The opinion
Filed 2/4/25 Soto v. Walmart CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
LAURA SOTO, et al.,
F086202
Plaintiffs and Appellants,
(Super. Ct. No. VCU282959)
v.
WALMART, INC., OPINION
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Tulare County. David C.
Mathias, Judge.
The Wagner Law Group, James M. Makasian and Nicholas J.P. Wagner; Law
Office of Mark Schallert and Mark Schallert, for Plaintiffs and Appellants.
Sims, Lawrence & Broghammer, Bradley R. Larson and Michael Richardson, for
Defendant and Respondent.
-ooOoo-
Gustavo Garcia stole several boxes of nine–millimeter ammunition from a
Walmart store and went on a crime and murder spree that resulted in the deaths of two
individuals, including Rolando Soto, Sr. (decedent).
Appellants/plaintiffs are decedent’s spouse, Laura Soto, and the couples’ three
children, Rolando Soto, Jr., Yvette Soto, and Klarissa Soto (collectively, plaintiffs).1
Plaintiffs sued Walmart, Inc. (Walmart) alleging it negligently stored the ammunition in
violation of Penal Code section 30350 and related regulations. As a result, they contend
Garcia was able to access the ammunition without the assistance of a Walmart associate
and steal it. They contend Walmart’s negligence allowed Garcia to obtain the means by
which he murdered decedent, and that Walmart’s negligence proximately caused
decedent’s death.
The case was tried before the trial court sitting without a jury. The court found in
favor of Walmart on all causes of action and judgment was entered accordingly.
Plaintiffs appeal.
While we understand the tragic circumstances of decedent’s death and the
profound loss to his family, the law and facts of this case do not support the relief
requested by appellants/plaintiffs. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
I. Garcia’s Theft of Ammunition
On December 16, 2018, at approximately 12:26 p.m., Garcia entered a Walmart
store located in Tulare County, California, and proceeded to the Sporting Goods
Department where firearm ammunition was on display in three adjacent cases. The
display cases were each made of metal framing and each were fronted by two glass doors
on a track rail system. Walmart used a ratchet lock to keep the glass doors from opening.
The ratchet lock was in the locked position on the date and time in question.2
1 Decedent’s spouse, Laura Soto brought suit against Walmart, Inc. in her
individual capacity and as guardian ad litem for Rolando Soto, Jr. and Yvette Soto.
Klarissa Soto joined the lawsuit in her individual capacity.
2 The record on appeal includes a digital video of one of Walmart’s ammunition
display cases and a Walmart asset protection associate, Nyna Johnson, demonstrating
how the locking mechanism is unlocked, and how the glass doors slide. The video was
2.
Jacob Gomez was at the Walmart with his brother Brian Riley Gomez
(collectively, the Gomez brothers) when Garcia arrived at the ammunition display case.
Both brothers testified that, although the glass doors of the case were locked, Garcia was
able to manipulate and maneuver the glass doors of the left-most case enough to create a
gap that allowed him to gain access to the ammunition. The witnesses were uncertain
how Garcia accomplished this but both offered their impression that Garcia had been able
to get one or both of the glass doors to come off of their track railings. Jacob Gomez
testified Garcia would not have been able to get inside the display case unless he torqued
or tweaked it in some manner.
Jacob Gomez was asked to view a photograph3 and to state whether there was a
“gap between the glass and the panel there, like depicted in that photo?” He responded:
“I can’t tell you if I remember that gap was there specifically…. [W]here the lock meets
in the middle there is a gap that you can shove, you know, a pinky in if you wanted to.”
He was asked, “[d]id you observe there was actually a gap on the leftmost side of this
cabinet that he somehow managed to put his fingers in it?” he responded, “I did not
observe a gap big enough for him to put his fingers in on that specific day.” He was
taken in December of 2018 or the following January. Ms. Johnson could not recall
whether the display case depicted was the same case Garcia breached, but she indicated it
was “essentially the same in terms of the design, configuration, the placement of the
locks, all of those things.”
Another digital video depicting Walmart’s ammunition display cases was admitted
into evidence. The video was taken in January 2019. The video was designated as part
of the record on appeal but the storage device containing the exhibit and in possession of
the trial court was corrupted and not viewable. Pursuant to this court’s order issued on
October 28, 2024, the trial court received a replacement video and stipulation from the
parties stating the replacement video is “a true copy of the digital video that was played
during trial,” and authorizing its use in lieu of the corrupted digital video. In compliance
with said order, the replacement video and stipulation were certified by the Tulare
County Clerk and transmitted to this court as an augmented clerk’s transcript.
3 The photograph was not identified in the record.
3.
asked by plaintiffs’ counsel to demonstrate for the court “exactly how … Garcia took the
ammunition out of the cabinet.” The court instructed the witness, “just do it with your
hands and I’ll get the visual.” Presumably, the witness complied but the visual
representation was not described on the record.
Brian Riley Gomez testified Garcia attempted to tamper with the ratchet lock on
the display case and, ultimately, “made the decision to just kind of push [the glass door]
off the railing system and slide it over to be able to grab the boxes of ammunition.” He
testified there was “a small margin of — like, a gap in between where the glass meets the
metal” that was approximately “an inch to two inches wide” on the left side.4 When
asked if there was a gap on the right side, he responded, “[f]rom what I remember, yes, I
do believe so, but obviously I can’t recall that event. It was so long ago.” When asked if
Garcia was able to make the gap bigger by pushing the glass, he responded, “Yeah, so
basically like I said, he just kind of manipulated the glass to where he was able to move it
to the right[.]”
Both Gomez brothers estimated that, after Garcia inspected and assessed the
ammunition display case and its locking mechanism, it took him less than 30 seconds to
gain access to the ammunition once he began maneuvering the glass doors and got them
to move enough to retrieve the ammunition. As a result, Garcia was able to retrieve and
steal two or three boxes of Winchester nine-millimeter rounds. The brothers reported the
theft to Walmart associate George Souza, the employee in charge of the ammunition
stock.
4 Brian Riley Gomez testified he met with plaintiffs’ counsel and reviewed a video
depicting the Walmart aisle and display cases—presumably not taken on the day of the
event—that depicted the left-most display case with a one to two inch gap between that
glass panel and the side of the display. He testified the video was identical to the
condition of the display case on the day of Garcia’s theft.
4.
None of the security cameras at Walmart captured Garcia breaching the
ammunition display case but security cameras at the store entrance and exit show Garcia
was in the store for approximately 11 minutes total, and left the store at approximately
12:37 p.m.
At or about 1:12 p.m., approximately 35 minutes after he left Walmart, Garcia
shot an individual in a field in Exeter, California, some 20 miles from the Walmart store.
Approximately eight minutes later, at about 1:20 p.m., Garcia performed an armed
robbery at a convenience store approximately two miles from the Exeter field, and
discharged his firearm in the process. Roughly two hours later, at about 3:20 p.m.,
Garcia shot and killed decedent who was standing in his yard. Winchester nine-
millimeter bullet casings were found at the location of each shooting. After that, Garcia
went on to kill another victim.
On December 17, 2018, the day after he stole ammunition from Walmart, Garcia
was involved in a high speed car chase by law enforcement and crashed his vehicle. He
got into a shootout with Tulare County sheriffs and eventually fled on foot leaving his car
behind. At least two boxes containing an unspecified number of unspent Winchester
nine-millimeter rounds were found in Garcia’s car. Garcia then carjacked another vehicle
and fled with sheriffs in pursuit. Garcia crashed this vehicle in a violent traffic accident
and later died.
One witness, Annabelle Piedra, testified she had purchased a box of ammunition
for Garcia at his request just one day prior to his theft of ammunition from Walmart.
