2d Civil No. B241631 L.A.S.C. Case No. BS131915

In The Court of Appeal State of California

SECOND APPELLATE DISTRICT DIVISION SEVEN

DAVID R. DAVIS, BRIAN GOLDSTEIN, JACOB DANIEL HILLM,ERIC FEDER, PAUL COHEN, CHRIS BUTLER, JILL BROWN, AND LISA SIEGEL,

Petitioners, APPELLANTS, v.

CITY OF LOS ANGELES, et al., Respondents, RESPONDENTS.

APPEAL FROM SUPERIOR COURT OF LOS ANGELES COUNTY

HONORABLE JAMES C. CHALFANT, JUDGE PRESIDING

RESPODENTS' BRIEF

MICHAEL N. FEUER City Attorney, SBN 111529 GREGORY P. ORLAND

Deputy City Attorney, SBN 107099

900 City Hall East 200 North Main Street

Los Angeles, California 900 12 Voice: 213.978.7732; Fax: 213.978.7710

Attorneys for Respondents CITY OF LOS ANGELES and CHARLES BECK

TO BE FILED IN THE COURT OF APPEAL APP-008

COURT OF APPEAL, Second APPELLATE DISTRICT, DIVISION p Court of Appeal Case Number.

B241631 AITORNEY OR PARTY WITHOUT AITORNEY (Name, State Bar number, and address): Superior Court Case Number.

Carmen A. Trutanich, City Attorney BS131915 -oregoiY P. Orland, Deputy City Attorney, SBN 107099

200 N. Main Street, 900 CHE FOR COURT USE ONLY

Los Angeles, CA 90012 TELEPHONE NO.: 213-978-7732 FAX.NO.(Optional): 212-978-7710

E-MAIL ADDRESS (OptionaQ:

AITORNEY FOR (Name): City of Los Angeles, et al

APPELLANT/PETITIONER: David R. Davis, et al

RESPONDENT/REAL PARTY IN INTEREST: City of Los Angeles, et al.

CERTIFICATE OF INTERESTED ENTITIES OR PERSONS

(Check one): [l] INITIAL CERTIFICATE 0 SUPPLEMENTAL CERTIFICATE

Notice: Please read rules 8.208 and 8.488 before completing this form. You may use this form for the initial certificate in an appeal when you file your brief or a prebriefing motion, application, or opposition to such a motion or application in the Court of Appeal, and when you file a petition for an extraordinary writ. You may also use this form as a supplemental certificate when you learn of changed or additional information that must be disclosed.

. ~

1. This fonn is being submitted on behalf of the following party (name):_C_i_,ty'--o_f_L_o_s_A_n-'=g'-e_le_s.:...,_e_t_a_l. __________ _

2. a. [l] There are no interested entities or persons that must be listed in this certificate under rule 8.208.

b. D Interested entities or persons required to be listed under rule 8.208 are as follows:

(1)

(2)

(3)

(4)

(5)

Full name of interested entity or person

D Continued on attachment 2.

Nature of interest (Explain):

The undersigned certifies that the above-listed persons or entities {corporations, partnerships, firms, or any other association, but not including government entities or their agencies) have either (1) an ownership interest of 10 percent or more in the party if it is an entity; or (2) a financial or other interest in the outcome of the proceeding that the justices should consider in determining whether to disqualify themselves, as defined in rule 8.208(e)(2).

Date: July 2, 2012

Gregory P. Orland

Form Approved for Optional Use Judicial Council of California

APP-008 [Rev. January 1. 2009]

(TYPE OR PRINT NAME)

CERTIFICATE OF INTERESTED ENTITIES OR PERSONS Page 1 of 1

Cal. Rules of Court, rules 8.208, 8.488 www.courlinfo.ca.gov

TOPICAL INDEX

INTRODUCTION .................................................................................................... 1

STATEMENT OF THE CASE ................................................................................ 2

A. Assenza Judgment Historical Background ......................................... 2

B. Davis Petition For Writ ...................................................................... 3

STATEMENT OF FACTS ..................................... · .................................................. 4

A. LAPD Policy And Judgment's Good Cause Requirements ............... 4

B. The Six Appellants' CCW Permit Applications Were Denied Pursuant To The Policy ...................................................................... 5

._->-.. •• ;!~ ••

C. The Trial Court's Ruling And Statement Of Decision .................... 14 · ~

STANDARD OF REVIEW ................................................................................... 16

DISCUSSION ........................................................................................................ 18

I. THIS COURT IS WITHOUT JURISDICTION TO CONSIDER APPELLANTS' APPEAL BECAUSE THEY ARE NOT THIRD PARTY BENEFICIARIES TO THE ASSENZA STIPULATED JUDGMENT .......................................................................................... 18

II. ASSUMING THIS COURT CONCLUDES APPELLANTS ARE INTENDED THIRD PARTY BENEFICIARIES, THIS COURT IS WITHOUT JURISDICTION TO CONSIDER APPELLANTS' APPEAL BECAUSE INTENDED THIRD PARTY BENEFICIARIES HAVE NO STANDING TO ENFORCE STIPULATED JUDGMENTS .............................................................. 22

A. California Law Recognizes "Stipulated Judgments" Not "Consent Decrees." Irrespective Of The Label The General Public Does Not Have Automatic Standing To Enforce Stipulated Judgments ....................................................................... 22

B. Assuming Appellants Are Intended Third Party Beneficiaries To The Assenza Stipulated Judgment They Have No Standing to Enforce It. .................................................................................... 23

III. ASSUMING APPELLANTS ARE BOTH INTENDED THIRD PARTY BENEFICIARIES TO THE JUDGMENT AND THEY

IV.

