce regulatory authority did not give PUC “control” over
crossing for purposes of creating a duty when “the uncontradicted
evidence established that the PUC lacked the authority to
actively maintain or repair the crossing and had only the
authority to order others to correct or upgrade”]; cf. Vasilenko v.
Grace Family Church (2017) 3 Cal.5th 1077, 1087 [affirming
finding of no duty; while landowner had ability to request
municipality install traffic control device to ameliorate danger on
public street, the “ultimate decision [was] up to that [municipal]
authority”].)
       Cody F., supra, 92 Cal.App.4th 1232, which Soto cites to
support her argument, only reinforces our conclusion. In Cody F.,
a dog attacked a child on a private road that provided access to a
subdivision. Each of the homeowners in the subdivision
possessed an easement to use the private road for ingress and




                                14
egress. The victim of the dog attack sued, among others, each of
the homeowners, asserting the homeowners’ access easements
subjected them to the same duty imposed on any property
owner—to act reasonably to keep the property (the private road)
safe from dangerous conditions. The appellate court rejected this
overbroad conception of duty, emphasizing the degree of control
of the easement holder was limited by the rights granted in the
easement. Because “[t]he respondents did not have a right of
control over Wick’s [the dog owner’s] property, Wick’s dogs, or the
road[,]” the court ruled, the easement holders could not be liable
for any dangerous condition. (Id. at p. 1241.)
       Extrapolating from the Cody F. court’s observation that it
was unaware of any case “in which an easement holder was held
responsible for an action that had no relationship to the scope of
the easement granted” (Cody F., supra, 92 Cal.App.4th at
p. 1243), Soto argues all that is required to impose a duty of due
care on Union Pacific as an easement holder is to demonstrate
the relationship between the harm (train accident) and the
purpose of Union Pacific’s easement (running its freight trains),
which, she maintains, she unequivocally did. Soto
misapprehends the import of the court’s statement, which simply
recognized that the easement holders had no control over a
dangerous condition unrelated to its easement. Nothing in the
court’s opinion eliminated the essential requirement of control
over the land containing the dangerous condition, which the
Cody F. court confirmed was at the heart of any claim for
premises liability. (Cody F., at p. 1241; accord, Alcaraz, supra,
14 Cal.4th at p. 1158; Preston v. Goldman, supra, 42 Cal.3d at
p. 119.)




                                15
        The court in Cody F. also rejected the plaintiffs’ contention,
similar to the enforcement argument Soto makes here, that each
homeowner’s ability to sue to enforce covenants and restrictions
prohibiting other homeowners from housing dangerous pets
provided the homeowners with the requisite control necessary to
impose a duty of due care in connection with the private road.
The Cody F. court explained the right of the easement holders to
file a lawsuit to enforce covenants and restrictions was optional,
not mandatory. There was no actual duty to exercise those
rights. (Cody F., supra, 92 Cal.App.4th at p. 1245; cf. Millan,
supra, 181 Cal.App.4th at p. 379 [public agency’s right to sue to
enforce its rules was not tantamount to control of land for
premises liability purposes].)
        Soto’s reliance on Uccello v. Laudenslayer (1975)
44 Cal.App.3d 504 (Uccello) is similarly misplaced. There, a
visitor injured by the tenant’s dangerous dog sued the landlord
for failing to protect others from the tenant’s dangerous pet. The
trial court entered a nonsuit in favor of the landlord following the
plaintiff’s opening statement. The appellate court reversed,
holding a jury could find the landlord knew the dog was vicious
and had sufficient control over the premises to prevent the injury.
Specifically, because the landlord had the right, under a month-
to-month tenancy agreement, to terminate the tenant’s lease
upon two weeks’ notice and rent the premises to someone else if
the tenant continued to house the dog on the property, the court
found “[i]t reasonably may be said that by virtue of the right of
termination, [landlord] had sufficient control over the premises so
as to bring the case within an exception to the general rule of
nonliability.” (Id. at p. 512.) Unlike the landlord in Uccello,
Union Pacific had no control over the dangerous condition, and no




                                 16
right to terminate the shared-use agreement. Any right to
construct a barrier belonged exclusively to Metrolink, which
owned the property and maintained “exclusive control” over the
shared-use facilities.
       Relying on Low v. City of Sacramento (1970) 7 Cal.App.3d
826, 833-834 (Low), Soto asserts that, at minimum, a jury could
find Union Pacific and Metrolink jointly controlled the shared-use
facilities. Low involved an action against the county for
dangerous condition of public property. Under Government Code
section 830, subdivision (c), public property includes “real or
personal property owned or controlled by the public entity, but
does not include easements . . . located on the property of the
public entity but are not owned or controlled by the public
entity.” The plaintiff in Low fell on a parking strip while visiting
a county hospital. The county owned the property, but had
granted a street easement to the city that included the parking
strip. On appeal following a liability verdict against both the
county and the city, the county argued it had no liability as a
matter of law because it had ceded control of the parking strip to
the city when it granted the city the easement. The court of
appeal affirmed the jury’s verdict against the county, citing
evidence that the county had continued to maintain the parking
strip despite the easement and hence retained, along with the
city, sufficient control of the parking strip to remedy the
dangerous condition. (Low, at pp. 833-834.)
       Soto insists that, like the city and county in Low, Union
Pacific and Metrolink shared maintenance duties for, and thus
control of, the crossing. To support this contention, Soto relies on
a provision in the shared-use agreement requiring Union Pacific
to pay an “agreed annual share” to cover maintenance and




