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FILED/ENDORSED
GREENBERG TRAURIG, LLP
1
William Gausewitz (SBN 91524)
SEP 1 0 2021
2 1201 K Street, Suite 1100
S. Khorn
Sacramento, CA 95814
By:.
Deputy Clerk
3 Telephone: (916) 442-1111
Facsimile: (916) 448-1709
4
gausewitzb@gtlaw.com
5
Attomeys for Plaintiff
6 CALIFORNIA FIRE PROTECTION COALITION
7
8
SUPERIOR COURT OF CALIFORNIA
9
COUNTY OF SACRAMENTO
10
11 FIRE GUARD CORPORATION; CASE NO. 34-2019-00249221
BAHMAN BRIAN SHAHANGIAN, and
12 individual; CALIFORNIA FIRE
PROTECTION COALITION, a Califomia PLAINTIFF'S R E P L Y TO DEFENDANTS'
13 Corporation, and JUAN CARLOS DEL OPPOSITION TO MOTION FOR SUMMARY
TORO TREJO, an individual. JUDGMENT
14
Plaintiffs,
15 Hearing Date: September 15, 2021
16
vs. Time: 1:30 PM
Dept.: 53
P3
CALIFORNIA DEPARTMENT OF
17 FORESTRY AND FIRE PROTECTION; Reservation #2571567
CALIFORNIA OFFICE OF THE STATE
18 FIRE MARSHALL; MIKE RICHWINE, in
his official capacity as State Fire Marshal;
19 JEFFERY SCHWARTZ, in his official
capacity as Deputy State Fire Marshall;, and
20 DOES 1-10 inclusive.
21 Defendants.
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23
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25
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Case No. 34-2019-00249221
27 PLAINTIFF'S REPLY TO DEFENDANTS' OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
ACTIVE 59956735V1
28
1 TABLE OF CONTENTS
2 L INTRODUCTION 4
3 II. REGULATIONS WHICH EXCEED THE SCOPE OF THE AUTHORITY
DELEGATED TO THE ADOPTING AGENCY ARE VOID 4
4 III. OSFM HAS NO LEGAL AUTHORITY TO REGULATE "E^JDIVIDUALS WHO
5 INSTALL" FIRE PROTECTION SYSTEMS 5
6
IV. CALIFORNIA LAW DELEGATES AUTHORITY TO REGULATE THE
7 PERSONNEL WHO MAY LAWFULLY INSTALL FIRE PROTECTION
SYSTEMS TO THE CONTRACTORS STATE LICENSE BOARD, NOT TO
THE OSFM 7
9
V. THE REGULATIONS CPL\LLENGED HERE ARE INCONSISTENT WITH
10 THE BUSINESS AND PROFESSION CODE LAWS ADMINISTERED BY THE
JJ CSLB 7
12 V I . THE STRUCTURE OF APPLICABLE B&P CODE STATUTES AND CSLB
REGULATION IS IRRELEVANT TO THE QUESTION OF OSFM'S
13 REGULATORY AUTHORITY 9
14 V I I . THE PROCESS BY WHICH THE CHALLENGED REGULATIONS WERE
,5 ADOPTED IS NOT RELEVANT TO THE QUESTION OF THEIR VALIDITY 10
16 VIII. DEFENDANTS'ARGUMENT REGARDING NECESSITY IS A RED
HERRING 10
17 IX. CONCLUSION 11
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Case No. 34-2019-00249221
PLAINTIFFS' REPLY TO DEFENDANTS' OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
TABLE OF AUTHORITIES
1
2 Cases Page(s)
3 Agnew V. State Bd. of Equalization (1999)
21 Cal. 4th 310 6
4
California School Bds. Assn. v. State Bd. of Education (2010)
5 191 Cal.App.4th 530 6
6 Slocum V. State Bd. of Equalization (2005)
7 134 Cal.App.4th 969 6
8 Terhune v. Superior Court (1998)
65 Cal.App.4th 864 6
9
Yamaha Corp. ofAmerica v. State Bd. of Equalization (1998)
10
19 Cal. 4th 1 12
11
Statutes
12
Administrative Procedure Act. Govemment Code §11342.1 12
13
Bus. & Prof Code § 7026.12 9, 10
14 Cal. Civ. Code § 2338 10
Cal. Code Regs., tit. 16 § 832.16 9
15 Cal. Code Regs., tit. 16, § 832.16 12
Gov. Code § 11349.1 8, 9
16 Gov. Code § 11342.1 5, 12, 13
17 Gov. Code § 11342.2 11, 12
Gov. Code § 11349.1(d) 9
18 Gov. Code § 11350(c) .....11
Health & Saf Code 13110 7
19 Health & Saf Code § 13104 7
Health & Saf Code § 13105 8
20 Health & Saf Code § 13110 6, 7
Health & Saf Code §§ 13195, 13104, and 13105 7
21
22
23
24
25
26
27
28
Case No. 34-2019-00249221
PLAINTIFFS' REPLY TO DEFENDANTS' OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
1 I. INTRODUCTION
2 This litigation challenges regulations adopted by Defendant Office of State Fire Marshal (OSFM)
3 by which OSFM seeks to regulate which persons may lawfully install water-based fire suppression
4 systems. According to defendant, the regulations "establish a program for certifying that the individuals
5 who install water-based fire protection systems . . . are adequately trained and have the education and
6 experience necessary to install the systems'."
7 Much of the argument offered by defendants is based upon public policy considerations, basically
8 arguing that the regulations are desirable. However, the challenged regulations are illegal and void,
9 regardless of any public policy arguments, because they are not within the scope of the OSFM regulatory
10 authority. The fundamental issue before the court in Plaintiffs motion is whether the regulations are
11 within the scope of authority granted to OSFM by statute. They are not, and hence the regulations, whether
12 good or bad, are illegal and void.
13 As shown in Plaintiffs motion, the statutory structure of this state in regulation of fire safety
14 systems, is divided between two state agencies. The OSFM, under the Health and Safety Code, regulates
15 fire safety equipment and methods of installing that equipment. The Contractors State License Board
16 (CSLB) regulates who is legally permitted to perform installation of such equipment. OSFM regulates
17 what must be installed and CSLB regulates who may perform the installation. By adopting regulations
18 which regulate which persons are permitted to perform installation, OSFM has assumed regulatory
19 authority granted by law to CSLB, thus acting outside the scope of its regulatory authority. The
20 regulations are therefore void.
21 II. REGULATIONS WHICH EXCEED THE SCOPE OF THE AUTHORITY DELEGATED
22 TO THE ADOPTING AGENCY ARE VOID
23 A regulation cannot be adopted lawfully by a state govemment agency unless it is within the scope
24 of the authority delegated to that agency by law. Govemment Code § 11342.1 provides, in pertinent part,
25
26 1 Defendants' Opposition to Plaintiff Califomia Fire Protection Coalition's Motion for Summary Judgment, or in the Altemative, Summary Adjudication
2y (henceforth Defendants' Opposition), p. 7, line 19-21.