Piedra testified Garcia needed her to purchase the ammunition for him because he did not
have a valid identification card. Notwithstanding, Walmart concedes the bullets Garcia
used to murder decedent were bullets Garcia had stolen from the Tulare Walmart store.
5.
II. Select Additional Witness Testimony
A. Testimony of Walmart Personnel
Jennifer Rodriguez, a Walmart asset protection (AP) associate whose duties
involved conducting security for the store, testified it was Walmart’s requirement and
practice to have AP associates do a “security tour” of the entire store at the beginning of
their shift. She was not on duty when Garcia breached the ammunition display case, but
supervised and trained the AP associate who was on duty that day, Nyna Johnson.
Ms. Rodriguez said an AP associate’s routine begins with the associate checking emails
to see if anything was reported requiring immediate attention. Then the AP associate
does a “general controls tour” which includes, without limitation, looking for safety
issues including checking the security at registers, checking the locks on all locked
displays, and ensuring floors and stacked merchandise were clear of hazards. She
testified that checking the ammunition display cases is a regular part of a security tour.
Jennifer Rodriguez testified she never saw anyone try to avoid the locking system
on the ammunition display case as Garcia was described to have done, never saw
evidence that anyone tampered with the display case prior to the date of the incident, and
never encountered a situation where the display case was not locked.
Nyna Johnson, the AP associate on duty when Garcia broke into the ammunition
display case, testified that she performed a tour of the store on the morning of the day in
question and checked the ammunition cases as part of her regular routine, and that there
was no problem with the locks on the cases that morning. Had she discovered a problem
with the display case lock, she said she would have remained by the display case and
would have called management to bring her a replacement lock and fixed the issue. She,
too, was unaware of any prior incidents involving a breach of the ammunition display
cases.
Tim Hart, Walmart’s corporate merchandizing director for shooting sports,
described the process by which the ammunition display cases were designed and
6.
approved. He testified he had various suppliers make prototypes of the cases and bring
them to Walmart’s home office in Bentonville, Arkansas. He testified, “We would have
a team of different people review those, make suggestions, engineers. We have ATF
compliance review those. Our [AP] people are there, ops people, legal. So there’s
several people that are in these groups that review these fixtures.” When asked whether
he researches and takes into account the regulations of the various states on ammunition
displays, he responded, “Yes. And then I have a team—I have a team that works with us
from the ATF. We have an ATF compliance team that helps us with regulations and
laws. And then we have an ops team that helps us as well when we make those
decisions.” Mr. Hart testified the fixtures are designed to deter theft but are not theft
proof.
B. Testimony of Plaintiffs, Plaintiffs’ Experts, and Law Enforcement
Decedent’s spouse, Laura Soto, and the couple’s three children each testified as to
their relationship with decedent as a husband and father and as to their loss upon his
tragic demise. Plaintiffs also offered testimony from several expert witnesses and two
police sergeants who testified as to the details of Garcia’s crime and murder spree, and
largely tied the bullet casings retrieved from the various crime scenes to the ammunition
Garcia stole.
The testimony of plaintiffs and the aforementioned witnesses is largely
uncontradicted. As mentioned, Walmart has conceded that the ammunition used to
murder decedent was the same ammunition Garcia stole from Walmart.
C. Competing Testimony of the Parties’ Firearm/Ammunition Experts
1. Plaintiffs’ Expert
Plaintiffs’ expert, Jacob Paul Belemjian, the owner of a shooting range and a state
and federally licensed firearm dealer and ammunition seller, testified that California law
7.
provides “ammunition cannot be accessible to the public without the assistance of a sales
associate”—a reference to the text of section 30350 of the Penal Code,5 which reads:
“An ammunition vendor shall not sell or otherwise transfer ownership of,
offer for sale or otherwise offer to transfer ownership of, or display for sale
or display for transfer of ownership of any ammunition in a manner that
allows that ammunition to be accessible to a purchaser or transferee without
the assistance of the vendor or an employee of the vendor.” (§ 30350.)
Belemjian opined that Walmart’s displayed ammunition stock was not in a
“locked container” as required by section 4262 of title 11 of the California Code of
Regulations (hereafter, “regulation 4262”), which provides:
“Pursuant to Penal Code section 30350, ammunition shall not be displayed
for sale or transfer in a manner that allows that ammunition to be accessible
to a purchaser or transferee without the assistance of the vendor or an
employee of the vendor. Ammunition displayed in a shopping area open to
the public is not considered “accessible” provided it is in a locked container
(e.g. display case, cabinet, cage).” (11 C.C.R. § 4262.)
Belemjian opined that regulation 4262 requires ammunition display cases be “fully
enclosed” and that Walmart’s ammunition display cases “obviously” were not fully
enclosed because Garcia was able to gain access to the ammunition.
Belemjian testified that California law on the subject of storing ammunition in
display cases is vague but that guidance is provided by other statutes. He testified that,
“to some extent,” business owners have to come to their own decision on how to comply
with the law “based on reasonableness and the interpretation” of the law but that “it
doesn’t matter what anyone thinks is reasonable. It matters what the [Department of
Justice] says and what [their] conclusions would be when they come and actually
evaluate your facility.”6
5 All further statutory references are to the Penal Code unless otherwise stated.
6 The record on appeal does not contain any evidence that the Department of
Justice evaluated or made any determination with regard to whether Walmart’s
ammunition display cabinets complied with, or violated, the law or that Walmart was
8.
Belemjian testified he does not store his ammunition stock in display cases at his
shooting range. Rather, he stores the ammunition he sells “behind the counter.” He
acknowledged his ammunition stock “is exposed, but there is an employee that is present,
and that meets the requirements of the law.”
2. Defense Expert
Defense expert, Emanuel Kapelsohn, testified he is a federally licensed firearm
dealer and ammunition seller, and operates a consulting firm that conducts training for
police, security personnel, military, and private individuals, in the United States and
beyond. He holds a number of certifications from the Federal Bureau of Investigation,
and the National Rifle Association, related to firearms and use of force training. He
testified to having experience in “lock picking and defeating locks” and specialized
knowledge of various types of security and safety glass.
Kapelsohn testified he performed a visual and hands-on assessment of Walmart’s
ammunition display cases. He said they are of a “general type that are used throughout
the country, by Walmart for ammunition” but also by other retailers to secure high value
merchandize “that they don’t want the public to have direct access to without getting the
help of a sales employee.”
Kapelsohn further testified the ratchet lock Walmart used to keep the sliding doors
of the ammunition display cabinet closed uses a “tubular key, which makes them very,
very difficult to pick, much harder than a standard flat key lock.” He, like Belemjian,
testified a retailer need not put its ammunition on display in a locked container and,
instead, can comply with California law by keeping the ammunition behind a sales
counter, which is commonly done in California.
ever charged with a violation of section 30350 in connection with its display of
ammunition stock.
9.
Kapelsohn was of the opinion, based on both his own inspection of the
ammunition display case and the testimonies of the Gomez brothers and Nyna Johnson,
that the subject ammunition display case was “clearly a locked cabinet or locked
container” as required by regulation 4262. He testified the law does not require that the
ammunition display case be theft proof. He opined “there is no lock and no kind of
container and no bank vault in the world that someone cannot break into. It just depends
on skill and motivation and knowledge and all kinds of other things …. And it can’t mean
that it has to be hermetically sealed.” He testified there is “always the capability of
violating, of breaching that security. It’s a deterrent to theft. It’s not theft proof.”
III. Procedural Background
On May 26, 2020, plaintiffs filed suit against Walmart. On July 14, 2020,
plaintiffs filed their governing, first amended complaint alleging causes of action for
general negligence, negligence per se, and intentional tort. In addition, plaintiffs named
Walmart employee, George Souza, as a defendant in connection with the negligence
causes of action.
