Filed 7/13/26 Franklin Armory v. Cal. Dept. of Justice CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
FRANKLIN ARMORY, INC. B340913
et al.,
(Los Angeles County
Plaintiffs and Appellants, Super. Ct.
No. 20STCP01747)
v.
CALIFORNIA DEPARTMENT
OF JUSTICE et al.,
Defendants and
Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, James C. Chalfant and Daniel S. Murphy,
Judges. Affirmed.
Michel & Associates, C.D. Michel, Jason A. Davis, Anna M.
Barvir and Konstadinos T. Moros for Plaintiffs and Appellants.
Rob Bonta, Attorney General, Iveta Ovsepyan Donna M.
Dean and Kenneth G. Lake, Supervising Deputy Attorneys
General, for Defendants and Respondents.
______________________________
Firearms manufacturer Franklin Armory, Inc., and
California Rifle & Pistol Association, Inc. (CRPA)1 appeal from
the judgment entered after the trial court granted the summary
judgment motion filed by the California Department of Justice
(DOJ) and former Attorney General Xavier Becerra in this action
challenging DOJ’s operation of the California Dealer Record of
Sale Entry System (DES), a mandatory electronic reporting
system for firearms sales in California.
In 2019 Franklin Armory introduced the “Title 1,” a
semiautomatic, centerfire long gun that did not fall within the
Penal Code definition of “rifle” or “shotgun.” Because the Title 1
was outside these categories, it was not subject to California’s
restrictions on assault weapons. However, there was no
mechanism for licensed dealers to record sales of the Title 1 on
the DES because the system required users to enter a gun
subtype from a drop-down list that only included rifles and
shotguns. After taking deposits from thousands of potential
customers, Franklin Armory filed this action for declaratory,
injunctive, and writ relief, due process violations, intentional
interference with contractual relations, and related claims,
alleging DOJ intentionally delayed modifying the DES until after
the Legislature enacted Senate Bill No. 118 (2019-2020 Reg.
Sess.), effective September 1, 2020 (Senate Bill 118), which
amended the definition of “assault weapon” in Penal Code
1 For all relevant purposes, CRPA joined Franklin Armory’s
submissions and contentions.
2
section 30510, subdivision (a),2 in a manner that effectively
banned sales of the Title 1.
On appeal, Franklin Armory contends the trial court erred
in granting DOJ and Becerra’s motion to dismiss Franklin
Armory’s causes of action for declaratory and injunctive relief and
for a writ of mandate, and in granting judgment on the pleadings
with respect to the causes of action for violations of procedural
and substantive due process and to enjoin waste of taxpayer
funds, after the court found these causes of action were rendered
moot by DOJ’s corrective modifications to the DES and the
enactment of Senate Bill 118. We affirm these rulings because
the court could no longer provide effective relief.
Franklin Armory also contends the trial court erred in
granting summary judgment as to its remaining causes of action
for intentional interference with contractual relations and related
claims after the court found DOJ and Becerra were immune from
tort liability under the Government Claims Act (Gov. Code, § 810
et seq.; GCA). We agree with DOJ and Becerra that DOJ could
not be held liable for failure to discharge a mandatory duty under
Government Code section 815.6 because it did not have a
statutory duty to modify the DES in the manner and priority
dictated by Franklin Armory. In addition, Becerra and DOJ
employees are immune from tort liability under Government
Code section 820.2 for their discretionary actions in operating the
DES. We therefore affirm.
2 Further undesignated statutory references are to the Penal
Code.
3
FACTUAL AND PROCEDURAL BACKGROUND
A. Reporting Requirement for Firearms Sales3
With limited exceptions, all firearm sales and transfers in
California must be completed through a licensed dealer.
(§ 27545.) At the time of sale, the dealer is required to report
information regarding the purchaser and transaction to DOJ
using DOJ’s prescribed electronic reporting system. (Id.,
§§ 28100, 28155, 28205, subd. (c).) The report must include,
among other things, firearm-specific information such as the
manufacturer, model name, serial or identification number,
caliber, type of firearm, barrel length, and color. (Id., § 28160,
subd. (a)(7)-(a)(17).) DOJ is required to maintain information it
receives through the reporting system for law enforcement
purposes, including “to assist in the investigation of crime, . . .
the arrest and prosecution of criminals, and the recovery of lost,
stolen, or found property.” (Id., §11106, subd. (a)(1).)
With respect to firearm types, the Penal Code defines a
“long gun” as “any firearm that is not a handgun or a
machinegun.” (§ 16865.) A “handgun” is “any pistol, revolver, or
firearm capable of being concealed upon the person” (id.,
§ 16640); each of these categories, in turn, is limited to guns with
a barrel length of less than 16 inches. (Id., § 16530.) Among
guns that may have a longer barrel, a “rifle” is a gun
“designed . . . and intended to be fired from the shoulder
and . . . to fire only a single projectile through a rifled bore . . . .”
(Id., § 17090.) A “shotgun” is likewise “designed . . . and intended
3 Our discussion of the factual background is based on
undisputed facts taken from the evidence submitted in
connection with DOJ’s motion for summary judgment.
4
to be fired from the shoulder” but fires a single or multiple
projectiles “through a smooth bore.” (Id., § 17190.)
The DES is the web-based application designed, developed,
and maintained by the DOJ for mandatory use by dealers, and
since its implementation in 2003, it has been the exclusive
mechanism for reporting firearm sales. To submit a transaction
report using the DES, the dealer must select a firearm type such
as a “long gun” or “handgun” from a drop-down menu on the DES
web interface. Prior to October 2021, if a dealer selected “long
gun,” the DES would populate a pull-down menu with only three
options: “rifle,” “shotgun,” and “rifle/shotgun combination.” The
dealer could not complete the reporting process without selecting
a subtype from one of these three options. Unlike other data
entry fields in the DES (such as the field for gun color or the
purchaser’s address), there was no “other” option for long gun
subtypes.
B. Introduction of the Title 1
Franklin Armory is a federally licensed firearms
manufacturer based in Nevada. On or around October 15, 2019
Franklin Armory announced the release of the Title 1, a
centerfire4 semiautomatic gun with a 16-inch barrel. The Title 1
4 A “centerfire” firearm is designed to use cartridges that are
ignited “by the striking of a hammer or firing pin upon a cap or
primer at the center of the base” and is generally distinguished
from a “rimfire” firearm. (See Merriam Webster’s Online Dict.
(2026) <https://www.merriam-webster.com/dictionary/center-fire>
[as of July 8, 2026], archived at <https://perma.cc/B34Q-MCLB
>.) Franklin Armory introduced both a centerfire and rimfire
variant of the Title 1, but, as we discuss, only the centerfire
5
qualifies as a long gun under the Penal Code, but because it was
designed without a shoulder stock (i.e., intended to be fired from
the shoulder), it does not fall within the statutory definition of a
rifle or a shotgun; nor does it meet the definition of any other
firearm subtype, such as pistol or revolver.
On October 24, 2019 Franklin Armory’s attorney sent a
demand letter to then-Attorney General Becerra, stating that
Franklin Armory’s announcement of the Title 1 had “generated a
substantial amount of interest,” but following the announcement,
California firearms dealers notified Franklin Armory they would
be unable to sell the Title 1 because of the DES’s limited list of
long gun subtypes. The letter stated that Franklin Armory’s
president, Jay Jacobson, had spoken to DOJ and was advised
DOJ was “working on correcting the issue,” but “no timeline for
the correction of the defect has been established.” The letter
asserted the DES defect could be rectified by “including within
the list the various types of other long guns, or simply including a
single catch-all within the list [of long gun subtypes] such as
“‘[o]ther.’”
