2010-00074175-CU-PO
Jacob Keating vs. National Railroad Passenger Corporation
Nature of Proceeding:
Filed By:
Motion for Summary Adjudication
Abelson, Kara A.

Defendant National Railroad Passenger Corporation’s (“Amtrak”) Motion for Summary
Adjudication is DENIED.

Plaintiff’s Complaint

Plaintiff Keating’s First Amended Complaint sets forth four causes of action against
defendant Amtrak. The first, second, and fourth causes of action arise out of alleged
violations of the Federal Employers’ Liability Act (“FELA”) for failure to train and to
provide a safe work environment. The third cause of action alleges a violation of the
Federal Locomotive Inspection Act.

Plaintiff Jacob Keating was employed by Defendant as a locomotive engineer. This
action arises out of two incidents in which Plaintiff alleges Defendant failed to provide a
sufficiently safe working environment. The first incident occurred on April 16, 2007 and
involved a physical altercation between Plaintiff and a group of gang members on train
tracks in the area of West Sacramento. The second incident occurred on March 11,
2010, and involved a red laser light shining into the cab of the train.
Procedural Posture
Amtrak previously moved for summary judgment, or in the alternative for summary
adjudication of each of the four causes of action. The motion for summary
adjudication was granted as to the 3rd cause of action, but denied as to the 1st, 2nd
and 4th causes of action on Nov. 4, 2013.Defendant now moves again for summary adjudication on the 4th cause of action only,
pursuant to C.C.P., secs. 437c(f)(2)and 1008, on the grounds that new and different
facts have been revealed in plaintiff’s discovery responses provided subsequent to the
prior motion. Code of Civil Procedure section 437c(f)(2) provides that “a party may not
move for summary judgment based on issues asserted in a prior motion for summary
adjudication and denied by the court, unless that party establishes to the satisfaction of
the court, newly discovered facts or circumstances or a change of law supporting the
issues reasserted in the summary judgment motion.” This “prohibition against
repeated summary judgment motions was added to make the summary judgment
process more efficient and to reduce the opportunities for abuses of the procedure.” (
Bagley v. TRW, Inc. (1999) 73 Cal.App.4th 1092, 1096, fn.3.) The prohibition on serial
motions also overruled prior cases “that had held an order denying a motion for
summary judgment did not preclude a renewal of the same motion at any time before
trial.” (Id.) Where the second summary judgment motion raises the same issues as
the first motion and is based on the same undisputed material facts, it is prohibited
absent a showing of new facts or a change in the law. (Id. at 1097.)

In plaintiff’s responses to requests for admission (set one) served on Amtrak on Nov.
21, 2013, after the prior motion, plaintiff admitted that prior to the March 11, 2010
incident, plaintiff never made a complaint to Amtrak about lasers being shined into the
locomotive or lasers being used on or around the railroad tracks, and plaintiff admitted
that he does not know the identity of the person who shined the laser into the
locomotive cab car on March 11, 2010.

However, moving party seeking reconsideration must provide not only new evidence
but also a satisfactory explanation for the failure to provide that evidence at an earlier
time. Blue Mountain Development Co. v. Carville (1982) 132 Cal. App. 3d 1005, 1013.
Here, counsel for moving defendant fails to provide any explanation for the failure to
obtain and produce the proffered evidence at an earlier time.

This action has been pending since 2010, and the plaintiff reported the laser incident
to his supervisors on the day the incident occurred, when he arrived in Oakland at the
conclusion of his trip on March 11, 2010, and again the next day when he turned in his
injury report. At that time, he told the Amtrak officer that he could not identify his
assailant. Therefore, plaintiff’s lack of knowledge of the identity of the person who
shone the laser into the locomotive cab is not a “new fact” for purposes of a motion for
reconsideration.

On the prior motion, defendant Amtrak argued that the injury of March 11, 2010 was
not reasonably foreseeable because plaintiff conceded that he had never encountered
a laser light shining into the locomotive cab before. (Plaintiff’s exhibits, Exh. 23) This is
a similar allegation made in the second motion. The Court thus finds that, “[a]lthough
reformatted, condensed, and cosmetically repackaged, the motions are identical.” (
Bagley, supra, 73 Cal.App.4th at 1097 [denying as procedurally improper second
motion for summary judgment that raised same issues as first motion].)

The Court cannot conclude that moving party has established to the satisfaction of the
court that newly discovered facts exist supporting the issues reasserted in the motion
for summary adjudication. Pender v. Radin (1994) 23 Cal. App. 4th 1807, 1811-1812.

The Court therefore declines to reconsider the motion for summary adjudication of the 4th cause of action.
The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.