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SUPERIOR COURT OF CALIFORNIA,
COUNTY OF SACRAMENTO
GORDON D SCHABER COURTHOUSE
MINUTE ORDER
DATE: 10/13/2021 TIME: 01:30:00 PM DEPT: 53
JUDICIAL OFFICER PRESIDING: Shama Mesiwala
CLERK: P. Lopez
REPORTER/ERM: M. Cheng CSR# 6800
BAILIFF/COURT ATTENDANT: Alvi, N., L. Venkus
CASE NO: 34-2019-00249221-CU-CR-GDS CASE INIT.DATE: 01/25/2019
CASE TITLE: Fire Guard Corporation vs. California Department of Forestry and Fire Protection
CASE CATEGORY: Civil - Unlimited
EVENT TYPE: Motion for Summary Judgment and/or Adjudication - Civil Law and Motion -
MSA/MSJ/SLAPP
APPEARANCES
William L Gausewitz, counsel, present for Plaintiff(s) remotely via video.
Andrea Kendrick, counsel, present for Defendant(s) remotely via video.
Nature of Proceeding: Motion for Summary Judgment and/or Adjudication
TENTATIVE RULING
Plaintiff California Fire Protection Coalition's ("CFPC") Motion for Summary Judgment/Summary
Adjudication is denied.
Plaintiff's Request for Judicial Notice is granted. The Court takes judicial notice of Exhibit A: California
Assembly Bill 433 (Gordon), enacted in 2013 as Chapter 377, Statutes of 2013; Exhibit B: California
Rule-making, Office of Administrative Law ("OAL") File # 2017-0209-02SR, March 24, 2017, which
enacted the challenged regulations; Exhibit C: California Assembly Floor Analysis of AB 433 as
amended on August 13, 2013; Exhibit D: California Senate Floor Analysis of AB 433 as amended on
August 13, 2013.
Plaintiff challenges regulations enacted by the Office of the State Fire Marshall ("OSFM") pursuant to
Section 11350 of the California Government Code, which permits any interested person to obtain a
judicial declaration as to the validity of any regulation. Plaintiff asserts that the regulations are not within
the scope of authority conferred by statute and are not reasonably necessary to effectuate the purpose
of AB 433. The regulations therefore violate sections 11342.1 and 11342.2 of the California Government
Code.
Plaintiff seeks an order granting summary judgment, or in the alternative, summary adjudication, with
respect to its Complaint. However, the First Amended Complaint ("FAC") contains seven causes of
action, and this motion addresses only the declaratory relief claims in the 6th and 7th cause of action.
And, the separate statement addresses only the 6th cause of action.
The motion for summary judgment is denied because the motion does not address all causes of action
in the Complaint, only the 6th and 7th causes of action., and therefore the ruling on the motion would not
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CASE TITLE: Fire Guard Corporation vs. California CASE NO: 34-2019-00249221-CU-CR-GDS
Department of Forestry and Fire Protection
dispose of the entire FAC. .
In addition, because the separate statement only addresses the 6th cause of action, it violates CRC 3.
1350(b), which requires that a summary adjudication motion include each cause of action to be
adjudicated in the notice of motion and in the separate statement. Since plaintiff did not comply with
CRC 3. 1350(b) as to the 7th cause of action, because it was not mentioned in the separate statement,
this motion is considered only as a motion for summary adjudication of the 6th cause of action.
The FAC challenges regulations adopted by Defendant Office of State Fire Marshal (OSFM). Plaintiff
contends OSFM improperly seeks to regulate which persons may lawfully install water-based fire
suppression systems. Plaintiffs contend that the challenged regulations are illegal and void because
they are not within the scope of the OSFM regulatory authority.
Plaintiff requests summary adjudication as follows:
"6th cause of action : Plaintiff Is Entitled to Summary Adjudication of Plaintiff's 6th Cause of Action for
Declaratory Relief Because There Are No Disputed Issues of Material Fact and Plaintiff Is Entitled to
Judicial Declaration that the Challenged Regulations are not within the scope of regulatory authority
conferred on Defendant by law. Specifically Plaintiff contends it is entitled to judgment as a matter of law
that the Health and Safety Code authorizes the Office of State Fire Marshal ("OSFM") to regulate fire
sprinkler equipment and the standards for installation and maintenance of that equipment. Neither the
Health & Safety Code, nor any other law, authorizes OSFM to regulate the training, testing, or licensing
of contractors who install fire sprinkler systems. Such regulations can only be, and have been, adopted
by the Contractors State License Board.
7th cause of action: Plaintiff Is Entitled to Summary Judgment, or in the Alternative Summary
Adjudication, as to Plaintiff's 7th Cause of Action for Declaratory Relief Because There Are No Disputed
Issues of Material Fact and Plaintiff Is Entitled to Judgment as a Matter of Law that the Challenged
Regulations are in conflict with the Business and Professions Code and are not reasonably necessary to
effectuate the purpose of the Code."
The Court is not ruling on the 7th cause of action due to the failure to comply with CRC 3. 1350(b)
Plaintiff's separate statement contains four UMFs, supported by plaintiff's request for judicial notice.