Franklin Armory asserted that DOJ and Becerra had
violated the Second Amendment and the due process clause of the
Fourteenth Amendment, and it had committed tortious
interference with its prospective economic advantage. Franklin
Armory demanded that DOJ “immediately correct the defect in
the DES by permitting the sale of long guns that are neither
shotguns nor rifles, such as the Title 1,” and that it pay damages
for its refusal or delay in doing so.
variant is an assault weapon following the enactment of Senate
Bill 118. Our unspecified references to the Title 1 refer to the
centerfire variant.
6
On January 8, 2020 Deputy Attorney General P. Patty Li
responded to the demand letter, stating, “[DOJ] is currently
implementing the modifications necessary to enable DES to
process sales of the new Title 1 firearm.” Li stated that DOJ staff
would “need to program, develop, and regression test the
modifications, as well as conduct user acceptance testing, for all
of these systems,” which would take several hundred work hours
for its information technology staff. In light of its existing
obligations to conduct ongoing maintenance of firearms-related
systems and implement changes required by recent legislation,
the modification could take “several months.”
Because Franklin Armory concluded the DES defect would
prevent sales of the Title 1, it offered customers the option to pay
it a $5 refundable deposit toward the purchase of the Title 1,
which had a list price of $945. The deposit, according to
Jacobson, “essentially saved a ‘spot in line’” for when the DES
was fixed. Franklin Armory ultimately collected 35,000 deposits
for the Title 1. Franklin Armory admits that no one ever
purchased a Title 1, and no dealer attempted to process the sale
of a Title 1 using the DES.
C. Senate Bill 118
On May 14, 2020 DOJ submitted a budget change proposal
requesting more than $1 million in DES operational funds “to
regulate assault weapons that are currently not defined as a rifle,
pistol or shotgun” and proposing expansion of the definition of an
assault weapon in section 30515, subdivision (a). The proposal
was “intend[ed] to fix current loopholes in statute that allow[]
manufacturers to make weapons that circumvent [the] intention
7
of assault weapons laws” and included “trailer bill language
necessary to implement this proposal.”
As DOJ’s proposal explained, existing law defined “assault
weapon” to include semiautomatic pistols, centerfire rifles, and
shotguns with enumerated characteristics, such as a flash
suppressor, second handgrip, or high-capacity magazine. (See
§ 30515, subd. (a)(1)-(8).) Sales of assault weapons were severely
restricted under the Roberti-Roos Assault Weapons Control Act of
1989 (Stats. 1989, ch. 19, § 3, p. 64; AWCA) and subsequent
amendments. (See Kasler v. Lockyer (2000) 23 Cal.4th 472, 477
[describing AWCA].) The budget change proposal explained,
“Under current law, it is possible to legally purchase and possess
a firearm that has all the features of a banned assault weapon,
such as a forward pistol grip or grenade launcher, without
registering it with the DOJ, due to a loophole that requires
assault weapons to be defined as either a rifle, pistol, or shotgun.”
On August 4, 2020 the Legislature adopted Senate Bill 118
as a budget trailer bill, which the Governor signed on August 6;
as an appropriations bill, Senate Bill 118 took effect immediately.
(Cal. Const., art. IV, § 8, subd. (c)(3).) In relevant part, the bill
amended section 30515, subdivision (a), to expand the definition
of “assault weapon” to include a “centerfire firearm that is not a
rifle, pistol, or shotgun” but has specified attributes. (See
Stats.2020, ch. 29, § 38, adding § 30515, subd. (a)(9)-(11).) The
language of the amendment mirrored DOJ’s May 2020 proposed
bill language.
The parties do not dispute that the centerfire Title 1 is an
assault weapon under section 30515 as amended by Senate
Bill 118, and, under the new law, the gun cannot be registered in
California unless it was lawfully possessed prior to September 1,
8
2020. (See § 30685 [under certain conditions, AWCA restrictions
“do[] not apply to the possession of an assault weapon as defined
by paragraph (9), (10), or (11) of subdivision (a) of Section 30515
by a person who has possessed the assault weapon prior to
September 1, 2020.”].)
D. The Complaint
Franklin Armory and CRPA5 filed this action on May 27,
2020, and they amended the complaint following the enactment
of Senate Bill 118. After the trial court sustained DOJ and
Becerra’s demurrer to the causes of action for equitable relief
with leave to amend, on February 17, 2021 Franklin Armory and
CRPA filed the operative second amended complaint (complaint).6
The complaint alleged nine causes of action against DOJ
and Becerra (individually and in his official capacity):
(1) declaratory and injunctive relief; (2) writ of mandate;
(3) tortious interference with contractual relations; (4) tortious
interference with prospective economic advantage; (5) negligent
interference with prospective economic advantage; (6) denial of
5 CRPA, as alleged, is an Orange County-based nonprofit
organization committed to defending the “fundamental right to
acquire and possess lawful firearms,” whose membership
includes Californians who wished to purchase or sell
uncategorized firearms like the Title 1 but were prevented from
so doing by DES limitations.
6 The matter was assigned to Judge James C. Chalfant in the
superior court writs and receivers department. Judge Chalfant
presided over the matter until January 28, 2022, when he
dismissed the causes of action for injunctive and declaratory
relief and for a writ of mandate. The matter was then reassigned
to Judge Daniel S. Murphy.
9
procedural due process in violation of 42 United States Code
section 1983 (Section 1983); (7) denial of substantive due process
in violation of Section 1983; (8) declaratory and injunctive relief
for violations of the Administrative Procedure Act (Gov. Code,
§ 11340, et seq.; APA); and (9) public action to enjoin waste of
taxpayer funds under Code of Civil Procedure section 526a.
The general factual allegations common to all causes of
action included those asserted in Franklin Armory’s demand
letter: the Title 1 is a long gun under California law, but it is not
a rifle, shotgun, or rifle/shotgun, which are the only long gun
subtypes recognized by the DES. Consequently, dealers could not
sell the Title 1 because they could not meet mandatory reporting
requirements. The complaint further alleged that Franklin
Armory notified DOJ of the defect in October 2019, but DES
failed to correct the defect and, on information and belief, DOJ
had already developed a solution. DOJ could resolve the defect
by providing an “other” subtype option for long guns; permitting
“the user to proceed without completing the subtype categories”;
or “authoriz[ing] . . . alternative means [of reporting] pursuant to
the authority granted it by Penal Code section 28205,
subdivision (c).”7 DOJ did not implement any solution, and
instead, DOJ and Becerra conspired to delay “any action that
would otherwise permit the formal sale, transfer, and delivery of
the [Title 1] style firearms until legislation designed and
intended to ban the sale, transfer, and delivery of the Title 1
would be implemented and effective.” DOJ’s failure to address
7 Section 28205, subdivision (c), provides, “On or after
January 1, 2003, except as permitted by [DOJ], electronic transfer
shall be the exclusive means by which information is transmitted
to the department.” (Italics added.)
10
the DES defect before enactment of Senate Bill 118 constituted
an “underground regulation” in violation of the APA and a
de facto illegal ban on the sale of lawful firearms.
In its causes of action for declaratory and injunctive relief
and a writ of mandate (first, second, and eighth causes of action),
Franklin Armory sought orders compelling DOJ and Becerra “to
design, implement, maintain and enforce updates to the DES
such that it does not proscribe the lawful sale, transfer and loan
of an entire class of lawful firearms” like the Title 1, enjoining
them from “enforcing administrative and/or technological
barriers that prevent the sale of lawful ‘firearms with an
undefined subtype,’” and prohibiting them from enforcing the
AWCA “in a manner that prohibits the acquisition and
registration of [Title 1] firearms for [which] earnest money
deposit[s] were made on or before August 6, 2020” (the effective
date of Senate Bill 118).
