Opinion
A165783
10-27-2023
JAMES L. DUNCAN, Plaintiff and Appellant, v. SONOMA-MARIN AREA RAIL TRANSIT DISTRICT, Defendant and Respondent; CITY OF SANTA ROSA et al., Real Parties in Interest.
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCV 266092
Markman, J. [*]
Plaintiff James Duncan wants respondent Sonoma-Marin Area Rail Transit District (SMART) to build a pedestrian and bicycle crossing across SMART's railway at Jennings Avenue in Santa Rosa (the Crossing). Based on this belief that the City of Santa Rosa has an enforceable agreement with SMART that requires SMART to build the Crossing for $1.825 million, Duncan asserted 10 claims in his writ petition and complaint for declaratory and injunctive relief to achieve this objective. Duncan appeals from the trial court's judgment against him as a result of SMART's successful demurrer on two causes of action and its subsequent summary judgment on the remaining eight causes of action.
In summary, Duncan's first five causes of action sought declaratory relief based on an alleged agreement between SMART and Santa Rosa to build the Crossing. Duncan's sixth, ninth, and tenth causes of action sought damages and a writ of mandate that would require SMART to comply with decisions by the California Public Utilities Commission (PUC) related to the Crossing. Duncan's seventh claim sought declaratory relief that an agreement between SMART and the County of Sonoma concerning which entity would bear the cost of improvements in "quiet zones," where train horns are not routinely sounded, be declared void. The eighth cause of action sought a writ of mandate directing that SMART mitigate quiet zone noise entirely at its own expense. Duncan claims that quiet zone improvements are SMART's responsibility under the California Environmental Quality Act (CEQA), but he says SMART has required Sonoma County to cover the costs instead and is trying to get Santa Rosa to do the same.
The trial court sustained SMART's demurrer on Duncan's sixth and tenth causes of action without leave to amend. The court later granted SMART's motion for summary judgment on the remaining causes of action.
We are not persuaded by Duncan's arguments on appeal and so we affirm the judgment in its entirety.
The facts set forth in parts A-E, post, are undisputed unless otherwise noted.
A. SMART
The Legislature established SMART in 2002 to oversee the development and implementation of passenger rail service in Sonoma and Marin Counties. In anticipation of this service, SMART prepared environmental impact reports (EIR) as required by CEQA. Among other things, the EIRs identified quiet zones along the anticipated route of planned rail service as a mitigation measure to address train horn noise at grade crossings. SMART proposed supplemental safety measures-like gates-in quiet zones, known as quiet zone "improvements," to make up for the lack of horn blasts that would typically warn people not to cross in front of an oncoming train.
Pursuant to Resolution No. 2012-21, SMART's board of directors (Board) gave its general manager authorization to enter into "reimbursement agreements with cities, counties and other public entities." Such agreements would govern "cooperative work in SMART's corridor."
B. Public Utilities Commission Decision No. 16-09-002
The City Council of Santa Rosa approved the Crossing in 2012. Santa Rosa then applied to the PUC for authorization to build it. The PUC granted Santa Rosa's application in its Decision No. 16-09-002. (Application of the City of Santa Rosa (Sept. 20, 2016) Cal. P.U.C. Dec. No. 16-09-002 (Decision No. 16-09-002).) Specifically, the PUC decision granted "the City of Santa Rosa's application to construction an at-grade pedestrian and bicycle crossing across the Sonoma-Marin Area Rail Transit tracks at Jennings Avenue in Santa Rosa." While noting that the PUC disfavors new at-grade railroad crossings, it concluded that Santa Rosa "has convincingly shown that it has eliminated all potential safety hazards."
"No public road, highway, or street shall be constructed across the track of any railroad corporation at grade . . . without having first secured the permission of the commission." (See Pub. Util. Code, § 1201.) Undesignated statutory references are to the Public Utilities Code.
C. Reimbursement and Quiet Zone Agreements
After receiving PUC authorization for the Crossing, Santa Rosa began negotiations with SMART to build it. Santa Rosa's assistant city manager engaged in numerous back-and-forth discussions with SMART's chief engineer to design the Crossing and to hash out the terms of a proposed agreement.
On June 9, 2017, SMART's chief engineer sent an e-mail to Santa Rosa's assistant city manager that attached two documents: a "Master Reimbursement Agreement" (Reimbursement Agreement) and an "Agreement for Construction and Maintenance Safety Improvements Related to Quiet Zone" (the Santa Rosa Quiet Zone Agreement). The Reimbursement Agreement stated, among other things, that SMART contractors would construct the project and Santa Rosa would reimburse SMART in an amount not to exceed $1,825,000. The document included signature lines for SMART's general manager and Santa Rosa's city manager. The Santa Rosa Quiet Zone Agreement stated, among other things, that Santa Rosa would pay or reimburse SMART for certain costs incurred for SMART's maintenance, repair, and replacement of quiet zone improvements.
The cover e-mail read: "Enclosed for your review is what is hopefully the final version of the Jennings At-Grade Pedestrian Crossing funding agreement. This version incorporates the changes that we discussed on May 31st. It has also been reviewed by our legal counsel. I have included both a marked-up version and a clean/final version. [¶] I have also included the Quiet Zone maintenance agreement that our counsels have been preparing. Please have this executed with the Jennings agreement. [¶] The Jennings agreement will need to go to our Board. The next available meeting is June 21st. The deadline to make the Board agenda is June 14th. Please have the agreement signed and return with a letter requesting that SMART construct the crossing by COB June 14th. [¶] Please call with questions."