HAVE STANDING TO ENFORCE THE ASSENZA STIPULATED JUDGMENT, AND ASSUMING THE RELEVANCE OF THE JUDGMENT TO THE ISSUES PRESENTED, THEY CANNOT ENFORCE IT BY MANDAMUS BECAUSE THEY HAVE AN ADEQUATE REMEDY AT LAW .............................................................................. 28

ASSUMING APPELLANTS HAVE STANDING AND ASSUMING THE APPLICABILITY OF THE JUDGMENT, MANDAMUS WILL NOT LIE TO COMPEL THE PERFORMANCE OF A MINISTERIAL DUTY BECAUSE THE ISSUANCE A CCW PERMIT REQUIRES THE OF EXERCISE ,, DISCRETION ....................................................................................... 30

A. The Stipulated Judgment Cannot Authorize The City To Contract Away Its Discretionary Police Power Duty When Issuing CCW Permits ....................................................................... 30

B. The Judgment's Language Requires The Chief Of Police To Exercise Discretion Before Issuing CCW Permits, Even For The Five Good Cause Categories At Section F(2) ........................... 31

V. THE CHIEF OF POLICE'S DECISION THAT APPELLANTS' SHOULD NOT BE ISSUED CCW PERMITS WAS WITHIN THE PROPER EXERCISE OF HIS POLICE POWER DISCRETION ....................................................................................... 36

VII. ASSUMING FOR THE SAKE OF ARGUMENT ONLY THE JUDGMENT IS REVERSED, THE ATTORNEYS' FEE ISSUE IS PREMATURE; THE ISSUE IS ONE FOR THE TRIAL COURT TO FIRST ADDRESS ............................................................ 44

CONCLUSION ...................................................................................................... 45

WORD COUNT CERTIFICATE .......................................................................... 46

ATTACHMENT .................................................................................................... 47

ii

TABLE OF AUTHORITIES

CASES

Abbott Electric Corp. v. Storek (1994) 22 Cal.App.4th 1460 ........................................................................... 33

AIDS Healthcare Foundation v. Los Angeles County Dept. of Health (2011) 197 Cal.App.4th 693 ........................................................................... 17

Aiken v. City of Memphis (6th Cir. 1994) 37 F.3d 1155 .................................................................... 25, 28

Alliance for a Better Downtown Millbrae v." Wade (2003) 108 Cal.App.4th 123 .................................................................... 16, 17

American Coatings Assn. v. South Coast Air Quality Management Dist. ~ ~ . (2012) 54 Cal.4th 446 ................................................................................... :17 '';:·

Avco Community Developers, Inc. v. South Coast Regional Com. (1976) 17 Cal.3d 785 ...................................................................................... 31

Beckett v. Airline Pilots Ass 'n (D.C. Cir. 1993) 995 F.2d 280 ....................................................................... 27

Bergler v. Heckler (2d Cir. 1985) 771 F.2d 1556 ......................................................................... 27

Blue Chip Stamps v. Manor Drug Stores (1975) 421 U.S. 723 ............................................................... 24, 25, 26, 27,28

Brown v. Kling (1894) 101 Cal. 295 ........................................................................................ 31

Buckeye Co. v. Hocking Valley Co. (1925) 269 U.S. 42 ........................................................................................ 25

California School Bds. Assn. v. State of California (20 11) 192 Cal.App.4th 770 ........................................................................... 28

California State Auto. Assn. Inter-Ins. Bureau v. Superior Court (1990) 50 Cal.3d 658 ...................................................................................... 23

111

CBS, Inc. v. Block (1986) 42 Cal.3d 646 ................................................................................ 30, 37

Chavez v. City of Los Angeles (2010) 47 Cal.4th 970 .................................................................................... 44

Cilderman v. City of Los Angeles ( 1998) 67 Cal.App.4th 1466 .......................................................................... 42

Control Data Corp v. International Business Machines Corp. (D. Minn. 1969) 306 F. Supp. 309 ................................................................ 24

County Mobile home Positive Action Com., Inc. v. County of San Diego (1998) 62 Cal.App.4th 727 ......... \ .................................................................. 31

County of San Diego v. State of California (2008) 164 Cal.App.4th 580 ........................................................................... 17

""" "• ;:.!~ •• ~ .~

County of Santa Clara v. Astra United States (9th Cir. 2008) 588 F.3d 1237 .................................................................. 26, 28

Doe v. Briley (M.D. Tenn. 2007) 511 F.Supp.2d 904 .......................................................... 25

Erdelyi v. OBrien (9th Cir. 1982) 680 F.2d 61 ...................................................................... 37, 39

Estate of Powell (2000) 83 Cal.App.4th 1434 ........................................................................... 33

Ex Parte Luening (1906) 3 Cal.App. 76 ............................................................................... 30, 36

