Preview
1 ROB BONTA '
Attomey General of Califomia
2 RussELL B . HILDRETH, State Bar No. 166167
Supervising Deputy Attomey General
3 ANDREA M. KENDRICK, State Bar No. 225688 FI DOmiED
COURTNEY S. COVINGTON, State Bar No. 259723
4 Deputy Attorneys General
1300IStreet, Suite 125 JUL 2 5 2022
5 P.O. Box 944255
Sacramento, CA 94244-2550 By: H. PEMELTON
6 Deputy Clerk
Telephone: (916)210-7821
Fax: (916) 327-2319
7 E-mai 1: Andrea.Kendrick@doj.ca.gov
Attorneys for Defendants
8 Exempt from filing fees under
Government Code § 6103
9
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10
COUNTY OF SACRAMENTO
11
12
13 FIRE GUARD CORPORATION; Case No. 34-2019-00249221-CU-CR-GDS
BAHMAN BRIAN SHAHANGIAN, an
14 individual; and CALIFORNIA FIRE MEMORANDUM OF POINTS AND
PROTECTION COALITION, a California AUTHORITIES IN SUPPORT OF
15 Corporation; and JUAN CARLOS DEL DEFENDANTS' MOTION FOR
TORO TREJO, an individual. SUMMARY ADJUDICATION
16
Plaintiffs, Reservation No.: 2649022
17 Date: October 11, 2022
Time: 1:30 p.m.
18 Dept.: 53
Trial Date: December 5, 2022
19 CALIFORNIA DEPARTMENT OF
FORESTRY AND FIRE PROTECTION;
20 CALIFORNIA OFFICE OF THE STATE
FIRE MARSHAL; MIKE RICHWINE, in
21 his official capacity as State Fire Marshal;
JEFFERY SCHWARTZ, in his official
22 capacity as Deputy State Fire Marshal; and
DOES 1 through 10, inclusive.
23
Defendants.
24
25
26
27
28
1
MP As ISO Defendants' Motion for Summary Adjudication (34-2019-00249221-CU-CR-GDS)
1 TABLE OF CONTENTS
^ Page
3 Introduction ; 8
Background 9
4
I. The Office of the State Fire Marshal and the Automatic Fire Extinguishing
5 Systems Progrzim 9
g II. Development and Promulgation of the Regulations , 10
III. The Regulations 11
7 IV. Contractors State License Board and the C-16 Fire Protection License 13
8 Legal Argument 14
I. Standard of Review for Summary Adjudication , 14
9
II. The First Cause of Action (Due Process Regarding Right to Earn a Living)
10 Fails Because the Regulations Are Rationally Related to the OSFM's
Legitimate Interest in Public Safety 15
11 A. The Right to Practice a Profession Is Not a Fundamental Right—
Rational Basis Review Applies 15
12
B. The Regulations Bear a Rational Relationship to the Safe
13 Installation of Fire Sprinklers 16
J. III. The Second Cause of Action (Procedural Due Process and Equal Protection
Regarding Notice) Fails for Several Reasons, Including That Due Process
^^ Does Not Apply to Administrative Rulemaking 17
A. Plaintiffs' Procedural Due Process Claim Regarding Notice Fails
16 Because Procedural Due Process Does Not Apply to Rulemaking 18
B. The Regulations Do Not Violate Equal Protection 18
17
C. Both the Due Process and Equal Protection Claims Fail Because the
18 Regulations Did Not Cause the C-16 License Holders to Lose the
Complete Use of Their Licenses 19
19
IV. The Third Cause of Action Fails Because the Regulations Do Not
2Q Unconstitutionally Impair Contracts 20
V. The Fourth Cause of Action (Due Process) Fails Because the OSFM Does
21 Not Set the Apprenticeship Requirements and the OSFM Has a Significant
Interest in Regulating the Installation of Fire Sprinklers 23
22 VI. The Fifth Cause of Action [Freedom of Association] Fails Because There
22 Is No Constitutional Right to Obtain a License Without Fulfilling
Reasonable Requirements..-. 26
24 Conclusion 27
25
26
27
28'
MPAs ISO Defendants' Motion for Summary Adjudication (34-2019-00249221-CU-CR-GDS)
1 TABLE OF AUTHORITIES
2
Page
CASES
Aguilar v. Atlantic Richfield Co.
(2001)25 Cal.4th826 14, 15
Allen V. Bd. of Admin.
7 (1983) 34Cal.3d 114 20
8 Allied Structural Steel C. v Spannaus
(1978) 438 U.S. 234 21,22
9 Altadena Library Dist. v. Bloodgood
(1987) 192 Cal.App.3d 585...: 18
10
?
11 Board of Regents v. Roth
(1972) 408 U.S. 564 23
12
13 California Div. of Labor Standards Enforcement v. Dillingham Const, N.A., Inc.
(1987) 519 U.S. 316 26
14
Carmona v. Sheffield
15 (9th Cir. 1973) 475 F.2d 738 25
^^ Chorn v. Workers' Comp. Appeals Bd.
(2016) 245 Cal.App.4th 1370 • 23
17
lg Clark V. Cmty. For Creative Non-Violence
(1984) 468 U.S. 288 '. 26
19
Conn V. Gabbert
20 . (1999) 526 U.S. 286 16,24
21 D 'Amico v. Board of Medical Examiners
(1974) 11 Cal.3d 1 16
22
Dittman v. California
(9th Cir. 1999) 191 F.3d 1020....."=. >. 16, 17
24
Energy Reserves Group, Inc. v. Kanas Power & Light Co.
25 (1983) 459 U.S. 400 20,21,22
26 Exxon Corp. v. Eagerton
2^ (1983) 462 U.S. 176 21
28 „
3 •
MPAs ISO Defendants' Motion for Summary Adjudication (34-2019-00249221-CU-CR-GDS)
1 TABLE OF AUTHORITIES
(continued)
2 Page
3 FPI Development, Inc. v. Nakashima
(1991)231 Cal.App.3d 367.... 15
4
Franceschi v. Yee
5 (9th Cir. 2018) 887 F.3d 927 , 16
6
Frontera v. Sindell
7 (6th Cir. 1975) 522 F.2d 1215 25
8 Garrett v. Howmedica Osteonics Corp.
(2013) 214 Cal.App.4th 173 14
9
Goldfarb v. Va. State Bar
10 (1975) 421 U.S. 773 : 16
^ ^ " Halverson v. Skagit County
12 (9thCir. 1994) 42 F.3d 1257 18
13 Hughes V. Board ofAgricultural Examiners
(1998) 17Cal.4th 763 20
14 Independent Roofing Contractors v. California Apprenticeship Council
(2003) 114 Cal.App.4th 1330 24
15
16 Janus V. American Federation of State, County, and Municipal Employees
(2018) 138 S.Ct. 2448 , 27
17
1g Kenneally v. Medical Board of California
(1994) 27 Cal.App.4th 489 20
19 Manigault v. Springs
20 (1905) 199 U.S. 473 ; 22
21 Morseburg v. Balyon
(9th Cir. 1980) 621 F.2d 972 22, 23
22
Nazarova v. I.N.S.
23 (1999) 171 F.3d478 '. 25
24 „
Nordlinger v. Hahn
25 (1992) 505 U.S. 1 18
26 Olagues v. Russoniello
(9th Cir. 1986) 770F.2d 791.... 25
27
28
MPAs ISO Defendants' Motion for Summary Adjudication (34-2019-00249221-CU-CR-GDS)
1 TABLE OF AUTHORITIES
(continued)
2 Page
3 RUI One Corp. v. City of Berkeley
(9th Cir. 2004) 371 F.3d 1137 22
4
Sagana v. Tenorio
5 (9th Cir. 2004)384 F.3d731 15
San Diego Bldg. Contractors Ass 'n v. City Council of the City of San Diego
7 (1974) 13 Cal.3d205 18
8 Santa Clara County Local Transportation Authority v. Guardino
(1995) 11 Cal.4th 220 18
9 Schware v. Board of Bar Examiners
(1957) 353 U.S. 232 24
10
^ ^ " So. Cal. Cement Masons Joint Apprenticeship Comm. v. Cal. Apprenticeship
12 Council
(2013) 213 Cal.App.4th 1531 : 26
13
Southern California Chapter of Associated Builders v. California Apprenticeship
14 Council
(1992)4 Cal.4th422 24
,. Stroh V. Midway Restaurant Systems, Inc.
(1986) 180 Cal.App.3d 1040 20
17
Sveen v. Melin
18 (2018) 138 S.Ct. 1815 21
19 Tsemetzin v. Coast Federal Sav. & Loan Assoc.
(1997) 57 Cal.App.4th 1334 ! 15
20
United States Trust Co. v. New Jersey
21 (1977) 431 U.S. 1 21
22
Warden v. State Bar
23 (1999)21 Cal.4th 628 24
24 Western Oil & Gas Ass 'n v. Air Resources Bd.
(1984)37 Cal.3d502 18
25
Williamson v. Lee Optical, Inc.
