Preview
FiLED
1 XAVIER BECERRA ENDORSED
Attomey General of Califomia
2 TRACY L . WINSOR 2019 FEB-1 AH6:ij3
Supervising Deputy Attomey General
3 ANDREA M . KENDRICK, State Bar No. 225688 iUPEniOR COURT OF CALIFORNIA
COURTNEY S. COVINGTON, State Bar. No. 259723 COUNTY OF SACRAfiEHTO
4 Deputy Attomeys General
1300 I Street, Suite 125
5 P.O. Box 944255
Sacramento, CA 94244-2550
6 Telephone: (916)210-7791
Fax: (916)327-2319
7 E-mail: Courtney.Covington@doj.ca.gov Exempt from filing fee under
Attorneys for Defendants Government Code section 6103
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF SACRAMENTO
11
12
FIRE GUARD CORPORATION; Case No. 34-2019-00249221
13 BAHMAN BRIAN SHAHANGIAN, an
individual; and CALIFORNIA FIRE DEFENDANTS' OPPOSITION TO E X
14 PROTECTION COALITION, a California PARTE APPLICATION FOR
Corporation, TEMPORARY RESTRAINING ORDER
15
Plaintiffs, Date: Febmary 1, 2019
16 Time: 9:00 a.m.
Dept: 53
17 Judge: Honorable David I . Brown
Trial Date: None set
18 CALIFORNIA DEPARTMENT OF Action Filed: January 25, 2019
FORESTRY AND FIRE PROTECTION;
19 CALIFORNIA OFFICE OF THE STATE
FIRE MARSHAL; DENNIS MATHISEN, in
20 his official capacity as State Fire Marshal;
JEFFREY SCHWARTZ, in his official
21 capacity as Deputy State Fire Marshal; and
DOES 1 through 10, inclusive.
22
Defendants.
23
24
25
26
27
28
I
Defendants' Opposition to Ex Parte Application for TRO (34-2019-00249221)
1 INTRODUCTION
2 Plaintiffs Fire Guard Corporation, Bahman Brian Shahangian, and Califomia Fire
3 Protection Coalition asli this Court, on an ex parte basis, to issue a Temporary Restraining Order
4 (TRO) to prevent the Office of the State Fire Marshall of the Califomia Department of Forestry
5 and Fire Protection (Fire Marshal) from enforcing regulations that prohibit the installation,
6 alteration, or repair of water-based automatic fire extinguishing systems, without first complying
7 with the certification requirements ofthe Califomia Code of Regulations, title 19, sections 920-
g 948 (hereafter, Regulations.) The Regulations became effective over a year and a half ago, on
9 July 1,2017, and provide for gradual implementation of certification requirements. The third and
20 final deadline under the Regulations' implementation schedule was January 1,2019. Plaintiffs
1\ purport to seek an emergency injunction to stay the enforcement of these Regulations. As
12 explained below, Plaintiffs provide no proper basis for issuance of an ex parte TRO and no reason
12 Plaintiffs' request for relief cannot be heard pursuant to a regularly noticed motion.
14 Plaintiffs' requested relief is barred for at least three reasons: (1) the balance of the harms
15 weighs in favor of enforcing the regulations; (2) the proposed temporary restraining
16 order/preliminary injunction does not preserve the status quo; and (3) injunctions purporting to
17 prevent public officials from the lawful exercise of their statutory duties are improper. For these
1g reasons, the Court should deny plaintiffs' ex parte request.
19 FACTUAL BACKGROUND
20 I. T H E REGULATIONS
21 The Fire Marshal developed regulations, which went into effect on July 1, 2017, requiring
22 Automatic Fire Extinguishing Sprinkler Pipefitters to be certified by the Fire Marshal. The
23 regulations require anyone who installs, alters, or repairs water-based fire protection systems to
24 possess the necessary skills and qualifications to safely and properly install the system so that it
25 will be operable when it is needed.' (See Cal. Code Regs., tit. 19, § 923, subd. (a).) The
26 regulations were promulgated by the Fire Marshal pursuant to its authority under Health and
27 ' Certain installation or repair work on water-based fire protection systems, not relevant to
the issues here, is excluded fi-om the certification requirements. (See Cal. Code Regs., tit. 19, §
28 923, subd. (a)(l)-(3).)
