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Jasso v. Citizens Telecommunications Company of California

March 11, 2009



Defendants' motion for summary judgment was submitted for decision on the papers by order of this court entered July 9, 2008.*fn1 For the following reasons, the court recommends that the motion be granted.


This is one of several actions, based on the same set of facts, filed by plaintiffs in state and federal court. Defendants removed this action from the Lassen County Superior Court on December 30, 2005. On January 9, 2007, this court dismissed plaintiffs' complaint for failure to state a claim, and accorded plaintiffs leave to file an amended complaint, which they filed on February 2, 2007.

Pursuant to their amended complaint, plaintiffs Mary Jasso and Illa Garcia state that they are former employees of the California Department of Forestry and Fire Protection ("CDF") who worked as seasonal lookouts at the "Likely Mountain Lookout" site ("Likely Mountain") in Lassen County, California. Jasso worked seasonally at the site from 1992 to 2002; Garcia worked there from 2000 to 2002. First Amended Complaint ("FAC"), ¶ 24. The additional eleven plaintiffs are family members of Jasso and Garcia who visited or lived with them during their employment at Likely Mountain. FAC at ¶¶ 27, 28. Plaintiffs allege that they sustained injuries as a result of exposure to radiation emitted from defendants' cellular telecommunication facilities and operations at Likely Mountain. FAC at ¶ 20, 18. Defendants are cellular telephone businesses which own, use and/or lease telecommunications facilities located at Likely Mountain. Plaintiffs describe the facilities as telecommunications towers, buildings, antennae, microwave dishes, and cellular panels. FAC at ¶ 18. Plaintiffs allege that defendants have failed to comply with federal regulations concerning the construction, operation and maintenance of their facilities, FAC at ¶¶ 53-59, and as a result plaintiffs have suffered numerous bodily injuries, including cancer, brain damage, and autism.*fn2 FAC at ¶¶ 40, 41, 28.

The amended complaint sets forth three causes of action: (1) a state law claim of negligence per se, premised on defendants' alleged failure to comply with Federal Communications Commission ("FCC") regulations regarding radiofrequency ("RF") emissions; (2) a state law claim of strict liability for ultrahazardous activities; and, (3) liability pursuant to 47 U.S.C. § 206 of the Federal Communications Act ("FCA"), which authorizes damages for personal injury by a common carrier for conduct violating Chapter 5 of Title 47.

On September 13, 2007, this court granted in part defendants' motion to dismiss plaintiffs' amended complaint. The court dismissed plaintiffs' state law ultrahazardous/strict liability claim on the basis of conflict preemption by the FCC's regulatory guidelines. However, the court denied defendants' motion, made pursuant to the primary jurisdiction doctrine, as to plaintiffs' state law claim for negligence per se and alleged violation of 47 U.S.C. § 206. The court declined to defer to FCC jurisdiction on these matters on the ground, inter alia, that federal regulations establish only the relevant standard of care in assessing a negligence claim; the remaining analysis relative to causation necessarily lies with the courts. See Order filed September 13, 2007, adopting Findings and Recommendations filed July 30, 2007.

All defendants filed answers to the amended complaint on October 31, 2007.

On April 7, 2008, defendants Modoc RSA Limited Partnership dba Verizon Wireless, and Cellco Partnership dba Verizon Wireless ("Verizon"), filed the instant motion for summary judgment, which has been joined by defendants Sierra Pacific Power Company, United States Cellular Corporation, California Rural Services Area #1, Union Pacific Railroad Company, Citizens Telecommunications Company of California, Inc., Surprise Valley Electrification Corporation, Valley Industrial Communications, Inc. and Alturas Ranches LLC.

Defendants' motion is premised on defendants' assertion that plaintiffs' claims are barred by collateral estoppel as a result of two decisions rendered by the Lassen County Superior Court.

Plaintiffs filed an opposition and motion to strike certain evidence proffered by defendants.


A. Summary Judgment

Summary judgment pursuant to Fed. R. Civ. P. 56 avoids unnecessary trials in cases with no disputed material facts. Northwest Motorcycle Ass'n v. United States Dep't of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994). At issue is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). Two steps are necessary. First, according to the substantive law, the court must determine what facts are material. Second, in light of the appropriate standard of proof, the court must determine whether material factual disputes require resolution at trial. Id., at 248.

