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SUPERIOR COURT OF CALIFORNIA,
COUNTY OF SACRAMENTO
GORDON D SCHABER COURTHOUSE
MINUTE ORDER
DATE: 02/15/2023 TIME: 01:30:00 PM DEPT: 53
JUDICIAL OFFICER PRESIDING: Richard K. Sueyoshi
CLERK: L. Chen-Knapp
REPORTER/ERM: None
BAILIFF/COURT ATTENDANT: N. Alvi, J. Reilly
CASE NO: 34-2019-00249221-CU-CR-GDS CASE INIT.DATE: 01/25/2019
CASE TITLE: Fire Guard Corporation vs. California Department of Forestry and Fire Protection
CASE CATEGORY: Civil - Unlimited
EVENT TYPE: Motion for Summary Adjudication - Civil Law and Motion - MSA/MSJ/SLAPP
APPEARANCES
Nature of Proceeding: Motion for Summary Adjudication
TENTATIVE RULING
The motion of Defendants California Department of Forestry and Fire Protection, California Office of the
State Fire Marshal, Mike Richwine, and Jeffrey Schwarz (collectively "OSFM") for summary adjudication
of the first through fifth causes of action asserted by Plaintiffs in their First Amended Complaint ("FAC")
is granted, in part, and denied, in part.
The Court declines to rule on Defendants' objections as they were immaterial to the determination of this
motion.
Background
This action involves a challenge by various Plaintiffs to regulations adopted by OSFM establishing
certification requirements for persons to become "Certified Fire Sprinkler Fitters" for the installation of
water-based fire protection systems (the "Regulations").
The Legislature authorized OSFM to adopt regulations to ensure fire safety. (UMF Nos. 1 and 10.) Prior
to the adoption of the Regulations, the installer of fire sprinkler systems was not required by law to
demonstrate his or her knowledge or experience. (UMF Nos. 2 and 12.) The Regulations were
developed to ensure licensed company's installers have the necessary skills and qualifications to install
fire sprinkler systems in order to address concerns regarding public safety from the Fire Service that fire
suppression systems installed in California were not done in a safe manner. (UMF Nos. 3-4, 11 and 13.)
Plaintiffs seek to dispute this fact, with evidence that C-16 license holders did not hire installers without
qualifications and experience and that the NFPA study utilized as a primary source for the regulatory
scheme demonstrates OSFM's concerns are unjustified as there are no confirmed instances of fire due
to improper installation. (Response to UMF Nos. 3-4, and 11-13.)
The Regulations do not prevent C-16 license holders from hiring licensed Fire Sprinkler Fitters to install
water-based fire protection systems or from installing, altering, and repairing non-water-based fire
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Department of Forestry and Fire Protection
protection systems. (UMF Nos. 5-8.) Plaintiff does not materially dispute these facts, but contends the
Regulations have the practical effect of preventing C-16 license holders that base their entire business
on water-based protection systems from doing business. (Response to UMF Nos. 6 and 8.)
Entrance requirements for Fire Sprinkler Fitter apprenticeship programs will be set by the California
Apprenticeship Council and the apprenticeship law will be administered by the Chief of the Division of
Apprenticeship Standards to foster, promote and develop the welfare of apprentices, advance
opportunities for employment, and approve applications for new apprenticeship programs. (UMF Nos.
14-15.) Apprenticeship programs may be administered by a joint apprenticeship committee,
management or labor apprenticeship committee, or individual employer, with or without union
participation. (UMF Nos. 16-17.) Program sponsors must include minimum requirements for formal
education or equivalency, must submit official statements of selection procedures, and must implement
affirmative action programs for minorities and women in accordance with regulations and guidelines.
(UMF No. 18.)
The Regulations require individuals seeking Fire Sprinkler Fitter certification to enroll in a California or
federally approved apprenticeship program. (UMF No. 19.) Such programs may be established by
employers, unions, or jointly. (UMF No. 20.) Plaintiff does not dispute the Regulations permit non-union
apprenticeship programs but contends the Regulations have the practical effect of forcing pipefitter
applicants to join a union because the limited resources and staffing for apprenticeship programs are
insufficient to qualify every applicant without union affiliation. (Response to UMF Nos. 19-20.)
The FAC alleges seven causes of action challenging the Regulations on constitutional and statutory
grounds. OSFM seeks adjudication of the first through fifth causes of action, which relate to Plaintiff's
constitutional challenges.
Legal Standard
In evaluating a motion for summary judgment or summary adjudication the Court engages in a
three-step process.
First, the Court identifies the issues framed by the pleadings. The pleadings define the scope of the
issues on a motion for summary judgment or summary adjudication. (FPI Dev. Inc. v. Nakashima (1991)
231 Cal.App.3d 367, 381-382.) Because a motion for summary judgment or summary adjudication is
limited to the issues raised by the pleadings (Lewis v. Chevron (2004) 119 Cal. App. 4th 690, 694), all
evidence submitted in support of or in opposition to the motion must be addressed to the claims and
defenses raised in the pleadings. The Court cannot consider an unpled issue in ruling on a motion for
summary judgment or summary adjudication. (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541.) The
papers filed in response to a defendant's motion for summary judgment or summary adjudication may
not create issues outside the pleadings and are not a substitute for an amendment to the pleadings.
(Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342.) Indeed, it has
often been noted that "[i]t would be patently unfair to allow plaintiffs to defeat UCI's summary judgment
motion by allowing them to present a "moving target" unbounded by the pleadings." (Melican v. Regents
of University of California, (2007) 151 Cal. App. 4th 168, 176-177.)
Next, the Court must determine whether the moving party has met its burden. A defendant or
cross-defendant moving for summary judgment or summary adjudication "bears the burden of
persuasion that there is no triable issue of material fact and that [the defendant] is entitled to judgment
as a matter of law." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar); Chavez v.
Glock, Inc. (2012) 207 Cal.App.4th 1283, 1301.) A defendant satisfies this burden by showing one or
more elements of the cause of action cannot be established, or that there is a complete defense to that
cause of action. (Aguilar, supra, 25 Cal.4th at p. 850.) A defendant is not required to conclusively negate
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Department of Forestry and Fire Protection
one or more elements of the plaintiff's cause of action. (Saelzer v Advanced Group 400 (2001) 25
Cal.4th 763, 780-781). Rather, to meet its burden, the defendant is required to show only that the
plaintiff cannot prove an element of its cause of action, i.e., that the plaintiff does not possess and
cannot reasonably obtain evidence necessary to show this element. (Aguilar, 25 Cal.4th at 853-855.) At
the same time, a defendant cannot shift the burden to the plaintiff simply by suggesting the possibility
that the plaintiff cannot prove its case; a moving defendant must still make "an affirmative showing" in
support of its motion. (See Aguilar, 25 Cal.4th at 854-855 n.23; Addy v Bliss & Glennon (1996) 44
Cal.App.4th 205, 214.) Further, the initial burden requires a showing that the plaintiff "could not prevail
on any theory raised by the pleadings." (Hawkins v. Wilton (2006) 144 Cal. App. 4th 936, 939-940.) Even
if no opposition is presented, the moving party still has the burden of eliminating all triable issues of fact.
