FINDINGS AND RECOMMENDATIONS
Defendants' third amended motion to dismiss plaintiffs' complaint was submitted for decision on the papers by order of this court filed August 25, 2008.*fn1 For the following reasons, the court recommends that defendants' motion be granted, and that plaintiffs' complaint be dismissed without leave to amend.
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 Illa Garcia worked there for three fire seasons from 2000 through 2002; plaintiff Mary Jasso worked there 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, operated 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.*fn2 Id. at ¶¶ 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 ¶¶ 16, 17; see also ¶ 26 ("plaintiffs have, and/or are already suffering from memory loss, confusion, anxiety, depression, time lapses and Alzheimer's and dementia-like 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 ¶ 6. Plaintiffs allege that once they informed defendants of their medical problems, these defendants, along with defendant California Department of Justice, and nonparties 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 defendants: (1) negligent failure to protect plaintiffs from injury (also relying on 18 U.S.C. § 242); (2) knowing failure to warn and protect plaintiffs from injury (also relying on 18 U.S.C. §§ 242 and 1864(a)(3)); and (3) conspiracy to submit false and misleading information (also relying on 18 U.S.C. § 241 and 242, and 42 U.S.C. § 1985). Plaintiffs each seek damages of $12,500,000, with interest, and an award of fees and costs.
Defendants move to dismiss plaintiffs' complaint on the grounds that this court does not have subject matter jurisdiction, and that the complaint fails to state a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(1), 12(b)(6).
Defendants recount the history of this action in state court, as follows.*fn3 On July 25, 2005, plaintiffs filed separate actions against these and other state agency defendants in superior court. Jasso alleged four causes of action: dangerous condition of public property, failure to protect, strict liability for ultrahazardous activity, and concealment of a dangerous condition. Garcia alleged one cause of action, negligence per se. See Decl. of Deputy Attorney General James W. Walker, Dckt. No. 5, Exh. C, at pp. 3-4. In both cases, defendants' demurrers were sustained on the ground that plaintiffs' sole and exclusive remedy against the state is through the state worker's compensation system. Accordingly, judgments were entered against both plaintiffs. See Walker Decl., Exh. A (Garcia v. Cal. Dept. of Forestry et al., Case No. 42425, Lassen County Superior Court, Order and Judgment entered July 5, 2006), and Exh. B (Jasso v. Cal. Dept. of Forestry et al., Case No. 41697, Lassen County Superior Court, Order and Judgment entered August 24, 2006). Superior Court Judge Bradbury reasoned in pertinent part that, "[t]elecommunications 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. (Citations)." Id. at Exh. B, at p.2.
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:
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 telecommunications towers are considered conduct contrary to fundamental 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 will lie and the trial court properly sustained the demurrer. . . . [T]he exclusive remedy of workers' compensation bars a state employee's claims against another state agency. All defendant state agencies were properly dismissed.
The Court of Appeal also rejected appellant's civil rights claims, reasoning: Plaintiffs also make repeated references 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.
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 plaintiffs' petitions for writ of certiorari and for rehearing. Id. at Item 3.
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 jurisdiction 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 corrected by amendment." Tosco Corporation v. Communities 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) motion is 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 jurisdictional facts underlying the complaint, generally referred 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 all 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 considering the instant motions, relies exclusively on the ...