Appendix — Jasso v. California Department of Forestry & Fire Protection

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Supreme Court, U.S.

FILED

No. 49-5 8 4 CCL 29 2010

—————eTtee ws brie CLERK

In the

SUPREME COURT OF THE UNITED STATES

Mary A. Jasso, et. al.

Petitioners

California Department of Forestry, et. al

Respondents, et. al.

Vol. 2

Appendix of Exhibits

to accompany

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

TABLE OF CONTENTS

Appendix Exhibit 1

Mandate issued by Ninth Circuit Court

of Appeals, dated August 12, 2010....................1

Appendix Exhibit 2

Order for Denial of Rehearing,

Ninth Circuit Court of Appeals,

GakOG FUME Fe hc cccsdcecekesesis a cusveleussasseee

Appendix Exhibit 3

Memorandum, Ninth Circuit Court

of Appeals, dated, June 22, 2010.......................2-5

Appendix Exhibit 4

Order for Denial of Rule 59(e) Motion,

by District Court for the Eastern District

of California, dated April 16, 2009........... Pee

Appendix Exhibit 5

Order, United States District Court

for the Eastern District of California,

GCC TRTUTOTD DD, BI eo cc cccvacecccvhsesvecvcssncecdenchsodee

Appendix Exhibit 6

Findings and Recommendations, District

Court for the Eastern District of

California, dated March 12, 2009.....................8-27

Appendix Exhibit 7

Docket Log sheet for District Court,

Eastern District of California,

case No. CIV S-07-2770 GEB EFB P6...............27-37

Appendix Exhibit 8

United States Supreme Court Docket.

March 3, 2008. (Case No. 07-604).............

Appendix Exhibit 9

California Supreme Court Denial,

dated August 8, 2007....................

Appendix Exhibit 10

California Court of Appeals

Third Appellate District,

dated May 5, 2007.............

Appendix Exhibit 11

Plaintiffs Complaint

filed December 26, 2007..

EXHIBIT 1

Mandate issued by Ninth Circuit Court

of Appeals, dated August 12, 2010

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FILED

AUG 12 2010

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

ILLA L. GARCIA and MARY A.

JASSO,

Plaintiffs - Appellants,

CALIFORNIA DEPARTMENT OF

FORESTRY AND FIRE PROTECTION;

et al.,

Defendants - Appellees.

No. 09-15916

D.C. No. 2:07-cv-02770-GEB-EFB

U.S. District Court for Eastern

California, Sacramento

MANDATE

The judgment of this Court, entered June 22, 2010,

takes effect this date.

This constitutes the formal mandate of this Court issued

pursuant to Rule

41(a) of the Federal Rules of Appellate Procedure

FOR THE COURT:

Molly C. Dwyer

Clerk of Court

Rhonda Roberts

Deputy Clerk

EXHIBIT 2

Order for Denial of Rehearing,

Ninth Circuit Court of Appeals,

dated August 3, 2010

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ILLA L. GARCIA and MARY A. JASSO,

Plaintiffs - Appellants,

CALIFORNIA DEPARTMENT OF

FORESTRY AND FIRE PROTECTION;

et al.,

Defendants - Appellees.

No. 09-15916

D.C. No. 2:07-cv-02770-GEBEFB

Eastern District of California,

Sacramento

ORDER

Before: CANBY, THOMAS, and W. FLETCHER, Circuit

Judges.

Appellants’ petition for panel rehearing is denied.

No further filings shall be accepted in this closed case

FILED

AUG 03 2010

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

Case: 09-15916 08/03/2010 Page: 1 of 1 ID: 7426220

DktEntry: 14

EXHIBIT 3

Memorandum, Ninth Circuit

Court of Appeals, dated, June 22, 2010

This disposition is not appropriate * for publication

and is not precedent except as provided by 9th Cir. R. 36-

** The panel unanimously concludes this case is

suitable for decision without oral argument. See Fed. R.

App. P. 34(a)(2).

09-15916

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ILLA L. GARCIA and MARY A. JASSO,

Plaintiffs - Appellants,

CALIFORNIA DEPARTMENT OF

FORESTRY AND FIRE PROTECTION;

et al.,

Defendants - Appellees.

No. 09-15916

D.C. No. 2:07-cv-02770-GEBEFB

MEMORANDUM*

Appeal from the United States District Court

for the Eastern District of California

Garland E. Burrell, Jr., District Judge, Presiding

Submitted May 25, 2010**

Before: CANBY, THOMAS, and W. FLETCHER, Circuit

Judges.

Illa L. Garcia and Mary A. Jasso appeal pro se from

the district court’s judgment dismissing their action

claiming that defendants, California state agencies and

officials, violated their civil rights, various federal statutes

and regulations, and California common law by permitting

their exposure to harmful levels of electromagnetic

radiation at their workplace and then engaging in a

coverup.

We have jurisdiction under 28 U.S.C. § 1291. We

review de novo dismissal under Rules 12(b){1) and 12(b)(6)

of the Federal Rules of Civil Procedure.

Rhoades v. Avon Prods., Inc., 504 F.3d 1151, 1156 (9th

Cir. 2007). We may affirm on any grounds supported by

the record. ACLU of Nev. v. City of Las Vegas, 333 F.3d

1092, 1097 (9th Cir. 2003). We affirm.

The district court properly dismissed the claims

against the state agencies and individual defendants

acting in their officia! capacities. See Will v. Mich. Dep't of

State Police, 491 U.S. 58, 71 (1989) (a state agency, state

and state officials acting in their official capacities are not

persons susceptible of suit under § 1983).

The district court properly dismissed the first and second

causes of action against the individual defendants acting

in their personal capacities because a California state

court previously reached a final adjudication on the merits

of those causes of action in Garcia v. Dep’t of Forestry and

Fire Protection, Nos. C053667, C053793, 2007 WL

1520069 (Cal. App. May 25, 2007). See Kay v. City of

Rancho Palos Verdes, 504 F.3d 803, 809 (9th Cir. 2007)

(under California law, “[rJes judicata .. . prevents

litigation of all grounds for . . . recovery that were

previously available to the parties, regardless of whether

they were asserted or determined in the prior proceeding’)

(citations and internal quotation marks omitted).

The district court properly dismissed the third

cause of action against the individual defendants acting in

their personal capacities. Plaintiffs failed to allege facts

that would establish the deprivation of any constitutional

rights. See Woodrum v. Woodward County, ORl., 866 F.2d

1121, 1126 (9th Cir. 1989) (failure to allege any actual

deprivation of constitutional rights, and conclusory

allegations of conspiracy, do not give rise to liability under

§ 1983); Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir.

1980) (per curiam) (holding that § 1985 conspiracy claim

was properly dismissed because plaintiff had failed to

allege facts establishing invidious discrimination).

Moreover, the criminal statutes and federal regulation

plaintiffs cite do not confer a private right of action. See

Aldabe, 616 F.2d at 1092 (no civil liability obtains under

18 U.S.C. §§ 241 or 242). Finally, the claims under reg-

ulations promulgated by the Federal Communications

Commission, as well as the claims of fraudulent conceal

ment of allegedly excessive radiation levels, were litigated

and decided in plaintiffs’ earlier state court action. See

Jasso v. Cal. Dep’t of Forestry, Superior Court of Cali-

fornia, County of Lassen No. 41697; see also First Nat'l

Bank v. Russell (In re Russell), 76 F.3d 242, 244-45 (9th

Cir. 1996) (describing the elements of collateral estoppel

under California law to be: (1) the issue decided in the

earlier case is identical to the issue presented, (2) the

earlier case culminated in a final judgment on the merits,

and (3) the party against whom estoppel is asserted was a

party to, or was in privity with a party to, the earlier

case).

Plaintiffs’ remaining contentions are unpersuasive.

AFFIRMED.

EXHIBIT 4

Order for Denial of Rule 59(e) Motion,

District Court for the Eastern District of California,

dated April 16, 2009.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

ILLA L. GARCIA; MARY A. JASSO,

02:07-cv-02770-GEB-EFB

Plaintiffs,

ORDER

CALIFORNIA DEPARTMENT OF

FORESTRY AND FIRE PROTECTION

CALIFORNIA DEPARTMENT OF

GENERAL SERVICES AND

TELECOMMUNICATIONS DIVISION

CALIFORNIA DEPARTMENT OF

JUSTICE; JERRY BROWN:

CATHERINE GUESS; BARRY

HEMPHILL; GLEN NASH; RICHARD

WILLIAMS; MICHAEL D.

ENSMINGER; AL MUIR; RICH

ZANNI; BRAD LUTTS,

Defendants.

On April 6, 2009, Plaintiffs filed a “Motion to Alter

or Amend a Judgment and/or Order Pursuant to Federal

Court Rule 59(e)” based on their contention that they were

not served with a copy of the Findings and Recommen

dations. However, the docket reveals service was made

Therefore, the motion is denied

Dated: April 16, 2009

GARLAND E. BURRELL, JR

United States District Judge

EXHBIT 5

Order, United States District Court

for the Eastern District of California,

dated March 30, 2009.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

ILLA L. GARCIA, and

MARY A. JASSO,

Plaintiffs, 2:07-cv-2770-GEB-EFB-PS

CALIFORNIA DEPARTMENT OF

FORESTRY AND FIRE PROTECTION

CALIFORNIA DEPARTMENT OF

GENERAL SERVICES AND

TELECOMMUNICATIONS DIVISION

CALIFORNIA DEPARTMENT OF

JUSTICE, et al

ORDER

Defendants

On March 12, 2009, the magistrate judge filed

findings and recommendations herein which were served

on the parties and which contained notice that any

objections to the findings and recommendations were to bi

filed within ten days. No objections were filed

Accordingly, the court presumes any findings of fact

are correct. See Orland v. United States, 602 F.2d 207,

208 (9th Cir. 1999). The magistrate judge's conclusions of

law are reviewed de novo. See Britt v. Simi Valley Unified

School Dist., 708 F.2d 452, 454 (9th Cir. 1983)

The court has reviewed the applicable legal!

standards and, good cause appearing, concludes that it i

appropriate to adopt the proposed Findings and

Recommendations in full.

Accordingly, IT IS ORDERED that

1. The proposed Findings and Recommendations filed

March 12, 2009, are

ADOPTED;

2. Defendants’ motion to dismiss, Dckt. No. 18, is granted

3. Plaintiffs’ complaint is dismissed without leave to

amend: and

4. The Clerk is directed to close the cas

Dated: March 30, 2009

GARLAND E. BURRELL, JR

United States District Judge

Case 2:07-cv-02770-GEB-EFRB D

03/31/2009 Page 2 of 2

EXHIBIT 6

Findings and Recommendations, District

Court for the Eastern District of

California, dated March 12, 2009

Case 2:07-cv-02770-GEB-EFB Document 20 Filed

03/12/2009 Pave 1 of 17

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

ILLA L. GARCIA, and

MARY A. JASSO

Plaintiffs, No. CIV S-07-2770 GEB EFB P

CALIFORNIA DEPARTMENT OF

FORESTRY AND FIRE PROTECTION

CALIFORNIA DEPARTMENT OF

GENERAL SERVICES AND

TELECOMMUNICATIONS DIVISION

CALIFORNIA DEPARTMENT O|]

JUSTICE, et al

FINDINGS AND RECOMMENDATION

Defendant

Defendants third amended motion to dism: plaintill

complaint was submitted for decision on the papers by

order of this court filed August 25, 2008.! For the

following reasons, the court recommends that defendant

motion be granted, and that plaintiffs’ complaint bi

dism) ed without leave to amend

| This case, in which the plaintiffs are proces

referred to the undersigned under Lacal K

pursuant to 28 U.S.C. § 636(b)(1). This case is related to Mary A.

Jasso, et al. v. Citizens Telecommunications Company of California

Inc., etal., Civ. S-05-2649 GEB EFB PS.

