In re SDG&E Consolidated Cases

• Court: District Court, S.D. California
• Decided: February 19, 2021
• Docket: 3:17-cv-02433
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 IN RE SDG&E CONSOLIDATED Case No. 17-cv-02433-BAS-JLB CASES. Consolidated Case Nos. 12 (1) 18-cv-01389-BAS-JLB 13 (2) 18-cv-01390-BAS-JLB (3) 18-cv-01561-BAS-JLB 14

15 ORDER

16 (1) DENYING DEFENDANT’S 17 RULE 12(b)(1) MOTION TO DISMISS (ECF No. 115); 18

19 (2) GRANTING DEFENDANT’S REQUEST FOR JUDICIAL 20 NOTICE (ECF No. 115-10); 21 22 (3) DENYING DEFENDANT’S EVIDENTIARY OBJECTIONS 23 (ECF No. 122-1); and 24 (4) GRANTING DEFENDANT’S 25 MOTION FOR SUMMARY 26 JUDGMENT (ECF No. 115).

27 28 1 This action arises from a gas explosion at the Camp Pendleton Marine Corps base 2 that injured Plaintiffs. Plaintiffs are service members who were on board the Assault 3 Amphibious Vehicle that came into contact with a natural gas pipeline during a combat 4 readiness training. Plaintiffs brought negligence actions against Defendant SDG&E, who 5 supplied natural gas to Camp Pendleton. 6 The Court is first asked to decide whether it lacks subject matter jurisdiction because 7 this action presents a political question that is not justiciable. Because determining whether 8 SDG&E was negligent does not call into question the military’s decision-making authority, 9 this action does not present a nonjusticiable, political question. 10 The Court is next asked to decide whether SDG&E’s gas tariff rules, which are 11 approved by the California Public Utilities Commission, absolve SDG&E of tort liability 12 over the exploded gas line at issue, and, if so, whether the California Public Utilities Code 13 preempts Plaintiffs’ claims for damages. Because the gas line at issue belonged to the 14 military, not SDG&E, Rule 26 of SDG&E’s tariffs relieves SDG&E of tort liability. The 15 Court finds that this action is preempted because allowing Plaintiffs’ suit for damages 16 would hinder the California Public Utilities Commission’s regulatory authority. To the 17 extent that Plaintiffs raise any claim that is not preempted, the Court finds no genuine issue 18 of material fact that survives summary judgment. 19 20 BACKGROUND 21 Plaintiffs Marco Alires, Alexander Cruz, and Oscar De La Rosa participated in a 22 pre-deployment Marine Corps Combat Readiness Evaluation training that took place at the 23 Marine Corps Base Camp Pendleton on September 13, 2017. (Joint Statement of 24 Undisputed Material Facts, “JSUMF,” ¶ 1, ECF No. 160.) Plaintiffs were traveling 25 onboard an Assault Amphibious Vehicle (“AAV”) when the AAV came in contact with a 26 natural gas line (“Subject Gas Line”). The Subject Gas Line ruptured, leaked gas, and 27 caused an explosion (“Subject Explosion”), injuring Plaintiffs. Id. 28 1 SDG&E is a public utility company that has provided natural gas to Camp Pendleton 2 starting in the 1950s, including on the day of the Subject Explosion. (JSUMF ¶¶ 4, 6, 9.) 3 The Subject Gas Line was installed in the 1970s. (Id. ¶ 13.) SDG&E did not design, 4 construct, or install the Subject Gas Line. (Id. ¶ 12.) The Subject Gas Line was owned by 5 the United States government at all relevant times. (Id. ¶ 3.) 6 SDG&E has filed with the California Public Utilities Commission its tariffs, which 7 define the terms, conditions, rates, classifications, and attendant liabilities under which 8 SDG&E services its customers. (Id. ¶ 5.) SDG&E’s contract with the Navy, which governs 9 SDG&E’s sales of gas to Camp Pendleton, incorporates SDG&E’s tariffs. (Id. ¶¶ 6–7.) 10 Plaintiffs brought negligence actions against SDG&E. The Court consolidated 11 Plaintiffs’ actions. (Consolidation Order, ECF No. 19.) Plaintiffs amended their 12 Complaints. (Marco and Leah Alires’ Amended Complaint, “Alires FAC,” ECF No. 155; 13 Alexander Cruz’s Amended Complaint, “Cruz FAC,” ECF No. 156; Oscar De La Rosa’s 14 Amended Complaint, “De La Rosa FAC,” ECF No. 157.) 15 SDG&E moves to dismiss this action for lack of subject matter jurisdiction and, in 16 the alternative, moves for summary judgment. (ECF No. 115.) Plaintiffs filed an 17 Opposition (ECF No. 120), and SDG&E filed a Reply (ECF No. 122). The Court heard 18 oral argument on all motions. (ECF No. 172.) The motions are ripe for decision. 19 20 LEGAL STANDARD 21 I. Rule 12(b)(1) Motion to Dismiss 22 A Rule 12(b)(1) motion tests whether a court possesses subject matter jurisdiction 23 to adjudicate the claims in the action. Fed. R. Civ. P. 12 (b)(1); Savage v. Glendale Union 24 High Sch., 343 F.3d 1036, 1039–40 (9th Cir. 2003), cert. denied, 541 U.S. 1009 (2004). A 25 Rule 12(b)(1) jurisdictional attack may be either facial or factual. White v. Lee, 227 F.3d 26 1214, 1242 (9th Cir. 2000). 27 In a facial attack, the complaint is challenged as failing to establish federal 28 jurisdiction, even assuming that all of the allegations are true and construing the complaint 1 in light most favorable to the plaintiff. See Safe Air for Everyone v. Meyer, 373 F.3d 1035, 2 1039 (9th Cir. 2004). Thus, a motion to dismiss for lack of subject matter jurisdiction will 3 be granted if the complaint on its face fails to allege sufficient facts to establish jurisdiction. 4 See Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003). 5 In a factual attack, “by contrast, . . . the challenger disputes the truth of the allegations 6 that, by themselves, would otherwise invoke federal jurisdiction.” Safe Air for Everyone, 7 373 F.3d at 1039. “[T]he district court is not restricted to the face of the pleadings, but 8 may review any evidence, such as affidavits and testimony, to resolve factual disputes 9 concerning the existence of jurisdiction.” McCarthy v. United States, 850 F.2d 558, 560 10 (9th Cir. 1988). “Once the moving party has converted the motion to dismiss into a factual 11 motion by presenting affidavits or other evidence properly brought before the court, the 12 party opposing the motion must furnish affidavits or other evidence necessary to satisfy its 13 burden of establishing subject matter jurisdiction.” Savage, 343 F.3d at 1039 n.2. 14 15 II. Rule 56 Motion for Summary Judgment 16 “A party may move for summary judgment, identifying each claim or defense—or 17 the part of each claim or defense—on which summary judgment is sought.” Fed. R. Civ. 18 P. 56(a). Summary judgment is appropriate under Rule 56(c) where the moving party 19 demonstrates the absence of a genuine issue of material fact and entitlement to judgment 20 as a matter of law. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 21 (1986). A fact is material when, under the governing substantive law, it could affect the 22 outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A 23 dispute about a material fact is genuine if “the evidence is such that a reasonable jury 24 could return a verdict for the nonmoving party.” Id. at 248. 25 A party seeking summary judgment always bears the initial burden of establishing 26 the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. The moving 27 party can satisfy this burden in two ways: (1) by presenting evidence that negates an 28 essential element of the nonmoving party’s case; or (2) by demonstrating that the 1 nonmoving party failed to make a showing sufficient to establish an element essential to 2 that party’s case on which that party will bear the burden of proof at trial. Id. at 322–23. 3 “Disputes over irrelevant or unnecessary facts will not preclude a grant of summary 4 judgment.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th 5 Cir. 1987). 6 If the moving party meets this initial burden, the nonmoving party cannot defeat 7 summary judgment merely by demonstrating “that there is some metaphysical doubt as 8 to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 9 574, 586 (1986); see also Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th 10 Cir. 1995) (“The mere existence of a scintilla of evidence in support of the non-moving 11 party’s position is not sufficient.” (citing Anderson, 477 U.S. at 252)). Rather, the 12 nonmoving party must “go beyond the pleadings and by ‘the depositions, answers to 13 interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a 14 genuine issue for trial.’” Celotex, 477 U.S. at 324 (quoting former Fed. R. Civ. P. 56(e)). 15 When making this determination, the court must view all inferences drawn from the 16 underlying facts in the light most favorable to the nonmoving party. See Matsushita, 475 17 U.S. at 587. “Credibility determinations, the weighing of evidence, and the drawing of 18 legitimate inferences from the facts are jury functions, not those of a judge, [when] he [or 19 she] is ruling on a motion for summary judgment.” Anderson, 477 U.S. at 255. 20 21 ANALYSIS 22 I. Preliminary Matters 23 A. SDG&E’s Request for Judicial Notice 24 Federal Rule of Evidence 201 allows a court to take judicial notice of facts that are 25 either “(1) generally known within the territorial jurisdiction of the trial court; or 26 (2) capable of accurate and ready determination by resort to sources whose accuracy cannot 27 reasonably be questioned.” Fed. R. Evid. 201(b). The Court may also consider additional 28 documents under the “incorporation by reference” doctrine as long as “the plaintiff’s claim 1 depends on the contents of a document, the defendant attaches the document to its motion 2 to dismiss, and the parties do not dispute the authenticity of the document, even though the 3 plaintiff does not explicitly allege the contents of that document in the complaint.” Knievel 4 v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005). SDG&E requests the Court take judicial 5 notice of the following matters: 6 • certain information on the Marine Corps website about Camp Pendleton, 7 including statements that (A) Camp Pendleton has its “own utility distribution 8 systems” and (B) Camp Pendleton’s utility distribution system includes 9 “seven sewage treatment plants, 150 miles of sewer mainlines, 24 wells, 375 10 miles of water mainlines, 23 reservoirs, 145 miles of gas lines, 335 miles of 11 electrical lines, 215 electric substations and two landfills”; 12 • Marine Corps Order 7300.21B, Marine Corps Financial Management 13 Standard Operating Procedure Manual, Chapter 1 Authorizations and 14 Availability of Budgetary Resources. 15 (Def.’s Req. Judicial Notice, ECF No. 115-10.) Because Plaintiffs have not objected to 16 judicial notice of these documents, the Court GRANTS Defendant’s request and takes 17 judicial notice of the exhibits. 18 19 B. SDG&E’s Evidentiary Objections 20 SDG&E raises several evidentiary objections against Plaintiffs’ evidence filed in 21 support of their Opposition to Summary Judgment. (Def.’s Objections, ECF No. 122-1.) 22 For reasons stated below, the Court DENIES SDG&E’s Objections. 23 24 1. Relevancy Objections 25 SDG&E raises numerous objections under Rule 402 of the Federal Rules of 26 Evidence. “[O]bjections for relevance are generally unnecessary on summary judgment 27 because they are ‘duplicative of the summary judgment standard itself.’” Sandoval v. Cty. 28 1 of San Diego, 985 F.3d 657, 665 (9th Cir. 2021) (citing Burch v. Regents of Univ. of Cal., 2 433 F. Supp. 2d 1110, 1119 (E.D. Cal. 2006)). As the Ninth Circuit explained in Sandoval: 3 [I]f evidence submitted on summary judgment could create a genuine dispute of material fact, it is, by definition, “of consequence in determining the 4 action,” and therefore relevant. Conversely, if the submitted evidence does 5 not create a genuine dispute of material fact, there is no need for the court to separately determine whether it is relevant because, even assuming it is not, it 6 will not affect the ultimate summary judgment ruling. . . . [P]arties briefing 7 summary judgment motions would be better served to “simply argue” the import of the facts reflected in the evidence rather than expending time and 8 resources compiling laundry lists of relevance objections. 9 10 Id. (omitting citation). Therefore, the Court denies SDG&E’s evidentiary objections raised 11 under Rule 402 and reviews Plaintiffs’ evidence under the summary judgment standard. 12 13 2. Foundation Objections 14 SDG&E raises several objections for lack of foundation against Plaintiffs’ evidence, 15 including the Piernie Beck Field Investigation Report (Ex. 7 to Pls.’ Opp., ECF No. 120- 16 7) and the 2000 Technical Assessment (Ex. 17 to Pls.’ Opp., ECF No. 120-17). “[A]n 17 objection to admission of evidence on foundational grounds must give the basis for 18 objection in a timely way to permit the possibility of cure.” Sandoval, 985 F.3d at 666 19 (citing Jerden v. Amstutz, 430 F.3d 1231, 1237 (9th Cir. 2005)). SDG&E’s objections— 20 which simply state “Lacks Foundation / Speculation”—fall “well short of providing 21 Plaintiff[s] with notice of the specific ground of objection and, consequently, what could 22 be done to cure any defects.” Id. Therefore, these objections “provide[] no basis for 23 excluding the evidence.” Id. 24 25 3. Authentication Objections 26 SDG&E argues that certain evidence, including the Piernie Beck Field Investigation 27 Report (Ex. 7 to Pls.’ Opp.) and the 2000 Technical Assessment (Ex. 17 to Pls.’ Opp.), 28 must be excluded because the evidence was not authenticated. Documentary evidence 1 must be authenticated for use at the summary judgment stage. Hal Roach Studios, Inc. v. 2 Richard Feiner & Co., Inc., 896 F.2d 1542, 1555 (9th Cir. 1990). Under Rule 901(b)(4), 3 “documents . . . could be authenticated by review of their contents if they appear to be 4 sufficiently genuine.” Orr v. Bank of Am., NT & SA, 285 F.3d 764, 778 n. 24 (9th Cir. 5 2002). This means that 6 [i]f a party offers what appears to be correspondence, or for that matter a memorandum, notice, contract, statement, receipt, press release, or any other 7 written material, and if it is on what appears to be the printed or embossed 8 letterhead of a person, business, or any sort of corporate or other entity, such appearance alone should suffice to enable the trier of fact to conclude that the 9 writing came from the indicated source, at least in the absence of something 10 highly suspicious in the appearance or content of the letterhead itself or the accompanying written matter, or of counterproof indicating mistake or fraud. 11

12 5 Christopher B. Mueller and Laird C. Kirkpatrick, Federal Evidence § 9:6 (4th ed.) 13 (collecting cases). For example, a letter and receipt may be authenticated by distinctive 14 characteristics of letterhead and addressee. See Las Vegas Sands, LLC v. Nehme, 632 F.3d 15 526, 533 (9th Cir. 2011). 16 Here, the Field Investigation Report is written on a letterhead of the consultant, 17 Malcom Piernie, Inc., and is addressed to the military officials of the Navy and Camp 18 Pendleton. (Ex. 7 to Pls.’ Opp.) The 2000 Technical Assessment is SDG&E’s internal 19 document that bears SDG&E’s letterhead, produced by SDG&E. (Ex. 17 to Pls.’ Opp.) 20 Their appearance alone is enough for the Court to conclude that the reports are authentic. 21 SDG&E does not point out any counterproof indicating mistake, fraud, or something 22 suspicious in the appearance or content of the exhibits or the letterheads. In fact, an 23 SDG&E employee has testified at deposition that he was aware that “Malcolm Piernie 24 document[ed] a concern regarding the Camp Pendleton PVC piping.” (Reistetter Dep. at 25 77:12–13, ECF No. 120-1.) In addition, the authentication requirement is satisfied where 26 the document at issue is produced by a party in discovery and later offered by the opposing 27 party, which was the case for the 2000 Technical Assessment. See Maljack Productions, 28 Inc. v. GoodTimes Home Video Corp., 81 F.3d 881, 889 n. 12 (9th Cir. 1996). 1 Therefore, the Court declines to exclude Plaintiffs’ Exhibits 7 and 17. 2 3 4. Hearsay Objections 4 Hearsay is “a statement, other than one made by the declarant while testifying at the 5 trial or hearing, offered in evidence to prove the truth of the matter asserted.” Fed. R. Evid. 6 801(c). “In the absence of a procedural rule or statute, hearsay is inadmissible unless it is 7 defined as non-hearsay under Federal Rule of Evidence 801(d) or falls within a hearsay 8 exception under Rules 803, 804 or 807.” Orr, 285 F.3d at 778. 9 For purposes of motions for summary judgment, the focus is placed not on the 10 admissibility of the evidence’s form but “on the admissibility of its contents.” Sandoval, 11 985 F.3d at 666 (citing Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003)). This 12 means that 13 [i]f the contents of a document can be presented in a form that would be admissible at trial—for example, through live testimony by the author of the 14 document—the mere fact that the document itself might be excludable 15 hearsay provides no basis for refusing to consider it on summary judgment.

16 Id. 17 SDG&E has not shown that the evidence it objects to cannot be presented at trial in 18 an admissible form. For example, Exhibit 7 is a field investigation report prepared by a 19 consultant. SDG&E does not argue that the author of the report cannot be called to testify 20 at trial or that the contents of the document cannot be presented in a form that would be 21 admissible at trial. Therefore, the Court does not find that the hearsay rule provides a basis 22 for excluding the objected-to evidence in its entirety. To the extent that SDG&E intended 23 to object to only parts of the exhibits, its unexplained generalized objections are insufficient 24 to raise such an objection. See Sandoval, 985 F.3d at 666. 25 Therefore, the Court denies SDG&E’s evidentiary objections. 26 // 27 // 28 // 1 II. Rule 12(b)(1) Motion: Political Question Doctrine 2 SDG&E moves to dismiss Plaintiffs’ action for lack of subject matter jurisdiction 3 under Rule 12(b)(1), based on the political question doctrine. “In general, the Judiciary 4 has a responsibility to decide cases properly before it, even those it ‘would gladly avoid.’” 5 Zivotofsky v. Clinton, 566 U.S. 189, 194–95 (2012) (quoting Cohens v. Virginia, 19 U.S. 6 264, 404 (1821)). The “political question doctrine” is a “narrow exception” to the 7 Judiciary’s Article III responsibility. Id. at 195 (citing Japan Whaling Ass’n v. Am. 8 Cetacean Soc’y, 478 U.S. 221, 230 (1986)). The doctrine “excludes from judicial review 9 those controversies which revolve around policy choices and value determinations 10 constitutionally committed for resolution to the halls of Congress or the confines of the 11 Executive Branch[.]” Japan Whaling Ass’n, 478 U.S. at 230. As such, “[t]he political 12 question doctrine concerns the jurisdictional ‘case or controversy requirement’ of Article 13 III of the Constitution, . . . and the Court must address it ‘before proceeding to the 14 merits[.]’” Ahmed Salem Bin Ali Jaber v. United States, 861 F.3d 241, 245 (D.C. Cir. 15 2017) (citing first Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 215 16 (1974) and quoting second Tenet v. Doe, 544 U.S. 1, 6 n.4 (2005)). If a political question 17 is inextricable from a case, the doctrine “prevents a plaintiff’s claims from proceeding to 18 the merits.” Ahmed Salem Bin Ali Jaber, 861 F.3d at 245 (citing Baker v. Carr, 369 U.S. 19 186 (1962)). 