2° (1955) 348 U.S. 483 17
27 "
28
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1 TABLE OF AUTHORITIES
(continued)
2
Page
3 STATUTES
4 United States Code, Title 42
§ 1983 15
Business and Professions Code
§ 7000, et seq 13
7 § 7026.1, subd. (a)(2) , 13
§ 7026.12 14
8 § 7053 14
§ 7065 , 14
9
Code of Civil Procedure
10
§ 437c 14
11 § 437c, subd. (f)(1) , 14
§ 437c, subd. (f)(2) 14
12 § 437c, subd. (o) 15
§ 437c, subd. (p) 15
^3 § 437c, subd. (p)(2) 14
Government Code
15 § 11340, et seq 8,17,18
§ 11349.3, subd. (c) '. : 11
16 § 11350 : 12
17 Health and Safety Code
§§ 12000-12007 9
18 §§ 13000-13001 : 9
§ 13100 ; 9
19
§§ 13100-13135 : 9
20 §13100.1 : 9
§ 13104 9
21 §13105.... ..9
§13110 10,12
22 §13195.^ 9
23
Labor Code
24 § 3070 24
§ 3070, et seq 24, 26
25 § 3073 • 24,26
§ 3075 24, 25,26
26 § 3076.3 25
27 § 3090 : 24
28
MPAs ISO Defendants' Motion for Summary Adjudication (34-2019-00249221-CU-CR-GDS)
1 TABLE OF AUTHORITIES
(continued)
2 Page
3 CONSTITUTIONAL PROVISIONS
4 Califomia Constitution, Article III
§6 25
5
United States Constitution, Amendment XIV 16
6
7 United States Constitution, Article I
§ 10, cl. 1 ; 20
8
OTHER AUTHORITIES
9
Califomia Code of Regulations, Title 8
10 § 202, subd. (g) 25
§ 205, subd. (f) 25
11
§ 212 24
12 §212.01 : 24
§212.2 24
13
Califomia Code of Regulations, Title 16
14 § 825 : 14
§ 832 : 14,19
§ 832.16 • , ; 14,19
^^ Califomia Code of Regulations, Title 19
17 §1.09, subd. (a) 10,16
§§ 901 -908 .; 10
18 § 902 : 10
§ 920 , ; 12
19 §§ 920-948... 8, 10, 11
§ 922 11, 12, 19
20
§ 923 : 11, 12, 19
21 § 923, subd. (a) : 19
§ 924.12 12, 19
22 § 925, subd. (a) : 12
§§ 927-934 12
23 § 937 : 12
24 § 938 12
§ 938, subd. (b) 26
25 § 939 : 12,13
§ 945 13
26 § 945, subd. (b) ' 13
§946.... 12
2' § 947 ; :13,22
28 "
MPAs ISO Defendants' Motion for Summary Adjudication (34-2019-00249221-CU-CR-GDS)
1 INTRODUCTION
2 This lawsuit is a challenge to regulations adopted by the Office of the State Fire Marshal.
3 The challenged regulations establish a program for certifying that the individuals who install
4 water-based fire protection systems (Fire Sprinkler Fitters) are adequately trained and have the
5 education and experience necessary to safely install the systems (Regulations). The Regulations
6 are codified at Califomia Code of Regulations, title 19, Chapter 5.5, sections 920-948. This
7 motion is brought by all defendants, collectively referred to as the Office of the State Fire
8 Marshal (OSFM), to summarily adjudicate the first, second, third, fourth, and fifth causes of
9 action for declaratory relief, Plaintiffs' constitutional challenges to the Regulations.'
10 Plaintiffs' constitutional challenges fail for the following reasons:
11 • The First Cause of Action, a due process challenge based on the right to earn a living
12 in an occupation free from governmental influence, fails because the Regulations are rationally
13 related to the OSFM's significant interest in protecting public safety by regulating Fire Sprinkler
14' Fitters.
15 • The Second Cause of Action, a due process and an equal protection challenge based
16 on alleged lack of notice of the final version of the Regulations, fails because (1) procedural due
17 process does not apply to an administrative rulemaking, which is a quasi-legislative action, and
18 (2) there is no credible argument that the challenged Regulations are unconstitutional under the
19 applicable rational basis standard.
20 • The Third Cause of Action, a Contract Clause challenge based on alleged existing and
21 anticipated contracts that were allegedly negatively affected by the Regulations, fails because (1)
22 the Regulations are rationally related to the OSFM's significant interest in protecting public
23 safety by regulating Fire Sprinkler Fitters; (2) the delayed implementation period of the
24 Regulations allowed C-16 Contractors and journeymen Fire Sprinkler Fitters who met the
25 qualifications to become certified without taking an examination; and (3) the Contracts Clause
26 only protects vested contractual rights and any anticipated contracts are not vested.
27 ' The sixth and seventh causes of action are brought by Plaintiffs under the Administrative
Procedure Act, Government Code section 11340 et seq. The OSFM is not challenging these
28 causes of action in this motion.
8
MPAs ISO Defendants' Motion for Summary Adjudication (34-2019-00249221-CU-CR-GDS)
1 • The Fourth Cause of Action, a due process challenge based on a claim that as a result
2 of the Regulations' requirements that an individual complete an apprenticeship program and pass
3 a written examination to become a Fire Sprinkler Fitter, an individual who formerly installed fire
4 sprinklers cannot complete these requirements unless he or she has an understanding of English
5 and advanced mathematics, fails because the Regulations are rationally related to the OSFM's
6 significant interest in protecting public safety by regulating Fire Sprinkler Fitters.
7 • The Fifth Cause of Action, a First Amendment challenge based on allegedly having to
8 associate with a union in order to comply with the Regulations, fails for reasons that include that
9 the Regulations do not require individuals to join a union.
10 BACKGROUND
11 I. THE OFFICE OF THE STATE FIRE MARSHAL AND THE AUTOMATIC FIRE
EXTINGUISHING SYSTEMS PROGRAM
12
13 The mission of the OSFM is to protect life and property through the development and
14 application of fire prevention engineering, education, and enforcement. (See e.g.. Health & Saf
15 Code, §§ 13104,13105,12000-12007,13000-13001,13100-13135.) The OSFM is a division of
16 the Califomia Department of Forestry and Fire Protection (CAL FIRE) and supports CAL FIRE's
17 mission by focusing on fire prevention. (Health & Saf Code, §§ 13100, 13100.1.) The Fire
18 Engineering and Investigations Division of the OSFM oversees licensing programs and performs
19 engineering functions for eleven statewide programs, including the Automatic Fire Extinguishing
20 Systems Program, which administers the Regulations.
21 The mission of the Automatic Fire Extinguishing Systems Program is to protect the people
22 of Califomia and their property from the adverse effects of fire by ensuring that those who install,
23 test, maintain, and/or service automatic fire extinguishing systems possess the necessary skills
24 and qualifications to safely and properly do so. (Health & Saf Code, §§ 13195, 13104, 13105.)
25 The Regulations concern the certification and registration of Fire Sprinkler Fitters to install one
26
27
28
9
MPAs ISO Defendants' Motion for Summary Adjudication (34-2019-00249221-CU-CR-GDS)
1 type of fire extinguishing system—the water-based system. (Cal. Code Regs., tit. 19, §§ 920-
2 948.)2
3 II. DEVELOPMENT AND PROMULGATION OF THE REGULATIONS
4 Following the enactment of Health & Safety Code section 13110, which authorized the
5 adoption of regulations to ensure fire safety (UMF 1), the OSFM convened, through the
6 Automatic Extinguishing Systems (AES) Advisory Committee, the AES Program Certification
7 Workgroup (Workgroup). (Exh. A to Defendants' Exhibits in Support of Motion for Summary
8 Adjudication (Defendants' Exhibits), Initial Statement of Reasons, at AFESC-RF 0059, as
9 authenticated in the in the Declaration of Diane K. Arend (Arend Decl.), f 3.) The purpose of the
10 Workgroup was to develop regulations for the certification and registration program for fire
11 sprinkler installers. (Ibid.) The original text of the proposed regulations was made available to
12 the public for at least 45 days from Febmary 12, 2016, through March 28, 2016. (Exh. D to
13 Defendants' Exhibits, Notice of Proposed Action, at AFESC-RF 0047, as authenticated in the
14 Arend Decl., T| 6.) The initial statement of reasons provided that National Fire Protection
15 Association Standards adopted by the OSFM address the water-based national standard of care
16 for the installation of fire suppression systems and stated that the installation requires
17 knowledgeable and experienced design and installation.^ (Exh. A to Defendants' Exhibits, at
18 AFESC-RF 0056, as authenticated in the Arend Decl., "I 3.) The proposed regulations were
19 developed to provide a mechanism for ensuring that the licensed company's installers have the
20
21 2 Califomia Code of Regulations, title 19, Chapter 5 (sections 901 through 908) concern
the inspection, testing, and maintenance of all types of automatic fire extinguishing systems.
22 Automatic fire extinguishing systems include, but are not limited to, water-based fire protection
systems as defined in National Fire Protection Association (NFPA) 25, engineered fixed
23 extinguishing systems, and pre-engineered fixed extinguishing systems. (Cal. Code Regs., tit. 19,
§ 902.)
24 ^ ^
^ The general regulations regarding the basic operational requirements of the OSFM
25 provide that when the regulations do not specifically cover any matter pertaining to fire and life
safety, the National Fire Codes and the Fire Protection Handbook published by the NFPA may be
26 used as authoritative guides in determining recognized fire prevention engineering practices.
