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1 TIMOTHY V. KASSOUNI, SBN 142907
KASSOUNL LAW
2 455 Capitol Mall, Suite 604
3 Sacramento, CA 95814
Telephone: (916)930-0030 F!LED/ENDORSE ;D
4 Facsimile: (916)930-0033
E-Mail: Timothy@Kassounilaw.com SEP 2 7 2022
5
p Marrlnnalfl
6 Attorneys for Plaintiffs Bv: Oeputy Clerk
FIRE GUARD CORPORATION, BAHMAN BRIAN
7 SHAHANGIAN, and JUAN CARLOS DEL TORO TREJO
8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
CITY AND COUNTY OF SACRAMENTO
10
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o FIRE GUARD CORPORATION; Case No: 34-2019-00249221-CU-CR-GDS
o 11 BAHMAN BRIAN SHAHANGIAN, an
individual; and CALIFORNL^ FIRE
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12 PROTECTION COALITION, a Califomia
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OPPOSITION TO DEFENDANTS'
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16 MOTION TOR SUMMARY
ADJUDICATION
17 CALIFORNIA DEPARTMENT OF
FORESTRY AND FIRE PROTECTION;
18 CALIFORNIA OFFICE OF THE STATE Date: October 11,2022
FIRE MARSHAL; DENNIS MATHISEN, Time: 1:30 p.m.
19 Dept.: 53
in his ofBcial capacity as State Fire
Trial Date: December 5, 2022
20 Marshal; JEFFERY SCHWARTZ, in his
ofBcialcapacity as Deputy State Fire
21 Marshall; and and DOES 1 - 10, inclusive,
22 Defendants.
23
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MEMORANDUM OF POI>JTS AND AUTHORITIES FN OPPOSITION
TO DEFENDANTS' MOTION FOR SUMMARY ADJUDICATION
_BLED_B_Y_EAX_
by RiverCityPfOcessService.conn
1 TABLE QF CONTENTS
2
3 INTRODUCTION 5
4 STATEMENT OF FACTS 6
5
A. The Regulatory Scheme 6
6
B. Industry Practice 8
7
C. Lack of Non-Union Apprenticeship Facilities 9
8
D. The NFPA Study 9
9
m 10 ARGUMENT 10
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11 I. SUMMARY ADJUDICATION OF PLAINTIFFS' FIRST AND
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SECOND CAUSES OF ACTION SHOULD BE DENIED BECAUSE
•t , 12 THE REGULATIONS VIOLATE FUNDAMENTAL VESTED
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tS\ 13 RIGHTS, THERE ARE TRIABLE ISSUES OF FACT REGARDING
U u. THE "CONCERNS" WHICH ALLEGEDLY MOTIVATED
d • 14 CREATION OF THE REGULATORY SCHEME, AND THE
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iS io 15 IVIOTION FAILS TO ADDRESS A L L DISCRETE CLAIMS 10
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16 II. SUMMARY ADJUDICATION OF PLAINTIFFS' THIRD CAUSE OF
ACTION SHOULD BE DENIED BECAUSE THERE ARE TRIABLE
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ISSUES OF FACT REGARDING VIOLATION OF THE
18 CONTRACTS CLAUSE 13
19 III. SUMMARY ADJUDICATION OF PLAINTIFFS' FOURTH CAUSE
OF ACTION SHOULD BE DENIED BECAUSE THERE ARE
20
TRIABLE ISSUES OF FACT REGARDING VIOLATION OF
21 PLAINTIFFS' DUE PROCESS RIGHTS. 15
22 IV. SUMMARY ADJUDICATION OF PLAINTIFFS' FIFTH CAUSE OF
23 ACTION SHOULD BE DENIED BECAUSE THE REGULATIONS
VIOLATE PLAINTIFFS' FREEDOM OF ASSOCIATION, AND
24 THERE IS A TMABLE ISSUE OF FACT AS TO THE
AVAILABILITY OF NON-UNION APPRENTICESHIP
25
PROGRAMS 17
26
CONCLUSION 19
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MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION
TO DEFENDANTS' MOTION FOR SUMMARY ADJUDICATION
1 TABLE OF AUTHORITIES
2 Cases Page
3 Allied Structural Steel Co. v. Spannaus (1978) 438 U.S. 234 14
4 Anton V. San Antonio Community Hosp. (1977) 19 Cal. 3d 802 12
5 Arneson v. Fox (1980) 28 Cal. 3d 440 12
6 Bixby V. Pierno (1971) 4 Cal 3d 130 12
7 Board of Regents v. Roth (1972) 408 U.S. 564 18
8 Cartwright v. Board of Chiropractic Examiners (1976) 16 Cal. 3d 762 12
9 Conn V. Gabbert (1999) 526 U.S. 286 16, 17
m 10 Cranston v. City of Richmond (19^5) 40 Cal.3d 755 , 11
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o 11 Dittman v. State of California (9di Cu. 1999) 191 F.3d 1020 18
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00 — 12 Drummey v. State Bd of Funeral Directors (1939) 13 Cal. 2d 75 12
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< 'i 13 Energy Reserves Group v. Kansas Power & Light Co. (1983) 459 U.S. 400 14, 15
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1/3
t/5
U 15 (Ith Ck. 1984) 743 F.2d 1187 18,19
16 Hughes V. Board ofArchitectural Examiners (1998) 17 Cal.4"' 763 11, 12
17 Janus v. AFSCME, Council 31 (2018) 138 S. Ct. 2448 19
18 Kahawaiolaa v, Norton (9th Cir. 2004) 386 F.3d 1271 18
19 Laisne v. Cal. St Bd of Optometry (1942) 19 Cal . 2d 831 12
20 Lowe V. SEC. (1985) 472 U.S. 181 : 17
21 Meyer V. Nebraska (1923) 262 U.S. 390 , 11
22 Mulhall v. Unite Here Local 355 (11th Cir. 618 F.3d 1279 19
23 Newlandv. Board of Governors (1977) 19 Cal. 3d 705..;..; 12
24 Perr ine v. Municipal Court for East Los Angeles Judicial District
25 (1971)5 Cal.3d 656; 16
26 Roberts v. United States Jaycees (1984) 468 U.S. 609 18
27 Sail'er Inn, Inc. v. Kirby (1971) 5 Cal. 3d 1 11
28 Schware v. Board of Bar Examiners (1957) 353 U.S. 232 11
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION
TO DEFENDANTS' MOTION FOR SUMMARY ADJUDICATION
1 Sveen v. Melin (2018) 138 S. Ct. 1815 .- 14, 15
2 Trujillo V. County of Santa Clara {9th Cu. 1985) 775 F.2d 1359 16
3 United States Trust Co. v. New Jersey {1911) 431 U.S., 1 15
4 Unterthiner v. Desert Hospital DisL (1983) 33 Cal. 3d 285 12
5 Wedges/Ledges of California, Inc. v. City of Phoenix
6 (9th Cir. 1994) 24 F.3d 56... 18
7 Whole Woman's Health v. Hellerstedt (2016) 579, U.S. 582 19
8
9 Codes, Statutes and Regulations
10 19 C.C.R, §924.1 5,6, 7, 11
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11 19 C.C.R. §§ 939 and 945 ; „. , 5
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California Code of Regulations, Section 925 5
16 Califomia Code of Regulations, section 938 ; • 5
17 Califomia Code of Regulations, Section 939 5, 7, 11,12, 15
18 California Code of Regulations, Section 945 i. 5, 7, 11
19 Health and Safety Code § 13110 • , ..... 6
20 Title 19, Division 1, Chapter 5.5 of the Califomia Code of Regulations 5, 7
21
22 U.S. Constitution
23 Contract Clause of the United States Constitudon 14, 15, 16
24 Due Process Clause of the Fourteenth Amendment 11, 16, 17
25 U.S. Const., art. 1, § 10 : 14
26
27
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MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION
TO DEFENDANTS' MOTION FOR SUMMARY ADJUDICATION
1 INTRODUCTION
2 Plaintiffs Fire Guard Corporation, Bahman Brian Shaliangian, and Juan Carlos Del
3 Toro Trejo ("Plaintiffs") hereby oppose the motion for summary adjudication brought by
4 Defendants as to the first, second, third, fourth, and fifth causes of action of the operative First
5 Amended Complaint ("FAC"). The sixth and seventh causes of action are not included in the
6 motion.
