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1 ROB BONTA
Attomey General of Califomia
2 RUSSELL B . HILDRETH, State Bar No. 166167
Supervising Deputy Attomey General
3 ANDREA M . KENDRICK, State Bar No. 225688
COURTNEY S. COVINGTON, State Bar No. 259723 FiLED/Ef^DO KED
4 Deputy Attorneys General
1300 I Street, Suite 125 JUL 2 5 2022
5 P.O. Box 944255
Sacramento, CA 94244-2550
6 . Telephone: (916)210-7821 By: H. PEMELTON
Deputy Clerk
Fax: (916)327-2319
7. E-mail: Andrea.Kendrick@doj.ca.gov
Attorneys for Defendants
8 Exempt from filing fees under
Government Code § 6103
9
SUPERIOR COURT OF THE STATE OF CALIFORNIA
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COUNTY OF SACRAMENTO
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13 FIRE GUARD CORPORATION; Case No. 34-2019-00249221-CU-CR-GDS
BAHMAN BRIAN SHAHANGIAN, an
14 individual; and CALIFORNIA FIRE DEFENDANTS' NOTICE OF MOTION
PROTECTION COALITION, a California AND MOTION FOR SUMMARY
15 Corporation; and JUAN CARLOS DEL ADJUDICATION
TORO TREJO, an individual,
16 Reservation No.: 2649022
Plaintiffs, Date: October 11, 2022
17 Time: 1:30 p.m.
Dept.: 53
18 Trial Date: December 5, 2022
19 CALIFORNIA DEPARTMENT OF
FORESTRY AND FIRE PROTECTION;
20 CALIFORNIA OFFICE OF THE STATE
FIRE MARSHAL; MIKE RICHWINE, in
21 his official capacity as State Fire Marshal;
JEFFERY SCHWARTZ, in his official
22 capacity as Deputy State Fire Marshal; and
DOES 1 through 10, inclusive.
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Defendants.
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Defendants' Notice of Motion and Motion for Summary Adjudication (34-2019-00249221-CU-CR-GDS)
1 TO PLAINTIFFS AND THEIR ATTORNEYS OF RECORD:
2 PLEASE TAKE NOTICE THAT on October 11, 2022, at 1:30 p.m. in Department 53 of
3 the above-captioned court, located at 813 6* Street, Sacramento, Califomia 95814, defendants
4 Califomia Department of Forestry and Fire Protection, Califomia Office of the State Fire
5 Marshal, Mike Richwine, and Jeffrey Schwartz, will and hereby do move for summary
6 adjudication, pursuant to Code of Civil Procedure section 437c, of Plaintiffs' first, second, third,
7 fourth, and fifth causes of action, which are Plaintiffs' constitutional challenges to Califomia
8 Code of Regulations, title 19, Chapter 5.5, sections 920-948 (Regulations), in favor of Defendants
9 and against Plaintiffs. Defendants, collectively referred to below as the Office of the State Fire
10 Marshal (OSFM), respectfiilly request summary adjudication of all, and each, of these five causes
11 of action for declaratory relief in plaintiffs' first amended complaint.
12 This motion is made on the following grounds:
13 Issue 1: The First Cause of Action, a due process challenge based on the right to earn a
14 living in an occupation free from governmental influence, fails because the Regulations are
15 rationally related to the OSFM's significant interest in protecting public safety by regulating the
16 individuals who install water-based fire protection systems (Fire Sprinkler Fitters).
17 Issue 2: The Second Cause of Action, a due process and an equal protection challenge
18 based on alleged lack of notice of the final version of the Regulations, fails because (1)
19 procedural due process does not apply to an administrative mlemaking, which is a quasi-
20 legislative action, and (2) there is no credible argument that the challenged Regulations are
21 unconstitutional under the applicable rational basis standard.
22 Issue 3: The Third Cause of Action, a Contract Clause challenge based on alleged
23 existing and anticipated contracts that were allegedly negatively affected by the Regulations, fails
24 because (1) the Regulations are rationally related to the OSFM's significant interest in protecting
25 public safety by regulating Fire Sprinkler Fitters; (2) the delayed implementation period of the
26 Regulations allowed C-16 Contractors and journeymen Fire Sprinkler Fitters who met the
27 qualifications to become certified without taking an examination; and (3) the Contracts Clause
28 only protects vested contractual rights and any anticipated contracts are not vested.
