This case was last updated from Los Angeles County Superior Courts on 01/04/2020 at 00:55:16 (UTC).

JOHN DOE ET AL VS DEAN C LOGAN

Case Summary

On 05/07/2018 JOHN DOE filed a Civil Right - Other Civil Right lawsuit against DEAN C LOGAN. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are ELIHU M. BERLE, DEBRE K. WEINTRAUB, TERESA A. BEAUDET and DEBRE KATZ WEINTRAUB. The case status is Other.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****2299

  • Filing Date:

    05/07/2018

  • Case Status:

    Other

  • Case Type:

    Civil Right - Other Civil Right

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

ELIHU M. BERLE

DEBRE K. WEINTRAUB

TERESA A. BEAUDET

DEBRE KATZ WEINTRAUB

 

Party Details

Plaintiffs and Petitioners

ALLIANCE FOR CONSTITUTIONAL SEX OFFENSE L

JOHN DOE #2

JOHN DOE #1

ALLIANCE FOR CONSTITUTIONAL SEX OFFENSE

OFFENSE ALLIANCE FOR CONSTITUTIONAL SEX

DOE 2 JOHN

Defendant and Respondent

LOGAN DEAN C. IN HIS OFFICIAL CAPACITY

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

LAW OFFICE OF JANICE M. BELLUCCI

BELLUCCI JANICE M.

Defendant and Respondent Attorneys

OFFICE OF THE COUNTY COUNSEL

GLASER WEIL FINK HOWARD AVCHEN & SHAPIRO

BAUM ANDREW P

 

Court Documents

Separate Statement

8/19/2019: Separate Statement

Request for Judicial Notice

8/19/2019: Request for Judicial Notice

Proof of Service (not Summons and Complaint)

8/19/2019: Proof of Service (not Summons and Complaint)

Separate Statement

9/5/2019: Separate Statement

Motion for Summary Judgment

9/5/2019: Motion for Summary Judgment

Declaration - DECLARATION IN SUPPORT OF STIPULATED EX PARTE APPLICATION

9/25/2019: Declaration - DECLARATION IN SUPPORT OF STIPULATED EX PARTE APPLICATION

Request for Refund / Order - REQUEST FOR REFUND / ORDER RE RECEIPT #1180911K78

10/3/2019: Request for Refund / Order - REQUEST FOR REFUND / ORDER RE RECEIPT #1180911K78

Response - RESPONSE TO SEPARATE STATEMENT

10/22/2019: Response - RESPONSE TO SEPARATE STATEMENT

Separate Statement

10/22/2019: Separate Statement

Opposition - OPPOSITION TO DEFENDANT'S REQUEST FOR JUDICIAL NOTICE IN OPPOSITION TO PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

10/29/2019: Opposition - OPPOSITION TO DEFENDANT'S REQUEST FOR JUDICIAL NOTICE IN OPPOSITION TO PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT; HEARING ON MOTION FOR...)

11/5/2019: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT; HEARING ON MOTION FOR...)

DECLARATION OF PLAINTIFF JOHN DOE #2 IN SUPPORT OF APPLICATION FOR LEAVE TO PROCEED UNDER PSEUDONYM

8/6/2018: DECLARATION OF PLAINTIFF JOHN DOE #2 IN SUPPORT OF APPLICATION FOR LEAVE TO PROCEED UNDER PSEUDONYM

Minute Order -

8/15/2018: Minute Order -

CASE MANAGEMENT STATEMENT

8/24/2018: CASE MANAGEMENT STATEMENT

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

5/7/2018: COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

NOTICE OF CLERICAL CORRECTION

6/1/2018: NOTICE OF CLERICAL CORRECTION

Summons -

5/7/2018: Summons -

37 More Documents Available

 

Docket Entries

  • 01/24/2020
  • Hearing01/24/2020 at 08:30 AM in Department 50 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion for Summary Judgment

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  • 01/24/2020
  • Hearing01/24/2020 at 08:30 AM in Department 50 at 111 North Hill Street, Los Angeles, CA 90012; Trial Setting Conference

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  • 01/24/2020
  • Hearing01/24/2020 at 08:30 AM in Department 50 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion for Summary Judgment