20 There are at least six different “formulations” for determining whether a case 21 presents a political question that is understood to deprive a federal court of subject matter 22 jurisdiction. Baker, 369 U.S. at 217. SDG&E argues that this case meets each of the six 23 formulations outlined in Baker, which are (1) “a textually demonstrable constitutional 24 commitment of the issue to a coordinate political department”; (2) “a lack of judicially 25 discoverable and manageable standards for resolving it”; (3) “the impossibility of deciding 26 without an initial policy determination of a kind clearly for nonjudicial discretion”; (4) “the 27 impossibility of a court’s undertaking independent resolution without expressing lack of 28 the respect due [to] coordinate branches of government”; (5) “an unusual need for 1 unquestioning adherence to a political decision already made”; or (6) “the potentiality of 2 embarrassment from multifarious pronouncements by various departments on one 3 question.” Baker, 369 U.S. at 217. “Unless one of these formulations is inextricable from 4 the case at bar, there should be no dismissal for non-justiciability on the ground of a 5 political question’s presence.” Id. 6 Here, the question at issue is whether SDG&E was negligent in handling the Subject 7 Gas Line or the gas that SDG&E supplied. While it is true that the Subject Explosion took 8 place during military training, “governmental operations are a traditional subject of damage 9 actions in the federal courts.” Koohi v. United States, 976 F.2d 1328, 1331 (9th Cir. 10 1992)(collecting cases). “[N]ot even military judgments are completely immune from 11 judicial review.” McMahon v. Presidential Airways, Inc., 502 F.3d 1331, 1358 (11th Cir. 12 2007). Accordingly, it is necessary to examine the Baker formulations to determine 13 whether the suits against SDG&E “will require [the Court] to reexamine a military 14 judgment; and if so, whether the military judgment is the kind that warrants application of 15 the political question doctrine.” Id. 16 17 A. A Decision Constitutionally Committed to the Executive or Legislative 18 Branch 19 The first Baker formulation excludes from judicial review certain decisions that the 20 Constitution commits to the legislative and executive branches of the federal government. 21 McMahon, 502 F.3d at 1358–59. In McMahon, the court held that the first Baker 22 formulation did not apply to a suit against a private contractor who was “not, itself, a 23 coordinate branch of the United States government.” McMahon, 502 F.3d at 1359. 24 McMahon arose from a plane crash during a military operation that killed three soldiers. 25 A deceased soldier’s surviving family member brought a wrongful death claim against the 26 private contractor that owned and operated the crashed plane. The court held that the 27 defendant needed to carry a “double burden” to invoke the first Baker formulation: the 28 defendant had to “demonstrate that the claims against it will require reexamination of a 1 decision by the military” and then “demonstrate that the military decision at issue is . . . 2 insulated from judicial review.” Id. at 1359–60. Finding no evidence to satisfy the 3 defendant’s dual burden, the McMahon court concluded that the first Baker formulation 4 did not apply. Id. at 1360–61 (finding that the military contract reserved responsibility for 5 the alleged negligent operation to the defendant, and the military’s duties were “relatively 6 discrete” that did not relate to any allegations raised by the plaintiff). 7 Here, SDG&E has not met its burden to show that litigating Plaintiffs’ claims will 8 require a reexamination of a decision by the military. Plaintiffs’ operative pleadings allege 9 that SDG&E did not “properly inspect” the Subject Gas Line, failed to “warn of an 10 unreasonably dangerous condition,” and did not “make [an] unreasonably dangerous 11 condition safe[r].” (Alires FAC ¶ 24.i, l, m; Cruz FAC ¶¶ 23.i, l, m; De La Rosa FAC 12 ¶¶ 23.i, l, m.) SDG&E argues that it owed no duty of care in the first place because it 13 lacked ownership over the Subject Gas Line and never serviced it for the military. At this 14 stage, determining the merits of the central question—whether SDG&E owed and breached 15 a duty of care—does not require the Court to reexamine a decision by the military. 16 To the extent that SDG&E relies on Aktepe v. USA, 105 F.3d 1400 (11th Cir. 1997), 17 that action was brought directly against the United States, and “it was obvious, even from 18 the complaint, that the suit would require the court to review actual, sensitive judgments 19 made by the military.” See McMahon, 502 F.3d at 1362 (construing Aktepe). Those facts 20 are not present here. This case is more similar to McMahon, in that resolving the 21 negligence claims at issue would not require the Court to reexamine a military judgment. 22 Therefore, the first Baker formulation does not apply. 23 24 B. Judicially Discoverable and Manageable Standards 25 The second Baker formulation excludes from judicial review cases that lack 26 “judicially manageable standards for resolving” the merits. Baker, 369 U.S. at 217. While 27 cases involving military decisions frequently lack judicially manageable standards, the 28 mere fact that the underlying events took place as part of an authorized military operation 1 does not make the action judicially unmanageable. See Koohi, 976 F.2d at 1331 (“[T]he 2 claim of military necessity will not, without more, shield governmental operations from 3 judicial review.”). In Koohi, the Ninth Circuit held that “[a] key element in [the court’s] 4 conclusion that the plaintiffs’ action is justiciable is the fact that the plaintiffs seek only 5 damages for their injuries.” Id. at 1332. Here, too, Plaintiffs seek only damages for their 6 injuries arising out of SDG&E’s alleged negligence. Determining whether SDG&E was 7 negligent and how much damages SDG&E may owe Plaintiffs is a straightforward 8 application of tort law that is within the expertise of the judiciary. See id. (“Damage actions 9 are particularly judicially manageable.”) 