7 For several,reasons, the motion should be denied. First, Defendants ignore die express
8 request in the FAC at 3:25-28 for a declaration from diis Court resolving the fundamental
9 inconsistency between 19 C.C.R. § 924.1, and 19 C.C.R. §§ 939 and 945.' The former
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ra 10 includes within the defuiition of a "Certified Fue Spritikler Fitter" one holding a C-16 license
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O a. Second, the lynchpm of Defendants' justification of the pipefitter certification
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regulatoi^' scheme are imidentified "concems" raised by the public and industry. (See
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,5 Defendants' Undisputed Material Fact Nos. 3 and 11 (as to Plaintiffs' First and Third Causes
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of action).) Yet there is no evidence cited for these alleged "concems," and they are otherwise
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belied by an exhaustive analysis of the source offiresby the National Fire Protection
18
Association (NFPA). The NFPA failed to identify one confirmed instance of a fire caused by
19
improper installation.
20
Third, the Califomia and United States Supreme Courts have held that an
21
individual, having obtained a license required to engage in a particular profession or vocation,
22
has a "fitndamental vested right" to continue in that activity. (Unterthiner v. Desert Hospital
23
Dist. (1983) 33 Cal. 3d 285, 296-297. Those with existing C-16 licenses are at risk of not
24
being able to undertake their profession as commercial pipefitters. Defendants have construed
25
the regulatory scheme as requiring existing C-16 pipefitters to take an examination even
26
though C.C.R section 924.1 defmes a "certified" fire sprinkler fitter as one who has an active
27
28 ' All code references v^ll be to Title 19 of the Califomia Code of regulations, unless otherwise
noted.
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MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION
TO DEFENDANTS' MOTION FOR SUMMARY ADJUDICATION
1 The regulations pertain to the qualifications and certifications of those seeking to work
2 as Fire Sprinkler Fitters (hereafter "pipefitters"). The stated purpose of the regulations is lo
3 "improve the performance; and reliability of water-based fire protection systems by providing
4 a means to certify and register any person who installs, alters, repairs, or adds appurtenances
5 to such systems." (Section 922.)
6 Section 924.1 defines a "certified" fire sprinklerfitteras one who completed an
7 apprenticeship program, or possesses an active CSLB Crl6 license, or possesses a sprinkler
8 fitter certification card issued by the Office of the State Fire Marshal (OSFM). Thus,
9 possession of an active C-16 license alone is sufficient for "certification." Section 925
10 specifies that anyone engagmg in commercial fire sprinkler installations to be "certified" or
11 "registered," including employees of a C-16 license holder.
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Pursuant to section 938, to obtain an apprenticeship registration an employee must be
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16 years old, complete an AES 1005A application, must be accepted into an apprenticeship
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§ - o *• 14 program, and submit proof of employment with a C-16 contractor. Section 939 states that to
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^u i s be "certified" as a fire sprinkler fitter an applicant shalj be at least 16 years old, shall complete
16
an AES 1005 application, shall provide either proof of completion of an apprenticeship
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program or proof of a valid C-16 license, and shall pass a written examination. Thus, even if
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one holds a valid C-16 license, a written examination is required prior to certification; This is
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in direct conflict with the above-referenced definition of a "certified" fire sprinkler as one who
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possesses an active C-16 license alone.
21
Section 945 further requires that an "applicant" for certification have performed 7000
22
hours in an apprenticeship program and have five years of experience within the scope of the
23
regulations. This is also in direct conflict with the above-referenced definition of a "certified"
24
pipefitter as one who possesses an active C-16 license. This section also prohibits licensed C-
25
16 pipefitters from practicing their trade iftiieydo not have the requisite 7000 hours in an
26
apprenticeship program and five years of experience, even though the CSLB has no such
27
requirements. However, there is an ambiguity in this section as to whether the requirement of
28
7000 hours in an apprenticeship program and five years of experience ordy applies to an
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MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION
TO DEFENDANTS' MOTION FOR SUMMARY ADJUDICATION
1 C-16 license. In addition, Plaintiffs Shahangian and Fire Guard Corporation exclusively work
2 widi lyater-based systems, thus the suggestion by Defendants that non-water based systems
3 will allow businesses to survive is factually disputed. This Court's independent judgment is
4 required, not obeisance. Defendants' suggestion that the Due Process challenge fails because
5 licensed C-16 contractors are not prevented from working on "fire protection systems other
6 than the water-based fire protection systems" (Points and Authorities at 19:18-20) is akin to
7 preventing lawyers from practicing litigation, with the justification that they can always do
8 transactional law.
9
Fourth, Defendants attempt to summarily adjudicate the irnpairment of contract and
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O freedom of association claims should be rejected. Defendants have failed to proffer evidence
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m of the number (if any) of non-union apprenticeship programs capable of meeting demand.
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Finally, Defendants submit the Declaration of Alvin Adams, who represents to this
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^ Court that a Spanish interpreter vvill be made available upon request for those who do speak
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English and intend to take the examination. This should be reflected in the Court's ruling.
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For the foregoing reasons, the motion should be denied.
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STATEMENT OF FACTS
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A. The Regulatory Scheme
18
Defendant Office of the State Fire Marshal, and. Defendant Mr. Mathisen as State Fire
19
Marshal, were granted discretionary authority by the State Legislature under Health and
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Safety Code § 13110 to "propose, adopt, and administer the regulations [he] deems necessary
21
in order to ensure fire safety in buildings and structiu-es within this state including regulations
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related to...certification, registration, licensing, reporting, operation, and maintenance." On
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February 3, 2017, Mr. Mathisen in his official capacity as State Fire Marshal submitted
24
proposed regulations to the Stiate Office of Administrative Law (OAL) on the subject of
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"Automatic Fire Extinguishing Systems-Certification." The OAL approved the regulations,
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which became effective on July 1,2017.
27
The regulations are contained within Title 19, Division 1, Chapter 5.5 of the Califomia
28
Code of Regulations, and are included ui Defendants' Exhibit F.
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MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION
TO DEFENDANTS' MOTION FOR SUMMARY ADJUDICATION
1 applicant for certification who is not ah-eady in possession of a C-16 license. It is Plaintiffs'
2 position that it can only legally apply to applicants who are not existing C-16 license holders.
3 B. Industry Practice
4 As set forth in the accompanying Declaration of Plaintiff Bahman Brian Shahangian, a
5 pipefitter is an individual that installs the pipes and other components of fire sprinkler systems
6 in commercial and i-esidential buildings in accordance with the approved plans prepared by
7 the C-l 6 license holder or others who are qualified and licensed to designfiresprinkler
8 systems. (Shahangian Decl. at ^ 4.)
9 Once a C-16 licensed contractor secures a project, the license holder or a
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o qualified designer will design the fire sprinkler system based on the architectural plan of the
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U u. requirements for the building type and the occupancy. The design layout and the hydraulic
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approval. The AHJ is generally eidier an engineering department within a city or the fire
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prevention office of the fire department. The plans and the calciilations are thoroughly
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reviewed and commented on if necessary, until the final plans and calculations meet or exceed
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the National Fire Protection Association (NFPA) code requirements, as well as any added
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local requirements. Once it is determined that the plans meet all applicable, codes, the
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appropriate authorities approve the plans and sign off on them. (Shahangian Decl. atH 5.)