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  • 01/02/2020
  • Docketat 4:00 PM in Department 50, Teresa A. Beaudet, Presiding; Non-Appearance Case Review - Not Held - Advanced and Vacated

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  • 11/21/2019
  • Docketat 08:30 AM in Department 50, Teresa A. Beaudet, Presiding; Hearing on Motion for Summary Judgment - Not Held - Advanced and Continued - by Court

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  • 11/05/2019
  • Docketat 08:30 AM in Department 50, Teresa A. Beaudet, Presiding; Hearing on Motion for Summary Judgment - Not Held - Continued - Court's Motion

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  • 11/05/2019
  • Docketat 08:30 AM in Department 50, Teresa A. Beaudet, Presiding; Hearing on Motion for Summary Judgment - Not Held - Continued - Court's Motion

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  • 11/05/2019
  • DocketMinute Order ( (Hearing on Motion for Summary Judgment; Hearing on Motion for...)); Filed by Clerk

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  • 11/05/2019
  • DocketCertificate of Mailing for ((Hearing on Motion for Summary Judgment; Hearing on Motion for...) of 11/05/2019); Filed by Clerk

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  • 10/31/2019
  • DocketNotice (SUPPLEMENTAL APPENDIX OF AUTHORITIES IN SUPPORT OF DEFENDANT'S REPLY TO PLAINTIFFS? OPPOSITION TO DEFENDANT?S MOTION FOR SUMMARY JUDGMENT); Filed by Logan, Dean C., in his official capacity (Defendant)

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53 More Docket Entries
  • 06/14/2018
  • DocketMinute Order

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  • 06/14/2018
  • DocketMinute order entered: 2018-06-14 00:00:00; Filed by Clerk

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  • 06/11/2018
  • DocketAnswer; Filed by Alliance For Constitutional Sex Offense (Plaintiff)

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  • 06/11/2018
  • DocketDEFENDANT DEAN C. LOGAN'S ANSWER TO PLAINTIFFS' COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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  • 06/01/2018
  • DocketNOTICE OF CLERICAL CORRECTION

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  • 05/17/2018
  • DocketProof of Service (not Summons and Complaint); Filed by John Doe #1 (Plaintiff); John Doe 2 (Plaintiff); Alliance For Constitutional Sex Offense (Plaintiff)

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  • 05/17/2018
  • DocketProof-Service/Summons; Filed by John Doe #1 (Plaintiff); Logan, Dean C., in his official capacity (Defendant)

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  • 05/17/2018
  • DocketProof of Service of Summons and Complaint BC702299 PROOF OF SERVICE OF SUMMONS

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  • 05/07/2018
  • DocketCOMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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  • 05/07/2018
  • DocketComplaint; Filed by John Doe #1 (Plaintiff); John Doe 2 (Plaintiff); Alliance For Constitutional Sex Offense (Plaintiff)

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Tentative Rulings

Case Number: BC702299    Hearing Date: January 24, 2020    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

john doe #1, et al.,

Plaintiffs,

vs.

dean c. logan, et al.

Defendants.

Case No.:

BC 702299

Hearing Date:

January 24, 2020

Hearing Time:

8:30 a.m.

[TENTATIVE] ORDER RE:

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT; and

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Background

Plaintiffs John Doe #1, John Doe #2, and Alliance for Constitutional Sex Offense Laws (“ACSOL”) (jointly, “Plaintiffs”) filed this action on May 7, 2018 against Defendant Dean C. Logan (“Defendant”) in his official capacity as Registrar-Recorder/County Clerk of the County of Los Angeles (the “RR/CC”). The Complaint asserts two causes of action, the first for state law preemption under article XI, section 7 of the California Constitution, and the second for equal protection under the Fourteenth Amendment of the United States Constitution. Plaintiffs dismissed the second cause of action on August 28, 2019.

In the Complaint, Plaintiffs allege the following: John Doe #1 and John Doe #2 are residents of Los Angeles County who are registered to vote in Los Angeles County and are also currently required to register as sex offenders pursuant to Penal Code section 290, et seq. (Compl., ¶¶ 5-6.) ACSOL is a non-profit corporation incorporated and headquartered in

Los Angeles, which advocates for the civil rights of registered sex offenders in California. (Compl., ¶ 7.) Both John Does are members of ACSOL. (Compl., ¶¶ 5-6.)

