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1 ROB BONTA
Attomey General of Califomia
2 RUSSELL B. HILDRETH
Supervising Deputy Attomey General
3 ANDREA M . KENDRICK, State Bar No. 225688
COURTNEY S. COVINGTON, State Bar No. 259723
4 Deputy Attomeys General
1300 I Street, Suite 125
5 P.O. Box 944255
Sacramento, CA 94244-2550
6 Telephone: (916)210-7821
Fax: (916)327-2319
7 E-mail: Andrea.Kendrick@doj.ca.gov
8 Attorneys for Defendants
9
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10
COUNTY OF SACRAMENTO
11
12
13 FIRE GUARD CORPORATION; Case No. 34-2019-00249221
BAHMAN BRIAN SHAHANGIAN, an
14 individual; and CALIFORNIA FIRE [Proposed] ORDER DENYING
PROTECTION COALITION, a California PLAINTIFF CALIFORNIA FIRE
15 Corporation; and JUAN CARLOS DEL PROTECTION COALITION'S MOTION
TORO TREJO, an individual,, FOR SUMMARY JUDGMENT AND/OR
16 ADJUDICATION
Plaintiffs,
17 Date: October 13, 2021
Time: 1:30 p.m.
18 Dept: 53
Judge: Hon. Shama Mesiwala
19 CALIFORNIA DEPARTMENT OF Trial Date: December 5-9, 2022
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.
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[Proposed] Order Denying Plaintiff Califomia Fire Protection Coalition's MSJ and/or MSA (34-2019-00249221)
1 ORDER DENYING MOTION FOR SUMMARY JUDGMENT AND/OR ADJUDICATION
2 This matter was heard by the Court on October 13, 2021. Plaintiff Califomia Fire
3 Protection Coalition was represented by William Gausewitz of Greenberg Traurig, LLP.
4 Defendants Califomia Department of Forestry and Fire Protection; Califomia Office of the State
5 Fire Marshal; Mike Richwine, in his official capacity as State Fire Marshal; and Jeffrey Schwartz,
6 in his official capacity as Deputy State Fire Marshal, were represented by Andrea M. Kendrick of
7 the Califomia Office of the Attomey General. Having considered the parties' papers and
8 arguments and taken the matter under submission, the Court issued its Ruling on Submitted
9 Matter (Motion for Summary Judgment and/or Adjudication), which was entered into the Court's
10 Register of Actions for this matter on October 15, 2021, and is attached as Exhibit A and
11 incorporated by reference.
12 For the reasons stated in the Ruling on Submitted Matter, IT IS ORDERED that plaintiff
13 Califomia Fire Protection Coalition's Motion for Summary Judgment and/or Adjudication, is
14 denied.
15
16 Dated:
HON. SHAMA MESIWALA
17 Judge of the Superior Court
18
19 APPROVED AS TO FORM:
20
21 Dated:
Counsel for Plaintiff Califomia Fire
22 Protection Coalition
23
SA2019300028
24 35566883.docx
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[Proposed] Order Denying Plaintiff Califomia Fire Protection Coalition's MSJ and/or MSA (34-2019-00249221)
EXHIBIT A
^ JPERIOR COURT OF CALIFORNU,
COUNTY OF SACRAMENTO
GORDON D SCHABER COURTHOUSE
MINUTE ORDER
DATE: 10/15/2021 TIME: 01:30:00 PM DEPT: 53
JUDICIAL OFFICER PRESIDING: Shama Mesiwala
CLERK: P. Lopez
REPORTER/ERM:
BAILIFF/COURT ATTENDANT:
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
APPEARANCES
Nature of Proceeding: Ruling on Submitted Matter (Motion for Summary Judgment and/or
Adjudication) Taken under submission on 10/13/21
TENTATIVE RULING
Plaintiff California Fire Protection Coalition's ("CFPC") Motion for Summary Judgment/Summary
Adjudication is denied.
Plaintiffs Request for Judicial Notice is granted. The Court takes judicial notice of Exhibit A: California
Assembly Bill 433 (Gordon), enacted in 2013 as Chapter 377, Statutes of 2013; Exhibit B: California
Rule-making, Office of Administrative Law ("OAL") File # 2017-0209-02SR, March 24, 2017, which
enacted the challenged regulations; Exhibit C: California Assembly Floor Analysis of AB 433 as
amended on August 13, 2013; Exhibit D: California Senate Floor Analysis of AB 433 as amended on
August 13, 2013.
Plaintiff challenges regulations enacted by the Office of the State Fire Marshall ("OSFM") pursuant to
Section 11350 of the California Government Code, which permits any interested person to obtain a
judicial declaration as to the validity of any regulation. Plaintiff asserts that the regulations are not within
the scope of authority conferred by statute and are not reasonably necessary to effectuate the purpose
of AB 433. The regulations therefore violate sections 11342.1 and 11342.2 ofthe California Government
Code.
Plaintiff seeks an order granting summary judgment, or in the alternative, summary adjudication, with
respect to its Complaint. However, the First Amended Complaint ("FAC") contains seven causes of
action, and this motion addresses only the declaratory relief claims in the 6th and 7th cause of action.
And, the separate statement addresses only the 6th cause of action.
The motion for summary judgment is denied because the motion does not address all causes of action
in the Complaint, only the 6th and 7th causes of action, and therefore the ruling on the motion would not
dispose of the entire FAC. .
In addition, because the separate statement only addresses the 6th cause of action, it violates CRC 3.
1350(b), which requires that a summary adjudication motion include each cause of action to be
adjudicated in the notice of motion and in the separate statement. Since plaintiff did not comply with
CRC 3. 1350(b) as to the 7th cause of action, because it was not mentioned in the separate statement.
DATE: 10/15/2021 MINUTE ORDER Page 1
DEPT: 53 Calendar No.
CASE TITLE: Fire Guard Corpo.^jon vs. California CASE NO. .^-2019-00249221-CU-CR-GDS
Department of Forestry and Fire Protection
this motion is considered only as a motion for summary adjudication ofthe 6th cause of action.
The FAC challenges regulations adopted by Defendant Office of State Fire Marshal (OSFM). Plaintiff
contends OSFM improperly seeks to regulate which persons may lawfully install water-based fire
suppression systems. Plaintiffs contend that the challenged regulations are illegal and void because
they are not within the scope of the OSFM regulatory authority.
Plaintiff requests summary adjudication as follows:
"6th cause of action : Plaintiff Is Entitled to Summary Adjudication of Plaintiffs 6th Cause of Action for
Declaratory Relief Because There Are No Disputed Issues of Material Fact and Plaintiff Is Entitled to
Judicial Declaration that the Challenged Regulations are not within the scope of regulatory authority
conferred on Defendant by law. Specifically Plaintiff contends it is entitled to judgment as a matter of law
that the Health and Safety Code authorizes the Office of State Fire Marshal ("OSFM") to regulate fire
sprinkler equipment and the standards for installation and maintenance of that equipment. Neither the
Health & Safety Code, nor any other law, authorizes OSFM to regulate the training, testing, or licensing
of contractors who install fire sprinkler systems. Such regulations can only be, and have been, adopted
by the Contractors State License Board.
7th cause of action: Plaintiff Is Entitled to Summary Judgment, or in the Alternative Summary
Adjudication, as to Plaintiffs 7th Cause of Action for Declaratory Relief Because There Are No Disputed
Issues of Material Fact and Plaintiff' Is Entitled to Judgment as a Matter of Law that the Challenged
Regulafions are in conflict with the Business and Professions Code and are not reasonably necessary to
efl'ectuate the purpose of the Code."
The Court is not ruling on the 7th cause of action due to the failure to comply with CRC 3. 1350(b)
Plainfiffs separate statement contains four UMFs, supported by plaintiffs request for judicial nofice.
UMF 1. In 2013, California enacted AB 433 (Gordon, Statutes of 2013, Chapter 377). This legislafion
modified the California Business and Professions Code relating to the Contractors State License Board,
and the Health and Safety Code relating to the State Fire Marshal.
UMF 2. On February 12, 2016, the Office of State Fire Marshal (OSFM) published a Nofice of Proposed
Acfion to adopt regulafions under the purported authority of Health and Safety Code § 13110, another
statute adopted by AB 433. These regulafions were adopted by OSFM and comprise Chapter 5.5 of
Division 1 or Title 19 ofthe California Code of Regulafions.
UMF 3. Since Health & Safety Code § 13110 does not grant express regulatory authority to OSFM to
regulate the training and qualificafions of fire sprinkler installers, instead of or in addition to, the
Contractors State License Board, it is appropriate for the court to examine extrinsic evidence. The best
available extrinsic evidence ofthe intent ofthe Legislature in enacfing H&S § 13110 are the analyses of
AB 433 (Gordon, 2013).
UMF 4. In describing the effect of the bill on the regulatory authority granted to OSFM, the Senate Floor
analysis says only that it "Authorizes the State Fire Marshall to propose, adopt and administer the
regulations that he/she deems necessary in order to ensure fire safety in buildings and structures and
requires those regulations be submitted to the BSC for approval, as specified." The analysis employs a
somewhat imprecise statement that it authorizes regulafions relating to "buildings and structures" - the
tradifional regulatory role of OSFM.
Legal Standard
DATE: 10/15/2021 MINUTE ORDER Page 2
DEPT: 53 Calendar No.
CASE TITLE: Fire Guard Corpo,^..on vs. California CASE NO: . .-2019-00249221-CU-CR-GDS
Department of Forestry and Fire Protection
In evaluafing a motion for summary judgment or summary adjudicafion the court engages in a three step
process. The Court first identifies the issues framed by the pleadings. The pleadings define the scope of
the issues on a motion for summary judgment or summary adjudication. {FPl Dev. Inc. v. Nakashima
(1991) 231 Cal. App. 3d 367, 381-382). Because a motion for summary judgment or summary
adjudicafion 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 mofion must be addressed to the
claims and defenses raised in the pleadings. An issue that is "within the general area of issues framed
by the pleadings" is properly before the court on a summary judgment or summary adjudication motion.
{Lennar Northeast Partners v. Buice (1996) 49 Cal. App. 4th 1576, 1582-1583.) The Court cannot
consider an unpleaded issue in ruling on mofion for summary judgment or adjudicafion. Roth v. Rhodes
(1994) 25 Cal.App.4th 530, 541. The papers filed in response to a defendant's mofion for summary
judgment may not create issues outside the pleadings and are not a subsfitute for an amendment to the
pleadings. Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342.
Second, the Court is required to determine whether the moving party has met its burden. A defendant
moving for summary judgment bears the burden of persuasion that one or more elements of the
plaintiff's cause of acfion cannot be established, or that there is a complete defense to the cause of
acfion.
{Aguilar v. Atlantic Richfield Co. (2001) 25 Cal 4th 826, 850, quoting CCP §437c(p)(2)). A defendant is
not required to conclusively negate one or more elements of the plaintiffs cause of action; {Saelzer v
Advance, Group 400 (2001) 25 C4th 763, 780-781). Rather, to meet its burden, the defendant is
required only to show that the plainfiff 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 V Atlantic Richfield Co., supra, 25 Cal 4th at pp. 853-855).
Finally, once the moving party has met its burden, the burden shifts to the opposing party to show that a
material factual issue exists as to the cause of acfion alleged or a defense to it. CCP 437c(p). (see,
generally Bush v. Parents Without Partners (1993) 17 Cal. App. 4th 322, 326-327). "There is a genuine
issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the
underlying fact in favor of the party opposing the motion in accordance with the applicable standard of
proof." Aguilar v. Atlantic Richfield Co. (2001 )25Cal.4th 826, 845).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, 25 Cal.4th at p. 843.)
The facts are not disputed in this case. Rather the issue to be resolved is a question of law.
Argument
Plaintiff seeks a declaration from the Court that the challenged regulations exceed the authority granted
to OSFM by AB 433, and are therefore invalid, because they
alter, amend, or enlarge the scope of Health and Safety Code § 13110.
AB 433 provides:
"Secfion 13110 is added to the Health and Safety Code, to read:
13110. (a) Notwithstanding any other provision of this part, the State Fire Marshal may propose, adopt,
and administer the regulafions that he or she deems necessary in order to ensure fire safety in
buildings and structures within this state including regulations related to construction,
modification, Installation, testing, inspection, labeling, listing, certification, registration-
licensing, reporting, operation, and maintenance. Regulafions that are building standards shall be
submitted to the State Building Standards Commission for approval pursuant to Chapter 4 (commencing
with Secfion 18935) of Part 2.5 of Division 13. (court's emphasis)
The challenged regulafions comprise Chapter 5.5 of Division 1 of Title 19 of the California Code of
DATE: 10/15/2021 MINUTE ORDER Page 3
DEPT: 53 Calendar No.
CASE TITLE: Fire Guard Corpo._..on vs. California CASE NO: ^-,-2019-00249221-CU-CR-GDS
Department of Forestry and Fire Protection
Regulations. The challenged regulafions prohibit any person from engaging in "the installafion of
water-based fire protecfion systems as defined in Section 924.12 without first being certified or
registered in accordance with these regulafions and have obtained a certificafion or registrafion card
issued by the Office ofthe State Fire Marshal" (19 CCR § 925). Under this regulafion, even an individual
who holds a C-16 fire protecfion contractor's license from the Contractors State Licensing Board
("CSLB") is prohibited from installing a fire protecfion system if the individual does not also possess a
certificafion from OSFM. Obtaining this OSFM certification requires complefion of training specified by
OSFM (19 CCR § 939), passing a test created and administered by OSFM, and requires payment of one
or more fees to OSFM (19 CCR § 925.1), and compliance with confinuing educafion requirements
established by OSFM (19 CCR §946). OSFM regulations also require reporting of new hires to OSFM
within 72 hours (19 CCR § 934.