21
The approved plans are then used to perform the work and obtain inspections at every
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stage of the work. The pipefitter's responsibility is to install the system in accordance with the
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approved plans. Each stage of the work is inspected by AHJ to ensure adherence lo the
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approved plans. I f for any reason a significant modification to the plan is necessary, the plans
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will have to be revised and recalculated and go through the plan check and approval process
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before the inspectors would inspect the installation. Therefore, it is not necessary to have
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knowledge of design or hydraulic calcidations to perform this work; (Shahangian Decl. at ^ 6.)
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If a pipefitter has some experience reading plans, can count, perform simple matii and
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MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION
TO DEFENDANTS' MOTION FOR SUMMARY ADJUDICATION
1 can read a tape measure, he or she can safely follow the installation plans necessary to install
2 fire sprinkler systems. Proficiency is primarily gained by experience in the installation tasks in
3 different settings and situations with proper training and supervision, as well as the physical
4 ability to perform the work. Mr. Shahangian has never hired a pipefitter who lacks these
5 ftmdamentals, nor has he known of any instances where pipefitters have been hired by other C
6 -16 contractors without thesefimdamentals.(Shahangian Decl. at ^ 7.)
7 In addition to C-16 licensed pipefitters and unlicensed pipefitters, a typical job-site
8 will also include "Helpers." Helpers perform rudimentary tasks under the direct super\'ision of
9 pipefitters, such as carrying materials, cutting pipe, or installing pipe hangers. Helpers can use
10 this experience to leam the trade and eventually transition into becoming pipefitters
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11 themselves. (Shahangian Decl. at *| 8.)
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> B^ Traditionally, tiie C-r6 license holder that hires pipefitters utilizes them according to
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improvement project. Similarly, a pipefitter with a few years of experience that is not versed
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Os in different systems is not put on a project that involves fire pump, pre-action, deluge, or other
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similarly complex systems. The C-16 licensed contractor is ultimately responsible and liable
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for all work performed under his or her license. It is the responsibility of the C-16 license
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holder to utilize the different experience levels and expertise of pipefitter employees
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appropriately. (Shahangian Decl. at H 9.)
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C. Lack of Non-Union Apprenticeship Facilities
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Based upon Mr. Shahangian's experience, the infrastructure needed to implement this
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regulation is not in place and a uniform procedure has not been developed. The OSFM is not
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able to handle applications and inquiries in a timely manner. Its process is slow, non-
25
responsive, and inconsistent when dealing with similar situations. (Shahangian Decl. at ^ 13.)
26
D. The NFPA Study
27
Included in the mle making file is an NFPA study that found no confirmed instances
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offiresresulting from improper installation. (Plaintiffs' Ex. 1.)
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MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION
TO DEFENDANTS' MOTION FOR SUMMARY ADJUDICATION
1 ARGUMENT
2 SUMMARY ADJUDICATION OF PLAINTIFFS' FIRST AND SECOND
CAUSES OF ACTION SHOULD BE DENIED BECAUSE THE
3 REGULATIONS VIOLATE FUNDAMENTAL VESTED RIGHTS, THERE
4 ARE TRIABLE ISSUES OF FACT REGARDING THE "CONCERNS" WHICH
ALLEGEDLY MOTIVATED CREATION OF THE REGULATORY SCHEME,
5 AND THE MOTION FAILS TO ADDRESS A L L DISCRETE CLAIMS
6
As noted above, the motion fails to address Plaintiffs' request for declaratory relief
7
regarding the fiindamental inconsistency between section 924.1, and sections 939 and 935.
8
The former includes within the definition of a "Certified Fire Sprinkler Fitter" those holding a
9
C-16 license only. The latter sections set forth additional examination requirements. Section
10
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I 945, for example, fiarther requires that an "applicant" for certification have performed 7000
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hours in an apprenticeship program and have five years of experience within the scope of the
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regulations. Defendants ignore section 924.1, thus the motion should be denied as a central
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component of the FAC is not addressed. A "'statute which either forbids or requires the doing
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of an act in terms so vague that men of common intelligence must necessarily guess at its
25 15
so meaning and differ as to its application, violates the first essential of due process of law.'"
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{Cranston v. City of Richmond (1985) 40 Cal.3d 755, 763.)
17
18 C.C.P. section 437c, sub, (t) allows the summary adjudication of a discrete component
19 of a cause of action provided certain procedural requirements are, including a stipulation of
20 the parties. This was not done.
21 In addition. Defendants misstate the law regarding the fundamental liberty interest in
22 engaging in a profession, particularly a profession in which a license has already been
23 issued. As recognized by the Califomia Supreme Court, "[i]t is axiomatic that the right to
24 pursue one's chosen profession is a fiindamental liberty protected by the due process clauses
25 of the Fifth and Fourteenth Amendments, and that therefore his license, once obtained, may
26 not be revoked based upon prelicensure wrongful conduct." {Hughes v. Board of Architectural
27 Examiners (1998) 17 Cal.4* 763, 788 [citing .ScMvare v. Board of Bar Examiners (1957) 353
28 U.S. 232, 238-239; Meyer v. Nebraska (1923) 262 U.S. 390, 399; Sail'er Inn. Inc. v. .
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MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION
TO DEFENDANTS' MOTION FOR SUMMARY ADJUDICATION
1 A:/>6>' (1971) 5 Cal. 3d 1, 17; Bixby v. Pierno (1971) 4 Cal. 3d 130, 145,fii.12].)
2 Therefore, for example, a statute constitutionally can prohibit an individual from
3 practicmg a lawful profession only for reasons related to his or her fitiiess or competence to
4 practice tiiat profession. ( Arneson v. Fox (1980) 28 Cal. 3d 440, 448; Newland v. Board of
5 Governors (1977) 19 Cal. 3d 705, 711; Cartwright v. Board of Chiropractic
6 Examiners (1976) 16 Cal. 3d 762, 767.)
7 As the regulatory scheme has nothing to do withfitness,competence, or other failings
8 warranting revocation of a license, existing C-16 licensees have a fundamental vested right
9 which mandates this Court's independent judgment. As the Califomia Supreme Court in
ro 10 Hughes V. Board ofArchitectural Examiners further recognized, "... [I]n the context of a
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obtained the license required to engage in a particular profession or vocation, has a
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f{ ^ 13 fundamental vested right' to continue in that activity." Id. at 788-789, citing Unterthiner v.
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in .ts Desert Hospital Dist. (1983) 33 Cal. 3d 285, 296-297 [physician licensed to practice
IT)
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medicine has a vested right to practice his profession]; Anton v. San Antonio Community
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Hosp. (1977) 19 Cal. 3d 802, 823 [physician has a fundamental vested right to contuiue to
17
practice in a hospital]; Laisne v. Cal St Bd of Optometry (1942) 19 Cal. 2d 831, 835 [right to
18
practice optometry is a vested property right]; Druwwey v. State Bd. of Funeral
19
Directors (1939) 13 Cal. 2d 75, 84 [funeral director's and embalmer's licenses characterized as
20
"existing valuable privilege[s]"],)
21
Application of the independent judgment standard of review exposes the regulatory
22
scheme as nothing but a house of cards, with no factual support. Indeed, Defendants fail to
23
cite to one study, report, or analysis which supports the notion that pipefitters have caused fire
24
related incidents. On the contrary, the NFPA perfonned an exhaustive study of fire related
25
incidents and failed to identify one confirmed incident attributable to pipefitter installation (as
26
opposed to design or other cause). (See Plaintiffs' Ex.1.) ^ Ironically, the NFPA study was
27
28 ^ The NFPA study is contained in relevant part in Plaintiffs' Ex. 1; the entire document is
almost 100 pages long.