Fein v. Permanente Medical Group (1985) 38 Cal.3d 137 ...................................................................................... 33

Floyd v. Ortiz (lOth Cir. 2002) 300 F.3d 1223 ...................................................................... 27

Garcia v. World Savings (20 10) 183 Cal.App.4th 1 031 ......................................................................... 20

IV

Getty Oil v. Dept. of Energy (Temp. Em erg. Ct. Appeals 1988) 865 F .2d 270 ........................................... 25

Gifford v. City of Los Angeles (2001) 88 Cal.App.4th 801 ....................................................................... 17, 37

Golden Drugs Co., Inc. v. Maxwell-Jolly (2009) 179 Cal.App.4th 1455 ............................................................. 16, 17, 37

Guillory v. County of Orange (9th Cir. 1984) 731 F.2d 1379 ........................................................................ 39

Haligowski v. Superior Court (20 11) 200 Cal.App.4th 983 ........................................................................... 26

Harper v. Wausau Ins. Co. (1997) 56 Cal.App.4th 1079 ........................................................................... 18

Hodges by Hodges v. Public Building Comm 'n (N.D. Ill. 1994) 864 F.Supp. 1493 ................................................................ 27

Hook v. Ariz. Dep 't ofCorr. (9th Cir. 1992) 972 F.2d 1012 ............................................................ 26, 27, 28

Ike v. Doolittle (1998) 61 Cal.App.4th 51 ............................................................................... 33

In re Tobacco Cases I (2011) 193 Cal.App.4th 1591. ...................................................... 23, 24, 25, 28

Iscoffv. Police Commission (1963) 222 Cal.App.2d 395 ............................................................................ 42

Johnson Products Co. v. F. T. C. (7th Cir. 1977) 549 F .2d 3 5 ................................................................ 24, 25, 28

Kobzoff v. Los Angeles County Harbor/UCLA Medical Center (1998) 19 Cal.4th 851 .................................................................................... 32

Local 634 Sch. Cafeteria Workers v. Hanley (E.D. Pa. 1996) 1996 U.S. Dist. LEXIS 4422 ................................................ 26

v

Mallick v. Superior Court (1979) 89 Cal.App.3d 434 .............................................................................. 29

McComber v. Wells (1999) 72 Cal.App.4th 512 ....................................................................... 41,44

Mechanical Contractors Assn. v. Greater Bay Area Assn. (1998) 66 Cal.App.4th 672 ............................................................................. 31

Mitchell v. Manson (1942) 20 Cal.2d 48 ........................................................................................ 33

Neverkovec v. Fredricks (1999) 74 Cal.App.4th 337 ................................................................ 18, 19, 22

Nichols v. County of Santa Clara (1990) 223 Cal.App.3d 1236 ................................................................... 37, 39

..... ., ;!~- ~ ~

. ~

Nogart v. Upjohn Co. (1999) 21 Ca1.4th 383 .................................................................................... 23

Paterno v. State of California (1999) 74 Cal.App.4th 68 ......................................................................... 41, 44

People v. Jennings (2010) 50 Ca1.4th 616 ................................................................................... 37

People v. Ledesma (1997) 16 Ca1.4th 90 ...................................................................................... 33

Pomona Peace Officers' Assn. v. City of Pomona (1997) 58 Cal.App.4th 578 ............................................................................. 29

Pure Country, Inc. v. Sigma Chi Fraternity (8th Cir. 2002) 312 F.3d 952 .......................................................................... 27

R.E. Folcka Construction, Inc. v. Medallion Home Loan Co. (1987) 191 Cal.App.3d 50 ............................................................................... , 3

Ricci v. Okin (D. Mass. 2011) 770 F.Supp.2d 438 ............................................................. 25

vi

Riha v. State Farm Ins. Co. (S.D. Ind. 2007) 2007 U.S. Dist. LEXIS 602 ................................................ 25

Riveros v. City of Los Angeles (1996) 41 Cal.App.4th 1342 ........................................................................... 42

Roberts v. Assurance Co. of America (2008)163 Cal.App.4th 1398 ............................................................................ 3

Salter v. Douglas MacArthur State Tech. College (M.D. Ala. 1996) 929 F.Supp. 1470 .............................................................. 25

Salute v. Pitchess (1976) 61 Cal.App.3d 557 .............................................................................. 37

San Diego Housing Com. v. Industria/Indemnity Co. (2002) 95 Cal.App.4th 669 ............................................................................ 21

,_>... •• ;!~:-~'

. ~

Sanita v. Board of Police Co mrs. (1972) 27 Cal.App.3d 993 .............................................................................. 42

Scharlin v. Superior Court (1992) 9 Cal.App.4th 162 ............................................................................... 32

SEC v. Prudential Security, Inc. (D.C. Cir. 1998) 136 F.3d 153 ....................................................................... 27

Sessions v. Payroll Management, Inc. (2000) 84 Cal.App.4th 671 ............................................................................. 20

Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1 004 ................................................................... 18, 19

State Farm etc. Ins. Co. v. Superior Court (1956) 47 Cal.2d 428 ...................................................................................... 17

Sunset Amusement Co. v. Board of Police Commissioners (1972) 7 Cal.3d 64 .......................................................................................... 42