Judicial review of the validity of a regulafion under secfion 11350 is subject to de novo review." In the
end, "[t]he court, not the agency, has 'final responsibility for the interpretafion of the law under which the
regulation was issued'" (Citation omitted). We must conduct an independent examinafion to determine
whether the agency '"reasonably interpreted the legislafive mandate' in enacfing the regulafion. (Citation
omitted.)" California School Bds. Assn. v. State Bd. of Education
(2010) 191 Cal.App.4th 530, 544.
Although the regulation was approved by the California Office of Administrafive Law (OAL), the
determinafion of whether the regulafion is within the authority of the statute may not consider this
approval. Government Code § 11350(c) provides: "The approval of a regulafion or order of repeal by the
office [OAL] or the Governor's overruling of a decision of the office disapproving a regulation or order of
repeal shall not be considered by a court in any action for declaratory relief brought with respect to a
regulation or order of repeal."
Plaintiff contends OSFM's authority is limited to regulating the fire safety equipment and methods of
installing that equipment. The Contractors State License Board (CSLB) on the other hand is argued to
have sole authority to regulate who is legally permitted to perform installafion of such equipment.
However, the OSFM's regulations provide " . . . a means to certify and register any person who installs,
alters, repairs or adds appurtenances to such systems."
By adopfing regulafions which regulate which persons are permitted to perform installation, Plaintiffs
contend OSFM has assumed regulatory authority granted by law to CSLB, thus acfing outside the scope
of its regulatory authority.
A regulation cannot be adopted lawfully by a state government agency unless it is within the scope of the
authority delegated to that agency by law. Government Code § 11342.1 provides, in pertinent part "Each
regulation adopted, to be effecfive, shall be within the scope of authority conferred and in accordance
with standards prescribed by other provisions of law."
"[I]t is well established that the rulemaking power of an administrafive agency does not permit the
agency to exceed the scope of authority conferred on the agency by the Legislature. (Citation omitted.)
A ministerial officer may not... under the guise of a rule or regulafion vary or enlarge the terms of a
legislative enactment or compel that to be done which lies without the scope of the statute; Agnew v.
State Bd. of Equalization (1999) 21 Cal. 4th 310, 321. "[Ajn agency does not have discrefion to
promulgate regulafions that are inconsistent with the governing statute, alter or amend the statute, or
enlarge its scope." California School Bds. Assn. v. State Bd of Education (2010) 191 Cal.App.4th 530,
544." Administrafive agencies have only the powers conferred on them, either expressly or impliedly, by
the Constitution or by statute, and administrative actions exceeding those powers are void." Terhune v.
Superior Court (1998) 65 Cal.App.4th 864, 872. "[A]gencies do not have discretion to promulgate
regulations that are inconsistent with the governing statute, or that alter or amend the statute or enlarge
DATE: 10/15/2021 MINUTE ORDER Page 4
DEPT: 53 Calendar No.
CASE TITLE: Fire Guard Corpo.^cton vs. California CASE NO: w^-2019-00249221-CU-CR-GDS
Department of Forestry and Fire Protection
its scope. Slocum v. State Bd. of Equalization (2005) 134 Cal.App.4th 969, 974
Plaintiff contends that the term "installation" in AB 433/H & S Code 13110 must be read to define
standards for installafion of fire protecfion systems, such as considerations of the mechanics of installing
a fire protecfion system into a structure. Plaintiff contends this term cannot reasonably be read to
authorize OSFM to regulate which individuals may or may not engage in the installation of fire protecfion
systems. Plainfiff contends that authority is clearly delegated to, and exercised by, CSLB pursuant to the
Business and Professions Code. Similarly, Coalition contends neither the authority to regulate
"licensing" or "certificafion" under H&S § 13110 provides authority to regulate who is or is not authorized
to install fire sprinkler systems because the statute cannot reasonably be interpreted to authorize OSFM
to adopt regulations governing any type of license or certificate. These terms may only be interpreted to
permit OSFM to adopt such regulafions of licensing and certificafion which are within the scope of its
overall statutory authority to ensure fire safety in buildings and structures. Plaintiff contends that
because the statute does not provide explicit authority for OSFM to regulate licensing of fire protection
contractors, the statute is "ambiguous" such that extrinsic evidence of legislafive intent is admissible to
interpret the statute. UMFS 3 and 4 concern legislafive intent.
Finally, plainfiff contends that since the challenged regulafions place OSFM in the position of
determining who may perform "installation, alteration or repair of all water-based fire protection systems"
(§ 923) they are inconsistent with the Business and Professions Code statute giving this authority to the
CSLB. Since the APA requires that "no regulafion adopted is valid or effecfive unless consistent and not
in conflict with the statute, and the challenged regulations are inconsistent and in conflict with sections
7008 and 7026.12 of the Business and Professions Code, plaintiff argues the challenged regulafions
violate the APA and the challenged regulafions are therefore invalid. As noted above this argument
concerns the 7th cause of acfion which the court is not ruling on due to the non compliance with CRC 3.
1350(b).
In opposifion, defendants contend H&S § 13110 expressly authorizes the OSFM to establish a fire
suppression certification program that requires a minimum training standard for those persons who
install or work on fire suppression systems in California and develop a certification and registration
program for those individual Fire Sprinkler Fitters who install automafic fire exfinguishing systems. Thus,
OSFM contends the Regulations are squarely within the OSFM's statutory authority. Furthermore,
although the CSLB regulates the C-16 Contractor who contracts to or offers to contract to design and
have fire sprinkler systems installed, the CSLB does not have the authority to regulate whether the
person who is performing the actual installafion of the automatic fire exfinguishing system has the
adequate training and experience to do so. This is covered by the Regulations administered by the
OSFM, which apply to individuals performing such installafion work, and thus do not conflict with the
authority of the CSLB.
A regulafion is presumed valid and the burden of demonstrafing invalidity is squarely on the challenger.
{Association of California Insurance Companies v. Jones (2017) 2 Cal.5th 376, 389-390 (ACIC) ; Credit
Ins. General Agents Assn. of California., Inc. v. Payne (1976) 16 Cal.3d 651, 657.) There are two
categories of administrafive rules, quasi-legislafive rules and interprefive rules. {Yamaha Corp. of
America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 10-11.) The Regulafions in this case are
quasi-legislative rules because they are the product of a delegated legislative power conferred on the
State Fire Marshal by H&S § 13110. (See ibid.) In reviewing a quasi-legislafive rule, a court must
determine whether in promulgafing the rule, the agency acted within the bounds of its statutory mandate,
and, if so, whether the regulation is reasonably necessary to effectuate the purpose of the statute.