2
Defendants' Opposition to Ex Parte Application for TRO (34-2019-00249221)
1 , Safety Code section 13110, which authorizes the Fire Marshal to "propose, adopt, and administer
2 the regulations that he or she deems necessary to ensure fire safety in buildings and structures
3 within this state."
4 II. ADMINISTRATIVE PROCESS, PUBLIC PARTICIPATION, AND NOTICE OF T H E
REGULATIONS
5
6 Beginning in 2016, the Fire Marshal engaged in an extensive public consultation process to
7 develop the final Regulations. The Fire Marshal published notice of the proposed mlemaking in
8 the Califomia Regulatory Notice Register and on its website on Febmary 12,2016. (Declaration
9 of Daniel Berlant [Berlant Decl.], H 2.) Following that publication, the Fire Marshal held a 45-
10 day comment period, a public hearing, and two additional 15-day comment periods. (Berlant
11 Deck, at IfTI 3-6.) The Fire Marshal also obtained a list of all C-16 license holders fi-om the
12 Contractors State License Board and provided for mailed notice of the proposed mlemaking and
13 the initial 45-da.y public comment period to all C-16 license holders, including Plaintiff Fire
14 Guard Corporafion. (Berlant Deck, at |15.) The Fire Marshal received over 200 comments
15 during the public participation process. (Ibid.)
16 Following the Office of Administrative Law approval ofthe Regulations, the Fire Marshal
17 issued Information Bulletin 17-002, 'TSfEW Automatic Fire Extinguishing Systems Certification
18 (Water-Based Fire Protection) CCR, Titie 19, Division 1, Chapter 5.5" on May 25, 2017.
19 (Berlant Deck, ^11.) This Information Bulletin explained the requirements of the Regulations,
20 the implementation periods, and that they would become effective on July 1, 2017. (Ibid.)
21 Information Bulletin 17-002 has been posted on the official website for the Office of the State
22 Fire Marshal since May 25, 2017, and is currently posted there. (Ibid.) Additionally, the Fire
23 Marshal provided for the mailing of Information Bulletin 17-002 to all C-16 license holders. (Id.
24 a t l 16.)
25 III. T H E REGULATIONS' IMPLEMENTATION PERIODS AND NOTICE THEREOF
26 The Regulations provide for gradual implementation of certification requirements on a
27 rollmg basis. Under the Regulations' implementation schedule, December 31, 2017, was the
28 deadline for fire sprinkler fitters already in possession of an active C-16 license to meet the
3
Defendants' Opposition to Ex Parte Application for TRO (34-2019-00249221)
1 minimum qualifications for certification under the Regulations without taking the certification
2 examination. (Cal. Code Regs., tit. 19, § 947, subd. (a)(1).) This six-month period from July 1,
3 2017 to December 31, 2017, effectively provided a "grandfathering" opportunity for holders of
4 active C-16 licenses to demonstrate compliance with the Regulations without taking an
5 examination. (Berlant Deck, at ^ 8.) The second deadline under the Regulations' implementation
6 schedule was July 1, 2018, after which certified sprinkler fitters were required to possess a
7 certification card and at least one sprinkler fitter certified under the Regulations was required on
8 each job site. (Cal. Code Regs., tit. 19, § 947, subd. (c).) (Beriant Deck, at H 9.) The third and
9 fmal deadline under the Regulations' implementation schedule was January 1, 2019, after which
10 all persons performing installation, alteration, or repair of water-based fire protection systems are
11 required to possess a certification or registration card under the Regulations. (Cal. Code Regs.,
12 tit. 19, § 947, subd. (d).) (Beriant Deck, at f 10.)