A week later, Santa Rosa's assistant city manager delivered a letter enclosing a copy of the Reimbursement Agreement signed by the city manager. It did not include the Santa Rosa Quiet Zone Agreement. The letter stated: "The master reimbursement agreement for the Jennings Avenue At-Grade rail crossing project has been signed by the City Manager for consideration at the June 21, 2017 SMART [Board meeting]. The City of Santa Rosa requests that SMART construct the Jennings Avenue Crossing per the conditions of the agreement. Please return a signed copy of the agreement when it is approved by the Board."
SMART's general manager never signed the Reimbursement Agreement and SMART's Board never approved it. According to Duncan, SMART's general manager "unilaterally delayed performance" of the Reimbursement Agreement by insisting Santa Rosa sign the Santa Rosa Quiet Zone Agreement.
SMART, however, did enter into an "Agreement for Maintenance of Safety Improvements Related to Quiet Zone" with Sonoma County (the Sonoma Quiet Zone Agreement). It requires, among other things, that Sonoma County "[p]ay, or reimburse SMART for, all costs incurred for SMART's maintenance, repair, and replacement of Quiet Zone Improvements" within certain county right-of-way assets.
At oral argument, Duncan explained that the matter of quiet zone improvements has involved SMART, Santa Rosa, and Sonoma County because each owns certain railroad right-of-way assets.
D. SMART Board Meetings and Correspondence
SMART's passenger rail service started in August 2017, without the Crossing (which remains unbuilt). Duncan has presented evidence in this action relating to SMART [Board] meetings and correspondence from which he seeks to infer that SMART had agreed to build the Crossing under the terms set out in the Reimbursement Agreement. Specifically, SMART's Board had a meeting on September 20, 2017. According to the transcript of the meeting, SMART's chief engineer was presenting an agenda item regarding a contract for systems work on a rail extension to Larkspur. SMART's general manager then stated that this other contract would build the systems for the Jennings "contract." The Board chair responded, "Oh good ...."
In August 2018, SMART's chief engineer sent a letter to the Santa Rosa assistant city manager after a meeting regarding the Crossing. It stated that "[a]fter a year of operating experience and an extensive safety review of the area," SMART could not support Santa Rosa's proposal for the Crossing. It referenced two pedestrian fatalities, including one in Santa Rosa, as well as the striking of a cyclist and truck driver in Santa Rosa. The letter noted that the proposed Crossing was at a "double-track location," which "means trains come from both directions, at very short intervals." It stated: "As we have learned after a year of operating, the proposed safety features will not prevent a distracted pedestrian or cyclist from entering this crossing. In addition, the double-track configuration means a farther distance to travel without a refuge area, increasing the risk of a pedestrian being struck by a train."
SMART's Board had another meeting on September 19, 2018. According to the minutes of the meeting, SMART's general manager noted that the PUC had approved the Crossing, but it was a public safety concern for SMART.
E. Public Utilities Commission Decision No. 19-10-002
The PUC's original authorization for the Crossing (in Dec. No. 16-09002) was set to expire after three years. In 2019, Santa Rosa filed a petition for modification asking the PUC to extend the authorization for two more years. The PUC granted the petition in its PUC Decision No. 19-10-002. Decision No. 19-10-002 stated, among other things, that the PUC "expects that SMART shall comply with [Decision No.] 16-09-002 and cooperate in good faith with the City to reach an agreement regarding the construction of the approved crossing at Jennings Avenue."
In 2021, Santa Rosa filed another petition for modification to extend the authorization to September 2023. In that petition, Santa Rosa asserted that SMART had not complied with the PUC's expectation to cooperate in good faith. The PUC granted the petition. It also stated: "Given the shortness of time before the authorization's expiration, there is insufficient time to fully ascertain whether SMART has indeed cooperated with the City.... At this time, we do not give weight to parties' positions as to whether SMART has or has not been cooperating in good faith with the City."
PROCEDURAL BACKGROUND
A. This Action
Duncan filed this action against SMART in February 2020, with Santa Rosa and Sonoma County as real parties in interest. Duncan filed a first amended petition for writ of mandate and complaint for declaratory and injunctive relief shortly thereafter, asserting 10 causes of action. SMART filed a demurrer on all 10 claims. The trial court sustained the demurrer as to the sixth and tenth causes of action, but with leave to amend.
B. Second Amended Petition
Duncan filed the second amended petition for writ of mandate and complaint for declaratory and injunctive relief (petition). The petition again asserted 10 causes of action.
As summarized above, the first through fifth causes of action sought declaratory relief related to the Reimbursement Agreement. Specifically, they sought declarations that (1) the agreement is "binding and enforceable," (2) the written language of the agreement "precluded SMART from any unilateral modification" and "did not express any conditions precedent to its becoming final upon SMART's acceptance of Santa Rosa's signed copy," (3) the reimbursement amount for construction of the Crossing shall not exceed $1,825,000, (4) the paragraph in the agreement authorizing SMART to close or remove the Crossing is void, and (5) SMART has breached the agreement and damaged Santa Rosa.
Duncan's sixth, ninth, and tenth causes of action related to SMART's alleged duties under Decisions Nos. 16-09-002 and 19-10-002. The sixth cause of action alleged that SMART had breached a "mandatory duty" to comply with Decision No. 16-09-002, and requested that Santa Rosa be awarded $5,000,000 in damages. The ninth cause of action sought a writ of mandate directing SMART to comply with Decisions Nos. 16-09-002 and 1910-002. The tenth cause of action alleged that SMART breached a "mandatory duty" to comply with Decision No. 19-10-002, and requested that Santa Rosa be awarded $5,000,000 in damages.