4 Case No. 34-2019-00249221
28 PLAINTIFFS' REPLY TO DEFENDANTS' OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
"Each regulation adopted, to be effective, shall be within the scope of authority conferred and in
2 accordance with standards prescribed by other provisions of law."
3 This principle is well established , both in statute and in common law.
[I]t is well established that the rulemaking power of an administrative agency does not permit the
agency to exceed the scope of authority conferred on the agency by the Legislature. (Citation
g omitted.) A ministerial officer may not... under the guise of a rule or regulation vary or enlarge
the terms of a legislative enactment or compel that to be done which lies without the scope of the
7 statute; Agnew v. State Bd. of Equalization (1999) 21 Cal. 4th 310, 321
8 ,.
[A]n agency does not have discretion to promulgate regulations that are inconsistent with the
9 goveming statute, alter or amend the statute, or enlarge its scope" California School Bds. Assn. v.
JQ State Bd of Education (2010) 191 Cal.App.4th 530, 544.
^' Administrative agencies have only the powers conferred on them, either expressly or impliedly,
]2 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.
13
14 "[AJgencies do not have discretion to promulgate regulations that are inconsistent with the gov-
eming statute, or that alter or amend the statute or enlarge its scope. Slocum v. State Bd. of
15 Equalization (2005) 134 Cal.App.4th 969, 974
16
17 III. OSFM HAS NO LEGAL AUTHORITY TO REGULATE "INDIVIDUALS WHO
18 INSTALL^" FIRE PROTECTION SYSTEMS
19 Defendants wrongly assert that Health and Safety Code § 13110 authorizes OSFM "to establish a
20 fire suppression certification program that requires a minimum training standard"^ (emphasis added.)
21 Defendants further misstate the law saying that § 13110 provides for "'certification, registration, [and]
22 licensing' of installation fitters"^ (emphasis added). In fact, H&S Code § 13110 does not refer to
23 "training standards" or to "installation fitters". Defendants have characterized the statute as they want it
24 to be, rather than as it is. H&S Code § 13110 does not authorize OSFM to regulate which persons may
25 lawfully install fire protection systems.
26
27 2 Defendants' Opposition, p. 7, line 19.
3 Defendants' Opposition, p. 8, lines 2-3.
28 4 Defendants' Opposition, p. 17, line 5.
5 Case No. 34-2019-00249221
PLAINTIFFS' REPLY TO DEFENDANTS' OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
1 H&S Code § 13110 lists several general and undefined subjects which OSFM may address
2 through regulation, but it does not list "training standards". It does not list "installation fitters". It does
3 not list any other subject of regulation which could be reasonably interpreted to demonstrate legislative
4 intent that OSFM had been granted authority to regulate persons who may or may not be employed as
5 fire sprinkler installers^.
6 Defendants also incorrectly identify^ Health and Safety Code §§ 13195, 13104, and 13105 as
7 requiring OSFM to "ensur[e] that those who install, test, maintain, and/or service automatic fire
8 extinguishing systems possess the necessary skill to safely and properly do so^." None of these statutes
9 can reasonably be interpreted to authority for the challenged regulations.
10 H&S § 13195* authorizes OSFM to adopt regulations relating to "servicing, testing, and
11 maintaining"fireprotection systems, and to adopt regulations goveming "service, inspection, and
12 testing" of such systems. H&S §13195, in short, authorizes OSFM to regulate fire suppression
13 equipment. It does not authorize OSFM to regulate which individuals will or will not be authorized to
14 install such systems.
15 Health and Safety Code § 13104^ requires OSFM to "aid in the enforcement of specified
16 statutes and regulations relating to explosives and fires. This statute cannot reasonably be interpreted to
17 provide OSFM with authority to adopt regulations goveming who may or may not lawfully install fire
18
j^ 5 A more detailed discussion of Health and Safety Code 13110 is provided in Plaintiffs moving papers and will not be repeated here.
6 Defendants' Opposition, p. 9, line 15.
20 7 Defendants' Opposition, p. 9, lines 12-15.
8 H&S Code § provides, in pertinent part, as follows: "The State Fire Marshal shall adopt and administer the regulations and building standards he or she
21 deems necessary in order to (1) establish and control a program for servicing, testing, and maintaining all automatic fire extinguishing systems, including but
not limited to, fire sprinkler systems, engineered and pre-engineered fixed extinguishing systems, standpipe systems, and water flow alarm devices and (2)
22
establish minimum frequencies of service, inspection, and testing for the various types of automatic fire extinguishing systems. All tests of automatic
23 sprinkler systems shall include a test of all supervisory signaling equipment that is provided to determine whether a condition exists that will impair the
satisfectory operation of the system."
24 9 Health and Safety Code § 13104: "The State Fire Marshal shall aid in the enforcement of all laws and ordinances, any rules and regulations adopted under
the provisions of Division 11 (commencing with Section 12000) of, and Part I (commencing with Section 13000) and Part 2 (commencing with Section
25 13100) of Division 12 of, the Health and Safety Code, and building standards adopted by the State Fire Marshal and published in the State Building
Standards Code relating tofiresor to fire prevention and protection.
26
The State Fire Marshal shall, if possible, attend, and take charge of and protect all property which may be imperiled by any fire other than;
27 (s) A forest, brush, or grain fire,
(b) Afireoccurring within any city or town maintaining a fire department, within a fire protection district, or within a county where there is a regularly
28 appo nted county fire warden.
6 Case No. 34-2019-00249221
PLAINTIFFS' REPLY TO DEFENDANTS' OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
protection systems.
2 Health and Safety Code § 13105'° requires OSFM to "encourage the adoption offireprevention
3 measures. This statute provides no express or implied authority for OSFM to adopt any regulations at
4 all, let alone to adopt regulations dictating which individuals may or may not lawfully install fire
5 suppression systems.
6 None of the statutes identified by defendants as providing authority for the challenged regulations
7 do so, because there are no statutes which give OSFM such regulatory authority. The Califomia statutory
8 scheme in this area of law authorizes OSFM to regulate fire suppression equipment, and to regulate
9 methods of installation of such equipment, but it does not authorize OSFM to regulate the training and
10 licensing of the persons who may lawfully install such equipment. Califomia law has delegated that
function, not to OSFM, but to the Contractors State License Board.
12 IV. CALIFORNIA LAW DELEGATES AUTHORITY TO REGULATE THE PERSONNEL
13 WHO MAY LAWFULLY INSTALL FIRE PROTECTION SYSTEMS TO THE
14 CONTRACTORS STATE LICENSE BOARD, NOT TO THE OSFM
15 As discussed much more fiilly in Plaintiffs moving papers, Califomia law clearly divides
16 regulatory authority for the present subject between the OSFM, which is authorized under the Health and
17 Safety Code to regulate fire suppression equipment and standards for the implementation of that
18 equipment, and the Contractors State License Board CSLB, which is authorized under the Business and
19 Professions Code" to determine the qualifications of persons who may install fire suppression systems
20 By adopting regulations which extend the scope of their asserted regulatory beyond the Health and Safety
21 Code and into subjects delegated to CSLB under the B&P Code, OSFM has adopted regulations which
22 expand the scope of its regulatory authority in violation of both statutory and common law.
