Bianco v. California Highway Patrol

• Decision Date: 03 May 1994
• Docket Number: No. D019372,D019372
• Citation: 29 Cal.Rptr.2d 711,24 Cal.App.4th 1113
• Court: California Court of Appeals Court of Appeals
• Parties: Steven W. BIANCO, Plaintiff and Appellant, v. CALIFORNIA HIGHWAY PATROL, Defendant and Respondent.

Page 711

29 Cal.Rptr.2d 711

24 Cal.App.4th 1113

Steven W. BIANCO, Plaintiff and Appellant, v. CALIFORNIA HIGHWAY PATROL, Defendant and Respondent.

No. D019372.

Court of Appeal, Fourth District, Division 1, California.

May 3, 1994.

As Modified on Denial of Rehearing

May 24, 1994.

[24 Cal.App.4th 1115] Steven W. Bianco, in pro. per., for plaintiff and appellant.

Daniel E. Lundgren, Atty. Gen., Martin H. Milas and Jack T. Kerry, Deputy Attys. Gen., for defendant and respondent.

TODD, Associate Justice.

Steven W. Bianco, in propria persona, appeals from the denial of his second amended petition for writ of mandate in which he challenged (1) generally, the authority of the California Highway Patrol (CHP) to determine which motorcycle helmets are approved and unapproved under the state's mandatory helmet law (VEH.CODE, §§ 27802¹ and 27803) and (2) specifically, a bulletin issued by the CHP that stated the "beanie" helmet manufactured by E & R Fiberglass, Inc., of Tacoma, Washington, (E & R Fiberglass), failed to meet minimum standards as required by section 27802. Bianco contends the trial court made numerous errors in its findings of facts and there was no basis for denying his cross-complaint for injunctive and declaratory relief.

FACTS

California's mandatory motorcycle helmet law (§§ 27802 and 27803) went into effect on January 1, 1992. Section 27803, as amended in 1991, provides:

"(a) A driver and any passenger shall wear a safety helmet meeting requirements established pursuant to Section 27802 when riding on a motorcycle, motor-driven cycle, or motorized bicycle.

"(b) It is unlawful to operate a motorcycle, motor-driven cycle, or motorized bicycle if the driver or any passenger is not wearing a safety helmet as required by subdivision (a).

"(c) It is unlawful to ride as a passenger on a motorcycle, motor-driven cycles, or motorized bicycle if the driver or any passenger is not wearing a safety helmet as required by subdivision (a).

"(d) This section applies to persons who are riding on motorcycles, motor-driven cycles, or motorized bicycles operated on the highways.

"(e) For the purposes of this section, 'wear a safety helmet' or 'wearing a safety helmet' means having a safety helmet meeting the requirements of Section 27802 on the person's head that is fastened with the helmet straps and that is of a size that fits the wearing person's head securely without excessive lateral or vertical movement.

"(f) In enacting this section, it is the intent of the Legislature to ensure that all persons are provided with an additional safety benefit while operating or riding a motorcycle, motor-driven cycle, or motorized bicycle." (Stats.1991, ch. 32, § 1.)

Section 27802 provides:

"(a) The department may adopt reasonable regulations establishing specifications and standards for safety helmets offered for sale, or sold, for use by drivers and passengers of motorcycles and motorized bicycles as it determines necessary for the safety of those drivers and passengers. The regulations shall include, but are not "(b) No person shall sell, or offer for sale, for use by a driver or passenger of a motorcycle or motorized bicycle any safety helmet which is not of a type meeting requirements established by the department."

limited to, the requirements imposed by Federal Motor Vehicle Safety Standard No. 218 (49 C.F.R. Sec. 571.218) and may include compliance with that federal standard by incorporation of its requirements by reference. Each helmet sold or offered for sale for use by drivers and passengers of motorcycles and motorized bicycles shall be conspicuously labeled in accordance with the federal standard which shall constitute the manufacturer's certification that the helmet conforms to the applicable federal motor vehicle safety standards.

Department as used in section 27802 refers to the Department of the California Highway Patrol. (§§ 290, 24000.)

In his verified second amended petition for writ of mandate, Bianco alleges that he purchased a helmet manufactured by E & R Fiberglass with the intent to comply with the helmet law. The helmet bore a U.S. Department of Transportation (DOT) self-certification sticker applied by the manufacturer.

In April 1992, at the direction of the National Highway Traffic Safety Administration (NHTSA), ² two independent testing laboratories prepared reports on whether the E & R Fiberglass's beanie motorcycle helmet met the Federal Motor Vehicle Safety Standard Number 218 (FMVSS 218). Each of the laboratory reports showed the helmet failed to meet the requirements of FMVSS 218. The NHTSA sent copies of the test reports to the CHP.

