Court of Appeal, Third Appellate District Court of Appeal, Third Appellate District Andrea K. Wallin-Rohmann, Clerk Andrea K. Wallin-Rohmann, Clerk Electronically RECEIVED on 2/7/2020 on 11:30:28 PM Electronically FILED on 2/7/2020 by D. Welton, Deputy Clerk

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA IN AND FOR THE THIRD APPELLATE DISTRICT

DAVID GENTRY; JAMES PARKER; Case No. C089655 MARK MIDLAM; JAMES BASS; AND CALGUNS SHOOTING SPORTS ASSOCIATION,

PLAINTIFFS AND APPELLANTS,

V.

XAVIER BECERRA, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL FOR THE STATE OF CALIFORNIA; STEPHEN LINDLEY, IN HIS OFFICIAL CAPACITY AS ACTING CHIEF OF THE CALIFORNIA DEPARTMENT OF JUSTICE; BETTY T. YEE, IN HER OFFICIAL CAPACITY AS STATE CONTROLLER; AND DOES 1-10,

DEFENDANTS AND RESPONDENTS.

APPELLANTS’ APPENDIX VOLUME II OF XVI (Pages 292 to 586 of 4059)

Superior Court of California, County of Sacramento Case No. 34-2013-80001667 Honorable Judge Richard K. Sueyoshi

C. D. Michel – SBN 144258 Sean A. Brady – SBN 262007 Anna M. Barvir – SBN 268728 MICHEL & ASSOCIATES, P.C. 180 East Ocean Blvd., Suite 200 Long Beach, CA 90802 Telephone: 562-216-4444 Email: [email protected]

Counsel for Plaintiffs-Appellants

292 INDEX TO APPELLANTS’ APPENDIX

CHRONOLOGICAL

DATE DOCUMENT PAGE

VOLUME I 10/16/2013 Petition for Writ of Mandate 26 02/17/2015 Motion to Compel Further Responses to Form 48 Interrogatories, Set One, Propounded on Defendants Kamala Harris and Stephen Lindley; Memorandum of Points and Authorities in Support 02/17/2015 Declaration of Scott M. Franklin in Support of 61 Motion to Compel Further Responses to Form Interrogatories, Set One, Propounded on Defendants Kamala Harris and Stephen Lindley 02/17/2015 Motion to Compel Further Responses to Request 139 for Admissions, Set One, Propounded on Defendants Kamala Harris and Stephen Lindley; Memorandum of Points and Authorities in Support 02/17/2015 Declaration of Scott M. Franklin in Support of 152 Motion to Compel Further Responses to Request for Admissions, Set One, Propounded on Defendants Kamala Harris and Stephen Lindley 03/06/2015 Respondents’ Answer to Complaint for Declaratory 230 and Injunctive Relief and Petition for Writ of Mandamus 04/06/2015 Defendants’ Opposition to Plaintiffs’ Motions to 238 Compel 04/14/2015 Reply in Support of Motions to Compel Further 255 Responses to (1) Request for Admissions, Set One, and (2) Form Interrogatories, Set One, Both Propounded on Defendants Kamala Harris and Stephen Lindley 04/14/2015 Declaration of Scott M. Franklin in Support of 266 Reply in Support of Motions to Compel Further Responses to (1) Request for Admissions, Set One, and (2) Form Interrogatories, Set One, Both Propounded on Defendants Kamala Harris and Stephen Lindley

293 INDEX TO APPELLANTS’ APPENDIX

CHRONOLOGICAL

DATE DOCUMENT PAGE

04/20/2015 Stipulation and Joint Application Re: Expedited 274 Dispute Resolution Procedure Re: Documents Withheld Under Privilege Claims in Response to Plaintiffs’ Requests for Production of Documents (Set One), Propounded on Defendants Kamala Harris and Stephen Lindley; Order 05/01/2015 Defendants’ Notice of Motion and Motion for 276 Judgment on the Pleadings 05/01/2015 Defendants’ Memorandum of Points and 279 Authorities in Support of Motion for Judgment on the Pleadings

VOLUME II 05/04/2015 Brief in Support of Request for Production of 317 Withheld Documents via Expedited Disputed Resolution Procedure; [Proposed] Order 05/04/2015 Declaration of Scott M. Franklin in Support of 327 Request for Production of Withheld Documents via Expedited Disputed Resolution Procedure 05/04/2015 Defendants’ Brief Regarding In Camera Discovery 372 Proceeding 05/04/2015 Declaration of David Harper in Support of 390 Defendants’ Brief Regarding In Camera Discovery Proceeding 05/05/2015 Corrected Plaintiffs’ Brief in Support of Request for 395 Production of Documents via Expedited Dispute Resolution Procedure 05/11/2015 Plaintiffs’ Reply to Defendants’ Brief Regarding In 404 Camera Discovery Proceedings 05/19/2015 Plaintiffs’ Opposition to Defendants’ Motion for 408 Judgment on the Pleadings 05/19/2015 Declaration of Scott M. Franklin in Support of 421 Opposition to Defendants’ Motion for Judgment on the Pleadings

294 INDEX TO APPELLANTS’ APPENDIX

CHRONOLOGICAL

DATE DOCUMENT PAGE

05/29/2015 Defendants’ Reply in Support of Motion for 509 Judgment on the Pleadings 06/01/2015 Ruling on Request for Production of Withheld 518 Documents via Expedited Dispute Resolution Procedure 06/02/2015 Plaintiffs’ Request for Judicial Notice in Support of 523 Opposition to Defendants’ Motion for Judgment on the Pleadings 07/20/2015 Order After Hearing 528 08/07/2015 Plaintiffs’ Supplemental Brief in Response to Order 533 of July 20, 2015 08/07/2015 Defendants’ Supplemental Brief 539 08/31/2015 Ruling After Additional Briefs; Motion for 547 Judgment on the Pleadings, Motion to Compel Additional Responses to Form Interrogatories, and Motion to Compel Further Responses to Request for Admissions 12/30/2015 First Amended Complaint for Declaratory and 551 Injunctive Relief and Petition for Writ of Mandamus 01/22/2016 Stipulation Re: Expedited Dispute Resolution 579 Procedure Regarding Disputed Discovery Responses Previously Deemed Moot and Renewed Motions Currently Scheduled for Hearing on February 19, 2016

VOLUME III 01/22/2016 Plaintiffs’ Notice of Renewed Motion and Renewed 612 Motion to Compel Further Responses to Request for Admissions, Set One, Propounded on Defendants Kamala Harris and Stephen Lindley; Memorandum in Support Thereof 01/22/2016 Declaration of Scott M. Franklin in Support of 620 Renewed Motion to Compel Further Responses to Requests for Admissions, Set One, Propounded on Defendants Kamala Harris and Stephen Lindley

295 INDEX TO APPELLANTS’ APPENDIX

CHRONOLOGICAL

DATE DOCUMENT PAGE

01/22/2016 Plaintiffs’ Notice of Renewed Motion and Renewed 805 Motion to Compel Further Responses to Form Interrogatories, Set One, Propounded on Defendants Kamala Harris and Stephen Lindley; Memorandum in Support Thereof

VOLUME IV 01/22/2016 Declaration of Scott M. Franklin in Support of 840 Renewed Motion to Compel Further Responses to Form Interrogatories, Set One, Propounded on Defendants Kamala Harris and Stephen Lindley 01/25/2016 Notice of Errata Re: Declaration of Scott M. 1025 Franklin in Support of Renewed Motion to Compel Further Response to Request for Admissions, Set One, Propounded on Defendants Kamala Harris and Stephen Lindley 01/25/2016 Notice of Errata Re: Declaration of Scott M. 1058 Franklin in Support of Renewed Motion to Compel Further Response to Form Interrogatories, Set One, Propounded on Defendants Kamala Harris and Stephen Lindley 01/29/2016 Respondents’ Answer to First Amended Complaint 1084 and Petition for Writ of Mandamus 04/20/2016 Joint Statement Identifying Specific Discovery 1093 Requests at Issue Re: Expedited Dispute Resolution Procedure Regarding Disputed Discovery Responses Previously Deemed Moot and Renewed Motions

VOLUME V 04/20/2016 Appendix of Discovery Request and Disputed 1138 Responses Thereto Re: Joint Statement Concerning Renewed Discovery 04/25/2016 Plaintiffs’ Notice of Motion and Motion to Compel 1145 Further Responses to Requests for Production, Set Three, Propounded on Defendants Kamala Harris and Stephen Lindley; Memorandum in Support Thereof

296 INDEX TO APPELLANTS’ APPENDIX

CHRONOLOGICAL

DATE DOCUMENT PAGE

04/25/2016 Plaintiffs’ Request for Judicial Notice in Support of 1166 Motion to Compel Further Responses to Request for Production of Documents, Set Three Propounded on Defendants Kamala Harris and Stephen Lindley 04/25/2016 Declaration of Scott M. Franklin in Support of 1171 Motion to Compel Further Responses to Request for Production, Set Three, Propounded on Defendants Kamala Harris and Stephen Lindley 04/25/2016 Plaintiffs’ Notice of Motion and Motion to Compel 1206 Further Responses to Special Interrogatories, Set Three, Propounded on Defendants Kamala Harris and Stephen Lindley 04/25/2016 Plaintiffs’ Request for Judicial Notice in Support of 1224 Motion to Compel Further Responses to Special Interrogatories, Set Three, Propounded on Defendants Kamala Harris and Stephen Lindley 04/25/2016 Declaration of Scott M. Franklin in Support of 1228 Motion to Compel Further Responses to Special Interrogatories, Set Three Propounded on Defendants Kamala Harris and Stephen Lindley 05/31/2016 Ruling on Submitted Matter: Renewed Motion to 1273 Compel Additional Responses to Form Interrogatories, and Motion to Compel Further Responses to Request for Admissions 10/17/2016 Defendants’ Opposition to Plaintiffs’ Motions to 1281 Compel 10/17/2016 Declaration of Stephen Lindley in Support of 1296 Defendants’ Opposition to Plaintiffs’ Motions to Compel 10/17/2016 Declaration of David Harper in Support of 1301 Defendants’ Opposition to Plaintiffs’ Motions to Compel 10/21/2016 Reply in Response to Defendants’ Opposition to 1308 Plaintiffs’ Motions to Compel

297 INDEX TO APPELLANTS’ APPENDIX

CHRONOLOGICAL

DATE DOCUMENT PAGE

10/21/2016 Plaintiffs’ Evidentiary Objections to the 1320 Declarations of David Harper and Stephen Lindley in Support of Defendants’ Opposition to Plaintiffs’ Motions to Compel 10/21/2016 Declaration of Scott M. Franklin in Support of 1331 Plaintiffs’ Reply to Defendants’ Opposition to Plaintiffs’ Motions to Compel 11/04/2016 Stipulation Re: Bifurcation and Setting Partial 1342 Merits Hearing; Order 03/15/2017 Amended Stipulation Re: Bifurcation and Setting 1350 Partial Merits Hearing; Order 05/24/2017 Second Amended Stipulation Re: Bifurcation and 1353 Setting Partial Merits Hearing; Order 06/08/2017 Stipulation and Order Re: Bifurcation 1357 06/12/2017 Notice of Motion for Adjudication of Plaintiffs’ Fifth 1360 and Ninth Causes of Action Pursuant to the Bifurcation Order of November 4, 2016 06/13/2017 Notice of Motion and Motion for Adjudication of 1363 Plaintiffs’ Fifth and Ninth Causes of Action Pursuant to the Bifurcation Order of November 4, 2016 06/13/2017 Defendants’ Notice of Motion and Motion for 1389 Summary Adjudication as to the Fifth and Ninth Causes of Action

VOLUME VI 06/13/2017 Memorandum of Points and Authorities in Support 1418 of Defendants’ Motion for Summary Adjudication as to the Fifth and Ninth Causes of Action 06/13/2017 Separate Statement of Undisputed Facts in 1446 Support of Defendants’ Motion for Summary Adjudication as to the Fifth and Ninth Causes of Action

298 INDEX TO APPELLANTS’ APPENDIX

CHRONOLOGICAL

DATE DOCUMENT PAGE

06/13/2017 Declaration of Anthony R. Hakl in Support of 1452 Defendants’ Motion for Summary Adjudication as to the Fifth and Ninth Causes of Action [Part 1 of 2]

VOLUME VII 06/13/2017 Declaration of Anthony R. Hakl in Support of 1663 Defendants’ Motion for Summary Adjudication as to the Fifth and Ninth Causes of Action [Part 2 of 2]

VOLUME VIII 06/14/2017 Declaration of Scott M. Franklin in Support of 1893 Motion for Adjudication of Plaintiffs’ Fifth and Ninth Causes of Action Pursuant to Bifurcation Order of November 4, 2016 06/14/2017 Plaintiffs’ Separate Statement in Support of Motion 2148 for Adjudication of Plaintiffs’ Fifth and Ninth Causes of Action Pursuant to Bifurcation Order of November 4, 2016

VOLUME IX 06/30/2017 Memorandum of Points and Authorities in Support 2188 of Plaintiffs’ Opposition to Defendants’ Motion for Summary Adjudication as to the Fifth and Ninth Causes of Action 06/30/2017 Plaintiffs’ Separate Statement in Opposition to 2210 Defendants’ Motion for Summary Adjudication 06/30/2017 Plaintiffs’ Evidence in Opposition to Defendants’ 2220 Motion for Summary Adjudication; Declaration of Scott M. Franklin in Support of Plaintiffs’ Opposition to Defendants’ Motion for Summary Adjudication 06/30/2017 Opposition to Plaintiffs’ Motion for Adjudication of 2241 the Fifth and Ninth Causes of Action 06/30/2017 Defendants’ Response to Plaintiffs’ Separate 2252 Statement in Support of Motion for Adjudication

299 INDEX TO APPELLANTS’ APPENDIX

CHRONOLOGICAL

DATE DOCUMENT PAGE

06/30/2017 Declaration of Anthony R. Hakl in Support of 2275 Opposition to Plaintiffs’ Motion for Adjudication of the Fifth and Ninth Causes of Action 07/21/2017 Reply in Support of Plaintiffs’ Motion for 2417 Adjudication of Fifth and Ninth Causes of Action 07/21/2017 Request for Judicial Notice in Support of Plaintiffs’ 2432 Motion for Adjudication of Fifth and Ninth Causes of Action

VOLUME X 07/21/2017 Supplemental Declaration of Scott M. Franklin in 2461 Support of Plaintiffs’ Motion for Adjudication of Fifth and Ninth Causes of Action 07/21/2017 Reply in Support of Defendants’ Motion for 2492 Summary Adjudication as to the Fifth and Ninth Causes of Action 07/21/2017 Defendants’ Response to Plaintiffs’ Additional 2503 Material Facts 08/03/2017 Tentative Ruling on Motions for Adjudication of 2508 Plaintiffs’ Fifth and Ninth Causes of Action 08/09/2017 Ruling on Submitted Matter: Motions for 2516 Adjudication of Plaintiffs’ Fifth and Ninth Causes of Action 10/12/2017 Plaintiffs’ Notice of Motion to Compel Additional 2527 Responses to Request for Admissions (Set Three) Propounded on Defendants Xavier Becerra and Stephen Lindley 10/12/2017 Plaintiffs’ Motion to Compel Additional Responses 2530 to Request for Admissions (Set Three) Propounded on Defendants Xavier Becerra and Stephen Lindley 10/12/2017 Declaration of Scott M. Franklin in Support of 2548 Plaintiffs’ Motion to Compel Additional Responses to Request for Admissions (Set Three) Propounded on Defendants Xavier Becerra and Stephen Lindley

300 INDEX TO APPELLANTS’ APPENDIX

CHRONOLOGICAL

DATE DOCUMENT PAGE

10/12/2017 Plaintiffs’ Notice of Motion to Compel Additional 2564 Responses to Special Interrogatories (Set Four) Propounded on Defendants Xavier Becerra and Stephen Lindley 10/12/2017 Plaintiffs’ Motion to Compel Additional Responses 2567 to Special Interrogatories (Set Four) Propounded on Defendants Xavier Becerra and Stephen Lindley 10/12/2017 Declaration of Scott M. Franklin in Support of 2581 Plaintiffs’ Motion to Compel Additional Responses to Special Interrogatories (Set Four) Propounded on Defendants Xavier Becerra and Stephen Lindley 10/13/2017 Plaintiffs’ Notice of Errata Re: Notice of Motion to 2597 Compel Additional Responses to: [1] Requests for Admissions (Set Three) and [2] Special Interrogatories (Set Four) 10/13/2017 Plaintiffs’ Amended Notice of Motion to Compel 2600 Additional Responses to Request for Admissions (Set Three) Propounded on Defendants Xavier Becerra and Stephen Lindley and for Sanctions 10/13/2017 Declaration of Scott M. Franklin in Support of 2603 Plaintiffs’ Motion for Sanctions Re: Defendants’ Responses to Requests for Admissions (Set Three) Propounded on Defendants Xavier Becerra and Stephen Lindley 10/13/2017 Plaintiffs Amended Notice of Motion to Compel 2607 Additional Responses to Special Interrogatories (Set Four) Propounded on Defendants Xavier Becerra and Stephen Lindley and for Sanctions 10/13/2017 Declaration of Scott M. Franklin in Support of 2610 Plaintiffs’ Motion for Sanctions Re: Defendants’ Responses to Special Interrogatories (Set Four) Propounded on Defendants Xavier Becerra and Stephen Lindley 10/23/2017 Defendants’ Opposition to Plaintiffs’ Motions to 2614 Compel

301 INDEX TO APPELLANTS’ APPENDIX

CHRONOLOGICAL

DATE DOCUMENT PAGE

10/27/2017 Plaintiffs’ Reply in Support of Motions to Compel 2641 Additional Responses to: [1] Requests for Admissions (Set Three) and [2] Special Interrogatories (Set Four) 10/27/2017 Supplemental Declaration of Scott M. Franklin in 2655 Support of Plaintiffs’ Reply in Support of Motions to Compel Additional Responses to: [1] Requests for Admissions (Set Three) and [2] Special Interrogatories (Set Four) 11/03/2017 Tentative Ruling on Motions to Compel Additional 2672 Responses to Request for Admission (Set Three), Special Interrogatories (Set Four), and for Sanctions 11/03/2017 Ruling on Motions to Compel Additional Responses 2677 to Request for Admission (Set Three), Special Interrogatories (Set Four), and for Sanctions 01/30/2018 Plaintiffs’ Opening Trial Brief 2683

VOLUME XI 01/30/2018 Declaration of Scott M. Franklin in Support of 2744 Plaintiffs’ Opening Trial Brief 02/20/2018 Defendants’ Opposition Brief 2959

VOLUME XII 02/20/2018 Declaration of Anthony R. Hakl in Support of 3023 Defendants’ Opposition Brief 03/01/2018 Reply in Support of Plaintiffs’ Opening Trial Brief 3251 05/31/2018 Plaintiffs’ Motion for Leave to File Second 3278 Amended Complaint for Declaratory and Injunctive Relief and Second Amended Petition for Writ of Mandamus

302 INDEX TO APPELLANTS’ APPENDIX

CHRONOLOGICAL

DATE DOCUMENT PAGE

VOLUME XIII 05/31/2018 Declaration of Scott M. Franklin in Support of 3315 Motion for Leave to File Second Amended Complaint for Declaratory and Injunctive Relief and Second Amended Petition for Writ of Mandamus 06/11/2018 Defendants’ Opposition to Plaintiffs’ Motion for 3373 Leave to File a Second Amended Complaint 06/15/2018 Plaintiffs’ Reply in Support of Motion for Leave to 3387 File Second Amended Complaint for Declaratory and Injunctive Relief and Second Amended Petition for Writ of Mandamus 06/15/2018 Supplemental Declaration of Scott M. Franklin in 3402 Support of Plaintiffs’ Motion for Leave to File Second Amended Complaint for Declaratory and Injunctive Relief and Second Amended Petition for Writ of Mandamus 06/21/2018 Second Supplemental Declaration of Scott M. 3414 Franklin in Support of Plaintiffs’ Motion for Leave to File Second Amended Complaint for Declaratory and Injunctive Relief and Second Amended Petition for Writ of Mandamus 08/21/2018 Order Regarding Reserved Hearing Date of August 3419 24, 2018 (Plaintiffs’ Motion for Leave to File Second Amended Complaint for Declaratory and Injunctive Relief and Second Amended Petition for Writ of Mandamus) 12/04/2018 Plaintiffs’ Opening Trial Brief 3422

VOLUME XIV 12/04/2018 Declaration of Scott M. Franklin in Support of 3478 Plaintiffs’ Opening Trial Brief 12/24/2018 Defendants’ Opposition Brief 3665

303 INDEX TO APPELLANTS’ APPENDIX

CHRONOLOGICAL

DATE DOCUMENT PAGE

VOLUME XV 12/24/2018 Declaration of Anthony R. Hakl in Support of 3727 Defendants’ Opposition Brief; Exhibits A-P 01/03/2019 Reply in Support of Plaintiffs’ Opening Trial Brief 3955 03/04/2019 Ruling on Submitted Matter Re: Petition for Writ 3981 of Mandate and Complaint for Declaratory and Injunctive Relief—Remaining Causes of Action

VOLUME XVI 04/10/2019 Order on Plaintiffs’ First Amendment Petition for 4023 Writ and Complaint 04/10/2019 Judgment 4042 05/02/2019 Notice of Entry of Judgment or Order 4044 06/04/2019 Notice of Appeal (Unlimited Civil Case) 4048 08/23/2019 Appellants’ Notice Designating the Record 4052 10/08/2019 Notice of Filing of Designation and Notice to 4057 Reporters to Prepare Transcripts

304 INDEX TO APPELLANTS’ APPENDIX

ALPHABETICAL

VOL DATE DOCUMENT PAGE

5 03/15/2017 Amended Stipulation Re: Bifurcation and 1350 Setting Partial Merits Hearing; Order 16 08/23/2019 Appellants’ Notice Designating the Record 4052 5 04/20/2016 Appendix of Discovery Request and 1138 Disputed Responses Thereto Re: Joint Statement Concerning Renewed Discovery 2 05/04/2015 Brief in Support of Request for Production 317 of Withheld Documents via Expedited Disputed Resolution Procedure; [Proposed] Order 2 05/05/2015 Corrected Plaintiffs’ Brief in Support of 395 Request for Production of Documents via Expedited Dispute Resolution Procedure 6 06/13/2017 Declaration of Anthony R. Hakl in Support 1452 of Defendants’ Motion for Summary Adjudication as to the Fifth and Ninth Causes of Action [Part 1 of 2] 7 06/13/2017 Declaration of Anthony R. Hakl in Support 1663 of Defendants’ Motion for Summary Adjudication as to the Fifth and Ninth Causes of Action [Part 2 of 2] 12 02/20/2018 Declaration of Anthony R. Hakl in Support 3023 of Defendants’ Opposition Brief 15 12/24/2018 Declaration of Anthony R. Hakl in Support 3727 of Defendants’ Opposition Brief; Exhibits A- P 9 06/30/2017 Declaration of Anthony R. Hakl in Support 2275 of Opposition to Plaintiffs’ Motion for Adjudication of the Fifth and Ninth Causes of Action 2 05/04/2015 Declaration of David Harper in Support of 390 Defendants’ Brief Regarding In Camera Discovery Proceeding 5 10/17/2016 Declaration of David Harper in Support of 1301 Defendants’ Opposition to Plaintiffs’ Motions to Compel

305 INDEX TO APPELLANTS’ APPENDIX

ALPHABETICAL

VOL DATE DOCUMENT PAGE

8 06/14/2017 Declaration of Scott M. Franklin in Support 1893 of Motion for Adjudication of Plaintiffs’ Fifth and Ninth Causes of Action Pursuant to Bifurcation Order of November 4, 2016 13 05/31/2018 Declaration of Scott M. Franklin in Support 3315 of Motion for Leave to File Second Amended Complaint for Declaratory and Injunctive Relief and Second Amended Petition for Writ of Mandamus 1 02/17/2015 Declaration of Scott M. Franklin in Support 61 of Motion to Compel Further Responses to Form Interrogatories, Set One, Propounded on Defendants Kamala Harris and Stephen Lindley 1 02/17/2015 Declaration of Scott M. Franklin in Support 152 of Motion to Compel Further Responses to Request for Admissions, Set One, Propounded on Defendants Kamala Harris and Stephen Lindley 5 04/25/2016 Declaration of Scott M. Franklin in Support 1171 of Motion to Compel Further Responses to Request for Production, Set Three, Propounded on Defendants Kamala Harris and Stephen Lindley 5 04/25/2016 Declaration of Scott M. Franklin in Support 1228 of Motion to Compel Further Responses to Special Interrogatories, Set Three Propounded on Defendants Kamala Harris and Stephen Lindley 2 05/19/2015 Declaration of Scott M. Franklin in Support 421 of Opposition to Defendants’ Motion for Judgment on the Pleadings 10 10/12/2017 Declaration of Scott M. Franklin in Support 2548 of Plaintiffs’ Motion to Compel Additional Responses to Request for Admissions (Set Three) Propounded on Defendants Xavier Becerra and Stephen Lindley

306 INDEX TO APPELLANTS’ APPENDIX

ALPHABETICAL

VOL DATE DOCUMENT PAGE

10 10/12/2017 Declaration of Scott M. Franklin in Support 2581 of Plaintiffs’ Motion to Compel Additional Responses to Special Interrogatories (Set Four) Propounded on Defendants Xavier Becerra and Stephen Lindley 10 10/13/2017 Declaration of Scott M. Franklin in Support 2603 of Plaintiffs’ Motion for Sanctions Re: Defendants’ Responses to Requests for Admissions (Set Three) Propounded on Defendants Xavier Becerra and Stephen Lindley 10 10/13/2017 Declaration of Scott M. Franklin in Support 2610 of Plaintiffs’ Motion for Sanctions Re: Defendants’ Responses to Special Interrogatories (Set Four) Propounded on Defendants Xavier Becerra and Stephen Lindley 11 01/30/2018 Declaration of Scott M. Franklin in Support 2744 of Plaintiffs’ Opening Trial Brief 14 12/04/2018 Declaration of Scott M. Franklin in Support 3478 of Plaintiffs’ Opening Trial Brief 5 10/21/2016 Declaration of Scott M. Franklin in Support 1331 of Plaintiffs’ Reply to Defendants’ Opposition to Plaintiffs’ Motions to Compel 3 01/22/2016 Declaration of Scott M. Franklin in Support 620 of Renewed Motion to Compel Further Responses to Requests for Admissions, Set One, Propounded on Defendants Kamala Harris and Stephen Lindley 4 01/22/2016 Declaration of Scott M. Franklin in Support 840 of Renewed Motion to Compel Further Responses to Form Interrogatories, Set One, Propounded on Defendants Kamala Harris and Stephen Lindley

307 INDEX TO APPELLANTS’ APPENDIX

ALPHABETICAL

VOL DATE DOCUMENT PAGE

1 04/14/2015 Declaration of Scott M. Franklin in Support 266 of Reply in Support of Motions to Compel Further Responses to (1) Request for Admissions, Set One, and (2) Form Interrogatories, Set One, Both Propounded on Defendants Kamala Harris and Stephen Lindley 2 05/04/2015 Declaration of Scott M. Franklin in Support 327 of Request for Production of Withheld Documents via Expedited Disputed Resolution Procedure 5 10/17/2016 Declaration of Stephen Lindley in Support 1296 of Defendants’ Opposition to Plaintiffs’ Motions to Compel 2 05/04/2015 Defendants’ Brief Regarding In Camera 372 Discovery Proceeding 1 05/01/2015 Defendants’ Memorandum of Points and 279 Authorities in Support of Motion for Judgment on the Pleadings 1 05/01/2015 Defendants’ Notice of Motion and Motion for 276 Judgment on the Pleadings 5 06/13/2017 Defendants’ Notice of Motion and Motion for 1389 Summary Adjudication as to the Fifth and Ninth Causes of Action 11 02/20/2018 Defendants’ Opposition Brief 2959 14 12/24/2018 Defendants’ Opposition Brief 3665 13 06/11/2018 Defendants’ Opposition to Plaintiffs’ Motion 3373 for Leave to File a Second Amended Complaint 1 04/06/2015 Defendants’ Opposition to Plaintiffs’ 238 Motions to Compel 5 10/17/2016 Defendants’ Opposition to Plaintiffs’ 1281 Motions to Compel 10 10/23/2017 Defendants’ Opposition to Plaintiffs’ 2614 Motions to Compel

308 INDEX TO APPELLANTS’ APPENDIX

ALPHABETICAL

VOL DATE DOCUMENT PAGE

2 05/29/2015 Defendants’ Reply in Support of Motion for 509 Judgment on the Pleadings 10 07/21/2017 Defendants’ Response to Plaintiffs’ 2503 Additional Material Facts 9 06/30/2017 Defendants’ Response to Plaintiffs’ Separate 2252 Statement in Support of Motion for Adjudication 2 08/07/2015 Defendants’ Supplemental Brief 539 2 12/30/2015 First Amended Complaint for Declaratory 551 and Injunctive Relief and Petition for Writ of Mandamus 4 04/20/2016 Joint Statement Identifying Specific 1093 Discovery Requests at Issue Re: Expedited Dispute Resolution Procedure Regarding Disputed Discovery Responses Previously Deemed Moot and Renewed Motions 16 04/10/2019 Judgment 4042 6 06/13/2017 Memorandum of Points and Authorities in 1418 Support of Defendants’ Motion for Summary Adjudication as to the Fifth and Ninth Causes of Action 9 06/30/2017 Memorandum of Points and Authorities in 2188 Support of Plaintiffs’ Opposition to Defendants’ Motion for Summary Adjudication as to the Fifth and Ninth Causes of Action 1 02/17/2015 Motion to Compel Further Responses to 48 Form Interrogatories, Set One, Propounded on Defendants Kamala Harris and Stephen Lindley; Memorandum of Points and Authorities in Support 1 02/17/2015 Motion to Compel Further Responses to 139 Request for Admissions, Set One, Propounded on Defendants Kamala Harris and Stephen Lindley; Memorandum of Points and Authorities in Support

309 INDEX TO APPELLANTS’ APPENDIX

ALPHABETICAL

VOL DATE DOCUMENT PAGE

16 06/04/2019 Notice of Appeal (Unlimited Civil Case) 4048 16 05/02/2019 Notice of Entry of Judgment or Order 4044 4 01/25/2016 Notice of Errata Re: Declaration of Scott M. 1025 Franklin in Support of Renewed Motion to Compel Further Response to Request for Admissions, Set One, Propounded on Defendants Kamala Harris and Stephen Lindley 4 01/25/2016 Notice of Errata Re: Declaration of Scott M. 1058 Franklin in Support of Renewed Motion to Compel Further Response to Form Interrogatories, Set One, Propounded on Defendants Kamala Harris and Stephen Lindley 16 10/08/2019 Notice of Filing of Designation and Notice to 4057 Reporters to Prepare Transcripts 5 06/13/2017 Notice of Motion and Motion for 1363 Adjudication of Plaintiffs’ Fifth and Ninth Causes of Action Pursuant to the Bifurcation Order of November 4, 2016 5 06/12/2017 Notice of Motion for Adjudication of 1360 Plaintiffs’ Fifth and Ninth Causes of Action Pursuant to the Bifurcation Order of November 4, 2016 9 06/30/2017 Opposition to Plaintiffs’ Motion for 2241 Adjudication of the Fifth and Ninth Causes of Action 2 07/20/2015 Order After Hearing 528 16 04/10/2019 Order on Plaintiffs’ First Amendment 4023 Petition for Writ and Complaint 13 08/21/2018 Order Regarding Reserved Hearing Date of 3419 August 24, 2018 (Plaintiffs’ Motion for Leave to File Second Amended Complaint for Declaratory and Injunctive Relief and Second Amended Petition for Writ of Mandamus)

310 INDEX TO APPELLANTS’ APPENDIX

ALPHABETICAL

VOL DATE DOCUMENT PAGE

1 10/16/2013 Petition for Writ of Mandate 26 10 10/13/2017 Plaintiffs Amended Notice of Motion to 2607 Compel Additional Responses to Special Interrogatories (Set Four) Propounded on Defendants Xavier Becerra and Stephen Lindley and for Sanctions 10 10/13/2017 Plaintiffs’ Amended Notice of Motion to 2600 Compel Additional Responses to Request for Admissions (Set Three) Propounded on Defendants Xavier Becerra and Stephen Lindley and for Sanctions 9 06/30/2017 Plaintiffs’ Evidence in Opposition to 2220 Defendants’ Motion for Summary Adjudication; Declaration of Scott M. Franklin in Support of Plaintiffs’ Opposition to Defendants’ Motion for Summary Adjudication 5 10/21/2016 Plaintiffs’ Evidentiary Objections to the 1320 Declarations of David Harper and Stephen Lindley in Support of Defendants’ Opposition to Plaintiffs’ Motions to Compel 12 05/31/2018 Plaintiffs’ Motion for Leave to File Second 3278 Amended Complaint for Declaratory and Injunctive Relief and Second Amended Petition for Writ of Mandamus 10 10/12/2017 Plaintiffs’ Motion to Compel Additional 2530 Responses to Request for Admissions (Set Three) Propounded on Defendants Xavier Becerra and Stephen Lindley 10 10/12/2017 Plaintiffs’ Motion to Compel Additional 2567 Responses to Special Interrogatories (Set Four) Propounded on Defendants Xavier Becerra and Stephen Lindley 10 10/13/2017 Plaintiffs’ Notice of Errata Re: Notice of 2597 Motion to Compel Additional Responses to: [1] Requests for Admissions (Set Three) and [2] Special Interrogatories (Set Four)

311 INDEX TO APPELLANTS’ APPENDIX

ALPHABETICAL

VOL DATE DOCUMENT PAGE

5 04/25/2016 Plaintiffs’ Notice of Motion and Motion to 1145 Compel Further Responses to Requests for Production, Set Three, Propounded on Defendants Kamala Harris and Stephen Lindley; Memorandum in Support Thereof 5 04/25/2016 Plaintiffs’ Notice of Motion and Motion to 1206 Compel Further Responses to Special Interrogatories, Set Three, Propounded on Defendants Kamala Harris and Stephen Lindley 10 10/12/2017 Plaintiffs’ Notice of Motion to Compel 2527 Additional Responses to Request for Admissions (Set Three) Propounded on Defendants Xavier Becerra and Stephen Lindley 10 10/12/2017 Plaintiffs’ Notice of Motion to Compel 2564 Additional Responses to Special Interrogatories (Set Four) Propounded on Defendants Xavier Becerra and Stephen Lindley 3 01/22/2016 Plaintiffs’ Notice of Renewed Motion and 612 Renewed Motion to Compel Further Responses to Request for Admissions, Set One, Propounded on Defendants Kamala Harris and Stephen Lindley; Memorandum in Support Thereof 3 01/22/2016 Plaintiffs’ Notice of Renewed Motion and 805 Renewed Motion to Compel Further Responses to Form Interrogatories, Set One, Propounded on Defendants Kamala Harris and Stephen Lindley; Memorandum in Support Thereof 10 01/30/2018 Plaintiffs’ Opening Trial Brief 2683 13 12/04/2018 Plaintiffs’ Opening Trial Brief 3422 2 05/19/2015 Plaintiffs’ Opposition to Defendants’ Motion 408 for Judgment on the Pleadings

312 INDEX TO APPELLANTS’ APPENDIX

ALPHABETICAL

VOL DATE DOCUMENT PAGE

13 06/15/2018 Plaintiffs’ Reply in Support of Motion for 3387 Leave to File Second Amended Complaint for Declaratory and Injunctive Relief and Second Amended Petition for Writ of Mandamus 10 10/27/2017 Plaintiffs’ Reply in Support of Motions to 2641 Compel Additional Responses to: [1] Requests for Admissions (Set Three) and [2] Special Interrogatories (Set Four) 2 05/11/2015 Plaintiffs’ Reply to Defendants’ Brief 404 Regarding In Camera Discovery Proceedings 5 04/25/2016 Plaintiffs’ Request for Judicial Notice in 1166 Support of Motion to Compel Further Responses to Request for Production of Documents, Set Three Propounded on Defendants Kamala Harris and Stephen Lindley 5 04/25/2016 Plaintiffs’ Request for Judicial Notice in 1224 Support of Motion to Compel Further Responses to Special Interrogatories, Set Three, Propounded on Defendants Kamala Harris and Stephen Lindley 2 06/02/2015 Plaintiffs’ Request for Judicial Notice in 523 Support of Opposition to Defendants’ Motion for Judgment on the Pleadings 9 06/30/2017 Plaintiffs’ Separate Statement in 2210 Opposition to Defendants’ Motion for Summary Adjudication 8 06/14/2017 Plaintiffs’ Separate Statement in Support of 2148 Motion for Adjudication of Plaintiffs’ Fifth and Ninth Causes of Action Pursuant to Bifurcation Order of November 4, 2016 2 08/07/2015 Plaintiffs’ Supplemental Brief in Response 533 to Order of July 20, 2015 5 10/21/2016 Reply in Response to Defendants’ 1308 Opposition to Plaintiffs’ Motions to Compel

313 INDEX TO APPELLANTS’ APPENDIX

ALPHABETICAL

VOL DATE DOCUMENT PAGE

10 07/21/2017 Reply in Support of Defendants’ Motion for 2492 Summary Adjudication as to the Fifth and Ninth Causes of Action 1 04/14/2015 Reply in Support of Motions to Compel 255 Further Responses to (1) Request for Admissions, Set One, and (2) Form Interrogatories, Set One, Both Propounded on Defendants Kamala Harris and Stephen Lindley 9 07/21/2017 Reply in Support of Plaintiffs’ Motion for 2417 Adjudication of Fifth and Ninth Causes of Action 12 03/01/2018 Reply in Support of Plaintiffs’ Opening Trial 3251 Brief 15 01/03/2019 Reply in Support of Plaintiffs’ Opening Trial 3955 Brief 9 07/21/2017 Request for Judicial Notice in Support of 2432 Plaintiffs’ Motion for Adjudication of Fifth and Ninth Causes of Action 1 03/06/2015 Respondents’ Answer to Complaint for 230 Declaratory and Injunctive Relief and Petition for Writ of Mandamus 4 01/29/2016 Respondents’ Answer to First Amended 1084 Complaint and Petition for Writ of Mandamus 2 08/31/2015 Ruling After Additional Briefs; Motion for 547 Judgment on the Pleadings, Motion to Compel Additional Responses to Form Interrogatories, and Motion to Compel Further Responses to Request for Admissions 10 11/03/2017 Ruling on Motions to Compel Additional 2677 Responses to Request for Admission (Set Three), Special Interrogatories (Set Four), and for Sanctions

314 INDEX TO APPELLANTS’ APPENDIX

ALPHABETICAL

VOL DATE DOCUMENT PAGE

2 06/01/2015 Ruling on Request for Production of 518 Withheld Documents via Expedited Dispute Resolution Procedure 15 03/04/2019 Ruling on Submitted Matter Re: Petition for 3981 Writ of Mandate and Complaint for Declaratory and Injunctive Relief— Remaining Causes of Action 10 08/09/2017 Ruling on Submitted Matter: Motions for 2516 Adjudication of Plaintiffs’ Fifth and Ninth Causes of Action 5 05/31/2016 Ruling on Submitted Matter: Renewed 1273 Motion to Compel Additional Responses to Form Interrogatories, and Motion to Compel Further Responses to Request for Admissions 5 05/24/2017 Second Amended Stipulation Re: 1353 Bifurcation and Setting Partial Merits Hearing; Order 13 06/21/2018 Second Supplemental Declaration of Scott 3414 M. Franklin in Support of Plaintiffs’ Motion for Leave to File Second Amended Complaint for Declaratory and Injunctive Relief and Second Amended Petition for Writ of Mandamus 6 06/13/2017 Separate Statement of Undisputed Facts in 1446 Support of Defendants’ Motion for Summary Adjudication as to the Fifth and Ninth Causes of Action

1 04/20/2015 Stipulation and Joint Application Re: 274 Expedited Dispute Resolution Procedure Re: Documents Withheld Under Privilege Claims in Response to Plaintiffs’ Requests for Production of Documents (Set One), Propounded on Defendants Kamala Harris and Stephen Lindley; Order 5 06/08/2017 Stipulation and Order Re: Bifurcation 1357 5 11/04/2016 Stipulation Re: Bifurcation and Setting 1342 Partial Merits Hearing; Order

315 INDEX TO APPELLANTS’ APPENDIX

ALPHABETICAL

VOL DATE DOCUMENT PAGE

2 01/22/2016 Stipulation Re: Expedited Dispute 579 Resolution Procedure Regarding Disputed Discovery Responses Previously Deemed Moot and Renewed Motions Currently Scheduled for Hearing on February 19, 2016 10 07/21/2017 Supplemental Declaration of Scott M. 2461 Franklin in Support of Plaintiffs’ Motion for Adjudication of Fifth and Ninth Causes of Action 10 10/27/2017 Supplemental Declaration of Scott M. 2655 Franklin in Support of Plaintiffs’ Reply in Support of Motions to Compel Additional Responses to: [1] Requests for Admissions (Set Three) and [2] Special Interrogatories (Set Four) 13 06/15/2018 Supplemental Declaration of Scott M. 3402 Franklin in Support of Plaintiffs’ Motion for Leave to File Second Amended Complaint for Declaratory and Injunctive Relief and Second Amended Petition for Writ of Mandamus 10 08/03/2017 Tentative Ruling on Motions for 2508 Adjudication of Plaintiffs’ Fifth and Ninth Causes of Action 10 11/03/2017 Tentative Ruling on Motions to Compel 2672 Additional Responses to Request for Admission (Set Three), Special Interrogatories (Set Four), and for Sanctions

316 1 C. D. Michel - S.B.N. 144258 Scott M. Franklin - S.B.N. 240254 2 Sean A. Brady - S.B.N. 262007 MICHEL & ASSOCIATES, P.C. 3 180 E. Ocean Boulevard, Suite 200 Long Beach, CA 90802 4 Telephone: (562) 216-4444 Facsimile: (562) 216-4445 5 Email: [email protected]

6 Attorney for Plaintiffs/Petitioners

7

8 SUPERIOR COURT OF THE STATE OF CALIFORNIA

9 FOR THE COUNTY OF SACRAMENTO

10 DAVID GENTRY, ET AL., ) CASE NO. 34-2013-80001667 ) 11 Plaintiffs and Petitioners, ) BRIEF IN SUPPORT OF REQUEST FOR ) PRODUCTION OF WITHHELD 12 vs. ) DOCUMENTS VIA EXPEDITED DISPUTE ) RESOLUTION PROCEDURE; 13 KAMALA HARRIS, ET AL., ) [PROPOSED]ORDER ) 14 Defendants and Respondents. ) Dept.: 31 ------) Action filed: 10/16/2013 15 16 I. INTRODUCTION

17 The parties stipulated to an expedited review of the current dispute in lieu of normal

18 motion practice to avoid unnecessary briefing and appearances, intending to save scarce resources

19 for both the parties and the Court. The dispute boils down to whether a few documents being

20 withheld under privilege claims-mainly official information privilege objections-are subject to

21 disclosure. Based on the argument herein, Plaintiffs/Petitioners David Gentry, James Parker,

22 Mark Midlam, James Bass, and Calguns Shooting Sports Association's ("Plaintiffs") request for

23 production of documents should be granted, and Defendants/Respondents Kamala Harris and

24 Stephen Lindley ("Defendants") should be ordered to produce the withheld documents.

25 II. STATEMENTOFFACTS

26 A. The History of the Current Dispute

'},7 Plaintiffs served a first set of Requests for Production of Documents (''RFP") on

28 Defendants on May 14, 2014. (Declaration of Scott M. Franklin in Support of Request for

1 317 BRIEF ISO REQUEST FOR PRODUCTION OF DOCUMENTS; [PROPOSED] ORDER 1 Production of Withheld Documents via Expedited Dispute Resolution Procedure ["Franklin 2 Deel."] ,r 2.) Over the course of several months, the parties met and conferred in good faith 3 exchanging several written communications and having at least two detailed telephonic 4 conferences. (Id. ,r 3 at Exs. 1 and 2.) During that time, Defendants produced some responsive 5 documents, in several batches. (Id. ,r 3.) 6 On October 17, 2014, during the meet-and-confer process, Plaintiffs requested that

7 Defendants produce a "privilege log." (Id.) This request was made because Defendants' RFP

8 responses all included objections and a statement that whatever response given was made

9 "without waiving these objection[.]" (Id. ,r 3 at Exs. 1; ,r 4.) That is, Defendants' responses were 10 unclear as to whether or not any documents were being withheld pursuant to the objections raised.

11 (Id. ,r 4.) Defendants produced a privilege log on December 22, 2014. (Id. ,r 5 at Ex. 3.) After the 12 production of the privilege log, Plaintiffs agreed that they would not challenge the withholding of

13 certain documents identified on the privilege log (item nos. 5, 6, and 11). (Id. ,r 6.) As to the other 14 withheld documents, however, the parties agreed they were at an impasse as of February 6, 2015,

15 which led to the suggestion by Plaintiffs' counsel that the parties submit the matter to the Court in

16 an expedited manner for limited briefing and in camera review. (Id. ,r 7.) A stipulation followed

17 (id.), and now the matter is before the Court for in camera review.

18 B. Summary of the Relevant Portion of Plaintiffs' Case

19 The California Department of Justice (the "Department") collects information on a

20 Dealer's Record of Sale ("DROS") Form, and uses the information as part of the background 21 check process that is performed for most firearm purchases. (Compl. ,r 1.) A fee is collected by 22 the Department regarding each DROS Form that is submitted by a potential firearm purchaser (the

23 "DROS Fee"). (Id.) Funds obtained via the DROS Fee, along with certain other money collected

24 by the Department (see, e.g., entertainment firearm permit fees, Penal Code section 29510(a)(l)),

25 are placed into the DROS Special Account, a segregated account in California's General Fund.

26 (Id.) Penal Code section 28235 lists the authorized uses for DROS Special Account funds.

27 The Department is not required to charge the DROS Fee (id. ,r 39), but it is allowed to 28 charge the DROS Fee in an amount that is based on a determination of what it would take to 318 2 BRIEF ISO REQUEST FOR PRODUCTION OF DOCUMENTS; [PROPOSED] ORDER 1 reimburse certain statutorily listed costs. (Id ,r,r 38-40; see Penal Code§§ 28225(a-b), 28230(a).)

2 It appears the Department has never analyzed the specific costs listed in the relevant

3 statute (Penal Code section 28225(b), and that the DROS Fee appears to be excessive and in

4 violation of its statutory basis. It seems the Department actually agreed with that conclusion as of

5 2010, when it commenced rulemaking with an intent to "lower the current $19 DROS fee to $14,

6 commensurate with the actual cost of Processing a DROS" Form. (Franklin Deel. ,r 8 at Ex. 4).

7 Even though the 2010 rulemaking appeared complete, however, something happened in late 2010

8 or thereafter that lead the Department to reverse course and quietly abandon the rulemaking.

9 Thus, Plaintiffs seek to investigate the propriety of the amount of the DROS Fee, which, as of

10 2011, created a surplus such that the Governor was able to borrow $11,500,000 from the DROS

11 Special Account without affecting the Departments' operations. (Franklin Deel. ,rat Ex. 5.)

12 III. ARGUMENT

13 A. A Prima Facie Claim for the Production of Withheld Documents Is Alleged

14 If a party deems an objection to a demand for inspection to be without merit, that party can

15 obtain judicial relief upon a timely motion showing: (1) good cause and (2) a sufficient attempt at

16 informal resolution. Civ. Proc. Code§ 2031.310. Further, Evidence Code section 915(b) and the

17 stipulation of the parties herein both allow for an in camera review in a situation such as this,

18 where a privilege claim has been made under Evidence Code section 1040. Here, because: (1)

19 documents at issue have already been identified as necessary to Plaintiffs case and clearly relevant

20 ( or else they would not have been included in a privilege log); (2) it appears Defendants, i.e., the

21 Department of Justice, are the only source for the information sought; and (3) the parties have

22 stipulated as to the sufficiency of the attempt to resolve this matter informally, Plaintiffs have

23 proven good cause and thus a prima facie case that production should occur per section 2031.310.

24 B. Defendants' Objections Are Without Merit

25 1. Government Code Section 1040 (Item Nos. 1-4. 7-10. and 12-14)

26 a Legal Authority

27 As is relevant hereto, Government Code section 1040(a-b) states that:

28 A public entity has a privilege to refuse to disclose official information [i.e., 319 3 BRIEF ISO REQUEST FOR PRODUCTION OF DOCUMENTS; [PROPOSED] ORDER 1 information acquired in confidence by a public employee in the course of his or her duty and not open, or officially disclosed, to the public prior to the time the claim 2 of privilege is made]1 if the privilege is claimed by a person authorized by the public entity to do so and: 3 (1) Disclosure is forbidden by an act of the Congress of the United States or a 4 statute of this state;2 or

5 (2) Disclosure of the information is against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the 6 necessity for disclosure in the interest ofjustice; but no privilege may be claimed under this paragraph if any person authorized to do so has consented that the 7 information be disclosed in the proceeding. In determining whether disclosure of the information is against the public interest, the interest of the public entity as a 8 party in the outcome of the proceeding may not be considered.

9 (Emphasis added). The California Supreme Court has held that in conducting the balancing test 10 required by Evidence Code § 1040(b)(2), the courts should consider: 11 [(1)] the importance of the material sought to the fair presentation of the litigant's 12 case, [(2)] the availability of the material to the litigant by other means, and [(3)] the effectiveness and relative difficulty of such other means. The consideration of 13 [(4)] the consequences of disclosure to the public will involve matters relative to the effect of disclosure upon the integrity of public processes and procedures .... 14 In this respect the court[s] should be fully aware that-in the words of the Assembly Committee on Judiciary-'the public has an interest in seeing that 15 justice is done in the particular cause as well as an interest in the secrecy of the information.' 16 Shepherd v. Super. Ct., 17 Cal. 107, 126 (1976) (overruled on other grounds by People v. 17 Holloway, 33 Cal. 4th 96, 131 (2004)). 18 b. The Balance Tips Strongly in Favor of Disclosure Here 19 The Material Sought Is Key to the Fair Presentation ofPlaintiffs' 20 Case

21 Plaintiffs believe the DROS Fee was either improperly set in 2004, or that the Department

22 acted improperly in abandoning its DROS Fee reduction rulemaking in 2010, or both. As part of

23 the meet-and-confer process, Plaintiffs sent Defendants a letter stating that:

24 Defendants' responses include several privilege claims on issues related to evidence of how the DROS Fee was set at $19.00 and similar Department analysis 25 (see, e.g., Defendants' responses to Request for Production Nos. 26 and 28,

26 1 Presumably, Defendants will attempt to make a showing that the documents at issue include "official information" as defined under Evidence Code section 1040(a), as 27 that is their burden. See Marylander v. Super. Ct., 81 Cal. App. 4th 1119, 1126 (2000). 28 2 Defendants are not making a subsection (b)(l) objection. (Franklin Deel. 110.) 320 4 BRIEF ISO REQUEST FOR PRODUCTION OF DOCUMENTS; [PROPOSEDl ORDER 1 Defendants' response to Form Interrogatory No. 15.1). Please be advised that, as to any relevant information withheld pursuant to a privilege claim, Plaintiffs will seek 2 to exclude testimony on such subjects at trial.

3 (Franklin Deel. at Ex. 1.) In response, Defendants identified two supposed sources of evidence as 4 to how the DROS Fee was set at $19.00: (1) a rulemaking file from 2004, and (2) documents 5 referred to in Defendants' privilege log. (Id at Ex. 2). Defendants' response provides several 6 important pieces of information. First, it confirms that the withheld documents include responsive 7 documents on the issue of how the $19.00 DROS Fee was set. Second, because the 2004 rule 8 making file does not include any reference to the costs that are required to be considered in setting 9 the DROS Fee (see Penal Code section 28225), that leaves the withheld documents as the only 10 identified source of evidence on the issue. (Franklin Deel. at Ex. 2.)3 11 If the withheld documents do provide specifics of how the department set or re-evaluted 12 the amount of the DROS Fee, the information at issue will be plainly relevant to this case-either 13 it will show the Department considered all of the relevant costs and properly set the DROS Fee at 14 $19.00, or it will not. Defendants have a duty to set the relevant fee properly and they should not 15 be allowed to withhold evidence related to the gravamen of this Action. Plaintiffs will not have a 16 fair chance to present their argument if Defendants are able to keep secret the documents showing 17 how the relevant fee was really set, so this factor weighs strongly in support of disclosure. 18 11. The Material Sought Is Simply Not Available from other Sources 19 Plaintiffs have no reason to think that the information sought, created internally at a state 20 agency, is currently available by any route other than this Action. Defendants have provided no 21 alternative route by which the relevant information might be obtained, proving that it is possessed 22 solely by the Department. Accordingly, this factor cuts strongly in favor of disclosure. 23 3 Defendants claim the 2004 rulemaking file shows how the Department set the 24 DROS Fee at $19.00. (Id at Ex. 2.) The relevant rulemaking file, however, simply states the conclusion that "the department is adopting fee increases only up to a level to cover 25 actual costs as specified in statute[,]" it does not actually provide the calculations to 26 support that conclusion. (Id ,r 11 at Ex. 6, p. 3). Unless and until the Department specifies where the Penal Code section 28225 cost calculations appear in the 2004 27 rulemaking file (which is part of another discovery motion pending before the Court), it is Plaintiffs' belief that the Department has yet to produce any document showing that the 28 $19.00 DROS Fee was properly set based on the statutorily required cost considerations. 321 5 BRIEF ISO REQUEST FOR PRODUCTION OF DOCUMENTS; fPROPOSEDl ORDER 1 111. The Third Balancing Factor Does not Apply Here

2 The material sought by Plaintiffs exists only in the Departments' files, so the difficulty of

3 obtaining that information elsewhere is a moot inquiry. Thus, the third factor is inapplicable here.

4 IV. Secrecy Actually Decreases Integrity in This Instance

5 The information sought is not strategy information or uninhibited thoughts recorded in the

6 heat of a brainstorming session, it is financial data that should have been publically disclosed both

7 when the $19.00 DROS Fee was first announced, and when the 2010 rulemaking to reduce the fee

8 was announced. Put plainly, Plaintiffs want to check the "math" behind the $19.00 fee at issue.

9 This alone is sufficient justification for the production sought. See San Gabriel Tribune v.

10 Superior Court (City of West Covina), 143 Cal. App. 3d 762, 776 (1983) (holding that, under

11 section 1040, the public could obtain financial data underling a waste disposal fee rate increase

12 charged to city residents). Furthermore, if the public is not allowed to access the raw data used to

13 calculate fees they are charged, that not only violates the public's right "of access to information

14 concerning the conduct of the people's business" (Cal. Const. art. 1, § 3(b)(l)), it also impinges

15 upon the public's ability to "petition government for redress of grievances[.]" Id. § 3(a). Because

16 none of the factors weigh against disclosure and at three weigh heavily in favor of disclosure, the

17 Court should, pursuant to section 1040, order disclosure of the withheld documents.

18 C. Deliberative Process (Item Nos. 1-4, 7-10, and 12-14)4

19 Marylander is clear in re-affirming that, in litigation, Evidence Code section 1040

20 "represents the exclusive means by which a public entity may assert a claim ofgovernmental

21 privilege based on the necessity for secrecy." Marylander, 81 Cal. App. 4th at 1125 (italics in

22 original) ( citations omitted). Regardless, even if a deliberative process objection exists here, the

23 standard of review for a deliberative process objection is basically the same as that which applies

24 to a section 1040 claim, except that the deliberative process standard may actually be harder for a

25 governmental defendant to meet. Compare id. at 1126-28 ("Only if the public interest in

26 nondisclosure clearly outweighs the public interest in disclosure does the deliberative process

27 4 Defendants also argued an Executive Privilege, but based on discussions between counsel, it appears "Executive Privilege" is just another way of referring to the 28 Deliberative Process Privilege. (Franklin Deel. ,r 10). 322 6 BRIEF ISO REQUEST FOR PRODUCTION OF DOCUMENTS; rPROPOSEDl ORDER 1 privilege spring into existence.") (citation omitted) (italics added), with Evidence Code 2 § 1040(b )(2) ("official information" can only be withheld if the "necessity for preserving the 3 confidentiality of the information that outweighs the necessity for disclosure in the interest of 4 justice"). Accordingly, the Court should ignore Defendants' deliberative process objections 5 because they are duplicative of the meritless objections made under Evidence Code section 1040.

6 D. Attorney-Client Privilege (Item No. 4)

7 California Evidence Code section 954 states that a client may refuse to disclose (1) 8 confidential communications (2) between the client and the attorney. Here, however, privilege log

9 item no. 4 appears to be a draft written by someone who is not an attorney. (Franklin Deel. at Ex. 10 3). Without proof that the intended recipient was an attorney for the author of the document, 11 Defendants cannot state a viable attorney-client privilege claim. Thus, Defendants' attorney-client 12 privilege objection regarding privilege log item no. 4 should be ignored.

13 E. Attorney Work Product Doctrine (Item Nos. 4 and 13) 14 California's attorney work product doctrine, codified in Code of Civil Procedure section

15 2018.020, states the general policy protecting an attorney's work product from being unfairly 16 exposed. The doctrine provides absolute protection for an attorney's "brain work" (e.g., opinions,

17 conclusions, impressions), but for other attorney work product, such material can be obtained 18 upon a showing "that denial of discovery will unfairly prejudice the party seeking discovery in 19 preparing that party's claim or defense or will result in an injustice." Civ. Proc. Code§ 2018.030.

20 As to item no. 4, the privilege log states that the document at issue was created by David 21 Harper, who does not appear to be an attorney. And Defendants state that the author of item no. 22 13 is unknown. Therefore, as these two documents were not created by attorneys, and Defendants 23 have not provided any suggestion that these documents were produced at the direction of an 24 attorney, there is no reasonable basis for the attorney work product objection made by Defendants.

25 Further, because Defendants have already effectively admitted that the documents are 26 relevant, and because there appears to be no other source for the information at issue, the 27 documents at issue, if produced, are going to provide the key evidence that appears likely to prove 28 or disprove Plaintiffs' claim that the DROS Fee amount has yet to be properly set via the 323 7 BRIEF ISO REQUEST FOR PRODUCTION OF DOCUMENTS; rPROPOSEDl ORDER 1 statutorily required standard.

2 Finally, denial of discovery on this issue will be unfair and unduly prejudicial. Plaintiffs 3 contend that the publically available information related to the DROS Fee amount being set and

4 later kept at $19.00 shows the Department of Justice is not properly monitoring the fee being

5 charged. The documents at issue are likely to show that either: (a) the information provided to the 6 public is accurate-which supports Plaintiffs' claim that the DROS Fee amount was improperly

7 set or kept at $19.00-or (b) the Department of Justice did perform the proper analysis in 2004

8 and 2010, which might be determinative as to at least a portion of Plaintiffs' case. As there is no

9 other source for the information sought, it would be unfair for Defendants to withhold information

10 about how certain financial decisions were made in a lawsuit specifically challenging those

11 decisions. Therefore, the Court should order the production of privilege log item nos. 4 and 13.

12 IV. CONCLUSION

13 Plaintiffs seek relief in this instance for two reasons: ( 1) if the withheld documents show

14 that the Department did not make the statutorily required calculations, that would prove Plaintiffs 15 are correct as to the gravamen of their Action; and (2) if Defendants intend to argue that the

16 withheld documents do show that the Department acted properly, Plaintiffs do not want to be

17 unfairly surprised with that argument when this case reaches the merits stage. That is, Defendants

18 should not be able to claim privilege now and then attempt to rely on withheld documents later.

19 Thus, the relief requested should be granted based on the arguments raised herein.

20 Dated: May 4, 2015 MICHEL & ASSOCIATES, P.C. 21

22 lm, Attorneys for Plaintiffs 23

24

25 26

27

28 324 8 BRIEF ISO REQUEST FOR PRODUCTION OF DOCUMENTS; [PROPOSED] ORDER 1 ORDER

2 Based on the stipulation of the parties dated April 16, 2015, and the Court's review of the

3 briefs and documents submitted for in camera review by the parties pursuant to the

4 aforementioned stipulation, and good cause appearing, the Court GRANTS Plaintiffs/Petitioners

5 David Gentry, James Parker, Mark Midlam, James Bass, and Calguns Shooting Sports

6 Association's ( collectively "Plaintiffs") Request for Production of Withheld Documents via

7 Expedited Dispute Resolution Procedure.

8 Defendants are ORDERED to serve copies of privilege log items nos. 1, 2, 3, 4, 7, 8, 9,

9 10, 12, 13, and 14 on Plaintiffs' counsel within ten days of this Order.

10

11 Date: ------12 Hon. Michael P. Kenny Judge of the Superior Court 13

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27 28 325 9 BRIEF ISO REQUEST FOR PRODUCTION OF DOCUMENTS; rPROPOSEDl ORDER 1 PROOF OF SERVICE

2 STATE OF CALIFORNIA 3 COUNTY OF LOS ANGELES

4 I, Laura L. Quesada, am employed in the City of Long Beach, Los Angeles County, California. I am over the age eighteen (18) years and am not a party to the within action. My 5 business address is 180 East Ocean Blvd., Suite 200, Long Beach, California 90802. 6 On May 4, 2015, I served the foregoing document(s) described as: 7 BRIEF IN SUPPORT OF REQUEST FOR PRODUCTION OF WITHHELD 8 DOCUMENTS VIA EXPEDITED DISPUTE RESOLUTION PROCEDURE; [PROPOSED] ORDER 9

10 on the interested parties in this action by placing [ ] the original 11 [X] a true and correct copy thereof enclosed in sealed envelope(s) addressed as follows: 12

13 Anthony Hald, Deputy Attorney General 1300 I Street, Suite 1101 14 Sacramento, CA 95814 15 _x_ (BY MAIL) As follows: I am "readily familiar" with the firm's practice of collection and 16 processing correspondence for mailing. Under the practice it would be deposited with the 17 U.S. Postal Service on that same day with postage thereon fully prepaid at Long Beach, California, in the ordinary course of business. I am aware that on motion of the party 18 served, service is presumed invalid if postal cancellation date is more than one day after date of deposit for mailing an affidavit. 19 Executed on May 4, 2015, at Long Beach, California. 20 _x (VIA ELECTRONIC MAIL) As follows: I served a true and correct copy by electronic 21 transmission. Said transmission was reported and completed without error. Executed on May 4, 2015, at Long Beach, California. 22 _x (STATE) I declare under penalty of perjury under the laws of the State of California that 23 the foregoing is true and correct. 24 (FEDERAL) I declare that I am-e,ft'm:~!a 25 court at whose direction the service was 26

27

28

326

BRIEF ISO REQUEST FOR PRODUCTION OF DOCUMENTS; [PROPOSED] ORDER C. D. Michel - S.B.N. 144258 Scott M. Franklin - S.B.N. 240254 2 Sean A. Brady- S.B.N . 262007 MICHEL & ASSOCIATES, P.C. 3 180 E. Ocean Boulevard, Suite 200 Long Beach, CA 90802 4 Telephone: 562-216-4444 Facsimile: 562-216-4445 5 Email: [email protected]

6 Attorneys for Plaintiffs/Petitioners

7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA

9 FOR THE COUNTY OF SACRAMENTO

10

11 DAVID GENTRY, JAMES PARKER, ) CASE NO. 34-2013-80001667 MARK MID LAM, JAMES BASS, and ) 12 CALGUNS SHOOTING SPORTS ) DECLARATION OF SCOTT M. ASSOCIATION, ) FRANKLIN IN SUPPORT OF REQUEST 13 ) FOR PRODUCTION OF WITHHELD Plaintiffs and Petitioners, ) DOCUMENTS VIA EXPEDITED DISPUTE 14 ) RESOLUTION PROCEDURE ) 15 vs. ) ) 16 KAMALA HARRIS, in Her Official ) Capacity as Attorney General for the State ) 17 of California; STEPHEN LIND LEY, in His ) Official Capacity as Acting Chief for the ) 18 California Department of Justice, JOHN ) CHIANG, in his official capacity as State ) 19 Controller for the State of California, and ) DOES 1-10. ) 20 ) Defendants and Respondents. ) 21 OJ '< 22 II I ,, ..J 23 ,...

24

25

26

27

28

1 327 DECL. OF SCOTT M. FRANKLIN ISO REQUEST FOR PROD. OF DOCS 1 DECLARATION OF SCOTT M. FRANKLIN

2 I, Scott M. Franklin, declare:

3 1. I am an attorney at law admitted to practice before all courts of the state of

4 California. I have personal knowledge of each matter and the facts stated herein as a result of my

5 employment with Michel & Associates, P.C., attorneys for all of the Plaintiffs/Petitioners

6 ("Plaintiffs") herein, and if called upon and sworn as a witness, I could and would testify

7 competently thereto.

8 2. I served a first set of Requests for Production of Documents ("RFP") on

9 Defendants/Respondents Kamala Harris and Stephen Lindley ( collectively "Defendants") on May

10 14, 2014.

11 3. Defendants provided responses to Requests for Production of Documents (Set One)

12 on August 15, 2014 (pursuant to an extension granted by Plaintiffs). Between August 15, 2014,

13 and February 4, 2014, Defendants served several document productions and the parties met and

14 conferred regarding, among other things, Plaintiffs' belief that the responses provided on August

15 15, 2014, and the documents provided in addition thereto, were insufficient. The extensive

16 attempt at resolving the dispute came to an end on February 4, 2015, when the parties determined

17 they were at an impasse as to whether Defendants were properly withholding certain documents.

18 A true and correct copy of Plaintiffs' meet-and-confer letter dated October 17, 2014, is attached

19 hereto as Ex. 1. A true and correct copy of Defendants' response thereto, dated December 4, 2014,

20 is attached hereto as Exhibit 2.