23 V. THE REGULATIONS CHALLENGED HERE ARE INCONSISTENT WITH THE
24 BUSINESS AND PROFESSION CODE LAWS ADMINISTERED BY THE CSLB
25 Califomia Govemment Code § 11349.1 requires all adopted regulations to satisfy the standard of
26
27 '0 Health and Safety Code § 13105: "The State Fire Marshal shall encourage the adoption of fire prevention measures by means of education, engineering,
and enforcement and shall prepare or cause to be prepared for dissemination information relating to the subject offireprevention and extinguishment."
28 11 Statutes establishing and goveming the CSLB are in Chapter 9 of Division 3 or the Business and ProfeSSionS C o d c
7 Case No. 34-2019-00249221
PLAINTIFFS' REPLY TO DEFENDANTS' OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
1 "consistency". This requires that any valid regulation must be "in harmony with, and not in conflict
2 with or contradictory to, existing statutes, court decisions, or other provisions of law."'^ The challenged
3 regulations are inconsistent with the statutes goveming who may lawfully installfiresuppression
4 systems.
5 Business and Professions Code § 7026.12'^ explicitly regulates who may and may not preform
6 "the installation of a fire protection system." Not only does the Business and Professions Code grant
7 regulatory authority over who may or may not installfireprotection systems to CSLB and not to OSFM,
8 but CSLB has expressly acted under this grant of authority, the Contractors State License Board has
9 adopted Title 16, Cal. Code Regs § 832.16, establishing and defining license category C-16, Fire
10 Protection Contractor. The Contractors State License Board has lawfully adopted regulations goveming
11 the same subject as that which OSFM attempted to regulated by adoption of the challenged regulations.
12 The challenged regulations establish criteria that must be met by any individuals who install
13 water-basedfireprotection systems, including mandates for such persons to be tested and to satisfy
14 continuing education requirements. These criteria are administered by OSFM and a person who does
15 not demonstrate, to OSFM, that these criteria are met, is not permitted under the regulations to install
16 fire protection systems, even if that person possesses a C-16 Fire Protection Contractor license from
17 CSLB.
18 Since Califomia statute delegates to CSLB the role of determining who may and may not qualify
19 for, and be licensed to participate in, certain specified professions, including the installation of fire
20 protection systems, and the challenged regulations would potentially deny participation in this industry to
21 persons who satisfy the requirements established by CSLB, the challenged regulations are inconsistent
22 and in conflict with the laws goveming CSLB. The regulations violate § 11349.1 of the Govemment Code
23 and are therefore illegal and void.
24
12 Govemment Code § 11349.1 (d).
25
13 Business and Professions Code § 7026.12: Except as provided in Section 7026.13, the installation of a fire protection system, excluding an electrical
/..r alarm system, shall be performed only by either of the following:
26
(a) A contractor holding a fire protection contractor classification, as defined in the regulations of the board.
27 (b) An owner-builder of an owner-occupied, single-family dwelling, if not more than two single-family dwellings on the same parcel are constructed within
one year, plans are submitted to, and approved by, the city, county, or city and county authority, and the city, county, or city and county authority inspects
28 and approves the installation.
8 Case No. 34-2019-00249221
PLAINTIFFS' REPLY TO DEFENDANTS' OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
1 VI. THE STRUCTURE OF APPLICABLE B&P CODE STATUTES AND CSLB
2 REGULATION IS IRRELEVANT TO THE QUESTION OF OSFM'S REGULATORY
3 AUTHORITY
4 Defendants argue at some length'"* that the challenged regulations are not in conflict with the
5 relevant Business and Professions Code statutes and CSLB regulations because the challenged
6 regulations impose restrictions upon "the person who is performing the actual installation of the
7 automatic fire extinguishing system"'^. The argument appears to be that since the statutory and
8 regulatory regime administered by CSLB regulates "contractors" there is no law regulating "the person
9 who is performing the actual installation." This argument presumes that a person who possesses a C-16
10 Fire Protection Contractor license from CSLB does not, in fact, engage in the installation of fire
11 protection systems. There is absolutely no basis for this assumption in fact, in law, or in the record
12 before the Court. This is a baseless assertion by Defendants that would certainly be disputed by many
13 Fire Protection Contractors with C-16 licenses. Defendants have concocted this version of reality and
14 then employed it as a basis for adopting regulations.
15 Furthermore, even if the distinction imagined by defendants were correct - that a person with a
16 C-16 license does not perform "the actual installation" of afireprotection system - the defendant's
17 argument fails because it ignores the law of agency. If there is a category of individuals who perform
18 "the actual installation" but who are not C-16 licensed contractors, then those persons must be
19 employees of a licensed contractor'^ who, through the law of agency'^ is legally responsible for the
20 actions of the employees.
21 The fact that the state has elected to regulate fire system installation at the level of the contractor,
22 rather than through licensing of individual installers, does not demonstrate that those who perform "the
23 actual installation" are unregulated. The state has elected to regulate the installations by putting
24 responsibility for the installation on the C-16 licensee. There is nothing improper, or even unusual,
25
2g 14 Defendants' Opposition, p. 8, lines 8-19; p. 13, line 7 - p. 14, line 11.
15 Ibid, lines 15-16.
27 '6 A person who installed a fire protection system but neither possessed a C-16 license, nor was an employee of a contractor with a C-16 license, would
violate B&P Code § 7026.12.
28 17 CA Civil Code § 2338.
9 Case No. 34-2019-00249221
PLAINTIFFS' REPLY TO DEFENDANTS' OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
1 about this type of regulation.
2 This argument amounts to an assertion by OSFM that the challenged regulations are lawful
3 because the statute is inadequate, and the challenged regulations correct that inadequacy. The scope of
4 OSFM's regulatory authority is not determined by its judgment about what the law should be. If OSFM
5 believes that California's current legal system for regulating "the person performing the actual
6 installation" is inadequate, it may advocate for a change in the law. It may even seek legislation giving it
7 regulatory authority over persons who perform the actual installation'*. It may not, however, adopt the
8 role of lawmaker by adopting the challenged regulations, without statutory authority, based upon its
9 public policy judgment that existing law is inadequate. .