                                17
annual wear and tear caused by its use of the shared-use
facilities, and Martinson’s testimony confirming that Union
Pacific paid a maintenance fee in accordance with the terms of
the shared-use agreement. Significantly, Soto cites no authority
for the proposition that the mere payment of a fee for
maintenance is the equivalent of actual maintenance or control
and we are not aware of any. A homeowner, for example, may
pay a fee to a homeowner’s association for maintenance of
common areas, but that payment alone would not make the
homeowner liable for injuries due to a dangerous condition in a
common area. (Cf. Amos v. Alpha Property Management (1999)
73 Cal.App.4th 895, 898 [citing landlord’s duty of care over
common areas].) In any event, any ambiguity on this point is
resolved by the language of the shared-use agreement, which, in
addition to requiring Union Pacific to pay a maintenance fee,
expressly states that Metrolink retains “exclusive control” over
operation, maintenance and repair of the shared-use facilities.
And, unlike in Low, Soto presented no evidence of maintenance
incompatible with that contract term.
       Finally, as part of her joint-control argument, Soto
highlights section 7.2 of the shared-use agreement, which
allocates liability/damages for personal injury between Union
Pacific and Metrolink depending on the circumstances of the
injury. For example, section 7.2(c)(v), provides that liability for
personal injury to a person at a crossing who is not an invitee
shall be borne by Union Pacific if its train was involved in the
accident, by Metrolink if its train was involved, and by both
Metrolink and Union Pacific equally if both of their trains were
involved. Section 7.2 does not assist Soto. The contracting
parties’ agreed allocation of liability/damages for personal injury




                                 18
is immaterial to Soto’s contention that Union Pacific controlled
                                                                   7
the shared-use facilities for purposes of imposing a duty of care.
       3. Summary Judgment Was Properly Granted in Union
          Pacific’s Favor on Soto’s Negligence Claim
       Union Pacific unquestionably had a duty of care to operate
its trains safely. (Civ. Code, § 1714, subd. (a); see Kesner v.
Superior Court, supra, 1 Cal.5th at p. 1142 [“‘California law
establishes the general duty of each person to exercise, in his or
her activities, reasonable care for the safety of others’”].) In
granting summary judgment the court ruled Union Pacific had
carried its initial burden to establish it exercised due care in
accordance with industry standards and Soto had failed to raise a
triable issue of material fact on that question.
       Soto disputes the court’s ruling, insisting Union Pacific
failed to carry its initial burden because it submitted no
admissible evidence that the train’s speed at the crossing was
reasonable and in accordance with the governing speed

7
      The parties argue that the public policies identified in
Rowland v. Christian (1968) 69 Cal.2d 108, 112 (the “Rowland
factors”) support their respective arguments. In light of our
holding that Union Pacific had no duty to make the premises
safe, we do not address the Rowland factors, which apply when a
statutory duty of care is found to exist and the question
presented is whether public policy supports a departure from that
general duty of care. (Regents of University of California v.
Superior Court (2018) 4 Cal.5th 607, 628 [Rowland evaluated to
determine if the court should “depart from the general rule of
duty”]; Vasilenko v. Grace Family Church, supra, 3 Cal.5th at
p. 1083 [Rowland factors weighed only when determining
whether a departure from general duty of care is appropriate];
Kesner v. Superior Court, supra, 1 Cal.5th at p. 1143 [same];
Cabral v. Ralphs Grocery Co., supra, 51 Cal.4th at p. 771 [same].)




                                19
limitations for that track/crossing. However, Heikkila stated,
based on the materials he reviewed and his personal knowledge
of the track, the applicable speed limit for that track and that
crossing was 45 miles per hour, which was the train’s speed at
the time Jimenez-Soto was killed. Soto objected to this aspect of
Heikkila’s testimony as hearsay, but the court overruled her
objection. Soto does not challenge this evidentiary ruling on
appeal. Accordingly, she has forfeited that claim. (Frittelli, Inc.
v. 350 North Canon Drive LP (2011) 202 Cal.App.4th 35, 41 [a
party that fails to “attack the [trial court’s evidentiary] rulings on
appeal . . . forfeit[s] any contentions of error regarding them”];
Lopez v. Baca (2002) 98 Cal.App.4th 1009, 1014-1015;
see generally Cahill v. San Diego Gas & Electric Co. (2011)
194 Cal.App.4th 939, 956 [“‘absence of cogent legal argument or
citation to authority allows this court to treat the contention as
waived’”].)
       Relying on Peri v. L.A. Junction Ry. (1943) 22 Cal.2d 111,
121 (Peri), Soto also contends triable issues of material fact exist
as to whether the train’s speed of 44 or 45 miles per hour was
reasonable at an at-grade crossing frequently travelled by
children on their way to a school bus. (See ibid. [“‘While it is true
that no rate of speed is negligence per se in the absence of a
statute or ordinance, it does not follow that a railroad company
will be permitted to run its trains under all conditions at any rate
of speed it may choose. It must regulate its speed with proper
regard for the safety of human life and property, especially when
running through towns and cities.’”].)
       Peri, however, was decided before Congress passed the
Federal Railroad Safety Act of 1970 (FRSA) (49 U.S.C.
§ 20101 et seq.), designed “to promote safety in every area of