10 SDG&E relies upon Aktepe, 105 F.3d at 1400, but that case is distinguishable from 11 this action. There, the court held that the plaintiffs’ action against the United States 12 required the court to determine “how a reasonable military force would have conducted the 13 drill”—a question over which courts lack judicially manageable standards to resolve. See 14 Aktepe, 105 F.3d at 1404. Here, the only issue relevant to Plaintiffs’ claims against 15 SDG&E is whether SDG&E owed a duty to Plaintiffs and, if so, whether SDG&E breached 16 that duty. At this point of the litigation, a decision by the military is not called into 17 question. 18 19 C. Other Baker Formulations 20 SDG&E has not demonstrated that the remaining Baker formulations apply to this 21 case. The Court also notes that the United States has not moved to join this action. “The 22 apparent lack of interest from the United States to this point fortifies [the Court’s] 23 conclusion that the case does not yet present a political question.” McMahon, 502 F.3d at 24 1365. 25 In sum, SDG&E has not shown that Plaintiffs’ action against it raises a political 26 question not committed to the judicial branch. Therefore, the Court denies SDG&E’s Rule 27 12(b)(1) motion. 28 1 III. Rule 56 Motion for Summary Judgment 2 Having found that Plaintiffs’ claims are justiciable, the Court turns to the merits of 3 SDG&E’s motion for summary judgment. 4 5 A. Negligence 6 Plaintiffs’ operative complaints raise claims of negligence against SDG&E. (Alires 7 FAC ¶¶ 14–25; Cruz FAC ¶¶ 13–24; De La Rosa FAC ¶¶ 13–24.) The elements of a 8 negligence cause of action are: “ (a) a legal duty to use due care; (b) a breach of such legal 9 duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.” Ladd v. 10 Cty. of San Mateo, 12 Cal. 4th 913, 917 (1996) (citing Evan F. v. Hughson United 11 Methodist Church, 8 Cal. App. 4th 828, 834 (1992)). SDG&E argues that Plaintiffs’ 12 negligence claim should be dismissed on summary judgment because (1) SDG&E lacks a 13 duty of care to Plaintiffs under Rule 26 of SDG&E’s tariffs, which were approved by the 14 California Public Utilities Commission (“PUC”); (2) SDG&E did not design, install, 15 maintain, or mark the Subject Gas Line as alleged in the operative complaint; and 16 (3) Plaintiffs’ claims are preempted under the California Public Utilities Code. 17 18 1. Duty of Care Under SDG&E’s Tariffs Rule 26 19 SDG&E first argues that under SDG&E’s tariffs, it lacks any duty of care over the 20 Subject Gas Line. Tariffs refer collectively to the sheets setting forth the terms and 21 conditions of a utility’s services to its customers that the utility must file, maintain, and 22 publish as directed by the PUC. Davis v. S. California Edison Co., 236 Cal. App. 4th 619, 23 623 n.6 (2015); see Cal. Pub. Util. Code. § 489(a). SDG&E filed its tariffs with the PUC. 24 (JSUMF ¶ 5.) 25 Rule 26 of SDG&E’s tariffs states that SDG&E “shall not be responsible for the 26 selection, installation, operation, maintenance, or condition of any Consumer Equipment 27 or for any injuries or damages resulting therefrom.” (Rule 26, ECF No. 115-30.) The 28 tariffs define “Consumer Equipment” as “[a]ll equipment for receiving and utilizing gas 1 from the Company, including, but not limited to, any and all pipes, gas related fixtures, and 2 gas-burning appliances downstream of the Service Delivery Point.” (Rule 1, ECF No. 115- 3 28.) “Service Delivery Point” is defined as a “[p]oint where the utility’s pipe connects to 4 the customer’s house line, usually the meter location.” Id. In sum, Service Delivery Point 5 marks where SDG&E’s responsibility for a gas line stops. 6 Plaintiffs argue that because the military installation is more complex than a typical 7 customer’s “house line,” Rule 26 is not applicable. Plaintiffs have not offered any support 8 for their argument that military installations are not within the scope of Rule 26. In 9 contrast, SDG&E has offered evidence that both the military and SDG&E treated the 10 master meter located on Basilone Road in the San Onofre 2 housing area in Camp 11 Pendleton as the Service Delivery Point. (Reistetter Decl. ¶¶ 7–10, ECF No. 115-7; Wolfe 12 Depo. 169:2–9, ECF No. 115-13.) Further, if Plaintiffs were correct, all businesses, 13 apartments, or any location other than a residential customer would be exempt from Rule 14 26’s limitation of liability. Plaintiffs have not offered an acceptable rationale that would 15 support such a broad exemption. The Court finds that Rule 26 applies here. Under Rule 16 26, the master meter on Basilone Road was the Service Delivery Point, and all equipment 17 downstream of the master meter was Consumer Equipment. 18 Having so found, the Court next turns to determine whether SDG&E has met its 19 burden to show that there is no genuine issue of material fact as to its lack of a duty of care 20 under Rule 26. SDG&E produced the deposition testimony of the Marine Corps’ deputy 21 of facilities, Steven R. Wolfe, who testified that the military has owned and operated the 22 Subject Gas Line, including on the date of the explosion. (Wolfe Depo. 158:8–13; 161:7– 23 10, 170:10–13, 258:5–15.) This testimony is supported by SDG&E’s engineer, David P. 24 Reistetter, who declared that the military “owns and is responsible for all gas lines and 25 equipment located downstream of SDG&E’s master meter, including the pipeline that 26 connects to SDG&E’s master meter and the Subject Gas Line.” (Reistetter Decl. ¶ 10, ECF 27 No. 115-7.) In addition, Wolfe testified that it is the military that is and was responsible 28 for maintaining and repairing the Subject Gas Line and that he was not aware that SDG&E 1 provided any maintenance or repair services for Camp Pendleton. (Wolfe Depo. 162:5– 2 12, 258:16–23, 262:9–13.) Wolfe also testified that it was the military that installed the 3 signage for the Subject Gas Line. (Id. 81:9–12.) 4 Thus, SDG&E has met its initial burden of production, and the burden passes to 5 Plaintiffs. Plaintiffs have not pointed out to the Court specific facts that would call into 6 doubt SDG&E’s evidence. The parties also stipulate to the fact that SDG&E did not 7 design, construct, or install the Subject Gas Line. (JSUMF ¶ 12.) The Court finds no 8 triable issue of fact as to the application of Rule 26 and finds that SDG&E was not 9 “responsible for the selection, installation, operation, maintenance, or condition of” the 10 Subject Gas Line “or for any injuries or damages resulting therefrom.” (Rule 26, ECF No. 11 115-30.) 12 13 2. Duty of Care Under Common Law 14 Plaintiffs argue that under common law, natural gas providers like SDG&E owe a 15 duty to correct, or require correction of, a known danger in the pipeline.1 Plaintiffs rely on 16 Ambriz v. Petrolane, Ltd., 49 Cal. 2d 470 (1957), in which the California Supreme Court 17 held that a butane gas supplier who “[knew] the customer’s line [was] defective” had a 18 duty to “take precautions according to the circumstances.” Ambriz, 49 Cal. 2d at 478–79. 19 In Ambriz, the defendant butane gas supplier had filled the gas tank for the plaintiffs’ cabin 20 without conducting a “proper inspection . . . to see that the cabin outlets were not leaking.” 21 Ambriz, 49 Cal. 2d at 474. The court found that “[a]s a result of the negligence of 22 defendants in failing to make an inspection before filling the tank, gas escaped into 23 24