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MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION
TO DEFENDANTS' MOTION FOR SUMMARY ADJUDICATION
1 cited by the OFSA as primary support for its regulatory scheme. (Plaintiffs' Ex. 2) This
2 creates triable issues of fact.
3 The record reveals that a comprehensive study of sprinkler failiu-es was conducted by
4 the National Fire Protection Association (NFPA) in 2013. That smdy found that "[s]prinklers
5 operated in 91% of all reported stmcttire fires large enough to activate sprinklers, excluding
6 buildings tmder constmction and buildings without sprinklers in the fire area." Only 7% of
7 sprinkler failures were attributed to component damage and none of these purported failures
8 were attributed to improper sprinkler installation.
9 When sprinklers failed to operate, the reason most often given (64% of failures), was
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ro shutoff of the system before the fire began, as may occur in the course of routine inspection
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11 or maintenance. Yet separate regulations already require that all supply valves be
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12 electronically monitored lo notify responsible personnel if the valves are not fiilly open. Thus,
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eo 13 the regulatory scheme at issue herein is unnecessary for this purpose.
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14 The second reason proffered by NFPA for sprinkler failure is manual intervention that
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t o 15 defeated the system (17% of failures). This also has notiiing to do with quality of installation
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16 or pipefitter expertise. This issue arises when building owners or occupants modify the
17 building or otherwise compromise the operation of the fire sprinkler system. Thus, the
18 regulatory scheme at issue herein is unnecessary for this purpose.
19 The third reason proffered by N F P A for sprinkler failure is lack of maintenance (6%
< i 20 of failures)! This has nothing to do with the quality of installation. Rather, in order to save
21 money on operating costs some building owners fail to hire a fire protection contraclor lo
22 periodically inspect the fire sprinkler system, and to perform any required maintenance. As a
23 result, some buildings are not managed professionally and are not adequately maintained.
24 Thus, the regulatory scheme at issue herein is unnecessary for this purpose.
,25 The fourth reason proffered by NFPA for sprinkler failure is installation of an
26 inappropriate system for certain types of fire (5%). This typically occtu-s when a building
27 which is initially designed for a tenant with a certain fire risk is later occupied by a tenant
28 with a higher fire risk. For example, a warehouse with a fire sprinkler system designed for
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MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION
TO DEFENDANTS' MOTION FOR SUMMARY ADJUDICATION
1 ordinary hazard occupancy later becomes vacant, and the owner leases it to a new tenant with
2 an operation classified as Extra Hazard Occupancy. Thus, Uie regulatory scheme at issue
3 herein is uimecessary for this purpose.
4 Moreover, no evidence was included in the record of a single sprinkler failure during
5 fire attributable to improper installation by a C-16 license holder, or pipefitters working for a
6 C-16 license holder. Given the evidence that improper sprinkler installation is nol causing
7 wdespread safety problems, there is no rational basis for placing duplicative and burdensome
8 regulations on C-16 license holders and pipefitters working imder their supervision, given
9 that the C-16 license holder is ultimately responsible and liable for all work perforrned by
ro
ro 10 himself and all pipefitters working under his supervision. There is certainly no basis for it
o
o
11 under an independent judgment standard of review.
O — so o>
OS — 12 To the extent any rational basis for these requirements exists, the connection to public
> B lA) o^.
< in
-3 _- 13 health and safety is so tenuous and so out of proportion lo the burden of the requirements on
5^ 0 "
O o
00 .s 1 - 14 C-16 license holders and their pipefitters that these restrictions should be struck down as pure
oo CL 1 ^ 15 protectionism and a violation of fundamental vested rights.
uo a ro
15 to identify a legitimate public piupose for adopting the regulations leads to the conclusion that
00 —
OS 12 apprenticeship examination. Not only do these requirements have no bearing on whether an
S 2 OS
< oo
d = < ?5
z .0 ^ • 13 individual has the ability or skills needed to perform successfully as a pipefitter, they
^ _ o
O o " O
i n .t; ro 14 undoubtedly will stand as an obstacle to many highly qualified candidates having the
00 Q.
So I 15 opportunity to work in their chosen ttade. For these reasons, the Regulations relating to the
.5
(Zl
so
16 apprenticeship examination violate due process.
f- 17 Under these circumstances, it is iiot surprismg that Defendants do.not even attempt to
18 demonsttate how the apprenticeship examination requirements comply wilh due process.
19 Instead, tiiey merely make the bare, unsupported assertion tiiat the apprenticeship examination
20 requirement is rationally related to a legitimate government interest, defend the use of an
21 English-only requirement for the examination, and attempt to shift responsibility for tiie
22 examination requirements to the California Apprenticeship Council when they are responsible
23 for the adoption of the Regulations. No matter how Defendants seek to obfuscate the issue,
24 they cannot avoid that the apprenticeship examination requirement violates the Due Process
25 Clause. The Court therefore should deny Defendants' request for summary adjudication of
26 Plaintiffs' fourth cause of action in its entirety.
27 Alternatively, this Court should deny the motion as Defendants have now
28 acknowledged that examinees will be afforded the opportunity to have a Spanish interpreter.
^16;:
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION
TO DEFENDANTS' MOTION FOR SUMMARY ADJUDICATION
l (See Decl. of Alvin Adams.)
2 IV. SUMMARY ADJUDICATION OF PLAINTIFFS' FIFTH CAUSE OF ACTION
SHOULD BE DENIED BECAUSE THE REGULATIONS VIOLATE
3 PLAINTIFFS' FREEDOM OF ASSOCIATION, AND THERE IS A TRIABLE
4 ISSUE OF FACT AS TO THE AVAILABILITY OF NON-UNION
APPRENTICESHIP PROGRAMS
5
Thefreedomof association is a flmdanienlal right guaranteed by the First Amendment
6
to the United Stales Constitution. (i?oi)em v. United States Jaycees (1984) 468 U.S. 609,617-
7
6 n Kahawaiolaa v. Norton {9th Cir, 2004) 386 F.3d 1271, 1277.) The Supreme Court has
8
long recognized that "[g]ovemment actions that may unconstitutionally infringe upon this
9
freedom can take a number of forms." {Roberts v. United States Jaycees, supra, 468 U.S. at p.
ro
ro 10
O
O
I 622.) Specifically, this freedom has both "a negative as well as a positive dimension."
o
ro
11
OS
\o 00
-
- - o.