On December 7, 2020, Walmart and Souza filed their answer to the first amended
complaint. On October 8, 2021, the trial court granted summary adjudication in favor of
Souza on all causes of action.7
On September 19, 2022, the case against Walmart proceeded to trial. On
September 29, 2022, the parties presented their final witnesses.8 On October 21, 2022,
the parties filed simultaneous briefs to address relevant statutory interpretation issues
7 Plaintiffs do not challenge the trial court’s grant of summary adjudication in
favor of Souza.
8 The trial court kept the record open through the close of business on October 13,
2022, to give plaintiffs an opportunity to secure trial testimony from Souza. Presumably,
plaintiffs were unsuccessful in getting Souza to testify at trial since the reporters’
transcript does not contain his testimony.
10.
pertaining to the storage and retail display of ammunition. On November 2, 2022, the
parties delivered their closing arguments and the matter was taken under submission.
On December 12, 2022, the trial court issued its “(Tentative) [¶] Decision After
Trial” (unnecessary capitalization omitted). On December 28, 2022, the trial court issued
its “Decision After Trial” (unnecessary capitalization omitted). In it, the court stated that
neither party requested a statement of decision. The court determined plaintiffs’ first
cause of action for general negligence is a “ ‘qualified civil liability action’ and is barred
by the [Protection of Lawful Commerce and Arms Act].” (15 U.S.C. §§ 7901–7903
[hereafter, PLCAA].) The court further determined that plaintiffs’ second and third
causes of action (for negligence per se and intentional tort, respectively) were premised
on the contention Walmart had violated section 30350 in connection with its manner of
displaying and securing firearm ammunition and that these causes of action were not
barred by the PLCAA.
The trial court stated its ultimate findings, as follows: “…Walmart did not …
offer for sale … or display … ammunition in a manner that allowed the ammunition to be
accessible to a purchaser … without the assistance of the vendor. More specifically, …
Walmart was in compliance with … [section] 30350 at the time Garcia stole the subject
ammunition from the Tulare, [California] store. Absent the ‘violation’ element, there is
no breach of a duty or presumption of negligence. As such, Plaintiff’s second and third
causes of action fail.” As a result, the court found it unnecessary to “reach the remaining
issues presented, to include the source of the ammunition, causation and comparative
fault.”
On February 16, 2023,9 the trial court entered judgment in favor of Walmart and
against plaintiffs, and incorporated the court’s Decision After Trial into the judgment “as
if fully set forth.”
9 Subsequent references to dates are to dates in 2023 unless otherwise stated.
11.
On March 3, notice of entry of the judgment was filed and served.
On March 20, plaintiffs filed a notice of intention to move for a new trial. On
March 30, plaintiffs filed their motion for a new trial. On May 1, the trial court denied
plaintiffs’ motion for a new trial.
On May 1, plaintiffs timely filed their notice of appeal.
DISCUSSION
I. Plaintiffs’ Contentions on Appeal
Plaintiffs raise numerous contentions on appeal. They contend the trial court erred
(1) by excluding evidence that Walmart made remedial changes to the design of its
ammunition display cases following Garcia’s theft of ammunition; (2) by failing to
consider statutes that define the term “locked container,” a term used in regulation 4262;
(3) by failing to acknowledge and consider the voters’ intent in approving section 30350
(Initiative Measure, Prop. 63, § 8.12, approved Nov. 8, 2016, eff. Nov. 9, 2016); (4) by
failing to consider the statements of Walmart employees that the display case design was
defective; (5) by not excluding or striking the testimony of defense expert Kapelsohn on
grounds it was irrelevant and unsupported by substantial evidence; (6) by arriving at a
decision that is not supported by substantial evidence; and (7) by arriving at a decision
that endangers California citizens.
II. Relevant Principles of Appellate Review
On appeal, “[w]e presume the trial court’s judgment is correct, and to overcome
that presumption appellants must affirmatively establish prejudicial error by providing an
adequate record, citing to the record, and presenting a persuasive argument with citations
to supportive legal authorities.” (LNSU #1, LLC v. Alta Del Mar Coastal Collection
Community Association (2023) 94 Cal.App.5th 1050, 1070.) “We will indulge all
intendments and presumptions to support the judgment on matters as to which the record
is silent.” (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 299, 267.)
12.
When no statement of decision is issued, or when a statement of decision is issued
but the parties fail to object “to any ambiguities or omissions in it, the doctrine of implied
findings applies. ‘The doctrine of implied findings requires the appellate court to infer
the trial court made all factual findings necessary to support the judgment. [Citation.]
The doctrine is a natural and logical corollary to three fundamental principles of appellate
review: (1) a judgment is presumed correct; (2) all intendments and presumptions are
indulged in favor of correctness; and (3) the appellant bears the burden of providing an
adequate record affirmatively proving error.’ ” (County of Orange v. Barratt American,
Inc. (2007) 150 Cal.App.4th 420, 438–439; Thompson v. Asimos (2016) 6 Cal.App.5th
970, 983.)
To the extent we are called upon to engage in statutory interpretation, such matters
present questions of law subject to de novo review. (General Atomics v. Superior Court
(2021) 64 Cal.App.5th 987, 993.) “ ‘As in any case involving statutory interpretation,
our fundamental task here is to determine the Legislature’s intent so as to effectuate the
law’s purpose.’ ” [Citation.] ‘We begin with the plain language of the statute, affording
the words of the provision their ordinary and usual meaning and viewing them in their
statutory context, because the language employed in the Legislature’s enactment
generally is the most reliable indicator of legislative intent.’ [Citations.] The plain
meaning controls if there is no ambiguity in the statutory language. [Citation.] If,
however, ‘the statutory language may reasonably be given more than one interpretation,
“ ‘ “courts may consider various extrinsic aids, including the purpose of the statute, the
evils to be remedied, the legislative history, public policy, and the statutory scheme
encompassing the statute.” ’ ” ’ ” (People v. Cornett (2012) 53 Cal.4th 1261, 1265.)
“Interpretation of an administrative regulation… is [also] a question of law which rests
with the courts.” (American Hospital Supply Corp. v. State Bd. of Equalization (1985)
169 Cal.App.3d 1088, 1092.)
We discuss additional standards of review below where necessary.
13.
III. Plaintiffs Do Not Challenge the Determination Their General Negligence
Cause of Action Is Barred by the PLCAA
Plaintiffs do not challenge the trial court’s determination that their first cause of
action for general negligence is barred by the PLCAA. We briefly discuss the PLCAA
and the effect of the court’s determination below.
Federal law provides, in relevant part: “A qualified civil liability action may not
be brought in any Federal or State court.” (15 U.S.C. § 7902, subd. (a).) As is relevant to
the case before us, “[t]he term ‘qualified civil liability action’ means a civil action …
brought by any person against a … seller of a qualified product … for damages, … or
other relief, resulting from the criminal or unlawful misuse of a qualified product by the
person or a third party, but shall not include—[¶] … [¶] (ii) an action brought against a
seller for … negligence per se; [¶] [or] (iii) an action in which a … 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, subds. (5)(A)(ii) & (iii), italics added.) Ammunition is a
“qualified product” under the PLCAA. (Id., at subd. (4).)
As stated by the trial court, “[a]bsent the ‘violation’ element, there is no breach of
a duty or presumption of negligence.” At trial, and on appeal, plaintiffs have premised
their surviving causes of action on their contention Walmart violated section 30350.