(Wright v. Stang Manufacturing Co. (1997) 54 Cal. App. 4th 1218, 1228; see also Juarez v. Boy Scouts
of America, Inc. (2000) 81 Cal. App. 4th 377, 397.)
Once a moving party meets his or her initial burden, "'the burden shifts to the [opposing party] . . . to
show that a triable issue of one or more material facts exists as to that cause of action or a defense
thereto.'" (Aguilar, supra, 25 Cal.4th at p. 849.) To satisfy this burden, the opposing party must present
admissible evidence and may not rely upon the allegations or denials of its pleading. (Ibid.) In ruling on
the motion, the Court must consider the evidence and inferences reasonably drawn from the evidence in
the light most favorable to the party opposing the motion. (Aguilar, supra, at 843.)
Analysis
In reply, OSFM notes that Plaintiff California Fire Protection Coalition ("Coalition") is represented by
separate counsel and did not join the opposition filed by the remaining plaintiffs. Thus, OSFM requests
summary adjudication as to Coalition on grounds the motion is unopposed. However, OSFM is still
required to meet its initial burden in order to obtain summary adjudication. As set forth below, where the
motion is denied, the Court does so on the basis that OSFM failed to meet this burden. Thus, the Court
does not need to distinguish between Coalition and the remaining plaintiffs for purposes of this motion.
The Court next considers Plaintiffs' argument that the motion should be denied because Defendants fail
to address the request in paragraph 11 of the FAC for a declaration resolving an alleged inconsistency
between sections 924.1, 939, and 945 of the Regulations. Specifically, Plaintiffs allege the Regulations
contain conflicting requirements as to whether individuals licensed as Fire Protection (C-16) Contractors
are subject to the certification requirements. However, this allegation does not form the basis of any of
the particular causes of action at issue in this motion. Thus, the Court finds the failure to address this
particular allegation does not bar summary adjudication as to any of the issues identified in the motion.
As the motion does not include a request for summary judgment, the Court makes no determination as
to whether this allegation would be sufficient to bar judgment as to the entire FAC.
First Cause of Action
The first cause of action is a due process challenge to the Regulations on grounds they violate the right
to earn a living in an occupation. Specifically, the FAC alleges the Regulations inhibit both the rights of
C-16 specialty contractors and fire protection system installers hired by such contractors from
performing their respective careers.
The OSFM argues this cause of action fails because the Regulations are rationally related to a legitimate
interest in ensuring fire protection system installers are adequately trained and educated. Specifically,
OSFM argues the Regulations impose reasonable standards for certifying and licensing Fire Sprinkler
Fitters and that the certification requirements are rationally related to a legitimate interest to protect the
public safety from fires caused by the improper installation of fire protection systems. (UMF Nos. 2-4.)
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CASE TITLE: Fire Guard Corporation vs. California CASE NO: 34-2019-00249221-CU-CR-GDS
Department of Forestry and Fire Protection
Significantly, the certification requirements purport to extend to individuals that hold a California
Contractors State License Board ("CSLB") Fire Protection Contractor (C-16) License. (Cal. Code Regs.,
tit. 19, § 939.) Thus, the due process challenge to the Regulations are intertwined with the
dual-regulatory scheme imposed by the joint application of the Contractors state license law and the
Regulations to C-16 contractors.
OSFM acknowledges that the state license law authorizes persons holding a fire protection contractor
classification to install all types of fire protection systems, excluding electrical alarm systems. (Bus. &
Prof. Code § 7026.12; Cal. Code Regs., tit. 16, §§ 832, 832.16.) The contractors state license law,
however, does not impose any requirements on persons hired by C-16 contractors to install fire
protection systems. As OSFM explains "[u]nlike the Regulations, . . ., the contractors state license law
applies to contractors, not their employees." (Memorandum, p. 14:8-9.) Based on this distinction, OSFM
argues the Regulations properly seek to fill the void left by the state license law by imposing reasonable
certification requirements on the actual installers of water-based fire protection systems.
This distinction drawn by OSFM between the state license law and the Regulations is only partially
accurate. While it is true the state license law applies exclusively to contractors, OSFM contends the
Regulations do not apply exclusively to the employees of contractors. Rather, OSFM contends the
Regulations also require C-16 contractors to obtain certification to perform installation work. (Cal. Code
Regs, tit. 19, § 939.) OSFM argues dual regulation of C-16 contractors is appropriate because the CSLB
has jurisdiction over contractors when they are acting in the role of contractors and the Regulations
apply to contractors when they are performing the actual installation work. The problem with this
rationale is that the Class C-16 license provided by the state license law expressly extends to installation
of all fire protection systems, excluding only electrical alarm systems. (Cal. Code Regs., tit. 19 §§ 832,
832.16.) The "role of contractors" and CSLB's jurisdiction over C-16 contractors therefore extends to and
includes the installation of the same type of water-based fire protections systems governed by the
Regulations. Thus, as applied to C-16 contractors, the Regulations impose a second set of certification
requirements on individuals to perform the same work they have already been licensed to perform by the
CSLB. This leads to the anomalous result where C-16 specialty contractors may be authorized by the
state license law to self-perform the installation of water-based fire protection systems and
simultaneously prohibited by the Regulations from performing the same work.
"It is axiomatic that the right of an individual to engage in any of the common occupations of life is
among the several fundamental liberties protected by the due process and equal protection clauses of
the Fourteenth Amendment." (Hughes v. Board of Architectural Examiners ("Hughes") (1998) 17 Cal.4th
763, 788.) "Consistent with that basic proposition, in the context of a variety of professions and
vocations, we often have recognized that an individual, having obtained the license required to engage
in a particular profession or vocation, has a "fundamental vested right" to continue in that activity." (Id. at
pp. 788-789.)