/ V {Hudson V. Chicago Teachers Union Local No. 1 {1th Cir. 1984) 743 F.2d 1187, 1193.) Not
—
aj i r , OS
12
< C/5 OS
only does the right to freedom of association protect a "collective effort on behalf of shared
^ « u tS
13
2 o • goals," it also "presupposes a freedom not to associate." {Roberts v. United States Jaycees,
1/3
Preview
1 TIMOTHY V. KASSOUNI, SBN 142907 KASSOUNL LAW 2 455 Capitol Mall, Suite 604 3 Sacramento, CA 95814 Telephone: (916)930-0030 F!LED/ENDORSE ;D 4 Facsimile: (916)930-0033 E-Mail: Timothy@Kassounilaw.com SEP 2 7 2022 5 p Marrlnnalfl 6 Attorneys for Plaintiffs Bv: Oeputy Clerk FIRE GUARD CORPORATION, BAHMAN BRIAN 7 SHAHANGIAN, and JUAN CARLOS DEL TORO TREJO 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 CITY AND COUNTY OF SACRAMENTO 10 o o FIRE GUARD CORPORATION; Case No: 34-2019-00249221-CU-CR-GDS o 11 BAHMAN BRIAN SHAHANGIAN, an individual; and CALIFORNL^ FIRE — VO 00 — "O OS 12 PROTECTION COALITION, a Califomia < on o • OS OPPOSITION TO DEFENDANTS' o>. 16 MOTION TOR SUMMARY ADJUDICATION 17 CALIFORNIA DEPARTMENT OF FORESTRY AND FIRE PROTECTION; 18 CALIFORNIA OFFICE OF THE STATE Date: October 11,2022 FIRE MARSHAL; DENNIS MATHISEN, Time: 1:30 p.m. 19 Dept.: 53 in his ofBcial capacity as State Fire Trial Date: December 5, 2022 20 Marshal; JEFFERY SCHWARTZ, in his ofBcialcapacity as Deputy State Fire 21 Marshall; and and DOES 1 - 10, inclusive, 22 Defendants. 23 24 25 26 27 28 -I- MEMORANDUM OF POI>JTS AND AUTHORITIES FN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY ADJUDICATION _BLED_B_Y_EAX_ by RiverCityPfOcessService.conn 1 TABLE QF CONTENTS 2 3 INTRODUCTION 5 4 STATEMENT OF FACTS 6 5 A. The Regulatory Scheme 6 6 B. Industry Practice 8 7 C. Lack of Non-Union Apprenticeship Facilities 9 8 D. The NFPA Study 9 9 m 10 ARGUMENT 10 o o I 11 I. SUMMARY ADJUDICATION OF PLAINTIFFS' FIRST AND o SECOND CAUSES OF ACTION SHOULD BE DENIED BECAUSE •t , 12 THE REGULATIONS VIOLATE FUNDAMENTAL VESTED < — vc Vi 00 — >r\ 0\ tS\ 13 RIGHTS, THERE ARE TRIABLE ISSUES OF FACT REGARDING U u. THE "CONCERNS" WHICH ALLEGEDLY MOTIVATED d • 14 CREATION OF THE REGULATORY SCHEME, AND THE C/} CL iS io 15 IVIOTION FAILS TO ADDRESS A L L DISCRETE CLAIMS 10 y m 16 II. SUMMARY ADJUDICATION OF PLAINTIFFS' THIRD CAUSE OF ACTION SHOULD BE DENIED BECAUSE THERE ARE TRIABLE 1^ 17 ISSUES OF FACT REGARDING VIOLATION OF THE 18 CONTRACTS CLAUSE 13 19 III. SUMMARY ADJUDICATION OF PLAINTIFFS' FOURTH CAUSE OF ACTION SHOULD BE DENIED BECAUSE THERE ARE 20 TRIABLE ISSUES OF FACT REGARDING VIOLATION OF 21 PLAINTIFFS' DUE PROCESS RIGHTS. 15 22 IV. SUMMARY ADJUDICATION OF PLAINTIFFS' FIFTH CAUSE OF 23 ACTION SHOULD BE DENIED BECAUSE THE REGULATIONS VIOLATE PLAINTIFFS' FREEDOM OF ASSOCIATION, AND 24 THERE IS A TMABLE ISSUE OF FACT AS TO THE AVAILABILITY OF NON-UNION APPRENTICESHIP 25 PROGRAMS 17 26 CONCLUSION 19 27 28 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY ADJUDICATION 1 TABLE OF AUTHORITIES 2 Cases Page 3 Allied Structural Steel Co. v. Spannaus (1978) 438 U.S. 234 14 4 Anton V. San Antonio Community Hosp. (1977) 19 Cal. 3d 802 12 5 Arneson v. Fox (1980) 28 Cal. 3d 440 12 6 Bixby V. Pierno (1971) 4 Cal 3d 130 12 7 Board of Regents v. Roth (1972) 408 U.S. 564 18 8 Cartwright v. Board of Chiropractic Examiners (1976) 16 Cal. 3d 762 12 9 Conn V. Gabbert (1999) 526 U.S. 286 16, 17 m 10 Cranston v. City of Richmond (19^5) 40 Cal.3d 755 , 11 o o o 11 Dittman v. State of California (9di Cu. 1999) 191 F.3d 1020 18 0\ o .-V >"° — VO 00 — 12 Drummey v. State Bd of Funeral Directors (1939) 13 Cal. 2d 75 12 < 00 -3 _•• ~ CO < 'i 13 Energy Reserves Group v. Kansas Power & Light Co. (1983) 459 U.S. 400 14, 15 o" • o c ® 14 Hudson V, Chicago Teachers Union Local No. I 1/3 t/5 U 15 (Ith Ck. 1984) 743 F.2d 1187 18,19 16 Hughes V. Board ofArchitectural Examiners (1998) 17 Cal.4"' 763 11, 12 17 Janus v. AFSCME, Council 31 (2018) 138 S. Ct. 2448 19 18 Kahawaiolaa v, Norton (9th Cir. 2004) 386 F.3d 1271 18 19 Laisne v. Cal. St Bd of Optometry (1942) 19 Cal . 2d 831 12 20 Lowe V. SEC. (1985) 472 U.S. 181 : 17 21 Meyer V. Nebraska (1923) 262 U.S. 390 , 11 22 Mulhall v. Unite Here Local 355 (11th Cir. 618 F.3d 1279 19 23 Newlandv. Board of Governors (1977) 19 Cal. 3d 705..;..; 12 24 Perr ine v. Municipal Court for East Los Angeles Judicial District 25 (1971)5 Cal.3d 656; 16 26 Roberts v. United States Jaycees (1984) 468 U.S. 609 18 27 Sail'er Inn, Inc. v. Kirby (1971) 5 Cal. 3d 1 11 28 Schware v. Board of Bar Examiners (1957) 353 U.S. 232 11 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY ADJUDICATION 1 Sveen v. Melin (2018) 138 S. Ct. 1815 .- 14, 15 2 Trujillo V. County of Santa Clara {9th Cu. 1985) 775 F.2d 1359 16 3 United States Trust Co. v. New Jersey {1911) 431 U.S., 1 15 4 Unterthiner v. Desert Hospital DisL (1983) 33 Cal. 3d 285 12 5 Wedges/Ledges of California, Inc. v. City of Phoenix 6 (9th Cir. 1994) 24 F.3d 56... 18 7 Whole Woman's Health v. Hellerstedt (2016) 579, U.S. 582 19 8 9 Codes, Statutes and Regulations 10 19 C.C.R, §924.1 5,6, 7, 11 o o 11 19 C.C.R. §§ 939 and 945 ; „. , 5 OS s — >o 00 — 12 C.C.P. section 437c, sub. (t) 11 »Ai OS < 55 ;^ ^ 13 CaL Code Regs,, tit. 19, § 939.... 5 is O o o 14 California Code of Regulations, Section 922 5 00 C L O O < (3 O 15 OS California Code of Regulations, Section 925 5 16 Califomia Code of Regulations, section 938 ; • 5 17 Califomia Code of Regulations, Section 939 5, 7, 11,12, 15 18 California Code of Regulations, Section 945 i. 5, 7, 11 19 Health and Safety Code § 13110 • , ..... 6 20 Title 19, Division 1, Chapter 5.5 of the Califomia Code of Regulations 5, 7 21 22 U.S. Constitution 23 Contract Clause of the United States Constitudon 14, 15, 16 24 Due Process Clause of the Fourteenth Amendment 11, 16, 17 25 U.S. Const., art. 1, § 10 : 14 26 27 28 -4- MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY ADJUDICATION 1 INTRODUCTION 2 Plaintiffs Fire Guard Corporation, Bahman Brian Shaliangian, and Juan Carlos Del 3 Toro Trejo ("Plaintiffs") hereby oppose the motion for summary adjudication brought by 4 Defendants as to the first, second, third, fourth, and fifth causes of action of the operative First 5 Amended Complaint ("FAC"). The sixth and seventh causes of action are not included in the 6 motion. 7 For several,reasons, the motion should be denied. First, Defendants ignore die express 8 request in the FAC at 3:25-28 for a declaration from diis Court resolving the fundamental 9 inconsistency between 19 C.C.R. § 924.1, and 19 C.C.R. §§ 939 and 945.' The former m ra 10 includes within the defuiition of a "Certified Fue Spritikler Fitter" one holding a C-16 license O o o I 11 only. The latter sets forth an additional examination requirement. Defendants ignore section cn o OS — VO 00 — m Os 12 924,1. <, Cri OS ^ I—i " 13 O a. Second, the lynchpm of Defendants' justification of the pipefitter certification o- • 14 CL E o regulatoi^' scheme are imidentified "concems" raised by the public and industry. (See 15 ,5 Defendants' Undisputed Material Fact Nos. 3 and 11 (as to Plaintiffs' First and Third Causes VO 16 of action).) Yet there is no evidence cited for these alleged "concems," and they are otherwise 17 belied by an exhaustive analysis of the source offiresby the National Fire Protection 18 Association (NFPA). The NFPA failed to identify one confirmed instance of a fire caused by 19 improper installation. 