Party Discovery: Fire Guard Corporation vs. California Department of Forestry ...

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                                GREENBERG TRAURIG, LLP
     William Gausewitz (SBN 91524)
2    1201 K Street, Suite 1100
     Sacramento, CA 95814
 3   Telephone: (916) 442-1111
     Facsimile: (916)448-1709
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     gausewitzb@gtlaw.com
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     Attomeys for Plaintiff
6    CALIFORNIA FIRE PROTECTION COALITION
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 9                                 SUPERIOR COURT OF CALIFORNIA

10                                      COUNTY OF SACRAMENTO
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12    FIRE GUARD CORPORATION;                        CASE NO. 34-2019-00249221
      BAHMAN BRIAN SHAHANGIAN, and
13    individual; CALIFORNIA FIRE                    PLAINTIFF CALIFORNIA F I R E
      PROTECTION COALITION, a Califomia
                                                     PROTECTION COALITION'S SEPARATE
14    Corporation, and JUAN CARLOS DEL
      TORO TREJO, an individual.                     STATEMENT OF UNDISPUTED MATERIAL
                                                     FACTS IN SUPPORT OF MOTION FOR
15                                                   SUMMARY JUDGMENT
                     Plaintiffs,
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      vs.                                            Date: July 20, 2021                            PQ
17                                                   Time: 1:30 PM
      CALIFORNIA DEPARTMENT OF                       Dept.: 53
18    FORESTRY AND FIRE PROTECTION;
                                                     Reservation #2571303
      CALIFORNIA OFFICE OF THE STATE
19    FIRE MARSHALL; MIKE RICHWINE, in
      his official capacity as State Fire Marshal;   Accompanying Documents:
20    JEFFERY SCHWARTZ, in his official                 1. Nofice of Mofion
      capacity as Deputy State Fire Marshall;, and      2. Memorandum of Points and Authorities
21    DOES 1-10 inclusive,                              3. Request for Judicial Notice
                                                        4. [Proposed] Order
22                   Defendants.

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                                                                        Case No. 34-2019-00249221
28   CALIFORNIA FIRE PROTECTION COALITION'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
                           IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
 1                  SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS

 2          Pursuant to Califomia Code of Civil Procedure §437c, subdivision (b), and in compliance with

 3   the guidelines set forth in Califomia Rule of Court Rule 3.1350(d), Plainfiff CALIFORNIA FIRE

 4   PROTECTION COALITION ("Plaintiff or "The Coalition") submits this Separate Statement of

 5   Undisputed Material Facts, together with references to supporting evidence, in support of its Motion for

 6   Summary Judgment against Defendants California Department Of Forestry And Fire Protection,

 7   California Office of The State Fire Marshall, Mike Richwine, and Jeffery Schwartz as follows:

 8          Plaintiff Is Entified to Summary Judgement, or in the Altemative Summary Adjudicafion, as to

 9   Plaintiffs Sixth Cause of Action for Declaratory Relief because there are no disputed issues of material

10   fact and Plaintiff is entitled to judgment as a matter of law that the Health and Safety Code authorizes

11   the Office of State Fire Marshal to regulate fire sprinkler equipment and the standards for installation

12   and maintenance of that equipment. Neither the H&S Code, nor any other law authorizes OSFM to

13   regulate the training, testing, or licensing of contractors who install fire sprinkler systems.    Such

14   regulations can only be, and have been, adopted by the Contractors State License Board:

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16   Plaintifrs Undisputed Material Facts and Supporting            Defendants' Response and
     Evidence                                                       Supporting Evidence
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18     1. In 2013, Califomia enacted AB 433 (Gordon, Statutes
          of 2013, Chapter 377). This legislafion modified the
19        Califomia Business and Professions Code relating to
          the Contractors State License Board, and the Health
20        and Safety Code relating to the State Fire Marshal.
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     Supporting Evidence:
22        • Plainfiffs Request for Judicial Notice ("RJN"),
              Exhibit A.
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       2. On February 12, 2016, the Office of State Fire Marshal
24        (OSFM) published a Nofice of Proposed Action to
          adopt regulations under the purported authority of
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          Health and Safety Code § 13110, another statute
26        adopted by AB 433. These regulations were adopted
          by OSFM and comprise Chapter 5.5 of Division 1 or
27        Title 19 of the Califomia Code of Regulations.

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                                              2                         Case No. 34-2019-00266856
     CALIFORNIA FIRE PROTECTION COALITION'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
                           IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
 1   Supporting Evidence:
         • RJN, Exhibit B.
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      3. Since Health & Safety Code § 13110 does not grant
3        express regulatory authority to OSFM to regulate the
4        training and qualifications of fire sprinkler installers,
         instead of or in addition to, the Contractors State
 5       License Board, it is appropriate for the court to
         examine extrinsic evidence. The best available
 6       extrinsic evidence of the intent of the Legislature in
         enacting H&S § 13110 are the analyses of AB 433
 7       (Gordon, 2013).
 8 Supporting Evidence:
 9        • RJN, Exhibit C.

10    4. In describing the effect of the bill on the regulatory
         authority granted to OSFM, the Senate Floor analysis
11       says only that it "Authorizes the SFM to propose, adopt
         and administer the regulations that he/she deems
12       necessary in order to ensure fire safety in buildings and
         structures and requires those regulations be submitted
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         to the BSC for approval, as specified." The analysis
14       employs a somewhat imprecise statement that it
         authorizes regulations relating to "buildings and
15       stmctures" - the traditional regulatory role of OSFM.

16   Supporting Evidence:
         • RJN, Exhibit D.
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19   DATED: June 16,2021                                   GREENBERG TRAURIG, LLP
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                                                           By:_
21                                                             Bill Gausewitz
                                                              Attomeys for Plaintiff
22                                                             CALIFORNIA FIRE PROTECTION
                                                               COALITION
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                                                                       Case No. 34-2019-00266856
     CALIFORNIA FIRE PROTECTION COALITION'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
                           IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT