Judge: Daniel S. Murphy, Case: 21STCV06257, Date: 2023-05-18 Tentative Ruling

Case Number: 21STCV06257    Hearing Date: May 18, 2023    Dept: 32

BACKGROUND

            On February 17, 2021, the People of the State of California (“Plaintiff”) filed an action for violation of the Unfair Competition Law (“UCL”) and public nuisance against Polymer80, Inc., David Borges, and Loran Kelley (collectively “Defendants”). The complaint arises from Defendants’ production and sale of “ghost gun” kits.

Plaintiff alleges that Defendants’ conduct violates the Federal Gun Control Act (“GCA”) and Child Safety Lock Act (“CSLA”), as well as the California Unsafe Handgun Act (“CUHA”) and Assembly of Firearms Law (“AFL”). (Compl. ¶¶ 39-61.) These violations form the basis for Plaintiff’s UCL claim, which alleges that Defendants’ violation of the foregoing federal and state laws constitutes an unlawful business practice. (Id., ¶¶ 86-90.) Plaintiff’s public nuisance claim alleges that Defendants “created a public nuisance by marketing, selling and distributing ghost gun kits to California residents without serial numbers, without background checks, and without appropriate safety features. Defendants’ actions have created a significant threat to the public right of health and safety in public spaces.” (Id., ¶ 99.)

On April 27, 2023, Defendants filed the instant motion for judgment on the pleadings, arguing that federal law preempts this action and that Plaintiff has failed to articulate a cognizable public right in relation to the nuisance claim.

LEGAL STANDARD

A motion for judgment on the pleadings may be made on the same grounds as those supporting a general demurrer, i.e., that the pleading fails to state facts sufficient to constitute a legally cognizable claim or defense. (Stoops v. Abbassi (2002) 100 Cal.App.4th 644, 650.) A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed. (Cloud v. Northrop Grumman Corp. (1999) 67 Cal.App.4th 995, 999.) Judgment on the pleadings must be denied where there are material factual issues that require evidentiary resolution. (Schabarum v. Calif. Legislature (1998) 60 Cal.App.4th 1205, 1216.)

DISCUSSION

I. Protection of Lawful Commerce in Arms Act (PLCAA)

            a. Qualified Civil Liability Action

            The federal Protection of Lawful Commerce in Arms Act (PLCAA) precludes liability for businesses engaged in the lawful manufacture and distribution of firearms where the harm is caused by the criminal acts of others. (15 U.S.C. § 7901(a)(5).) However, this action is not a qualified civil liability action because it does not arise from harm caused by the criminal acts of third parties. Rather, Plaintiff seeks to hold Defendants liable for their own actions. A few allegations describing the connection between ghost gun sales and increased violence do not change the nature of the action. (See Compl. ¶¶ 42, 58, 61, 80.) Therefore, the PLCAA does not apply.

b. Predicate Exception

            Even if the PLCAA applies, there is an exception for “an action in which a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought . . . .” (15 U.S.C. § 7903(5)(A)(iii).) This is known as the “predicate exception” because the plaintiff predicates their claim on a violation of statute. Plaintiff predicates its claims on alleged violations of the federal Gun Control Act (GCA), federal Child Safety Lock Act (CSLA), California Unsafe Handgun Act (CUHA), and California Assembly of Firearms Law (CAFL).

                        1. GCA

            The GCA defines “firearm” as, inter alia, “(A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon . . . .” (18 U.S.C. § 921(a)(3).)

            Defendants argue that Polymer80’s gun kits are not firearms because they consist of unfinished parts. However, Plaintiff has alleged that the kits are designed to and may be readily converted to fire a projectile. (Compl. ¶¶ 39-40.) This squares with the definition of a firearm under the GCA and is sufficient at the pleading stage. Plaintiff also alleges that the kits contain frames and receivers. (Ibid.) The fact that the frames and receivers require additional drilling or machining before being fully operable does not necessarily exclude them from being a “frame or receiver” under the GCA. For demurrer purposes, inferences are drawn in Plaintiff’s favor.