10 VII. THE PROCESS BY WHICH THE CHALLENGED REGULATIONS WERE ADOPTED
11 IS NOT RELEVANT TO THE QUESTION OF THEIR VALIDITY
12 Defendants explain at length'^ the detailed and complicated process followed for adoption of the
13 regulations. Plaintiffs do not concede that Defendants' description of the adoption process is correct. This
14 entire discussion, however, is irrelevant. The complexity of the process and the degree of public
15 participation in the process are unrelated to the question of whether the adopted regulations are within the
16 scope of the OSFM authority. This principle is made explicit in Govemment Code § 11350(c), which
17 provides in relevant part that "[t]he approval of a regulation or order of repeal by the [Office of
18 Administrative Law] . . . shall not be considered by a court in any action for declaratory relief brought
19 with respect to a regulation or order of repeal." The process by which a regulation was adopted does not
20 confer any presumption of validity in a challenge such as this one.
21 VIII. DEFENDANTS' ARGUMENT REGARDING NECESSITY IS A RED HERRING
22 Defendants argue at some length^° that Plaintiffs are incorrect in asserting that the challenged
23 regulations are not "reasonably necessary to effectuate the purpose of the statute" as required by
24 Govemment Code § 11342.2. Since this proceeding is a motion for summary judgment, questions of
25
26
18 In three recent sessions the Califomia Legislature has considered and rejected legislation to provide OSFM with the regulatory authority which they have
27 wrongly assumed here. These were AB 2288 (Torrico, 2008), AB 660 (Torrico, 2010), and SB 886 (Corbett, 2012).
19 Defendants' Opposition, p. 11, line 16 - p. 13, line 6.
28 20 Defendants' Opposition, p. 22, line 22 - p. 24, line 4.
10 Case No. 34-2019-00249221
PLAINTIFFS' REPLY TO DEFENDANTS' OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
1 fact are not subject to review. Plaintiffs position was, and is, that as a matter of law an agency's
2 regulations which are not based upon any statutory authority cannot be necessary to implement the
3 statutes which the agency does lawfully implement. If there is no statute, it is impossible for a
4 regulation to be "necessary to effectuate the purpose of the statute."
5 It is common in regulatory law to refer to the requirements of authority and necessity as a pair^'.
6 This is reflected in the Administrative Procedure Act. Govemment Code 11342.1 enacts the authority
7 requirement; Govemment Code 11342.2 enact the necessity standard. Together these standards amount
8 to different ways of saying that a state agency may not adopt regulations that violate the statutory
9 scheme under which the agency exists and which it is required to obey.
10 In any case, the reasonable necessity standard is not central to the issues before the Court. Plaintiff
11 would be fully satisfied with an order which ignored the necessity requirement of Gov. Code § 11342.2
12 and invalidated the regulations solely for their failure to meet the authority requirement of § 11342.1.
13 IX. CONCLUSION
14 The statutory regime at issue in this case clearly provides that it is the responsibility of OSFM,
15 under the Health and Safety Code, to regulate fire protection systems. OSFM has authority to regulate
16 the equipment that may be employed in such a system, and the technical requirements for the installation
17 of such a system. OSFM, however, has no legal authority to control who may or may not install fire
18 protection systems.
19 The Business and Professions Code delegates the power to regulate the licensing and credentials
20 of individuals who install fire protection systems to the CSLB. The CSLB has acted pursuant to this
21 authority by creation of the C-16 Fire Protection Contractor license^^. The challenged regulations would
22 prohibit people who have satisfied all requirements established by CSLB from installingfireprotection
23 systems.
24 The regulations challenged in this case were adopted by OSFM to establish credentials that
25
26
21 See, example, Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal. 4th 1, I I "[I]n reviewing the legality of a regulation adopted
27 pursuant to a delegation of legislative power, the judicial function is limited to determining whether the regulation (1) is "within the scope of the authority
conferred" [citation] and (2) is "reasonably necessary to effectuate the purpose of the statute".
28 22 Cal. Code Regs., Title 16, § 832.16
11 Case No. 34-2019-00249221
PLAINTIFFS' REPLY TO DEFENDANTS' OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
1 individuals must possess before they are permitted to install fire protection systems. These regulations
2 are not within the scope of authority delegated to OSFM in the Health and Safety Code. They
3 regulations are inconsistent with the Business and Professions Code statutes goveming the CSLB, and
4 the regulations adopted lawfully by CSLB to establish the C-16 Fire Protection Contractor license.
5 The challenged regulations unlawfully exceed the scope of regulatory authority granted to OSFM,
6 and they are therefore void under Section 11342.1 of the Govemment Code and related common law.
7 Plaintiff therefore respectfully requests judgment in its favor.
8
9 DATED: September 10, 2021 GREENBERG TRAURIG, LLP
By
William Gausewitz
12
13 Attorney for Plaintiff
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12 Case No. 34-2019-00249221
PLAINTIFFS' REPLY TO DEFENDANTS' OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
1 DECLARATION OF SERVICE
2 I am a citizen of the United States, over the age of 18 years, and not a party to or interested in this
action. I am employed in the County of Sacramento, State of Califomia and my business address is
3 Greenberg Traurig, LLP, 1201 K Street, Suite 1100, Sacramento, CA 95814.
4 On September 10, 2021,1 caused to be served BY ELECTRONIC TRANSMISSION the
following document(s):
5
PLAINTIFF'S REPLY TO DEFENDANTS' OPPOSITION TO MOTION FOR
6 SUMMARY JUDGMENT
7 Courtney S. Covington Attomey for Defendants
Califomia Dept. of Justice
8 Office of the Attomey General
1300 I Street, #125
9 Sacramento, CA 94244
Courtney.Covington@doj.ca.gov
10
Andrea M. Kendrick Attomey for Defendants
11 Califomia Dept. of Justice
Office of the Attomey General
12 Andrea.Kendrick@do j .ca.gov
13 Russell Hildreth Attomey for Defendants
Califomia Dept. of Justice
14 Office of the Attomey General
Russell.Hildreth@doj.ca.gov
15
Margaret Esquiroz Co-Counsel for CALIFORNIA FIRE
16
4924 Balboa Boulevard, #500 PROTECTION COALITION
Encino, CA 91316
17
esquiroz@pm.me
18
19
20 BY OVERNIGHT COURIER: 1 caused such envelope to be placed for collection and delivery
in accordance with standard ovemight delivery procedures for delivery the next business day.
21
22 Timothy V. Kassouni Attomey for FIRE GUARD CORPORATION;
455 Capitol Mall, #604 BAHMAN BRIAN SHAHANGIAN; and JUAN
23 Sacramento, CA 95814 CARLOS DEL TORO TREJO
24 1 declare under penalty of perjury under the laws of the State of Califomia that the foregoing is
true and correct.
25
Executed on September 10, 2021, at Sacramento, Califomia.
