The People of the State of California v National CPR Foundation LLC et al

Case Number

24CV05905

Case Type

Hearing Date / Time

Wed, 02/11/2026 - 10:00

Nature of Proceedings

Motion to Compel

Tentative Ruling

Plaintiff [“Plaintiff” or “the People” or “the State”]: John Savrnoch, Christopher Dalbey, Michael Hestin, Evan Goldsmith

Defendants [“National CPR”]: Sean Ponist, Cary D. McReynolds; Jessica L. Davis

          

                    Issues

National CPR moves to compel the People’s responses to Request for Production 41, Request for Admission 52 and Form Interrogatory 17.1 as it relates to Request for Admission 52 and for the People to provide proper verified responses to all discovery or otherwise deem the responses and verifications binding on the People for all purposes in this case.  

RULING

National CPR’s Motion is denied. 

Background

Initial Complaint filed 10/22/24; pled as seventeen separate causes of action. This is a law enforcement action in which The People contend that the Defendant has violated Business and Professions Code §§ 17200 and 17500 by making various false or misleading statements on their website. The People are seeking a permanent injunction, prohibiting the Defendants from engaging in activities that violate Business and Professions Code §§ 17200 and 17500, restitution, and civil penalties.

First Amended Answer filed 11/21/24; Defendants deny all allegations of wrongdoing and assert that they have not violated any statutes; plead 14 Affirmative Defenses. 

National CPR’s Motion to Compel Further Responses from the People

Filed 1/20/26; 14 pages; summarized: set for 4/1/26; advanced to 2/11/26; National CPR moves to compel as to the People’s responses to Request for Production 41, Request for Admission 52 and Form Interrogatory 17.1 as it relates to Request for Admission 52.  The motion is made on the grounds that the request is relevant to Defendants’ defenses and the People have refused to answer the foregoing discovery without basis. The discovery at issue is directly related to affirmative defenses pled by Defendants. National CPR is entitled such discovery as a matter of law.  The People have nonsensically objected to the discovery on the grounds of relevance and refused to answer the discovery.  Its objections are not well-taken. Additionally, the People have refused to indicate that the signor of its verifications is “authorized” to do so.  Its refusal to do so is inconsistent with the Discovery Act and common practice.  The purpose of discovery is to bind parties to responses in discovery, thereby limiting the issues for trial.  If a party fails to affirm that its signor is “authorized” to do so, it defeats that very purpose.

Defendants will show that National CPR has been in business since 2012 and has offered a similar product, i.e., online CPR training, that has been consistently well-received since that time; will be shown, National CPR has an average 4.87 out of 5-star rating, showing a very high level of satisfaction with its program. 

National CPR’s refund policy generously provides that any customer unsatisfied with their certification can obtain a full refund, including because of rejection for want of hands-on training.  Despite this liberal policy, National CPR has a refund request rate of just 0.2% in California, meaning that only a tiny minority of exceptional cases involved dissatisfied customers. Only recently, by way of this very case, has any issue with its marketing and business practices been raised.  

At all relevant times, National CPR had every reason to believe that its marketing and business practices were following the law.  Its training program complied with OSHA’s Best Practices Guide. Thus, the determination of the appropriate CPR training for the employee is determined by the employer, not the employee (consumer), who determines what type of CPR training is needed for the job.   

In April 2022, the Santa Barbara County and Riverside County District Attorney Offices, because of a complaint from a consumer about a wholly unrelated matter, determined that OSHA required hands-on training and CPR training programs that did not offer such and could not claim compliance with OSHA.  Whether this is a valid interpretation of the law will be decided at trial, but it is certainly a new interpretation.  It is a general principal of law that when, as here, there is a “novel interpretation” or change in the enforcement of laws, the government is required to provide notice of such, so that affected parties may bring themselves in compliance with the new standard. 

In defense of the People’s action, Defendants asserted affirmative defenses, including:

SEVENTH AFFIRMATIVE DEFENSE (Arbitrary/Capricious Action Without Justification/Explanation). As a seventh and separate affirmative defense to each cause of action stated in the Complaint, these answering Defendants assert that Plaintiff has arbitrarily and capriciously sought to enforce the laws against Defendants.  Defendants have conducted their business and marketing practices consistent with the law for many years.  The People, however, recently shifted its interpretation of the law without notice to Defendants or the industry.  Plaintiffs have taken a small number of isolated complaints on two business review websites and imputed a broader course of deception on Defendants’ business practices to advance their new interpretation.  Plaintiffs have, inter alia, picked approximately ten (10) unsatisfied customers, out of hundreds of thousands of customers, to incorrectly claim the broader public is being misled. Plaintiffs continue to allow similarly situated businesses to engage in the same business practices uninterrupted. 