21 4. Plaintiffs' letter of October 17, 2014, sent during the meet-and-confer process,

22 included a request that Defendants produce a "privilege log[.]" I made this request because some

23 of Defendants' discovery responses included a statement that whatever response given was made

24 "without waiving these objection[.]" That is, Defendants' responses were unclear as to whether or

25 not any documents were being withheld pursuant to the objections raised.

26 5. A true and correct copy of the privilege log I received from Defendants on or about

27 December 22, 2014, is attached hereto as Exhibit 3.

28 6. Soon after my initial review of the privilege log produced by Defendants, I 328 2 DECL. OF SCOTT M. FRANKLIN ISO REQUEST FOR PROD. OF DOCS 1 informed Defendants' that Plaintiffs would not challenge the withholding of certain documents

2 identified on the privilege log (item nos. 5, 6, and 11).

3 7. On February 6, 2015, Defendants' counsel confirmed to me that the parties were on

4 an impasse regarding Plaintiffs desire to obtain privilege log items 1-4, 7-10, and 12-14

5 notwithstanding Defendants' related objections. In light of this impasse being reached, I suggested

6 to Defendants' counsel that the parties submit the matter to the Court in an expedited manner for

7 limited briefing and in camera review. The parties stipulated accordingly, and the matter is now

8 being submitted to the Court for in camera review and a ruling as to Defendants' objections.

9 8. A true and correct copy of the Initial Statement of Reasons for the California

10 Department of Justice's (the "Department") 2010 rulemaking to reduce the Dealers' Record of

11 Sale Fee, obtained from the Department itself, is attached hereto as Exhibit 4.

12 9. A true and correct excerpt of the Governor's Revised Budget Detail, 2012-2013,

13 obtained from http://www.ebudget.ca.gov/ on May 3, 2015, is attached hereto as Exhibit 5.

14 10. As a result of my meet-and-confer discussions with opposing counsel, it is my

15 understanding that Defendants do not intend to argue that there is an meaningful distinction

16 between the "deliberative process" and "executive" privilege objections that are made in their

17 privilege log. Further, based on the abovementioned discussions, it does not appear that

18 Defendants intend to make an objection herein based on Evidence Code section 1040(b)(l). If,

19 however, Defendants do decide to raise an argument in their initial briefing that is contrary to my

20 understanding as explained in this paragraph, Plaintiffs will respond thereto in their reply brief

21 authorized by the parties' stipulation of April 16, 2015.

22 11. A true and correct copy of the Finding of Emergency created as a part of the

23 Department's 2004 rulemaking to raise the Dealers' Record of Sale Fee, obtained from the

24 Department itself, is attached hereto as Exhibit 6.

25 I declare under penalty of perjury under the laws of California that the foregoing is true

26 and correct, and that this declaration was executed on Ma 4, 2015, at Long Beach, California.

27

28 329 3 DECL. OF SCOTT M. FRANKLIN ISO REQUEST FOR PROD. OF DOCS Exhibit 1

330 SENIOR COUNSEL OF" COUNSEL C. D. MICHEL* DON B. KATES

BATTLEGROUHD 1 WA SPECIAL COUNSEL JOSHUA R. DALE RUTH P. HARING W. LEE SMITH MATTHEW M. H0RECZKO Los ANGELES, CA ASSOCIATES ANNA M. BARVIR GLENN S, MCROBERTS MICHELLE BIGLARIAN SAN DIEGO, CA SEAN A. BRADY SCOTT M. FRANKLIN AFF"ILIATE COUNSEL BEN A. MACHIDA JOHN F. MACHTINGER THOMAS E. MACIEJEWSKI JEFFREY M, COH0N CLINT B. MONFORT Los AHGELLS, CA JOSEPH A. SILVOSO, Ill Los ANGELLS, CA DAVID T. HARDY TUCSON, AZ * ALSO ADMITTED IN TEXAS ANO THE DISTRICT OF COLUMBIA

WRITER'S DIRECT CONTACT: 562-2 16-4474 [email protected] October 17, 2014

VIA EMAIL & U.S. MAIL

Mr. Anthony R. Hald Deputy Attorney General Office of the Attorney General 1300 "I" Street, Suite 125 P.O. Box 944255 Sacramento, CA 94244

[email protected]

Re: Gentry v. Harris, Case No. 34-2013-80001667 Meet-and-Confer re: Defendants' Responses to Various Discovery Requests

Dear Mr. Hald:

This letter constitutes our initial attempt to meet and confer with you regarding certain insufficient or otherwise problematic responses provided to this office by your clients on August 1, 2014. We propose a telephonic meeting on October 24, 2014, to discuss the responses for the purpose of determining if the parties can resolve the current discovery dispute without judicial intervention. We are flexible on the date and time of the teleconference, and do not have any objection to it being held later than October 24, 2014, assuming the stipulated motion to compel filing deadline (currently November 7, 2014) is moved back accordingly.

Before addressing specific deficient responses, two general issued must first be addressed.

First, Defendants' responses to the relevant requests for production of documents include the common but problematic promise to produce documents "without waiving these objections," making it difficult for Plaintiffs to determine what objections Defendants are actually relying on to withhold documents. Thus, please inform me whether or not any documents are being withheld on a privilege claim, and if one or more document is being withheld for that reason, please provide a privilege log on or before October 31, 2014.

[ Second, Defendants' responses include several privilege claims on issues related to evidence of how the DROS Fee was set at $19 .00 and similar Department analysis (see, e.g., Defendants' responses 331 I 80 EAST OCEAN BOULEVARD • SUITE 200 • LONG BEACH • CALIFORNIA • 90802 Tc-1 • o::,:a;?-? I F:-ALl...d...d. • l="Av• ",Fl?-:::> I Fl-.d.dA,<; • WWW MIC-:Hl="I I AWYERS.COM Mr. Anthony R. Hald October 17, 2014 Page2 of16 to Request for Production Nos. 26 and 28, Defendants' response to Form Interrogatory No. 15.1). Please be advised that, as to any relevant information withheld pursuant to a privilege claim, Plaintiffs will seek to exclude testimony on such subjects at trial. For example, if Defendants withhold the specifics of how the $19.00 DROS Fee was calculated (e.g., identification of the specific costs and estimated costs, if any, that were considered in selecting the $19.00 amount) under an official information, deliberative process, executive process, or any other privilege, Plaintiffs will make the necessary motion(s) in limine to prevent Defendants from introducing evidence as to what went into such calculations, and whether or not the relevant analyses were appropriate or legally sufficient. See, e.g., A & M Records v. Heilman, 75 Cal. App. 3d 554, 566-67 (1977)...:J

The specific insufficiencies of Defendants' responses are outlined below.

(DOJ) Defendants' Responses to Plaintiffs' Request for Production ofDocuments, Set One

Request Nos. 1. 2. 3 & 5

The Department's responses improperly limits the scope of response to responsive documents created in the last two years, based on an objection that the requests are unlimited as to time and thus the burden of responding would be oppressive. This case is primarily about whether the DROS Fee being charged since 2005 ($19.00) is justified. These requests seek to obtain documents that show what costs or estimated costs were or could have been considered in setting/maintaining the $19.00 fee. Thus, the information is relevant, and the Department has failed to provide any evidence that the time frame(s) at issue somehow create a situation that is oppressive. See, e.g., West Pico Furniture Co. v. Super. Ct., 56 Cal. 2d 407, 417 (1961) (no oppression where party responding to interrogatory claimed proper response would require searching records at 78 locations, but without explaining the amount of hours of work that such search would require).

Plaintiffs cannot accept temporally truncated responses on an unsupported oppression claim. In fact, it may be that a declaration of purported burden and oppression, filed in opposition to a motion to compel, would actually inure to Plaintiffs' benefit because it would show that the Department cannot provide any evidence regarding the specifics of how the DROS Fee was set in 2005. In the spirit of compromise, and without knowing what the basis is for the objection at issue, Plaintiffs can accept as sufficient a response that is narrowed to responsive documents concerning the years FY 2003-2004 to the present. Agreeing to a limitation period starting any later, however, unreasonably limits the response period to after when the DROS Fee was set at $19.00, and the setting of that fee is relevant to this case.

As to the documents actually produced, they do not appear to be responsive. That is, the "budget documents" at issue do not respond to the requests at issue. For example, Request Nos. 1-2 seek documents "that show[] the calculation of a cost, including an estimated cost, referred to in SECTION 28225" of the Penal Code, or that show a figure identified as such a cost. The "budget documents" do not expressly show a section 28225 cost being calculated or simply stated, and if the Department contends these documents impliedly do, its is the Department's duty to explain how that information can be extracted. See Civ. Proc. Code § 2031.280.

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Request Nos. 7. 8. 17, 18, 32, 33 & 38

The Department appears to have limited its response to documents created January 1, 2010, or after. The Department has not provided any justification for limiting the time frame of this response, which means the objection will fail. The Department has failed to provide any evidence that the time frame(s) at issue somehow create a situation that is oppressive. See, e.g., West Pico Furniture Co. v. Super. Ct., 56 Cal. 2d 407,417 (1961) (no oppression where party responding to interrogatory claimed proper response would require searching records at 78 locations, but without explaining the amount of hours of work that such search would require).

As indicated above, the fact that the DROS Fee was set in 2005 means that documents from around that same time (e.g., starting January 1, 2004) are relevant to this case, which concerns the validity of the $19.00 DROS Fee currently being charged. Therefore, it seems the reasonable compromise is that the Department should provide further responses to these requests subject to a limitation that otherwise responsive documents appearing to have been created prior to January 1, 2004, need not be produced.

RequestNos.11.12, 13&14

These requests seek documents related to CONTACTS as that term is defined in the request. A statistical chart was provided that does not refer to CONTACTS in any way, which means the entire response is non-responsive. If it is the case that the requested documents (concerning CONTACTS) do not exist, a response stating such would be sufficient. And the production of responsive documents would obviously also be a proper response. If the Department contends neither of those options are available to it (especially if that is because the Department is relying on "the official information, law enforcement and[or] executive privileges"), however, this may be the type of issue that can be resolved via the production of a chart similar to what was offered, but concerning CONTACTS.

Request Nos. 21 & 22

The Department appears to have limited its responses to responsive documents created during or after fiscal year 2010-2011. The Department has not provided any justification for limiting the time frame of this response, which means the objection will fail. The Department has failed to provide any evidence that the time frame at issue somehow create a situation that is oppressive. See, e.g., West Pico Furniture Co. v. Super. Ct., 56 Cal. 2d 407,417 (1961) (no oppression where party responding to interrogatory claimed proper response would require searching records at 78 locations, but without explaining the amount of hours of work that such search would require).

As indicated above, the fact that the DROS Fee was set in 2005 means that documents from around that same time (e.g., starting January 1, 2004) are relevant to this case, which concerns the validity of the $19.00 DROS Fee currently being charged. Therefore, it seems the reasonable compromise is that the Department should provide further responses to these requests subject to a limitation that otherwise responsive documents appearing to have been created prior to January 1, 2004, need not be produced.

Furthermore, Defendants' executive privilege and deliberative process objections are without 333 I 80 EAST OCEAN BOULEVARD • SUITE 200 • LONO BEACH • CALIFORNIA • 90802 Tr=-1 • "'-R?-? IR-A.A.A.A. • l='AV• "'-R::>-::> I R-LI.A.A.o:; • W\MW Mtr,i-,,:-1 1 Awvr=-s:,c:: r,nM Mr. Anthony R. Hald October 17, 2014 Page4 of16

merit. Even assuming for the purpose of argument that a budget change proposal could be a non-public document, Defendants have failed to provide any evidence as to how budget change proposals could be withheld under the executive or deliberative process doctrines in this instance. If Defendants do not provide a legitimate explanation as to why documents that are not normally privileged (e.g., responsive budget change proposals approved since fiscal year 2010-2011, which Defendants agreed to provide) are apparently being withheld, Plaintiffs will have sufficient grounds to seek judicial relief on this issue. Civ. Proc. § 203 l.310(a)(3).

Request No. 25

Defendants' response is unclear as to whether only responsive documents are within the 2010 rulemaking file, or if the only documents being produced are those in the 2010 rulemaking file. If it is the latter and other responsive documents exist that are not part of the 2010 rulemaking file (e.g., a statement to a member of the public as to why the 2010 rulemaking was abandoned), Defendants need to express that clearly. Such information should be included in the privilege log requested.

Request No. 29

The response at issue appears to indicate that neither the relevant rulemaking file, nor documents that would be a part thereof, can be found by Defendants after a diligent search. Please confirm that Plaintiffs' understanding of this response is correct.

Request No. 30

Defendants' response is unclear as to whether only responsive documents are within the 2010 rulemaking file, or if the only documents beingproduced are those in the 2010 rulemaking file. If it is the latter and other responsive documents exist that are not part of the 2010 rulemaking file (e.g., a transcript of comments made the hearing of September 15, 2010), Defendants need to express that clearly. Such information should be included in the privilege log requested.

(SCO) Defendants' Responses to Plaintiffs' Request for Production ofDocuments, Set One

Request Nos. 5 & 6

These responses state that the respondent "will comply with this demand in part." Please provide clarification as to what is being withheld, if anything, why, and the distinction, if any, between what is withheld and what has been provided. Civ. Proc. Code § 2031.240.

(SCO) Defendants' Responses to Plaintiffs' Special Interrogatories, Set One

Interrogatory Nos. 5, 6 & 7

The interrogatories seek information that would appear to be in the respondents' possession, i.e., information related to disbursements from a fund the respondent oversees. Perhaps it is the case that the response at issue (the same for all three requests: "The State Controller's Office is not in possession of this information.") is intended to mean that the requested information does not exist. 334 I 80 EAST OCEAN BOULEVARD • SUITE 200 • LONG BEACH • CALIFORNIA • 90802 TFI · !";R;:>-;:> I R-4444 • FAX, P';R;:>-;:> I E'l-444P'; • WWW.MIC::HF'I I AWYEFlS.C::OM Mr. Anthony R. Hakl October 17, 2014 Page 5 of 16

The way the response is phrased, however, is ambiguous and could mean that the responding party is aware of the existence of the requested information, but such information is not in the responding party's possession. Please provide a further clear and straightforward response to resolve this ambiguity. Civ. Proc. Code§ 2030.220(a), (b).

(DOJ) Defendants' Responses to Plaintifft' Requests for Admissions, Set One

1 RequestNos.12, 14 , 41 &JOI

Defendants claim that the requests at issue are improperly repetitive because they seek an admission or denial on an issue for which a "mirror image" request is already made. E.g., Defendants would object to the request "admit X did not occur" if they previously responded in the affirmative to the request "admit X did occur."

First, there are only four requests at issue ( and potentially four corollary form interrogatory responses), so a claim that the requests are unfairly burdensome does not rise to the level of actionable oppression, especially without a challenge to the declaration of necessity filed with the requests. Civ. Proc. Code§ 2033.080(2). Second, because Plaintiffs did not know whether Defendants would admit or deny (or claim an inability to respond) on the issues of interest, it made sense to provide "mirror" requests on select issues; had Plaintiffs not done so, and asked only for "positive" claims (e.g., admit the use of DROS FEE funds for APPS operates as a tax), that would not have fleshed out the issue actually in dispute, and would have likely required an additional round of discovery to get at the substance of the matters actually in dispute. Third, as there are "repetitive" responses Defendants respond to without objection (Request Nos. 11, 13, 40, and 100), the fact that the "repetitive" requests that require additional work (in the form of form interrogatory responses) are being objected to confirms that the real basis of the objection is that Defendants don't want to provide the related form interrogatory responses that Defendants plainly have a duty to. Civ. Proc. Code§ 2033.010; 2033.710

The intention behind Plaintiffs' limited use of "mirror" requests for admissions was to narrow the issues for trial. To the extent Defendants denied a proposition Plaintiffs believe should be admitted, Plaintiffs have the right to use form interrogatories to obtain an explanation as to why Defendants did not admit something Plaintiffs believes they should have. Complete responses (i.e., denials, as supported by form interrogatory responses, or unequivocal admissions) to Request Nos. 12, 14 (as corrected, see footnote one), 41, and 101, are required.

Request No. 15

Plaintiffs disagree with Defendants' claim that this request is "so ambiguous that the

1 Request for Admission No. 14 includes a typographical error, viz., the word "not" was unintentionally included in the request, making it literally duplicative of the prior request. Based on the pattern of responses provided by Defendants, it is assumed that Defendants still would have objected to this request as repetitive regardless of this error, so it is considered along with the other "repetitive" objections herein. To the extent that assumption is in error, please advise counsel accordingly. 335 I 80 EAST OCEAN BOULEVARD • SUITE 200 • LONG BEACH • CALIFORNIA • 90802 Tt:"1 • ~~?-? I ~-.AAA.A • J:"'AV• =;,~::, .. ,::> I ~-..d..d..,di;::;_ e \A/\AI\A/ Jvllf""I-U:::·1 I AWV~i::;ic:;, f""~U Mr. Anthony R. Hald October 17, 2014 Page 6 of 16

responding party cannot in good faith frame an intelligent reply." It is obvious that this request asks whether the operation of the DROS PROCESS can occur regardless of whether APPS is operational or not. If Defendants decide to rely on their current response, Plaintiffs are confident a judge would find the response insufficient under Code of Civil Procedure section 2030.220(a),(b). Accordingly, Defendants should provide a straightforward and complete response.

Request Nos. 17, 18, 19. 21-26 &JOI

Because of the number of times Defendants attempt to rely on this "long objection," each portion thereof is discussed individually below to explain how the entirety of the objection is without merit.

"Defendants object to this request. It is irrelevant, defendants having admitted that the use ofDROS funds does not operate as a tax. "

Defendants have not "admitted the use ofDROS funds does not operate as a tax" as Defendants claim here; they actually admitted that "it is the position ofCAL DOJ that the use of DROS FEE FUNDS to fund APPS does not in any way operate as a tax under state law." (Emphasis added). Indeed, the requests at issue are relevant specifically because Plaintiffs are challenging the legal position being taken by Defendants. Defendants are effectively trying to make the claim that because they admit what their legal position is, Plaintiff can't seek information about it! Requests for admission are indisputably a proper tool to obtain information concerning a "matter in controversy between the parties[,]" expressly including the "application oflaw to fact." Civ. Proc. Code § 2033.010.

"The request is also an improper use ofthe request for admission procedure. The purpose ofthat procedure is to expedite trials and to eliminate the need for proofwhen matters are not legitimately contested (Cembrook v. Superior Court (1961) 56 Cal.2d 423, 429; see also Stull v. Sparrow (2001) 92 Cal.App.4th 860, 864.) In the event the legal issue implicated by this request becomes relevant, defendants will contest the issue at trial."

Code of Civil Procedure section 2033.010 expressly states that the use at issue (requesting an admission on the application of law to fact) is proper. Furthermore, the interpretation of Cembrook offered by Defendants is far off the mark: the California Supreme Court expressly cites Cembrook for exactly the opposite of what Defendants are arguing here.

When a party is served with a request for admission concerning a legal question properly raised in the pleadings he cannot object simply by asserting that the request calls for a conclusion of law. He should make the admission if he is able to do so and does not in good faith intend to contest the issue at trial, thereby 'setting at rest a triable issue.' ( Cembrook v. Superior Court ofCity and County ofSan Francisco, Supra, 56 Cal.2d 423, 429, 15 Cal.Rptr. 127, 364 P.2d 303.)

Burke v. Super. Ct. 71 Cal. 2d 276, 282 (1969). In fact, Defendants' expressed plan to wait until trial to contest the substantive issues underlying the relevant requests is exactly the kind of conduct requests 336 I 80 EAST OCEAN BOULEVARD • SUITE 200 • LONG BEACH • CALIFORNIA • 90802 T,::-1 ' <=;R::>-::> I R-444.ci • f'"4'1<• RR::>-:;> I R-.c1.c14R • WWW Mlr.H,::-1 I 4WY,::'R~ r.nM Mr. Anthony R. Hald October 17, 2014 Page 7 of 16 for admissions are intended to prevent. It is clear that requests for admissions can be used to set at rest triable issues, be they factual or legal. Finally, it should be noted that Stull does not discuss Defendants' contention (e.g., the supposed impropriety of using requests for admissions regarding legal contentions) at all; it simply notes, as a perfunctory issue and in a general sense, "Requests for admissions differ fundamentally from other forms of discovery[; r]ather than seeking to uncover information, they seek to eliminate the need for proof." Indeed, Stull implicitly supports Plaintiffs' position. Stull concerns a propounding party's ability to recover expenses for the responding party's failure to properly admit a request for admission of a legal issue - Stull' s discussion of the expense recovery issue is predicated on the undisputed fact that the request for admission of a legal contention was valid.

"The request for admission device is not intended to provide a windfall to litigants in granting a substantive victory in the case by deeming material issues admitted. St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 783-784." Section 2033 is "calculated to compel admissions as to all things that cannot reasonably be controverted" not to provide 11gotcha, 11 after-the-fact penalties for pressing issues that were legitimately contested. (Haseltine v. Haseltine (1962) 203 Cal.App.2d 48, 61; see also Elston v. City ofTurlock (1985) 38 Cal.3d 227, 235 [''Although the admissions procedure is designed to expedite matters by avoiding trial on undisputed issues, the request at issue here did not include issues as to which the parties might conceivably agree. ''], superseded by statute on another basis as described in Tackett v. City ofHuntington Beach (1994) 22 Cal.App.4th 60, 64-65.)"

Again, the cited material is completely off point, and in no way supports the claim that requests for admissions cannot be use regarding legal contentions. St. Mary concerns a propounding party's attempt to get 41 requests for admissions deemed admitted after the opposing party, having been denied a short courtesy extension, filed a slightly tardy discovery response. The "windfall" referred to in St. Mary had nothing to do with what Defendants are attempting to argue here, it had to do with a party who was abusing the process available to have requests for admissions deemed admitted by a court.

Similarly, the citations to Haseltine and Elston are clearly inappropriate. The quoted material from Haseltine is mixed with material that is not from Haseltine, a questionable practice. Regardless, Haseltine is another case that actually concerns a party's ability to obtain an award of expenses as to proving the substance of a denied request for admission. And though it is not entirely clear, it seems at least some of the requests for admission at issue were requests concerning legal contentions (again implicitly supporting Plaintiffs' position on the issue at hand). Finally, Defendants' quotation of Elston is baffling, as it is yet another case that concerns an issue ancillary to one or more request for admission seeking a legal contention. Elston concerns requests that were deemed admitted, thus the statement that "the request at issue here did not include issues as to which the parties might conceivably agree" was taken completely out of context by Defendants. It is misleading to use that quote, which refers to the concept of responses that are deemed admitted, to support a discovery objection arguing that requests for admissions cannot be used to nail down legal positions.

Defendants' objection is baseless. Plaintiffs will be successful on a motion to compel further responses to Request Nos. 17, 18, 19, 21, 22, 23, 24, 25, and 101. Accordingly, unless Defendants 337 I 80 EAST OCEAN BOULEVARD • SUITE 200 • LONG BEACH • CALIFORNIA • 90802 Ti=-r • _r::;F;:;>-:;> I F\-4444 • F°A)C• !,R:;>-:;> I n-444!, • WWW.MIC:HFLL.AWYF'.RS.COM Mr. Anthony R. Hald October 17, 2014 Page 8 of 16 want to raise these same objections before a judge, further responses must be provided in a timely manner.

Request No. 26

Defendants' response to this request include the "long objection" discussed in detail above and an additional objection that the following phrases "are so ambiguous that the responding party cannot in good faith frame an intelligent reply": "costs arising from the implementation of APPS" and "regulatory costs directly arising from performing background investigations as part of the DROS PROCESS." It is my honest belief that these phrases are not ambiguous and that a court would agree such a claim is evasive. Specifically, the fact that Defendants chose to include the long objection discussed above, which takes issue with the substance of the request, strongly suggests that Defendants do have a sufficient understanding to attempt a response to this request. That is, if this request is actually unintelligible as Defendants claim, they would not have known that they wanted to use "long objection," which is only used in response to a limited number ofrequests.

This request can be rephrased as follows: "Admit that the performance of background checks as part of the DROS PROCESS does not require any costs to be incurred that are recorded in accounting records as attributable to APPS." A further response should be provided. Civ. Proc. Code§ 2030.220(a),(b).

Request No. 33

The Department's response improperly limits the scope of response to the last five years, based on an objection that the request is unlimited as to time. This case is primarily about whether the DROS Fee being charged since 2005 ($19.00) is justified. These requests seek to obtain information that shows what costs or estimated costs were, or could have been, considered in setting/maintaining the $19.00 fee. Thus, the information sought is obviously relevant, and the Department has failed to provide any evidence that the time frame at issue somehow create a situation that is oppressive. See, e.g., West Pico Furniture Co. v. Super. Ct., 56 Cal. 2d 407,417 (1961) (no oppression where party responding to interrogatory claimed proper response would require searching records at 78 locations, but without explaining the amount of hours of work that such search would require). Plaintiffs are willing to accept a response that is limited to the time frame of January 1, 2004, to the present.

If Defendants are unaware of a report created January 1, 2004, or later that is substantively relevant to this request, Defendants must provide an unqualified admission. And if Defendants are not aware of such report, an unqualified denial must be provided.

Request No. 36

Defendants' failure to explain how this request is vague is strong evidence that the objection made on that ground is without merit. The question is simple: does the respondent believe it is permitted by law to set the DROS Fee at an amount that the respondent believes will provide total DROS Fee revenue equal to or greater than the total costs of the DROS Process and APPS? Failure to provide a straightforward answer violates the Discovery Act. Civ. Proc. Code§ 2033.220(a), (b).

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Request Nos. 42, 43 & 62-67

The Department's responses improperly limits the scope of response to the last five years, based on an objection that the request is unlimited as to time. This case is primarily about whether the DROS Fee being charged since 2005 ($19 .00) is justified. These requests seek to obtain information that shows what costs or estimated costs were, or could have been, considered in setting/maintaining the $19.00 fee. Thus, the information sought is obviously relevant, and the Department has failed to provide any evidence that the time frame at issue somehow create a situation that is oppressive. See, e.g., West Pico Furniture Co. v. Super. Ct., 56 Cal. 2d 407,417 (1961) (no oppression where party responding to interrogatory claimed proper response would require searching records at 78 locations, but without explaining the amount of hours of work that such search would require). Plaintiffs are willing to accept responses that are limited to the time frame of January 1, 2004, to the present, but that response must be either an unqualified admission or unqualified denial.

Request Nos. 44-61, 83-86, 88 & 89

Defendants' objections appear to be nothing more than boilerplate, and Defendants should provide a clear explanation of how each is applicable if Defendant intends to rely on them. Without such explanation, Plaintiffs are not required to speculate as to all of the reasons why such objections might be meritless. For example, Defendants claim that, to respond to this request, it must "reference information not in the possession, custody, and control of defendants." The request, however, concerns whether or not a specific type of request has been made to DOJ. As the knowledge of what requests DOJ has received is undeniably in Defendants possession, the objection makes no sense. To the extent Defendants are objecting to these requests based on a claim that responding would require reference to a section of California's statutory code, Plaintiffs are aware ofno legal authority for such claim. It is unreasonable to state these requests are objectionable because they do not include the text of a referred to statute (though Plaintiffs will stipulate to the inclusion of such text if that will resolve Defendants' objection). And in any event, the prohibition Defendants appear to rely on (Code of Civil Procedure section 2033.060(d)'s instruction that "Each request for admission shall be full and complete in and of itself'') appears to be a prohibition on prefaces or instructions, not referring to code sections. 2

Defendants responses are evasive. Further responses are required. Civ. Proc. Code § 2030 .220( a-c ).

Request No. 68 & 81

The objection is evasive, and Plaintiffs have no concern about bringing this matter before a judge. All of the objections incorporated into this objection appear to tum on the fact that these requests refer to, but do not incorporate the text of, Penal Code section 28225( c). It is unreasonable to state these requests are objectionable because they do not include the text of a referred to statute (though Plaintiffs will stipulate to the inclusion of such text if that will resolve Defendants' objection).

2 Code of Civil Procedure section 203 3. 060( d) states, in full, "Each request for admission shall be full and complete in and of itself. No preface or instruction shall be included with a set of admission requests unless it has been approved under Chapter 17 (commencing with Section 2033.710)." 339 I 80 EAsT OCEAN BOULEVARD • SUITE 200 • LONG BEACH • CALIFORNIA • 90802 Ti=-1 • c::;R::>-::> I R-.d.d.d.d • F°L>Y• c::;R::>-::> I R-.d.d.dF; • WWW Mir.I-Ii=-! 1 .t>wv,=-.,c; r.n1v1 Mr. Anthony R. Hald October 17, 2014 Page 10 of 16

And in any event, the prohibition Defendants appear to rely on (Code of Civil Procedure section 2033.060(d)'s instruction that "Each request for admission shall be full and complete in and of itself' appears to be a prohibition on prefaces or instructions, not referring to code sections. Further responses should be provided.

Request Nos. 79 & 82

Plaintiffs are confident the term "specific cost data" is not vague nor ambiguous, it refers to numerical representation of particular expenditures. Accordingly, the response given is evasive. That is, the request at issue did not ask Defendants to admit that a document provides an explanation or evaluation as to why a $19.00 DROS fee is appropriate (which are the responses given), rather, Defendants were asked to admit that a document utilizing specific cost data was created to provide an explanation as to why a $19.00 DROS FEE was appropriate. The term "specific cost data" is simply not so ambiguous that it cannot be given a reasonable interpretation and thus be understood. If Defendants truly did not understand what the term was intended to mean, they should have made a good faith effort to interpret it and respond accordingly. Further responses are required. Civ. Proc. Code§ 2033.220(a), (b).

Request No. 80

Defendants' response is contradictory: Defendants make privilege (attorney-client, attorney work product doctrine) claims, yet also state that "the Department of Justice considered a variety of issues and made certain determinations in connection with the proposal in 2010 to lower the DROS fee, as reflected in the relevant rulemakingfile[.J" (Emphasis added). If the consideration and determinations were actually reflected in the relevant file, the privilege claims are waived; and if these matters were not reflected in the relevant file, than Defendants are providing an evasive answer that admits something that is not responsive to the request made. Again, the response provided does not match the request, which seeks a response concerning whether a "review of the revenues into and expenditures out the DROS SPECIAL ACCOUNT" occurred, not (as Defendants responded) "the Department of Justice considered a variety of issues and made certain determinations in connection[.]" The response is evasive and a further response, be it an unequivocal admission, denial, or privilege objection is required. Civ. Proc. Code§ 2033.220(a), (b).

Request Nos. 113 & 114

The requests at issue are plainly relevant; they seek to confirm that DROS Fees, and/or funds from the DROS Special Account, were spent on the post-incident investigation of the high-profile deaths attributed to Shareef Allman. Whether or not the DOJ spends DROS Fee money directly or via employee time investigating matters outside the bounds of the DROS Process or APPS is patently relevant to the claims in this case. Because the incident was high-profile, Plaintiffs suspect there is a higher likelihood of memories being more clear and records being more specific, as compared to less publicized matters.

As to the official information, law enforcement, executive privilege, attorney-client, and work product privilege claims, they all fail because the source of a particular DOJ employee's salary, or the particular source of funding for a task known to have been performed, are hard facts that are already in 340 I 80 EAST OCEAN BOULEVARD • SUITE 200 • LONG BEACH • CALIFORNIA • 90802 Tc-1 · c:::;,,:::;::, .. ::, I ,=::;.-..d.Ll.Ll.£1. • J:°Av• c::;.,::::;.::, ... ::::, I ,:=; ... ..t1...t1L1=;. • \A/\A/\AJ •••u,-..1 .. u::·1 1 A\AJvc:-cc:: .-1""'\u Mr. Anthony R. Hald October 17, 2014 Page 11 of16 the public sphere, at least generally. Indeed, if Defendants rely so heavily on privilege claims that Plaintiffs cannot determine what Defendants actually use DROS Fee funds for on a day-to-day basis, Plaintiffs are going to be able to make a strong showing that their concerns about lack of transparency (vis-a-vis the use of DROS Fee funds) are justified.

If Defendants desire an objection-by-objection discussion as to their responses to Request Nos. 113 and 114, we can oblige during the anticipated telephone conference. Otherwise, proper responses ( e.g., admissions, denials, or statements and explanations concerning an inability to respond) are now required.

(DOJ) Defendants' Responses to Plaintiffs' Form Interrogatories, Set One

Interrogatory No. 15.1

Defendants' boilerplate objections are vague and need not be responded to because of their lack of specificity. Further, regarding Defendants' privilege objections raised in the context of an interrogatory seeking the basis for the affirmative defenses pled by Defendants, Defendants should be aware that their ability to effectively offer evidence regarding affirmative defenses may be hampered or even precluded if Defendants chose to rely on privileges and not substantively respond to this interrogatory. See, e.g., A & M Records v. Heilman, 75 Cal. App. 3d 554, 566-67 (1977).

Regarding Defendants' boilerplate "form" objections, the interrogatory at issue is a form interrogatory, so "form" objections are unlikely to be sustained. Rylaarsdam, et al., California Practice Guide: Civil Procedure Before Trial§ 8:933 (The Rutter Group 2014).

As to Defendants' objection that it would be "unfair to expect defendants to respond to Form Interrogatory 15.1 because Plaintiffs did not file a verification previously, that objection is at least partially ineffective, as the non-petition portion of the Complaint/Petition did not need to be verified, and the factual underpinnings of the Complaint are basically the same as those that apply vis-a-vis the Petition. Regardless, the failure to include a verification was an oversight, and Plaintiffs intend to file an errata or amended pleading (depending on the preference of the Court) to correct the error, assuming Defendants are willing to stipulate to leave being granted for that purpose. 3

Unless Defendants intend to oppose leave to add a verification that was unintentionally omitted, the objection based on the non-filing of a verification will be moot. Therefore, a further response should be provided. Civ. Proc. Code§ 2030.0l0(a), (b).

Interrogatory No. 17.1 (Re: Request for Admission Nos. 12, 14, 15, 17-19, 21-26, 33, 36, 41- 68, 79-86. 88, 89, 101, 113 & 114)

To the extent Defendants provide a new denial, or an expanded denial, to one of the requests for

3 Because Defendants waived any objection to the lack of verification by filing an answer and not a motion to strike, Plaintiffs do not see any grounds upon which Defendants could legitimately object to the proposed correction. Perlman v. Mun. Ct., 99 Cal. App. 3d 568,574 (1979). 341 I 80 EAST OCEAN BOULEVARD • SUITE 200 • LONG BEACH • CALIFORNIA • 90802 Mr. Anthony R. Hald October 17, 2014 Page 12 of 16 admissions listed in the header above, Defendants' response to interrogatory No. 17.1 should be supplemented accordingly.

Interrogatory No. 17.1 (Re: Request for Admission Nos. 42 & 43)

The requests for admission at issue asks Defendants to admit that CAL DOJ is not aware of the specific amount spent, in any given year, on certain cost categories utilized in Penal Code section 28225. Defendants responded "Denied with respect to the last five years." In support of a (partial) denial, Defendants' response to Form Interrogatory No. 17.1 states, in relevant part:

The Bureau of Firearms is aware of the amount of money necessary to fund its program costs and meet its statutory obligations. The costs needed to fund the Bureau's programs (both regulatory and enforcement) are publicly available and are contained within the Governor's annual budget.

This response is evasive. The relevant form interrogatory instruction requires the respondent to "state all facts upon which you base your response[,] i.e., denial. Here, however, the facts stated do not support the denial. Pursuant to the denial, Defendants are claiming that CAL DOJ is aware of the specific amount it spent in a given year on each specific cost category. The form interrogatory response, however, cannot support that denial, as the form interrogatory response refers to only the Bureau of Firearms' general knowledge of "the amount of money necessary to fund its program costs and meet its statutory obligations." The substantive issue here is clearly specific classes of cost that are paid out of the DROS Special Account, not whether the respondent knows the total amount to fund all of its programs and statutory obligations. Those are two very different issues.

In addition, it is unclear why Defendants state "[t]he costs needed to fund the Bureau's programs (both regulatory and enforcement) are publicly available and are contained within the Governor's annual budget." Defendants do not make an objection that the information sought is equally available to the propounding party, so that cannot be the explanation for this sentence. Further, the sentence is unclear in that "costs" do not "fund" anything; this use of the word "costs" may be a typographical error (perhaps the intended word was "money"), and Plaintiffs assume as much. Regardless, it seems Defendants are trying to claim the very specific information sought by this portion of Form Interrogatory is publically available in annual budget documents. Plaintiffs' counsel has reviewed the relevant budget documents, and is comfortable representing to a reviewing court that specific information at issue is not expressly stated (and apparently not stated at all) in the cited budgetary documents.

Finally, to the extent Defendants contend the interrogatory response segment at issue was not meant to be a general statement, but instead a statement summarizing that the Bureau of Firearms knows "the [specific] amount of money necessary to fund [each of] its program costs and meet [each of] its statutory obligations[,]" such response is evasive, as it is narrow cost categories (DROS Special Account-related cost categories, to be precise) referred to in the relevant requests that are relevant to this lawsuit.

If Defendants are going to continue to assert that a denial is a proper response to Request for Admission Nos. 42 and 43, Defendants' response to Form Interrogatory 17.1 must be supplemented 342 I 80 EAST OCEAN BOULEVARD • SUITE 200 • LONG BEACH • CALIFORNIA • 90802 Mr. AnthonyR. Hald October 17, 2014 Page 13 of16 with a good faith identification of the specific facts that support such a denials. Civ. Proc. Code§ 2030.0l0(a), (b).

Interrogatory No. 17.1 (Re: Request for Admission Nos. 62 & 64)

The requests for admission at issue asks Defendants to admit that CAL DOJ is not aware of the specific amount spent, in any given year, on certain cost categories utilized in Penal Code section 28225. Defendants responded "Denied with respect to the last five years." In support of a (partial) denial, Defendants' response to Form Interrogatory No. 17 .1 states, in relevant part:

The Bureau of Firearms is aware of the amount of money necessary to fund its program costs and meet its statutory obligations. The costs needed to fund the Bureau's programs (both regulatory and enforcement) are publicly available and are contained within the Governor's annual budget.

This response is evasive. The relevant form interrogatory instruction requires the respondent to "state all facts upon which you base your response[,] i.e., denial. Here, however, the facts stated do not support the denial. Pursuant to the denial, Defendants are claiming that CAL DOJ is aware of the specific amount it spent in a given year on each specific cost category. The form interrogatory response, however, cannot support that denial, as the form interrogatory response refers to only the Bureau of Firearms' general knowledge of "the amount of money necessary to fund its program costs and meet its statutory obligations." The substantive issue here is clearly specific classes of cost that are paid out of the DROS Special Account, not whether the respondent knows the total amount to fund all of its programs and statutory obligations. Those are two very different issues.

In addition, it is unclear why Defendants state "[t]he costs needed to fund the Bureau's programs (both regulatory and enforcement) are publicly available and are contained within the Governor's annual budget." Defendants do not make an objection that the information sought is equally available to the propounding party, so that cannot be the explanation for this sentence. Further, the sentence is unclear in that "costs" do not "fund" anything; this use of the word "costs" may be a typographical error (perhaps the intended word was "money"), and Plaintiffs assume as much. Regardless, it seems Defendants are trying to claim the very specific information sought by this portion of Form Interrogatory is publically available in annual budget documents. Plaintiffs' counsel has reviewed the relevant budget documents, and is comfortable representing to a reviewing court that specific information at issue is not expressly stated (and apparently not stated at all) in the cited budgetary documents.

Finally, to the extent Defendants contend the interrogatory response segment at issue was not meant to be a general statement, but instead a statement summarizing that the Bureau of Firearms knows "the [specific] amount of money necessary to fund [each of] its program costs and meet [each of] its statutory obligations[,]" such response is evasive, as it is narrow cost categories (DROS Special Account-related cost categories, to be precise) referred to in the relevant requests that are relevant to this lawsuit.

If Defendants are going to continue to assert that a denial is a proper response to Request for Admission Nos. 62 and 64, Defendants' response to Form Interrogatory 17.1 must be supplemented 343 I 80 EAST OCEAN BOULEVARD • SUITE 200 • LONG BEACH • CALIFORNIA • 90802 Ti::-1 · c:;R::>-::> I R-4444 • FA)(• !';F;;::>-;::> I A-4445 • WWW.MlCHELLAWYERS.COM Mr. Anthony R. Hald October 17, 2014 Page 14 of 16 with a good faith identification of the specific facts that support such a denials. Civ. Proc. Code§ 2030.0l0(a), (b).

Interrogatory No. 17.1 (Re: Reguest for Admission Nos. 63 & 65)

The requests for admission at issue asks Defendants to admit that CAL DOJ is not aware of a specific estimate being made, in any given year, on certain cost categories utilized in Penal Code section 28225. Defendants responded "Denied with respect to the last five years." In support of a (partial) denial, Defendants' response to Form Interrogatory No. 17.1 states, in relevant part:

The Bureau of Firearms is aware of the amount of money necessary to fund its program costs and meet its statutory obligations. The costs needed to fund the Bureau's programs (both regulatory and enforcement) are publicly available and are contained within the Governor's annual budget.

This response is evasive. The relevant form interrogatory instruction requires the respondent to "state all facts upon which you base your response[,] i.e., denial. Here, however, the facts stated do not support the denial. Pursuant to the denial, Defendants are claiming that CAL DOJ is aware of specific estimates that were made regarding each specific cost category at issue. The form interrogatory response, however, cannot support that denial, as the form interrogatory response refers to only the Bureau of Firearms' general knowledge of "the amount of money necessary to fund its program costs and meet its statutory obligations." The substantive issue here is clearly specific classes of cost that are paid out of the DROS Special Account, not whether the respondent knows the total amount to fund all of its programs and statutory obligations. Those are two very different issues.

In addition, it is unclear why Defendants state "[t]he costs needed to fund the Bureau's programs (both regulatory and enforcement) are publicly available and are contained within the Governor's annual budget." Defendants do not make an objection that the information sought is equally available to the propounding party, so that cannot be the explanation for this sentence. Further, the sentence is unclear in that "costs" do not "fund" anything; this use of the word "costs" may be a typographical error (perhaps the intended word was "money"), and Plaintiffs assume as much. Regardless, it seems Defendants ate trying to claim the very specific information sought by this portion of Form Interrogatory is publically available in annual budget documents. Plaintiffs' counsel has reviewed the relevant budget documents, and is comfortable representing to a reviewing court that the specific information at issue is not expressly stated ( and apparently not stated at all) in the cited budgetary documents.

Finally, to the extent Defendants contend the interrogatory response segment at issue was not meant to be a general statement, but instead a statement summarizing that the Bureau of Firearms knows "the [specific] amount of money necessary to fund [each of] its program costs and meet [each of] its statutory obligations[,]" such a response is evasive, as it is narrow cost categories (DROS Special Account-related cost categories, to be precise) referred to in the relevant requests that are relevant to this lawsuit.

If Defendants are going to continue to assert that a denial is a proper response to Request for Admission Nos. 63 and 65, Defendants' response to Form Interrogatory 17.1 must be supplemented 344 I 80 EAST OCEAN BOULEVARD • SUITE 200 • LONG BEACH • CALIFORNIA • 90802 Tr=-1 • "-f'\:;:>.:;:, I F\•4444 • FA')(• !,E';:;:>-:;:> I f'l-444!, • WWW.MICHEI..LAWYERS.COM Mr. Anthony R. Hald October 17, 2014 Page 15 of 16

with a good faith identification of the specific facts that support such a denials. Civ. Proc. Code § 2030.0l0(a), (b).

Interrogatory No. 17.1 (Re: Request for Admission No. 66)

The requests for admission at issue asks Defendants to admit that CAL DOJ is not aware of the existence of a specific list. In support of a (partial) denial, Defendants' response to Form Interrogatory No. 17.1 states, in relevant part:

The Bureau of Firearms is aware of the amount of money necessary to fund its program costs and meet its statutory obligations. The costs needed to fund the Bureau's programs (both regulatory and enforcement) are publicly available and are contained within the Governor's annual budget.

Defendants have no additional documents to identify other than the documents identified in connection with this case and the related federal case, Bauer v. Harris, Case No. 1: 11-cv-1440-LJO-MJS (E.D. Cal.) Any request for documents can be directed to counsel, whose contact information is above.

This response is evasive. For Defendants to assert that a denial is a proper response to Request for Admission No. 66, that necessarily means the list mentioned in Request for Admission No. 66 is in Defendants' possession. Defendants' response to Form Interrogatory 17.1 must be supplemented with a good faith identification of the list, or the production of a copy of the list. Civ. Proc. Code § 2030.0IO(a), (b).

Interrogatory No. 17.1 (Re: Request for Admission No. 67)

The requests for admission at issue asks Defendants to admit that CAL DOJ is not aware of the existence of specific protocol for classifying costs pursuant to Penal Code section 28225. In support of a (partial) denial, Defendants' response to Form Interrogatory No. 17 .1 states, in relevant part:

The Bureau of Firearms is aware of the amount of money necessary to fund its program costs and meet its statutory obligations. The costs needed to fund the Bureau's programs (both regulatory and enforcement) are publicly available and are contained within the Governor's annual budget.

Defendants have no additional documents to identify other than the documents identified in connection with this case and the related federal case, Bauer v. Harris, Case No. l:11-cv-1440-LJO-MJS (E.D. Cal.) Any request for documents can be directed to counsel, whose contact information is above.

345 I 80 EAST OCEAN BOULEVARD • SUITE 200 • LONG BEACH • CALIFORNIA • 90802 Tc-1 • ,::;,:::::,.::, I F:-LI.LI.LI.LI. • i="AY• t=;F:::>-::> I F:-LI.LI.LI.F:; • WWW "'41~1-1<='1 I AWV<='l'>C:: ~nM Mr. Anthony R. Hald October 17, 2014 Page 16 of 16

This response is evasive. For Defendants to assert that a denial is a proper response to Request for Admission No. 67, that necessarily mean the protocol mentioned in Request for Admission No. 67 exists. Defendants' response to Form Interrogatory 17.1 must be supplemented with a good faith identification of the protocol, or the production of a copy of the protocol if it is recorded as a document. Civ. Proc. Code§ 2030.0lO(a), (b).

Mic el & Associates, P.C. rott72:

346 I 80 EAST OCEAN BOULEVARD • SUITE 200 • LONG BEACH • CALIFORNIA • 90802 TEL: 562-2 I 6-4444 • FAX: 562-2 I 6-4445 • WWW.MICHELLAWYERS.COM Exhibit 2

347 KAMALA D. HARRIS State of California Attorney General DEPARTMENT OF JUSTICE 1300 I STREET, SUITE 125 P.O. BOX 944255 SACRAMENTO, CA 94244-2550

Public: (916) 445-9555 Telephone: (916) 322-9041 Facsimile: (916) 324-8835 E-Mail: [email protected]

December 4, 2014

Scott Franklin Michel & Associates, P.C. 180 E. Ocean Boulevard, Suite 200 Long Beach, CA 90802

RE: Gentry v. Harris Superior Court of California, County of Sacramento, Case No. 34-2013-80001667

Dear Mr. Franklin:

This letter responds to plaintiffs' correspondence dated October 17, 2014, refarding the discovery requests served by plaintiffs, and defendants' responses to those requests. It also follows up on our subsequent telephone conversation regarding that discovery.

As an initial matter, plaintiffs have asked that defendants more specifically identify any documents being withheld based on a privilege and provide a privilege log. Defendants agree to that request and will provide a privilege log.

[In their letter, plaintiffs have also expressed a concern suggesting that defendants have failed to produce any "evidence of how the DROS Fee was set at $19.00." (Oct. 17, 2014 letter at p. 1.) Defendants have produced such evidence. For example, defendants have produced the relevant rulemaking file from 2004, when the fee at issue was raised from $14.00 to $19.00. Also, in the privilege log defendants will identify the handful of documents withheld based on a claim of privilege. Thus, there is no basis for the broad motion in limine contemplated in plaintiffs' letter;J

1 To date, defendants have responded to the following discovery requests served by plaintiffs:

1. Special Interrogatories (as to the Attorney General and Chief of the Bureau of Firearms ("DOJ")); 2. Form Interrogatories (as to DOJ); 3. Request for Admissions(as to DOJ); 4. Request for Production of Documents (as to DOJ); 5. Special Interrogatories (as to the State Controller's Office ("SCO"); and 6. Request for Production of Documents (as to SCO).

348 December 4, 2014 Page2

Each of the remaining items addressed in plaintiffs' letter and discussed during our telephone conversation is addressed below.

(DOJ) Defendants' Responses to Plaintiffs' Request for Production o(Documents, Set One

Request Nos. 1, 2, 3 & 5

Plaintiffs have asked that defendants produce documents responsive to these requests for the period covering Fiscal Year ("FY") 2003/04 to FY 2013/14. Defendants agree to that request. Accordingly, in further response to Request Nos. 1, 2, 3 & 5, defendants agree to produce the relevant budget documents for FY 2003/04 through FY 2006/07, to the extent the information still exists. As you likely recall, the documents for FY 2007/08 through FY 2013/14 have already been produced, either earlier in this action or in Bauer v. Harris, United States District Court for the Eastern District of California, Case No. 1:11-cv-1440-LJO-MJS.

With respect to the budget documents, please know that they reflect a substantial amount of relevant financial information. In sum, for each fiscal year the documents identify every DOJ program (including but not limited to the DROS and APPS programs) funded by monies from the DROS Special Fund, the Firearms Safety and Enforcement Special Fund, and the Firearms Safety Account Special Fund. For each of those programs, defendants have also detailed the relevant appropriations by the Legislature and DOJ's actual expenditures on those programs by year. Defendants have produced additional reports breaking down those annual expenditures by line item.

Finally, while defendants agree to produce the additional budget documents, they are also continuing to search for still other responsive documents based on the expanded period of time the parties have now agreed upon, a period that spans more than ten years. Defendants are completing that search and will produce the existing responsive documents that fall within the relevant time frame.

Request Nos. 7, 8, 17, 18, 32, 33 & 38

Plaintiffs have asked that defendants respond to these requests for the period going back to January 1, 2004. Defendants agree to do so with respect to Request Nos. 7, 8, 17, 18, 32, and 33. By its own terms, though, Request No. 38 is limited to "testimony given after January 2, 2011." So defendants do not believe any :fµrther response to Request No. 38 is needed. Please let me know if you disagree.

With respect to Request Nos. 7, 8, 18, 32 & 33, and after a diligent search and reasonable inquiry, defendants have not located any responsive documents dated January 1, 2004 or after.

With respect to Request No. 17, attached to this letter as Exhibit A are additional press releases dated January 1, 2004 or after. Please be aware that some of these press releases do not directly reference "APPS"-which Request No. 17 focuses on-but out of an abundance of

349 December 4, 2014 Page 3 caution defendants have produced any press release relating to firearms in general during the relevant period.

Request Nos. II, 12. 13 & 14

Regarding these requests, and in response to plaintiffs' request, defendants clarify that documents concerning the term "CONTACTS" as defined by plaintiffs in their request do not exist. This is why in their original response defendants provided the statistics for the number of APPS "investigations" per year since 2007 and the number of firearms seized for each of those years.

Request Nos. 21 & 22

In response to plaintiffs' request that defendants respond to these items for the period 2004 to the present, defendants agree to produce the Budget Change Proposals ("BCPs") approved for FY 2004/05 through FY 2009/10. The BCPs for FY 2010/11 and beyond have already been produced. Also, please be aware that defendants are not withholding any approved BCPs based on any claim of privilege.

Request Nos. 25 & 30

Regarding Request No. 25, and in response to plaintiffs' request, defendants clarify that other than what is in the 2010 rulemaking file already produced, defendants are not aware of any "statement to a member of the public as to why the 2010 rulemaking was abandoned," as stated in plaintiffs' October 17 letter.

Regarding Request No. 30, please be aware that a transcript of comments made at the hearing of September 15, 2010, referred to in plaintiffs' letter is in the 2010 rulemaking file already produced. Defendants have also located an audio/video recording of that hearing on compact disc. Although that recording may be duplicative of the transcript, defendants have made a copy and a compact disc is enclosed with the copy of this letter arriving by regular mail.

Request No. 29

In response to Request No. 29, defendants can confirm that defendants have no responsive documents. But please note that by its own terms the request excludes documents produced in Bauer v. Harris, and the 2004 rulemaking file was produced in that case.

(SCO) Defendants' Responses to Plaintiffs' Request for Production o(Documents, Set One

Request Nos. 5 & 6

For plaintiffs' clarification, and pursuant to your request, please know that SCO limited its production in response to these requests to documents for the period FY 2003/04 through FY 2013/14, although plaintiffs phrased the original requests in terms of "any document created after

350 December 4, 2014 Page 4

January 1, 2000." Based on plaintiffs' position with respect to the requests discussed above (i.e., plaintiffs' agreement to limit other discovery to the period 2004 and after), the SCO presumes this limitation is agreeable. If not, please let me know.

(SCO) Defendants' Responses to Plaintiffs' Special Interrogatories, Set One

Interrogatory Nos. 5, 6, & 7

To clarify the answers to these questions, SCO understands these iµterrogatories to ask for a list of disbursements made specifically for APPS, or law enforcement activity based on APPS. As such, the SCO can confirm that it is not in possession of the requested information. Nor does the SCO know if the information requested is in the possession of another state agency, although such information may be in the possession of the state agency responsible for carrying out the program(s) at issue.

(DOJ) Defendants' Responses to Plaintiffs' Requests for Admissions, Set One

As we discussed during our telephone conversation, defendants intend to file a motion for judgment on the pleadings to dispose of at least the first and second causes of action alleged in the Complaint For Declaratory and Injunctive Relief and Petition for Writ of Mandamus. If the Court grants that motion, the issues in this case will be significantly narrowed and many of the requests for admissions will be mooted. Thus, defendants propose deferring any further responses to the requests for admissions at this time.

This proposal will help conserve the resources of the parties and the Court. It is also reasonable in light of the sheer number and breadth of discovery requests plaintiffs have served and the responses defendants have already provided. With respect to the requests for admissions alone, plaintiffs served 117 requests-more than triple the number expressly authorized by the rules-and defendants have already admitted or denied the vast majority of those requests (i.e., more than 70 of them). Finally, plaintiffs will not suffer any prejudice under this proposal. A discovery cut-off date has yet to be set and defendants are ·willing to agree to extend plaintiffs' deadline to file a motion to compel further responses to the requests for admissions until after the Court rules on the motion for judgment on the pleadings.

Regarding our intended motion, we have contacted the Court regarding available hearing dates. At this time, the earliest available date is February 20, 2014, at 9:00 a.m. I propose that date. (Other dates currently available are March 27 and April 3, 10, or 24, each at 9:00 a.m.) Please let me know if February 20 is agreeable and I will file a notice of hearing to formally reserve the date.

351 December 4, 2014 Page 5

(DOJ) Defendants' Responses to Plaintiffs' Form Interrogatories, Set One

Request No. 15.1

Defendants objected to this interrogatory because, among other things, plaintiffs failed to verify their petition for writ of mandate as required by the rules. As defendants have explained, in the absence of the required verification it is unfair to expect defendants to respond to Form Interrogatory 15.1. After our telephone conversation, plaintiffs expressed an intention to correct this deficiency by filing an appropriate verification. But plaintiffs have yet to do so. Defendants are willing to reconsider their position on any further response to this interrogatory if and when plaintiffs file the required verification.

Request No. 17. l

Form Interrogatory 17.1 relates to the requests for admissions. Accordingly, consistent with our proposal regarding any further responses to those requests, we also propose deferring any further response to Form Interrogatory 17.1.

Thank you for continuing to meet and confer on these issues. As mentioned above, some additional materials are being produced with this letter. We hope to produce any additional responsive documents and the privilege log next week. In the meantime, please let me know whether plaintiffs agree with the proposal regarding any further responses to the requests for admissions. Also, please let me know about the hearing date.

Sincerely,

ANTHONY R. HAKL Deputy Attorney General

For KAMALA D. HARRIS Attorney General

SA2013113332 11618027.doc

352 Exhibit 3

353 Gentry, David, et al. v. Kamala Harris, et al. Superior Court of California, County of Sacramento, Case No. 34-2013-80001667

Defendants' Privilege Log- January 6, 2015

Document Author Recipient Document Date Applicable descri tion Privile es

1. 11-page Unknown, but Unknown, if May 28, 2004 Executive Budget Office the report states, any. Privilege. report (plus in relevant part, appendices) "[f]or more Official regarding DROS information ... Information fund. contact Robert Privilege. Sharp, Budget Office." Deliberative Process Privilege.

2. 3-page Unknown, but Unknown, if December 16, Executive Budget Office the report states, any. 2004 Privilege. draft report (plus in relevant part, partial "[f]or more Official appendices) information ... Information regarding DROS contact Robert Privilege. fund. Sharp, Budget Office." Deliberative Process Privilege.

3. 4-page Unknown, but Unknown, if January 19, Executive Budget Office the report states, any. 2005. Privilege. report (plus in relevant part, appendix) "[f]or more Official regarding DROS information ... Information fund contact Robert Privilege. Sharp, Budget Office." Deliberative Process Privilege.

354 4. 3-page draft David Harper Unknown, if September 2, Attorney-Client letter to any. The draft 2009. Privilege. Assemblyman letter is Jim Nielsen incomplete and Attorney Work from David unsigned. Product. Harper, Deputy Director of Executive Division of Privilege. Administrative Services. Official Information Privilege.

Deliberative Process Privilege.

5. 5-page legal Thomas M. Wil Cid, Chief December 23, Attorney-Client memorandum Patton, Deputy of Bureau of 2009 Privilege. titled "Potential Attorney Fireaims Amendment of General Attorney Work Regulations to Product. ReduceDROS Fee." Executive Privilege.

Official Information Privilege.

Deliberative Process Privilege.

2

355 6. 8-page Jessica R. File (i.e., a April 14, 2011 Attorney-Client memorandum Devencenzi, memo to the file) Privilege. titled "SB 819 Deputy Attorney (Leno): Armed General Attorney Work Prohibited Product. Persons Enforcement: Executive Attorney Privilege. General Sponsored Official Legislation" Information Privilege.

Deliberative Process Privilege.

7. I -page draft Unknown. Unknown, if Unknown, but Executive chart and typed any. the chart covers Privilege. notes titled fiscal years "Armed 2002-2003 Official Prohibited through 2005- Information History," with 2006. Privilege. three columns labeled "Fiscal Deliberative Year," "Dollar Process Privilege. Amount," and "What Happened."

8. I-page draft Unknown. Unknown, if Unknown, but Executive document of any. the chart Privilege. typed notes titled contains a "OROS Issue" reference to the Official and containing a future fiscal year Information series of bullet of2005-2006. Privilege. points. Deliberative Process Privilege.

3

356 9. 1-page draft Unknown. Unknown, if Unknown, but Executive document of any. the document Privilege. typed notes titled refers to fiscal "Armed year of 2010- Official Prohibited." The 2011. Information document Privilege. contains two written Deliberative paragraphs. Process Privilege.

10. 1-page draft Unknown. Unknown, if Unknown, but Executive document of any. the document Privilege. typed notes titled refers to fiscal "Division of years 2000-2001 Official Firearms" and through 2004- Information summarizing 2005. Privilege. "Allotments" for fiscal years Deliberative 2000-2001 Process Privilege. through 2004- 2005. ..

11. 2-page Unknown. Unknown, if Decem her 17, Attorney-Client document of any, but these 2004. Privilege. typed notes in appear to be outline form briefing notes to Attorney Work named "Sue and be delivered to Product. Jim Briefing" the Chief Deputy and specifically Attorney Executive referencing General and Privilege. litigation and Director of the potential Division of Official litigation Administrative Information Services. Privilege.

Deliberative Process Privilege.

4

357 12. I-page draft Unknown. Unknown, if Unknown. Executive document of any. Privilege. typed notes titled "DROS Official Transaction Information Contract with Privilege. Verizon" and discussing Deliberative contract history Process Privilege. and negotiations.

13. 2-page draft Unknown. Unknown, if Unknown, but Attorney Work of typed any. the document Product. document titled refers to fiscal "DOJ Hearing year 2005-2006. Executive Binder, FY Privilege. 2005-06, Dealer Record of Sale Official (DROS) Fee Information Increase." Privilege.

Deliberative Process Privilege.

14. 1-page Unknown. Unknown, if Unknown. Executive document of any. Privilege. typed notes titled "Firearms Issues Official for Conference Information Call" and Privilege. containing two bullet points Deliberative regarding Process Privilege. position vacancies and salaries

5

358 Exhibit 4

359 INITIAL STATEMENT OF REASONS

Specific purpose of the regulations

The purpose of these regulations is to adjust the Department of Justice (DOJ) fee for processing firearms purchase/transfer applications commonly referred to in statute as Dealer's Record of Sale (DROS). The proposed regulations lower the current $19 DROS fee to $14, commensurate with the actual cost of processing a DROS. The proposed regulations would also establish a process for POJ to administratively adjust the DROS fee.

Factual basis

DOJ is statutorily authorized to charge a fee to cover its costs for processing Dealer's Records of Sale (DROS). The fees are collected by firearms dealers, from firearm purchasers/transferees and are subsequently submitted to DOJ. ·

The current DROS fee was set back in November 2004 at $19, which at the time was believed to be sufficient to cover the cost of the program and maintained an acceptable level of reserve in the DROS account. The estimate of $19 was based on reviewing the totals from previous year's firearm sales and calculations of anticipated sales within the state. DOJ recently completed a review of the revenues into and expenditures out of the DROS account, and the total number of firearm sales between 2007 and present date. The analysis revealed that the projected gun sale amounts relied upon back in 2004 to set the DROS fee at $19, were much lower than the actual total of gun sales realized.

Over the past three fiscal years there has been a 30 percent increase in DROS volume. In fiscal year (FY) 06/07 DOJ processed 367,494 DROS compared to 479,772 DROS processed in FY 08/09. The "economy of scale" dictates that the processing cost per DROS decreases as the volume increases. Going back even further, a comparison between FY 03/04 and FY 08/09 reveals a 60 percent increase in DROS volume which demonstrates the extreme volatility in the firearms market and DROS processing costs. DROS volume is extremely difficult to predict and is driven by a variety of factors including civil unrest, natural disasters, crime rates, proposed legislation, and the economy. For example, the Los Angeles riots contributed to an increase in DROS volume to 559,608 in 1992 and a record level of 642,197 the following year. In· comparison, in calendar year 2003 the DROS volume dipped to an all-time low of 290,376.

In processing a DROS, DOJ must conduct a Basic Firearms Eligibility Check (BFEC) to ensure that subjects are not prohibited from owning/possessing firearms pursuant to Penal Code sections 12021 and 12021.1, Welfare and Institutions Code sections 8100 and 8103, and Title 18 of the United States Code, section 922, subdivision (t). Depending on various factors, a BFEC may be processed programmatically by the Consolidated Firearms Information System (CFIS) or it may require a more time consuming manual review which is conducted by BOF staff. T~e percentage of DROS that require a manual review has decreased slightly in recent years due to minor system/program enhanceme:r;its. Consequently, within the past three fiscal years, although the volume ofDROS transactions has increased, the average time spent on each DROS, and thus the processing cost, has decreased. Based on the increased level of gun sales, achieved savings in conducting firearms eligibility background checks, and the increases in the revenue reserves

Page 1 of2

AGRFP000048 360 within the DROS account, DOJ is proposing to reduce the DROS fee from $19 to $14. The proposed fee reduction will begin reducing the revenue level in the DROS account and more closely align the program's cost with its revenue source in the future.

Because of the aforementioned volatility in firearm sales and DROS volume from year to year, the process proposed by DOJ for the administrative adjustment of the DROS fee, would require the department to review its DROS revenues and DROS-related expenses at the end of each fiscal year to determine whether it is necessary to adjust the DROS fee. By November 1, 201 O and by November 1st each year thereafter, the department shall publish its determination on the DOJ public website. If the department determines it is necessary to administratively adjust the DROS fee, the department shall provide notice of the amount and date of the adjustment at least 30 days before the adjustment talces effect to all interested parties.

Technical, theoretical, and/or empirical study, report or documents

DOJ did not rely upon any technical, theoretical, or empirical studies, reports, or documents in proposing the adoption of the amended regulations.

Specific technologies and new equipment

These regulations do not mandate the use of specific technologies or new equipment.

Reasonable Alternatives to the Regulations and the Agency's Reasons for Rejecting Them

No other reasonable alternatives were presented to or considered by DOJ that would be either more effective in carrying out the purpose for which the action is proposed, or would be as effective and less burdensome.

Reasonable Alternatives to the Proposed Regulatory Action That Would Lessen Any Adverse Impact on Small Businesses and the Agency's Reasons for Rejecting Them

DOJ finds that the proposed regulations would not have an adverse impact on small businesses.

Evidence Supporting Finding of No Significant Adverse Economic Impact on Any Business

DOJ determined the proposed regulations will not have a significant adverse economic impact. On the contrary, the proposed regulations may have a positive economic impact on firearms dealers in the form of increased firearm sales due to the $5 decrease in the DROS fee.

Page 2 of2

AGRFP000049 361 Exhibit 5

362 LEGISLATIVE, JUDICIAL, AND EXECUTIVE LJE 1

0820 Department of Justice

The constitutional office of the Attorney General, as chief law officer of the state, has the responsibility to see that the laws of California are uniformly and adequately enforced. This responsibility is fulfilled through the diverse programs of the Department of Justice.

The Department of Justice is responsible for providing skillful and efficient legal services on behalf of the people of California. The Attorney General represents the people in all matters before the Appellate and Supreme Courts of California and the United States; serves as legal counsel to state officers, boards, commissioners and departments; represents the people in actions to protect the environment and to enforce consumer, antitrust, and civil laws; and assist district attorneys in the administration of justice. The Department provides oversight, enforcement, education and regulation of California's firearms/dangerous weapon laws; provides evaluation and analysis of physical evidence; regulates legal gambling activities in California; supports the telecommunications and data processing needs of the California criminal justice community; and pursues projects designed to protect the people of California from fraudulent, unfair, and illegal activities.