UMF 1. In 2013, California enacted AB 433 (Gordon, Statutes of 2013, Chapter 377). This legislation
modified the California Business and Professions Code relating to the Contractors State License Board,
and the Health and Safety Code relating to the State Fire Marshal.
UMF 2. On February 12, 2016, the Office of State Fire Marshal (OSFM) published a Notice of Proposed
Action to adopt regulations under the purported authority of Health and Safety Code § 13110, another
statute adopted by AB 433. These regulations were adopted by OSFM and comprise Chapter 5.5 of
Division 1 or Title 19 of the California Code of Regulations.
UMF 3. Since Health & Safety Code § 13110 does not grant express regulatory authority to OSFM to
regulate the training and qualifications of fire sprinkler installers, instead of or in addition to, the
Contractors State License Board, it is appropriate for the court to examine extrinsic evidence. The best
available extrinsic evidence of the intent of the Legislature in enacting H&S § 13110 are the analyses of
AB 433 (Gordon, 2013).
UMF 4. In describing the effect of the bill on the regulatory authority granted to OSFM, the Senate Floor
analysis says only that it "Authorizes the State Fire Marshall to propose, adopt and administer the
regulations that he/she deems necessary in order to ensure fire safety in buildings and structures and
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Department of Forestry and Fire Protection
requires those regulations be submitted to the BSC for approval, as specified." The analysis employs a
somewhat imprecise statement that it authorizes regulations relating to "buildings and structures" - the
traditional regulatory role of OSFM.
Legal Standard
In evaluating a motion for summary judgment or summary adjudication the court engages in a three step
process. The Court first identifies the issues framed by the pleadings. The pleadings define the scope of
the issues on a motion for summary judgment or summary adjudication. (FPI Dev. Inc. v. Nakashima
(1991) 231 Cal. App. 3d 367, 381-382). Because a motion for summary judgment or summary
adjudication is limited to the issues raised by the pleadings (Lewis v. Chevron (2004) 119 Cal. App. 4th
690, 694), all evidence submitted in support of or in opposition to the motion must be addressed to the
claims and defenses raised in the pleadings. An issue that is "within the general area of issues framed
by the pleadings" is properly before the court on a summary judgment or summary adjudication motion.
(Lennar Northeast Partners v. Buice (1996) 49 Cal. App. 4th 1576, 1582-1583.) The Court cannot
consider an unpleaded issue in ruling on motion for summary judgment or adjudication. Roth v. Rhodes
(1994) 25 Cal.App.4th 530, 541. The papers filed in response to a defendant's motion for summary
judgment may not create issues outside the pleadings and are not a substitute for an amendment to the
pleadings. Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342.
Second, the Court is required to determine whether the moving party has met its burden. A defendant
moving for summary judgment bears the burden of persuasion that one or more elements of the
plaintiff's cause of action cannot be established, or that there is a complete defense to the cause of
action.
(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal 4th 826, 850, quoting CCP §437c(p)(2)). A defendant is
not required to conclusively negate one or more elements of the plaintiffs cause of action; (Saelzer v
Advance, Group 400 (2001) 25 C4th 763, 780-781). Rather, to meet its burden, the defendant is
required only to show that the plaintiff cannot prove an element of its cause of action, i.e., that the
plaintiff does not possess and cannot reasonably obtain evidence necessary to show this element.
Aguilar v Atlantic Richfield Co., supra, 25 Cal 4th at pp. 853-855).
Finally, once the moving party has met its burden, the burden shifts to the opposing party to show that a
material factual issue exists as to the cause of action alleged or a defense to it. CCP 437c(p). (see,
generally Bush v. Parents Without Partners (1993) 17 Cal. App. 4th 322, 326-327). "There is a genuine
issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the
underlying fact in favor of the party opposing the motion in accordance with the applicable standard of
proof." Aguilar v. Atlantic Richfield Co. (2001)25Cal.4th 826, 845).In ruling on the motion, the court must
consider the evidence and inferences reasonably drawn from the evidence in the light most favorable to
the party opposing the motion. (Aguilar, supra, 25 Cal.4th at p. 843.)
The facts are not disputed in this case. Rather the issue to be resolved is a question of law.
Argument
Plaintiff seeks a declaration from the Court that the challenged regulations exceed the authority granted
to OSFM by AB 433, and are therefore invalid, because they
alter, amend, or enlarge the scope of Health and Safety Code § 13110.
AB 433 provides:
"Section 13110 is added to the Health and Safety Code, to read:
13110. (a) Notwithstanding any other provision of this part, the State Fire Marshal may propose, adopt,
and administer the regulations that he or she deems necessary in order to ensure fire safety in
buildings and structures within this state including regulations related to construction,
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modification, installation, testing, inspection, labeling, listing, certification, registration, licensing,
reporting, operation, and maintenance. Regulations that are building standards shall be submitted to the
State Building Standards Commission for approval pursuant to Chapter 4 (commencing with Section
18935) of Part 2.5 of Division 13. (court's emphasis)
The challenged regulations comprise Chapter 5.5 of Division 1 of Title 19 of the California Code of
Regulations. The challenged regulations prohibit any person from engaging in "the installation of
water-based fire protection systems as defined in Section 924.12 without first being certified or
registered in accordance with these regulations and have obtained a certification or registration card
issued by the Office of the State Fire Marshal" (19 CCR § 925). Under this regulation, even an individual
who holds a C-16 fire protection contractor's license from the Contractors State Licensing Board
("CSLB") is prohibited from installing a fire protection system if the individual does not also possess a
certification from OSFM. Obtaining this OSFM certification requires completion of training specified by
OSFM (19 CCR § 939), passing a test created and administered by OSFM, and requires payment of one
or more fees to OSFM (19 CCR § 925.1), and compliance with continuing education requirements
established by OSFM (19 CCR §946). OSFM regulations also require reporting of new hires to OSFM
within 72 hours (19 CCR § 934.