Franklin Armory’s due process claims (sixth and seventh
causes of action) similarly sought orders enjoining DOJ and
Becerra from enforcing Senate Bill 118 to prohibit the sale of
Title 1 guns for which customers paid deposits before August 6,
2020. The taxpayer claim (ninth cause of action) sought to
restrain “illegal expenditure” of public funds on “the installment
and maintenance of the non-compliant DES.” The tortious
interference claims (third, fourth, and fifth causes of action)
sought damages based on DOJ’s and Becerra’s interference with
Title 1 sales, including at least $33 million in lost contracted
sales to the customers who had paid $5 deposits, lost profits,
reputational damage due to Franklin Armory’s inability to fulfill
orders, and punitive damages.
11
E. The Motion To Dismiss the Causes of Action for Declaratory
and Injunctive Relief and for Writ of Mandate
On November 29, 2021 the Attorney General, representing
DOJ and Becerra in his personal and official capacity, filed a
motion to dismiss the causes of action for injunctive and
declaratory relief and writ of mandate on the grounds these
claims were rendered moot because, as of October 1, 2021, DOJ
modified the DES to include an “other” option in the long gun
subtype menu, allowing dealers to record sales of the Title 1 and
other long guns that were not rifles or shotguns. Cheryle
Massaro-Florez, an information technology supervisor in DOJ’s
Application Development Bureau – Firearms Software
Development Unit (ADB), submitted a declaration explaining
DOJ’s process in engineering and deploying the DES
modification, and Maricel Leyva, a manager in DOJ’s Bureau of
Firearms Customer Support Center, described a bulletin DOJ
posted prior to deployment “to notify firearms dealers about the
modification of the DES and to instruct them how to utilize the
‘other’ option.”
In its opposition, Franklin Armory conceded that by
implementing the modification, DOJ had ceased its policy of
blocking lawful sales of the Title 1, and Franklin Armory did not
“inherently disagree” that its claims for declaratory, injunctive,
and writ relief were rendered moot. However, it argued the trial
court should exercise its discretion to hear its claims because the
dispute involved an issue of broad public interest, and the dispute
was likely to recur because DOJ could in the future reinstate
administrative and technological barriers to prevent lawful
firearms sales.
12
After a hearing, on January 27, 2022 the trial court granted
the motion. The court found that Franklin Armory did “not
dispute that the [o]ther option removes the technological barriers
alleged,” which rendered the claims at issue moot. The court
agreed with Franklin Armory that its claims implicated the
public’s fundamental interest in protecting Second Amendment
rights, but there was no basis to believe the controversy would
recur, either between the parties or with others.
F. The Motion for Judgment on the Pleadings
On August 14, 2023 the Attorney General filed a motion for
judgment on the pleadings as to the tortious interference, due
process, and taxpayer causes of action. As set forth in the
declaration of Deputy Attorney General Kenneth G. Lake, the
parties had reached an agreement clarifying that Franklin
Armory and CRPA were seeking only equitable relief, not
damages, on their due process and taxpayer claims; Franklin
Armory was seeking monetary damages on its tortious
interference causes of action only from Becerra in his official
capacity as former Attorney General; and CRPA was not seeking
damages from any party on any cause of action. The Attorney
General argued in relevant part that the due process and
taxpayer claims had been rendered moot, and, as to the tort
claims, DOJ and Becerra were immune from liability under the
GCA.8
8 Although Franklin Armory agreed that it was only seeking
damages from Becerra, the parties litigated whether DOJ and
Becerra were liable (or immune from liability) under Government
Code sections 815.6 (public entity liability for failure to discharge
13
After briefing and a hearing, the trial court granted the
motion in part, without leave to amend as to the due process and
taxpayer claims. The court found, “[Senate Bill] 118 already
allows individuals possessing a Title [1] firearm prior to
September 1, 2020, to keep it if the firearm is properly
registered,” and insofar as Franklin Armory was seeking an order
directing sales of the centerfire Title 1 guns to those who paid
$5 deposits, this was an “entirely different remedy of allowing
individuals to newly obtain a banned assault weapon,” which was
“patently illegal.” Moreover, the taxpayer claim was mooted by
DOJ’s October 2021 modification of the DES.
The trial court denied judgment on the pleadings as to the
tortious interference claims, finding DOJ and Becerra were not
immune from liability as alleged, because the complaint
sufficiently alleged they violated a mandatory duty to provide a
method for dealers to report Title 1 sales created by section 28155
(stating that DOJ “‘shall prescribe the form of the register and
the record of electronic transfer’”). The court reasoned that
although DOJ may have had discretion as to how to operate the
DES, “discretion over the manner of implementing an electronic
reporting system does not mean the discretion to refuse to
implement a reporting system entirely for certain firearms.”
(Boldface and italics omitted.)
mandatory duty) and 820.2 (public employee immunity for
discretionary acts). The trial court later observed in ruling on
DOJ and Becerra’s summary judgment motion that DOJ could be
potentially liable under section 815.6. Conversely, Becerra and
other DOJ employees could be liable only in limited
circumstances under section 820.2.
14
G. The Motion for Summary Judgment
On April 26, 2024 the Attorney General filed a motion for
summary judgment (and summary adjudication) of the tortious
interference causes of action (the only remaining causes of
action), arguing, inter alia, that DOJ’s modifications to the DES
to accommodate sales of “other” long guns were discretionary
actions, not a statutory mandate under section 28155. DOJ was
therefore not liable under Government Code section 815.6, and
DOJ, its employees, and Becerra were immune from liability
under Government Code section 820.2.
In a supporting declaration, Allison Mendoza, the assistant
bureau chief and later director of DOJ’s Bureau of Firearms
responsible for managing DES, described DOJ’s response to
Franklin Armory’s October 2019 demand letter and the process
for modifying DES. Mendoza averred that at any given time,
there are numerous pending requests to enhance the DES to
address changes in the law and regulations, court orders, and
technological advancements. Implementation and prioritization
of these requests involved consideration of several factors,
including available personnel and resources, the cost of each
proposed project, the time necessary to complete a project, and
public safety considerations.
Mendoza declared that after receiving Franklin Armory’s
demand letter, in late 2019 the Bureau of Firearms, in
collaboration with ADB, initiated a review to determine the
staffing and resources necessary to add an option for “other” to
the long gun subtype menu on the DES. ADB determined it
would take many months to implement the modification and
would require well over a dozen personnel, many of whom would
need to be diverted from other projects, and the modification
15
would require changes to other applications and databases
besides DES. The onset of the COVID-19 pandemic in
March 2020 presented additional staffing difficulties. ADB also
considered a temporary modification tailored only to Title 1
transfers, with a later enhancement to address all uncategorized
long guns, but even the temporary modification would present
operational difficulties, take a few months to implement, and
raise public safety concerns, so DOJ decided not to proceed with
this option. After Senate Bill 118 was enacted in August 2020,
rendering the Title 1 centerfire long gun a restricted assault
weapon, DOJ “decided after weighing competing priorities among
the multiple information technology projects pending at that time
in the middle of the COVID-19 pandemic, to implement at a later
date the DES enhancement that added an ‘other’ option.” The
modification was completed on October 1, 2021.
The Attorney General also submitted excerpts of the
deposition of Massaro-Florez, who oversaw implementation of the
“other” option in the DES. Massaro-Florez testified the DES
modification project took place between July 1 and October 1,
2021 and occupied her 12-person staff and additional staff from
ADB. The project was completed in four phases, including
analysis, build, system integration, and testing, and it was
complicated by the need to modify several other applications and
databases.