TWELFTH AFFIRMATIVE DEFENSE. (Unconstitutional Vagueness, Lack of Notice, and Violation of Due Process). As a twelfth and separate affirmative defense to each cause of action stated in the Complaint, Defendants assert that Plaintiff’s enforcement of the law (Business & Professions Code section 17200 and 17500 claims) suffers from unconstitutional vagueness.  A law is unconstitutionally vague where, as here, it fails to give a person of ordinary intelligence fair notice of what is prohibited or is so standardless that it authorizes or otherwise permits discriminatory or selective enforcement.  Unconstitutional vagueness fails to provide fair notice to parties in violation of due process rights.  Plaintiffs have applied the law in novel, standardless, selective manner against Defendants, depriving them of fair notice and due process.  

The State did not demurrer or otherwise challenge these properly pled affirmative defenses which remain at issue in this case.  

National CPR propounded the following Request for Production, and received only objections in response thereto:

REQUEST FOR PRODUCTION NO. 41: All DOCUMENTS showing that YOU gave DEFENDANTS an opportunity to take corrective action before filing this lawsuit.

Response to Request for Production No. 41: The People object to this Request on the grounds and to the extent it exceeds the permissible scope of discovery; i.e., it seeks information “not relevant to the subject matter of the action” or information that is unlikely to lead to the discovery or relevant evidence. (Code Civ. Proc., § 2017.010.)

Similarly, National CPR propounded the following Request for Admission, and, again, received the same objection:

REQUEST FOR ADMISSION NO. 52: Admit that YOU did not give DEFENDANTS an opportunity to correct YOUR concerns before filing this lawsuit.

Response to Request No. 52: The People object to this Request on the grounds and to the extent it exceeds the permissible scope of discovery; i.e., it seeks information “not relevant to the subject matter of the action” or information that is unlikely to lead to the discovery or relevant evidence. (Code Civ. Proc., § 2017.010.)

National CPR propounded Form Interrogatories in conjunction with the Requests for

Admission, including Form Interrogatory 17.1 which asks: Is your response to each request for admission served with these interrogatories an unqualified admission?  If not, for each response that is not an unqualified admission:

(a) state the number of the request;

(b) state all facts on which you base your response;

(c) state the names, ADDRESSES, and telephone numbers of all PERSONS who have

knowledge of those facts; and

(d) identify all DOCUMENTS and other tangible things that support your response and

state the name, ADDRESS, and telephone number of the PERSON who has each

DOCUMENT or thing.

Although the People did not provide “an unqualified admission” to the foregoing request, it failed to provide the further information required by Form Interrogatory 17.  

Lastly, the State provided verifications to the discovery, signed by an employee of the Santa

Barbara County District Attorney’s Office.  The verifications do not indicate that the individual is authorized to sign on behalf of the People, or even the Office.  The State refused to correct this oversight.

On October 31, 2025, National CPR wrote to the People regarding several deficiencies in the People’s discovery responses.  The parties thereafter met and conferred by Zoom on

On December 2, 2025, the People served amended responses to discovery, which addressed many of the earlier discovery deficiencies, but not the issues which form the basis of this motion. 

On December 23, 2025, the parties met and conferred again about subject discovery issues.  The People, nonetheless, indicated thereafter it was standing on its objections on the subject issues

On January 14, 2026, Defendants noted to the People that its verifications failed to indicate that the signor was authorized to do so.  The People responded that it would not be modifying its verifications.  This motion follows.

The scope of discovery, as set forth in Code of Civil Procedure section 2017.010 and numerous decisions thereafter, is extremely broad. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action.  The scope of allowable discovery is broader than strict relevancy to the issues raised by the pleadings. Evidence is relevant to the subject matter if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement thereof.  Doubts about the permissible scope of discovery are to be resolved in favor of disclosure. 

First, National CPR seeks discovery of matters placed directly at issue by the pleadings, i.e., affirmative defenses which assert that the State failed to provide notice to Defendants of its novel interpretation and an opportunity to bring itself in conformance therewith.  Code of Civil Procedure section 2017.010 expressly allows for such discovery, i.e., “discovery may relate to the claim or defense.”  Here, the information is directly relevant the pleadings—i.e., Defendants’ Seventh and Twelfth affirmative defenses—and, as such, discovery is expressly permitted.

Second, based on the People’s objections, it appears that the People do not believe that the defenses are proper and, based on that assumption, has objected that discovery requests seeking information and documents in support thereof are irrelevant.  But the People do not get to unilaterally decide if a defense is proper and then, disregard discovery requests if it feels it is not.  If the People believed any of Defendants’ defenses were not proper, it needed to bring a demurrer or otherwise seek to have them stricken.  It did not do so.  Accordingly, the defenses are part of the case and, as such, National CPR has

the right to obtain discovery concerning those defenses.  