13 As the Regulations' requirements came into effect, the Fire Marshal issued three more
14 Informational Bulletins regarding the Regulations. (Berlant Deck, at 12-14.) All Information
15 Bulletins regarding the New Automatic Fire Extinguishing Systems Certification were posted on
16 the Fire Marshal's website when issued and are currentiy posted there. (Berlant Deck, at HH 11-
17 14.) The Fire Marshal also conducted outreach presentations to numerous agencies and trade
18 organizations, including the American Fire Sprinkler Association and the Fire Prevention Officers
19 Association. (Berlant Deck, at H 17.)
20 ARGUMENT
21 I. T H E BALANCE OF HARMS FAVORS T H E F I R E MARSHAL, NOT PLAINTIFFS
22 An injunction is an extraordinary remedy, issuance of which requires that plaintiffs
23 establish likely irreparable injury and the inadequacy of other remedies at law. (Code Civ. Proc,
24 § 526; Tahoe Keys Prop. Owners'Assn., v. State Water Resources Control Bd. (1994) 23
25 Cal.App.4th 1459,1470-1471.) Irreparable injury is "the threshold requirement" of preliminary
26 injunctive relief, including temporary restraining orders of the kind plaintiffs seek here. (Costa
27 Mesa City Employees' Ass 'n v. City of Costa Mesa (2012) 209 Cal.App.4th 298, 306.) Plaintiffs
28 •
Defendants' Opposition to Ex Parte Application for TRO (34-2019-00249221)
1 do not make this showing, and on this basis alone, the requested injunctive relief cannot be
2 granted.
3 A. Plaintiffs Make No Showing of Irreparable Harm
4 In support of their application for a TRO, plaintiffs offer the declarations of Plaintiff
5 Bahman Brian Shahangian and 22 other C-16 license holders. However, the only evidence
6 suggestive of any harm suffered by the Plaintiffs is Mr. Shahangian's statement that plaintiff Fire
7 Guard has "been subject to a stop work notice on a project." (Declaration of Bahman Brian
8 Shahangian 118.) Mr. Shahangian does not identify any actual or threatened harm as a result of
9 the "stop work notice." (Ibid.) Although he claims an "inability to obtain the necessary
10 inspections fi-om the city and completing the project," he does not provide any evidence of harm,
11 whether physical, monetary, or otherwise, that has occurred or will occur in the absence of a
12 TRO. (Ibid.) At most, Mr. Shahangian's declaration supports an inference of a potential
13 constmction project delay, which does not rise to the level of irreparable harm sufficient to
14 warrant issuance of a TRO.
15 The remaining 22 form declarations contain identical language and state only that the
16 declarant did not receive mail notifying him or her regarding the Regulations, and if the declarant
17 had received such mailed notice he or she would have utilized the "grandfathering" provisions of
18 the Regulations. (Declaration of Victor Lalezari and Other C-16 License Holders.) The
19 declarations contain no evidence of harm in the absence of a TRO, and thus are irrelevant to the
20 instant Application for TRO.
21 B. Any Purported Irreparable Injury to Plaintiffs Is Outweighed By the
Harm to the Office of the Fire Marshal and to the Public
22 ^
23 The Fire Marshal has an interest in and is responsible for protecting the public and ensuring
24 fire safety in buildings and stmctures within this state. (Health & Saf Code, § 13110.) The
25 purpose of the Regulations "is to improve the performance and reliability of water-based fire
26 protection systems by providing a means to certify and register any person who installs, alters,
27 repairs, or adds appurtenances to such systems." (Cal. Code Regs., tit. 19, § 922.) Plaintiffs'
28
5
Defendants' Opposition to Ex Parte Application for TRO (34-2019-00249221)
1 request to halt any effort by the Office of the Fire Marshal to protect the public through the
2 enforcement of the Regulations ignores the public's and the Fire Marshal's substantial interest in
3 fire safety in buildings and stmctures in Califomia.
4 As discussed above, the extraordinary remedy of injunctive relief must be supported by a
5 showing of irreparable injury, which plaintiffs have failed to make. Given the threat of harm to
6 the public if enforcement of the Regulations is enjoined, the balance of harms supports denial of
7 tiie TRO.
8 Furthermore, to enjoin enforcement of the Regulations now would be imfair to the
9 numerous other fire sprinklerfitterssubject to the Regulations who, unlike plaintiffs, have timely
10 complied with the requirements.