Since department programs drive the need for infrastructure investment, each department has a related capital outlay program to support this need. For the specifics on the Department of Justice's Capital Outlay Program see "Infrastructure Overview."

3-YR EXPENDITURES AND PERSONNEL YEARS

Personnel Years Ex~enditures 2010-11 2011-12 2012-13 2010-11* 2011-12* 2012-13* 11.01 Directorate and Administration 879.9 965.4 965.4 $81,940 $88,382 $91,329 11.02 Distributed Directorate and Administration -81,940 -88,382 -91,329 20 Legal Services 1,444.0 1,495.5 1,495.5 315,054 367,203 375,594 50 Law Enforcement 1,259.0 1,194.9 1,059.0 215,362 209,453 189,755 60 California Justice Information Services 981.6 1,133.4 1,133.4 136,121 155,142 158,029 95 Reimbursement for General Fund Legal Services Cost~ -60 000 TOTALS, POSITIONS AND EXPENDITURES (All Programs) 4,564.5 4,789.2 4,653.3 $666,537 $671,798 $723,378

---~~<,e,--~00¥ FUNDING 2010-11* 2011-12* 2012-13* 0001 General Fund $287,455 $168,633 $201,152 0012 Attorney General Antitrust Account 1,878 2,222 2,346 0017 Fingerprint Fees Account 55,576 67,508 68,840 0032 Firearm Safety Account 310 337 338 0044 Motor Vehicle Account, State Transportation Fund 22,756 24,383 24,898 0142 Department of Justice Sexual Habitual Offender Fund 2,043 2,187 2,290 0158 Travel Seller Fund 951 1,381 1,401 0214 Restitution Fund 5,191 5,210 5,215 0256 Sexual Predator Public Information Account 82 171 181 0367 Indian Gaming Special Distribution Fund 13,602 14,142 15,224 0378 False Claims Act Fund 9,320 10,803 11,821 0460 Dealers' Record of Sale Special Account 10,226 12,073 18,698 0566 Department of Justice Child Abuse Fund 321 367 377 0567 Gambling Control Fund 7,085 7,605 7,822 0569 Gambling Control Fines and Penalties Account 41 48 47 0641 Domestic Violence Restraining Order Reimbursement Fund 1,744 1,018 1,018 0890 Federal Trust Fund 29,066 33,948 34,412 0942 Special Deposit Fund 919 2,769 2,769 0995 Reimbursements 33,679 40,250 37,564 1008 Firearms Safety and Enforcement Special Fund 3,092 3,331 3,422 3016 Missing Persons DNA Data Base Fund 3,011 3,296 3,351 3053 Public Rights Law Enforcement Special Fund 452 5,818 5,797 3086 DNA Identification Fund 62,763 65,716 67,778 3087 Unfair Competition Law Fund 8,720 9,742 10,543 3088 Registry of Charitable Trusts Fund 2,605 2,881 2,947 9731 Legal Services Revolving Fund 101,436 182,916 191,481 363

* n,...11-- : ... 4,1...... --.. ...r- """'""""'""" ... " : .. ~-•--· o---- LJE 12 LEGISLATIVE, JUDICIAL, AND EXECUTIVE

0820 Department of Justice - Continued

1 STATE OPERATIONS 2010-11* 2011-12* 2012-13*

Unexpended balance, estimated savings --~-2=3~3 ------TOTALS, EXPENDITURES $13,602 $14,142 $15,224 0378 False Claims Act Fund APPROPRIATIONS 001 Budget Act appropriation $10,676 $10,889 $11,821 Allocation for employee compensation 12 52 Adjustment per Section 3.60 112 11 Adjustment per Section 3.90 -149 Adjustment per Section 3.91 -538 Chapter 11, Statutes of 2011, Rental Rate Reduction -29 011 Budget Act appropriation (Transfer to the General Fund) (20,000) 012 Budget Act appropriation (Loan to the General Fund) (15,700) Totals Available $10,233 $10,803 $11,821 Unexpended balance, estimated savings -913 TOTALS, EXPENDITURES $9,320 $10,803 $11,821 0460 Dealers' Record of Sale Special Account APPROPRIATIONS 001 Budget Act appropriation $11,182 $11,251 $18,670 Allocation for employee compensation 19 63 Adjustment per Section 3.60 149 24 Adjustment per Section 3.90 -158 Adjustment per Section 3.91 -700 Chapter 11, Statutes of 2011, Rental Rate Reduction -28 Revised expenditure authority per Provision 2 865 - 011 Budget Act appropriation (loan to General Fund) (11,500) [ b Totals Available $10,622 $12,045 $18,670 Unexpended balance, estimated savings -424 TOTALS, EXPENDITURES $10,198 $12,045 $18,670 0566 Department of Justice Child Abuse Fund APPROPRIATIONS 001 Budget Act appropriation $365 $377 $377 Allocation for employee compensation 2 Adjustment per Section 3.60 5 -6 Adjustment per Section 3.90 -6 Chapter 11, Statutes of 2011, Rental Rate Reduction -1 Totals Available $370 $367 $377 Unexpended balance, estimated savings -49 TOTALS, EXPENDITURES $321 $367 $377 0567 Gambling Control Fund APPROPRIATIONS 001 Budget Act appropriation $7,603 $7,706 $7,822 Allocation for employee compensation 15 32 Adjustment per Section 3.60 96 -29 Adjustment per Section 3.90 -104 Adjustment per Section 3.91 -422 Chapter 11, Statutes of 2011, Rental Rate Reduction -1 Totals Available $7,291 $7,605 $7,822 Unexpended balance, estimated savings -206 ---- TOTALS, EXPENDITURES $7,085 $7,605 $7,822 364 Exhibit 6

365 Finding of Emergency Penal Code Section 12076(£) provides the Department of Justice (DOJ) the statutory authority t~ charge $14 per Dealer Record of Sale (DROS) transaction to reimburse DOJ for costs specified in statute. This section also a:llows for adjustment of the fee at a rate not to exceed any increase in the California Consumer Price Index (CCPI) (See Figure 1).

Additionally, fees specified under Penal Code Sections 13511.5, 832.15, 12071 and 12054, and Business and Professions Code Section 7583.26 also need to be raised immediately· to cover the cost of meeting.these statutorily mandated programs. Revenue from these fees is deposited into the Dealer Record of Sale Special .Account. The DROS fee o;f $14 has not been raised since 1991. Despite the gradual decline in revenue and a steady increase in workload, DOJ has continued to.provide consistent and quality service to the public, law enforcement and firearms dealers through economies of scale. However, giyen the decrease in revenue discussed later, the DOJ is projecting to · run out of cash in the Dealer Record of Sale Special Account in the Spring of 2005, based on first quarter revenue and expenditure information;: Only an immediate fee increase can avert the Dealer Record of Sale Special Account from being exhausted in the Spring of 2005. · To avert a potential public safety emergency due to DROS funde·d programs either being shutdbwn or slowed down, it is imperative that these emergency regulations to increase the DROS fee be adopted immediately.

. AUTHORITY AND REFERENCE

These proposed emergenqy regulations amend section 948 .1 of Chapter 1 of Division 1 Attorney General, and adopt Chapter 1 of Division 5. Fireanns Regulations, arid the following new stctions: 4001,-4002; 4003, 4004, 4005 and 4006, to the California Code of Regulations. The Department of Justice adopts these regulations pursuant to: Penal Code (PC) sections 832.15(c); 12054(a); 12071(a)(5); 12076(f,ij); 13511.5; apdBusiness and Professions Code (B & PC) section 7583.26(a). These regulations are referenced in: PC sections 832·.15; 12054; 12071; 12071.1; 12072; 12076; 12078; 12083; 12084; 12086; 12289; 135tl .5; and Health and Safety Code section 12101; and B & PC section 7583.26. . .

Therefore, the Department of Justice hereby finds that an adoption on an e~ergency b~sis of Chapte~ 1 of Division 5 of Title 11 and amendment of Chapter 13 of Division 1 of Title 11 is necessary in order to preserve the public peace,. health and safety, and the general welfare. .The effective date of these emergency regulations is November 1, 2004. The specific facts showing the need for immediate action are:

AGRFP000391 366 DOJ's Firearms Divi,sion (FD) is authorized to conduct a Basic Firearms Eligibility . Check (BFEC) to insure that subjects ar~ not prohibited from owning/possessing fireanns pursuaritto Penal Code Sections 12021 and-.12021.1, Welfare and Institutions Code Sections 8100 and 8103, and Title 18 United States Code, Section 922(t) for. various firearms related applicant processes. These programs/processes include: o DROS Pistol Check o DROS Rifle or Shotgun o Multiple Handgun DROS purchase o Curio and Relic Firearms o Firearms Ownership o Operation of Law o New Resident Handgun Report o POST Certification o Peace Officer Candidates · o Security Guard Firearms Card (2-year) o Certificate of Eligibility o Carry Concealed Weapon

• These programs/processes, as approved by the Legislature, protect the public and law enforcement officers by ensuring that firearms purchased/obtained/possessed do not fall into the hands of criminals or other indiv_iduals deemed unsuitable to possess firearms due to their proclivity to misuse them to the harm of themselves or the general public. As an example in.2003, as a result of the current DROS checks in place, 1,774 rifles and 1,2?4 handguns purchases were prevented;from getting into the hands of convicted felons (1,298 felony denials), individuals with restraining orders and those with a mental illness. Specifically, the basis for denial included: o 345 individuals convicted on drug offenses; o 21 individuals convicted of a sex crime; o 90 individuals convicted of burglary; · o 22 individuals convicted of robbery; o 190 individual with restraining orders placed on them; o 299 individuals held under Welfare and Institutions Code Sections 5150, . 5250; 5260,5270.17 and 8103 (Danger to themselves or others-often those with suicide attempts in their past and/or a mental illness)

AGRFP000392 367 (

• A's referenced above, Penal Code Section 12076(f) provides the Department of Justice. (DOJ) the statutory authority for adjustment of th.e DROS fee at a rate not to exceed any increase in the CCPI. Figure 1 demonstrates what the fee would be if it is adjusted for the CCPI:

Figure 1.

0 'O - ::r O::, g.~ g.~ g. ~ ::s -· 0. n, Ill Q) ::, ::, ::, CO, a CDX cc (l) '°(l) '°(l) . 136.7 131.5 5.2 4.0 141.4 · 4.7 3.4 144.7 3.3 2.3 OROS Fee

1.3 149.1 2.5 1.7 152 2.9 1. OROS Fee 0.20 $ 15.61 $ 0.27 $ 15.87 $ 0.31 ~ 00 0 1:1 - 0 'O - g.~ ::r O::, g.~ . 00 ::r O::, g. ~ ., Q) 'iJ C: ..Q) J2 5; ::, -· C. :J -· a. ::, ::, - ::i 'fl ;=!, CD ::, cc ro cp ~ ~ tO' (l) X CD ;:!. CD ;:!. '°CD 3 2. 2.6 OROS Fee $ 0.32

OROS Fee

g_~ 00 ., 'iJ C: ::, cc -~ (l) ;:!. 184 5 · 2.8 188 4 2.2 OROS Fee $ 19.06 $ 0.53 $ 19.59 $ 0.43 $ 20.02

. • Although the. department is authorized under Penal Code Section 12076(f) to · adjus~ the D~OS fee by up to $20 due to the ris_e in the CCP{the de~artm~nt is adop~n_g, fee mcreas_es only up to a level'to cover actual costs as specified ill statute.:.J . ·

• For 13 years, the DOJ has been able to efficiently provide services mandated under California Penal Code Sections while maintaining the DROS fee at the $14 level. However, the DROS fund oyer the past seyeral years has experienced a dramatic decrease in revenue (Figure 2) due to a gradual decrease in the number of firearm purchases (Figure 3).

AGRFP000393 368 ( ( \

. Figure2

1999/00 2000/01 2001/02 2002/03 2003/04 OROS· $ 8,83'5 $ 8,084 $ 7,371 $ 6,907 $ 6,625 Revenue ., per Governor's Budget (In thousands)

Figure 3

FISCAL YEAR 1999/00 2000/01 2001/02 2002/03 2003/04

TOTAL RECEIVED (All Transactions) 470,754 365,717 359,110 335,898 · 300,638

• This reduction in volume of transactions has not meant a decrease in the workload handle_d by the Firearms Division. Workload per transaction has increased as a result of the addition of new state/federal firearm prohibition categories and watch . list partly resultant from September 11, 2001 terrorist attacks. Also, the amount of manual reviews needed to ensure a complete and competent analysis also increased as result of a boom in the number of applicant records maintained on file in the Departments criminal history system which often match/hit against an applicant BFEC inquiry. In FY 2000-01 ofthe 365,717 DROS transactions, . 275,568 required a full review (75%). That compares to FY 2003'.'04, where of the 300,638 DROS transactions, 297,363 required a full review (99%). As a result, although the volume of DROS transactions has decreased over time, the time spent on average per transaction has increased.

• Additionally, the number of Mental Health Report (Welfare and Institutions Code Sections 8103 and 8105) submitted to DOJ has increased dramatically. _In FY 1998-99, DOJ received 25,205 reports; in FY 2003-04 DOJ received 137,608. The department is required to process these reports within 24 hours ofreceipt to ensure that prohibited firearms purchases are intercepted. Also, to ensure firearms laws are enforced, the department began issuing reports to local district ' · attorneys offices on prohibited individuals who a~empted to purchase a firearm.

• Even in the face of decreasing revenue and increasing workload, ov~r the past several years the Firearms Division has reduced costs while maintaining existing service levels. In FY 2003-04, the Firearms Division reduced operating costs by $789,000 and in FY 2004-05, permanently reduced operating costs by $570,000.

Despite DOJ's efforts to reduce costs. and maintain the same level of service, the Dealer Record of Sale Special Account will run out of cash in the Spring of 2005. Reducing

AGRFP000394 369 I ( I I i l expenditures any further is not a viable option and will either 1) force the DOJ to " 1,, sigirifiqantly reduce DROS funded programs which could cause large backlogs in :I transactions and increase the chance for firearms to fall into the hands of convicted felons ' ·, and those with a mental illness; and would result in individuals not being able to purchase · or obtain firearms critically needed for employment and personal protection. The level of funding available would dictate the number of Basic· Firearms Eligibility Background Check. the department would be able to perform .. Absent a Basic Firearms Eligibility Background Check, these individuals would be unable to purchase or transfer firearms critical to their individual circumstances; or 2) shut down some statutorily mandated programs to ensure others remain operational. This alternative could force the department to focus its resources on continuing checks on firearms transactions, but shutting down other programs such as As·sault Weapons Registration or Dangerous Weapons Licensing. Either of these scenarios will likely occur without an immediate increase in the fees specified in this emergency filing to the detriment of the health, safety and welfare of California's citizens and law enforcement officers.

( \

AGRFP000395 370 1 PROOF OF SERVICE

2 STATE OF CALIFORNIA

3 COUNTY OF LOS ANGELES

4 I, Laura L. Quesada, am employed in the City of Long Beach, Los Angeles County, California. I am over the age eighteen (18) years and am not a party to the within action. My 5 business address is 180 East Ocean Blvd., Suite 200, Long Beach, California 90802.

6 On May 4, 2015, I served the foregoing document(s) described as

7 DECLARATION OF SCOTT M. FRANKLIN IN SUPPORT OF REQUEST FOR PRODUCTION OF WITHHELD DOCUMENTS VIA EXPEDITED DISPUTE 8 RESOLUTION PROCEDURE

9 on the interested parties in this action by placing [ ] the original 10 [X] a true and correct copy thereof enclosed in sealed envelope(s) addressed as follows: 11 Anthony Hald, Deputy Attorney General 12 1300 I Street, Suite 1101 Sacramento, CA 95814 13

14 _x_ (BY MAIL) As follows: I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under the practice it would be deposited with the 15 U.S. Postal Service on that same day with postage thereon fully prepaid at Long Beach, California, in the ordinary course of business. I am aware that on motion of the party 16 served, service is presumed invalid if postal cancellation date is more than one day after date of deposit for mailing an affidavit. 17 Executed on May 4, 2015, at Long Beach, California.

18 _x_ (VIA ELECTRONIC MAIL) As follows: I served a true and correct copy by electronic transmission. Said transmission was reported and completed without error. 19 Executed on May 4, 2015, at Long Beach, California.

20 (OVERNIGHT MAIL) As follows: I am "readily familiar" with the firm's practice of collection and processing correspondence for overnight delivery by UPS/FED-EX. Under 21 the practice it would be deposited with a facility regularly maintained by UPS/FED-EX for receipt on the same day in the ordinary course of business. Such envelope was sealed and 22 placed for collection and delivery by UPS/FED-EX with delivery fees paid or provided for in accordance. 23 Executed on May 4, 2015, at Long Beach, California.

24 _x_ (STATE) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 25 (FEDERAL) I declare that I::::.-="""--=:.c.:: 26 court at whose direction tt

27

28 371 4 DECL. OF SCOTT M. FRANKLIN ISO REQUEST FOR PROD. OF DOCS 1 KAMALA D. HARRIS Attorney General of California 2 STEPAN A. HA YTAYAN Supervising Deputy Attorney General 3 ANTHONY R. HAKL, State Bar No. 197335 Deputy Attorney General 4 1300 I Street, Suite 125 P.O. Box 944255 5 Sacramento, CA 94244-2550 Telephone: (916) 322-9041 6 Fax: (916) 324-8835 E-mail: [email protected] 7 Attorneys for Defendants and Respondents

8 SUPERIOR COURT OF THE STATE OF CALIFORNIA

9 COUNTY OF SACRAMENTO

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12 DAVID GENTRY, .JAMES PARKER, Case No. 34-2013-80001667 13 MARK MID LAM, .JAMES BASS, and CALGUNS SHOOTING SPORTS DEFENDANTS' BRIEF REGARDING IN 14 , ASSOCIATION, CAMERA DISCOVERY PROCEEDING

15 Plaintiffs and Petitioners, Date: None Time: None 16 v. Dept: 31 Judge: The Honorable Michael P. 17 Kenny KAMALA HARRIS, in Her Official Trial Date: None set 18 Capacity as Attorney General for the State Action Filed: October 16, 2013 of California; STEPHEN LINDLEY, in His 19 Official Capacity as Acting Chief for the California Department of .Justice, BETTY 20 T. YEE, in her official capacity as State Controller, and DOES 1-10, 21 Defendants and 22 Respondents.

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Defendants' Brief Regarding In Camera Discovery Proceeding (34-2013-80001667)372 1 TABLE OF CONTENTS

2 Page 3 Introduction ...... 1 Argument ...... 2 4 I. Each of the Documents Listed on Defendants' Privilege Log is Protected 5 from Disclosure Under the Deliberative Process Privilege ...... 2 A. Privilege log items 1, 2 & 3 ...... 2 6 B. Privilege log items 4 & 13 ...... 3 7 C. Privilege log item 7 ...... 4 8 D. Privilege log item 8 ...... :...... :·······"· 4 E. Privilege log items 9 & 10 ...... 5 9 F. Privilege log item 12 ...... 5 10 G. Privilege log item 14 ...... 6 11 Conclusion ...... 6

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Defendants' Brief Regarding In Camera Discovery Proceeding (34-2013-80001667)373 1 TABLE OF AUTHORITIES 2

3 CASES

4 Guilbert v. Regents of the Univ. of Cal. (1979) 93 Cal.App.3d 233 ...... 2 5 San Joaquin Local Agency Formation Common v. Superior Court 6 (2008) 162 Cal.App.4th 159 ...... 2 7

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28 ii Defendants' Brief Regarding In Camera Discovery Proceeding (34-2013-80001667)374 INTRODUCTION

2 Defendants Kamala :b. Harris, the Attorney General of California, and Stephen Lindley,

3 Chief of the Bureau of Firearms of the California Department of Justice, submit this brief

4 pursuant to the stipulation and proposed order filed in connection with the expedited dispute

5 resolution procedure regarding the discovery of certain privileged documents.

6 For the Court's reference, a copy of the relevant stipulation and proposed order is attached

7 as Exhibit A. Defendants have already lodged with Department 31 in a sealed envelope copies of

8 the relevant documents to be reviewed in camera.

9 As this Court is aware from the other motions that have been filed in this case, plaintiffs'

10 complaint challenges the California Department of Justice's (DOJ) expenditure of Dealer's

11 Record of Sale (DROS) fee revenues on California's Armed Prohibited Persons System (APPS)

12 program. The DROS fee is a $19 .00 firearms transaction fee, and APPS is a DOJ law

13 enforcement program aimed at recovering firearms from persons prohibited from possessing them

14 due to criminal behavior or mental illness.

15 At issue in this in camera proceeding are a variety of plaintiffs' requests for production of

16 documents regarding DOJ' s budget and expenditure decisions. However, and as explained

17 below, production of the documents submitted for the Court's in camera review would violate the

18 deliberative process privilege. A fundamental rule of governmental decision making is that an

19 alleged aggrieved party may not probe into how and why an agency reached a particular

20 determination or made a certain decision. What agency staff may have been thinking throughout

21 the process at issue is not subject to disclosure. Rather, an agency's action or decision stands or

22 falls on its own merits. Yet piercing the deliberative process is exactly what plaintiffs are trying

23 to do here. The Court should reject this attempt to violate the deliberative process privilege and

24 order that all of the documents listed on defendants' privilege log are protected from discovery.

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Defendants' Brief Regarding In Camera Discovery Proceeding (34~2013-80001667)375 1 ARGUMENT

2 I. EACH OF THE DOCUMENTS LISTED ON DEFENDANTS' PRIVILEGE LOG IS PROTECTED FROM DISCLOSURE UNDER THE DELIBERATIVE PROCESS PRIVILEGE. 3 4 "Under the deliberative process privilege, senior officials of all three branches of

5 government enjoy a qualified, limited privilege not to disclose or to be examined concerning not

6 only the mental processes by which a given decision was reached, but the substance of

7 conversations, discussions, debates, deliberations and like materials reflecting advice, opinions,

8 and recommendations by which government policy is processed and formulated. [Citation]."

9 (San Joaquin Local Agency Formation Common v. Superior Court (2008) 162 Cal.App.4th 159,

10 170.) "The privilege rests on the policy of protecting the decision making processes of

11 government agencies. [Citation]." (Ibid.) It prohibits discovery of both the agency's reasoning

12 and "what evidence the administrator relied upon in reaching a decision." (Guilbert v. Regents of

13 the Univ. of Cal. (1979) 93 Cal.App.3d 233, 246.)

14 "The key question in every case is whether the disclosure of materials would expose an

15 agency's decisionmaking process in such a way as to discourage candid discussion within the

16 agency and thereby undermine the agency's ability to perform its functions." (San Joaquin Local

17 Agency Formation Com 'n, supra, 162 Cal.App.4th at pp. 170-71.) Disclosure of the documents

18 at issue here necessarily will reveal "the substance of conversations, 9iscussions, debates,

19 deliberations and like materials" and will discourage candid discussion within DOJ. (Ibid.)

20 Below, defendants explain why each of the documents at issue should not be disclosed.

21 A. Privilege Log items 1, 2 & 3 22 The items numbered 1, 2, and 3 on defendants' privilege log are budget office reports.

23 (Deel. of Dave Harper in Supp. of Defs.' Brief Re In Camera Discovery Proceeding ("Harper

24 Deel.") ~ 2.) Each document is dated more than 10 years ago and was located on a secure

25 departmental computer hard drive housing a variety of historical documents. (Ibid.)

26 Each document is essentially an issue paper prepared by a DOJ budget analyst who is no

27 longer employed by the Department. (Harper Deel.~ 2.) And each is an internal report, one that

28 was most likely prepared for DOJ' s executive office in connection with the executive decision-

2 Defendants' Brief Regarding In Camera Discovery Proceeding (34-2013-80001667)376 1 making process regarding the DOI budget. (Ibid.) For example, the computer file name for one

2 of the reports (item 3 on the privilege log) includes the phrase "to Steve Coony," who was Chief

3 Deputy Attorney General at the time the report was prepared. (Ibid.) As the contents of the

4 report show, they identify one or more budget issues affecting DOI, contain detailed background

5 and analysis sections, offer a variety potential solutions, and make a series ofrecommendations to

6 departmental decision makers.

7 None of the reports appears to have been drafted for the public or otherwise released to the

8 public. Indeed, in places each of the reports refer to the internal, secure computer hard drive on

9 which the document is stored, a reference that would have no meaning to the public at large.

10 And appendices attached to the reports refer to personal information of employees, including

11 position numbers, classifications, employee names and job functions.

12 The budget reports are precisely the kind of documents that the deliberative process

13 privilege was intended to protect. Disclosure of the reports would chill the full and candid

14 assessment of departmental budget issues in general and similar issues affecting the Bureau of

15 Firearms in particular. Such an assessment necessarily depends on the honest consideration of a

16 variety of data and involves the open assessment of an array of options, all of which is intended to

17 support DOI' s executive office and its departmental decisionmaking. The deliberative process

18 privilege guards against just this type of discovery.

19 B. Privilege Log items 4 & 13 20 Item 4 on the privilege log is a draft letter to a state legislator from DOJ's Deputy Director

21 of Administration. (Harper Deel. 13.) The letter is obviously in draft form. It is not signed.

22 Nor is the addressee information complete. The author of the letter is still employed by DOI, and

23 he has been unable to locate any final, signed copy of the letter. (Ibid.) Nor can the employee

24 say for certain that he in fact signed and sent the letter, the draft of which is dated approximately

25 six years ago. (Ibid.) The letter indicates that it is in response to an earlier letter to DOI from the

26 relevant legislator. However, the draft letter is not a piece of correspondence subject to public

27 disclosure. 28 3 Defendants' Brief Regarding In Camera Discovery Proceeding (34-2013-80001667)377 1 Similarly, item 13 is a document titled "DOI Hearing Binder, FY 2005-06, Dealer Record

2 of Sale (DROS) Fee Increase." The file name of the document on the internal computer hard

3 drive on which it was found contains the phrase "Prior Prior Analyst's Work." (Harper Deel.

4 ~ 4.) The content of the document suggests that it was prepared for use at a legislative hearing,

5 most likely as notes to be used by a DOI employee to answer questions at the hearing. (Ibid.)

6 Such notes are akin to attorney notes or an outline prepared by counsel to be used to answer

7 questions at oral argument, not a written document intended for public disclosure. Indeed, it is

8 unknown whether the substance of the notes was even communicated at any hearing; it is possible

9 that the notes were never used.

10 The draft letter listed as item 4 reflect the internal mental processes of DOI staff as it

11 considered questions posed by an official from another branch of government and weighed

12 potential responses. The notes listed as item 13 similarly reflect internal mental processes. Thus,

13 the documents are protected by the deliberative process privilege.

14 C. Privilege log item 7 15 This item is a one-page draft chart reflecting a point-in-time fiscal analysis. (Harper Deel.

16 ~ 5.) It is difficult to draw any meaningful conclusions about this document given the lack of

17 context. In any event, it was also located on the computer hard drive referenced above and its file

18 name contains the phrase "Prior Prior Analyst's Work." (Ibid.) This description indicates that it

19 is ari internal (i.e., non-public) document prepared by a budget analyst who is no longer employed

20 by DOI. (Ibid.) These details, along with the general content of the document suggest that the

21 analyst prepared the document to support DOI as it considered how to proceed in connection with

22 certain funding issues. (Ibid.) The documents therefore reflect departmental mental processes

23 and are protected from disclosure.

24 D. Privilege log item 8 25 Item 8 on the privilege is similar to items 1, 2 and 3, discussed above. This document was

26 also located on the computer hard drive referenced above and its file name contains the phrases

27 "Prior Prior Analyst's Work," "Issue Paper," and "Issue-Bullets." (Harper Deel.~ 6.) 28 This description indicates that it is an internal document prepared by a budget analyst who is no 4 Defendants' Brief Regarding In Camera Discovery Proceeding (34-2013-80001667)378 1 longer employed by DOJ. (Ibid.) These details, along with the general content of the document

2 and the fact that it is written in layperson's terms (as opposed to budget or financial language),

3 also strongly suggest that the analyst prepared the document for DOJ' s executive office as an

4 executive summary or briefing document in support of the one of the above budget office reports.

5 (Ibid.) Thus, disclosure of the document would inappropriately reveal DOJ's mental processes in

6 violation of the deliberative process privilege.

7 E. Privilege log items 9 & 10 8 Similar to item 8, items 9 and 10 on the privilege log include, respectively, a short

9 description of the APPS program and a brief description of the Division ofFir~arms (as the

10 Bureau of Firearms was formerly known) and various budget "allotments." The content and

11 nature of these documents suggest that they were to be incorporated into a larger budget analysis,

12 such as one of the budget reports discussed above. (Harper Deel. ,r 7.) The text in these

13 documents is very brief. But they reflect the mental impressions of a departmental analyst

14 working to support the executive office as it deliberated over certain budget decisions.

15 F. Privilege log item 12 16 This item consists of a series of typed notes with the heading "DROS Transaction Contract

17 with Verizon." It was located on an internal hard drive in a file named, in relevant part, "Verizon 18 Contract." (Harper Deel. ,r 8.) Although the notes are brief, and apparently incomplete, they

19 discuss DOJ's DROS transaction contract with Verizon, the negotiation of that contract, and some

20 of the costs associated with that contract. The notes were most likely drafted by a budget analyst

21 who is no longer employed by DOJ. (Ibid.) These details indicate that the notes reflect mental

22 impressions of the department in connection with a business matter. Indeed, their relevance to

23 this case is not at all clear; defendants have identified them out of an abundance of caution due to

24 arguable references in the notes to one of the costs associated with DROS transactions. In any

25 event, disclosure of the notes would threaten DOJ's ability to effectively negotiate future

26 contracts in the best interests of the public. They are therefore protected by the deliberative

27 process privilege.

28 5 Defendants' Brief Regarding In Camera Discovery Proceeding (34-2013-80001667)379 1 G. Privilege log item 14 2 Finally, item 14 on the privilege log is a document consisting of three lines of text under the

3 heading "Firearms Issues for Conference Call." The notes address position salaries and

4 vacancies, although the notes are very brief. The notes were most likely prepared by a budget

5 analyst no longer employed by DOJ. (Harper Deel. i19.) The referenced conference call was

6 most likely a conference call between staff members of the DOJ budget office and executive

7 office. (Ibid.) Like item 12 on the privilege log, the relevance of these notes is uncertain;

8 defendants have identified them out of an abundance of caution. But in any event, the notes

9 reflect the mental impressions of a departmental analyst working to support DOJ's executive

1o office as it deliberated over certain budget decisions. They should not be disclosed.

11 CONCLUSION 12 For the reasons set forth above, the Court should deny plaintiffs' request for the production

13 of privileged documents and order that all of the documents listed on defendants' privilege log are

14 protected from discovery.

15 Dated: May 4, 2015 Respectfully Submitted,

16 KAMALA D. HARRIS Attorney General of California 17 STEPAN A. H YTAYAN Supervis· g eputy Attorney General 18

19

20 ANTHONY R. HAKL 21 Deputy Attorney General Attorneys for Defendants and Respondents 22 SA2013113332 23 11868664.doc

24

25 26

27

28 6 Defendants' Brief Regarding In Camera Discovery Proceeding (34-2013-80001667)380 EXHIBIT A

381 C. D. Michel - S.B.N. 144258 Scott M. Franklin - S.B.N. 240254 2 MICHEL & ASSOCIATES, P.C. 180 E. Ocean Boulevard, Suite 200 3 Long Beach, CA 90802 Telephone: (562) 216-4444 4 Facsimile: (562) 216-4445 Email: [email protected] 5 Attorney for Plaintiffs/Petitioners 6 7

8 SUPERIOR COURT OF THE STATE OF CALIFORNIA

9 FOR THE COUNTY OF SACRAMENTO

10

11 DAVID GENTRY, JAMES PARKER, ) CASE NO. 34-2013-80001667 MARK MIDLAM, JAMES BASS, and ) 12 CALGUNS SHOOTING SPORTS ) STIPULATION AND JOINT ASSOCIATION, ) APPLICATION RE: EXPEDITED 13 ) DISPUTE RESOLUTION PROCEDURE Plaintiffs and Petitioners, ) RE: DOCUMENTS WITHHELD UNDER 14 ) PRIVILEGE CLAIMS IN RESPONSE TO VS, ) PLAINTIFFS' REQUESTS FOR 15 KAMALA HARRIS, in Her Official ) PRODUCTION OF DOCUMENTS Capacity as Attorney General for the State ) (SET ONE), PROPOUNDED ON 16 of California; STEPHEN LINDLEY, in His ) DEFENDANTS KAMALA HARRIS AND Official Capacity as Acting Chief for the ) STEPHEN LINDLEY; [PROPOSED] 17 California Department of Justice, JOHN ) ORDER CHIANG, in his official capacity as State ) 18 Controller for the State of California, and ) DOES 1-10. ) 19 ) Defendants and Respondents. ) Dept.: 31 20 ------) Action filed: 10/16/2013 21 22 The parties to this Action, through their respective counsel, hereby stipulate and agree to

23 the following.

24 A VERMENTS

25 WHEREAS, Plaintiffs/Petitioners David Gentry, James Parker, Mark Midlam, James

26 Bass, and Calguns Shooting Sports Association (collectively "Plaintiffs") propounded Requests

27 for Production of Documents (Set One) on Defendants/Respondents Kamala Harris and Stephen

28 Lindley (collectively "Defendants") on May 14, 2014;

1 STIP. RE: EXPED. RESOLUTION RE: DISPUTED RFP RESPS.; [PROPOSED] ORDER 382 WHEREAS, Defendants provided responses to Requests for Production of Documents

2 (Set One) on August 15, 2014 (pursuant to an extension granted by Plaintiffs);

3 WHEREAS, between August 15, 2014, and the present, the parties meet and conferred

4 regarding, among other things, Plaintiffs' belief that the responses provided on August 15, 2014,

5 and the documents provided in add.ition thereto, were insufficient;

6 WHEREAS, the extensive attempt at resolving the dispute came to an end on February 4,

7 2015, when the parties the parties determined they were at an impasse as to whether Defendants

8 were properly withholding certain documents;

9 WHEREAS, the parties agree the attempt to resolve the dispute at issue is sufficient l 0 grounds for the execution of a declaration pursuant to Code of Civil Procedure sections 2016.040

11 and 203 1.31 0(b )(2). 12 WHEREAS, on February 4, 2015, counsel for Plaintiffs suggested the paiiies stipulate to

13 use a streamlined dispute resolution mechanism to resolve this matter if allowed by this Court,

14 and in response counsel for Defendants indicated Defendants would likely be amenable to the use

15 of such mechanism; 16 WHEREAS, on February 19, 2015, an assistant from Plaintiffs' counsel's office

17 confirmed with the clerk of this Court the Court would consider a streamlined dispute resolution

18 mechanism if submitted by way of a joint stipulation submitted by the parties;

19 WHEREAS, on April 2, 2015, an assistant from Plaintiffs' counsel's office confirmed

20 with the clerk of this Court the process to be used for the temporary lodging of confidential

21 documents for the purpose of in camera review; and

22 WHEREAS, the parties now desire to jointly propose a streamlined dispute resolution

23 mechanism that, when compared to the normal noticed motion procedure, will save costs and

24 time for the parties and the Court.

25 Ill

26

27

28

2 STIP. RE: EXPED. RESOLUTION RE: DISPUTED RFP RESPS.; [PROPOSED] ORDER 383 STIPULATION

2 THEREFORE, based on the foregoing facts, the parties hereby stipulate as follows. 3 1. Per the instructions of the Court Clerk, copies of all of the documents referred to 4 on the "privilege log" provided to Plaintiffs by Defendants on January 6, 2015, 5 excluding any such documents the withholding of which is not disputed by

6 Plaintiff, are being provided herewith to be ternporarily lodged with the Court for

7 the purpose of in camera review only, and such documents will be lodged under 8 the Court's inherent authority, Code of Civil Procedure section 2017 .020(a), or

9 California Rules of Court, Rules 2.2550-51, as deemed applicable by the Court. 10 The Defendants have submitted the relevant documents to the Court in a sealed

11 envelope that states the following clearly on its face: 12 THE DOCUMENTS CONTAINED HEREIN HAVE BEEN LODGED WITH THE COURT FOR THE PURPOSE OF lN CAMERA REVIEW TO RESOLVE 13 DISPUTED PRIVILEGE CLAIMS MADE BY THE SUBMITTING PARTIES; THE CONTENTS OF THIS ENVELOPE ARE NOT TO BE USE FOR ANY 14 PURPOSE OTHER THAN IN CAMERA REVIEW, AND NOTHING IN THIS ENVELOPE SHALL BE FILED WITH THE CLERK OF THE COURT, 15 PURSUANT TO THE COURT'S ORDER. .

16 2. On or before May 4, 2015, Plaintiffs' counsel and Defendants' counsel shall each

17 file and serve (1) a proposed order and (2) a brief, not to exceed eight pages

18 (excluding declarations and exhibits, if any) supporting their clients' position

19 regarding whether the withheld documents should be released. 20 3, Each side may file a "reply" brief, not to exceed three pages (excluding 21 declarations and exhibits, if any), on or before May 11, 2015,

22 4, The Parties agree the matter shall be resolved by the Court without oral argument, 23 and that the order ofthe Court issued pursuant to the expedited dispute resolution

24 process outlined above will have the same force and effect as if issued upon a

25 motion filed pursuant to Code of Civi I Procedure section 2031.31 0(a)(3).

26 5. The parties agree that this Stipulation will only be in effect if the Court enters an 27 order based on this Stipulation.

28 6, Defendants have provided herewith a self-addressed stamped envelope, or the

3 STIP, RE: EXPED. RESOLUTION RE: DISPUTED RFP RESPS.; [PROPOSED] ORDER 384 1 private shipping equivalent, with the Stipulation for the return of the documents

2 being temporarily lodged with the Court as described herein.

3 SO STIPULATED. 4 Dated: April 16, 2015 EL & ASSOCIATES, P.C. 5

6 lin 7 omeys or the Plaintiffs/Petitioners 8 Dated: April 16, 2015 KAMAL D. HARRIS 9 Attorney General of California STEPAN A. HAYTAYAN 10 Supervising Deputy Attorney General 11

12 Anthony R. Hald 13 Deputy Attorney General Attorneys for Defendants/Respondents 14

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27 28

4 385 STIP. RE: EXPED. RESOLUTION RE: DISPUTED RFP RESPS.; rPROPOSEDl ORDER private shipping equivalent, with the Stipulation for the return of the documents

2 being temporarily lodged with the Court as described herein.

3 SO STIPULATED.

4 Dated: April 16, 2015 MICHEL & ASSOCIATES, P,C. 5

6 Scott M. Franklin 7 Attorneys for the Plaintiffs/Petitioners 8 Dated: April 16, 2015 KAMAL D. HARRIS 9 Attorney Gener I of California STEP . H YTAYAN 10 Super D uty Attorney General

11

12 Anth y . H kl 13 Deputy Attorney General Attorneys for Defendants/Respondents 14

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4 STIP. RE: EXPED. RESOLUTION RE: DISPUTED RFP RESPS.; [PROPOSED] ORDER 386 ORDER

2 Based on the Stipulation of the parties dated April 16, 2015, the Court GRANTS the 3 parties' request to hear the currently pending discovery dispute pursuant to the expedited 4 procedure identified below in lieu of motion filed pursuant to Code of Civil Procedure section 5 2031.31 0(a)(3).

6 It is ORDERED that: 7 1. The documents submitted for in camera review on April 17, 2015, will be treated 8 as temporarily lodged with the Court for the purpose of in camera review only, and

9 will not be filed.

10 2. On or before May 4, 2015, Plaintiffs' counsel and Defendants' counsel shall each

11 file and serve ( 1) a proposed order and (2) a brief, not to exceed eight pages 12 (excluding declarations and exhibits, if any), supporting their clients' position 13 regarding whether the withheld documents should be released.

14 3. Each side may file a "reply" brief, not to exceed three pages (excluding 15 declarations and exhibits, if any), on or before May 11, 2015.

16 4. The matter shall be resolved by the Court without oral argument, and the order of 17 the Court issued pursuant to the Parties' stipulated expedited dispute resolution

18 will have the same force and effect as if issued upon a motion filed pursuant to

19 Code of Civil Procedure section 2031.31 0(a)(3),

20 5. Upon completion of the Court's in camera review of the documents lodged with 21 the Court, the Court will return such documents to Defendants via the self- 22 addressed envelope· provided thereby.

23 IT IS SO ORDERED.

24

25 Date: ------26 Hon. Michael P. Kenny, Judge of the Superior Court

27

28

5 STIP. RE: EXPED. RESOLUTION RE: DISPUTED RFP RESPS.; [PROPOSED] ORDER 387 1 PROOF OF SERVICE

2 STATE OF CALIFORNIA

3 COUNTY OF LOS ANGELES

4 I, Laura L. Quesada, am employed in the City of Long Beach, Los Angeles County, California. I am over the age eighteen (18) years and am not a party to the within action. My 5 business address is 180 East Ocean Blvd., Suite 200, Long Beach, CA 90802.

6 On April 17, 2015, the foregoing document(s) described as 7 STIPULATION AND JOINT APPLICATION RE: EXPEDITED DISPUTE RESOLUTION PROCEDURE RE: DOCUMENTS WITHHELD UNDER PRIVILEGE 8 CLAIMS IN RESPONSE TO PLAINTIFFS' REQUESTS FOR PRODUCTION OF DOCUMENTS (SET ONE), PROPOUNDED ON DEFENDANTS KAMALA HARRIS 9 AND STEPHEN LINDLEY; [PROPOSED] ORDER

10 on the interested parties in this action by placing [ ] the original 11 [X] a true and correct copy thereof enclosed in sealed envelope(s) addressed as follows: 12 Kamala D. Harris, Attorney General of California 13 Office of the Attorney General Anthony Hakl, Deputy Attorney General 14 1300 I Street, Suite 1101 Sacramento, CA 95814 15 _x_ (BY MAJL) As follows: I am "readily familiar" with the firm's practice of collection and 16 processing correspondence for mailing. Under the practice it would be deposited with the . U.S. Postal Service on that same day with postage thereon fully prepaid at Long Beach, 17 California, in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date is more than one day after 18 date of deposit for mailing an affidavit. ' Executed on April 17, 2015, at Long Beach, California. 19 ..x (VIA ELECTRONIC MAIL) As follows: I served a true and correct copy by electronic 20 transmission. Said transmission was reported and completed without error. Executed on April 14, 2015, at Long Beach; California. 21 (PERSONAL SERVICE) I caused such envelope to delivered by hand to the offices of the 22 addressee. Executed on April 14, 2015, at Long Beach, California. 23 _x_ (STA TE) I declare under penalty of perjury under the laws of the State of California that 24 the foregoing is true and correct.

25 (FEDERAL) I declare that I am employed i court at whose direction · 26

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6 STIP. RE: EXPED. RESOLUTION RE: DISPUTED RFP RESPS.; [PROPOSED] ORDER 388 DECLARATION OF SERVICE BY U.S. MAIL

Case Name: Gentry, David, et al. v. Kamala Harris, et al.

No.: 34-2013-80001667

I declare:

I am employed in the Office of the Attorney General, which is the office of a member of the California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter; my business address is 1300 I Street, Suite 125, P.O. Box 944255, Sacramento, CA 94244-2550.

On May 4, 2015, I served the attached DEFENDANTS' BRIEF REGARDING IN CAMERA DISCOVERY PROCEEDING by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the United States Mail at Sacramento, California, addressed as follows:

Scott Franklin Michel & Associates, P.C. 180 E. Ocean Boulevard, Suite 200 Long Beach, CA 90802

I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on May 4, 2015, at Sacramento, California.

Tracie L. Campbell Declarant

SA2013 I 13332 11868755.doc

389 1 KAMALA D. HARRIS Attorney General of California 2 STEPAN A. HAYTAYAN Supervising Deputy Attorney General 3 ANTHONY R. HA.KL; State Bar No. 197335 Deputy Attorney General 4 1300 I Street, Suite 125 P.O. Box 944255 5 Sacramento, CA 94244-2550 Telephone: (916) 322-9041 6 Fax: (916) 324-8835 E-mail: [email protected] 7 Attorneys for Defendants and Respondents

8 SUPERIOR COURT OF THE STATE OF CALIFORNIA

9 COUNTY OF SACRAMENTO

10

11

12 DAVID GENTRY, JAMES PARKER, Case No. 34-2013-80001667 13 MARK MID LAM, JAMES BASS, and CALGUNS SHOOTING SPORTS DECLARATION OF DAVID HARPER IN 14 ASSOCIATION, SUPPORT OF DEFENDANTS' BRIEF REGARDING IN CAMERA DISCOVERY 15 Plaintiffs and Petitioners, PROCEEDING

16 v. Date: None Time: None 17 Dept: 31 KAMALA HARRIS, in Her Official Judge: The Honorable Michael P. 18 Capacity as Attorney General for the State Kenny of California; STEPHEN LINDLEY, in His Trial Date: None set 19 Official Capacity as Acting Chief for the Action Filed: October 16, 2013 California Department of Justice, BETTY 20 T. YEE, in her official capacity as State Controller, and DOES 1-10, 21 Defendants and 22 Respondents.

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28

Declaration of Dave Harper in Support of Defendants' Brief Regarding In Camera Discovery Proceeding (34-2013-80001667)390 1 DECLARATION OF DAVID HARPER

2 I, David Harper, declare:

3 1. I am employed as the Deputy Director of Administration of the California Department of 4 Justice. As the Deputy Director, my responsibilities include providing administrative direction, 5 policy guidance, and control of the Budget Office, Accounting Office, Departmental Services

6 Programs, and Information Support Services within the Division of Administrative Support. I 7 have reviewed defendants' privilege log in this case and the documents attached thereto and I am 8 familiar with their contents. I have personal knowledge of the facts stated in this declaration, 9 except as to those expressly stated based on my information and belief, and if sworn as a witness I 10 could and would competently testify to these facts.

11 Privilege Log Items 1, 2, & 3

12 2. The items numbered 1, 2, and 3 on defendants' privilege log are Budget Office reports. 13 Like all of the documents listed on the privilege log, I am informed and believe that each was 14 located on an internal, secure departmental computer hard drive housing a variety of historical·

15 documents. Each document is essentially an issue paper prepared by a DOJ budget analyst who is 16 no longer employed by the Department. Each is an internal report, one that was most likely 17 prepared for the Executive Office in connection with the executive decision-making process 18 regarding the DOJ budget. I am informed and believe that the computer file name for one of the 19 reports (item 3 on the privilege log) includes the phrase "to Steve Coony." Mr. Coony was Chief

20 Deputy Attorney General at the time the report was prepared.

21 Privilege Log Items 4 & 13 22 3. Item 4 on the privilege log is a draft letter to a state legislator. I wrote the letter, a draft 23 copy of which is attached to the privilege log. I have looked.in my files and have been unable to

24 locate any final, signed copy of the letter. I cannot say for certain that I actually signed and sent

25 the letter in question. 26 4. I am informed and believe that the ii.le name of item 13 on the privilege log contains the 27 phrase "Prior Prior Analyst's Work." The content of the document suggests that it was prepared 28 2 Declaration of Dave Harper in Support of Defendants' Brief Regarding In Camera Discovery Proceeding (34-2013-80001667)391 1 for use at a legislative hearing, most likely as notes to be used by a DOJ employee to answer

2 questions at the hearing.

3 Privilege Log Item 7

4 5. Item 7 on the privilege log is a one-page draft chart reflecting a point-in-time fiscal

5 analysis. I am informed and believe that it was also located on the computer hard drive

6 referenced above and its file name contains the phrase "Prior Prior Analyst's Work." This

7 description indicates that it is an internal (i.e., non-public) document prepared by a budget analyst

8 who is no longer employed by DOJ. These details, along with the general content of the

9 document suggest that the analyst prepared the document to support DOJ as it considered how to

10 proceed in connection with certain funding issues.

11 Privilege Log Item 8

12 6. I am informed and believe that item 8 on the privilege log was also located on the

13 computer hard drive referenced above and its file name contains the phrases "Prior Prior

14 Analyst's Work," "Issue Paper," and "Issue-Bullets." This description indicates that it is an

15 internal document prepared by a budget analyst who is no longer employed by DOJ. These

16 details, along with the general content of the document and the fact that it is written in

17 layperson's terms (as opposed to budget or financial language), also strongly suggest that the

18 analyst prepared the document for the Executive Office as an executive summary or briefing

19 document in support of the one of the above Budget Office reports.

20 Privilege Log Items 9 & 10

21 7. Items 9 and 10 on the privilege log include, respectively, a short description of the APPS

22 program and a brief description of the Division of Firearms ( as the Bureau of Firearms was

23 formerly known) and various budget "allotments." The content and nature of these documents

24 suggest that they were to be incorporated into a larger budget analysis, such as one of the Budget

25 Office reports mentioned above.

26

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28 3 Declaration of Dave Harper in Support of Defendants' Brief Regarding In Camera Discovery Proceeding (34-2013-80001667)392 1 Privilege Log Item 12

2 8. I am informed and believe that item 12 on the privilege log was located on an internal

3 hard drive in a file named, in relevant part, "Verizon Contract." These notes were most likely

4 drafted by a budget analyst who is no longer employed by DOJ.

5 Privilege Log Item 14

6 9. The notes that appear as privilege log item 14 were most likely prepared by a budget

7 analyst no longer employed by DOJ. The referenced conference call was most likely a

8 conference call between staff members of the Budget Office and Executive Office ofDOJ.

9 I declare under penalty of perjury under the laws of the State of California that the

10 foregoing is true and correct, on May 4, 2015, in Sacramento, California. 11 1\:1--- b.O \ 12 . David Harper ·

13 SA2013113332 118693 31.doc 14

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28 4 Declaration of Dave Harper in Support of Defendants' Brief Regarding In Camera Discovery Proceeding (34-2013-80001667)393 DECLARATION OF SERVICE BY U.S. MAIL

Case Name: Gentry, David, et al. v. Kamala Harris, et al.

No.: 34-2013-80001667

I declare:

I am employed in the Office of the Attorney General, which is the office of a member of the California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter; my business address is 1300 I Street, Suite 125, P.O. Box 944255, Sacramento, CA 94244-2550.

On May 4, 2015, I served the attached DECLARATION OF DAVE HARPER IN SUPPORT OF DEFENDANTS' BRIEF REGARDING IN CAMERA DISCOVERY PROCEEDING by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the United States Mail at Sacramento, California, addressed as follows:

Scott Franklin Michel & Associates, P.C. 180 E. Ocean Boulevard, Suite 200 Long Beach, CA 90802

I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on May 4, 2015, at Sacramento, California ..

Tracie L. Campbell Declarant

SA2013 l 13332 11868754.doc

394 1 C. D. Michel - S.B.N. 144258 Scott M. Franklin - S.B.N. 240254 2 Sean A. Brady - S.B.N. 262007 MICHEL & ASSOCIATES, P.C. 3 180 E. Ocean Boulevard, Suite 200 Long Beach, CA 90802 4 Telephone: (562) 216-4444 By: _ _ .:..:.A-:....:Wc.:..:0:::..:0::..::D,c...;W..;..cA.;..;.RD;c...__ _ _ Facsimile: (562) 216-4445 Deputy Clerk 5 Email: [email protected]

6 Attorney for Plaintiffs/Petitioners

7

8 SUPERIOR COURT OF THE STATE OF CALIFORNIA

9 FOR THE COUNTY OF SACRAMENTO

10 DAVID GENTRY, ET AL., ) CASE NO. 34-2013-80001667 ) 11 Plaintiffs and Petitioners, ) CORRECTED BRIEF IN SUPPORT OF ) REQUEST FOR PRODUCTION OF 12 VS. ) WITIIBELD DOCUMENTS VIA ) EXPEDITED DISPUTE RESOLUTION 13 KAMALA HARRIS, ET AL., ) PROCEDURE ) 14 Defendants and Respondents. ) Dept.: 31 ______) Action filed: 10/ 16/2013 15

16 I. INTRODUCTION

17 The parties stipulated to an expedited review of the current dispute in lieu of normal

18 motion practice to avoid unnecessary briefing and appearances, intending to save scarce resources 19 for both the parties and the Court. The dispute boils down to whether a few documents being co '< 20 withheld under privilege claims-mainly official information privilege objections- are subject to 'TJ ru 21 disclosure. Based on the argument herein, Plaintiffs/Petitioners David Gentry, James Parker, )(

22 Mark Midlam, James Bass, and Calguns Shooting Sports Association' s ("Plaintiffs") request for

23 production of documents should be granted, and Defendants/Respondents Kamala Harris and

24 Stephen Lindley ("Defendants") should be ordered to produce the withheld documents.

25 II. STATEMENT OF FACTS

26 A. The History of the Current Dispute

27 Plaintiffs served a first set of Requests for Production of Documents ("RFP") on

28 Defendants on May 14, 2014. (Declaration of Scott M. Franklin in Support of Request for

1 395 CORRECTED BRIEF ISO REQUEST FOR PRODUCTION OF DOCUMENTS 1 Production of Withheld Documents via Expedited Dispute Resolution Procedure ["Franklin 2 Deel."] ,r 2.) Over the course of several months, the parties met and conferred in good faith

3 exchanging several written communications and having at least two detailed telephonic

4 conferences. (Id. ,r 3 at Exs. 1 and 2.) During that time, Defendants produced some responsive 5 documents, in several batches. (Id. ,r 3.)

6 On October 17, 2014, during the meet-and-confer process, Plaintiffs requested that

7 Defendants produce a "privilege log." (Id.) This request was made because Defendants' RFP

8 responses all included objections and a statement that whatever response given was made 9 "without waiving these objection[.]" (Id. ,r 3 at Exs. 1; ,r 4.) That is, Defendants' responses were

10 unclear as to whether or not any documents were being withheld pursuant to the objections raised.

11 (Id. ,r 4.) Defendants produced a privilege log on December 22, 2014. (Id. ,r 5 at Ex. 3.) After the

12 production of the privilege log, Plaintiffs agreed that they would not challenge the withholding of

13 certain documents identified on the privilege log (item nos. 5, 6, and 11). (Id. ,r 6.) As to the other

14 withheld documents, however, the parties agreed they were at an impasse as of February 6, 2015,

15 which led to the suggestion by Plaintiffs' counsel that the parties submit the matter to the Court in

16 an expedited manner for limited briefing and in camera review. (Id. ,r 7.) A stipulation followed

17 (id.), and now the matter is before the Court for in camera review.

18 B. Summary of the Relevant Portion of Plaintiffs' Case

19 The California Department of Justice (the "Department") collects information on a

20 Dealer's Record of Sale ("DROS") Form, and uses the information as part of the background 21 check process that is performed for most firearm purchases. (Compl. ,r 1.) A fee is collected by 22 the Department regarding each DROS Form that is submitted by a potential firearm purchaser (the

23 "DROS Fee"). (Id.) Funds obtained via the DROS Fee, along with certain other money collected

24 by the Department (see, e.g., entertainment firearm permit fees, Penal Code section 29510(a)(l)),

25 are placed into the DROS Special Account, a segregated account in California's General Fund.

26 (Id.) Penal Code section 28235 lists the authorized uses for DROS Special Account funds.

27 The Department is not required to charge the DROS Fee (id. ,r 39), but it is allowed to 28 charge the DROS Fee in an amount that is based on a determination of what it would take to 396 2 CORRECTED BRIEF ISO REQUEST FOR PRODUCTION OF DOCUMENTS 1 reimburse certain statutorily listed costs. (Id ,r,r 38-40; see Penal Code§§ 28225(a-b), 28230(a).)

2 It appears the Department has never analyzed the specific costs listed in the relevant

3 statute (Penal Code section 28225(b), and that the DROS Fee appears to be excessive and in

4 violation of its statutory basis. It seems the Department actually agreed with that conclusion as of

5 2010, when it commenced rulemaking with an intent to "lower the current $19 DROS fee to $14,

6 commensurate with the actual cost of Processing a DROS" Form. (Franklin Deel. ,r 8 at Ex. 4).

7 Even though the 2010 rulemaking appeared complete, however, something happened in late 2010

8 or thereafter that lead the Department to reverse course and quietly abandon the rulemaking.

9 Thus, Plaintiffs seek to investigate the propriety of the amount of the DROS Fee, which, as of

10 2011, created a surplus such that the Governor was able to borrow $11,500,000 from the DROS

11 Special Account without affecting the Departments' operations. (Franklin Deel. ,rat Ex. 5.)

12 III. ARGUMENT

13 A. A Prima Facie Claim for the Production of Withheld Documents Is Alleged

14 If a party deems an objection to a demand for inspection to be without merit, that party can

15 obtain judicial relief upon a timely motion showing: (1) good cause and (2) a sufficient attempt at

16 informal resolution. Civ. Proc. Code§ 2031.310. Further, Evidence Code section 915(b) and the

17 stipulation of the parties herein both allow for an in camera review in a situation such as this,

18 where a privilege claim has been made under Evidence Code section 1040. Here, because: (1)

19 documents at issue have already been identified as necessary to Plaintiffs case and clearly relevant

20 ( or else they would not have been included in a privilege log); (2) it appears Defendants, i.e., the

21 Department of Justice, are the only source for the information sought; and (3) the parties have

22 stipulated as to the sufficiency of the attempt to resolve this matter informally, Plaintiffs have

23 proven good cause and thus a prima facie case that production should occur per section 2031. 31 O.

24 B. Defendants' Objections Are Without Merit

25 1. Government Code Section 1040 atem Nos. 1-4, 7-10, and 12-14)

26 a Legal Authority

27 As is relevant hereto, Government Code section 1040(a-b) states that:

28 A public entity has a privilege to refuse to disclose official information [i.e., 397 3 CORRECTED BRIEF ISO REQUEST FOR PRODUCTION OF DOCUMENTS 1 information acquired in confidence by a public employee in the course of his or her duty and not open, or officially disclosed, to the public prior to the time the claim 2 of privilege is made] 1 if the privilege is claimed by a person authorized by the public entity to do so and: 3 (1) Disclosure is forbidden by an act of the Congress of the United States or a 4 statute of this state;2 or

5 (2) Disclosure of the information is against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the 6 necessity for disclosure in the interest ofjustice; but no privilege may be claimed under this paragraph if any person authorized to do so has consented that the 7 information be disclosed in the proceeding. In determining whether disclosure of the information is against the public interest, the interest of the public entity as a 8 party in the outcome of the proceeding may not be considered.

9 (Emphasis added). The California Supreme Court has held that in conducting the balancing test 10 required by Evidence Code § 1040(b)(2), the courts should consider: 11 [(1)] the importance of the material sought to the fair presentation of the litigant's 12 case, [(2)] the availability of the material to the litigant by other means, and [(3)] the effectiveness and relative difficulty of such other means. The consideration of 13 [(4)] the consequences of disclosure to the public will involve matters relative to the effect of disclosure upon the integrity of public processes and procedures .... 14 In this respect the court[s] should be fully aware that-in the words of the Assembly Committee on Judiciary-'the public has an interest in seeing that 15 justice is done in the particular cause as well as an interest in the secrecy of the information.' 16 Shepherd v. Super. Ct., 17 Cal. 107, 126 (1976) (overruled on other grounds by People v. 17 Holloway, 33 Cal. 4th 96, 131 (2004)). 18 b. The Balance Tips Strongly in Favor ofDisclosure Here 19 The Material Sought Is Key to the Fair Presentation ofPlaintiffe' 20 Case

21 Plaintiffs believe the DROS Fee was either improperly set in 2004, or that the Department

22 acted improperly in abandoning its DROS Fee reduction rulemaking in 2010, or both. As part of

23 the meet-and-confer process, Plaintiffs sent Defendants a letter stating that:

24 Defendants' responses include several privilege claims on issues related to evidence of how the DROS Fee was set at $19.00 and similar Department analysis 25 (see, e.g., Defendants' responses to Request for Production Nos. 26 and 28,

26 1 Presumably, Defendants will attempt to make a showing that the documents at issue include "official information" as defined under Evidence Code section 1040(a), as 27 that is their burden. See Marylander v. Super. Ct., 81 Cal. App. 4th 1119, 1126 (2000). 28 2 Defendants are not making a subsection (b)(l) objection. (Franklin Deel. 110.) 398 4 CORRECTED BRIEF ISO REQUEST FOR PRODUCTION OF DOCUMENTS 1 Defendants' response to Form Interrogatory No. 15.1). Please be advised that, as to any relevant information withheld pursuant to a privilege claim, Plaintiffs will seek 2 to exclude testimony on such subjects at trial.

3 (Franklin Deel. at Ex. 1.) In response, Defendants identified two supposed sources of evidence as 4 to how the DROS Fee was set at $19.00: (1) a rulemaking file from 2004, and (2) documents 5 referred to in Defendants' privilege log. (Id at Ex. 2). Defendants' response provides several 6 important pieces of information. First, it confirms that the withheld documents include responsive 7 documents on the issue of how the $19.00 DROS Fee was set. Second, because the 2004 rule 8 making file does not include any reference to the costs that are required to be considered in setting 9 the DROS Fee (see Penal Code section 28225), that leaves the withheld documents as the only 10 identified source of evidence on the issue. (Franklin Deel. at Ex. 2.)3 11 If the withheld documents do provide specifics of how the department set or re-evaluted 12 the amount of the DROS Fee, the information at issue will be plainly relevant to this case-either 13 it will show the Department considered all of the relevant costs and properly set the DROS Fee at 14 $19 .00, or it will not. Defendants have a duty to set the relevant fee properly and they should not 15 be allowed to withhold evidence related to the gravamen of this Action. Plaintiffs will not have a 16 fair chance to present their argument if Defendants are able to keep secret the documents showing 17 how the relevant fee was really set, so this factor weighs strongly in support of disclosure. 18 11. The Material Sought Is Simply Not Available from other Sources 19 Plaintiffs have no reason to think that the information sought, created internally at a state 20 agency, is currently available by any route other than this Action. Defendants have provided no 21 alternative route by which the relevant information might be obtained, proving that it is possessed 22 solely by the Department. Accordingly, this factor cuts strongly in favor of disclosure. 23 3 Defendants claim the 2004 rulemaking file shows how the Department set the 24 DROS Fee at $19.00. (Id. at Ex. 2.) The relevant rulemaking file, however, simply states the conclusion that "the department is adopting fee increases only up to a level to cover 25 actual costs as specified in statute[,]" it does not actually provide the calculations to 26 support that conclusion. (Id. ,r 11 at Ex. 6, p. 3). Unless and until the Department specifies where the Penal Code section 28225 cost calculations appear in the 2004 27 rulemaking file (which is part of another discovery motion pending before the Court), it is Plaintiffs' belief that the Department has yet to produce any document showing that the 28 $19.00 DROS Fee was properly set based on the statutorily required cost considerations. 399 5 CORRECTED BRIEF ISO REQUEST FOR PRODUCTION OF DOCUMENTS 1 iii. The Third Balancing Factor Does not Apply Here

2 The material sought by Plaintiffs exists only in the Departments' files, so the difficulty of

3 obtaining that information elsewhere is a moot inquiry. Thus, the third factor is inapplicable here.

4 IV. Secrecy Actually Decreases Integrity in This Instance

5 The information sought is not strategy information or uninhibited thoughts recorded in the

6 heat of a brainstorming session, it is financial data that should have been publically disclosed both

7 when the $19.00 DROS Fee was first announced, and when the 2010 rulemaking to reduce the fee

8 was announced. Put plainly, Plaintiffs want to check the "math" behind the $19.00 fee at issue.

9 This alone is sufficient justification for the production sought. See San Gabriel Tribune v.

IO Superior Court (City of West Covina), 143 Cal. App. 3d 762, 776 (1983) (holding that, under

11 section 1040, the public could obtain financial data underling a waste disposal fee rate increase

12 charged to city residents). Furthermore, if the public is not allowed to access the raw data used to

13 calculate fees they are charged, that not only violates the public's right "of access to information

14 concerning the conduct of the people's business" (Cal. Const. art. 1, § 3(b)(l)), it also impinges

15 upon the public's ability to "petition government for redress of grievances[.]" Id. § 3(a). Because

16 none of the factors weigh against disclosure and at three weigh heavily in favor of disclosure, the

17 Court should, pursuant to section 1040, order disclosure of the withheld documents.

18 C. Deliberative Process (Item Nos. 1-4, 7-10, and 12-14)4

19 Marylander is clear in re-affirming that, in litigation, Evidence Code section 1040

20 "represents the exclusive means by which a public entity may assert a claim ofgovernmental

21 privilege based on the necessity for secrecy." Marylander, 81 Cal. App. 4th at 1125 (italics in

22 original) (citations omitted). Regardless, even if a deliberative process objection exists here, the

23 standard of review for a deliberative process objection is basically the same as that which applies

24 to a section 1040 claim, except that the deliberative process standard may actually be harder for a

25 governmental defendant to meet. Compare id. at 1126-28 ("Only if the public interest in

26 nondisclosure clearly outweighs the public interest in disclosure does the deliberative process

27 4 Defendants also argued an Executive Privilege, but based on discussions between counsel, it appears "Executive Privilege" is just another way of referring to the 28 Deliberative Process Privilege. (Franklin Deel. ,r 10). 400 6 CORRECTED BRIEF ISO REQUEST FOR PRODUCTION OF DOCUMENTS 1 privilege spring into existence.") (citation omitted) (italics added), with Evidence Code 2 § 1040(b )(2) ("official information" can only be withheld if the "necessity for preserving the

3 confidentiality of the information that outweighs the necessity for disclosure in the interest of 4 justice"). Accordingly, the Court should ignore Defendants' deliberative process objections

5 because they are duplicative of the meritless objections made under Evidence Code section 1040.