26
27
Richard Cea
28
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FILED/ENDORSED GREENBERG TRAURIG, LLP 1 William Gausewitz (SBN 91524) SEP 1 0 2021 2 1201 K Street, Suite 1100 S. Khorn Sacramento, CA 95814 By:. Deputy Clerk 3 Telephone: (916) 442-1111 Facsimile: (916) 448-1709 4 gausewitzb@gtlaw.com 5 Attomeys for Plaintiff 6 CALIFORNIA FIRE PROTECTION COALITION 7 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF SACRAMENTO 10 11 FIRE GUARD CORPORATION; CASE NO. 34-2019-00249221 BAHMAN BRIAN SHAHANGIAN, and 12 individual; CALIFORNIA FIRE PROTECTION COALITION, a Califomia PLAINTIFF'S R E P L Y TO DEFENDANTS' 13 Corporation, and JUAN CARLOS DEL OPPOSITION TO MOTION FOR SUMMARY TORO TREJO, an individual. JUDGMENT 14 Plaintiffs, 15 Hearing Date: September 15, 2021 16 vs. Time: 1:30 PM Dept.: 53 P3 CALIFORNIA DEPARTMENT OF 17 FORESTRY AND FIRE PROTECTION; Reservation #2571567 CALIFORNIA OFFICE OF THE STATE 18 FIRE MARSHALL; MIKE RICHWINE, in his official capacity as State Fire Marshal; 19 JEFFERY SCHWARTZ, in his official capacity as Deputy State Fire Marshall;, and 20 DOES 1-10 inclusive. 21 Defendants. 22 23 24 25 26 Case No. 34-2019-00249221 27 PLAINTIFF'S REPLY TO DEFENDANTS' OPPOSITION TO MOTION FOR SUMMARY JUDGMENT ACTIVE 59956735V1 28 1 TABLE OF CONTENTS 2 L INTRODUCTION 4 3 II. REGULATIONS WHICH EXCEED THE SCOPE OF THE AUTHORITY DELEGATED TO THE ADOPTING AGENCY ARE VOID 4 4 III. OSFM HAS NO LEGAL AUTHORITY TO REGULATE "E^JDIVIDUALS WHO 5 INSTALL" FIRE PROTECTION SYSTEMS 5 6 IV. CALIFORNIA LAW DELEGATES AUTHORITY TO REGULATE THE 7 PERSONNEL WHO MAY LAWFULLY INSTALL FIRE PROTECTION SYSTEMS TO THE CONTRACTORS STATE LICENSE BOARD, NOT TO THE OSFM 7 9 V. THE REGULATIONS CPL\LLENGED HERE ARE INCONSISTENT WITH 10 THE BUSINESS AND PROFESSION CODE LAWS ADMINISTERED BY THE JJ CSLB 7 12 V I . THE STRUCTURE OF APPLICABLE B&P CODE STATUTES AND CSLB REGULATION IS IRRELEVANT TO THE QUESTION OF OSFM'S 13 REGULATORY AUTHORITY 9 14 V I I . THE PROCESS BY WHICH THE CHALLENGED REGULATIONS WERE ,5 ADOPTED IS NOT RELEVANT TO THE QUESTION OF THEIR VALIDITY 10 16 VIII. DEFENDANTS'ARGUMENT REGARDING NECESSITY IS A RED HERRING 10 17 IX. CONCLUSION 11 18 19 20 21 22 23 24 25 26 27 28 Case No. 34-2019-00249221 PLAINTIFFS' REPLY TO DEFENDANTS' OPPOSITION TO MOTION FOR SUMMARY JUDGMENT TABLE OF AUTHORITIES 1 2 Cases Page(s) 3 Agnew V. State Bd. of Equalization (1999) 21 Cal. 4th 310 6 4 California School Bds. Assn. v. State Bd. of Education (2010) 5 191 Cal.App.4th 530 6 6 Slocum V. State Bd. of Equalization (2005) 7 134 Cal.App.4th 969 6 8 Terhune v. Superior Court (1998) 65 Cal.App.4th 864 6 9 Yamaha Corp. ofAmerica v. State Bd. of Equalization (1998) 10 19 Cal. 4th 1 12 11 Statutes 12 Administrative Procedure Act. Govemment Code §11342.1 12 13 Bus. & Prof Code § 7026.12 9, 10 14 Cal. Civ. Code § 2338 10 Cal. Code Regs., tit. 16 § 832.16 9 15 Cal. Code Regs., tit. 16, § 832.16 12 Gov. Code § 11349.1 8, 9 16 Gov. Code § 11342.1 5, 12, 13 17 Gov. Code § 11342.2 11, 12 Gov. Code § 11349.1(d) 9 18 Gov. Code § 11350(c) .....11 Health & Saf Code 13110 7 19 Health & Saf Code § 13104 7 Health & Saf Code § 13105 8 20 Health & Saf Code § 13110 6, 7 Health & Saf Code §§ 13195, 13104, and 13105 7 21 22 23 24 25 26 27 28 Case No. 34-2019-00249221 PLAINTIFFS' REPLY TO DEFENDANTS' OPPOSITION TO MOTION FOR SUMMARY JUDGMENT 1 I. INTRODUCTION 2 This litigation challenges regulations adopted by Defendant Office of State Fire Marshal (OSFM) 3 by which OSFM seeks to regulate which persons may lawfully install water-based fire suppression 4 systems. According to defendant, the regulations "establish a program for certifying that the individuals 5 who install water-based fire protection systems . . . are adequately trained and have the education and 6 experience necessary to install the systems'." 7 Much of the argument offered by defendants is based upon public policy considerations, basically 8 arguing that the regulations are desirable. However, the challenged regulations are illegal and void, 9 regardless of any public policy arguments, because they are not within the scope of the OSFM regulatory 10 authority. The fundamental issue before the court in Plaintiffs motion is whether the regulations are 11 within the scope of authority granted to OSFM by statute. They are not, and hence the regulations, whether 12 good or bad, are illegal and void. 13 As shown in Plaintiffs motion, the statutory structure of this state in regulation of fire safety 14 systems, is divided between two state agencies. The OSFM, under the Health and Safety Code, regulates 15 fire safety equipment and methods of installing that equipment. The Contractors State License Board 16 (CSLB) regulates who is legally permitted to perform installation of such equipment. OSFM regulates 17 what must be installed and CSLB regulates who may perform the installation. By adopting regulations 18 which regulate which persons are permitted to perform installation, OSFM has assumed regulatory 19 authority granted by law to CSLB, thus acting outside the scope of its regulatory authority. The 20 regulations are therefore void. 21 II. REGULATIONS WHICH EXCEED THE SCOPE OF THE AUTHORITY DELEGATED 22 TO THE ADOPTING AGENCY ARE VOID 23 A regulation cannot be adopted lawfully by a state govemment agency unless it is within the scope 24 of the authority delegated to that agency by law. Govemment Code § 11342.1 provides, in pertinent part, 25 26 1 Defendants' Opposition to Plaintiff Califomia Fire Protection Coalition's Motion for Summary Judgment, or in the Altemative, Summary Adjudication 2y (henceforth Defendants' Opposition), p. 7, line 19-21. 4 Case No. 34-2019-00249221 28 PLAINTIFFS' REPLY TO DEFENDANTS' OPPOSITION TO MOTION FOR SUMMARY JUDGMENT "Each regulation adopted, to be effective, shall be within the scope of authority conferred and in 2 accordance with standards prescribed by other provisions of law." 3 This principle is well established , both in statute and in common law. [I]t is well established that the rulemaking power of an administrative agency does not permit the agency to exceed the scope of authority conferred on the agency by the Legislature. (Citation g omitted.) A ministerial officer may not... under the guise of a rule or regulation vary or enlarge the terms of a legislative enactment or compel that to be done which lies without the scope of the 7 statute; Agnew v. State Bd. of Equalization (1999) 21 Cal. 4th 310, 321 8 ,. [A]n agency does not have discretion to promulgate regulations that are inconsistent with the 9 goveming statute, alter or amend the statute, or enlarge its scope" California School Bds. Assn. v. JQ State Bd of Education (2010) 191 Cal.App.4th 530, 544. ^' Administrative agencies have only the powers conferred on them, either expressly or impliedly, ]2 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. 