IV. The Trial Court’s Exclusion of Evidence of Remedial Measures
A. Application of Evidence Code Section 1151 to Claims of Negligence Per Se
Plaintiffs contend the trial court erred by excluding evidence Walmart made
remedial changes to the design of its ammunition cases following Garcia’s theft of
ammunition. The court excluded the evidence under Evidence Code section 1151.
Plaintiffs contend Evidence Code section 1151 has no application to claims
premised on a negligence per se theory. Neither party has cited any case law directly on
point. Instead, plaintiffs argue negligence per se claims are similar to strict liability
14.
claims and that Evidence Code section 1151 does not apply to claims premised on a
theory of strict liability—citing Ault v. International Harvester Co. (1974) 13 Cal.3d 113
(Ault). We do not find plaintiffs’ argument persuasive.
Evidence Code section 1151 reads, as follows:
“When, after the occurrence of an event, remedial or precautionary
measures are taken, which, if taken previously, would have tended to make
the event less likely to occur, evidence of such subsequent measures is
inadmissible to prove negligence or culpable conduct in connection with
the event.” (Evid. Code, § 1151.)
The plain language of the statute is unambiguous that subsequent remedial measures
cannot be used to prove negligence or culpable conduct.
Plaintiffs do not expressly contend Evidence Code section 1151 is ambiguous.
Instead, they seek to draw a distinction between claims based on a general negligence
theory and those based on negligence per se. Any distinction that may be drawn,
however, is insufficient to render the term “negligence” ambiguous. As discussed below,
a claim based on a negligence per se theory still falls within the scope of a negligence
cause of action.
“The negligence per se doctrine is codified in Evidence Code section 669, under
which negligence is presumed if the plaintiff establishes four elements: (1) the defendant
violated a statute, ordinance, or regulation of a public entity; (2) the violation proximately
caused death or injury to person or property; (3) the death or injury resulted from an
occurrence of the nature of which the statute, ordinance, or regulation was designed to
prevent; and (4) the person suffering the death or the injury to his person or property was
one of the class of persons for whose protection the statute, ordinance, or regulation was
adopted. The first two elements are normally questions for the trier of fact, while the
latter two elements are determined by the trial court as a matter of law.” (Galvez v.
Frields (2001) 88 Cal.App.4th 1410, 1420 (Galvez), italics added.)
15.
“Negligence per se is an evidentiary doctrine, rather than an independent cause of
action. [Citation.] It can be applied generally to establish a breach of due care under any
negligence-related cause of action.” (Jones v. Awad (2019) 39 Cal.App.5th 1200, 1210,
italics added.) “Where the doctrine of negligence per se is applicable, the standard of
conduct established by a relevant statute or ordinance is adopted as the duty of care for
purposes of a negligence cause of action. [Citation.] In such cases, where the statute or
ordinance is violated, the doctrine creates a rebuttable presumption of negligence.
(Epochal Enterprises, Inc. v. LF Encinitas Properties, LLC (2024) 99 Cal.App.5th 44, 58
(Epochal), italics added.) “Negligence per se is a way to establish ordinary negligence
by tying the standard of care to a specific ‘statute, ordinance, or regulation of a public
entity.’ ” (Ibid., italics added; Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th
1256, 1285–1286.)
Thus, the only distinction between a negligence claim and a negligence claim that
relies on the doctrine of negligence per se is the manner by which the claim is proved.
Negligence per se is still ordinary negligence. (Epochal, supra, 99 Cal.App.5th at p. 58.)
Consequently, we conclude the plain language of Evidence Code section 1151 is
unambiguous and its plain language encompasses claims based on a theory of negligence
per se.10 The trial court did not err.
10 Moreover, we are of the opinion the policy underlying Evidence Code
section 1151 is furthered by its application to claims of negligence per se. That policy is
rooted in the belief that “the exclusion of such evidence may be necessary to avoid
deterring individuals from making improvements or repairs after an accident has
occurred.” (Ault, supra, 13 Cal.3d at p. 119.) When applicable, the negligence per se
doctrine only establishes a presumption of negligence. Once the presumption is
established “the burden then shifts to the [other party] to rebut the presumption by proof
that, among other things, ‘[t]he person violating the statute … did what might reasonably
be expected of a person of ordinary prudence, acting under similar circumstances, who
desired to comply with the law.’ ” (Spriesterbach v. Holland (2013) 215 Cal.App.4th
255, 264, quoting Evid. Code, § 669, subd. (b)(1).) If courts were to admit evidence of
remedial measures, such evidence would likely undermine any evidence a defendant
might offer to rebut the charge. If that were the law, a defendant would be substantially
16.
B. Impeachment Exception to Evidence Code Section 1151
Plaintiffs contend Walmart’s modification of the ammunition display cases after
Garcia’s ammunition theft was “admissible to impeach Walmart’s defense that it
complied with section 30350.” “We review a trial court’s ruling on the admissibility of
evidence for abuse of discretion.” (Nevarrez v. San Marino Skilled Nursing & Wellness
Centre, LLC (2013) 221 Cal.App.4th 102, 117.) “ ‘A court abuses its discretion if its
ruling is “ ‘so irrational or arbitrary that no reasonable person could agree with it.’ ”
[Citation.] A court’s discretion also is limited by the applicable principles of law.’ ” (Id.,
at p. 120.)
Plaintiffs argue case law has “approved the admission of post-accident
improvements to impeach a defendant’s testimony that there was nothing wrong with the
property,” citing Hatfield v. Levy Bros. (1941) 18 Cal.2d 798, 809–810 (Hatfield), Inyo
Chemical Co. v. City of Los Angeles (1936) 5 Cal.2d 525, 543–544 (Inyo Chemical), and
Westbrooks v. Gordon H. Ball, Inc. (1967) 248 Cal.App.2d 209, 216 (Westbrooks.) We
discouraged from making remedial repairs, which is precisely the effect Evidence Code
section 1151 is designed to avoid.
Plaintiffs correctly note that Ault held Evidence Code section 1151 does not apply
to strict liability cases. (Ault, supra, 13 Cal.3d at pp. 118–121.) The Ault court observed
that Evidence Code section 1151 only excluded evidence of remedial measures when
“offered to prove negligence or culpable conduct” and that “[i]n an action based upon
strict liability against a manufacturer, negligence or culpability is not a necessary
ingredient.” (Id., at p. 118.) That is, a “plaintiff may recover if he establishes that the
product was defective, and he need not show that the defendants breached a duty of due
care.” (Ibid.) Ault’s rationale for excluding strict liability claims from the ambit of
Evidence Code section 1151 is inapplicable to the case at hand. As discussed, negligence
claims (including those premised on a negligence per se theory) fall within the plain and
unambiguous language of Evidence Code section 1151.
If the Legislature determines that negligence claims tried on a theory of negligence
per se should not be subject to Evidence Code section 1151, it has the power to amend
the statute. Until then, we are bound to adhere to the plain and unambiguous meaning of
the statute.
17.
agree such evidence may, in appropriate circumstances, be used to impeach a witness.
We disagree, however, that this case presents such circumstances.
In Hatfield, supra, 18 Cal.2d at page 810, evidence that a defendant ordered an
employee not to wax the floor following a slip and fall accident was properly admitted to
impeach that same defendant’s testimony that there was nothing “unusual” or “wrong”
with the waxed floor the plaintiff had previously slipped on. (Id., at p. 810.)