11 Because plaintiffs' purported harm is outweighed by the harm to the Office of the Fire
12 Marshal, the public, and others, plaintiffs do not satisfy the stringent requirements to establish
13 irreparable injury necessary to grant preliminary injunctive relief, and plaintiffs' application for a
14 ternporary restraining order must be denied.
15 II. T H E PROPOSED TRO DOES NOT PRESERVE THE STATUS Quo
16 The purpose of a temporary restraining order is to preserve the status quo pending an
17 evidentiary hearing. (Scripps Health v. Marin (1999) 72 Cal.App.4th 324, 334.) Here, plaintiffs
18 seek a TRO that stays the operation and enforcement ofthe Regulations. (Plfs' Proposed Order.)
19 But the Regulations have been in effect for over a year and a half, having been implemented on a
20 rolling basis since July 1, 2017. (See Berlant Decl. H 8-10.) Plaintiffs had ample opportunity to
21 inform themselves of the regulatory requirements and/or challenge the Regulations and seek
22 injunctive relief at £iny point once the Regulations became effective, but only did so after the
23 Regulations' final implementation deadline. The Court should preserve the status quo and deny
24 the TRO.
25 III. PLAINTIFFS IMPROPERLY SEEK TO ENJOIN THE OFFICE OF THE FIRE MARSHAL
FROM THE EXERCISE OF ITS OFFICIAL DUTIES
26
27 Plaintiffs seek to enjoin the Fire Marshal and its officials from performing any actions to
28 enforce the Regulations. But applicable law counsels against enjoining public officers or
6
Defendants' Opposition to Ex Parte Application for TRO (34-2019-00249221)
1 agencies from performing their duties. (See Code Civ. Proc, § 526, subds. (b)(4) & (6)
2 [injunction improper when sought to prevent public officer from lawful exercise of his or her
3 office or execution of statute for public benefit]; Civ. Code, § 3423, subd. (d) [same]; see also
4 People ex rel. Younger v. F. E. Crites, Inc. (1975) 51 Cal.App.3d 961, 966 [equitable relief
5 inappropriate to enjoin public officials performing official acts]; Agricultural Labor Relations Bd.
6 V. Superior Court (1976) 16 Cal.3d 392, 401 [same].) Accordingly, a request seeking such relief
7 against public entities requires a "significant showing of irreparable injury." (Tahoe Keys
8 Property Owners' Assn. v. State Water Resources Control Board (1994) 23 Cal.App.4th 1459,
9 1471.) Plaintiffs have made no such showing here. Accordingly, the request for the extreme
10 remedy of an injimction against a public entity and its officials should be denied.
11 CONCLUSION
12 For the reasons discussed herein, defendants respectfully request that the ex parte
13 application for TRO and order to show cause be denied.
14
15
16
Dated: January 31, 2019 Respectfully Submitted,
17
XAVIER BECERRA
18 Attomey General of Califomia
TRACY L . WINSOR
19 Supervising Deputy Attomey General
20
21
22 COURTNEY S. COVINGTON
ANDREA M. KENDRICK
23 Deputy Attomeys General
Attorneys for Plaintiffs
24
SA2019300028
25 33764707.docx
26
27
28
Defendants' Opposition to Ex Parte Application for TRO (34-2019-00249221)
DECLARATION OF PERSONAL SERVICE
Case Name: Fire Guard Corporation; et ai v. CA Department of Forestry and Fire
Protection, et al.
Case No.: Sacramento County Superior Court no. 34-2019-00249221
1 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.
On February 1.2019.1 served the attached DEFENDANTS' OPPOSITION TO EX PARTE
APPLICATION FOR TEMPORARY RESTRAINING ORDER and DECLARATION OF
DANIEL BERLANT IN OPPOSITION TO PLAINTIFFS' EX PARTE APPLICATION
FOR TEMPORARY RESTRAINING ORDER by personally delivering a tme copy thereof to
the following person(s):
Timothy V. Kassouni
Kassouni Law
621 Capital Mall, ST. 2025
Sacramento, CA 95814
Attorneys for Plaintiffs Fire Guard
Corporation, Bahaman Brian Shahangian,
and California Fire Protection Coaltion
I declare under penalty of perj ury under the laws of the State of Califomia the foregoing is true
and correct and that this declaration was executed on Febmary 1, 2019, at Sacramento,
Califomia.
