In re Firearm Cases

• Decision Date: 10 February 2005
• Docket Number: No. A103211.,No. A105309.,A103211.,A105309.
• Citation: 126 Cal.App.4th 959,24 Cal.Rptr.3d 659
• Court: California Court of Appeals Court of Appeals
• Parties: In re FIREARM CASES. The People, Plaintiffs and Appellants, v. Arcadia Machine & Tool, Inc., et al., Defendants and Respondents. [And two other cases.].<SMALL><SUP>*</SUP></SMALL>

24 Cal.Rptr.3d 659

126 Cal.App.4th 959

In re FIREARM CASES.

The People, Plaintiffs and Appellants, v. Arcadia Machine & Tool, Inc., et al., Defendants and Respondents.

[And two other cases.].^*

No. A103211.

No. A105309.

Court of Appeal, First District, Division 1.

February 10, 2005.

William S. Lerach, Frank J. Janecek, Jr., Michael J. Dowd, Jonah H. Goldstein, San Diego, Patrick J. Coughlin, Ex Kano Sams II, San Francisco, Jason T. Baker, San Jose, Lerach Coughlin Stoia Geller Rudman & Robbins, San Diego, Rockard J. Delgadillo, City Attorney, Don Kass, Deputy City Attorney, City of Los Angeles, Dennis A. Henigan, Brian J. Siebel, Washington, DC, Daniel R. Vice, Brady Center to Prevent Gun Violence, Robert J. Nelson, Richard M. Franco, Lieff, Cabraser, Heimann & Bernstein, San Francisco, Michael Jenkins, City Attorney, Sayre Weaver; Dennis J. Herrera, City Attorney, Owen J. Clements, Chief of Special Litigation Kristine A. Poplawski, Deputy City Attorney, Ingrid M. Evans, Deputy City Attorney, City of San Francisco, Lloyd W. Pellman, County Counsel, Lawrence Lee Hafetz and Judy W. Whitehurst, Deputy County Counsel, County of Los Angeles, Samuel L. Jackson, City Attorney, Gustavo L. Martinez, Deputy City Attorney, City of Sacramento, Manuela Albuquerque, City Attorney, Matthew J. Orebic, Deputy City Attorney, City of Berkeley, Thomas F. Casey, III, County Counsel, Brenda B. Carlson, Deputy County Counsel, County of San Mateo, Richard E. Winnie, County Counsel, Rose Kwiatkowski, Assistant County Counsel, County of Alameda, John A. Russo, City Attorney, Randolph W. Hall, Assistant City Attorney, J. Patrick Tang, Deputy City Attorney, City of Oakland, Michael S. Lawson, Thompson, Lawson LLP, Legrand H. Clegg II, City Attorney, Celia Francisco, Deputy City Attorney, City of Compton, Emmerline Foote, Interim City Attorney, City of Inglewood. for Appellant, The People ex rel. Rockard J. Delgadillo as City Attorney et al.

Lawrence S. Greenwald, Catherine A. Bledsoe, Cynthia A. Shay Margaret W.

Tindall, Gordon, Feinblatt, Rothman, Hoffberger & Hollander, LLC, Baltimore, MD, Craig A. Livingston, Kymberly E. Speer, Livingston Law Firm, Walnut Creek, for Respondents Beretta U.S.A. Corp. and Fabbrica D'Armi Pietro Beretta S.p.A.

Roy A. Koletsky, Susan L. Caldwell, Douglas E. Kliever, Koletsky, Mancini, Feldman & Morrow, Los Angeles, for Respondents National Shooting Sports Foundation, Inc. and Sporting Arms and Ammunition Manufacturers' Institute, Inc.

James P. Dorr, James B. Vogts, Sarah L. Olson, Aimee B. Anderson Wildman, Harrold, Allen & Dixon, Chicago, IL, Lawrence J. Kouns, Richard R. Spirra Luce, Forward, Hamilton & Scripps, San Diego, for Respondent Strum, Ruger & Company.

C.D. Michel, Trutanich-Michel, for Respondents B & B Group, Inc. and S.G. Distributing Co.

Denis J. Moriarty, Haight, Brown & Bonesteel, Los Angeles, William M. Griffen III Jonann E. Coniglio, Friday, Eldredge & Clark, for Respondent Browning Arms Company.

Friedrich W. Seitz, Murchison & Cumming, Los Angeles, for Defendant and Respondent Carl Walther GmbH.

Robert C. Wright, Laurie E. Barber, Wright & L'Estrange, San Diego, Thomas E. Fennel, Jones Day, New York, NY, for Respondent Colt's Manufacturing Company, Inc.

Alan J. Lazarus, Drinker Biddle & Reath, San Francisco, for Respondent Ellett Brothers, Inc.

Steven A. Silver, Law Offices of Steven A. Silver, Porterville, for Respondent Excel Industries, Inc.

Denis J. Moriarty, Haight, Brown & Bonesteel, Los Angeles, John F. Renzulli, Renzulli, Pisciotti & Renzulli, New York, NY, for Respondents Glock, Inc., Hi-Point Firearms, H & R 1871, Inc., and Kel-Tec CNC Industries, Inc.

Charles L. Coleman, III, Holland & Knight, San Francisco, for Respondent Heckler & Koch, Inc.

Raymond J. Liddy, Selman Breitman LLP, San Diego, for Respondent International Armament Corporation.

Christopher L. Rudd, Frank Sandelmann, Jon-Jamison Hill, Gorry, Meyer & Rudd, Los Angeles, for Respondent National Gun Sales.

John A. Gladych, Gladych & Associates, Newport Beach, for Respondent North American Arms, Inc.

Denis J. Moriarty, Haight, Brown & Bonesteel, Los Angeles, Michael J. Zomcik, Tarics & Branisa, Houston, TX, for Respondent Phoenix Arms.

Wayne A. Wolff, Sedgwick, Detert, Moran & Arnold, San Francisco, for Respondent RSR Wholesale Guns, Inc.

Robert M. Anderson, Los Angeles, Robert L. Joyce, Wilson, Elser, Moskowitz, Edelman & Dicker, New York, NY, for Respondent Sigarms, Inc.

George J. Berger, Allen Matkins Leck Gamble & Mallory, San Diego, Jeffrey S. Nelson, Shook, Hardy & Bacon, Kansas City, MO, for Respondent Smith & Wesson Corp.

Denis J. Moriarty, Haight, Brown & Bonesteel, Los Angeles, Timothy A. Bumann, Bridgette E. Eckerson, Budd, Larner, Atlanta, GA, for Respondent Taurus International Manufacturing Inc., and Forjas Taurus S.A.

Harvey M. Grossman and James M. Beck for Product Liability Council, Inc. as Amicus Curiae on behalf of Defendant and Respondent Manufacturers.

Hugh F. Young, Jr., for Product Liability Advisory Council, Inc., as Amicus Curiae

on behalf of Defendant and Respondent Manufacturers.

MARCHIANO, P.J.

A number of California cities and counties filed an action on behalf of the general public against manufacturers, distributors and retailers of handguns and their trade associations, asserting that their conduct of distributing firearms in a manner that enables criminals to acquire the firearms constituted a public nuisance and a pattern of unlawful, unfair and deceptive business acts and practices in violation of the unfair competition law (UCL), Business and Professions Code sections 17200 and 17500.¹ On March 7, 2003, the superior court considered several separate dispositive motions. It granted judgment on the omnibus motion for summary judgment brought by various gun manufacturers, distributors and trade associations.² Plaintiffs appealed. We affirm because of plaintiffs' failure to establish a causal connection between the alleged unfair practices and the harm, as we explain below.

BACKGROUND

In 1999, the city attorneys of several jurisdictions, including the Cities of San Francisco, Berkeley, Sacramento, and the Counties of San Mateo and Alameda, filed an unfair business practices and nuisance action on behalf of the general public in San Francisco Superior Court against a large number of manufacturers and distributors of handguns and three trade associations, alleging that the defendants marketed and distributed handguns in violation of the UCL.³ (People et al. v. Arcadia Machine & Tool, Inc., et al. (Super. Ct. S.F. City and County, 1999, No. 303753).) In the same year, the city attorneys of Los Angeles, Compton, Inglewood, West Hollywood and the mayors of the cities of Inglewood and West Hollywood filed a similar action in Los Angeles Superior Court. (People et al. v. Arcadia Machine & Tool et al. (Super. Ct. L.A. County, 1999, No. BC210894).)⁴ Later that year, the County of Los Angeles and three county supervisors filed a third similar action in Los Angeles County Superior Court.⁵ (People ex rel. County of Los Angeles v. Arcadia Machine & Tool et al. (Super. Ct. Los Angeles County, 1999, No. BC214794).) The complaints sought declaratory and injunctive relief, disgorgement, restitution and civil penalties.

In February of 2000, the Superior Court of San Diego County granted a petition for coordination. The coordinated cases were combined in Judicial Council Coordination Proceeding No. 4095, entitled "Firearm Cases" and assigned to the superior court in San Diego. This appellate district was designated as the reviewing court with appellate jurisdiction.

The complaints in the three coordinated actions generally alleged that the defendants market, distribute, promote and design handguns in a manner that facilitates the use of the weapons to commit violent crime, fails to incorporate safety features, deceives the public about the dangers of firearms, circumvents federal, state and local laws and creates a public nuisance. Plaintiffs characterized their case as one that sought civil penalties and injunctive relief for the selling of guns to retail dealers that supplied the illegal black market with firearms. Plaintiffs contended that they possessed evidence showing that each defendant repeatedly sold its guns to "high-risk" retail dealers who were associated with large quantities of guns that were traced by law enforcement authorities as having been used in crimes.⁶

In early 2001, defendants moved for an order compelling the plaintiffs to disclose facts supporting their claims. On March 26, 2001, the court granted the request and ordered plaintiffs to disclose evidence reflecting how criminals and others acquired the firearms manufactured and/or sold by defendants and whether the manner of acquisition had a factual nexus to defendants' alleged conduct.

Following multiple disagreements over discovery matters, certain defendants, including Beretta U.S.A. Corp. and Sturm, Ruger & Company, Inc., moved for an order precluding evidence that defendants' conduct caused the acquisition of firearms by criminals. The preclusion request was based on plaintiffs' failure to produce documents to support their sales and distribution theories of liability. Plaintiffs responded that they were not required to link a specific instance to a particular defendant and proposed to prove their case with expert testimony based on statistical studies of illegal gun purchases. The court denied the motion, but noted that without access to the evidentiary foundation for expert testimony, the expert opinions would be nothing more than policy arguments.

Manufacturer, distributor and retailer defendants renewed their arguments in a summary judgment motion.⁷ The motion was based on the arguments that plaintiffs could not establish a causal connection between defendants' business practices and the acquisition of firearms by criminals, and that expert opinion could not be substituted for...