The RR/CC employs paid volunteer poll workers at polling places throughout the County of Los Angeles. (Compl., ¶ 11.) Pursuant to guidelines set by the California Secretary of State, a person is eligible to be a poll worker if he or she is a registered California voter or legal resident of the United States who would be eligible to vote except for citizenship status or if he or she is an eligible high school student. (Compl., ¶ 12.) John Doe #1 and John Doe #2 desire to volunteer as poll workers in elections. (Compl., ¶¶ 13-14.) Nevertheless, the RR/CC maintains a policy that forbids those who are registered as sex offenders from serving as poll workers in any election. (Compl., ¶ 15, Ex. A.) Specifically, the RR/CC’s statement of “Pollworker Eligibility” and the RR/CC’s online Pollworker Application indicates that “[i]ndividuals who are registered sex offenders cannot volunteer” to be poll workers. (Compl., ¶ 15, Ex. A.)

By way of this lawsuit, Plaintiffs seek a judgment declaring that RR/CC’s policy of excluding registered sex offenders from serving as poll workers is preempted by California state law because it constitutes unlawful local regulation within a preempted field. (Compl., ¶ 22.) Plaintiffs also seek injunctive relief. (Compl., ¶ 23.)

Plaintiffs and Defendant both move for summary judgment. Both motions are opposed.

Evidence

Plaintiffs’ MSJ

The Court grants Plaintiffs’ request for judicial notice as to Items 1 and 2.

The Court grants Defendant’s request for judicial notice as to Exhibits N and O. The Court overrules Plaintiffs’ objections to Defendant’s request for judicial notice.

Defendant’s MSJ

The Court grants Defendant’s request for judicial notice as to Exhibits T and U. The Court overrules Plaintiffs’ objections to Defendant’s request for judicial notice.

The Court grants Plaintiffs’ request for judicial notice as to Exhibits A and B.

Legal Standard

“[A] motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” ((Code Civ. Proc., § 437c, subd. (c).) A plaintiff moving for summary judgment must show that there is no defense to any of the asserted causes of action and does so by proving each element of the cause of action. ((Code Civ. Proc., § 437c, subds. (a)(1), (p)(1).) A defendant moving for summary judgment must show either: “that one or more elements of the cause of action . . . cannot be established”; or “that there is a complete defense to that cause of action.” ((Code Civ. Proc., § 437c, subd. (p)(2).) The opposing party on a motion for summary judgment is under no evidentiary burden to produce rebuttal evidence until the moving party meets his or her initial movant’s burden. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.) Once the initial movant’s burden is met, then the burden shifts to the opposing party to show, with admissible evidence, that there is a triable issue requiring the weighing procedures of trial. ((Code Civ. Proc., § 437c, subd. (p).) The opposing party may not simply rely on his/her allegations to show a triable issue but “must produce substantial responsive evidence sufficient to establish a triable issue of material fact on the merits of the defendant’s showing . . . . [and] responsive evidence that gives rise to no more than mere speculation cannot be regarded as substantial . . . .” (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163 (internal citations omitted).)

Discussion

  1. Plaintiffs’ MSJ

“Standing is a threshold issue necessary to maintain a cause of action, and the burden to allege and establish standing lies with the plaintiff.” ((Mendoza v. JPMorgan Chase Bank, N.A. (2016) 6 Cal.App.5th 802, 809.) Therefore, in moving for summary judgment, a plaintiff has the burden of establishing that he or she has the requisite standing to proceed with the asserted claims. ((Troyk v. Farmers Group, Inc. (2009) 171 Cal.App.4th 1305, 1345 [“Because elements for standing ‘are not mere pleading requirements but rather an indispensable part of the plaintiff’s case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.’”].)