Courtney Covington
Declarant
•SA2019300028
3376724 l.docx
Preview
FiLED 1 XAVIER BECERRA ENDORSED Attomey General of Califomia 2 TRACY L . WINSOR 2019 FEB-1 AH6:ij3 Supervising Deputy Attomey General 3 ANDREA M . KENDRICK, State Bar No. 225688 iUPEniOR COURT OF CALIFORNIA COURTNEY S. COVINGTON, State Bar. No. 259723 COUNTY OF SACRAfiEHTO 4 Deputy Attomeys General 1300 I Street, Suite 125 5 P.O. Box 944255 Sacramento, CA 94244-2550 6 Telephone: (916)210-7791 Fax: (916)327-2319 7 E-mail: Courtney.Covington@doj.ca.gov Exempt from filing fee under Attorneys for Defendants Government Code section 6103 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SACRAMENTO 11 12 FIRE GUARD CORPORATION; Case No. 34-2019-00249221 13 BAHMAN BRIAN SHAHANGIAN, an individual; and CALIFORNIA FIRE DEFENDANTS' OPPOSITION TO E X 14 PROTECTION COALITION, a California PARTE APPLICATION FOR Corporation, TEMPORARY RESTRAINING ORDER 15 Plaintiffs, Date: Febmary 1, 2019 16 Time: 9:00 a.m. Dept: 53 17 Judge: Honorable David I . Brown Trial Date: None set 18 CALIFORNIA DEPARTMENT OF Action Filed: January 25, 2019 FORESTRY AND FIRE PROTECTION; 19 CALIFORNIA OFFICE OF THE STATE FIRE MARSHAL; DENNIS MATHISEN, in 20 his official capacity as State Fire Marshal; JEFFREY SCHWARTZ, in his official 21 capacity as Deputy State Fire Marshal; and DOES 1 through 10, inclusive. 22 Defendants. 23 24 25 26 27 28 I Defendants' Opposition to Ex Parte Application for TRO (34-2019-00249221) 1 INTRODUCTION 2 Plaintiffs Fire Guard Corporation, Bahman Brian Shahangian, and Califomia Fire 3 Protection Coalition asli this Court, on an ex parte basis, to issue a Temporary Restraining Order 4 (TRO) to prevent the Office of the State Fire Marshall of the Califomia Department of Forestry 5 and Fire Protection (Fire Marshal) from enforcing regulations that prohibit the installation, 6 alteration, or repair of water-based automatic fire extinguishing systems, without first complying 7 with the certification requirements ofthe Califomia Code of Regulations, title 19, sections 920- g 948 (hereafter, Regulations.) The Regulations became effective over a year and a half ago, on 9 July 1,2017, and provide for gradual implementation of certification requirements. The third and 20 final deadline under the Regulations' implementation schedule was January 1,2019. Plaintiffs 1\ purport to seek an emergency injunction to stay the enforcement of these Regulations. As 12 explained below, Plaintiffs provide no proper basis for issuance of an ex parte TRO and no reason 12 Plaintiffs' request for relief cannot be heard pursuant to a regularly noticed motion. 14 Plaintiffs' requested relief is barred for at least three reasons: (1) the balance of the harms 15 weighs in favor of enforcing the regulations; (2) the proposed temporary restraining 16 order/preliminary injunction does not preserve the status quo; and (3) injunctions purporting to 17 prevent public officials from the lawful exercise of their statutory duties are improper. For these 1g reasons, the Court should deny plaintiffs' ex parte request. 19 FACTUAL BACKGROUND 20 I. T H E REGULATIONS 21 The Fire Marshal developed regulations, which went into effect on July 1, 2017, requiring 22 Automatic Fire Extinguishing Sprinkler Pipefitters to be certified by the Fire Marshal. The 23 regulations require anyone who installs, alters, or repairs water-based fire protection systems to 24 possess the necessary skills and qualifications to safely and properly install the system so that it 25 will be operable when it is needed.' (See Cal. Code Regs., tit. 19, § 923, subd. (a).) The 26 regulations were promulgated by the Fire Marshal pursuant to its authority under Health and 27 ' Certain installation or repair work on water-based fire protection systems, not relevant to the issues here, is excluded fi-om the certification requirements. (See Cal. Code Regs., tit. 19, § 28 923, subd. (a)(l)-(3).) 