Third, while National CPR is entitled to the discovery sought because it relates to affirmative defenses pled regardless of the strength of the defenses, it nonetheless notes that the concept of “fair notice” is a bedrock principle in American and Californian jurisprudence, i.e., that the government cannot change its interpretation of a law and then penalize regulated parties for past conduct without giving notice and a reasonable opportunity to comply.  Here, Defendants will present evidence at trial that National CPR has conducted business and marketed its programs in substantially similar fashion since 2012.  Further, they will show that dozens of other online CPR training providers have marketed themselves in the same way, too.  Thus, National CPR conduct was consistent with industry custom and, based on its review and analysis of OSHA regulations and guidelines, it reasonably believed that its training programs were consistent with OSHA guidelines and, hence, could reasonably represent such to the public. 

Defendants further contend that the Santa Barbara County and Riverside County District Attorney Offices are not the proper agencies to interpret OSHA’s CPR training requirements and, thereafter, bring an enforcement action against a CPR training provider where they believe that a training program does not satisfy their interpretation OSHA guidelines and, hence, any marketing suggesting otherwise to be misleading.  Nonetheless, if those DA Offices wished to wade into these waters, it was incumbent upon them to provide “fair notice” to National CPR and other online training CPR providers of their position and an opportunity for them to bring their training programs or marketing in conformance with the DA Offices’ new interpretation of the OSHA standards.  The discovery at issue seeks information and documents directly in support of these defenses.  

Request for Production 41, Request for Admission 52 and Form Interrogatory 17.1 re Request for Admission 52 sought documents and information concerning fair notice and opportunity to conform conduct in accord with new guidelines provided by the DA Offices.  The State objected on the grounds of ‘relevance’ and refused to answer the requests and, as to 17.1 re Request for Admission 52, provided no response at all.  The State may not unilaterally determine that certain affirmative defenses are ‘irrelevant’ and refuse to

provide discovery.  Accordingly, Defendants request that the Court compel Plaintiffs to provide substantive responses to the foregoing discovery.

The State’s verifications, signed by one of its investigators, failed to state that the investigator is an authorized agent or otherwise indicate that he has the authority to verify the discovery responses on behalf of the People.  Code of Civil Procedure section 2030.250 provides that “[i]f that party is a public or private corporation, or a partnership, association, or governmental agency, one of its officers or agents shall sign the response under oath on behalf of that party.”  As the investigator is not a corporate officer of the People, he presumably signed as the State’s agent.  The verifications, however, fail to indicate that he is so authorized. 

It is puzzling why the State, here, would not simply include this language, removing any issue as to whether the verifications were “authorized” and, hence, binding on the State.  National CPR requests that the Court order the State to provide amended verifications, indicating the signor is “authorized” to sign on behalf of the People or, at least, the DA’s Office; alternatively, Defendants request that the Court deem the responses and verifications binding on the People for all purposes in this case.  

For the foregoing reasons, the People should be compelled to provide responses to Request for Production 41, Request for Admission 52 and Form Interrogatory 17.1 as it relates to Request for Admission 52 without objections.  National CPR further requests that the Court order the State to provide amended verifications, indicating the signor is “authorized” to sign the verifications or, alternatively, request that the Court deem the responses and verifications binding on the People for all purposes in this case.  National CPR requests that the Court Order the State to serve answers, without objections, and any

amended verifications within two weeks of the hearing date.  

Supported by Separate Statement, Declaration of Sean Ponist, Request for Judicial Notice.

The People’s Response

Filed 1/29/26; Memorandum of Points and Authorities: The Court should deny Defendants’ Motion to Compel because the discovery demands at issue, Request for Production 41 and Request for Admission 52 (inclusive of the related Form Interrogatory (“FROG”) 17.1), do not seek “matter … that is relevant to the subject matter involved in the pending action.”  (Code Civ. Proc., § 2017.010.)  These demands do not request information that would support, or otherwise be rationally related to the Seventh and Twelfth Affirmative Defenses.  Also, the Seventh and Twelfth Affirmative Defenses are not applicable in this UCL/FAL action as a matter of law, and thus discovery to obtain facts to support them is inherently not relevant to this action.  Moreover, Defendants’ discovery demands seek only information related to the People giving Defendants, before filing this action, a period to take corrective action and to correct the People’s concerns.  However, the People had no legal requirement to give Defendants notice of their unlawful conduct and an opportunity to cure that conduct; whether such opportunity was given is not a defense to UCL or FAL claims and is thus wholly irrelevant.