Here, Defendant argues in his opposition that Plaintiffs have failed to meet their burden of showing that they have standing to pursue their state law preemption claim because Plaintiffs failed to offer any admissible evidence establishing their standing. In other words, there is no evidence that John Doe #1, John Doe #2, and/or ACSOL have suffered or are about to suffer any injury as a result of the RR/CC’s policy of prohibiting registered sex offenders from volunteering as poll workers. While Plaintiffs allege in the Complaint that John Doe #1 and John Doe #2 are residents of Los Angeles County, registered to vote in Los Angeles County, required to register as sex offenders in Los Angeles County, and desire to volunteer as poll workers in Los Angeles County, Plaintiffs have not offered any evidence to substantiate those allegations in support of their motion for summary judgment.

Contrary to Plaintiffs’ assertion in reply that their standing may be established by the Complaint, “[i]t is generally understood . . . that a party cannot rely on the allegations of his own pleadings, even if verified, to make or supplement the evidentiary showing required in the summary judgment context.” ((College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 720, fn. 7.) The Court further notes that the cases cited by Plaintiffs in support are inapposite. First, Plaintiffs cite to Residents of Beverly Glen, Inc. v. Los Angeles (1973) 34 Cal.App.3d 117, where the Court of Appeal stated that “if the declarations of the moving defendant considered in light of the issues raised by the pleadings together with the admissions and affirmative allegations set forth in the pleadings of the plaintiff would, standing alone[,] support the summary judgment motion,” the court does not need to “look to any counter-affidavits and counterdeclarations.” (Id. at p. 127 [emphasis added].) This statement of the general rule of a defendant’s burden on moving for summary judgment thus does not apply to a summary judgment brought by a plaintiff. Second, Plaintiffs cite to Apartment Assn. of Los Angeles County, Inc. v. City of Los Angeles (2006) 136 Cal.App.4th 119. This case is distinguishable because the defendant’s attack on the plaintiff’s standing was not evidentiary. (Id. at p. 127.) There was no discussion in Apartment Association of what evidence was presented at trial of the plaintiff’s standing. “It is axiomatic that cases are not authority for propositions not considered.” ((In re Marriage of Cornejo (1996) 13 Cal.4th 381, 388.)

Accordingly, the Court finds that Plaintiffs have failed to meet their burden of establishing every element of their standing to bring their state law preemption claim. Because standing is a threshold issue necessary to every cause of action, the Court need not and does not consider the remaining arguments in support of summary judgment offered by Plaintiffs. Plaintiffs’ motion for summary judgment is denied.

  1. Defendants’ MSJ

Defendants contend that the RR/CC’s statements prohibiting registered sex offenders from volunteering as poll workers is not preempted by state law.

“Under article XI, section 7 of the California Constitution, a county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general state laws.” ((People v. Nguyen (2014) 222 Cal.App.4th 1168, 1174 [internal brackets and quotations omitted].) “If otherwise valid local legislation conflicts with state law, it is preempted by such law and is void.” (Ibid.) “A conflict exists if the local legislation duplicates, contradicts, or enters an area fully occupied by general law, either expressly or by legislative implication.” ((Ibid. [italics in original; internal quotations omitted].) “The state impliedly preempts a field when (1) the subject matter has been so fully and completely covered by general law as to clearly indicate that it has become exclusively a matter of state concern; (2) the subject matter has been partially covered by general law couched in such terms as to indicate clearly that a paramount state concern will not tolerate further or additional local action; or (3) the subject matter has been partially covered by general law, and the subject is of such a nature that the adverse effect of a local ordinance on the transient citizens of the state outweighs the possible benefit to the locality.” ((Ibid. [internal quotations omitted].) “The test for field preemption or occupation does not focus on the number of statutes involved, but on whether the nature and extent of the coverage of a field is such that it could be said to display a patterned approach to the subject.” ((Id. at p. 1175.)

In Nguyen, the defendant was charged with misdemeanor violation of a local ordinance prohibiting registered sex offenders from entering city parks and recreational facilities without written permission from the city’s police chief. ((Id. at p. 1172.) The Court of Appeal held that “the state statutory scheme imposing restrictions on a sex offender’s daily life fully occupies the field and therefore preempts the city’s efforts to restrict sex offenders from visiting city parks and recreational facilities.” (Id. at p. 1174)

In this action, Plaintiffs cite to Nguyen in the Complaint and allege that California state law preempts the RR/CC’s policy of excluding registered sex offenders from serving as poll workers because the policy constitutes “unlawful local regulation within a preempted field.” (Compl., ¶¶ 21-22.) In other words, Plaintiffs contend that existing state law fully occupies the relevant field—restrictions on a registered sex offender’s daily life.