(Cal. Code Regs., tit. 19, § 1.09, subd. (a).) The initial statement of reasons identified specific
27 NFPA standards that address the water-based national standard of care for the installation of fire
suppressions systems. (Exh. A to Defendants' Exhibits, at AFESC-RF 0056, as authenticated in
28 the Arend Decl., If 3.)
10
MPAs ISO Defendants' Motion for Summary Adjudication (34-2019-00249221-CU-CR-GDS)
1 necessary skills and qualifications to safely install a fire sprinkler system. (Exh. A to Defendants'
2 Exhibits, at AFESC-RF 0056-0057, as authenticated in the Arend Decl., 3.)
3 In Febmary 2016, the proposed regulations were submitted to the Office of Administrative
4 Law. (Exh. D to Defendants' Exhibits, at AFESC-RF 0046, as authenticated in the Arend Decl.,
5 ^ 6.) A public hearing was conducted on April 7, 2016. (Exh. C to Defendants' Exhibits, Final
6 Statement of Reasons, at AFESC-RF 1455, as authenticated in the Arend Decl., 5.)
7 Modifications were made to the text of the proposed regulations and made available for public
8 comment for 15 days from July 27, 2016 to August 11, 2016. (Ibid.; See also Exh. B to
9 Defendants' Exhibits, at AFESC-RF 1252, as authenticated in the Arend Decl., ^ 4.) As a result
10 of the public comments and further review by the OSFM, additional modifications were made to
11 the text of the proposed regulations and to several of the forms that were part of the proposed
12 regulations. (Exh. C to Defendants' Exhibits, at AFESC:RF 1455, as authenticated in the Arend
13 Decl., 5.) The modifications were made available for public comment for 15 days from
14 December 21, 2016 to January 5, 2017. (Ibid.) There were no further comment periods. (Ibid.)
15 The proposed regulations were withdrawn from Office of Administrative Law review in
16 November 2016, pursuant to Government Code section 11349.3, subdivision (c), then resubmitted
17 to the Office of Administrative Law in February 2017. (Exh. E at AFESC-RF 0003 & Exh. F at
18 AFESC-RFl 133 to Defendants' Exhibits, as authenticated in the Arend Decl., TfH 7, 8.) The
19 Regulations were filed with the Office of the Secretary of State on March 24, 2017. (Exh. F to
20 Defendants' Exhibits, as authenticated in the Arend Decl., ^ 8, at AFESC-RF 1133.)
21 HI. T H E REGULATIONS
22 The Regulations came into effect on July 1, 2017. (See Cal. Code Regs., tit. 19, §§ 920-
23 948. See text of the.Regulations, Exh. F, to Defendants' Exhibits, at AFESC-RF 1135-1158, as
24 authenticated in the Arend Decl., 8.) The Regulations concern the certification and registration
25 of any person who installs, alters, repairs, or adds appurtenances to water-based fire protection
26 systems only, with certain exceptions.'' (Cal. Code Regs., tit. 19, §§ 922, 923.) The purpose of
27 The exceptions are: (1) they do not apply to the installation, alteration, or repair of one
and two-family residential sprinkler systems; (2) they do not apply to the installation, alteration,
28
II
MPAs ISO Defendants' Motion for Summary Adjudication (34-2019-00249221-CU-CR-GDS)
1 the Regulations "is to improve the performance and reliability of water-based fire protection
2 systems by providing a means to certify and register any person who installs, alters, repairs, or
3 add appurtenances to such systems." (Cal. Code Regs., tit. 19, § 922.) The Regulations were
4 adopted under the authority of Health and Safety Code section 13110.^ (Cal. Code Regs., tit. 19,
5 § 920.)
6 The general provisions section of the Regulations provides in relevant part:
7 No person shall engage in the installation of water-based fire protection systems as
defined in Section 924.12 without first being certified or registered in accordance
8 with these regulations and have obtained a certification or registration card issued by
the [OSFM]. An Apprentice or Trainee shall become registered in accordance with
9 the provisions in Article 5.
10 (Cal. Code Regs., tit. 19, § 925, subd. (a).) Article 5 contains the education, training, and/or
11 apprenticeship requirements for Fire Sprinkler Fitter trainee registration (Cal. Code Regs., tit. 19,
12 § 937), Fire Sprinkler Fitter apprentice registration (Cal. Code Regs., tit. 19, § 938), and Fire
13 Sprinkler Fitter certification (Cal. Code Regs., tit. 19, § 939). The Regulations also require that
14 the certified Fire Sprinkler Fitter complete continuing education classes (Cal. Code Regs., tit. 19,
15 § 946) and provide for the enforcement of the Regulations (Cal. Code Regs., tit. 19, §§ 927-934).
16 To become a certified Fire Sprinkler Fitter, a person must meet one of the two
17 qualifications for certification, either (A) or (B), as follows: (A)(1) be at least sixteen years old,
18 (A)(2) (i) for a commercial certification, complete 7000 hours in a state or federally approved
19 Fire Sprinkler Fitter Apprenticeship Program and five years of experience within the scope of the
20 regulations or (ii) for a multi-family residential certification, complete 3500 hours in a state or
21 federally approved Fire Sprinkler Fitter Apprenticeship Program and two years of experience
22 within the scope of the regulations, and (A)(3) pass a written examination; or (B)(1) be at least 16
23 or repair of underground water supply lines from the connection of the water supply to the first
joint, or the mechanical connection at the base of the system riser; and (3) they do not apply to the
24 installation of pre-engineered water-based fixed extinguishing systems. (Cal. Code Regs., tit. 19,
§ 923.)
25
^ On October 29, 2021, this Court denied Plaintiffs' motion for summary judgment, or in
26 the alternative, summary adjudication, pursuant to Government Code section 11350, finding that
"the grant of authority in [Health and Safety Code section 13110] to regulate certification and
27 licensing of fire safety is unambiguous" and Plaintiffs failed to persuade the Court that the
Regulations are void because they go beyond the authority provided by statute. (Order, at p. 6.)
28
12
MPAs ISO Defendants' Motion for Summary Adjudication (34-2019-00249221-CU-CR-GDS)
1 years old, and (B)(2) hold a C-16 Fire Protection Contractor License from the CSLB,^ and (B)(3)
2 pass a written examination. (Cal. Code Regs., tit. 19, §§ 945, 939.) Therefore, a C-16 Contractor
3 does not need tofialfiUthe experience and apprenticeship requirements of the Regulations to
4 obtain a Certified Fire Sprinkler Fitter license from the OSFM, but a C-16 Contractor is required
5 to pass a written examination.^
6 The Regulations provided for a,delayed implementation period during which a C-16
7 Contractor could obtain a license without taking an examination (180 days from the effective date
8 of the Regulations), a journeyman Fire Sprinkler Fitter who provided documentation that they
9 met the required work experience could obtain a license without completing an apprenticeship
10 program (180 days from the effective date of .the Regulations), and delayed the implementation of
11 other requirements. (Cal. Code Regs., tit. 19, § 947.) This section ceased to have effect on
12 January 1, 2019. (See id at § 947, subd. (e).)
13 IV. CONTRACTORS STATE LICENSE BOARD AND THE C-16 FIRE PROTECTION LICENSE •
14 The Contractors State License Board (CSLB) also issues licenses for the installation of fire
15 suppression systems, referred to in the Regulations as a C-16 license, but there are important
16 differences between the C-16 license and the Fire Sprinkler Fitter license. The CSLB administers
17 the contractors state license law as set forth in Business and Professions Code section 7000 et seq.
18 As relevant here, a "contractor" includes "[a]ny person, consultant to an owner-builder, firm,
19 association, organization, partnership, business tmst, corporation, or company, who or which
20 undertakes, offers to undertake, purports to have the capacity to undertake, or submits a bid to
21 construct any building or home improvement project, or part thereof" (Bus. & Prof Code, §
22 7026.1, subd. (a)(2).) The contractors state license law provides that the installation of a fire
23 protection system, excluding an electrical alarm system, shall be performed only by either (1) a
24 contractor holding a fire protection contractor classification, as defined in the regulations of the
25
^ Califomia Code of Regulations, title 19, section 945, subdivision (b) also contains the
26 requirements an out-of-state applicant must meet.
27 ' A C-16 Fire Protection Contractor is a specialty contractor who holds a license from the
Contractors State License Board. The C-16 Contractor and the Contractors State License Board
28 are discussed in the next section.
13
MPAs ISO Defendants' Motion for Summary Adjudication (34-2019-00249221-CU-CR-GDS)
1 CSLB or (2) an owner-builder of an owner-occupied, single-family dwelling, with qualifications
2 not relevant here. (Bus. & Prof Code, § 7026.12.) A fire protection contractor is classified by
3 the CSLB regulations as a C-16 specialty contractor who "lays out, fabricates and installs all
4 types of fire protection systems; including all the equipment associated with these systems,
5 excluding electrical alarm systems." (Cal. Code Regs., tit. 16, §§ 832, 832.16.) Applicants for
6 contractors' licenses are qualified by written examination. (Bus. & Prof Code, § 7065.) CSLB
7 regulations also contain experience requirements for contractors. (Cal. Code Regs., tit. 16, §
8 825.) Unlike the Regulations, however, the contractors state license law applies to contractors,
9 not their employees. (Bus. & Prof Code, § 7053.)