2
Defendants' Notice of Motion and Motion for Summary Adjudication (34-2019-00249221-CU-CR-GDS)
1 Issue 4: The Fourth Cause of Action, a due process challenge based on a claim that as a
2 result of the Regulations' requirements that an individual complete an apprenticeship program
3 and pass a written examination to become a Fire Sprinkler Fitter, an individual who formerly
4 installed fire sprinklers cannot complete these requirements unless he or she has an understanding
5 of English and advanced mathematics, fails because the Regulations are rationally related to the
6 OSFM's significant interest in protecting public safety by regulating Fire Sprinkler Fitters.
7 Issue 5: The Fifth Cause of Action, a First Amendment challenge based on allegedly
8 having to associate with a union in order to comply with the Regulations, fails for reasons that
9 include that the Regulations do not require individuals to join a union.
10 This motion is based on this notice of motion and motion, the memorandum of points and
11 authorities in support of the motion, the separate statement of undisputed material facts in support
12 of the motion, the declaration of Diane K. Arend, the declaration of Al Adams, all exhibits
13 referenced in the declaration of Diane K. Arend, the pleadings and papers on file in this action,
14 and on any further evidence or matters that may properly come before the Court.
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Defendants' Notice of Motion and Motion for Summary Adjudication (34-2019-00249221-CU-CR-GDS)
1 PLEASE TAKE FURTHER NOTICE OF THE FOLLOWING: Pursuant to Local Rule
2 1.06 (A), the court will make a tentative mling on the merits of this matter by 2:00 p.m., the court
3 day before the hearing. The complete text of the tentative mlings for the department may be
4 downloaded off the court's website. If the party does not have online access, they may call the
5 dedicated phone number for the department as referenced in the local telephone directory between
6 the hours of 2:00 p.m. and 4:00 p.m. on the court day before the hearing and receive the tentative
7 mling. If you do not call the court and the opposing party by 4:00 p.m. the court day before the
8 hearing, no hearing will be held.
9 Dated: July 25, 2022 Respectfiilly submitted,
10 ROB BONTA
Attomey General of Califomia
11 RUSSELL B . HILDRETH
12 Supervising Deputy Attomey General
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^^^^^^ M/f^^..t:i^
ANDREA M. KENDRICK
15 Deputy Attomey General
16 Attorneys for Defendants
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SA2019300028
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Defendants' Notice of Motion and Motion for Summary Adjudication (34-2019-00249221-CU-CR-GDS)
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1 ROB BONTA Attomey General of Califomia 2 RUSSELL B . HILDRETH, State Bar No. 166167 Supervising Deputy Attomey General 3 ANDREA M . KENDRICK, State Bar No. 225688 COURTNEY S. COVINGTON, State Bar No. 259723 FiLED/Ef^DO KED 4 Deputy Attorneys General 1300 I Street, Suite 125 JUL 2 5 2022 5 P.O. Box 944255 Sacramento, CA 94244-2550 6 . Telephone: (916)210-7821 By: H. PEMELTON Deputy Clerk Fax: (916)327-2319 7. E-mail: Andrea.Kendrick@doj.ca.gov Attorneys for Defendants 8 Exempt from filing fees under Government Code § 6103 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SACRAMENTO 11 12 13 FIRE GUARD CORPORATION; Case No. 34-2019-00249221-CU-CR-GDS BAHMAN BRIAN SHAHANGIAN, an 14 individual; and CALIFORNIA FIRE DEFENDANTS' NOTICE OF MOTION PROTECTION COALITION, a California AND MOTION FOR SUMMARY 15 Corporation; and JUAN CARLOS DEL ADJUDICATION TORO TREJO, an individual, 16 Reservation No.: 2649022 Plaintiffs, Date: October 11, 2022 17 Time: 1:30 p.m. Dept.: 53 18 Trial Date: December 5, 2022 19 CALIFORNIA DEPARTMENT OF FORESTRY AND FIRE PROTECTION; 20 CALIFORNIA OFFICE OF THE STATE FIRE MARSHAL; MIKE RICHWINE, in 21 his official capacity as State Fire Marshal; JEFFERY SCHWARTZ, in his official 22 capacity as Deputy State Fire Marshal; and DOES 1 through 10, inclusive. 23 Defendants. 24 25 26 27 28 1 Defendants' Notice of Motion and Motion for Summary Adjudication (34-2019-00249221-CU-CR-GDS) 1 TO PLAINTIFFS AND THEIR ATTORNEYS OF RECORD: 2 PLEASE TAKE NOTICE THAT on October 11, 2022, at 1:30 p.m. in Department 53 of 3 the above-captioned court, located at 813 6* Street, Sacramento, Califomia 95814, defendants 4 Califomia Department of Forestry and Fire Protection, Califomia Office of the State Fire 5 Marshal, Mike Richwine, and Jeffrey Schwartz, will and hereby do move for summary 6 adjudication, pursuant to Code of Civil Procedure section 437c, of Plaintiffs' first, second, third, 7 fourth, and fifth causes of action, which are Plaintiffs' constitutional challenges to Califomia 8 Code of Regulations, title 19, Chapter 5.5, sections 920-948 (Regulations), in favor of Defendants 9 and against Plaintiffs. Defendants, collectively referred to below as the Office of the State Fire 10 Marshal (OSFM), respectfiilly request summary adjudication of all, and each, of these five causes 11 of action for declaratory relief in plaintiffs' first amended complaint. 