  1. Theories of Preemption

As an initial matter, the Court notes that Defendant references arguments made in Plaintiffs’ cross-motion for summary judgment relating to another “field” purportedly fully occupied by state law—restrictions on eligibility for poll workers. Defendant argues (presumably in anticipation of Plaintiffs’ opposition) that Plaintiffs did not provide adequate notice of this theory of field preemption in their Complaint, and therefore, Plaintiffs may not defeat summary judgment on that basis.

It is well-established that the Complaint, as the operative pleading, sets “the outer measure of materiality in a summary judgment proceeding.” ((Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493.) “Accordingly, the burden of a defendant moving for summary judgment only requires that he or she negate plaintiff’s theories of liability as alleged in the complaint; that is, a moving party need not refute liability on some theoretical possibility not included in the pleadings.” ((Ibid. [italics in original].) “Furthermore, the papers filed in response to a defendant’s motion for summary judgment may not create issues outside the pleadings and are not a substitute for an amendment to the pleadings.” ((Ibid. [internal brackets and quotations omitted].)

On the one hand, Plaintiffs’ citation of Nguyen in paragraph 21 of the Complaint suggests that the theory of field preemption at issue is limited to the field of laws regulating a sex offender’s daily life. On the other hand, as argued by Plaintiffs, the actual allegations in the Complaint support a broad construction of the legal theories at issue. In the first paragraph of the Complaint, Plaintiffs allege that they are seeking “a judgment declaring that RR/CC’s policy is preempted by state law . . . .” (Compl., ¶ 1.) In addition to citing Nguyen, Plaintiffs also cite to the general preemption doctrine codified by article XI, section 7 of the California Constitution. (Compl., ¶ 21.) Finally, Plaintiffs allege that the RR/CC’s exclusion policy “is preempted by California state law because it constitutes unlawful local regulation within a preempted field.” (Compl., ¶ 22.) The specific “field” is not identified. The Court finds that the allegations in the Complaint are broad enough to encompass more than one “field” of preemption. The Court also notes that there is no other evidence of Plaintiffs’ intent to limit the theories of preemption (e.g., discovery responses).

Nevertheless, Defendant points to another theory of state law preemption that Defendant claims that Plaintiffs failed to allege in their Complaint—what the Court will refer to as “contradiction preemption”—and more specifically, the theory that an existing state law contradicts the RR/CC’s policy of excluding registered sex offenders from serving as poll workers. The Court finds that Plaintiffs’ allegation in paragraph 22 of the Complaint is dispositive of this issue. Plaintiffs allege that the RR/CC’s policy is preempted “because it constitutes unlawful local regulation within a preempted field.” (Compl., ¶ 22 [emphasis added].) This language limits the theory of state law preemption to only “field preemption.” Plaintiffs do not allege anywhere in their Complaint that the RR/CC’s policy is preempted because it contradicts or is inimical to existing state law. ((See Sherwin-Williams Co. v. City of Los Angeles (1993) 4 Cal.4th 893, 898 [stating that “local legislation is ‘contradictory’ to general law when it is inimical thereto” and citing a case where a “contradiction” was found where “local legislation purported to fix a lower maximum speed limit for motor vehicles than that which general law fixed”].) Therefore, the Court finds that Plaintiffs’ Complaint fails to “minimally advise[] the opposing party of the nature of the theory . . . pursued . . . .” ((Howard v. Omni Hotels Management Corp. (2012) 203 Cal.App.4th 403, 422 [finding that “if the pleading (or answer) minimally advises the opposing party of the nature of the theory (or defense) pursued during the motion proceedings, the courts may, in appropriate cases, evaluate the evidence presented as supplementing the bare bones of the pleading (there, a defense)”].)