BACKGROUND

In their complaint filed December 26, 2007,

plaintiffs allege that they previously worked for defendant

California Department of Forestry and Fire Protection

(“CDF”), as seasonal lookouts at the Likely Mountain

Lookout site (“Likely Mountain”) in Lassen County,

California. Plaintiff Ia Garcia worked there for three fire

seasons from 2000 through 2002; plaintiff Mary Jasso

worked tire for eleven fire seasons from 1992 through

2002. Complaint, {/{| 7, 8. According to the complaint, CDF

and defendant California Department of General Services

Telecommunications Division (“GSTD”), installed, operat

ed and leased at Likely Mountain “various antennae

which do and/or did emit and radiate toxic radiofrequency,

microwave and electromagnetic radiation” during the

years 1992 through 2002. Id. at § 6. Plaintiffs allege that

these telecommunication devices emitted harmful

radiation which created larger radiation fields, and this

radiation was transmitted to plaintiffs, particularly

through the metal structures and pieces of equipment

with which they were required to work.” Id. at 94 10, 11.

Plaintiffs allege that they both became ill in July 2002,

Jasso becoming permanently disabled in October 2002,

Garcia becoming permanently disabled in April 2004. Id.

at §§/ 14, 15. Based on their theory formed November 2003

that their illnesses were caused by the radiation to which

they were exposed while working at Likely Mountain, both

plaintiffs obtained medical testing beginning February

2004, pursuant to which “the Plaintiffs were found to have

toxic brain and blood cell damage, tumors, cataracts,

tremors, loss of hearing, breathing difficulties, paralysis

and other physical damage to their bodies.” Id. at 4% 16,

17; see also | 26 (“plaintiffs have, and/or are already

2 Plaintiffs assert that the radiation fields “couple to and@or eradiate

off, nearby metal structures and do couple to the human body, having

a predilection for water based biological organs and said radiation

fields then genera[te] high radiofrequency voltage and create haz-

ardous shock/burns and injury for those so exposed. Plaintiffs do

allege they suffered continuous daily[] shock/burn phenomena when

they touched metal surfaces at LMT, including the kitchen sink in the

living quarters provided by defendant CDF.” Complaint, at 4 10.

Plaintiffs list the several metal objects they were required to inhabit

and handle, e.g., the LMT lookout tower and temporary living quar-

ters, transmitting equipment, generator, binoculars, map ring, chairs

and vehicles. Id. at 4] 11

suffering from memory loss, confusion, anxiety, depress-

sion, time lapses and Alzheimer’s and dementia-lhke

symptoms’).

Plaintiffs allege that defendants CDF and GSTD

were required to post warnings of radiation exposure at

LMT, and to implement other safety procedures (e.g.,

verbal warnings, preventive training) that would have

provided plaintiffs with a hazard-free work environment.

Id. at 4 6. Plaintiffs allege that once they informed

defendants of their medical problems, these defendants,

along with defendant California Department of Justice,

and non-parties California Department of Transportation,

California Insurance Fund, California Fire Fighters, and

others, “conspir[ed] to conceal the true facts of radiation

levels that could be found at [L]ikely Mountain between

the years 1992 through 2002,” and submitted “false and

misleading documents and statements to the Courts and

regulatory entities ... that are in place to protect the

plaintiffs’ interests.” Id.

Plaintiffs allege three causes of action pursuant to

42 U.S.C. § 1983, based on their broad contentions they

were denied due process and equal protection by defend-

ants: (1) negligent failure to protect plaintiffs from injury

(also relying on 18 U.S.C. § 242); (2) knowing failure to

defendants’ released copies of the Original Field Notes for

the radiation testing they had conducted at Likely Moun-

tain, in February 2005, and that they had withheld from

Discovery and subpoena.

The Field Notes authored by Michael Ensminger,

did show the aforementioned defendants reports and

statements made and/or submitted to the state and

federal courts, allegedly, were false and for the reasons

stated below”

l. The defendants have repeatedly claimed to

the courts, they tested all the frequencies at their tele-

communications site at Likely Mountain and found no

levels of radiation that were above that allowed by Law

(Title 47 C.F.R. §1.1310). The actual Field Notes of the

tests, did show the defendants tested only 7 frequencies

The Field Notes also did show that none the state’s

microwave frequencies that are in operation at Likely

Mountain, were included in the testing process. Appellant

has learned the State microwaves by all known consensus

emit radiation in excess of 100 times over that allowed by

Law for human exposure pursuant to Title 47 C.F.R.

§1.1310.

2. Federal records do show there are 47 dif-

ferent frequencies in operation at the State’s telecom-

munications site at Likely Mountain. Thus the defendants’

knowingly omitted 40 frequencies including ail the

microwave frequencies from their tests, reports and

testimony and sworn statements to the Courts, stating

they tested all the frequencies. [D.C. Dkt. 7. Plntf. Attach.

#1. Exhibits, D, E, F, & G. (see Vol. 2. App. Ex. 8. pg. 32)).

3. The difference between the defendants’ and/or

their employees reports and sworn statements and federal

records show the defendants have allegedly and in concert

together, engaged in a cover-up of their negligence under

color of law, to essentially escape lability for the plaintiffs’

The demurrers were upheld in a consolidated

appeal to the California Court of Appeal, Third Appellate

District. Id. at Exh. C (Case Nos. CO53667 and CO53793).

In a decision filed May 25, 2007, Justice Raye, writing for

a three-judge panel, analyzed the “public policy” exception

to the exclusivity of the worker’s compensation system in

considering plaintiffs’ contentions based on state and

federal statutes and regulations, specifically, 8 C.C.R. §

8618, 47 U.S.C. § 1.1307, and 18 U.S.C. § 1864. Citing

numerous cases, Justice Raye concluded:

3 The court takes judicial notice of the state court procedural history

Mullis v. U.S. Bankruptcy Court, 828 F.2d 1385, 1388 (9th Cir. 1987),

and the matters of public record from that litigation, including plead

ings, orders, and other papers filed with the court, Mack v. South Bay

Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986). See, generally,

United States v. Ritchie, 342 F. 3d 903, 907-908 (9th Cir. 2003) (a

court may consider such materials without converting a motion to

dismiss into a motion for summary judgment); see also Fed. R. Evid

201 (a court may take judicial notice of facts that are capable of

accurate determination by sources whose accuracy cannot reasonably

be questioned)

While plaintiffs cite various laws and regulations they

assert defendants violated, they cite no authority, and we

have found none, for their proposition that these types of

statutory violations regarding operations of telecommunt-

cations towers are considered conduct contrary to fun

damental public policy of the state as that concept has been

narrowly construed in both workers’ compensation and

wrongful termination cases. Particularly in workers’

compensation cases, the exception to the rule of exclusivity

is narrowly drawn to preserve the legislative balance

securing a prompt recovery for injured workers while

simultaneously limiting the employers’ exposure to tort

liability. ... We therefore conclude that because plaintiffs,

state employees, affirmatively allege they were injured

while in the course and scope of their employment, no civil

action wll lie and the trial court properly sustained the

demurrer... . [T]he exclustue remedy of workers’

compensation bars a state employee’s claims against

another state agency. All defendant state agencies were

properly dismissed.

Id. at pp. 4, 9-10, 12

The Court of Appeal also rejected appellant’s civil

rights claims, reasoning:

Plaintiffs also make repeated riferences to violations

of their civil rights, citing to various provisions of

the state and federal Constitutions. We are

somewhat perplexed as to the meaning of these

allegations. Their sweeping allegations that

defendants’ operation of the telecommunication

facilities, failure to warn, and failure to monitor

radioactivity levels, violated their inherent rights to

be free of harm, if accepted, would dismantle the

workers’ compensation system because every injured

employee would contend his or her employer’s

harmful conduct violated the fundamental public

policy of the state as embodied in the Constitution.

Courts have been careful to narrowly construe the

exception to exclusivity so as not to intrude into the

Legislature's constitutional prerogative to implement

a workers’ compensation system. Id. at pp. 10-11

Thereafter, the California Supreme Court

summarily denied review, see Request for Judicial Notice,

filed by Deputy Attorney General James W. Walker, Dckt.

No. 5, Item 2, and the U.S. Supreme Court denied plain-

tiffs’ petitions for writ of certiorari and for rehearing. Id.

at Item 3.

LEGAL STANDARDS

A. Dismissal Pursuant to Fed. R. Civ. P. 12(b)(1):

Lack of Subject Matter Jurisdiction “When subject matter

jurisdiction is challenged under Federal Rule of Procedure

12(b)(1), the plaintiff has the burden of proving jurisdic-

tion in order to survive the motion. A plaintiff suing in a

federal court must show in his pleading, affirmatively and

distinctly, the existence of whatever is essential to federal

jurisdiction, and, if he does not do so, the court, on having

the defect called to its attention or on discovering the

same, must dismiss the case, unless the defect be correct-

ed by amendment.” Tosco Corporation v. Com-munities for

a Better Environment, 236 F.3d 495, 499 (9th Cir. 2001)

(citations and internal quotations omitted).

Different standards apply to a 12(b)(1), motion,

depending on the manner in which it is made. See, e.g.,

Crisp v. United States, 966 F. Supp. 970, 971-72 (E.D. Cal.

1997). If the motion attacks the complaint on its face,

generally referred to as a “facial attack,” the court

considers the allegations of the complaint to be true, and

plaintiff enjoys “safeguards akin to those applied when a

Rule 12(b)(6) mction 1s made.” Doe v. Schachter, 804 F.

Supp. 53, 56-57 (N.D. Cal. 1992). On the other hand, if the

motion makes a “factual attack” on the truth of the juris-

dictional facts underlying the complaint, generally refer-

red to as a “speaking motion,” the court need not presume

the factual allegations of the complaint to be true, but

must employ the evidentiary standards for considering a

motion for summary judgment, furnishing ali parties an

opportunity to supplement the record. See, e.g., Thornhill

Pub. Co. v. General Tel. & Electronics Corp., 594 F. 2d

730, 733 (9th Cir. 1979); Trentacosta v. Frontier Pacific

Aircraft Industries, Inc., 813 F. 2d 1553, 1558 (9th Cir.

1987). However, this “conversion” rule does not apply

when, as here, “the additional facts considered by the

court are contained in materials of which the court may

take judicial notice.” Barron v. Reich ,13 F.3d 1370, 1377

(9th Cir. 1994) (citation omitted). Since this court, in con-

sidering the instant motions, relies exclusively on the

pleadings in this case, the judicially noticed orders and

pleadings filed in plaintiffs’ state court proceedings, see n.

3, supra, and plaintiffs’ currently pending related federal

case, see n. 1, supra, defendants’ challenge to this court’s

subject matter jurisdiction remains facial, and the

court’s review rests on the traditional standards

applicable thereto.

B. Dismissal Pursuant to Fed. R. Civ. P. 12(b)(6):

Failure to State a Claim In order to survive dismissal for

failure to state a claim pursuant to Rule 12(b)(6), a

complaint must contain more than a “formulaic recitation

of the elements of a cause of action;” it must contain

factual allegations sufficient to “raise a right to relief

above the speculative level.” Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 (2007). “The

pleading must contain something more than a statement

of facts that merely creates a suspicion of a legally

cognizable night of action.” Id., quoting 5 C. Wright & A.

Miller, Federal Practice and Procedure § 1216, pp. 235-236

(3d ed. 2004) (internal punctuation omitted). Rather, to

avoid a Rule 12(b)(6) dismissal, a complaint must plead

“enough facts to state a claim to relief that is plausible on

its face.” Weber v. Dep’t of Veterans Affairs, 521 F.3d

1061, 1065 (9th Cir. 2008), quoting Bell, at 127 S.Ct. at

1974.

Dismissal may be based either on the lack of

cognizable legal theories or the lack of pleading sufficient

facts to support cognizable legal theories. Balistreri v.

Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

The complaint’s factual allegations are accepted as true.

Church of Scientology of California v. Flynn, 744 F.2d 694

(9th Cir. 1984). The court construes the pleading in the

light most favorable to plaintiff and resolves all doubts in

plaintiff's favor. Parks School of Business, Inc. v.

Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). General

allegations are presumed to include specific facts

necessary to support the claim. NOW, Inc. v. Schiedler,

510 U.S. 249, 256 (1994) (quoting Lujan v. Defenders of

Wildlife, 504 U.S. 555, 561 (1992)). The court may

disregard allegations contradicted by the complaint’s

attached exhibits. Durning v. First Boston Corp., 815 F.2d

1265, 1267 (9th Cir. 1987); Steckman v. Hari Brewing,

Inc., 143 F.3d 1293, 1295 (9th Cir. 1998). Furthermore,

the court is not required to accept as true allegations

contradicted by judicially noticed facts. Mullis, 828 F.2d at

1388. The court may consider matters of public record,

including pleadings, orders, and other papers filed with

the court. Mack, 798 F.2d at 1282 (9th Cir. 1986)

(abrogated on other grounds by Astoria Federal Savings

and Loan Ass'n v. Solimino, 501 U.S. 104 (1991)). Finally,

“(t]he court is not required to accept legal conclusions cast

in the form of factual allegations if those conclusions

cannot reasonably be drawn from the facts alleged.” Clegg

v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir.

1994). Neither need the court accept unreasonable

inferences or unwarranted deductions of fact. Western

Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

Pro se pleadings are held to a less stringent

standard than those drafted by lawyers. Haines v. Kerner,

404 U.S. 519, 520-21 (1972). Unless it is clear that no

amendment can cure its defects, a pro se litigant is entitl-

ed to notice and an opportunity to amend the complaint

before dismissal without leave to amend. Lopez v. Smith,

203 F.3d 1122, 1127-28 (9th Cir.2000) (en banc); Noll v.

Carlson, 809 F.2d 1446, 1448 (9th Cir.1987).

DISCUSSION

A. Lack of Subject Matter Jurisdiction

1. Application of the Rooker-Feldman Doctrine

Plaintiffs’ first and second causes of action sound in tort,

while their third claim asserts abuse of powers associated

with the alleged concealment of information in the state

court proceedings. At the heart of plaintiffs’ claims is the

implicit request that this court overturn the reasoned

conclusion of the state courts that plaintiffs’ exclusive

remedies, at least against defendants CDF and GSTD, lay

with the state workers’ compensation system. However,

as explained below, this court is without jurisdiction to

reconsider this conclusion.

“The Rooker-Feldman doctrine is a well-established

jurisdictional rule prohibiting federal courts from exer-

cising appellate review over final state court judgments.

See Henrichs v. Valley View Dev., 474 F.3d 609, 613 (9th

Cir.2007); see also D.C. Court of Appeals v. Feldman, 460

U.S. 462, 482-86 [] (1983); Rooker v. Fidelity Trust Co.,

263 U.S. 413, 415-16 [] (1923). We have recognized that

‘[t]he clearest case for dismissal based on the Rooker-

Feldman doctrine occurs when a federal plaintiff asserts

as a legal wrong an allegedly erroneous decision by a state

court, and seeks relief from a state court judgment based

on that decision.’ Henrichs, 474 F.3d at 613. (internal

quotation marks omitted). [{]] However, Rooker-Feldman

may also apply where the parties do not directly contest

the merits of a state court decision, as the doctrine

‘prohibits a federal district court from exercising subject

matter jurisdiction over a suit that is a de facto appeal

from a state court judgment.’ Kougasian v. TMSL, Inc..,

359 F.3d 1136, 1139 (9th Cir. 2004) (citing Bianchi v.

Rylaarsdam, 334 F.3d 895, 898 (9th Cir. 2003)). A federal

action constitutes such a de facto appeal where ‘claims

raised in the federal court action are “inextricably

intertwined” with the state court's decision such that the

adjudication of the federal claims would undercut the

state ruling or require the district court to interpret the

application of state laws or procedural rules.’ Bianchi, 334

F.3d at 898. In such circumstances, ‘the district court is in

essence being called upon to review the state court

decision.’ Feldman, 460 U.S. at 483 n. 16 [].” Reusser v.

Wachovia Bank, N.A., 525 F.3d 855, 858 -859 (9th Cir.

2008). The doctrine applies to individuals who were

parties to the state court proceeding. Johnson v. De

Grandy, 512 U.S. 997,1006 (1994).

Plaintiffs’ first and second claims, alleging

negligent and intentional torts, were thoroughly consider-

ed and rejected by the state courts, as least as to common

defendants California Department of Forestry and Fire

Protection, and California Department of General Services

Telecommunications Division. Recasting these claims as

federal civil rights violations does not avoid application of

the Rooker-Feldman doctrine nor, therefore, the conclu-

sion of the state courts that plaintiffs’ exclusive remedies

lay with the state workers’ compensation system.

Nor does plaintiffs’ third claim avoid application of

the Rooker-Feldman doctrine, although for different

reasons. Plaintiffs contend that defendants CDF and

GSTD, upon learning of plaintiffs’ allegations of radiation

exposure and injuries, “failed to investigate or police

themselves or their lessees.” Compl., 4 31. Plaintiffs state

that they them-selves were required to notify defendants’

lessees, Modoc National Forest Service and Federal

Bureau of Land Managment, in April 2004 of the safety

issues at Likely Mountain. Plaintiffs contend that

defendants and/or their employees gave false reassurances

to government agencies, and produced documents reflect-

ing tests conducted in February 2005 and September 2006

which found that radiation levels on Likely Mountain did

not exceed Federal Communications Commission stand-

ards. Plaintiffs contend that defendants submitted these

allegedly false test results and documents “to various

Courts and government agencies as proof the plaintiffs

were not injured,” and “fraudulently concealled] the true

levels of radiation and the hazardous conditions,” on

Likely Mountain, id. at {| 6, 28-37, thus obstructing

justice by defrauding the courts, as well as hindering

plaintiffs’ efforts to obtain economic relief and medical

care. Apparently in response to the finding of Justice Raye

that “[p}laintiffs do not allege a fraudulent cover-up, as in

Johns-Manville [Products Corp. v. Superior Court, 27

Cal.3d 465 (1980)], that aggravated their injuries once

defendants became aware of the radioactive poisoning,”

Exh. C, at p. 9,4 plaintiffs now expressly make that

contention, an allegation so broad as to include newly

added defendants California Attorney General's Office

the state Attorney General.

A federal suit alleging extrinsic fraud in a state

court proceeding is not barred by Rooker-Feldman. See,

e.g., Kougasian, supra, 359 F.3d at 1140-41. (However, an

allegation of extrinsic fraud does not, alone, create federal

subject matter jurisdiction.) “Extrinsic fraud on a court is,

by definition, not an error by that court. It is, rather, a

wrongful act committed by the party or parties who

engaged in the fraud. Rooker-Feldman therefore does not

bar subject matter jurisdiction when a federal plaintiff

alleges a cause of action for extrinsic fraud on a state

court and seeks to set aside a state court judgment

obtained by that fraud.” Id. at 1141. “The focus of

4 While not framed as a “fraudulent coverup” in state court, plaintiff

allegations of intentional malfeasance by defendants were squarely

presented to the state courts. The Court of Appeal opinion recounts

plaintiffs’ claims of defendants’ “egregious misconduct,” and that

“defendants ‘concealed all facts of the hazardous and dangerous

exposure to radiation on Likely Mountain,” Exh. C, at pp. 2, and 3

The court specifically noted that:

(T\he Labor Code does not exonerate defendants from any mal

feasance. Rather, it establishes a different forum for the redress of the

injuries Jasso [and Garcia] sustained during the course and scope of

her employment. If, as plaintiffs allege, defendants violated both state

and federal! statutes, as well as state and federal constitutional rights

and abrogated their duties to protect, warn, and safeguard the

employees who manned the Jookout towers on Likely Mountain, they

should be held accountable for their dereliction of duty. We do not

condone either any intentional or negligent conduct. But the propriety

of their conduct is not before us; we consider only the venue in which

their conduct will be addressed

Id. at pp. 11-12

such claim is not on whether a state court committed legal

error, but rather on a wrongful act by the adverse party

Reusser, supra, 525 F.3d at 859 (citations and internal

quotations omitted)

Plaintiffs extrinsic fraud claim lacks foundation

both in the present complaint and as set forth in plaintiff

related action also pending before this court. In this case

the complaint fails to allege sufficient facts upon which to

base a claim for extrinsic fraud. They offer no specific facts

or particularized details in support of their allegation that

the 2005 and 2006 state test results, or documents

prepared thereon, were inherently “false and misleading

nor that radiation levels on Likely Mountain were

impermissibly elevated during the years 1992 to 2002

More significantly, as discussed in plaintiffs’ related case

before this court, the absence of any evidence of radiation

testing on Likely Mountain for the relevant period, a:

independently concluded by the state court in separate

actions involving these plaintiffs — and, most significantly

the failure of plaintiffs to appeal the state court decisions

on the extrinsic fraud grounds they assert were then

apparent — decisively undermine plaintiffs’ extrinsic fraud

claim in this court.

Since plaintiffs fail to state a prima facie claim for

extrinsic fraud, all of their claims against defendants

California Department of Forestry and Fire Protection,

and California Department of General Services Telecom

munications Division, are barred by the Rooker-Feldman

doctrine, and thi

these matte:

2. Kleventh Amendment Imn

a. State Agency Defendant

Moreover this court 18 without ubjlect matte!

jurisdiction to consider plaintiffs’ action against defenda)

tate agencie: Calif rnia Dy p irtment of} Fore try and Fire

Protection, the California Departme: if Greneral rv)

Telecommunications Division, and the Californ)

Department of Justice, based on principle

Immunity

Neither a state nor

olhicial capacities are “person

Michigan Dep't of State Police

Rather, the Eleventh Amendment to the U.S

provects tal and state avenci Irom § 1983 habili

absent their clear and unequivocal waiver and conse!

ult. Quern v. Jordan, 440 U.S. 332, 337-345 (197

Mleventh Amendment's protection of stat

immunity extends to suits by citizens against their ov

tates. Kime! v. Florida Kd. Of Revent HOR LS. 6Y

73, (2000). “The Eleventh Amendment’s jurisdiction

covers sults naming state agencies and department

defendants, and applies whether the rehef sought 1

or equitable in nature.” Brooks v. Sulphur Springs Valle:

Klectric Cooperative 951 F.2d 1050. 1053 (9th Cir. 1991)

(citing Pennhurst State School & Hospital v. Halderman

165 U.S. 89, 100, 104 (1984) (fn omitted). See also In r

Pegasus Gold Corporation, 294 F.3d 1189, 1195 (9th ¢

2005) (agencies of the state are immune from privat

damage actions in federal court)

Accordingly, the Kleventh Amendment provides a)

alternative basis for dismissing plaintifis claims, without

leave to amend, avainst the California Department ol!

Forestry and Fire Protection and the California

plaintill

Ini pe I)

r plaintill claim ivan

nside

eparti | (ren i] ee i mmunicu

NVISION Wel is the California De partment of bu

Official Capacity Suits Against Individual State

lefendant he ren ning nine ae fendant Lr

r not rn) wer LOU 1) stat ie !

mp ( ire T both th ! lual ar i]

il t] i '

( ‘

ev Hi

’

7 a¢ iv nu sf }

i VV in I ] iT Mi ‘

irtmen ! er el ( el mn I iti i)

lich ) kKnem r, A iate Engineer, Calif 7

ner ‘ ‘ mimunica rie ps i

] (Jperatlior hte m2M iver, Cala

ral ( mmunicat 16 Davies

Thth rea Z per r, 4 tor

: ‘*T titi

i 7

) Itrad | t |

(cia tne me a »Suitl against th tat

ficial a Ling if) ni (oT he I official capa ily ) nol

per I ubject to hiability under % 198K. Wall uy

U.S. at 7). The exception 18 al Oihieial-capacity ull

prospective injunctive rehef, id., at 71, mn. 10, which

do not seek in this action and which wou

ate them tor their alleved injuri

rdingly, this court is without j

t the Indi

defendants in their official capacities, and these

defendants must also be dismissed.

The court therefore concludes that it is without

subject matter jurisdiction to consider plaintiffs’ claims

against any defendant state agency or any state employee

in their official capacity.