{Yamaha, supra, 19 Cal.4th at pp. 10-11. See also Gov. Code, § 11342.2 [using same standard].) In
doing so, a court may not subsfitute its independent judgment for that of the administrafive agency on
the facts or on the policy considerations involved. {Credit Ins. General Agents Assn., supra, 16 Cal.3d at
p. 657.)
DATE: 10/15/2021 MINUTE ORDER Page 5
DEPT: 53 Calendar No.
CASE TITLE: Fire Guard Corpo.^don vs. California CASE NO: ^.-2019-00249221-CU-CR-GDS
Department of Forestry and Fire Protecfion
"If safisfied that the rule in question lay within the lawmaking authority delegated by the Legislature, and
that it is reasonably necessary to implement the purpose of the statute, judicial review is at an end.'"
(>AC/C, supra, 2 Cal.5th at p. 397, quofing Yamaha, supra, 19 Cal.4th at 8 pp. 10-11.)
When a regulation is challenged on the ground that it is not reasonably necessary to effectuate the
purpose of the statute, the court's inquiry is confined to whether the rule is arbitrary, capricious, or
without rafional basis and whether substanfial evidence supports the agency's determinafion that the
rule is reasonably necessary. {Western States Petroleum Assn. v. Board of Equalization (2013) 57
Cal.4th 401, 415, cifing Yamaha, supra, 19 Cal.4th at p. 11 & fn. 4 and Gov. Code, § 11350, subd.
(b)(1). Plaintiff has presented no evidence on this issue of whether the rule was reasonably necessary
under 11342.2 of the California Government Code. In reply, plaintiff states it would be fully safisfied with
an order which ignored the necessity requirement of Gov. Code § 11342.2 and invalidated the
regulafions solely for their failure to meet the authority requirement of § 11342.1
OSFM contends that the language of Health and Safety Code 13110 does not limit the State Fire
Marshal's discrefion to determine what regulafions he or she deems necessary to ensure fire safety in
buildings and structures within the state including regulafions related to construcfion, registrafion,
licensing, reporting, operafion, and maintenance.
Defendants point out that AB 433 amends four statutes, three of which concern changes to the
contractors state license law regarding the installation of fire sprinklers and one of which concerns the
addifion of H&S 13110 regarding the general authority of the OSFM to propose and adopt regulafions
regarding fire safety). The fact that all four amendments are in the same bill shows that the Legislature
intended to grant simultaneous authority to both the CSLB and the OSFM. Rather than restricfing the
OSFM's authority, as the Coalition suggests, AB 433 confirms that the CSLB and the OSFM administer
dual oversight for fire safety through complementary regulatory programs.
The Court rejects plaintiff's reply argument that because § 13110 lists several general and undefined
subjects but it does not list "training standards" or "installafion fitters" that the regulafions go beyond the
authority granted by statute.
The Court finds that the grant of authority in H&S code H&S § 13110 to regulate certification and
licensing of fire safety installafion is unambiguous. Plaintiff has failed to persuade the Court that the
regulation is void because it goes beyond the authority provided by statute. Plaintiff has also failed to
meet its burden to show that the regulations are not necessary and not reasonably designed to aid a
statutory objective. {Samantha C, supra, 185 Cal.App.4th at p. 1482.) The courts defer to the agency
expertise on such matters and will not impose their own policy judgments on the agency unless the
agency decision is arbitrary and capricious. {Id. at pp. 1482-1483.)
The motion for summary judgment/summary adjudication is denied.
The prevailing party is directed to prepare a formal order complying with C.C.P. §437c(g) and C.R.C.
Rule 3.1312.
COURT RULING
The matter was argued and submitted.
The matter was taken under submission.
DATE: 10/15/2021 MINUTE ORDER Page 6
DEPT: 53 Calendar No.
CASE TITLE: Fire Guard Corpo.^..on vs. California CASE NO: ^ .'2019-00249221-CU-CR-GDS
Department of Forestry and Fire Protecfion
SUBMITTED MATTER RULING
Having taken the matter under submission on 10/13/21, the Court now rules as follows:
The Court affirmed the tentative ruling.
CC
William L. Gausewitz
Greenberg Traurig, LLP
1201 K Street, Suite 1100
Sacramento, CA 95814
Andrea M. Kendrick
Office of the Attorney General
1300 I Street, Suite 125
Sacramento, CA 95814
DATE: 10/15/2021 MINUTE ORDER Page 7
DEPT: 53 Calendar No.
DECLARATION OF SERVICE BY E-MAIL and OVERNIGHT COURIER
Case Name: Fire Guard Corporation, et al. v. California Department of Forestry and Fire
Protection, et al.
Case No.: Sacramento County Superior Court Case No. 34-2019-00249221
I declare:
I am employed in the Office of the Attomey General, which is the office of a member of the
Califomia State Bar, at which member's direction this service is made. I am 18 years of age or
older and not a party to this matter; my business address is: 1300 I Street, Suite 125, P.O. Box
944255, Sacramento, CA 94244-2550. I am familiar with the business practice at the Office of
the Attomey General for collection and processing of correspondence for ovemight mail with
FedEx. In accordance with that practice, correspondence placed in the intemal mail collection
system at the Office of the Attomey General is deposited with the overnight courier that same
day in the ordinary course of business.
On October 27. 2021.1 served the attached [PROPOSED] ORDER DENYING PLAINTIFF
CALIFORNIA FIRE PROTECTION COALITION'S MOTION FOR SUMMARY
JUDGMENT AND/OR ADJUDICATION by transmitting a true copy via electronic mail. In
addition, I placed a true copy thereof enclosed in a sealed envelope, in the intemal mail system
of the Office of the Attorney General, for overnight delivery, addressed as follows:
SEE ATTACHED SERVICE LIST
Additionally, I caused a courtesy-copy to be transmitted via electronic mail to the following
addresses:
timothv(g),kassounilaw.com
I declare under penalty of perjury under the laws of the State of Califomia and the United States
of America the foregoing is true and correct and that this declaration was executed on
October 27, 2021, at Sacramento, California.
Rochelle Uda-Quillen
Declarant Signature
SA20I9300028
35602030 docx
Fire Guard Corporation, et al. v. California Department of Forestry and Fire Protection, et al.
Sacramento County Superior Court Case No. 34-2019-00249221
SERVED VIA EMAIL
Margaret Esquiroz, Esq.