In its opposition, Franklin Armory argued that DOJ’s and
Becerra’s “excuse-making for why they could not prioritize the
DES fix” might be relevant to their immunity for discretionary
acts, but, as the trial court had concluded in ruling on the prior
pleadings motions, section 28155 created a mandatory duty for
DOJ to operate the DES in a manner that allowed lawful
16
firearms sales. Franklin Armory submitted evidence challenging
several aspects of Mendoza’s stated timeline for modifying DES.
For example, as early as January 8, 2020, Deputy Attorney
General Li had advised Franklin Armory that it was “currently
implementing the modifications necessary to enable DES to
process sales of the new Title 1 firearm.” Five months later, DOJ
submitted its budget change proposal, drafted by Mendoza, in
which DOJ requested DES funds “to regulate assault weapons
that are currently not defined” and proposed bill language
“‘intend[ed] to fix current loopholes in statute’” that allowed
manufacturers to “‘circumvent’” the intent of AWCA. Senate
Bill 118 adopted DOJ’s proposal, and Mendoza admitted in her
deposition that she could not think of any other instance where
firearms-related legislation was adopted by the “budget trailer
bill” process. Massaro-Florez also admitted during her deposition
that there were two separate projects to modify the DES to allow
“other” long guns to be recorded: the first project progressed as
far as final testing before it was terminated for reasons unknown
to her; the second project began on its “own timeline” and
culminated in the October 2021 modification.9
9 On June 10, 2025 we granted Franklin Armory’s request
for judicial notice of DOJ information technology service logs for
DES projects, which DOJ produced after entry of judgment in
response to a public records act request. The logs suggest that
DOJ initiated projects relating to addition of an option for the
“other” category on the long-gun menu in January and
February 2020.
17
After a hearing, on July 11, 2024 the trial court granted the
motion.10 In its seven-page order, the court held that DOJ and
Becerra were not liable in tort under Government Code
section 815.6 because “the cited Penal Code provisions do not
require a particular action be taken with regard to the DES
system.” Further, “[t]o the extent DOJ was required to
implement an electronic reporting system (see § 2805(c)), it did so
by implementing the DES, which has existed since 2003,” and
“[h]ow DOJ implements the reporting system, including what
changes to make in response to the emergence of a new firearm is
left in its discretion.” The court observed that Franklin Armory
admitted that section 28205, subdivision (c), “grants DOJ
‘authority’ to implement a variety of ‘alternative means’ to allow
for processing of Title 1 firearms.’”
The trial court concluded that DOJ and Becerra
demonstrated their entitlement to public employee immunity for
discretionary acts under Government Code section 820.2. The
facts adduced in the motion, including Mendoza’s declaration and
deposition testimony, “show[ed] that changing the DES is a
policy-level decision requiring the exercise of discretion, rather
than a ministerial implementation of an existing directive.”
Franklin Armory’s evidence challenging aspects of Mendoza’s
testimony did not create a dispute as to DOJ’s showing “that the
process involves consideration of competing interests, resource
allocation, budget constraints, and the like.”
10 The trial court did not rule on Franklin Armory’s
evidentiary objections, finding the objections were not material to
the court’s disposition of the motion. Franklin Armory does not
contend on appeal that any evidence was erroneously admitted.
18
On July 12, 2024 the trial court entered judgment in favor
of DOJ and Becerra. Franklin Armory and CRPA timely
appealed.
DISCUSSION
A. The Trial Court Properly Dismissed the First, Second,
Sixth, Seventh, and Ninth Causes of Action as Moot
1. Governing law and standard of review
“A court is tasked with the duty ‘“to decide actual
controversies by a judgment which can be carried into effect, and
not to give opinions upon moot questions or abstract propositions,
or to declare principles or rules of law which cannot affect the
matter in issue in the case before it.”’” (In re D.P. (2023)
14 Cal.5th 266, 276; accord, People ex rel. Alameda County
Taxpayers’ Assn., Inc. v. Brown (2025) 114 Cal.App.5th 919, 931.)
“‘A case becomes moot when events ‘“render[] it impossible for [a]
court, if it should decide the case in favor of plaintiff, to grant him
any effect[ive] relief.’”’” (Make UC a Good Neighbor v. Regents of
University of California (2024) 16 Cal.5th 43, 65; accord, D.P., at
p. 276.) “For relief to be ‘effective,’ two requirements must be
met. First, the plaintiff must complain of an ongoing harm.
Second, the harm must be redressable or capable of being
rectified by the outcome the plaintiff seeks.” (D.P., at p. 276.)
“Courts regularly find cases non-justiciable when injunctive
relief is sought but, . . . the act sought to be enjoined has been
performed.” (Shaw v. Los Angeles Unified School Dist. (2023)
95 Cal.App.5th 740, 772; see Giles v. Horn (2002)
100 Cal.App.4th 206, 226-227 [action to prohibit expenditure of
public funds on private contractors rendered moot on appeal
19
because contracts expired and were fully performed].) “Similarly,
an intervening change in the law—namely, the repeal or
modification of a statute under attack or subsequent legislation
correcting a challenged deficiency—that is the crux of a case may
result in mootness.” (Shaw, at p. 773, citing Sierra Club v. Board
of Supervisors (1981) 126 Cal.App.3d 698, 704-706 [challenge to
zoning ordinance as inconsistent with general plan rendered
moot on appeal when county adopted new general plan that was
consistent with ordinance].) “‘“When events render a case moot,
the court, whether trial or appellate, should generally dismiss
it.”’” (Save Berkeley’s Neighborhoods v. Regents of University of
California (2023) 91 Cal.App.5th 872, 886; accord, Parkford
Owners for a Better Community v. County of Placer (2020)
54 Cal.App.5th 714, 722.)
“‘The general rule regarding mootness, however, is
tempered by the court’s discretionary authority to decide moot
issues. When an action involves a matter of continuing public
interest that is likely to recur, a court may exercise an inherent
discretion to resolve that issue, even if an event occurring during
the pendency of the appeal normally would render the matter
moot.’” (Moore v. Wells Fargo Bank, N.A. (2019) 39 Cal.App.5th
280, 296; see In re D.P., supra, 14 Cal.5th at p. 282.)
“‘[J]udgment on the pleadings in favor of the defendant is
appropriate when the complaint fails to allege facts sufficient to
state a cause of action. [Citation.] A motion for judgment on the
pleadings is equivalent to a demurrer and is governed by the
same de novo standard of review.’ [Citation.] ‘All properly
pleaded, material facts are deemed true, but not contentions,
deductions, or conclusions of fact or law . . . .’ [Citation.] Courts
may consider judicially noticeable matters in the motion as well.”
20
(People ex rel. Harris v. Pac Anchor Transportation, Inc. (2014)
59 Cal.4th 772, 777; see Code Civ. Proc., § 438, subd. (c)(3)(B)(ii);
City of Rancho Palos Verdes v. State of California (2025)
114 Cal.App.5th 13, 23.) Moreover, “[i]ssues of justiciability, such
as mootness, are generally reviewed de novo.” (Robinson v. U-
Haul Co. of California (2016) 4 Cal.App.5th 304, 319; accord,
Panoche Energy Center, LLC v. Pacific Gas & Electric Co. (2016)
1 Cal.App.5th 68, 99.)11
2. Senate Bill 118 mooted Franklin Armory’s request for
an order authorizing Title 1 sales
On appeal, Franklin Armory does not dispute that the
October 2021 DES modification rendered moot its claims for
declaratory and injunctive relief and for a writ of mandate
compelling DOJ to operate DES in a manner that does not
prevent the lawful sale of Title 1 centerfire firearms and other
uncategorized long guns, as well as its federal due process and
11 Although there is no statutory basis for a pretrial motion to
dismiss, the Attorney General argued, without opposition, that
the motion was proper because DOJ modified the DES during the
litigation, citing Wilson & Wilson v. City Council of Redwood City
(2011) 191 Cal.App.4th 1559, 1574 (“[w]hen events render a case
moot, the court, whether trial or appellate, should generally
dismiss it”) and Lyons v. Wickhorst (1986) 42 Cal.3d 911, 915 (“a
trial court may, under certain circumstances, invoke its limited,
inherent discretionary power to dismiss claims with prejudice”).
