1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ANNA M SCHASKER, Case No. 23-cv-02893-SVK

8 Plaintiff,

ORDER SCREENING

9 v. FIRST AMENDED COMPLAINT UNDER 28 U.S.C. § 1915(e) 10 GAVIN NEWSOM, et al., Re: Dkt. No. 18 11 Defendants.

12 Before the Court is pro se Plaintiff Anna Schasker’s First Amended Complaint (the “FAC” 13 at Dkt. 18). The Court previously granted Plaintiff’s application to proceed in forma pauperis and 14 then screened her original complaint under 28 U.S.C. Section 1915(e), concluded “that [it did] not 15 state a claim upon which relief can be granted” and directed Plaintiff to file an amended 16 complaint. See Dkt. 12 at 5. Plaintiff has consented to the jurisdiction of a magistrate judge (see 17 Dkt. 10), and the Court now screens Plaintiff’s FAC. For the reasons discussed below, the Court 18 concludes that the FAC fails to state a claim upon which relief can be granted and ORDERS 19 Plaintiff to file a second amended complaint by December 18, 2023. 20 I. BACKGROUND 21 Plaintiff sues Defendants the governor of California, Gavin Newsom, and the Napa County 22 Fire Department (the “Department”) for copyright infringement in connection with proposals, 23 initiatives and statements issued by Defendants regarding climate change and environmental 24 preservation. See FAC at 3, 18. Specifically, she alleges that Defendants impermissibly copied 25 three of her copyrighted works: 26  A letter she sent to Defendant Newsom, dated May 7, 2014, titled “Technology Challenge 27 Speech.” See Dkt. 18-1 at 1-3. In the Technology Challenge Speech, Plaintiff discusses 1 switching to Solar [energy]. . . . Wind turbine[s] can also be used for renewable energy . . . 2 . California has 74 lakes on a list currently contaminated with mercury. The 74 lakes need 3 to be cleaned immediately.”). 4  A letter she sent to the Department, dated August 21, 2021, titled “The Howard Kamerer 5 Plan.” See id. at 5-7. In The Howard Kamerer Plan, Plaintiff proposes implementation of 6 a “grid” system to help manage wildfires. See id. at 5. She also proposes “[r]emov[ing] all 7 PG and E power lines” and other “[r]esidential changes.” See id. at 6. 8  A letter she sent to the Department, dated January 21, 2022, titled “The Howard Kamerer 9 Plan #2.” See id. at 169-70. In The Howard Kamerer Plan #2, Plaintiff proposes installing 10 thermometers in the ground in forests to help manage wildfires and criticizes “PG & E’s 11 mal-functioning equipment” and Defendant Newsom’s plan “to do controlled fires.” See 12 id. at 169. 13 Altogether, the three copyrighted works present high-level aspirations regarding California 14 environmental policy, and to the extent Plaintiff offers specific proposals, her discussion remains 15 vague. See, e.g., id. at 5 (“Create a fire break FROM the forest bed TOWARD residential areas. 16 This break can be bulldozed wide enough so blazing fire and heat will have a buffer before it can 17 reach any further. 1 mile? Dirt will stop the fire from traveling further. Keep the area free from 18 debris.”). 19 Armed with these generalized submissions, Plaintiff appends to the FAC numerous 20 articles, executive orders, legislative bills and publications, concerning Defendants’ environmental 21 policies (and only some of which Defendants issued themselves), as examples of alleged instances 22 in which Defendants infringed her copyrights. See Dkts. 18-1, 18-2. However, Plaintiff does not 23 identify any instances in which Defendants (1) reproduced exact or similar language to that 24 contained in the copyrighted works or (2) promoted unique or original ideas expressed in the 25 copyrighted works (e.g., installing thermometers in the ground). Instead, she describes only 26 similarities between the general subject matter of her copyrighted works and that of the allegedly 27 infringing materials. The following examples illustrate these comparisons: 1 water, and air conservation due to a wasteful use of natural resources that threatens the 2 state of Californina [sic],” Defendant Newsom emphasized a need for California’s 3 environmental conservation in an executive order issued in 2020. See FAC ¶ 6. 4  Defendant Newsom “took the [Technology Challenge Speech’s] creative content of 5 electric cars [to] pass[] a law that 100 percent of all passenger cars and trucks will be 6 electric by 2035.” See id. ¶ 8. 7  Plaintiff compares Defendant Newsom’s “initiat[ion of] regulatory action to end the 8 issuance of new permits, for hydraulic fracturing” with discussion in the Technology 9 Challenge Speech concerning “banning fracking to secure safety for our communities.” 10 See id. ¶ 12. 11  Just as Plaintiff advocates for transitioning to solar and wind energy in the Technology 12 Challenge Speech, “[t]he two Defendants Napa County Fire Department and Governor 13 Gavin Newsom united their efforts to create a reliable structure that is undeniably the 14 Plaintiff[’]s creative content by joining the patterned system both of both [sic] Solar and 15 Wind Energy.” See id. ¶ 19. 16 II. LEGAL STANDARD 17 District courts must screen civil actions filed in forma pauperis to ensure that a complaint 18 states a claim upon which relief can be granted, is not frivolous and does not seek monetary relief 19 from a defendant immune from such relief. 28 U.S.C. § 1915(e)(2); Lopez v. Smith, 203 F.3d 20 1122, 1126-27 (9th Cir. 2000). “The standard for determining whether a plaintiff has failed to 21 state a claim upon which relief can be granted under [Section 1915] is the same as the Federal 22 Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 23 F.3d 1108, 1112 (9th Cir. 2012) (citation omitted). To survive scrutiny under Rule 12(b)(6), a 24 plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. 25 Corp. v. Twombly, 550 U.S. 544, 570 (2007). This facial-plausibility standard requires a plaintiff 26 to allege facts resulting in “more than a sheer possibility that a defendant has acted 27 unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Further, under Section 1915, 1 the claim that would entitle him to relief.” Watison, 668 F.3d at 1112. In performing this 2 analysis, courts must construe pro se pleadings liberally. See id. 3 III. DISCUSSION 4 Plaintiff fails to state a claim upon which relief can be granted in the FAC, because she 5 does not sufficiently allege any actionable copying of her copyrighted works. “To state a claim 6 for copyright infringement, [Plaintiff] ‘must plausibly allege two things: (1) that [she] owns a 7 valid copyright in [the copyrighted works], and (2) that [Defendants] copied protected aspects of 8 [the copyrighted works’] expression.’” Malibu Textiles, Inc. v. Label Lane Int’l, Inc., 922 F.3d 9 946, 951 (9th Cir. 2019) (citation omitted). To sufficiently plead copying, Plaintiff must “plead 10 facts plausibly showing either (1) ‘that the . . . works in question are strikingly similar,’ or (2) ‘that 11 [the works] are substantially similar and that [Defendants] had access to [them].’” Id. at 952 12 (citations omitted). In evaluating whether works are strikingly or substantially similar at the 13 pleading stage, the Court must apply the Ninth Circuit’s “extrinsic test.” See id. “The extrinsic 14 test ‘is an objective comparison of specific expressive elements; it focuses on the articulable 15 similarities between the . . . works.’” Id. (citation omitted). Under the extrinsic test, the Court 16 must first “filter out” the “unprotectable elements” of Plaintiff’s copyrighted works and then 17 compare the remaining elements to the allegedly infringing works “to assess similarities in the 18 objective details of the works.” Id. at 952-53. 19 Applying the extrinsic test here, the Court concludes that Plaintiff has not sufficiently 20 alleged any copying by Defendants. Plaintiff alleges copyright infringement based on only the 21 most general of similarities between the high-level ideas of her three copyrighted works and the 22 policy initiatives and publications of Defendants. See Section I, supra (enumerating illustrative 23 examples of Plaintiff’s comparisons of general ideas). But “copyright protection does not extend 24 to general ideas.” Kevin Barry Fine Art Assocs. v. Ken Gangbar Studio, Inc., 391 F. Supp. 3d 959, 25 966 (N.D. Cal. 2019); see also Berkic v. Crichton, 761 F.2d 1289, 1293 (9th Cir. 1985) (“General 26 plot ideas are not protected by copyright law; they remain forever the common property of artistic 27 mankind.” (citations omitted)). ] for managing wildfires remain as protectable elements: (1) implementation of the grid system, (2) 2 || application of certain enumerated residential changes and (3) installation of an underground 3 || thermometer. But Plaintiff does not direct the Court’s attention to any instances in which 4 || Defendants described or pursued these proposals. She comes closest to doing so when she 5 identifies guidelines prepared by the Department encouraging “property owners to create 6 || defensible space around structures” to prevent wildfires (see Dkt. 18-2 at 115), which she 7 || compares to the grid system she proposes in The Howard Kamerer Plan. See FAC § 20. But the 8 general idea of managing wildfires with buffer space is not subject to copyright protection.’ Thus, 9 || Plaintiff has not sufficiently alleged any actionable copying by Defendants. 10 || IV. CONCLUSION 11 For the foregoing reasons, the Court concludes that Plaintiff fails to state a claim upon = 12 || which relief can be granted in the FAC and ORDERS Plaintiff to file a second amended