On June 1, 1992, the CHP issued an information bulletin (Bulletin No. 34) that read as follows:

"The California Highway Patrol (CHP) is disseminating this information to California law enforcement agencies because of the wide spread use of an unapproved motorcycle helmet.

"The CHP received several inquiries regarding a 'Beanie' helmet manufactured by E & R Fiberglass of Tacoma, Washington. Although the manufacturer was selling the helmet as U.S. Department of Transportation (DOT) approved, there was a concern that the helmet did not actually meet the minimum DOT standards (FMVSS 218). As a result, the DOT was requested to test the helmet to verify compliance with the standards.

"The DOT has completed its testing of the helmet and stated that the helmet failed to meet minimum standards as required by California Vehicle Code (CVC) Section 27802. The DOT is currently in the process of conducting an investigation regarding the selling of these helmets as an approved type. It is unknown, at this time, whether DOT will issue a safety recall or if the manufacturer will be directed to recall the helmets.

"Effective immediately the helmet may no longer be sold as DOT approved. However, the CHP has been informed that the helmet manufacturer will continue to sell the helmet in California as a novelty helmet.

"The CHP will issue citations to individuals wearing the E & R helmet for violation of CVC Section 27803. Officers have been directed to refer individuals with questions to the location where the helmet was purchased.

"A pass-out that was developed to assist you in identifying these unapproved helmets is attached. Additionally, a copy of a pass-out depicting common approved helmet styles is attached. This information has been very helpful to CHP officers and may be useful to your officers or deputies...."

After the issuance of Bulletin No. 34, Bianco, while wearing the E & R Fiberglass helmet, was cited twice by the CHP for violating section 27803. (On April 4, 1993, Bianco received a third CHP citation for violating the helmet law as alleged in his verified "Cross-Complaint for Declaratory and Injunctive Relief" filed April 8, 1993.)

In a June 10, 1992, letter to the NHTSA, the business manager of E & R Fiberglass, stated the firm's intention to comply with NHTSA's request to recall the beanie helmets.

On August 19, 1992, NHTSA issued a Consumer Advisory press release that announced the recall of the beanie helmets by E & R Fiberglass.

On April 29, 1993, the trial court held a hearing on Bianco's second amended petition for writ of mandate in which the parties presented testimony and documentary evidence and argued their respective positions. The following day, the trial court issued its decision by minute order (1) denying Bianco's petition for writ of mandate, (2) striking Bianco's cross-complaint and (3) denying his motion for evidentiary and monetary sanctions.

On May 17, 1993, the trial court signed a "Judgment Denying Petition for Writ of Mandate" in which the court made the following findings:

"1. In accordance with the authority of § 1392(d) of the Traffic and Motor Vehicle Safety Act (hereinafter 'the Act') enacted by Congress in 1966, while states are limited by the 'supremacy clause' within the Act from establishing or continuing in effect any motorcycle helmet safety standard that is not identical to the Federal standard, no State is prevented or prohibited from enforcing any safety standard which is identical to a Federal safety standard.

"2. Pursuant to California Vehicle Code §§ 26103, 27802, 27803 and Title 13 § 982 of the California Code of Regulations, in enacting its own motorcycle helmet laws California has in fact enacted the identical Federal motorcycle helmet safety standard found in Federal Motor Vehicle Safety Standard 218 (hereinafter 'FMVSS 218') (49 C.F.R. § 571.218).

"3. In accordance with the terms of the Act, although in the first instance manufacturers are authorized, indeed required before sale, to self-certify that their helmets meet the standard of FMVSS 218, that self-certification creates only a rebuttable presumption that such helmets meet FMVSS 218.

"4. In accordance with provisions of the Act, that presumption may be rebutted by a determination of non-compliance issued by the National Highway Transportation Safety Administration (hereinafter 'NHTSA') of the Department of Transportation, by a manufacturer recall of its product, or by any other competent objective evidence which establishes that in fact a given manufacturer's helmet does not meet the safety standards of FMVSS 218.

"5. In the present case although the E & R fiberglass beanie helmet at issue did have a self-certification sticker, the presumption created thereby was rebutted both by E & R's own agreement to recall its helmets and by competent objective evidence from two independent laboratory tests commissioned by NHTSA to examine numerous E & R fiberglass beanie helmets.

"6. Uncontradicted evidence from both sets of independent laboratory tests showed that the E & R fiberglass beanie helmet failed five of six major areas of testing, including minimum impact absorption requirements, penetration resistance requirements, and retention requirements.

"7. Based on this competent objective evidence the California Highway Patrol was and is entitled to...