Filed 11/9/18 Natl. Shooting Sports Foundation v. State of Cal. CA5

Opinion on remand from Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Fresno County. Donald S. Black, Judge.

Lewis Brisbois Bisgaard & Smith, Daniel C. DeCarlo and Lance A. Selfridge; National Shooting Sports Foundation, Inc. and Lawrence G. Keane for Plaintiffs and Appellants.

Kamala D. Harris and Xavier Becerra, Attorneys General, Douglas J. Woods, Assistant Attorney General, Tamar Pachter, Nelson R. Richards and Emmanuelle S. Soichet, Deputy Attorneys General, for Defendant and Respondent.

Caldwell Leslie & Proctor, Michael R. Leslie, Andrew Esbenshade and Amy E. Pomerantz as Amicus Curiae on behalf of Defendant and Respondent.

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In accordance with the Supreme Court’s decision in National Shooting Sports Foundation, Inc. v. State of California (2018) 5 Cal.5th 428 (National), which reversed our opinion in this case[1] and remanded with instructions that we “affirm the trial court’s judgment granting the Attorney General’s motion for judgment on the pleadings” (id. at p. 436), we do so here. As more fully explained below, the trial court’s judgment is affirmed.

In 1999, the California Legislature enacted the Unsafe Handgun Act to establish safety standards for all handguns manufactured, imported, and sold in the state. (National, supra, 5 Cal.5th at p. 431; see Pen. Code, §§ 31900–32110.) In 2007, the Legislature amended the definition of an “unsafe handgun” to include “all semiautomatic pistols” not already listed on the approved roster “[if] not designed and equipped with a microscopic array of characters that identify the make, model, and serial number of the pistol, etched or otherwise imprinted in two or more places on the interior surface or internal working parts of the pistol, and that are transferred by imprinting on each cartridge case when the firearm is fired ….” (Pen. Code, § 31910, subd. (b)(7)(A) (hereafter Penal Code section 31910(b)(7)(A)); National, supra, 5 Cal.5th at p. 431.) This safety standard, known as dual placement microstamping, was to take effect on “ ‘January 1, 2010 … provided that the Department of Justice certifies that the technology used to create the imprint is available to more than one manufacturer unencumbered by any patent restrictions.’ ” (National, supra, 5 Cal.5th at p. 431.) The California Department of Justice issued the certification on May 17, 2013. (Ibid.)

Following the certification, appellants National Shooting Sports Foundation, Inc. and Sporting Arms and Ammunition Manufacturers’ Institute, Inc. (appellants) filed the underlying civil action for declaratory and injunctive relief to have Penal Code section 31910(b)(7)(A) declared invalid and unenforceable pursuant to Civil Code section 3531 because it would be impossible to comply with the dual placement microstamping requirements. Civil Code section 3531 provides that “[t]he law never requires impossibilities.” Thus, the challenge to the law’s validity was not on constitutional grounds but was based on other considerations. The Attorney General moved for judgment on the pleadings on the ground that the separation of powers doctrine precluded appellants’ action. The trial court agreed and granted the motion without leave to amend. (National, supra, 5 Cal.5th at p. 432; see, e.g., City and County of San Francisco v. Cooper (1975) 13 Cal.3d 898, 915 [the separation of powers doctrine “recognizes that in the absence of some overriding constitutional, statutory or charter proscription, the judiciary has no authority to invalidate duly enacted legislation”].)

On appeal, we held the trial court erred. While acknowledging that under the separation of powers doctrine, courts defer to the Legislature’s factual determination upon which the validity of a statute was premised, we also noted an exception exists where such factual determination is palpably arbitrary or irrational. (See Alfaro v. Terhune (2002) 98 Cal.App.4th 492, 511.) In keeping with the statutory proscription of Civil Code section 3531, we concluded that it would be irrational to uphold a statutory requirement that is impossible to accomplish. Accordingly, we held the trial court erred in granting judgment on the pleadings. Under our holding, appellants would be given an opportunity to present evidence of impossibility and, if proven, Penal Code section 31910(b)(7)(A) would be declared invalid.

Our opinion in this case was appealed to the Supreme Court, and the Supreme Court reversed. (National, supra, 5 Cal.5th at p. 436.) In essence, the Supreme Court held that even if compliance with the dual placement microstamping requirement was shown to be impossible, that would not—without more—invalidate the statute itself. The Supreme Court explained that Civil Code section 3531, which states the rule that the law never requires impossibilities, is a canon for construing statutes, not a means for invalidating them. (National, supra, 5 Cal.5th at p. 433.) Further, it was observed that while impossibility may on occasion excuse noncompliance with a statute, in such circumstances, the excusal constitutes an interpretation of the statute in accordance with the Legislature’s intent, or an implied exception, but “not an invalidation of the statute.” (Ibid.) “In sum, the case law recognizes that a statute may contain an implied exception for noncompliance based on impossibility where such an exception reflects a proper understanding of the legislative intent behind the statute. We are not aware of any appellate precedent in California that has invoked Civil Code section 3531 or impossibility of compliance to invalidate a statute itself.” (Id. at p. 434.) In the course of its discussion, the Supreme Court emphasized that this case was based on Civil Code section 3531 or alleged impossibility of compliance and did not involve a constitutional challenge to the statute or a claim that impossibility of compliance with the statute burdened or violated a constitutional right. (National, supra, at pp. 435–436.) In short, no adequate grounds for invalidating the statute was presented in appellants’ pleading, and the demurrer by the Attorney General based on the separation of powers doctrine was correctly sustained by the trial court.

Accordingly, the Supreme Court reversed and remanded the matter back to this court “to affirm the trial court’s judgment granting the Attorney General’s motion for judgment on the pleadings.” (National, supra, 5 Cal.5th at p. 436.)

DISPOSITION

The trial court’s judgment entered after granting the Attorney General’s motion for judgment on the pleadings without leave to amend is affirmed. Each party to bear their own costs on appeal.

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LEVY, Acting P.J.

WE CONCUR:

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FRANSON, J.

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DESANTOS, J.