B. Failure to State a Claim What remains of

plaintiffs’ complaint is an amalgam of civil rights claims

against state officials and employees in their personal

capacities only. Because pro se litigants are generally

entitled to notice and an opportunity to amend their

complaints before dismissal without leave to amend,

Lopez. v. Smith, 203 F.3d at 1127-28, the court proceeds to

demonstrate that no amendment can cure the defects of

the instant complaint.

While money damages are available against

officials in their personal capacity, a showing of personal

involvement in the alleged violations is required.® The

complaint makes no assertion of personal involvement by

any individually named defendant in the conduct

6 “Liability under section 1983 arises only upon a showing of personal

participation bythe defendant. Fayle v. Stapley, 607 F.2d 858, 862

(9th Cir. 1979). A supervisor is only liable for constitutional violations

of his subordinates if the supervisor participated in or directed the

violations, or knew of the violations and failed to act to prevent them

There is no respondeat superior lability under section 1983. Ybarra v

Reno Thunderbird Mobile Home Village, 723 F.2d 675, 680-81 (9th

Cir. 1984).” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989)

challenged by plaintiffs — significantly, none of the

individually named defendants are mentioned other than

in the caption of the complaint. Moreover, as set forth

below, the complaint does not imply any reasonable basis

upon which plaintiffs can state a claim of personal

involvement by any individually named defendant.

1. Failure to State a Claim under 42 U.S.C. § 1983

Plaintiffs’ § 1983 claims’ are premised generally on

the alleged violation of plaintiffs’ rights to due process and

equal protection under the U.S. Constitution; however,

neither right creates a cause of action based upon these

facts.

The Fourteerth Amendment prohibits states from

“depriv[ing] any persun of life, liberty, or property, without

due process of law.” Plaintiffs claim that they have been

deprived “of life and memories of life” and “denied the

freedom to choose what toxic exposure risks they would

allow themselves to be exposed to.” Compl., § 22.

However, “[m]Jere negligence or lack of due care by state

officials in the conduct of their duties does not trigger the

substantive due process protections of the Fourteenth

Amendment and therefore does not state a claim under

section 1983.” Woodrum v. Wood vard County, 866 F.2d

1121, 1126 (9th Cir. 1989).

Similarly,“[t]o state a claim under 42 U.S.C. § 1983

for a violation of the Equal Protection Clause of the

Fourteenth Amendment a plaintiff must show that the

defendants acted with an intent or purpose to discrimin-

ate against the plaintiff based upon membership in a

protected class.” Barren v. Harrington, 152 F.3d 1193,

1194 (9th Cir. 1998). Plaintiffs claim that they were

‘ Section 1983 provides that “(e)very person who, under color of any

statute of any state. . ., subjects, or causes to be subjected, any citizen

of the United States or other person within the jurisdiction thereof to

the deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured... .”

Section 1983 does not, in itself, confer any substantive rights, but

provides a separate right of action for violation of substantive rights

secured by other federal statutes and the federal constitution. See

Buckley v. City of Redding, 66 F.3d 188, 190 (9th Cir. 1995); Maine v.

Thiboutot, 448 U.S. 1, 4 (1980). To establish a prima facie case under

§1983, plaintiffs must establish that: (1) the conduct complained of

was committed by a person acting under color f state law; and (2) the

conduct violated a right secured by the Constitution and laws of the

United States. West v. Atkins, 487 U.S. 42, 48 (1988).

“denied the equal protection of the laws enacted to protect

those who worked at telecommunication sites.” Complaint,

{| 22. However, plaintiffs do not contend or otherwise

demonstrate that they are members of pro-tected class

and do not, therefore, state an equal pro-tection claim. The

Same omission undermines plaintiffs’ claims pursuant to

42 U.S.C. § 1985.8

2. Failure to State a Claim Under Federal Criminal

Statutes Common to each of plaintiffs’ causes of

action is the contention that defendants violated the

federal criminal statutes set forth at 18 U.S.C. §§ 241,

242, or 1864(a)(3). However, these statutes establish

criminal penalties for violation of an individual’s civil

rights; they do not create private rights of action. See, e.g.,

Peabody v. United States, 394 F.2d 175, 177 (9th

Cir.1968).

Accordingly, plaintiffs do not, and cannot, state a

claim pursuant to 18 U.S.C. §§ 241, 242, or 1864.

3. Failure to State a Claim Under OSHA

Plaintiffs rely on several state and federal

Occupational Safety and Health Act (‘OSHA’) provisions,

e.g., the “General Duty Clause” of Occupational Safety and

Health Act of 1979 (“OSHA”), 29 U.S.C. § 654 (setting

forth the duties of employers and employees), including

federal OSHA regulations concerning the telecommuni-

cations industry, specifically, 29 C.F.R. § 1910.268(a)(3)

(c)(1)(p)(2) and (3). However, these provisions do rot

create private rights of action. See, e.g., Crane v. Conoco,

Inc., 41 F.3d 547, 533 (9th Cir. 1994); see also Internation-

al Union, et al. v. Johnson Controls, Inc., 499 U.S. 187,

214 (1991) “OSHA does not provide a private cause of

action for violations of OSHA or its implementing

regulations).

y be

8 Plaintiffs rely on 42 U.S.C. § 1985 in support of their allegation that

defendants conspired to submit false and misleading information to

the state courts. However, plaintiffs do not contend that the alleged

conspiracy was motivated by racial or other invidious discrimination.

See 42 U.S.C. § 1985(3); see also, e.g., Sever v. Alaska Pulp Corp., 978

F.2d 1529, 1536 (9th Cir.1992). Accordingly, plaintiffs do not state a

claim pursuant to 42 U.S.C.

§ 1985.

4. Failure to Allege any Other Federal Claim

The only remaining federal authority relied on by

plaintiffs are the FCC regulations establishing maximum

human exposure limits for radio frequency radiation,

presented in support of their extrinsic fraud contention, 47

C.F.R. §§ 1.1310, and 1.1307(b). The court has addressed

the lack of foundation for this contention and, in the

related case noted supra, addresses the failure of plaintiffs

to state any claim under these provisions.

To the extent that plaintiffs’ tort claims, based on

the alleged negligent and intentional failure of defendants

to protect piaintiffs, may be made against an individual

defendant, they — and defendants’ vigorous statute of

limitations defenses — are grounded in state common law.

Since a federal court should not exercise pendent juris-

diction over state claims in the absence of federal subject

matter jurisdiction, see United Mine Workers of America

v. Gibbs, 383 U.S. 715, 726 (1966), there remains no basis

for this action to proceed in this court.

CONCLUSION

For the foregoing reasons, this court finds that the

facts of this case — including their full consideration by the

state courts against the principal defendants — demon-

strate no reasonable possibility that plaintiffs can amend

the present complaint to demonstrate this court’s subject

matter jurisdiction or state a claim upon which relief can

be granted.

Accordingly, it is hereby RECOMMENDED that:

1. Defendants’ motion to dismiss, Dckt. No. 18, be

eranted,

2. Plaintiffs’ complaint be dismissed without leave

to amend; and

3. The Clerk be directed to close the case.

These findings and recommendations are submitted

to the United States District Judge assigned to the case,

pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within

ten days after being served with these findings and

recommendations, any party may file written objections

with the court and serve a copy on all parties. Such a

document should be captioned “Objections to Magistrate

Judge's Findings and Recommendations.” Failure to file

objections within the specified time may waive the right to

appeal the District Court’s order. Turner v. Duncan, 158

F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d

1153 (9th Cir. 1991).

DATED: March 12, 2009.

s/Edmund F. Brennan

United States Magistrate Judge

EXHIBIT 7

Docket Log sheet for District Court,

Eastern District of California,

case No. CIV S-07-2770 GEB EFB PS.

APPEAL, CIVIL, CLOSED, PRO_SE

U.S. District Court

Eastern District of California — Live System

(Sacramento)

CIVIL DOCKET FOR CASE #:

2:07-—cv—02770-GEB-EFB

(PS) Garcia, et al v. CA Dept. of Forestry, et al

Assigned to: Judge Garland E. Burrell, Jr

Referred to: Magistrate Judge Edmund F. Brennan

Cause: 42:1981 Civil Rights

Date Filed: 12/26/2007

Date Terminated: 03/31/2009

Jury Demand: None

Nature of Suit: 890 Other Statutory

Actions

Jurisdiction: Federal Question

Plaintiff

Illa L. Garcia represented by Ila L. Garcia

P.Q. Box 585

Bieber, CA 96009

PRO SE

Plaintiff

Mary A. Jasso represented by Mary A. Jasso

P.O. Box 85

Likely, CA 96116

PRO SE

¥,

Defendant

California Department of Forestry and

Fire Protection

represented by James Wayne Walter

Attorney General's Office of the State of

California

P.O. Box 944255

1300 i Street

Suite 125

Sacramento , CA 94244-2550

(916) 324-0244

Fax: (916) 322-8288

Emaul: james.walter@do}j.ca. gov

LEAD ATTORNEY

Defendant

California Department of General

Services and Telecommunications

Division

represented by James Wayne Walter

(See above for address)

LEAD ATTORNEY

Defendant

California Department of Justice represented by

James Wayne Walter

(See above for address)

LEAD ATTORNEY

Defendant

Jerry Brown represented by James Wayne Walter

(See above for address)

LEAD ATTORNEY

Defendant

Catherine Guess represented by James Wayne Walter

(See above for address)

LEAD ATTORNEY

ATTORNEY TO BE NOTICED

Defendant

Barry Hemphill represented by James Wayne Walter

(See above for address)

LEAD ATTORNEY

ATTORNEY TO BE NOTICED

Defendant

Glen Nash represented by James Wayne Walter

(See above for address)

LEAD ATTORNEY

Defendant

Richard Williams represented by James Wayne

Walter

(See above for address)

LEAD ATTORNEY

Defendant

Michael D. Ensminger represented by James Wayne

Walter

(See above for address)

LEAD ATTORNEY

Defendant

Al Muir represented by James Wayne Walter

(See above for address)

LEAD ATTORNEY

Defendant

Rich Zanni represented by James Wayne Walter

(See above for address)

LEAD ATTORNEY

Defendant

Brad Lutts represented by James Wayne Walter

(See above for address)

LEAD ATTORNEY

| Date Filed | # _______ Docket Text __

12/26/2007 RECEIPT number #CAE200003598

$350.00 fbo Mary Jasso by Tiff Jasso

on 12/26/2007. (Kastilahn, A)

(Entered: 12/26/2007)

12/26/2007 COMPLAINT against all defendants

by Mary A Jasso. (Kastilahn, A)

a | (Entered: 12/26/2007)

12/26/2007 | y SUMMONS ISSUED as to *Glen

| Nash, Richard Williams, Michael D

Ensminger, Al Muir, Rich Zanni, Brad

Lutts, California Department of

Forestry and Fire Protection,

California Department of General

Services and Telecommunications

Division, California Department of

Justice, Jerry Brown, Catherine

Guess, Barry Hemphill* with answer

| to complaint due within *20* days.

*Illa Garcia* *P.O. Box 585* *Bieber,

CA 96009%. (Kastilahn, A) (Entered

| 12/26/2007

ISSUED; (Kastilahn, A)

(Entered: 12/26/2007)

12/26/2007 | 4 | CIVIL NEW CASE DOCUMENTS

| ISSUED;Initial Scheduling

| Conference set for 6/4/2008 at 10:00

AM in Redding (CMK) before

| | Magistrate Judge Craig M. Kellison

| | (Attachments: # 1 Consent Forms)

ee _| (Kastilahn, A) (Entered: 12/26/2007)

03/11/2008 |! MOTION to DISMISS for LACK of |

| JURISDICTION by Glen Nash,

Richard Williams, Michael D.

| Ensminger, Al Muir, Rich Zanni, Brad |

Lutts, California Department of

| Forestry and Fire Protection, Barry |

| Hemphill. Attorney Walter, James

| Wayne added. Motion Hearing set for

4/18/2008 at 09:00 AM in Courtroom 3

(MCE) before Judge Morrison C.