The seventh and eighth causes of action related to the two quiet zone agreements: the draft sent by SMART's chief engineer to Santa Rosa (but not signed or returned by Santa Rosa), and the agreement actually executed between SMART and Sonoma County. Duncan's seventh cause of action sought a declaration that the Sonoma Quiet Zone Agreement is contrary to CEQA and void. The eighth cause of action sought a writ of mandate directing SMART to "fully perform" its duty under CEQA to mitigate the significant environmental impact of train horn noise within quiet zones "entirely at its own expense" and to enjoin SMART from "modifying or deleting" its quiet zone mitigation measure without formal review and substantial evidence.
C. SMART's Second Demurrer
SMART demurred to the sixth and tenth causes of action-each alleging SMART's failure to perform a mandatory duty-a second time. The trial court sustained the demurrer, this time without leave to amend. It concluded that the sixth and tenth causes of action were "necessarily premised on breach of a broader mandatory duty than that which can be gleaned from the PUC Decisions, i.e. breach of a duty to build or expedite construction." It explained that Decision No, 16-09-002 "approved construction of the Crossing (and mandated certain actions by the applicant, the City) but did not mandate the construction."
D. Administrative Complaint
In June 2021, Duncan filed an administrative complaint against SMART with the PUC. It alleges, among other things, that SMART has violated Decisions Nos. 16-09-002 and 19-10-002. It alleges that SMART entered into the Reimbursement Agreement to construct the Crossing, but "unexpectedly suspended" construction when Santa Rosa did not enter into a quiet zone agreement and asserted that the Crossing was unsafe. It alleges that any quiet zone agreement contravenes SMART's duty to mitigate under CEQA. The administrative complaint asks the PUC to find that SMART is "not complying with the laws of this State" and to see that SMART's violations of "provisions of the Constitution and statutes of this State affecting public utilizes" are "promptly prosecuted and penalties are imposed and collected." At oral argument, the parties represented that the administrative complaint is still pending before the PUC.
E. Summary Judgment
SMART moved for summary judgment on the remaining first through fifth, seventh, eighth, and ninth causes of action, arguing that Duncan could not establish key elements of these claims. The record on summary judgment included declarations from both SMART's general manager and chief engineer. SMART's general manager explained that he was not involved in drafting the proposed Reimbursement Agreement and did not exercise any discretion under Resolution No. 2012-21 (which, as described above, vests the general manager with powers to negotiate reimbursement agreements with other public entities) related to that draft. The proposed Reimbursement Agreement had to be presented to and approved by the Board before it was entered and executed into, but was not. SMART's chief engineer declared that he did not have authority to enter into the proposed Reimbursement Agreement. The trial court considered these two declarations over Duncan's objections.
The trial court granted summary judgment. On the first through fifth causes of action, the trial court concluded that SMART had shifted its burden by presenting evidence that SMART never agreed to the Reimbursement Agreement, and thus it is not binding. The court concluded that Duncan had then failed to meet his burden in response, to produce evidence of a triable issue of material fact regarding the acceptance of the Reimbursement Agreement by SMART. On the seventh through ninth causes of action, the trial court concluded that Duncan had a substantially similar action pending before the PUC, and the court's jurisdiction was precluded by section 1759.
The trial court entered judgment against Duncan and in favor of SMART. Duncan appealed.
DISCUSSION
Duncan challenges the trial court's judgment disposing of all his causes of action. We address the court's reasoning in its order sustaining SMART's demurrer and its subsequent order granting summary judgment in turn.
The trial court's final judgment did not mention its earlier order on SMART's demurrer. And the order on SMART's demurrer barred Duncan leave to amend but did not actually dismiss the sixth and tenth causes of action. We exercise our discretion to save Duncan's appeal by modifying the trial court's judgment to reflect dismissal of Duncan's sixth and tenth causes of action. (See Hill v. City of Long Beach (1995) 33 Cal.App.4th 1684, 1695.)
I. Demurrer
Duncan argues that the trial court erred in sustaining the demurrer on the sixth and tenth causes of action, which alleged breach of SMART's "mandatory duty" to comply with Decisions Nos. 16-09-002 and 19-10-002. We conclude the trial court did not err.
A. Standard of Review
We review de novo a dismissal after an order sustaining a demurrer without leave to amend. (Amiodarone Cases (2022) 84 Cal.App.5th 1091, 1100.)" '"' "We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law." '" '" (Ibid.)" '"' "We also consider matters which may be judicially noticed." '" '" (Ibid.)
B. Analysis
The trial court concluded that Duncan failed to identify a "mandatory duty" imposed on SMART by the PUC to build the Crossing, such that SMART would have failed to perform in connection with the PUC's 2016 and 2019 decisions authorizing the Crossing. The PUC has broad power to regulate public utilities in California. (San Diego Gas &Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 914-915 (Covalt) [PUC has "broad authority to 'supervise and regulate every public utility in the State' "].) Section 702 provides: "Every public utility shall obey and comply with every order, decision, direction, or rule made or prescribed by the commission in the matters specified in this part, or any other matter in any way relating to or affecting its business as a public utility, and shall do everything necessary or proper to secure compliance therewith by all of its officers, agents, and employees."
Duncan's sixth cause of action relies on the theory that "public agencies are liable for damages caused by their breach of a mandatory duty." Section 815.6 of the Government Code provides that, where a public entity is "under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty."
