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Calguns Foundation, Inc. v. County of San Mateo

California Court of Appeals, First District, Second Division

July 15, 2013

CALGUNS FOUNDATION, INC., et al., Plaintiffs and Appellants,
v.
COUNTY OF SAN MATEO, Defendant and Respondent

pub order Date: 8/2/13

Trial Court: Superior Court of San Mateo County Super. Ct. No. CIV509185 Trial Judge: Hon. V. Raymond Swope, III

Attorney for Plaintiffs and Appellants Donald E. J. Kilmer, Jr. Law Offices of Donald Kilmer, A.P.C.

Attorneys for Amicus Curiae in support of Plaintiffs and Appellants C. D. Michel Glenn S. McRoberts Anna M. Barvir Michel & Associates

Attorneys for Defendant and Respondent John C. Beirs, County Counsel David A. Silberman, Deputy

Haerle, Acting P.J.

I. INTRODUCTION

In 2011, appellant Calguns Foundation, Inc. (Calguns) and two individual members (one its Chairman) filed an injunctive and declaratory relief action seeking a judgment declaring that a San Mateo County ordinance which precludes the possession and use of guns in the county’s parks and recreational areas is preempted by state law, and hence enjoining enforcement of that ordinance. After briefing and argument, the trial court sustained the County’s demurrer to the complaint and entered a judgment of dismissal. We affirm that judgment.

II. FACTUAL AND PROCEDURAL BACKGROUND

Appellants’ complaint, filed on October 20, 2011, sought “Injunctive/Declaratory Relief” from the trial court and stated that the “policies, procedures and practices of the” County in administering San Mateo County Ordinance No. 3.68.080[1] “is preempted by State law, ” specifically former Penal Code section 12050 (now section 26150.)[2]

Ordinance No. 3.68.080, the relevant portion of which was originally enacted in 1934, now provides in relevant part: “(o) Firearms and Dangerous Weapons. Except as provided in subsection (p) and subsection (q), no person shall have in his possession within any County Park or Recreation area, or on the San Francisco Fish and Game Refuge, and no person shall fire or discharge, or cause to be fired or discharged, across, in, or into any portion of any County Park or Recreation area, or on the San Francisco Fish and Game Refuge, any gun or firearm, spear, bow and arrow, cross bow, slingshot, air or gas weapon or any other dangerous weapon. [¶] (p) Shooting Ranges. The discharge or firing of firearms is permitted in areas designated by the Parks and Recreation Commission, or San Francisco Water Department, specifically for the purposes of rifle and/or pistol and/or shotgun shooting, and the transportation of such firearms through the County Park or Recreation area, or on the San Francisco Fish and Game Refuge, in which said area(s) is/are located is permitted providing said firearms are unloaded. ‘Unloaded’ shall mean that there is no ammunition in either the chamber or magazine of the gun.”[3]

As noted above, appellants’ complaint asserted that the predecessor section to the current section 26150[4] (former section 12050, subdivision (a)(1)(A) & (D)) preempted that ordinance “to the extent [the ordinance] does not provide an exception for persons licensed to carry a firearm....”

That statute provides in relevant part: “(a) When a person applies for a license to carry a pistol, revolver, or other firearm capable of being concealed upon the person, the sheriff of a county may issue a license to that person upon proof of all of the following: [¶] (1) The applicant is of good moral character. [¶] (2) Good cause exists for issuance of the license. [¶] (3) The applicant is a resident of the county or a city within the county, or the applicant’s principal place of employment or business is in the county or a city within the county and the applicant spends a substantial period of time in that place of employment or business. [¶] (4) The applicant has completed a course of training as described in Section 26165.” (§ 26150.)

As noted above, appellants’ complaint sought a declaration that Ordinance No. 3.68.080, subsections (o) and (p), “is preempted by state law and therefore void” to the extent “it does not provide an exception for persons licensed to carry a firearm” under current section 26150. It also sought injunctive relief consistent with that declaratory relief, relief which “would include but be limited to a moratorium on enforcement of [Ordinance No. 3.68.080] and/or certain provisions.”

Respondent County of San Mateo (County) filed a demurrer to appellants’ complaint on December 15, 2011. Appellants filed an opposition to that demurrer on April 5, 2012, [5] and the County its reply on April 17. During the course of that briefing, appellants changed their position regarding the statute they contended preempted the relevant County ordinance. As noted, such was originally alleged to be former section 12050, now section 26150, but in their opposition to the County’s demurrer, appellants changed their argument, and contended that the preempting statute was Government Code section 53071 (a statute to be discussed further below).

The trial court heard oral argument on the matter on April 24, and continued the matter for further briefing. Supplemental briefs were submitted by both parties on, respectively, May 18 and June 4. On July 10, the trial court entered its order sustaining County’s demurrer without leave to amend, and entered judgment for the County. Appellants filed a timely notice of appeal on July 31.

After the parties completed their briefing on the appeal, the National Rifle Association (NRA) filed an application to file an amicus curiae brief in support of appellants’ position together with such a brief. We granted that application and, as noted below, have also considered the NRA’s arguments in opposition to the ruling of the trial court and in favor of the contention that the San Mateo County ordinance is either expressly or impliedly preempted by state law.

III. DISCUSSION

Simply stated, the issue before us is whether the trial court was correct in its ruling that there is no state statute which preempts ordinances such as Ordinance No. 3.68.080, subsections (o) and (p), or any other similar county ordinances.[6] We hold that it was.

As our colleagues in the Third District summed up this issue just a few months ago: “ ‘A county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.’ (Cal. Const., art. XI, § 7.) ‘The first step in a preemption analysis is to determine whether the local regulation explicitly conflicts with any provision of state law. [Citation.]’ [Citation.]... [¶] ‘The party claiming that general state law preempts a local ordinance has the burden of demonstrating preemption. [Citation.]’ (Big Creek Lumber Co. v. County of Santa Cruz (2006) 38 Cal.4th 1139, 1149 (Big Creek Lumber Co.).) There is a particular reluctance to find preemption of a local regulation covering an area of significant local interest that differs from one locality to another, such as land use regulation. (Big Creek Lumber Co., supra, 38 Cal.4th at p. 1149.) ‘The presumption against preemption accords with our more general understanding that “it is not to be presumed that the [L]egislature in the enactment of statutes intends to overthrow ...


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