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 

SOTO,

Plaintiff and Appellant,

v.

UNION PACIFIC RAILROAD 

COMPANY et al., 

Defendants and 

Respondents.

 B289712

 (Los Angeles County

 Super. Ct. No. BC638956)

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, 
2

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 
3

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 JimenezSoto. 

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. 
4

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-ininterest 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 

Pacific1the right to use the tracks, crossing and the warning 

systems (collectively “shared-use facilities”)2for 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 shareduse facilities as “[t]he Shared Use Tracks, all improvements 

relating thereto, all improvements used in rail service located 
5

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 

as it approached the crossing and struck Jimenez-Soto.3 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. 
6

System Special Instructions and Additions and Revisions to the 

GCOR.4 

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. 
7

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 perceptionreaction 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 
8

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 

the location of the whistle board,5 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. 
9

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 
10

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. 
11

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 

property.6 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. 
12

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 
13

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 shareduse 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 
14

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 shareduse 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 
15

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.) 
16

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 monthto-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
17

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 
18

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 
19

is immaterial to Soto’s contention that Union Pacific controlled 

the shared-use facilities for purposes of imposing a duty of care.7

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].) 
20

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 
21

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, 
22

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].) 
23

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. 
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 

SOTO,

Plaintiff and Appellant,

v.

UNION PACIFIC RAILROAD 

COMPANY et al., 

Defendants and 

Respondents.

 B289712

 (Los Angeles County

 Super. Ct. No. BC638956)

ORDER CERTIFYING 

OPINION FOR 

PUBLICATION

(NO CHANGE IN THE

APPELLATE JUDGMENT) 

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.