Plaintiffs alternatively argue that they would be entitled to amend their Complaint to allege additional theories of preemption in any event because of the policy of exercising liberality in permitting amendments to pleadings. While Plaintiffs are correct regarding the policy in favor of granting leave to amend, Plaintiffs do not actually seek leave to amend. (Opp’n, p. 15:14-24; see also Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1663-1664 [“If either party wishes the trial court to consider a previously unpleaded issue in connection with a motion for summary judgment, it may request leave to amend. . . . . However, [i]n the absence of some request for amendment there is no occasion to inquire about possible issues not raised by the pleadings.” (internal citations and quotations omitted)].) Accordingly, the Court does not consider any argument by Plaintiffs relating to “contradiction preemption” in its determination of whether Defendant is entitled to summary judgment.

  1. Applicability of Nguyen

Defendant contends that Nguyen does not apply because (1) the RR/CC’s policy is not an ordinance or regulation, and (2) because the RR/CC’s policy does not venture into the field of “restrictions imposed on a sex offender’s daily life to reduce the risk he or she will commit another similar offense.” ((People v. Nguyen, supra, 222 Cal.App.4th at p. 1179.)

State law preemption applies to “ordinances and regulations” that are made or enforced by a county or city. ((California Const., art. XI, section 7.) There is no dispute that the RR/CC’s policy is not an ordinance. However, the parties disagree as to whether the policy constitutes a “regulation” made or enforced by a city or county official.

Although Defendant does not explicitly argue that the RR/CC’s policy statement is not a “regulation,” it can be inferred that Defendant’s position is that a “regulation” is akin to legislation, meaning that it has some “force of law.” (Mot., p. 16:22.) Defendant argues that the policy statement has no force of law because it provides no means of enforcement and imposes no penalty for its violation. Rather, Defendant argues that the statement was the product of Defendant’s discretion as the County’s elections official in response to concerns raised by multiple school districts that serve as polling locations on election days. In support, Defendant cites to two cases: Sierra Pacific Holdings, Inc. v. County of Ventura and Bownds v. City of Glendale.

In Sierra Pacific Holdings, the County of Ventura was sued for allegedly creating a dangerous condition at a county-owned airport that resulted in damage to the plaintiff’s aircraft. ((Sierra Pacific Holdings, Inc. v. County of Ventura (2012) 204 Cal.App.4th 509, 511-512.) The trial court concluded that state tort law on the standard of care is impliedly preempted by safety standards for airport design set forth in a Federal Aviation Administration, or FAA, advisory circular. ((Id. at p. 512.) The preemption analysis in Sierra Pacific Holdings was not of state law but federal law preemption, namely, “whether a federal statute or regulation preempts a state law claim.” ((Id. at p. 513.) The Court of Appeal reversed the trial court on the basis that the FAA advisory circular was not a federal law and only federal laws have preemptive effect. ((Id. at p. 517.) Specifically, the FAA advisory circular contained “nonmandatory standards” that “do not have the force and effect of law.” ((Id. at pp. 517-518.)

In Bownds, a tenant in an apartment building brought proceedings in mandamus to compel the city council to vacate and set aside all approvals granted after a certain date for the conversion of existing apartment houses to condominium ownership and to declare a moratorium on such conversion pending certain actions by the city in the area of planning. ((Bownds v. City of Glendale (1980) 113 Cal.App.3d 875, 878-879.) “[T]he fundamental issue involved [in the case] is the decision-making power [of local government] in the area of land use and planning[,]” which “has traditionally been accomplished through zoning ordinances and regulation of subdivisions . . . .” ((Id. at p. 879.) However, the Legislature had passed statutes requiring that cities and counties “adopt a general plan for the future development, configuration and character of the city or county and require that future land use decisions be made in harmony with that general plan.” ((Id. at p. 880.) The petitioner-tenant took the position that guidelines published by the State Department of Housing and Community Development (and later codified in the California Administrative Code) relating to such general plans are “binding on local governments and have the force of law.” (Ibid.) The Court of Appeal disagreed, noting that “local control is at the heart of process” and citing to various Government Code sections supporting this conclusion. (Id. at pp. 880-881.) The Court of Appeal also noted that “[t]he general plan which a city or county is required to adopt is simply a statement of policy.” (Id. at p. 881.) “A general plan or policy, whether it be adopted by governmental entity or private organization serves to provide a standing consistent answer to recurring questions and to act as a guide for specific plans or programs.” (Ibid.) In this case, “the decision making power of local legislative bodies as to the specific contours of the general plan or actions taken thereunder” had not been preempted by the Legislature. (Id. at p. 880.) This was so because the “[g]uidelines . . . are not self-executing and do not have the binding effect of law.” (Id. at p. 886.) Indeed, one of the statutes under which the planning guidelines were developed “specifically provides that the guidelines . . . are advisory only.” (Id. at p. 885.) And there was a “clear implication” that “the Department has no authority on its own to compel compliance [with the guidelines] according to its own notion of what constitutes compliance.” (Id. at p. 885.)