Potential governmental liability for breach of a mandatory duty is confined to" 'rigidly delineated circumstances.'" (Guzman v. County of Monterey (2009) 46 Cal.4th 887, 897.)"' "An enactment creates a mandatory duty if it requires a public agency to take a particular action. [Citation.] An enactment does not create a mandatory duty if it merely recites legislative goals and policies that must be implemented through a public agency's exercise of discretion." '" (San Mateo Union High School District v. County of San Mateo (2013) 213 Cal.App.4th 418, 429, quoting Lockhart v. County of Los Angeles (2007) 155 Cal.App.4th 289, 308.) Courts have construed this requirement" 'rather strictly, finding a mandatory duty only if the enactment "affirmatively imposes the duty and provides implementing guidelines." '" (San Mateo Union High School Dist., at p. 429, quoting Guzman, at p. 898.)
Duncan's sixth cause of action failed because the PUC never mandated that SMART build the Crossing. As the trial court explained, Decision No. 16-09-002 authorized construction of the Crossing; it did not mandate the construction (or SMART's execution of the Reimbursement Agreement). Duncan argues that he alleged SMART "delayed performance" of the Reimbursement Agreement, failed to present the Reimbursement Agreement to SMART's Board for approval, and raised safety concerns about the Crossing.
Given the strict standards for assessing a mandatory duty, however, such allegations fail because they rely on a broader duty than any created by Decision No. 16-09-002. (Guzman v. County of Monterey, supra, 46 Cal.4th at p. 897.) That decision did not impose a mandatory duty on SMART to build the Crossing, or do so under the terms set out in the proposed Reimbursement Agreement.
Duncan's tenth cause of action fails for much the same reason. He alleged SMART breached its mandatory duty to comply with Decision No. 1910-002 when it expressed safety concerns and did not approve of Santa Rosa's subsequent proposal for safety improvements. Duncan points to Decision No. 19-10-002, in which the PUC expressed that it "expects that SMART shall comply with [Decision No.] 16-09-002 and cooperate in good faith with the City to reach an agreement regarding the construction of the approved crossing at Jennings Avenue."
It is unclear whether the PUC itself understands its expectation that SMART should cooperate in good faith with Santa Rosa as a "decision" or "directive" creating any duty. Even if it did, Decision No. 19-10-002 did not create a mandatory duty that SMART refrain from raising its own safety concerns about the Crossing or build the Crossing under the terms of the Reimbursement Agreement. Duncan's petition lacked any allegations that SMART raised safety concerns in bad faith; instead, it alleged that the safety concerns were based on claims of "new or changed conditions." Nor must we accept Duncan's contention that, at the September 2018 Board meeting, SMART's general manager stated, "in effect" that Decision No. 16-09-002 was "wrongly decided" and should be "disregarded." (See Morton v. Loveman (1968) 267 Cal.App.2d 712, 717 [plaintiff may not plead allegations that contradict pleaded exhibits].) According to the minutes proffered by Duncan, SMART's general manager acknowledged that the PUC had approved the Crossing, but stated that SMART nonetheless had its own safety concerns.
When extending authorization of the Crossing to 2023, the PUC stated: "If in fact SMART is proved to have not been cooperating in good faith with the City, SMART may be in violation of D.16-19-002 or D.19-10-001." (Italics added.)
In sum, we agree with the trial court that Duncan's petition failed to allege facts regarding breach of any mandatory duty imposed on SMART by the PUC. The trial court did not err in sustaining the demurrer without leave to amend on the sixth and tenth causes of action.
Given this conclusion, we need not address Duncan's additional arguments that he alleged sufficient facts related to regarding formation of the mandatory duty owed to the PUC, availability of damages, and the trial court's jurisdiction on the sixth and tenth causes of action.
II. Summary Judgment
Duncan argues that the trial court erred by granting summary judgment because (1) the trial court improperly denied some of his requests for judicial notice and overruled most of his evidentiary objections, and (2) there were triable issues of material fact on his first through fifth, seventh, eighth, and ninth causes of action. Before addressing the merits of these arguments, however, SMART asserts that summary judgment was proper because Duncan lacked standing on his first through fifth causes of action. We begin with SMART's arguments on standing.
A. Standing
SMART argues that Duncan lacks standing because (1) he is not an interested party under the alleged contracts (the Reimbursement and quiet zone agreements); and (2) he does not meet the requirements to support taxpayer standing under Code of Civil Procedure section 526a. Before the trial court on its summary judgment motion, however, SMART never raised the question of taxpayer standing in its opening or reply brief. SMART only raised the issue of standing based on Duncan's lack of status as a party or third party beneficiary under the Reimbursement Agreement in its reply brief. These standing issues-both under Code of Civil Procedure section 526a and as a non-party to the alleged contracts at issue-were not adequately briefed, and the trial court did not have occasion to rule on standing under these theories. (See McDonald's Corp. v. Board of Supervisors (1998) 63 Cal.App.4th 612, 618 ["Under familiar general rules, theories not raised in the trial court may not be raised for the first time on appeal"].) We decline to address the issues here, particularly given they would not change the ultimate disposition of this appeal.
B. No Evidentiary Error
Duncan asserts various challenges to (1) the trial court's rulings on his requests for judicial notice, and (2) his objections to SMART's summary judgment evidence.
1. Requests for Judicial Notice
Duncan argues that the trial court made three errors when it ruled on his requests for judicial notice. We review rulings on judicial notice for abuse of discretion. (Physicians Committee for Responsible Medicine v. Los Angeles Unified School Dist. (2019) 43 Cal.App.5th 175, 182.)
First, Duncan argues that the trial court improperly denied his request for judicial notice of the SMART chief engineer's June 9, 2017 e-mail, but granted SMART's request for judicial notice of the same document. The trial court need not take judicial notice of the same document twice. (See Evid. Code, § 452 [judicial notice not particular to requesting party].)
