Bingo Innovations of Cal. v. Shimazu CA3

Filed 9/11/14 Bingo Innovations of Cal. V. Shimazu CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

BINGO INNOVATIONS OF CALIFORNIA, INC. et C073306 al., (Super. Ct. No. 34-2012- Plaintiffs and Respondents, 80001139-CU-WM-GDS)

v.

STEPHANIE SHIMAZU et al.,

Defendants and Appellants.

Plaintiffs Bingo Innovations of California, Inc., Desert Hot Springs Lodge 2639 B.P.O.E., and Robert Rubio (collectively, Bingo Innovations) sued the members of the Gambling Control Commission of California (Stephanie Shimazu, Tiffany Conklin, Lauren Hammond, and Richard Schuetz) and that agency (collectively, the Commission), asserting it had a mandatory duty to process license applications for “remote caller bingo” sessions, despite a lack of or inadequacy of legislatively appropriated funds. The trial court granted mandamus relief, and the Commission timely filed this appeal.

1

Although we normally confine our review to matters that were before the trial court, “courts have not hesitated to consider postjudgment events when legislative changes have occurred subsequent to a judgment [citations] or when subsequent events have caused issues to become moot.” (Reserve Insurance Co. v. Pisciotta (1982) 30 Cal.3d 800, 813.) The parties agree in their briefs that the statute governing this dispute, Penal Code section 326.31 was substantially amended post judgment, and that another agency now has primary authority for processing these types of license applications, and has actually begun to do so. For reasons we shall explain in more detail post, it seems clear that the trial court’s judgment would have differed had these circumstances manifested before the judgment was entered. Because the parties continue to dispute the factual significance of the statutory change, we shall reverse and remand with directions to the trial court to reopen the matter and conduct further proceedings consistent with this opinion. BACKGROUND Bingo Innovations filed a petition for administrative mandamus and injunctive relief, alleging as follows: On July 1, 2008, the ability of charities to use electronic devices to conduct bingo games was terminated “in favor of exclusive use by Native- American reservation gaming facilities.” A “Charity Bingo Mitigation Fund” was established “to ‘ease the transition of Remote [Caller] Bingo,’ which was made available to charities as a substitution for electronic machines.” Section 326.3 sets forth the license and control scheme to oversee this form of gaming. However, “[o]n May 26, 2011, [the Commission] unilaterally purported to ‘terminate the remote caller bingo program’ and stopped reviewing license applications, effective June 7, 2011.” Over 100 potential licensees “were prepared” to apply for licenses, but could not do so because of the