Anthony Gantner v. Pg&e Corporation

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 23, 2024
• Docket: 21-15571
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 23 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ANTHONY GANTNER, No. 21-15571

Appellant, D.C. No. 4:20-cv-02584-HSG

v. MEMORANDUM* PG&E CORPORATION; PACIFIC GAS & ELECTRIC COMPANY,

Appellees.

Appeal from the United States District Court for the Northern District of California Haywood S. Gilliam, Jr., District Judge, Presiding

Argued and Submitted January 12, 2022 Submission Withdrawn February 28, 2022 Resubmitted January 23, 2024 Pasadena, California

Before: BOGGS,** OWENS, and FRIEDLAND, Circuit Judges.

Anthony Gantner appeals the dismissal of his putative Class Action

Complaint against Pacific Gas & Electric Company and PG&E Corporation

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Danny J. Boggs, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. (collectively, “PG&E”), filed in the United States Bankruptcy Court for the

Northern District of California. Gantner alleges that, as a result of PG&E’s

negligence in maintaining its electrical equipment, PG&E had to engage in Public

Safety Power Shutoffs (“PSPSs”) during the 2019 fire season. The bankruptcy

court dismissed the Complaint, without leave to amend, holding that the negligence

claim against PG&E was preempted by section 1759 of the California Public

Utilities Code. The bankruptcy court held, in the alternative, that the Complaint

failed to allege a causal connection between PG&E’s negligence and Gantner’s

injury. Gantner appealed the dismissal of his Complaint to the United States

District Court for the Northern District of California, which affirmed. This timely

appeal followed.

On appeal to our court, PG&E argues that, in addition to the reasons that the

bankruptcy court gave for dismissing the Complaint, PG&E’s Electrical Rule

Number 14 (“Rule 14”) shields PG&E from liability for the 2019 PSPSs. We

review the grant of a motion to dismiss de novo. Naffe v. Frey, 789 F.3d 1030,

1035 (9th Cir. 2015). We have jurisdiction under 28 U.S.C. §§ 158(d)(1) and

1291, and we affirm.

We requested, pursuant to California Rule of Court 8.548, that the California

Supreme Court answer two questions of state law. Gantner v. PG&E Corp., 26

F.4th 1085, 1087 (9th Cir. 2022). First, we asked whether section 1759 preempts a

2 claim of negligence—like Gantner’s—that is brought against a utility when the

alleged negligent acts were not specifically approved by the California Public

Utilities Commission (“CPUC”), but those acts did foreseeably result in the

utility’s having to engage in PSPSs, pursuant to CPUC guidelines, which in turn

caused the plaintiff’s alleged injury. Id. Second, we asked whether Rule 14

shields PG&E from liability for an interruption in its services that PG&E

determines is necessary for the safety of the public at large, even if the need for

that interruption arises from PG&E’s own negligence. Id.

The California Supreme Court has now held that the answer to the first

question is “yes”—that is, it has resolved the section 1759 preemption question in

PG&E’s favor. Gantner v. PG&E Corp., 538 P.3d 676, 688 (Cal. 2023). In

accordance with that decision, we hold that Gantner’s negligence claim is

preempted by section 1759.

Because the section 1759 preemption issue is dispositive, we need not

address whether the Complaint adequately pleaded causation. Similarly, we need

not decide the Rule 14 question left open by the California Supreme Court. Id.

Finally, the bankruptcy court did not err in dismissing Gantner’s Complaint

without leave to amend, because his “pleading could not possibly be cured by the

allegation of other facts.” Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv.

Inc., 911 F.2d 242, 247 (9th Cir. 1990).

3 AFFIRMED.1

1 Gantner’s motion for judicial notice is denied as moot.