Here, the Regulations promulgated by OSFM seek to impose additional certification requirements on
C-16 contractors who are already certified by another state agency to perform the work covered by the
Regulations. Significantly, OSFM concedes that licensed C-16 contractors themselves are qualified to
perform installation work without the need to pass a written examination as required by Cal. Code Regs.,
tit. 19, § 939. As stated in OSFM's reply, the Regulations purpose and necessity is to "ensure that
installers, not just contractors, have the appropriate knowledge and skills to safely install these
systems[.]" (Reply, p. 6, fn. 3 [emphasis added].) Similarly, the Initial Statement of Reasons relied upon
by OSFM acknowledges that C-16 contractors have hands-on experience, are not trainees, have had
their experience verified by a person with firsthand knowledge, and are "thus qualified fitters licensed
with the CSLB." (OSFM's Evid., Exh. A, p. 1.)
A "statute constitutionally can prohibit an individual from practicing a lawful profession only for reasons
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Department of Forestry and Fire Protection
related to his or her fitness or competence to practice that profession." (Hughes, supra, 17 Cal.4th at p.
788.) Having conceded C-16 contractors are fit and competent to practice the installation of water-based
fire protection systems, on this motion, OSFM has not demonstrated a legitimate interest in imposing
additional certification requirements on licensed C-16 contractors.
The Court finds that OSFM has not satisfied its burden. The request for summary adjudication of the first
cause of action is denied.
Second Cause of Action
The second cause of action raises a due process and equal protection challenge to the Regulations on
grounds OSFM deprived C-16 contractors and their employed pipefitters of their rights to work in their
chosen profession by failing to provide adequate notice of the final adopted Regulations to permit C-16
contractors and their employed installers to take advantage of certain grandfather provisions.
OSFM first argues it is entitled to summary adjudication because constitutional due process does not
apply where OSFM was acting in a quasi-legislative capacity. OSFM supports this argument with citation
to various cases for the proposition that rulemaking is a quasi-legislative activity. OSFM also notes that
the FAC does not allege a failure to comply with notice requirements under the Administrative Procedure
Act ("APA"). Notably, the FAC does not allege OSFM had a mandatory obligation to provide notice but
rather alleges OSFM had "regulatory discretion" to do so. (FAC, ¶ 44.) The Court finds OSFM has met
its initial burden to demonstrate notice was not required.
Plaintiffs' opposition is devoid of any argument that constitutional due process applies to OSFM's
rulemaking activity or otherwise explaining how OSFM abused its discretion to provide notice. As
Plaintiffs failed to produce evidence to raise a triable issue of material fact, OSFM is entitled to
adjudication of the second cause of action for a due process violation based on lack of notice.
To the extent the second cause of action is intended to assert a challenge to the Regulations based on
equal protection, the Court again finds OSFM is entitled to adjudication as a matter of law. A plaintiff
pursuing a claim for equal protection must show the law discriminates against an identifiable class of
people. (Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal.4th 220, 258.) The
Court agrees with OSFM that the FAC fails to identify such a class. Again, Plaintiff's opposition is devoid
of any argument or evidence identifying such a class.
The request for summary adjudication of the second cause of action is granted.
Third Cause of Action
The third cause of action challenges the Regulations on grounds they violate the Contracts Clause of the
United States Constitution because they impair the rights of C-16 license holders who have contracts to
perform installation work for fire protecting systems covered by the Regulations without actual notice of
the regulatory scheme and grandfathering timeframes.
The Contracts Clause prohibits States from passing any "Law impairing the Obligation of Contracts . . . ."
(U.S. Const., Art. I, § 10, cl. 1.) "Although the language of the Contract Clause is facially absolute, its
prohibition must be accommodated to the inherent police power of the State 'to safeguard the vital
interests of its people.'"(Energy Reserves Group v. Kan. Power & Light Co. (1983) 459 U.S. 400, 410.)
"To determine when such a law crosses the constitutional line, this Court has long applied a two-step
test. The threshold issue is whether the state law has 'operated as a substantial impairment of a
contractual relationship.'" (Sveen v. Melin (2018) 138 S.Ct. 1815, 1821-1822 quoting Allied Structural
Steel Co. v. Spannaus (1978) 438 U.S. 234, 244.) "In answering that question, the Court has considered
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Department of Forestry and Fire Protection
the extent to which the law undermines the contractual bargain, interferes with a party's reasonable
expectations, and prevents the party from safeguarding or reinstating his rights." (Sveen v. Melin, supra,
138 S.Ct. at p. 1822.) "If such factors show a substantial impairment, the inquiry turns to the means and
ends of the legislation." (Ibid.) "The severity of the impairment is said to increase the level of scrutiny to
which the legislation will be subjected." (Energy Reserves Group v. Kan Power & Light Co. (1983) 459
U.S. 400, 411.) "Total destruction of contractual expectations is not necessary for a finding of substantial
impairment." (Ibid.) "On the other hand, state regulation that restricts a party to gains it reasonably
expected from the contract does not necessarily constitute a substantial impairment." (Ibid.)
OSFM argues the Regulations do not substantially impair contractual relationships because they do not
prohibit C-16 license holders from contracting to install water-based fire sprinkler systems. However, the
right to enter a contract is meaningless if the law prohibits the contracting parties from completing
performance of the contract. Further, OSFM cites to Chorn v. Workers' Comp. Appeals Bd. (2016) 245
Cal.App.4th 1370, 1392 as authority that the contract clause protects only vested contractual rights, not
rights associated with anticipated contractual relationships. Thus, the pertinent question is not whether
C-16 license holders retained the right to enter new contracts for installation of water-based fire sprinkler
systems, but whether C-16 license holders' ability to fulfill their obligations under existing contracts was
substantially impaired.
Prior to the Regulations, C-16 license holders were able to satisfy their existing contracts by
self-performing the installation work or by hiring employees to perform the installation subject to the C-16
license holders' supervision. After the passing of the Regulation, not only must C-16 license holders hire
certified installers to perform the work that they previously contracted to perform based on expectations
that non-certified workers could perform the work, C-16 license holders also require certification under
the Regulations to self-perform installation work that they are otherwise licensed to perform under the
state license laws. Construed in the light most favorable to the opposing party, on this motion, these
undisputed facts demonstrate a substantial impairment.
Defendants further argue there was no substantial impairment because the Regulations delayed
implementation of the requirements until January 1, 2018 and included a grandfather clause for qualified
C-16 license holders and journeyman Fire Sprinkler Fitters that meet minimum requirements. (UMF No.