25 1 At oral argument, Plaintiffs raised a new argument that Rule 11 of SDG&E’s Tariffs and Rule 26 22 of PUC’s General Order No. 58A required SDG&E to discontinue supplying the gas to the Subject Gas Line. The Court rejects this argument. “[T]he Court need not consider issues raised for the first time 27 during oral argument.” Makaeff v. Trump Univ., LLC, 26 F. Supp. 3d 1002, 1007 n.2 (S.D. Cal. 2014). Plaintiffs had the opportunity to brief their argument but did not do so, and the Court declines to consider 28 1 plaintiffs’ cabin, and . . . the explosion and fire occurred, proximately resulting in the death 2 of the children and injuries to plaintiffs.” Id. Asked whether the defendant owed a duty of 3 care to the plaintiffs, the court found that “[t]aking all the circumstances together, including 4 the insufficiency of the valves, the dangerous nature of the gas, the knowledge of [the 5 defendant] and that it gave no instructions to [its customers], that the tank was filled for 6 the first time during the year,” the defendant owed and breached the duty to “take 7 precautions according to the circumstances” about the known danger in the plaintiffs’ gas 8 system. Id. at 480. 9 10 i. Whether Plaintiffs Impermissibly Raise a New Theory 11 As an initial matter, SDG&E argues that the Court should decline to reach the merits 12 of Plaintiffs’ theory of liability based on Ambriz because Plaintiffs cannot now raise legal 13 theories not previously raised in the pleadings. SDG&E relies on Wasco Prod., Inc. v. 14 Southwall Techs., Inc., 435 F.3d 989 (9th Cir. 2006). In Wasco, the plaintiff, who had not 15 pleaded the basic elements of conspiracy in its complaint, later sought to raise a fraudulent 16 conspiracy claim for the first time in its opposition to the defendant’s motion for summary 17 judgment. Id. The court held that the plaintiff’s belated conspiracy claim could not 18 proceed, based in part on Rule 9(b), which requires all allegations of fraud to be specifically 19 pleaded. Id. Here, Plaintiffs have pleaded the basic elements of negligence in their 20 operative complaints. (Alires FAC ¶¶ 14–25; Cruz FAC ¶¶ 13–24; De La Rosa FAC ¶¶ 13– 21 24.) Namely, the complaints allege that SDG&E did not “properly inspect” the Subject 22 Gas Line, did not “warn of an unreasonably dangerous condition,” and failed to “make 23 unreasonably dangerous condition safe.” (Alires FAC ¶ 24.i, l, m; Cruz FAC ¶¶ 23.i, l, m; 24 De La Rosa FAC ¶¶ 23.i, l, m.) These allegations are aligned with the theory of liability 25 under Ambriz. Based on the above, the Court finds the holding in Wasco inapplicable to 26 this action. 27 // 28 // 1 ii. Whether Plaintiffs’ Claims are Preempted 2 The question is whether section 1759 of the California Public Utilities Code and 3 SDG&E’s tariffs preempt Plaintiffs’ claims. The California Public Utilities Code provides, 4 [n]o 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, 5 correct, or annul any order or decision of the commission or to suspend or 6 delay the execution or operation thereof, or to enjoin, restrain, or interfere with the commission in the performance of its official duties, as provided by law 7 and the rules of court. 8 9 Cal. Pub. Util. Code § 1759 (West). At the same time, the Public Utilities Code allows 10 actions for damages to be filed against “[a]ny public utility which does, causes to be done, 11 or permits any act, matter, or thing prohibited or declared unlawful, or which omits to do 12 any act, matter, or thing required to be done, either by the Constitution, any law of this 13 State, or any order or decision of the commission.” Cal. Pub. Util. Code § 2106. This 14 creates a tension: “Section 1759 defines and limits the power of courts to pass judgment 15 on, or interfere with, what the commission does. Section 2106, on the other hand, confirms 16 the full power of the courts to pass judgment on what utilities do.” Cundiff v. GTE 17 California Inc., 101 Cal. App. 4th 1395, 1406 (2002). 18 The California Supreme Court has held that section 1759 has “primacy” over section 19 2106, which means that actions permitted by section 2106 must “be construed as limited to 20 those situations in which an award of damages would not hinder or frustrate the 21 commission’s declared supervisory and regulatory policies.” San Diego Gas & Elec. Co. 22 v. Superior Court (Covalt), 13 Cal. 4th 893, 917 (1996). To make that determination, 23 courts must ask: (1) whether the PUC had the authority to adopt a regulatory policy on the 24 subject matter of the litigation; (2) whether the PUC has exercised that authority; and 25 (3) whether judicial action would hinder or interfere with the PUC’s exercise of regulatory 26 authority. Kairy v. SuperShuttle Int’l, 660 F.3d 1146, 1150 (9th Cir. 2011) (construing 27 Covalt, 13 Cal. 4th at 923–43). 28 1 Here, Plaintiffs allege that SDG&E violated its common-law duty of care outlined 2 in Ambriz. Plaintiffs’ claims based on Ambriz fall within “the broad language of Public 3 Utilities Code § 2106, which permits private suits against public utilities for violations of 4 ‘any law of this State.’” See Kairy, 660 F.3d at 1151 (citing Cal. Pub. Util. Code § 2106). 5 Thus, the Court must apply the Covalt factors to resolve the potential conflict between the 6 PUC’s statutory jurisdiction and Plaintiffs’ claims raised under Ambriz. 