The Court is familiar with the allegations of this law enforcement prosecution: the People allege that Defendants marketed and sold online-only CPR training in violation of California’s false advertising and unfair competition laws, Business and Professions Code sections 17200 and 17500.

The Discovery Requests at Issue Are Not Related to the Seventh and Twelfth

Affirmative Defenses. In their Motion, Defendants argue that RFP 41 and RFA 52 are related to their Seventh and Twelfth Affirmative Defenses and are therefore appropriate avenues of discovery.  This is not correct.  In their Seventh Affirmative Defense, titled “Arbitrary/Capricious Action Without Justification/Explanation,” Defendants plead:

Plaintiff has arbitrarily and capriciously sought to enforce the laws against Defendants. Defendants have conducted their business and marketing practices consistent with the law for many years. Plaintiff has, however, recently shifted its interpretation of the law without notice to Defendants or the industry. Further, Plaintiffs have, inter alia, taken a small number of isolated complaints on two business review websites and imputed a broader

course of deception on Defendants’ business practices to advance their new interpretation. Plaintiffs have, inter alia, picked approximately ten (10) unsatisfied customers, out of hundreds of thousands of customers, to incorrectly claim the broader public is being misled. Additionally, Plaintiffs continue to allow similarly situated businesses to engage in the same business practices uninterrupted.  Amended Verified Answer [“Amended Answer”], Nov. 21, 2025, at p. 20.)

In their Twelfth Affirmative Defense, titled “Unconstitutional Vagueness, Lack of Notice, and Violation of Due Process,” Defendants plead: Plaintiff’s enforcement of the law (Business & Professions Code section 17200 and 17500 claims) suffers from unconstitutional vagueness. A law is unconstitutionally vague where, as here, it fails to give a person of ordinary intelligence fair notice of what is prohibited or is so standardless that it authorizes or otherwise permits discriminatory or selective enforcement. Unconstitutional vagueness fails to provide fair notice to parties in violation of due process rights. Plaintiffs have applied the law in novel, standardless, selective manner against Defendants, depriving them of fair notice and due process.

In short, Defendants plead that they are complying with industry customs and that the People are selectively enforcing the FAL and UCL against them because these statutes are unconstitutionally vague.  Notably, they do not plead that they were not afforded notice of the specific violations pled by the People in the Complaint or that they did not get an opportunity to cure.  They plead lack of notice, but in the broader context that the UCL and FAL are unconstitutionally vague and thus do not give notice to the public about what is and is not prohibited by these statutes, which in turn somehow means that the People’s enforcement is “selective.”  

They also plead a lack of notice concerning the People’s interpretation of the law, which, again, is not related to whether the People notified them about the violations in the Complaint or a cure period.  In addition, there is no basis in the law for the People to provide pre-lawsuit notice of its interpretation of the law.  On its face, this is an absurd proposition; for example, the People, acting through multiple District Attorneys and City Attorneys and the Attorney General, would have to issue press releases every time they decided whether a particular course of conduct violated, or potentially violated the law.  The forum to address the People’s interpretation of the law is this lawsuit and its

attendant proceedings, not some sort of pre-filing notice requirement.

Even taking these affirmative defenses at face value, RFP 41 and RFA 52 are not related to them.  RFP 41 requests “All DOCUMENTS showing that YOU gave DEFENDANTS an opportunity to take corrective action before filing this lawsuit.”  (National CPR Foundation, LLC’s [“NCPRF’s”] First Set of RFPs to the People, Aug. 18, 2025, at p. 8.)  RFA 52 is very similar and requests that the People “Admit that YOU did not give DEFENDANTS an opportunity to correct YOUR concerns before filing this lawsuit.”  (NCPRF’s First Set of RFAs to the People, Aug. 18, 2025, at p.  8.) 

Whether Defendants had an opportunity to correct—a cure period—is not related to compliance with industry customs, selective enforcement, the People’s interpretation of the law, or the People’s exercise of discretion to file this action.  These Requests do not seek to clarify any alleged vagueness in the UCL or FAL or the Complaint.  Accordingly, the People properly objected to these Requests.

The People did not respond to FROG 17.1 in relation to RFA 52 because the response to RFA 52 was solely an objection.  Responding to FROG 17.1 seems like an essentially empty exercise, especially if the response would have been that RFA 52 is objectionable.  Nor did Defendants provide any legal authority stating that a response to FROG 17.1 is required when the response to the related RFA is solely an objection.

The discovery requests at issue are not connected to the Seventh or Twelfth Affirmative

Defenses.  Accordingly, Defendants’ Motion to Compel responses to those discovery requests should be denied.

