December 2, 2022 – California recently enacted a statute intended to prevent lawsuits challenging state and local statutes restricting firearms through an onerous attorney’s fees provision. Thus, not only does California continue to enact unconstitutional laws restricting its citizens from exercising their Second Amendment constitutional rights, but it is now trying to punish those that challenge those laws in court. Cal. Code Civ. Proc. § 1021.11(a) states, in relevant part, that:

any person, including an entity, attorney, or law firm, who seeks declaratory or injunctive relief to prevent this state, a political subdivision, a governmental entity or public official in this state, or a person in this state from enforcing any statute, ordinance, rule, regulation, or any other type of law that regulates or restricts firearms, or that represents any litigant seeking that relief, is jointly and severally liable to pay the attorney’s fees and costs of the prevailing party. 

Pursuant to Section 1021.11, the person or entity challenging the law restricting firearms can never be considered the prevailing party.  The government defendant is considered to be the prevailing party unless the challenger prevails on each and every claim raised.
On September 26, 2022 firearms rights groups filed a lawsuit challenging the constitutionality of Section 1021.11.  Plaintiffs allege that this statute violates the U.S. Constitution and that it “seeks to suppress firearms-related litigation.” The plaintiffs are seeking declaratory judgment that the statute is unconstitutional and requested a preliminary injunction enjoining enforcement or application of its fee-shifting penalty.
The California Attorney General filed a response in opposition to plaintiffs’ motion requesting a preliminary injunction, arguing that the State will not seek attorney’s fees or costs under this provision, “unless and until a court ultimately holds that the fee-shifting provision in [a similar Texas law provision] is constitutional and enforceable…” He therefore claimed that the case is moot due to a lack of a live controversy, and should be dismissed.    
Yesterday, Judge Roger T. Benitez issued a decision rejecting the Attorney General’s attempt to have this case dismissed. He held that the Attorney General’s commitment not to enforce the statute is ambiguous and reversible. He further held that plaintiffs have suffered injuries caused by the statute because they had dismissed pending lawsuits challenging California laws restricting firearms because of the risk of fees and costs that could be imposed by virtue of the statute.
Judge Benitez scheduled a hearing on plaintiffs’ motion for a preliminary injunction for December 16, 2022, which will also be a consolidated bench trial on the merits of plaintiffs’ complaint.
Renzulli Law Firm, LLP will continue to monitor and report on this case, as well as new and developing firearms legislation and regulations around the country. If you have any questions concerning firearms related legislation or regulations, please contact John F. Renzulli or Christopher Renzulli.