NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 23 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTHONY GANTNER, No. 21-15571
Appellant, D.C. No. 4:20-cv-02584-HSG
v.
MEMORANDUM*
PG&E CORPORATION; PACIFIC GAS &
ELECTRIC COMPANY,
Appellees.
Appeal from the United States District Court
for the Northern District of California
Haywood S. Gilliam, Jr., District Judge, Presiding
Argued and Submitted January 12, 2022
Submission Withdrawn February 28, 2022
Resubmitted January 23, 2024
Pasadena, California
Before: BOGGS,** OWENS, and FRIEDLAND, Circuit Judges.
Anthony Gantner appeals the dismissal of his putative Class Action
Complaint against Pacific Gas & Electric Company and PG&E Corporation
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Danny J. Boggs, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
(collectively, “PG&E”), filed in the United States Bankruptcy Court for the
Northern District of California. Gantner alleges that, as a result of PG&E’s
negligence in maintaining its electrical equipment, PG&E had to engage in Public
Safety Power Shutoffs (“PSPSs”) during the 2019 fire season. The bankruptcy
court dismissed the Complaint, without leave to amend, holding that the negligence
claim against PG&E was preempted by section 1759 of the California Public
Utilities Code. The bankruptcy court held, in the alternative, that the Complaint
failed to allege a causal connection between PG&E’s negligence and Gantner’s
injury. Gantner appealed the dismissal of his Complaint to the United States
District Court for the Northern District of California, which affirmed. This timely
appeal followed.
On appeal to our court, PG&E argues that, in addition to the reasons that the
bankruptcy court gave for dismissing the Complaint, PG&E’s Electrical Rule
Number 14 (“Rule 14”) shields PG&E from liability for the 2019 PSPSs. We
review the grant of a motion to dismiss de novo. Naffe v. Frey, 789 F.3d 1030,
1035 (9th Cir. 2015). We have jurisdiction under 28 U.S.C. §§ 158(d)(1) and
1291, and we affirm.
We requested, pursuant to California Rule of Court 8.548, that the California
Supreme Court answer two questions of state law. Gantner v. PG&E Corp., 26
F.4th 1085, 1087 (9th Cir. 2022). First, we asked whether section 1759 preempts a
2
claim of negligence—like Gantner’s—that is brought against a utility when the
alleged negligent acts were not specifically approved by the California Public
Utilities Commission (“CPUC”), but those acts did foreseeably result in the
utility’s having to engage in PSPSs, pursuant to CPUC guidelines, which in turn
caused the plaintiff’s alleged injury. Id. Second, we asked whether Rule 14
shields PG&E from liability for an interruption in its services that PG&E
determines is necessary for the safety of the public at large, even if the need for
that interruption arises from PG&E’s own negligence. Id.
The California Supreme Court has now held that the answer to the first
question is “yes”—that is, it has resolved the section 1759 preemption question in
PG&E’s favor. Gantner v. PG&E Corp., 538 P.3d 676, 688 (Cal. 2023). In
accordance with that decision, we hold that Gantner’s negligence claim is
preempted by section 1759.
Because the section 1759 preemption issue is dispositive, we need not
address whether the Complaint adequately pleaded causation. Similarly, we need
not decide the Rule 14 question left open by the California Supreme Court. Id.
Finally, the bankruptcy court did not err in dismissing Gantner’s Complaint
without leave to amend, because his “pleading could not possibly be cured by the
allegation of other facts.” Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv.
Inc., 911 F.2d 242, 247 (9th Cir. 1990).
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AFFIRMED.1
1
Gantner’s motion for judicial notice is denied as moot.
4