13 14 "[AJgencies do not have discretion to promulgate regulations that are inconsistent with the gov- eming statute, or that alter or amend the statute or enlarge its scope. Slocum v. State Bd. of 15 Equalization (2005) 134 Cal.App.4th 969, 974 16 17 III. OSFM HAS NO LEGAL AUTHORITY TO REGULATE "INDIVIDUALS WHO 18 INSTALL^" FIRE PROTECTION SYSTEMS 19 Defendants wrongly assert that Health and Safety Code § 13110 authorizes OSFM "to establish a 20 fire suppression certification program that requires a minimum training standard"^ (emphasis added.) 21 Defendants further misstate the law saying that § 13110 provides for "'certification, registration, [and] 22 licensing' of installation fitters"^ (emphasis added). In fact, H&S Code § 13110 does not refer to 23 "training standards" or to "installation fitters". Defendants have characterized the statute as they want it 24 to be, rather than as it is. H&S Code § 13110 does not authorize OSFM to regulate which persons may 25 lawfully install fire protection systems. 26 27 2 Defendants' Opposition, p. 7, line 19. 3 Defendants' Opposition, p. 8, lines 2-3. 28 4 Defendants' Opposition, p. 17, line 5. 5 Case No. 34-2019-00249221 PLAINTIFFS' REPLY TO DEFENDANTS' OPPOSITION TO MOTION FOR SUMMARY JUDGMENT 1 H&S Code § 13110 lists several general and undefined subjects which OSFM may address 2 through regulation, but it does not list "training standards". It does not list "installation fitters". It does 3 not list any other subject of regulation which could be reasonably interpreted to demonstrate legislative 4 intent that OSFM had been granted authority to regulate persons who may or may not be employed as 5 fire sprinkler installers^. 6 Defendants also incorrectly identify^ Health and Safety Code §§ 13195, 13104, and 13105 as 7 requiring OSFM to "ensur[e] that those who install, test, maintain, and/or service automatic fire 8 extinguishing systems possess the necessary skill to safely and properly do so^." None of these statutes 9 can reasonably be interpreted to authority for the challenged regulations. 10 H&S § 13195* authorizes OSFM to adopt regulations relating to "servicing, testing, and 11 maintaining"fireprotection systems, and to adopt regulations goveming "service, inspection, and 12 testing" of such systems. H&S §13195, in short, authorizes OSFM to regulate fire suppression 13 equipment. It does not authorize OSFM to regulate which individuals will or will not be authorized to 14 install such systems. 15 Health and Safety Code § 13104^ requires OSFM to "aid in the enforcement of specified 16 statutes and regulations relating to explosives and fires. This statute cannot reasonably be interpreted to 17 provide OSFM with authority to adopt regulations goveming who may or may not lawfully install fire 18 j^ 5 A more detailed discussion of Health and Safety Code 13110 is provided in Plaintiffs moving papers and will not be repeated here. 6 Defendants' Opposition, p. 9, line 15. 20 7 Defendants' Opposition, p. 9, lines 12-15. 8 H&S Code § provides, in pertinent part, as follows: "The State Fire Marshal shall adopt and administer the regulations and building standards he or she 21 deems necessary in order to (1) establish and control a program for servicing, testing, and maintaining all automatic fire extinguishing systems, including but not limited to, fire sprinkler systems, engineered and pre-engineered fixed extinguishing systems, standpipe systems, and water flow alarm devices and (2) 22 establish minimum frequencies of service, inspection, and testing for the various types of automatic fire extinguishing systems. All tests of automatic 23 sprinkler systems shall include a test of all supervisory signaling equipment that is provided to determine whether a condition exists that will impair the satisfectory operation of the system." 24 9 Health and Safety Code § 13104: "The State Fire Marshal shall aid in the enforcement of all laws and ordinances, any rules and regulations adopted under the provisions of Division 11 (commencing with Section 12000) of, and Part I (commencing with Section 13000) and Part 2 (commencing with Section 25 13100) of Division 12 of, the Health and Safety Code, and building standards adopted by the State Fire Marshal and published in the State Building Standards Code relating tofiresor to fire prevention and protection. 26 The State Fire Marshal shall, if possible, attend, and take charge of and protect all property which may be imperiled by any fire other than; 27 (s) A forest, brush, or grain fire, (b) Afireoccurring within any city or town maintaining a fire department, within a fire protection district, or within a county where there is a regularly 28 appo nted county fire warden. 6 Case No. 34-2019-00249221 PLAINTIFFS' REPLY TO DEFENDANTS' OPPOSITION TO MOTION FOR SUMMARY JUDGMENT protection systems. 2 Health and Safety Code § 13105'° requires OSFM to "encourage the adoption offireprevention 3 measures. This statute provides no express or implied authority for OSFM to adopt any regulations at 4 all, let alone to adopt regulations dictating which individuals may or may not lawfully install fire 5 suppression systems. 6 None of the statutes identified by defendants as providing authority for the challenged regulations 7 do so, because there are no statutes which give OSFM such regulatory authority. The Califomia statutory 8 scheme in this area of law authorizes OSFM to regulate fire suppression equipment, and to regulate 9 methods of installation of such equipment, but it does not authorize OSFM to regulate the training and 10 licensing of the persons who may lawfully install such equipment. Califomia law has delegated that function, not to OSFM, but to the Contractors State License Board. 12 IV. CALIFORNIA LAW DELEGATES AUTHORITY TO REGULATE THE PERSONNEL 13 WHO MAY LAWFULLY INSTALL FIRE PROTECTION SYSTEMS TO THE 14 CONTRACTORS STATE LICENSE BOARD, NOT TO THE OSFM 15 As discussed much more fiilly in Plaintiffs moving papers, Califomia law clearly divides 16 regulatory authority for the present subject between the OSFM, which is authorized under the Health and 17 Safety Code to regulate fire suppression equipment and standards for the implementation of that 18 equipment, and the Contractors State License Board CSLB, which is authorized under the Business and 19 Professions Code" to determine the qualifications of persons who may install fire suppression systems 20 By adopting regulations which extend the scope of their asserted regulatory beyond the Health and Safety 21 Code and into subjects delegated to CSLB under the B&P Code, OSFM has adopted regulations which 22 expand the scope of its regulatory authority in violation of both statutory and common law. 23 V. THE REGULATIONS CHALLENGED HERE ARE INCONSISTENT WITH THE 24 BUSINESS AND PROFESSION CODE LAWS ADMINISTERED BY THE CSLB 25 Califomia Govemment Code § 11349.1 requires all adopted regulations to satisfy the standard of 26 27 '0 Health and Safety Code § 13105: "The State Fire Marshal shall encourage the adoption of fire prevention measures by means of education, engineering, and enforcement and shall prepare or cause to be prepared for dissemination information relating to the subject offireprevention and extinguishment." 