9.) However, the mere existence of an implementation period and grandfather clause does not establish
that the length of the delay and the grandfather timelines were sufficient to avoid anything but a minimal
impact on existing contracts. Notably, the only evidence OSFM cites in support of UMF No. 9 is the
regulation itself. OSFM does not offer the declaration of anyone with knowledge of the fire protection
industry or other evidence explaining why the timelines and the method of notice of the regulations to
C-16 license holders was sufficient to permit C-16 license holders and their employees to take
advantage of the grandfather provisions and thereby to avoid a substantial impact on existing contracts.
Thus, OSFM has failed to meet its initial burden to present evidence that Regulations caused only a
minimal impact.
Alternatively, Defendants argue any impairment of the contracts is justified because OSFM has a
significant and legitimate public purpose to ensure the employees of C-16 contractors have the
necessary skills and qualifications to install fire sprinkler systems. (See UMF Nos. 10-13.) As noted
above, OSFM, on this motion, has not established a legitimate interest in subjecting C-16 contractors
themselves to certification requirements when the C-16 license itself certifies such contractors as
qualified to perform installation work and when OSFM acknowledges C-16 contractors are so qualified.
(OSFM's Evid., Exh. A, p. 1.) Thus, OSFM has failed to meet its initial burden to show the Regulations
were drawn in an appropriate and reasonable manner to advance a significant and legitimate purpose.
Moreover, Plaintiffs submit evidence that one of the sources cited by the OSFM for documenting the
concerns of fire safety that led to the adoption of the Regulations contradicts the conclusion that
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Department of Forestry and Fire Protection
improper installations have resulted in fire safety issues. (See Response to UMF No. 11; Plaintiff's Evid.,
Exhs. 1-2.) Thus, even if OSFM had satisfied its initial burden, the Court finds the contradictory evidence
is sufficient to raise a triable issue of material fact as to whether the regulation of pipefitter installers is
rationally related to a legitimate interests in protecting public safety.
The Court finds that OSFM has not satisfied its burden. The request for summary adjudication of the
third cause of action is denied.
Fourth Cause of Action
The fourth cause of action challenges the Regulations on grounds they violate due process because
they exclude pipe fitters that exclude applicants that lack a proficiency in English or advanced
mathematics, or do not have a high school diploma or GED.
At trial, Plaintiffs have the burden to demonstrate the existence of these requirements and to show they
are not rationally related to a legitimate state interest. However, at the summary adjudication stage,
Defendants have the initial burden to show that Plaintiffs cannot prevail. Thus, in order to be entitled to
summary adjudication, Defendants must show that the above requirements are not actually imposed on
pipefitter applicants or to present some evidence that the requirements are rationally related to the work
required to be performed by pipefitters.
Defendants present legal authority that they are not required to offer testing in languages other than
English along with evidence that the non-English speaking applicants may actually utilize the services of
a translator when completing the examination. However, Defendants make no such effort to show that
the other alleged requirements are either not imposed, or reasonable. For example, none of the UMFs
asserted by Defendants state that pipefitter applicants are not required to display knowledge of
advanced mathematics or alternatively, that knowledge of advanced mathematics is reasonably
necessary to safely perform the work of a pipefitter for water-based fire protection systems. (See
Separate Statement.) Instead, OSFM argues that the actual apprenticeship programs and criteria will be
developed and implemented by other agencies and/or private organizations. (See UMF Nos. 14-18.) In
other words, OSFM decries having any knowledge as to whether pipefitters are or should be required to
display knowledge of advance mathematics to obtain certification. OSFM cannot pass the burden to
Plaintiffs by claiming ignorance of the actual requirements while conclusively stating the unknown
requirements are rationally related to a legitimate interest.
The Court finds that OSFM has not satisfied its burden. The request for summary adjudication of the
fourth cause of action is denied.
Fifth Cause of Action
The fifth cause of action challenges the Regulations on grounds they violate an individual's freedom of
association because they force applicants to join unions because there are insufficient non-union
apprenticeship programs for all applicants.
OSFM argues it is entitled to summary adjudication because the Regulations do not force applicants to
join a union. In support of this argument, OSFM asserts as undisputed material facts that the
requirement that individuals enroll in apprenticeship programs is made without reference to union
affiliations and that non-union employers are permitted to establish apprenticeship programs. (UMF Nos.
19-20.) OSFM also cites to legal authority indicating a requirement for enrollment in approved
apprenticeship program is common in the building industry. (See, e.g. So. Cal. Cement Masons Joint
Apprenticeship Comm. v. Cal. Apprenticeship Council (2013) 213 Cal.App.4th 1531, 1535.) The Court
finds these facts and arguments are sufficient to meet OSFM's initial burden to demonstrate the
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Department of Forestry and Fire Protection
Regulations do not require pipefitter applicants to join a union in order to pursue their chosen profession.
Further, Plaintiffs have failed to present sufficient evidence to raise a triable issue of material fact as to
whether pipefitter installer applicants are required to join a union apprenticeship program. The FAC
acknowledges there is at least one non-union apprenticeship program in California. (FAC, ¶ 63.)
Plaintiffs argue this program has limited resources and is insufficient to qualify every applicant.
(Shahangian Decl., ¶ 16.) However, Plaintiffs fail to explain why there must be sufficient non-union
programs to qualify every applicant. Certainly at least some of the applicants will not be opposed to
completing an apprenticeship in a union-sponsored program. Further, to the extent existing non-union
apprenticeship programs are insufficient to meet the needs of applicants who wish to enroll in such
programs, the Regulations permit non-union employers to develop additional non-union apprenticeship
programs to fulfill those needs. (UMF No. 20.) At most, Plaintiffs have established that pipefitter
applicants will be forced to choose between 1) enrolling in a union apprenticeship program, 2) competing
for limited space in non-union programs by demonstrating superior qualifications, and 3) delaying their
entry into the profession until additional non-union apprenticeship programs are developed. Plaintiffs
have failed to explain in opposition to this motion why the options to compete for limited non-union
programs or to delay entry into an apprenticeship program are insufficient to preserve the rights of
individuals who wish to become certified pipefitters without joining a union, nor do Plaintiffs present
evidence that additional non-union apprenticeship programs cannot or will not be developed within
sufficient time to permit those individuals to pursue a career as pipefitters.
The request for summary adjudication of the fifth cause of action is granted.
Conclusion
The motion for summary adjudication is granted as to the second and fifth causes of action, and denied
as to the first, third and fourth causes of action.
The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further
notice is required.
COURT RULING
There being no request for oral argument, the Court affirmed the tentative ruling.