The trial court construed the motion to dismiss as the functional
equivalent of “a general demurrer [that] may be filed at any time
where the question is whether the complaint states a cause of
action.”
21
taxpayer causes of action.12 Nor does Franklin Armory challenge
the court’s determination that there was no reasonable likelihood
the parties’ dispute would recur to warrant discretionary review
of a moot issue. Rather, Franklin Armory’s sole contention is
that the court erred in disposing of these causes of action because
Senate Bill 118 did not eliminate the court’s ability to grant relief
regarding “pre-adoption purchases of the centerfire Title 1.”
(Capitalization and boldface omitted.)
Specifically, Franklin Armory argues it suffers ongoing
harm notwithstanding the DES modification, because Senate
Bill 118 “operates to prevent the transfer (and subsequent
registration) of centerfire [Title 1 guns]” that are pending (i.e.,
where the customers made a deposit for the firearms when it was
lawful to purchase them). The court still has the power to
address this harm, Franklin Armory argues, “by the relief [it]
seek[s]—that is, narrowly enjoining enforcement of SB 118 to the
extent that it blocks the transfer and registration of [Title 1]
firearms for which deposits were made before August 6, 2020.”13
12 On appeal, Franklin Armory does not challenge the trial
court’s order dismissing its eighth cause of action for declaratory
and injunctive relief for DOJ’s alleged violation of the APA in
administering the DES.
13 We reject the Attorney General’s contention that Franklin
Armory waived this issue by amending its complaint after the
trial court sustained DOJ’s demurrer to the first amended
complaint with respect to the declaratory and injunctive relief
and writ of mandate claims, because at the time of the court’s
ruling on the demurrer, the court had stayed Franklin Armory’s
due process and taxpayer causes of action. We deny Franklin
Armory’s October 6, 2025 request to augment the record on
22
This argument lacks merit. The complaint admits the
centerfire Title 1 is an assault weapon under section 30515,
subdivision (a), as amended by Senate Bill 118, and that sales of
the gun were effectively banned under AWCA after August 6,
2020. Senate Bill 118 also provided that AWCA did not prohibit
possession of a newly designated assault weapon by a person who
“lawfully possessed that assault weapon prior to September 1,
2020.” (§ 30685, subd. (b), italics added.) Yet the complaint does
not allege that any Title 1 gun was ever sold or transferred to, or
lawfully possessed by, anyone before September 1, 2020. On the
contrary, the complaint expressly alleges Franklin Armory “has
been unable to transfer approximately 35,000 FAI Title 1 series
firearms reserved via earnest money deposits.”
Regardless of whether DOJ intentionally and improperly
delayed in modifying the DES until the Legislature had the
opportunity to ban the centerfire Title 1, the enactment of Senate
Bill 118 foreclosed the court’s ability to allow centerfire Title 1
sales in California, including sales to customers who made
deposits for the firearm. (See Save Berkeley’s Neighborhoods v.
Regents of University of California, supra, 91 Cal.App.5th at
p. 885-888 [California Environmental Quality Act challenge to
the adequacy of an environmental impact report (EIR) concerning
university’s campus development plan was mooted by
amendments that narrowed EIR requirements for the university
expansion and by post-amendment certification of a new EIR].)
appeal to include a certified transcript of the February 25, 2021
case management conference (discussing preservation of issues
on appeal), which is not necessary to our decision on this issue.
(Cal. Rules of Court, rules 8.155(a).)
23
Moreover, to the extent Franklin Armory seeks an order
“enjoining enforcement of SB 118” to allow sales of the centerfire
Title 1, such an order would improperly compel performance of an
illegal act. (See Cal Fire Local 2881 v. California Public
Employees’ Retirement System (2016) 7 Cal.App.5th 115, 123
[“‘“[m]andamus will not lie to compel the performance of any act
which would be void, illegal or contrary to public policy”’”]; Torres
v. City of Montebello (2015) 234 Cal.App.4th 382, 403-404 [voter
approval of initiative requiring competitive bidding on waste
management services mooted action for writ and injunction
compelling mayor to sign off on a no-bid contract approved by city
council]; see also Adoption of S.S. (2021) 72 Cal.App.5th 607, 627
[“When the Legislature has addressed a specific situation, a court
cannot wholly ignore the statutory mandate in favor of equitable
considerations.”].)
Franklin Armory points to a stipulated judgment and
consent decree entered in March 2021 in Sharp. v. Becerra, U.S.
District Court, Eastern District of California, Case No. 2:18-cv-
02317-MCE-AC to argue that the court and DOJ can order
retroactive authorization of assault weapons. The Sharp
plaintiffs sued DOJ, Becerra, and others, alleging that
individuals who possessed “bullet button” firearms, which in
January 2017 were restricted as assault weapons pursuant
amendments to AWCA, were unable to register their guns on
DOJ’s California Firearms Application Reporting System
(CFARS), as required under amended section 30900,
subdivision (b), prior to the statutory cutoff because of technical
defects on CFARS. As part of the stipulated judgment, DOJ
agreed to reopen the registration periods for individuals meeting
certain requirements, including that “prior to January 1, 2017,
24
the person would have been eligible to register an assault weapon
pursuant to subdivision (b) of Penal Code § 30900” and “the
person lawfully possessed each assault weapon to be registered,
prior to January 1, 2017.”
Despite a superficial similarity, the Sharp consent decree
does not show there is a viable equitable remedy in this case (nor
is it binding authority). The Sharp decree did not authorize the
possession, sale, or transfer of new assault weapons; instead, it
extended the deadline to register bullet-button guns already in
the registrant’s lawful possession before they were
recharacterized. As discussed, Senate Bill 118 recognized
individuals’ rights to possess guns that were recharacterized as
assault weapons provided the individuals “lawfully possessed”
their gun prior to September 1, 2020. (§ 30685, subd. (b).) No
potential Franklin Armory customers fall into this category. The
trial court correctly concluded Franklin Armory was seeking an
“entirely different remedy of allowing individuals to newly obtain
a banned assault weapon.”
B. The Trial Court Did Not Err in Granting Summary
Judgment Because DOJ and Becerra Were Immune from
Tort Liability
1. Standard of review
Summary judgment is appropriate only if there are no
triable issues of material fact and the moving party is entitled to
judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c);
Regents of University of California v. Superior Court (2018)
4 Cal.5th 607, 618; Gordon v. Continental Casualty Co. (2024)
107 Cal.App.5th 89, 99.) A defendant moving for summary
judgment has the initial burden of presenting evidence that a
25
cause of action lacks merit because the plaintiff cannot establish
an element of the cause of action or there is a complete defense.
(Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield
Co. (2001) 25 Cal.4th 826, 853; Gordon, at p. 99.) If the
defendant satisfies this initial burden, the burden shifts to the
plaintiff to present evidence demonstrating there is a triable
issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2);
Aguilar, at p. 850; Gordon, at pp. 99-100.)
“‘“‘“We review the trial court’s decision [on motion for
summary judgment] de novo, considering all the evidence set
forth in the moving and opposing papers except that to which
objections were made and sustained.”’ [Citation.] We liberally
construe the evidence in support of the party opposing summary
judgment and resolve doubts concerning the evidence in favor of
that party.”’” (Hampton v. County of San Diego (2015) 62 Cal.4th
340, 347; accord, Gordon v. Continental Casualty Co., supra,
107 Cal.App.5th at p. 99.) Moreover, “where the propriety of a
grant of summary judgment turns on the proper interpretation of
a statute, . . . our review of that question of law is also de novo.”
