Roman Melikov v. Ghilotti Bros., Inc.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROMAN MELIKOV,
Plaintiff-Appellant,
v.
GHILOTTI BROS., INC.,
Defendant-Appellee.
No. 22-15901
D.C. No. 4:21-cv-04074-JSW
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Jeffrey S. White, District Judge, Presiding
Submitted July 27, 2023**
Before: OWENS, LEE, and BUMATAY, Circuit Judges.
Roman Melikov, appearing pro se, appeals the district court’s grant of
summary adjudication in favor of Ghilotti Bros., Inc. (“Ghilotti”) on Melikov’s
willful and wanton misconduct claim. We have jurisdiction under 28 U.S.C. § 1291.
Reviewing de novo, see Amdahl Corp. v. Profit Freight Sys., Inc., 65 F.3d 144, 146
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
AUG 1 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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(9th Cir. 1995), we affirm.
Melikov contends that his claims pose a federal question and that federal
safety standards should govern the analysis. He is mistaken. The Federal-Aid
Highway Act (“FHWA”) and Highway Safety Act (“HSA”) do not contain express
or implied causes of action and thus do not confer federal question jurisdiction. See
Alexander v. Sandoval, 532 U.S. 275, 286 (requiring Congressional intent to create
a private cause of action); see also Merrell Dow Pharmaceuticals Inc. v. Thompson,
429 U.S. 804, 817 (1996) (stating that cases brought under federal question
jurisdiction are generally those in which federal law creates the cause of action).
Ghilotti’s federally funded contract with Caltrans also does not confer federal
question jurisdiction because the contract does not implicate a federal cause of action
for willful and wanton misconduct. See Merrell Dow, 429 U.S. at 817. And the
district court did not “synthetically create” a federal question, as Melikov asserts,
because it relied on only state law to assess Melikov’s claims.
Moreover, none of the federal laws or safety standards that Melikov cites
preempts state law. Torts are governed by state law. Gulf Offshore Co. v. Mobil Oil
Corp., 453 U.S. 473, 483–84 (1981) (acknowledging that federal courts follow state
laws for personal injury and tort cases). The FHWA, HSA, and Manual on Uniform
Traffic Control Devices do not conflict with nor preempt the state standard for
willful and wanton misconduct. Melikov’s reliance on Norfolk S. Ry. Co. v.

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Shanklin, 529 U.S. 344 (2000), to support preemption is misplaced. That case
concerned federal regulations that preempted state standards governing the adequacy
of railroad safety devices—not torts. See id. at 358.
With diversity jurisdiction over Melikov’s claims only, California law applies.
See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938); Mobil Oil Corp., 453 U.S.
at 483. Under California law, willful and wanton misconduct requires: “(1) actual
or constructive knowledge of the peril to be apprehended; (2) actual or constructive
knowledge that injury is probable, as opposed to possible, result of the danger; and
(3) conscious failure to act to avoid the peril.” Doe v. U.S. Youth Soccer Ass’n.
8 Cal. App. 5th 1118, 1140 (2017) (simplified). Here, there is no evidence that
Ghilotti had actual or constructive knowledge of the harm that Melikov would face.
Nor did Ghilotti act with the “conscious failure” to prevent harm that is necessary to
substantiate Melikov’s claim.
Because California law governs Melikov’s claim, and because there is no
genuine dispute that Ghilotti did not act with active disregard of the consequences
of its conduct, we affirm.
AFFIRMED.

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