In Inyo Chemical, supra, 5 Cal.2d at page 543, a witness who took part in the
construction of an aqueduct that failed and caused damage to plaintiff’s property testified
he was of the opinion that no additional drainage areas needed to be established to
prevent or ameliorate flooding and overflow of the aqueduct. (Id., at p. 543.) Our high
court concluded it was proper for the trial court to admit evidence that the same witness
had authorized construction of additional spillways after the aqueduct failed because it
“weaken[ed] the testimony” of the witness. (Id., at pp. 543–544)
Westbrooks, supra, 248 Cal.App.2d 209, illustrates a limiting principle to the
holdings in Hatfield and Inyo Chemical. In Westbrook, a steelworker involved in the
construction of a freeway died when he was crushed by a tractor that came through a
tunnel chute near where the steelworker was crossing. (Westbrooks, at pp. 211–212.)
The steelworker’s family sued the defendant general contractor. (Id., at pp. 210–211.)
The defendant’s general superintendent testified that he thought the chute was properly
constructed and that he did not order any additional safety measures following the
accident. (Id. at p. 215.) Plaintiffs’ counsel wanted to cross-examine the general
superintendent with evidence that a subordinate had, in fact, ordered subsequent safety
measures but the trial court ruled the evidence inadmissible. (Ibid.)
In upholding the trial court’s decision, the Westbrooks court wrote: “To permit a
cross-examination of [the general superintendent] on the theory that … he is bound by
everything that any subordinate may order would be in effect to permit the introduction
of additional safety measures in this fashion, and the general rule that such evidence
18.
cannot be received with respect to the negligence of a defendant, corporate or otherwise,
would effectively disappear.” (Westbrooks, supra, 248 Cal.App.2d at p. 216.) “The
exception to the general rule … is this: If one in charge of installing safety measures were
to testify that, in his opinion, the construction which was questioned was proper and it
should develop that he himself ordered the performance of additional safety measures, it
would be legitimate in cross-examination to ask him whether he had not adopted new
measures at variance with his statement of previous safety.” (Id., at p. 216, italics added.)
Here, plaintiffs contend that evidence of subsequent modifications to the
ammunition display case would impeach the testimony of Melanie Rodriguez, the
manager of the Tulare Walmart store during the time at issue. However, the testimony
plaintiffs cite to was objected to on grounds of hearsay and sustained by the trial court.
Plaintiffs were not entitled to introduce evidence to impeach testimony that was never
admitted into evidence.11
Plaintiffs then argue “The evidence supports [plaintiffs’] claim that the shelving
with glass panels was deficient on the day of the theft because it lacked the small brace
[that Walmart installed as a remedial measure]. The fix did not require any repair to
‘broken’ glass or any other part of the case. In other words, the ammunition was not
stored properly and everything was not ‘perfect.’ ” Following this contention, plaintiffs
offer a single citation to the testimony of AP associate Nyna Johnson which reads:
“[Question.] In other words, what I guess I’m asking, do you know if the cabinet was
fixed so that it could be—you know, so that—so that it could be displayed in the same
11 Plaintiffs also offer a page and line citation following the above referenced
deposition testimony of Melanie Rodriguez. The citation bears no relationship to
Melanie Rodriguez’s deposition testimony, and plaintiffs fail to quote, describe or
otherwise discuss the content of the referenced citation. “We are not required to examine
undeveloped claims or to supply arguments for the litigants.” (Allen v. City of
Sacramento (2015) 234 Cal.App.4th 41, 52.) Consequently, any argument related to the
bald citation has been forfeited.
19.
way the next day? [Answer.] When I did my tour that morning everything looked
perfect. I checked it off. I—you know, checked the lock, did everything as I did
normally and it was fine.” Notably, she immediately thereafter testified she had no
knowledge of whether any remedial work had been performed on the ammunition display
cabinet. Plaintiffs offer no evidence to demonstrate Ms. Johnson’s testimony was
untruthful in any respect.
Plaintiffs have failed to demonstrate how evidence of remedial repairs impeaches
any witness testimony. No abuse of discretion has been shown.
V. Section 30350 and Regulation 4262
Plaintiffs contend Walmart’s ammunition display cases did not meet the
requirements of section 30350 and regulation 4262. For the reader’s convenience, we
again set forth the text of section 30350 and regulation 4262. Section 30350 provides:
“An ammunition vendor shall not sell or otherwise transfer ownership of,
offer for sale or otherwise offer to transfer ownership of, or display for sale
or display for transfer of ownership of any ammunition in a manner that
allows that ammunition to be accessible to a purchaser or transferee without
the assistance of the vendor or an employee of the vendor.” (§ 30350.)
Regulation 4262 provides:
“Pursuant to … section 30350, ammunition shall not be displayed for sale
or transfer in a manner that allows that ammunition to be accessible to a
purchaser or transferee without the assistance of the vendor or an employee
of the vendor. Ammunition displayed in a shopping area open to the public
is not considered ‘accessible’ provided it is in a locked container (e.g.
display case, cabinet, cage).” (11 C.C.R. 4262.)
Plaintiffs contend that the term “locked container,” as used in regulation 4262, has
a specific meaning as defined in other statutes, that the trial court failed to consider those
statutory definitions, and that Walmart’s ammunition display case does not fall within
those definitions. Plaintiffs rely largely on section 16850,12 which provides:
12 In addition to section 16850, plaintiffs cite to section 626.9, which merely
provides: “ ‘Locked container’ has the same meaning as Section 16850[]” (§ 626.9,
20.
“As used in this part, ‘locked container’ means a secure container that is
fully enclosed and locked by a padlock, keylock, combination lock, or
similar locking device. The term ‘locked container’ does not include the
utility or glove compartment of a motor vehicle.” (§ 16850.)
The Law Revision Commission Comments to section 16850, as amended in 2014,
state, “[s]ection 16850 is amended to expressly apply the definition of ‘locked container’
to the whole of Part 6[]” of the Penal Code (i.e., sections 16000 through 34400).13
Although section 30350 is contained in Part 6 of the Penal Code, it does not use the
phrase “locked container.” That phrase, as is relevant here, is contained only in
regulation 4262.
Plaintiffs contend Walmart’s ammunition display case was not a “locked
container” because it was not a “secure container” and was not “fully enclosed” as those
latter two terms are used in section 16850. In support of their contention, plaintiffs offer
a number of dictionary definitions for the terms “locked” and “secure” and argue the
ammunition display case was neither because it permitted Garcia to manipulate the glass
doors of the case within 30 seconds to create a sufficient gap between the doors and metal
framing of the case and enable him to retrieve ammunition. Plaintiffs contend the display
case needed to meet a higher degree of security against theft and prevent theft—or, at
least, the manner of theft committed by Garcia.14
subd. (e)(3)) and Business and Professions Code section 1288.3, which provides a similar
definition to section 16850, but which applies to the storage of “biological specimens.”
13 The trial court did consider section 16850, as indicated in its Decision After
Trial, but determined the statute applied “to the storage of guns in a motor vehicle.” We
observe, however, that many of the statutes in Part 6 of the Penal Code that use the term
“locked container” do not involve storage of guns in a motor vehicle or during transport.
(See, e.g., § 25205 [providing no criminal exposure under section 25200 for a child’s
access to a firearm if it was stored in a locked container]; § 27883 [relating to the loan of
a firearm]; § 25135 [firearm storage in a residence occupied by person prohibited from
possessing a firearm].)
14 Plaintiffs also seemingly contend the ratchet lock used by Walmart to keep the
display case closed does not meet the definition of a “padlock, keylock, combination
lock, or similar locking device” but offer no reasoned argument to support the contention.
21.
A. Plaintiffs’ Proffered Definitions, and Alternative Definitions
Plaintiffs cite to the following dictionary definitions for the following terms: that
“locked” means “ ‘to make secure or inaccessible by or as if by means of locks’ ” (citing
“Merriam-Webster”); that “secure” means “ ‘free from risk of loss’ ” (citing “Merriam-
Webster”) or “ ‘dependable; firm; not liable to fail, yield, become displaced,’ ” (citing
“Dictionary.com”); and that “ ‘A secure place is tightly locked or well protected, so that
people cannot enter it or leave it’ ” (citing “Collins on-line dictionary”). Plaintiffs have
not provided uniform resource locators for the above definitions. However, our own
reference to these resources demonstrates plaintiffs have chosen the definitions they
believe best suit their argument to the exclusion of other definitions that might apply.