(Wilson v. County of San Joaquin (2019) 38 Cal.App.5th 1, 9.)
2. DOJ is not liable for failure to discharge a mandatory
duty because the Penal Code does not require that
DOJ modify DES in a particular manner or on a
specific schedule
Government Code section 815 of the GCA “abolishes
common law tort liability for public entities.” (Miklosy v. Regents
of University of California (2008) 44 Cal.4th 876, 899; see Gov.
Code, § 815, subd. (a) [“[e]xcept as otherwise provided by statute:
[¶] . . . [a] public entity is not liable for an injury, whether such
26
injury arises out of an act or omission of the public entity or a
public employee or any other person”].) Accordingly, “direct tort
liability of public entities must be based on a specific statute
declaring them to be liable, or at least creating some specific duty
of care.” (Eastburn v. Regional Fire Protection Authority (2003)
31 Cal.4th 1175, 1183; accord, B.H. v. County of San Bernardino
(2015) 62 Cal.4th 168, 179 (B.H.) [under the GCA, “governmental
tort liability must be based on statute”]; State ex rel. Dept. of
California Highway Patrol v. Superior Court (2015) 60 Cal.4th
1002, 1009 [“If the Legislature has not created a statutory basis
for it, there is no government tort liability.”].)
Franklin Armory alleged in the complaint that DOJ is
directly liable for its tortious acts in preventing firearms dealers
from recording their sales of Title I centerfire long guns into the
DES system, under Government Code section 815.6.
Section 815.6 provides: “Where a public entity is under a
mandatory duty imposed by an enactment that is designed to
protect against the risk of a particular kind of injury, the public
entity is liable for an injury of that kind proximately caused by
its failure to discharge the duty unless the public entity
establishes that it exercised reasonable diligence to discharge the
duty.”
The Supreme Court has described the elements of
mandatory-duty liability under Government Code section 815.6
as follows: “‘First and foremost, application of section 815.6
requires the enactment at issue be obligatory, rather than merely
discretionary or permissive, in its directions to the public entity;
it must require, rather than merely authorize or permit, that a
particular action be taken or not taken. [Citation.] It is not
enough, moreover, that the public entity or officer have been
27
under an obligation to perform a function if the function itself
involves the exercise of discretion.’” (Guzman v. County of
Monterey (2009) 46 Cal.4th 887, 898 (Guzman); accord, Haggis v.
City of Los Angeles (2000) 22 Cal.4th 490, 498 (Haggis).) “Courts
have construed this first prong rather strictly, finding a
mandatory duty only if the enactment ‘affirmatively imposes the
duty and provides implementing guidelines.’” (Guzman, at
p. 898; accord, County of Los Angeles v. Superior Court (2024)
107 Cal.App.5th 160, 178-180 [Welf. & Inst. Code, § 361.3,
requiring that a family services agency contact relatives given
preferential consideration for placement of children removed from
their home, did not create a mandatory obligation for agency to
notify grandparents when a removal warrant had been served,
and agency’s policy and practice of providing such notice did not
create a duty].)
“‘Second, but equally important, [Government Code] section
815.6 requires that the mandatory duty be “designed” to protect
against the particular kind of injury the plaintiff suffered. The
plaintiff must show the injury is “‘one of the consequences which
the [enacting body] sought to prevent through imposing the
mandatory duty.’” [Citation.] . . . [I]f the benefit is “incidental”
to the enactment’s protective purpose, the enactment cannot
serve as a predicate for liability under section 815.6.’” (Guzman,
supra, 46 Cal.4th at p. 898; accord, Haggis, supra, 2 Cal.th at
p. 499.) “If these two prongs are met, the next question is
whether the breach of the duty was a proximate cause of the
plaintiff’s injury.” (Guzman, at p. 898; see B.H., supra,
62 Cal.4th at p. 179 [summarizing elements of § 815.6 liability].)
28
For purposes of Government Code section 815.6, an
“‘[e]nactment’” means “a constitutional provision, statute, charter
provision, ordinance or regulation.” (Gov. Code, § 810.6.) “A
plaintiff seeking to hold a public entity liable under . . .
section 815.6 must specifically identify the statute or regulation
alleged to create a mandatory duty.” (In re Groundwater Cases
(2007) 154 Cal.App.4th 659, 689; see Cerna v. City of Oakland
(2008) 161 Cal.App.4th 1340, 1349-1350 [“[t]o assert liability
under Government Code section 815.6 for breach of a mandatory
duty, a plaintiff must specifically allege liability in his or her
complaint and identify the applicable statute or regulation that
imposes the alleged mandatory duty”; “the pleadings limit the
issues on a motion for summary judgment”].) Further “‘the
mandatory nature of the duty must be phrased in explicit and
forceful language.’” (Groundwater Cases, at p. 689; accord,
Guzman, supra, 46 Cal.4th at p. 894.)
“‘“Whether a particular statute is intended to impose a
mandatory duty, rather than a mere obligation to perform a
discretionary function, is a question of statutory interpretation
for the courts.” [Citations.] We examine the “language, function
and apparent purpose” of each cited enactment “to determine if
any or each creates a mandatory duty designed to protect
against” the injury allegedly suffered by plaintiff.’” (B.H., supra,
62 Cal.4th at pp. 180-181; accord, Guzman, supra, 46 Cal.4th at
p. 898.)
In its complaint and its opposition to the motion for
summary judgment (as well as on appeal), Franklin Armory
identified four Penal Code provisions that it alleged created a
mandatory duty for DOJ to modify the DES to facilitate transfers
of long guns that are not rifles or shotguns: sections 28155,
29
28205, 28215, and 28220. These provisions, whether considered
separately or together, do not affirmatively “‘require . . . that a
particular action be taken’” by DOJ in operating the DES to
facilitate sales of new types of firearms. (See Guzman, supra,
46 Cal.4th at p. 898.)
Section 28155 states that DOJ “shall prescribe the form of
the register and the record of electronic transfer” for firearm
sales. This section creates a mandatory duty for DOJ to provide
a system for recording firearm sales information, which it did in
creating the DES, and it has a continuing duty to support such
system. But nothing in section 28155 required DOJ to take any
specific action in designing the DES (for example, including
particular pull-down menus), let alone imposed on DOJ a duty to
modify the system to address new firearm designs on a particular
schedule. For example, the Legislature could have required that
DOJ modify the DES system within 60 days to enable new
firearm types to be recorded in the DES. But it did not.
Section 28205, subdivision (c), provides (for transfers in or
after 2003) that “except as permitted by the department, electronic
transfer shall be the exclusive means by which information is
transmitted to the department.” (Italics added.) Franklin
Armory cites this section for the proposition that the DES system
is the exclusive means of transferring sales information unless
DOJ specifies otherwise; Franklin Armory does not explain how
this section imposes any mandatory duty on DOJ. Section 28215
specifies the obligations of the firearms dealer and purchaser
with respect to information transmitted through the DES system.
Section 28220 addresses DOJ’s obligations with respect to how it
uses information received through DES, for example, in
30
determining whether a purchaser is prohibited from owning a
firearm.
These four sections, by their own language, do not create
mandatory duties with respect to how the DES system is
designed or the information that can be submitted, and to the
extent they impose any duties on DOJ in creating the DES
system, they confer DOJ with discretion. (See California
Highway Patrol v. Superior Court (2008) 162 Cal.App.4th 1144,
1150-1151 [Veh. Code § 14602.6, subd. (a)(1), providing that a law
enforcement “may” impound a vehicle whose driver’s license has
been suspended conferred discretionary authority,
notwithstanding provision that “[a] vehicle so impounded shall be
impounded for 30 days.”].)