Judicial review of the validity of a regulation under section 11350 is subject to de novo review." In the
end, "[t]he court, not the agency, has 'final responsibility for the interpretation of the law under which the
regulation was issued'" (Citation omitted). We must conduct an independent examination to determine
whether the agency "'reasonably interpreted the legislative mandate' in enacting the regulation. (Citation
omitted.)" California School Bds. Assn. v. State Bd. of Education
(2010) 191 Cal.App.4th 530, 544.
Although the regulation was approved by the California Office of Administrative Law (OAL), the
determination of whether the regulation is within the authority of the statute may not consider this
approval. Government Code § 11350(c) provides: "The approval of a regulation or order of repeal by the
office [OAL] or the Governor's overruling of a decision of the office disapproving a regulation or order of
repeal shall not be considered by a court in any action for declaratory relief brought with respect to a
regulation or order of repeal."
Plaintiff contends OSFM's authority is limited to regulating the fire safety equipment and methods of
installing that equipment. The Contractors State License Board (CSLB) on the other hand is argued to
have sole authority to regulate who is legally permitted to perform installation of such equipment.
However, the OSFM's regulations provide " . . . a means to certify and register any person who installs,
alters, repairs or adds appurtenances to such systems."
By adopting regulations which regulate which persons are permitted to perform installation, Plaintiffs
contend OSFM has assumed regulatory authority granted by law to CSLB, thus acting outside the scope
of its regulatory authority.
A regulation cannot be adopted lawfully by a state government agency unless it is within the scope of the
authority delegated to that agency by law. Government Code § 11342.1 provides, in pertinent part "Each
regulation adopted, to be effective, shall be within the scope of authority conferred and in accordance
with standards prescribed by other provisions of 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 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 statute; Agnew v.
State Bd. of Equalization (1999) 21 Cal. 4th 310, 321. "[A]n agency does not have discretion to
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Department of Forestry and Fire Protection
promulgate regulations that are inconsistent with the governing statute, alter or amend the statute, or
enlarge its scope." California School Bds. Assn. v. State Bd of Education (2010) 191 Cal.App.4th 530,
544. " Administrative agencies have only the powers conferred on them, either expressly or impliedly, 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. "[A]gencies do not have discretion to promulgate
regulations that are inconsistent with the governing statute, or that alter or amend the statute or enlarge
its scope. Slocum v. State Bd. of Equalization (2005) 134 Cal.App.4th 969, 974
Plaintiff contends that the term "installation" in AB 433/H & S Code 13110 must be read to define
standards for installation of fire protection systems, such as considerations of the mechanics of installing
a fire protection system into a structure. Plaintiff contends this term cannot reasonably be read to
authorize OSFM to regulate which individuals may or may not engage in the installation of fire protection
systems. Plaintiff contends that authority is clearly delegated to, and exercised by, CSLB pursuant to the
Business and Professions Code. Similarly, Coalition contends neither the authority to regulate
"licensing" or "certification" under H&S § 13110 provides authority to regulate who is or is not authorized
to install fire sprinkler systems because the statute cannot reasonably be interpreted to authorize OSFM
to adopt regulations governing any type of license or certificate. These terms may only be interpreted to
permit OSFM to adopt such regulations of licensing and certification which are within the scope of its
overall statutory authority to ensure fire safety in buildings and structures. Plaintiff contends that
because the statute does not provide explicit authority for OSFM to regulate licensing of fire protection
contractors, the statute is "ambiguous" such that extrinsic evidence of legislative intent is admissible to
interpret the statute. UMFS 3 and 4 concern legislative intent.
Finally, plaintiff contends that since the challenged regulations place OSFM in the position of
determining who may perform "installation, alteration or repair of all water-based fire protection systems"
(§ 923) they are inconsistent with the Business and Professions Code statute giving this authority to the
CSLB. Since the APA requires that "no regulation adopted is valid or effective unless consistent and not
in conflict with the statute, and the challenged regulations are inconsistent and in conflict with sections
7008 and 7026.12 of the Business and Professions Code, plaintiff argues the challenged regulations
violate the APA and the challenged regulations are therefore invalid. As noted above this argument
concerns the 7th cause of action which the court is not ruling on due to the non compliance with CRC 3.
1350(b).