For example, plaintiffs quote only a portion of a particular definition offered by
Merriam-Webster’s online dictionary for the term “lock” or “locked.” That particular
definition, in full, reads: “to fasten in or out or to make secure or inaccessible by or as if
by means of locks.” (Merriam-Webster Unabridged Dict. Online (2018)
<https://www.merriam-webster.com/dictionary/lock> [as of Feb. 3, 2025], archived at
<https://perma.cc/S5ZA-GZXY>, at verb (1), ¶ 2a.) Other definitions for “lock” or
“locked” offered by Merriam-Webster’s online dictionary include, without limitation:
“1 a: to fasten the lock of [¶] b: to make fast with or as if with a lock [¶] … [¶] 2 b: to fix
in a particular situation or method of operation [¶] 3 a: to make fast, motionless, or
inflexible by the interlacing or interlocking of parts.” (Id., at verb (1), ¶¶ 1, 2b, 3a.)
Notably, the term “fast,” when used as an adjective, is defined by Merriam-Webster’s
online dictionary to include, without limitation, “firmly fixed,” “tightly shut,” “adhering
firmly,” “not easily freed: stuck,” “stable” (Merriam-Webster Unabridged Dict. Online
We deem this latter contention waived as a result. (Cahill v. San Diego Gas & Electric
Co. (2011) 194 Cal.App.4th 939, 956 [“ ‘ “When an appellant fails to raise a point, or
asserts it but fails to support it with reasoned argument and citation to authority, we treat
the point as waived.” ’ ”)
22.
(2018) <https://www.merriam-webster.com/dictionary/fast> [as of Feb. 3, 2025],
archived at <https://perma.cc/7CGV-9YX9>, at adjective, ¶ 1) or, when used as an
adverb, to include, without limitation, “in a firm or fixed manner.” (Id., at adverb, ¶ 1.)
There are a number of potentially applicable definitions for the term “locked” that do not
also use the term “secure.” The various definitions above demonstrate the term “locked”
could mean to make secure or inaccessible through the use of locks, or it could mean
simply to fasten with locks.
If we accept the definition of “locked container” as defined in section 16850—i.e.,
to require a “secure” container as plaintiffs urge us to do, we note that even the term
“secure” is somewhat amorphous. Collins online dictionary, relied on by plaintiffs,
offers the following definition, among others, for the term “secure”: “If an object is
secure, it is fixed firmly in position.” (Collins Dict. Online (2023)
<https://www.collinsdictionary.com/dictionary/english/secure> [as of Feb. 3, 2025],
archived at <https://perma.cc/Y8SW-UTGG>, at adjective, ¶ 5.) The Merriam-Webster’s
online dictionary offers the following definition, among others: “affording safety.”
(Merriam-Webster Unabridged Dict. Online (2018) <https://www.merriam-
webster.com/dictionary/secure> [as of Feb. 3, 2025], archived at
<https://perma.cc/D68A-3RJ4>, at adjective, ¶ 1b.) And the Cambridge online dictionary
offers the following definitions, among others, for “secure”: “positioned or fixed firmly
and correctly and therefore not likely to move, fall, or break; [¶] likely to continue and
not fail or be lost.” (Cambridge Dict. Online (2023)
<https://dictionary.cambridge.org/dictionary/english/secure> [as of Feb. 3, 2025],
archived at <https://perma.cc/5JBL-6VTB>.) Among the Dictionary.com definitions for
the adjective “secure” are “not liable to fail, yield, become displaced, etc., as a support or
a fastening … [¶] affording safety, as a place … [¶] safe from penetration or interception
by unauthorized persons.” (Dictionary.com Online (2023)
23.
<https://www.dictionary.com/browse/secure> [as of Feb. 3, 2025], archived at
<https://perma.cc/S7GX-52AL>, at adjective, ¶¶ 1, 2, 3, 8.)
Undoubtedly, a certain amount of security and safety was afforded by the
ammunition display case. Few things are completely secure or invulnerable to access.
Plaintiffs also contend the ammunition display case was not “fully enclosed” as
used in section 16850. Plaintiffs do not clearly articulate the basis for this contention but
we presume they are relying on Brian Riley Gomez’s testimony that there was a one to
two-inch gap between the glass door and metal frame of the ammunition display case.15
We conclude regulation 4262 does not prohibit some gaps or open space in the
display case. We reach this conclusion because regulation 4262 expressly allows a
locked “cage” to be used to display ammunition. (11 C.C.R. 4262.) Merriam-Webster’s
online dictionary contains the following relevant definitions for the term “cage” as “a box
or enclosure having some openwork for confining or carrying animals (such as birds)”
and “an enclosure resembling a cage in form or purpose.” (Merriam-Webster
Unabridged Dict. Online (2018) <https://www.merriam-webster.com/dictionary/cage>
[as of Feb. 3, 2025], archived at <https://perma.cc/N9HS-78DA>, at noun, ¶¶ 1 and 4a,
italics added.) Thus, to the extent plaintiffs contend Walmart’s ammunition display case
was not fully enclosed because small gaps may have been present between the glass door
and metal framing, regulation 4262 appears to permit this—so long as the ammunition
remained inaccessible to would-be purchasers of ammunition without employee
assistance. Notably, the uncontradicted testimony of the Gomez brothers demonstrates
Garcia could not access the ammunition through a gap. Rather, Garcia had to manipulate
15 Jacob Gomez’s testimony was somewhat inconsistent with his brother’s
testimony. Jacob Gomez testified he did not remember if there was a gap “between the
glass and the panel”—but did say, “as you can imagine, where the lock meets in the
middle [of the glass doors] there is a gap that you can shove, you know, a pinky in if you
wanted to.” He further testified, “I did not observe a gap big enough for him to put his
fingers in on that specific day.”
24.
the glass doors for up to 30 seconds in order to create a gap large enough to retrieve
ammunition.
We are cognizant that plaintiffs’ counsel argued before the trial court that an
existing gap in the display case may have aided Garcia in manipulating the glass doors.
However, it appears the trial court, sitting as trier of fact, determined Garcia’s breach of
the display case was not proximately caused by any such gap.16
Notwithstanding, the term “locked container” as used in section 30350 appears to
be reasonably susceptible to an interpretation that requires greater security than that
which was afforded by the Walmart ammunition display case as well as an interpretation
that it did not require greater security. Consequently, we now turn to the legislative and
statutory history of section 30350 and its predecessor statutes.
16 The reporter’s transcript reveals the following discourse between the trial judge
and plaintiffs’ counsel during plaintiffs’ closing argument: “THE COURT: And I think
the evidence showed that this gap was not sufficient for Mr. Garcia to put his hand
through and freely access the ammunition. [¶] [PLAINTIFFS’ COUNSEL]: He had to
pull off the rails: [¶] THE COURT: So my question to you from a factual standpoint:
Does it matter if there was a gap? Does it matter if that gap was an 8th of an inch?