28 11 Statutes establishing and goveming the CSLB are in Chapter 9 of Division 3 or the Business and ProfeSSionS C o d c 7 Case No. 34-2019-00249221 PLAINTIFFS' REPLY TO DEFENDANTS' OPPOSITION TO MOTION FOR SUMMARY JUDGMENT 1 "consistency". This requires that any valid regulation must be "in harmony with, and not in conflict 2 with or contradictory to, existing statutes, court decisions, or other provisions of law."'^ The challenged 3 regulations are inconsistent with the statutes goveming who may lawfully installfiresuppression 4 systems. 5 Business and Professions Code § 7026.12'^ explicitly regulates who may and may not preform 6 "the installation of a fire protection system." Not only does the Business and Professions Code grant 7 regulatory authority over who may or may not installfireprotection systems to CSLB and not to OSFM, 8 but CSLB has expressly acted under this grant of authority, the Contractors State License Board has 9 adopted Title 16, Cal. Code Regs § 832.16, establishing and defining license category C-16, Fire 10 Protection Contractor. The Contractors State License Board has lawfully adopted regulations goveming 11 the same subject as that which OSFM attempted to regulated by adoption of the challenged regulations. 12 The challenged regulations establish criteria that must be met by any individuals who install 13 water-basedfireprotection systems, including mandates for such persons to be tested and to satisfy 14 continuing education requirements. These criteria are administered by OSFM and a person who does 15 not demonstrate, to OSFM, that these criteria are met, is not permitted under the regulations to install 16 fire protection systems, even if that person possesses a C-16 Fire Protection Contractor license from 17 CSLB. 18 Since Califomia statute delegates to CSLB the role of determining who may and may not qualify 19 for, and be licensed to participate in, certain specified professions, including the installation of fire 20 protection systems, and the challenged regulations would potentially deny participation in this industry to 21 persons who satisfy the requirements established by CSLB, the challenged regulations are inconsistent 22 and in conflict with the laws goveming CSLB. The regulations violate § 11349.1 of the Govemment Code 23 and are therefore illegal and void. 24 12 Govemment Code § 11349.1 (d). 25 13 Business and Professions Code § 7026.12: Except as provided in Section 7026.13, the installation of a fire protection system, excluding an electrical /..r alarm system, shall be performed only by either of the following: 26 (a) A contractor holding a fire protection contractor classification, as defined in the regulations of the board. 27 (b) An owner-builder of an owner-occupied, single-family dwelling, if not more than two single-family dwellings on the same parcel are constructed within one year, plans are submitted to, and approved by, the city, county, or city and county authority, and the city, county, or city and county authority inspects 28 and approves the installation. 8 Case No. 34-2019-00249221 PLAINTIFFS' REPLY TO DEFENDANTS' OPPOSITION TO MOTION FOR SUMMARY JUDGMENT 1 VI. THE STRUCTURE OF APPLICABLE B&P CODE STATUTES AND CSLB 2 REGULATION IS IRRELEVANT TO THE QUESTION OF OSFM'S REGULATORY 3 AUTHORITY 4 Defendants argue at some length'"* that the challenged regulations are not in conflict with the 5 relevant Business and Professions Code statutes and CSLB regulations because the challenged 6 regulations impose restrictions upon "the person who is performing the actual installation of the 7 automatic fire extinguishing system"'^. The argument appears to be that since the statutory and 8 regulatory regime administered by CSLB regulates "contractors" there is no law regulating "the person 9 who is performing the actual installation." This argument presumes that a person who possesses a C-16 10 Fire Protection Contractor license from CSLB does not, in fact, engage in the installation of fire 11 protection systems. There is absolutely no basis for this assumption in fact, in law, or in the record 12 before the Court. This is a baseless assertion by Defendants that would certainly be disputed by many 13 Fire Protection Contractors with C-16 licenses. Defendants have concocted this version of reality and 14 then employed it as a basis for adopting regulations. 15 Furthermore, even if the distinction imagined by defendants were correct - that a person with a 16 C-16 license does not perform "the actual installation" of afireprotection system - the defendant's 17 argument fails because it ignores the law of agency. If there is a category of individuals who perform 18 "the actual installation" but who are not C-16 licensed contractors, then those persons must be 19 employees of a licensed contractor'^ who, through the law of agency'^ is legally responsible for the 20 actions of the employees. 21 The fact that the state has elected to regulate fire system installation at the level of the contractor, 22 rather than through licensing of individual installers, does not demonstrate that those who perform "the 23 actual installation" are unregulated. The state has elected to regulate the installations by putting 24 responsibility for the installation on the C-16 licensee. There is nothing improper, or even unusual, 25 2g 14 Defendants' Opposition, p. 8, lines 8-19; p. 13, line 7 - p. 14, line 11. 15 Ibid, lines 15-16. 27 '6 A person who installed a fire protection system but neither possessed a C-16 license, nor was an employee of a contractor with a C-16 license, would violate B&P Code § 7026.12. 28 17 CA Civil Code § 2338. 9 Case No. 34-2019-00249221 PLAINTIFFS' REPLY TO DEFENDANTS' OPPOSITION TO MOTION FOR SUMMARY JUDGMENT 1 about this type of regulation. 2 This argument amounts to an assertion by OSFM that the challenged regulations are lawful 3 because the statute is inadequate, and the challenged regulations correct that inadequacy. The scope of 4 OSFM's regulatory authority is not determined by its judgment about what the law should be. If OSFM 5 believes that California's current legal system for regulating "the person performing the actual 6 installation" is inadequate, it may advocate for a change in the law. It may even seek legislation giving it 7 regulatory authority over persons who perform the actual installation'*. It may not, however, adopt the 8 role of lawmaker by adopting the challenged regulations, without statutory authority, based upon its 9 public policy judgment that existing law is inadequate. . 