Defendants cite no binding authority for the proposition that their products are not covered by the GCA as a matter of law. Defendants point out a district court case holding, “[t]hat which may become a receiver is not itself a receiver.” (VanDerStok v. Garland (N.D. Tex. Sept. 2, 2022) No. 4:22-cv-00691-O, 2022 WL 4009048, at *4.) However, there are also cases holding the opposite. (See, e.g., United States v. Wick (9th Cir. 2017) 697 F.App'x 507, 508 [“Uzi parts kits that could ‘readily be converted to expel a projectile by the action of an explosive,’ thus meeting the statute's definition of a firearm”].) Without any binding authority, the Court cannot find at the pleading stage that Plaintiff has failed to allege a violation of the GCA as a matter of law.

In sum, Plaintiff has sufficiently alleged a predicate violation of the GCA, which exempts the claims from the PLCAA.  

            2. CSLA

The CSLA applies to handguns. (18 U.S.C. § 922(z).) A handgun is defined as “(A) a firearm which has a short stock and is designed to be held and fired by the use of a single hand; and (B) any combination of parts from which a firearm described in subparagraph (A) can be assembled.” (18 U.S.C. § 921(a)(30).)

For the same reasons discussed above, Defendants argue that its products are not handguns under the federal definition. The argument is equally unavailing. Plaintiff has alleged that the kits consist of a combination of parts that may be assembled into a handgun. (Compl. ¶ 40.) Defendants cite no authority for their proposition that the parts cannot be “assembled” into a handgun simply because they require additional drilling or machining. Courts have held that “readily assembled” applies even to situations where an additional part must be separately obtained. (See United States v. Kirkland (9th Cir. 2018) 909 F.3d 1049, 1053.) For pleading purposes, it can be reasonably inferred that the kits may be readily assembled despite needing some additional maintenance. How “readily” the kits can actually be assembled requires a factual analysis beyond the purview of this motion. Ultimately, the complaint adequately alleges a predicate violation of the CLSA.  

            3. CUHA

The complaint alleges that Defendants aided and abetted CUHA violations “by marketing, selling, and transferring all of the components, parts, materials, tools and instructional videos needed to build an unsafe handgun in the state.” (Compl. ¶ 57.) According to Defendants, “[t]he allegations fail for two reasons: (1) many of the CUHA provisions on which Plaintiff relies are unconstitutional; and (2) the Complaint fails to plead facts necessary under California pleading standards for aiding-and-abetting liability.” (Mtn. 9:26-28.)

Defendants rely on two federal court decisions holding CUHA’s chamber load indicator, magazine disconnect mechanism, and microstamping provisions to be unconstitutional. (Renna v. Bonta (S.D. Cal. Apr. 3, 2023) No. 3:20-cv-02190-DMS-DEB, 2023 WL 2846937; Boland v. Bonta (C.D. Cal. Mar. 20, 2023) No. 8:22-cv-1421-CJC-ADS, 2023 WL 2588565.) However, Plaintiff does not predicate its CUHA allegations solely on these provisions. The complaint also alleges that Polymer80’s products are not properly listed in California’s handgun roster and that Polymer80 has failed to certify its firearms are not unsafe handguns, both of which are independent violations of CUHA. (Compl. ¶ 78.)

            The complaint otherwise adequately alleges aiding and abetting. Aiding and abetting requires proof that the defendant “act[ed] with knowledge of the criminal purpose of the perpetrator and with the intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.” (People v. Mendoza (1998) 18 Cal.4th 1114, 1123.) Defendants argue that the allegations amount to mere speculation that Defendants sold their products to individuals who later committed a crime and that Defendants intended for the individuals to commit a crime. However, the crime alleged here is the assembly of an unsafe handgun, which the complaint alleges Defendants had knowledge of and intended to facilitate. (See Compl. ¶ 57 [Defendants sold the parts and provided instructions on assembly].) It is immaterial whether individual purchasers later commit a separate crime, such as a shooting. Therefore, the complaint sufficiently alleges a predicate violation of CUHA.