6 D. Attorney-Client Privilege (Item No. 4) 7 California Evidence Code section 954 states that a client may refuse to disclose (1)

8 confidential communications (2) between the client and the attorney. Here, however, privilege log 9 item no. 4 appears to be a draft written by someone who is not an attorney. (Franklin Deel. at Ex.

10 3). Without proof that the intended recipient was an attorney for the author of the document, 11 Defendants cannot state a viable attorney-client privilege claim. Thus, Defendants' attorney-client

12 privilege objection regarding privilege log item no. 4 should be ignored.

13 E. Attorney Work Product Doctrine (Item Nos. 4 and 13)

14 California's attorney work product doctrine, codified in Code of Civil Procedure section 15 2018.020, states the general policy protecting an attorney's work product from being unfairly

16 exposed. The doctrine provides absolute protection for an attorney's "brain work" (e.g., opinions, 17 conclusions, impressions), but for other attorney work product, such material can be obtained 18 upon a showing "that denial of discovery will unfairly prejudice the party seeking discovery in 19 preparing that party's claim or defense or will result in an injustice." Civ. Proc. Code§ 2018.030.

20 As to item no. 4, the privilege log states that the document at issue was created by David

21 Harper, who does not appear to be an attorney. And Defendants state that the author of item no. 22 13 is unknown. Therefore, as these two documents were not created by attorneys, and Defendants 23 have not provided any suggestion that these documents were produced at the direction of an

24 attorney, there is no reasonable basis for the attorney work product objection made by Defendants.

25 Further, because Defendants have already effectively admitted that the documents are 26 relevant, and because there appears to be no other source for the information at issue, the

27 documents at issue, if produced, are going to provide the key evidence that appears likely to prove 28 or disprove Plaintiffs' claim that the DROS Fee amount has yet to be properly set via the 401 7 CORRECTED BRIEF ISO REQUEST FOR PRODUCTION OF DOCUMENTS 1 statutorily required standard. 2 Finally, denial of discovery on this issue will be unfair and unduly prejudicial. Plaintiffs

3 contend that the publically available information related to the DROS Fee amount being set and

4 later kept at $19.00 shows the Department of Justice is not properly monitoring the fee being

5 charged. The documents at issue are likely to show that either: (a) the information provided to the

6 public is accurate-which supports Plaintiffs' claim that the DROS Fee amount was improperly

7 set or kept at $19.00-or (b) the Department of Justice did perform the proper analysis in 2004

8 and 2010, which might be determinative as to at least a portion of Plaintiffs' case. As there is no

9 other source for the information sought, it would be unfair for Defendants to withhold information

10 about how certain financial decisions were made in a lawsuit specifically challenging those

11 decisions. Therefore, the Court should order the production of privilege log item nos. 4 and 13.

12 IV. CONCLUSION 13 Plaintiffs seek relief in this instance for two reasons: (1) if the withheld documents show

14 that the Department did not make the statutorily required calculations, that would prove Plaintiffs

15 are correct as to the gravamen of their Action; and (2) if Defendants intend to argue that the

16 withheld documents do show that the Department acted properly, Plaintiffs do not want to be

17 unfairly surprised with that argument when this case reaches the merits stage. That is, Defendants

18 should not be able to claim privilege now and then attempt to rely on withheld documents later.

19 Thus, the relief requested should be granted based on the arguments raised herein.

20 Dated: May 5, 2015 MICHEL & ASSOCIATES, P.C. 21 22

23

24

25

26

27

28 402 8 CORRECTED BRIEF ISO REQUEST FOR PRODUCTION OF DOCUMENTS 1 PROOF OF SERVICE

2 STATE OF CALIFORNIA COUNTY OF LOS ANGELES 3 I, Laura L. Quesada, am employed in the City of Long Beach, Los Angeles County, 4 California. I am over the age eighteen (18) years and am not a party to the within action. My business address is 180 East Ocean Blvd., Suite 200, Long Beach, California 90802. 5 On May 5, 2015, I served the foregoing document(s) described as: 6 CORRECTED BRIEF IN SUPPORT OF REQUEST FOR PRODUCTION OF 7 WITHHELD DOCUMENTS VIA EXPEDITED DISPUTE RESOLUTION PROCEDURE

8 on the interested parties in this action by placing [ ] the original 9 [X] a true and correct copy thereof enclosed in sealed envelope(s) addressed as follows: 10 Anthony Hakl, Deputy Attorney General 11 1300 I Street, Suite 1101 Sacramento, CA 95814 12

13 _x_ (BY MAIL) As follows: I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under the practice it would be deposited with the 14 U.S. Postal Service on that same day with postage thereon fully prepaid at Long Beach, California, in the ordinary course of business. I am aware that on motion of the party 15 served, service is presumed invalid if postal cancellation date is more than one day after date of deposit for mailing an affidavit. 16 Executed on May 5, 2015, at Long Beach, California.

17 _x (VIA ELECTRONIC MAIL) As follows: I served a true and correct copy by electronic transmission. Said transmission was reported and completed without error. 18 Executed on May 5, 2015, at Long Beach, California.

19 _x (STATE) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 20 (FEDERAL) I declare that I am employed in he of 21 court at whose direction the selv'.·,,_...... ,.,,...... __""

22

23

24

25

26

27

28 403 9 CORRECTED BRIEF ISO REQUEST FOR PRODUCTION OF DOCUMENTS . . .. t # • . ..,

C. D. Michel - S.B.N. 144258 2015 ti AY I I PM 2: 38 Scott M. Franklin - S.B.N. 240254 2 Sean A. Brady - S.B.N. 262007 MICHEL & ASSOCIATES, P.C. 3 180 E. Ocean Boulevard, Suite 200 Long Beach, CA 90802 4 Telephone: 562-216-4444 Facsimile: 562-216-4445 5 Email: cmichel@ michellawyers.com

6 Attorneys for Plaintiffs/Petitioners 7

8 SUPERJOR COURT OF THE STATE OF CALIFORNIA

9 FOR THE COUNTY OF SACRAMENTO

1O DAYID GENTRY, et al., ) CASE NO. 34-2013-80001667 ) 11 Plaintiffs and Petitioners, ) PLAINTIFFS' REPLY TO DEJ?ENDANTS' ) BRIEF REGARDING IN CAMERA 12 vs. ) DISCOVERY PROCEEDING ) 13 KAMALA HARRIS, et al., ) ) D 14 Defendants and Respondents. ) I, ..- n 15 I. INTRODUCTION !.... )

16 Defendants Kamala D. HaITis and Stephen Lindley ("Defendants") claim they do not need

17 to produce the withheld documents to Plaintiffs/Petitioners ("Plaintiffs") solely because the

I 8 documents are protected under deliberative process privilege. They are incorrect.

19 Even assuming Defendants' declarant is reliable and that the deliberative process privilege

20 is potentially applicable here, Plaintiffs do not seek any material related to the decision making

21 process itself. Rather, Plaintiffs are interested in the raw data for the cost categories mentioned in

22 Penal Code section 28225(b) . This information, by its ve1y nature, is not the type of material the

23 deliberative process privilege is intended to protect. If it was, then any factual information

24 available for consideration in governmental decision making would be privileged, which would be

25 an absurd result. Defendants should be ordered to produce the withheld documents, redacted to the

26 extent the Court finds it necessary, but with all relevant data and calculations unredacted.

27 I I I

28

REPLY TO DEFENDANTS' BRIEF RE: IN CAMERA DISCOVERY 404 1 II. ARGUMENT

2 A. Defendants' Declarant Has Insufficient Personal Knowledge and Should Be Ignored

3 Declarant David Harper makes multiple conclusory assertions based only on information

4 and belief, and not on his personal knowledge. (Deel. Of Dave Harper in Supp. Of Defs.' Brief Re

5 In Camera Discovery Proceeding ,r,r 1, 2, 4, 5, 6, 8.) He repeatedly fails to identify the source of

6 his information or belief. Mr. Harper's declaration is unreliable without further explanation of the

7 source of his information and belief or without the submission of a declaration by the informant.

8 As Defendants' rely on Mr. Harper's unsubstantiated conclusory statements, Defendants' privilege

9 argument should be ignored.

10 B. In the Alternative, the Court Should Order the Production of Redacted Documents

11 When the government prohibits the public from accessing the raw data used by the

12 government to calculate the fees it charges the public, the government violates the public's right

13 "of access to information concerning the conduct of the people's business" and also impinges

14 upon the public's ability to "petition [the] government for redress of grievances[.]" (Cal. Const.

15 art. 1, § 3(a), (b)(l).) While the deliberative process privilege can, in certain circumstances, limit

16 these rights, the privilege is conditional and does not apply when raw data and facts are requested.

17 1. The Required Balancing Test Favors Redacted Document Production

18 The deliberative process privilege "rests on the policy of protecting the decision making

19 processes of governmental agencies." (San Joaquin Local Agency Formation Com 'n v. Super. Ct.

20 (2008) 162 Cal.App.4th 159, 170, internal quotations omitted.) Plaintiffs are not seeking

21 deliberative, decision making material, e.g., mental impressions, thoughts, analyses,

22 recommendations, or personal information. Rather, Plaintiffs seek factual information the public

23 has a constitutional right to access, e.g., the total annual expenditures for specific classes of

24 governmental expenses. (See Pls.' Req. for Admiss. Set 1, Nos. 1, 2, 28.) Simply put, Plaintiffs

25 only seek data that is not protected by the deliberative process privilege.

26 Defendants state that the privilege "prohibits discovery of both the agency's reasoning and

27 'what evidence the administrator relied upon in reaching a decision."' (Defs.' Brief Re In Camera

28 Discovery Proceeding, p. 2.) But Defendants' quotation of Guilbert is misleading in this context. 405 1 REPLY TO DEFENDANTS' BRIEF RE: IN CAMERA DISCOVERY 1 The point the Guilbert court was making with the statement quoted above is that the privilege can

2 protect identification of which specific evidence was relied on to make a specific decision-not

3 that all information considered by a decision maker is automatically protected from disclosure.

4 (See Guilbert v. Regents of Univ. ofCal. (1979) 93 Cal.App.3d 233, 246.)

5 Interestingly, Defendants did not address Evidence Code Section 1040, the "exclusive

6 means by which a public entity may assert a claim of governmental privilege based on the

7 necessity for secrecy." (Maryland v. Super. Ct. (2000) 81 Cal.App.4th 1119, 1126.) Defendants

8 did not provide substantiated evidence that the documents qualify as "official information" and

9 did not conduct a balancing test to determine if the "necessity for preserving the confidentiality of

10 the information []outweighs the necessity for disclosure in the interest of justice." (Evid. Code§

11 1040(b)(2).) Plaintiffs explained and applied that test in its prior briefing, showing that disclosure

12 is appropriate here. Defendants should be ordered to produce redacted versions of the withheld

13 documents because such order will meet Plaintiffs' discovery needs and moot Defendants' claims

14 that the production sought could reveal deliberative process information or discourage "candid

15 discussion within the DOJ[.]" (See Defs.' Brief Re In Camera Discovery Proceeding, p. 2.)

16 III. CONCLUSION

17 Defendants should not be allowed to keep data and facts secret from the public simply by

18 cloaking it behind the guise of governmental decision making. To adopt such a position would

19 permit government regulators to easily hide data related to any fee charged to the public by merely

20 saying it was "relied upon" during decision making. And while Plaintiffs are unsure whether the

21 raw data concerning the cost categories referred to in Penal Code section 28225(b) actually exists,

22 because Defendants have claimed it does and because Plaintiffs are entitled to the data, facts, and

23 mathematical calculations in the withheld documents, Defendants should be ordered to produce

24 the documents, redacting the internal mental impressions and processes.

25 Dated: May 11, 2015 L & ASSOCIATES, P.C. 26

27

28 406 2 REPLY TO DEFENDANTS' BRIEF RE: IN CAMERA DISCOVERY 1 PROOF OF SERVICE 2 STATE OF CALIFORNIA 3 COUNTY OF LOS ANGELES 4 I, Laura L. Quesada, am employed in the City of Long Beach, Los Angeles County, 5 California. I am over the age eighteen (18) years and am not a party to the within action. My business address is 180 East Ocean Blvd., Suite 200, Long Beach, California 90802. 6 On May 11, 2015, I served the foregoing document(s) described as 7 PLAINTIFFS' REPLY TO DEFENDANTS' BRIEF REGARDING IN CAMERA 8 DISCOVERY PROCEEDING

9 on the interested parties in this action by placing [ ] the original 10 [X] a true and correct copy thereof enclosed in sealed envelope(s) addressed as follows: 11 Anthony Hakl, Deputy Attorney General 12 1300 I Street, Suite 1101 Sacramento, CA 95814 13

14 _x_ (BY MAIL) As follows: I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under the practice it would be deposited with the 15 U.S. Postal Service on that same day with postage thereon fully prepaid at Long Beach, California, in the ordinary course of business. I am aware that on motion of the party 16 served, service is presumed invalid if postal cancellation date is more than one day after date of deposit for mailing an affidavit. 17 Executed on May 11, 2015, at Long Beach, California.

18 _x (VIA ELECTRONIC MAIL) As follows: I served a true and correct copy by electronic transmission. Said transmission was reported and completed without error. 19 Executed on May 11, 2015, at Long Beach, California.

20 (OVERNIGHT MAIL) As follows: I am "readily familiar" with the firm's practice of collection and processing correspondence for overnight delivery by UPS/FED-EX. Under 21 the practice it would be deposited with a facility regularly maintained by UPS/FED-EX for receipt on the same day in the ordinary course of business. Such envelope was sealed and 22 placed for collection and delivery by UPS/FED-EX with delivery fees paid or provided for in accordance. 23 Executed on May 11, 2015, at Long Beach, California.

24 _x (STATE) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 25 (FEDERAL) I declare that I am 26 court at whose direction the servic

27

28

407 3 REPLY TO DEFENDANTS' BRIEF RE: IN CAMERA DISCOVERY C. D. Michel - S.B.N. 144258 Scott M. Franklin - S.B.N. 240254 20 15 ftl AY 19 AMII : 1.0 2 Sean A. Brady - S.B.N. 262007 MICHEL & ASSOCIATES, P.C. 3 J 80 E. Ocean Boulevard, Suite 200 Long Beach, CA 90802 4 Telephone: 562-21 6-4444 Facsimile: 562-216-4445 5 Email: [email protected]

6 Attorneys for Plaintiffs/Petitioners

7

8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SACRAMENTO

10 DAVID GENTRY; JAMES PARKER; ) CASE NO. 34-2013-80001 667 11 MARK MIDLAM; JAMES BASS; and ) CALGUNS SHOOTING SPORTS ) OPPOSITION TO DEFENDANTS' 12 ASSOCIATION, ) MOTION FOR JUDGMENT ON THE ) PLEADINGS 13 Plaintiffs and Petitioners, ) ) 14 vs. ) ) 15 KAMALA HARRIS, in Her Official ) Capacity as Attorney General for the State ) 16 of California; STEPHEN LINDLEY, in His ) Official Capacity as Acting Chief for the ) 17 California Department of Justice; JOHN ) CHIANG, in his official capacity as State ) Date: 06/05/15 18 Controller for the State of California; and ) Time: 9:00 a.m. DOES 1-10, ) Dept.: 31 19 ) Judge: Hon. Michael P. Kenny, Defendants and Respondents. ) Presiding 20 ______) Action filed: 10/16/13

21 CD '< 22 "Tl ru 23 >< 24

25

26

27

28

408 OPPOSITION TO DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS 1 TABLE OF CONTENTS 2 Page

3 I. Introduction ...... 1

4 II. Statement of Facts ...... 2

5 A. Pre-SB 819 ...... 2

6 B. Post-SB 819 ...... 3

7 III. Argument ...... 5

8 A. Legal Standard for a Motion for Judgment on the Pleadings ...... 5

9 1. The Relevant Factual Allegations Are not Disputed ...... 5

10 B. The Term "Higher Tax" Plainly Includes the Tax Created by SB 819 ...... 6 11 1. Proposition 26 Was intended to Prevent "Revenue-Neutral" Taxes, Like the 12 One Created by SB-819, from Being Enacted On a Bare Majority Vote ...... 6 13 2. SB 819 Created a Tax, Based on Department of 14 Finance Guidance ...... 7

15 C. The MJOP Cannot Be Used to Raise or Argue Factual Issues to Be Determined During Future Merits Briefing ...... 8 16 IV. Conclusion ...... 9 17

18

19 20

21 22

23 24

25

26

27

28

409 1 OPPOSITION TO DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS 1 TABLE OF AUTHORITIES Page(s) 2 CASES

3 City ofSan Buenaventura v. United Water Conservation Dist., 235 Cal. App. 4th 228 (2015) ...... 6 4 Gerawan Farming, Inc. v. Lyons, 5 24 Cal. 4th 468 (2000) ...... 8

6 Schmeer v. Cnty. ofLos Angeles, 213 Cal. App. 4th 1310 (2013) ...... 7 7 Stevenson Real Estate Servs., Inc. v. CB Richard Ellis Real Estate Servs., Inc., 8 138 Cal. App. 4th 1215 (2006) ...... 5

9 STATUTES

10 Code Civ. Proc., §438(c)(l)(B)(ii) ...... 5

11 Pen. Code§ 28225(a-b) ...... 1, 3

12 Pen. Code§ 28230(a) ...... 3

13 Pen. Code§ 28235 ...... 2

14 Pen. Code§ 29510(a)(l)) ...... 2

15 REGULATIONS

16 11 Cal. Code Regs. Tit. 11, § 4001 ...... 1

17 CONSTITUTIONAL PROVISIONS

18 Cal. Const. art. XIIIA, § 3(a) (Proposition 26) ...... passim

19

20

21 22

23

24

25

26

27

28 410 11 OPPOSITION TO DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS 1 I. INTRODUCTION

2 Defendants and Respondents Kamala Harris and Stephen Lindley's (collectively

3 "Defendants") Motion for Judgment on the Pleadings ("MJOP") is based on an inherently

4 untenable premise. Defendants attempt to argue that no tax increase occurs, and thus there is no

5 factual foundation for a Proposition 26 claim, 1 when the government: (1) overcharges those

6 paying a regulatory fee and then (2) passes legislation to appropriate the resultant surplus to fund

7 activities that would otherwise be paid for out of the state's general fund. Specifically, Defendants

8 claim that because the amount of the DROS Fee charged to fee payers,2 $19.00, did not change as

9 a result of the relevant legislation, the legislation "did not increase the DROS fee, [a]nd in the

10 absence of such an increase, Proposition 26 does not apply." (MJOP 6:17-19.)

11 Defendants are wrong, and the MJOP fails, for the simple reason that Proposition 26 does

12 not concern whether a statutory change results in taxpayers paying a higher regulatory fee, as

13 Defendants claim. Proposition 26 concerns whether a statutory change results in any taxpayer is

14 "paying a higher tax[.]" Cal. Const. art. XIIIA, § 3(a) (emphasis added). The amount the state

15 charges taxpayers for a specifically named levy has no correlation to whether a portion of that

16 levy has become a tax by subsequent legislation. The DROS Fee was transformed by SB 819 from

17 a levy solely intended to cover regulatory costs into a levy that is part regulatory fee and part tax.

18 The DROS Fee had no tax component before SB 819, but it has a significant tax component

19 thereafter, meaning that after SB 819, DROS Fee payers were paying a tax they had not

20 1 One of Plaintiffs/Petitioners David Gentry, James Parker, Mark Midlam, James 21 Bass, and Calguns Shooting Sports Association's (collectively "Plaintiffs") key arguments herein is that Senate Bill ("SB") 819 (Leno, 2011) did constitute a "change in 22 state statute which result[ ed] in a[] taxpayer paying a higher tax," which, under 23 Proposition 26 (i.e., Article XIII A, section 3, of the California Constitution), required a two-thirds legislative vote to become law. As SB 819 did not meet the two-thirds 24 requirement, SB 819, as enacted, violates Proposition 26, a violation Plaintiffs sought to remedy by this action. (Compl./Pet. ["Compl."] ,i,i 5-11.) 25 2 The Dealer's Record of Sale Fee, i.e., the "DROS Fee." Pen. Code§ 28225; 11 26 Cal. Code Regs. Tit. 11, § 4001. Plaintiffs use the general term "DROS Fee" herein because it is the common name for the levy at issue, notwithstanding the fact that 27 Plaintiffs contend that, as a result of SB 819, it is not technically correct to refer to the 28 entire $19.00 amount being charged as a "fee[,]" inasmuch as part of the amount collected is now effectively a tax. 411 1 OPPOSITION TO DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS 1 previously paid. This is, as stated in Proposition 26, "a higher tax." Defendants' MJOP is

2 substantively without merit and should be denied.

3 II. STATEMENT OF FACTS

4 The MJOP deals with a very narrow issue, i.e., whether the passage of SB 819 caused "a

5 change in state statute which result[ ed] in any taxpayer paying a higher tax." Cal. Const. art.

6 XIIIA, § 3(a); (MJOP 6:7-11.) Thus, although Plaintiffs intend to provide a detailed factual

7 background once this case actually gets to the merits-briefing stage, the only factual issues

8 relevant to this Opposition are those concerning the purpose of the DROS Fee and how DROS

9 Fee funds were used immediately before and after SB 819 was implemented. Of course, if the

10 Court requests further factual information from Plaintiffs regarding the MJOP, they will be happy

11 to oblige.

12 A. Pre-SB 819

13 The California Department of Justice (the "Department") collects information on a

14 Dealer's Record of Sale ("DROS") Form, and uses the information collected as part of the

15 background check process that is performed for most firearm purchases. (Compl. 11.) The DROS

16 Fee is collected by the Department regarding each DROS Form that is submitted by a potential

17 firearm purchaser. (Id.) Funds obtained via the DROS Fee, along with certain other money

18 collected by the Department (see, e.g., entertainment firearm permit fees, Penal Code section

19 29510(a)(l)), are placed into the DROS Special Account, a segregated account in California's

20 general fund. 3 (Id.) Penal Code section 28235 lists the authorized uses for DROS Special Account

21 funds, which includes costs related to the submission of firearm purchaser information to the

22 Department. Since 2004, the DROS Fee has been $19.00. (MJOP 6:12-15 [citing Compl. 158].)

23 In 2010, the Department commenced rulemaking to reduce the DROS Fee from $19.00 to

24 $14.00, "commensurate with the actual cost of processing a DROS" form. (Franklin Deel. 13, Ex.

25 3 DROS Fee funds are the primary source of money deposited in the DROS 26 Special Account. (Declaration of Scott Franklin in Support of Opposition to Defendants' Motion for Judgment on the Pleadings ["Franklin Deel."] 12, Ex. 1.) Thus, although it is 27 impossible to trace the source of funds once they enter the DROS Special Account, any 28 significant amount of money appropriated from the DROS Special Account is, practically speaking, going to include DROS Fee funds. (Id.) 412 2 OPPOSITION TO DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS 1 2.) Around this time, the DROS Special Account was so over-inflated with funds collected under

2 the guise of the DROS Fee that the Governor was able to borrow $11,500,000 from the DROS

3 Special Account in 2011 without affecting the Department's operations. (Id. ,i 4, Ex. 3.)

4 The Department also prosed a new regulation in 2010 that would require the Department

5 to review, on a yearly basis, the amount being charged for the DROS Fee. (Id.ii 3, Ex. 2.)

6 Strangely, even though a Final Statement of Reasons was published and the rulemaking appeared

7 to be basically complete as oflate 2010 (id. ,i 5, Ex. 4), the rulemaking was mysteriously

8 abandoned. The Department never made a public statement explaining why it abandoned the

9 proposed rules after going through nearly the entire rulemaking process. (Id. ,i 6, Ex. 5 at 3.)

10 As a result of the instant lawsuit, however, Defendants have for the first time admitted that

11 the 2010 rulemaking was abandoned, in part, because someone within the Department wanted to

12 use "excess" DROS Fee funds to fund APPS-related law enforcement activities. (Franklin Deel. ,i

13 17, Ex. 16.) Defendant Stephen Lindley made the decision that the Department would abandon

14 the proposed reduction of the DROS Fee at some point after July 1, 2011. (Id. ,i,i 17-18, Exs. 16-

15 17.)

16 The Department is not required to charge the DROS Fee (Compl. ,i 39), but it is allowed

17 to charge the DROS Fee in an amount that is based on a determination of what it would take to

18 reimburse certain statutorily listed costs. (Id. ,i,i 38-40); see Penal Code§§ 28225(a-b), 28230(a).

19 Before SB 819 was enacted, the Department confirmed that "[f]unds from the DROS fee may

20 only be used for specific purposes delineated in Penal Code section 12076 [now 28225]."

21 (Franklin Deel. ,i 7, Ex. 6.) The Department made it very clear that it was "not authorized to use

22 DROS funds on the APPS [i.e., Armed and Prohibited Person System] program[.]" (Id.)

23 B. Post-SB 819

24 The Department's sponsorship of SB 819 became publicly known in early 2011. (Franklin

25 Deel. ,i 8, Ex. 7.) At the same time, the Department was holding the rulemaking to reduce the

26 DROS Fee to $14.00 in limbo. (Id. ,r,r 5, Ex. 4;17-18, Ex. 16-17.) Through SB 819, the

27 Department sought to obtain legislative approval of a plan whereby the Department would use

28 DROS Fee funds to support the Department's interest in expanding its own APPS-based law 413 3 OPPOSITION TO DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS 1 enforcement activities. (Id.) The Department's APPS-related activities were, prior to SB 819,

2 funded from the state's general fund. (Id. 19, Ex. 8.) For the purpose of this Opposition, it is

3 sufficient to state that the Department's expressed interest in DROS Fee funds did not concern the

4 "core" costs of APPS itself, e.g., the costs related to the maintenance of the APPS List.4 Rather,

5 the Department sought to use DROS Fee funds to pay for "APPS DOJ task forces" and "special

6 agents to assist other agents and local law enforcement in APPS sweeps[,]" e.g., confiscating

7 firearms from people named on the APPS List. (Id. 18, Ex. 7.)

8 Prior to the enactment of SB 819, the Department estimated it would seek a total of 1.5

9 million dollars ofDROS Fee funds for APPS-related law enforcement activities. (Id.) SB 819 was

10 signed into law on October 9, 2011. (Id. 111, Ex. 10). On December 23, 2011, the Department

11 submitted a "budget change request" seeking slightly over 1.6 million dollars from the DROS

12 Special Account "to support 8, 3-year limited term special agents to perform APPS

13 investigations." (Id. 112, Ex. 11). And within eight months of that request, more than $6 million

14 was appropriated from the DROS Special Account for APPS-related costs. (Id. 113, Ex. 12.)

15 Although the Department had already obtained vast DROS Fee funds in the immediate wake of

16 SB 819, the Department sponsored a bill in 2013 that, based on SB 819, sought an additional

17 appropriation ofDROS Fee funds for APPS-based law enforcement activities, this time in the

18 amount of twenty-four million dollars. (Id. 114, Ex. 13.) That bill, SB 140, became law on May

19 1, 2013.5 (Id.)

20 4 The APPS List is the result of the Department cross-referencing multiple 21 records to determine if a person who legally purchased a firearm still possesses that firearm even after the person, for some reason, has lost the legal ability to possess a 22 firearm. (Compl. 16, 66.) The people named on the APPS List are not necessarily convicted criminals. Slightly less than one-third of the people on the list became 23 prohibited due to mental health issues, about one-fifth are people subject to an active 24 restraining order (which does not equate to a criminal conviction), and the remainder are people subject to a firearm prohibition as a result of a criminal conviction. (Franklin Deel. 25 110, Ex. 9.) 26 5 SB 140 does not appear to be particularly relevant to the gravamen of the MJOP. The MJOP, however, refers to SB 140 as "the appropriation" ofDROS Special 27 Account funds pursuant to SB 819, which is not correct. (MJOP 6:7-10) (emphasis added.) As shown above, appropriations of DROS Fee funds pursuant to SB 819 have 28 occurred both before and after SB 140 became law. Accordingly, to the extent Defendants 414 4 OPPOSITION TO DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS 1 III. ARGUMENT

2 A. Legal Standard for a Motion for Judgment on the Pleadings

3 Plaintiffs agree with Defendants' MJOP as to what is required to bring a successful

4 motion for judgment on the pleadings, that is, the Defendants must show that a pleading, or a

5 cause of action therein, does not state sufficient facts to constitute a cause of action. (MJOP 6:6-

6 10 [citing Code of Civil Procedure section 438(c)(l)(B)(ii)].) The MJOP, however, also includes

7 case law regarding the relevance of judicially noticed facts and facts impossible in law, two issues

8 that do not appear to be argued anywhere in the MJOP. (Id. 5:12-15). Even though a reviewing

9 court is bound to "accept as true all material facts properly pleaded" and Defendants failed to

10 clearly allege the existence of any insufficiently pleaded facts, Plaintiffs will briefly explain how

11 the relevant facts are properly before the court, in an abundance of caution. Stevenson Real Estate

12 Servs., Inc. v. CB Richard Ellis Real Estate Servs., Inc., 138 Cal. App. 4th 1215, 1219-20 (2006)

13 ( citation omitted).

14 1. The Relevant Factual Allegations Are Not Disputed

15 Plaintiffs' Proposition 26 claim is based on two key facts: (1) The DROS Fee being

16 charged in the years preceding SB 819 was patently excessive, and (2) the express intent behind

17 SB 819 was to use the historical and future surplus generated by the excessive fee to fund

18 activities that would otherwise be paid for out of the state's general fund. (Comp 1. 112-4, 66.)

19 Defendants cannot reasonably challenge the truth of these two facts.

20 As to fact no. 1, Defendant Harris' own press release regarding the Governor's signing of

21 SB 819 refers to the funds at issue as "surplus[,]" thus Defendants long ago recognized that the

22 DROS Fee being charged was excessive. (Franklin Deel. 115, Ex. 14). And as to fact no. 2, the

23 intent behind SB 819 is pellucid from its text. SB 819 section l.g., states that:

24 [r]ather than placing an additional burden on the taxpayers of California to fund enhanced enforcement of the existing armed prohibited persons program, it is the 25 intent of the Legislature in enacting this measure to allow the DOJ to utilize the

26 are attempting to claim that SB 819 needed additional legislation to become effective, it did not. Indeed, the budget change proposal ("BCP") dated December 23, 2011, whereby 27 the Department sought approximately 1.6 million dollars pursuant to SB 819, clearly 28 indicates that the BCP did not require further legislative action prior to appropriation. (Id. 112, Ex. 11, at 1.) 415 5 OPPOSITION TO DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS 1 Dealer Record of Sale Account for the additional, limited purpose of funding enforcement of the Armed Prohibited Persons System. 2 (Id ,i 11, Ex. 10); (see MJOP 3:2-5 [admitting the Armed and Prohibited Person System, i.e., 3 APPS, was funded with general fund money prior to SB 819].) 4 B. The Term "Higher Tax" Plainly Includes the Tax Created by SB 819 5 When construing a provision of the state Constitution brought about by voter 6 initiative, we apply the same interpretive principles governing statutory construction. [O]ur paramount task is to ascertain the intent of those who enacted 7 it. We look first to the provision's language as the best indicator of the voters' intent giving words their ordinary meaning and construing them in the context of 8 the measure as a whole and its overall scheme. Absent ambiguity, we presume that the voters intend the meaning apparent on the face of an initiative measure ... and 9 the court may not add to the statute or rewrite it to conform to an assumed intent that is not apparent in its language. 10

11 City ofSan Buenaventura v. United Water Conservation Dist., 235 Cal. App. 4th 228,243 (2015)

12 (citations omitted) (quotation marks omitted). "Where there is ambiguity in the language of the

13 measure, '[b]allot summaries and arguments may be considered when determining the voters'

14 intent and understanding of a ballot measure."' (Id) ( citation omitted).

15 Defendants are off the mark in claiming "SB 819 simply did not result in any change in

16 state statute resulting in anyone paying a 'higher' amount of anything." (MJOP 6:16-18.) The

17 language of the constitutional provision at issue is simple, and the application here is clear.

18 Before SB 819, DROS Fee payers did not get singled out to pay for law enforcement

19 investigations of those on the APPS list, but after SB 819, they did. SB 819 created a firearm

20 purchaser tax that did not exist before SB 819, and going from zero tax to some amount of tax

21 plainly satisfies the "higher tax" element of a Proposition 26 claim. 22 1. Proposition 26 Was Intended to Prevent "Revenue-Neutral" Taxes, Like the 23 One Created by SB 819, from Being Enacted on a Bare Majority Vote

24 Even assuming arguendo that there could be any doubt about whether a "higher tax" exists

25 in this instance, the intent behind Proposition 26 is crystal clear, and it destroys Defendants' claim

26 that "Proposition 26 does not apply." (MJOP 6:6-19.) The express purpose of Proposition 26 was

27 to "broaden[] the definition of a state or local tax to include many payments currently considered

28 to be fees or charges." (Franklin Deel. ,i 16, Ex. 15.) The state legislative analysis explained that 416 6 OPPOSITION TO DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS 1 "[g]enerally, the types of fees and charges that would become taxes under [Proposition 26] are

2 ones that government imposes to address health, environmental, or other societal or economic

3 concerns." (Id.) And the ballot argument in favor of Proposition 26 clearly states that Proposition

4 26 requires "a two-thirds vote of each house of the Legislature to approve laws that increase taxes

5 on any taxpayer, even if the law's overall.fiscal effect does not increase state revenues." (Id. at

6 57) (emphasis added).

7 This requirement was intended "to end the Legislature's practice of approving by a simple

8 majority vote so-called 'revenue-neutral' laws that increased taxes for some taxpayers but

9 decreased taxes for others." Schmeer v. Cnty. ofLos Angeles, 213 Cal. App. 4th 1310, 1329

10 (2013). SB 819 was exactly that, i.e., a law intended to "increase taxes for some taxpayers[, i.e.,

11 DROS Fee payers,] but decrease[] taxes for others [i.e., all other taxpayers who do not pay the

12 DROS Fee]." SB 819 was exactly the type of"revenue-neutral" shell game that Proposition 26

13 was intended to thwart. Defendants' failure to address this fact in the MJOP confirms what is

14 shown above: SB 819 created a "higher tax" on DROS Fee payers, and thus the MJOP fails.

15 2. SB 819 Created a Tax, Based on Department of Finance Guidance

16 Finally, Plaintiffs believe it is appropriate to restate something already argued in the

17 context of the underlying discovery dispute:6 the California Department of Finance has clearly

18 stated that the funds at issue, "when transferred, may become proceeds of taxes." (Motion to

19 Compel Further RFA Responses 9:9-27.) This is exactly what happened here: when DROS Fee

20 funds were transferred out of the DROS Special Account pursuant to SB 819 to fund activities

21 that were historically funded out of general tax revenues ( e.g., APPS-based law enforcement

22 activities), the transferred DROS Fee funds became "the proceeds of taxes." (Id.) Therefore,

23 although the DROS Fee did not completely change its character (assuming the Department is still

24

6 25 I.e., Plaintiffs' Motion to Compel Further Responses to Request for Admissions, Set One, Propounded on Defendants Kamala Harris and Stephen Lindley; Memorandum 26 in Support thereof, at Section III.C.4. (hereinafter "Motion to Compel Further RFA Responses[,]" dated and filed February 17, 2015); and the Reply filed in support thereof, 27 at Section II.A.2. (dated and filed April 14, 2015). As stated in these briefs, Defendants' MJOP arguments arose as a purported justification once Plaintiffs sought to remedy 28 Defendants' failure to fully comply with discovery propounded by Plaintiffs. 417 7 OPPOSITION TO DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS 1 funding the regulatory aspects of the DROS process via DROS Fee funds), the use ofDROS Fee

2 funds for APPS-related law enforcement activities pursuant to SB 819 turned at least some

3 portion of the DROS Fee into a tax. If a change in statute causes the proceeds of a fee to become

4 "the proceeds of a tax[,]" that means there is a tax where there was no tax before, and thus there is

5 a "higher tax" as is required for a Proposition 26 claim. SB 819 transformed DROS Fee proceeds

6 into tax proceeds, and that "higher tax" prevents Defendants from prevailing on their MJOP.

7 C. The MJOP Cannot Be Used to Raise or Argue Factual Issues to Be Determined 8 During Future Merits Briefing

9 Based on the brevity of and lack of clarity in the MJOP, Plaintiffs are unsure if

10 Defendants are currently arguing only that: (1) Proposition 26 does not apply because the DROS

11 Fee itself was not raised as a result of SB 819, or if they are also arguing that (2) it does not apply

12 because the DROS Fee is in no part a tax, and 0% tax cannot be a "higher tax" triggering the

13 requirements of Proposition 26. If Defendants are attempting to argue whether the use ofDROS

14 Fee funds for APPS-based law enforcement activities constitutes a tax, that issue is plainly not

15 ripe. To the extent Defendants are conflating the current dispute (whether SB 819 created a

16 "higher" tax), with one of the ultimate questions herein (whether the use ofDROS Fee funds for

17 APPS-related activities constitutes a tax), such argument should be ignored at this stage.

18 Article XIIIA, section 3(d) of the California Constitution makes it absolutely clear that

19 determining whether the post-SB 819 DROS Fee is a tax hinges on multiple fact questions. That

20 is, in applying the relevant constitutional definition of what is a "tax," the court will have to

21 wrestle with factual issues like whether the levy here falls within one of the factually based

22 exclusions ( e.g., is the levy imposed for a specific benefit that non-payers do not receive?) or

23 whether the Department has met its burden to show, among other things, "that the amount is no

24 more than necessary to cover the reasonable costs of the governmental activity[.]" Cal. Const. art

25 XIIIA, § 3(a)(l), (d). Motions for judgments on the pleading are plainly not the proper mechanism

26 to resolve factual disputes. See Gerawan Farming, Inc. v. Lyons, 24 Cal. 4th 468, 504 (2000)

27 (holding that factual allegations are accepted as true and given liberal construction in response to

28 a motion for judgment on the pleadings). Accordingly, to the extent the MJOP includes an

418 8 OPPOSITION TO DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS argument that turns on a factual question--either directly or as a foundational requirement for a 1 question of law-that argument should be ignored. 2 IV. CONCLUSION 3 The Department collects more than three million dollars every year because the amount of 4 the DROS Fee charged is well over what is required. (Franklin Deel. ,i 15, Ex. 14.) Under SB 819, 5 DROS Fee payers now bear the primary responsibility for funding APPS-related law enforcement 6 activities, a burden that all of California's taxpayers shared equally before the law was adopted. 7 Plainly, SB 819 created a "higher tax" for DROS Fee payers. 8 The DROS surplus is not "found money." If the legislature seeks to impose a "special tax" 9 on DROS Fee payers such that they pay a tax that others taxpayers do not, the legislature must 10 comply with the two-thirds vote requirement as they would when creating any other tax. It is of no 11 import that the money at issue was, in part, already collected by the Department when SB 819 12 became law. Whether or not a tax exists-and whether or not a "higher tax" exists-is a question 13 that turns on how the government intends to use the revenue regardless of when the revenue was 14 collected or how the levy is characterized at the time of collection. (Motion to Compel Further 15 RFA Responses 9:9-27.) 16 Plaintiffs have previously filed two briefs explaining why Defendants' MJOP argument 17 fails. 7 And yet, the MJOP does not even attempt a rebuttal of Plaintiffs' arguments. That fact is 18 telling. SB 819 is exactly the kind of "hidden" tax that Proposition 26 was intended to address. 19 For the reasons stated herein, the MJOP should be denied in its entirety. 20

21 MICHEL & ASSOCIATES, P.C. 22 Dated: May 19, 2015

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28 7 See supra note 6. 419 9 OPPOSITION TO DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS PROOF OF SERVICE 1 STATE OF CALIFORNIA 2 COUNTY OF LOS ANGELES 3 I, Laura L. Quesada, am employed in the City of Long Beach, Los Angeles County, 4 California. I am over the age eighteen (18) years and am not a party to the within action. My business address is 180 East Ocean Blvd., Suite 200, Long Beach, CA 90802. 5 On May 19, 2015, the foregoing document(s) described as 6 OPPOSITION TO DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS 7 on the interested parties in this action by placing 8 [ ] the original [X] a true and correct copy 9 thereof enclosed in sealed envelope(s) addressed as follows:

10 Kamala D. Harris, Attorney General of California Office of the Attorney General 11 Anthony Hald, Deputy Attorney General 1300 I Street, Suite 1101 12 Sacramento, CA 95814

13 _x_ (BY MAIL) As follows: I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under the practice it would be deposited with the 14 U.S. Postal Service on that same day with postage thereon fully prepaid at Long Beach, California, in the ordinary course of business. I am aware that on motion of the party 15 served, service is presumed invalid if postal cancellation date is more than one day after date of deposit for mailing an affidavit. 16 Executed on May 19, 2015, at Long Beach, California.

17 _x_ (VIA ELECTRONIC MAIL) As follows: I served a true and correct copy by electronic transmission. Said transmission was reported and completed without error. 18 Executed on May 19, 2015, at Long Beach, California.

19 (PERSONAL SERVICE) I caused such envelope to delivered by hand to the offices of the addressee. 20 Executed on May 19, 2015, at Long Beach, California.

21 _x_ (STATE) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 22 (FEDERAL) I declare that I am employed in the office o 23 court at whose direction !lJ.e-serviee-wi;i~ made.,_.--i---..._

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25 26

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28 420

OPPOSITION TO DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS 1 C. D. Michel- S.B.N. 144258 Scott M. Franklin- S.B.N. 240254 2 Sean A. Brady- S.B.N. 262007 :MICHEL & ASSOCIATES, P.C. 3 180 E. Ocean Boulevard, Suite 200 Long Beach, CA 90802 4 Telephone: 562-216-4444 Facsimile: 562-216-4445 5 Email: [email protected]

6 Attorneys for Plaintiffs/Petitioners

7

8 SUPERIOR COURT OF THE STATE OF CALIFORNIA

9 FOR THE COUNTY OF SACRAMENTO 10 DAVID GENTRY; JAMES PARKER; ) CASE NO. 34-2013-80001667 11 MARK MIDLAM; JAMES BASS; and ) CALGUNS SHOOTING SPORTS ) DECLARATION OF SCOTT M. 12 ASSOCIATION, ) FRANKLIN IN SUPPORT OF ) OPPOSITION TO DEFENDANTS' 13 Plaintiffs and Petitioners, ) MOTION FOR JUDGMENT ON THE ) PLEADINGS 14 vs. ) ) 15 KAMALA HARRJS, in Her Official ) Capacity as Attorney General for the State ) 16 of California; STEPHEN LINDLEY, in His ) Official Capacity as Acting Chief for the ) 17 California Department of Justice; JOHN ) ClilANG, in his official capacity as State ) 18 Controller for the State of California; and ) DOES 1-10, ) Date: 06/05/15 19 ) Time: 9:00 a.m. Defendants and Respondents. ) Dept.: 31 20 ------) Action filed: 10/16/13 21 II I

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1 421 DECL. OF SCOTT M. FRANKLIN ISO OPP. TO DEFENDANTS' MJOP 1 DECLARATION OF SCOTT M. FRANKLIN

2 I, Scott M. Franklin, declare:

3 I. I am an attorney at law admitted to practice before all courts of the state of

4 California. I have personal knowledge of each matter and the facts stated herein as a result of my

5 employment with Michel & Associates, P.C., attorneys for Plaintiffs/Petitioners ("Plaintiffs"), and

6 if called upon and sworn as a witness, I could and would testify competently thereto.

7 2. A true and correct copy of the Report of an email from Amy Jarvis, California

8 Department of Finance, to Lisa Mangat, California Department of Finance, dated March 2013, is

9 attached hereto as Exhibit 1. I obtained a copy of this document in response to a Public Records

IO Act request my office made to the California Department of Finance.

11 3. A true and correct copy of the Notice of Proposed Rulemaking regarding the

12 California Department of Justice's (the "Department") 2010 proposal to reduce the Dealer's

13 Record of Sale Fee from $19.00 to $14.00 is attached hereto as Exhibit 2. I obtained a copy of this

14 document from the Department during discovery in this litigation.

15 4. A true and correct copy of an excerpt of the Department's 2012-2013 budget is

16 attached hereto as Exhibit 3. I obtained a copy of this document from the government website

17 http:7/www.ebudget.ca.gov/.

18 5. A true and correct copy of the Final Statement of Reasons regarding the

19 Department's 2010 proposal to reduce the Dealer's Record of Sale Fee from $19.00 to $14.00 is

20 attached hereto as Exhibit 4. I obtained a copy of this document from the Department during

21 discovery in this litigation.

22 6. A true and correct copy of the letter sent to me by Department attorney Mr.

23 Anthony Hald on December 4, 2014, is attached hereto as Exhibit 5.

24 7. A true and correct copy of the Department's official responses to public comments

25 created as part of the 2010 proposal to reduce the Dealer's Record of Sale Fee from $19.00 to

26 $14.00 is attached hereto as Exhibit 6. I obtained a copy of this document from the Department

27 during discovery in this litigation.

28 8. A true and correct copy of the Assembly Committee on Appropriation analysis

422 2 DECL. OF SCOTT M. FRANKLIN ISO OPP. TO DEFENDANTS' MJOP 1 regarding the hearing of July 6, 2011, is attached hereto as Exhibit 7. I obtained a copy of this

2 document from the governmental website http://leginfo.legislature.ca.gov/.

3 9. A true and correct copy of the Senate Committee on Public Safety analysis

4 regarding the hearing of April 26, 2011, is attached hereto as Exhibit 8. I obtained a copy of this

5 document from the governmental website http://leginfo.legislature.ca.gov/.

6 10. A true and correct copy of the Assembly Committee on Appropriation analysis

7 regarding the hearing of April 10, 2013, is attached hereto as Exhibit 9. I obtained a copy of this

8 document from the governmental website http://leginfo.legislature.ca.gov/.

9 11. A true and correct copy of SB 819 (Leno, 2011 ), as enacted, is attached hereto as

10 Exhibit 10. I obtained a copy of this document from the governmental website

11 http://leginfo.legislature.ca.gov/.

12 12. A true and correct copy of a Budget Change Proposal submitted by the

13 Department, dated December 23, 2011, as enacted, is attached hereto as Exhibit 11. I obtained a

14 copy .of this document from the Department during discovery in this litigation.

15 13. A true and correct copy of an excerpt out of the Deposition of Stephen Lindley,

16 taken February 21, 2014, is attached hereto as Exhibit 12. I took the deposition at issue as part of

17 the case Barry Bauer et al. v. Kamala Harris et al., Case No. 1 :11-cv-0440-LJO-MJS (E.D. Cal.).

18

19 14. A true and correct copy of SB 140 (Leno, 2014), as enacted, is attached hereto as

20 Exhibit 13. I obtained a copy of this document from the governmental website

21 http://leginfo.legislature.ca.gov/.

22 15. A true and correct copy of a pair of Department press releases are attached hereto

23 as Exhibit 14. I obtained a copy of one of the two press releases from the governmental website

24 http://leginfo.legislature.ca.gov/, and the other was produced by the Department during discovery

25 in this litigation.

26 16. A true and correct copy of the Legislative Analyst's analysis of Proposition 26

27 (2010 voter initiative), as included in the voter information materials prepared by the Office of the

28 Attorney General for the state of California, is attached hereto as Exhibit 15. I obtained this copy

423 3 DECL. OF SCOTT M. FRANKLIN ISO OPP. TO DEFENDANTS' MJOP 1 from http://www.voterguide.sos.ca.gov/past/201 0/general/propositions/26/.

2 17. A true and correct copy of relevant excerpts of Defendant Kamala Harris and

3 Stephen Lindley's ("Defendants") Responses to Requests for Admissions (Set Two) is attached

4 hereto as Exhibit 16. The relevant document was emailed to me by Defendants' attorney on May

5 15, 2015. The discovery response at issue was originally due April 24, 2015, but that production

6 deadline was extended as a courtesy.

7 18. A true and correct copy of relevant excerpts of Defendants' Responses to Special

8 Interrogatories (Set Two) is attached hereto as Exhibit 17. The relevant document was emailed to

9 me by Defendants' attorney on May 15, 2015. The discovery response at issue was originally due

10 April 24, 2015, but that production deadline was extended as a courtesy.

11 19. As to all of the documents attached hereto that were obtained from governmental

12 websites, the documents were retrieved from such websites within two weeks of the date of this

13 Declaration. I do not believe the Defendants herein dispute the origin or genuineness of such

14 documents, but I will be happy to describe they way I obtained the relevant document via step-by­

15 step recreation ofmy actions, should that be necessary.

16 I declare under penalty of perjury under the laws of California that the foregoing is true

17 and correct, and that this Declaration was executed on May 19, 2015, at Long Beach, California.

18

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27 28

424 4 DECL. OF SCOTT M. FRANKLIN ISO OPP. TO DEFENDANTS' MJOP . Exhibit 1

425 McClatn, Madelynn Fnn: Jarvis, Amy lent: Frtdlly, March 01, 2013 4:88 PM To: HEARINGS Cc: Mangat. Ulla; McCleln, Mad__,; SugN, Jay. June Qark SubJect: SB 1«>,t>ROS - Hearing Monday Albmhmenta: SCANm97.pdf. lb_140_blUQ130128_ntrodUC811.pdf

Resending .. .fo,got attachments.

J.mtL.lllvll -~ -d,..._ ...,, ·~·-·•··~••--..u .. ,...... ·- ·... ·-·-··· .. ,,... .._ ,_ ___ ,,. .,_ _ ___.., ..... ,.- •.1.•.~•... - ~.... . --•... -~ --·.. ·-•- ... -.- Fl'acn: Jarvis, MP/ 1anb Frld!IV, March 01, 2013 3:41 PM Tor HEARINGS Cc: Mangat. Liu (LIILMlnQatOdaf.at.p); madelynn rnc:dllbt; llrf Sturges; lune Ollrk SUl,Ject: 58 140/DROS - Heming Monday

SB 1~, the bll appropriating '24 mllllon from the Dealerw' Record of Sale to expand the Armed Prohibited Penona Syn,m (ldantfflea ~ ptahl,lted from pD88tllll~ fll'Nl'ffl8} 18 bafng heard by the Senate Monday, March 4th and we expect It to be heard on the flcor on Friday, March 7th. "r'he blll and pn,poaed a~menm are aaached for your lnfon'ndan. The Intent la 1D elmlnate Iha curant backlog, MIich 18 around 19,00D lndMduala, ovar a period of thr&,yeara. The propcaed amendmenta lmpoaa apeolflc reporting requnmenta on DOJ, which we understand W8l'8 developed In ooordlnatlan with.DOJ (I left m11118Q81 with Nathan Barankln to ocnfltrn). I apoke to June Clark, and at 1h18 point, my teetlrnony WIii be Urnllad to the facta and I wlll not atate a l)Ollllon. J1.11e wlll let me know If anything changes DYar the weekend. We 818 comfortable that the OROS can euppart the augmentation baled on the lnformaUon provided below. If you have any qU88tlons, plaaae let me know.

At the end of the 2011-12 Flacal Year, the OROS had an ending fund balance of S12.4 mu11on£0§0S'1 primary 80lWC8 of nMnue 18 derived from the flleann ellglblllly background check appllcatlon fae_JThe OROS also recalvee appro,cfmately $5 mOllon frorn llcenaee and parmltl. Fnarm purchaeara ara raqund to pay a non-refundable fee of $26 for the baekgraund check. of tile amol.l'lt, $19 ls depadad lntD the DR08.

The fUnd condition atatemant Included In the 2013-14 Governor'• Budget eetin lltad that OROS would receive $18.1 rnllton from the background chec:k fN In 2012-13, baled on yeaHD-date ftraarm aala dllll that estimated DOJ would Pl"OCela aPPft)Xlmalely 860,000 baclcground chedcl. Firearm l8lee haw exandecl thaee pn,JICIOnl 81gnJftcantly and fil9lffll uln fn:xn July 1, 2012, through Fabn.ay 27, 2013, hava 1ncreaaec1 aPPf0)dmatlly eo.1 peroant CMr lhe 1&me 1me period In 2011-12 (nota that 1h11 lnformetlon la aanalllantwtth the luforn ■IIDn pravlded In our raoent requaat 10 augmant OROS for proaalllng tlreann Pll'Cha&lna appllcatlona). sco da1a aonftrma the lncnaeed rewnue ha mateffallz8d-r9Wlnue hough February 28, 2012w $8.4 mlllon aompared 10 rewnuettvough Febnay27, 2013of$12.9mllon, an lncraaae Qf 64 percent (Ille total ldlo lnaludu the llc:enaa and parmH nMHIUN). Bued on the revenue Wormatlan and number of appllcallonB received ,...to-date, ft Is re•onable 11:1 wume that DOJ wl1 procaae apprcndrnat81y 1,228,000 background checlca, generating approximately $23.3 mlltan In rwenue for 2012-13, and lncrNN rl $7 .2 mllon oompanad to projeollona Jndudad In the GovernDr'• Budaat. The table below pl"DYldaa the ftacll analyala maupport our conalueJDn that 1118 OROS can support the augmantatlon aa propoaad In SB 140. HlatDrlcal data doaa not lndfelele that tlrwm lalaa wlR lncna1e at the same level far conaaautlV8 years. The average yearty lncraaae ., flreann .._ alnce 2007-08 18 appraxlmately 16 peraent. We have applied this conaervattve lncnaae In prolectl~ revanu• far future yeara rather than aull'Tllng that Iha llgnllaant lncreala axparlanoed for 1he flrat IIMRI rnanlha of this fllcal year wlll continue at that !awl. Addlllonalfy, we have accounlBd for aome growth In the mcpendl1urea for ala opendlone and oantnll l8rvlce col1a (Jdentlffed as mlaaellaneoua In the table below) to continua with the conserva11ve l .

426 approach. Note that the tabla lncluclee the CY augmen1ation af $3.2 mlllon, "9 $1.8 mlllan augmentation .added In the 2012 Budget Ad. that,. authorf:md for three-yeera, and the propaeed augmen1a11on In the Governor'a Budget that would ■ lea end In 2015-18. Whle the 1able below apraada thl $24 mlllon equally over a period ~ thraa yura, we don"t exped DOJ'a expenditures to adually occur that way. It la unllkely that they wlll apand $8 mll1fon In the currant year with four monlh9 nnnalnlng, which wauld con1rtbute to a higher beglMlng balanoefDr 2013-14 and allaNthem pllnty of roam ta apend a gruter amountowr1he tfne,.year petiod If neceaaary. We Wlh evaluate the expendlhn levels during the May Revfafon and as wa dMlop and update th• Budgela for 2014-16 and 201&-18, ard can c:onaldar demattvaa If we think It la n808IIIIY (i.e •• addlllonal aus,nantatlont, languege to Omit the level of mcpenclllure, etc.}. The tabla also aaawnea that 1he $11.5 mllllon Qeneral Fund loan repayment wouldn't be made untl 2018-18, but we niconalder1hetinlng of loan r.paymenta dlll'ql each budget procaaa. The l)U'POl8 of diaplaylng tha loan repayment fn 201~1e la to shoW that th8t8 would lkely be no General Fund Impact• a reautt of thla bl. .

ldollera In lhouaandll) 2011-12 2012--13 2013-14 2014-15 2016--18 Bmlnnlna.Bala..- 118.231 112.A39 11.008 11.118 17.AM Revenue: . ( UOlnlllandPermlll. 2.898 4888 4.188 4.888 4.888 mctCheakF• - 14,429 23.271 27.021 81.844 38..3!9 Mllolllaneoua 2 2 2 2 2 LoantD IFtl,d .. 11 aoo 0 0 0 ... __0 Total~ SK.Geo ..... UT,818 Mi.AU E'KDl!llndlture&: S1ata0M (11548 {22 828 (24.000} (28.000 (28 000) Pronaaad APPS Fundtna (0 ca.ooo Ill.DOD) tB.000 (0) OROS· - . . (0 {3.290 (0) lO (0) Em. 12/18 APPS BCP 0 0 0 0 1.eo2 EXD. 13/14 OROS Wldd BCP 0 0 0 988 1.628 Mlloellaneoue {73 f&21) (1001 1.0DO (1.200) , ...... 197) , Total - ·-- IS11J 121 ~700) .. ,.. ~4• f121L072) Avallabla Fund l!llllanca 112A llt .... 218 11Allt 122 .... ,

l

427 Exhibit 2

428 NOTICE OF PROPOSED RULEMAKING

The Department of Justice proposes to amend section 4001 of Title 11, Division 5, Chapter 1, of the California Code of Regulations (CCR) concerning Dealer's Record of Sale (DROS) fees after considering all comments, objections, and recommendations regarding the proposed action.

PUBLIC HEARING

The Department of Justice (DOJ) will hold a public hearing on Wednesday, September 15, 2010, to receive public comments on the proposed regulatory action. The hearing will be held at 9:00 a.m., at the Department of Water Resources auditorium at 1416 9th Street, Sacramento. The auditorium is wheelchair accessible. At the hearing, any person may present oral or written comments regarding the proposed regulatory action. The DOJ requests, but does not require, that persons who make oral comments at the hearing also submit a written copy of their testimony. ·

WRJ'ITEN COMMENT PERIOD

Any interested person, or his or her authorized representative, may submit written comments relevant to the proposed regulatory action to the DOJ. The written comment period closes on September 15, 2010 at 5:00 p.m. Only comments received at DOJ by that time will be considered. Written comments should be submitted to:

Mail: Jeff Amador Department of Justice P.O. Box 820200 Sacramento, CA 94203-0200 or Email: [email protected]

AUTHORITY AND REFERENCE

Authority: Penal Code section 12076 Reference: Penal Code sections 12072, 12076, 12083, and 12289

INFORMATIVE DIGEST/POLICY STATEMENT OVERVIEW

Penal Code section 12076, subdivision (f), authorizes the DOJ to charge a fee sufficient to reimburse its costs for processing Dealer's Record of Sal~ (DROS) transactions. Since November 2004, the basic DROS fee has been $19. The proposed regulations would lower the OROS fee to $14. The proposed regulations would also require the department to review its OROS revenues and OROS-related expenses at the end of each fiscal year to determine whether it is necessary to adjust the DROS fee. By November 1, 2010 and by November 1st each year thereafter, the department shall publish its determination on the DOJ public website. If the department determines it is necessary to administratively adjust the DROS fee, the department shall provide

AGRFP000044 429 notice of the amount and date of the adjustment at least 30 days before the adjustment takes effect to all interested parties. DISCLOSURES REGARDING THE PROPOSED ACTION

The Department of Justice has made the following determinations:

Mandate on local agencies or school districts: None.

Cost or savings to any state agency: None.

Cost to any local agency or school district which must be reimbursed in accordance with Government Code sections 17500 through 17630: None.

Other nondiscretionary cost or savings imposed on local agencies: None.

Cost or savings in federal funding to the state: None.

Significant, statewide adverse economic impact directly affecting business, including the ability of California businesses to compete with businesses in other states: None.

Cost impacts that a representative person or business would incur in reasonable compliance with the proposed action: Individuals who acquire firearms will benefit from the $5.00 decrease in the OROS :fee. Firearm dealers may also benefit through increased firearm sales due to the lower DROSfee.

Significant effect on housing costs: None.

Small business determination: The department has determined the proposed regulations could have a positive impact on fireann dealers thro-q.gh an increase in firearms ·sales due to the lower OROS fee. Although the DROS fee is collected by firearms dealers, the full fee amount is subsequently submitted to DOJ by the dealers.

Assessment regarding effect on jobs/businesses: Adoption of the proposed regulations will not:

(1) Create or eliminate jobs within California; (2) Create new businesses or eliminate existing businesses within California; or (3) Affect the expansion of businesses currently doing business within California.

CONSIDERATION OF ALTERNATIVES In accordance with Government Code section 11346.5, subdivision (a)(l 3), DOJ must determine that no reasonable alternative was considered, or has been identified and brought to the att~ntion of DOJ that is more effective in carrying out the purpose of the action proposed, or would be as effective and less burdensome to affected private persons than the proposed regulations. Any person interested in presenting statements or arguments with respect to alternatives to the proposed regulations may do so at the scheduled hearing or during the written comment period.

AGRFP000045 430 . .

CONTACT PERSONS

Please direct inquiries concerning the proposed administrative action to Jeff Amador at (916) 263-0256, or Jennifer Almanza at (916) 274-6136. The mailing address for Jeff Amador and/or Jennifer Alm.am.a is:

Department of Justice Division of Law Enforcement/Bureau of Firearms P.O. Box J60487 Sacramento, CA 95816-0487

AVAILABILITY OF RULEMAKING FILE INCLUDING THE INITIAL STATEMENT OF REASONS AND TEXT OF PROPOSED REGULATIONS

DOJ will have the entire rulemaking file available for inspection and copying throughout the rulemaking process. The initial statement of reasons and the text of proposed regulations are available at the DOJ website at http://caag.state.ea.us/firearms/regs. Copies may also be obtained ,by contacting Jennifer Almanza.

AVAILABILITY OF CHANGED OR MODIFIED TEXT

After considering all timely and relevant comments received, DOJ may adopt the proposed regulations substantially as described in this notice. If DOJ makes modifications which are sufficiently related to the .originally proposed text, it will make the modified text (with the changes clearly indicated) available to the public for at least 15 days and accept written comments before DOJ adopts the regulations. Copies of any modified text will be available at the DOJ website at http://caag.state.ca.us/firearms/regs. A written copy of any modified text may he obtained by contacting Jennifer Almanza.

AVAILABILITY OF FINAL STATEMENT OF REASONS

Upon completion, the final statement of reasons will be available on the DOJ website at httJ)://caag.state.ca.us/firearms/regs. You may also obtain a written copy of the final statement of reasons by contacting Jennifer Almanz.a.

AVAILABILITY OF DOCUMENTS ON THE INTERNET

Copies of the Notice of Proposed Action, the Initial Statement of Reasons, and the text of the regulations in strikeout and italics format, as well as the Final Statement of Reasons once it is completed, are available at our website at http://caag.state.ca.us/firearms/regs.

AGRFP000046 431 Exhibit 3

432 LEGISLATIVE, JUDICIAL, AND EXECUTIVE WE 1

0820 DepartmentofJustice The constitutional office of the Attorney General, as chief law officer of the state, has the responsibility to see that the laws of California are uniformly and adequately enforced. This responsibility Is fulfilled through the diverse programs of the Department of Justice. The Department of Justice Is responsible for providing skillful and efficient legal services on behalf of the people of California. The Attorney General represents the people in all matters before the Appellate and Supreme Courts of Califomla and the United States; serves as legal counsel to state officers, boards, commissioners and departments; represents the people In actions to protect the envfronment and to enforce consumer, antitrust, and civil laws; and assist district attorneys in the administration of justice. The Department provides oversight, enforcement, education and regulation of California's flreanns/dangerous weapon laws; provides evaluation and analysis of.physical evidence; regulates legal gambling activities In California; supports the telecommunications and data processing needs of the California criminal justice community; and pursues projeds designed to protect the people of California from fraudulent, unfair, and Illegal activities. Since department pro11rams drive the need for Infrastructure Investment, each department has a related capital outlay program to support this need. For the specifics on the Department of Justice's Capital Outlay Program see "Infrastructure Overview."

3-YR EXPENDITURES AND PERSONNEL YEARS

Penonnel Years ExR!ndlturaa 2010-11 2011-12 2012-13 2010-11* 2011-12* 2012-13* 11.01 Directorate and Administration 879.9 965.4 965.4 $81,940 $88,382 $91,329 11.02 Dlstrlbutad Directorate and Administration -81,940 -88,382 -91,329 20 Legal Services 1,444.0 1,495.5 1,495.5 315,054 367,203 375,594 50 Law Enforcement 1,259.0 1,194.9 1,059.0 215,362 209,453 189,755 80 Callfomla Justice Information Services 981.6 1,133.4 1,133.4 136,121 155,142 158,029 95 Reimbursement for General Fund Legal Services Cost, -60,000 TOTALS, POSITIONS AND EXPENDITURES (All Programs) 4:6~.5 4,789.2 4,663.3 $666,537 $871,798 $723,378

FUNDING 2010-11* 2011-12* 2012-13* 0001 General Fund $287,455 $168,633 $201,152 0012 Attorney General Antitrust Account 1,878 2,222 2,346 0017 Fingerprint Fees Account 55,576 67,508 68,840 0032 Firearm Safety Account 310 337 338 0044 Motor Vehicle Account, State Transportation Fund 22,756 24,383 24,898 0142 Department of Justice Sexual Habltual Offender Fund 2,043 2,187 2,290 0158 Travel Seller Fund 951 1,381 1,401 0214 Restitution Fund 5,191 5,210 5,215 0256 Sexual Predator Public Information Acoount 82 171 181 0387 Indian Gaming Special Distribution Fund 13,602 14,142 15,224 0378 False Claims Act Fund 9,320 10,803 11,821 0460 Dealers' Record of Sala Special Account 10,226 12,073 18,698 0566 Department of Justice Chlld Abuse Fund 321 367 3n 0567 Gambling Control Fund 7,085 7,605 7,822 0569 Gambling Control Fines and Penalties Acoount 41 48 47 0641 Domestic Violence Restraining Order Reimbursement Fund 1,744 1,018 1,018 0890 Federal Trust Fund 29,066 33,948 34,412 0942 Special Deposit Fund 919 2,769 '2,769 0995 Reimbursements 33,679 40,250 37,584 1008 Firearms Safety and Enforcement Special Fund 3,092 3,331 3,422 3016 Missing P81110ns DNA Data Base Fund 3,011 3,296 3,351 3053 PubRc Rights Law Enforcement Special Fund 452 5,818 5,797 3086 DNA Identification Fund 62,763 65,716 67,778 3087 Unfair Competition Law Fund 8,720 9,742 10,543 3088 Registry of Charitable Trusts Fund 2,605 2,881 2,947 9731 Legal Services Revolving Fund 101,438 182,916 191,481 433 • n--.11 ..- •- ,.__,_.... ., .. ___..,.. ,_ o-•--• n---- WE 12 LEGISLATIVE, JUDICIAL, AND EXECUTIVE

0820 Department of Justice - Continued

1 STATE OPERATIONS 2010-11· 2011-12* 2012-13" Unexpended balance, estimated savings -233 TOTALS, EXPENDITURES $13,602 $14,142 $15,224 0378 False Claims Act Fund APPROPRIATIONS 001 Budget Act appropriation $10,676 $10,889 $11,821 Allocation for employee compensation 12 52 Adjustment per Section 3.60 112 11 Adjustment per Section 3.90 -149 Adjustment per Section 3.91 -538 Chapter 11, Statutes of 2011, Rental Rate Reduction -29 011 Budget Act appropriation (Transfer to the General Fund) (20,000) 012 Budget Act appropriation (Loan to the General Fund) (15,700} Totals Avallable $10,233 $10,803 $11,821 Unexpended balance, estimated savings -913 TOTALS, EXPENDITURES $9,320 $10,803 $11,821 0460 Dealers' Record of Sale Special Account APPROPRIATIONS 001 Budget Ad. appropriation $11,182 $11,251 $18,670 Allocation for employee compensation 19 63 Adjustment per Section 3.60 149 24 Adjustment per Section 3.90 -158 Adjustment per Section 3.91 -700 Chapter 11, Statutes of 2011, Rental Rate Reduction -28 Revised expenditure authority per Provision 2 865 - 011 Budget Ad. appropriation (loan to General Fund) (11,500) [ h Totals Available $10,622 $12,045 $18,670 Unexpended balance, estimated savings -424 TOTALS, EXPENDITURES $10,198 $12,045 $18,670 0588 Department of Justice Chlld Abuse Fund APPROPRIATIONS 001 Budget Act appropriation $365 S3n $377 Allocation for employee compensation 1 2 Adjustment per Section 3.60 5 -6 Adjustment per Section 3.90 -6

Chapter 11, Statutes of 2011, Rental Rate Reduction ____-_,_1 ------Totals Available $370 $367 $377 Unexpended balance, estimated savings ____-4,...9 ------TOTALS,EXPENDITURES $321 $367 $377 0667 Gambllng Control Fund APPROPRIATIONS 001 Budget Act appropriation $7,603 $7,706 $7,822 Allocation for employee compensation 15 32 Adjustment per Section 3.60 96 -29 Adjustment per Section 3.90 -104 Adjustment per Section 3.91 -422 Chapter 11, Statutes of 2011, Rental Rate Reduction -1 Totals Avallable $7,291 $7,605 $7,822 Unexpended balance, estimated savings __...... ,-2,:::0,...6 ------­ TOTALS, EXPENDITURES $7,086 $7,605 $7,822 434 Exhibit 4

435 FINAL STATEMENT OF REASONS

UPDATE OF INITIAL STATEMENT OF REASONS

There is no information to be updated. All of the information provided in the Initial Statement of · Reasons is accurate and current. Section 4001 "DROS Fees". was adopted as originally proposed.