10 LEGAL ARGUMENT
11 I. STANDARD OF REVIEW FOR SUMMARY ADJUDICATION
12 Summary judgment is appropriate when the moving party establishes the right to entry of
13 judgment as a matter of law. (Code Civ. Proc, § 437c; Aguilar v. Atlantic Richfield Co. (2001)
14 25 Cal.4th 826, 843.) "A party may move for summary adjudication as to one or more causes of
15 action within an action . . . if that party contends that the cause of action has no merit. . . ."
16 (Code Civ. Proc, § 437c, subd. (f)(1).) "A motion for summary adjudication . . . shall proceed in
17 all procedural respects as a motion for summary judgment." (Code Civ. Proc, § 437c, subd.
18 (f)(2).) A defendant moving for summary adjudication must demonstrate that a cause of action
19 has no merit, either because the plaintiff cannot establish an element of the cause of action or
20 because an affirmative defense defeats the claim. (Code Civ. Proc, § 437c, subd. (p)(2); Aguilar
21 V. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.) "The defendant can satisfy its burden by
22 presenting evidence that negates an element of the cause of action or evidence that the plaintiff
23 does not possess and cannot reasonably expect to obtain evidence needed to establish an essential
24 element." (Garrett v. Howmedica Osteonics Corp. (2013) 214 Cal.App.4th 173, 181.)
25 Once the defendant has met its burden, the burden shifts back to the plaintiff to show that a
26 triable issue of one or more material facts exist, as to that cause of action. (Aguilar v. Atlantic
27 Richfield Co., supra, 25 Cal.4th at p. 849.) The plaintiff may not rely upon the mere allegations
28 or denials in his pleadings, but must set forth the specific facts to show a triable issue of material
14
MPAs ISO Defendants' Motion for Summary Adjudication (34-2019-00249221-CU-CR-GDS)
1 facts exists. (Ibid.) Nor may a plaintiff avoid summary judgment by relying on matters not
2 alleged in his or her complaint. (See Tsemetzin v. Coast Federal Sav. & Loan Assoc. (1997) 57
3 Cal.App.4th 1334, 1343; FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381.)
4 If the plaintiff cannot carry that burden, the defendant is entitled to judgment. (Code Civ. Proc, §
5 437c, subds. (o), (p).)
6 II. T H E FIRST CAUSE OF ACTION (DUE PROCESS REGARDING RIGHT TO EARN A
LIVING) FAILS BECAUSE THE REGULATIONS A R E RATIONALLY R E L A T E D TO THE
7 OSFM's LEGITIMATE INTEREST IN PUBLIC SAFETY.
8 Plaintiffs' first cause of action alleges a violation of due process under 42 U.S.C. section
9 1983, claiming that the OSFM deprived them of their liberty "to earn a living in an occupation
10. free from unreasonable government interference" within the protection of the Fourteenth
11 Amendment. (FAC 23-41.) Plaintiffs allege that while state governments can place
12 restrictions on the right to earn a living, the licensure requirements "require extensive testing or
13 education only tangentially related to an applicant's fitness to practice his or her chosen
14 occupation," they have "a tenuous connection to the protection of the public," and "the burden of
15 licensure requirements is greatly out of proportion with alleged public benefits created by those
16 requirements." (FAC TITj 23, 26, 27.) Plaintiffs then allege various reasons why they contend the
17 Regulations are not necessary. The OSFM is entitled to summary adjudication of this cause of
18 action because, as explained below, the Regulations establish reasonable standards for certifying
19 and licensing Fire Sprinkler Fitters, which is rationally related to the OSFM's legitimate interest
20 in ensuring that those installing fire protection systems are adequately trained and educated, in the
21 interest of public safety from fires.
22 A. The Right to Practice a Profession Is Not a Fundamental Right—Rational
Basis Review Applies.
23
24 Rational basis review applies to Due Process challenges to state professional regulations,
25 because the right to practice a particular profession is not a fundamental right. (Sagana v.
26 Tenorio (9th Cir. 2004) 384 F.3d 731, 743 ["w]e have never held that the right to pursue a
27 profession is a fimdamental right].) "States have a compelling interest in the practice of
28 professions within their boundaries, and . . . they have broad power to establish standards for
15
MPAs ISO Defendants' Motion for Summary Adjudication (34-2019-00249221-CU-CR-GDS)
1 licensing practitioners and regulating the practice of professions." (Goldfarb v. Va. State Bar
2 (1975) 421 U.S. 773, 792.); see also D 'Amico v. Board of Medical Examiners, 11 Cal.3d 1,17
3 [rational basis standard of review is traditionally applied to occupational regulation].)
4 The Due Process Clause of the Fourteenth Amendment provides that no state shall "deprive
5 any person of life, liberty, or property, without due process of law." (U.S. Const. Amend XIV.)
6 Courts have found a liberty interest based on some "generalized due process right to choose one's
7 field of private employment." (Conn v. Gabbert (1999) 526 U.S. 286, 291-292.) But "that right
8 is subject to reasonable government regulation." (Franceschi v. Yee (9th Cir. 2018) 887 F.3d
9 927, 937-938.) The cases establishing a liberty interest in pursuing a chosen profession "deal[]
10 with a complete prohibition of the right to engage in a calling." (Id. at 938, citing Conn, 526 U.S.
11 at 292 [brackets in Franceschi].) Moreover, because this liberty interest is not a fimdamental
12 right, the Court asks "whether the legislation has a 'conceivable basis' on which it might survive
13 constitutional scmtiny. (Dittman v. California (9th Cir. 1999) 191 F.3d 1020, 1031 «fe n. 5.)
1'^ B. The Regulations Bear a Rational Relationship to the Safe Installation of
Fire Sprinklers.
15
16 During the regulatory process, the OSFM determined that, as explained in the initial
17 statement of reasons, due to "the complexity of materials, changes in constmction standards, and
18 the increased complexity of Fire Protection [Sjystems" the Regulations are necessary because
19 they "will provide a program to ensure those installing [Fire Protection Systems] are adequately
20 trained and educated to meet the fire protection needs in Califomia." (Exh. A to Defendants'
21 Exhibits, at AFESC-RF 0059, as authenticated in the Arend Decl., ^3.) The initial statement of
22 reasons further provided that National Fire Protection Association Standards, which the OSFM
23 adopted, address the national standard of care for the installation of a water-based fire suppression
24 system, stating that the "'sprinkler systems and private fire service mains are specialized fire
25 protection systems and shall require knowledgeable and experienced design and installation.'"*
26 However, in Califomia, while the person who designs the fire sprinkler system must be licensed.
27 8 As explained in footnote 3, supra, the NFPA standards are an authoritative guide that
may be used in determining recognized fire prevention engineering practices. (Cal. Code Regs.,
28 tit. 19, § 1.09, subd. (a).)
16
MPAs ISO Defendants' Motion for Summary Adjudication (34-2019-00249221-CU-CR-GDS)
1 "the installer of these life safety systems [was] not required to demonstrate his or her knowledge
2 or experience, nor have any." (UMF 2.) The OSFM's intent in adopting the Regulations was to
3 establish a program to address the "public safety and industry concerns that fire sprinklers [were]
4 not being installed in accordance with Califomia law." (UMF 3.)
5 The Regulations were developed to ensure that the licensed company's installers have the
6 necessary skills and qualifications to safely install a fire sprinkler system and were promulgated
7 through the Administrative Procedure Act's (APA) public mlemaking process. Government Code
8 section 11340 et seq. (UMF 4.) While Plaintiffs may not agree with the Regulations, "in the end,
9 'it is for the legislature, not the courts, to balance the advantages and disadvantages o f . . . new
10 requirement[s]." (See Dittman v. California, supra, 191 F.3d at p. 1032, citing Williamson v. Lee
11 Optical, Inc.. (1955) 348 U.S. 483, 487 [ellipses and brackets in Dittman].) The OSFM has a
12 legitimate, significant interest in the safe installation of fire sprinkler systems and the Regulations
13 are rationally related to public safety.
14 III. T H E SECOND CAUSE OF ACTION (PROCEDURAL DUE PROCESS AND EQUAL
PROTECTION REGARDING NOTICE) FAILS FOR SEVERAL REASONS, INCLUDING
15 THAT DUE PROCESS DOES NOT APPLY TO ADMINISTRATIVE RULEMAKING.
16 Plaintiffs claim that the OSFM violated the due process and equal protection clauses of the
17 Califomia and federal Constitutions because they did not receive notice of the final adopted
18 Regulations until after they and other C-16 license holders were unable to take advantage of its
19 grandfathering provisions. They further allege that they have a vested right in their C-16 licenses
20 and because they were not able to take advantage of the grandfathering provisions of the
21 Regulations, they were not able to practice theif professions despite having active C-16 licenses.
22 (FAC 43-47.) These claims fail for at least two reasons: first, because the OSFM was acting
23 in a quasi-legislative capacity when adopting the Regulations, constitutional due process does not
24 apply; second, there is no credible argument that the challenged Regulations are unconstitutional
25 under the applicable rational basis standard.