Based on the above two cases, it can be said that a regulation is not subject to preemption principles if it is advisory and has no mechanism for compelling compliance. Plaintiffs counter that a regulation subject to preemption includes any “action” taken by a local official or agency and cite primarily to two cases: Smith v. Los Angeles County Board of Supervisors and County of Santa Clara v. Deputy Sheriffs’ Association.

In Smith, the plaintiffs challenged a pilot program in Los Angeles County that made home visits a condition of eligibility for CalWORKs benefits. ((Smith v. L.A. County Bd. of Supervisors (2002) 104 Cal.App.4th 1104, 1108-1109.) Pursuant to the Welfare and Institutions Code, the State Department of Social Services, or DSS, supervised administration of CalWORKS benefits by the counties. ((Id. at p. 1109.) DSS adopted regulations and standards to implement CalWORKS, which appear in the manual of policies and procedures, or MPP, but are not included in the California Code of Regulations. (Ibid. .) “Under the MPP, each county is obligated to establish special investigative units (SIU’s) for the purpose of investigating suspected welfare fraud, particularly during intake.” ((Id. at p. 1110.) The MPP also addressed home visits, providing that “[a] home visit prior to approval of aid . . . is required . . . .” (Ibid. .) In furtherance of this provision, “the board of supervisors voted to implement a program of home visits on a pilot basis.” (Ibid. .) The plaintiffs filed a petition for writ of mandate challenging the program on a variety of bases, which the trial court rejected. ((Id. at pp. 1112, 1114.) On appeal, the plaintiffs argued that the home visit program was “preempted by state statute and regulations setting eligibility standards for CalWORKs.” (Id. at p. 1115.) Without discussing whether the program constituted an ordinance or regulation, the Court of Appeal held that the program was not preempted by state law. (Id. at p. 1117.)

In County of Santa Clara, the Director of the Santa Clara Department of Corrections proposed to confer limited peace officer status to certain custodial officers to make up for a deficit in the number of correction deputies required by law. ((County of Santa Clara v. Deputy Sheriffs' Assn. (1992) 3 Cal.4th 873, 877.) The Deputy Sheriffs’ Association of Santa Clara County, an organization representing correction deputies, objected to the proposal on the ground that it conflicted with Penal Code section 831, which states that custodial officers are not peace officers and have no right to carry firearms in the performance of their duties. (Ibid.) Similar to Smith, there was no discussion of whether the director’s “proposal” constituted an ordinance or regulation under article XI, section 7 of the California Constitution. Nevertheless, the California Supreme Court concluded that the “director’s action conflicts with state law.” (Id. at p. 878.) Based on this language, Plaintiffs contend that the term “regulations” in article XI, section 7 of the California Constitution is “broad enough to encompass actions or policies ‘enforced’ by an agency.” (Opp’n, p. 6:18-19.)