SUMMARY OF COMMENTS AND DOJ RESPONSES

See Section 14 - Spreadsheet which summarizes the comments received during the 45-day comment period and DOJ' s responses to those comments.

ALTERNATIVES DETERMINATION The Department has determined that no alternative would be more effective in carrying out the purpose for which the regulation is proposed or would be as effective and less burdensome to affected private persons than the proposed regulation.

LOCAL MANDATE DETERMINATION The proposed regulation does not impose any mandate on local agencies or school districts.

AGRFP000174 436 Exhibit 5

437 KAMALA D. HARRIS State of California ' Attorney General DEPARTMENT OF JUSTICE I ! 1300 I STREET, SUITE 125 P.O. BOX 944255 SACRAMENTO, CA 94244-2550 Public: (916) 445-9555 Telephone: (916) 322-9041 Facsimile: (916) ·324-8835 E-Mail: [email protected]

December 4, 2014

Scott Franklin Michel & Associates, P.C. 180 E. Ocean Boulevard," Suite 200 Long Beach, CA 90802

RE:· Gentry v. Harris Superior Court of California. County of Sacramento. Case No. 34-2013-80001667

Dear Mr. Franklin:

· This letter responds to plaintiffs' correspondence dated October 17, 2014, refarding the discovery-requests served by plaintiffs, and defendants' responses to those requests. It also follows _up on our subsequent telephone conversation regarding that discovery.

As an initial matter, plaintiffs have asked that defendants more specifically identify any documents being withheld based on a privilege and provide a privilege log. Defendants agree to that request and will provide a privilege log. ·

Inr;their letter, plaintiffs have also expr:essed a concern suggesting that defendants have failed to produce any "evidence of how the DROS Fee was set at $19.00." (Oct. 17, 2014 letter at p. 1.) Defendants have produced such evidence. For example, defendants have produced the relevant rulemaking fi~e from ~004,_when the fee at issue was,raised from $14.00 to $19.00 . . Also, in the privilege log defendants will identify the han4ful of documents withheld based on a claim of privilege. Thus, there is no basis for the broad motion in limine contemplated in plaintiffs' letter.

1 · To date, defendants have responded to the following discovery requests served by plaintiffs: ·

1. Special Interrogatories (as to the Attorney General and Chief of the Bureau of Firearms ("DOJ")); 2. Form Interrogatories (as to DOJ); 3. R,equ~st for Admissiohs-- (as to DOJ); 4. Request for Production of Documents (as to DOJ); 5. Special Interrogatories (as to the State Controller's Office ("SCO"); and 6. Request for Production of Documents (as to SCO).

438 December 4, 2014 Page2

Each of the remaining items addressed in plaintiffs' letter and discussed during our telephone conversation is addressed below.

(DOJ) Defendants' Responses to Plaintiffs' Request for Production o(Documents, Set One

Request Nos. 1, 2, 3 & 5

Plaintiffs have asked that defendants produce documents responsive to these requests for the period covering Fiscal Year ("FY") 2003/04 to FY 2013/14. Defendants agree to that request. Accordingly, in further response to Request Nos. 1, 2, 3 & 5, defendants agree to produce the relevant budget documents for FY 2003/04 through FY 2006/07, to the extent the information still.exists. As you likely recall, the documents for FY 2007/08 through FY 2013/14 have already been produced, either earlier in this action or in Bauer v. Harris, United States District Court for the Eastern District of California, Case No. 1 :11-cv-1440-LJO-MJS.

With respect to the budget documents, please know that they reflect a substantial amount of relevant financial information. In sum, for each fiscal year the documents identify every DOJ program (including but not limited to the DROS and APPS programs) funded by monies from the.DROS Special.Fund, the Firearms Safety and Enforcement Special Fund, and the Firearms Safety Account Special Fund. For each of those programs, defendants have also detailed the relevant appropriations by the Legislature and DOJ' s actual expenditures on those programs by year. Defendants have produced additional reports breaking down those annual expenditures by line item:

Finally, while defendants agree to produce the additional budget documents, they are also continuing to search for still other responsive documents based cin the expanded period of time the parties have now agreed upon, a period that spans ~ore than ten years. Defendants are completing that search and will produce the existing responsive documents that fall within the relevant time frame.

Request Nos. 7, 8, 17, 18, 32, 33 & 38

. Plaintiffs have asked that defendants respond to these requests for the period going back to January 1, 2004. Defendants agree to do so with respect to Request Nos. 7, 8, 17, 18;32, and 33. By its own .terms, though, Request No. 38 is limited to "testimony given after January 2, 2011." So defendants do not believe any :fµrther respon·se to Request No. 38 is needed; Please let me know if you disagree. · ·

With respect to Request Nos. 7, 8, 18, 32 & 33, and after a diligent search and reasonable inquiry, defendants have not located any responsive documents dated January 1, 2004 or after.

With respect to Request No. 17, attached to this letter as Exhibit A are additional press releases dated January 1, 2004 or after. Please be aware that some of these press releases do not directly reference "APPS"-which Request ~o. 17 focuses on-but ~ut of an abundance of

439 December 4, 2014 Page 3 caution defendants have produced any press release relating to firearms in general during the relevant period.

Request Nos. 11, 12, 13 & 14

Regarding these requests, and in response to plaintiffs' request, defendants clarify that documents concerning the term "CONTACTS" as defined by plaintiffs in their request do not exist. This is why in their original response defendants provided the statistics for the number of APPS "investigations" per year since 2007 and the number of firearms seized for each of those years.

Request Nos. 21 & 22

In response to plaintiffs' request that defendants respond to these items for the period 2004 tq the present, defendants agree to produce the Budget Change Proposals ("BCPs") approved for FY 2004/05 through FY 2009/10. The BCPs for FY 2010/11 and beyond have already been produced. Also, please be aware that defendants are not withholding any approved BCPs based on any claim of privilege.

Request Nos. 25 & 30

[ Regarding Request No. 25, and in response to plaintiffs' request, defendants clarify that other than what is in the 2010 rulemaking file already produced, defendants are not aware of any "statement to a member of the Rub lie as to why. the 2010 rulemaking was abandoned,_" as stated in plaintiffs' October 17 letterJ

Regarding Request N_o. 30, please be aware that a transcript of comments made at the hearing of September 15, 2010, referred to in plaintiffs' letter is in the 2010 rulemaking file already produced. Defendants have also located an audio/video recording of that hearing on compact disc. Although that recording may be duplicative of the transcript, defendants have made a copy and a compact disc is enclosed with the copy of this letter arriving by regular mail.

Request No. 29

In response to Request No. 29, defendants can confirm that defendants have no responsive documents. But please note that by its own terms the request excludes documents produced in Bauer v. Harris,. and the 2004 rulemaking file was produced in that case.

(SCO) Defendants' Responses to Plaintiffs' Request for Production o(Documents, Set One

Request Nos. 5 & 6

For plaintiffs' clarification, and pursuant to your request, please know that SCO limited its production in response to these requests to documents for the period FY 2003/04 through FY 2013/14, although plaintiffs phrased the original requests in terms of "any document created after

440 December 4, 2014 Page4

January 1, 2000." Based on plaintiffs' position with respect to the requests discussed above (i.e., plaintiffs' agreement to limit other discovery to the period 2004 and after), the SCO presumes· this ~imitation is agreeable. If not, please let me know.

(SCO) Defendants' Responses to Plaintiffs' Special Interrogatories, Set One

Interrogatory Nos. 5, 6, & 7

To clarify the answers to these questions, SCO understands these ip.terrogatories to ask for a list of disbursements made specifically for APPS, or law enforcement activity based on APPS. As such, the SCO can confirm that it is not in possession of the requested information. Nor does the SCO know if the information requested is in the possession of another state agency, although such information may be in the possession of the state agency responsible for carrying out the program(s) at issue. ·

(DOJ) Defendants' Responses to Plaintiffs' Requests for Admissions. Set One

As we discussed d.uring our telephone conversation, defendants intend to file a motion for judgment on the pleadings to dispose of at least the first and second causes of action alleged in the Complaint For Declaratory and Injunctive Relief and Petition for Writ of Mandamus. If the Court grants that motion, the issues in this case will be significantly narrowed and many of the requests for admissions will be mooted. Thus, defendants propose deferring any further responses to the requests for ,admissions at this time. · . . This proposal will help conserve the.resources of the parties and the Court. It is also re.asonable in light of the sheer number and breadth of discovery requests plaintiffs have served and the responses defendants have already provided. With respect to the reqgests for.admissions alone, plaintiffs served 117 requests-more than triple the number expressly authorized by the rules-and defendants have alre~y admitted or denied the vast m~jority of those request_s (i.e., more than 70 of them). Finally, plaintiffs will n~t suffer any prejudice under this proposal. A discovery cut-off date has yet to be set.and defendants are "willing to agree to extend plaintiffs' deadline to fi~e a motion to compel further responses to the re-quests for admissions until after the Court·rules on the motion for judgment on the pleadings.

Regarding our intended motion, we have contacted the Court regarding available hearing dates. At this time, the earliest available date is February 20, 2014, at 9:00 a.m. I propose that' date. (Other dates currently available are March 27 and April 3, 10, or 24, each at 9:00 a.m.) Please let me know if February 20 is agreeable and I will file a notice of hearing to formally reserve the ·date.

441 December 4, 2014 Page 5

. . (DOJ) Defendants' Responses to Plaintiffs' Form Interrogatories, Set One

Request No. 15.1

Defendants objected to this interrogatory because, among other things, plaintiffs failed to . verify their petition for writ of mandate as required by the rules. As defendants have explained, in the· absence of the required verification it is unfair to expect defendants to respond to Form Interrogatory 15 .1. After our telephone conversation, plaintiffs expressed an intention to correct _ this deficiency by filing an appropriate verification. But plaintiffs have yet to do so. Defendants are willing to reconsider ~eir position on any further response to this interrogatory if and when plaintiffs file the required verification.

Request No. 17. J.

Form Interrogatory 17.1 relates to the requests for admissions. Accordingly, consistent with our proposal regarding any further responses to those requests, we also propose deferring any further response to Form· Interrogatory 17 .1.

Thank you for continuing to meet and confer on these issues. As mentioned above, some additional materials are being produced with this letter. We hope to produce any additional responsive documents and the privilege log next week. In the meantime, please let me know whether plaintiffs agree with the proposal re·garding any further responses to the requests for admissions. Also, please· let me know about the hearing date.

Sincerely,

ANTHONY R. HAKL Deputy Attorney General

For KAMALA D. HARRIS Attorney General

SA2013113332 11618027.doc

442 Exhibit 6

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Olg9i!lzatl1111 Comment,w . • Sufllec:t Comment DOJReepGMe TheCalt,ma "-0111111 FeeReduc:lan 'Mlle theCalglllla Founddon. Inc. M,pporllthe l9duclDn In,-, II lndlngl revealtllal the rllduallon la lnullclllnttD 1111ng the fem wlllln the The Dlpartment dlagr.-W11111llecomment. The • Foundltlan lnsullclent Sllitutary~ ~.lheDOJ ha nollarnlm;ld ~ ofa.OROS pogram fundl. Wll!laut·•llarrmd-raig ofthe Dlpartmenl'a Nllaltlyto l)l'OIIUgllle l'IIIIUl6ns ~~ID delililnlne~:Pftlfllii'.~.fee pmuntD f'enl!~Ndlan 1~8, anyr. lCliedllleMt 11·.~ and .. be •tabllshlng the OROS f9e ls nat encumbant upon an male .ahaut,the ~ --'° do 90,• .- Penal Code Hdlan 12078'piahlbb the DOJfram c:haigq more than ~ID 1mp11mant and Itemized accounllng of the OROS progrwn funds. admlnlltratlie requlllil _DRO$.Pragramil.'Aa aucll,,the Proposed Regulatlona fail to have the requille authCHly nec:eaay far pasuge pimalt tD Govemmenl'Code Nelon 11349.1. -

10 TheClilgurll .,_Ollllis Wanta Dllblled THE '14 FEE REMAINS BEYOND ll£ STATUTORY AllTHORITY OF THE DOJ FoundllllDn Accoldlg of ' The OeplwtrnentdlllgrNl wltl lheconvnent. The A PftlPOleil.....,. ~~ ~of"aulhcNtty"re pravillandlewpermb aralligaathe .-rto adapt. amend, orrwpeale l)eper1nwnt'a euthorty 1D promulgllle reg1■11ana OROS Code 113"1(b).) Jlllllce'a clagltt'lelto-the c:a111 for ~OS funded f1111111W11S 11 ~ (G!ffl The CiP.RMnlaf ..,_to eatablshqi the OROS fll8 is not enc:wnban an Elcpe- "'°" lmlid by the pivvillanl af ~ ,Code 1207!(•).11111 (I)., Balhaftlllila PfCMllana llmllwllltthe DOJ C111 CDllllcttoonlrthe arnooot --,YID bmad 80COUllllno of the OROS P101118111 funds. fund the apecilic: l8llcl. TIM, In oriler lo dalllmtie tll8 ~-tllal can be clwged u the fll8, the DOJ must -ntli>rthe oo111 of each C8NQCIIY of W0lmlllan;NfWWiced '1 Penal Code aec:1on 12018 enc1 lncluded in the 1o1e1 coats. ~.9!8DOJ II!' natbeml llllletDpravldeS!D!~-...-endlllllBl'llbnllllllbletD...... _lie pnipoaed$14fllll. On July %7,2D'IO, Brandon~---~~ Alcoldl Ad requNtfor.lrlDnnellon pei1llillnglD _, ~ foreadl afllw c:agarles lhlll the pnlpONdfllll~)IIIIJllll~~!IJIO"·(ElihlllA.),ln~,ellllr--col'ifawlb11wlll,._llilwaoftheburwuofF-.Mr. Cor!ilJa-~ M: no 81!!:h aa:aunllng ..... And, hll n,quest-lNrefonl m

11 TheCelQuns Jesa!DIIYII Melllodof 1)-£ PROflQSEDJ1 C.C.R.~(b) EXCl;EDS THE oo.r.s AVTHORfTY The Oepartmenl cllMg,- with the comment. Penal Fourmllon Ollennlnlng The Calguns·Foundlllon:~ praposed 11 C.C.R. MCllan 4001(b) to lie elClllnl 111111 I aulllcwlza the DOJ to anmMIIJ HI e fee wlhout Code Mdlan 12078 doel nat n,qun, any parllcula' Fee Nat ~ a piaper~:f!am~IDcllllanNne a·piaper·f•-as iequll9d·t,y Penal Code HC11on ·1:zoie. Penal Code aec11on 12078 1e1s -=counting method In cleCenninlr.a Ille approprlllle fee. Spedllldand bit! the~ IIJIC1f'whlch hl:D9,111i)ii,'ni!se,~ •ts!9,foolnoles I an11'2.) The Ptaposed Seclor, ~1(b), ~. states only one The Department - standard 11CC011161g melhod1 In Lac:bOelaled restricllon, that the;r.■ _ii)ay · be ~'Ill•· ialii·not 111'~ +nY h:reaieJn tho Cd'clmla ~ f'ric! lndmc a compled end lllflllrtlld detennlnlng the fee but Is nat required lo ldenll'y them Accounllng of bylle ~ af lndultilll RallllaM." NOllq ln'lla praP,lll8d Seclon 4001(b) pnMdes guld■Maa 10 t,-the pniperfee llto be In the regulelons. OROS defennlried; nor-does I fflli1d111Hn ~oftheapedil!d Penllll Code 12078 praglWIIS-■ n,qulllla ~1116 cllllrimlndin .if the appmprillle Expenas tee.As suctt..., l9Qlilllan ~ -•rill!~ IIIINilupon pin apecutalail as 1ow11111111e ac:tualcam are II be)'ond111e aalldoly ~ aulharity d PenalCixle aedlun 12078. . ~ u TheCelguns Jason DaYls FeeR■ductial, :n.e ~ l9QIMllan doll9 nat reduca the fee to the 1ulllclenl amount given the curnint 1u,plus In the OROS funds accounts. Fur11ier, any The Oep;a1ment disagrees wllll the com.-.t. 11111 Foundallan lnsutllclent and Nlllngof fea...... ,.. en·~ iiiccounilng ofJhe com at lmplemenlklg ~ mlllniainln1i1t1e verious OROS Progiam■ ' ~ lo delemwle Depa,1ment'1 Nhorily lo pcomLAg• reguatlons a Lades•~ tlie appropilate',_ ~ntto~ Code'1207811 niariiapeadl!IDn and not aulhciilzed bVlhe P«lll'Coile. As sueh, The Celgun1 estebllhlng the OROS fee Is nol encumbent upon an AccourOlg of Foundation requests en ad of the' piograme funded ljy Ille OROS feea lo delennlne Ille actual COits and 1he lll)PlllpllD fee schedute. brnlzad accounllng of the OROS pn,g,am fUnds. OROS E,cpenN8

Page2of7 12/15/2010 OROS fee comments spreadsheet 12102010.xlsx 445 DROS Fee Regulations Public Comments and DOJ Responses

• Organization CCIINMllllr Subject -· Coinmant D0J ResponH 13 Thecallolnla Anwlda General The CA Chapters dtha 81-c, ~ to Prevent Qun Vlolenc:e IIIOngly oppoNS a reduction in OROS,-_ The Department ackllOwledgdS the ccrnment and Chapters of the Wilcalc, Nick . 1he OROS lee Is chalgecl t,y~ •~ DOJ to pun:hlisen Df ~. LlcenUd ~ dealenl ~U-l'aes from purdlasers far lie g-..1 accurac:y d lhe factl presenled, However, the Brady campaign WIicox.~ Department d Jua11ce::r11e f1lliil nilrdKnM_the ~ fllr upensas lncumld r'lllaicl to Ille OROS procees, lndudlng conducllng the Depar1menl believes I has a luftlcillnt and reasonable toP,-,tGun Slaul, Bdan backgraund cllBC!lc-d~~ ~-DROSf- l)IOl1ies ~ depositec!inthe ~•,Rec:orcl of~ Special Account of lie number d agents to conduct 11n1arnH111a1ec lldlvlles. Vlolenc:e Malle Genenll Fu~ ■nil-~ ·upoll ~laitbl by Iha l.eglllat&n, for,mcpendlure llythe affNI lpeclled costa. AIISernbly Bl 161, whldl was aponlONd bythe D0J and ciiried byCUflWII S... Plllllderit ProT-pcn Dlimlll~-to Sflllnberg, - ·enacflld lnlo lawin 2003. The bl c:larllei:I and apa,ded the use of OROS fees for enfolcemenl PIOQIWIIS beyond the DROS'prac:IIIS. AB 161 provides that,_ may also be~ ID fund~ Ngullilary lind enfllnlenllllll ~ r-■d to the~. pun:han, loan, ortransferoflireaml." in 2004, fie OROS ree-lued f111111 $141111 $19 in order 1111 fund needed D0J enllarcement pnigrans; lncludlng lnlpecllorll or gun shawl and p ~ The OROS Spec:ill ~-ha grown flQIII appllllml'lllllly $4:o mliDn In 2002-0:'fllll ~ $11 in11an In 2010. ~. In 2007, the OROS account ilrnllned al~~ mllan. in lie last three yeara, llgnillelnl - have acciued in the OROS Special Accou!t due to Iha hW, nurnberaf linlanil ... and IDwei' OROS pnx:estlng 00111. During this ·18111 ■ perlocl, OOJ ha net stgrllcllnlly incre8led the number of D0J agenll to lmplemeint1nam-relltld ertorcernent piogrwna..

14 TheCIIIJamla Amanda OROS Fund I Specllc Comments The Department~ wlh the comment. The aiai-aotlhe Wicox,Nick Supporls eomn-t AdopCion of~llhlud not cf-.ethe expanded use dOROS funds a c:llrl'llld by AB 161. plOpOled regutdDns wauid not c:hange the used BrqCarnplian Wicox,011111 PIOQIWIII The lnlent af AB 181•wa -c:lelr. Thllfonner AIIDmeyGenerll, In lie Senate CommlllN on Pulllc Slfety Bl Anaiylla farlhe 1111, 11818s: funds 1pedled In 12076(•) pursuant to AB 161 (2003). toPrewn!Gun SIDul;Bllan Baca11S8 deufal-11 _.... funded by the.., legillllu,e from the Dealers' Record cl SIie Spedil Account (OROS), and funding speclled In 120711(e). Not only Is I\ _say to re- Vlalance Malle iources added cwerflle laat ~ manlhl, CA has gane from lllllllt no ei1for-.ent d fireanns laws rlllllllng to ..res, transfms, purctae or a11m 1he law, dclng ao would IIIS1llt in 0AL rejection of lamlil oflrwmlto h1M1111ln.wllgallid • ~• .-imberdfnarm clellers, cantlllly pnMlad lndhldualnncHeglllreann p0118SSC11S and the propoaad lllQIUllanl for nat meeting the ....._ The DOJ hes ldanlllad morw 0-1000 lilw vlalatlalll by firearm dealera and iilwslgaled more 500 lapl lrarm poasesstons by "nonduplicatlon S1andald". indMduals who have pu1d1aeif'guns in'CA but fal lnll> praltiled CllqDry. In addllDn, - have cllscauMld 2.600 leg..,. plllhlllted llrNrm and alhardangeroulweapons ~ -.,cl l8b!lld thole weapons a a l'9RI. Unfortunlltaty, becalmed a~ leglll6

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451 SB 819 Page 1

Date of Hearing: July 6, 2011

ASSEMBLY COMMITTEE ON APPROPRIATIONS Felipe Fuentes, Chair

SB 819 (Leno) - As Amended: April 14, 2011

Policy Committee: Public Safety Vote: 5-2

Urgency: No State Mandated Local Program: No Reirnbursab le:

SUMMARY

This bill specifies that the Department of Justice (DOJ) may use existing gun purchaser fees (known as the dealer record of sale (OROS)) fur costs associated with its firearms-related regu]atory and enforcement activities regarding possession. in addition to costs associated with the explicitly referenced sale, purchase, loan, or transfer, of firearms.

This bill also makes a series of findings and declarations, inch.Kling:

1) ''A Dealer Record of Sale :tee is imposed upon every sale or transfer of a firearm by a dealer in Califurnia. Existing law authorizes the DOJ to utilize these :fimds fur firearms-related regulatory and enforcement activities related to the sale, purchase, loan, or transfer of firearms pursuant to any provision listed in Penal Code Section 16580, but not expressly fur the enforcement activities related to possession." (Penal Code Section 16580 references possession issues.)

2) ''Rather than placing an additional burden on the taxpayers of California to :fimd enhanced enforcement of the existing anned prohibited persons program, it is the intent of the Legislature in enacting this bill to allow the OOJ to utilize the Dealer Record of Sale Account fur the additionai limited purpose of funding enforcement of the Armed Prohibited Persons System."

FISCAL EFFECT

Significant ongoing increase in the use of existing OROS fees, in the range of$1 million.

This bill does not appropriate funds or raise a :tee. It explicitly authoriz.es the use of DROS funding fur an additional purposeG,ccording to OOJ, the sponsor of this b~ upon passage of this b~ DOJ will pursue a Budget Change Proposal (BCP) fur the 2012-13 budget bill to fund Armed Prohibited Persons System (APPS) efforts from the DROS fund. OOJ estimates that BCP will request about $1 million fur special agents to assist other agents and local law enforcement in APPS sweeps. j

[In addition, OOJ states it will seek one-time funds of about $500,000 fur APPS OOJ task furcesJ

Cmrently there is aDROS reserve of about $5.5 million. This assllllles a one-time $11.5 million budget transfer to the GF.

452 SB 819 Page 2

COMMENTS

1) Rationale. The author's intent is to clarify that OOJ may use existing department resources to he]p enforce the APPS to keep gwis out of the hands of the more than 18,000 persons who are on Caliromia's Prohibited Anned Persons File due to mental illness, felony convktions, or gun-related convictions.

According to the author, ''It is in everyone's interest to ensure that fireanm are not in the possession of prohibited persons. However, law-abiding fireanm owners have a particularly strong interest in this to he]p avoid gun ownership from becoming strongly associated with the random acts of deranged individuals. Moreover, the purpose of the bill is to strengthen enforc.ement of existing gwis laws. A prospective gun owner pays a fee to detennine whether he or she is eligible to purchase a gun (background check}, it makes sense that the fee shoukl apply to enforcement when those same individuals become ''ineligible" due to criminal behavior or mental illness. Accordingly, there is a very close nexus between the DROS fund and the bill's inteµded purpose. Moreover, the bill is aligned with gun advocates' stated interest in heightened enforcement of existing gun laws and the alternative would be to place this additional burden on the tax payer at large."

:2) oors Anned Prohibited Persons System. the only such system in the nation, has identified 18,700 prohibited persons and 36,300 gµns associated with these persons (June 2011 statisti::s). The APPS maintains information about persons who are, or will be, prohibited from possessing a firearm subs~quent to the legal acquisition or registration of a firearm or an assault weapon. The APPS aJso provides authorized law enforcement agencies with inquiry capabilities to determine the prohibition status of a person of interest.

3) Supporters, inchxling a list of law enforcement agencies, cite the growing list of prohibited persons and the underutilization of APPS, largely due to a lack of state and local resources. While disarming prohibited persons is largely a local law enforcement responsibility, local law enforcement welcomes OOJ's intent to assist them via task forces and sweeps.

4) Opponents, generally gun enthusiasts, object to using DROS fees fur what they see as expansive purposes.

Analysis Prepared by: Geoff Long/ APPR /(916) 319.;2081

453 Exhibit 8

454 SENA.TE COIDIITl£E OB PUBLICSJ\FE'IY Senator Loni Hancock, Chair s 2011-2012 Regular Session B

8 1 9 SB 819 (Leno) As Amended April 14, 2011 Hearing date: April 26, 2011 Penal Code SM:dl

USES OF DEALER RECORD OF SALE FUNDS

HISIDRY

Source: Attorney General Kamala D. Harm

Prior Legislation: AB 302 (Beall) -Chap. 344, Stats. Of2010 AB 161 (Steinberg) - Chap. 754, Stats. of 2003 AB 950 (Brulte) - Chap. 944, Stats. of2001

Support: Association fur Los Angeles Deputy Sheriffs; Riverside Sheriffs' Association; Caliromia Chapters of the Brady Campaign to Prevent GWl Violence; Caliromia State Sheriffs' Association; Statewide Law Enfurcement Association; Legal Community Against Violence

Opposition: Caliromia Association of Fireanm Retailers; Caliromia Rifle and Pistol , Association; C~mia Sportsman's Lobby, Inc.; Crossroads of the West; National Rifle Association; National Shooting Sports FoW1dation Inc.; Outdoor Sportsmen's Coalition of Caliromia; Safari Crub International

KEY ISSUE

SHOULD 1HE DEPARTMENT OF JUSTICE BE AU1HORIZED 1D USE DEALER RECORD OF SALE FUNDS FOR COSTS ASSOCIATED WITH ITS FIREARMS-RELAIBD REGULAIDRY AND ENFORCEMENT ACTIVITIES REGARDING 1HE POSSESSION AS WELL AS 1HE SALE, PURCHASE, LOAN, OR TRANSFER OF FQIBARMS, AS SPECIFIED?

(More) 455 SB 819 (Leno) Page2

PURPOSE

The purpose of this bill is to provide that the Department ofJustice may use dealer record of sale (DROS)funds for costs associated with its firearms-related regulatory and enforcement activities regarding the possession as well as the sale, purchase, loan, or transfer offirearms, as specified.

Existing Federal Jaw states that it shall be unlawful fur any person to sell or otherwi5e dispose of any fireann or amrmmition to persons if that person is llllder indictment or has been convicted of specified crimes, is W1Cler a restraining order, has been connnitted to a mental institution, and other specified disqualifying factors. (18 U.S.C. § 922.)

Existing Califurnia Jaw:

• Requires that persons who sell, lease, or transfer fireanns be licensed by Califumia. (Penal 1 Code§§ 26500 and 26700, et seq. )

•• Sets furth a series of requirements to be state licensed by DOI, which provides that to be recogniz.ed as state licensed, a person must be on a centralized 1ist of gun dealers and allows access to the centralized list by authorized persons fur various reasons. (Penal Code § 26700.)

·• Requires _that fireanns dealers obtain certain identifying infurmation from fireanns purchasers and furward that infurmation, via e.lectronic. transfer to OOJ to perfurm a ba*grpllllCl c~ck on the purchaser to determine whether he or she ·is prohibited :from pos~ss~ a firearm. Tpe record of applicant ~rmation must be 1rans~tted to~ Dep~nt of Justice in Sacrcµnento by e.lectronic transfer on tpe da~ of tne application to purchase. The -original of each record of electronic transfer shall be retained by the dealer in consecutive order. Each original shall become the .p~rmarient record of the transac~n that s~Il be retained fur not less than ,three ,years from $e date of the last ~tion and shall be provided fur the inspection of any peace officer, Department of Justice empJoyee designated by the Attorney Generai or agent of the Federal B~au of Alcohoi Tobacco, Fireanns, ~d Exp1osives uppn the presentation of proper i!i~ntification, · but no infurmatic)n shall be compiled therefrom regarding the purchasers or other transferees of firearms that are not pistols, revolvers, or other fireanns capable of being concealed upon the person. (Pen Code§ 28160:.28~20.)

• Requires handguns to be centrally registered at time of transfer 01: sale by way of transfer furms centrally compiled by the DOJ. OOJ is required to keep a registry from data sent to

1 SB 1080, Chap. 711, Stats.2010, and SB 1115, Chap. 178, Stats.2010, recastandrenumbered most statutes relating to deadly weapons without any substantive change to those statutes. Those changes will become operative Januaty 1, 2012. All references to affected code sections will be to the revised version unless otherwise indicated.

(More) 456 SB 819 (Leno) Page 3

DOJ indicating who owns what handgmi by make, modei and semi mnnber and the date thereof (Penal Code§ 11106(a) and (c).)

• Requires that, upon receipt of the purchaser's infunnation, DOJ shall examine its records, as well as those records that it is authoriz.ed to request from the State Department of Mental Health pursuant to Section 8104 of the Welfare and Institutions Code, in order to detennine if the purchaser is prohibited from purchasing a firearm because of a prior :felony conviction or because they had previously purchased a handgmi within the Jast 30 days, or because they had received inpatient treatment fur a mental health disorder, as specffied. (Penal Code § 28220.)

• States that, to the extent fimding is available, the Department of Justice may participate in the National Instant Criminal Background Check System (NICS), as specffied, and, if that participation is implemented, shall notify the dealer and the chief of the police department of the city or city and county in which the sale was made, or if the sale was made in a district in which there is no nnmicipal police department, the sheriff of the county in which the sale was made, that the purchaser is a person prohibited from acquiring a firearm under :federal Jaw. (Penal Code§ 28220.)

• • States that if the department determines that the purchaser is prohibited from possessing a :fireann, as specffied, it shall innnediately notify the dealer and the chief of the police department of the city or city and county in which the sale was made, or if the sale was made in a district in which there is no nnmicipal police department, the sheriff of the county in which the sale was made, of that met (Penal Code § 28220.)

• States that no person who has been taken into custody, round to be a danger to himself; herself; or others, and, as a result, admitted to a specffied mental health m.cility, shall own, possess, controi receive, or purchase, or attempt to own, posses~, controi receive, or purchase any firearm fur a period of five years ·after the person is released :from the mcility, except as specffied. , (Welfare and Institutions Code§ 8103(f)(l).) For each such person, the mcility shall ~diately, on the date of ad.n.msion, submjt a report to the Departmmt of Jus&e, on a :form prescribed by the Department of Justice, containing iilfur~tio n that inchxles, but is not Jimited to, the itentity of tlie person and the legal grounds upon which the person was admitted to the mcility. (Welfare and Institutions Code§ 8103(f)(2)(A).)

• No person who has been certified fur intensive treatment fur a mental disorder, as specffied, shall own, possess, controi receive, or purchase, or attempt to own, possess, controi receive, or purchase any firearm fur a period of five years and relevant treatment mcilities shall report the itentities of such persons to DOJ, as specffied. (Welfare and Institutions Code § 8103(g).)

• The Department of Justice may require the dealer to charge each firearm purchaser a :fee not to exceed $14, except that the ree may be increased at a rate not to exceed any increase in the California Consumer Price Index as compiled and reported by the Department of Industrial

(More) 457 SB 819 (Leno) Page 4

Relations. This fee, known as the Dealer Record of Sale or DROS fee, shall be no more than 5 necessary to fimd the following:

o The department fur the cost of finnishing th5 information.

o The department fur the cost of meeting its obligations to notify specified persons that they are prohibited :from owning firearms due to their receiving inpatimt treatment fur a mental d5order.

o Local mental health :facilities fur state-mandated local costs resulting :from the specified reporting requirements.

o The State Department of Mental Health fur the costs resulting :from the specified requirements imposed.

o Local mental hospita5, sanitariums, and institutions fur state-mandated local costs resulting :from the specified reporting requirements.

o Local law enforcement agencies fur state-mandated local costs resulting :from the notification requirements regarding servi;e of restraining orders, as specified.

o Local law enforcement agencies fur state-map.dated local costs resulting :from the notification requirements regarding specified persons prohibited :from owning firearms due to their receiving inpatient treatment fur a mental d5order.

o For the actual costs associated with the electronic or telephonic transfer of information, as specified.

o The Department of Food and Agriculture fur the costs resulting :from the notification provisions regarding importing firearms into the state, as specified.

o The department fur the costs associated with public ec:l,ucation requirements regarding importation of firearms into Caliromia, as specified.

o The department fur the costs associated with fimding Department of Justice firearms-related regulatory and enforcement activities related to the sale, pmchase, ban, or transfer of firearms plll'Suant to any provision md in Section 16580.

(Penal Code§ 28225(a)- (b).)

• The fee establ5hed pmsuant to th5 section shall not exceed the swn of the actual processing costs of the department, the estimated reasonable cos~ of the local mental health :facilities fur complying with the reporting requirements imposed as specif¢, the costs of the State

(More) 458 I SB 819 (Leno) Page 5

Department of Mental Health fur complying with the requirements imposed as specified, the estimated reasonable costs ofhcal mental hospitals, sanitariums, and institutions fur complying with the reporting requirements imposed as specified, the estimated reasonable costs ofhcal Jaw enforcement agencies fur complying with the notification requirements, as specified, the estimated reasonable costs ofhcal Jaw enforcement agencies fur complying with the notification requirements imposed as specified, the estimated reasonable costs of the ..._ Department of Food and Agrk;ulture fur the costs resulting :from the specified notification 1 provisions, the estimated reasonable costs of the department fur the costs associated with pub.Ii: education requirements regarding importation of firearms into Calirornia, and the estimated reasonable costs of department firearms-related regulatory and enforcement activities reJated to the sale, purchase, han, or transfer of fireanns pursuant to spec~d provisions of law pertaining to fireanns. (Penal Code§ 28225(c).)

• The Department of Justi;e may charge a fee sufficient to reimburse it fur each of the fulhwing but not to exceed fourteen dollars ($14), except that the fee may be increased at a rate not to exceed any increase in the Caliromia Consumer Price Index as compiled and reported by the Department of Industrial Re1ations:

o For the actual costs associated with the preparation, sale, processing, and filing offunns or reports required or utilized pursuant to any provision listed in subdivision (a) of Section 16585.

o For the 8;ctual processing costs associated with the submic;sion of a Dealers' Record of Sale to the department.

o For the actual costs associated with the preparation, sale, processing, and filing of reports utilized pursuant to Section 26905, 27565, or 28000, or paragraph (1) of subdivision (a) of Section 27560.

o For the actual costs associated with the electronic or te!ephonic transfer of information pursuant· to Section 28215.

o Any costs incurred by the Department of Justice to implement this section shall be reinbursed '::from fees collected and charged pursuant to this section. No fe~s shall be charged to the dealer pursuant to Section 28225 fur implementing this section

(Penal Code§ 28230.)

• AD money received by the department pursuant to this arti;le shall be deposited in the Dealers' Record of Sale Special Account of the General Fund, which 5 hereby created, to be available, upon appropriation by the Le~Jature, fur expenditure by the department to offset the costs incurred pursuant to any of the fulhwing:

(More) 459 SB 819 (Leno) Page 6

0 Thi5 article.

o Annual inspectbns ofpennitted destructive devices. (See § 18910.)

o Regulating firearms transactbn between licensed dealers (See § 27555.)

o Conduct public educatbn and notification programs regarding importation of firearms into the state. (See § 27560(d) and (e).)

o Maintain a list of federally licensed firearms dealers in Calirornia exempt :from the state dealer licensing requirements, as specified. (See Article 6 (commencing with Sectbn 28450).

o Inspectbn ofinventory of licensed firearms dealers. (See §31110.)

o Public educatbn and notification programs regarding regimation of assauh weapons. (See§ 31115.)

o Retesting of handgmis on the not Ull',afe handgun list, as specified. ( See § 32020(a).)

o Inspection of inventories of machine gmis heki under permit. (See§ 32670.)

o Inspectbn of inventories of short-barreled shotgmis and rifles held mder permit (See§ 33320.)(Penal Code§ 28235.)

·, • The Attorney General shall establish and maintain an online database to be known as the Prohibited Armed Persons File. The purpose of the file is to cross'"-reference persons who have ownership or possession of a fireann on or after January 1, 1991, as indicated by a record in the Consolidated Firearms lnfunnation System, and who, sub~equent to the date of that ownership or possession of a fireann, :fall within a class of persons who are prohibited :from owning or possessing a firearm.

• The information contained in the Prohibited ~d Persons File shall only be available to specified entities through the Calirornia Law Enrorcement Telecommunications System, for the purpose of determining if persons are armed and prohibited :from possessing firearms. (Penal Code§ 30000.)

Thi5 bill woukl provide that DOJ may use dealer record of sale (DROS) fimds fur costs associated with its firearms-related regulatory and enrorcement activities regarding the possession as well as the sale, purchase, loan, or transfer of firearms, as specified.

Thi5 bill woukl make specified :findings and decJaratbns.

(More) 460 SB 819 (Leno) Page 7

RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

For the last several years, severe overcrowding in Calirornia's prisons has been the fucus of evolving and expensive litigation. As these cases have progressed, prison conditions have continued to be assailed, and the scrutiny of the federal comts over Caliromia's prisons has intensified.

On June 30, 2005, in a class action lawsuit filed fum years earlier, the United States District Court fur the Northern Distrkt of Califurnia established a Receivership to take control of the delivery of medical services to all Calirornia state prisoners confined by the Caliromia Department of Corrections and Rehabilitatkm (''CDCR"). In December of 2006, plaintiffs in two federal lawsuits against CDCR sought a court-ordered limit on the prison populatnn pmsuant to the federal Prison Litigation Reform Act. On January 12, 2010, a three-judge federal panel issued an order requiring Calirornia to reduce its inmate population to 13 7 .5 percent of design capacity -- a reduction at that time of roughly 40,000 inmates -- within two years. The court stayed implementation of its ruling pending the state's appeal to the U.S. Supreme Court.

On Monday, June 14, 2010, the U.S. Supreme Court agreed to hear the state's appeal of this order and, on Tuesday, November 30, 2010, the Court heard oral arguments. A decision is expected as early as this spring.

In response to the unresolved prison capacity crisis, in early 2007 the Senate Connnittee on Public Safety began hokling legislative proposals which could further exacerbate prison overcrowding through new or expanded felony prosecutions.

This bill does not appear to aggravate the prison overcrowding crisis described above.

COMMENTS

1. Need fur This Bill

According to the author:

The Califumia Department of Justice (DOJ) maintains APPS, an online database, to cross-reference persons who have ownership or possession of a firearm, and who, subsequent to the date of that ownership or possession of a :firearm, mll within a class of persons who are prohibited :from having a :firearm. Authoriz.ed law enfurcement agencies have access to APPS. DOJ populates APPS with all handgun and assauh weapon owners across the state and matches them again.st criminal history records to determine who might mil into a prohibited status. When a match is round, the system automatically raises a flag. APPS, further, in.terraces with the Automated Firea.nm System and i:lentifies the

(More) 461 SB 819 (Leno) Page 8

handguns and assault2 weapons in that prohibited individual's possession. In theory, local agencies and DOJ would then confiscate the weapons. When local agencies conmcate weapons, notice is sent to DOJ so that the individual can be removed from the list.

L APPS is currently funded through the general fim~ There is, however, an accmmt that holds the fees charged by dealers fur each firearm purchase. This is called the Dealer Record of Sale (DROS) accotmt. Penal Code section 12076 allows the Department of Justice to use this accotmt to fund firearms-related regu]atory and enfurcement activities related to the sale, purchase, loan, or transfer of firearms pursuant to this chapter.[Penal Code section 12076, howeve~ does not fund DOJ or local agencies to confiscate unlawfully possessed firearms.;..1

There are currently more than 18,000 armed prohibited people statewide, including convicted felons. 30 to 35 percent of prohibited people have been adjudicated mentally ill Armed prohibited people are believed to hold up to 34,101 handguns and 1,590 assault weapons. Every day there are an additional 15 to 20 individuals added to APPS. Despite their best efforts, local and State law enfurcement agencies do not have the funding or resources to keep up with this influx.

2. Background - The Prohibited Armed Persons File

In 2001, the Legislature created the Prohibited Armed Persons File to ensure otherwise prohibited persons do not continue to possess firearms. (SB 950 (Bruhe), Chapter 944, Statutes of2001.) The purpose of the file is to cross-reference persons who have ownership or possession of a firearm on or after January 1, 1991, as indicated by a record in the Consolidated Firearm Information System, and who, subsequent to the date of that ownership or possession of a firearm, :fall within a class of persons who are prohibited from owning or possessing a firearm. (Penal Code § 30000(a).) According to DOJ, in Ju]y 2003, it received funding to build a database ofthis information -the Armed and Prohibited Persons System -which became operational in 2006 and made :fully available to local law enfurcement in 2007.

SB 950 also mandated that DOJ provide investigative assistance to local law enfurcement agencies to better insure the investigation of individuals who continue to possess firearms despite being prohibited from doing so. (Penal Code§ 30010.) DOJ states that its special agents have trained approximately 500 sworn local law enfurcement officials in 196 police departments and 35 sheriffs departments on how to use the database during firear~ investigations. The Department states it has also conducted 50 training sessions on how to use the vehicle-mounted Califurnia Law Enfurcement Telecommunications System terminals to access the database.

2 Because Jong guns are not required to be registered, the list offireanns in an anned prohibited person's possession would likely not include Jong guns.

(More) 462 SB 819 (Leno) Page 9

(http://ag.ca.gov/newsalerts/release.php?id=l505&year=2007&month=12)

Recently, the New York Times reported on Califumia's Anned Prohibited Persons File and the problems it seeks to address:

By law, Roy Perez should not have had a gun three years ago when he shot his mother 16 times in their home in Baldwin Park, Calif, killing her, and then went next door and killed a woman and her 4-year-old daughter.

Mr. Perez, who pleaded guilty to three cotmts· ofnrurder and was sentenced last year to lire in prison, had a history of mental health 5sues. As a resuh, even though in 2004 he legally bought the 9-millimeter Glock 26 handgun he used, at the time of the shoo~ his name was in a statewide law enfurcement database as someone whose gun should be taken away, according to the authorities.

The case highlights a serious vulnerability when it comes to keeping guns out of the hands of the mentally unstable and others, not just in Ca:lifumia but across the country.

In the wake of the Tucson shootings, nruch attention has been paid to various categories of people who are legally barred from buying handguns - tho~e who have been ''adjudicated as a mental defective," have· felony convictions, have committed domestic vb~nce misdemeanors and so on. The fucus has ahnost entirely been on gaps in the federal backgr01md check system that is supposed to deny guns to these prohibited buyers.

There is, however, another major blind spot in the system.

Tens of thousands of gun owners, like Mr. Perez, bought their weapons legally but under the law should no longer have them because of subsequent mental health or criminal issues. In Mr. Perez's case, he had been·held involuntarily by the authorities several times fur psychiatric evaluatbn, which in Califumia bars a person from possessing a gun fur five years.

Policing these prohibitbns is difficult, however, in most states. The authorities usually have to stmnble upon the weapon in, say, a traffu stop or some other encounter, and nm the person's name through various record checks.

Califumia is tmique in the country, gun control advocates say, because of its cornputeriz.ed database, the Armed Prohibited Persons System. It was created, in part, to · enable law enfurcement offuia)s to handle the issue pre-emptively, actively identifying people who legally bought handguns, or registered assault weapons, but are now prohibited from having them.

(More) 463 SB 819 (Leno) Page 10

The list had 18,374 names on it as of the begirming of this month - 15 to 20 are added a day - swamping Jaw enfurcement' s ability to keep up. Some police departments admitted that they had not even tried . • • • • • • • • The state Justke Department's firearms bureau does have a small unit, with 20 agents, that tracks down people on the list. Last year, it investigated 1,717 people and seized 1,224 firearms.

The list is growing far :faster, however, than names are being removed. ''We're just not a very big bureau," Mr. Lindley sail. ''We do the best we can with the persormel that we have."

The bureau is pJanning a sweep this spring focused on people on the list fur mental heahh reasons. Last summer, a man ftom the Fresno area who had recently been released ftom a mental heahh mcility was fuWld to possess 73 gt.mS, including 17 umegistered assau1t rifles.

1n the case of Mr. Pere~ Lieutenant· Cowan, ofBaklwin Park, said he learned that state agents had been scheduled to visit Mr. Perez to con&cate his weapon - two weeks after the rampage took pJace. ·

(States Struggle to Disarm People Who've Lost Right to Own Guns, By Ed Cormolly and Michael Luo, New York Times, Feb. 5, 2011,) http://ww:w.nytimes.com/2011/02/06/us/06guns.html?_r=1

3. What This Bill Woukl Do

As noted above, current Jaw establishes a mechanism whereby DOJ cross-refurences persons who are prohibited from possessing a fireann with records of persons who have purc,~ed firearms, and any ''prohibited person" who is listed as a fireann owner goes in the Prohibited Anned Persom File. DOJ and bcal Jaw ehfurcement agencies can utilize that list to investigate firearms vbJatiom and seize fireanm ftom prohibited persons.

Current Jaw proviles that DOJ may require licensed firearms dealers to charge a fue, as specified, in cormection with fireann sales. These tees are deposited in the· Dealer Record of Sale (DROS) Special Account. OROS funds may be used to reimburse DOJ fur the costs associated with funding DOJ firearms-reJated regulatory and enfurcement activities related to the saJe, purchase, ban, or transfur of fireanns, as specified. (Penal code§§ 28225, 28230, 28235.) It is somewhat unclear under current Jaw whether OROS :funds coukl be used to reimburse DOJ fur its enforcement efforts reJated to the Amled Prohibited Persons File. SB 819 woukl state that OROS funds may be used by DOJ fur

(More) 464 SB 819 (Leno) Page 11

enforcement activities related to the possession as well as the sale, pW"Chase, loan, or transfer offireanns .. O This would clarify that DOJ is pennitted to use DROS fimds to pay fur its effi>rts to retrieve un1awfully possessed firearrm and prosecute individuals who possess those firearms despite being prohibited by Jaw from doing so.

SHOULD IT BE SPECIFIED 1HAT DROS FUNDS MAY BE USED 1D FINANCE DOJ'S ENFORCEMENT OF LAWS REGARDING 1HE UNLAWFUL POSSESSION OF FIREARMS?

4. Argwnent in Support

The Califurnia Chapters of the Brady Campaign to Prevent Gtm. Violence sta~s:

The Dealers' Record of Sale (DROS) fee is charged by the California Department of Justice (DOJ) fur most firearm transfers. The fees reinburse DOJ fur expenses incurred related to the DROS process, inchding condupting the backgrmmd check of prospective firearm pW"Chasers. The DROS fees are deposited in the DROS Special Account of the General Ftm.d and are available, up.on appropmtion by the Legic,Jature, fur expenditure by DOJ to offset specified costs.

Exi51:ing Jaw provnes that DROS fees may also be used to fimd firearms-related regulatory and enforcement activities related to the sale, pW"Chase, loan, or transfer of firearms. SB 819 would additbnally authorize using the DROS fuss fur regulatory and enforcement activities related to the possession of firearms. It is i:importailt to note that SB 819 does not create a new c~s of persons prohibited from pure~ing or possessing firearms. The bill would simply he]p DOJ better enforce existing firearm -laws and ensure that dangerous il]divid-uals who have lost their. gtm. rights are not in possession of firearms. SB ~ 19 would_not ·impose a cost to the state general fund, but would alk>w DROS funds, as approved by the regti]ar budget process, to be used fur certain frearm erifurcement programs.

Specifically, SB 819 seeks to alk>w a portion of the amual surplus ofDROS fimds to be expenoed on DOJ's Armed and Pro~ited Persons System (APPS) Program. The APPS database maintained by DOJ contains information on persons who have purchased handgtm.S and subsequently become prohibited by Jaw from pW"Cbasing or possessing fire~s. Law enforcement can use this information to disarm persons who may be in the database as a result of a felony or violent misdemeanor conviction; a connnitment to a mental health facility, or the result of a domestic violence restraining order fur-which they failed to surrender their firearm.

The California Brady Chapters pushed fur full implementation ofthe.APPS program tm.der Attorney General Brown and from July 1, 2007 to September 30,

(More) 465 SB 819 (Leno) Page 12

2010, DOJ conducted 5,762 APPS investigatims, resuhing in the seimre of5,985 firearms. A parml review of investigatims by BOF indicates that appro~tely 40% of all APPS investigations resuhs in the seimre of at least one fireann. 1 ~ ofMarch 3, 2010, there were 17,134 anned and prohibited persons in the APPS database. 1hl, group of prohibited persons was believed to be in possession of 29,358 handguns and 1,514 assau1t weapons.ii By November 1, 2010, the numbers had increased to 18,166 prohibited persons in the APPS database, with 33,019 handguns and 1,555 assau1t weapons associated with the prohibited persons. iii (There is no data on hng guns owned by prohibited persons since hng gun records are not maintained in the Califurnia database.) Despite the investigation and seizure of ahmst six thousand firearms, the number of prohibited persons with fireanns in APPS is growing due to the met that gun owners are becoming prohibited :faster than DOJ and heal law enforcement agencies can conduct investigations and seizure of the firearms. ' Local law eni>rcement agencies are provided monthly infurrnation regarding the anned and prohibited persons in the agency's jurisdiction. However at the present time, many agencies do not have the resources or personnel to work the APPS cases and rely on assistance from DOJ's c~l intelligence specialists and special agents. In today's environment of shrinking budgets, it is important to find alternative ways to fund the state's important public sarety programs.

5. Argument in Opposition

The National Shooting Sports Foundation, Inc. states:

While NSSF supports keepilg fireanns out of the ~s of persons who are prohibited ·from possessing firear~, it opposes•taking the money to fimd this activity from the Dealers Record of Sale (DROS) Spec~,l Account of the General F\llld.

The money pail into ~ DROS fund by a prospective purchaser or other transreree of a fireann, is a :lee to pay fur the costs of a cFiminal and me~ history background check to determine the person's eligibility to lawfully possess afireann

The DROS :lee is not a regulatory re~, tax Ji;ense or otper form of non-user charge. NSSF believes that the DROS :fund has often been improperly used to fund· non-background check activities of the Department of Justice (DOJ).

Since the use of DROS :lees fur the purposes of SB -819 wouki be to use them in the same manner as a tax, the bill shouki require a 2/3 's vote of each house of the Legislature fur passage.

(More) 466 SB 819 (Leno) Page 13

If the bill were to be amended to designate a different source of funding, NSSF woukl remove its opposition and likely support the bill NSSF does not support unfunded leg61ation •••••••••••••••

Data provided by the CA DOJ, November 2, 2010. ii Data provided by the CA DOJ, March 4, 2010. iii Data provided by the CA DOJ, November 2, 2010.

467 Exhibit 9

468 SB 140 Page 1

Date of Hearing: April 10, 2013

ASSEMBLY COMMITIEE ON APPROPRIATIONS Mike Gatto, Chair

SB 140 (Leno) - As Amended: March 4, 2013

Policy Connmttee: Appropriations Vote:

Urgency: Yes State Mandated Local Program: No Reimbmsable:

SUMMARY

1hl; bill appropriates $24 million :from the Dealers Record of Sale (DE.OS) Special Account to the Department of Justice (DOJ) -to fimd enforcement of ~gal gun possession by relieving weapons :from persons in the Armed Prohibited Persons System (APPS).

1hl; bill also requires the DOJ to report specified infunnation to the Joint Legislative Budget Connmttee by March 1, 2015 and every March 1 until 2019, including the fulbwing:

1) APPS backlog reduction and the mnnber of weapons conmcated. 2) The mnnber of agents hired by the DOJ to conduct APPS enforcement. 3) The nmnber of persons cleared :from APPS and the mmilier of persons aclded. 4) Infunnation regarding collaboration with local law enforcement.

FISCAL EFFECT

Agpropriates $24 million :from DROS to the DOJ.

The DROS is projected to have total resomces of a;bout $34 million in 2012-13, with a year-end reserve of about $13 million For 2013-14, tot.Iµ PROS resomces are projected to be about $4 7 million, with a reserve of about $25 million Appropriltions are available fur up to three years, alb~g :OOJ to draw annually :from the projected reserves to reach $24 miqion

COMMENTS

1) Rationale. DOJ estimates there are about 20,000 persons with about 39,000 guns, including ahnost 2,000-assault weapons, on the APPS list. These persons, by law, are not albwed to possess guns. Due primarily to state and local fiscal constraints, this backlog continues to grow. The author's intent is to provide the resolD'CeS to begin significantly reducing this growing backlog.

According. to the author, ''Ahhough the DOJ and local law enforcement have the authority to conmcate these weapons in the interest of public safety, the trµth is, the situation continues to get worse. Law enforcement is struggling to disarm people who've lost the right to own a gun. Neither DO'J nor the locals have the resomces to conmcate the enonnous backlog of weapons, nor can they keep up with the daily influx of the newly prohibited."

469 SB 140 Page 2

According to DOJ, the appropriation in this bill will allow the department to hire, on a three­ year limited tenn basis, 30 special agents, six special agent supervisors, six criminal intelligence specialists, and six office technicians. These positions will make up six new statewide APPS teams in existing DOJ offices. These positions will cost about $8 million per year.

DOJ's goal is reduce the APPS backlog to a reasonable level within three years.

2) DOJ's Anned Prohibited Persons System {APPS) is an online database that cross-references persons who possess a gun and who, subsequent to possession of that gun, become a member of the class of persons legally prohibited from possessing a gun. Law enfurcement agencies have access to APPS and thus are able to identify persons who are prohibited from possessing a gun.

( According to OOJ, about half of the persons on the APPS list are prohibited due to criminal history; about 30% due to mental health status, and about 20% due to active restraining orderJ

3) Current law authori'zes DOJ to use OROS, which is funded by a $19 fee on gun purchases at the point-of.sale, fur gun-related regulatory activities, including enfurcement activities related to APPS (SB 819 (Leno), Statutes of 2011 ).

This bill provides a specific appropriation.

4) Is confiscation of gwis from prohibited persons a local law enfurcement responsibility? Yes. OOJ, however, does have a statewide law enfurcement responsibility, and given local law enfurcement fiscal constraints in recent years, the use of a reserve from a state special fund already authorized fur this purpose, fur a demonstrable public safety need, appears appropriate.

5) Technical amendments clarify the fund source and update findings and declarations.

6) Supporters, including Attorney General Kamala Harris, the Coalition Against Gun Violence, Women Against Gun Violence, the Violence Prevention Coalition, the Chief Probation Officers of California, contend this bill protects public safety by providing law enfurcement the resources necessary to confiscate guns from prohibited persons. Moreover, they note the funding is from a special fund already authorrz.ed fur such purposes.

7) Opponents, including the National Rifle Association, the California Rifle and Pistol Association, and other groups, contend the OROS fund shoukl not be used to enfurce the possession of guns by prohibited persons. According to the National Shooting Sports Foundation, ''The :fact that the amount of the OROS fees charged to firearms buyers has been excessive resulting in a surplus does not provide justification to use the money fur SB 140 or other non-OROS purposes. The Department shoukl have reduced the fee or refunded the fee surplus long ago."

Analysis Prepared by: Geoff Long / APPR / (916) 319-2081

470 Exhibit lQ

471 Bill Text - SB-819 Fireanns. http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=2 ...

LEGISLATIVE INFORMATION

SB-819 Firearms. c2011-2012)

Senate Bill No. 819

CHAPTER 743

An act to amend Section 28225 of the Penal Code, relating to firearms.

[ Approved by Governor October 09, 2011. Filed with Secretary of State October 09, 2011. J

LEGISLATIVE COUNSEL'S DIGEST

SB 819, Leno. Firearms.

Existing law authorizes the Department of Justice to require a firearms dealer to charge each firearm purchaser a fee, as specified, to fund various specified costs In connection with, among other things, a background check of the purchaser, and to fund the costs associated with the department's firearms-related regulatory and enforcement activities related to the sale, purchase, loan, or transfer of firearms. The bill would make related legislative findings and declarations.

This bill would also authorize using those charges to fund the department's firearms-related regulatory and enforcement activities related to the possession of firearms, as specified.

Vote: majority Appropriation: no Fiscal Committee: yes Local Program: no

THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

SECTION 1. The Legislature finds and declares all of the following:

(a) California Is the first and only state In the nation to establish an automated system for tracking handgun and assault weapon owners who might fall Into a prohibited status.

(b) The California Department of Justice (DOJ) is required to maintain an onllne database, which Is currently known as the Armed Prohibited Persons System, otherwise known as APPS, which cross-references all handgun and assault weapon owners across the state against criminal history records to determine persons who have been, or will become, prohibited from possessing a firearm subsequent to the legal acquisition or registration of a firearm or assault weapon.

(c) The DOJ Is further required to provide authorized law enforcement agencies with Inquiry capabilities and Investigative assistance to determine the prohibition status of a person of Interest.

(d) Each day, the list of armed prohibited persons In California grows by about 15 to 20 people. There are currently more than 18,000 armed prohibited persons in callfornla. Collectively, these Individuals are believed to be In possession of over 34,000 handguns and 1,590 assault weapons. The Illegal possession of these firearms presents a substantfal danger to public safety.

(e) Neither the DOJ nor local law enforcement has sufficient resources to confiscate the enormous backlog of weapons, nor can they keep up with the dally Influx of newly prohibited persons.

(f) A Dealer Record of Sale fee Is Imposed upon every sale or transfer of a firearm by a dealer In California. Existing law authorizes the DOJ to utilize these funds for firearms-related regulatory and enforcement activities related to the sale, purchase, loan, or transfer of firearms pursuant to any provision listed In Section 16580 of the Penal Code, but not expressly for the enforcement activities related to possession.

(Jg) Rather than placing an additional burden on the taxpayers of California to fund enhanced enforcement of the existing armed prohibited persons program, It Is the Intent of the Legislature In enacting this measure to allow the DOJ to utilize the Dealer Record of Sale Account for the additional, limited purpose of funding enforcement of the Armed Prohibited Persons System:}

SEC. 2. Section 28225 of the Penal Code Is amended to read:

282211. (a) The Department of Justice may require the dealer to charge each firearm purchaser a fee not to exceed fourteen dollars ($14), except that the fee may be Increased at a rate not to exceed any Increase In the California Consumer Price Index as complied and reported by the Department of Industrial Relations.

(b) The fee under subdivision (a) shall be no more than Is necessary to fund the following: 472

I of2 5/ 14/2015 4:26 PM 3ill Text - SB-819 Firearms. http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=2 ...

(1) The department for the cost of furnishing this Information.

(2) The department for the cost of meeting Its obligations under paragraph (2) of subdivision (b) of Section 8100 of the Welfare and Institutions Code.

(3) Local mental health facilities for state-mandated local costs resulting from the reporting requirements Imposed by Section 8103 of the Welfare and Institutions Code.

(4) The State Department of Mental Health for the costs resulting from the requirements Imposed by Section 8104 of the Welfare and Institutions Code.

(5) Local mental hospitals, sanitariums, and Institutions for state-mandated local costs resulting from the reporting requirements Imposed by Section 8105 of the Welfare and Institutions Code.

(6) Local law enforcement agencies for state-mandated local costs resulting from the notification requirements set forth In subdivision (a) of Section 6385 of the Famlly Code.

(7) Local law enforcement agencies for state-mandated local costs resulting from the notification requirements set forth In subdivision (c) of Section 8105 of the Welfare and Institutions Code.

(8) For the actual costs associated with the electronic or telephonic transfer of Information pursuant to Section 28215.

(9) The Department of Food and Agriculture for the costs resulting from the notification provisions set forth In Section 5343.5 of the Food and Agricultural Code.

(10) The department for the costs associated with subdivisions (d) and (e) of Section 27560.

(11) The department for the costs associated with funding Department of Justice firearms-related regulatory and enforcement activities related to the sale, purchase, possession, loan, or transfer of firearms pursuant to any provision listed In Section 16580.

(c) The fee established pursuant to this section shall not exceed the sum of the actual processing costs of the department, the estimated reasonable costs of the focal mental health facilities for complying with the reporting requirements Imposed by paragraph (3) of subdivision (b), the costs of the State Department of Mental Health for complying with the requirements Imposed by paragraph (4) of subdivision (b), the estimated reasonable costs of local ment~I hospitals, sanitariums, and Institutions for complylrig with the reporting requirements Imposed by paragraph (5) of subdivision (b), the estimated reasonable costs-:of local law enforcement agencies for complying with the notification requirements set forth In subdivision (a) of•Sectlon 6385 of the Famlly Code, the estimated reasonable costs of local law enforcement ,agencies for complying with _the notification requirements set forth In subdivision (c) of Section 8105 of the Welfare and Institutions Code Imposed by paragraph (7) of subdivision (b), the estimated reasonable costs of the Department of Food and Agriculture for the costs resulting from the notification provisions set forth In Section 5343.5 of the Food and Agricultural Code, the estimated reasonable costs of the department for the costs associated with subdivisions (d) and (e) of Section 2756~, and the estimated reasonable costs of department firearms-related regulatory and enforcement activities related to the sale, purchase, possession, loan, or transfer of firearms pursuant to any provision listed In Section 16580.

(d) "'{here the electronic or telephonic transfer of applicant Information Is used, the department ,shall establish a system to be used'for the submission of the fees described In this section to the department.

473

2of2 5/14/2015 4:26 PM Exhibit 11

474 STATE OF CALIFORNIA Budget Change Proposal - Cover Sheet DF-46 (REV 05/11)

Fiscal Year ·sbPNo. Org. Code Department • Priority No. 2012-13 0820 Jwstlce Program Element Component

50 ~ Law Enforcement Bureau of Firearms Anned Prohibited Persons Program Proposal Title Armed Prohlbtted Syetem Workload.