26 III
21 III
28 /// . !
Preview
1 ROB BONTA ' Attomey General of Califomia 2 RussELL B . HILDRETH, State Bar No. 166167 Supervising Deputy Attomey General 3 ANDREA M. KENDRICK, State Bar No. 225688 FI DOmiED COURTNEY S. COVINGTON, State Bar No. 259723 4 Deputy Attorneys General 1300IStreet, Suite 125 JUL 2 5 2022 5 P.O. Box 944255 Sacramento, CA 94244-2550 By: H. PEMELTON 6 Deputy Clerk Telephone: (916)210-7821 Fax: (916) 327-2319 7 E-mai 1: Andrea.Kendrick@doj.ca.gov Attorneys for Defendants 8 Exempt from filing fees under Government Code § 6103 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SACRAMENTO 11 12 13 FIRE GUARD CORPORATION; Case No. 34-2019-00249221-CU-CR-GDS BAHMAN BRIAN SHAHANGIAN, an 14 individual; and CALIFORNIA FIRE MEMORANDUM OF POINTS AND PROTECTION COALITION, a California AUTHORITIES IN SUPPORT OF 15 Corporation; and JUAN CARLOS DEL DEFENDANTS' MOTION FOR TORO TREJO, an individual. SUMMARY ADJUDICATION 16 Plaintiffs, Reservation No.: 2649022 17 Date: October 11, 2022 Time: 1:30 p.m. 18 Dept.: 53 Trial Date: December 5, 2022 19 CALIFORNIA DEPARTMENT OF FORESTRY AND FIRE PROTECTION; 20 CALIFORNIA OFFICE OF THE STATE FIRE MARSHAL; MIKE RICHWINE, in 21 his official capacity as State Fire Marshal; JEFFERY SCHWARTZ, in his official 22 capacity as Deputy State Fire Marshal; and DOES 1 through 10, inclusive. 23 Defendants. 24 25 26 27 28 1 MP As ISO Defendants' Motion for Summary Adjudication (34-2019-00249221-CU-CR-GDS) 1 TABLE OF CONTENTS ^ Page 3 Introduction ; 8 Background 9 4 I. The Office of the State Fire Marshal and the Automatic Fire Extinguishing 5 Systems Progrzim 9 g II. Development and Promulgation of the Regulations , 10 III. The Regulations 11 7 IV. Contractors State License Board and the C-16 Fire Protection License 13 8 Legal Argument 14 I. Standard of Review for Summary Adjudication , 14 9 II. The First Cause of Action (Due Process Regarding Right to Earn a Living) 10 Fails Because the Regulations Are Rationally Related to the OSFM's Legitimate Interest in Public Safety 15 11 A. The Right to Practice a Profession Is Not a Fundamental Right— Rational Basis Review Applies 15 12 B. The Regulations Bear a Rational Relationship to the Safe 13 Installation of Fire Sprinklers 16 J. III. The Second Cause of Action (Procedural Due Process and Equal Protection Regarding Notice) Fails for Several Reasons, Including That Due Process ^^ Does Not Apply to Administrative Rulemaking 17 A. Plaintiffs' Procedural Due Process Claim Regarding Notice Fails 16 Because Procedural Due Process Does Not Apply to Rulemaking 18 B. The Regulations Do Not Violate Equal Protection 18 17 C. Both the Due Process and Equal Protection Claims Fail Because the 18 Regulations Did Not Cause the C-16 License Holders to Lose the Complete Use of Their Licenses 19 19 IV. The Third Cause of Action Fails Because the Regulations Do Not 2Q Unconstitutionally Impair Contracts 20 V. The Fourth Cause of Action (Due Process) Fails Because the OSFM Does 21 Not Set the Apprenticeship Requirements and the OSFM Has a Significant Interest in Regulating the Installation of Fire Sprinklers 23 22 VI. The Fifth Cause of Action [Freedom of Association] Fails Because There 22 Is No Constitutional Right to Obtain a License Without Fulfilling Reasonable Requirements..-. 26 24 Conclusion 27 25 26 27 28' MPAs ISO Defendants' Motion for Summary Adjudication (34-2019-00249221-CU-CR-GDS) 1 TABLE OF AUTHORITIES 2 Page CASES Aguilar v. Atlantic Richfield Co. (2001)25 Cal.4th826 14, 15 Allen V. Bd. of Admin. 7 (1983) 34Cal.3d 114 20 8 Allied Structural Steel C. v Spannaus (1978) 438 U.S. 234 21,22 9 Altadena Library Dist. v. Bloodgood (1987) 192 Cal.App.3d 585...: 18 10 ? 11 Board of Regents v. Roth (1972) 408 U.S. 564 23 12 13 California Div. of Labor Standards Enforcement v. Dillingham Const, N.A., Inc. (1987) 519 U.S. 316 26 14 Carmona v. Sheffield 15 (9th Cir. 1973) 475 F.2d 738 25 ^^ Chorn v. Workers' Comp. Appeals Bd. (2016) 245 Cal.App.4th 1370 • 23 17 lg Clark V. Cmty. For Creative Non-Violence (1984) 468 U.S. 288 '. 26 19 Conn V. Gabbert 20 . (1999) 526 U.S. 286 16,24 21 D 'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1 16 22 Dittman v. California (9th Cir. 1999) 191 F.3d 1020....."=. >. 16, 17 24 Energy Reserves Group, Inc. v. Kanas Power & Light Co. 25 (1983) 459 U.S. 400 20,21,22 26 Exxon Corp. v. Eagerton 2^ (1983) 462 U.S. 176 21 28 „ 3 • MPAs ISO Defendants' Motion for Summary Adjudication (34-2019-00249221-CU-CR-GDS) 1 TABLE OF AUTHORITIES (continued) 2 Page 3 FPI Development, Inc. v. Nakashima (1991)231 Cal.App.3d 367.... 15 4 Franceschi v. Yee 5 (9th Cir. 2018) 887 F.3d 927 , 16 6 Frontera v. Sindell 7 (6th Cir. 1975) 522 F.2d 1215 25 8 Garrett v. Howmedica Osteonics Corp. (2013) 214 Cal.App.4th 173 14 9 Goldfarb v. Va. State Bar 10 (1975) 421 U.S. 773 : 16 ^ ^ " Halverson v. Skagit County 12 (9thCir. 1994) 42 F.3d 1257 18 13 Hughes V. Board ofAgricultural Examiners (1998) 17Cal.4th 763 20 14 Independent Roofing Contractors v. California Apprenticeship Council (2003) 114 Cal.App.4th 1330 24 15 16 Janus V. American Federation of State, County, and Municipal Employees (2018) 138 S.Ct. 2448 , 27 17 1g Kenneally v. Medical Board of California (1994) 27 Cal.App.4th 489 20 19 Manigault v. Springs 20 (1905) 199 U.S. 473 ; 22 21 Morseburg v. Balyon (9th Cir. 1980) 621 F.2d 972 22, 23 22 Nazarova v. I.N.S. 23 (1999) 171 F.3d478 '. 25 24 „ Nordlinger v. Hahn 25 (1992) 505 U.S. 1 18 26 Olagues v. Russoniello (9th Cir. 1986) 770F.2d 791.... 25 27 28 MPAs ISO Defendants' Motion for Summary Adjudication (34-2019-00249221-CU-CR-GDS) 1 TABLE OF AUTHORITIES (continued) 2 Page 3 RUI One Corp. v. City of Berkeley (9th Cir. 2004) 371 F.3d 1137 22 4 Sagana v. Tenorio 5 (9th Cir. 2004)384 F.3d731 15 San Diego Bldg. Contractors Ass 'n v. City Council of the City of San Diego 7 (1974) 13 Cal.3d205 18 8 Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal.4th 220 18 9 Schware v. Board of Bar Examiners (1957) 353 U.S. 232 24 10 ^ ^ " So. Cal. Cement Masons Joint Apprenticeship Comm. v. Cal. Apprenticeship 12 Council (2013) 213 Cal.App.4th 1531 : 26 13 Southern California Chapter of Associated Builders v. California Apprenticeship 14 Council (1992)4 Cal.4th422 24 ,. Stroh V. Midway Restaurant Systems, Inc. (1986) 180 Cal.App.3d 1040 20 17 Sveen v. Melin 18 (2018) 138 S.Ct. 1815 21 19 Tsemetzin v. Coast Federal Sav. & Loan Assoc. (1997) 57 Cal.App.4th 1334 ! 15 20 United States Trust Co. v. New Jersey 21 (1977) 431 U.S. 1 21 22 Warden v. State Bar 23 (1999)21 Cal.4th 628 24 24 Western Oil & Gas Ass 'n v. Air Resources Bd. (1984)37 Cal.3d502 18 25 Williamson v. Lee Optical, Inc. 2° (1955) 348 U.S. 483 17 27 " 28 MPAs ISO Defendants' Motion for Summary Adjudication (34-2019-00249221-CU-CR-GDS) 1 TABLE OF AUTHORITIES (continued) 2 Page 3 STATUTES 4 United States Code, Title 42 § 1983 15 Business and Professions Code § 7000, et seq 13 7 § 7026.1, subd. (a)(2) , 13 § 7026.12 14 8 § 7053 14 § 7065 , 14 9 Code of Civil Procedure 10 § 437c 14 11 § 437c, subd. (f)(1) , 14 § 437c, subd. (f)(2) 14 12 § 437c, subd. (o) 15 § 437c, subd. (p) 15 ^3 § 437c, subd. (p)(2) 14 Government Code 15 § 11340, et seq 8,17,18 § 11349.3, subd. (c) '. : 11 16 § 11350 : 12 17 Health and Safety Code §§ 12000-12007 9 18 §§ 13000-13001 : 9 § 13100 ; 9 19 §§ 13100-13135 : 9 20 §13100.1 : 9 § 13104 9 21 §13105.... ..9 §13110 10,12 22 §13195.^ 9 23 Labor Code 24 § 3070 24 § 3070, et seq 24, 26 25 § 3073 • 24,26 § 3075 24, 25,26 26 § 3076.3 25 27 § 3090 : 24 28 MPAs ISO Defendants' Motion for Summary Adjudication (34-2019-00249221-CU-CR-GDS) 1 TABLE OF AUTHORITIES (continued) 2 Page 3 CONSTITUTIONAL PROVISIONS 4 Califomia Constitution, Article III §6 25 5 United States Constitution, Amendment XIV 16 6 7 United States Constitution, Article I § 10, cl. 1 ; 20 8 OTHER AUTHORITIES 9 Califomia Code of Regulations, Title 8 10 § 202, subd. (g) 25 § 205, subd. (f) 25 11 § 212 24 12 §212.01 : 24 §212.2 24 13 Califomia Code of Regulations, Title 16 14 § 825 : 14 § 832 : 14,19 § 832.16 • , ; 14,19 ^^ Califomia Code of Regulations, Title 19 17 §1.09, subd. (a) 10,16 §§ 901 -908 .; 10 18 § 902 : 10 § 920 , ; 12 19 §§ 920-948... 8, 10, 11 § 922 11, 12, 19 20 § 923 : 11, 12, 19 21 § 923, subd. (a) : 19 § 924.12 12, 19 22 § 925, subd. (a) : 12 §§ 927-934 12 23 § 937 : 12 24 § 938 12 § 938, subd. (b) 26 25 § 939 : 12,13 § 945 13 26 § 945, subd. (b) ' 13 §946.... 12 2' § 947 ; :13,22 28 " MPAs ISO Defendants' Motion for Summary Adjudication (34-2019-00249221-CU-CR-GDS) 1 INTRODUCTION 2 This lawsuit is a challenge to regulations adopted by the Office of the State Fire Marshal. 