Centimeter? An inch? And I know I’m going back and forth. But an inch? Inch and a
half? Two inches? It wasn’t sufficient for him to freely access the ammunition…. [¶] If
he had to take the glass off the rails and, call it, dismantle the cabinet, why isn’t that
within the statute? ….” When plaintiffs’ counsel suggested “If you got a gap, all you got
to do is reach in and pull them off[,] the judge stated “Let me challenge you on that. My
understanding from the evidence is that they were pushed in, not pulled in.” Plaintiffs’
counsel offered the following explanation: “My view of what happened … is—and this
is why the gap’s important for two reasons. If you push it off, that’s going to widen the
gap; right? And so, with the gap being widened, the fact that you start out with the gap
and then you’re able to push it off the rails, or perhaps push it in, however that might be,
the gap allows you with the additional space that’s provided by doing the pushing off or
on the rails to get access. So the gap is very relevant.” The court went on to comment
that it took 30 seconds for Garcia to manipulate the glass doors of the display case to
create a sufficient gap for Garcia to access the ammunition.
25.
B. History of Section 30350
1. Predecessor Statutory Scheme Enacted in 2009
The genesis of section 30350 is former section 12061, enacted in 2009 as part of
the Anti-Gang Neighborhood Protection Act of 2009 (AGNPA). (Stats. 2009, Ch. 628
(A.B. 962), § 2.) Subdivision (a)(2) of former section 12061 was substantively identical
to current section 30350.
Section 12061 also prohibited ammunition vendors from allowing employees who
met specified characteristics from handling, selling or delivering ammunition as part of
their job (former § 12061, subd. (a)(1)); prohibited the vendor from selling/transferring
ammunition without obtaining identification and specified information from the
purchaser/transferee (id., at subd. (3)); required retention of such records for five years
(id., at subd. (4)); allowed law enforcement to inspect those records under certain
circumstances (id., at subd. (5)); prohibited the vendor from knowingly making false
entries in those records (id., at subd. (6)); and prohibited the vendor from refusing to
permit the examination and use of the records by authorized law enforcement (id., at
subd. (7)). Other statutes enacted as part of the AGNPA prohibited certain individuals
from purchasing or owning ammunition (former § 12316), restricted carrying
ammunition on school grounds (ibid.), and required that ammunition transfers occur only
in a face-to-face transaction and only after proper identification of the
purchaser/transferee (former § 12318).
A California Bill Analysis for AGNPA stated, in relevant part: “This bill imposes
specified requirements on handgun ammunition sellers, primarily that sellers collect
buyers’ personal data and keep a log of such sales[.]” (Sen. Pub. Safety Com., Sen.
Appropriation Com., 3d reading analysis of Assem. Bill No. 962 (2009–2010 reg. Sess.)
Sept. 4, 2009.)
26.
2. 2010 Reorganization of Statutes
In 2010, the Legislature enacted Senate Bill 1080, which resulted in a
comprehensive, non-substantive reorganization of deadly weapon statutes. (Stats. 2010,
ch. 711 (S.B.1080), § 6.) That bill resulted in a repeal of former sections 12060, 12061,
and 12316 through 12318, among many others. (Stats. 2010, ch. 711 (S.B. 1080).) It
also resulted in the enactment of Article 3 of Part 6, Title 4, Division 10, Chapter 1
(hereafter, “Article 3”). (Stats. 2010, ch. 711 (S.B. 1080).) Subdivision (a)(2) of former
section 12061, which was repealed by Senate Bill 1080, was continued in the original
version of section 30350, which was enacted as part of Article 3. Each of these (now
former) statutes were substantively identical to the current version of section 30350.
3. The Safety for All Act (Proposition 63), Enactment of Current
Section 30350
In 2016, the Safety for All Act (hereafter, Proposition 63) was put before the
voters of California and passed. (Initiative Measure, Prop. 63, approved Nov. 8, 2016.)
Upon its passage, current section 30350 was added to the Penal Code.
In addition, Proposition 63 added the following statutes to the Penal Code:
section 30342 (requiring “a valid ammunition vendor license” for sales of “more than
500 rounds of ammunition in any 30–day period”); section 30347 (requiring a certificate
of eligibility for an ammunition vendor employee “who handles, sells, delivers, or has
under his or her custody or control any ammunition); section 30348 (relating to
ammunition sales at gun shows); section 30352 (specifying information an ammunition
vendor must collect from certain purchasers/transferees of ammunition before
consummating the transaction); and section 30363 (establishing reporting requirements in
the event of lost or stolen ammunition).
In adopting Proposition 63, the people of the State of California made the
following relevant findings and declarations: “Reasonable, common-sense gun laws
reduce gun deaths and injuries, keep guns away from criminals and fight illegal gun
27.
trafficking. Although California has led the nation in gun safety laws, those laws still
have loopholes …. We can close these loopholes while still safeguarding the ability of
law-abiding, responsible Californians to own guns for self-defense, hunting and
recreation.” (Initiative Measure, Prop. 63, § 2.5, approved Nov. 8, 2016.) “We know
background checks work. Federal background checks have already prevented more than
2.4 million guns sales to convicted criminals and other illegal purchasers in America. In
2012 alone, background checks blocked 192,043 sales of firearms to illegal purchasers
including 82,000 attempted purchases by felons. That means background checks stopped
roughly 225 felons from buying firearms every day. Yet California law only requires
background checks for people who purchase firearms, not for people who purchase
ammunition. We should close that loophole.” (Id., at § 2.6.) “Right now, any violent
felon or dangerously mentally ill person can walk into a sporting goods store or gun shop
in California and buy ammunition, no questions asked. That should change. We should
require background checks for ammunition sales just like gun sales, and stop both from
getting into the hands of dangerous individuals.” (Id., at § 2.7.)
The purpose and intent of Proposition 63, as is relevant to the case before us, were
stated, as follows: “To keep guns and ammunition out of the hands of convicted felons,
the dangerously mentally ill, and other persons who are prohibited by law from
possessing firearms and ammunition. [¶] …To ensure that those who buy ammunition in
California—just like those who buy firearms—are subject to background checks.”
(Initiative Measure, Prop. 63, §§ 3.2, 3.3, approved Nov. 8, 2016.)
C. Regulation 4262
The Department of Justice (DOJ) adopted regulation 4262, which became
effective January 2, 2018. In its proposed action, the DOJ wrote that Proposition 63 “is
intended to increase public safety by various means, including regulating the sale of
ammunition to prevent it from being acquired by convicted felons, the dangerously
mentally ill, and other persons who are prohibited from possessing firearms and
28.
ammunition. The proposed regulations will enable California ammunition vendors to
comply with statutorily mandated licensing requirements for the sale of ammunition
beginning January 1, 2018[.]” (2017 CA Reg Text 462642 (NS), July 14, 2017.) The
DOJ stated, “[t]he proposed regulations will … provide clarification regarding the term
‘accessible’ as referenced in Penal Code section 30350.” (Ibid.)
D. The Express Purpose and Intent of Section 30350
Section 30350 and its predecessor statutes (former sections 30350 and 12061)
speak in terms of transactions involving ammunition—i.e., the sale or transfer of
ownership of ammunition. The statute says nothing about theft of ammunition. The
statute authorizes the display of ammunition so long as it is not “accessible to a
purchaser or transferee without the assistance of the vendor or an employee of the
vendor.” There is no mention of protecting against theft or making the ammunition
display theft proof—all of which are worthy goals but not expressly mentioned in the
statute.
The legislative history of former section 12061 demonstrates the purpose of that
statute was to require “that sellers collect buyers’ personal data and keep a log of such
sales[.]” (Sen. Pub. Safety Com., Sen. Appropriation Com., 3d reading analysis of
Assem. Bill No. 962 (2009–2010 Reg. Sess.) Sept. 4, 2009, italics added.) The bill
required “ammunition vendors to obtain a thumb print and other information from
ammunition purchasers ….” and prohibited “supplying or delivering … ammunition to
prohibited persons” and persons the vendor/transferor knows or reasonably should know
is prohibited from possessing ammunition. (Ibid., italics added.) (In our view, a vendor
does not supply or deliver ammunition when a thief steals it.) Notably, the argument in
support of the bill was that it would “assist law enforcement in solving crimes” because
many homicides “remain unresolved in part because the ownership and purchase of …
ammunition cannot be traced.” (Ibid.) None of the arguments in support or opposition to
former section 12061 discuss deterring or preventing theft of ammunition. (Ibid.)