4. CAFL

            CAFL imposes requirements for placing serial numbers on firearms, including ones manufactured from plastic. (Pen. Code, § 29180.) According to the complaint, Defendants are “aiding and abetting the manufacture and assembly of firearms that fail to comply with California’s serialization requirement.” (Compl. ¶ 61.) Defendants make the same unavailing arguments regarding “firearm” and aiding and abetting. For pleading purposes, the complaint sufficiently alleges a predicate violation of CAFL.

            In conclusion, Plaintiff has alleged at least one predicate violation, which exempts the claims at issue from being barred by the PLCAA.

            c. Proximate Causation

            Defendants argue that the alleged predicate violations are not the “‘proximate cause of the harm for which relief is sought,’ i.e., downstream effects [of] independent criminal actors’ misuses of Polymer80 products.” (Mtn. 11:26-28, citing 15 U.S.C. § 7903(5)(A)(iii).) However, as discussed above, the harm alleged here is Defendants’ own violation of law through the sale of their products. (See Compl. ¶¶ 86, 99.) The claims are not based on subsequent criminal activity conducted using Defendants’ products.

Even if a causal connection to “downstream effects” is required, the complaint sufficiently alleges it. (See Compl. ¶ 43.) For pleading purposes, the causal link between the proliferation of untraceable guns and an increase in violent crime is sufficiently certain. The harm is not “of a kind and degree so far beyond the risk the original tortfeasor should have foreseen that the law deems it unfair to hold him responsible.” (See Lawson v. Safeway Inc. (2010) 191 Cal.App.4th 400, 417.) In re Firearms Cases (2005) 126 Cal. App. 4th 959, 986-89 is distinguishable because in that case, the defendant “manufacture[d] guns according to federal law and guidelines.” By contrast, the complaint here alleges violations of multiple federal and state laws.

The factual analysis required to prove or disprove the causal connection is outside the scope of this motion. Ultimately, Plaintiff has sufficiently alleged proximate causation.  

II. Nuisance

            A nuisance is “[a]nything which is injurious to health” (Civ. Code, § 3479), and a “public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons” (id., § 3480). To prevail on a public nuisance claim, Plaintiff must show “that a defendant knowingly created or assisted in the creation of a substantial and unreasonable interference with a public right.” (People v. ConAgra Grocery Prods. Co. (2017) 17 Cal.App.5th 51, 79.)

            The complaint alleges that “Defendant Polymer80 created a public nuisance by marketing, selling and distributing ghost gun kits to California residents without serial numbers, without background checks, and without appropriate safety features. Defendants’ actions have created a significant threat to the public right of health and safety in public spaces.” (Compl. ¶ 99.)

            Defendants argue that Plaintiff has failed to allege a cognizable public right because “health and safety” is too generic. Defendants rely on a nonbinding Illinois case for the proposition that nuisance cannot be based on a broad and undefined interest. (See City of Chicago v. Beretta, U.S.A. Corp. (Ill. 2004) 821 N.E.2d 1099, 1116.) But California law recognizes a community’s collective interest in safety. (See ConAgra, supra, 17 Cal.App.5th at p. 112.) Notably, the court in ConAgra expressly rejected reliance on other states’ laws, including Illinois, which are narrower than California’s. (Ibid.)

            Defendants also argue that “California nuisance law does not extend to the lawful distribution of firearms components and kits.” (Mtn. 14:7-8.) Of course, Plaintiff alleges that Defendants are engaged in the unlawful distribution of firearms. As discussed above, those legal violations have been adequately pled. Therefore, the complaint sufficiently alleges public nuisance.

III. Motion for Stay

            Alternatively, Defendants request the Court to stay the case pending the Ninth Circuit’s decision on Boland, which would determine the constitutionality of certain CUHA provisions. As discussed above, those CUHA provisions are not the sole basis of Plaintiff’s CUHA allegations. A predicate violation need not involve all of CUHA’s provisions or any CUHA provision at all—the GCA, CSLA, and CAFL also serve as predicate statutes. Because Plaintiff has adequately alleged a predicate violation even without the CUHA provisions at issue, a stay is unnecessary.      

CONCLUSION

            Defendants’ motion for judgment on the pleadings is DENIED. Defendants’ alternative request for a stay is DENIED.