Proposal Summary C: Chapter 743, Statutes of 2011 (SB 819) auows the Department of Justle& (DOJ) to utlltze the Dealers' Record of Sate (OROS) Account to fund firearms-related regulatory and enforcement activities associated with the Armed Prohibited Person System (APPS). Base? on this legislation, the DOJ, Bureau. of Firearms (BOF) requests $1,602,000 in OROS . 1 spendin{l authority starting in FY 2012-13 to support 6, 3-year limited tenn special agents to perform APPS tnvestlgetlo'!J

~ equlres Legislation Code Section(s) to be Added/Amended/Repealed □ Yes 0 Noj Does this BCP contain lnforT)'latlon technology (IT) Department ClO Date components? D Yes 0 No If yes, departments/ Chief fnfonrnatlon Offlcer must sign. For IT requests, spedfy the da1e a Speclal.Projeot Report (SPR} or Feasibility Study Report (FSR) was approved by the Callfomla Technology Agency, or previously by the Department of Flance .

D FSR □ ·SPR Project No. Date:

If propo~I affects another department, does another dep~rt concur with proposal? □ Yes □ NO Attach com1r:1ts of affected department, sl~ned and dated by the department director or destgnee.

•, I!{: • ' ·• ~ • I . . ·, .. :

AGRFP000221

475 OF-46 (RE:V05111) Ffacat Summary (Dollars in thousands) BCP No. !Proposal Title Program IArmect Ptohlbltecl Svatem Workload 50 - Law En~t Poattlona P-81'80nal Services DOiiars c.v BY ' BY+1 CY BY BY+1 Ttmal S11111rfllll and wa- 1 8.0 8.0 $721 -0.4 -0.4 $0 $0 Net Total salaries.and WaaH 0.0 7.8 7.6 $0 $721 $721 Overtlme/iT'emp Helil $187 ., ., .. . ·.· - •, Total'stan .. ..is z ...... : :; Saiarv Savinas·ut·of.State 0 Tralnm 8 8 F.acllltlis'. Qoiiirations 28 28 Utilitiee•r 'I " 0 0 Coniultll'fg &'.iProfesslona1 Services: lriterdaaartmental" 0 . 0 ConiulOnai&•P.rofe&aional Sei'.vlcee: Elclemal ., · 0 0 0 0 lnfoniiatlDi'.1 Techholodv ' 18 16 .Eminmilr:lt~• - ~r~ , - • 0 Qtti . · ·"' ··ia1ntehii of·E)Q:)ense: '4 (R11111a, ~EYldence FuncWetlale 0...1 108 . '0~ .. " 'l!.5'1'Yicoa i>•' •· 1"6 ,. 146 Totai,t,ii ~ ffii;Bna.,.,_ aricl1E$aulDirnant • Sil M26 i ·s:42e $0 $1,602 l • ~- ~ •~1f'.'>,.-,. --V ...._ ·item Nu.n.'i ..r P.und Source ., \of'.,_ .,,.f -k_ I Ref Furid ·., .-

F.ederal"F.iinda· · ~ , ' · , ' '' De11emi.:Racoit1 .of Sale · · oe20 001 0480 $1.802 $1 ,802

${) $0 $0 ;.., ,.. , .. - 'Fu~d-Som• Itani Numbir ,_ PUnCl • • • • • •• · ~· .1 -;, - -~ ' _:;-: '~

FederarFunat ,;~ Other i=unaa · ••. A Reffflljur&ament1 ' n ~ ,. $1,60? $1,6021 , , . - "' .. ' ltilmize.po1110n1·byclaaalllaa1lon on "9·Penonai'Serv!cee Datall w01111heet. I Pruvlde blftillllclellll Gflth9 ~f88M0e8 DetBIWOrkahee(. 1 Provide ht on,~ Sll~'lnffirmatfon worttlitiMit. · 'Olh•ISpealal ltema of6lcpen1e must~ ll•i.

AGRFP000222

476 Personal Servlcee Detall (Whole dollars) •

BCPNo. ,P~ITltle Amied Prohib~ Sys\Elm Workload Sa art••nd wflHIN P011t1ont salary Dolhtre Cluefffoatlon ' 2 CY BY BY+1 Range CY BY 8Y+1 Soeaat Aatnt feXD. 8/30/1~) · 8.0 8.0 $3 740-$7,341 $720,576 $72.0,576 Temp Help/Overtime 187109 167,109

. ,

T~ S~l~ee and WIIISl'9 a o~o 8,0 8.0 ·~ :i[~·::.-3:::;(t :·; $6 $907;885 $9Q7.685 '" Staff Betteftte;Betall CY BY BY+1 O.ASl:ih , $10""48 $10448 Hea'lth/OentalNlsion Insurance 83:947' 831¥7 Retirement'- ·. tlleciellaneous. 0 0 ,Safelv ·o .0

lnduetrlal ' I 0 0 ' R~Offloer ·;-. . . 128 5.48 128.~ Woilll llv Le.ave -0 0 Oriem ..- . - • ,..Jnaun ll'ti» ' (j ,0

TernD :AtlfilOYeitfm'~- - , _. 2 'ffa - . 2-71~ ).•-'1 ... ~~ -"" 't"'V - , ' 1 T~~, ~ $0. ~.16°8 $268,168 OraJ!d i~;·, P,r,pnat §•iv!• $.!) J1,n1?.~a , ,$,1,17j ,863 - 1 Use stln!l•nl lbbntvlalloM par !he ~ and Wages Supptement. Show any llffeCtlV$ dal8 or llmlted-lenn expln!_Uon dale it, parenlhaaes lflhe poaftlon .II notp~ rt,ra M)'N"ort, not ~t, e.g. (8lCP8-30-13) or(efH-1-1?) · · Nolr. tnfoniidon provldad •hOUld~ In the 9!lfflll format• It WOUid on-the c....- In Authortzad Poeltlona. 1 If mulllplll progrtme requlie po8lllor1', p!edse lnc:IUda • aubheadlnu under-the daliflcallon Ndlon to Identity posltlone by program/element. 1 Tctall l1IIJlt be rounde~ lo lhe neareil thouaand dolla$ before posang to the Flaoal summary. ·

AGRFP000223

477 Supplemental lnfonnatlon (Dollars ill thousands} ·

BOP No. IPropbeal Trtle Armed Prohibited Svstem Workload Equipment CY BY BY+1

'

TQtal $0 $0 $0 Consu 1t1n1g& Pro teaalona I 8ervlc ea

Total $0 $0 $0 FacllltvlCBpltal Costa Facllltles 28 28

TQtal $0 $2.8 $28 One-Tlmalllmlted-Term Costs Y-ee 0 No I!! BY 8Y+1 BY+2 .Oiesc!'lptlon Positions eol&trs Pcisitlon1· Dollars Pos11loni Doflars

.

'

' ·o.o ·$0 , 0.0 $0 0.0 $0" '. .. · Pull-Vear'Coat,AdJuabnfHrt Y- No I]] • • ,. • 0 ,j • Provlds thit1ncn,mente/ chsng_e In doHars.. and posltiotis by-ti8osl- year.. BY !JV "'1 .BY+2 Item Number _ ,, Pos.!tlona Dollars Positions DoJlars Positions Dollars

,

' · Total 0.0 $0 p.o $0 0.0 $0 Future Savlhgs Yes 0 Speolfy fiscal_ year: and estimattKJ•savfnar, lncludfrtg env d~se In positions. ' BY . l:IYL+1 , BV+2 Item Number ' Positions Dollen Poiltlons. Do11ara l'osltions Dollar&

Total ' 0.0 $0 0.0 $0 O·.O $0 AGRFP000224

478 Special Fund Detail (Dollars In thousands) SCP No. Proposal Title Aimed 'Prolllblted Syem WprkJQad Item Number Dollare SpecDd .Pund Title Ora Ref FiJr~d CY BY BY+1 Dealers' Record ·()!' Sale 820 001 04$0 $1,602 $1.602

. .

I

1 Total .SnecitU Funlfll • Slate· $0 $1,602 $1602

Item Nqmber Dollars 8peclal F.und Tltle I ·Ora Ref Fund ev BY BY+1

'

:

Total Snaelal FIDld& • Local Aa818tance 2 so $0 $0

1 Total mu11l tie to "varkKll"fund• fdantlflecl forstate·Oparatlons, Spedal Funds In the Flacal Summary. Add rowa lf.necaea81)'. 2 Total must tie to "varioua" funda Identified for Local Aeeletanoe, Speolal Fund& In tho Flaoal Summary.

AGRFP000225

479 A. PROPOSAL SUMMARY

Chapter 743, Statutes of 2011 (SB 819) authorizes :the Department of Justice (DOJ) to utilize the Dealers' Record of Sale (OROS) Account to fund firearms-related regulatory and ·enforcem~nt aatlvities associated with the Anned Prohibited Person System (APPS). Based on this legislation, the DOJ, Bureau of Firearms (BOF) requests $1.6 mllffon starting in FY 2012-13 in OROS spending authority to support 8, 3-year limited term special agents to conduct APPS Investigations.

Currentfy, the number of APPS Investigations that the DOJ-BOF can accomplish Is less than the yearly Increase in the number of new APPS offenders. This is predomfnantly due to inadequate· staffing levels.

This- request will allow the DOJ-BOF to increase APPS inv~gations by almost 62%, resulting In the reduction of unauthorized gun possession and an increase In publlo safety. ·

· B. BACKGROUNO/HtST-ORY.

In 1999, as a result of the proliferation of gang violem:;e 11nd shootings, both ·across the state as well as the natl~. the DOJ-'3OF began studying high profile shootings .to Identify po&Slble me.ans of (?UrtalRilg th• violent eve11.~- Thie study revealed that · · in many caees the shooters started out as law apidlng citizens when ~hey · purchased/acquired ·their ·firearms, ar:td -subseq~ntly b~came prohlbtted.

The DOJ-BOF ~nized that It had· neither the me.,ns nor the legal authority to · lmmedia~ly ~etetmine:wh,ther persons who lawfully purchased firearms subsequently ~e pronit,,lted from ~ni11g the"!" b~'o(crlmtnal convictions, Juvenile adjudications, addiction ,to narcotic drugs, mental lleafth conditions, r~~lning pr court c;,rders, or,tenn,/condif!ons:of ~roba~n ~tnqtlng firearms possessi<;m. Accordin~ly, the [)9J;:B0F ~P.9"B0!9it'~11a~ B1H 950 {~u!te/Scott, 200'1-),) Vhieh was ultim.,tety ~8Pr9ved by the state legislptuie, with unan_imq~~ bi­ partisan suppqrt. The ·bur ai.ltnori~. the DQJ~_pF1to cross-:reference its ~~~t>ase of pef!Pn8'Y{ho own ha~eiQHns; ~s ~~e-~ In '.~e Departm~s-Consoll~ated Fl~arms lnform~tlon S~ (CFIS)t with )~ ¥~~s~ 9f.p~rso~s wr,K> '-re prohlbtt.g by law .from do,lng ~~- SB 95:0 was.a1gned into law by the Govemor and became 'effective ~an~ry 1, 2002.

In FY 2002-03; the QOJ..BqF r~celved $1 mllMoo in·perm~nent General-Fund to· create the APPS database arn;t e~bliahea five swqm ·positions and two support staff positions for the purpose of working Senate BIii 950 c~ses.

In November 2006, development was completed ar,d the APPS database was Implemented. A FY 2006-07 BCP gave the DOJ-BQF permane11t authority &f $5 million for 12.0 sworn positions and 22.0 support staff positions to perform the APPS workload.

AGRFP000226

480 Resource History (Dollars In thousands)

Program Budget 2007-08 2008-09 2009-10 2010-11 2011-12

Authorized Expenditure~ 4,630,000- 4,769,000 4,848,000 4,756,000 4,957,000

Actual Expenditures 4,601,000 4.472,000 4,229,000 4,497,000

Revenues

Authorized Positions 43.0 43.0 42.2 42.2 38.2

FiUed Positions 39.9 39.5 37.6 35.3

Vacancies 3.1' 3.5 4.6 6.9

Note: Above vacancies were non-sworn positions FY 11/12-Actuale not available

Wo~oad History fir I r,1-:d l'rtnifi ;t Hl Pr-r,01-,; "-v•,t1',)1 'No1 ido,:d . - - - =,':~~::-w ~1~~ J.@~r·wr::

• ANNUAi. lNCREAIE INCLUD~ AN AVERAGE-OF 4,500 N~Y IDl!NTIFIIW AUTO~TeD,APPS AND A PORTION OF ~AJ-LY PROCUSEO HISTORICAL FILU THAT HAVE REIULTEO IN ~CTIVE ~S CASE~.

2

AGRFP000227

481 C. STATE LEVEL CONSIDERATIONS

Other than the DOJ-BOF, there is no other law enforcement agency (LEA) specifically targeting APPS offenders. This Is due to the lack of subject-matter expertise and the financial resources necessary to accomplish the task. Moreover, LEAs also lack the manpower, extensive training, and data systems to coordinate a comprehensive enforcement strategy for APPS Investigations.

0. JUSTIFICATION

APPS ·offenderi are ldenttfied, confirmed and en.ter9d Into the system via multiple procease.s (court docµrrients, nQtlfiGBtions re~ived from the various automatep systems, co_nfinning data from r:nanual files, etc.) by Criminal ldentiflcatio.n Specialist staff. Based on program expeJl~nce., the!'$·are on average, 4,500 newly Identified automated APPS added into1he APPS s.yatem,on ·an annual basis. In aodition, ·there are -~0,000 remaining 't_i~orioaUlles 1Jtat·~H,be manuatly prooeased within the next 4 years. It is. expected that with recent and planned hltes of CIS staff and, based on past years' statistics. It la antfclp~ that the procesalng of these historical files will proi:tuce an additlonaJ 3,000 acttve APP& cases per year. This brings tt!te total aMUal APPS Increase.to 7,500 a year. As of July 1, 2011, the APPS system contain~ 18,668 prohlbtted ·pe~ns associated with 36.402 firearms. Assuming the ·projected average of 7 ,500 -APPS offenders are identffled and merged .)nto t~ system-each y.ear, the·number of APPS·'offenders to be Investigated will inc~se: WithlCUrre.nt staffing levels, the·DOJ~BOF has been able to investigate approximately 1, 716 -APPS subjects !H)r year. It is-estimated, the system purges AAProxlmately 3,200 subjects 'per 1year due ·-to court-dlsP.osltlons, prohibition ;expiration dates, ,orrders··that ·reinstate firearm rigijta, or de~th. This leaves approximately ..2,~00 Al?PS offer,dere;.caieer OJ!ini~ls,-gang membera, p~rsgns-~n~., o.f ~doni,stlc vlo~°'~ anc( lndJvlduals".~h' ~T&I MlneaalpsX~!1~ogital·pr~pfei:ns, left ~o be-lnv~tig~, ~&r ye~r. over·and aboye the 1 . -- 1s jeeitCl!,rentJyJn~t~.P,iees.s~m__._... To9e,~,ainlng Af:>PS offende~ ~n potentfaly cau•·great ham, to oor comm!iJlltle& .. A recent tragedy Which highlights the'neecf f91' vigltant -APPS' lnvestlgatlons,by the DO~-BOF-~cu~· ifl trye ~lty. ._of Baldwin Pa~ Los Angetes.9ounty. Twenty-eight year old•Ro-y Perez·shot his mother sixt,en times, filling her, whl~·~e M4S Bitting in her living room. Perez then ~lked next-door ~nd·shot his neignbo~ ~D<.i her {9ur­ year-old ,c;fqh~r, killing~: Perez -~tinued.hla, rampage, shooting a fou~911- year-old bo~ artd a .nl~ye_ar-old girl In~ frant.yard. Fortunately, bc,th a~!vad. Perez wal~ for poll~ to arrive ,n~ eri~ag·ed them in a gun ba1t1e, where Perez was eve·ntually w.oun~ and arrested. pen,z,had a ~istory of mental illness, and was In the APPS datab~se. Due to the tack of resource&, the DOJ-BOF was unable to investigate this backlog case In a ·timely manner. An lnvestl~on ·could have alerted the DOJ-BOF that Perez~ prohlblte,;d and in posseesion of firearms whlch could have been confiscated. However, the DOJ·BOF was unable to disann him in time to prevent this traglo in~ident

3

AGRFP000228

482 The DOJ-BOF currently has thirteen special ~ents, three special agent supervisors; and one special agent in charge assigned to the APPS program statewide. For the numbe·r of ·•nnual APPS oases, current staffing levels are not sufficient for such a high-priOrlty mission, espeolally considering approximately 30% of all APPS offenders-are in the syatern due to-mental lllness/psychological problems. The 8 limited term-spec1al agents will be distributed throughout the state under the direction-of.existing special agent supervisors, and will be able to conduct an additional 1,056 APPS Investigations per year which entail: coHecting lntelUgence infonnatlon, writing reports, seizing weapons, enter•ng AFS entries, booking evidence, testifying in COtJrt, and making arrests.

The APPS database Is an excellent pro-active law enforcement tool which has · pro~n to be sucoessfuJ In disarming prohibited persons. • The acquJsltlon of addfflonal agent~:rwHI reinforce the DOJ•BOF's effort to address the ever growing backlog in the APPS database.

E. OUTCOMES AND ACC04NTABILITY

,If this proposal is approved, the hiring plan wm begfn once spending and ppsition i&u1hority b~cotne ~~•l~R_~. :ro ensure that it uses ,he reques1:ed resources appropriately, the DOJ-~F will adhere to .its OY_Jn polio~• and ·procedures, as well .as control agencies' extstli'lg accounting, purchasing, hiring, ~ild cctnvar;;tlng pqliclas , ~ • r '-t,. • • ,... ..,_ , , r • and procedu~. All-enf~~cement.stiffWill cofJtinue to provid.e statlatica.J information -.on a monthly b•I~ rela~e '.to,APPS h1v&.1tlgations. The ~~petvisfi>rs_: of.'the'new pe~n~I ~Ill a'9Q prpvid_~- verbat and ·written progress reports. to the:DOJ"BPF -m~gement·on ,a regut,r basis. ,

F. ANALYSIS OF ALL FEASIBLE ALTERNATIVES

Alteroattve ,. Approve $1.8.mil,lion.i_n DR~ Sp~ra~lrtg Authority and 8.0 Spacla' Agent PQaltJona to Suppc:,rt~PPS lnv;~a'tl"'tl~na. ' Thls,reqµest will ·allow,the . DOJ-BOf''to Iner~ ~PPS lrivestigations _.,bY almost 62%. By inoreasing.,A~PS lnv-e.stig~ona an1 ·,~•~lng ~~~,e Pf~h~lted ~om possessing fir$8TTi'ls, the DOJ-BOF \NIii further secure the'safety of the ,publtc. A1.-nat1ve 2. ~pprove the 8.0 .Special AgenJ Position& on a Permanent Ba818. T,iis ~lternattve wiU ,allow-t~.pbf,l;l0F to col)!inue compating, APPS inv~igi!lti6JlS at' a tJJgher level past th~ ~year time frame. The ~stl~ lndl~ the number of 'armed arid prohibited persons wm continue to,increase ,-intil the hietorlcal•records

4

AGRFP000229 .

483 have beElln e1iminated. At that time, the additional staffing level would allow the backlog to be addressed. Alternative 3. Do Nothtng. This option hampers the ability of the Attorney General to fulfill the DOJ-BOF's • mission In the critical and sensitive area of.firearm-related activities and responsibilities. With.current staffmg levels, th~ DOJ-BOF ls only able to address 20 - 25% of the yearly APPS Increase. With all.of the efforts currenUy being ernployed by DOJ-BOF, the APPS mvestigation backlog is still growing by a rate of aUeast 2,000 proh~tted :pers·l)ns per year. Limited personnel resources mal

G. IMPLEMENTATION PLAN

The use of additional funding to meet these needs would begin immediately once spending and position authority become available.

H'. SUPPLEMENTAL INFORMATION (CHECK BOX(ES) BELOW AND PROVIDE ADDITIONAL . DESCRIPTIONS.) □ NONE ~ FACILITY/CAPITAL COSTS OEQUff'MENT .0 CONTRACTS 0 OTHER_

,"his proposal requests the standard complement amount for facllltles.

L RECOMME;~DATION

Alternative 1. Approve the OROS spending authority and 8.0 limited term po$ltlons as proposed. ·

5

AGRFP000230

484 Exhibit 12

485 STEPHEN J. LINDLEY February 21, 2014 BAUER vs. HARRIS 1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

FRESNO BRANCH COURTHOUSE

BARRY BAUER, STEPHEN WARKE;NTIN, NICOLE FERRY, LELAND ADLEY, JEFFREY HACKER, NATIONAL RIFLE ASSOCIATION OF AMERICA, INC., CALIFORNIA RIFLE AND PISTOL ASSO'CIATION FOUNDATION, HE~B BAUER SPORTING GOODS, INC., Plaintiffs,

vs. Case No. 1 :11-cv-01440-LJO-MJS KAMALA HARRIS, In Her Official Capacity as Attpmey General For1,the State of California; STEPHEN LINDLEY, In His Official Capacity as Acting Chief for the 'California DeA~rtment of Justice, and E>OES 1-10,

Defendants.

DEPOSITION OF STEPHEN J. LINDLEY

February 21, 2014 10:38 a.m. 1300 I Street Sacramento, California

Daniel E. Blair, CSR No. 4388

B00.211.0EPO (3376) EsquireSolutions.com

486 STEPHEN J. LINDLEY February 21, 2014 BAUER vs. HARRIS 59 1 When that change happened, do you know how much 2 rnoney was appropriated for use on APPS? 3 A. You mean how much money was switched from 4 ! eneral fund to special fund DROS? 5 Q. Well, let's ask a foundational question first. 6 Is it your understanding that at some point 7 I >ROS funds were allocated for the use of APPS? In APPS 8 rather. 9 MS. GRANGER: Objection. Vague as to the term 10 )ROS funds. You mean the DROS special funds? 11 MR. FRANKLIN: I mean special DROS fee money. 12 3ut I understand that we have a technical slash 13 3ccounting problem about how you would actually trace 14 hat. So let's take a step back. 15 @: Is it your understanding that in 2012, there 16 Nas an appropriation of money from the DROS special fund 17 or the purpose of APPS? 18 A. Yes. 19 Q. Is it also your understanding that - strike 20 hat. 21 Do you know how much that appropriation was 22 hat we were just discussing? 23 A. Roughly. 24 Q. And roughly how much was it? 25 A. Somewhere in the six million, 6.2, 6.5 million. J

800.211.DEPO (3376) EsquireSo/utions.com 487 STEPHEN J. LINDLEY February 21, 2014 BAUER vs. HARRIS 60

1 I m sure you probably have it in your documents how much 2 t e switch was.

3 Q. Well, so my understanding was that-that 4 enate Bill 140 resulted in the approval of the 5 bllity - not that this was the actual amount, that 24 6 illion could have been put towards APPS from the OROS 7 nd. But that's not the question you asked. 8 A. Well, you're asking two different questions 9 10 Q. Right. 11 A. If we're talking about the switch of regular 12 PPS funding compared to SB 140 funding, two separate 13 ssues.

14 Q. Uh-huh.[ so there was in your understanding an 15 ppropriation of money from the OROS fund prior to the 16 nactment of SB 140? 17 A. Say that again. 18 MR. FRANKLIN: Why don't you read it back, 19 ecause I'm not sure I understood you. 20 (Record read.) 21 THE WITNESS: Yes, there was. 22 Q. BY MR. FRANKLIN: And that appropriation you 23 entioned in the last question, you believe that 24 appened in 2012? 25 A. I believe that happened July 1st of 2012.

800.211.DEPO (3376) EsquireSo/utions.com 488 STEPHEN J. LINDLEY February 21, 2014 BAUER vs. HARRIS 61

1 Q. Okay. 2 A. For budget year of '12-13. 3 Q. And it was your belief that -- strike that. 4 Approximately what did you think that amount 5 was? 6 A. I said 6.2, 6, 6.2, 6.5 million, somewhere in 7 ner~ It's documented exactly how much that switch 8 was. 9 Q. Sure. Was there -- after that approximately 1O 5.2 million dollar switch, was there an additional 11 appropriation of money from the DROS fund for the 12 lurpose of APPS-related activities? 13 MS. GRANGER: Objection. Vague as to time. 14 You can answer, if you understand. 15 THE WITNESS: If you're talking about if there 16 was additional funding put towards the '12-13 budget 17 ,ear, because there was an increase in staffing at the 18 same time frame done with a budget change proposal to 19 he state for an additional eight agents. And that's 20 right around the same time frame.

21 Q. BY MR. FRANKLIN: And then for the next budget 22 (ear, was there an additional appropriation out of the 23 DROS fund for APPS-related activities? 24 A Are you talking or referring to SB 140? 25 Q. lam.

800.211.DEPO (3376) EsqulreSolutions. com 489 Exhibit 13

490 Hll Text- SB-140 Firearms: prohibited persons. http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=2 .. .

~~ - fLE~IVE INFORMATION .....-....;::®

SB-140 Firearms: prohibited persons. c201J-2014J

Senate Bill No. 140

CHAPTER2

An act to add Section 30015 to the Penal Code, relating to firearms, making an appropriation therefor, and declaring the urgency thereof, to take effect Immediately.

[ Approved by Governor May 01, 2013. Filed with Secretary of State May 01, 2013. J

LEGISLATIVE COUNSEL'S DIGEST

SB 140, Leno. Firearms: prohibited persons.

Existing law establishes the Dealers' Record of Sale Special Account In the General Fund with moneys In the account available upon appropriation by the Legislature. Existing law requires the Attorney General to establish and maintain an online database to be known as the Prohibited Armed Persons FIie, sometimes referred to as the Armed Prohibited Persons System, to cross­ reference persons who have ownership or possession of a firearm with those who are prohibited from owning or possessing a firearm.

This bill would appropriate $24,000,000 from the Dealers' Record of Sale Special Account to the Department of Justice to address the backlog In the Armed Prohibited Persons System, thereby making an appropriation. The bill would require the department to report to the Joint Legislative Budget Committee regarding ways the backlog In the Armed Prohibited Persons System has been reduced or eliminated, as specified. The bill would make related findings and declarations.

This bill would declare that It Is to take effect Immediately as an urgency statute.

Vote: 2/3 Appropriation: yes Fiscal Committee: yes Local Program : no

THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

SECTION 1. The Legislature finds and declares all of the following :

(a) California Is the first and only state In the nation to establish an automated system for tracking handgun and assault weapon owners who might fall Into a prohibited status.

(b) The onllne database, which Is currently known as the Armed Prohibited Persons System (APPS), cross-references all handgun and assault weapon owners across the state against criminal history records to determine persons who have been, or will become, prohibited from possessing a firearm subsequent to the legal acquisition or registration of a firearm or assault weapon.

(c) Each day, the list of armed prohibited persons In California grows by about 15 to 20 people. There are currently more than 20,000 armed prohibited persons In California. Collectively, these Individuals are believed to be In possession of over 39,000 handguns and 1,670 assault weapons.

(d) Neither the Department of Justice nor local law enforcement has sufficient resources to confiscate the enormous backlog of weapons, nor can they keep up with the dally Influx of newly prohibited persons.

(e) It Is the Intent of the Legislature In enacting this measure to allow the Department of Justice to utilize additional Dealers' Record of Sale Special Account funds for the limited purpose of addressing the current APPS backlog and the Illegal possession of these firearms, which presents a substantial danger to public safety.

SEC. 2. Section 30015 Is added to the Penal Code, to read:

L 30015. (a) The sum of twenty-four mllllon dollars ($24,000,000) Is hereby appropriated from the Dealers' Record of Sale Special Account of the General Fund to the Department of Justice to address the backlog In the Armed Prohibited Persons System (APPS) and the Illegal possession of firearms by those prohibited persons. ::J

(b) No later than March 1, 2015, and no later than March 1 each year thereafter, the department shall report to the Joint Legislative Budget Committee all of the following for the Immediately preceding calendar year:

(1) The degree to which the backlog In the APPS has been reduced or eliminated. 491

1 of2 5/14/2015 4:53 PM Bill Text - SB-140 Firearms: prohibited persons. http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=2 ...

(2) The number of agents hired for enforcement of the APPS.

(3) The number of people cleared from the APPS.

(4) The number of people added to the APPS.

(5) The number of people In the APPS before and after the relevant reporting period, Including a breakdown of why each person In the APPS Is prohibited from possessing a firearm.

(6) The number of firearms recovered due to enforcement of the APPS. I (7) The number of contacts made during the APPS enforcement efforts.

(8) Information regarding task forces or collaboration with local law enforcement on reducing the APPS backlog.

(c) (1) The requirement for submitting a report Imposed under subdivision (b) Is Inoperative on March 1, 2019, pursuant to Section 10231.5 of the Government Code.

(2) A report to be submitted pursuant to subdivision (b) shall be submitted In compliance with Section 9795 of the Government Code.

SEC. 3. This act Is an urgency statute necessary for the Immediate preservation of the public peace, health, or safety within the meaning of Article IV of the Constitution and shall go Into Immediate effect. The facts constituting the necessity are:

In order to address the current Armed Prohibited Persons System (APPS) backlog and the Illegal possession of flrear.ms, which presents an Immediate danger to public safety, It Is necessary for this act to take effect Immediately.

492

? of2 5/14/2015 4:53 PM Exhibit 14

493 State of California N Department of Justice 0 F F I C E of the A T ~ 0 R N E Y G E N E RA L KAMALA D. HARRIS

History of Armed & Prohibited Persons System (APPS)

• Created in 2001 (SB 950) as response to high-profile murder cases involving people prohibited from owning firearms. • APPS cross-references five databases to find people who legally purchased handguns and registered assault weapons since 1996 with those prohibited from owning or possessing firearms. • Prohibited Persons: felons, individuals with history of violence (domestic violence/restraining order) or severe mental illness, wanted persons. ' .. • The first and only other major statewide sweep was in 2007 with 422 firearms seized.

2011 Sweep Stats

• Sweep conducted over six weeks in 43 counties • 1,011 APPS cases - 1,209 fireams seized • Ammunition seized- 155,731 rounds • Grenades seized - 2 • Number of individuals from whom firearms seized - 723 • Department of Justice agents involved - 99

Statewide APPS numbers:

• 17,921 uncontacted individuals are prohibited from having firearms. • 34,204 handguns are believed to be owned by prohibited persons. • 1,590 assault weapons are believed to be owned by prohibited persons.

SB819

• The bill would add the word "possession" to CA penal code to allow the Department of Justice to use money from existing fees collected by gun dealers across the state for APPS program. •("SB 819 would allow the DOJ to request to reduce the amount added to the Dealer's Record of Sales (DROS) surplus to strengthen the APPS via five DOJ agent hires and increased support and training to local law enforcement agencies.:} • Passed Senate-22 to 9 and will be heard in Assembly Public Safety Committee on June 21st.

Dealer's Record of Sales fee (DROS):

• Approximately 1,100 firearms are sold in California each day. • Gun purchasers pay a DROS fee to cover the background checks conducted by the DOJ's Bureau of Firearms. • (pROS account has a surplu'iJ- due in part to a 30 percent increase in gun sales over the last three years and improved technology, equipment and training, which has reduced the amount of time ~eeded to process each gun application. • L::.very year, more than $3 million is added to the DROS surplus]

494 Attorney General Kamala D. Harris Applauds Governor's Signature on Bill to Take More ... Page 1 of 3

State of Califorllla ...,;8epertment of Jnstice 0 FF I CE of thfl A 'TT 0 -'R NEY G EN E RA L l

SACRAMENTO·· Attorney General Kamala D. Harris today praised Governor Jerry Brown's signature of Senate Bill 819, which will allow law enforcement officers to take more firearms out of the hands of those who are 'prohibited from owning them .

"Department of Justice Special Agents are the secret weapon of California law enforcement. I applaud Governor Brown for signing this law that will authorize our Special Agents to utilize existing funds to seize firearms from felons, gang members, the mentally ill and others who cannot legally possess such weapons," Attorney General Harris said. "Seizing guns from the most dangerous among us Is the kind of smart law enforcement that makes a difference In the everyday lives of Californians.•

SB 819, by Senator Mark Leno (D-San Francisco), allows the use of existing regulatory fees collected by gun dealers to fund the Armed Prohibited Persons System (APPS), a program administered by the California Department of Justice.

"There Is a troubling blind spot In our current enforcement of firearms laws," said Senator Leno. 'Thousands of gun owners who once obtained their weapons legally still possess firearms despite subsequent lssue·s, Including criminal activities, which disqualify them from owning weapons. Innocent lives have been lost because we allow guns to be in the hands of known criminals and people who have serious mental Illnesses. SB 819 helps remedy this troubling threat to public safety."

The Bureau of Firearms has Identified more than 18,000 Californians who Illegally possess tens of thousands of firearms. Every day, 15 to 20 names are added to the 11st of prohibited persons who own firearms. SB 819 allows the Department of Justice to use a surplus from the Dealer's Record of Sale account to enforce APPS. The program, which began In 2007, cross-references five databases to find people who legally purchased firearms since 1996 with those who have since been prohibited from owning or possessing them.

Law enforcement officials in California have long struggled to disarm people who are prohibited from owning a firearm. State and local officials lack the resources necessary to confiscate the enormous backlog ofweapon.s, nor can they keep up with the dally influx of newly-prohibited persons. SB 819 helps to ensure that more persons on the APPS list are Identified and their weapons confiscated .

In June, Attorney General Harris announced the results of a statewide sweep In which 1,209 firearms were seized from Individuals legally barred from possessing them. The six-week sweep conducted by 99 agents from the Department of Justice also seized 155,731 rounds of ammunition and two grenades.

###

AGRFP000281 http ://oag.ca.gov/news/press-releases/attomey-general-kamala-d-harris-applauds-governor.,. 12/1 /2014 495 Exhibit 15

496 PROPDSmDN REQUIRES THAT CERTAIN STATE AND LOCAL FEES BE APPROVED BY lWO-THIRDS VOTE. FEES INCLUDE THOSE THAT ADDRESS ADVERSE IMPACTS ON SOCIETY OR THE ENVIRONMENT 26 CAUSED BY THE FEE-PAYER'S BUSINESS. INITIATIVE CONSTITUTIONAL AMENDMENT. OFFICIAL TITLE AND SUMMARY PREPARED BY THE ATTORNEY GENERAL

REQUIRES THAT CERTAIN STATE AND LOCAL FEES BE APPROVED BY TWO-THIRDS VOTE. FEES INCLUDE THOSE THAT ADDRESS ADVERSE IMPACTS ON SOCIETY OR THE ENVIRONMENT CAUSED BY THE FEE-PAYER'S BUSINESS. INITIATIVE CONSTITUTIONAL AMENDMENT. • Requires that certain state fees be approved by two-thirds vote of Legislature and certain local fees be approved by two-thirds of voters. • Increases legislative vote requirement to two-thirds for certain tax measures, including those that do not result in a net increase in revenue, currently subject to majority vote. Summary of Legislative Analyst's Estimate of Net State and Local Government Fiscal Impact: • Decreased state and local government revenues and spending due to the higher approval requirements for new revenues. The amount of the decrease would depend on future decisions by governing bodies and voters; but over time could total up to billions of doUars annually. • Additional state fiscal effects from repealing rece~t fee and tax laws: (1) increased transportation program ~pending and increased General Fund costs of$1 billion annually, and (2) unknown potential decrease in state revenues.

ANALYSIS BY THE LEGISLATIVE ANALYST BACKGROUND • Regulatory fees-such as fees on restaurants to pay for health inspections and fees on the State and local governments impose a variety of purchase of beverage containers to support taxes, fees, and charges on individuals and recycling pro~s. Regulatorr fees p~y for businesses. Taxes-such as income, sales, and programs that place requirements on the prop~rty t~are typically ~~_ed to_ pay for g~neral activi:ties of businesses or people to ach,ieve public services, such as educa~1on, prisons, health, particular .public goals or help offset the public and s9cial sc;:rvices. Fees and charge~, ,by comparison, or env~onin~ntal impact of certain activities. typically pay for a particular s~rvice qr prog!aµi benefiµing indiviquals or businesses. There are three • Prc:>perty charges-· s4ch as charges imposed on propern, developers to imp.rove roads. lc:ading broad 9teg6ries of fees and· c~arges: to ncv/-sqbgivisions and assessments that pay • User fees-such as state park entrance fees and for improvements and services that benefit the garbage fe~, where the user pays for the cost of property owner. a specific servic~ or program.

Figure 1 "pproval Requlr,~~!l!f =~State an-~·Local Jax&J, f:,es, an~ -Pharges ~ Jlf#.!~il;,i';¼\f.ff..t;;:til.~i\~'t~ ~l!-lii~)i11~£f?',{l~t,i,~{ _,.,~Ji~:\:1~'1;;~¼\fJ,'.'l\·.i/.,~ il.¥.:;a;TI;Ml~~!\rity of l~I voters if the local government does not specify _how the funds will be used. Fee Majorlty,of each house of Generally, a majority of the governing body. the Legislature. Property Charges Majority of each house of Generally, a majority of the ,go~eming body. the Leglslature. Some also· r~guire approval by a majority of property owners or two-thirds of local voters. 497 56 I Title 11nd Summary I A1111lysis PROP REQUIRES THAT CERTAIN STATE AND LOCAL FEES BE APPROVED BY TWO-THIRDS VOTE. FEES INCLUDE THOSE THAT ADDRESS ADVERSE IMPACTS ON SOCIETY DR THE ENVIRONMENT 26 CAUSED BY THE FEE-PAYER'S BUSINESS. INITIATIVE CONSTITUTIONAL AMENDMENT.

ANALYSIS BY THE LEGISLATIVE ANALYST CONTINUED State law has different approval requirements because: (1) the program provides a broad public regarding taxes, fees, and property charges. As benefit, not a benefit to the regulated business, and Figure 1 shows, state or local governments usually (2) the companies that pay the fee have no duties can create or increase a fee or charge with a majority regarding the lead poisoning program other than vote of the governing body ( the Legislature, city payment of the fee. council, county board of supervisors, etc.). In In 1997, the California Supreme Court ruled that contrast, increasing tax revenues usually requires this charge on businesses was a regulatory fee, not a approval by two-thirds of each house of the state tax. The court said government may impose Legislature (for state proposals) or a vote of the regulatory fees on companies that make people (for local proposals). contaminating products in order to hdp correct Disagreements Regarding Regulatory Fees. Over adverse health effects related to those products. the years, there has been disagreement regarding the Consequently, regulatory fees of this type can be difference between regulatory fees and taxes, created or increased by (1) a majority vote of each particularly when the money is raised to pay for a house of the Legislature or (2) a majority vote of a program of broad public benefit. In 1991, for local go:verning body. example, the state began imposing a regulatory fee on businesses that made products containing lead. PROPOSAL The state uses tliis money to screen children at risk This measure expands the definition of a tax and a for lead poisoni.t~g~ follow up on their treatment, and tax increase so that more proposals would require identify sources of lead contamination responsible approval by two-thirds of the Legislature or by local for the poisoning. In court, the Sinclair Paint voters. Figure 2 summadzes its main provisions. Company aigu_ed that this regul~tory fee was a tax

Flgure2 Majo.r Provislons of ProRqsltlo.n 26 ~... • :Ll - ' • - •

✓ Expands the $COP.!J of What Is a _Stat, or L,ocal Tax • Classifies as taxes s9me fees and charges that government.currently may Impose with a majority vote. • "As a result, niore s~te rev,nue proposals would reqgire approval by two-thirds of each house of the Legislature and more local revenue proposals would require local voter approval.

✓ Raises the Approval Requirement for Some State Revenue Proposals C• Requires a two-thirds vote of each house of the Legislature to approve laws th~~ncrease taxes on any taxpayer, even if the law's overall fiscal effect does not increase state revenues,;..1

✓ Repeals Recently Passed, Conflicting State Laws • Repeals recent sta~e laws that conflict with this measure, unless they are approved again by two-thirds of each house of the _Legislature. Repeal becomes effe~tive In November 2011.

498 For text of Proposition 26, see page 114. Analysis I 57 PROP REQUIRES THAT CERTAIN STATE AND LOCAL FEES BE APPROVED BY TWO-THIRDS VOTE. FEES INCLUDE THOSE THAT ADDRESS ADVERSE IMPACTS ON SOCIETY OR THE ENVIRONMENT 26 CAUSED BY THE FEE-PAYER'S BUSINESS. INITIATIVE CONSTITUTIONAL AMENDMENT.

ANALYSIS BY THE LEGISLATIVE ANALYST CONTINUED [B(Jitioo d a Sae a Local lax (such_ as providing parking, street lighting, increased security, and marketing), rather than providing a Expands DeDlition. This measure broadens the direct and distinct service to the business owner. definition of a state or local tax to include many payments currently considered to be fees or charges. Some Fees and Charges Are Not Affected. The As a result, the measure would have the effect of change in the definition of taxes would not affect increasing the number of revenue proposals subject most user fees, property development charges, and to the higher approval requirements summarized in property assessments. This is because these fees and Figure 1. Generally, the types of fees and charges charges generally comply with Proposition 26's that would become taxes under the measure are ones requirements already, or are exempt from its that government imposes to address health, provisions. In addition, most other fees or charges in environmental, or other societal or economic existence at the time of the Nove.mber 2, 2010 concerns. Figure 3 provides examples of some election-would not be affected unless: regulatory fees ihat could be considered taxes, in • The state or local government later increases or part or in-whole, under the measure. This is because extends the fees or cq..arges. (In this case, the these fees pay for many ~ervices that be~efit the state or local government would have to public broadly, rather than providing services comply with the approval requirements of directly tQ the fee payer. The state currently uses Propositior 26.) these types of regu!atoryfees to pay for most of its • The fees or ch:arges were created or increased environmental programs. · , by a.state law-passeq betweenJaquary 1, Certain othdfees and charges also could be 2010 and November 2, 20'10-that confl1cts consiqcred to be, taxes under the m~ure. For with Proposition 26 (discussed further below). example, some bµsiµess assessments co_itld be Approval Requirement fpr State Tax Measures considered to be,taxes because· government uses the assessment revenues to improve shopping districts Current Requi~t. The State Constitution currently specifies that laws enacted "(or the purpose

!figure 3 Re ulato t;ees That n · • · - . · . .s~ ,~.~ti1trtw111~~~~•i11i~Eti~m~•iifia11:~;r~ Oll·R,cy~llhg_Fee . . . - The ~~~l mpos~s l!J~gulat_ory fee _on oil manufacturers and uses the funds for: •. p~~lif'.-iiiformation al)d~e~uc,tlon programs: - - • Pay~nts to local used oil collection programs. • Payment of recycling· incentives. • R~se~rch a~d demonstr~tlon projects. • Inspections and_enJo~c.ement of used-oil recycling facilities. H~raous Materials Fee . The ,state imposes a regulatory fee on businesses that treat, dispose of, or recycle hazardous waste and uses the funds for: , , Clean up.of toxic waste sites. • Promotion of pollution prevention. • Eval\,l~tion of waste sq_urce reduction plans. • Certification of ner,, env.,lronmenta! technologies. Faas qn Alc9hol Retailers Some clt\es Impose aJee on alcohol retailers and use the funds for: • Coae ahd11aw enforcement. • Merchant educati~n -to r~duce public nuisance problems associated with alcohol (such as violations of alcohol laws, violence, loitering, drug dealing, public drinking, and graffiti). I 499 58 I Analysis · PROP REQUIRES THAT CERTAIN STATE AND LOCAL FEES BE APPROVED BY TWO-THIRDS VOTE FEES INCLUDE THOSE THAT ADDRESS ADVERSE IMPACTS ON SOCIETY OR THE ENVIRONMENT 26 CAUSED BY THE FEE-PAYER'S BUSINESS. INITIATIVE CONSTITUTIONAL AMENDMENT.

ANALYSIS BY THE LEGISLATIVE ANALYST CONTINUED of_increasing revenues" must be approved by two­ FISCAL EFFECTS thirds of each house of the Legislature. Under current practice, a law that increases the amount of Appr_oval Requirement Changes. By expanding taxes charged to some taxpayers but offers an equal the scope of what is considered a tax, the measure (or larger) reduction in taxes for other taxpayers has would make it more difficult for state and local been viewed as not increasing revenues. As such, it governments to pass new laws that raise revenues. can be approved by a majority vote of the This change would affect many environmental, Legislature. health, and other regulatory fees (similar to the ones in Figure 3), as well as some business assessments New Approval Requirement. The measure and other levies. New laws to create-or extend­ spe~ifies ~t state laws that result in any taxpayer these of fees ~d charges would be subject to pay11:1g :1 higher tax must be approved by two-thirds m,c;s the higher approval requirements for taxes. o( ea.Gh house of the ~gislature. The fis~ effect ~f tl}is change would depend on Sate l.aAS in Cbl[Jct wth A"qmticn 2Q future actions' by, tlie Legislat_Ure, local governing RepMI Requirement. Any state law adopted boar~s, and local voters. If t~e increased voting between January 1, 2010,and November 2, 2010 requirements resulted in some proposals not being that conflicts with Proposition 26 would be repealed approved, government revenues would be lower than one year after th~ propo'sition is approved. This otherw{se would have occurred. This, in turn, likely repeal would not ·take place, however, if two-thirds would resulr in comparable decreases in state of each hous~ of.the LegislattJ,re passed the law again. spen~ing. Recent Fuel Ttf;X L4r1i Change_s. In the spring of Given the range of fees and charges that would be 201.Q,_ -th~ state increased fuel truces ,paid by gasoline subject to 'the higher approval threshol&for taxes, supp~iers, b~t decrease4 othe-r fuel ta:xes paid by t!ie fis?l eff~ct of this ~ange could ~e major. Over g~ohJ.?-e retaile~s.:Overill, th~e c4anges do not raise time, we estl~ate_that , 1t co4ld reduce government more state t~ r~er,m~es,' ~ut they give the state reveflues_and spending stat~wide by up to oiUions of greater spendinglHexibility overJ heir use. · dollars annually compai:~d with what otherwise would.have occurred.' Using this flE4_bility, die stat~ shifted about $1 billion of annual tfilllsportation bond° costs from the 1;leeetd ofccii. ~ ~ing Laws. Repealing conflicting stat~'s qe_ncfraj' F~nd-f9iits fu,el ~ax funds. (T he­ state _!a~ cow4 have a variety of fi$cal effects. For General Fund ¼~ the state's mai~ fundin.g 'source for · ~ample, ·rep~~ingylie :recent fuel tax laws would s_ch~ob, u~~vers.itl~s. pr~ens, ·_h~~th, ap"d° social . m~rease,~tate General Fund costs by about $1 .billion services programs.) This action decreas~-the amount ann~lly for about two decades and increase funds of money a~a,ilable for ~ratJ,sportation pr~gr;uns, but avail~~le for transportation' programs bythe same h~lps the state balance its General fund buaget.­ amount. B~cause ~e ~gislat~re , pproved this ta:x,change ~ec:a.use this ~eas1:1re could reeeal laws passed after witq. ~'maJotity vote. m eai:p. J;10use, this law would­ thlS ~alysis was pr~p;i.r~d and some of the measure's be rep~aled in November 2011-unless the provisi'ors woulcl be's{ibj~~t to future interpretation Legislature approved the tax again with a two-thirds by the courts, we cann.ot estimate the full fiscal effect vote in each house. of this repC!U provision. Given the nature of the Other n,;,,s. At the time this analysis was proposals ilie state :was considering in 20!0, prepare

501 1 KAMALA D, HARRIS . Attorney General of California 2 STEPANA.HAYTAYAN Supervising Deputy Attorney General 3 ANTHONY R. HAKL, State Bar No. 197335 Deputy Attorney General 4 · 1300 I Street, Suite 125 P.O. Box 944255 5 Sacramento, CA 94244-2550 Telephone: (916) 322-9041 · 6 Fax: (916) 324-8835 E-mail: [email protected] 7 Attorneys for Defendants and Respondents

8

9 ·SUPERIOR COURT OF Tiffi STATE OF CALIFORNIA

10 COUNTY OF SACRAMENTO

11 .

12 DAVID GENTRY, JAMES PARKER, Case No. 34-2013-80001667 ' ~ ~ID Lt\M, ,!AMES BASS, and 13 CALGUNS SHOOTING SPORTS DEFENDANTSATT-ORNE-YGENERAL ASSOCIATION,, ·KAMALA HARRIS'AND BUREAU OF 14 FIRE:AI01S CHIEF S'FEPHEN Plaintiffs and Petitioners, LJINDLEY'S RESPONSES-TO 15_ ~QUESTS FOR ADMISSIONS v. (S;ETTWO) 16

17 KAMALA HARRIS, in lier Official .Capacity ~s Attorney·QeneraH~r'the State 1·8 of Cttlifc:irnia; S!DEPHE~ LilNJ}~EY,~ His o~~iaL~~p~c jty •JI ..\t.tµig· Cli!~f.,fqr,t!!~ · 19 , ~alifofll.I!l pe~~~eli!·of ~1,1s~c!; .f0~ . ·cm~,G, 1n ,-.IS ·offi~!al capacity as State 20 Controller; and DOES. 1~10,'

21 Defendants and Respondents. 22 _-

. 23 · PROPOUNDING PARTY: PLAJNTIFFS 24 ·RESPONDIN_G PARTY: DEFENDANTS ATTORNEY GENERAL KAMALA IIA'itltJS. A.Np BUREAU OF FIREARMS CHIEF 25 STE~PHEN LINDLEY 26 SET NUMBER: TWO . 27

28

Defendants Attorney General Kamala Harris and Bureau ofFireanns Chief Stephen Lindley's Responses to Requests for Admissions (Set Two) (34-2013-80001667) 502 1 REQUEST FOR ADMISSION NO. 127:

2 Admit that, at one point, the DROS SPECIAL ACCOUNT included $11,500,000 that

3 CAL DOJ considered a ~urplus.

4 RESPONSE TO REQUEST FOR ADMISSION NO .. 127:

5 Defendants object to thi~ request. The word "surplus" is vague.

6 Without waiving this objection, defendants respond as follows:

7 Defendants admit that at one point the DROS special account included approximately $1 O

8 million that was considered a surplus. Defendants otherwise deny this request.

9 ~ QUEST FOR ADMISSION NO. 128:

10 Admit the decision to not complete the 2010 rulemaking to lower the DROS FEE from

11 · $i 9.00 to $14.00 was based in part on someone within CAL DOJ wanting to use DROS FEE

12 FUNDS for costs arising from APPS (as used herein, "APPS" refers to the Armed Prohibited

13 Persons System program, also known as Armed & Prohibited Persons System program or

14 California Armed and Prohibited Person Program, and, as appropriate, enforcement activities

15 based on the use of data derived from APPS, including but not limited to raids and investigations

16 ofpersons-identified·by APPS as potentially possessing orie or more firearm illegally). i 17 RESPONSE TO REQUEST FOR ADMISSION NO. 128: I I -1 18 Defendants object to this request because it seeks information protected by the executive ~ ! 19 privilege, official information privilege, and deliberative process privilege, as well as the ~ I ·; 20 attorney-client privilege and work product doctrine. I

I I 21 Without waiving this objection, defendants respond as follows: I 22 Admitted ..::J 23 REQUEST FOR ADMISSION NO. 129:

24 ( Admit CAL DOJ' s decision not to complete the 2010 rulemaking to lower the DROS FEE

25 from $19.00 to $14.00 was made prior to July 1, 2011.

26 RESPONSE TO REQUEST FOR ADMISSION NO. 129:

27 Denied] 28 5 Defendants Attorney General Kamala Harris and Bureau ofFireanns Chief Stephen Lindley's Responses to Requests for Admissions (Set Two) (34-2013-80001667) 503 Exhibit 17

I 504 1 KAMALA D. HARRIS 'Attorney General of California 2 STEPAN A. HAYTAYAN . Supervising Deputy Attorney General 3 ANTHONY R. HAKL, State Bar No. 197335 Deputy Attorney General 4 1300 I Street, Suite 125 P.O. Box 944255 5 Sacramento, CA 94244-2550 Telephone: (916) 322-9041 6 Fax: (916) 324-8835 E-mail: [email protected] 7 Attorneys for Defendants and Respondents '8

9 SUPERIOR CQURT OF THE STATE OF CALIFO~IA 10 COUNTY OF SACRAMENTO 11 . ' 12 DAVID GENTRY, JAMES PARKER, Case No. 34-2013-80001667 ~ ~ fD ~AM, J:AMltS llt\SS, and 13 C~GUNS SHOOTING SPORTS DEFENDAN'llSAT~ORNEYGENERAL

K:AMALA ~IDUUUSANDBUREAUOFf , . ASSOCIAT_ION, . ' ' -._. C:~ ~ .,- ~ I -,•..:,- -::I :111, <-. .I 14 FIREARMS CHIEF S'FERHEN Plaintiffs and Petitioners, LIM>LR.¥'S RESP0NSES' 1io SP,ECIAL 15 IN'FtRROGA. TORIES (SET TWO) v. • • '".I 16

.,. 17 KAMALA'lltARRIS, in ,Her .Official . ~ Cap1!':i!Y as A'.tto:flie~ GeJfn~i' fol th~ ~tate· f• I 18 ofiG 'llforni · .- BJ.~P~lE¥, inl'lf& , . _Q :Kc~g CJi~ef<'(or•tlt~ 19 ' . CB . ent~l'tlJustice J0HN ' .. ' . ,'"!l ., f"• , 111,._ I ,CJV ,.., ~•~JJcaP,~·city. as S~le 20 Controller,••'. . OES 1-10, 21 Defeiulants and :Respondents. 22

23 PR0P.OUNDING P!ARTY: PLAIN'FWFS·

24 RESPONDING PARTY: DEJi'END~ N~S A'Ji:'r9RNEY G~;NE~,~A HARRIS.AND BtJREAU OF, FIREARMS-CID·EF 25 STE-PIIE~ LINDLEY . . . r . 26 S~TNUMBER: TWO i­ . '27 l 28 ! l Defendants Attorney General Kamala Harris and Bureau ofFirearqis,Chfef Stephen Liridley's 1 Responses ·, to Special Interrogatories (Set Two) (34-2013-80001667) 505 1 RESPONSES TO SPECIAL INTERROGATORIES

2 INTERROGATORY NO. 6:

3 List every fee, byname (or code section ifno name exists), that is deposited into the OROS 4 SPECIAL ACCOUNT (as used herein, "OROS SPECIAL ACCOUNT" refers to the portion of

5 the state's General Fund wherein DROS FEE FUNDS [as used herein, 'DROS FEE FUNDS"

6 refers to funds collected pursuant to SECTION 28225 {as used herein, SECTION 28225 refers to 7 Penal Code section 28225, including the previous version of that section, which was located at

8 Penal Code section 12706(e)}] are deposited).

9 RESPONSE TO INTERROGATORY NO. 6: 10 . Defendants object to this interrogatory. Defendants are informed and believe that a number

11 of fees are deposited into the DROS Special Account as specified by various statutes, which are a 12 matter of public record and equally accessible to plaintiffs. Thus, this "information is equally

13 available to the propounding party." (See Code Civ. Proc.,§ CCP § 2030.220, subd. (c); Regency

14 Health Services, Inc. v. Superior Court (1998) 64 Cal. App. 4th 1496, 1504; see also Bunnell v.

15 Superior Court ( 1967) 25·4 Cal. App. 2d 720, 723-724, [no duty to search out matters of public

16 record].) This interrogatory is also objectionable because it requires referring to other documents

17 .in order to respond (i.e., it calls for defendants to conduct legal research for plaintiffs).

18 Without waiving this objection, defendants refer plaintiffs to Exhibit A attached hereto,

19 which is a "Bureau of Firearms Fee Schedule/ Authorizations" chart listing at least some of the

20 fees .deposited into the OROS Special Account.

21 INTERROGATORY NO. 7:

22 ( State the name of the person or pers

23 herein, "CAL DOJ" refers to the California Department of Justice, including any subsidiary 24 entities therein) would not complete 2010 rulemak.ing to lower the OROS FEE (as used herein, 25 "OROS FEE(S)" refers to the charge collected pursuant to SECTION 28225) from $19.00 to

26 $14.00. 27

28

Defendants Attorney General Kamala Harris and Bureau of Firearms Chief Stephen Lindley's Responses to Special Interrogatories (Set Two) (34-2013-80001667) 506 1 RESPONSE TO INTERROGATORY NO. 7:

2 Defendants object to this interrogatory to the extent it seeks information protected by the

3 attorney-client privilege, work product doctrine and the official information, law enforcement and

4 executive privileges.

5 Without waiving these objections, defendants respond as follows: Stephen Lindley, Chief 6 of the Bureau of Firearms. J 7 INTERROGATORY NO. 8:

8 If no Government Code section 1134 7 notice concerning the 2010 rulemaking to lower the

9 OROS FEE from $19.00 to $14.00 was ever issued by CAL DOJ, please state the reason no such

10 notice was issued.

11 , RESPONSE TO INTERROGATORY NO. 8:

12 Defendants object to this interrogatory. It is not full and complete in and of itself,

13 · contains subparts, and is ·compound.

14 Without waiving these objections, defendants respond as follows: The referenced notice

15 of decision not to proceed witli the proposed action was not required under the circumstances. t t 1 16 . (See Gov. Code,§§ 11347 & 113'46.4, subd. (b).) I 1: I 17 INTERROGATORY NO. 9: I 18 Provide the calculations, including explanation of what is represented by each piece of· t t I f 19 data used in such calculations, that was relied on in maldng the 2002 claim that the "average [. 20 processing cost" for dealers' records of sale applications was $15.09. (Though not required, it is

21 noted that this statement is made on ~G-00102, which was produced with Defendants' initial

22 disclosures in the matter.Bauer v. Harris, United States District Court for the Eastern District of

23 California, Case No. 1 :11-cv-1440-LJO-MJS, and a copy thereof is attached hereto as Exhibit 1.)

24 RESPONSE TO INTERROGATORY NO. 9:

25 Defendants object to this interrogatory. It is not full and complete in and of itself,

26 contains subparts, and is compound. This interrogatory is also objectionable because it requires

27 referring to other documents in order to respond. Defendants also object to this interrogatory

28 because it seeks irrelevant information from a point in time more than 10 years ago, and any · 2 Defendants Attorney General Kamala Harris and Bureau ofFireanns Chief Stephen Lindley's Responses to Special Interrogatories (Set Two) {34-2013-80001667) 507 1 PROOF OF SERVICE

2

3 STATE OF CALIFORNIA

4 COUNTY OF LOS ANGELES

5 I, Laura L. Quesada, am employed in the City of Long Beach, Los Angeles County, California. I am over the age eighteen (18) years and am not a party to the within action. My 6 business address is 180 East Ocean Blvd., Suite 200, Long Beach, CA 90802. On May 19, 2015, the foregoing document(s) described as 7 DECLARATION OF SCOTT M. FRANKLlN IN SUPPORT OF OPPOSITION TO 8 DEFENDANTS' MOTION FOR JUDGMENT ON 'FHE PLEADINGS

9 on the interested parties in this action by placing [ ] tpe original IO [X] a true and correct copy thereof enclosed in sealed envelope(s) addressed as follows: 11 Kamala D. Harris, Attorn~y General of California 12 Office of the Attorney General Anthony Hald, Deputy Attorney General 13 1300 I Street, Suite 1101 ·Sacramento, CA 95814 14 (BY MAIL) As follows: I am "readily familiar" with tp.e firm's practice of collection and 15 processing correspop.dencefor mailing. lJnder .the practice it would'be deposited with the U.S_. fos:W _S~rv~ce 09-Jhat same day wi~ 'postage thereon fully prepai_d at Long Beach, 16 · California, m the ordmary course of busu;i~ss. I am aware that on motion of the party sery:~d, ,.service _is pre~umed invalid iflp·ostal canceliatioh date is more-than one day after 17 date,.of oeposit for mailing an affid~vit. · ·Execqted on·May 19, 2015, at Long Beach, California. . . 18 ~ ' . _x_ (YIA~ELECT:R@NrC MAIL),As.fo!lows:-I seIV,~cr a· true,and corre_ct ccipy by electronic 19 tr~~!fii_ssion. - S~ drtr~mission , was reported,~~ c~]Jlpleted withput error. Executed on May 19; 2_015, ~t·Long .Be~h, Ca.hforrua. 20 (RERSONAL SERVICE) I caused_sµ~h envelope to delivered by hand to the offices of the·. 21 addressee. Executed, on May 19, 2015, at Long Beach, .Califontia. 22 _x_ (STATE) · I declare under p~nalty of perjury under the laws of the State of California that 23 th~ foregoing is true a.JJ.d correct.

24 (FEDERAL) I declare that I a.qi employed in the office~of_-...: court at whose direction th erv1c niade 25 26

27 .... j 28 508 5 DECL. OF SCOTT M. FRANKLIN ISO OPP. TO OEFENDANTS' MJOP 1 KAMALA D. HARRIS Attorney General of California 2 STEPAN A. HAYTAYAN Supervising Deputy Attorney General 3 ANTHONY R. HAKL, State Bar No. 197335 Deputy Attorney General 4 1300 I Street, Suite 125 P.O. Box 944255 5 Sacramento, CA 94244-2550 Telephone: (916) 322-9041 6 Fax: (916) 324-8835 E-mail: [email protected] 7 Attorneys for Defendants and Respondents

8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SACRAMENTO 10 11 12 DAVID GENTRY, JAMES PARKER, Case No. 34-2013-80001667 13 MARK MID LAM, JAMES BASS, and CALGUNS SHOOTING SPORTS DEFENDANTS'REPLY 14 ASSOCIATION, IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS 15 Plaintiffs and Petitioners, Date: June 5, 2015 16 v. Time: 9:00 a.m. Dept: 31 17 Judge: The Honorable Michael P. KAMALA HARRIS, in Her Official Kenny 18 Capacity as Attorney General for the State Trial Date: None set of California; STEPHEN LINDLEY, in His Action Filed: October 16, 2013 19 Official Capacity as Acting Chief for the California Department of Justice, BETTY 20 T. YEE, in her official capacity as State Controller, and DOES 1-10, 21 Defendants and 22 Respondents. 23 24 25 26 27 28

DEFENDANTS' REPLY IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS (34-2013-80001667)509 1 TABLE OF CONTENTS

2 Page 3 Introduction ...... 1 Argument ...... 1 4 Conclusion ...... 5 5

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DEFENDANTS' REPLY IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS (34-2013-80001667)510 1 TABLE OF AUTHORITIES 2

3 CASES

4 Professional Engineers in California Government v. Kempton (2007) 40 Cal.4th 1016 ...... 1 5 S. California Edison Co. v. Pub. Utilities Comm 'n 6 (2014) 227 Cal.App.4th 172 ...... 4 7 Schmeer v. Cnty. ofLos Angeles 8 (2013) 213 Cal.App.4th 1310 ...... -...... 3, 4, 5

9 Western States Petroleum Assn. v. Board ofEqualization (2013) 57 Cal.4th·401 ...... 2 10 STATUTES 11

12 Government Code § 163 46 ...... 4 13 CONSTITUTIONAL PROVISIONS 14 California Constitution 15 Article XIII B, § 8, subd. (c) ...... 4 Article XIII A, § 3, subd. (a) ...... 1, 2, 3 16 Article XIII C ...... 4 17 Article XIII C, § 3 ...... 2 18

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27 28 ii DEFENDANTS' REPLY IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS (34-2013-80001667)511 1 INTRODUCTION 2 Plaintiffs' opposition to defendants' motion for judgment on the pleadings contains no basis

3 for extending the application of Proposition 26 in this case. This Court should therefore grant

4 defendants' motion in its entirety.

5 ARGUMENT 6 Proposition 26 restricts the Legislature's power to enact certain levies, charges, and

7 exactions (defined as "taxes"). That restriction applies only to "[a]ny change in state statute

8 which results in any taxpayer paying a higher tax." (Cal. Const., art. XIII A, § 3, subd. (a).) This

9 language is clear and unambiguous and the ordinary meaning of these words is the best evidence

10 of the intent of the voters who enacted Proposition 26. (See Professional Engineers in California

11 Government v. Kempton (2007) 40 Cal.4th 1016, 1037.)

12 Here, SB 819 did not result in anyone paying a higher tax. Prior to the enactment of

13 SB 819, firearms purchasers paid a DROS fee in the amount of$19.00. After the passage of the

14 SB 819, firearms purchasers paid a DROS fee in the same amount, $19.00. Thus, Proposition 26

15 does not apply.

16 Plaintiffs' proffered construction of Proposition 26 is contrary to the plain meaning of its

17 words. Plaintiffs recognize that the DROS fee has been $19.00 since 1994. Yet they go on to

18 argue that SB 819 "created a firearms purchaser tax that did not exist before SB 819, and going

19 from zero tax to some amount of tax plainly satisfies the 'higher tax' element of a Proposition 26

20 claim." (Pls.' Opp'n at p. 6.) In other words, plaintiffs argue that the Legislature somehow

21 transformed an unspecified amount of the $19.00 DROSfee into a tax by passing SB 819, which

22 authorizes the expenditure of DROS fee revenues for certain purposes. Thus, according to

23 plaintiffs, because SB 819 arguably expanded the use of DROS fee revenues, prior to SB 819

24 they were paying "zero tax" whereas after they were paying "some tax" - even though the exact

25 same amount of money (i.e., $19.00) was charged at all relevant times. (Ibid.)

26 Plaintiffs cite no authority in support of their novel reading of Proposition 26. That's

27 because there is none. Again, the plain language of Proposition 26 makes it applicable to "any

28 taxpayer paying a higher tax." (Cal. Const., art. XIII A, § 3, subd. (a), emphasis added.) An 1 DEFENDANTS' REPLY IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS (34-2013-80001667)512 1 individual's payment of a tax is simply not the same thing as the government's expenditure of the

2 revenues generated from that tax. To put it another way, the constitutional language at issue in

3 this case focuses on the fiscal impact of a new statute on a taxpayer (i.e., it asks whether the

4 taxpayer is paying a higher tax.) The language does not concern the conduct of an agency like

5 the Department of Justice (DOJ) (i.e., it does not ask how the government is spending revenues).

6 That is where plaintiffs' argument goes wrong. They fail to focus on the amount of money the

7 payer is actually paying, as required by the unambiguous language of Proposition 26.