Second, Duncan argues that the trial court improperly denied his requests for judicial notice of "official" correspondence: e-mails from SMART's chief engineer regarding the Reimbursement and quiet zone agreements; e-mails from Santa Rosa's assistant city manager to a citizens advocacy group and Duncan regarding the status of the Crossing; and the August 2018 letter from SMART's chief engineer after a meeting regarding the Crossing. The trial court denied these requests "as lacking an articulable legal effect as an official act." We agree with the trial court.
Evidence Code section 452, subsection (c) provides that judicial notice may be taken of "[o]fficial acts of the legislative, executive, and judicial departments of the United States and of any state of the United States." Duncan has not offered any authority that the informal status e-mails or letter described above constitute official acts subject to judicial notice. (Cf. In re Kavanaugh (2021) 61 Cal.App.5th 320, 358, fn. 17 [judicial notice of administrative statements]; Fisher v. County of Orange (2022) 82 Cal.App.5th 39, 49 [judicial notice of advisory letter].) Even if they were somehow "official acts" under Evidence Code section 452, Duncan does not explain how judicial notice of these documents would have raised a triable issue of material fact. There is nothing to suggest that the trial court excluded them from consideration of the proffered evidence. On the contrary, these documents support the court's conclusion that the evidence showed SMART never agreed to the Reimbursement Agreement: the June and November 2017 e-mails from Santa Rosa's assistant city manager reported that SMART was "unwilling to execute" the Reimbursement Agreement, and urged SMART to "procced [sic] with the process of executing" that agreement.
Duncan instead cites authority related to the admissibility of hearsay evidence, not judicial notice. (J & A Mash & Barrel, LLC v. Superior Court (2022) 74 Cal.App.5th 1, 17-18; People v. Fields (1998) 61 Cal.App.4th. 1063, 1068-1069.)
Third, Duncan argues that the trial court improperly denied his request for judicial notice of (a) a reimbursement agreement between SMART and Santa Rosa unrelated to the Crossing, which instead allowed for construction of a pathway in the city's downtown Railroad Square, (b) an excerpt from SMART's EIR, and (c) voter materials regarding a tax ordinance for support of SMART projects. The trial court need not take judicial notice of an irrelevant, unrelated agreement. (See, e.g., TransparentGov Novato v. City of Novato (2019) 34 Cal.App.5th 140, 146, fn. 3 [declining judicial notice as unnecessary to decision].) Nor did it abuse its discretion in denying the other two sets of documents in the request, which were relevant only to support Duncan's understanding of SMART's duty to mitigate noise at its own expense. "Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning," and the trial court properly declined to take judicial notice over the documents. (Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374.)
2. Evidentiary Objections
Duncan argues that the trial court made three errors when it ruled on his objections to SMART's summary judgment evidence. A number of decisions recognize a split in authority concerning whether we review rulings by the trial court on evidentiary objections de novo or for abuse of discretion on summary judgment. (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 255, fn. 4; Reid v. Google, Inc. (2010) 50 Cal.4th 512). As in those same cases, however, we need not resolve any debate because we conclude there was no reversible error in the challenged evidentiary rulings under either standard.
Turning to the specific errors raised by Duncan, he argues first that the trial court improperly overruled his objections to the declarations of SMART's general manager and chief engineer. Second, he argues that the trial court should not have overruled the balance of his 72 evidentiary objections without enumerating its reasons. Third, Duncan argues that SMART should not have submitted a reply to its own separate statement of undisputed facts. We reject each of Duncan's evidentiary arguments.
(a) SMART'S Declarations
Duncan objected to the declarations submitted by SMART as containing "expert opinion" and stating legal conclusions instead of "evidentiary facts." On appeal, he points specifically to statements by SMART's general manager that (i) the Reimbursement Agreement required Board approval and (ii) he did not exercise discretion under Resolution No. 2012-21 to execute the Reimbursement Agreement.
The trial court reasonably concluded that these facts were within the declarant's personal knowledge and expertise as a public official. Code of Civil Procedure section 437c, subdivision (d) provides, in relevant part, that supporting declarations on summary judgment shall be made "on personal knowledge" and showing competence to testify on the matters stated therein. SMART's general manager and chief engineer both set forth facts evidencing their personal knowledge related to scope of their respective positions and actions taken therein. (See, e.g., Taylor v. Financial Casualty &Surety, Inc. (2021) 67 Cal.App.5th 966, 983 [company director had sufficient personal knowledge to establish foundation for assertions regarding operations of business].) Denial of these evidentiary objections was not error.
Duncan objected to the declaration by SMART's general manager on another ground: that it contained contrary facts barred by the parol evidence rule. Again, the trial court did not err in overruling Duncan's objection. "The parol evidence rule is codified in Code of Civil Procedure section 1856 and Civil Code section 1625. It provides that when parties enter an integrated written agreement, extrinsic evidence may not be relied upon to alter or add to the terms of the writing." (Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Assn. (2013) 55 Cal.4th 1169, 1174 (Riverisland).)
The parol evidence rule, however, does not bar evidence that challenges the validity of the written agreement itself. Code of Civil Procedure section 1856, subdivision (f) establishes a broad exception to the parol evidence rule: "Where the validity of the agreement is the fact in dispute, this section does not exclude evidence relevant to that issue." This exception "rests on the principle that the parol evidence rule, intended to protect the terms of a valid written contract, should not bar evidence challenging the validity of the agreement itself.... 'This evidence does not contradict the terms of an effective integration, because it shows that the purported instrument has no legal effect.'" (Riverisland, supra, 55 Cal.4th at pp. 1174-1175 .)