13 complaint by December 18, 2023. In a second amended complaint, Plaintiff must clearly identify

14 || any instances in which Defendants have reproduced or expressed the specific proposals discussed 15 in her copyrighted works; merely comparing the general ideas underlying her copyrighted works © 16 || with Defendants’ allegedly infringing works will not suffice. The Court will dismiss this action if

17 || Plaintiff fails to file a second amended complaint by the deadline. 18 SO ORDERED. 19 Dated: November 17, 2023 20 21 Sette

SUSAN VAN KEULEN

22 United States Magistrate Judge 23 24 ' Plaintiff also directs the Court’s attention to a (concededly) non-functioning hyperlink to videos 25 allegedly posted online by the Department that depict use of her proposed gridding system. See FAC § 17. While the Court is sympathetic to Plaintiff’s inability to produce copies of the videos 26 || for the Court’s reference, that inability does not excuse Plaintiffs failure to describe any alleged similarities between the videos and her proposed gridding system. Even a liberally construed pro 27 || Se pleading screened under Section 1915 will not survive based on conclusory allegations alone. See, e.g., Balik v. Time Warner Cable, Inc., No. 16-cv-05101-HSG, 2016 WL 6892715, at *3 28 (N.D. Cal. Nov. 23, 2016) (rejecting pro se plaintiff's “conclusory allegations” while conducting screening under Section 1915).