Moreover, as the trial court found, Franklin Armory
admitted that DOJ had discretion in how it operated the DES to
allow sales of new gun types such as the Title 1. As alleged in the
complaint, DOJ could eliminate the “technological barrier” to
Title 1 sales by adding an option for “other” firearms to the long
gun menu, but it could also “permit[] the user to proceed without
completing the subtype categories” or “authorize[] any of a
multitude of alternative means pursuant to the authority granted
it by Penal Code section 28205, subdivision (c),” such as
instructing dealers to select one of the existing menu options and
make an annotation in one of the system’s “comment” fields. In
its separate statement in opposition to summary judgment,
Franklin Armory likewise admitted that in lieu of modifying the
DES at all, DOJ had authority under section 28205 to create “an
alternative procedure for submission of the purchaser and
firearm information.”
31
Further, section 28245 provides, “Whenever [DOJ] acts
pursuant to this article as it pertains to firearms other than
handguns, the department’s acts or omissions shall be deemed to
be discretionary within the meaning of the [GCA].”
Section 28245 is in the same article—article 3—as
sections 28205, 28215, and 28220. Thus, the Legislature made it
clear that these sections do not create mandatory-duty liability
under Government Code section 815.6. (See Haggis, supra,
22 Cal.4th at p. 500, fn. 2 [recognizing the “indisputable principle
that the Legislature may, by later and more specific enactments,
create exceptions to the general rule of liability set forth in
section 815.6”].)
Section 28155 is not in article 3, so section 28245 does not
apply. However, as discussed, section 28155 creates a mandatory
duty only with respect to its obligation to prescribe the form of
the record of electronic transfer, which DOJ has done. On
appeal, Franklin Armory concedes that section 28155 “does grant
DOJ discretion to prescribe the format of the register and record
of electronic transfer.” However, it argues that such discretion is
“narrowly drawn” and “does not authorize [DOJ] to adopt a form
that fails to capture the required information for all lawful
firearms.” As the source of this constraint, Franklin Armory cites
section 28160, which states, in relevant part, “[f]or all firearms,
the register or record of electronic transfer shall include all of the
following information: [¶] . . . [¶] [t]ype of firearm.” (§ 28160,
subd. (a)(14).)14 We are not persuaded.
14 Although Franklin Armory did not rely on section 28160 in
its complaint or opposition to summary judgment with respect to
DOJ’s mandatory duty (and the trial court therefore did not
32
Section 28160 does not direct DOJ to perform any act to
ensure dealers will be able to report sales of a new type of
firearm. Section 28160, subdivision (a)(14), only requires that
the DES include the “[t]ype of firearm.” As Franklin Armory
alleged in paragraph 45 of its complaint, “[W]hile the ‘type’ of
firearm (e.g., ‘long gun’ or ‘handgun’) is required, the ‘subtype’
[i.e., rifle, rifle/shotgun, shotgun] of a firearm is not mandated by
Penal Code section 28160, subdivision (a).” Consistent with this
position, Franklin Armory argued in its opposition to the motion
for summary judgment, “DOJ could . . . have chosen to remove
the technological barrier [to transfer of Title 1 firearms] by
enhancing the DES to allow the user to proceed without selecting
a firearm subtype.” And as discussed, Franklin Armory argued
that DOJ had discretion under section 28205, subdivision (c), to
record transfers of the Title 1 without using the DES at all.
Although Franklin Armory argues otherwise on appeal, we agree
with its initial interpretation of these statutes: DOJ had
discretion under the Penal Code to pursue a variety of methods to
facilitate recording of sales of the Title 1 centerfire long gun, but
nowhere in the Penal Code did the Legislature impose on DOJ a
address it), the complaint quotes the section generally, and
Franklin Armory made this argument in its opposition to the
motion for judgment on the pleadings. Although arguably
Franklin Armory forfeited this contention, we conclude it has
sufficiently identified the provision to preserve the argument on
appeal. (See Searcy v. Hemet Unified School Dist. (1986)
177 Cal.App.3d 792, 802 [“the statute or ‘enactment’ claimed to
establish the duty must at the very least be identified”]; cf. Cerna
v. City of Oakland, supra, 161 Cal.App.4th at pp. 1349-1350 [the
pleadings limit the duty statutes considered on summary
judgment].)
33
mandatory duty to modify the DES to add an “other” category for
new long guns. And even assuming DOJ had a continuing
mandatory duty to ensure that sales information for the Title 1
could be transmitted to DOJ, nothing in section 28205 required
that DOJ modify the DES system on a specific schedule.
Franklin Armory relies on Ham v. County of Los Angeles
(1920) 46 Cal.App. 148, 162, for its holding with respect to public
officer immunity that “[t]o the extent that [the] performance [of a
public duty] is unqualifiedly required, it is not discretionary, even
though the manner of its performance may be discretionary.”
However, Ham involved interpretation of the Pridham Act, a
1911 law limiting liability of public officials for road accidents in
the context of common law immunity. (Ham, at pp. 160-161.)
The case did not involve the GCA, which superseded the common
law, nor the requirements to impose mandatory-duty liability
under Government Code section 815.6. Moreover, as the
Supreme Court has concluded in the context of section 815.6, “It
is not enough [to create section 815.6 liability] that the public
entity or officer may have been under an obligation to perform a
function if the function itself involves the exercise of discretion.”
(Haggis, supra, 22 Cal.4th at pp. 498, 500-501 [city did not have
mandatory duty with respect to issuance of permits to determine
whether property had landslide hazard, but city officials had
mandatory duty to give notice to property owner once inspection
showed property was unstable under provision stating official
“shall” give written notice]; accord, Guzman, supra, 46 Cal.4th at
p. 898, 904 [county did not have implied mandatory duty to notify
consumers of contaminated water supply despite obligation to
provide local water system notice of monitoring and reporting
requirements, to review monthly monitoring reports, and to
34
submit reports summarizing compliance violations].)15
3. Becerra and DOJ’s employees have immunity for their
discretionary actions in modifying the DES
Regardless of whether a public entity is immune from
liability, in the absence of statutory immunity, a public employee
is generally “liable for injury caused by his act or omission to the
same extent as a private person.” (Gov. Code, § 820, subd. (a);
see Caldwell v. Montoya (1995) 10 Cal.4th 972, 980 (Caldwell).)
Further, under section 815.2, a public entity is vicariously liable
for the torts of its employees. (Caldwell, at p. 980.) Conversely,
if the employee is immune, there is no vicarious liability on the
part of the public entity. (Gov. Code § 815.2, subd. (b); Caldwell,
at p. 980.)
Government Code section 820.2 provides, “Except as
otherwise provided by statute, a public employee is not liable for
an injury resulting from his act or omission where the act or
omission was the result of the exercise of the discretion vested in
him, whether or not such discretion be abused.” (See Leon v.
County of Riverside (2023) 14 Cal.5th 910, 928 [Gov. Code,
§ 820.2 “confers a general immunity for discretionary acts taken
within the scope of authority”].)
15 Because we conclude the cited Penal Code provisions did
not create a mandatory duty to modify the DES to facilitate
Title 1 sales, we do not reach the second prong of the analysis to
determine whether the mandatory duty is designed to protect
against the kind of injury the plaintiffs suffered.
35
The Supreme Court in Caldwell recognized, as the court
had previously held, that “almost all [public employee] acts
involve some choice among alternatives,” and thus “statutory
immunity thus cannot depend upon a literal or semantic parsing
of the word ‘discretion.’” (Caldwell, supra, 10 Cal.4th at p. 981.)