4924 Balboa Boulevard, #500
Encino, CA 91316-3402
esquiroz(a),pm.me
Attorneys for California Fire Protection Coalition
William L. Gausewitz, Esq.
GREENBERG TRAURIG, LLP
1201 K Street, Suite 1100
Sacramento, CA 95814-3938
gausewitzb@Rtlaw.com
Attorneys for California Fire Protection Coalition
SERVED VIA FEDEX
Timothy V. Kassouni, Esq.
KASSOUNI LAW
455 Capitol Mall, Suite 604
Sacramento, CA 95814
Attorney for Fire Guard Corporation and Bahman Brian Shahangian
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1 ROB BONTA Attomey General of Califomia 2 RUSSELL B. HILDRETH Supervising Deputy Attomey General 3 ANDREA M . KENDRICK, State Bar No. 225688 COURTNEY S. COVINGTON, State Bar No. 259723 4 Deputy Attomeys General 1300 I Street, Suite 125 5 P.O. Box 944255 Sacramento, CA 94244-2550 6 Telephone: (916)210-7821 Fax: (916)327-2319 7 E-mail: Andrea.Kendrick@doj.ca.gov 8 Attorneys for Defendants 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SACRAMENTO 11 12 13 FIRE GUARD CORPORATION; Case No. 34-2019-00249221 BAHMAN BRIAN SHAHANGIAN, an 14 individual; and CALIFORNIA FIRE [Proposed] ORDER DENYING PROTECTION COALITION, a California PLAINTIFF CALIFORNIA FIRE 15 Corporation; and JUAN CARLOS DEL PROTECTION COALITION'S MOTION TORO TREJO, an individual,, FOR SUMMARY JUDGMENT AND/OR 16 ADJUDICATION Plaintiffs, 17 Date: October 13, 2021 Time: 1:30 p.m. 18 Dept: 53 Judge: Hon. Shama Mesiwala 19 CALIFORNIA DEPARTMENT OF Trial Date: December 5-9, 2022 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 [Proposed] Order Denying Plaintiff Califomia Fire Protection Coalition's MSJ and/or MSA (34-2019-00249221) 1 ORDER DENYING MOTION FOR SUMMARY JUDGMENT AND/OR ADJUDICATION 2 This matter was heard by the Court on October 13, 2021. Plaintiff Califomia Fire 3 Protection Coalition was represented by William Gausewitz of Greenberg Traurig, LLP. 4 Defendants Califomia Department of Forestry and Fire Protection; Califomia Office of the State 5 Fire Marshal; Mike Richwine, in his official capacity as State Fire Marshal; and Jeffrey Schwartz, 6 in his official capacity as Deputy State Fire Marshal, were represented by Andrea M. Kendrick of 7 the Califomia Office of the Attomey General. Having considered the parties' papers and 8 arguments and taken the matter under submission, the Court issued its Ruling on Submitted 9 Matter (Motion for Summary Judgment and/or Adjudication), which was entered into the Court's 10 Register of Actions for this matter on October 15, 2021, and is attached as Exhibit A and 11 incorporated by reference. 12 For the reasons stated in the Ruling on Submitted Matter, IT IS ORDERED that plaintiff 13 Califomia Fire Protection Coalition's Motion for Summary Judgment and/or Adjudication, is 14 denied. 15 16 Dated: HON. SHAMA MESIWALA 17 Judge of the Superior Court 18 19 APPROVED AS TO FORM: 20 21 Dated: Counsel for Plaintiff Califomia Fire 22 Protection Coalition 23 SA2019300028 24 35566883.docx 25 26 27 28 [Proposed] Order Denying Plaintiff Califomia Fire Protection Coalition's MSJ and/or MSA (34-2019-00249221) EXHIBIT A ^ JPERIOR COURT OF CALIFORNU, COUNTY OF SACRAMENTO GORDON D SCHABER COURTHOUSE MINUTE ORDER DATE: 10/15/2021 TIME: 01:30:00 PM DEPT: 53 JUDICIAL OFFICER PRESIDING: Shama Mesiwala CLERK: P. Lopez REPORTER/ERM: BAILIFF/COURT ATTENDANT: 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 APPEARANCES Nature of Proceeding: Ruling on Submitted Matter (Motion for Summary Judgment and/or Adjudication) Taken under submission on 10/13/21 TENTATIVE RULING Plaintiff California Fire Protection Coalition's ("CFPC") Motion for Summary Judgment/Summary Adjudication is denied. Plaintiffs Request for Judicial Notice is granted. The Court takes judicial notice of Exhibit A: California Assembly Bill 433 (Gordon), enacted in 2013 as Chapter 377, Statutes of 2013; Exhibit B: California Rule-making, Office of Administrative Law ("OAL") File # 2017-0209-02SR, March 24, 2017, which enacted the challenged regulations; Exhibit C: California Assembly Floor Analysis of AB 433 as amended on August 13, 2013; Exhibit D: California Senate Floor Analysis of AB 433 as amended on August 13, 2013. Plaintiff challenges regulations enacted by the Office of the State Fire Marshall ("OSFM") pursuant to Section 11350 of the California Government Code, which permits any interested person to obtain a judicial declaration as to the validity of any regulation. Plaintiff asserts that the regulations are not within the scope of authority conferred by statute and are not reasonably necessary to effectuate the purpose of AB 433. The regulations therefore violate sections 11342.1 and 11342.2 ofthe California Government Code. Plaintiff seeks an order granting summary judgment, or in the alternative, summary adjudication, with respect to its Complaint. However, the First Amended Complaint ("FAC") contains seven causes of action, and this motion addresses only the declaratory relief claims in the 6th and 7th cause of action. And, the separate statement addresses only the 6th cause of action. The motion for summary judgment is denied because the motion does not address all causes of action in the Complaint, only the 6th and 7th causes of action, and therefore the ruling on the motion would not dispose of the entire FAC. . In addition, because the separate statement only addresses the 6th cause of action, it violates CRC 3. 1350(b), which requires that a summary adjudication motion include each cause of action to be adjudicated in the notice of motion and in the separate statement. Since plaintiff did not comply with CRC 3. 1350(b) as to the 7th cause of action, because it was not mentioned in the separate statement. DATE: 10/15/2021 MINUTE ORDER Page 1 DEPT: 53 Calendar No. CASE TITLE: Fire Guard Corpo.^jon vs. California CASE NO. .^-2019-00249221-CU-CR-GDS Department of Forestry and Fire Protection this motion is considered only as a motion for summary adjudication ofthe 6th cause of action. The FAC challenges regulations adopted by Defendant Office of State Fire Marshal (OSFM). Plaintiff contends OSFM improperly seeks to regulate which persons may lawfully install water-based fire suppression systems. Plaintiffs contend that the challenged regulations are illegal and void because they are not within the scope of the OSFM regulatory authority. Plaintiff requests summary adjudication as follows: "6th cause of action : Plaintiff Is Entitled to Summary Adjudication of Plaintiffs 6th Cause of Action for Declaratory Relief Because There Are No Disputed Issues of Material Fact and Plaintiff Is Entitled to Judicial Declaration that the Challenged Regulations are not within the scope of regulatory authority conferred on Defendant by law. Specifically Plaintiff contends it is entitled to judgment as a matter of law that the Health and Safety Code authorizes the Office of State Fire Marshal ("OSFM") to regulate fire sprinkler equipment and the standards for installation and maintenance of that equipment. Neither the Health & Safety Code, nor any other law, authorizes OSFM to regulate the training, testing, or licensing of contractors who install fire sprinkler systems. Such regulations can only be, and have been, adopted by the Contractors State License Board. 