2 Defendants' Opposition to Ex Parte Application for TRO (34-2019-00249221) 1 , Safety Code section 13110, which authorizes the Fire Marshal to "propose, adopt, and administer 2 the regulations that he or she deems necessary to ensure fire safety in buildings and structures 3 within this state." 4 II. ADMINISTRATIVE PROCESS, PUBLIC PARTICIPATION, AND NOTICE OF T H E REGULATIONS 5 6 Beginning in 2016, the Fire Marshal engaged in an extensive public consultation process to 7 develop the final Regulations. The Fire Marshal published notice of the proposed mlemaking in 8 the Califomia Regulatory Notice Register and on its website on Febmary 12,2016. (Declaration 9 of Daniel Berlant [Berlant Decl.], H 2.) Following that publication, the Fire Marshal held a 45- 10 day comment period, a public hearing, and two additional 15-day comment periods. (Berlant 11 Deck, at IfTI 3-6.) The Fire Marshal also obtained a list of all C-16 license holders fi-om the 12 Contractors State License Board and provided for mailed notice of the proposed mlemaking and 13 the initial 45-da.y public comment period to all C-16 license holders, including Plaintiff Fire 14 Guard Corporafion. (Berlant Deck, at |15.) The Fire Marshal received over 200 comments 15 during the public participation process. (Ibid.) 16 Following the Office of Administrative Law approval ofthe Regulations, the Fire Marshal 17 issued Information Bulletin 17-002, 'TSfEW Automatic Fire Extinguishing Systems Certification 18 (Water-Based Fire Protection) CCR, Titie 19, Division 1, Chapter 5.5" on May 25, 2017. 19 (Berlant Deck, ^11.) This Information Bulletin explained the requirements of the Regulations, 20 the implementation periods, and that they would become effective on July 1, 2017. (Ibid.) 21 Information Bulletin 17-002 has been posted on the official website for the Office of the State 22 Fire Marshal since May 25, 2017, and is currently posted there. (Ibid.) Additionally, the Fire 23 Marshal provided for the mailing of Information Bulletin 17-002 to all C-16 license holders. (Id. 24 a t l 16.) 25 III. T H E REGULATIONS' IMPLEMENTATION PERIODS AND NOTICE THEREOF 26 The Regulations provide for gradual implementation of certification requirements on a 27 rollmg basis. Under the Regulations' implementation schedule, December 31, 2017, was the 28 deadline for fire sprinkler fitters already in possession of an active C-16 license to meet the 3 Defendants' Opposition to Ex Parte Application for TRO (34-2019-00249221) 1 minimum qualifications for certification under the Regulations without taking the certification 2 examination. (Cal. Code Regs., tit. 19, § 947, subd. (a)(1).) This six-month period from July 1, 3 2017 to December 31, 2017, effectively provided a "grandfathering" opportunity for holders of 4 active C-16 licenses to demonstrate compliance with the Regulations without taking an 5 examination. (Berlant Deck, at ^ 8.) The second deadline under the Regulations' implementation 6 schedule was July 1, 2018, after which certified sprinkler fitters were required to possess a 7 certification card and at least one sprinkler fitter certified under the Regulations was required on 8 each job site. (Cal. Code Regs., tit. 19, § 947, subd. (c).) (Beriant Deck, at H 9.) The third and 9 fmal deadline under the Regulations' implementation schedule was January 1, 2019, after which 10 all persons performing installation, alteration, or repair of water-based fire protection systems are 11 required to possess a certification or registration card under the Regulations. (Cal. Code Regs., 12 tit. 19, § 947, subd. (d).) (Beriant Deck, at f 10.) 13 As the Regulations' requirements came into effect, the Fire Marshal issued three more 14 Informational Bulletins regarding the Regulations. (Berlant Deck, at 12-14.) All Information 15 Bulletins regarding the New Automatic Fire Extinguishing Systems Certification were posted on 16 the Fire Marshal's website when issued and are currentiy posted there. (Berlant Deck, at HH 11- 17 14.) The Fire Marshal also conducted outreach presentations to numerous agencies and trade 18 organizations, including the American Fire Sprinkler Association and the Fire Prevention Officers 19 Association. (Berlant Deck, at H 17.) 