In opposition, defendants contend H&S § 13110 expressly authorizes the OSFM to establish a fire
suppression certification program that requires a minimum training standard for those persons who
install or work on fire suppression systems in California and develop a certification and registration
program for those individual Fire Sprinkler Fitters who install automatic fire extinguishing systems. Thus,
OSFM contends the Regulations are squarely within the OSFM's statutory authority. Furthermore,
although the CSLB regulates the C-16 Contractor who contracts to or offers to contract to design and
have fire sprinkler systems installed, the CSLB does not have the authority to regulate whether the
person who is performing the actual installation of the automatic fire extinguishing system has the
adequate training and experience to do so. This is covered by the Regulations administered by the
OSFM, which apply to individuals performing such installation work, and thus do not conflict with the
authority of the CSLB.
A regulation is presumed valid and the burden of demonstrating invalidity is squarely on the challenger.
(Association of California Insurance Companies v. Jones (2017) 2 Cal.5th 376, 389-390 (ACIC) ; Credit
Ins. General Agents Assn. of California., Inc. v. Payne (1976) 16 Cal.3d 651, 657.) There are two
categories of administrative rules, quasi-legislative rules and interpretive rules. (Yamaha Corp. of
America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 10-11.) The Regulations in this case are
quasi-legislative rules because they are the product of a delegated legislative power conferred on the
State Fire Marshal by H&S § 13110. (See ibid.) In reviewing a quasi-legislative rule, a court must
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determine whether in promulgating the rule, the agency acted within the bounds of its statutory mandate,
and, if so, whether the regulation is reasonably necessary to effectuate the purpose of the statute.
(Yamaha, supra, 19 Cal.4th at pp. 10-11. See also Gov. Code, § 11342.2 [using same standard].) In
doing so, a court may not substitute its independent judgment for that of the administrative agency on
the facts or on the policy considerations involved. (Credit Ins. General Agents Assn., supra, 16 Cal.3d at
p. 657.)
"If satisfied that the rule in question lay within the lawmaking authority delegated by the Legislature, and
that it is reasonably necessary to implement the purpose of the statute, judicial review is at an end.'"
(ACIC, supra, 2 Cal.5th at p. 397, quoting Yamaha, supra, 19 Cal.4th at 8 pp. 10-11.)
When a regulation is challenged on the ground that it is not reasonably necessary to effectuate the
purpose of the statute, the court's inquiry is confined to whether the rule is arbitrary, capricious, or
without rational basis and whether substantial evidence supports the agency's determination that the
rule is reasonably necessary. (Western States Petroleum Assn. v. Board of Equalization (2013) 57
Cal.4th 401, 415, citing Yamaha, supra, 19 Cal.4th at p. 11 & fn. 4 and Gov. Code, § 11350, subd.
(b)(1). Plaintiff has presented no evidence on this issue of whether the rule was reasonably necessary
under 11342.2 of the California Government Code. In reply, plaintiff states it would be fully satisfied with
an order which ignored the necessity requirement of Gov. Code § 11342.2 and invalidated the
regulations solely for their failure to meet the authority requirement of § 11342.1
OSFM contends that the language of Health and Safety Code 13110 does not limit the State Fire
Marshal's discretion to determine what regulations he or she deems necessary to ensure fire safety in
buildings and structures within the state including regulations related to construction, registration,
licensing, reporting, operation, and maintenance.
Defendants point out that AB 433 amends four statutes, three of which concern changes to the
contractors state license law regarding the installation of fire sprinklers and one of which concerns the
addition of H&S 13110 regarding the general authority of the OSFM to propose and adopt regulations
regarding fire safety). The fact that all four amendments are in the same bill shows that the Legislature
intended to grant simultaneous authority to both the CSLB and the OSFM. Rather than restricting the
OSFM's authority, as the Coalition suggests, AB 433 confirms that the CSLB and the OSFM administer
dual oversight for fire safety through complementary regulatory programs.
The Court rejects plaintiff's reply argument that because § 13110 lists several general and undefined
subjects but it does not list "training standards" or "installation fitters" that the regulations go beyond the
authority granted by statute.
The Court finds that the grant of authority in H&S code H&S § 13110 to regulate certification and
licensing of fire safety installation is unambiguous. Plaintiff has failed to persuade the Court that the
regulation is void because it goes beyond the authority provided by statute. Plaintiff has also failed to
meet its burden to show that the regulations are not necessary and not reasonably designed to aid a
statutory objective. (Samantha C, supra, 185 Cal.App.4th at p. 1482.) The courts defer to the agency
expertise on such matters and will not impose their own policy judgments on the agency unless the
agency decision is arbitrary and capricious. {Id. at pp. 1482-1483.)
The motion for summary judgment/summary adjudication is denied.
The prevailing party is directed to prepare a formal order complying with C.C.P. §437c(g) and C.R.C.
Rule 3.1312.
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CASE TITLE: Fire Guard Corporation vs. California CASE NO: 34-2019-00249221-CU-CR-GDS
Department of Forestry and Fire Protection
COURT RULING
The matter was argued and submitted.
The Court takes this matter under submission.
