ORIGINAL PROCEEDINGS in mandate. William P. Barry, Judge. Petition granted. (Los Angeles County Super. Ct. No. TC021439).
The opinion of the court was delivered by: Willhite, Acting P. J.
CERTIFIED FOR PUBLICATION
This mandate proceeding challenges the trial court's denial of a motion for summary adjudication or judgment brought by the California Public Utilities Commission (PUC) in a wrongful death action arising out of a fatal accident at a railroad crossing. The crossing is controlled by flashing lights. Plaintiffs claim that the railroad crossing constitutes a dangerous condition because a 1989 PUC recommendation to upgrade the crossing's warning devices by installing a gate was not implemented. In responding to the PUC's motion, plaintiffs conceded that the PUC does not own the property on which the railroad crossing is located, but contended, nonetheless, that the PUC controls the property within the meaning of Government Code section 830*fn1 because of its regulatory power over the crossing, including its authority over installation of safety devices. The trial court adopted that analysis and denied the PUC's motion. Decisional law, however, supports a contrary conclusion: a public entity's ability to regulate property it neither owns nor possesses is not equivalent to a public entity having control of the property within the meaning of section 830. We therefore issue a writ of mandate compelling the trial court to summarily adjudicate in the PUC's favor the issue whether the PUC owed a duty to plaintiffs based upon its alleged control of the railroad crossing. In all other respects, we direct the trial court to deny the PUC's motion.
FACTUAL AND LEGAL BACKGROUND
1. The Accident and the Lawsuit
The fatal accident occurred in the City of Carson during the morning of December 4, 2006. Jeremy Salinas, an employee of Union Pacific Railroad Company (Union Pacific), was operating a moving train by remote control while he rode in the outside portion of one of the train's railcars. The train was travelling eastbound on Union Pacific's tracks as it approached Wilmington Avenue. The railroad crossing at Wilmington Avenue is controlled by eight-inch flashing lights which were installed in 1967.
Wilson Tubalado, driving a truck for Associated Consolidators Express, drove southbound off of the 405 freeway onto Wilmington Avenue toward the railroad crossing. At the crossing, Tubalado's truck collided with Union Pacific's train, pinning Salinas between the truck and the rail car. Salinas died several days later. He is survived by his wife and two children (collectively plaintiffs).
The PUC does not own, possess, or have an interest in the property on which the railroad crossing is located. Union Pacific is responsible for the maintenance of the flashing signals at the crossing as well as the surface of the crossing for two feet in either direction of the tracks; the California Department of Transportation (CalTrans) is responsible for the maintenance of the traffic lights at the freeway exit; and the City of Carson is responsible for the maintenance of the traffic signals at the surface streets.
Plaintiffs filed suit against, among others, the PUC, Union Pacific, Associated Consolidators Express, the City of Carson, and CalTrans. Plaintiffs' negligence allegations against the PUC are found in the third and fourth causes of actions of their complaint. The fifth cause of action for loss of consortium relies upon those negligence allegations.
Plaintiffs' negligence claim is primarily grounded upon sections 830, subdivision (c) and 835. In that regard, they allege essentially that the PUC (and other named defendants) owed a duty because they either owned or controlled "the highway/roadway/streets/grade crossing/intersection/ nearby intersections and the warning signals, traffic regulations and protections at the grade crossing" and that this public property constituted a dangerous condition. Plaintiffs further allege that the defendants, including the PUC, "failed to provide traffic control and/or warning signals, signs, markings or other devices necessary to warn of a dangerous condition that existed at the grade crossing when said signals, signs or devices would have eliminated the danger." As developed in the summary judgment proceeding, plaintiffs urged that had a gate been installed at the railroad crossing as had been recommended in 1989, the accident would not have occurred.
In addition, one paragraph in each of the third and fourth causes of action cites section 815.6 to support the allegation that the PUC is liable because it breached a mandatory duty to install a safety device at the crossing.*fn2
Union Pacific filed a cross-complaint against all the public entities, including the PUC.
The PUC, formerly called the Railroad Commission, is a regulatory body of constitutional origin. (Cal. Const., art. XII, § 1, et seq.) In addition to having the authority conferred upon it by the state constitution, it has the powers granted to it by the Legislature through enactment of the Public Utilities Code. In that regard, the Legislature has provided that no railroad track can be constructed across a public road, highway or street at grade without first obtaining permission from the PUC. (Pub. Util. Code, § 1201.) The PUC has "the exclusive power" "[t]o determine and prescribe the manner . . . and the terms of installation, operation, maintenance, use, and protection . . . of each crossing of a public or publicly used road or highway [or] a street by a railroad." (Pub. Util. Code, § 1202, subd. (a).) In addition, the PUC has the exclusive power "[t]o alter, relocate, or abolish by physical closing" any railroad crossing to pedestrian or motor traffic (Pub. Util. Code, § 1202, subd. (b)) but, because of federal law, lacks the power to bar a railroad from using the train tracks. (See 49 U.S.C. §§ 10501 & 20106.)
The PUC is "responsible for inspection, surveillance, and investigation of the rights-of-way, facilities, equipment, and operations of railroads" and shall use all powers granted by state and federal law "to enforce safety laws, rules, regulations, and orders." (Pub. Util. Code, § 309.7, subds. (a) & (c).) The PUC "may, after a hearing, require every public utility to construct, maintain, and operate its line, . . . system, equipment, . . . tracks, and premises in a manner so as to promote and safeguard the health and safety of its employees, passengers, customers, and the public. The commission may prescribe, among other things, the installation, use, maintenance, and operation of appropriate safety or other devices or appliances, including interlocking and other protective devices at grade crossings." (Pub. Util. Code, § 768.) If the PUC believes that a public utility (e.g., a railroad) is failing to do an act required by law, the PUC can commence an action in the superior court against it to seek relief by mandamus or injunction. (Pub. Util. Code, § ...