7 8 a. PUC Authority to Regulate Rates 9 The first Covalt factor requires the Court to decide if the PUC has the authority to 10 adopt a regulatory policy on the subject matter of this litigation—that is, the limitation of 11 a public utility’s liability as a part of regulating the rates of the public utility’s service. The 12 PUC “has far-reaching duties, functions, and powers, and . . . the California Constitution 13 confers broad authority on the commission to regulate utilities.” Kairy, 660 F.3d at 1151 14 (citing Covalt, 13 Cal. 4th at 914–15). Moreover, the state statute specifically obligates 15 the PUC to regulate the rates that a public utility may charge and the rules, contracts, and 16 privileges that relate to the rates or service. Cal. Pub. Util. Code § 761. “The commission 17 is specifically empowered to require utilities to file tariff schedules containing rates, 18 charges and classifications, ‘together with all rules, contracts, privileges, and [facilities] 19 which in any manner affect or relate to rates, tolls, rentals, classifications, or service.’” 20 Waters v. Pac. Tel. Co., 12 Cal. 3d 1, 6 (1974) (quoting Cal. Pub. Util. Code. § 489(a)); 21 see also Hartwell Corp. v. Superior Court, 27 Cal. 4th 256, 270 (2002) (“The PUC’s most 22 obvious regulatory authority includes the regulation of rates.”) 23 Further, “[a] public utility’s tariffs filed with the PUC have the force and effect of 24 law.” Dollar–A–Day Rent–A–Car Sys., Inc. v. Pac. Tel. & Tel. Co., 26 Cal. App. 3d 454, 25 457 (Ct. App. 1972). This means that once the tariff is approved, “it is the PUC, 26 empowered by the Legislature, and not the parties to the transaction, which by approving 27 the tariff fixed the terms and conditions upon [the transaction].” Trammell v. W. Union 28 Tel. Co., 57 Cal. App. 3d 538, 550 (Ct. App. 1976). 1 In W. Union Tel. Co. v. Esteve Bros. & Co., 256 U.S. 566 (1921), the Supreme Court 2 explained the rationale behind the inclusion of a liability limitation provision in tariffs 3 setting cable and telegram rates: 4 The limitation of liability was an inherent part of the rate. The company could no more depart from it than it could depart from the amount charged for the 5 service rendered. 6 7 W. Union Tel. Co. v. Esteve Bros. & Co., 256 U.S. 566, 571 (1921). Similarly, the 8 California Supreme Court has recognized that “general principles which might govern 9 disputes between private parties are not necessarily applicable to disputes with regulated 10 utilities,” whose “means of limiting its liability for ordinary negligence has been considered 11 and approved by [PUC], and taken into account in setting its rates.” Waters, 12 Cal. 3d at 12 10. Here, too, Rule 26’s limitation of SDG&E’s liability has been approved by the PUC 13 as an inherent part of the rate that SDG&E charges. 14 In sum, both the general regulatory powers of the PUC and specific authorization by 15 law empower the PUC to regulate the limitation of a public utility’s liability, as a part of 16 its authority to regulate the utility’s rates and terms of service. 17 18 b. PUC Exercise of Its Authority to Regulate 19 The second Covalt factor asks whether the PUC has exercised its authority. The 20 PUC’s approval of a regulated utility’s tariff rules is an exercise of its authority. Davis v. 21 S. California Edison Co., 236 Cal. App. 4th 619, 642 (2015); accord N. Star Gas Co. v. 22 Pac. Gas & Elec. Co., No. 15-CV-02575-HSG, 2016 WL 5358590, at *10 (N.D. Cal. Sept. 23 26, 2016). Here, SDG&E has filed its tariffs with the PUC. (JSUMF ¶ 5.) It is not disputed 24 that the PUC approved SDG&E’s tariffs, including Rule 26. The PUC has exercised its 25 authority to regulate the rates and the attendant scope of liability of the public utility’s 26 service. 27 // 28 // 1 c. Hindrance to PUC’s Exercise of Regulatory Authority 2 The final Covalt factor requires the Court to determine whether the judicial action 3 would hinder or interfere with the PUC’s exercise of regulatory authority. In Waters v. 4 Pac. Tel. Co., 12 Cal. 3d 1(1974), the California Supreme Court held that allowing a suit 5 for damages against the public utility would “thwart” the PUC’s regulatory authority, 6 where the PUC had approved a tariff rule that limited the utility’s liability for ordinary 7 negligence. Id. at 10. Construing Waters, the Covalt court explained that 8 an action for damages against a public utility pursuant to section 2106 is barred by section 1759 not only when an award of damages would directly 9 contravene a specific order or decision of the commission, i.e., when it would 10 “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 11 or regulatory policy of the commission, i.e., when it would “hinder” or 12 “frustrate” or “interfere with” or “obstruct” that policy.

13 Covalt, 13 Cal. 4th at 918 (citing Waters, 12 Cal. 3d at 3–4, 11). 14 Here, similar to the outcome in Waters, allowing Plaintiffs’ action for damages tied 15 to SDG&E’s alleged negligence concerning the Subject Gas Line would directly contradict 16 Rule 26, which became a part of the PUC’s policy setting the rates for the natural gas utility 17 upon the PUC’s approval of Rule 26. Rule 26 excludes from SDG&E’s liability personal 18 injury that stems from any Consumer Equipment. The evidence establishes that the Subject 19 Gas Line was owned by the military, and Rule 26 waives SDG&E’s liability over such 20 Consumer Equipment. See supra Part III.A.1. Therefore, allowing Plaintiffs’ claim for 21 damages would contradict the PUC’s regulatory policy. 22 This case is different from cases in which courts have held that a private right of 23 action would not interfere with the PUC’s authority. For example, in Wilson v. S. 24 California Edison Co., 234 Cal. App. 4th 123, 151 (2015), the court held that a negligence 25 action against electrical utility over stray voltage was not barred “[in] the absence of any 26 indication that the PUC has . . . regulated the issue of stray voltage, and without any 27 evidence that stray voltage cannot be mitigated without violating the PUC’s regulation.” 28 Id. Here, by approving SDG&E’s tariffs, the PUC has exercised its authority to regulate 1 the rates and the attendant scope of liability of the provision of natural gas. Rule 26 of 2 SDG&E’s tariffs absolves SDG&E of the precise liability that Plaintiffs seek to enforce 3 here—the liability for personal injury resulting from the condition or maintenance of 4 equipment not owned by SDG&E. Therefore, this action is more analogous to Waters than 5 to Wilson. A damage award in this action would conflict with the PUC’s policies and 6 interfere with its regulation of natural gas utilities. 7 In sum, all three Covalt factors require the Court to conclude that section 1759 of 8 the California Public Utilities Code preempts Plaintiffs’ claims. 