The Seventh and Twelfth Affirmative Defenses Are Inapplicable as a Matter of Law

Defendants incorrectly argue that the People “needed to bring a demurrer or otherwise seek to have them [the Seventh and Twelfth Affirmative Defenses] stricken” and therefore these defenses are “part of the case.”  They are “part of the case” because Defendants pled them.

However, by not demurring to the Amended Answer, the People have not waived their ability to contend that the Answer does not state facts sufficient to constitute a defense.  (Code Civ. Proc., § 430.80, subd. (b).)  Because these defenses are inapplicable in UCL/FAL actions as a matter of law, even if RFP 41 and RFA 52 did relate to them—which they do not—the information sought by RFP 41 and 52 would be irrelevant.  In other words, discovery demands to support inapplicable affirmative defenses inherently seek information not relevant to the subject matter of the action.

The Seventh Affirmative Defense Is Inapplicable. Though the discovery requests at issue are not related to the Seventh or Twelfth Affirmative Defenses, assuming arguendo that they were, the Seventh Affirmative Defense is inapplicable as a matter of law, and therefore, discovery related to that affirmative defense is impermissible. Defendants plead in the Seventh Affirmative Defense that they are complying with industry customs and that the People are selectively enforcing the UCL and FAL. 

These defenses are inapplicable to the causes of action in this case as a matter of law.  In Chern v. Bank of America (1976) 15 Cal.3d 866, 876, a false advertising case, the California Supreme Court rejected the Defendant bank’s assertion that deceptive interest rate statements were not actionable because they were commonplace in the banking industry.  Even if a practice is an industry custom or widespread, that is not a defense under the UCL or FAL.  (People v. Cappuccio (1988) 204 Cal.App.3d 750, 761–763.) In cases involving the use of the “unlawful” prong of the UCL, Courts have consistently rejected the defenses of good faith or good intentions.  (Bus. & Prof. Code, § 17200.)  The California Supreme

Court concluded that Courts “need not undertake the task of determining the ‘fairness’ of Defendant’s alleged conduct in light of contemporary standards” where the allegation is that the Defendant violated the law.  (Barquis v. Marchants Collection Assn. of Oakland, Inc. (1972) 7 Cal.3d 94, 112.) Prosecutors may select among similarly situated Defendants, including those in false advertising and unfair competition matters, if invidious criteria, such as race, religion or national origin, are not employed.  (Murgia v. Mun. Ct. (1975) 15 Cal.3d 286, 290–291, 299–301.) 

Defendants have not pled anything concerning selective enforcement of this sort; they have solely plead selective enforcement based on an interpretation of the law that Defendants do not agree with.  Yet no previous case law is required to put a Defendant on notice that a particular practice violates the UCL or FAL.  Because the Seventh Affirmative Defense is inapplicable to UCL and FAL actions as a matter of law, the People correctly objected to the discovery requests.

The Twelfth Affirmative Defense Is Inapplicable Because Neither the Causes of Action Nor the UCL and FAL Are Unconstitutionally Vague. Ironically, it is unclear what Defendants are alleging in their Twelfth Affirmative Defense. Defendants are either pleading that the Causes of Action in the Complaint are unconstitutionally vague, or that the UCL and FAL are unconstitutionally vague.  The allegation that “Plaintiff’s enforcement of the law (Business & Professions Code section 17200 and 17500 claims) suffers from unconstitutional vagueness” implies that the Causes of Action are unconstitutionally vague.  But the further allegation that “[a] law is unconstitutionally vague where, as here, it fails to give a person of ordinary intelligence fair notice of what is prohibited” implies that the UCL and FAL themselves are unconstitutionally vague. 

Assuming Defendants are alleging that the Causes of Action are unconstitutionally vague, then Defendants are rehashing an argument they presented in their Demurrer and Motion to Strike, both of which this Court previously overruled and denied, respectively.

Assuming Defendants are arguing that the UCL and FAL themselves are unconstitutionally vague, California Courts have consistently rejected these challenges to the UCL and FAL, holding that these statutes provide adequate notice of prohibited conduct and sufficient guidelines for enforcement.

As already determined by this Court, and other Courts, neither the Causes of Action, the UCL, nor the FAL, are unconstitutionally vague.  Because the Twelfth Affirmative Defense is inapplicable to UCL and FAL actions as a matter of law, the People correctly objected to the discovery requests.  To the extent this defense alleges that this purported vagueness leads to selective enforcement, that argument is a non-starter for the reasons set forth above concerning the Seventh Affirmative Defense.