England Jr. (Attachments: # 1

Declaration of James W. Walter with

Exhibits, # 2 Request for Judicial

| Notice with exhibits)(Walter, James)

as, | (Entered: 03/11/2008)

03/11/2008 5 MINUTE ORDER (Text Only):

Pursuant to Local Rule 72—302(c)(21),

this case is referred to the assigned

Magistrate Judge, Craig M. Kellison,

for all purposes. Defendants’ |

4/18/2008 Motion to Dismiss 5 is |

vacated. Defense counse] is ordered to

renotice the motion before Judge |

Kellison. Signed by Judge Morrison C

England, Jr on 3/11/2008. (Deutsch, S) |

(Entered: 03/11/2008) |

03/11/2008 | SERVICE BY MAIL: 6 Minute Order |

served on Illa L. Garcia, Mary A |

}

Jasso. (Deutsch, S) (Entered:

03/11/2008)

03/12/2008 7 AMENDED NOTICE of MOTION to

DISMISS for LACK of JURIS-

DICTION Amended Notice by Glen

Nash, Richard Williams, Michael D

| Ensminger, Al Muir, Rich Zanni, Brad

0: 3/27/2008

| 04/10/2008

04/14/2008! 10

04/15/2008 |

| 04/15/2008 |

04/21/2008! 12

| Lutts, CA Department of Forestry and

Fire Protection, Barry Hemphill.

Motion Hearing set for 4/23/2008 at

10:00 AM in Redding (CMK) before

Magistrate Judge Craig M. Kellison.

(Walter, James) Modified on 4/15/2008 |

(Reader, L). (Entered:

03/12/2008)

MEMORANDUM/RESPONSE in

OPPOSITION re 7 MOTION

to DISMISS for LACK of JURIS

DICTION. (Attachments: # 1

oon gaa H) (Entered:

03/28/2008)

| by plaintiff Mary A Jasso. (Marciel,

| _M) (Entered: 04/14/2008)

ORDER signed by Magistrate Judge

| ORDERING 7 Pursuant to Eastern

Defendants’ REPLY to Plaintiff's

OPPOSITION to 5 MOTION to

DISMISS

Attorney Walter, James Wayne

| added. (Walter, James) Modified on

4/14/2008 Mena-Sanchez, L)

| (Entered: 04/10/2008)

NOTICE of RELATED CASES

2:07—cv—-02769 2:05—-cv—02649

Craig M. Kellison on 4/14/2008

District of California Local Rule

78-230(h), the hearing on this motion,

scheduled for April 23, 2008, at 10:00

before the undersigned in Redding,

California, is hereby taken off

calendar and the matter is SUBMIT

TED on the record and briefs.

(Reader, L) (Entered: 04/15/2008)

SERVICE BY MAIL: 11 Order,

Motions Submitted/Under

Advisement, served on Illa L. Garcia,

Mary A Jasso (Reader, L)

(Entered: 04/15/2008) __

ORDER signed by Magistr: ite Judge

Craig M. Kellison on 4/21/2008

04/21/2008

05/05/2008

Q5/05/Z008

05/05/2008 |

ORDERING the court finds it

appropriate to vacate the Status

Conference pending resolution of dfte'

motion to dismiss. [f the motion to

dismiss is not case dispositive, the

court will re-set this matter for a

Status/scheduling conference. (Matson

R) (Entered: 04/21/2008)

| SERVICE BY MAIL; 12 Order, served

on [lla L. Garcia, Mary A Jasso

(Matson, R) (Entered: 04/21/2008)

RELATED CASE ORDER signed by

Magistrate Judge Edmund F

| Brennan on 5/5/2008 ORDERING

that cases 2:07—cv~2769 FCD EFB

(PS) and 2:07-cv~2770 MCE CMK

(PS) be, and the same hereby are

reassigned to Judge Garland E

Burrell, Jr. and Magistrate Judge

Edmund F. Brennan for all further

proceedings. IT IS FURTHER

ORDERED that the Clerk shall make

| the appropriate adjustment in the

| assignment of these cases to com

pensate for this reassignment. Clerk

is directed to serve the parties in

2:07-cv—-2770 with the undersigned's

scheduling order in pro se cases

(Waggoner, D) (Entered: 05/05/2008)

SERVICE BY MAIL: 13 Order served

on Ila L. Garcia and Mary A Jdasso

(Waggoner, D) (Entered: 05/05/2008)

CIVIL NEW CASE DOCUMENTS

ISSUED; Initial Scheduling Con

ference set for 9/10/2008 at 10:00 AM

| in Courtroom 25 (EF) before Mag

strate Judge Edmund F. Brennan

(Attachments: # 1 Consent Forms)

(Waggoner, D) (Entered: 05/05/2008)

SERVICE BY MAIL, 14 Civil New

Case Documents served on Ila L

Garcia and Mary A Jasso (Waggoner

| D) (Entered: 05/05/2008)

‘Ele’

LZU08

A 1. >} >»

ORDER signed by Mag

Kdmund F. Brennan on OR

ORDERING that defendan

here hy directed to renotices

Motion to Dismiss for hear

the under-signed; the 14 0!

initial heduling confere:

VACATED pending hearin

decision on the motion. (hi

(funtered: O08/11/200R

ERVICK BY MAIL: 15 Or

on Illa L. Garcia and Mary

t are

Bal if

ing be

vy and

mer

A. da

(Renson. A) (Entered: 08/11/2008

KCOND AMENDED Mi

DISMISS by Glen Nash. Ry

William

TION ¢

na }

Micha I). En minger

Muir, Kich Zanni, Brad Lutts, Ca

fornia Department of Fore

try it)

Fore Protection, Barry Hemphill

Motion Hearing set for 9/19/2008

10:00 AM in Courtroom 25

before Magistrate Judge K«

brennan Walter, Jame \

8/20/2008 (knegbretson

08/19/2008

09/19/08 heartu oy re Deft

(KERB

Imund

VModifi

Amend tion to Dism l¢

ACATED. The 09/19/08 dats

hy Deft does not mply with tl

f int nedul La md M

ndar. If Deftw t ttl

itter tor hear wf) rect

ntact the Courts n | uty |

Viamistrate dudve Brennan 1

ivailable Law and Mot) late

myvyeneery . rover '

O8/25/ 2008 )

Uectendant Mtl) AMENDED

MOTION to DISMI mend

1G MOTION TO DISME Mot

Hearing set for 10/1/2008 at 10:01

( url n 2S (hel B) I f

Rrennan. (W

PRIVOOR

Mena mcr

UPM/ 4 ZU0OB)

MINUTE ORDER by

Defendants’ 3RD) AMI

MOTION to DISMISS 18 pre

ilendared for hearing « LO/O1/0

rdered submitted without

ince and without argun

ippe if

to Local Rule 78-240(h

pursuant

ext only entry) (Cannar

IKentered 09/26/2008 )

SERVICE BY MAIL: 19 Minute 01

erved on Ila L. Garcia and Mar

(Cannarozzi, N) (entered

}aseo

09/26/2008)

FINDINGS and RECOMM:!

DATIONS signed by Magiatratu

ludge Edmund F. Brennan on

mmending that Dfte'ld]

rranted. Plaintill

mi De |

mplaint be dism) ed

he Clerk ! tire

(oprecti

12/2009)

RVIC}

mmc i 14

Lil and M ify

Waals ZOoOY

it DtiMI NTenter 1 | if tiitl

entered OWSLT/2009

ERVICKH BY MAII } Ord

Vd pete | rind Thi iT

it mmendat I 2 buaclus

OSs 1/2009

(MQU EST (motion) to alter or a

udgvement by Illa Ll, Crar Mi

bi » (Ganydosh, J

ientered. 04/07/2009

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| $455.00* ** (Attachments: # 1 Appeal

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_|.05/01/2009)

— — po

| 05/01/2009 ~ | CERTIFICATE of RECORD ~

| transmitted to Ninth Circuit re 25

| Notice of Appeal filed by Mary A

| Jasso for USCA Case Number

** Hearing Dates of * None*

| | | (Kastilahn, A) Entered: 05/01/2009)

05/01) 20) 09 | SERVICE BY MAIL: Jory Appeal

i | | Processed to USCA, 27 Certificate of

| | Record served on Illa L. Garcia, Mary

| A. Jasso and USCA. (Kastilahn, A)

= |__| Entered: 05/01/2009) __

06 11/2009 | O88 | TRANSCRIPT DESIGN. NATION and

ORDERING STATEMENT by Mary

| A. Jasso. (Engbretson, K.) (Entered

05/12/2009)

LNHIBIT 8

United States Supreme Court Docket.

Rehearing Petition Denied,

March 3, 2008. (Case No. 07-604)

No. 07-604

Title: Illa L. Garcia and Mary A. Jasso

Petitioners

California Department of Forestry and Fire

Protection, et al.

Docketed: November 7, 2007

Court of Appeal of California, Third

Lower Ct: Agung!

Appellate District

Case Nos.: (C053667, CO537¢

Decision Par eerts

May 25, 2007

Date:

Discretionary

Court

Decision -

Dat August 8, 2007

ate:

~~~~~~-~Proceedings and

~~~Date~~~ |

Orders~~~~~~~~~~~~>~ ~~

Nov 2 2007 Petition for a writ of certiorari filed

(Response due December 7, 2007)

Dec 19 2007 DISTRIBUTED for Conference of

January 11, 2008

Jan 14 2008 Petition DENIED.

Feb 5 2008 —~ Petition for Rehearing filed.

Feb 13 2008 DISTRIBUTED for Conference of

February 29, 2008.

Mar 3 2008 Rehearing DENIED

EXHIBIT 9

California Supreme Court Denial,

dated August 8, 2007

SUPREME

COURT

FILED

AUG — 8 2007

Frederick K. Chirlch Clerk

Court of Appeal, Third Appellate District

Nos. C053667/C053793

S153684

INTHE SUPREME COURT OF

CALIFORNIA

En Bane

ILLA L. GARCIA, Plaintiff and Appellant

Vv.

DEPARTMENT OF FORESTRY AND FIRE

PROTECTION et al., Defendants

and Respondents.

AND COMPANION CASE.

The petition for review is denied.

Chief Justice

EXHIBIT 10

California Court of Appeals

Third Appellate District,

dated May 5, 2007

Filed 5/25/07

Garcia v. Dept. of Forestry and Fire Protection CA3.

California Rules of Court, rule 8.1115(a), prohibits courts

and parties from citing or relying or opinions not

certified for publica-tion or ordered published, except as

specified by rule 8.1115(b). This opinion has not been

certified for publication or ordered published for

purposes of rule 8.1115.

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF

CALIFORNIA

THIRD APPELLATE DISTRICT

(Lassen)

C053667

(Super. Ct. No. 42425)

ILLA L. GARCIA,

Plaintiff and Appellant, v.

DEPARTMENT OF FORESTRY AND - FIRE

PROTECTION et al..

Defendants and Respondents.

C053793

(Super. Ct. No. 41697)

MARY A. JASSO,

Plaintiff and Appellant,

DEPARTMENT OF FORESTRY AND FIRE

PROTECTION et al.,

Defendants and Respondents.

In these consclidated appeals of their dismissed

personal injury actions, two in propria persona plaintiffs

attempt to evade the exclusivity of the workers’ compen-

sation system by claiming that the injuries they suffered

violated the fundamental public policy of the State of

California. From a layperson’s perspective, negligent,

willful and, worse yet, egregious misconduct by an em-

ployer offends our basic notion of the state's public policy

to protect its employees. But plaintiffs misunderstand the

nuances of the law and the finely tuned “public policy”

exception to exclusivity. Because none of plaintiffs’ causes

of action fit within that narrow exception, the trial court

properly sustained the public agencies’ demurrers without

leave to amend. We affirm.

FACTS

We take the facts, as we must, from the allegations

set forth in the second amended com-plaints. (Blank v.