Instead, Government Code section 820.2 immunity is “reserved
for those ‘basic policy decisions [which have] . . . been [expressly]
committed to coordinate branches of government,’” whereas
“there is no basis for immunizing lower-level, or ‘ministerial,’
decisions that merely implement a basic policy already
formulated.” (Caldwell, at p. 981; see Johnson v. State of
California (1968) 69 Cal.2d 782, 793.) Further, “a ‘workable
definition’ of immune discretionary acts draws the line between
‘planning’ and ‘operational’ functions of government.” (Caldwell,
at p. 981; see Johnson, at p. 794.) For example, in Nunn v. State
of California (1984) 35 Cal.3d 616, 622 to 623 (cited in Caldwell,
at page 982), the Supreme Court held that the head of the
Bureau of Collection and Investigative Services, the Bureau, and
another state agency were immune from claims by a murdered
private security guard that they had unreasonably delayed
promulgating regulations “as directed” by provisions of the
Business and Professions Code for firearms training required for
private security guards to qualify to carry a defensive firearm
because “implementation necessarily involves ‘planning’ rather
than nondiscretionary ‘operational’ or ‘street level’ decisions.”
Establishing immunity “requires a showing that ‘the
specific conduct giving rise to the suit’ involved an actual exercise
of discretion, i.e., a ‘[conscious] balancing [of] risks and
advantages.’” (Caldwell, at p. 893; see Johnson, supra, 69 Cal.2d
at pp. 794-795, fn. 8.) Even so, it is not necessary that the
36
discretionary acts involve “strictly careful, thorough, formal, or
correct evaluation”—“[s]uch an standard would swallow an
immunity designed to protect against claims of carelessness,
malice, bad judgment, or abuse of discretion in the formulation of
policy.” (Caldwell, supra, 10 Cal.4th at pp. 983-984 [members of
school board were immune from liability under Gov. Code,
§ 820.2 for former superintendent’s wrongful termination claims
because the board made an “actual, conscious, and considered
collective policy decision” to replace the superintendent].) “The
immunity [afforded by Government Code, section 820.2] is broad”
and “‘applies even to “lousy” decisions in which the worker abuses
his or her discretion, including decisions based on woefully
inadequate information,’” and “no matter how horrible the
outcome.” (Gabrielle A. v. County of Orange (2017)
10 Cal.App.5th 1268, 1285.)
The cases cited by the Attorney General addressing the
distinction between discretionary acts and ministerial functions
for purposes of section 820.2 immunity are instructive. The
courts have held the following acts are discretionary: municipal
employees’ failure to remove electronic scooters parked
improperly on sidewalks where the city issued an operating
permit to the scooter company requiring it to comply with
specified parking restrictions (Hacala v. Bird Rides, Inc. (2023)
90 Cal.App.5th 292, 306); sheriff’s employees’ allegedly
fraudulent award of a contract for jail chaplaincy services
(Curcini v. County of Alameda (2008) 164 Cal.App.4th 629, 648-
649); highway patrol officers’ failure to inspect or remove a
vehicle parked on a freeway shoulder where statute provided
they “may” remove the vehicle (Posey v. State of California (1986)
180 Cal.App.3d 836, 849-850, 852); and DOJ employees’ failure to
37
take action against a health care provider that violated statutory
regulations (Roseville Community Hosp. v. State of California
(1977) 74 Cal.App.3d 583, 589-590).
In this case, undisputed evidence shows that DOJ
employees engaged in discretionary actions in responding to
Franklin Armory’s demand letter and developing a plan for DES
modification, including “basic policy decisions,” “‘planning,’” and a
“‘[conscious] balancing of risks and advantages.’” (Caldwell,
supra, 10 Cal.4th at p. 981, 983.) Bureau of Firearms chief
Mendoza attested how, after receiving the demand letter,
members of her group and the application development team
conducted a review to determine the staffing and resources
necessary to modify the DES. In formulating a plan and
timeline, they considered numerous factors, including available
personnel, resources, and funds, the time required, and public
safety concerns—not only for the Title 1 long gun DES
modification, but for numerous other pending requests for
modifications. (See Roseville Community Hosp. v. State of
California, supra, 74 Cal.App.3d at p. 590 [“A decision to devote
available facilities and personnel to selected areas and to abstain
from active pursuit of others is a policy or planning decision at a
relatively high internal level.”].)
DOJ staff determined it would take many months to
implement Franklin Armory’s preferred fix, require the diversion
of staff from other projects, and necessitate modifications to other
DOJ applications and databases. Staff also considered
alternatives to adding an “other” option to the DES, including a
stopgap modification tailored only to the Title 1, but they
concluded there would be operational difficulties in recording
sales under the temporary solution that raised public safety
38
concerns. And after Senate Bill 118 classified the centerfire
Title 1 as an assault weapon, DOJ “decided after weighing
competing priorities among the multiple information technology
projects pending at that time in the middle of the COVID-19
pandemic,” that the project could be safely deprioritized.
These actions that gave rise to Franklin Armory’s suit fall
on the “‘planning’” and “‘policy’” side of the ledger. (Caldwell,
supra, 10 Cal.4th at p. 981.) Franklin Armory does not allege it
was harmed by any “‘operational’” functions or “lower-level, or
‘ministerial,’ decisions that merely implement[ed] [the] basic
policy already formulated.” (Id. at p. 981.) Franklin Armory does
not contend, for example, that Title 1 sales could not take place
because the DES software modification was inadequate, had
glitches, or was delayed by the negligence of the software
engineers.
On appeal, Franklin Armory challenges the “vague
excuse[s]” Mendoza gave for DOJ staff’s inaction and argues
there are triable issue of fact concerning DOJ’s timeline, motives,
and whether DOJ had substantially engineered a solution in
early 2020 but “delayed the final implementation of the fix until
after the expedited passage of SB 118—a bill that DOJ itself
proposed.” However, these factual disputes do not rebut DOJ’s
showing that the challenged conduct was discretionary. If
anything, Franklin Armory’s emphasis on DOJ’s and Becerra’s
alleged bad faith and malice in intentionally delaying the DES fix
until they could ban the centerfire Title 1 underscores that it was
DOJ’s policy decisions, including its decision to delay
implementation of the DES modification, that harmed Franklin
Armory.
39
Franklin Armory contends the “refusal to fix the DES was
not a ‘basic policy decision’ but a ministerial failure to implement
Penal Code section 28160’s mandate to record all firearm
transfers.” It further asserts its claims were “never about
holding [DOJ and Becerra] liable for failing to ‘make a certain
change within a certain timeframe,’” but instead were about their
“legal duty to remove a barrier to lawful firearm sales, no matter
how they did it.” This argument conflates the mandatory duty
required for Government Code section 815.6 liability and the
ministerial duty to carry out an already-formulated policy for
purposes of Government Code section 802.2 immunity.16 As
discussed, Penal Code section 28160 did not compel DOJ to take
any particular action on a specific timeline to modify the DES to
facilitate sales of a new type of long gun, and the undisputed
facts are that DOJ’s challenged actions in delaying a remedy to
the DES defect were discretionary policy decisions.
16 In its reply brief, Franklin Armory similarly conflates
DOJ’s immunity under Government Code section 815.6 with its
public employees’ immunity under section 820.2 in attempting to
distinguish Hacala v. Bird Rides, Inc., supra, 90 Cal.App.5th at
page 306, Posey v. State of California, supra, 180 Cal.App.3d at
pages 848 to 850, and Roseville Community Hosp. v. State of
California, supra, 74 Cal.App.3d at pages 589 to 590, arguing
none of the cases “involved a mandatory duty to act.”
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DISPOSITION
The judgment is affirmed. DOJ and Becerra are to recover
their costs on appeal.
FEUER, J.
We Concur:
MARTINEZ, P. J.
SEGAL, J.
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