The People’s Verifications Are Code Compliant. As Defendants correctly point out, Code of Civil Procedure section 2030.250 states that if the party “is a public or private corporation, or a partnership, association, or governmental agency, one of its

officers or agents shall sign the response under oath on behalf of that party [emphasis added].”  First, Plaintiff, the People of the State of California, are not a governmental agency.  The District Attorneys of Santa Barbara and Riverside Counties brought this action “in the name of the people of the State of California” pursuant to statute.  As

such, the District Attorneys represent the collective sovereignty of the inhabitants of the state.  Thus, it is unclear whether a verification is even required in this case.  

Second, even if verifications are required, the Code does not require a governmental agency to specify the responses were verified by an officer or agent.  Nor does the Code require that the verification explicitly state that the person signing has authority to do so.   Defendants filed sample verifications that do explicitly assert this authority, but that seems to be more of a “belt and suspenders” approach; it is not a legal requirement.  All that is required is that the discovery responses were, as they were here, signed by an officer or agent under oath on behalf of the governmental agency.  Here, Investigator Parmelee’s authority to sign on behalf of the People was implicit.  Investigator Parmelee

stated that he is an investigator for the Santa Barbara County District Attorney’s Office, which represents the People in this action.  It would be nonsensical to interpret that he was signing on behalf of anyone but the People.  To the extent that the People are required to verify discovery responses, Defendants are exalting form over substance; the People’s verifications are compliant.

For the reasons set forth above, Defendants’ Motion to Compel should be denied.

National CPR’s Reply

Filed by National on 2/4/26; summarized: “The forum to address the People’s interpretation of the law is this lawsuit and its attendant proceedings” Although the People make this statement, they have denied National CPR discovery related thereto.  

In this case, the State has alleged, inter alia, that the National CPR has misleading advertised that its training program complies with OSHA.  According to the State, National CPR’s program does not comply with OSHA because OSHA requires hands-on training.  Contrary to the suggestion of the State, however, there is not a list of OSHA “requirements” available anywhere and there is not any statement of OSHA indicating that all CPR training “must” have a hands-on training component.   In fact, there is only one industry, logging, for which OSHA regulations “require” hands-on CPR training.  Thus, the State’s position—i.e., that OSHA requires hands-on training for any CPR training

programs—is not based on law or regulation, but its unique, recent interpretation of the OSHA law.  Where, as here, there is to be a novel interpretation and enforcement of the law, businesses are entitled to “fair notice.”  This, however, was not provided here.

To distract this Court from this point:

First, the State erroneously characterizes National CPR’s affirmative defenses as an attack on the unconstitutionality of Business and Professions Code section 17200 and 17500.  (Opp., 3:18-21.)  It is not.  

Second, the State erroneously asserts that National CPR’s affirmative defenses do not support the discovery at issue.  (Opp., 4:27-5:2.)  They do.  

Last, the State ignores the broad scope of discovery which entitles National CPR to this

discovery, even if not clearly articulated by an affirmative defense, so long as it is relevant to the case.

While the State has gone to great lengths to confuse this Court as to National CPR’s affirmative defenses and its purpose for its discovery request, National CPR’s defenses and discovery requests are clear—National CPR asserts that the State’s enforcement action is predicated on a novel interpretation of OSHA guidelines, and that the State has failed to provide the required notice to regulated parties and an opportunity for them to comply with their interpretation.  National CPR, through its discovery requests, seeks information related to whether the State provided National CPR with the opportunity to cure or

otherwise bring itself in compliance with the State’s novel interpretation, i.e., any evidence of “fair notice.”

If the State did not provide “fair notice,” then it can simply and easily indicate as much in its responses, and it would have nothing to produce.  If, on the other hand, the State did provide “fair notice,” then it can simply and easily indicate as much in its responses and produce the supporting documents. 

But, in either event, the State is not entitled to unilaterally determine if a defense is appropriate and refuse to respond to discovery on that basis.  

The standard for discovery is general relevancy to the subject matter.  Instead of addressing its refusal to respond to relevant discovery, the State seeks to attack the Defendants’ pleadings and theory of the case.  This is not the time nor the place to do so.  This is discovery.  As set forth in the moving papers: The State does not get to unilaterally decide if a defense is proper and then disregard discovery requests if it feels it is not.  If Plaintiff believed any of Defendants’ defenses were not proper, it needed to bring a demurrer or otherwise seek to have them stricken.  It did not do so.  Accordingly, the defenses are part of the case and, as such, National CPR has the right to obtain discovery concerning those defenses.   Again, while neither the time nor the place, Defendants’ “fair notice” defense is a bedrock principle in Californian and American jurisprudence. In FCC v. Fox Television Stations, Inc. (2012) 567 U.S. 239, 253, the Court emphasized it is a “fundamental principle in our legal system [] that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required.”  There, the Federal Communications Commission (“FCC”) changed its policy on what was considered “indecent” during daytime hours to include expletives and brief nudity. 