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SUPERIOR COURT OF CALIFORNIA, COUNTY OF SACRAMENTO GORDON D SCHABER COURTHOUSE MINUTE ORDER DATE: 02/15/2023 TIME: 01:30:00 PM DEPT: 53 JUDICIAL OFFICER PRESIDING: Richard K. Sueyoshi CLERK: L. Chen-Knapp REPORTER/ERM: None BAILIFF/COURT ATTENDANT: N. Alvi, J. Reilly CASE NO: 34-2019-00249221-CU-CR-GDS CASE INIT.DATE: 01/25/2019 CASE TITLE: Fire Guard Corporation vs. California Department of Forestry and Fire Protection CASE CATEGORY: Civil - Unlimited EVENT TYPE: Motion for Summary Adjudication - Civil Law and Motion - MSA/MSJ/SLAPP APPEARANCES Nature of Proceeding: Motion for Summary Adjudication TENTATIVE RULING The motion of Defendants California Department of Forestry and Fire Protection, California Office of the State Fire Marshal, Mike Richwine, and Jeffrey Schwarz (collectively "OSFM") for summary adjudication of the first through fifth causes of action asserted by Plaintiffs in their First Amended Complaint ("FAC") is granted, in part, and denied, in part. The Court declines to rule on Defendants' objections as they were immaterial to the determination of this motion. Background This action involves a challenge by various Plaintiffs to regulations adopted by OSFM establishing certification requirements for persons to become "Certified Fire Sprinkler Fitters" for the installation of water-based fire protection systems (the "Regulations"). The Legislature authorized OSFM to adopt regulations to ensure fire safety. (UMF Nos. 1 and 10.) Prior to the adoption of the Regulations, the installer of fire sprinkler systems was not required by law to demonstrate his or her knowledge or experience. (UMF Nos. 2 and 12.) The Regulations were developed to ensure licensed company's installers have the necessary skills and qualifications to install fire sprinkler systems in order to address concerns regarding public safety from the Fire Service that fire suppression systems installed in California were not done in a safe manner. (UMF Nos. 3-4, 11 and 13.) Plaintiffs seek to dispute this fact, with evidence that C-16 license holders did not hire installers without qualifications and experience and that the NFPA study utilized as a primary source for the regulatory scheme demonstrates OSFM's concerns are unjustified as there are no confirmed instances of fire due to improper installation. (Response to UMF Nos. 3-4, and 11-13.) The Regulations do not prevent C-16 license holders from hiring licensed Fire Sprinkler Fitters to install water-based fire protection systems or from installing, altering, and repairing non-water-based fire DATE: 02/15/2023 MINUTE ORDER Page 1 DEPT: 53 Calendar No. CASE TITLE: Fire Guard Corporation vs. California CASE NO: 34-2019-00249221-CU-CR-GDS Department of Forestry and Fire Protection protection systems. (UMF Nos. 5-8.) Plaintiff does not materially dispute these facts, but contends the Regulations have the practical effect of preventing C-16 license holders that base their entire business on water-based protection systems from doing business. (Response to UMF Nos. 6 and 8.) Entrance requirements for Fire Sprinkler Fitter apprenticeship programs will be set by the California Apprenticeship Council and the apprenticeship law will be administered by the Chief of the Division of Apprenticeship Standards to foster, promote and develop the welfare of apprentices, advance opportunities for employment, and approve applications for new apprenticeship programs. (UMF Nos. 14-15.) Apprenticeship programs may be administered by a joint apprenticeship committee, management or labor apprenticeship committee, or individual employer, with or without union participation. (UMF Nos. 16-17.) Program sponsors must include minimum requirements for formal education or equivalency, must submit official statements of selection procedures, and must implement affirmative action programs for minorities and women in accordance with regulations and guidelines. (UMF No. 18.) The Regulations require individuals seeking Fire Sprinkler Fitter certification to enroll in a California or federally approved apprenticeship program. (UMF No. 19.) Such programs may be established by employers, unions, or jointly. (UMF No. 20.) Plaintiff does not dispute the Regulations permit non-union apprenticeship programs but contends the Regulations have the practical effect of forcing pipefitter applicants to join a union because the limited resources and staffing for apprenticeship programs are insufficient to qualify every applicant without union affiliation. (Response to UMF Nos. 19-20.) The FAC alleges seven causes of action challenging the Regulations on constitutional and statutory grounds. OSFM seeks adjudication of the first through fifth causes of action, which relate to Plaintiff's constitutional challenges. Legal Standard In evaluating a motion for summary judgment or summary adjudication the Court engages in a three-step process. First, the Court identifies the issues framed by the pleadings. The pleadings define the scope of the issues on a motion for summary judgment or summary adjudication. (FPI Dev. Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382.) Because a motion for summary judgment or summary adjudication is limited to the issues raised by the pleadings (Lewis v. Chevron (2004) 119 Cal. App. 4th 690, 694), all evidence submitted in support of or in opposition to the motion must be addressed to the claims and defenses raised in the pleadings. The Court cannot consider an unpled issue in ruling on a motion for summary judgment or summary adjudication. (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541.) The papers filed in response to a defendant's motion for summary judgment or summary adjudication may not create issues outside the pleadings and are not a substitute for an amendment to the pleadings. (Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342.) Indeed, it has often been noted that "[i]t would be patently unfair to allow plaintiffs to defeat UCI's summary judgment motion by allowing them to present a "moving target" unbounded by the pleadings." (Melican v. Regents of University of California, (2007) 151 Cal. App. 4th 168, 176-177.) Next, the Court must determine whether the moving party has met its burden. A defendant or cross-defendant moving for summary judgment or summary adjudication "bears the burden of persuasion that there is no triable issue of material fact and that [the defendant] is entitled to judgment as a matter of law." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar); Chavez v. Glock, Inc. (2012) 207 Cal.App.4th 1283, 1301.) A defendant satisfies this burden by showing one or more elements of the cause of action cannot be established, or that there is a complete defense to that cause of action. (Aguilar, supra, 25 Cal.4th at p. 850.) A defendant is not required to conclusively negate DATE: 02/15/2023 MINUTE ORDER Page 2 DEPT: 53 Calendar No. CASE TITLE: Fire Guard Corporation vs. California CASE NO: 34-2019-00249221-CU-CR-GDS Department of Forestry and Fire Protection one or more elements of the plaintiff's cause of action. (Saelzer v Advanced Group 400 (2001) 25 Cal.4th 763, 780-781). Rather, to meet its burden, the defendant is required to show only that the plaintiff cannot prove an element of its cause of action, i.e., that the plaintiff does not possess and cannot reasonably obtain evidence necessary to show this element. (Aguilar, 25 Cal.4th at 853-855.) At the same time, a defendant cannot shift the burden to the plaintiff simply by suggesting the possibility that the plaintiff cannot prove its case; a moving defendant must still make "an affirmative showing" in support of its motion. (See Aguilar, 25 Cal.4th at 854-855 n.23; Addy v Bliss & Glennon (1996) 44 Cal.App.4th 205, 214.) Further, the initial burden requires a showing that the plaintiff "could not prevail on any theory raised by the pleadings." (Hawkins v. Wilton (2006) 144 Cal. App. 4th 936, 939-940.) Even if no opposition is presented, the moving party still has the burden of eliminating all triable issues of fact. (Wright v. Stang Manufacturing Co. (1997) 54 Cal. App. 4th 1218, 1228; see also Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal. App. 4th 377, 397.) Once a moving party meets his or her initial burden, "'the burden shifts to the [opposing party] . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.'" (Aguilar, supra, 25 Cal.4th at p. 849.) To satisfy this burden, the opposing party must present admissible evidence and may not rely upon the allegations or denials of its pleading. (Ibid.) In ruling on the motion, the Court must consider the evidence and inferences reasonably drawn from the evidence in the light most favorable to the party opposing the motion. (Aguilar, supra, at 843.) Analysis In reply, OSFM notes that Plaintiff California Fire Protection Coalition ("Coalition") is represented by separate counsel and did not join the opposition filed by the remaining plaintiffs. Thus, OSFM requests summary adjudication as to Coalition on grounds the motion is unopposed. However, OSFM is still required to meet its initial burden in order to obtain summary adjudication. As set forth below, where the motion is denied, the Court does so on the basis that OSFM failed to meet this burden. Thus, the Court does not need to distinguish between Coalition and the remaining plaintiffs for purposes of this motion. The Court next considers Plaintiffs' argument that the motion should be denied because Defendants fail to address the request in paragraph 11 of the FAC for a declaration resolving an alleged inconsistency between sections 924.1, 939, and 945 of the Regulations. Specifically, Plaintiffs allege the Regulations contain conflicting requirements as to whether individuals licensed as Fire Protection (C-16) Contractors are subject to the certification requirements. However, this allegation does not form the basis of any of the particular causes of action at issue in this motion. Thus, the Court finds the failure to address this particular allegation does not bar summary adjudication as to any of the issues identified in the motion. As the motion does not include a request for summary judgment, the Court makes no determination as to whether this allegation would be sufficient to bar judgment as to the entire FAC. First Cause of Action The first cause of action is a due process challenge to the Regulations on grounds they violate the right to earn a living in an occupation. Specifically, the FAC alleges the Regulations inhibit both the rights of C-16 specialty contractors and fire protection system installers hired by such contractors from performing their respective careers. The OSFM argues this cause of action fails because the Regulations are rationally related to a legitimate interest in ensuring fire protection system installers are adequately trained and educated. Specifically, OSFM argues the Regulations impose reasonable standards for certifying and licensing Fire Sprinkler Fitters and that the certification requirements are rationally related to a legitimate interest to protect the public safety from fires caused by the improper installation of fire protection systems. (UMF Nos. 2-4.) DATE: 02/15/2023 MINUTE ORDER Page 3 DEPT: 53 Calendar No. CASE TITLE: Fire Guard Corporation vs. California CASE NO: 34-2019-00249221-CU-CR-GDS Department of Forestry and Fire Protection Significantly, the certification requirements purport to extend to individuals that hold a California Contractors State License Board ("CSLB") Fire Protection Contractor (C-16) License. (Cal. Code Regs., tit. 19, § 939.) Thus, the due process challenge to the Regulations are intertwined with the dual-regulatory scheme imposed by the joint application of the Contractors state license law and the Regulations to C-16 contractors. OSFM acknowledges that the state license law authorizes persons holding a fire protection contractor classification to install all types of fire protection systems, excluding electrical alarm systems. (Bus. & Prof. Code § 7026.12; Cal. Code Regs., tit. 16, §§ 832, 832.16.) The contractors state license law, however, does not impose any requirements on persons hired by C-16 contractors to install fire protection systems. As OSFM explains "[u]nlike the Regulations, . . ., the contractors state license law applies to contractors, not their employees." (Memorandum, p. 14:8-9.) Based on this distinction, OSFM argues the Regulations properly seek to fill the void left by the state license law by imposing reasonable certification requirements on the actual installers of water-based fire protection systems. This distinction drawn by OSFM between the state license law and the Regulations is only partially accurate. While it is true the state license law applies exclusively to contractors, OSFM contends the Regulations do not apply exclusively to the employees of contractors. Rather, OSFM contends the Regulations also require C-16 contractors to obtain certification to perform installation work. (Cal. Code Regs, tit. 19, § 939.) OSFM argues dual regulation of C-16 contractors is appropriate because the CSLB has jurisdiction over contractors when they are acting in the role of contractors and the Regulations apply to contractors when they are performing the actual installation work. The problem with this rationale is that the Class C-16 license provided by the state license law expressly extends to installation of all fire protection systems, excluding only electrical alarm systems. (Cal. Code Regs., tit. 19 §§ 832, 832.16.) The "role of contractors" and CSLB's jurisdiction over C-16 contractors therefore extends to and includes the installation of the same type of water-based fire protections systems governed by the Regulations. Thus, as applied to C-16 contractors, the Regulations impose a second set of certification requirements on individuals to perform the same work they have already been licensed to perform by the CSLB. This leads to the anomalous result where C-16 specialty contractors may be authorized by the state license law to self-perform the installation of water-based fire protection systems and simultaneously prohibited by the Regulations from performing the same work. "It is axiomatic that the right of an individual to engage in any of the common occupations of life is among the several fundamental liberties protected by the due process and equal protection clauses of the Fourteenth Amendment." (Hughes v. Board of Architectural Examiners ("Hughes") (1998) 17 Cal.4th 763, 788.) "Consistent with that basic proposition, in the context of a variety of professions and vocations, we often have recognized that an individual, having obtained the license required to engage in a particular profession or vocation, has a "fundamental vested right" to continue in that activity." (Id. at pp. 788-789.) Here, the Regulations promulgated by OSFM seek to impose additional certification requirements on C-16 contractors who are already certified by another state agency to perform the work covered by the Regulations. Significantly, OSFM concedes that licensed C-16 contractors themselves are qualified to perform installation work without the need to pass a written examination as required by Cal. Code Regs., tit. 19, § 939. As stated in OSFM's reply, the Regulations purpose and necessity is to "ensure that installers, not just contractors, have the appropriate knowledge and skills to safely install these systems[.]" (Reply, p. 6, fn. 3 [emphasis added].) Similarly, the Initial Statement of Reasons relied upon by OSFM acknowledges that C-16 contractors have hands-on