7th cause of action: Plaintiff Is Entitled to Summary Judgment, or in the Alternative Summary Adjudication, as to Plaintiffs 7th Cause of Action for Declaratory Relief Because There Are No Disputed Issues of Material Fact and Plaintiff' Is Entitled to Judgment as a Matter of Law that the Challenged Regulafions are in conflict with the Business and Professions Code and are not reasonably necessary to efl'ectuate the purpose of the Code." The Court is not ruling on the 7th cause of action due to the failure to comply with CRC 3. 1350(b) Plainfiffs separate statement contains four UMFs, supported by plaintiffs request for judicial nofice. UMF 1. In 2013, California enacted AB 433 (Gordon, Statutes of 2013, Chapter 377). This legislafion modified the California Business and Professions Code relating to the Contractors State License Board, and the Health and Safety Code relating to the State Fire Marshal. UMF 2. On February 12, 2016, the Office of State Fire Marshal (OSFM) published a Nofice of Proposed Acfion to adopt regulafions under the purported authority of Health and Safety Code § 13110, another statute adopted by AB 433. These regulafions were adopted by OSFM and comprise Chapter 5.5 of Division 1 or Title 19 ofthe California Code of Regulafions. UMF 3. Since Health & Safety Code § 13110 does not grant express regulatory authority to OSFM to regulate the training and qualificafions of fire sprinkler installers, instead of or in addition to, the Contractors State License Board, it is appropriate for the court to examine extrinsic evidence. The best available extrinsic evidence ofthe intent ofthe Legislature in enacfing H&S § 13110 are the analyses of AB 433 (Gordon, 2013). UMF 4. In describing the effect of the bill on the regulatory authority granted to OSFM, the Senate Floor analysis says only that it "Authorizes the State Fire Marshall to propose, adopt and administer the regulations that he/she deems necessary in order to ensure fire safety in buildings and structures and requires those regulations be submitted to the BSC for approval, as specified." The analysis employs a somewhat imprecise statement that it authorizes regulafions relating to "buildings and structures" - the tradifional regulatory role of OSFM. Legal Standard DATE: 10/15/2021 MINUTE ORDER Page 2 DEPT: 53 Calendar No. CASE TITLE: Fire Guard Corpo,^..on vs. California CASE NO: . .-2019-00249221-CU-CR-GDS Department of Forestry and Fire Protection In evaluafing a motion for summary judgment or summary adjudicafion the court engages in a three step process. The Court first identifies the issues framed by the pleadings. The pleadings define the scope of the issues on a motion for summary judgment or summary adjudication. {FPl Dev. Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382). Because a motion for summary judgment or summary adjudicafion 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 mofion must be addressed to the claims and defenses raised in the pleadings. An issue that is "within the general area of issues framed by the pleadings" is properly before the court on a summary judgment or summary adjudication motion. {Lennar Northeast Partners v. Buice (1996) 49 Cal. App. 4th 1576, 1582-1583.) The Court cannot consider an unpleaded issue in ruling on mofion for summary judgment or adjudicafion. Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541. The papers filed in response to a defendant's mofion for summary judgment may not create issues outside the pleadings and are not a subsfitute for an amendment to the pleadings. Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342. Second, the Court is required to determine whether the moving party has met its burden. A defendant moving for summary judgment bears the burden of persuasion that one or more elements of the plaintiff's cause of acfion cannot be established, or that there is a complete defense to the cause of acfion. {Aguilar v. Atlantic Richfield Co. (2001) 25 Cal 4th 826, 850, quoting CCP §437c(p)(2)). A defendant is not required to conclusively negate one or more elements of the plaintiffs cause of action; {Saelzer v Advance, Group 400 (2001) 25 C4th 763, 780-781). Rather, to meet its burden, the defendant is required only to show that the plainfiff 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 V Atlantic Richfield Co., supra, 25 Cal 4th at pp. 853-855). Finally, once the moving party has met its burden, the burden shifts to the opposing party to show that a material factual issue exists as to the cause of acfion alleged or a defense to it. CCP 437c(p). (see, generally Bush v. Parents Without Partners (1993) 17 Cal. App. 4th 322, 326-327). "There is a genuine issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof." Aguilar v. Atlantic Richfield Co. (2001 )25Cal.4th 826, 845).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, 25 Cal.4th at p. 843.) The facts are not disputed in this case. Rather the issue to be resolved is a question of law. Argument Plaintiff seeks a declaration from the Court that the challenged regulations exceed the authority granted to OSFM by AB 433, and are therefore invalid, because they alter, amend, or enlarge the scope of Health and Safety Code § 13110. AB 433 provides: "Secfion 13110 is added to the Health and Safety Code, to read: 13110. (a) Notwithstanding any other provision of this part, the State Fire Marshal may propose, adopt, and administer the regulafions that he or she deems necessary in order to ensure fire safety in buildings and structures within this state including regulations related to construction, modification, Installation, testing, inspection, labeling, listing, certification, registration- licensing, reporting, operation, and maintenance. Regulafions that are building standards shall be submitted to the State Building Standards Commission for approval pursuant to Chapter 4 (commencing with Secfion 18935) of Part 2.5 of Division 13. (court's emphasis) The challenged regulafions comprise Chapter 5.5 of Division 1 of Title 19 of the California Code of DATE: 10/15/2021 MINUTE ORDER Page 3 DEPT: 53 Calendar No. CASE TITLE: Fire Guard Corpo._..on vs. California CASE NO: ^-,-2019-00249221-CU-CR-GDS Department of Forestry and Fire Protection Regulations. The challenged regulafions prohibit any person from engaging in "the installafion of water-based fire protecfion systems as defined in Section 924.12 without first being certified or registered in accordance with these regulafions and have obtained a certificafion or registrafion card issued by the Office ofthe State Fire Marshal" (19 CCR § 925). Under this regulafion, even an individual who holds a C-16 fire protecfion contractor's license from the Contractors State Licensing Board ("CSLB") is prohibited from installing a fire protecfion system if the individual does not also possess a certificafion from OSFM. Obtaining this OSFM certification requires complefion of training specified by OSFM (19 CCR § 939), passing a test created and administered by OSFM, and requires payment of one or more fees to OSFM (19 CCR § 925.1), and compliance with confinuing educafion requirements established by OSFM (19 CCR §946). OSFM regulations also require reporting of new hires to OSFM within 72 hours (19 CCR § 934. Judicial review