Kirwan (1985) 39 Cal.3d 311, 318.) Mary Jasso and Illa

Garcia were both employed by the California Department

of Forestry and Fire Protection (CDF) as seasonal fire

lookouts on Likely Mountain. Jasso worked for eleven fire

seasons, Garcia for 3. Both alleged they suffered a vast 7%

array of physical injuries as a result of radiation poisoning

from exposure to toxic radio frequency and micro-wave

radiation emitted from the telecommunications equip-

ment on the lookout and the telecommunications towers.

A number of state agencies lease or use the equipment.!

CDF also provided plaintiffs a trailer as on-site living

quarters for all lookouts who worked at Likely Mountain.

Jasso alleged four causes of action: dangerous

condition of public property, failure to protect against

1 The defendant agencies include: California Department of Forestry

and Fire Protection, California Department of Fish and Game, Cali-

fornia Department of Transportation, California Highway Patrol,

and California Department of General Services.

injury and to perform the mandatory duty pursuant to

Government Code section 815.6, strict lability for

ultrahazardous activity, and concealment of a danger-

ous condition of hazardous work-place and hazardous

employment without consent. In essence, Jasso com-

plains she was never warned about the risks of radia-

tion exposure, a dangerous condition and ultrahazard-

ous activity, and had she known she would have term-

inated her employment. She further alleges that sta.

and federal statutes and regulations create a manda-

tory duty to provide a “safe work site and/or place of

employment free from recognized hazards that cause or

are I:kely to cause death or serious physice! harm to

their employees,” to conduct environmental assess-

ments to insure that employees were not exposed to

“radiofrequency, micro wave and other telecommuni-

cation radiations from their telecommunication

devices,” and to post warning signs of the clear and

present dangers on the site.

In her fourth cause of action, Jasso further

alleges that defendants “concealed all facts of the haz-

aradous and dangerous” exposure to radiation on Likely

Mountain. Because she never gave her consent to work

in hazardous conditions or to be exposed to radiation,

Jasso contends her employer “acted outside the scope of

plaintiff Mary Araina Jasso’s employment.” In conclu-

sion, she alleges she has “an inherent Right to Life free

of oppression and harm from others and the Right to

make choices of where she will work and what risks she

will take in that work” pursuant to the “First

Amendment of the Constitution of the United States;

California Constitution Art. 1. Declaration of Rights

Sec. 1; and Charters of Freedom Declaration of

Independence Paragraph 2.”

Garcia, on the other hand, alleges a single cause of

action for negligence per se. She asserts that pursuant to

California Code of Regulations, title 8, section 8618,

defendants had a duty to post a conspicuous sign warning

that radiation may exceed hazard limitations; pursuant to

California Code of Regulations, title 47, section 1.1307,

subdivision (b), defendants had a duty to prepare an

environmental assessment of radiation levels; and pur-

suant to title 18 United States Code section 1864, defen-

dants vere prohibited from using a hazardous and injur-

10Us e on federal land. Garcia further alleges she was

with-in the class of persons each of these statutes or

regulations was designed to protect and her injuries were

the direct, foreseeable, and proximate result of

defendants’ violations.

The trial court sustained defendants’ respective

demurrers without leave to amend. In sustaining the

demuirer against Jasso’s complaint, the court ruled:

“Plaintiffs sole and exclusive remedy against the State is

worker’s compensation. (Labor Code, § 3600; Colombo uv.

State of California, (1991) 3 Cal.App.4th 594 [ (Colombo)))

Telecommunications does not rise to the level of conduct

contrary to public policy such that an exception to the

exclusive remedy of worker's compensation is applicable.”

Similarly, the court sustained defendants’ demurrer

against the Garcia complaint, also because her “sole and

exclusive remedy against the State is worker’s

compensation.” Jasso and Garcia appeal.

DISCUSSION

“California’s workers’ compensation scheme was

developed early in the 20th century as a result of the

inadequacy of the common law that often denied injured

workers any recovery for work-related injuries.” (Claxton

v. Waters (2004) 34 Cal.4th 367, 372 (Claxton) .) The

common law was also slow to allow employees a tort

recovery for wrongful discharge based on the long-

standing principle that they could be terminated at will.

(Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 71.)

But in the 1980’s and 1990's courts carved a narrow

exception allowing wrongful termination cases when the

discharge violated a “fundamental public policy” of the

state. (See, e.g., Tameny v. Atlantic Richfield Co. (1980) 27

Cal.3d 167, 172 (Tameny); Stevenson v. Superior Court

(1997) 16 Cal.4th 880, 894 (Stevenson); Rojo v. Kliger

(1990) 52 Cal.3d 65, 90-91 (Rojo); Gantt v. Sentry Insur-

ance (1992) 1 Cal.4th 1083, 1095 (Gantt).) In wrongful

discharge vernacular, “fundamental public policy” is used

to circumscribe the tort. (Foley v. Interactive Data Corp.

(1988) 47 Cal.3d 654, 669.)

Plaintiffs would have us expand the notion of a

breach of “fundamental public policy” in wrongful term-

ination cases to encompass intentional and negligent

misdeeds by an employer and exempt such misconduct

from the exclusivity of the workers’ compensation sys-

tem. That is not the law. Such an expansion would

emasculate the carefully constructed balance achieved

by the Legislature’s execution of its constitutional

authority to create a comprehensive workers’ compen-

sation system. (Charles J. Vacanti, M.D., Inc. v. State

Comp. Ins. Fund (2001) 24 Cal.4t* 800, 810 (Vacantzi).)

“Section 3600 of the Labor Code provides that an em-

ployer is liable for injuries to its employees arising out of

and in the course of employment, and section 360!

declares that where the conditions of workers’ compen-

sation exist, the right to recover such compensation is the

exclusive remedy against an employer for injury or death

of an employee.” (Johns-Manville Products Corp. v.

Supertor Court (1980) 27 Cal.3d 465, 467-468 (Johns-

Manville) .) “{T]he employer assumes liability for

industrial personal injury or death without regard to

fault in exchange for limitations on the amount of that

liability. The employee is afforded relatively swift and

certain payment of benefits to cure or relieve the effects of

industrial injury without having to prove fault but, in

exchange, gives up the wider range of damages potent-

tally available in tort.” (Shoemaker ». Myers (1990) 52

Cal.3d 1, 16.) The rule of exclusivity is designed to pre-

serve this carefully crafted balance. (Vacanti, supra, 24

Cal.4th at p. 811.)

But for every rule, there often lurks an exception

with hidden land mines. Quoting the Supreme Court 1n

Claxton, supra, 34 Cal.4th 367, 373, plaintiffs insist, “But

some claims, including those based on sexual or racial

discrimination or ether conduct contrary to fundamental

public policy, are not subject to the exclusivity provisions

of the workers’ compensation law.” Claxton itself is inap-

posite and irrelevant, standing as it does for the unrelated

proposition that the settlement and release of workers’

compensation claims on a preprinted form does not release

causes of action that are not exclusively subject to the

workers’ compensation law. (/d. at p. 370.) But there is

indeed a narrow exception to exclusivity drawn from

wrongful discharge cas

In Tameny, supra, 27 Cal.3d at p. 176, the Sup-

reme Court reasoned that “an employer's obligation to

refrain from discharging an employee who refuses to

commit a criminal act reflects a duty imposed by law

upon all employers in order to implement the fundamen-

tal public policies embodied in the state’s penal statutes.

As such, a wrongful discharge suit exhibits the classic

elements of a tort cause of action.” In subsequent cases

applying Tameny, the Supreme Court “recognized tort

causes of action for wrongful discharge based on sex

(Rojo, supra, 52 Cal.3d at pp. 90-91), age (Stevenson,

supra, 16 Cal.4th at pp. 897, 909), and retaliation for

testifying truthfully (Gantt, supra, 1 Cal.4th at pp. 1086-

1087) .” (City of Moorpark v. Superior Court (1998) 18

Cal. 4% 1143, 1159 (City of Moorpark). In City of

Moorpark, the Supreme Court determined that disability

discrimination, like sex and age discrimination, could

form the basis of a common law wrongful termination

case. (/d. at pp. 1159-1161.) Discriminatory firings violate

the “fundamental public policy” of the State of Califor-nia.

(Id. at p. 1153.)

In order for a public policy to support a common law

tort claim, it must be delineated in a statute ora

constitutional provision, it must inure to the benefit of the

public rather than the individual, it must be well

established, and it must be substantial and fundamental.

(City of Moorpark, supra, 18 Cal.4th at p. 1159.) Bor-

rowing from the wrongful discharge arena on funda-

mental public policy, courts found that the compensation

bargain “cannot encompass conduct, such as sexual or

racial discrimination, “obnoxious to the interests of the

state and contrary to public policy and sound morality.”

(Id. at p. 1153.) Thus, in these limited cases, the exclu-

sivity of the workers’ compensation system does not bar an

action at law for damages against the employer.

Plaintiffs misconstrue the breadth of the exception,

arguing in essence that any violation of a public policy

allows an employee to bring an action at law. They tether

their causes of action to a variety of state and federal

regulations and statutes to fit within the exception. But in

attempting to enlarge the exception they would destroy

the balance that is at the heart of the legislatively

mandated compensation bargain. The Supreme Court

provides a useful template in an analogous case, Johns-

Manville, supra, 27 Cal.3d 465.

In Johns-Manuille, the court plainly stated that had

the plaintiff there alleged, as plaintiffs do here, that he

was injured because the defendant knew and concealed

from him that his health was endangered by asbestos in

the work environment, failed to supply adequate protect-

tive devices to avoid injury, and violated governmental

regulations, “plaintiffs only remedy would be to

prosecute his claim under the workers’ compensation law.”

(Johns-Manvuille, supra, 27 Cal.3d at pp. 474-475.) In

other words, because the employer's conduct was consid-

ered one of the “hazards of the employment,” an action at

law was barred. (Id. at p. 477.) If, how-ever, the employee

contracts a disease caused by ingestion of asbestos and the

employer, knowing of the employee’s condition,

deliberately fails to notify him or his doctors, the employee

could pursue a tort action for damages for the aggravation

to his injuries caused by the employer's fraud. (/bid.)

Plaintiffs do not allege a fraudulent cover up, as in

Johns-Manuille, that aggravated their injuries once

defendants became aware of the radioactive poisoning.

Rather, their complaints allege the same kind of facts

that the Supreme Court held in Johns-Manville fall

within the exclusive domain of workers’ compensation.

While plaintiffs cite various laws and regulations

they assert defendants violated, they cite no authority,

and we have found none, for their proposition that these

types of statutory violations regarding operations of tele-

communications towers are considered conduct contrary to

a fundamental public policy of the state as that concept

has been narrowly construed in both workers’ compen-

sation and wrongful termination cases, Particularly in

workers’ compensation cases, the exception to the rule of

exclusivity is narrowly drawn to pre-serve the legislative

balance securing a prompt recovery for injured workers

while simultaneously limiting the employers’ exposure to

tort liability. Moreover, contrary to plaintiffs’ assertion

that the statutory violations ipso facto violate a funda-

mental public policy, even the violation of child labor laws

has been held to be within the employment bargain and

therefore subject to the exclusive jurigdiction of the

Workers’ Compensation Appeals Board, (Up-Right, Inc. v.

Van Erickson (1992) 5 Cal.App.4th 5'79, 583-584.)

Similarly, regulatory crimes do not “violate the employ-

ee’s reasonable expectations and transgress the limits of

the compensation bargain.” (Fermino v, Fedco, Inc. (1994)

7 Cal.4th 701, 723, fn. 7.)

Plaintiffs also make repeated references to viola-

tions of their civil nghts, citing to various provisions of

the state and federal Constitutions. We are somewhat

perplexed as to the meaning of these allegations. Their

sweeping allegations that defendants’ operation of the

telecommunication facilities, failure to warn, and failure

to monitor radioactivity levels violated their inherent

rights to be free of harm, if accepted, would dismantle

the workers’ compensation system because every injured

employee would contend his or her employer’s harmful

conduct violated the fundamental public policy of the

state as embodied in the Constitution. Courts have been

careful to narrowly construe the exception to exclusivity

so as not to intrude into the Legislature’s constitutional

prerogative to implement a workers’ compensation

system.