The general manager's declaration did exactly that. He explained that he never signed the Reimbursement Agreement and SMART never agreed to it in any other way.
Duncan repeats his parol evidence rule argument regarding other evidence presented by SMART that challenged the validity of the Reimbursement Agreement (including the declaration by SMART's chief engineer, deposition testimony from Santa Rosa city official, and correspondence between SMART and Santa Rosa). The argument fails as to SMART's other evidence for the same reasons.
Duncan further objected to the declaration by SMART's general manager on the ground that the Reimbursement Agreement could only be modified in writing, but the declaration reflected communications between SMART and Santa Rosa that occurred after June 2017. Duncan's argument does not concern admissibility-it is an argument about the interpretation of the alleged contract. (See Civ. Code, § 1698 [detailing circumstances under which a contract in writing may be modified].)
(b) Duncan's 72 Other Evidentiary Objections
Duncan argues that the trial court failed to articulate all the reasons for overruling the balance of Duncan's 72 other evidentiary objections. But Duncan does not present any argument on appeal supporting his objections or explaining how any of them require that we reverse the judgment.
We see no basis to conclude the trial court committed reversible error in denying these objections. For example, Duncan objected to some of SMART's evidence on the basis that it "ignores" Duncan's own allegations and evidence. This example is a legal argument and not a proper objection to admissibility. Duncan's own decision not to articulate why his myriad objections to evidence require that we reverse the judgment underscores the substantial burden that such voluminous objections impose on the trial court. There is nothing to suggest that the court mishandled those objections.
(c) SMART'S Reply Separate Statement of Undisputed Facts
Finally, Duncan complains that SMART included a reply to its own separate statement of undisputed facts. (Nazir v. United Airlines, Inc., supra, 178 Cal.App.4th at p. 249 [defendants improperly included reply separate statement].) But Duncan does not contend (or demonstrate) that the trial court considered (or relied on) this reply in a manner that requires reversal. (Coral Farms, L.P. v. Mahony (2021) 63 Cal.App.5th 719, 733.) The court's order does not refer to the reply.
In sum, we conclude that the trial court did not abuse its discretion in its rulings on Duncan's requests for judicial notice and did not err or abuse its discretion in its rulings on his evidentiary objections. We now turn to Duncan's arguments regarding the triable issues of material fact that he contends support his causes of action.
C. Standard of Review
Summary judgment is appropriate "if 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." (§ 437c, subds. (a)(1), (c).) In the trial court, SMART bore "the burden of persuasion that there is no triable issue of material fact and that [it] is entitled to judgment as a matter of law." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) SMART could meet that burden by showing "that there is a complete defense to [a] cause of action." (Code Civ. Proc., § 437c, subd. (p)(2).) Once SMART met its initial burden, the burden then shifted to Duncan to point to a triable issue of material fact. (Ibid.) Duncan could not "rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead," he was required to "set forth the specific facts showing that a triable issue of material fact exists ...." (Ibid.)
On appeal, we review a grant of summary judgment de novo and "must decide independently whether the facts not subject to triable dispute warrant judgment for the moving party as a matter of law." (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348.) We view the evidence in the light most favorable to Duncan, as the nonmoving party. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) In deciding whether a material factual issue exists for trial, we "consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence." (Code Civ. Proc., § 437c, subd. (c).) Duncan, however, still "has the burden of showing error, even if he did not bear the burden in the trial court." (Claudio v. Regents of the University of California (2005) 134 Cal.App.4th 224, 230.) With these principles in mind, we turn to Duncan's arguments regarding his first through fifth causes of action.
D. First Through Fifth Causes of Action
Recall that each of first five claims in Duncan's petition seeks declaratory relief of different kinds in connection with the Reimbursement Agreement sent to Santa Rosa's assistant city manager by SMART's chief engineer but never signed by SMART's general manager nor approved by a vote of SMART's Board. Duncan argues that he raised a triable issue of material fact on his first cause of action because the Reimbursement Agreement was "binding." To support his argument, Duncan relies on several pieces of evidence.
First, Duncan points to the transcript and minutes from SMART's September 2017 Board meeting. The transcript reflects that, during a presentation regarding a contract for systems work on the Larkspur extension-not the Reimbursement Agreement for the Crossing-SMART's general manager stated that this other contract would build the systems for the Jennings "contract." The Board chair then stated, "Oh good ...."
The Board meeting transcript and minutes do not create a triable issue of fact that SMART approved the Reimbursement Agreement." 'An essential element of any contract is "consent." '" (Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 789 (Monster Energy).) Consent must be"' "mutual." '" (Ibid.)"' "The existence of mutual consent is determined by objective rather than subjective criteria, the test being what the outward manifestations of consent would lead a reasonable person to believe." '" (Ibid.) We are not persuaded that a singular use of the word "contract," during continued discussions between SMART and Santa Rosa about the draft Reimbursement Agreement, would lead a reasonable person to believe the draft was a binding contract. (Ibid.) On the contrary, the transcript reflects that SMART's general manager was responding to public comment about delay with construction of the Crossing, and explaining that some of the "systems work" necessary for the Crossing would be completed by another, pending contract. Neither SMART's general manager nor Board chair stated that they had signed, executed, or entered into the draft Reimbursement Agreement.