The Court held that broadcasters had a constitutional right to be warned, in advance, of what the FCC’s new policy prohibited, and, since the new policy was imposed after the broadcasts had aired, the broadcasters did not have the requisite fair notice.  While the FCC argued a previous advisement that televising nudity might result in a violation, the Court stated, “an isolated and ambiguous statement from a 1960 Commission decision does not suffice for the fair notice.”  Further, the FCC’s prior decisions to not find brief nudity actionable contributed to the lack of fair notice.  In Christopher v. SmithKline Beecham Corp. (2012) 567 U.S. 142, 152, in declining to adopt the Department of Labor’s position, the Court noted “where [] agency's announcement of its interpretation is preceded by a very lengthy period of conspicuous inaction, the potential for unfair surprise is acute.”  The Court acknowledged while there was a possibility the entire industry could be in violation of the law, “the more plausible hypothesis” was that the regulating industry did not think the practice was unlawful.  The Court further noted that the industry practice of classifying exempt employees, the lack of enforcement actions thereto, and the failure to otherwise suggest the industry was engaging in unlawful practice were contributors to “unfair surprise.”  In Kerman Telephone Co. v. Public Utilities Com. (2023) 94 Cal.App.5th 920, the Public Utilities Commission (“Commission”) was penalizing companies for not disclosing redemption proceeds to determine ratemaking treatment.  The Petitioners challenged the penalty, asserting they were entitled to fair notice that they were required to disclose redemption proceed amounts in full.  The Appellate Court found that Petitioners cannot be expected to “intuit the disclosure requirement” absent express notice.    Importantly, the Court acknowledged, “No matter the type of law an agency is enforcing, regulated parties are always entitled to fair notice of what is prohibited or required before they can be punished for a violation.”  As such, the Court found that the penalties were a violation of due process.  In Gates & Fox Co., Inc. v. Occupational Safety and Health Review Com’n (1986) 790 F.2d 154, 156, the Court, in reviewing an OSHA code violation, acknowledged the deference that is typically due agency interpretations, but noted that deference does not absolve the requirement to provide fair warning of the conduct prohibited, later citing the many occupational safety and health standard violations for

employers that have been overturned for lack of fair notice. In rejecting the assertion Gates & Fox were provided notice via a prior warning from the general contractor’s safety inspector, the Court stated the “warning” did not come from OSHA but rather “some person” who had merely read the OSHA regulation and therefore the interpretation was “not an authoritative interpretation of the regulation.”  As such, the Court held that the “notice” that was provided was insufficient.

Here, the State’s claim that National CPR falsely represented compliance with OSHA standards necessarily requires the State to prove that National CPR’s training, in fact, failed to comply with OSHA guidelines.  National CPR will present evidence at trial that it has conducted business and marketed its programs consistently since 2012, without incident.  Now, more than a decade later, the State has unilaterally, and without any notice, determined that OSHA requires CPR training programs to have a requires a hands-on component and, therefore, National CPR’s training program fails to comply OSHA guidelines and, hence, any statements suggesting otherwise are misleading.  National CPR’s affirmative defenses succinctly and directly address the State’s novel and subjective interpretation of OSHA’s guidelines and subsequent civil enforcement action based thereon. 

The People have provided no countervailing authority to suggest the concept of fair notice is not properly at issue here.  Rather, wholly ignoring the bedrock concept of fair notice and the legal authority thereto, the People, missing the mark entirely, conclusively asserts that because National CPR’s “defenses are inapplicable in UCL/FAL actions as a matter of law,” and that the discovery sought thereto is irrelevant. 

The straw man fallacy is the distortion of someone else’s argument to make it easier to attack or refute. By placing it in the opponent’s mouth and then attacking that version of the argument, one is essentially refuting an argument that is different from the one under discussion. Here, the State contends that National CPR argues that the UCL/FAL are unconstitutionally vague.  But National CPR does not make that argument nor did it allege as much in its answer. Thus, the State’s citation to authority upholding 17200/17500 misses the mark. 

Similarly, the State argues that National CPR has asserted an industry custom and standard defense under the UCL or FAL.  But National CPR does not make that argument, nor did it allege as much in its answer. Thus, the State’s citation to authority negating that defense misses the mark.  Likewise, the State misattributes to National CPR a good faith and fair intentions defense.  But National CPR does not make that argument, nor did it allege as much in its answer   Thus, the People’s citation to authority negating that defense misses the mark.  While the People’s attempts to distract the Court with authority concerning defenses not raised and arguments not made, it importantly fails to address any of the authorities cited by National CPR concerning fair notice. 