If, on the other hand, plaintiffs’ allegations that

their civil rights have been violated are an attempt to

state an alternative exemption to exclusivity, they fail to

cite any relevant authority. They appear to rely on a

federal preemption case, Silkwood v. Kerr-McGee Corp.

(1984) 464 U.S. 238 [78 L.Ed.2d 443] , in which the United

States Supreme Court held that federal statutes did not

preempt state awards of punitive damages for the

operation of hazardous devices. The case did not, how

ever, involve workers’ compensation or address the issue

of exclusivity. Moreover, the holding of the Supreme Court

“was overruled by the Amendments Act which specifically

bars punitive damages. See 42 U.S.C. § 2210(s))...

"O'Conner v. Commonwealth Edison Co. (7th Cir. 1994) 13

F.3d 1090, 1105, fn. 13.) As a result, plaintiffs have failed

to demonstrate a viable civil rights action sufficiently

independent of their other claims or, put another way, to

allege conduct that is not work related. (See Continental

Casualty Co. v. Supertor Court (1987) 190 Cal.App.3d 156,

1G2.

In answer to the series of questions posed by plain

tiff Jasso, the Labor Code does not exonerate defendants

from any malfeasance. Rather, it establishes a different

forum for the redress of the injuries Jasso sustained

during the course and scope of her employment. If, as

plaintiffs allege, defendants violated both state and

federal statutes, as well as state and federal constitutional

rights, and abrogated their duties to protect, warn, and

safeguard the employees who manned the lookout towers

on Likely Mountain, they should be held accountable for

their dereliction of duty. We do not condone either any

intentional or negligent conduct. But the propriety of their

conduct is not before us; we consider only the venue in

which their conduct will be addressed.

We therefore conclude that because plaintiffs,

state employees, affirmatively allege they were injured

while in the course and scope of their employment, no

civil action will lie and the trial court properly sustained

the demurrer. (Doney v. Tambouratgis (1979) 23 Cal.3d

91, 96-97.) “[L]lawsuits against state agencies are in

effect suits against the state.” (Colombo, supra, 3 Ca)

App.4th at p. 598.) Thus, the exclusive remedy of

workers’ compensation bars a state employee's claim:

against another state agency. (/d. at p. 599.) All

defendant state agencies were properly dismissed

Plaintiff Garcia complains that her “opportunity to

file an amended complaint and proceed to trial was un

fairly precluded by defendants when they brought in a:

new facts at the hearing on 5/15/06 without defense

counsel|’] s knowledge or chance to rebut the new infor

mation on new case authority.” The “new case authority

was Colombo, supra, 3 Cal. App. 4th 594, a case that wa

decided in 1991, or 15 years before the hearing. Nor did

the case relied on by Garcia, Claxton, supra, 34 Cal.4th

367, overrule Colombo as Garcia asserts. Defendants rely

on Colombo for the straightforward proposition that

because an action brought against one state agency 1s a

suit against the state, workers’ compensation provides the

exclusive remedy when a state employee pursues tort

claims against another state agency. (Colombo, supra, 3

Cal.App.4th at p. 599.) Nor did Claxton change, modify

expand the rule of exclusivity. Rather, in dicta, Claxton

merely reiterated the narrow exception to exclusivity for

those few cases in which an employer's conduct violates

fundamental public policy. In short, both old and new law

bars Garcia's action at law against her employer for

injuries she sustained during the course and scope of her

employment.

Garcia makes a feeble attempt to separate her job

duties from other times she might have been ex-posed to

radiation on Likely Mountain. For example, she argue:

that on occasion she would be on Likely Mountain to

————————————————————aeeee——__aeaeaeaeee

retrieve some-thing she forgot, to visit a Coworker, or to

get ready to begin her shift or unwind when the shift was

over. ‘These activities are all “closely connected” to her

normal job-related duties and, as a consequence, they too

are subject to the workers’ compensation scheme

(Vacanti, supra , 24 Cal.4th at p. 823.)

Because, as the trial court found, workers’

compensation provides the exclusive remedy for

plaintiffs’ injuries, defendants’ demurrers were properly

sustained without leave to amend. All other issues are

moot

The judgment ts affirmed

RAYE, J

We concur

BLEASE, Acting Pd

HULL, J

EXHIBIT 11

Plaintiffs Complaint

filed December 26, 2007

Ila Garcia Mary Jdusso

658-545 Lookout/Adin Road 6081 County Road 64

P.O. Box 585 P.O. Box 85.

Bieber, CA, 96009 Likely, CA 96116

530-294-5829 30-2154-5 1LHO

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

ILLA L. GARCIA: |

individually; and on behalf of |

herself: | COMPLAINT for

MARY A. JASSO; | NEGLIGENCE

individually, and on behalf of | UNDER COLOR OF

herself: | LAW and in; |

Plaintiffs

IN PRO PER

VS.

1) CALIFORNIA

DEPARTMENT OF

FORESTRY & FIRE

PROTECTION;

2) CALIFORNIA

DEPARTMENT OF

GENERAL SERVICES

AND TELE-

COMMUNICATIONS

DIVISION;

3) CALIFORNIA

DEPARTMENT OF

JUSTICE; And the following

State of California

Employees and/or former

employees:

4) JERRY BROWN;

Individually, and in his

Capacity as Attorney

General for the State of

California;

5) CATHERINE GUESS;

Individually and in her

capacity as Deputy Attorney

General for the State of

California;

6) BARRY HEMPHILL;

Individually and in his

capacity as former Deputy

Director for California

General Services |

| VIOLATION of CIVIL |

RIGHTS;

[18 U.S.C. §241; 18

U.S.C. §242)

18 U.S.C. 1864 §(a)(3);

42 U.S.C. §1983; the

First, Fifth and

Fourteenth

Amendments

U.S. Constitution)

FILED

DEC $ 6 2007

Ens Tae WNT OF Ua Sen

°——— ser ——

DEMAND FOR TRIAL

BY JURY

Department of

Telecommunications

Division;

7) GLEN NASH;

Individually, and in his

capacity as Engineering

Services Section Head for

California General Services

Department of Telecommun1-

cations Division;

8) RICHARD WILLIAMS;

Individually and in his

capacity as Senior

Telecommunications

Engineer for the California

Department of General

Services Telecommunication

Division,

9) MICHAEL D.

ENSMINGER; individually

and in his capacity as

Associate Engineer for the

California Department of

General Services

Telecommunication Division;

10) AL MUIR; Individually,

and in his capacity as

Operations Region 2

Manager for the California

Department of General

Services Telecommunication

Division;

11) RICH ZANNI;

individually and in his

capacity as Area No. 2

| Supervisor for the California _|

Department of General

Services Telecommunication

Division;

12) BRAD LUTTS;

individually and in his

capacity as Unit Chief Modoc

Lassen Unit California

Department of Forestry and

Fire Protection and DOES 1-

LOO.

i. PLAINTIFFS ILLA L. GARCIA and MARY

A. JASSO, joined together under F.R.C.P. section 20(a),

jointly and severally; do hereby allege and complain as

follows.

2. Plaintiffs are unaware of the true names and

capacities of the DOE Defendants sued herein as Doe

Employees 1 through 100, inclusive, and therefore sues

these defendants by such fictitious names. Plaintiffs are

informed and believe and thereon alleges; that each of the

fictitiously named Defendants is responsible in some

manner for the occurrences herein alleged and that

Plaintiffs’ injuries as herein alleged were proximately

caused by the aforementioned Defendants. Plaintiffs will

seek leave of this court to amend this complaint to reflect

the true names and capacities of said Defendants, when

the same becomes known to Plaintiffs.

3. At all times mentioned herein, Plaintiffs are

informed and believe, and on the basis of that informa-

tion and belief alleges, that each of the Defendants were

the agents, servants, or employees of each of the remain-

ing defendants. Further, defendants, and each of them,

in doing the things herein-after alleged, were at all times

acting within the course and scope of said agency, service,

or employment, and with the per-mission and consent of

each of the other defendants.

JURISDICTION AND VENUE

4. This Court has jurisdiction and venue

pursuant to 18 U.S.C. §1864(e); 28 U.S.C. §1331,

§ 1343(a)(3)(4), and §1357; 42 U.S.C. §1983, and §1988;

and 47 U.S.C. §505.

NATURE OF THE CASE

5. At all times material to this complaint, these

plaintiffs declare they are Citizens of the United States,

and as such fall under the umbrellas and protection of

Article 6, clause 2, and the First, Fifth, Seventh and

Fourteenth, Amendments of Constitution of the United

States, and the OSH Act of 1970, including section 654.

6. Plaintiffs hereby, complain:

a) Allegedly; the defendants State of California,

California Department of Forestry and Fire Protection

(hereafter known as CDF) and California Department of

General Services Telecommunications Division (here-

after known as GSTD) and/or their employees did have

control over the operation, installation, leasing and use of

various antennae which do and/or did emit and radiate

toxic radio-frequency, microwave and electromagnetic

radiation (hereafter known as EMF radiation) at their

Likely Mountain Lookout worksite and Telecommuni-

cations site (hereafter known as LMT), between the years

1992 through 2002, the relevant years plaintiffs were

employees for defendant CDF at LMT.

b) Allegedly; the defendants CDF and GSTD

had mandatory duties to post warnings of possible EMF

radiation exposure at LMT; to implement safety

procedures and provide plaintiffs a safe hazard free work

area and to provide training and personal pro-

tective equipment to plaintiffs Garcia and Jasso, who

were assigned to work at LMT between the years of 1992

through 2002.

c) Allegedly; the defendants CDF and GSTD

posted no signs and did not verbally or in written form

rarn the plaintiffs they werc working in a known

hazardous EMF radiation area.

d) Allegedly; the defendants failed to provide

plaintiffs a safe work environment and/or area at LMT

and allegedly; the defendants did not implement any

safety procedures to protect plaintiffs from toxic EMF

radiation exposure, nor did they train plaintiffs in the

dangers of EMF radiation exposure, or provide plaintiffs

with protective equipment.

e) Allegedly: defendants failed to comply with

relevant statue in regards to their telecommunications

operations and use at LMT and committed acts and

conduct under color of law and as a result defendants

malfeasance, plaintiffs suffered detrimental harm to

mind and body, permanent disability, deprivation of life,

liberty, equal protection of the laws and due process.

f) Allegedly; the defendants State of California,

CDF, GSTD, fraudulently concealed from the plain-tiffs

their LMT work-site was a known hazardous and toxic

EMF radiation area.

gz) Allegedly; after the defendants were notified

of the plaintiffs’ injuries, the defendants CDF, GSTD,

California Department of Justice (hereafter known as

CDJ), and/or their employees engaged in and/or

participated in the production and/or submission of

alleged false and misleading documents to the Courts, as

well as to various other Federal and State entities, as

well as California State Insurance Fund and the

California Fire Fighters and/or other interested parties.

h) Allegedly; the defendants CDF, GSTD,

California Department of Transportation (hereafter

known as DOT) and defendant CDJ, once informed that

the plaintiffs had suffered EMF radiation exposure and

injury at LMT, individually, and in concert with each

other, engaged in and/or participated in the conspiracy to

conceal the true facts of radiation levels that could be

found at likely Mountain between the years 1992 through

2002, and in general participated in an Abuse of Powers

by their own departments and the powers of the Courts

with their alleged submission of false and misleading

documents and statements to the Courts and regulatory

entities and/or that are in place to protect the plaintiffs’

interests for relief and damages for injuries suffered at

the hands of the defendants.

i) Allegedly; the defendants lease to non-state

entities.

Iil

FACTS

7. Plaintiff Illa Garcia worked as a seasonal

lookout for California Department of Forestry and Fire

Protection (hereafter known as CDF) at LMT, beginning

on or about the year 2000 and continuing through the

year 2002, for a total of three fire seasons which in

general spanned from May through October of any given

year. During the aforementioned years, fire seasons, and

months, plaintiff Illa Garcia, also lived at LMT in living

quarters provided by defendants CDF, when on duty

and/or on standby and/or otherwise, visiting LMT in an

off duty capacity between the aforementioned years.