When the opposing party has the burden of proof on a dispositive issue at trial, the moving party need not produce evidence which negates the opponent's claim. Lujan v. National Wildlife Fed'n, 497 U.S. 871, 885 (1990). The moving party need only point to matters which demonstrate the absence of a genuine material factual issue. Celotex v. Cattret, 477 U.S. 317, 323-24 (1986).

If the moving party meets its burden, the burden shifts to the opposing party to establish genuine material factual issues. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The opposing party must demonstrate that disputed facts are material, i.e., facts that might affect the outcome of the suit under the governing law, Anderson, 477 U.S. at 248; T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that disputes are genuine, i.e., the parties' differing versions of the truth require resolution at trial, T.W. Elec., 809 F.2d at 631. The opposing party may not rest upon the pleadings' mere allegations or denials, but must present evidence of specific disputed facts. Anderson, 477 U.S. at 248.*fn3 Conclusory statements cannot defeat a properly supported summary judgment motion. Scott v. Rosenberg, 702 F.2d 1263, 1271-72 (9th Cir. 1983).

The court does not determine witness credibility. It believes the opposing party's evidence, and draws inferences most favorably for the opposing party. Anderson,477 U.S. at 249, 255. Inferences, however, are not drawn out of "thin air," and the proponent must adduce evidence of a factual predicate from which to draw inferences. American Int'l Group, Inc. v.American Int'l Bank, 926 F.2d 829, 836 (9th Cir.1991) (Kozinski, J., dissenting) (citing Celotex, 477 U.S. at 322).

If reasonable minds could differ on material facts at issue, summary judgment is inappropriate. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995). On the other hand, "[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587 (citation omitted). In that case, the court should grant summary judgment.

B. Collateral Estoppel

"Under collateral estoppel, once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case." Dodd v. Hood River County, 59 F.3d 852, 863 (9th Cir. 1995). "'[T]he doctrine of collateral estoppel can apply to preclude relitigation of both issues of law and issues of fact if those issues were conclusively determined in a prior action.' United States v. Stauffer Chem. Co., 464 U.S. 165, 170-71 [](1984)." Steen v. John Hancock Mut. Life Ins. Co., 106 F.3d 904, 910 (9th Cir. 1997).

"In determining the collateral estoppel effect of a state court judgment, federal courts must, as a matter of full faith and credit, apply that state's law of collateral estoppel. 28 U.S.C. § 1738; Kremer v. Chemical Constr. Corp., 456 U.S. 461, 481-82(1982)." In re Bugna, 33 F.3d 1054, 1057 (9th Cir. 1994). Under California law, the following requirements must be satisfied in order to find collateral estoppel: "1) the issue to be precluded must be identical to that decided in the prior proceeding; 2) the issue must have been actually litigated at that time; 3) the issue must have been necessarily decided; 4) the decision in the prior proceeding must be final and on the merits; and 5) the party against whom preclusion is sought must be [the same as or] in privity with the party to the former proceeding." People v. Garcia, 39 Cal.4th 1070, 1077 (2006); see also Lucido v. Superior Court, 51 Cal.3d 335, 341 (1990).


Evidence, regardless of form, that may be admissible at trial, may also be considered on summary judgment. Burch v. Regents of the University of California, 433 F.Supp. 2d 1110, 1120 (E. D. Cal. 2006) (citing Celotex, 477 U.S. at 324). In a motion for summary judgment based on res judicata or collateral estoppel, "[w]hen the moving party has 'introduce[d] a record sufficient to reveal the controlling facts and pinpoint the exact issues litigated in the prior action,' there is no need for the entire record of the prior litigation to be submitted into evidence. Hernandez v. City of Los Angeles, 624 F.2d 935, 937 (9th Cir. 1980). See also Jones v. Gann, 703 F.2d 513, 515 (11th Cir.1983) (res judicata defense may be raised 'by introducing sufficient information into the record to allow the court to judge the validity of ... the defense')." Takahashi v. Board of Trustees of Livingston Union School Dist., 783 F.2d 848, 850 (9th Cir. 1986).


With the exception of Defendants' Exhibit A, discussed infra, defendants' request for judicial notice is limited to official court records, including pleadings submitted therein. The court may judicially notice matters of public record, including pleadings, orders, and other papers filed with the court. Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986). Additionally, "[m]aterials from a proceeding in another tribunal are appropriate for judicial notice." Doran v. Aus, __ F.3d __, 2009 WL 123608, *1 (9th Cir. 2009). While plaintiffs challenge ...

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