Pursuant to the above-cited authorities, the Court finds that Plaintiffs have raised a triable issue of fact as to whether the RR/CC’s exclusion policy is a “regulation” under article XI, section 7 of the California Constitution. Defendant argues that the policy has no force of law because Defendant lacks the resources to ensure that registered sex offenders do not serve as poll workers. (Defendant’s Undisputed Material Fact (“UMF”) 14.) Nevertheless, in contrast to the policy guidelines at issue in Bownds, Defendant points to no statute explicitly providing that any policies promulgated by the RR/CC are advisory. As Defendant himself argues in his motion, the RR/CC has discretion to excuse appointed poll workers. (Mot., p. 14:3-11; Elec. Code, § 12316 [“In constituting precinct boards, the elections official may excuse persons appointed whom the elections official is satisfied ought to be excused.”].) This discretion cuts against the conclusion that the RR/CC’s exclusion policy is merely advisory or has no mechanism for compulsion. Moreover, the Court does not find that the RR/CC’s exclusion policy is an exercise of its “contracting power,” rendering the additional cases cited by Defendant in its reply inapposite. ((See Alioto's Fish Co. v. Human Rights Com. of San Francisco (1981) 120 Cal.App.3d 594, 600, 604 [ordinance requiring the city’s employment nondiscrimination ordinance be incorporated into all leases involving city land did not violate state law preemption principles because “the Legislature did not intend to preclude municipalities from including nondiscrimination provisions in their leases”]); (Burns Internat. Security Services Corp. v. County of Los Angeles (2004) 123 Cal.App.4th 162, 178 [discussing Alioto’s in support of the proposition that an ordinance representing “an exercise of [a county’s] contracting power rather than its regulatory power” is not subject to preemption doctrine].)

Alternatively, Defendant argues that the RR/CC’s exclusion policy does not attempt to regulate the daily lives of registered sex offenders. As set forth in Nguyen, the relevant “field” that has been fully occupied by state law is “the restrictions imposed on a sex offender’s daily life to reduce the risk he or she will commit another similar offense.” ((People v. Nguyen, supra, 222 Cal.App.4th at p. 1179.) Defendant contends that the RR/CC’s policy of excluding registered sex offenders from volunteering as poll workers does not regulate registered sex offenders’ daily lives because poll workers are asked to volunteer for a few days during election cycles, which occur every two years. Defendant also contends that the exclusion policy does not deny registered sex offenders any fundamental rights.

In opposition, Plaintiffs point out that the Court of Appeal in Nguyen discussed the comprehensiveness of the state’s laws regulating sex offenders, finding that “these statutes regulate much more than the geographic restrictions imposed on a sex offender[,]” including “what sort of jobs or volunteer positions a sex offender may accept . . . .” ((Id. at p. 1181.) In sum, California law “regulate[s] numerous aspects of a sex offender’s life so that both law enforcement and the public can monitor the sex offender on a daily basis.” (Ibid.) Defendant counters that what volunteer positions a sex offender may accept is different from what volunteer positions may be available to sex offenders. The Court does not find that this is a difference with a material distinction. Either way, the RR/CC’s policy prevents a registered sex offender from volunteering as a poll worker, which is an aspect of a sex offender’s daily life (to the extent that someone’s job and volunteer positions are an aspect of their daily life, even if not literally performed daily) and which (as noted by Defendant himself) is an aspect of a sex offender’s life that law enforcement and the public have an interest in monitoring. Accordingly, the Court finds that Plaintiffs have raised a triable issue of fact as to whether the RR/CC’s policy of excluding registered sex offenders from volunteering as poll workers is preempted by state law. The Court notes that Defendant also argues that the RR/CC’s exclusion policy is not preempted by the Elections Code and the statutes regulating poll worker eligibility. The Court finds that it need not decide the merits of this argument because Defendant moves only for summary judgment. ((See Homestead Sav. v. Superior Court (1986) 179 Cal.App.3d 494, 498 [holding that the court may not summarily adjudicate claims as to which no triable issue was raised unless requested in the notice of motion].)

Conclusion

For the reasons set forth above, Plaintiffs’ and Defendant’s respective motions for summary judgment are denied.

Defendant is ordered to provide notice of this ruling.

DATED: January 24, 2020

________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court

Case Number: BC702299    Hearing Date: November 05, 2019    Dept: 50

THE COURT WILL NEED MORE TIME TO REVIEW THE SUMMARY JUDGMENT PAPERS.  THE HEARING WILL NOT TAKE PLACE TOMORROW.  THE CLERK WILL CONTACT THE PARTIES TO FIND A NEW DATE FOR THE HEARING.