DATE: 10/13/2021 MINUTE ORDER Page 7
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SUPERIOR COURT OF CALIFORNIA, COUNTY OF SACRAMENTO GORDON D SCHABER COURTHOUSE MINUTE ORDER DATE: 10/13/2021 TIME: 01:30:00 PM DEPT: 53 JUDICIAL OFFICER PRESIDING: Shama Mesiwala CLERK: P. Lopez REPORTER/ERM: M. Cheng CSR# 6800 BAILIFF/COURT ATTENDANT: Alvi, N., L. Venkus CASE NO: 34-2019-00249221-CU-CR-GDS CASE INIT.DATE: 01/25/2019 CASE TITLE: Fire Guard Corporation vs. California Department of Forestry and Fire Protection CASE CATEGORY: Civil - Unlimited EVENT TYPE: Motion for Summary Judgment and/or Adjudication - Civil Law and Motion - MSA/MSJ/SLAPP APPEARANCES William L Gausewitz, counsel, present for Plaintiff(s) remotely via video. Andrea Kendrick, counsel, present for Defendant(s) remotely via video. Nature of Proceeding: Motion for Summary Judgment and/or Adjudication TENTATIVE RULING Plaintiff California Fire Protection Coalition's ("CFPC") Motion for Summary Judgment/Summary Adjudication is denied. Plaintiff's Request for Judicial Notice is granted. The Court takes judicial notice of Exhibit A: California Assembly Bill 433 (Gordon), enacted in 2013 as Chapter 377, Statutes of 2013; Exhibit B: California Rule-making, Office of Administrative Law ("OAL") File # 2017-0209-02SR, March 24, 2017, which enacted the challenged regulations; Exhibit C: California Assembly Floor Analysis of AB 433 as amended on August 13, 2013; Exhibit D: California Senate Floor Analysis of AB 433 as amended on August 13, 2013. Plaintiff challenges regulations enacted by the Office of the State Fire Marshall ("OSFM") pursuant to Section 11350 of the California Government Code, which permits any interested person to obtain a judicial declaration as to the validity of any regulation. Plaintiff asserts that the regulations are not within the scope of authority conferred by statute and are not reasonably necessary to effectuate the purpose of AB 433. The regulations therefore violate sections 11342.1 and 11342.2 of the California Government Code. Plaintiff seeks an order granting summary judgment, or in the alternative, summary adjudication, with respect to its Complaint. However, the First Amended Complaint ("FAC") contains seven causes of action, and this motion addresses only the declaratory relief claims in the 6th and 7th cause of action. And, the separate statement addresses only the 6th cause of action. The motion for summary judgment is denied because the motion does not address all causes of action in the Complaint, only the 6th and 7th causes of action., and therefore the ruling on the motion would not DATE: 10/13/2021 MINUTE ORDER Page 1 DEPT: 53 Calendar No. CASE TITLE: Fire Guard Corporation vs. California CASE NO: 34-2019-00249221-CU-CR-GDS Department of Forestry and Fire Protection dispose of the entire FAC. . In addition, because the separate statement only addresses the 6th cause of action, it violates CRC 3. 1350(b), which requires that a summary adjudication motion include each cause of action to be adjudicated in the notice of motion and in the separate statement. Since plaintiff did not comply with CRC 3. 1350(b) as to the 7th cause of action, because it was not mentioned in the separate statement, this motion is considered only as a motion for summary adjudication of the 6th cause of action. The FAC challenges regulations adopted by Defendant Office of State Fire Marshal (OSFM). Plaintiff contends OSFM improperly seeks to regulate which persons may lawfully install water-based fire suppression systems. Plaintiffs contend that the challenged regulations are illegal and void because they are not within the scope of the OSFM regulatory authority. Plaintiff requests summary adjudication as follows: "6th cause of action : Plaintiff Is Entitled to Summary Adjudication of Plaintiff's 6th Cause of Action for Declaratory Relief Because There Are No Disputed Issues of Material Fact and Plaintiff Is Entitled to Judicial Declaration that the Challenged Regulations are not within the scope of regulatory authority conferred on Defendant by law. Specifically Plaintiff contends it is entitled to judgment as a matter of law that the Health and Safety Code authorizes the Office of State Fire Marshal ("OSFM") to regulate fire sprinkler equipment and the standards for installation and maintenance of that equipment. Neither the Health & Safety Code, nor any other law, authorizes OSFM to regulate the training, testing, or licensing of contractors who install fire sprinkler systems. Such regulations can only be, and have been, adopted by the Contractors State License Board. 7th cause of action: Plaintiff Is Entitled to Summary Judgment, or in the Alternative Summary Adjudication, as to Plaintiff's 7th Cause of Action for Declaratory Relief Because There Are No Disputed Issues of Material Fact and Plaintiff Is Entitled to Judgment as a Matter of Law that the Challenged Regulations are in conflict with the Business and Professions Code and are not reasonably necessary to effectuate the purpose of the Code." The Court is not ruling on the 7th cause of action due to the failure to comply with CRC 3. 