                                 20
railroad operations and reduce railroad-related accidents and
incidents” (49 U.S.C. § 20101) by making “laws, regulations, and
orders related to railroad security . . . nationally uniform to the
extent practicable” (49 U.S.C. § 20106(a)(1)). In 2007 Congress
clarified the scope of the FRSA and its preemptive effect when it
expressly excluded from FRSA’s preemptive reach only those
state law claims for damages based on allegations that a party
failed to comply with (1) the federal standard of care; (2) its own
plan, rule or standard; or (3) a state law regulation or order not
incompatible with the FRSA. (49 U.S.C. § 20106(b)(1)(A)-(C);
see CSX Transp., Inc. v. Easterwood (1993) 507 U.S. 658, 664
[113 S.Ct. 1732, 123 L.Ed.2d 387] (Easterwood) [plaintiff’s state
law negligence/wrongful death claim based on excessive speed
alone did not satisfy preemption exceptions under 49 U.S.C
§ 20106(b)(1), and was thus preempted by FRSA]; see generally
Fair v. BNSF Railway Co. (2015) 238 Cal.App.4th 269, 277-278
[“FRSA preempts covered state law tort claims, in addition to
covered statutes and regulations”].) Soto’s excessive speed claim
does not involve allegations of Union Pacific’s failure to comply
with federal or state laws or regulations or its own internal rules
or standards. Accordingly, as in Easterwood, that aspect of Soto’s
negligence action is preempted.
       Soto asserts that, at the very least, triable issues of
material fact exist as to whether King should have applied the
brakes earlier, rather than waiting until impact to do so.
Assuming, without deciding, that this type of negligence action is
not preempted by the FRSA (see Easterwood, supra, 507 U.S. at
p. 675, fn. 15 [“this case does not present, and we do not address,
the question of FRSA’s pre-emptive effect on” common law claims
involving “the duty to slow or stop a train to avoid a specific,




                                21
individual hazard”]), Union Pacific carried its burden on
summary judgment to show it had no reason to apply the brakes
to avoid a hazard until it was too late. Heikkila opined in his
declaration (1) there was no federal or state regulation requiring
the train to slow down at the crossing; (2) there was no reason for
King to have slowed the train upon approaching the crossing; and
(3) King and Finch exercised due care in the operation of the
train before and at the crossing in accordance with railroad
industry standards. Heikkila also explained that earlier
application of the brakes to avoid Jimenez-Soto would not have
made any difference. To have avoided the accident, King would
have had to apply the brakes more than 16 seconds before
impact, long before Jimenez-Soto stepped onto the tracks.
Significantly, Soto supplied no evidence to rebut Heikkila’s
declaration. Her speculation that earlier braking was possible
and may have lessened the magnitude of Jimenez-Soto’s injuries
is not sufficient to defeat summary judgment. (See Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 [“[s]peculation
. . . is not evidence”]; Ochoa v. Pacific Gas & Electric Co. (1998)
61 Cal.App.4th 1480, 1487 [opposing party cannot controvert
moving party’s unequivocal expert declarations with speculation
and conjecture].)




                                22
                         DISPOSITION
      The judgment is affirmed. The Union Pacific parties are to
recover their costs on appeal.




                                         PERLUSS, P. J.

     We concur:



           ZELON, J.



           SEGAL, J.




                               23
Filed 2/13/20
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                SECOND APPELLATE DISTRICT

                        DIVISION SEVEN

IRMA YOLANDA MUNOZ                    B289712
SOTO,
                                      (Los Angeles County
       Plaintiff and Appellant,       Super. Ct. No. BC638956)

       v.                            ORDER CERTIFYING
                                     OPINION FOR
UNION PACIFIC RAILROAD               PUBLICATION
COMPANY et al.,                      (NO CHANGE IN THE
                                     APPELLATE JUDGMENT)
       Defendants and
       Respondents.

       THE COURT:
       The opinion in this case filed January 22, 2020 was not
certified for publication. It appearing the opinion meets the
standards for publication specified in California Rules of Court,
rule 8.1105(c), respondent Union Pacific Railroad Company’s
request pursuant to California Rules of Court, rule 8.1120(a) for
publication is granted.
       IT IS HEREBY CERTIFIED that the opinion meets the
standards for publication specified in California Rules of Court,
rule 8.1105(c); and
       ORDERED that the words “Not to be Published in the
Official Reports” appearing on page 1 of said opinion be deleted
and the opinion herein be published in the Official Reports.

____________________________________________________________
   PERLUSS, P. J.        ZELON, J.          SEGAL, J.