8 Related, the plain language of Proposition 26 shows that it is a restriction on the

9 Legislature's revenue power. Again, Proposition 26 applies to "[a]ny change in state statute

10 which results in any taxpayer paying a higher tax." (Cal. Const., art. XIII A,§ 3, subd. (a)), and

11 only the Legislature can change a state statute. Plaintiffs want to apply the measure to DOJ's use

12 of OROS fee revenues, but that would wrongly expand the scope of Proposition 26 to include

13 actions taken by state agencies who do not have the power to tax, such as the Department of

14 Justice. That is not what the voters intended. (See Western States Petroleum Assn. v. Board of

15 Equalization (2013) 57 Cal.4th 401, 423-424 [Proposition 26 does not apply to regulations or

16 administrative action].) Rather, they intended to "define[] a 'tax' for state and local purposes so

17 that neither the Legislature nor local governments can circumvent these restrictions on increasing

18 taxes by simply defining new or expanded taxes as 'fees."' (See Ballot Pamp., Gen. Blee.

19 (Nov. 2, 2010) text of Prop. 26, § 1, p. 114, reprinted in Historical Notes, 2A West's Ann. Cal.

20 Const. (2013 supp.) foll. art. XIII C, § 3, pp. 141-142, emphasis added.) For this reason as well,

21 Proposition 26 simply does not apply.

22 The ballot pamphlet language just quoted is also instructive because it speaks in terms of

23 "increasing" taxes as well as "new or expanded" taxes. Nothing in SB 819 "increased" the DROS

24 fee or resulted in a "new or expanded" fee. Rather, plaintiffs have been paying the same amount

25 (i.e., $19.00) in connection with OROS transactions since 2004. Plaintiffs briefly argue that this

26 "same amount" scenario is encompassed by Proposition 26 because the measure extends to

27 "revenue neutral" laws. (Pls.' Opp'n at pp. 6-7.) Here plaintiffs are inventing a Legislative intent

28 that is not there. Prior to Proposition 26, the restriction on taxing power was assessed on net, 2 DEFENDANTS' REPLY IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS (34-2013-80001667)513 1 meaning a change in law could impose a new kind or amount of tax if the added tax burden was

2 offset by a reduction elsewhere. (See generally Schmeer v. Cnty. ofLos Angeles (2013) 3 213 Cal.App.4th 1310, 1321-22, as modified (Mar. 11, 2013), review denied (May 15, 2013) .4 [discussing historical foundations of Proposition 26].) Proposition 26 was intended to eliminate 5 offsetting, instead restricting each new or increased tax without regard to offsetting reductions 6 elsewhere. That intention is not nearly the same as requiring every statute ( even those that do not 7 add or increase a tax) to be revenue neutral, as plaintiffs apparently argue. Proposition 26 clearly

8 was not intended to restrict the Legislature from enacting laws like SB 819 - a law where the 9 Legislature is merely exercising its powers other than its revenue powers. And in any event, the 10 relevant language of Proposition 26 speaks expressly in terms of "any taxpayer paying a higher

11 tax." (Cal. Const., art. XIII A, § 3, subd. (a).) This Court should give that phrase its plain, 12 ordinary meaning and reject plaintiffs' invitation to read it out of the Constitution. 13 Plaintiffs also argue - again without citation to authority - that Proposition 26 applies 14 because the Department of Finance (DOF) says so. That argument is meritless. As an initial 15 matter, the argument is based on a single page taken out of the Manual of State Funds, which

16 plaintiffs have submitted to the Court in connection with a separate motion to compel. It is not at 17 all clear on what basis the Court should consider that "evidence" in connection with the instant 18 motion for judgment on the pleadings, which is generally governed by the facts pied in the

19 petition and complaint. The Court should therefore not even consider the document. 1

20 Moreover, even if the Court were to consider the page at issue, which is the fund

21 description for the DROS special account, it does not help plaintiffs. Looking at the page in 22 question, the entire passage at issue reads as follows:

23 State Appropriations Limit Excluded - Revenues in this fund are not proceeds of taxes, however, when 24 transferred, may become proceeds of taxes. These revenues are used to regulate 25 the activities engaged in by the payers. 26

27 1 The same can be said for almost all of the documents attached to the declaration filed in connection wi_th plaintiffs' opposition. 28 3 DEFENDANTS' REPLY IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS (34-2013-80001667)514 1 The heading of the passage makes clear that DOF made the observation in the context of the state

2 appropriations limit and whether revenues in the DROS special account might become "proceeds

3 of taxes" for purposes of that separate constitutional limit. (See Cal. Const. art. XIII B, § 8, subd.

4 (c) [defining the phrase ''proceeds of taxes" for purposes of the state appropriations limit].)

5 Simply stated, these are questions that have nothing to do with this case or Proposition 26:

6 Indeed, even plaintiffs' reliance on DO F's use of the word "transfer" is misplaced. On the

7 same page in reference to the same fund, DOF makes the following statement:

8 Disposition of Fund (upon abolishment) Pursuant to Government Code section 16346, absent language that,identifies a 9 successor fund, any balance remaining in this fund upon abolishment shall be 10 transferred to the General Fund.

11 This language makes it clear that the "transfer" DOF refers to in the fund description is a transfer

12 of funds from the DROS special account to the General Fund upon abolishment of the latter. It is

13 undisputed that there has been no such transfer in this case. In relevant part, in this case DROS

14 fees have been collected, deposited into the DROS special account, and appropriated from that

15 account to DOJ by the Legislature. There has been no transfer from a special fund to the General

16 Fund. 17 Finally, plaintiffs' opposition brief is nearly devoid of authority addressing the 18 Proposition 26 issue. And the sole Proposition 26 case cited in that brief actually supports

19 defendants' straightforward reading of the measure. In Schmeer v. Cnty. ofLos Angeles (2013)

20 213 Cal.App.4th 1310, 1313-14, as modified (Mar. 11, 2013), review denied (May 15, 2013), the

21 court considered whether a county ordinance prohibiting retail stores from providing plastic 22 carryout bags and requiring stores to charge customers 10 cents for each paper carryout bag

23 provided violated Proposition 26. The court ultimately concluded that the paper carryout bag

24 charge was not a tax for purposes of article XIII C. (Id. at p. 1313.) But Proposition 26 was an

25 issue because prior to the passage of the ordinance customers paid nothing for a paper carryout

26 bag whereas after the ordinance they paid ten cents for a paper carryout bag. (Id. at 1314.) In 27 other words, as a result of the ordinance customers paid a "higher amount" for the paper bag, and

28 Proposition 26 was implicated. (See id. at pp. 1313-14 & 1326-30; see also S. California Edison 4 DEFENDANTS' REPLY IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS (34-2013-80001667)515 1 Co. v. Pub. Utilities Comm 'n (2014) 227 Cal.App.4th 172, 197-198, as modified (June 18, 2014)

2 [considering whether implementation of a separate Electric Program Investment Charge (EPIC)

3 violated Proposition 26.]

4 In this case, SB 819 resulted in no "higher amount" analogous to the "higher amount" of

5 ten cents charged in Schmeer. SB 819 simply did not increase the amount of the DROS fee for

6 plaintiffs or anyone else. The fee was $19.00 before SB 819; it was $19.00 after SB 819; and it

7 has been $19. 00 for more than ten years. Proposition 26 therefore does not apply.

8 CONCLUSION 9 For these reasons, and for all of the reasons set forth in defendants moving papers, the

10 Court should grant defendants motion for judgment on the pleadings and dismiss the first and

11 second causes of action without leave to amend.

12 Dated: May 29, 2015 Respectfully Submitted,

13 KAMALA D. HARRIS Attorney General of California 14 STEPAN A. HAYTAYAN Superv· sing D uty Attorney General 15

16

17 ANTHON R. HAKL 18 Deputy Attorney General Attorneys for Defendants and Respondents 19 SA2013113332 20 11891554 21

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28 5 DEFENDANTS' REPLY IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS (34-2013-80001667)516 DECLARATION OF SERVICE BY OVERNIGHT COURIER

Case Name: Gentry, David, et al. v. Kamala Harris, et al.

No.: 34-2013-80001667

I declare:

I am employed in the Office of the Attorney General, which is the office of a member of the California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter; my business address is: 1300 I Street, Suite 125, P.O. Box 944255, Sacramento, CA 94244-2550.

On May 29, 2015, I served the attached DEFENDANTS' REPLY IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS by placing a true copy thereof enclosed in a sealed envelope with the GOLDEN STATE OVERNIGHT COURIER, addressed as follows:

Scott Franklin Michel & Associates, P.C. 180 E. Ocean Boulevard, Suite 200 Long Beach, CA 90802

I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on May 29, 2015, at Sacramento, California.

Tracie L. Campbell Declarant JtiUt~

SA2013! 13332 11894877.doc I I 894877.DOC

517 1 2

3 JUN 1 - 2015 4

5 By S. Lee, Deputy Clerk

6

7

8 SUPERIOR COURT OF CALIFORNIA

9 COUNTY OF SACRAMENTO

10 DAVID GENTRY, JAMES PARKER, Case No. 34-2013-80001667-CU-WM-GDS 11 MARK MIDLAM, JAMES BASS, and CAL GUNS SHOOTING SPORTS 12 ASSOCIATION, RULING ON REQUEST FOR 13 Plaintiffs and Petitioners, PRODUCTION OF WITHHELD v. DOCUMENTS VIA EXPEDITED DISPUTE 14 RESOLUTION PROCEDURE KAMALA HARRIS, in Her Official 15 Capacity as Attorney General for the State of California; STEPHEN 16 LINDLEY, in His Official Capacity as Acting Chief for the California 17 Department of Justice, BETTY T. YEE, in her official capacity as State 18 Controller, and DOES 1-10,

19 Defendants and Res ondents.

20 The Court has received and reviewed Petitioners' brief and Respondents' brief concerning 21 the subject documents which Respondents contend are privileged. Pursuant to their claims of 22 privilege, Respondents have refused to produce the documents in response to Petitioners' 23 discovery requests. The Court has also received and reviewed the allegedly privileged documents. 24 Respondents' brief only addresses their arguments concerning the deliberative process 25 26 privilege. However, the "privilege log" to the submitted documents asserts numerous additional

27 privileges which Respondents appear to have asserted in their responses to Petitioners. As 28 1 COURT RULING 518 CASE NO. 34-2013-80001667-CU-WM-GDS 1 Respondents have failed to address these claimed privileges in their brief, the Court assumes they

2 have abandoned these arguments. 3 California Penal Code section 28225 authorizes the Department to require a firearms 4 dealer to charge a purchaser a fee. The amount of the fee is to be no more than necessary to fund, 5

6 "(1) The department for the cost of furnishing this information.

7 (2) The department for the cost of meeting its obligations under paragraph (2) of subdivision (b) of Section 8100 of the Welfare and Institutions Code. 8 (3) Local mental health facilities for state-mandated local costs resulting from the 9 reporting requirements imposed by Section 8103 of the Welfare and Institutions Code. 10 (4) The State Department of State Hospitals for the costs resulting from the 11 requirements imposed by Section 8104 of the Welfare and Institutions Code.

12 (5) Local mental hospitals, sanitariums, and institutions for state-mandated local costs resulting from the reporting requirements imposed by Section 8105 of the 13 Welfare and Institutions Code.

14 (6) Local law enforcement agencies for state-mandated local costs resulting from the notification requirements set forth in subdivision (a) of Section 6385 of the 15 Family Code.

16 (7) Local law enforcement agencies for state-mandated local costs reSUlting from the notification requirements set forth in subdivision (c) of Section 8105 of the 17 Welfare and Institutions Code.

18 (8) For the actual costs associated with the electronic or telephonic transfer of information pursuant to Section 28215. 19 (9) The Department of Food and Agriculture for the costs resulting from the 20 notification provisions set forth in Section 5343.5 of the Food and Agricultural Code. 21 (10) The department for the costs associated with subdivisions (d) and ( e) of 22 Section 27560.

23 (11) The department for the costs associated with funding Department of Justice firearms-related regulatory and enforcement activities related to the sale, purchase, 24 possession, loan, or transfer of firearms pursuant to any provision listed in Section 16580." 25 The Department of Justice may also directly charge the fee, sufficient to 26 reimburse it for the following costs:

27 "(1) For the actual costs associated with the preparation, sale, processing, and filing of forms or reports required or utilized pursuant to any provision listed in 28 subdivision (a) of Section 16585. 2 COURT RULING 519 CASE NO. 34-2013-80001667-CU-WM-GDS 1 (2) For the actual processing costs associated with the submission of a Dealers' 2 Record of Sale to the department.

3 (3) For the actual costs associated with the preparation, sale, processing, and filing of reports utilized pursuant to Section 26905,27565,27875,27966, or 28000, 4 paragraph (1) of subdivision (a) of Section 27560, or paragraphs (1) and (2) of subdivision (a) of, and subdivisions (b), (c), and (d) of, Section 27920. 5 (4) For the actual costs associated with the electronic or teleohonic transfer of 6 infOlmationpursuant to Section i8215." (Cal. Penal Code § 28230.)

7 Based on the plain language of these sections, the Department is required to perform

8 certain budgetary calculations in order to determine the proper amount of the section 28225 fee. 9 In their brief concerning the instant motion, Respondents contend budget reports, draft letters 10 concerning budgetary issues, and budget analysts' analyses are subject to the deliberative process 11 privilege, and cannot be disclosed. Respondents argue "disclosure of the reports would chill the 12

13 full and candid assessment of departmental budget issues in general and similar issues affecting

14 the Bureau of Firearms in particular."

15 "Under the deliberative process privilege, senior officials of all three branches of 16 government enjoy a qualified, limited privilege not to disclose or to be examined concerning not 17 only the mental processes by which a given decision was reached, but the substance of 18 conversations, discussions, debates, deliberations and like materials reflecting advice, opinions, 19 and recommendations by which government policy is processed and formulated." (Regents 0/ 20

21 University ofCalifornia v. Superior Court (1999) 20 Cal.4th 509, 540)(concurring opinion,

22 emphasis added.) Courts have consistently found, "[nJot every disclosure which hampers the

23 deliberative process implicates the deliberative process privilege. Only if the public interest in 24 nondisclosure clearly outweighs the public interest in disclosure does the deliberative process 25 privilege spring into existence." (Cal. First Amendment Coalition v. Superior Court (1998) 67 26 Cal.App.4th 159, 172; see also Connell v. Superior Court (1997) 56 Cal.App.4th 601, Citizens/or 27 Open Government v. City ofLodi (2012) 205 Cal.App.4th 296.) 28 3 COURT RULING 520 CASE NO. 34-2013-80001667-CU-WM-GDS 1 At issue are Respondents' budget and expenditure decisions related to the setting and

2 continuation ofthe DROS fee. The public clearly has an interest in disclosure of documents 3 which identify the budgetary analyses performed by Respondents to support the amount of the 4 DROS fee. The legislature has authorized a limited fee in sections 28225 and 28230, which is to 5

6

7 Respondents are engaging in budgetary and other calculations concerning the appropriate amount

8 of the DROS fee, these records are discoverable in this matter. Respondents have failed to

9 provide a compelling reason why the public interest in nondisclosure outweighs its interest in 10 disclosure. This particular budgetary analysis appears to be designed for public scrutiny in: light of 11 the statutory limitations imposed. The Court can identify no public interest in not disclosing 12 records of an analysis the Department is required to perform in order to charge the public a fee. 13 Respondents are ordered to produce the documents identified by Respondents as privilege 14

15 log items 1,2,3,4, 7, 8, 9, 10, 12, 13 and 14. Per the documents submitted to the Court, items 5,

16 6, and 11 were intentionally omitted by agreement of the parties. To the extent privilege log item

17 1 contains non-public employee information, such information shall be redacted prior to 18 production. 19 Conclusion 20 Respondents shall produce the documents as indicated above to Petitioners within 10 days 21 of the date of this ruling. Should any further issues arise in connection with the production of 22

23 these documents, the parties shall notify the Court.

24 DATED: June 1,2015

25 MICHAEL P. KENNY

26 Judge MICHAEL P. KENNY Superior Court of California, 27 County of Sacramento

28 4 COURT RULING 521 CASE NO. 34-2013-80001667-CU-WM-GDS 1 CERTIFICATE OF SERVICE BY MAILING (C.c.P. Sec. l013a(4)) 2 I, the undersigned deputy clerk of the Superior Court of California, County of 3 Sacramento, do declare under penalty of perjury that I did this date place a copy of the above­ 4 entitled RULING ON REQUEST FOR PRODUCTION OF WITHHELD DOCUMENTS 5 VIA EXPEDITED DISPUTE RESOLUTION PROCEDURE in envelopes addressed to each 6 of the parties, or their counsel of record as stated below, with sufficient postage affixed thereto th 7 and deposited the same in the United States Post Office at 720 9 Street, Sacramento, California.

8 SCOTT M. FRANKLIN, ESQ. ANTHONY R. HAKL 9 MICHEL & ASSOCIATES, P.c. Deputy Attorney General 180 E. Ocean Boulevard, Suite 200 P.O. Box 944255 10 Long Beach, CA 90802 Sacramento, CA 94244-2550 11

12 Superior Court of California, County of Sacramento 13

14 Dated: June 2, 2015 By: S.LEE Deputy Clerk 15

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28 5 COURT RULING 522 CASE NO. 34-2013-80001667-CU-WM-GDS 1(:- i i r:.~ ! ..., ' .. ! ,.. ;.. ... :....,J

201 5 JU~. -2 PM 2: 39 C. D. Michel - S.B.N. 144258 Scott M. Franklin - S.B.N. 240254 2 Sean A. Brady - S.B.N. 262007 MICHEL & ASSOCIATES, P.C. 3 180 E. Ocean Boulevard, Suite 200 Long Beach, CA 90802 4 Telephone: 562-216-4444 Facsimile: 562-216-4445 5 Email: [email protected]

6 Attorneys for Plaintiffs/Petitioners

7

8 SUPERJOR COURT OF THE STATE OF CALIFORNIA

9 FOR THE COUNTY OF SACRAMENTO

10 DAVID GENTRY; JAMES PARKER; ) CASE NO. 34-2013-80001667 11 MARK MID LAM; JAMES BASS; and ) CALGUNS SHOOTING SPORTS ) REQUEST FOR JUDICIAL NOTICE IN 12 ASSOCIATION, ) SUPPORT OF OPPOSITION TO ) DEFENDANTS' MOTION FOR 13 Plaintiffs and Petitioners, ) JUDGMENT ON THE PLEADINGS ) 14 vs. ) ) 15 KAMALA HARRJS, in her official capacity) as Attorney General for the State ) 16 of California; STEPHEN LINDLEY, in his ) official capacity as Acting Chief for the ) 17 California Department of Justice; JOHN ) CHIANG, in his official capacity as State ) Date: 06/05/15 18 Controller for the State of California; and ) Time: 9:00 a.m. DOES 1-10, ) Dept.: 31 19 ) Judge: Hon. Michael P. Kem1y, Defendants and Respondents. ) Presiding 20 ------) Action filed: 10/16/13 21

22 In Defendants' Reply in Support of Motion for Judgment on the Pleadings, dated May 29,

23 2015 ("Reply"), Defendants appear to make an objection to certain judicially noticeable facts

24 referred to in documents cited by Plaintiffs. (Reply 3:14-1 9 & n.5.) Plaintiffs were unaware that

25 Defendants would dispute the applicability of these facts/documents regarding the instant Motion

26 for Judgement on the Pleadings; judicially noticeable facts are plainly within the realm of

27 consideration at this stage. See, e.g., Cloud v. Northrop Grumman Corp. , 67 Cal. App. 4th 995,

28 999 (1998).

523 REQUEST FOR JUDICIAL NOTICE 1 The document referred to below is a “source[] of reasonably indisputable accuracy” issued

2 by the California Department of Finance and it provides proof of one or more fact(s) that 3 Defendants cannot reasonably dispute. Evid. Code § 452(h). Accordingly, in an abundance of 4 caution, Plaintiffs hereby request the Court take judicial notice of the following fact(s) under

5 Evidence Code sections 452(h) and 453. Notwithstanding Defendants’ vague allegations, which

6 appear to be founded not in an admissibility argument but on an claim that the fact(s) at issue

7 should be given little weight, the fact(s) below is/are plainly within the realm of evidence that the

8 Court may consider under the rules for a brief responding to a motion for judgment on the

9 pleadings.

10 Fact(s): The California State Manual of Funds, available exclusively online, includes a 11 page specifically concerning Fund 460, the Dealers’ Record of Sale Special 12 Account. The relevant page is available at http://www.dof.ca.gov/accounting/ 13 manual_ofstatejunds/index/documents/0460.pdf and a true and correct copy of 14 the page is attached hereto as Exhibit A. The existence of various textual 15 statements made on the relevant page are the facts at issue. 16

17 (The fund manual page is discussed in Plaintiffs’ Opposition to Defendants’ 18 Motion for Judgment on the Pleadings, dated May 19, 2015 at Section III.B.2. and 19 also in Plaintiffs’ Motion to Compel Further Responses to Requests for 20 Admissions (Set One) at 9:9-27.) 21

22 Dated: June 2, 2015 MICHEL & ASSOCIATES, P.C.

Scoin, attorney for Plaintiffs

28 524 2 REOUEST FOR JUDICIAL NOTICE 1 PROOF OF SERVICE

2 STATE OF CALIFORNIA

3 COUNTY OF LOS ANGELES

4 I, Laura L. Quesada, am employed in the City of Long Beach, Los Angeles County, California. I am over the age eighteen (18) years and am not a party to the within action. My 5 business address is 180 East Ocean Blvd., Suite 200, Long Beach, CA 90802.

6 On June 2, 2015, the foregoing document(s) described as

7 REQUEST FOR JUDICIAL NOTICE

8 on the interested parties in this action by placing [ ] the original 9 {X] a true and correct copy thereof enclosed in sealed envelope(s) addressed as follows: 10 Kamala D. Harris, Attorney General of California 11 Office of the Attorney General Anthony Hakl, Deputy Attorney General 12 1300 I Street, Suite 1101 Sacramento, CA 95814 13 X (BY MAIL) As follows: I am readily familiar’ with the firm’s practice of collection and 14 processing correspondence for mailing. Under the practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at Long Beach, 15 California, in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date is more than one day after 16 date of deposit for mailing an affidavit. Executed on June 2, 2015, at Long Beach, California. 17 X (VIA ELECTRONIC MAIL) As follows: I served a true and correct copy by electronic 18 transmission. Said transmission was reported and completed without error. Executed on June 2, 2015, at Long Beach, California. 19 delivered by hand to the offices of the — (PERSONAL SERVICE) I caused such envelope to 20 addressee. Executed on June 2, 2015, at Long Beach, California. 21 the laws of the State of California that .. (STATE) I declare under penalty of perjury under 22 the foregoing is true and correct.

23 — (FEDERAL) I declare that I court at whose direction the 24

25

26

27

28 525 3 REQUEST FOR JUDICIAL NOTICE Exhibit A

526 Department of Finance Fund: 0460 PAGE 1 STATE OF CALIFORNIA Renumbered MANUAL OF STATE FUNDS From: Legal Title Dealers’ Record of Sale Special Account Legal Citation/Authority Chapter 71 1, Statutes of 2010 Penal Code section 28235 Fund Classification Fund Classification GAAP Basis Legal Basis Governmental/Special Revenue Funds Governmental/General Fund Special Accounts Purpose Administration of the Dealers’ Record of Sale program for fees imposed on firearm purchasers and collected by firearms dealers. Administering Agency/Organization Code Department of Justice/Org 0820 Major Revenue Source Fees imposed on firearms purchasers. Disposition of Fund (upon abolishment) Pursuant to Government Code section 16346, absent language that identifies a successor fund, any balance remaining in this fund upon abolishment shall be transferred to the General Fund. Appropriation Authority Section 28235 of the Penal Code provides that the money is available when appropriated by the Legislature. State Appropriations Limit

Excluded — Revenues in this fund are not proceeds of taxes, however, when transferred, may become proceeds of taxes. These revenues are used to regulate the activities engaged in by the payers. Comments/Historical Information Chapter 327, Statutes of 1982 created Penal Code section 12076 which was the original code section for this fund. Chapter 711, Statutes of 2010 repealed Penal Code section 12076 and moved the creation of the fund to Penal Code section 28235, effective January 1, 2012.

Revised August 2012 FUND 0460527 1 2 3 4 'JUL 2 0 2015 5 JLL By S. Lee, Deputy Cierk 6 7

8 SUPERIOR COURT OF THE STATE OF CALIFORNIA

9 COUNTY OF SACRAMENTO 10 11 12 DAVID GENTRY, JAMES PARKER, Case No. 34-2013-80001667 13 MARK MID LAM, JAMES BASS, and CALGUNS SHOOTING SPORTS [BRQPeSEBj ORDER AFTER 14 ASSOCIATION, HEARING 15 Plaintiffs and Petitioners, Date: June 5, 2015 Time: 9:00 a.m. 16 Dept: 31 Judge: The Honorable Michael P. 17 Kenny KAMALA HARRIS, in Her Official Trial Date: None set 18 Capacity as Attorney General for the State Action Filed: October 16,2013 of California; STEPHEN LINDLEY, in His 19 Official Capacity as Acting Chief for the California Department of Justice, BETTY 20 T. YEE, in her official capacity as State Controller, and DOES 1-10, 21 • Defendants and 22 Respondents. 23 24 25 26 27 28

[Proposed] Order After Hearing (34-2013-80001667)528 1 This matter came before the Court on June 5, 2015, at 9:00 a.m., for hearing on

2 (1) defendants' motion for judgment on the pleadings; (2) plaintiffs' motion to compel further 3 responses to requests for admissions; and (3) plaintiffs' motion to compel further responses to 4 Form Interrogatory 17.1. 5 Scott M. Franklin of Michel & Associates, P.C. appeared on behalf of plaintiffs. Deputy 6 Attomey General Anthony R; Hakl appeared on behalf of defendants. 7 Prior to the hearing the Court issued a Notice to Appear for Oral Argument, with questions. 8 Having heard oral argument, and having considered the written submissions of the parties, for the 9 reasons discussed more fully on the record during the hearing, IT IS HEREBY ORDERED that:

10 1. Defendants' motion for judgment on the pleadings is granted;^ I 11 2. The first cause of action of the complaint for declaratory and injunctive relief and /( ^^ 12 petition for writ of mandamus is dismissed without leave to amend on the grounds that it does not

13 state facts sufficient to constitute a cause of action against moving defendants; 14 3. With respect to the second cause of action, and as indicated in the Court's questions 15 issued before the hearing, that cause of action appears to plead two altemative claims: that SB 16 140 is an unlawful appropriation because SB 819 is an illegal tax under the Califomia 17 Constitution; and that, even if SB 819 is not an illegal tax, the DOJ defendants had no statutory 18 authority to use DROS fee revenues on regulating the possession of firearms prior to January 1, 19 2012, the date that SB 819 went into effect. The first alternative claim of the second cause of

20 action is dismissed without leave to amend, the Court having granted the motion for judgment on 21 the pleadings and dismissed the first cause of action;

22, 4. With respect to the second altemative claim of the second cause of action, and as 23 discussed on the record during the hearing, the Court is inclined to construe the motion for 24 judgment on the pleadings as a motion to strike and strike that claim. Nevertheless, the parties

25 shall be afforded an opportunity to brief the motion to strike issue. Accordingly, on or before 26 , each side may file a supplemental brief no longer than five pages addressing 27 whether tne Court should construe the motion for judgment on the pleadings as a motion to strike

28 and strike the second altemative claim of the second cause of action.

[Proposed] Order After Hearing (34-2013-80001667529) 530 1 5. Regarding plaintiffs' motion to compel further responses to requests for admissions, and 2 the parties having met and conferred on this issue as directed by the Court at the hearing, 3 defendants' position is that the motion should be denied as moot, the Court having granted the 4 motion for judgment on the pleadings. Plaintiffs' position is that the motion is not moot. 5 Accordingly, plaintiffs' motion to compel further responses to requests for admissions is 6 submitted for decision by the Court on the briefs already filed.

7 6. The parties similarly disagree as to whether plaintiffs' motion to compel further 8 responses to Form Interrogatory 17.1 regarding Request for Admissions Nos. 18, 19, 21, 22, 83- 9 86, and 88-89 is moot. Defendants contend it is, moot whereas plaintiffs maintain it is not moot. 10 Accordingly, plaintiffs' motion to compel further responses to Form Interrogatory 17.1 regarding 11 Request for Admissions Nos. 18, 19, 21, 22, 83-86, and 88-89 is also submitted for decision.

12 7. Finally, the parties agree that plaintiffs' motion to compel further responses to Form 13 Interrogatory 17.1 regarding Request for Admissions Nos. 38, 58, 68, 78, 92-96 and 99 still needs 14 to be resolved by the Court. Therefore, plaintiffs' motion to compel with respect to those 15 responses is also submitted for decision.

16 IT IS SO ORDERED 17 Dated: 7/ t/^lK 18 Superior Court Jud; 19 Approved as to form: 20 Dated: June _, 2015 21 Scott M. Franklin Counsel for plaintiffs 22 23 24 Dated: Jwtte- ,2015 25 Anthony R. Hakl Counsel for defendants 26 27 SA2013113332 28

[Proposed] Order After Hearing (34-2013-80001667531) DECLARATION OF SERVICE BY E-MAIL and U.S. Mail

Case Name: Gentry, David, et al. v. Kamala Harris, et al. No.: 34-2013-80001667

I declare:

I am employed in the Office of the Attorney General, which is the office of a member of the Califomia State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am famUiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placed in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that same day in the ordinary course of business.

On Julv 2. 2015,1 served the attached [PROPOSED] ORDER AFTER HEARING by transmitting a true copy via electronic mail. In addition, I placed a true copy thereof enclosed in a sealed envelope, in the internal mail system of the Office of the Attorney General, addressed as follows:

Scott Franklin Michel & Associates, P.C. 180 E. Ocean Boulevard, Suite 200 Long Beach, CA 90802 E-mail Address: SFranklin(a)michellawyers.com

I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on July 2, 2015, at Sammento, California.

Tracie L. Campbell Declarant Signature

SA2013113332 11925837.doc

532 1 C. D. Michel - S.B.N. 144258 Scott M. Franklin· S.B.N. 240254 2 Sean A. Brady - S.B.N. 262007 MICHEL & ASSOCIATES, P.C. 3 180 E. Ocean Boulevard, Suite 200 Long Beach, CA 90802 4 Telephone: 562-216-4444 Facsimile: 562.. 216-4445 5 Email: [email protected]

6 Attorneys for Plaintiffs/Petitioners

7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA

9 FOR THE COUNTY OF SACRAMENTO

10 DAVID GENTRY; JAMES PARKER; ) CASE NO. 34-2013-80001667 11 MARK MIDLAM; JAMES BASS; and ) CALOUNS SHOOTING SPORTS ) PLAINTIFFS' SUPPLEMENTAL BRIEF IN 12 ASSOCIATION, ) RESPONSE TO ORDER OF JULY 20, 2015 ) 13 Plaintiffs and Petitioners, ) ) 14 vs. ) ) 15 KAMALA HARRIS, in Her Official ) Capacity as Attorney General for the State ) 16 of California; STEPHEN LINDLEY, in His ) Official Capacity as Acting Chief for the ) 17 California Department of Justice; JOHN ) CHIANG, in His Official Capacity as State ) 18 Controller for the State of Ca1ifornia; and ) DOES 1-10, ) 19 ) Defendants and Respondents. ) 20 ------) 21 I. INTRODUCTION 22 This Cowt's Order After Hearing, dated July 20, 2015 (the "Order"), states that the Court \ 23 is inclined to construe Defendant Kamala Harris and Stephen Lindley' s (collectively 24 "Defendants") prior Motion for Judgm~nt on the Pleadings as a motion to strike regarding the 25 second alternative claim in the second cause of action (the "Claim'') in Plaintiffs David Gentry,

26 James Parker, Mark Midlam, James Bass, and Calguns Shooting Sports Association's

27 (collectively "Plaintiffs") petition/complaint ("Complaint''). (Order at 2:22-24). The Order also 28 states the Court is inclined to strike the Claim~ (Id)

SUPPLEME1'"TAL BRIEF IN RESPONSE TO ORDER OF JULY 20, 2015 1 533 1 Defendants have never briefed a substantive basis as to why the Claim should be stricken;

2 Defendants' Motion for Judgment on the Pleadings, and the Reply filed in support thereof, are

3 both completely silent on the issue. The only argument Defendants have put forward is inherently

4 flawed and, in light of the Order, m'oot. Because there is no legitimate basis for the "motion,,, it 5 should be denied. 6 II. PROCEDURAL HISTORY 1 Defendants' Motion for Judgment on the Pleadings ("MJOP") asked the Court to dismiss 8 the second cause of action in Plaintiffs' Complaint based on the contention that the second cause

9 of action failed to state a claim for relief under Proposition 26. (Defs.' Memo. in Supp. ·of Mo!.

10 for J. on the Pleadings at I :10-16.) The Court, however, noticed that the portion of the Complaint 11 denominated as the second cause of action actually included two legal theories. The Court . 12 identified both the theory based on Proposition 26, and another theory based on a claim that SB

13 819 did not authorize the California Deparbnent of Justice to use fees collected prior to the

14 enactment of SB 819 for the new uses purportedly authorized under SB 819. (Notice to Appear at

15 Oral Arg. [''Notice to Appear"] at 1-2.) Accordingly, on the afternoon before the hearing of June 16 S, 2015, the Court posed the following question to the parties: "[d]oes the motion for judgment on 17 the pleadings on the second cause of action, which is the equivalent of a general demurrer, violate 18 the principle that a demurrer does not lie to a portion of a cause of action?" (Id)

19 At the bearing of June 5, 2015, Defendants' counsel argued, for the first time, that "there's 20 a rule against pleading alternative claims in the same cause of action[,]" citing Campbell v.

21 Rayburn, 129 Cal. App. 2d 232,235 (1954), and O'Hare v. Marine Elec. Co., 229 Cal. App. 2d. 22 33 (1964). (Transcript of Hearing of June 5, 2015 ["Transcript"] at 4:9-15.) In response, the Court

23 indicated that it agreed with Defendants' position. (Id. at 4:9-18.) Nonetheless, the Order states 24 that the parties are permitted to file supplemental briefing on the narrow issue of whether the 25 Claim should be (1) subject to a motion to strike and (2) stricken. (Order at 2:22-28.) The Order 26 also clearly states that the remainder of the second cause of action (i.e., the SB 819-based claim) 27 had been 9ismissed. (Order at 2:14-21.) 28 I II

SUPPLEMENTAL BRIEF IN RESPONSE TO ORDER OF JULY 20, 2015 2 534 1 III. ARGUMENT 2 A. Defendants' "Motion,, ls Moot: the Alleged Impropriety No Longer Exists 3 Even assuming Defendants are correct in arguing the existence of a rule against pleading 4 alternative claims in the same cause of action {Transcript at 4:9-15), that rule cannot apply here. s Plaintiffs' second cause of action now consists of a single claim; the Court dismissed the other 6 allegations in the second cause of action via the Order. (Order at 2:14-21.} Because the alleged 7 ·ru1e cannot apply to the second cause of action-which now consists solely of the 8 Claim-Defendants, "motion" is moot and should be denied. 9 B. Defendants' Authority Is Not on Point 10 1. The Rule Stated in Campbellv. Rayburn ls No Longer Good Law 11 Defendants rely on a passage in Campbell that states the following: "the special oemurrer 12 was properly sustained because the complaint was defective in that two purported causes of action 13 were not separately stated. (Code Civ. Proc.,.§ 430; Haddad v. McDowell, 213 Cal. 690 [3 P.2d

14 550].)" Campbell v. Rayburn, 129 Cal. App. 2d 232,235 (1954). Code of Civil Procedure section

I 5 430, however, was repealed and replaced by section 430.10 in 1972, which itself was amended in 16 1973 ''to abolish as a ground for a demWTer that each cause of action is not separately stated." 17 Lilienthal & Fowler v. Super. Ct., 12 Cal. App. 4th 1848, 1855 n.4 (1993). In fact, Lilienthal 18 stands for the proposition that two different causes of action can be plead in a single "count'' of a 19 complaint See Skrbina v. Fleming Cos., 45 Cal. App. 1353, 1364 (1996) (citing Lilienthal). Thus, 20 inasmuch as there is no rule against pleading two causes of action together, Defendants' argument 21 "that each legal theory should be pleaded in a separate cause of action" must fail. 22 a. Campbell, Hadd_ad, and O'Hare Are Factually lnapposite 23 Furthermore, there is a major factual distinction between Campbell, Haddad (cited by · 24 Campbell), and O'Hare, on the one hand, and the instant matter, on the other. In Campbell and

25 0 'Hare, the plaintiffs were granted leave to amend after demurrers were granted, but they each 26 failed to timely file an amended complaint in response thereto. Campbell, 129 Cal .. App. 2d at 27 235; O'Hare v. Marine Elec. Co., 229 Cal. App. 2d 33, 35 (1964). Thus, when the appellate courts

28 considered their pleadings, the decision not to amend clearly forced the appellate courts to

SUPPLEMENT AL BRIEF IN RESPONSE TO ORDER OF JULY 20, 2015 3 535 1 "presume that the case[s had] been stated as strongly as can be done." O'Hare, 229 Cal. App. 2d

2 at 35, 38; Campbell, 129 Cal. App. 2d at 235. 3 Similarly, in Haddad, the plaintiff failed to request leave to amend after a demurrer was 4 granted against him. Haddad v. McDowell, 213 Cal. 690, 691 (1931 ). At the time the demurrer 5 ruling was issued against Haddad, California law required that a plaintiff submit a requ_est to the 6 court if the plaintiff wanted to file an amended complaint after a demurrer was granted. See

7 Wennerho/m v. Stanford Univ .. Sch. ofMed, 20 Cal. 2d 713, 719-20 (stating the rule relied on in

8 Haddad, but then noting that the rule had been superceded by statute in 1939). 9 •Clearly, Campbell, 0 'Hare, and Haddad are inapplicable hereto because they each 10 concern a situation where a party failed to take the proper steps to amend a faulty complaint. 11 Plaintiffs are prepared to file an amended complaint that splits the second cause of action into two 12 distinct causes of action, wtlike the plaintiffs in Campbell, 0 'Hare, ·and Haddad, making those

13 cases inapplicable. Thus, if the Court finds that the rule expressed in Campbell should be applied 14 herein, the Court s~ould grant Plaintiffs leave to amend so they can amend the Complaint IS accordingly. CLD Constr., Inc. v. City ofSan Ramon, 120 Cal App. 4th 1141, 1146-47 (2004) 16 (stating that, in response to a motion to strike, "[i]t is generally an abuse of discretion to deny 17 leave to amend" to correct a curable defect). 18 2. Defendants Have Not Provided Any Argument' as to Why the Claim Should 19 Be Stricken Pursuant to O'Hare v. Marine Elec. Co. 20 Plaintiffs object to Defendants' attempt to rely on O'Hare, as Defendants have never 21 provided a pinpoint cite or explanation as to why this case is purportedly relevant. Defendants' 22 sole reference to this case was:Defendants' counseJts statement of its name (without reporter 23 information) during the hearing of June 5, 2015. (Transcript at 4:15.) Without any specific 24 allegations to rely on, Plaintiffs are forced to speculate that O'Hare was cited for the proposition 25 that, "in a proper case, the complaint could be subject to general demurrer for failure to state a 26 cause of action.'' See Rylaarsdam, et al., California Practice Guide: Cfvil Procedure Before Trial 27 §§ 6:245 (The Rutter Group 2015) (citation omitted}. 28 In O'Hare, the plaintiff attempted to allege a breach (?f~duciary duty owed by directors or

SUPPLEMENTAL BRIEF IN RESPONSE TO ORDER OF JULY 10, 2015 4 . 536 1 certain shareholders of a company. O'Hare, 229 Cal. App. at 37. O'Hare's complaint, however, 2 employed the tenn "and/or,, to such an extent that the complaint did not actually include an

3 allegation that definitively identified the defendants as directors or shareholders. Id Without an 4 allegation that was elemental to the breach claims at issue·(i.e., that defendants were in a class of 5 people purportedly owing O'Hare a fiduciary duty), the O'Hare court correctly held that O'Hare's 6 complaint did not state a cause of action against the named defendants. Id 7 0 'Hare is irrelevant hereto. Defendants have not argued, let alone proved, any specific 8 theory as to why the Claim should be stricken for failing to state a cause of action. 9 It would be patently unfair for the Court to now consider any argument that the Claim fails 10 to state a cause of action. "An elementary and fundamental requirement of ~ue process in any 11 proceeding which is to be accorded fmality is notice reasonably calculated, under all the 12 circumstances, to apprise interested parties of the pendency of the action and afford them an 13 opportunity to present their objections." Edward W. v. Lamkins, 99 Cal. App. 4th 516,529 (2002). 14 Defendants have not presented an argument that the Claim should be stricken pursuant to Code of 15 Civil Procedure section 436, nor have Plaintiffs had the opportunity to respond to such argument. 16 For that reason, if Defendants' supplemental brief includes argument as to whether the Claim fails 17 to state a cause of action, Plaintiffs should be given a timely opportunity to respond thereto.

18 IV. CONCLUSION

19 Defendants' "motion" should be denied for the reasons stated herein. If the Court grants 20 the "motion," leave should be granted to all Plaintiffs to correct what is, at most, an easily curable

21 defect.

22 Dated: August 7, 2015 & 23 MICHEL ASSOCIATES, P.C. 24 25 26 'Scott M. Franklin Attorneys for Plaintiffs. 27 28

SUPPLEMENTAL BRIEF IN RESPONSE TO ORDER OF JULY 20, 2015 5 537 l PROOF OF SERVICE 2 STATE OF CALIFORNIA 3 COUNTY OF LOS ANGELES 4 I, Laura L. Quesad~ am employed in the City of Long Beach, Los Angeles County, s California I am over the age eighteen (18) years and am not a party to the within action. My business address is 180 East Ocean Blvd., Suite 200, Long Beach, CA 90802. 6 On August 7, 2015, the foregoing document(s) described as 7 SUPPLEMENT AL BRIEF IN RESPONSE TO ORDER OF JULY 20, 2015 8 on the interested parties in this action by placing 9 [ ] the original [X] a true and correct copy 10 thereof enclosed in sealed envelope(s) addressed as follows: 11 Kamala D. Harris, Attorney General of California Office ofthe Attorney General 12 Anthony Hald, Deputy Attorney General 1300 I Street, Suite 1101 13 Sacramento, CA 95814

14 {BY MAIL) As follows: I am ''readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under the practice-it would be deposited with the 15 U.S. Postal Service on that same day with postage thereon fully prepaid at Long Beach, California, in the ordinary course of business. I am aware that on motion of the party 16 served, service is presumed invalid if postal cancellation date is more than one day after date of deposit for mailing an affidavit. 17 Executed on August 7, 2015, at Long Beach, California. 18 ...x. (YIA ELECTRONIC MAIL) As follows: I served a true and correct copy by electronic transmission. Said transmission was reported and completed without error. 19 Executed on August 7, 2015, at Long Beach, California. ·20 (PERSONAL SERVICE) I caused such envelope to delivered by band to the offices of the addressee. 21 Executed on August 7, 2015, at Long Beach, California. 22 _x_ (STATE) I declare under penalty of perjury under the laws ofthe State of California that the foregoing is true and correct. 23 (fEDERAL) I declare that I am employed in the office of the member ofthe bar of this 24 court at whose direction the serv· as made. I 2S 26 27 28

SUP~LEMENTAL BRIEF IN RESPONSE TO ORDER OF JULY 10, 2015 6 538 1 KAMALA D. HARRIS Attorney General of California 2 STEPAN A. HAYTAYAN Supervising Deputy Attorney General 3 ANTHONYR.HAKL, State BarNo. 197335 Deputy Attorney General 4 1300 I Street, Suite 125 P.O. Box 944255 5 Sacramento, CA 94244-2550 Telephone: (916) 322-9041 6 Fax: (916) 324-8835 E-mail: [email protected] 7 Attorneys for Defendants and Respondents

8 SUPERIOR COURT OF THE STATE OF CALIFORNIA

9 COUNTY OF SACRAMENTO

10

11

12 DAVID GENTRY, JAMES PARKER, Case No. 34-2013-80001667 13 MARK MID LAM, JAMES BASS, and CALGUNS SHOOTING SPORTS DEFENDANTS'SUPPLEMENTAL 14 ASSOCIATION, BRIEF

15 Plaintiffs and Petitioners, Date: June 5, 2015 Time: 9:00 a.m. 16 v. Dept.: 31 Judge: The Honorable Michael P. 17 Kenny KAMALA HARRIS, in Her Official Trial Date: None set 18 Capacity as Attorney General for the State Action Filed: October 16, 2013 of California; STEPHEN LINDLEY, in His 19 Official Capacity as Acting Chief for the California Department of Justice, BETTY 20 T. YEE, in her official capacity as State Controller, and DOES 1-10, 21 Defendants and 22 Respondents.

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28

539 DEFENDANTS' SUPPLEMENTAL BRIEF (34-2013-80001667) 1 TABLE OF CONTENTS

2 Page 3 Background ...... , ...... 1 Argmnent ...... 2 4 Conclusion ...... 4 5

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540 DEFENDANTS' SUPPLEMENTAL BRIEF (34-2013-80001667) 1 TABLE OF AUTHORITIES

2

3 CASES

4 Campbell v. Rayburn (1954) 129 Cal.App.2d 232 ...... 2 5 County of Orange v. Association of Orange County Deputy Sherifft 6 (2011) 192 Cal.App.4th 21 ...... 3 7 Goodman v. Kennedy 8 (1976) 18 Cal.3d 335 ...... 4

9 Lodi v. Lodi (1985) 173 Cal.App.3d 628 ...... 2 10 O'Hare v. Marine Elec. Co. 11 (1964) 229 Cal.App.2d 33 ...... 2 12 Pierson v. Sharp Memorial Hospital, Inc. 13 (1989) 216 Cal.App.3d 340 ...... 3

14 Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 187 ...... 3 15 STATUTES 16 Code of Civil Procedure 17 § 128, subd. (a) ...... 3 18 § 187 ...... 3 § 430.10, subd. (f) ...... 2 19 § 436 ...... ~ ...... 2

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11 541 DEFENDANTS' SUPPLEMENTAL BRIEF (34-2013-80001667) 1 INTRODUCTION

2 As it was inclined to do at the recent hearing, the Court should construe defendants' motion

3 for judgment on the pleadings as a motion to strike and now strike the second alternative claim of

4 the second cause of action.

5 BACKGROUND 6 This matter came before the Court on June 5, 2015, for hearing on a motion for judgment

7 on pleadings by defendants Kamala D. Harris, the Attorney General of California, and Stephen

8 Lindley, the Chief of the Bureau of Firearms of the California Department of Justice (DOJ). The

9 motion challenged the first and second causes of action of plaintiffs' complaint for declaratory

10 and injunctive relief and petition for wlit of mandate. Plaintiffs include a firearms rights

11 advocacy organization and a group of individuals.

12 In relevant part, the complaint takes issue with Senate Bill 819, which the Legislature

13 passed in 2011 to clarify that California's Armed Prohibited Persons System (APPS) could be

14 funded with the revenue generated from the $19.00 Dealer's Record of Sale (DROS) fee.

15 Generally speaking, an individual must pay the DROS fee when he or she purchases a firearm in

16 California.

17 Plaintiffs' first cause of action sought a declaration that SB 819 is an unlawful tax under the

18 California Constitution. It also sought an injunction prohibiting DOJ from using DROS fee

19 revenues to regulate the possession of firearms.

20 With respect to the second cause of action, in a written order issued prior to the hearing the

21 Court observed that it "appear[ed] to plead two alternative claims." (Order filed June 4,2015, at

22 p. 1.) The first alternative claim was "that SB 140 is an unlawful appropriation because SB 819 is

23 an illegal tax under the California Constitution." (Ibid.) The second alternative claim was that

24 "even if SB 819 is not an illegal tax, the DOJ defendants had no statutory authority to use DROS

25 fee revenues on regulating the possession of firearms prior to January 1, 2012, the date that SB

26 819 went into effect." (Ibid.)

27 After the hearing, the Court issued an order granting the motion for judgment on the

28 pleadings as to the first cause of action, which the Court therefore dismissed without leave to 1 542 DEFENDANTS' SUPPLEMENTAL BRIEF (34-2013-80001667) 1 amend on the grounds that it failed to state facts sufficient to constitute a cause of action. (Order

2 After Hearing filed July 20,2015, at p. 2.)

3 As to the first alternative claim of the second cause of action, the court also dismissed it

4 without leave to amend, the Court having granted the motion for judgment on the pleadings as to

5 the first cause of action. (Order After Hearing filed July 20,2015, at p. 2.)

6 Finally, while the" Court was inclined to construe the motion for judgment on the pleadings

7 as a motion to strike the second alternative claim ofthe second cause of action - and in fact strike

1 8 that claim - it nevertheless afforded the parties an opportunity to file a short supplemental brief

9 limited to the motion to strike issue. (Order After Hearing filed July 20,2015, at p. 2.)

10 Defendants now submit this supplemental brief.

11 ARGUMENT 12 As a general rule, a plaintiff cannot plead alternative claims in the same cause of action.

13 Rather, each legal theory must be pleaded in a separate cause of action in the complaint.

14 (Campbell v. Rayburn (1954) 129 Cal.App.2d 232, 235.) Moreover, a complaint that jumbles

15 together different legal theories is subject to objection. Such objections include, for example, a

16 demurrer for uncertainty (see Code Civ. Proc., § 430.10, subd. (f)), or even a general demurrer for

17 failure to state a cause of action. (See 0 'Hare v. Marine Elec. Co. (1964) 229 Cal.App.2d 33,

18 36.)

19 As indicated by the Court's question posed prior to the hearing on defendants' motion, and

20 as discussed on the record and in open court during that hearing, plaintiffs' second cause of action

21 was flawed from the outset: It purported to plead two alternative claims. It is therefore subject to

22 objection. More specifically, and as explained below, the Court having granted the motion for

23 judgment on the pleadings and dismissing the first alternative claim of the second cause of action,

24 the second alternative claim ofthe second cause of action is subject to a motion to strike.

25

26 1 The rules specifically authorize the Court to strike a pleading ''upon a motion ... or at any time in its discretion." (Code Civ. Proc., § 436, italics added.) It is therefore proper for a 27 court to go so far as to strike a complaint and dismiss an action entirely on the court's own motion. (Lodi v. Lodi (1985) 173 Cal.App.3d 628, 631.) 28 2 543 DEFENDANTS' SUPPLEMENTAL BRlEF (34-2013-80001667) 1 The Court is well within its authority in construing defendants' motion for judgment on the

2 pleadings as a motion to strike. As one court of appeal has put it:

[A] trial court is "free to consider the motion regardless of its label." [Citations.] ... The proposition that a trial court may construe a motion bearing 4 one label as a different type of motion is one that has existed for many decades. 5 "The nature of a motion is determined by the nature of the relief sought, not by the label attached to it. The law is not a mere game of words." .... Neither the 6 Legislature, nor the California Supreme Court, nor any Court of Appeal has ever challenged that notion.... The principle that a trial court may consider a motion 7 regardless of the label placed on it by a party is consistent with the courts inherent authority to manage and control its docket. (Code Civ. Proc., §§ 128, subd. (a), 8 187.) 9 (Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 187,193.)

10 Indeed, there is precedent involving the kinds of motions presently at issue. For example,

11 in County of Orange v. Association of Orange County Deputy Sheriffs (2011) 192 Cal.App.4th

12 21, 32, the court of appeal affinned the trial court's granting of a motion for judgment on the

13 pleadings without leave to amend where the trial court construed the motion to strike as one for

14 judgment on the pleadings. A similar situation existed in Pierson v. Sharp Memorial Hospital,

15 Inc. (1989) 216 Cal.App.3d 340,343. There, "Sharp's motion, while labeled a motion to strike,

16 attacked Pierson's strict liability claim on the ground it failed to state facts sufficient to constitute

17 a cause of action. Sharp's motion effectively sought judgment on the pleadings." (Ibid.) The

18 court of appeal therefore "deem[ ed] the [trial] court's order to grant judgment on the pleadings."

19 (Ibid.) Just as the courts in County of Orange and Pierson construed a motion to strike as a

20 motion for judgment on the pleadings, this Court should construe defendants motion for judgment

21 on the pleadings as a motion to strike and strike the second alternative claim of the second cause

22 of action.

23 Finally, construing defendants' motion as a motion to strike is fair. 2 Defendants' Notice of

24 Motion and Motion for Judgment on the Pleadings and accompanying memorandum of points and

25 authorities provided clear notice that defendants challenged the entirety of the first and second

26 2 It also conserves the resources of the parties and the Court whereas subjecting a motion to strike to the formal notice, briefing and hearing procedures would waste those resources. This 27 is especially so where, as here, the parties have had the opportunity to file supplemental briefs on the issue. 28 3 544 DEFENDANTS ' SUPPLEMENTAL BRIEF (34-2013-80001667) 1 causes of action. (See Doc. nos. 35 & 36.) Plaintiffs' opposition responded in kind and never

2 parsed the first or second causes of action into any sub-claims, or alternative claims. Indeed, only

3 after this Court alerted plaintiffs to the existence of the purported second alternative claim did

4 plaintiffs object to it being dismissed. Ifthat is not enough, neither in their opposition nor at the

5 hearing did plaintiffs' even request leave to amend in an attempt to cure any deficiencies of the

6 complaint, much less meet their burden to "show in what manner [they] can amend [their]

7 complaint and how that amendment will change the legal effect of [their] pleading." (Goodman

8 v. Kennedy (1976) 18 Ca1.3d 335,349.) And in any event, any amendment would be futile.

9 Therefore, there is no reason to save any portion of the second cause of action now, and the

10 motion to strike should be granted.

11 CONCLUSION 12 For the reasons set forth above, the Court should construe defendants' motion for judgment

13 on the pleadings as a motion to strike and in fact strike the second alternative claim of the second

14 cause of action.

15 Dated: August 7, 2015 Respectfully Submitted,

16 KAMALA D. HARRIS Attorney General of California 17 STEPAN A. HAYTAYAN Supervisi De uty Attorney General 18

19

20 ANTHONY R. HAKL 21 Deputy Attorney General Attorneys for Defendants and Respondents 22 SA2013113332 23

24

25

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27

28 4 545 DEFEf-..TDANTS ' SUPPLEMENTAL BRIEF (34-2013-80001667) DECLARATION OF SERVICE BY U.S. MAIL

Case Name: Gentry, David, et aI. v. Kamala Harris, et aI.

No.: 34-2013-80001667

I declare:

I am employed in the Office of the Attorney General, which is the office of a member of the California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter; my business address is 1300 I Street, Suite 125, P.O. Box 944255, Sacramento, CA 94244-2550.

On August 7, 2015, I served the attached DEFENDANTS' SUPPLEMENTAL BRIEF by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the United States Mail at Sacramento, California, addressed as follows:

Scott Franklin Michel & Associates, P.e. 180 E. Ocean Boulevard, Suite 200 Long Beach, CA 90802

I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on August 7, 2015, at Sacramento, California.

Eileen A. Ennis Declarant ,C Sign re

SA2013113332 11956833.doc

546 1

2

3

4 s 6 7 8 SUPERIOR COURT OF CALIFORNIA

9 COUNTY OF SACRAMENTO

10 DAVID GENTRY,JAMES PARKER, Case No. 34-2013-80001667-CU-WM-GDS 11 MARK MIDLAM, JAMES BASS, and CALGUNS SHOOTING SPORTS 12 ASSOCIATION, RULING AFTER ADDmONAL BRIEFS: 13 Plaintiffs and Petitioners, MOTION FOR JUDGMENT ON THE v. PLEADINGS, MOTION TO COMPEL 14 ADDITIONAL RESPONSES TO FORM KAMALA HARRIS, in Her Official INTERROGATORIES, AND MOTION TO 15 Capacity as Attorney General for the COMPEL FURfflER RESPONSES TO State of California; STEPHEN REQUEST FOR ADMISSIONS 16 LINDLEY, in His Official Capacity as Acting Chief for the California 17 Department of Justice, BETTY T. YEE, in her official capacity as State 18 Controller, and DOES 1-10,

19 Defendants and Res ondents.

20 This matter came on for hearing on June S, 2015, for the above-referenced motions. The 21 Court granted the motion for judgment on the pleadings in part, and ordered the parties to submit 22 further briefing as to whether the Court should construe the motion for judgment on the 23 pleadings as a motion to strike and strike the remaining portion of the second cause of action. 24 25 The Court also ordered the parties to notify it as to whether the discovery motions were still at

26 issue, or whether they had become moot as Respondents contended.

27 Ill 28 1 RULING AFTER ADDITIONAL BRIEFS 547 CASE NO. 34--2013-80001667-CU-WM-GDS 1 In the Order after Hearing, the Court granted the motion for judgment on the pleadings as

2 to the First Cause of Action, dismissing it without leave to amend. With respect to the Second 3 Cause of Action, the Court granted the motion with regard to the first alternative claim that SB 4 140 is an unlawful appropriation because SB 819 is an illegal tax under the California 5 Constitution. With regard to the second alternative claim·ofthe Second Cause of Action (that the 6

7 DOJ Defendants had no authority to use OROS fee revenues to regulate the possession of 8 firearms prior to January 1, 2012, the date that SB 819 went into effect), the Court ordered the

9 parties to brief the issue as to whether the Court should construe the motion for judgment on the 10 pleadings as a motion to strike, and strike that claim. This further briefing was to be filed by 11 August 7, 2015. 12 In the Order, the Court noted that the parties had met and conferred as to the motions to 13 compel and were unable to reach a resolution as to whether some of the requests were now moot 14 15 in light of the ruling on the motion for judgment on the pleadings. The Court received the parties' 16 supplemental briefs on August 7, 2015, and has considered them in m-aking the instant ruling.

17 Motion for Judgment on the Pleadings 18 The Court agrees with Petitioners that in light of the dismissal of the Proposition 26 19 claims, the Second Cause of Action is no longer uncertain. Pursuant to Lilenthal & Fowler v. 20 Super. Ct., (1993) 12 Cal.App.4th 1848, a demurrer is no longer proper based on the failure to 21 22 separately state each cause of action. (Id at 1855, FN 4.) As Respondents did not otherwise 23 object to the remaining portion of the Second Cause of Action, the Court declines to strike those

24 remaining portions.

25 Ill 26 Ill - 27 Ill 28 2 RULING AFTER ADDITIONAL BRIEFS CASE NO. 34-2013-80001667-CU-WM-GDS 548 1 Motion to Compel.Further Res_ponses·to Reguests for Admissions. Set One

2 Petitioner's motion to compel further responses to requests for admissions concerns 3 .requests 83, 84, 85, 86, 88, and 89. 4 Respondent argues these discovery requests are now moot in light of the Court's ruling on 5 the motion for judgment on the pleadings. The Court agrees. Consequently, the motion to compel 6

7 further responses to these requests is denied.

8 Motion to Compel Further Responses to Form Interrogatory 17 .1 regarding Reguest for

9 Admissions.

10 Petiti~ner's motion to compel further responses to Form Interrogatory 17.1 concerns 11 Petitioner's requests for admissions 18, 19, 21, 22, 38, 58, 68, 78, 83, 84, 85, 86, 88, 89, 92, 93, 12 94, 95, 96, and 99. As the Court has already ruled that those requests concerning Petitioner's 13 contention that SB 819 is an illegal tax are moot, the Court denies the motion to compel as to the 14 15 following requests for admissions: 18,'19, 21, 22, 83, 84, 85, 86, 88, and 89. 16 With regard to the remaining requests, the Court rules as follo_ws:

17 No. 38 - Granted. 18 No. 58 - Granted. 19 No. 68 - Granted. 20 No. 78 - Denied. 21 22 No. 92 - Denied.

23 No. 93 - Denied.

24 -No. 94 - Denied.

25 No. 95 - Denied. 26 No. 96 - Denied. 27 No. 99 ...:. Denied. 28 3 RULING AFTER ADDITIONAL BRIEFS CASE NO. 34-2013-80001667-CU-WM-GDS 549 1 Conclusion

2 Respondents shall provide further responses as indicated above to Petitioners within 15 ·3 days of the date of this ruling. ,.. 4 r., DATED: August 31, 2015 · 5

6 Ju y 7 Su County of Sacramento 8

9 CERTIFICATE OF SERVICE BY MAILING (C.C.P. Sec. 1013a(4)) 10 I, the undersigned deputy clerk of the Superior Court of California, County of 11 Sacramento, do declare under penalty of perjury that I did this date place a copy of the above­ 12 entitled · ~YLING AFTER .ADDITIONAL BRIEFS in envelopes addressed to each of the 13 parties, or their counsel of record as stated below, with sufficient postage affixed thereto and 14 deposited the same in the United States Post Office at 720 9th Street, Sacramento, California. 15 SCOTT M. FRANKLIN, ESQ. ANTHONY R. HAKL 16 MICHEL & ASSOCIATES, P.C. Deputy Attorney General 180 E. Ocean Boulevard, Suite 200 P.O. Box 944255 17 Long Beach, CA 90802 Sacramento, CA 94244-2550 18 19 Superior Court of California, 20 County of Sacramento

21 Dated: August 31, 2015 By:. S.LIIB i· k 22 Deputy Cferk 23 24 25 26 27 28 4 RULING AFTER ADDITIONAL BRIEFS 550 CASE NO. 34-2013-80001667-CU-WM-GDS - ~t-r-..... -".;-1 fC'". l,;'; .:._ ~ ,; ! ~ ...... "'-

WiSDEC 30 PM 2: 41 C. D. Michel- S.B.N. 144258 Scott M. Franklin - S.B.N. 240254 2 Sean A. Brady - S.B.N. 262007 MICHEL & ASSOCIATES, P.C. 3 180 E. Ocean Boulevard, Suite 200 Long Beach, CA 90802 4 Telephone: 562-216-4444 Facsimile: 562-216-4445 5 Email: [email protected]

6 Attorneys for Plaintiffs

7

8 SUPERIOR COURT OF THE STATE OF CALIFORNIA

9 FOR THE COUNTY OF SACRAMENTO

10 II DAVID GENTRY, JAMES PARKER, . ) CASE NO. 34-2013-80001667 MARK MIDLAM, JAMES BASS, and ) 12 CALGUNS SHOOTING SPORTS ) ASSOCIATION ) FIRST AMENDED COMPLAINT FOR 13 ) DECLARATORY AND INJUNCTIVE Plaintiffs and Petitioners, ) RELIEF AND PETITION FOR WRIT OF 14 ) MANDAMUS ) 15 vs. ) ) 16 KAMALA HARRIS, in Her Official ) Capacity as Attorney General For the State ) 17 of California; STEPHEN LINDLEY, in His ) Official Capacity as Acting Chief for the ) 18 California Department of Justice, BETTY ) YEE, in her official capacity as State ) 19 Controller, and DOES 1-10. ) ) 20 Defendants and Respondents. )

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28 551 I FIRST AMENDED COMPoFOR DEC. AND INJ. RLF & PET. WRIT MAND. 1 INTRODUCTION

2 1. The California Department of Justice (“DOJ”)1 collects information from potential

3 firearm purchasers via a Dealer Record of Sale (DROS) form. The DROS form is primarily used

4 for conducting background checks. Along with submission of the DROS form, the DOJ requires

5 potential purchasers2 to pay a fee (the “DROS Fee”). As required by statute, monies collected

6 from the DROS Fee are segregated in a DROS Special Account of the General Fund, to be used

7 only for covering the costs associated with administering the DROS program.

8 2. The Penal Code limits what DOJ can charge for the DROS Fee to an amount “no more

9 than is necessary” to recover DOJ’s costs of administering the DROS program. Despite this

10 statutory limitation, in recent years, the DROS Special Account has amassed a surplus of over $35

11 million, primarily consisting of DROS Fee revenues.

12 3. The $35 million surplus is extraordinary given that DOJ’s annual budget for the DROS

13 program has been approximately $9 million on average during the last ten years. In other words,

14 the surplus is about four times the average amount of the annual DROS program budget.

15 4. Rather than lower the DROS Fee to reduce the surplus and to avoid such large and

16 illegal surpluses in the future, the Legislature chose instead to “authorize” DOJ’s use of the DROS 17 Fee for additional purposes by passing Senate Bill 819 (“SB 819”).

18 5. SB 819, effective January 2012, categorically expanded the scope of activities funded

19 by the DROS Special Account (and specifically by DROS Fee revenues) to include general

20 regulatory and enforcement activities related to the “possession” of firearms. These activities

21 extend far beyond those reasonably related to the DROS program, the original purpose of which 22 was to make sure those individuals seeking to purchase a firearm were not prohibited from doing

23 so. Moreover, such activities had previously — and properly — been paid for out of the General

24 ‘ 25 Defendants, being sued in their official capacity as heads of the DOJ, and DOJ being under Defendants’ control, all references to “DOJ” herein should be construed as a reference to 26 Defendants.

27 2 With few exceptions, this “fee” applies to all types of transfers, even gifts and trades. But for simplicity’s sake “purchase” will be used throughout this Complaint to include all such 28 activities unless specifically stated otherwise. 552 2 FIRST AMENDED COMP. FOR DEC. ANL 1NJ. RLF & PET. WRIT MAND. 1 Fund.

2 6. The Legislature, relying on SB 819, passed Senate Bill 140 (“SB 140”) the following

3 year, which appropriated the then-existing $24 million dollar DROS Special Account surplus to

4 pay for DOJ’s enforcement of the Armed Prohibited Persons System (APPS) program. APPS

5 enforcement activities primarily include, e.g., hiring additional officers and staff to conduct

6 SWAT-style raids on residents DOJ believes are illegally in possession of firearms — again,

7 activities far removed from data collection and background checks that comprise the DROS

8 program.