In its moving papers, National CPR stated: While National CPR is entitled to the discovery sought because it “relates” to affirmative defenses pled regardless of the strength of the defenses, it nonetheless notes that the concept of “fair notice” is a bedrock principle in American and Californian jurisprudence, i.e., that the government cannot change its interpretation of a law and then penalize regulated parties for past conduct without giving notice and a reasonable opportunity to comply. 

Tellingly, the People fail to address any of the authorities and, thus, its attack on National CPR’s Affirmative Defenses Put at Issue the “Fair Notice” Doctrine, entitling it to Discovery Related thereto. As set forth in Code of Civil Procedure section 2017.010, “Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action.” 

Here, in its Seventh and Twelfth Affirmative Defenses, National CPR has alleged, inter alia, that: Defendants have conducted their business and marketing practices consistent with the law for many years.  The People, however, recently shifted its interpretation of the law without notice to Defendants or the industry and failed to provide fair notice to parties in violation of due process rights.  Plaintiffs have applied the law in novel, standardless, selective manner against Defendants, depriving them of fair notice and due process. These allegations put at issue the “fair notice” doctrine defense.  The discovery at issue concerning the State’s notice and opportunity for National CPR and others to bring themselves into conformance with its novel interpretation are directly related to this

defense.  (See Separate Statement, Request for Production 41 seeking “All DOCUMENTS showing that YOU gave DEFENDANTS an opportunity to take corrective action before filing this lawsuit” and Request for Admission 52 asking Plaintiff’s to “Admit that YOU did not give DEFENDANTS an opportunity to correct YOUR concerns before filing this lawsuit”).

Accordingly, National CPR is entitled to such discovery.

The State asserts it did “not respond to FROG 17.1 in relation to RFA 52 because the response to RFA 52 was solely an objection.”  Form 17.1, however, clearly states: “Is your response to each request for admission served with these interrogatories an

unequivocal admission?  If not, for each response that is not an unequivocal admission:  

(a) state the number of the request; 

(b) state all facts on which you base your response;

(c) state the names, ADDRESSES, and telephone numbers of all PERSONS who have

knowledge of those facts; and

(d) identify all DOCUMENTS and other tangible things that support your response and

state the name, ADDRESS, and telephone number of the PERSON who has each

DOCUMENT or thing. The instructions for Form Interrogatories further require: “If you are asserting a privilege or making an objection to an interrogatory, you must specifically assert the privilege or state the objection in your written response. Regardless of whether the People believes it to be “an essentially empty exercise,” the People are required to provide a response.

The People, in its opposition, equivocally indicates that Mr. Parmelee has signed the verification on its behalf, yet, again, inexplicably failing to expressly state that he is authorized to sign on behalf of the State.  It remains unclear why the State continues to object to amending the verifications to indicate that Mr. Parmelee is authorized to sign them. The State further equivocally indicates, “All that is required is that the discovery responses were, as they were here, signed by an officer or agent under oath on behalf of the governmental agency.”  which is Mr. Parmelee signing as, an officer or an agent?  If the latter, then, again, why not indicate that he is authorized to do so, as standardly the case. The People, again, auspiciously refraining from indicating that he is, in fact, authorized to sign on behalf of the People, indicates that “Investigator Parmelee’s authority to sign on behalf of the People was implicit.”  But it is not—as articulated in National CPR’s Motion, Mr. Parmelee is an “investigator” and it is not inherently obvious that he is an authorized agent to sign on behalf of the DA’s Office, much less the People of the State of California.  While Mr. Dalbey and Mr. Evans authority to appear on behalf of the “People” may be implicit, an investigator’s authority to bind the People is not.  For that very reason, language indicating the signatory is so “authorized” eliminates unnecessary confusion in what is otherwise a very routine aspect of civil litigation.  While the State dismisses the concern as “form over substance,” the fact of the matter is, particularly in civil enforcement actions, form and substance are often held in equal regard.  For the foregoing reasons, the People should be compelled to provide responses to Request for Production 41, Request for Admission 52 and Form Interrogatory 17.1 as it relates to Request for Admission 52 without objections.  National CPR further requests that the Court order the State to provide amended verifications, indicating the signor is “authorized” to sign the verifications or, alternatively, request that the Court deem the responses and verifications binding on the People for all purposes in this case.  National CPR requests that the Court Order the State to serve answers, without objections, and any amended verifications within two weeks of the hearing date.  

The Court’s Conclusions

The Court has read and reviewed the arguments made and finds the People’s argument is more persuasive.