1350(b) Plaintiff's separate statement contains four UMFs, supported by plaintiff's request for judicial notice. UMF 1. In 2013, California enacted AB 433 (Gordon, Statutes of 2013, Chapter 377). This legislation modified the California Business and Professions Code relating to the Contractors State License Board, and the Health and Safety Code relating to the State Fire Marshal. UMF 2. On February 12, 2016, the Office of State Fire Marshal (OSFM) published a Notice of Proposed Action to adopt regulations under the purported authority of Health and Safety Code § 13110, another statute adopted by AB 433. These regulations were adopted by OSFM and comprise Chapter 5.5 of Division 1 or Title 19 of the California Code of Regulations. UMF 3. Since Health & Safety Code § 13110 does not grant express regulatory authority to OSFM to regulate the training and qualifications of fire sprinkler installers, instead of or in addition to, the Contractors State License Board, it is appropriate for the court to examine extrinsic evidence. The best available extrinsic evidence of the intent of the Legislature in enacting H&S § 13110 are the analyses of AB 433 (Gordon, 2013). UMF 4. In describing the effect of the bill on the regulatory authority granted to OSFM, the Senate Floor analysis says only that it "Authorizes the State Fire Marshall to propose, adopt and administer the regulations that he/she deems necessary in order to ensure fire safety in buildings and structures and DATE: 10/13/2021 MINUTE ORDER Page 2 DEPT: 53 Calendar No. CASE TITLE: Fire Guard Corporation vs. California CASE NO: 34-2019-00249221-CU-CR-GDS Department of Forestry and Fire Protection requires those regulations be submitted to the BSC for approval, as specified." The analysis employs a somewhat imprecise statement that it authorizes regulations relating to "buildings and structures" - the traditional regulatory role of OSFM. Legal Standard In evaluating a motion for summary judgment or summary adjudication the court engages in a three step process. The Court first identifies the issues framed by the pleadings. The pleadings define the scope of the issues on a motion for summary judgment or summary adjudication. (FPI Dev. Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382). Because a motion for summary judgment or summary adjudication is limited to the issues raised by the pleadings (Lewis v. Chevron (2004) 119 Cal. App. 4th 690, 694), all evidence submitted in support of or in opposition to the motion must be addressed to the claims and defenses raised in the pleadings. An issue that is "within the general area of issues framed by the pleadings" is properly before the court on a summary judgment or summary adjudication motion. (Lennar Northeast Partners v. Buice (1996) 49 Cal. App. 4th 1576, 1582-1583.) The Court cannot consider an unpleaded issue in ruling on motion for summary judgment or adjudication. Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541. The papers filed in response to a defendant's motion for summary judgment may not create issues outside the pleadings and are not a substitute for an amendment to the pleadings. Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342. Second, the Court is required to determine whether the moving party has met its burden. A defendant moving for summary judgment bears the burden of persuasion that one or more elements of the plaintiff's cause of action cannot be established, or that there is a complete defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal 4th 826, 850, quoting CCP §437c(p)(2)). A defendant is not required to conclusively negate one or more elements of the plaintiffs cause of action; (Saelzer v Advance, Group 400 (2001) 25 C4th 763, 780-781). Rather, to meet its burden, the defendant is required only to show that the plaintiff cannot prove an element of its cause of action, i.e., that the plaintiff does not possess and cannot reasonably obtain evidence necessary to show this element. Aguilar v Atlantic Richfield Co., supra, 25 Cal 4th at pp. 853-855). Finally, once the moving party has met its burden, the burden shifts to the opposing party to show that a material factual issue exists as to the cause of action alleged or a defense to it. CCP 437c(p). (see, generally Bush v. Parents Without Partners (1993) 17 Cal. App. 4th 322, 326-327). "There is a genuine issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof." Aguilar v. Atlantic Richfield Co. (2001)25Cal.4th 826, 845).In ruling on the motion, the court must consider the evidence and inferences reasonably drawn from the evidence in the light most favorable to the party opposing the motion. (Aguilar, supra, 25 Cal.4th at p. 843.) The facts are not disputed in this case. Rather the issue to be resolved is a question of law. Argument Plaintiff seeks a declaration from the Court that the challenged regulations exceed the authority granted to OSFM by AB 433, and are therefore invalid, because they alter, amend, or enlarge the scope of Health and Safety Code § 13110. AB 433 provides: "Section 13110 is added to the Health and Safety Code, to read: 13110. (a) Notwithstanding any other provision of this part, the State Fire Marshal may propose, adopt, and administer the regulations that he or she deems necessary in order to ensure fire safety in buildings and structures within this state including regulations related to construction, DATE: 10/13/2021 MINUTE ORDER Page 3 DEPT: 53 Calendar No. CASE TITLE: Fire Guard Corporation vs. California CASE NO: 34-2019-00249221-CU-CR-GDS Department of Forestry and Fire Protection modification, installation, testing, inspection, labeling, listing, certification, registration, licensing, reporting, operation, and maintenance. Regulations that are building standards shall be submitted to the State Building Standards Commission for approval pursuant to Chapter 4 (commencing with Section 18935) of Part 2.5 of Division 13. (court's emphasis) The challenged regulations comprise Chapter 5.5 of Division 1 of Title 19 of the California Code of Regulations. The challenged regulations prohibit any person from engaging in "the installation of water-based fire protection systems as defined in Section 924.12 without first being certified or registered in accordance with these regulations and have obtained a certification or registration card issued by the Office of the State Fire Marshal" (19 CCR § 925). Under this regulation, even an individual who holds a C-16 fire protection contractor's license from the Contractors State Licensing Board ("CSLB") is prohibited from installing a fire protection system if the individual does not also possess a certification from