9 7. The DOJ’s current use of DROS Fee revenues to fund APPS enforcement or any other

10 activities not reasonably related to the DROS program violates California law.

11 8. The California Constitution presumes that any bill enacting or increasing a “levy,

12 charge, or exaction” of any kind is a tax, and, as such, must receive approval from two-thirds of

13 all members of each house of the Legislature to be valid.

14 9. By expanding the activities for which DROS Fee revenues can be used to include

15 regulating the “possession” of firearms, and thereby increasing the activities the DROS Fee payer

16 is responsible to finance, SB 819 constitutes “a levy, charge, or exaction” that the law presumes is

17 atax.

18 10. Despite the Legislature’s attempt to paint it as such, SB 819 is not the type of

19 regulatory measure that is exempt from being considered a tax. Rather, it represents precisely the

20 type of government conduct that a 2010 amendment to the California Constitution was intended to

21 stop, i.e., the government’s effort to circumvent tax-control measures by disguising new taxes or

22 tax increases as “fees” or mere regulations.

23 11. Because SB 819 does not meet any of the exceptions for being a tax and was not

24 passed with the requisite two-thirds majority of both legislative houses, it is void and

25 unenforceable as an illegal tax.

26 12. And, because its authorization was based solely on the invalid adoption of SB 819, the

27 Legislature’s appropriation of $24 million from the DROS Special Account surplus to fund the

28 Armed Prohibited Persons System (APPS) pursuant to SB 140 was and is an ongoing illegal 553 3 FIRST AMENDED COMP. FOR DEC. AND TNJ. RLF & PET. WRIT MAND. 1 expenditure of state funds.

2 13. Plaintiffs-Petitioners (“Plaintiffs”) are individuals who have paid the DROS Fee in the

3 past and who expect to pay it for their future lawful purchases of firearms. Plaintiffs seek a

4 declaration from this Court that SB 819 is void as an illegal tax, along with an injunction

5 prohibiting DOJ Defendants from using DROS Fee revenues for regulating the “possession” of

6 firearms.

7 14. Plaintiffs further seek to enjoin any expenditure of DROS Fees purportedly authorized

8 by SB 140, and a writ of mandate ordering the return of any such fees to the DROS Special

9 Account that may have been transferred, appropriated, or otherwise allocated to DOJ pursuant to

10 SB 140.

11 15. Additionally, because the DROS Fee has been increased from $14 to $19 in 2004,

12 resulting in a surplus of at least $35 million (despite DOJ Defendants spending DROS Fee

13 revenues on unauthorized activities) from that time, Plaintiffs believe the DROS Fee is being

14 charged at an amount beyond that permitted by statute.

15 16. As such, Plaintiffs seek a writ of mandate ordering DOJ Defendants to comply with

16 their statutory duty to review the amount of the DROS Fee and establish its proper amount,

17 without taking the costs of regulating “possession” of firearms into account, since SB 819 is void.

18 JURISDICTION & VENUE

19 17. This Court has jurisdiction under California Code of Civil Procedure sections 525,

20 526, 526a, 187, and 1085 and other applicable laws.

21 18. Venue in this judicial district is proper under California Code of Civil Procedure

22 sections 303(b) and 401 because Defendants are public officers and each maintains an official

23 office within this judicial district. Additionally, Plaintiffs are residents of Sacramento County,

24 wherein their injuries forming the basis of this lawsuit occurred.

25 PARTIES

26 I. Plaintiffs-Petitioners

27 19. All individual Plaintiffs are natural persons, citizens of the United States, and current

28 residents of Sacramento County, California.

554 4 FIRST AMENDED COMP. FOR DEC. AND INJ. RLF & PET. WRIT MAND. 1 20. All individual Plaintiffs are eligible to possess firearms under state and federal law.

2 21. Plaintiff David Gentry has lawfully purchased firearms, for which he paid the DROS

3 Fee, both before and after January 1, 2012, including within the last twelve months. Plaintiff

4 Gentry expects to purchase a firearm within California in the near future, for which he would be

5 subject to the DROS Fee.

6 22. Plaintiff James Parker is a resident and taxpayer of Sacramento, California. Plaintiff

7 Parker has lawfully purchased firearms, for which he paid the DROS Fee, before January 1, 2012, 8 including within the last twelve months.

9 23. Plaintiff Mark Midlam has lawfully purchased various firearms, for which he paid the 10 DROS Fee, both before and after January 1, 2012, including within the last twelve months.

11 Plaintiff Midlam expects to purchase a firearm within California in the near future, for which he 12 would be subject to the DROS Fee.

13 24. Plaintiff James Bass has lawfully purchased firearms, for which he paid the DROS

14 Fee, both before and after January 1, 2012, including within the last twelve months. Plaintiff Bass

15 expects to purchase a firearm within California in the near future, for which he would be subject 16 to the DROS Fee.

17 25. Plaintiff Calguns Shooting Sports Association (“CGSSA”) is a non-profit entity

18 classified under section 501 (c)(4) of the Internal Revenue Code and incorporated under the laws

19 of California, with its principal place of business in Covina, California. CGSSA is committed to 20 promoting and expanding safe recreational firearm shooting in California through education

21 within the California shooting-sports Community. CGSSA is also dedicated to the protection of 22 the rights of those involved in the shooting-sports. CGSSA represents the interests of its

23 supporters all over California, including those within Sacramento County. Those supporters

24 consist of firearm owners, collectors, hunters, enthusiasts, competitive and recreational shooters

25 and others interested in safe and legal shooting-sports and firear-related activities. The interests

26 CGSSA seeks to protect on tehalf of those supporters include being free from unlawful taxes

27 imposed on law-abiding firearm purchasers. CGSSA brings this action on behalf of itself and its

28 supporters in California who have been, are being, and will in the future be required to pay 555 5 FIRST AMENDED COMP. FOR DEC. AND INJ. RLF & PET. WRIT MAND. 1 excessive DROS Fees that are used unlawfully by Defendants-Respondents for purposes other

2 than the DROS program.

3 II. Defendants-Respondents

4 26. Defendant KAMALA HARRIS is the Attorney General of California. She is the chief

5 law enforcement officer of California, and is charged by Article V, Section 13 of the California

6 Constitution with the duty to inform the general public and to supervise and instruct local

7 prosecutors and law enforcement agencies regarding the meaning of the laws of the State,

8 including the fair and proper implementation of the DROS program and use of DROS Fees. She is

9 sued in her official capacity.

10 27. Defendant STEPHEN LJNDLEY is the Acting Chief of the DOJ Bureau of Firearms

11 and, as such, is responsible for executing, interpreting, and enforcing certain laws of the State of

12 California, as well as customs, practices, and policies at issue in this lawsuit. He is sued in his

13 official capacity.

14 28. Defendants HARRIS and LINDLEY (collectively “DOJ Defendants”) are responsible

15 for administering and enforcing the DROS Fee and related programs, and have in the past

16 demanded and are presently demanding, and will continue to demand payment of the DROS Fee

17 from firearms purchasers, including Plaintiffs. DOJ Defendants are also responsible for expending

18 funds from the DROS Special Account as authorized and allocated to DOJ by the Legislature.

19 29. Defendant BETTY YEE is the current California Controller. As such, Defendant YEE

20 is the Chief Fiscal Officer of California, and is responsible for accounting for and controlling the

21 disbursement of all state funds, which would include the disbursement of funds from the DROS

22 Special Account allocated to the DOJ Defendants by the Legislature.

23 30. The true names or capacities, whether individual, corporate, associate or otherwise of

24 the DEFENDANTS named herein as DOES 1-10, are presently unknown to PLAINTIFFS, who

25 therefore sue said DEFENDANTS by such fictitious names. PLAINTIFFS pray for leave to amend

26 this Complaint and Petition to show the true names, capacities, and/or liabilities of DOE

27 Defendants if and when they have been determined.

28 /// 556 6 FIRST AMENDED COMP. FOR DEC. AND INJ. RLF & PET. WRIT MAND. 1 OVERVIEW OF CALIFORNIA REGULATORY SCHEME

2 I. Regulating the Imposition of Taxes and Fees

3 31. Section 3 of Article XIII A of the California Constitution (hereafter “Section 3”) was

4 originally made law by voter approval of Proposition 13 in 1978. It placed limits on the

5 government in enacting new taxes, and defined what would constitute a “tax” for its purposes.

6 32. In 2010, California voters approved Proposition 26, which, relevant to Plaintiffs’

7 claims, amended Section 3 to clarify what constitutes a “tax” under California law.

8 33. Proposition 26 amended Section 3, in pertinent part, as follows:

9 a. “Any change in state statute which results in any taxpayer paying a

10 higher tax must be imposed by an act passed by not less than two-thirds of all members elected to 11 each of the two houses of the Legislature.” Cal. Const., art. XIII A § 3(a). 12 b. “As used in [Section 3 of article XIII A of the California

13 Constitution], ‘tax’ means any levy, charge, or exaction of any kind imposed by the State.” Cal. 14 Const., art. XIII A § 3(b). 15 c. “The State bears the burden of proving by a preponderance of the

16 evidence that a levy, charge, or other exaction is not a tax, that the amount is no more than

17 necessary to cover the reasonable costs of the governmental activity, and that the manner in which

18 those costs are allocated to a payor bear a fair or reasonable relationship to the payor’ s burdens on, 19 or benefits received from, the governmental activity.” Cal. Const. art. XIII A, § 3(d). 20 34. Proposition 26’s express and primary purpose was to end the previously common

21 legislative and regulatory practice of circumventing Proposition 13’s tax-increase restrictions —

22 and thwarting the will of the people — by levying a tax under the guise of a regulatory “fee.” 23 II. Regulating Firearm Transfers

24 A. Licensed Dealer Requirement

25 35. When individuals wish to obtain a firearm in California, state law generally requires

26 them to process the transaction through a federally-licensed, California firearm dealer (an “FFL”). 27 Cal. Penal Code § 26500, 26520. 28 36. California requires that various fees be paid by the intended purchaser at the time of 557 7 FIRST AMENDED COMP. FOR DEC. AND INJ. RLF & PET. WRIT MAND. 1 initiating the transfer of a firearm, which fees are collected by the FFL processing the transfer. 2 Cal. Penal Code § 28055. 3 B. The Dealer’s Record of Sale (DROS) “Fee”

4 37. California Penal Code sections 28225(a)-(c) [12076(e)],3 28230 [12076(f)], 28235

5 [12076(g)], and 28240(a)-(b) [12076(I)], and California Code of Regulations section

6 400 lestablish the fees paid by a firearm transferee when processing a DROS (i.e., the DROS

7 Fee),4 and how those fees may be used.

8 38. Subdivision (a) of Penal Code section 28225 [12076(e)] provides:

9 The [DOJI may require the [FFL] to charge each firearm purchaser a fee not to exceed fourteen dollars ($14), except that the fee may be increased at a rate not to 10 exceed any increase in the California Consumer Price Index as compiled and reported by the Department of Industrial Relations. 11 39. The use of the words “may” and “not to exceed” in subdivision (a) of Penal Code 12 section 28225 [12076(e)] make clear that DOJ Defendants are not required to charge the 13 maximum fee amount allowed for by that statute, or to even charge any fee at all. 14 40. Subdivision (b) of Penal Code section 28225 [12076(e)] further provides that “[t]he 15 [DROS] fee shall be no more than is necessary to fund” the activities enumerated at Penal Code 16 section 28225(b)(1 )-( 11) [1 2076(e)( 1 )-( 10)]. 17 41. Penal Code section 28225(b)(1 1) [12076(e)(10)] authorizes the DOJ to use revenues 18 from the DROS Fee to fund “the estimated reasonable costs of [DOJ] firearms-related regulatory 19 and enforcement activities related to the sale, purchase; possession, loan, or transfer of firearms.” 20 42. Before January 1,2012, section 28225(b)(11) [12076(e)(10)] did not provide for 21 expenditure of DROS Fee revenues on firearms-related regulatory and enforcement activities 22

23 Pursuant to the Legislature’s enactment of Assembly Concurrent Resolution 73 24 (McCarthy) 2006, which authorized a Non-Substantive Reorganization of California’s Deadly Statutes, various California Penal Code sections were renumbered as of January 1, 25 Weapons 2012. For convenience and ease of reference, the corresponding previous code section for each 26 referenced “renumbered” Penal Code section is provided in brackets.

27 ‘ The “fees” DOJ charges pursuant to California Code of Regulations, Title 11, Section 4001, and Penal Code sections 12076(e) [28225(a)-(c)], 12076(f)(1)(B) [28230(a)(2)], discussed 28 herein, shall be referred to as the “DROS Fee” throughut. 558 8 FIRST AMENDED COMP. FOR DEC. AND INJ. RLF & PET. WRIT MAND. 1 related to the mere “possession” of firearms. But the Legislature amended that section during the

2 2011 Legislative session via SB 819 to “authorize” using DROS Fee revenues for this new and

3 expansive category of activities, as explained in detail below.

4 43. Penal Code section 28230(a)(2) [12076(f)(1)(B)] provides for DOJ to also use DROS

5 Fee revenues for “the actual processing costs associated with the submission of a [DROS] to the

6 [DOJ].”

7 44. Section 28235 [12076(g)] provides:

8 All money received by the department pursuant to this article shall be deposited in the Dealers’ Record of Sale Special Account of the General 9 Fund, which is hereby created, to be available, upon appropriation by the Legislature, for expenditure by the department to offset the costs incurred 10 pursuant to any of the following:

11 (a) This article;

12 (b) Section 18910 [12305(f)-(g)];

13 (c) Section 27555 [12072(f)(1)];

14 (d) Subdivisions (d) and (e) of Section 27560 [12072(0(2)];

15 (e) Article 6 (commencing with Section 28450) [12083 (entirety)]; 16 (0 Section 31110 [12289.5]; 17 (g) Section 31115 [12289];

18 (h) Subdivision (a) of Section 32020 1213 1(c)];

19 (i) Section 32670 [12234];

20 (j) Section 33320 [12099].

21 45. The reference to “this article” in section 28235 [12076(g)] means Article 3 of Chapter

22 6 of Title 4 of Part 6 of the California Penal Code (beginning at section 28200 and ending with

23 section 28250 [12076(entirety)]), which solely include sections concerning imposition of the

24 DROS Fee.

25 46. The activities covered in the Penal Code sections referenced by section 28235

26 [12076(g)] also include: 27 (1) inspections of “Destructive Device” Permit-Holders (Cal. Penal Code § 18910 28 {12305(f)-(g)]); 559 9 FIRST AMENDED COMP. FOR DEC. AND TNJ. RLF & PET. WRIT MAND. ______

1 (2) the California FFL Check Program (Cal. Penal Code § 27555 [12072(f)(1)]); 2 (3) a public education program pertaining to importers of personal handguns (Cal. Penal 3 Code § [27560(d)-(e)]) [12072(f)(2)(D)]; 4 (4) the Centralized List of Exempted FFLs (Cal. Penal Code § 28450, etseq. [12083]); 5 (5) inspections of “Assault Weapon” Permit-Holders (Cal. Penal Code § 31110 6 [12289.5]);

7 (6) public education program regarding registration of “assault weapons” (Cal. Penal Code 8 § 31115 [12289]); 9 (7) retesting of handguns certified as “not unsafe” (Cal. Penal Code § 32020(a) 10 [12131(c)]); 11 (8) inspections of Machine Gun Permit-Holders (Cal. Penal Code § 32670 [12234]); and 12 (9) inspections of Short-Barreled Long Gun Permit-Holders (Cal. Penal Code § 33320 13 [12099]).

14 47. The DOJ currently charges the DROS Fee at $19 for a single transaction involving one

15 or more rifles or shotguns and not more than one handgun. The DROS Fee for each additional

16 handgun being purchased at the same time is $15. 11 Cal. Code of Reg. section 4001.

17 48. DOJ requires the DROS Fee be paid by purchasers for all firearm sales from an FFL,

18 as well as private party transfers of firearms that must be processed through an FFL (which 19 includes most transfers).5 Cal. Penal Code § 28225. 20 49. The Penal Code mandates that revenue from the DROS Fee is to be deposited into the 21 DROS Special Account of the General Fund (“DROS Special Account”). Cal. Penal Code § 22 28235 [12076(g)].6

23

24 But See Cal. Pen. Code § 27875, 27920, 27925, and 27966 (exempting from the FFL processing requirement transfers between immediate family members, transfers by operation of 25 law, and transfers of “curios and relics”). 26 6 DOJ Defendants deposit (and commingle) funds collected from some additional fees — 27 for special firearm licensing and miscellaneous services (see e.g,, Cal. Penal Code § 3 0900- 30905 [12285(a),(b)]), concealed weapon permit applications and Cal. Pen. Code § 26190(a)-(b) 28 [12054]), “Assault Weapon” Permits — into the DROS Special Account. Plaintiffs estimate that 560 10 FIRST AMENDED COMP. FOR DEC. AND. INJ. RLF & PET. WRIT MAND. ______

1 C. The DROS Fee Has Continually Been Utilized for Expanding Purposes, Despite DOJ’s Failure to Review Its Proper Amount for Recovering DOJ’s 2 Legitimate Costs

3 50. Plaintiffs are informed and believe that the State (DOJ) began charging a DROS Fee

4 in 1990. It was $4.25 at that time. See Senate Bill 670, 1995-1996 Leg. Sess. (Cal. 1995) (as

5 introduced Feb. 22, 1995).

6 51. By 1995, the DROS Fee had ballooned to $14.00, an increase of greater than 300

7 percent in less than five years. Id.

8 52. In 1995, the California Legislature passed Senate Bills 670 and 671 to cap the rate for

9 a DROS fee at $14.00, with increases “at a rate not to exceed any increase in the California

10 Consumer Price Index.” That amendment is reflected in Penal Code section 28225(a) [12076(e)]

11 described above.

12 53. In the following years, a trend emerged of passing bills that would allow monies in the

13 DROS Special Account to finance an ever-expanding list of programs and services found at

14 section 28235 [12076(g)].

15 1. AB 161: Deleting specific prohibitions against using “DROS Fee” 16 funds for other purposes

17 54. In 2003, AB 161 was proposed to expand the scope of section 28225(a)-(c) [12076(e)]

18 by providing a “catch-all” to ensure that those programs (i.e., those sections listed in section

19 28235 [12076(g)]) could be supported by revenues collected from the “DROS Fee” that were

20 deposited in the DROS Special Account.

21 55. As AB 161 made its way through the legislative process, the bill’s sponsor argued that

22 it did not expand the use of revenues from the DROS Fee, but merely clarfled their use.7

23

24 70-80% of the account consists of monies from the DROS Fee; Plaintiffs’ efforts to ascertain a definite figure are hampered by the DOJ’s lack of accounting. 25 more

‘‘ 26 See Sen. Comm. on Public Safety, Bill Analysis: Dealers Record of Sale Special

Account - Expanding Authorized Use - Appropriation to Fund Firearms Trafficking Prevention 27 Act of 2002, at 10 (July 8, 2003) available at http ://www.leginfo.ca. gov/pub/03-04/bill/asm!ab_0 151 -0200/ab_ 161 _cfa_2003 0708_I 41850 se 28 n cornm.html. 561 11 FIRST AMENDED COMP. FOR DEC. AND 1NJ. RLF & PET. WRIT MAND. 1 56. Nevertheless, in its final form as signed into law, AB 161 removed the prohibition on

2 using DROS Fee revenues to “directly fund or as a loan to fund any program not specified” and,

3 added section 28225(b)(1 1) [l2076(e)(10)], allowing the DOJ to use funds collected from firearm

4 transactions for any “regulatory and enforcement activit[y] related to the sale, purchase, loan, or

5 transfer of firearms.”

6 57. Due to AB 161’s expansion of activities to be funded by the DROS Special Account,

7 on January 26, 2004, then Senator Morrow submitted a written request to the Joint Legislative

8 Audit Committee (“JLAC”), seeking a formal audit of the DROS Special Account, noting that the

9 DOJ’ s previous reports lacked sufficient detail. That request was heard a month later, but was not

10 granted.8

11 2. 11 CCR 4001: Raising the DROS Fee Amount

12 58. Later that same year, less than one year after AB 161 expanded the list of activities

13 that DROS Fee payers are forced to fund, and after the Legislature rejected Senator Morrow’s call

14 for a formal audit, the DOJ, without justification or explanation, adopted California Code of

15 Regulations, title 11, section 4001, which increased the cap on the DROS Fee from $14 to $19 for

16 the first handgun in a single transaction, and for one or more rifles or shotguns in a single

17 transaction. And, DOJ capped the DROS Fee for each additional handgun being purchased at the

18 same time as the first handgun at $15.

19 59. No support was provided by DOJ tying the $5 increase of the maximum fee amount

20 (from $14 to $19) to the California Consumer Price Index, to which DROS Fee increases are

21 statutorily limited. Nor was any support provided by DOJ justifying the $15 fee as necessary to

22 cover its costs relating to the sale of an additional handgun.

23 3. DOJ’s failed attempt to lower admittedly excessive DROS Fee

24 60. California Code of Regulations, title 11, section 4001 remained in effect without any

25 attempts by DOJ to amend it to raise or lower the DROS Fee, until 2010 when the DOJ issued a

26 notice of proposed rulemaking, stating its intent to lower the maximum fee allowed from $19 to

27 8 PLAINTIFFS have so far been unable to ascertain the vote or outcome of that February 28 24, 2004 hearing, despite diligent efforts. 562 12 FIRST AMENDED COMP. FOR DEC. AND INJ. RLF & PET. WRIT MAND. 1 the pre-2004 emergency regulation amount of $14.

2 61. The 2010 initial statement of reasons concerning the proposed rulemaking intended to

3 lower the DROS Fee indicated that “although the volume of DROS transactions has increased, the

4 average time spent on each DROS, and thus the processing cost, has decreased.”9 It also noted that

5 “[t]he proposed regulations [would] lower the current $19 DROS Fee to $14, commensurate with

6 the actual cost ofprocessing a DROS.” (emphasis added).1°

7 62. Ultimately, the 2010 proposed rulemaking was not adopted, thereby allowing DOJ to

8 continue collecting the admittedly excessive DROS Fee revenues and use them to fund other

9 government activities.

10 63. With the possible exception of DOJ’s assessment in 2010, which was never acted

11 upon despite its finding that the amount of the DROS Fee is too high, it appears DOJ has never

12 conducted a review of the DROS Fee to ensure “that the amount is no more than necessary to 13 cover the reasonable costs” of the DROS program, as required by law. Cal. Penal Code § 14 28225(a) [12076(e)], 28225(b) [12076(e)]; See also Cal. Const. art. XIII A, § 3(d). 15 D. SB 819: Further expanding potential uses for DROS Fee funds and the 16 surplus accumulated in the DROS Special Account

17 64. Rather than lower the DROS Fee, based on DOJ’s 2010 findings, and use the DROS

18 Special Account’s surplus for purposes relating to the DROS system, in 2011, the California

19 Legislature passed and Governor Brown signed into law Senate Bill 819 (Leno), effective as of

20 January 1, 2012. SB 819 once again expanded the uses to which DROS Fee revenues may be put,

21 as described in the findings for amending section 28225, quoted below.

22 65. In addition to the Legislature’s express findings to the same effect, DOJ Defendants

23 have admitted SB 8 19’s purpose and effect is to use funds from the DROS Fee on activities

24 unrelated to the DROS program: “To clear the [Armed and Prohibited Persons System] backlog of

25

26 Cal. Dept. of Justice, Initial Statement of Reasons concerning Proposed DROS Fee 27 Regulations (2010), available at http ://ag.ca. gov/firearms/regs/DROSisor.pdf.

28 10 Id. 563 13 FIRST AMENDED COMP. FOR DEC. AND INJ. RLF & PET. WRIT MAND. 1 approximately 34,000 handguns, Attorney General Harris is the sponsor of Senate Bill 819, which

2 would revise the Penal Code to expand the use of existing regulatory fees collected by gun dealers

3 to allow the state [DOJ] to use fee revenue to pay for the APPS program.” Press Release, Office of

4 the Attorney General, Attorney General Kamala D. Harris Announces Seizure of 1,200 Guns from

5 Mentally Unstable and Other Individuals (June 16, 2011) (emphasis added).

6 66. As noted above, prior to January 1, 2012, section 28225(b)(1 1) {12076(e)(10)] did not

7 provide for expenditure of DROS Fee revenues on regulations or enforcement activities related to

8 “possession” of firearms. Such general law enforcement activities were always funded from the

9 General Fund. But the Legislature amended that section during the 2011 Legislative session via

10 SB 819 to allow for such, based on its following purported findings:

11 SECTION 1. The Legislature finds and declares all of the following:

12 (a) California is the first and only state in the nation to establish an automated system for tracking handgun and assault weapon owners 13 who might fall into a prohibited status.

14 (b) The California Department of Justice (DOJ) is required to maintain an online database, which is currently known as the Armed 15 Prohibited Persons System, otherwise known as APPS, which cross-references all handgun and assault weapon owners across the 16 state against criminal history records to determine persons who have been, or will become, prohibited from possessing a firearm 17 subsequent to the legal acquisition or registration of a firearm or

assault weapon. - 18 (c) The DOJ is further required to provide authorized law 19 enforcement agencies with inquiry capabilities and investigative assistance to determine the prohibition status of a person of interest. 20 (d) Each day, the list of armed prohibited persons in California 21 grows by about 15 to 20 people. There are currently more than 18,000 armed prohibited persons in California. Collectively, these 22 individuals are believed to be in possession of over 34,000 handguns and 1,590 assault weapons. The illegal possession of these 23 firearms presents a substantial danger to public safety.

24 (e) Neither the DOJ nor local law enforcement has sufficient resources to confiscate the enormous backlog of weapons, nor can 25 they keep up with the daily influx of newly prohibited persons.

26 (f) A Dealer Record of Sale fee is imposed upon every sale or transfer of a firearm by a dealer in California. Existing law 27 authorizes the DOJ to utilize these funds for firearms-related regulatory and enforcement activities related to the sale, purchase, 28 loan, or transfer of firearms pursuant to any provision listed in 564 14 FIRST AMENDED COMP. FOR DEC. AND INJ. RLF & PET. WRIT MAND. 1 Section 16580 of the Penal Code, but not expressly for the enforcement activities related to possession. 2 (g) Rather than placing an additional burden on the taxpayers of 3 California to fund enhanced enforcement of the existing armed prohibited persons program, it is the intent ofthe Legislature in 4 enacting this measure to allow the DOJ to utilize the Dealer Record ofSale Account for the additional, limited purpose of funding 5 enforcement of the Armed Prohibited Persons System. S.B. 819, 2011 Leg., Reg. Sess. (Ca. 2011) (emphasis added). 6

7 E. SB 140: Appropriation of $24 Million from BROS Special Account for DOJ’s 8 Armed Prohibited Person System

9 67. DOJ Defendants received what they sought from SB 819 the following year, on May

10 1, 2013, when Senate Bill 140 (2013) was signed into law as an emergency measure, adding

11 Section 30015 to the Penal Code. SB 140 appropriates the current $24 million surplus from the

12 DROS Special Account to DOJ Defendants “to address, the backlog in the Armed Prohibited

13 Persons System (APPS) and the illegal possession of firearms by those prohibited persons.”

14 68. Evidenced by, among other things, their various press releases and television

15 interviews in the last few months touting their efforts and purported accomplishments, DOJ

16 Defendants have been aggressively spending the monies appropriated to them via SB 140 by

17 hiring new agents to conduct APPS-related investigations, including SWAT-style raids on

18 suspects’ homes, hoping to seize illegally possessed firearms from dangerous criminals.

19 Regardless of the efficacy or wisdom of these raids, such activities are not reasonably related to

20 the DROS program.

21 69. Nonetheless, as seen above in the legislative findings for Section 30015, the

22 Legislature chose to burden potential firearm purchasers via an excessive DROS Fee with the cost

23 of administering the APPS “[r]ather than placing an additional burden on the taxpayers of

24 California.”

25 70. Prior to January 1, 2012, when SB 819 went into effect, there was no statutory

26 authority for SB 140, because section 28225(b)(1 1) [12076(e)(10)j did not provide for

27 expenditure of DROS Fee revenues on activities related to “possession” of firearms before that

28 time. Nothing in SB 140 purports to justify the use of surplus DROS Fee funds collected before 565 15 FIRST AMENDED COMP. FOR DEC. AND INJ. RLF & PET. WRIT MAND. 1 January 1, 2012, on the “possession of firearms.”

2 71. Plaintiffs have each been required to, and have in fact paid the DROS Fee before and

3 after SB 819 went into effect on January 1, 2012.

4 72. Plaintiffs intend to purchase additional firearms in the near future, which will require

5 their paying the DROS Fee again.

6 FIRST CAUSE OF ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF INVALIDITY OF 7 APPROPRIATION OF PRE-EXISTING DROS FEE REVENUES TO ARMED PROHIBITED PERSON SYSTEM 8 California Code of Civil Procedure § 526a (By All Plaintiffs Against DOJ Defendants) 9

10 73. All of the above paragraphs are re-alleged and incorporated herein by reference.

11 74. Even if SB 819 is not an illegal tax under California’s Constitution, DOJ Defendants

12 did not have statutory authority to use DROS Fee revenues on regulating the “possession” of

13 firearms before SB 819 went into effect on January 1, 2012. Therefore, at minimum, DOJ

14 Defendants have no statutory authority to use any revenues collected from the DROS Fee before

15 2012 for activities relating to the “possession” of firearms.

16 75. Enforcing APPS programs relates solely to regulating individuals’ “possession” of

17 firearms. As such, any monies collected from the DROS Fee prior to SB 819 going into effect on

18 January 1, 2012, cannot be used to fund the enforcement of APPS programs.

19 76. Because a significant portion of the $24 million SB 140 appropriated to DOJ

20 Defendants was amassed from individuals, including Plaintiffs, paying the DROS Fee prior to SB

21 819 going into effect on January 1, 2012, DOJ Defendants are not authorized to use such portion

22 of that $24 million on APPS programs, and are thus precluded from doing so.

23 77. Plaintiffs have been and continuously are irreparably injured by DOJ Defendants

24 using the $24 million appropriated to them by SB 140 or, at minimum, that portion of the $24

25 million collected before January 1, 2012.

26 III

27

28 566 16 FIRST AMENDED COMP. FOR DEC. AND INJ. RLF & PET. WRIT MAND. 1 SECOND CAUSE OF ACTION:

WRIT OF MANDATE - STOPPING APPROPRIATION OF SB 140 FUNDS 2 California Code of Civil Procedure § 526a, 1085 (By All Plaintiffs / Petitioners Against Defendant Controller) 3

4 78. All of the above paragraphs are re-alleged and incorporated herein by reference.

5 79. Defendant Controller has, currently is, and will continue to appropriate to DOJ

6 Defendants funds pursuant to SB 140.

7 80. Because SB 140 constitutes an illegal appropriation, Defendant Controller cannot

8 lawfully appropriate to DOJ Defendants any of the $24 million authorized by SB 140.

9 81. Plaintiffs have been and continuously are irreparably injured by Defendant

10 Controller’s appropriating to DOJ Defendants funds pursuant to SB 140 because Plaintiffs have

11 no plain, speedy, and adequate remedy to prevent such an illegal appropriation.

12 82. Defendant Controller always has a clear, present, and ministerial duty to refrain from

13 unlawfully appropriating funds, and Plaintiffs always have a right to be free from the unlawful use

14 of the revenues collected from the fees they pay.

15 83. In the alternative, Defendant Controller cannot lawfully appropriate to DOJ

16 Defendants that portion of the $24 million authorized by SB 140 that represents DROS Fee

17 revenues collected before January 1, 2012, and has a ministerial duty to refrain from doing so.

18 Plaintiffs, as payers of such DROS Fee, are irreparably injured by such unlawful appropriations.

19 THIRD CAUSE OF ACTION:

20 WRIT OF MANDATE - RECOUPING OF SB 140 FUNDS California Code of Civil Procedure § 526a, 1085 21 (By All Plaintiffs I Petitioners Against Defendant Controller)

22 84. All of the above paragraphs are re-alleged and incorporated herein by reference.

23 85. Because those funds already transferred to DOJ Defendants by Defendant Controller

24 pursuant to SB 140 constituted an illegal appropriation, at least in part, Defendant Controller has a

25 clear, present, and ministerial duty to preserve and recoup any such unlawfully appropriated funds

26 from DOJ Defendants.

27 III

28 567 17 FIRST AMENDED COMP. FOR DEC. AND INJ. RLF & PET. WRIT MAND. 1 FOURTH CAUSE OF ACTION

WRIT OF MANDATE - RETURN OF SB 140 FUNDS 2 California Code of Civil Procedure § 526a, 1085 (By All Plaintiffs / Petitioners Against DOJ Defendants) 3 86. All of the above paragraphs are re-alleged and incorporated herein by reference. 4 87. DOJ Defendants always have a clear, present, and ministerial duty to refrain from 5 accepting or using funds unlawfully appropriated to them, and Plaintiffs always have a right to be 6 free from such unlawful use of the revenues collected from the fees they pay. 7 88. Because any funds already transferred to DOJ Defendants by Defendant Controller 8 pursuant to SB 140 constituted an illegal appropriation, at least in part, DOJ Defendants have a 9 clear, present, and ministerial duty to return any such funds to Defendant Controller. 10

11 FIFTH CAUSE OF ACTION:

WRIT OF MANDATE - REVIEW PROPER AMOUNT OF “DROS FEE” 12 (California Penal Code § 28225(a) [12076(e)] /28225(b) [12076(e)]) (By All Plaintiffs / Petitioners Against DOJ Defendants) 13

14 89. All of the above paragraphs are re-alleged and incorporated herein by reference.

15 90. DOJ Defendants have a clear, present, and ministerial duty pursuant to California

16 Penal Code sections 28225(a) [12076(e)] and 28225(b) [12076(e)] to determine “the amount

17 necessary to fund” the activities enumerated at Penal Code section 28225(b)(l)-(ll)

18 [12076(e)(l)-(l0)] and to only charge the DROS Fee at that amount.

19 91. On information and belief, DOJ Defendants have been charging the DROS Fee at the

20 maximum amount statutorily allowed, without first determining whether that amount is “no more

21 than is necessary to fund” the regulatory and enforcement activities for which they are statutorily

22 permitted to use DROS Fee revenues. -

23 92. The DROS Fee is currently imposed by DOJ Defendants on Plaintiffs and other

24 firearm purchasers at $19 per firearm transaction, plus $15 per each additional handgun.

25 93. Since the year 2004, the DROS Special Account, despite expenditures therefrom

26 having been made on unauthorized activities, has accumulated an approximately $35 million

27 surplus.

28 94. Most, if not all, of the approximately $35 million in surplus revenues in the DROS 568 18 FIRST AMENDED COMP. FOR DEC. AND INJ. RLF & PET. WRIT MAND. 1 Special Account was generated by payers, including Plaintiffs, of the DROS Fee.

2 95. Despite amassing a multi-million-dollar surplus, DOJ Defendants have failed to

3 properly review the amount of the DROS Fee to ensure that the amount is “no more than is

4 necessary to fund” the activities enumerated at Penal Code section 28225(b)(1)-(11)

5 [12076(e)(l)-(10)].

6 96. DOJ Defendants are not complying with their duty to tailor the amount of the DROS

7 Fee to DOJ’s actual costs in administering the DROS program.

8 97. On information and belief, the current amount of the DROS Fee exceeds DOJ

9 Defendants’ actual costs for lawfully administering the DROS program.

10 98. PLAINTIFFS have been and continuously are irreparably injured by DOJ Defendants’

11 imposing the DROS Fee at an amount that accrues a multi-million-dollar surplus without tying

12 such amount to DOJ’s actual costs for administering the DROS program.

13 99. Further, even if this Court holds that the use of DROS Fee funds for APPS-based law

14 enforcement activities is legal, and that the DROS Fee was being charged at a proper amount prior

15 to the passage of SB 819, the expansion of the scope of “necessary” costs funded by the DROS

16 Fee resulting from that new use constitutes a major change in circumstance that requires DOJ

17 Defendants to reassess the amount being charged for the DROS Fee based on the DOJ

18 Defendants’ clear, present, and ministerial duty pursuant to California Penal Code sections

19 28225(a) [12076(e)] and 28225(b) [12076(e)] to determine “the amount necessary to fund” the

20 activities enumerated at Penal Code section 28225(b)(1)-(1 1) [12076(e)(1)-(10)] and to only 21 charge the DROS Fee at that amount.

22 100. In light of DOJ Defendants’ duties to (1) perform a review to determine “the amount

23 necessary to fund” the activities enumerated at Penal Code section 28225(b)(1)-(1 1)

24 [12076(e)(1)-(10)] and to (2) charge the DROS Fee at that amount or less, DOJ Defendants’

25 review of the relevant costs necessarily must include a determination of whether the use of DROS

26 Fee funds for APPS-based law enforcement activities constitutes a tax. What is “necessary” to

27 fund the activities referred to in the pre-SB 819 version of Penal Code section 28225 is different

28 from what is “necessary” to fund “possession”-related law enforcement activities that are yet to be 569 19 FIRST AMENDED COMP. FOR DEC. AND INJ. RLF & PET. WRIT MAND. 1 specified, inasmuch as a higher level of scrutiny applies to levies purportedly incurred to fund

2 regulatory activities (as opposed to costs paid for via funds collected for a tax).

3 SIXTH CAUSE OF ACTION: FOR DECLARATORY AND INJUNCTIVE RELIEF 4 VALIDITY OF SENATE BILL 819/THE DROS FEE Violation of California Const., Art. XIII, Sec. 1(b) 5 (By All Plaintiffs Against DOJ Defendants)

6 101. All of the above paragraphs are re-alleged and incorporated herein by reference.

7 102. By expanding the activities for which DROS Fee revenues can be used to include

8 regulating the “possession” of firearms, thereby increasing the activities the DROS Fee payer is

9 responsible to finance and shifting the responsibility for millions of dollars in law enforcement

10 costs from the General Fund and taxpayers, generally, to the DROS Special Account and DROS

11 Fee payers, in particular, SB 819 creates a tax on DROS fee payers.

12 103. SB 819 created a tax notwithstanding the fact that the tax is collected as part of a so-

13 called regulatory fee.

14 104. Because the SB 819-created tax is imposed on DROS Fee payers who pay the tax so

15 they can obtain personal property (i.e., a firearm), the SB 819-created tax is a property tax under

16 California law.

17 105. Property taxes must be assessed in proportion to the value of the property being

18 taxed per California Constitution, article XIII, section 1(b).

19 106. On information and belief, DOJ has never attempted to determine whether the SB

20 819-created tax is, or could be, assessed in proportion to the value of the property being taxed.

21 107. On information and belief, the SB 819-created tax is not being proportionally

22 assessed as required by California Constitution, article XIII, section 1(b).

23 108. SB 819 is void and unenforceable because it creates a property tax that does not meet

24 the constitutional proportionality requirement that applies to property taxes.

25 109. An actual controversy exists between the parties hereto in that Plaintiffs believe that

26 DOJ’s use of DROS Fee funds for costs not resulting from the DROS process, purportedly

27 pursuant to SB 819, constitutes an invalid tax, and DOJ Defendants contend otherwise, thus DOJ

28 continues to utilize DROS Fee revenues to fund APPS- based law enforcement activities pursuant 570 20 FIRST AMENDED COMP. FOR DEC. AND INJ. RLF & PET. WRIT MAND. 1 toSB8l9.

2 110. Plaintiffs desire a judicial determination of the rights and duties of the parties,

3 including a declaration that SB 819 created an illegal tax under section 1(b) of article XIII of the

4 California Constitution.

5 111. Plaintiffs have been and continuously are irreparably injured by DOJ’s use of DROS

6 Fee revenues for APPS-related law enforcement activities pursuant to SB 819, as Plaintiffs are

7 being subjected to an illegal tax as a result thereof.

8 112. Plaintiffs further desire an injunction prohibiting DOJ Defendants from utilizing

9 DROS Fee revenues for law enforcement activities related to the “possession” of firearms

10 pursuant to SB 819.

11 SEVENTH CAUSE OF ACTION: FOR DECLARATORY AND INJUNCTIVE RELIEF 12 VALIDITY OF SENATE BILL 819/THE DROS FEE Violation of California Const., Art. XIII, Sec. 2 13 (By All Plaintiffs Against DOJ Defendants)

14 113. All of the above paragraphs are re-alleged and incorporated herein by reference.

15 114. By expanding the activities for which DROS Fee revenues can be used to include

16 regulating the “possession” of firearms, thereby increasing the activities the DROS Fee payer is

17 responsible to finance and shifting the responsibility for millions of dollars in law enforcement

18 costs from the General Fund and taxpayers, generally, to the DROS Special Account and DROS

19 Fee payers, in particular, SB 819 creates a tax on DROS fee payers.

20 115. SB 819 created a tax notwithstanding the fact that the tax is collected as part of a so-

21 called regulatory fee.

22 116. Because the SB 819-created tax is imposed on DROS Fee payers who pay the tax so

23 they can obtain personal property (i.e., a firearm), the SB 819-created tax is a property tax under

24 California law.

25 117. A two-thirds vote of the legislature is required to subject a specific type of personal

26 property to differential taxation pursuant to California Constitution, article XIII, section 2.

27 118. The implementation of SB 819 resulted in the differential taxation of personal

28 property (i.e., firearms).

571 21 FIRST AMENDED COMP. FOR DEC. AND TNJ. RLF & PET. WRIT MAND. 1 119. SB 819 was not enacted by a two-thirds vdte.

2 120. SB 819 is void and unenforceable because it created a differential tax that does not

3 meet the constitutional two-thirds vote requirement that applies to the creation of a differential

4 property tax.

5 121. An actual controversy exists between the parties hereto in that Plaintiffs believe that

6 DOJ’s use of DROS Fee funds for costs not resulting from the DROS process, purportedly

7 pursuant to SB 819, constitutes an invalid tax, and DOJ Defendants contend otherwise, thus DOJ

8 continues to utilize DROS Fee revenues to fund APPS- based law enforcement activities pursuant

9 toSB8l9.

10 122. Plaintiffs desire ajudicial determination of the rights and duties of the parties,

11 including a declaration as to whether SB 819 created an illegal tax under section 2 of article XIII

12 of the California Constitution.

13 123. Plaintiffs have been and continuously are irreparably injured by DOJ’s use of DROS

14 Fee revenues for APPS-related law enforcement activities pursuant to SB 819, as Plaintiffs are

15 being subjected to an illegal tax as a result thereof.

16 124. Plaintiffs further desire an injunction prohibiting DOJ Defendants from utilizing

17 DROS Fee revenues for law enforcement activities related to the “possession” of firearms

18 pursuant to SB 819.

19 EIGHTH CAUSE OF ACTION: FOR DECLARATORY AND INJUNCTIVE RELIEF 20 VALIDITY OF SENATE BILL 819/THE DROS FEE Violation of California Const., Art. XIII, Sec. 3 21 (By All Plaintiffs Against DOJ Defendants)

22 125. All of the above paragraphs are re-alleged and incorporated herein by reference.

23 126. By expanding the activities for which DROS Fee revenues can be used to include

24 regulating the “possession” of firearms, thereby increasing the activities the DROS Fee payer is

25 responsible to finance and shifting the responsibility for millions of dollars in law enforcement

26 costs from the General Fund and taxpayers, generally, to the DROS Special Account and DROS

27 Fee payers, in particular, SB 819 creates a tax on DROS fee payers.

28 127. SB 819 created a tax notwithstanding the fact that the tax is collected as part of a so 572 22 FIRST AMENDED COMP. FOR DEC. AND INJ. RLF & PET. WRIT MAND. 1 called regulatory fee.

2 128. Because the SB 819-created tax is imposed on DROS Fee payers who pay the tax so

3 they can obtain personal property (i.e., a firearm), the SB 819-created tax is a property tax under

4 California law.

5 129. “Household furnishings and personal effects not held or used in connection with a

6 trade, profession, or business” are exempt from property taxation under California Constitution,

7 article XIII, section 3(m).

8 130. Firearms “not held or used in connection with a trade, profession, or business” are

9 within the category of “household furnishings and personal effects” and thus firearms purchased

10 for non-commercial use are exempt from property taxation under California Constitution, article

11 XIII, section 3(m).

12 131. SB 819 resulted in a tax on firearms, and because firearms are not to be taxed

13 pursuant to the California Constitution, article XIII, section 3(m), SB 819 is void and

14 unenforceable.

15 132. An actual controversy exists between the parties hereto in that Plaintiffs believe that

16 DOJ’s use of DROS Fee funds for costs not resulting from the DROS process, purportedly

17 pursuant to SB 819, constitutes an invalid tax, and DOJ Defendants contend otherwise, thus DOJ

18 continues to utilize DROS Fee revenues to fund APP5- based law enforcement activities pursuant

19 toSB8l9.

20 133. Plaintiffs desire ajudicial determination of the rights and duties of the parties,

21 including a declaration that SB 819 created an illegal tax under Section 3(m) of Article XIII of the

22 California Constitution.

23 134. Plaintiffs have been and continuously are irreparably injured by DOJ’s use of DROS

24 Fee revenues for APPS-related law enforcement activities pursuant to SB 819.

25 135. Plaintiffs further desire an injunction prohibiting DOJ Defendants from utilizing

26 DROS Fee revenues for law enforcement activities related to the “possession” of firearms

27 pursuant to SB 819.

28 III 573 23 FIRST AMENDED COMP. FOR DEC. AND [NJ. RLF & PET. WRIT MAND. 1 NINTH CAUSE OF ACTION: FOR DECLARATORY AND INJUNCTIVE RELIEF 2 Scope of Senate Bill 819’s “Possession” Provision as Applied to Funds Collected under the Guise of the DROS Fee 3 (By All Plaintiffs Against DOJ Defendants)

4 136. All of the above paragraphs are re-alleged and incorporated herein by reference, and

5 this cause of action is pleaded in the alternative to the other causes of action pleaded herein.

6 137. On information and belief, DOJ Defendants contend that, as a result of SB 819,

7 Penal Code section 28225(c) was amended such that the DOJ can now use the DROS Fee to

8 recoup costs of “firearms-related. . . enforcement. . . activities related to the. . . possession. . . of 9 firearms” including, but not limited to, APPS-based law enforcement activities. Penal Code § 10 28225(c).

11 138. On information and belief, an actual controversy exists between the parties hereto in

12 that Plaintiffs believe that SB 819, if it is valid at all, only authorized “the DOJ to utilize the

13 Dealer Record of Sale Account for the additional, limited purpose of funding enforcement of the

14 Armed Prohibited Persons System[,]” whereas DOJ Defendants contend SB 819 authorizes DOJ

15 to spend DROS Special Account money on any “firearms-related. . . regulatory and enforcement.

16 . . activities related to the.. . possession. .. of firearrns[.j” Penal Code § 28225(c). 17 139. On information and belief, an actual controversy exists between the parties hereto in

18 that Plaintiffs believe that SB 819 did not authorize DOJ to use DROS Special Account Funds to

19 address the costs of APPS itself (as opposed to the costs of enforcement activities based on data

20 created via APPS),but DOJ switched the funding source for APPS itself from the General Fund to

21 the DROS Special Account in approximately 2011, based on the passage of SB 819.

22 140. DOJ continues to utilize DROS Fee revenues to fund APPS pursuant to an incorrect

23 interpretation of SB 819, and declaratory relief on the scope of SB 819 is appropriate not only to

24 end improper appropriations currently occurring, but to prevent a multiplicity of litigation

25 concerning other costs alleged to be improperly appropriated based on an incorrect interpretation

26 of the scope of SB 819.

27 141. Plaintiffs desire a judicial determination of the rights and duties of the parties,

28 including a declaration that SB 819 does not authorize the appropriation of DROS Special 574 24 FIRST AMENDED COMP. FOR DEC. AND NJ. RLF & PET. WRIT MAND. 1 Account funds for some use other than APPS-based law enforcement activities.

2 142. Plaintiffs have been and continuously are irreparably injured by DROS Fee revenues

3 being utilized for activities other than APPS-related law enforcement activities pursuant to SB

4 819, as Plaintiffs are being subjected to an illegal tax as a result thereof

5 143. Plaintiffs further desire an injunction prohibiting DOJ Defendants from utilizing

6 DROS Fee revenues for purposes unrelated to the DROS background check process or APPS

7 based law enforcement activities.

8 PRAYER

9 WHEREFORE PLAINTIFFS pray for relief as follows:

10 1) For a declaration that there is no legal authorization for DOJ Defendants to use funds

11 collected from the “DROS Fee” before Senate Bill 8l9went into effect on January 1, 2012, for

12 regulating the “possession” of firearms pursuant to section 28225(b)(1 1) [12076(e)(10)];

13 2) Alternatively, for a preliminary and permanent prohibitory injunction forbidding DOJ

14 Defendants and their agents, employees, officers, and representatives, from receiving or using any

15 monies collected from the “DROS Fee” before Senate Bill 819 went into effect on January 1,

16 2012, that were appropriated to them via SB 140 for purposes of regulating the “possession” of

17 firearms pursuant to section 28225(b)(l 1) [12076(e)(10)j;

18 3) For a preliminary and permanent prohibitory injunction forbidding Defendant

19 Controller and his agents, employees, officers, and representatives, from appropriating any funds

20 from the DROS Special Account to DOJ Defendants pursuant to SB 819 or SB 140, limited to

21 funds that were collected prior to Senate Bill 819 going into effect on January 1, 2012;

22 4) Alternatively, to the extent the Court believes a writ of mandate is appropriate rather

23 than an injunction, for a peremptory writ of mandate ordering Defendant State Controller and his

24 agents, employees, officers, and representatives, to refrain from appropriating any funds from the

25 DROS Special Account to DOJ Defendants pursuant to SB 819 or SB 140, limited to funds that

26 were collected prior to Senate Bill 819 going into effect on January 1, 2012;

27 5) For a peremptory writ of mandate ordering Defendant State Controller and his agents,

28 employees, officers, and representatives, to recoup any Tunds that Defendant State Controller has 575 25 FIRST AMENDED COMP. FOR DEC. AND INJ. RLF & PET. WRIT MAND. 1 already appropriated to DOJ Defendants pursuant to SB 140, as to funds that were collected prior

2 to Senate Bill 819 going into effect on January 1, 2012;

3 6) For a peremptory writ of mandate ordering DOJ Defendants and their agents,

4 employees, officers, and representatives, to return any and all funds they may have received

5 pursuant to Senate Bill 140, as to funds that were collected prior to Senate Bill 819 going into

6 effect on January 1, 2012.

7 7) For a peremptory writ of mandate ordering DOJ Defendants and their agents,

8 employees, officers, and representatives, to review the DROS Fee as currently imposed to

9 determine whether the amount is “no more than is necessary” to cover its costs for the DROS

10 program;

11 8) For a preliminary and permanent prohibitory injunction forbidding DOJ Defendants and

12 their agents, employees, officers, and representatives, from imposing the “DROS Fee” as currently

13 imposed, at least until the required review is conducted by DOJ and the appropriate amount for

14 the DROS Fee is established;

15 9) For an award of reasonable attorneys’ fees, costs, and expenses pursuant to California 16 Code of Civil Procedure § 1021.5 and/or other applicable law; 17 10) For such other and further relief as the Court may be just and proper;

18 11) For a declaration that Senate Bill 819 creates an unlawful tax under article XIII,

19 section 1(b) of the California Constitution and is thus void;

20 12) For a declaration that Senate Bill 819 creates an unlawful tax under article XIII,

21 section 2 of the California Constitution and is thus void;

22 13) For a declaration that Senate Bill 819 creates an unlawful tax under article XIII,

23 section 3(m) of the California Constitution and is thus void; and

24 /1/

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28 576 26 FIRST AMENDED COMP. FOR DEC. AND TNJ. RLF & PET. WRIT MAND. 1 14) Alternatively, for a declaration confirming Senate Bill 819 authorizes DOJ to use

2 DROS Special Account funds for nothing other than costs specifically incurred as the result of

3 APPS-based law enforcement activities, and an injunction on spending based on such declaration.

4

Dated: December 30, 2015 MICHEL & ASSOCIATES, P.C. 6

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8 Scott M. Franklin Attorney for Plaintiffs 9

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28 577 27 FIRST AMENDED COMP. FOR DEC. AND INJ. RLF & PET. WRIT MAND. 1 PROOF OF SERVICE

2 STATE OF CALIFORNIA

3 COUNTY OF LOS ANGELES

4 I, Laura L. Quesada, am employed in the City of Long Beach, Los Angeles County, California. I am over the age eighteen (18) years and am not a party to the within action. My 5 business address is 180 East Ocean Blvd., Suite 200, Long Beach, CA 90802.

6 On December 30, 2015, the foregoing document(s) described as

7 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND PETITION FOR WRIT OF MANDAMUS 8 on the interested parties in this action by placing 9 [ ] the original [Xl a true and correct copy 10 thereof enclosed in sealed envelope(s) addressed as follows:

11 Kamala D. Harris, Attorney General of California Office of the Attorney General 12 Anthony Hakl, Deputy Attorney General 1300 I Street, Suite 1101 13 Sacramento, CA 95814 14 X. (BY MAIL) As follows: I am “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. Under the practice it would be deposited with the 15 U.S. Postal Service on that same day with postage thereon ftilly prepaid at Long Beach, California, in the ordinary course of business. I am aware that on motion of the party 16 served, service is presumed invalid if postal cancellation date is more than one day after date of deposit for mailing an affidavit. 17 Executed on December 30, 2015, at Long Beach, California.

18 X (VIA ELECTRONIC MAIL) As follows: I served a true and correct copy by electronic transmission. Said transmission was reported and completed without error. 19 Executed on December 30, 2015, at Long Beach, California.

20 (PERSONAL SERVICE) I caused such envelope to delivered by hand to the offices of the addressee. 21 Executed on December 30, 2015, at Long Beach, California.

22 . (STATE) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 23

— (FEDERAL) I declare that I am employed in the office of the bar of this 24 court at whose direction the servic&was made.

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28 578 28 FIRST AMENDED COMP. FOR DEC. AND INJ. RLF & PET. WRIT MAND. C. D. Michel - S.B.N. 144258 Scott M. Frankli'n - S.B.N. 240.254 2 MICHEL & ASSOCJATES, P.C. 180 E. Ocean Boulevard, Suite 200 3 Long Beach, CA 90802 Telephone: (562) 216-4444 4 Facsimile: (562) 216-4445 Email: [email protected] 5 Attorney for Plaintiffa/Petitioners 6

7 X 0 8 SUPERIOR COURT OF THE STATE or CALIFORNIA U- 9 FOR THE COUNTY OF SACRAMENTO .

10 cC>· 11 DAVID GENTRY, JAMES PARKER, ) CASE NO. 34-2013-80001667 MARK MIDLAM, JAMES BASS, and ) 12 CALGUNS SHOOTING SPORTS ) STIPULATION RE: EXPEDITED DISPUTE ASSOCIATION, ) RESOLUTION PROCEDURE 13 ) REGARDING DISPUTED DISCOVERY Plaintiffs and Petitioners, ) RESPONSES PREVIOUSLY DEEMED 14 ) MOOT AND RENEWED MOTIONS vs. ) CURRENTLY SCHEDULED FOR 15 ) HEARING ON FEBRUARY 19, 2016 KAMALA HARRIS, in Her Official ) [{PROPOSED} ORDER FILED 16 Capacity as Attorney General for the State ) HEREWITH] of California; STEPHEN LINDLEY, in His) 17 Official Capacity as Acting Chief for the ) California Department of Justice, JOHN ) 18 CHIANG, in his official capacity as State ) Controller for the State of California, and ) Date: February 19, 2016 19 DOES 1-10. .) Time: 9:00 a.m. ) Dept.: 31 20 Defendants and Respondents. ) Judge: Hon. Michael P. Kenny ------) Action filed: 10/16/13 ; 21 i 22 II I !' i 23 I 24 i .I) .k- 25 :s ~ 'C r ...... R::; I! 26 o:;~ 0 l · 27 o">'\'.w 28

1 STIP. RE: EXPED. RESOLUTION RE: PROP. RENEWED DISC. MOT.; [PROP.] ORD. 579 1 The parties to this Action, through their respective counsel, hereby stipulate and agree to

2 the following.

3 AVERMENTS

4 WHEREAS, Plaintiffs/Petitioners David Gentry, James Parker, Mark Midlam, James

5 Bass, and Calguns Shooting Sports Association's (collectively "Plaintiffs") Motions to Compel

6 Further Responses to (1) Request for Admissions, Set One, Propounded on Defendants Kamala

7 Harris and Stephen Lindley, and ·(2) the Form Interrogatories, Set One (the "Discovery

8 Motions") sought the production of information related to Plaintiffs' allegations that the Dealers'

9 Record of Sale ("DROS") fee constitutes, at least in part, an illegal tax (the "Tax Claim-Related

10 Information");

11 WHEREAS, On August 31, 2015, after the parties had submitted their briefs on the

12 Discovery Motions, the Court held that the discovery requests seeking Tax-Claim Related

13 Information were moot because the Court had recently dismissed the illegal tax-based causes of

14 action in Plaintiffs' original Complaint, making the Discovery Motions moot as to the Tax Claim-

15 Related Information ( as stated in the Ruling after Additional Briefs dated August 31, 2015) );

16 WHEREAS, on December 23, 2015, the Court granted leave to Plaintiffs to file their First

17 Amended Complaint;

18 WHEREAS, Plaintiffs filed their First Amended Complaint on December 30, 2015, and it

19 includes new causes of action alleging that the DROS ·fee is an illegal tax under article XIII,

20 sections 1(b ), 2, and 3 of the California Constitution, all causes of action that were not pleaded in

21 the original Complaint;

22 WHEREAS, Plaintiffs contends that the Tax-Claim Related Information is once again

23 relevant in this action (i.e., it is no longer moot) because the First Amended Complaint includes

24 new illegal tax arguments that justify discovery as to the Tax-Claim Related Information;

25 WHEREAS, the parties have conferred as to whether the Discovery Motions can be

26 renewed, and whether renewal is preferable to Plaintiff effectively repropounding Requests for

27 Admissions and Form Interrogatories in an abundance of caution, even though the parties agree

28 that doing essentially duplicative discovery will not change the positions taken in the parties'

2 STIP. RE: EXPED. RESOLUTION RE: PROP. RENEWED DISC. MOT.; [PROP.] ORD. 580 1 previously filed Discovery Motion briefing;

2 WHEREAS, Plaintiffs plan to file Renewal Motions requesting that the Court revisit its

3 mootness determination and its ruling on the Discovery Motions based on the argument that the

4 First Amended Complaint's inclusion of new illegal tax claims constitutes a new fact that

5 resolves the basis for the Court's mootness determination;

6 WHEREAS, Upon meeting and conferring on this issue, the parties agree that because the

7 Discovery Motions have already been fully briefed by the parties, it would waste the Court's and 8 the parties' time and resources for Plaintiffs to start a"new" round of discovery that is going to 9 put the parties, and the Court, in the same place as they were when the Court made its mootness

10 determination; and

11 WHEREAS, because the Court already has the parties' Discovery Motion briefs on file,

12 the parties now desire to jointly propose a streamlined dispute resolution mechanism that, when

13 compared to the normal noticed motion procedure, will save costs and time for the parties and the

14 Court.

15 STIPULATION

16 THEREFORE, based on the foregoing facts, the parties hereby stipulate as follows.

17 1. Plaintiffs' request that the relevant aspects of the Discovery Motions (i.e., the

18 denial of relief as to requests previously deemed moot) be renewed and

19 substantively ruled upon may be resolved by the Court based on the Renewal

20 Motions and the briefs previously filed regarding the Discovery Motions, and

21 without oral argument or further briefing other than as stated herein.

22 2. An order of the Court issued pursuant to this expedited dispute resolution process

23 will have the same force and effect as if issued upon a motion filed pursuant to

24 Code of Civil Procedure section 2031.300(a) or 2033.290(a).

25 3. If, by February 4, 2016, the Court has not indicated by order, docket entry, or

26 otherwise that this matter has been taken under submission pursuant to the

27 stipulation of the parties, the parties will thereafter proceed with the Renewal

28 Motions as regular noticed motions subject to the brief submission deadlines stated

3 STIP. RE: EXPED. RESOLUTION RE: PROP. RENEWED DISC. MOT.; [PROP.] ORD. 581 ______,2016

1 in Code of Civil Procedure section 1005(b), calculated pursuant to the February

2 19, 2016, hearing date Plaintiffs reserved for the renewal motions. 3 SO STIPULATED.

4 Dated: 2016 MICHEL & ASSOCIATES, P.C. 5

6

7 tt M!F anklin Attorneys for the Plaintiffs/Petitioners 8 Dated: KAMAL D. HARRIS 9 Attorney General of California STEPAN A. HAYTAVAN 10 Supervising Deputy Attorney General 11

12 Anthony R. Hakl 13 Deputy Attorney General Attorneys for Defendants/Respondents 14

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4 STIP. RE: EXPED. RESOLUTION RE: PROP. RENEWED DISC. MOT.; [PROP.] OR]). 582 1 in Code of Civil Procedure section 1005(b), calculated pursuant to the February

2 19, 2016, hearing date Plaintiffs reserved for the renewal motions.

3 SO STIPULATED.

4 & Dated: -----, 2016 MICHEL ASSOCIATES, P.C. 5

6 Scott M. Franklin 7 Attorneys for the Plaintiffs/Petitioners 8 Dated: ~\V\. \ 0\ , 2016 KAMAL D. HARRIS 9 Attorney General of California STEP A. YTAYAN 10 Superv · _Attorney General

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12 An onyR. al< , 13 Deputy Attorney General Attorneys for Defendants/Respondents 14

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4 STIP. RE: EXPED. RESOLUTION RE: PROP. RENEWED DISC. MOT.; [PROP.] ORD. 583 1 ORDER

2 Based on the Stipulation of the parties dated January_, 2016, the Court GRANTS the

3 request that the Renewed Motions (i.e., Plaintiffs' renewed Motions to Compel Further

4 Responses to (1) Request for Admissions, Set One, and (2) the Form Interrogatories, Set One)

5 filed by Plaintiff will be ruled upon pursuant to the expedited procedure stipulated to by the

6 parties.

7 It is ORDERED that:

8 1. The hearing of February 19, 2016, is off calendar.

9 2. The matter shall be resolved by the Court without oral argument or further

10 briefing, based on the Renewal Motions and the briefs already filed in this action

11 as to the underlying discovery motions; the order of the Court issued pursuant to

12 the parties' stipulated expedited dispute resolution will have the same force and

13 effect as if issued upon a motion filed pursuant to Code of Civil Procedure section

14 203 l.300(a) or 2033.290(a).

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16 IT IS SO ORDERED.

17

18 Date:

19 Hon. Michael P. Kenny, Judge of the Superior Court

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5 STIP. RE: EXPED. RESOLUTION RE: PROP. RENEWED DISC. MOT.; [PROP.] ORD. 584 1 PROOF OF SERVICE

2 STATE OF CALIFORNIA

3 COUNTY OF LOS ANGELES

4 I, Laura L. Quesada, am employed in the City of Long Beach, Los Angeles County, California. I am over the age eighteen ( 18) years and am not a party to the within action. · My 5 business address is 180 East Ocean Blvd., Suite 200, Long Beach, CA 90802.

6 On January_, 2016, the foregoing document(s) described as

7 STIPULATION RE: EXPEDITED DISPUTE RESOLUTION PROCEDURE REGARDING DISPUTED DISCOVERY RESPONSES PREVIOUSLY DEEMED MOOT 8 AND RENEWED MOTIONS CURRENTLY SCHEDULED FOR HEARING ON FEBRUARY 19, 2016 [{PROPOSED} ORDER FILED HEREWITH] 9 on the interested parties in this action by placing 10 [ ] the original [X] a true and correct copy 11 thereof enclosed in sealed envelope(s) addressed as follows:

12 Kamala D. Harris, Attorney General of California Office of the Attorney General 13 Anthony Hakl, Deputy Attorney General 13 00 I Street, Suite 11 01 14 Sacramento, CA 95814

15 _x_ (BY MAIL) As follows: I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under the practice it would be deposited with the 16 U.S. Postal Service on that same day with postage thereon fully prepaid at Long Beach, California, in the ordinary course of business. I am aware that on motion of the party 17 served, service is presumed invalid if postal cancellation date is more than one day after date of deposit for mailing an affidavit. 18 Executed on January 14, 2016, at Long Beach, California.

19 _x. (VIA ELECTRONIC MAIL) As follows: I served a true and correct copy by electronic transmission. Said transmission was reported and completed without error. 20 Executed on January 14, 2016, at Long Beach, California.

21 (eERSONAL SERVICE) I caused such envelope to delivered by hand to the offices of the addressee. 22 Executed January 14, 2016, at Long Beach, California.

23 _x_ (STATE) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 24 (FEDERAL) I declare that I am employed in the office of the member of the bar of this 25 court at whose direction the service was made.

26

27 LAURAL QUESADA

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6 STIP. RE: EXPED. RESOLUTION RE: PROP. RENEWED DISC. MOT.; [PROP.] ORD. 585 PROOF OF ELECTRONIC SERVICE

Case Name: Gentry, et al. v. Becerra, et al. Court of Appeal Case No.: C089655 Superior Court Case No.: 34-2013-80001667

I, Sean A. Brady, am employed in the City of Long Beach, Los Angeles County, California. I am over the age eighteen (18) years and am not a party to the within action. My business address is 180 East Ocean Boulevard, Suite 200, Long Beach, California 90802.

On February 7, 2020, I served a copy of the foregoing document(s) described as: APPELLANTS’ APPENDIX, VOLUME II OF XVI, (Pages 292 to 586 of 4059), by electronic transmission as follows:

Robert E. Asperger [email protected] 1300 I Street Sacramento, CA 95814 Attorneys for Defendants and Respondents Xavier Becerra, et al.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration was executed on February 7, 2020, at Long Beach, California.

s/ Sean A. Brady Sean A. Brady Declarant

586