Second, Duncan relies on Resolution No. 2012-21 to argue that SMART's general manager was authorized to execute the Reimbursement Agreement without approval from the Board. Even drawing an inference that the parameters for such authority were in fact met, Duncan failed to produce evidence of a triable issue of material fact that SMART's general manager actually exercised that authority to enter a binding agreement- particularly given it is undisputed that he never signed the Reimbursement Agreement. Nor did Duncan produce evidence of a triable issue of material fact that Resolution No. 2012-21 required SMART's general manager to enter the Reimbursement Agreement that had been proposed by SMART's chief engineer.
Third, Duncan argues that SMART's general manager did not need to sign the Reimbursement Agreement because a contract had already been formed and his signature was only a "formality." It is true that acceptance of a written contract need not always include a signature in writing. (Benard v. Walkup (1969) 272 Cal.App.2d 595, 602.) But acceptance can be inferred only if, under the circumstances and based on the words and conduct of each party, a reasonable person would conclude there was an agreement. (Monster Energy, supra, 7 Cal.5th at p. 789; see also CACI Jury Instruction No. 302.) Here, the e-mail from SMART's chief engineer attaching the draft Reimbursement Agreement unambiguously stated that it "will need to go to our Board." When Santa Rosa returned its signed copy, it asked for a copy "when it is approved by the Board." The evidence reflects that everyone actually involved in the negotiation understood the draft was not yet fully executed or binding.
We conclude that the general manager's singular use of the term "contract" at a Board meeting, taken out of context during the discussion of a different development project, was not evidence of a triable issue of material fact that the general manager had somehow "ratified" the Reimbursement Agreement.
Fourth, Duncan argues that SMART's general manager's signature or Board approval was not required for the Reimbursement Agreement to be binding because those were "post hoc conditions precedent." We disagree. The mutual acceptance of the agreement is not an after the fact "condition precedent," but rather is at the core of contract formation." 'In contract law, a "condition precedent is either an act of a party that must be performed or an uncertain event that must happen before the contractual right accrues or the contractual duty arises." '" (Pfeifer v. Countrywide Home Loans, Inc. (2012) 211 Cal.App.4th 1250, 1267.) The general manager's signature and Board approval were not conditions precedent, but rather would have been evidence of assent to the terms of the agreement (forming the contract itself). Nor was it somehow a "post hoc" requirement: the June 9, 2017 email from the chief engineer, which accompanied the Reimbursement Agreement attached to the e-mail to the Santa Rosa assistant city manager, unambiguously said the agreement "will need to go to our Board."
Given this conclusion, we need not address Duncan's additional arguments that the "conditions precedent" were excused.
None of the authority cited by Duncan compels a different result. For example, Duncan seeks to rely on the "mailbox rule," but that rule simply relates to the timing of an acceptance (when placed in mailbox rather than received by person). (Soldau v. Organon, Inc. (9th Cir. 1988) 860 F.2d 355, 356.) It does not negate circumstances, words, and conduct evidencing a lack of acceptance. (See Monster Energy, supra, 7 Cal.5th at p. 789.) Duncan also cites an unpublished federal decision in VhB Associates. v. Orix Real Estate Equities (C.D.Cal. Sept. 4, 2002, No. CV-02-4710) 2002 U.S.Dist. Lexis 17569. That decision is not persuasive because there the defendant did not return a signed copy of the contract but instead delivered a written statement that it would sign the contract. (Id. at p. 11.) SMART made no such statement here.
The "California Rules of Court do not prohibit citation to unpublished federal cases, which may be properly cited as persuasive authority." (Nungaray v. Litton Loan Servicing, LP (2011) 200 Cal.App.4th 1499, 1501, fn. 2.)
In sum, we agree with the trial court that Duncan failed to raise a triable issue of material fact on the first cause of action as to whether the Reimbursement Agreement was binding. We also agree that this disposes of the second through fifth causes of action, as they too are based on the allegation that the Reimbursement Agreement formed a contract. The trial court did not err in granting summary judgment on the first through fifth causes of action.
Given this conclusion, we need not address Duncan's arguments regarding the alleged "legal effect," material terms, or breach of the Reimbursement Agreement.
E. Seventh Through Ninth Causes of Action
The trial court granted summary judgment on Duncan's seventh, eighth, and ninth causes of action upon concluding that section 1759 barred it from exercising jurisdiction in light of Duncan's pending administrative action before the PUC. We agree.
The PUC "has exclusive jurisdiction over the regulation and control of utilities and that jurisdiction, once assumed, cannot be hampered or second-guessed by a superior court action addressing the same issue." (Anchor Lighting v. Southern California Edison Co. (2006) 142 Cal.App.4th 541, 548, italics added.) Section 1759, subdivision (a) provides: "No 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, correct, or annul any order or decision of the commission or to suspend or 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 and the rules of court."
The California Supreme Court has set forth a three-factor test to determine whether the trial court's jurisdiction is precluded under section 1759. (Covalt, supra, 13 Cal.4th at p. 923.) It asks (1) whether the commission has the authority to adopt a policy, (2) whether the commission has exercised that authority, and (3) whether the present court action would "hinder or interfere" with that policy. (Id. at pp. 923, 926, 935.)
Duncan argues that the trial court was empowered to hear his seventh, eighth, and ninth causes of action despite his ongoing administrative action before the PUC concerning the Crossing, and notwithstanding section 1759. He first claims that the trial court improperly premised its decision on "findings of fact and conclusions of law" related to his administrative action. (Allis-Chalmers Corp. v. City of Oxnard (1981) 126 Cal.App.3d 814, 818, fn. 2 ["The court is without power to make findings of fact and conclusions of law in a summary judgment proceeding"].) Specifically, he argues that the court made findings of fact and conclusions of law that (1) the administrative complaint was not yet resolved; and (2) the PUC had not made a finding that SMART failed to comply with Decision No. 19-10-002.