8. Plaintiff Mary Jasso worked as a seasonal

lookout for CDF at LMT, beginning on or about the year

1992 and continuing through the year 2002, for a total of

eleven fire seasons which in general spanned from May

through October of any given year. During the

aforementioned years, fire seasons and months, plaintiff

Mary Jasso lived at LMT in living quarters provided by

CDF, when on duty and/or otherwise, visiting LMT in off

duty capacity between the aforementioned years.

9. The defendants CDF between the years 1992

through 2002, maintained and staffed a fire lookout tower

at LMT and employ the plaintiffs to staff the lookout

tower. During this same period of time, both defendants

CDF and GSTD, also did and/or do own, use, and operate

telecommunications equipment and devices at LMT and

lease services to other telecommunication users at LMT.

10. By all known consensus, telecommunication

devices, i.e., antennae, emit EMF radiation and creates

radiation fields which allegedly do couple to each other

creating larger fields and which do couple to and/or

reradiate off, nearby metal structures and do couple to

the human body, having a predilection for water based

biological organs and said radiation fields then general

high radiofrequency voltage and create hazardous

shock/burns and injury for those so exposed. Plaintiffs do

allege they suffered continuous daily the shock/burn

phenomena when they touched metal surfaces at LMT,

including the kitchen sink in the living qvarters provided

by defendant CDF.

11. Allegedly, the following structures and items

are and/or were metal based at the time the plaintiffs

were present at Likely Mountain between the years 1992

through 2002.

a) LMT lookout tower is constructed of metal.

b) Radio vault (building) that houses the

defendants and their lessees transmitting equipment

located at the base of the lookout tower is metal.

c) The back-up generator vault located next to

the radiovault is metal.

d) The temporary RV living quarters provided

by defendants CDF at LMT was metal.

e) The appliances inside the living quarters

were metal.

f) The automobiles plaintiffs, defendants,

numerous other government entities, numerous other

telecommunication users at LMT and numerous members

of the Public who visited the lookout tower site used to

come and go in at LMT were metal.

g) The chairs that lookouts and visitors used to

sit in the lookout’s cab were metal.

h) The map ring in the center of the lookout cab,

used by lookouts to give map location of smokes and

wildfires was metal.

i) The large WWII binoculars that the look-outs

(plaintiffs) used (pressed against their eyes when in use

and that lay against their breasts when not in immediate

use) were metal.

j) The plaintiffs touched, used, lived, rode and

climbed all the aforementioned structures and items each

and every day they were at LMT.

12. Allegedly, defendants took no action to warn

or protect workers that worked at LMT, from their and

their lessees dangerous radiation emitting antennae at

LMT, which allegedly is a mandatory duty, not a

discretionary duty pursuant to the OSH Act of 1970 (29

USC 654), and the multi-employer doctrine (OSHRC

Docket No. 97-1946) and other relevant statue. (See

footnote No. [1], pg. 12).

13. Allegedly the defendants did not follow the

mandates set out in 47 C.F.R. §1.1307(b); at LMT, that

require environmental assessments.

14. Plaintiff Illa Garcia, who suffered illness

beginning on or about July 2002, became permanently

disabled on or about April 2004.

15. Plaintiff Mary Jasso, who suffered illness

beginning on or about July 2002, became permanently

disabled on or about October 2002.

16. Neither plaintiff Ia Garcia or Mary Jasso

became aware and/or suspected that their job as lookouts

at LMT, had exposed them to toxic EMF radiation until

on or about late November 2003.

17. Upon subsequent research and investigation

the plaintiffs found their worksite at LMT had allegedly

been a highly hazardous and toxic work site area and

hereby allege that fact was concealed from them by

defendants.

18. After subsequent medical testing beginning

on or about February 2004 and continuing through

present day, the Plaintiffs were found to have toxic brain

and blood cell damage, tumors, cataracts, tremors, loss of

hearing, breathing difficulties, paralysis and other

physical Camage to their bodies.

19. Plaintiffs hereby allege the toxic brain, blood

cell and other body damage they suffered and suffer from

was a direct and proximate result of the EMF radiation

exposure they suffered from defendants and their lessees

radiation emitting antennae at LMT.

IV.

FIRST COUNT

For Alleged Negligence Under Color of Law

(18 USC §242; 42 USC §1983; 5 &

14TH Amendment U. S. Constitution)

20. Paragraphs 1 through 19, are hereby

incorporated by reference.

21. Pursuant to the General Duty Clause of the

OSH Act of 1970, section 5(a) [29 USC §654]; and other

relevant statue, [1] defendants State of California, CDF

and GSTD, at all times were under a mandatory duty to

protect the plaintiffs from toxic work-site environments,

harmful EMF radiation exposure, and injury.

22. Allegedly the defendants failed in their

mandatory duty to protect the plaintiffs from toxic work-

site environments, harmful EMF radiation exposure, and

injury and as a direct and proximate result of defendants

alleged failure, the plaintiffs suffered severe detrimental

injuries to their bodies, permanent disabilities,

deprivation of life, quality of life and memories of life, and

were denied the freedom to choose what toxic exposure

risks they would allow themselves to be exposed to and

were denied the equal protection of the laws enacted to

protect those who worked at telecommunication sites.

SECOND COUNT

State Created-Danger Under Color of Law

(18 USC 242; 18 USC 1864(a)(3); 42 USC §1983;

hth & 14TH Amendment U. S. Constitution)

23. Paragraphs 1 through 22, are hereby

incorporated by reference.

24. Allegedly, the defendants State of California,

CDF and GSTD placed the plaintiffs in harm’s way

without the plaintiffs’ knowledge of the toxic condition of

their work-site and without the plaintiffs consent to be

harmed by the defendants and/or the defendants

radi:tion emitting telecommunications operations and

devices and therefore, when the plaintiffs allegedly

suffered injury from EMF radiation exposure, the

1] =a) 29 G_-F.R. § 1910.268(a)(3); (&)\(1)(p)(2)(3); 47 C.F.R.

§1.1307(b); §1.1310. b) Fifth and Fourteenth Amendments U.S.

Constitution. c) California Code of Regulations, Title 8; §340; §340.2;

§5085; 8603; 5605; 8617; §8618. d) California Constitution; Article 1,

§1; §7(a).

defendants acted under color of law and were in violation

of plaintiffs’ civil rights pursuant to the Fifth and

Fourteenth Amendments of the Constitution of the

United States.

25. Defendants knew or should have known that

when they placed the plaintiffs to work at LMT, they

were exposing [2] them to an invisible airborne toxic

assault by EMF radiation being emitted by their haz-

ardous radiation emitting devices, 1.e., antennas and

microwave dishes at LMT, and it was foreseeable that

without training and protection from the EMF radiation

assault, plaintiffs would suffer harm and severe injuries

from the EMF radiation exposure.

26. Plaintiffs allege they did suffer harm from toxic

EMF exposure at defendants LMT work-site as result of

defendants negligence under color of law and the injuries

that plaintiffs suffered, allegedly, are considered to be

« ‘Uful and intentional pursuant to 47 C.F.R. §312(f); [3]

and include brain damage of such a degree that the

plaintiffs have suffered both short term and long term

memory loss and have been given a prognosis of slow and

[2] “EXPOSE” “1. a) to lay open (to danger, attack, ridicule, etc.);

leave unprotected.” Webster's New World Dictionary of the

American Language, Encyclopedic Edition (1952)(pg. 512).

[3] 47 USC §312(f) “For purposes of this section:

“(1) The term "willful", when used with reference to the commission

or omtission of any act, means the conscious and deliberate

commission or omission of such act, irrespective of any intent to

violate any provision of this Act or any rule or regulation of the

Commission authorized by this Act or by a treaty ratified by the United

States.

(2) The term "'repeated"’, when used with reference to the commission

or omission of any act, means the commission or omission of such act

more than once or, if such commission or omission ts continuous, for

more than one day.”

continuing diminished cognitive and mental capacity

Plaintiffs believe the diagnosis and prognosis of

increasing diminished mentai capacity is more probable

than not, true, as the plaintiffs have, and/or are already

suffering memory loss, confusion, anxiety, depression,

time lapses and Alzheimer’s and dementia-like

symptoms

27. In other words, these plaintiffs hereby,

complain their lives have been corrupted, interrupted,

shortened, economically threatened and have ceased to

be normal because of defendants

and/or their employees alleged negligent acts and conduct

under color of law

COUNT THREE

ABUSE OF POWERS

(Under Color of Law 18 USC §241; §242;

14TH Amendments, U. S. Constitution)

28. Paragraphs 1 through 27, are hereby incorporated

by reference.

29. The defendants own, use, operate, maintain, and

lease telecommunications service at LMT. They have

control over two of the telecommunication towers at LMT

The Lookout Tower which has both antenna and micro-

wave dishes and the Wood-Pole Tower which contains

numerous and various type antennae.

30. The defendants CDF and GSTD also lease telecom-

munications services to other government entities and

non-state entities and at all times exercise control of their

lessees telecommunications equipment and antenna and

in most cases purchase, install, repair, replace and main

tain the various antennae of their lessees in addition to

their own antennae.

31, Upon learning the plaintiffs had alleged EMF

radiation exposure and injuries, the defendants CDF and

GSTD, allegedly, faiied to investigate or police

themselves or their lessees for their failure to do

mandatory duty and allegedly failed to notify their

lessees there had been complaints of EMF radiation

exposure due to negligence.

32. It was plaintiffs, themselves, who notified

defendants lessees Modoc National Forest Service and

Federal Bureau of Land Management on or about April of

2004, there was a problem of safety at LMT

33. Defendants CDF and GSTD and/or their

employees, allegedly, countered plaintiffs claims with

reassurances to any government agencies making

inquiries that there was no danger LMT and plaintiffs

injuries and disabilities were not due to EMF radiation

exposure

34. Defendants GSTD and/or their employees

allegedly produced test documents on or about February

2005 and September 2006, that stated no radiation levels

were found to be above that allowed by current FCC

standards

35. Defendants CDF, GSTD, and CDd allegedly

submitted the State’s test result to various Courts and

government agencies as proof the plaintiffs were not

injured at LMT

36. Allegedly, the defendants CDF, GSTD and/or

their employees were aware the tests results and

statements were false and misleading and were being

produced solely for the purposes of exonerating the State

and defendants from liability and prosecution.

37. Allegedly, the defendants CDF, GSTD, CDJ

and DOT, and/or their employees conspired together to

submit false and misleading documents and statements

to fraudulently conceal the true levels of radiation and

the hazardous conditions at LMT, and it 1s plaintiffs

hbehef the defendants obstructed justice by their abuse of

powers and defrauded the Courts of Law, and hindered

and obstructed the plaintiffs requests and/or actions fo1

economic rehef for their injuries and damage and urgent

medical care, equal protection of the laws and due

proces:

Vil

CONCLUSION

38. The Plaintiffs pursuant to 42 USC §1981(a);

have the right to sue and pursuant to the First, Fifth and

Fourteenth Amendments of the Constitution of the

United States, also have the right to full and equal

protection of all laws

39. ‘These Plaintiffs are and/or were at all relevant

times they were at LMT, innocent bystanders, victim

and the class of persons that the law, Act, Article, and

regulations of the United States, and State of California

were enacted to protect and that have been used and/or

referred to in this complaint, supra

Vill

PRAYER FOR RELIEF

WHEREFORE, The Plaintiffs demand a trial by

jury and pray for judgment against the defendants

individually, severally and/or jointly, and for relief in the

amounts specified and unspecified below

l. Award damaves and relief in an amount in

excess of $12,500,000, per plaintiff pursuant to 18 U.S.C

1864(e); and 42 U.S.C. §1985

2. Award Plaintiffs costs, expert witness fee

and reasonable attorney fees in accordance with 18

U.S.C. 1864 §(e); USC §1988: and

3. For interest on aforesaid amount at a legal

rate from and after the time when it was found that said

amounts were due to Plaintiffs;

4. Award such other necessary and proper relief

as this Honorable Court may deem just and equitable.

December 19, 2007

s/ILLA L. GARCIA s/MARY A. JASSO

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.