Transamerica Ins. Co. v. Sayble (1987) 193 Cal.App.3d 1562 .......................................................................... 32

Vll

United States v. Armour & Co., 402 U.S. 673 (1971) ....................................................................................... 24

United States. v. FMC Corp. (9th Cir. 2008) 531 F .3d 813 .......................................................................... 26

Vogel v. Cincinnati (6th Cir. 1992) 959 F.2d 594 .......................................................................... 25

Wade v. City and County of San Francisco (1947) 82 Cal.App.2d 337 .............................................................................. 42

Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1 .................................................................................. 18, 19

Walters v. Calderon (1972) 25 Cal.App.3d 863 .............................................................................. 18

... "- ., j.l~.-

. ~

Whiteside v. Tenant Healthcare Corp. (2002) 101 Cal.App.4th 693 ........................................................................... 20

STATUTES

Civil Code section 1559 ......................................................................................................... 18 section 1636 ......................................................................................................... 18 section 1638 ......................................................................................................... 19 section 1639 ......................................................................................................... 19 section 1717 ......................................................................................................... 44

Code of Civil Procedure section 1021.5 ...................................................................................................... 44 section 1086 ......................................................................................................... 28 section 1209, subdivision (5) .............................................................................. 29 section 387, subdivision (a) ................................................................................. 29 section 664.6 ........................................................................................................ 23

Evidence Code section 664 ........................................................................................................... 43

Government Code section 12965, subdivision (b) ............................................................................ 44

viii

Penal Code section 12025.5 .................................................................................................... 35 section 12050 ................................. 2, 12, 15, 19, 20, 31, 32, 33, 34, 36, 37, 40,44 section 12050, subdivision (a)(1)(C) ................................................................... 37 section 25400 ....................................................................................................... 36 section 25600 ....................................................................................................... 35

RULES OF COURT

California Rules of Court rule 1.5 ................................................................................................................. 40 rule 204(d) ........................... : ................................................................................. 4 rule 8.1115 ........................................................................................................... 29 rule 8.220 (a)(1) ..................................................................................................... 3

FEDERAL RULES OF CIVIL PROCEDURE

Federal Rules of Civil Procedure ... "'- ., ;J~. ~

. ~

rule 71 .................................................................................................................. 26

OTHER STATE STATUTES

Florida. Statutes section 790.06.(2) ........................................................................ 12 Utah Public Safety Code section 53-5-704 (a)(l) .................................................. 12

DICTIONARIES

Black's Law Dictionary (6th ed. 1990) at 692 ........................................... 32, 33,34 Webster's Third New International Dictionary (3d. ed. 1971), at 978 ...... 32, 33, 34

lX

INTRODUCTION

Appellants' lawsuit is a perversion of California law; they claim the chief

of police is ministerially obligated to give them concealed firearms permits so they

can lug their people killing handguns into situations such as, in the words of one

appellant's testimony, "extremely confrontational" cash rent collections. Contrary

to appellants' dangerous claim, California developed deeply rooted jurisprudential

and statutory caution to the carrying of concealed weapons (CCW) as manifested

by the considerable discretion delegated to local sheriffs and police chiefs to issue

them.

Appellants' stomach churning argument is falsely premised . upon claims

they are third party beneficiaries with a right to enforce an 18 year-old stipulated

judgment with the City of Los Angeles (City) involving the issuance ~of CGW ..

permits. This court need not reach the merits of appellants' distasteful argument

because even assuming the judgment is relevant to this case it facially establishes

appellants are without standing because they are not third party beneficiaries. Even

assuming they are third party beneficiaries both the United States Supreme Court

and California case law prohibit third party beneficiaries from enforcing stipulated

judgments. Even further assuming appellants have standing and this court has

jurisdiction, and even assuming a petition for writ is a viable remedy to enforce a

judgment appellants have, as the trial court found, adequate remedies at law which

precludes their writ petition.

If appellants overcome all of these hurdles, irrespective of whether the

merits of appellants' argument is considered pursuant to the CCW statute, the

City's CCW policy or the CCW judgment, the chief of police is obligated to

exercise his discretion, which the trial court concluded he properly did; the

judgment denying the permits should be affirmed.

1

STATEMENT OF THE CASE

A. Assenza Judgment Historical Background

On March 21, 1995, the City and 30 named plaintiffs entered into a

stipulation to settle Assenza v, City of Los Angeles et al. (Super. Ct. L.A. County,

1992, No. BC115813). (1AA21-22.) The lawsuit alleged the Los Angeles Police

Department (LAPD or Department) violated Penal Code section 120501, the CCW

permit statute. (1AA22.) On March 30, 1995, the stipulated judgment was

entered. (1AA34.) The City admitted in the judgment that "certain [Department]

rules, polices, practices and procedures" "were not in compliance with [] section

12050." (1AA35.) The City further admitted "[t]he Policy Statement itself has -,. ,.,,. .. ;'':·· ..

been repealed and replaced and will be replaced by items E and F of this judgment

... " (1AA35.) On February 4, 1998, an amended Assenza judgment was entered

to substitute Chief Bernard Parks for Willie Williams. (2AA338.) On June 12,

2003, a second amended Assenza judgment was entered substituting William

Bratton for Bernard Parks. (2AA337-338.) On June 11, 2010, the third amended

and currently operative Judgment2 was entered, substituting Charlie Beck for

Bernard Parks. (1AA60.) The LAPD CCW Permit Policy (Policy) mirrors the

language of sections E and F of the operative Judgment. (Compare Judgment with

Policy, 1AA51-53 [Policy] with 62-66[Judgment].)

