Suzanne Ainslie v. Citizens Telecommunications Company of California, Inc.

FILED
NOT FOR PUBLICATION JUN 22 2010

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

SUZANNE M. AINSLIE; et al., No. 09-15847

Plaintiffs - Appellants, D.C. No. 2:05-cv-02649-GEB-
and EFB

BENJAMIN G. GARCIA; et al.,
MEMORANDUM *
Plaintiffs,
v.

CITIZENS TELECOMMUNICATIONS
COMPANY OF CALIFORNIA, INC.; et
al.,

Defendants - Appellees.

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.

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

09-15847
 Two individuals formerly employed as fire lookouts, and members of their

families, appeal pro se from the district court’s judgment in their action claiming

that defendants caused them to be exposed to electromagnetic radiation in excess

of federally-permissible limits and thereby violated 47 U.S.C. § 206 and California

state law. We have jurisdiction under 28 U.S.C. § 1291. We review de novo.

Proctor v. Vishay Intertechnology, Inc., 584 F.3d 1208, 1218 (9th Cir. 2009). We

affirm.

The district court dismissed the plaintiffs’ claim of strict liability based on

ultrahazardous activity. By failing to raise any arguments in their opening brief

addressing the district court’s ruling on this claim, the plaintiffs waived this

challenge. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).

The district court properly granted summary judgment on the claims of

negligence per se and violation of 47 U.S.C. § 206. Those claims were litigated

and decided in an earlier state court action brought by some of the plaintiffs here

(with whom the remainder are in privity). See Jasso v. Cal. Dep’t of Forestry,

Superior Court of California, 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

2 09-15847
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).

AFFIRMED.

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