29.
When current section 30350 was approved as part of Proposition 63, the people
adopted findings and declarations that identified loopholes in our gun safety laws with
regard to the purchase of ammunition, and acknowledged the efficacy of background
checks. (Initiative Measure, Prop. 63, §§ 2.5, 2.6, approved Nov. 8, 2016.) The new law
sought to ensure that purchasers of ammunition undergo background checks just as do
purchasers of firearms. Deterring and preventing ammunition theft were not mentioned.
We conclude, therefore, that the purpose of section 30350 was not to prevent theft
of ammunition. It was intended (1) to prohibit ammunition vendors such as Walmart
from selling or transferring ownership of ammunition to purchasers/transferees without
first performing a required background check to determine that the would-be
purchaser/transferee was not disqualified from acquiring the ammunition—a situation not
presented by the facts of this case, and (2) in support of the aforementioned goal, to
prohibit such vendors from displaying their ammunition stock in a manner that allows
.purchasers/transferees to access ammunition without the help of the vendor or its
employee.
We further conclude section 30350 and regulation 4262 do not require a
heightened level of security for ammunition display cases that is sufficient to prevent the
theft of ammunition. The purposes of the statute and regulation are met where the
display case is sufficiently secure to prevent would-be purchasers and transferees from
accessing ammunition without employee assistance.
VI. Plaintiffs’ Contention That Substantial Evidence Does Not Support the
Judgment
“ ‘When the trier of fact has expressly or implicitly concluded that the party with
the burden of proof failed to carry that burden and that party appeals, it is somewhat
misleading to characterize the failure-of-proof issue as whether substantial evidence
supports the judgment.... Thus, where the issue on appeal turns on a failure of proof at
trial, the question for a reviewing court becomes whether the evidence compels a finding
30.
in favor of the appellant as a matter of law. [Citations.] Specifically, the question
becomes whether the appellant’s evidence was (1) “uncontradicted and unimpeached”
and (2) “of such a character and weight as to leave no room for a judicial determination
that it was insufficient to support a finding.” ’ ” (Meister v. Mensinger (2014)
230 Cal.App.4th 381, 395.)
The trial court determined “Walmart did not … offer for sale … or display …
ammunition in a manner that allowed the ammunition to be accessible to a purchaser …
without the assistance of the vendor[]” and that Walmart was in compliance with
section 30350. The evidence supports the court’s determination. More importantly,
plaintiffs have not demonstrated the evidence in this matter compels a finding in their
favor as a matter of law. As a result, plaintiffs’ substantial evidence challenge fails.
VII. Plaintiffs’ Remaining Contentions
A. Voter Intent
Plaintiffs’ contention the trial court did not consider the intent of the voters when
they voted in favor of section 30350 is largely premised on their preferred construction of
the term “locked container” and their contention that “a locked container has a function to
prevent theft short of actually breaking or destroying the container holding the
ammunition[.]” As discussed, the voters who approved section 30350 were concerned
with establishing a system that enabled and facilitated an ammunition vendor’s ability to
run background checks on ammunition purchasers and transferees. The purpose of the
statute was not to prevent theft of ammunition—although the requirement that the
ammunition display case be locked undoubtedly had the added benefit of deterring its
theft. In light of our determination of voter intent, plaintiffs cannot prevail on this issue.
B. Contended Admissions of Walmart Employees
Plaintiffs’ contention that the trial court failed to consider statements by Walmart
employees that the design of the display case was defective is likewise unavailing. The
statements at issue were from Tim Hart, Walmart’s merchandising director, and AP
31.
associate, Jennifer Rodriguez. Hart testified that the display case was designed “to be
very difficult to get into without some kind of tool”; that the display case “was designed
to deter theft”; and should be designed to deter theft by an individual who uses only his
hands and gains access to the ammunition within 30 seconds. Jennifer Rodriguez’s
deposition testimony was read into the record. She was asked “Your understanding is an
ammunition display case, you should not be able to take it off the railings so you can
open it without a key, correct?” She answered, “Yes.” The above statements were not
admissions that the display case did not meet the requirements of section 30350. Rather,
they were admissions that the display case did not adequately prevent Garcia from
stealing ammunition, which we have determined was not the purpose of section 30350.
Contrary to plaintiffs’ contention, the trial court did consider these statements
which accounts for the court’s statement that “the referenced statements by the witnesses
as elicited by Plaintiffs’ counsel appeared to be random personal comments without
consideration for the applicable law.” (Italics added.) In addition, although the court
determined the statements were “generally inadmissible as a layperson’s opinion,” the
court concluded that “[t]he portions of any statements made by these witnesses that could
be considered admissible was outweighed by the remaining testimony.”17 In light of this,
and our determination that prevention of ammunition theft was not a purpose of section
30350, plaintiffs have not established any prejudice resulting from the court’s
determination that the comments were improper layperson opinions.
17 There is a lingering question as to whether the trial court’s comments in this
regard applied to the testimony of Jennifer Rodriguez—as opposed to the testimony of
Melanie Rodriguez, the manager of the Walmart store during the relevant time frame. In
making its comments in its Decision After Trial, the court referenced the testimony of
“Melody” [sic] Rodriguez. We have presumed, for purposes of argument, that the court’s
reference was to Jennifer Rodriguez’s testimony as plaintiffs contend. (Plaintiffs have
raised no issue concerning the testimony of Melanie Rodriguez.)
32.
C. Defense Expert Kapelsohn’s Testimony
Plaintiffs also contend that defense expert Kapelsohn’s testimony should have
been excluded as irrelevant and unsupported by the evidence. Plaintiffs offer the
following four reasons for their contention: (1) Kapelsohn’s testimony “merely
constitute[d] a conclusion of law”; (2) Kapelsohn failed to consider the fact that Walmart
made remedial repairs to the ammunition display cases following Garcia’s theft of
ammunition; (3) Kapelsohn did not consider “sections 30350 and 16850 and Business &
Profession Code section 1288.3[, subdivision ](c) in rendering his opinion; and
(4) Kapelsohn “did not address or consider the intent [of voters] in approving
section 30350[.]”
Given our determinations of the voter intent and the purpose of section 30350, and
our determination that the trial court properly excluded evidence of remedial repairs in
this matter, plaintiffs have not demonstrated they were harmed by Kapelsohn’s
testimony.
D. The Contention the Trial Court’s Decision Endangers Citizens
Plaintiffs contend the trial court’s judgment in this matter endangers the citizens of
California. The court is charged with interpreting and following the law. It does not
have the power to legislate. Plaintiffs’ contention is best directed to the Legislatures of
this state or the federal government.18
18 Plaintiffs’ argument that a more robust ammunition display case was necessary
to prevent the theft of ammunition might have been a more viable theory of liability had
plaintiffs not been barred by the PLCAA from pursuing their general negligence claim.
33.
DISPOSITION
The judgment in favor of Walmart, Inc. and against plaintiff Laura Soto, in her
individual capacity and as guardian ad litem for Rolando Soto, Jr. and Yvette Soto, and
plaintiff Klarissa Soto, is affirmed in its entirety. Walmart, Inc. is entitled to its costs on
appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
FAIN, J.*
WE CONCUR:
HILL, P. J.
MEEHAN, J.
* Judge of the Fresno Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
34.