12 This motion is made on the following grounds: 13 Issue 1: The First Cause of Action, a due process challenge based on the right to earn a 14 living in an occupation free from governmental influence, fails because the Regulations are 15 rationally related to the OSFM's significant interest in protecting public safety by regulating the 16 individuals who install water-based fire protection systems (Fire Sprinkler Fitters). 17 Issue 2: The Second Cause of Action, a due process and an equal protection challenge 18 based on alleged lack of notice of the final version of the Regulations, fails because (1) 19 procedural due process does not apply to an administrative mlemaking, which is a quasi- 20 legislative action, and (2) there is no credible argument that the challenged Regulations are 21 unconstitutional under the applicable rational basis standard. 22 Issue 3: The Third Cause of Action, a Contract Clause challenge based on alleged 23 existing and anticipated contracts that were allegedly negatively affected by the Regulations, fails 24 because (1) the Regulations are rationally related to the OSFM's significant interest in protecting 25 public safety by regulating Fire Sprinkler Fitters; (2) the delayed implementation period of the 26 Regulations allowed C-16 Contractors and journeymen Fire Sprinkler Fitters who met the 27 qualifications to become certified without taking an examination; and (3) the Contracts Clause 28 only protects vested contractual rights and any anticipated contracts are not vested. 2 Defendants' Notice of Motion and Motion for Summary Adjudication (34-2019-00249221-CU-CR-GDS) 1 Issue 4: The Fourth Cause of Action, a due process challenge based on a claim that as a 2 result of the Regulations' requirements that an individual complete an apprenticeship program 3 and pass a written examination to become a Fire Sprinkler Fitter, an individual who formerly 4 installed fire sprinklers cannot complete these requirements unless he or she has an understanding 5 of English and advanced mathematics, fails because the Regulations are rationally related to the 6 OSFM's significant interest in protecting public safety by regulating Fire Sprinkler Fitters. 7 Issue 5: The Fifth Cause of Action, a First Amendment challenge based on allegedly 8 having to associate with a union in order to comply with the Regulations, fails for reasons that 9 include that the Regulations do not require individuals to join a union. 10 This motion is based on this notice of motion and motion, the memorandum of points and 11 authorities in support of the motion, the separate statement of undisputed material facts in support 12 of the motion, the declaration of Diane K. Arend, the declaration of Al Adams, all exhibits 13 referenced in the declaration of Diane K. Arend, the pleadings and papers on file in this action, 14 and on any further evidence or matters that may properly come before the Court. 15 /// 16 /// 17 /// 18 19 20 21 22 23 24 25 26 27 28 „ Defendants' Notice of Motion and Motion for Summary Adjudication (34-2019-00249221-CU-CR-GDS) 1 PLEASE TAKE FURTHER NOTICE OF THE FOLLOWING: Pursuant to Local Rule 2 1.06 (A), the court will make a tentative mling on the merits of this matter by 2:00 p.m., the court 3 day before the hearing. The complete text of the tentative mlings for the department may be 4 downloaded off the court's website. If the party does not have online access, they may call the 5 dedicated phone number for the department as referenced in the local telephone directory between 6 the hours of 2:00 p.m. and 4:00 p.m. on the court day before the hearing and receive the tentative 7 mling. If you do not call the court and the opposing party by 4:00 p.m. the court day before the 8 hearing, no hearing will be held. 9 Dated: July 25, 2022 Respectfiilly submitted, 10 ROB BONTA Attomey General of Califomia 11 RUSSELL B . HILDRETH 12 Supervising Deputy Attomey General 13 14 ^^^^^^ M/f^^..t:i^ ANDREA M. KENDRICK 15 Deputy Attomey General 16 Attorneys for Defendants 17 SA2019300028 18 36372470.docx 19 20 21 22 23 24 25 26 27 28 Defendants' Notice of Motion and Motion for Summary Adjudication (34-2019-00249221-CU-CR-GDS)