20 ARGUMENT 21 I. T H E BALANCE OF HARMS FAVORS T H E F I R E MARSHAL, NOT PLAINTIFFS 22 An injunction is an extraordinary remedy, issuance of which requires that plaintiffs 23 establish likely irreparable injury and the inadequacy of other remedies at law. (Code Civ. Proc, 24 § 526; Tahoe Keys Prop. Owners'Assn., v. State Water Resources Control Bd. (1994) 23 25 Cal.App.4th 1459,1470-1471.) Irreparable injury is "the threshold requirement" of preliminary 26 injunctive relief, including temporary restraining orders of the kind plaintiffs seek here. (Costa 27 Mesa City Employees' Ass 'n v. City of Costa Mesa (2012) 209 Cal.App.4th 298, 306.) Plaintiffs 28 • Defendants' Opposition to Ex Parte Application for TRO (34-2019-00249221) 1 do not make this showing, and on this basis alone, the requested injunctive relief cannot be 2 granted. 3 A. Plaintiffs Make No Showing of Irreparable Harm 4 In support of their application for a TRO, plaintiffs offer the declarations of Plaintiff 5 Bahman Brian Shahangian and 22 other C-16 license holders. However, the only evidence 6 suggestive of any harm suffered by the Plaintiffs is Mr. Shahangian's statement that plaintiff Fire 7 Guard has "been subject to a stop work notice on a project." (Declaration of Bahman Brian 8 Shahangian 118.) Mr. Shahangian does not identify any actual or threatened harm as a result of 9 the "stop work notice." (Ibid.) Although he claims an "inability to obtain the necessary 10 inspections fi-om the city and completing the project," he does not provide any evidence of harm, 11 whether physical, monetary, or otherwise, that has occurred or will occur in the absence of a 12 TRO. (Ibid.) At most, Mr. Shahangian's declaration supports an inference of a potential 13 constmction project delay, which does not rise to the level of irreparable harm sufficient to 14 warrant issuance of a TRO. 15 The remaining 22 form declarations contain identical language and state only that the 16 declarant did not receive mail notifying him or her regarding the Regulations, and if the declarant 17 had received such mailed notice he or she would have utilized the "grandfathering" provisions of 18 the Regulations. (Declaration of Victor Lalezari and Other C-16 License Holders.) The 19 declarations contain no evidence of harm in the absence of a TRO, and thus are irrelevant to the 20 instant Application for TRO. 21 B. Any Purported Irreparable Injury to Plaintiffs Is Outweighed By the Harm to the Office of the Fire Marshal and to the Public 22 ^ 23 The Fire Marshal has an interest in and is responsible for protecting the public and ensuring 24 fire safety in buildings and stmctures within this state. (Health & Saf Code, § 13110.) The 25 purpose of the Regulations "is to improve the performance and reliability of water-based fire 26 protection systems by providing a means to certify and register any person who installs, alters, 27 repairs, or adds appurtenances to such systems." (Cal. Code Regs., tit. 19, § 922.) Plaintiffs' 28 5 Defendants' Opposition to Ex Parte Application for TRO (34-2019-00249221) 1 request to halt any effort by the Office of the Fire Marshal to protect the public through the 2 enforcement of the Regulations ignores the public's and the Fire Marshal's substantial interest in 3 fire safety in buildings and stmctures in Califomia. 4 As discussed above, the extraordinary remedy of injunctive relief must be supported by a 5 showing of irreparable injury, which plaintiffs have failed to make. Given the threat of harm to 6 the public if enforcement of the Regulations is enjoined, the balance of harms supports denial of 7 tiie TRO. 8 Furthermore, to enjoin enforcement of the Regulations now would be imfair to the 9 numerous other fire sprinklerfitterssubject to the Regulations who, unlike plaintiffs, have timely 10 complied with the requirements. 