3 The challenged regulations establish a program for certifying that the individuals who install 4 water-based fire protection systems (Fire Sprinkler Fitters) are adequately trained and have the 5 education and experience necessary to safely install the systems (Regulations). The Regulations 6 are codified at Califomia Code of Regulations, title 19, Chapter 5.5, sections 920-948. This 7 motion is brought by all defendants, collectively referred to as the Office of the State Fire 8 Marshal (OSFM), to summarily adjudicate the first, second, third, fourth, and fifth causes of 9 action for declaratory relief, Plaintiffs' constitutional challenges to the Regulations.' 10 Plaintiffs' constitutional challenges fail for the following reasons: 11 • The First Cause of Action, a due process challenge based on the right to earn a living 12 in an occupation free from governmental influence, fails because the Regulations are rationally 13 related to the OSFM's significant interest in protecting public safety by regulating Fire Sprinkler 14' Fitters. 15 • The Second Cause of Action, a due process and an equal protection challenge based 16 on alleged lack of notice of the final version of the Regulations, fails because (1) procedural due 17 process does not apply to an administrative rulemaking, which is a quasi-legislative action, and 18 (2) there is no credible argument that the challenged Regulations are unconstitutional under the 19 applicable rational basis standard. 20 • The Third Cause of Action, a Contract Clause challenge based on alleged existing and 21 anticipated contracts that were allegedly negatively affected by the Regulations, fails because (1) 22 the Regulations are rationally related to the OSFM's significant interest in protecting public 23 safety by regulating Fire Sprinkler Fitters; (2) the delayed implementation period of the 24 Regulations allowed C-16 Contractors and journeymen Fire Sprinkler Fitters who met the 25 qualifications to become certified without taking an examination; and (3) the Contracts Clause 26 only protects vested contractual rights and any anticipated contracts are not vested. 27 ' The sixth and seventh causes of action are brought by Plaintiffs under the Administrative Procedure Act, Government Code section 11340 et seq. The OSFM is not challenging these 28 causes of action in this motion. 8 MPAs ISO Defendants' Motion for Summary Adjudication (34-2019-00249221-CU-CR-GDS) 1 • The Fourth Cause of Action, a due process challenge based on a claim that as a result 2 of the Regulations' requirements that an individual complete an apprenticeship program and pass 3 a written examination to become a Fire Sprinkler Fitter, an individual who formerly installed fire 4 sprinklers cannot complete these requirements unless he or she has an understanding of English 5 and advanced mathematics, fails because the Regulations are rationally related to the OSFM's 6 significant interest in protecting public safety by regulating Fire Sprinkler Fitters. 7 • The Fifth Cause of Action, a First Amendment challenge based on allegedly having to 8 associate with a union in order to comply with the Regulations, fails for reasons that include that 9 the Regulations do not require individuals to join a union. 10 BACKGROUND 11 I. THE OFFICE OF THE STATE FIRE MARSHAL AND THE AUTOMATIC FIRE EXTINGUISHING SYSTEMS PROGRAM 12 13 The mission of the OSFM is to protect life and property through the development and 14 application of fire prevention engineering, education, and enforcement. (See e.g.. Health & Saf 15 Code, §§ 13104,13105,12000-12007,13000-13001,13100-13135.) The OSFM is a division of 16 the Califomia Department of Forestry and Fire Protection (CAL FIRE) and supports CAL FIRE's 17 mission by focusing on fire prevention. (Health & Saf Code, §§ 13100, 13100.1.) The Fire 18 Engineering and Investigations Division of the OSFM oversees licensing programs and performs 19 engineering functions for eleven statewide programs, including the Automatic Fire Extinguishing 20 Systems Program, which administers the Regulations. 21 The mission of the Automatic Fire Extinguishing Systems Program is to protect the people 22 of Califomia and their property from the adverse effects of fire by ensuring that those who install, 23 test, maintain, and/or service automatic fire extinguishing systems possess the necessary skills 24 and qualifications to safely and properly do so. (Health & Saf Code, §§ 13195, 13104, 13105.) 25 The Regulations concern the certification and registration of Fire Sprinkler Fitters to install one 26 27 28 9 MPAs ISO Defendants' Motion for Summary Adjudication (34-2019-00249221-CU-CR-GDS) 1 type of fire extinguishing system—the water-based system. (Cal. Code Regs., tit. 19, §§ 920- 2 948.)2 3 II. DEVELOPMENT AND PROMULGATION OF THE REGULATIONS 4 Following the enactment of Health & Safety Code section 13110, which authorized the 5 adoption of regulations to ensure fire safety (UMF 1), the OSFM convened, through the 6 Automatic Extinguishing Systems (AES) Advisory Committee, the AES Program Certification 7 Workgroup (Workgroup). (Exh. A to Defendants' Exhibits in Support of Motion for Summary 8 Adjudication (Defendants' Exhibits), Initial Statement of Reasons, at AFESC-RF 0059, as 9 authenticated in the in the Declaration of Diane K. Arend (Arend Decl.), f 3.) The purpose of the 10 Workgroup was to develop regulations for the certification and registration program for fire 11 sprinkler installers. (Ibid.) The original text of the proposed regulations was made available to 12 the public for at least 45 days from Febmary 12, 2016, through March 28, 2016. (Exh. D to 13 Defendants' Exhibits, Notice of Proposed Action, at AFESC-RF 0047, as authenticated in the 14 Arend Decl., T| 6.) The initial statement of reasons provided that National Fire Protection 15 Association Standards adopted by the OSFM address the water-based national standard of care 16 for the installation of fire suppression systems and stated that the installation requires 17 knowledgeable and experienced design and installation.^ (Exh. A to Defendants' Exhibits, at 18 AFESC-RF 0056, as authenticated in the Arend Decl., "I 3.) The proposed regulations were 19 developed to provide a mechanism for ensuring that the licensed company's installers have the 20 21 2 Califomia Code of Regulations, title 19, Chapter 5 (sections 901 through 908) concern the inspection, testing, and maintenance of all types of automatic fire extinguishing systems. 22 Automatic fire extinguishing systems include, but are not limited to, water-based fire protection systems as defined in National Fire Protection Association (NFPA) 25, engineered fixed 23 extinguishing systems, and pre-engineered fixed extinguishing systems. (Cal. Code Regs., tit. 19, § 902.) 24 ^ ^ ^ The general regulations regarding the basic operational requirements of the OSFM 25 provide that when the regulations do not specifically cover any matter pertaining to fire and life safety, the National Fire Codes and the Fire Protection Handbook published by the NFPA may be 26 used as authoritative guides in determining recognized fire prevention engineering practices. (Cal. Code Regs., tit. 19, § 1.09, subd. (a).) The initial statement of reasons identified specific 27 NFPA standards that address the water-based national standard of care for the installation of fire suppressions systems. (Exh. A to Defendants' Exhibits, at AFESC-RF 0056, as authenticated in 28 the Arend Decl., If 3.) 10 MPAs ISO Defendants' Motion for Summary Adjudication (34-2019-00249221-CU-CR-GDS) 1 necessary skills and qualifications to safely install a fire sprinkler system. (Exh. A to Defendants' 2 Exhibits, at AFESC-RF 0056-0057, as authenticated in the Arend Decl., 3.) 3 In Febmary 2016, the proposed regulations were submitted to the Office of Administrative 4 Law. (Exh. D to Defendants' Exhibits, at AFESC-RF 0046, as authenticated in the Arend Decl., 5 ^ 6.) A public hearing was conducted on April 7, 2016. (Exh. C to Defendants' Exhibits, Final 6 Statement of Reasons, at AFESC-RF 1455, as authenticated in the Arend Decl., 5.) 7 Modifications were made to the text of the proposed regulations and made available for public 8 comment for 15 days from July 27, 2016 to August 11, 2016. (Ibid.; See also Exh. B to 9 Defendants' Exhibits, at AFESC-RF 1252, as authenticated in the Arend Decl., ^ 4.) As a result 10 of the public comments and further review by the OSFM, additional modifications were made to 11 the text of the proposed regulations and to several of the forms that were part of the proposed 12 regulations. (Exh. C to Defendants' Exhibits, at AFESC:RF 1455, as authenticated in the Arend 13 Decl., 5.) The modifications were made available for public comment for 15 days from 14 December 21, 2016 to January 5, 2017. (Ibid.) There were no further comment periods. (Ibid.) 15 The proposed regulations were withdrawn from Office of Administrative Law review in 16 November 2016, pursuant to Government Code section 11349.3, subdivision (c), then resubmitted 17 to the Office of Administrative Law in February 2017. (Exh. E at AFESC-RF 0003 & Exh. F at 18 AFESC-RFl 133 to Defendants' Exhibits, as authenticated in the Arend Decl., TfH 7, 8.) The 19 Regulations were filed with the Office of the Secretary of State on March 24, 2017. (Exh. F to 20 Defendants' Exhibits, as authenticated in the Arend Decl., ^ 8, at AFESC-RF 1133.) 