of the validity of a regulafion under secfion 11350 is subject to de novo review." In the end, "[t]he court, not the agency, has 'final responsibility for the interpretafion of the law under which the regulation was issued'" (Citation omitted). We must conduct an independent examinafion to determine whether the agency '"reasonably interpreted the legislafive mandate' in enacfing the regulafion. (Citation omitted.)" California School Bds. Assn. v. State Bd. of Education (2010) 191 Cal.App.4th 530, 544. Although the regulation was approved by the California Office of Administrafive Law (OAL), the determinafion of whether the regulafion is within the authority of the statute may not consider this approval. Government Code § 11350(c) provides: "The approval of a regulafion or order of repeal by the office [OAL] or the Governor's overruling of a decision of the office disapproving a regulation or order of repeal shall not be considered by a court in any action for declaratory relief brought with respect to a regulation or order of repeal." Plaintiff contends OSFM's authority is limited to regulating the fire safety equipment and methods of installing that equipment. The Contractors State License Board (CSLB) on the other hand is argued to have sole authority to regulate who is legally permitted to perform installafion of such equipment. However, the OSFM's regulations provide " . . . a means to certify and register any person who installs, alters, repairs or adds appurtenances to such systems." By adopfing regulafions which regulate which persons are permitted to perform installation, Plaintiffs contend OSFM has assumed regulatory authority granted by law to CSLB, thus acfing outside the scope of its regulatory authority. A regulation cannot be adopted lawfully by a state government agency unless it is within the scope of the authority delegated to that agency by law. Government Code § 11342.1 provides, in pertinent part "Each regulation adopted, to be effecfive, shall be within the scope of authority conferred and in accordance with standards prescribed by other provisions of law." "[I]t is well established that the rulemaking power of an administrafive agency does not permit the agency to exceed the scope of authority conferred on the agency by the Legislature. (Citation omitted.) A ministerial officer may not... under the guise of a rule or regulafion vary or enlarge the terms of a legislative enactment or compel that to be done which lies without the scope of the statute; Agnew v. State Bd. of Equalization (1999) 21 Cal. 4th 310, 321. "[Ajn agency does not have discrefion to promulgate regulafions that are inconsistent with the governing statute, alter or amend the statute, or enlarge its scope." California School Bds. Assn. v. State Bd of Education (2010) 191 Cal.App.4th 530, 544." Administrafive agencies have only the powers conferred on them, either expressly or impliedly, by the Constitution or by statute, and administrative actions exceeding those powers are void." Terhune v. Superior Court (1998) 65 Cal.App.4th 864, 872. "[A]gencies do not have discretion to promulgate regulations that are inconsistent with the governing statute, or that alter or amend the statute or enlarge DATE: 10/15/2021 MINUTE ORDER Page 4 DEPT: 53 Calendar No. CASE TITLE: Fire Guard Corpo.^cton vs. California CASE NO: w^-2019-00249221-CU-CR-GDS Department of Forestry and Fire Protection its scope. Slocum v. State Bd. of Equalization (2005) 134 Cal.App.4th 969, 974 Plaintiff contends that the term "installation" in AB 433/H & S Code 13110 must be read to define standards for installafion of fire protecfion systems, such as considerations of the mechanics of installing a fire protecfion system into a structure. Plaintiff contends this term cannot reasonably be read to authorize OSFM to regulate which individuals may or may not engage in the installation of fire protecfion systems. Plainfiff contends that authority is clearly delegated to, and exercised by, CSLB pursuant to the Business and Professions Code. Similarly, Coalition contends neither the authority to regulate "licensing" or "certificafion" under H&S § 13110 provides authority to regulate who is or is not authorized to install fire sprinkler systems because the statute cannot reasonably be interpreted to authorize OSFM to adopt regulations governing any type of license or certificate. These terms may only be interpreted to permit OSFM to adopt such regulafions of licensing and certificafion which are within the scope of its overall statutory authority to ensure fire safety in buildings and structures. Plaintiff contends that because the statute does not provide explicit authority for OSFM to regulate licensing of fire protection contractors, the statute is "ambiguous" such that extrinsic evidence of legislafive intent is admissible to interpret the statute. UMFS 3 and 4 concern legislafive intent. Finally, plainfiff contends that since the challenged regulafions place OSFM in the position of determining who may perform "installation, alteration or repair of all water-based fire protection systems" (§ 923) they are inconsistent with the Business and Professions Code statute giving this authority to the CSLB. Since the APA requires that "no regulafion adopted is valid or effecfive unless consistent and not in conflict with the statute, and the challenged regulations are inconsistent and in conflict with sections 7008 and 7026.12 of the Business and Professions Code, plaintiff argues the challenged regulafions violate the APA and the challenged regulafions are therefore invalid. As noted above this argument concerns the 7th cause of acfion which the court is not ruling on due to the non compliance with CRC 3. 1350(b). In opposifion, defendants contend H&S § 13110 expressly authorizes the OSFM to establish a fire suppression certification program that requires a minimum training standard for those persons who install or work on fire suppression systems in California and develop a certification and registration program for those individual Fire Sprinkler Fitters who install automafic fire exfinguishing systems. Thus, OSFM contends the Regulations are squarely within the OSFM's statutory authority. Furthermore, although the CSLB regulates the C-16 Contractor who contracts to or offers to contract to design and have fire sprinkler systems installed, the CSLB does not have the authority to regulate whether the person who is performing the actual installafion of the automatic fire exfinguishing system has the adequate training and experience to do so. This is covered by the Regulations administered by the OSFM, which apply to individuals performing such installafion work, and thus do not conflict with the authority of the CSLB. A regulafion is presumed valid and the burden of demonstrafing invalidity is squarely on the challenger. {Association of California Insurance Companies v. Jones (2017) 2 Cal.5th 376, 389-390 (ACIC) ; Credit Ins. General Agents Assn. of California., Inc. v. Payne (1976) 16 Cal.3d 651, 657.) There are two categories of administrafive rules, quasi-legislafive rules and interprefive rules. {Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 10-11.) The Regulafions in this case are quasi-legislative rules because they are the product of a delegated legislative power conferred on the State Fire Marshal by H&S § 13110. (See ibid.) In reviewing a quasi-legislafive rule, a court must determine whether in promulgafing the rule, the agency acted within the bounds of its statutory mandate, and, if so, whether the regulation is reasonably necessary to effectuate the purpose of the statute. {Yamaha, supra, 19 Cal.4th at pp. 10-11. See also Gov. Code, § 11342.2 [using same standard].) In doing so, a court may not subsfitute its independent judgment for that of the administrafive agency on the facts or on the policy considerations involved. {Credit Ins. General Agents Assn., supra, 16 Cal.3d at p. 657.) DATE: 10/15/2021 MINUTE ORDER Page 5 DEPT: 53 Calendar No. CASE TITLE: Fire Guard Corpo.