11 Because plaintiffs' purported harm is outweighed by the harm to the Office of the Fire 12 Marshal, the public, and others, plaintiffs do not satisfy the stringent requirements to establish 13 irreparable injury necessary to grant preliminary injunctive relief, and plaintiffs' application for a 14 ternporary restraining order must be denied. 15 II. T H E PROPOSED TRO DOES NOT PRESERVE THE STATUS Quo 16 The purpose of a temporary restraining order is to preserve the status quo pending an 17 evidentiary hearing. (Scripps Health v. Marin (1999) 72 Cal.App.4th 324, 334.) Here, plaintiffs 18 seek a TRO that stays the operation and enforcement ofthe Regulations. (Plfs' Proposed Order.) 19 But the Regulations have been in effect for over a year and a half, having been implemented on a 20 rolling basis since July 1, 2017. (See Berlant Decl. H 8-10.) Plaintiffs had ample opportunity to 21 inform themselves of the regulatory requirements and/or challenge the Regulations and seek 22 injunctive relief at £iny point once the Regulations became effective, but only did so after the 23 Regulations' final implementation deadline. The Court should preserve the status quo and deny 24 the TRO. 25 III. PLAINTIFFS IMPROPERLY SEEK TO ENJOIN THE OFFICE OF THE FIRE MARSHAL FROM THE EXERCISE OF ITS OFFICIAL DUTIES 26 27 Plaintiffs seek to enjoin the Fire Marshal and its officials from performing any actions to 28 enforce the Regulations. But applicable law counsels against enjoining public officers or 6 Defendants' Opposition to Ex Parte Application for TRO (34-2019-00249221) 1 agencies from performing their duties. (See Code Civ. Proc, § 526, subds. (b)(4) & (6) 2 [injunction improper when sought to prevent public officer from lawful exercise of his or her 3 office or execution of statute for public benefit]; Civ. Code, § 3423, subd. (d) [same]; see also 4 People ex rel. Younger v. F. E. Crites, Inc. (1975) 51 Cal.App.3d 961, 966 [equitable relief 5 inappropriate to enjoin public officials performing official acts]; Agricultural Labor Relations Bd. 6 V. Superior Court (1976) 16 Cal.3d 392, 401 [same].) Accordingly, a request seeking such relief 7 against public entities requires a "significant showing of irreparable injury." (Tahoe Keys 8 Property Owners' Assn. v. State Water Resources Control Board (1994) 23 Cal.App.4th 1459, 9 1471.) Plaintiffs have made no such showing here. Accordingly, the request for the extreme 10 remedy of an injimction against a public entity and its officials should be denied. 11 CONCLUSION 12 For the reasons discussed herein, defendants respectfully request that the ex parte 13 application for TRO and order to show cause be denied. 14 15 16 Dated: January 31, 2019 Respectfully Submitted, 17 XAVIER BECERRA 18 Attomey General of Califomia TRACY L . WINSOR 19 Supervising Deputy Attomey General 20 21 22 COURTNEY S. COVINGTON ANDREA M. KENDRICK 23 Deputy Attomeys General Attorneys for Plaintiffs 24 SA2019300028 25 33764707.docx 26 27 28 Defendants' Opposition to Ex Parte Application for TRO (34-2019-00249221) DECLARATION OF PERSONAL SERVICE Case Name: Fire Guard Corporation; et ai v. CA Department of Forestry and Fire Protection, et al. Case No.: Sacramento County Superior Court no. 34-2019-00249221 1 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. On February 1.2019.1 served the attached DEFENDANTS' OPPOSITION TO EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER and DECLARATION OF DANIEL BERLANT IN OPPOSITION TO PLAINTIFFS' EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER by personally delivering a tme copy thereof to the following person(s): Timothy V. Kassouni Kassouni Law 621 Capital Mall, ST. 2025 Sacramento, CA 95814 Attorneys for Plaintiffs Fire Guard Corporation, Bahaman Brian Shahangian, and California Fire Protection Coaltion I declare under penalty of perj ury under the laws of the State of Califomia the foregoing is true and correct and that this declaration was executed on Febmary 1, 2019, at Sacramento, Califomia. Courtney Covington Declarant •SA2019300028 3376724 l.docx