9 10 iii. Plaintiffs’ Remaining Arguments 11 At oral argument, Plaintiffs’ counsel argued that because Plaintiffs’ theory of 12 liability is not focused on the “selection, installation, operation, maintenance, or condition” 13 of the Subject Gas Line, Plaintiffs’ claims are not within the scope of Rule 26 and therefore 14 not preempted. The Court rejects this argument because Plaintiffs’ core theory of 15 liability—that SDG&E owed, and breached, a duty of care “to design, install, maintain and 16 mark the gas lines on Camp Pendleton”—is squarely within the scope of Rule 26.2 17 Plaintiffs’ counsel further argued that SDG&E should be held liable under Ambriz 18 for its failure to discontinue the supply of gas to the Subject Gas Line, inspect the Subject 19 Gas Line, or correct the dangerous conditions of the Subject Gas Line. The Court rejects 20 this argument for several reasons. First, Rule 11 of SDG&E’s tariffs disclaims SDG&E’s 21 “responsibility of inspecting or repairing the customer’s facilities or other equipment or 22 any part thereof.” (SDG&E Tariffs Rule 11.B.6, http://regarchive.sdge.com/tm2/pdf/ 23 24

25 2 Plaintiffs’ operative pleadings allege that SDG&E owed a duty of care “to design, install, 26 maintain and mark the gas lines on Camp Pendleton” and that “[a]s a direct and proximate result of Defendants’ conduct in the design, installation, maintenance and marking of the subject gas line, the 27 subject gas line created a dangerous condition for Marines training in military vehicles,” thereby injuring Plaintiffs. (Alires FAC ¶¶ 16, 18, 21, 23; Cruz FAC ¶¶ 15, 17, 20, 22; De La Rosa FAC ¶¶ 15, 17, 20, 28 1 GAS_GAS-RULES_GRULE11.pdf.) Rule 11, along with other SDG&E gas rules 2 approved by the PUC, is a part of the PUC’s policy setting the rates for the natural gas 3 utility. For the same reasons discussed above, section 1759 of the California Public 4 Utilities Code preempts Plaintiffs argument that SDG&E failed to inspect the Subject Gas 5 Line. See supra Part III.A.2.ii. 6 Second, preemption aside, no reasonable fact finder could conclude that SDG&E 7 had knowledge of the condition of the Subject Gas Line such that it was required to 8 discontinue supplying gas to the Marine Corps base. See Anderson, 477 U.S. at 248 9 (holding that summary judgment may not be defeated unless “the evidence is such that a 10 reasonable jury could return a verdict for the nonmoving party”). SDG&E points to 11 Plaintiffs’ own expert’s conclusion that “the rupture of the [Subject Gas Line] was 12 preventable primarily if adequate earthen coverage had existed in accordance with the 13 Camp Pendleton Requirements and, secondarily, had adequate Pipeline markings and 14 signage been installed.” (Witness Statement of John A. Williams ¶ 1.0.0.2, Ex. B to 15 Williams Decl., ECF No. 120-54 at 58.) Based on this evidence, SDG&E reasons that the 16 only material fact issue relevant to determining whether SDG&E is liable under Ambriz is 17 whether SDG&E knew the Subject Gas Line was inadequately marked or buried. The 18 Court agrees. To prove SDG&E’s knowledge, Plaintiffs point to an incident that took place 19 a few months before the Subject Explosion in which a bulldozer struck and cracked the 20 Subject Gas Line. Plaintiffs argue that SDG&E must have been placed on notice of the 21 inadequate marking or burying of the Subject Gas Line then, given the standard procedure 22 of the Marines that would have required calling SDG&E anytime there is a digging 23 operation at the base.3 Plaintiffs also rely on an incident report documenting the bulldozer’s 24

26 3 Plaintiffs’ evidence of the alleged standard procedure consists of (1) a deposition testimony of 27 Reistetter, who testified that SDG&E is “a member of a one-call system,” also known as the “Dig Alert” or “Call 811” (Reistetter Dep. at 64:20–25, ECF No. 120-1); and (2) an emergency contact list that 28 1 contact with the Subject Gas Line, which mentions SDG&E in two places: 2 “REQUESTING SDGE ON GAS SIDE” and “SDGE AT 52 AREA GAS STATION.” 3 (ECF No. 120-19.) SDG&E offers evidence that its own records are devoid of receiving 4 notice about the bulldozer incident or that SDG&E was involved in, or was requested to 5 conduct, any repairs or inspection of the Subject Gas Line following the bulldozer incident. 6 (Engel Decl. ¶ 12; Declaration of Eileen Salvaggio ¶¶ 6–8, ECF No. 115-9.) The evidence, 7 read in the light most favorable to Plaintiffs, would at best show that someone called the 8 811 number about the bulldozer incident, and that SDG&E was present at a gas station in 9 “52 area” at the day of the incident. Plaintiffs do not offer affidavit, declaration, or 10 deposition testimony of a witness who has personal knowledge of the incident report that 11 could provide more explanation as to the significance of the alleged call to SDG&E on the 12 day of the bulldozer incident. Speculation cannot create a genuine issue of material fact. 13 Stephens v. Union Pac. R.R. Co., 935 F.3d 852, 856 (9th Cir. 2019). The evidence simply 14 does not allow a reasonable factfinder to conclude, without engaging in speculation, that 15 SDG&E was placed on notice of an inadequate marking, burying, or any other condition 16 of the Subject Gas Line such that it was required to discontinue supplying gas to the Marine 17 Corps base. Plaintiffs have not shown that they can defeat summary judgment, even if the 18 Court were to assume that their claims are not preempted. 19 Therefore, the Court grants summary judgment on Plaintiffs’ negligence cause of 20 action. 21 22 B. Negligence Per Se 23 SDG&E argues that Plaintiffs’ negligence per se theory should be dismissed on 24 summary judgment. Having found that Plaintiffs’ negligence claims are preempted under 25 the California Public Utilities Code, the Court need not reach the issue. 26 // 27 // 28 // l CONCLUSION 2 For the reasons stated above, the Court DENIES Defendant’s Rule 12(b)(1) Motion 3 Dismiss raised under the political question doctrine. (ECF No. 115.) 4 The Court GRANTS Defendant’s Request for Judicial Notice. (ECF No. 115-10.) 5 The Court DENIES Defendant’s Evidentiary Objections. (ECF No. 122-1.) 6 The Court GRANTS Defendant’s Motion for Summary Judgment. (ECF No. 115.) 7 IT IS SO ORDERED. 8 A , 9 || DATED: February 19, 2021 Lin A (Lyohaa. 6 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AK