20 Third, the Califomia and United States Supreme Courts have held that an 21 individual, having obtained a license required to engage in a particular profession or vocation, 22 has a "fitndamental vested right" to continue in that activity. (Unterthiner v. Desert Hospital 23 Dist. (1983) 33 Cal. 3d 285, 296-297. Those with existing C-16 licenses are at risk of not 24 being able to undertake their profession as commercial pipefitters. Defendants have construed 25 the regulatory scheme as requiring existing C-16 pipefitters to take an examination even 26 though C.C.R section 924.1 defmes a "certified" fire sprinkler fitter as one who has an active 27 28 ' All code references v^ll be to Title 19 of the Califomia Code of regulations, unless otherwise noted. -5- MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY ADJUDICATION 1 The regulations pertain to the qualifications and certifications of those seeking to work 2 as Fire Sprinkler Fitters (hereafter "pipefitters"). The stated purpose of the regulations is lo 3 "improve the performance; and reliability of water-based fire protection systems by providing 4 a means to certify and register any person who installs, alters, repairs, or adds appurtenances 5 to such systems." (Section 922.) 6 Section 924.1 defines a "certified" fire sprinklerfitteras one who completed an 7 apprenticeship program, or possesses an active CSLB Crl6 license, or possesses a sprinkler 8 fitter certification card issued by the Office of the State Fire Marshal (OSFM). Thus, 9 possession of an active C-16 license alone is sufficient for "certification." Section 925 10 specifies that anyone engagmg in commercial fire sprinkler installations to be "certified" or 11 "registered," including employees of a C-16 license holder. OS. VO — 12 > < S ^ Ov 00 OS ^ Pursuant to section 938, to obtain an apprenticeship registration an employee must be ^ = < 'i 13 16 years old, complete an AES 1005A application, must be accepted into an apprenticeship .Z .2 O t2, § - o *• 14 program, and submit proof of employment with a C-16 contractor. Section 939 states that to O ^ •£ ^ 15 ^u i s be "certified" as a fire sprinkler fitter an applicant shalj be at least 16 years old, shall complete 16 an AES 1005 application, shall provide either proof of completion of an apprenticeship 17 program or proof of a valid C-16 license, and shall pass a written examination. Thus, even if 18 one holds a valid C-16 license, a written examination is required prior to certification; This is 19 in direct conflict with the above-referenced definition of a "certified" fire sprinkler as one who 20 possesses an active C-16 license alone. 21 Section 945 further requires that an "applicant" for certification have performed 7000 22 hours in an apprenticeship program and have five years of experience within the scope of the 23 regulations. This is also in direct conflict with the above-referenced definition of a "certified" 24 pipefitter as one who possesses an active C-16 license. This section also prohibits licensed C- 25 16 pipefitters from practicing their trade iftiieydo not have the requisite 7000 hours in an 26 apprenticeship program and five years of experience, even though the CSLB has no such 27 requirements. However, there is an ambiguity in this section as to whether the requirement of 28 7000 hours in an apprenticeship program and five years of experience ordy applies to an -T- MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY ADJUDICATION 1 C-16 license. In addition, Plaintiffs Shahangian and Fire Guard Corporation exclusively work 2 widi lyater-based systems, thus the suggestion by Defendants that non-water based systems 3 will allow businesses to survive is factually disputed. This Court's independent judgment is 4 required, not obeisance. Defendants' suggestion that the Due Process challenge fails because 5 licensed C-16 contractors are not prevented from working on "fire protection systems other 6 than the water-based fire protection systems" (Points and Authorities at 19:18-20) is akin to 7 preventing lawyers from practicing litigation, with the justification that they can always do 8 transactional law. 9 Fourth, Defendants attempt to summarily adjudicate the irnpairment of contract and 10 O freedom of association claims should be rejected. Defendants have failed to proffer evidence o I 11 s* o m of the number (if any) of non-union apprenticeship programs capable of meeting demand. OS o •V r - . — VO 12 > B oc — U-) OS Finally, Defendants submit the Declaration of Alvin Adams, who represents to this < in OS ^ 13 ^ Court that a Spanish interpreter vvill be made available upon request for those who do speak O o 14 E © English and intend to take the examination. This should be reflected in the Court's ruling. L. O 15 For the foregoing reasons, the motion should be denied. VO 16 STATEMENT OF FACTS 17 A. The Regulatory Scheme 18 Defendant Office of the State Fire Marshal, and. Defendant Mr. Mathisen as State Fire 19 Marshal, were granted discretionary authority by the State Legislature under Health and 20 Safety Code § 13110 to "propose, adopt, and administer the regulations [he] deems necessary 21 in order to ensure fire safety in buildings and structiu-es within this state including regulations 22 related to...certification, registration, licensing, reporting, operation, and maintenance." On 23 February 3, 2017, Mr. Mathisen in his official capacity as State Fire Marshal submitted 24 proposed regulations to the Stiate Office of Administrative Law (OAL) on the subject of 25 "Automatic Fire Extinguishing Systems-Certification." The OAL approved the regulations, 26 which became effective on July 1,2017. 27 The regulations are contained within Title 19, Division 1, Chapter 5.5 of the Califomia 28 Code of Regulations, and are included ui Defendants' Exhibit F. • MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY ADJUDICATION 1 applicant for certification who is not ah-eady in possession of a C-16 license. It is Plaintiffs' 2 position that it can only legally apply to applicants who are not existing C-16 license holders. 3 B. Industry Practice 4 As set forth in the accompanying Declaration of Plaintiff Bahman Brian Shahangian, a 5 pipefitter is an individual that installs the pipes and other components of fire sprinkler systems 6 in commercial and i-esidential buildings in accordance with the approved plans prepared by 7 the C-l 6 license holder or others who are qualified and licensed to designfiresprinkler 8 systems. (Shahangian Decl. at ^ 4.) 9 Once a C-16 licensed contractor secures a project, the license holder or a 10 o qualified designer will design the fire sprinkler system based on the architectural plan of the o o I 11 OS building and all applicable codes, perform the hydraulic calculations to determine the correct s • B - r VO OO — pipe sizes lo provide the necessary flow and pressure to meet the appropriate code < Co i r i Ov _' Os 13 U u. requirements for the building type and the occupancy. The design layout and the hydraulic O o o 14 00 -Ol .ti CL O calculations are then submitted to the authority having jurisdiction (AHJ) for their review and .o 0 eCO 15 approval. The AHJ is generally eidier an engineering department within a city or the fire VO VO 16 prevention office of the fire department. The plans and the calciilations are thoroughly 17 reviewed and commented on if necessary, until the final plans and calculations meet or exceed 18 the National Fire Protection Association (NFPA) code requirements, as well as any added 19 local requirements. Once it is determined that the plans meet all applicable, codes, the 20 appropriate authorities approve the plans and sign off on them. (Shahangian Decl. atH 5.) 