Penal Code section 12050 et seq. was repealed and replaced by Penal Code sections 26150 et seq. (Stats. 2010, ch. 711, § 4, eff. Jan. 12, 2011, operative Jan. 1, 2012 [repealed]; stats 2010, ch. 711, § 6, eff. Jan 1. 2011, operative Jan 1, 2012 [replaced].) The issues in this case arose under former section 12050. Like appellants, the City to avoid confusion will refer to the former Penal Code sections rather than the current renumbered sections. All statutory references are to the Penal Code unless otherwise specified.

2 Further references to the third amended Assenza judgment will be referenced as the capitalized "Judgment."

2

B. Davis Petition For Writ

On May 18, 2011, appellants filed their petition for mandamus claiming the

City pursuant to the Judgment had a ministerial duty to issue them CCW permits.3

(1AA1,12.) On approximately June 10, 2011, the City filed its answer.

(1AA182.) On May 26, 2011, appellants filed their notice of related cases

claiming their action was related to the Judgment and arguing their petition should

be decided by the Assenza court. (1AA174-175.) The City on approximately June

6, 2011, opposed the notice of related cases (lAA 179-180); the Assenza court

denied the request to relate the cases on June 20, 2011. (1AA187.) On August 19,

2011, appellants filed their replication. (1AA189.) On April 17, 2012, appellants

filed their trial brief (2AA346), supporting declarations (2AA370,378,3,90), ~pd.

their request for judicial notice and exhibits. (2AA396; 3AA401.) On

approximately April 26, 2012, the City filed its opposition to the petition

(7AA1471,1481), which was followed by appellants' reply on May 2, 2012

(7AA1511) and supplemental exhibits. (8AA1528.) On May 9, 2012, the trial

court denied the petition and issued its statement of decision. (8AA1583,1600-

3 There were two groups of petitioners, one six member group claimed they were improperly denied CCW permits. (2AA350; 8AA1588.) The second group of three petitioners, Butler, Brown and Siegel, exclusively claimed the City violated the Judgment by failing to make available to them copies of both the Policy and the CCW permit application; they never submitted CCW applications. (8AA1588-15 89.) The trial court in its statement of decision (R.E. Folcka Construction, Inc. v. Medallion Home Loan Co. (1987) 191 Cal.App.3d 50, 54 [statement of decision operates as a finding of fact and conclusion of law]) ruled these three petitioners "had access to both documents and have suffered no prejudice. [The] City has no ministerial duty to provide Petitioners with documents they already have." (8AA1593.) Butler, Brown and Siegel raise no issue on appeal to dispute the trial court's judgment. (SAAOB4,fn.1 [see Roberts v. Assurance Co. of America (2008)163 Cal.App.4th 1398, 1410 [failure to raise issue on appeal waives it].) Their appeal should be dismissed (Cal. Rules of Court, rule 8.220 (a)(l)).

3

;r~.A ~ . p

1601.) On May 25, 2012, judgment was entered for the City. (8AA1600.) The

record excludes the notice of appeal.

STATEMENT OF FACTS

A. LAPD Policy And Judgment's

Good Cause Requirements

The Chief of Police according to the Policy may issue a concealed firearm's

permit if the applicant has good moral character and if good cause exists for

issuance of the permit. (1AA51.) The Policy incorporates verbatim the good cause

definition of the Judgment4 (Compare Policy, 1AA51 [second paragraph] and

Judgment, § E, 1AA62.) The policy incorporates verbatim the rules and

guidelines from the Judgment to interpret and implement the policy (Compare·· .":·

Policy, 1AA51 [INTRODUCTORY, CRITERIA FOR LICENSURE, Training,

Good Cause, Favorable Factors, Unfavorable Factors] with Judgment, 1AA62-66

[§ F, same].)

The Judgment at section E states "good cause exists if there is convincing

evidence of a clear and present danger to life or of great bodily injury to the

applicant. . ." (1AA62.) Section F "provide[s] for the interpretation and

implementation of Item E." (1AA62.) The "guidelines" at section F are intended

to implement section 12050. (1AA62.) Various factors are to be considered for

issuance of a CCW permit, such as long-term participation in "shooting sports,"

preexisting record with firearms, automobiles or other "dangerous

instrumentalities." (1AA63.) At section F(2) good cause "shall be deemed to

exist and a license will" issue absent "strong countervailing factors" if any one of

five circumstances such as there is an immediate or continuing threat and there is

no "other reasonable means" to "neutralize" it. (1AA64; see 1AA64 for the four

4 Sections E and Fare briefly summarized here. For the court's convenience the entirety of sections E and F are attached to this brief. (lAA 60,62-66; Cal. Rules of Court, rule 204(d).)

4

additional circumstances.) In addition to these five specified circumstances the

Judgment requires the Department to weigh specified "[f]avorable" and

"[ u ]nfavorable factors in the "exercise of its discretion" such as good citizenship

or the applicant has a long-term history mental or emotional instability. (lAA, at

64-65.)