OSFM. Obtaining this OSFM certification requires completion of training specified by OSFM (19 CCR § 939), passing a test created and administered by OSFM, and requires payment of one or more fees to OSFM (19 CCR § 925.1), and compliance with continuing education requirements established by OSFM (19 CCR §946). OSFM regulations also require reporting of new hires to OSFM within 72 hours (19 CCR § 934. Judicial review of the validity of a regulation under section 11350 is subject to de novo review." In the end, "[t]he court, not the agency, has 'final responsibility for the interpretation of the law under which the regulation was issued'" (Citation omitted). We must conduct an independent examination to determine whether the agency "'reasonably interpreted the legislative mandate' in enacting the regulation. (Citation omitted.)" California School Bds. Assn. v. State Bd. of Education (2010) 191 Cal.App.4th 530, 544. Although the regulation was approved by the California Office of Administrative Law (OAL), the determination of whether the regulation is within the authority of the statute may not consider this approval. Government Code § 11350(c) provides: "The approval of a regulation or order of repeal by the office [OAL] or the Governor's overruling of a decision of the office disapproving a regulation or order of repeal shall not be considered by a court in any action for declaratory relief brought with respect to a regulation or order of repeal." Plaintiff contends OSFM's authority is limited to regulating the fire safety equipment and methods of installing that equipment. The Contractors State License Board (CSLB) on the other hand is argued to have sole authority to regulate who is legally permitted to perform installation of such equipment. However, the OSFM's regulations provide " . . . a means to certify and register any person who installs, alters, repairs or adds appurtenances to such systems." By adopting regulations which regulate which persons are permitted to perform installation, Plaintiffs contend OSFM has assumed regulatory authority granted by law to CSLB, thus acting outside the scope of its regulatory authority. A regulation cannot be adopted lawfully by a state government agency unless it is within the scope of the authority delegated to that agency by law. Government Code § 11342.1 provides, in pertinent part "Each regulation adopted, to be effective, shall be within the scope of authority conferred and in accordance with standards prescribed by other provisions of 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 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 statute; Agnew v. State Bd. of Equalization (1999) 21 Cal. 4th 310, 321. "[A]n agency does not have discretion to DATE: 10/13/2021 MINUTE ORDER Page 4 DEPT: 53 Calendar No. CASE TITLE: Fire Guard Corporation vs. California CASE NO: 34-2019-00249221-CU-CR-GDS Department of Forestry and Fire Protection promulgate regulations that are inconsistent with the governing statute, alter or amend the statute, or enlarge its scope." California School Bds. Assn. v. State Bd of Education (2010) 191 Cal.App.4th 530, 544. " Administrative agencies have only the powers conferred on them, either expressly or impliedly, 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. "[A]gencies do not have discretion to promulgate regulations that are inconsistent with the governing statute, or that alter or amend the statute or enlarge its scope. Slocum v. State Bd. of Equalization (2005) 134 Cal.App.4th 969, 974 Plaintiff contends that the term "installation" in AB 433/H & S Code 13110 must be read to define standards for installation of fire protection systems, such as considerations of the mechanics of installing a fire protection system into a structure. Plaintiff contends this term cannot reasonably be read to authorize OSFM to regulate which individuals may or may not engage in the installation of fire protection systems. Plaintiff contends that authority is clearly delegated to, and exercised by, CSLB pursuant to the Business and Professions Code. Similarly, Coalition contends neither the authority to regulate "licensing" or "certification" under H&S § 13110 provides authority to regulate who is or is not authorized to install fire sprinkler systems because the statute cannot reasonably be interpreted to authorize OSFM to adopt regulations governing any type of license or certificate. These terms may only be interpreted to permit OSFM to adopt such regulations of licensing and certification which are within the scope of its overall statutory authority to ensure fire safety in buildings and structures. Plaintiff contends that because the statute does not provide explicit authority for OSFM to regulate licensing of fire protection contractors, the statute is "ambiguous" such that extrinsic evidence of legislative intent is admissible to interpret the statute. UMFS 3 and 4 concern legislative intent. Finally, plaintiff contends that since the challenged regulations place OSFM in the position of determining who may perform "installation, alteration or repair of all water-based fire protection systems" (§ 923) they are inconsistent with the Business and Professions Code statute giving this authority to the CSLB. Since the APA requires that "no regulation adopted is valid or effective unless consistent and not in conflict with the statute, and the challenged regulations are inconsistent and in conflict with sections 7008 and 7026.12 of the Business and Professions Code, plaintiff argues the challenged regulations violate the APA and the challenged regulations are therefore invalid. As noted above this argument concerns the 7th cause of action which the court is not ruling on due to the non compliance with CRC 3. 