experience, are not trainees, have had their experience verified by a person with firsthand knowledge, and are "thus qualified fitters licensed with the CSLB." (OSFM's Evid., Exh. A, p. 1.) A "statute constitutionally can prohibit an individual from practicing a lawful profession only for reasons DATE: 02/15/2023 MINUTE ORDER Page 4 DEPT: 53 Calendar No. CASE TITLE: Fire Guard Corporation vs. California CASE NO: 34-2019-00249221-CU-CR-GDS Department of Forestry and Fire Protection related to his or her fitness or competence to practice that profession." (Hughes, supra, 17 Cal.4th at p. 788.) Having conceded C-16 contractors are fit and competent to practice the installation of water-based fire protection systems, on this motion, OSFM has not demonstrated a legitimate interest in imposing additional certification requirements on licensed C-16 contractors. The Court finds that OSFM has not satisfied its burden. The request for summary adjudication of the first cause of action is denied. Second Cause of Action The second cause of action raises a due process and equal protection challenge to the Regulations on grounds OSFM deprived C-16 contractors and their employed pipefitters of their rights to work in their chosen profession by failing to provide adequate notice of the final adopted Regulations to permit C-16 contractors and their employed installers to take advantage of certain grandfather provisions. OSFM first argues it is entitled to summary adjudication because constitutional due process does not apply where OSFM was acting in a quasi-legislative capacity. OSFM supports this argument with citation to various cases for the proposition that rulemaking is a quasi-legislative activity. OSFM also notes that the FAC does not allege a failure to comply with notice requirements under the Administrative Procedure Act ("APA"). Notably, the FAC does not allege OSFM had a mandatory obligation to provide notice but rather alleges OSFM had "regulatory discretion" to do so. (FAC, ¶ 44.) The Court finds OSFM has met its initial burden to demonstrate notice was not required. Plaintiffs' opposition is devoid of any argument that constitutional due process applies to OSFM's rulemaking activity or otherwise explaining how OSFM abused its discretion to provide notice. As Plaintiffs failed to produce evidence to raise a triable issue of material fact, OSFM is entitled to adjudication of the second cause of action for a due process violation based on lack of notice. To the extent the second cause of action is intended to assert a challenge to the Regulations based on equal protection, the Court again finds OSFM is entitled to adjudication as a matter of law. A plaintiff pursuing a claim for equal protection must show the law discriminates against an identifiable class of people. (Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal.4th 220, 258.) The Court agrees with OSFM that the FAC fails to identify such a class. Again, Plaintiff's opposition is devoid of any argument or evidence identifying such a class. The request for summary adjudication of the second cause of action is granted. Third Cause of Action The third cause of action challenges the Regulations on grounds they violate the Contracts Clause of the United States Constitution because they impair the rights of C-16 license holders who have contracts to perform installation work for fire protecting systems covered by the Regulations without actual notice of the regulatory scheme and grandfathering timeframes. The Contracts Clause prohibits States from passing any "Law impairing the Obligation of Contracts . . . ." (U.S. Const., Art. I, § 10, cl. 1.) "Although the language of the Contract Clause is facially absolute, its prohibition must be accommodated to the inherent police power of the State 'to safeguard the vital interests of its people.'"(Energy Reserves Group v. Kan. Power & Light Co. (1983) 459 U.S. 400, 410.) "To determine when such a law crosses the constitutional line, this Court has long applied a two-step test. The threshold issue is whether the state law has 'operated as a substantial impairment of a contractual relationship.'" (Sveen v. Melin (2018) 138 S.Ct. 1815, 1821-1822 quoting Allied Structural Steel Co. v. Spannaus (1978) 438 U.S. 234, 244.) "In answering that question, the Court has considered DATE: 02/15/2023 MINUTE ORDER Page 5 DEPT: 53 Calendar No. CASE TITLE: Fire Guard Corporation vs. California CASE NO: 34-2019-00249221-CU-CR-GDS Department of Forestry and Fire Protection the extent to which the law undermines the contractual bargain, interferes with a party's reasonable expectations, and prevents the party from safeguarding or reinstating his rights." (Sveen v. Melin, supra, 138 S.Ct. at p. 1822.) "If such factors show a substantial impairment, the inquiry turns to the means and ends of the legislation." (Ibid.) "The severity of the impairment is said to increase the level of scrutiny to which the legislation will be subjected." (Energy Reserves Group v. Kan Power & Light Co. (1983) 459 U.S. 400, 411.) "Total destruction of contractual expectations is not necessary for a finding of substantial impairment." (Ibid.) "On the other hand, state regulation that restricts a party to gains it reasonably expected from the contract does not necessarily constitute a substantial impairment." (Ibid.) OSFM argues the Regulations do not substantially impair contractual relationships because they do not prohibit C-16 license holders from contracting to install water-based fire sprinkler systems. However, the right to enter a contract is meaningless if the law prohibits the contracting parties from completing performance of the contract. Further, OSFM cites to Chorn v. Workers' Comp. Appeals Bd. (2016) 245 Cal.App.4th 1370, 1392 as authority that the contract clause protects only vested contractual rights, not rights associated with anticipated contractual relationships. Thus, the pertinent question is not whether C-16 license holders retained the right to enter new contracts for installation of water-based fire sprinkler systems, but whether C-16 license holders' ability to fulfill their obligations under existing contracts was substantially impaired. Prior to the Regulations, C-16 license holders were able to satisfy their existing contracts by self-performing the installation work or by hiring employees to perform the installation subject to the C-16 license holders' supervision. After the passing of the Regulation, not only must C-16 license holders hire certified installers to perform the work that they previously contracted to perform based on expectations that non-certified workers could perform the work, C-16 license holders also require certification under the Regulations to self-perform installation work that they are otherwise licensed to perform under the state license laws. Construed in the light most favorable to the opposing party, on this motion, these undisputed facts demonstrate a substantial impairment. Defendants further argue there was no substantial impairment because the Regulations delayed implementation of the requirements until January 1, 2018 and included a grandfather clause for qualified C-16 license holders and journeyman Fire Sprinkler Fitters that meet minimum requirements. (UMF No. 9.) However, the mere existence of an implementation period and grandfather clause does not establish that the length of the delay and the grandfather timelines were sufficient to avoid anything but a minimal impact on existing contracts. Notably, the only evidence OSFM cites in support of UMF No. 9 is the regulation itself. OSFM does not offer the declaration of anyone with knowledge of the fire protection industry or other evidence explaining why the timelines and the method of notice of the regulations to C-16 license holders was sufficient