We disagree with Duncan's arguments. The fact that the PUC had not yet fully adjudicated Duncan's administrative complaint was undisputed by the parties. When the PUC extended its authorization of the Crossing to September 2023, the PUC noted that it had not yet made a finding regarding whether SMART had complied with the Decision No. 19-10-002. The PUC stated there was "insufficient time" to make such a finding and so gave no "weight" to the parties' positions. These questions are also at the heart of Duncan's claims in this case, and section 1759 empowers the PUC (not the trial court) to answer them. Duncan did not raise a triable issue of material fact on this point.
Duncan argues next that his claims should escape preclusion under section 1759 because he did not name the PUC as a defendant or respondent. Neither case cited by Duncan supports such a categorical rule. They instead analyze the Covalt factors to determine whether the court lacks jurisdiction. (PegaStaff v. Public Utilities Com. (2015) 236 Cal.App.4th 374, 379 [affirming trial court's ruling that action would interfere with PUC duties]; PegaStaff v. Pacific Gas &Electric Co. (2015) 239 Cal.App.4th 1303, 1331, 1331 [concluding action would not interfere with PUC's ability to employ limited dispute resolution mechanism because "mechanism simply does not encompass the instant dispute"].) Duncan identifies general principles that there can be concurrently pending actions before the PUC and the superior court, and that the court can provide certain remedies. These principles, and the related authority cited by Duncan, do not negate application of the Covalt test. (E.g., People ex. Rel. Orloff v. Pacific Bell (2003) 31 Cal.4th 1132, 1155 (Orloff) [concluding that no actions in the case would interfere with authority of the PUC].)
Turning to the Covalt test, Duncan argues that the first factor was not met as to his seventh and eighth causes of action related to the quiet zone agreements. He argues that the PUC does not have the requisite "authority" under this Covalt factor because it has no jurisdiction over quiet zones. Duncan asserts that quiet zones are governed by the Federal Rail Administration. He also points to the tax ordinance that he says requires SMART to bear all the costs for noise mitigation measures relating to its rail service. Duncan's arguments are unhelpful because his seventh and eighth causes of action did not seek to adjudicate either the tax ordinance or the quiet zone improvements themselves. Instead, they asked the trial court to declare that the quiet zone agreements were contrary to CEQA and to direct SMART to perform its duties under CEQA.
Those remedies belong to the PUC and not to the trial court, as the trial court correctly recognized. Section 701 provides the PUC with broad authority to "supervise and regulate every public utility in the State and may do all things, whether specifically designated in this part or in addition thereto, which are necessary and convenient in the exercise of such power and jurisdiction." In other words, the PUC is vested not only with specific powers expressly conferred, but also the power to do "all things" that are "necessary and convenient" in that exercise. "Accordingly, 'The commission's authority has been liberally construed.'" (Covalt, supra, 13 Cal.4th at p. 915.) The PUC also has express authority to provide the relief requested by the seventh and eighth causes of action: to redress violations of law "affecting public utilities" by actions or proceedings (§ 2101) and seek relief by way of mandamus (§ 2102). The trial court did not err in concluding that the first element of the Covalt test was met here.
Duncan also argues that the third element of the Covalt test was not met for the seventh, eighth, and ninth causes of action. He suggests that SMART has not specified how his causes of action would "interfere" with the PUC's ruling. He also relies on Orloff for his position that this element cannot be met only by the possibility of conflicting rulings.
Again, we are not persuaded. Duncan's administrative complaint seeks relief that overlaps with the seventh, eighth, and ninth causes of action: that the PUC take action to enforce CEQA and punish SMART for non-compliance with PUC decisions.
Nor are we persuaded that Orloff supports the position he advances. In Orloff, district attorneys from Alameda, San Mateo, and Monterey Counties filed an action in the name of the People alleging Pacific Bell and related companies, as well as an independent telemarketing firm, had violated California's unfair competition and false advertising laws in connection with marketing caller identification blocking, custom calling services, and inside wire repair insurance. (Orloff, supra, 31 Cal.4th at pp. 1138-1139.) The PUC had "expressly declined" to resolve unfair competition law claims in a final administrative decision, "thus eliminating any possibility of conflicting rulings regarding those claims." (Id. at p. 1152.) Moreover, section 2101 provides: "Upon the request of the commission, the Attorney General or the district attorney of the proper county or city and county . . . shall institute and prosecute actions or proceedings for the enforcement of . . . statutes of this State affecting public utilities and for the punishment of all violations thereof." The California Supreme Court concluded that this language evidenced an expectation that the PUC and district attorneys would "coordinate their actions" to avoid any actual conflict. (Orloff, at p. 1149.)
Here, unlike Orloff, there is no law directing coordination between the PUC and Duncan to avoid conflict. Nor has the PUC issued a final decision declining to resolve any factual or legal issues that overlap with these causes of action. On the contrary, the PUC has exercised its authority to issue three decisions related to the Crossing, in which it has declared its expectation that SMART comply with Decision No. 16-09-002 and "cooperate in good faith." The trial court did not err in concluding that its jurisdiction on these causes of action would hinder or interfere with PUC policy and is precluded by section 1759.
Given this conclusion, we need not address Duncan's arguments on the merits of the seventh, eighth, and ninth causes of action.
In sum, we conclude that the trial court did not err in granting summary judgment on the seventh, eighth, and ninth causes of action.
DISPOSITION
The judgment is affirmed. Respondent is entitled to its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)
We concur: Richman, Acting P.J., Miller, J.
[*] Judge of the Alameda Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.