Filed 2/9/24 Peretz v. San Diego Guns CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
ALMOG PERETZ, D081804
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2020-
00016638-CU-PO-CTL)
SAN DIEGO GUNS, LLC,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County,
Kenneth J. Medel, Judge. Reversed with directions.
Abir Cohen Treyzon Salo, Boris Treyzon and Joseph Finnerty, for
Plaintiff and Appellant.
Law Offices of Adrienne D. Cohen, Adrienne D. Cohen and Sean R.
Ferron, for Defendant and Respondent.
Almog Peretz was injured when John T. Earnest entered the Chabad of
Poway synagogue on April 27, 2019 and fired a recently purchased AR-15 at
congregants. Earnest purchased the weapon from San Diego Guns, LLC (San
Diego Guns). Peretz sued San Diego Guns. After the superior court granted
San Diego Guns summary judgment, Peretz appealed. The parties have now
filed a stipulated motion to set aside judgment and remand the matter to the
superior court. We conclude the motion has merit, and we reverse the
judgment and remand the matter.
BACKGROUND
Peretz sued San Diego Guns alleging negligence for selling an AR-15 to
Earnest in Case No. 37-2020-00047963-CU-PO-CTL. The superior court
consolidated the action into Goldstein v. Earnest, Case No.
37-2020-00016638-CU-PO-CTL (the Goldstein action). The plaintiffs in the
Goldstein action alleged negligence, negligence per se, negligent entrustment,
and public nuisance. They also alleged that San Diego Guns breached
common law duties and violations of various firearms regulations when it
sold the firearm to Earnest.
On October 14, 2022, San Diego Guns moved for summary judgment
against the plaintiffs, or alternatively for summary adjudication as to the
separate causes of action in the various complaints. San Diego Guns argued
that Earnest held a valid, unexpired hunting license and therefore met the
exemption under Penal Code1 section 27510, so it was not negligent. San
Diego Guns also argued that the public nuisance claims were barred by the
Protection of Lawful Commerce in Arms Act, 15 U.S.C. § 7901 et seq.
On January 10, 2023, the superior court issued an order granting
summary judgment against Peretz and summary adjudication as to the other
plaintiffs in the Goldstein action as to all but the common law negligence
claims. The court concluded that San Diego Guns complied with section
27510. Because the negligence cause of action was based on the alleged
1 Further section references are to the Penal Code unless otherwise
specified.
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violation of the statute, the court concluded summary judgment against
Peretz was appropriate.
On February 14, 2023, the plaintiffs in the Goldstein action filed a writ
of mandate, asking us to direct the trial court to vacate its summary
adjudication ruling on the causes of action that relied on negligence per se.
On July 19, 2023, we issued a published decision reversing the superior
court’s order granting summary adjudication, Goldstein v. Superior Court
(2023) 93 Cal.App.5th 736, review denied Sept. 13, 2013, S281192
(Goldstein). There, we explained section 27510’s reference to a “valid,
unexpired hunting license” is ambiguous. However, section 16685 clarified
“a hunting license is ‘valid’ and ‘unexpired’ only if it can currently be used to
engage in hunting.” (Id. at pp. 747, 748–749.) We further explained that
because “Earnest’s hunting license did not become valid until it could be used
for engaging in hunting on July 1, 2019,” after the date of the weapon’s
purchase, “the trial court erred in ruling in favor of San Diego Guns on its
motion for summary adjudication on the causes of action that were based on
the doctrine of negligence per se.” (Id. at p. 750.)
San Diego Guns filed a petition for review in the Supreme Court, which
the Supreme Court denied on September 13, 2023.
Peretz and San Diego Guns filed a stipulated motion to set aside
judgment and remand the matter to the superior court pursuant to Code of
Civil Procedure section 128, explaining the negligence claim and defense in
this matter is identical to the one in Goldstein and recognizing our statutory
interpretation in Goldstein applies equally here. We conclude the parties
have satisfied the requirements of that section, and we grant the request.
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DISCUSSION
We may not reverse a judgment upon stipulation of the parties unless
we make two findings: (1) “There is no reasonable possibility that the
interests of nonparties or the public will be adversely affected by the
reversal”; and (2) “The reasons of the parties for requesting reversal outweigh
the erosion of public trust that may result from the nullification of a
judgment and the risk that the availability of stipulated reversal will reduce
the incentive for pretrial settlement.” (Code Civ. Proc., § 128, subd. (a)(8)(A),
(B).) We conclude these factors are satisfied.
First, there is no reasonable probability the interests of nonparties or
the public will be adversely affected by the reversal. The case impacts only
Peretz and San Diego Guns.
Second, the parties’ reasons for reversal outweigh any risk of erosion of
public trust. The parties seek reversal because they agree the trial court
erred, and they recognize our order in Goldstein means this case will
similarly result in reversal. Public trust is advanced, not eroded, by
stipulated reversals to resolve judicial error. (See, e.g., In re Rashad H.
(2000) 78 Cal.App.4th 376, 380–381.) Moreover, the reversal by stipulation
here allows the plaintiff to avoid an unnecessary delay of the case and offers
a more efficient resolution. Public trust is advanced by preservation of
judicial resources.
Third, there is no evidence before us that the availability of a stipulated
reversal here would reduce the incentive for pretrial settlement. There is no
evidence that efforts were made to resolve the matter before the summary
judgment motion.
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DISPOSITION
The judgment is reversed and the matter remanded to the trial court
for further proceedings. The parties will bear their own costs on appeal. The
remittitur shall issue immediately.
McCONNELL, P. J.
WE CONCUR:
HUFFMAN, J.
CASTILLO, J.
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