21 The approved plans are then used to perform the work and obtain inspections at every 22 stage of the work. The pipefitter's responsibility is to install the system in accordance with the .23 approved plans. Each stage of the work is inspected by AHJ to ensure adherence lo the 24 approved plans. I f for any reason a significant modification to the plan is necessary, the plans 25 will have to be revised and recalculated and go through the plan check and approval process 26 before the inspectors would inspect the installation. Therefore, it is not necessary to have 27 knowledge of design or hydraulic calcidations to perform this work; (Shahangian Decl. at ^ 6.) 28 If a pipefitter has some experience reading plans, can count, perform simple matii and -8- MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY ADJUDICATION 1 can read a tape measure, he or she can safely follow the installation plans necessary to install 2 fire sprinkler systems. Proficiency is primarily gained by experience in the installation tasks in 3 different settings and situations with proper training and supervision, as well as the physical 4 ability to perform the work. Mr. Shahangian has never hired a pipefitter who lacks these 5 ftmdamentals, nor has he known of any instances where pipefitters have been hired by other C 6 -16 contractors without thesefimdamentals.(Shahangian Decl. at ^ 7.) 7 In addition to C-16 licensed pipefitters and unlicensed pipefitters, a typical job-site 8 will also include "Helpers." Helpers perform rudimentary tasks under the direct super\'ision of 9 pipefitters, such as carrying materials, cutting pipe, or installing pipe hangers. Helpers can use 10 this experience to leam the trade and eventually transition into becoming pipefitters o o I o 11 themselves. (Shahangian Decl. at *| 8.) so — VO 12 > B^ Traditionally, tiie C-r6 license holder that hires pipefitters utilizes them according to < (/3 OS w 13 -J < U their experience and expertise. There is no need to place a pipefitter with over twenty years of ;z 5 <^ 1^ D d" • 14 O o ^ o experience and complete knowledge of all types of fire protection systerns in a sirnple tenant so .•=: 5 S 15 improvement project. Similarly, a pipefitter with a few years of experience that is not versed 16 Os in different systems is not put on a project that involves fire pump, pre-action, deluge, or other 17 similarly complex systems. The C-16 licensed contractor is ultimately responsible and liable 18 for all work performed under his or her license. It is the responsibility of the C-16 license 19 holder to utilize the different experience levels and expertise of pipefitter employees 20 appropriately. (Shahangian Decl. at H 9.) 21 C. Lack of Non-Union Apprenticeship Facilities 22 Based upon Mr. Shahangian's experience, the infrastructure needed to implement this 23 regulation is not in place and a uniform procedure has not been developed. The OSFM is not 24 able to handle applications and inquiries in a timely manner. Its process is slow, non- 25 responsive, and inconsistent when dealing with similar situations. (Shahangian Decl. at ^ 13.) 26 D. The NFPA Study 27 Included in the mle making file is an NFPA study that found no confirmed instances 28 offiresresulting from improper installation. (Plaintiffs' Ex. 1.) -9^ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY ADJUDICATION 1 ARGUMENT 2 SUMMARY ADJUDICATION OF PLAINTIFFS' FIRST AND SECOND CAUSES OF ACTION SHOULD BE DENIED BECAUSE THE 3 REGULATIONS VIOLATE FUNDAMENTAL VESTED RIGHTS, THERE 4 ARE TRIABLE ISSUES OF FACT REGARDING THE "CONCERNS" WHICH ALLEGEDLY MOTIVATED CREATION OF THE REGULATORY SCHEME, 5 AND THE MOTION FAILS TO ADDRESS A L L DISCRETE CLAIMS 6 As noted above, the motion fails to address Plaintiffs' request for declaratory relief 7 regarding the fiindamental inconsistency between section 924.1, and sections 939 and 935. 8 The former includes within the definition of a "Certified Fire Sprinkler Fitter" those holding a 9 C-16 license only. The latter sections set forth additional examination requirements. Section 10 o o I 945, for example, fiarther requires that an "applicant" for certification have performed 7000 o m 11 so hours in an apprenticeship program and have five years of experience within the scope of the > ^ •*j — o 7^ 00 — 2 >n OS 12 < 00 OS regulations. Defendants ignore section 924.1, thus the motion should be denied as a central ::! = <13i -p. a component of the FAC is not addressed. A "'statute which either forbids or requires the doing 00 u g 14 of an act in terms so vague that men of common intelligence must necessarily guess at its 25 15 so meaning and differ as to its application, violates the first essential of due process of law.'" OS 16 {Cranston v. City of Richmond (1985) 40 Cal.3d 755, 763.) 17 18 C.C.P. section 437c, sub, (t) allows the summary adjudication of a discrete component 19 of a cause of action provided certain procedural requirements are, including a stipulation of 20 the parties. This was not done. 21 In addition. Defendants misstate the law regarding the fundamental liberty interest in 22 engaging in a profession, particularly a profession in which a license has already been 23 issued. As recognized by the Califomia Supreme Court, "[i]t is axiomatic that the right to 24 pursue one's chosen profession is a fiindamental liberty protected by the due process clauses 25 of the Fifth and Fourteenth Amendments, and that therefore his license, once obtained, may 26 not be revoked based upon prelicensure wrongful conduct." {Hughes v. Board of Architectural 27 Examiners (1998) 17 Cal.4* 763, 788 [citing .ScMvare v. Board of Bar Examiners (1957) 353 28 U.S. 232, 238-239; Meyer v. Nebraska (1923) 262 U.S. 390, 399; Sail'er Inn. Inc. v. . -JO^ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY ADJUDICATION 1 A:/>6>' (1971) 5 Cal. 3d 1, 17; Bixby v. Pierno (1971) 4 Cal. 3d 130, 145,fii.12].) 2 Therefore, for example, a statute constitutionally can prohibit an individual from 3 practicmg a lawful profession only for reasons related to his or her fitiiess or competence to 4 practice tiiat profession. ( Arneson v. Fox (1980) 28 Cal. 3d 440, 448; Newland v. Board of 5 Governors (1977) 19 Cal. 3d 705, 711; Cartwright v. Board of Chiropractic 6 Examiners (1976) 16 Cal. 3d 762, 767.) 7 As the regulatory scheme has nothing to do withfitness,competence, or other failings 8 warranting revocation of a license, existing C-16 licensees have a fundamental vested right 9 which mandates this Court's independent judgment. As the Califomia Supreme Court in ro 10 Hughes V. Board ofArchitectural Examiners further recognized, "... [I]n the context of a o o I o 11 variety of professions and vocations, we often have recognized that an individual, having OS s — VO oo — 12 OS Os '—' obtained the license required to engage in a particular profession or vocation, has a < 00 -1 _•• f{ ^ 13 fundamental vested right' to continue in that activity." Id. at 788-789, citing Unterthiner v. a • O a 14 in .ts Desert Hospital Dist. (1983) 33 Cal. 3d 285, 296-297 [physician licensed to practice IT) P 15 medicine has a vested right to practice his profession]; Anton v. San Antonio Community E o VO 16 Hosp. (1977) 19 Cal. 3d 802, 823 [physician has a fundamental vested right to contuiue to 17 practice in a hospital]; Laisne v. Cal St Bd of Optometry (1942) 19 Cal. 2d 831, 835 [right to 18 practice optometry is a vested property right]; Druwwey v. State Bd. of Funeral 19 Directors (1939) 13 Cal. 2d 75, 84 [funeral director's and embalmer's licenses characterized as 20 "existing valuable privilege[s]"],) 21 Application of the independent judgment standard of review exposes the regulatory 22 