1350(b). In opposition, defendants contend H&S § 13110 expressly authorizes the OSFM to establish a fire suppression certification program that requires a minimum training standard for those persons who install or work on fire suppression systems in California and develop a certification and registration program for those individual Fire Sprinkler Fitters who install automatic fire extinguishing systems. Thus, OSFM contends the Regulations are squarely within the OSFM's statutory authority. Furthermore, although the CSLB regulates the C-16 Contractor who contracts to or offers to contract to design and have fire sprinkler systems installed, the CSLB does not have the authority to regulate whether the person who is performing the actual installation of the automatic fire extinguishing system has the adequate training and experience to do so. This is covered by the Regulations administered by the OSFM, which apply to individuals performing such installation work, and thus do not conflict with the authority of the CSLB. A regulation is presumed valid and the burden of demonstrating invalidity is squarely on the challenger. (Association of California Insurance Companies v. Jones (2017) 2 Cal.5th 376, 389-390 (ACIC) ; Credit Ins. General Agents Assn. of California., Inc. v. Payne (1976) 16 Cal.3d 651, 657.) There are two categories of administrative rules, quasi-legislative rules and interpretive rules. (Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 10-11.) The Regulations in this case are quasi-legislative rules because they are the product of a delegated legislative power conferred on the State Fire Marshal by H&S § 13110. (See ibid.) In reviewing a quasi-legislative rule, a court must DATE: 10/13/2021 MINUTE ORDER Page 5 DEPT: 53 Calendar No. CASE TITLE: Fire Guard Corporation vs. California CASE NO: 34-2019-00249221-CU-CR-GDS Department of Forestry and Fire Protection determine whether in promulgating the rule, the agency acted within the bounds of its statutory mandate, and, if so, whether the regulation is reasonably necessary to effectuate the purpose of the statute. (Yamaha, supra, 19 Cal.4th at pp. 10-11. See also Gov. Code, § 11342.2 [using same standard].) In doing so, a court may not substitute its independent judgment for that of the administrative agency on the facts or on the policy considerations involved. (Credit Ins. General Agents Assn., supra, 16 Cal.3d at p. 657.) "If satisfied that the rule in question lay within the lawmaking authority delegated by the Legislature, and that it is reasonably necessary to implement the purpose of the statute, judicial review is at an end.'" (ACIC, supra, 2 Cal.5th at p. 397, quoting Yamaha, supra, 19 Cal.4th at 8 pp. 10-11.) When a regulation is challenged on the ground that it is not reasonably necessary to effectuate the purpose of the statute, the court's inquiry is confined to whether the rule is arbitrary, capricious, or without rational basis and whether substantial evidence supports the agency's determination that the rule is reasonably necessary. (Western States Petroleum Assn. v. Board of Equalization (2013) 57 Cal.4th 401, 415, citing Yamaha, supra, 19 Cal.4th at p. 11 & fn. 4 and Gov. Code, § 11350, subd. (b)(1). Plaintiff has presented no evidence on this issue of whether the rule was reasonably necessary under 11342.2 of the California Government Code. In reply, plaintiff states it would be fully satisfied with an order which ignored the necessity requirement of Gov. Code § 11342.2 and invalidated the regulations solely for their failure to meet the authority requirement of § 11342.1 OSFM contends that the language of Health and Safety Code 13110 does not limit the State Fire Marshal's discretion to determine what regulations he or she deems necessary to ensure fire safety in buildings and structures within the state including regulations related to construction, registration, licensing, reporting, operation, and maintenance. Defendants point out that AB 433 amends four statutes, three of which concern changes to the contractors state license law regarding the installation of fire sprinklers and one of which concerns the addition of H&S 13110 regarding the general authority of the OSFM to propose and adopt regulations regarding fire safety). The fact that all four amendments are in the same bill shows that the Legislature intended to grant simultaneous authority to both the CSLB and the OSFM. Rather than restricting the OSFM's authority, as the Coalition suggests, AB 433 confirms that the CSLB and the OSFM administer dual oversight for fire safety through complementary regulatory programs. The Court rejects plaintiff's reply argument that because § 13110 lists several general and undefined subjects but it does not list "training standards" or "installation fitters" that the regulations go beyond the authority granted by statute. The Court finds that the grant of authority in H&S code H&S § 13110 to regulate certification and licensing of fire safety installation is unambiguous. Plaintiff has failed to persuade the Court that the regulation is void because it goes beyond the authority provided by statute. Plaintiff has also failed to meet its burden to show that the regulations are not necessary and not reasonably designed to aid a statutory objective. (Samantha C, supra, 185 Cal.App.4th at p. 1482.) The courts defer to the agency expertise on such matters and will not impose their own policy judgments on the agency unless the agency decision is arbitrary and capricious. {Id. at pp. 1482-1483.) The motion for summary judgment/summary adjudication is denied. The prevailing party is directed to prepare a formal order complying with C.C.P. §437c(g) and C.R.C. Rule 3.1312. DATE: 10/13/2021 MINUTE ORDER Page 6 DEPT: 53 Calendar No. CASE TITLE: Fire Guard Corporation vs. California CASE NO: 34-2019-00249221-CU-CR-GDS Department of Forestry and Fire Protection COURT RULING The matter was argued and submitted. The Court takes this matter under submission. DATE: 10/13/2021 MINUTE ORDER Page 7 DEPT: 53 Calendar No.