21 HI. T H E REGULATIONS 22 The Regulations came into effect on July 1, 2017. (See Cal. Code Regs., tit. 19, §§ 920- 23 948. See text of the.Regulations, Exh. F, to Defendants' Exhibits, at AFESC-RF 1135-1158, as 24 authenticated in the Arend Decl., 8.) The Regulations concern the certification and registration 25 of any person who installs, alters, repairs, or adds appurtenances to water-based fire protection 26 systems only, with certain exceptions.'' (Cal. Code Regs., tit. 19, §§ 922, 923.) The purpose of 27 The exceptions are: (1) they do not apply to the installation, alteration, or repair of one and two-family residential sprinkler systems; (2) they do not apply to the installation, alteration, 28 II MPAs ISO Defendants' Motion for Summary Adjudication (34-2019-00249221-CU-CR-GDS) 1 the Regulations "is to improve the performance and reliability of water-based fire protection 2 systems by providing a means to certify and register any person who installs, alters, repairs, or 3 add appurtenances to such systems." (Cal. Code Regs., tit. 19, § 922.) The Regulations were 4 adopted under the authority of Health and Safety Code section 13110.^ (Cal. Code Regs., tit. 19, 5 § 920.) 6 The general provisions section of the Regulations provides in relevant part: 7 No person shall engage in the installation of water-based fire protection systems as defined in Section 924.12 without first being certified or registered in accordance 8 with these regulations and have obtained a certification or registration card issued by the [OSFM]. An Apprentice or Trainee shall become registered in accordance with 9 the provisions in Article 5. 10 (Cal. Code Regs., tit. 19, § 925, subd. (a).) Article 5 contains the education, training, and/or 11 apprenticeship requirements for Fire Sprinkler Fitter trainee registration (Cal. Code Regs., tit. 19, 12 § 937), Fire Sprinkler Fitter apprentice registration (Cal. Code Regs., tit. 19, § 938), and Fire 13 Sprinkler Fitter certification (Cal. Code Regs., tit. 19, § 939). The Regulations also require that 14 the certified Fire Sprinkler Fitter complete continuing education classes (Cal. Code Regs., tit. 19, 15 § 946) and provide for the enforcement of the Regulations (Cal. Code Regs., tit. 19, §§ 927-934). 16 To become a certified Fire Sprinkler Fitter, a person must meet one of the two 17 qualifications for certification, either (A) or (B), as follows: (A)(1) be at least sixteen years old, 18 (A)(2) (i) for a commercial certification, complete 7000 hours in a state or federally approved 19 Fire Sprinkler Fitter Apprenticeship Program and five years of experience within the scope of the 20 regulations or (ii) for a multi-family residential certification, complete 3500 hours in a state or 21 federally approved Fire Sprinkler Fitter Apprenticeship Program and two years of experience 22 within the scope of the regulations, and (A)(3) pass a written examination; or (B)(1) be at least 16 23 or repair of underground water supply lines from the connection of the water supply to the first joint, or the mechanical connection at the base of the system riser; and (3) they do not apply to the 24 installation of pre-engineered water-based fixed extinguishing systems. (Cal. Code Regs., tit. 19, § 923.) 25 ^ On October 29, 2021, this Court denied Plaintiffs' motion for summary judgment, or in 26 the alternative, summary adjudication, pursuant to Government Code section 11350, finding that "the grant of authority in [Health and Safety Code section 13110] to regulate certification and 27 licensing of fire safety is unambiguous" and Plaintiffs failed to persuade the Court that the Regulations are void because they go beyond the authority provided by statute. (Order, at p. 6.) 28 12 MPAs ISO Defendants' Motion for Summary Adjudication (34-2019-00249221-CU-CR-GDS) 1 years old, and (B)(2) hold a C-16 Fire Protection Contractor License from the CSLB,^ and (B)(3) 2 pass a written examination. (Cal. Code Regs., tit. 19, §§ 945, 939.) Therefore, a C-16 Contractor 3 does not need tofialfiUthe experience and apprenticeship requirements of the Regulations to 4 obtain a Certified Fire Sprinkler Fitter license from the OSFM, but a C-16 Contractor is required 5 to pass a written examination.^ 6 The Regulations provided for a,delayed implementation period during which a C-16 7 Contractor could obtain a license without taking an examination (180 days from the effective date 8 of the Regulations), a journeyman Fire Sprinkler Fitter who provided documentation that they 9 met the required work experience could obtain a license without completing an apprenticeship 10 program (180 days from the effective date of .the Regulations), and delayed the implementation of 11 other requirements. (Cal. Code Regs., tit. 19, § 947.) This section ceased to have effect on 12 January 1, 2019. (See id at § 947, subd. (e).) 13 IV. CONTRACTORS STATE LICENSE BOARD AND THE C-16 FIRE PROTECTION LICENSE • 14 The Contractors State License Board (CSLB) also issues licenses for the installation of fire 15 suppression systems, referred to in the Regulations as a C-16 license, but there are important 16 differences between the C-16 license and the Fire Sprinkler Fitter license. The CSLB administers 17 the contractors state license law as set forth in Business and Professions Code section 7000 et seq. 18 As relevant here, a "contractor" includes "[a]ny person, consultant to an owner-builder, firm, 19 association, organization, partnership, business tmst, corporation, or company, who or which 20 undertakes, offers to undertake, purports to have the capacity to undertake, or submits a bid to 21 construct any building or home improvement project, or part thereof" (Bus. & Prof Code, § 22 7026.1, subd. (a)(2).) The contractors state license law provides that the installation of a fire 23 protection system, excluding an electrical alarm system, shall be performed only by either (1) a 24 contractor holding a fire protection contractor classification, as defined in the regulations of the 25 ^ Califomia Code of Regulations, title 19, section 945, subdivision (b) also contains the 26 requirements an out-of-state applicant must meet. 27 ' A C-16 Fire Protection Contractor is a specialty contractor who holds a license from the Contractors State License Board. The C-16 Contractor and the Contractors State License Board 28 are discussed in the next section. 13 MPAs ISO Defendants' Motion for Summary Adjudication (34-2019-00249221-CU-CR-GDS) 1 CSLB or (2) an owner-builder of an owner-occupied, single-family dwelling, with qualifications 2 not relevant here. (Bus. & Prof Code, § 7026.12.) A fire protection contractor is classified by 3 the CSLB regulations as a C-16 specialty contractor who "lays out, fabricates and installs all 4 types of fire protection systems; including all the equipment associated with these systems, 5 excluding electrical alarm systems." (Cal. Code Regs., tit. 16, §§ 832, 832.16.) Applicants for 6 contractors' licenses are qualified by written examination. (Bus. & Prof Code, § 7065.) CSLB 7 regulations also contain experience requirements for contractors. (Cal. Code Regs., tit. 16, § 8 825.) Unlike the Regulations, however, the contractors state license law applies to contractors, 9 not their employees. (Bus. & Prof Code, § 7053.) 10 LEGAL ARGUMENT 11 I. STANDARD OF REVIEW FOR SUMMARY ADJUDICATION 12 Summary judgment is appropriate when the moving party establishes the right to entry of 13 judgment as a matter of law. (Code Civ. Proc, § 437c; Aguilar v. Atlantic Richfield Co. (2001) 14 25 Cal.4th 826, 843.) "A party may move for summary adjudication as to one or more causes of 15 action within an action . . . if that party contends that the cause of action has no merit. . . ." 16 (Code Civ. Proc, § 437c, subd. (f)(1).) "A motion for summary adjudication . . . shall proceed in 17 all procedural respects as a motion for summary judgment." (Code Civ. Proc, § 437c, subd. 18 (f)(2).) A defendant moving for summary adjudication must demonstrate that a cause of action 19 has no merit, either because the plaintiff cannot establish an element of the cause of action or 20 because an affirmative defense defeats the claim. (Code Civ. Proc, § 437c, subd. (p)(2); Aguilar 21 V. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.) "The defendant can satisfy its burden by 22 presenting evidence that negates an element of the cause of action or evidence that the plaintiff 23 does not possess and cannot reasonably expect to obtain evidence needed to establish an essential 24 element." (Garrett v. Howmedica Osteonics Corp. (2013) 214 Cal.App.4th 173, 181.) 25 Once the defendant has met its burden, the burden shifts back to the plaintiff to show that a 26 triable issue of one or more material facts exist, as to that cause of action. (Aguilar v. Atlantic 27 Richfield Co., supra, 25 Cal.4th at p. 849.) The plaintiff may not rely upon the mere allegations 28 or denials in his pleadings, but must set forth the specific facts to show a triable issue of material 14 MPAs ISO Defendants' Motion for Summary Adjudication (34-2019-00249221-CU-CR-GDS) 1 facts exists. (Ibid.) Nor may a plaintiff avoid summary judgment by relying on matters not 2 alleged in his or her complaint. (See Tsemetzin v. Coast Federal Sav. & Loan Assoc. (1997) 57 3 Cal.App.4th 1334, 1343; FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381.) 4 If the plaintiff cannot carry that burden, the defendant is entitled to judgment. (Code Civ. Proc, § 5 437c, subds. (o), (p).) 6 II. T H E FIRST CAUSE OF ACTION (DUE PROCESS REGARDING RIGHT TO EARN A LIVING) FAILS BECAUSE THE REGULATIONS A R E RATIONALLY R E L A T E D TO THE 7 OSFM's LEGITIMATE INTEREST IN PUBLIC SAFETY. 8 Plaintiffs' first cause of action alleges a violation of due process under 42 U.S.C. section 9 1983, claiming that the OSFM deprived them of their liberty "to earn a living in an occupation 10. free from unreasonable government interference" within the protection of the Fourteenth 11 Amendment. (FAC 23-41.) Plaintiffs allege that while state governments can place 12 restrictions on the right to earn a living, the licensure requirements "require extensive testing or 13 education only tangentially related to an applicant's fitness to practice his or her chosen 14 occupation," they have "a tenuous connection to the protection of the public," and "the burden of 15 licensure requirements is greatly out of proportion with alleged public benefits created by those 16 requirements." (FAC TITj 23, 26, 27.) Plaintiffs then allege various reasons why they contend the 17 Regulations are not necessary. The OSFM is entitled to summary adjudication of this cause of 18 action because, as explained below, the Regulations establish reasonable standards for certifying 19 and licensing Fire Sprinkler Fitters, which is rationally related to the OSFM's legitimate interest 20 in ensuring that those installing fire protection systems are adequately trained and educated, in the 21 interest of public safety from fires. 22 A. The Right to Practice a Profession Is Not a Fundamental Right—Rational Basis Review Applies. 23 24 Rational basis review applies to Due Process challenges to state professional regulations, 25 because the right to practice a particular profession is not a fundamental right. (Sagana v. 26 Tenorio (9th Cir. 2004) 384 F.3d 731, 743 ["w]e have never held that the right to pursue a 27 profession is a fimdamental right].) "States have a compelling interest in the practice of 28 professions within their boundaries, and . . . they have broad power to establish standards for 15 MPAs ISO Defendants' Motion for Summary Adjudication (34-2019-00249221-CU-CR-GDS) 1 licensing practitioners and regulating the practice of professions." (Goldfarb v. Va. State Bar 2 (1975) 421 U.S. 773, 792.); see also D 'Amico v. Board of Medical Examiners, 11 Cal.3d 1,17 3 [rational basis standard of review is traditionally applied to occupational regulation].) 4 The Due Process Clause of the Fourteenth Amendment provides that no state shall "deprive 5 any person of life, liberty, or property, without due process of law." (U.S. Const. Amend XIV.) 6 Courts have found a liberty interest based on some "generalized due process right to choose one's 7 field of private employment." (Conn v. Gabbert (1999) 526 U.S. 286, 291-292.) But "that right 8 is subject to reasonable government regulation." (Franceschi v. Yee (9th Cir. 2018) 887 F.3d 9 927, 937-938.) The cases establishing a liberty interest in pursuing a chosen profession "deal[] 10 with a complete prohibition of the right to engage in a calling." (Id. at 938, citing Conn, 526 U.S. 11 at 292 [brackets in Franceschi].) Moreover, because this liberty interest is not a fimdamental 12 right, the Court asks "whether the legislation has a 'conceivable basis' on which it might survive 13 constitutional scmtiny. (Dittman v. California (9th Cir. 1999) 191 F.3d 1020, 1031 «fe n. 5.) 1'^ B. The Regulations Bear a Rational Relationship to the Safe Installation of Fire Sprinklers. 15 16 During the regulatory process, the OSFM determined that, as explained in the initial 17 statement of reasons, due to "the complexity of materials, changes in constmction standards, and 18 the increased complexity of Fire Protection [Sjystems" the Regulations are necessary because 19 they "will provide a program to ensure those installing [Fire Protection Systems] are adequately 20 trained and educated to meet the fire protection needs in Califomia." (Exh. A to Defendants' 21 Exhibits, at AFESC-RF 0059, as authenticated in the Arend Decl., ^3.) The initial statement of 22 reasons further provided that National Fire Protection Association Standards, which the OSFM 23 adopted, address the national standard of care for the installation of a water-based fire suppression 24 system, stating that the "'sprinkler systems and private fire service mains are specialized fire 25 protection systems and shall require knowledgeable and experienced design and installation.'"* 26 However, in Califomia, while the person who designs the fire sprinkler system must be licensed. 27 8 As explained in footnote 3, supra, the NFPA standards are an authoritative guide that may be used in determining recognized fire prevention engineering practices. (Cal. Code Regs., 28 tit. 19, § 1.09, subd. (a).) 16 MPAs ISO Defendants' Motion for Summary Adjudication (34-2019-00249221-CU-CR-GDS) 1 "the installer of these life safety systems [was] not required to demonstrate his or her knowledge 2 or experience, nor have any." (UMF 2.) The OSFM's intent in adopting the Regulations was to 3 establish a program to address the "public safety and industry concerns that fire sprinklers [were] 4 not being installed in accordance with Califomia law." (UMF 3.) 5 The Regulations were developed to ensure that the licensed company's installers have the 6 necessary skills and qualifications to safely install a fire sprinkler system and were promulgated 7 through the Administrative Procedure Act's (APA) public mlemaking process. Government Code 8 section 11340 et seq. (UMF 4.) While Plaintiffs may not agree with the Regulations, "in the end, 9 'it is for the legislature, not the courts, to balance the advantages and disadvantages o f . . . new 10 requirement[s]." (See Dittman v. California, supra, 191 F.3d at p. 1032, citing Williamson v. Lee 11 Optical, Inc.. (1955) 348 U.S. 483, 487 [ellipses and brackets in Dittman].) The OSFM has a 12 legitimate, significant interest in the safe installation of fire sprinkler systems and the Regulations 13 are rationally related to public safety. 14 III. T H E SECOND CAUSE OF ACTION (PROCEDURAL DUE PROCESS AND EQUAL PROTECTION REGARDING NOTICE) FAILS FOR SEVERAL REASONS, INCLUDING 15 THAT DUE PROCESS DOES NOT APPLY TO ADMINISTRATIVE RULEMAKING. 16 Plaintiffs claim that the OSFM violated the due process and equal protection clauses of the 17 Califomia and federal Constitutions because they did not receive notice of the final adopted 18 Regulations until after they and other C-16 license holders were unable to take advantage of its 19 grandfathering provisions. They further allege that they have a vested right in their C-16 licenses 20 and because they were not able to take advantage of the grandfathering provisions of the 21 Regulations, they were not able to practice theif professions despite having active C-16 licenses. 22 (FAC 43-47.) These claims fail for at least two reasons: first, because the OSFM was acting 23 in a quasi-legislative capacity when adopting the Regulations, constitutional due process does not 24 apply; second, there is no credible argument that the challenged Regulations are unconstitutional 25 under the applicable rational basis standard. 26 III 21 III 28 /// . !