B. The Six Appellants' CCW Permit Applications

Were Denied Pursuant To The Policy

Appellants Davis, Goldstein, Hill, Feder, Cohen and Austin's CCW permit

applications were all denied pursuant to the Policy. (8AA1588; see, e.g.,

1AA92,173; 3AA477,504; 5AA 917,919.) Appellants claim they were

ministerially entitled to CCW permits because they met at least one of the section

F(2) categories. (8AA1588.) ....... .• ;!~~ ~

Davis

On February 1, 2008, Davis submitted to the Department a California state

CCW permit application. (3AA483.) Davis said in his declaration he is a

wholesale jeweler and watch appraiser; Davis vaguely said customers entrust to

him their extremely valuable watches for repair, cleaning or delivery to another

customer. (3AA494.) Davis said he transports valuable merchandise ($50,000-

$1 00,000). (3AA494.) He meets customers at restaurants, golf courses or other

public locations. (3AA394.) His work hours are irregular, a wholesale jeweler

must be available at the times convenient to the customer; he makes his own bank

deposits and he ambiguously said he "often travel[s] alone at night." (3AA494.)

Davis without foundation claims wholesale jewelers are more vulnerable to

robbery, injury or death because they travel to retail jewelers to sell their

merchandise. (3AA494.) He said he travels to retail stores "with large amounts of

highly valuable jewelry." (3AA474.) Davis vaguely claims his perceived danger

"cannot reasonably be avoided by alternative means" plus a police officer cannot

act as his personal escort "everywhere I go." (3AA495.)

5

. ~

Captain Scott on April 8, 2008, by letter denied Davis' CCW application

because he "did not provide convincing evidence of a clear and present danger to

life of great bodily injury to yourself, which cannot be adequately dealt with by

existing law enforcement resources, and which danger cannot be reasonably

avoided by alternative measures, and which danger would be significantly

mitigated by carrying a concealed firearm." (3AA504.)

On February 9, 2009, Davis was inadvertently sent a second denial letter,

this time from Chief Beck. (1AA81.) When this error was brought to Chief

Beck's attention, he sent Davis an "apol[ogy]" letter dated May 8, 2009.

(1AA83.) In that same letter, Chief Beck said Davis' application was reviewed as

well as the Citizen's Advisory Review Panel (CARP)5 recommendation.

(1AA83.) The application was again denied because Davis "did not prov!,de. "\··

convincing evidence of a clear and present danger to life of great bodily injury to

yourself, which cannot be adequately dealt with by existing law enforcement

resources, and which danger cannot be reasonably avoided by alternative

measures, and which danger would be significantly mitigated by carrymg a

concealed firearm." (1AA83.)

Goldstein

Goldstein on June 16, 2010, submitted to the Department a California state

CCW permit application. ( 4AA 731.) Goldstein was the owner and operator of

two pharmacies. ( 4AA 739.) Goldstein in his declaration said as part of his "daily

routine" he transported "high street value" narcotic pain medications between his

two pharmacies. (4AA748.) He baldly concluded the transporting these drugs

made him vulnerable to robbery and kidnapping. (4AA748.) Goldstein also

5 The Judgment created the purely advisory CARP which reviews upon the applicant's request denied applications. (1AA68.) The plaintiffs' lead counsel in Assenza selects all CARP panelists. (1AA68.) If CARP believes the CCW permit should issue it will notify the Department in writing of its suggestion; the Department then "will promptly reconsider the matter and take any further action it deems merited." (1AA69.)

6

transported checks, cash and coin; the value of the monies plus the narcotics he

transported between his pharmacies was in excess of $30,000, but routinely

exceeded $75,000. (4AA748.) Goldstein vaguely said he made deposits for his

business, he vaguely said he delivered unspecified drugs to patients who could not

travel to his pharmacies, and he vaguely said he travels alone "late at night" into

"high crime areas." (4AA748.)

While Goldstein's application was pending his lawyer on October 26, 2010,

sent to the Department a photocopy of a newspaper article. The article described a

single instance of a pharmaceutical delivery truck robbery/kidnapping, but also

generally discussed an increase in the number of robberies of retail drug stores and

warehouse robberies. (1AA102-103.)

Deputy Chief Doan on September 7, 2010, sent Goldstein a letter:, deny!pg.

the CCW application pursuant to the Policy because "[ c ]onvincing evidence was

not established of a clear and present danger to life or of great bodily injury to

yourself, which cannot be adequately dealt with by existing law enforcement

resources, and which danger cannot be avoided by alternative measures. You did

not provide satisfactory proof that your work is of such a nature that it requires

carrying of a concealed firearm." (1AA105.) Goldstein was advised of the

availability of CARP review. (1AA105.)

On May 25, 2011, Chief Beck sent Goldstein a letter which said he

reviewed the CCW application, and although CARP recommended issuance of a

permit, he concluded Goldstein did not qualify under the Policy. (5AA917.)

Chief Beck said "[y ]our concern can be adequately dealt with by existing law

enforcement resources and reasonably avoided by alternative measures. You did

not establish it was impractical to entrust your valuables to the protection of an

armored car, or equivalent series for safe transportation." (5AA917.)