^don vs. California CASE NO: ^.-2019-00249221-CU-CR-GDS Department of Forestry and Fire Protecfion "If safisfied that the rule in question lay within the lawmaking authority delegated by the Legislature, and that it is reasonably necessary to implement the purpose of the statute, judicial review is at an end.'" (>AC/C, supra, 2 Cal.5th at p. 397, quofing Yamaha, supra, 19 Cal.4th at 8 pp. 10-11.) When a regulation is challenged on the ground that it is not reasonably necessary to effectuate the purpose of the statute, the court's inquiry is confined to whether the rule is arbitrary, capricious, or without rafional basis and whether substanfial evidence supports the agency's determinafion that the rule is reasonably necessary. {Western States Petroleum Assn. v. Board of Equalization (2013) 57 Cal.4th 401, 415, cifing Yamaha, supra, 19 Cal.4th at p. 11 & fn. 4 and Gov. Code, § 11350, subd. (b)(1). Plaintiff has presented no evidence on this issue of whether the rule was reasonably necessary under 11342.2 of the California Government Code. In reply, plaintiff states it would be fully safisfied with an order which ignored the necessity requirement of Gov. Code § 11342.2 and invalidated the regulafions solely for their failure to meet the authority requirement of § 11342.1 OSFM contends that the language of Health and Safety Code 13110 does not limit the State Fire Marshal's discrefion to determine what regulafions he or she deems necessary to ensure fire safety in buildings and structures within the state including regulafions related to construcfion, registrafion, licensing, reporting, operafion, and maintenance. Defendants point out that AB 433 amends four statutes, three of which concern changes to the contractors state license law regarding the installation of fire sprinklers and one of which concerns the addifion of H&S 13110 regarding the general authority of the OSFM to propose and adopt regulafions regarding fire safety). The fact that all four amendments are in the same bill shows that the Legislature intended to grant simultaneous authority to both the CSLB and the OSFM. Rather than restricfing the OSFM's authority, as the Coalition suggests, AB 433 confirms that the CSLB and the OSFM administer dual oversight for fire safety through complementary regulatory programs. The Court rejects plaintiff's reply argument that because § 13110 lists several general and undefined subjects but it does not list "training standards" or "installafion fitters" that the regulafions go beyond the authority granted by statute. The Court finds that the grant of authority in H&S code H&S § 13110 to regulate certification and licensing of fire safety installafion is unambiguous. Plaintiff has failed to persuade the Court that the regulation is void because it goes beyond the authority provided by statute. Plaintiff has also failed to meet its burden to show that the regulations are not necessary and not reasonably designed to aid a statutory objective. {Samantha C, supra, 185 Cal.App.4th at p. 1482.) The courts defer to the agency expertise on such matters and will not impose their own policy judgments on the agency unless the agency decision is arbitrary and capricious. {Id. at pp. 1482-1483.) The motion for summary judgment/summary adjudication is denied. The prevailing party is directed to prepare a formal order complying with C.C.P. §437c(g) and C.R.C. Rule 3.1312. COURT RULING The matter was argued and submitted. The matter was taken under submission. DATE: 10/15/2021 MINUTE ORDER Page 6 DEPT: 53 Calendar No. CASE TITLE: Fire Guard Corpo.^..on vs. California CASE NO: ^ .'2019-00249221-CU-CR-GDS Department of Forestry and Fire Protecfion SUBMITTED MATTER RULING Having taken the matter under submission on 10/13/21, the Court now rules as follows: The Court affirmed the tentative ruling. CC William L. Gausewitz Greenberg Traurig, LLP 1201 K Street, Suite 1100 Sacramento, CA 95814 Andrea M. Kendrick Office of the Attorney General 1300 I Street, Suite 125 Sacramento, CA 95814 DATE: 10/15/2021 MINUTE ORDER Page 7 DEPT: 53 Calendar No. DECLARATION OF SERVICE BY E-MAIL and OVERNIGHT COURIER Case Name: Fire Guard Corporation, et al. v. California Department of Forestry and Fire Protection, et al. Case No.: Sacramento County Superior Court Case No. 34-2019-00249221 I declare: I am employed in the Office of the Attomey General, which is the office of a member of the Califomia State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter; my business address is: 1300 I Street, Suite 125, P.O. Box 944255, Sacramento, CA 94244-2550. I am familiar with the business practice at the Office of the Attomey General for collection and processing of correspondence for ovemight mail with FedEx. In accordance with that practice, correspondence placed in the intemal mail collection system at the Office of the Attomey General is deposited with the overnight courier that same day in the ordinary course of business. On October 27. 2021.1 served the attached [PROPOSED] ORDER DENYING PLAINTIFF CALIFORNIA FIRE PROTECTION COALITION'S MOTION FOR SUMMARY JUDGMENT AND/OR ADJUDICATION by transmitting a true copy via electronic mail. In addition, I placed a true copy thereof enclosed in a sealed envelope, in the intemal mail system of the Office of the Attorney General, for overnight delivery, addressed as follows: SEE ATTACHED SERVICE LIST Additionally, I caused a courtesy-copy to be transmitted via electronic mail to the following addresses: timothv(g),kassounilaw.com I declare under penalty of perjury under the laws of the State of Califomia and the United States of America the foregoing is true and correct and that this declaration was executed on October 27, 2021, at Sacramento, California. Rochelle Uda-Quillen Declarant Signature SA20I9300028 35602030 docx Fire Guard Corporation, et al. v. California Department of Forestry and Fire Protection, et al. Sacramento County Superior Court Case No. 34-2019-00249221 SERVED VIA EMAIL Margaret Esquiroz, Esq. 4924 Balboa Boulevard, #500 Encino, CA 91316-3402 esquiroz(a),pm.me Attorneys for California Fire Protection Coalition William L. Gausewitz, Esq. GREENBERG TRAURIG, LLP 1201 K Street, Suite 1100 Sacramento, CA 95814-3938 gausewitzb@Rtlaw.com Attorneys for California Fire Protection Coalition SERVED VIA FEDEX Timothy V. Kassouni, Esq. KASSOUNI LAW 455 Capitol Mall, Suite 604 Sacramento, CA 95814 Attorney for Fire Guard Corporation and Bahman Brian Shahangian