to permit C-16 license holders and their employees to take advantage of the grandfather provisions and thereby to avoid a substantial impact on existing contracts. Thus, OSFM has failed to meet its initial burden to present evidence that Regulations caused only a minimal impact. Alternatively, Defendants argue any impairment of the contracts is justified because OSFM has a significant and legitimate public purpose to ensure the employees of C-16 contractors have the necessary skills and qualifications to install fire sprinkler systems. (See UMF Nos. 10-13.) As noted above, OSFM, on this motion, has not established a legitimate interest in subjecting C-16 contractors themselves to certification requirements when the C-16 license itself certifies such contractors as qualified to perform installation work and when OSFM acknowledges C-16 contractors are so qualified. (OSFM's Evid., Exh. A, p. 1.) Thus, OSFM has failed to meet its initial burden to show the Regulations were drawn in an appropriate and reasonable manner to advance a significant and legitimate purpose. Moreover, Plaintiffs submit evidence that one of the sources cited by the OSFM for documenting the concerns of fire safety that led to the adoption of the Regulations contradicts the conclusion that DATE: 02/15/2023 MINUTE ORDER Page 6 DEPT: 53 Calendar No. CASE TITLE: Fire Guard Corporation vs. California CASE NO: 34-2019-00249221-CU-CR-GDS Department of Forestry and Fire Protection improper installations have resulted in fire safety issues. (See Response to UMF No. 11; Plaintiff's Evid., Exhs. 1-2.) Thus, even if OSFM had satisfied its initial burden, the Court finds the contradictory evidence is sufficient to raise a triable issue of material fact as to whether the regulation of pipefitter installers is rationally related to a legitimate interests in protecting public safety. The Court finds that OSFM has not satisfied its burden. The request for summary adjudication of the third cause of action is denied. Fourth Cause of Action The fourth cause of action challenges the Regulations on grounds they violate due process because they exclude pipe fitters that exclude applicants that lack a proficiency in English or advanced mathematics, or do not have a high school diploma or GED. At trial, Plaintiffs have the burden to demonstrate the existence of these requirements and to show they are not rationally related to a legitimate state interest. However, at the summary adjudication stage, Defendants have the initial burden to show that Plaintiffs cannot prevail. Thus, in order to be entitled to summary adjudication, Defendants must show that the above requirements are not actually imposed on pipefitter applicants or to present some evidence that the requirements are rationally related to the work required to be performed by pipefitters. Defendants present legal authority that they are not required to offer testing in languages other than English along with evidence that the non-English speaking applicants may actually utilize the services of a translator when completing the examination. However, Defendants make no such effort to show that the other alleged requirements are either not imposed, or reasonable. For example, none of the UMFs asserted by Defendants state that pipefitter applicants are not required to display knowledge of advanced mathematics or alternatively, that knowledge of advanced mathematics is reasonably necessary to safely perform the work of a pipefitter for water-based fire protection systems. (See Separate Statement.) Instead, OSFM argues that the actual apprenticeship programs and criteria will be developed and implemented by other agencies and/or private organizations. (See UMF Nos. 14-18.) In other words, OSFM decries having any knowledge as to whether pipefitters are or should be required to display knowledge of advance mathematics to obtain certification. OSFM cannot pass the burden to Plaintiffs by claiming ignorance of the actual requirements while conclusively stating the unknown requirements are rationally related to a legitimate interest. The Court finds that OSFM has not satisfied its burden. The request for summary adjudication of the fourth cause of action is denied. Fifth Cause of Action The fifth cause of action challenges the Regulations on grounds they violate an individual's freedom of association because they force applicants to join unions because there are insufficient non-union apprenticeship programs for all applicants. OSFM argues it is entitled to summary adjudication because the Regulations do not force applicants to join a union. In support of this argument, OSFM asserts as undisputed material facts that the requirement that individuals enroll in apprenticeship programs is made without reference to union affiliations and that non-union employers are permitted to establish apprenticeship programs. (UMF Nos. 19-20.) OSFM also cites to legal authority indicating a requirement for enrollment in approved apprenticeship program is common in the building industry. (See, e.g. So. Cal. Cement Masons Joint Apprenticeship Comm. v. Cal. Apprenticeship Council (2013) 213 Cal.App.4th 1531, 1535.) The Court finds these facts and arguments are sufficient to meet OSFM's initial burden to demonstrate the DATE: 02/15/2023 MINUTE ORDER Page 7 DEPT: 53 Calendar No. CASE TITLE: Fire Guard Corporation vs. California CASE NO: 34-2019-00249221-CU-CR-GDS Department of Forestry and Fire Protection Regulations do not require pipefitter applicants to join a union in order to pursue their chosen profession. Further, Plaintiffs have failed to present sufficient evidence to raise a triable issue of material fact as to whether pipefitter installer applicants are required to join a union apprenticeship program. The FAC acknowledges there is at least one non-union apprenticeship program in California. (FAC, ¶ 63.) Plaintiffs argue this program has limited resources and is insufficient to qualify every applicant. (Shahangian Decl., ¶ 16.) However, Plaintiffs fail to explain why there must be sufficient non-union programs to qualify every applicant. Certainly at least some of the applicants will not be opposed to completing an apprenticeship in a union-sponsored program. Further, to the extent existing non-union apprenticeship programs are insufficient to meet the needs of applicants who wish to enroll in such programs, the Regulations permit non-union employers to develop additional non-union apprenticeship programs to fulfill those needs. (UMF No. 20.) At most, Plaintiffs have established that pipefitter applicants will be forced to choose between 1) enrolling in a union apprenticeship program, 2) competing for limited space in non-union programs by demonstrating superior qualifications, and 3) delaying their entry into the profession until additional non-union apprenticeship programs are developed. Plaintiffs have failed to explain in opposition to this motion why the options to compete for limited non-union programs or to delay entry into an apprenticeship program are insufficient to preserve the rights of individuals who wish to become certified pipefitters without joining a union, nor do Plaintiffs present evidence that additional non-union apprenticeship programs cannot or will not be developed within sufficient time to permit those individuals to pursue a career as pipefitters. The request for summary adjudication of the fifth cause of action is granted. Conclusion The motion for summary adjudication is granted as to the second and fifth causes of action, and denied as to the first, third and fourth causes of action. The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required. COURT RULING There being no request for oral argument, the Court affirmed the tentative ruling. DATE: 02/15/2023 MINUTE ORDER Page 8 DEPT: 53 Calendar No.