10 VII. THE PROCESS BY WHICH THE CHALLENGED REGULATIONS WERE ADOPTED 11 IS NOT RELEVANT TO THE QUESTION OF THEIR VALIDITY 12 Defendants explain at length'^ the detailed and complicated process followed for adoption of the 13 regulations. Plaintiffs do not concede that Defendants' description of the adoption process is correct. This 14 entire discussion, however, is irrelevant. The complexity of the process and the degree of public 15 participation in the process are unrelated to the question of whether the adopted regulations are within the 16 scope of the OSFM authority. This principle is made explicit in Govemment Code § 11350(c), which 17 provides in relevant part that "[t]he approval of a regulation or order of repeal by the [Office of 18 Administrative Law] . . . shall not be considered by a court in any action for declaratory relief brought 19 with respect to a regulation or order of repeal." The process by which a regulation was adopted does not 20 confer any presumption of validity in a challenge such as this one. 21 VIII. DEFENDANTS' ARGUMENT REGARDING NECESSITY IS A RED HERRING 22 Defendants argue at some length^° that Plaintiffs are incorrect in asserting that the challenged 23 regulations are not "reasonably necessary to effectuate the purpose of the statute" as required by 24 Govemment Code § 11342.2. Since this proceeding is a motion for summary judgment, questions of 25 26 18 In three recent sessions the Califomia Legislature has considered and rejected legislation to provide OSFM with the regulatory authority which they have 27 wrongly assumed here. These were AB 2288 (Torrico, 2008), AB 660 (Torrico, 2010), and SB 886 (Corbett, 2012). 19 Defendants' Opposition, p. 11, line 16 - p. 13, line 6. 28 20 Defendants' Opposition, p. 22, line 22 - p. 24, line 4. 10 Case No. 34-2019-00249221 PLAINTIFFS' REPLY TO DEFENDANTS' OPPOSITION TO MOTION FOR SUMMARY JUDGMENT 1 fact are not subject to review. Plaintiffs position was, and is, that as a matter of law an agency's 2 regulations which are not based upon any statutory authority cannot be necessary to implement the 3 statutes which the agency does lawfully implement. If there is no statute, it is impossible for a 4 regulation to be "necessary to effectuate the purpose of the statute." 5 It is common in regulatory law to refer to the requirements of authority and necessity as a pair^'. 6 This is reflected in the Administrative Procedure Act. Govemment Code 11342.1 enacts the authority 7 requirement; Govemment Code 11342.2 enact the necessity standard. Together these standards amount 8 to different ways of saying that a state agency may not adopt regulations that violate the statutory 9 scheme under which the agency exists and which it is required to obey. 10 In any case, the reasonable necessity standard is not central to the issues before the Court. Plaintiff 11 would be fully satisfied with an order which ignored the necessity requirement of Gov. Code § 11342.2 12 and invalidated the regulations solely for their failure to meet the authority requirement of § 11342.1. 13 IX. CONCLUSION 14 The statutory regime at issue in this case clearly provides that it is the responsibility of OSFM, 15 under the Health and Safety Code, to regulate fire protection systems. OSFM has authority to regulate 16 the equipment that may be employed in such a system, and the technical requirements for the installation 17 of such a system. OSFM, however, has no legal authority to control who may or may not install fire 18 protection systems. 19 The Business and Professions Code delegates the power to regulate the licensing and credentials 20 of individuals who install fire protection systems to the CSLB. The CSLB has acted pursuant to this 21 authority by creation of the C-16 Fire Protection Contractor license^^. The challenged regulations would 22 prohibit people who have satisfied all requirements established by CSLB from installingfireprotection 23 systems. 24 The regulations challenged in this case were adopted by OSFM to establish credentials that 25 26 21 See, example, Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal. 4th 1, I I "[I]n reviewing the legality of a regulation adopted 27 pursuant to a delegation of legislative power, the judicial function is limited to determining whether the regulation (1) is "within the scope of the authority conferred" [citation] and (2) is "reasonably necessary to effectuate the purpose of the statute". 28 22 Cal. Code Regs., Title 16, § 832.16 11 Case No. 34-2019-00249221 PLAINTIFFS' REPLY TO DEFENDANTS' OPPOSITION TO MOTION FOR SUMMARY JUDGMENT 1 individuals must possess before they are permitted to install fire protection systems. These regulations 2 are not within the scope of authority delegated to OSFM in the Health and Safety Code. They 3 regulations are inconsistent with the Business and Professions Code statutes goveming the CSLB, and 4 the regulations adopted lawfully by CSLB to establish the C-16 Fire Protection Contractor license. 5 The challenged regulations unlawfully exceed the scope of regulatory authority granted to OSFM, 6 and they are therefore void under Section 11342.1 of the Govemment Code and related common law. 7 Plaintiff therefore respectfully requests judgment in its favor. 8 9 DATED: September 10, 2021 GREENBERG TRAURIG, LLP By William Gausewitz 12 13 Attorney for Plaintiff 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 Case No. 34-2019-00249221 PLAINTIFFS' REPLY TO DEFENDANTS' OPPOSITION TO MOTION FOR SUMMARY JUDGMENT 1 DECLARATION OF SERVICE 2 I am a citizen of the United States, over the age of 18 years, and not a party to or interested in this action. I am employed in the County of Sacramento, State of Califomia and my business address is 3 Greenberg Traurig, LLP, 1201 K Street, Suite 1100, Sacramento, CA 95814. 4 On September 10, 2021,1 caused to be served BY ELECTRONIC TRANSMISSION the following document(s): 5 PLAINTIFF'S REPLY TO DEFENDANTS' OPPOSITION TO MOTION FOR 6 SUMMARY JUDGMENT 7 Courtney S. Covington Attomey for Defendants Califomia Dept. of Justice 8 Office of the Attomey General 1300 I Street, #125 9 Sacramento, CA 94244 Courtney.Covington@doj.ca.gov 10 Andrea M. Kendrick Attomey for Defendants 11 Califomia Dept. of Justice Office of the Attomey General 12 Andrea.Kendrick@do j .ca.gov 13 Russell Hildreth Attomey for Defendants Califomia Dept. of Justice 14 Office of the Attomey General Russell.Hildreth@doj.ca.gov 15 Margaret Esquiroz Co-Counsel for CALIFORNIA FIRE 16 4924 Balboa Boulevard, #500 PROTECTION COALITION Encino, CA 91316 17 esquiroz@pm.me 18 19 20 BY OVERNIGHT COURIER: 1 caused such envelope to be placed for collection and delivery in accordance with standard ovemight delivery procedures for delivery the next business day. 21 22 Timothy V. Kassouni Attomey for FIRE GUARD CORPORATION; 455 Capitol Mall, #604 BAHMAN BRIAN SHAHANGIAN; and JUAN 23 Sacramento, CA 95814 CARLOS DEL TORO TREJO 24 1 declare under penalty of perjury under the laws of the State of Califomia that the foregoing is true and correct. 25 Executed on September 10, 2021, at Sacramento, Califomia. 26 27 Richard Cea 28