7

:!~· ~' . ~

Hill

Hill on August 5, 2009, submitted to the Department a California state

CCW application. (4AA665.) Hill is a property owner and manager. (4AA673.)

Hill wanted a permit because he engages in "extremely confrontational" cash rent

collections throughout the month, at all hours, but mostly at night, in what he

vaguely claims are "very unsafe neighborhoods." (4AA682.) Hill attached to the

application an arrest report not involving Hill in which a person was arrested in

one of Hill's buildings for firearms assault with a deadly weapon charges after a

confrontation with a third person. (4AA688-692.) Hill sent an email to his

attorney to include in the CCW application a supposed "written recollection" of a

stale five-year old voicemail from a terminated "disgruntled employee" who

supposedly threatened him. (4AA683,694.) The "written recollection" was·· ~:-­

primarily a profane tirade coupled with two vague references to "choking on ...

gas" at Auschwitz. (4AA694.) Hill did not say if he reported this matter to the

police; he expressed no personal concern to his attorney. (4AA683.) He only

asked "let me know your reaction." (4AA683.)

On November 5, 2009, Cmdr. Gannon sent to Hill a letter denying the

application. (IAA90.) The letter said pursuant to the Policy "[c]onvincing

evidence was not established of a clear and present danger to life or great bodily

injury to yourself, which cannot be adequately dealt with by existing law

enforcement resources and which danger cannot be reasonably avoided by

alternative measures, and which danger would be significantly mitigated by the

carrying of a concealed weapon." (1AA90.) Hill was advised of the availability

of CARP review. (IAA90.)

Chief Beck on August 26, 2010 sent to Hill a letter which said he reviewed

the application, CARP recommended the permit be issued permit, but Chief Beck

said "[ c ]onvincing evidence was not established that your work is of such a nature

that it requires the carrying of a concealed firearm. Additionally, a general fear of

8

crime, without sufficient documentation of threats, does not meet the requirements

for the issuance of a CCW license." ( 1AA92.)

Cohen.

Cohen in his California CCW application dated September 10, 2007, said

he was a private investigator who without incident had a CCW permit from

Ventura County for the previous five years. (3AA455,463,465.) Cohen said his

worked for various insurance companies; he determined if a crime was committed,

he then presented his investigation to state or federal authorities for filing

consideration. (3AA465.) Cohen vaguely said he "handled several high profile

cases" which resulted in criminal convictions. (3AA465.) Cohen vaguely said he

worked with "7 -11" and the LAPD' s gang unit in a matter involving a "string of

armed robberies"; he just recovered $1.5 million worth of Porsche engines; and,he·· '''c·

his currently working on a missing person's case involving a juvenile and known

gang members. (3AA465.)

Cohen subsequently provided additional information to the Department.

(3AA479.) Cohen apparently said all of his cases were serious and threatening in

nature."6 (3AA379, fn. added.) Cohen claimed he was "threatened over these

cases," but he provided no crime reports to document the different cases or the

people involved. (3AA479.)

On December 4, 2007, Lt. Jones signed for Capt. Scott a letter denying

Cohen's permit application. (3AA475.) The letter reasoned "[y]ou did not

provide convincing evidence of a clear and present danger to life or of great bodily

injury to yourself, which cannot be adequately dealt with by existing law

enforcement resources, and which the danger cannot be reasonably avoided by

alternative measures." (3AA475 .. ) The letter advised Cohen of the availability of

CARP review. (3AA475.)

6 The record does not contain the list of cases or details of the claimed threats.

9

On April 17, 2008, Cohen wrote the Department to request reconsideration

of the application denial. (1AA123.) Cohen reiterated his ongoing participation in

Porsche engine theft matter which was masterminded by known drug users, plus

the investigation of the 7-11 store robberies by purported gang members.

(1AA123-124.) Cohen said he was investigating four real estate fraud matters

involving identity theft by organized crime, plus a separate matter involving the

murder of a liquor store employee. (1AA125.)

In a letter from Capt. Scott on June 26, 2008, she said although CARP

recommended Cohen be issued a permit she said he did not meet the Policy's

criteria because "[y ]ou did not provide convincing evidence of a clear and present

danger to life or of great bodily injury to yourself, which cannot be adequately

dealt with by existing law enforcement resources, and which the danger c_annot)Je ..

reasonably avoided by alternative measures." (3AA477.)

On August 6, 2008, Cohen by email requested a meeting with the chief of

police. (1AA131,134.) Although the meeting did not take place, it did cause yet

another reevaluation of his application; the application was denied on the same

grounds as the earlier denials. (IAA136.)

Feder

Feder on August 18, 2009, submitted to the Department a California state

CCW application. (4AA808.) Feder was employed as a television production

supervisor ( 4AA816), but nine years earlier in 2000-2001 he worked on PBS

documentary about the Russian mafia. One of the high ranking members of the

Russian mafia supposedly telephoned Feder to complain about the story after the

broadcast. (4AA825.) Feder admitted the caller was "not specifically and overly

threatening," but he was concerned with the ease in which he was located.

(4AA825.) This member ofthe Russian mafia was deported in 2004. (4AA825.)