scheme as nothing but a house of cards, with no factual support. Indeed, Defendants fail to 23 cite to one study, report, or analysis which supports the notion that pipefitters have caused fire 24 related incidents. On the contrary, the NFPA perfonned an exhaustive study of fire related 25 incidents and failed to identify one confirmed incident attributable to pipefitter installation (as 26 opposed to design or other cause). (See Plaintiffs' Ex.1.) ^ Ironically, the NFPA study was 27 28 ^ The NFPA study is contained in relevant part in Plaintiffs' Ex. 1; the entire document is almost 100 pages long. -u^ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY ADJUDICATION 1 cited by the OFSA as primary support for its regulatory scheme. (Plaintiffs' Ex. 2) This 2 creates triable issues of fact. 3 The record reveals that a comprehensive study of sprinkler failiu-es was conducted by 4 the National Fire Protection Association (NFPA) in 2013. That smdy found that "[s]prinklers 5 operated in 91% of all reported stmcttire fires large enough to activate sprinklers, excluding 6 buildings tmder constmction and buildings without sprinklers in the fire area." Only 7% of 7 sprinkler failures were attributed to component damage and none of these purported failures 8 were attributed to improper sprinkler installation. 9 When sprinklers failed to operate, the reason most often given (64% of failures), was ro 10 ro shutoff of the system before the fire began, as may occur in the course of routine inspection o OI O . ro 11 or maintenance. Yet separate regulations already require that all supply valves be o OS "?r ^ :r ^ 00 — 12 electronically monitored lo notify responsible personnel if the valves are not fiilly open. Thus, < i n "O OS -1 eo 13 the regulatory scheme at issue herein is unnecessary for this purpose. O —o 2 14 The second reason proffered by NFPA for sprinkler failure is manual intervention that <^ • — ' 00 . t ; 00 CL t o 15 defeated the system (17% of failures). This also has notiiing to do with quality of installation so 16 or pipefitter expertise. This issue arises when building owners or occupants modify the 17 building or otherwise compromise the operation of the fire sprinkler system. Thus, the 18 regulatory scheme at issue herein is unnecessary for this purpose. 19 The third reason proffered by N F P A for sprinkler failure is lack of maintenance (6% < i 20 of failures)! This has nothing to do with the quality of installation. Rather, in order to save 21 money on operating costs some building owners fail to hire a fire protection contraclor lo 22 periodically inspect the fire sprinkler system, and to perform any required maintenance. As a 23 result, some buildings are not managed professionally and are not adequately maintained. 24 Thus, the regulatory scheme at issue herein is unnecessary for this purpose. ,25 The fourth reason proffered by NFPA for sprinkler failure is installation of an 26 inappropriate system for certain types of fire (5%). This typically occtu-s when a building 27 which is initially designed for a tenant with a certain fire risk is later occupied by a tenant 28 with a higher fire risk. For example, a warehouse with a fire sprinkler system designed for -12: MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY ADJUDICATION 1 ordinary hazard occupancy later becomes vacant, and the owner leases it to a new tenant with 2 an operation classified as Extra Hazard Occupancy. Thus, Uie regulatory scheme at issue 3 herein is uimecessary for this purpose. 4 Moreover, no evidence was included in the record of a single sprinkler failure during 5 fire attributable to improper installation by a C-16 license holder, or pipefitters working for a 6 C-16 license holder. Given the evidence that improper sprinkler installation is nol causing 7 wdespread safety problems, there is no rational basis for placing duplicative and burdensome 8 regulations on C-16 license holders and pipefitters working imder their supervision, given 9 that the C-16 license holder is ultimately responsible and liable for all work perforrned by ro ro 10 himself and all pipefitters working under his supervision. There is certainly no basis for it o o 11 under an independent judgment standard of review. O — so o> OS — 12 To the extent any rational basis for these requirements exists, the connection to public > B lA) o^. < in -3 _- 13 health and safety is so tenuous and so out of proportion lo the burden of the requirements on 5^ 0 " O o 00 .s 1 - 14 C-16 license holders and their pipefitters that these restrictions should be struck down as pure oo CL 1 ^ 15 protectionism and a violation of fundamental vested rights. uo a ro 15 to identify a legitimate public piupose for adopting the regulations leads to the conclusion that 00 — OS 12 apprenticeship examination. Not only do these requirements have no bearing on whether an S 2 OS < oo d = < ?5 z .0 ^ • 13 individual has the ability or skills needed to perform successfully as a pipefitter, they ^ _ o O o " O i n .t; ro 14 undoubtedly will stand as an obstacle to many highly qualified candidates having the 00 Q. So I 15 opportunity to work in their chosen ttade. For these reasons, the Regulations relating to the .5 (Zl so 16 apprenticeship examination violate due process. f- 17 Under these circumstances, it is iiot surprismg that Defendants do.not even attempt to 18 demonsttate how the apprenticeship examination requirements comply wilh due process. 19 Instead, tiiey merely make the bare, unsupported assertion tiiat the apprenticeship examination 20 requirement is rationally related to a legitimate government interest, defend the use of an 21 English-only requirement for the examination, and attempt to shift responsibility for tiie 22 examination requirements to the California Apprenticeship Council when they are responsible 23 for the adoption of the Regulations. No matter how Defendants seek to obfuscate the issue, 24 they cannot avoid that the apprenticeship examination requirement violates the Due Process 25 Clause. The Court therefore should deny Defendants' request for summary adjudication of 26 Plaintiffs' fourth cause of action in its entirety. 27 Alternatively, this Court should deny the motion as Defendants have now 28 acknowledged that examinees will be afforded the opportunity to have a Spanish interpreter. ^16;: MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY ADJUDICATION l (See Decl. of Alvin Adams.) 2 IV. SUMMARY ADJUDICATION OF PLAINTIFFS' FIFTH CAUSE OF ACTION SHOULD BE DENIED BECAUSE THE REGULATIONS VIOLATE 3 PLAINTIFFS' FREEDOM OF ASSOCIATION, AND THERE IS A TRIABLE 4 ISSUE OF FACT AS TO THE AVAILABILITY OF NON-UNION APPRENTICESHIP PROGRAMS 5 Thefreedomof association is a flmdanienlal right guaranteed by the First Amendment 6 to the United Stales Constitution. (i?oi)em v. United States Jaycees (1984) 468 U.S. 609,617- 7 6 n Kahawaiolaa v. Norton {9th Cir, 2004) 386 F.3d 1271, 1277.) The Supreme Court has 8 long recognized that "[g]ovemment actions that may unconstitutionally infringe upon this 9 freedom can take a number of forms." {Roberts v. United States Jaycees, supra, 468 U.S. at p. ro ro 10 O O I 622.) Specifically, this freedom has both "a negative as well as a positive dimension." o ro 11 OS \o 00 - - - o. / V {Hudson V. Chicago Teachers Union Local No. 1 {1th Cir. 1984) 743 F.2d 1187, 1193.) Not — aj i r , OS 12 < C/5 OS only does the right to freedom of association protect a "collective effort on behalf of shared ^ « u tS 13 2 o • goals," it also "presupposes a freedom not to associate." {Roberts v. United States Jaycees, 1/3