Judge rejects NCTD motion to call five Del Mar witnesses in case over rail death

A North County Transit District COASTER
A North County Transit District COASTER
(San Diego Union-Tribune File Photo)

A judge rejected a North County Transit District motion to call five city of Del Mar officials as witnesses in an upcoming trial over a 19-year-old Poway resident who was killed by a train in 2016, following a pre-trial hearing on Dec. 9.

The accident took place on an NCTD-owned right of way, just north of 13th Street in Del Mar.

For the record:

11:01 a.m. Dec. 16, 2021The original version of this article did not specify that the updated Del Mar fencing proposal would include 4-foot-tall fencing for only about half the length of the project.

Attorneys for NCTD wanted to call Del Mar Councilmembers Dave Druker and Dan Quirk, former Councilmembers Sherryl Parks and Terry Sinnott, and former Planning Director Kathleen Garcia as witnesses.

Based on a separate motion by attorneys for the decedent, there is still a possibility that Druker, who was not on the council at the time of the accident, could be called to testify.

The trial is scheduled for April 15.

The family of the victim, Javad Hedayatzadeh, filed a lawsuit in 2017 that included the city of Del Mar as a defendant. But the city was later dropped from the case.

“Why is this relevant?” San Diego Superior Court Judge Cynthia A. Freeland asked at the hearing, referring to the motion for multiple witnesses from Del Mar.

Anthony E. Sonnett, an attorney representing NCTD, said they could help explain why a fence has never been erected.

“One of the reasons is the city of Del Mar and residents of Del Mar vigorously oppose it,” Sonnett said.

He added that if there are questions about whether NCTD was negligent in making sure the right of way was safe, “How do you not address the political will of the city?”

Freeland said the expert testimony that NCTD plans to use can establish that point.

Opposition to a fence along the train tracks in Del Mar has been percolating since the summer 2020, when NCTD filed a petition with the federal Surface Transportation Board that would give the agency sole authority to proceed with the fencing.

NCTD has said the fencing would help reduce deaths and injuries that result from trespassers. There have been more than 100 fatalities along the Coaster rail line since 2010, including eight in Del Mar since 2014, according to the NCTD petition.

“Trespassers lead to potential liability and/or financial risks to NCTD and taxpayers,” the petition said, adding that trespassers can cause delays of up to three hours before normal operations are restored.

Following pushback from Del Mar residents, NCTD agreed to work with the city and the California Coastal Commission to find a solution that all parties could support. Those talks have been ongoing, but the NCTD Board of Directors decided last month to renew the petition with the Surface Transportation Board if there is no agreement by the end of this year.

Del Mar council members also expressed their concerns during an October meeting, when NCTD officials presented a scaled-down 4-foot tall fencing proposal for nearly half of the project along the Del Mar train tracks. The original design was 6 feet tall.

“I don’t feel you’ve made a compelling case yet that it’s necessary,” said Deputy Mayor Dwight Worden at the time, adding that he felt there was still a need for safety improvements.