Feder additionally wanted a CCW permit because five years before he

submitted his CCW application his father died in 2004, he sold his father's

10

;t~ .• "

business to a person who claimed to ·know the same deported member of the

Russian mafia. (4AA825.) Part of the purchase price for the business was

$100,000 in cash; which Feder deposited in the bank that same day. (4AA425.)

That same evening Feder's vehicle was burglarized, the matter was reported to the

LAPD. (4AA825.) Feder claimed he immediately "got rid" of his car and moved

fearing for his safety. ( 4 AA825.) Feder said the purchaser of his father's business

telephoned him "once a year or so," and sometimes vaguely mentions the money

he was paid. (4AA825.) Feder does not claim he was threatened in these

telephone calls. ( 4AA825.)

Feder lastly claimed in May 2009, persons in a vehicle stopped in front of

his house and fired several bullets from a handgun, the direction of the gunfire was

not stated; the matter was reported to LAPD. (4AA825.) Feder said he and pis.. ~1 .•

wife were not at home at the time of the incident. (4AA825.)

Feder stated in his writ petition declaration about five weeks later, on

October 6, 2009, "a hole was pierced" in the brake line of his vehicle which

caused him to lose control while operating it. (1AA166.) On October 13, 2009,

three of the five lug nuts on each of the wheels on Feder's vehicle were removed.

One of the tires came off Feder's vehicle while operating it on the freeway.

(1AA166.) Although Feder states he "notified the LAPD" of both of these

incidents (1AA166), the record is silent as to whether he brought this information

to the attention of the Department's CCW application reviewers.

On November 23, 2009, Feder's application was denied because the Policy

requirements were not met. (1AA171.) The letter said "[c]onvincing evidence

was not established of a clear and present danger to life or of great bodily injury to

yourself, which cannot be adequately dealt with by existing law enforcement

resources, and which cannot be reasonably avoided by alternative measures, and

which danger would be significantly mitigated by carrying of a concealed

weapon." (1AA171.) The letter advised Feder of the availability of CARP

review. (1AA171.)

11

On September 13, 2010, Chief Beck in a letter to Feder said he reviewed

Feder's application and even though CARP recommended. issuance of a permit, he

said Feder did not satisfy the Policy's requirements because "[c]onvincing

evidence was not established of a direct clear and present danger to your life or of

great bodily injury to yourself, which cannot be adequately dealt with by existing

law enforcement resources, and which danger cannot be reasonable avoided by

alternative measures and which danger would be significantly mitigated by

carrying of a concealed weapon." (1AA173.)

Austin

Austin on December 2, 2009, submitted a California state CCW

application. (4AA771.) Austin said he was an armed guard, conducted

surveillance, plus he vaguely claimed he worked executive protection. (4M78).}.

Austin ambiguously said he protected celebrities, jewelry stores, estates and

vaguely asserted from "time to time" he carried large sums of money escorting

millionaires on trips to Las Vegas. (4AA781.) Austin vaguely claimed he made

seven unspecified arrests and was vaguely concerned for his safety when not

working. ( 4AA 781.) Austin said he previously had CCW permits in both Utah

and Florida.7 (4AA771.)

Austin admitted in 2004 he was denied a CCW permit in Nevada, but he

vaguely said "only until the outcome of a case I had at the time ... " ( 4 AA 771.)

Austin admitted his criminal convictions: two counts of disturbing the peace, one

count failure to appear in court with bail, and three unspecified misdemeanors.

(4AA773.) Austin claimed he wanted a permit because of several unspecified,

vague "threat[s]" while working. (4AA781.) Austin additionally claimed he was

followed home, he vaguely claimed he was told he would be "taken out" and he

vaguely said he previously received voicemail death threats. ( 4AA 781.) The

7 Florida (Fla. Stats., §790.06. (2)) and Utah (Utah Pub. Safety Code, § 53-5-704 (a)(l)) are mandatory CCW issue states. California is quite different, it is a discretionary issue state(§ 12050).

12

application did not assert these supposed death threats were work related, when

they happened or even if they occurred while a resident of California or the City.

(4AA781.)

On January 11, 2010, the Department by letter denied Austin's application

by letter pursuant to the Policy because "[s]atisfactory proof was not submitted

with your application that your work is of such a nature that it requires the

carrying of a concealed firearm. A review of your background revealed a history,

which identified you as an inappropriate candidate for a CCW permit."

(1AA143.) The letter advised Austin of CARP review availability. (1AA143.)

Austin on January 29, 2010, in writing requested CARP review.

(1AA145.) On February 2, 2010, a company called "Gett Security & Bodyguard

Services, Inc." wrote a letter "To whom it may concern"; the letter said AusJin, Y\··

was a mere "on-call officer with our company." (1AA146.) The letter said Austin

would have "[m]any more opportunities to secure work with a CCW [permit]."

(1AA146.)

Austin on May 10, 2010, in an unsigned, unaddressed letter to the LAPD

gun unit said two months earlier his CARP review meeting, but he did not

received notice of its recommendation and he could not ascertain it. (1AA152.)

Deputy Chief Doan in a memorandum to Chief Beck dated September 13,

2010, said the Department finally received CARP's recommendation that Austin

be issued a permit on August 26, 2010. (4AA803.) The memorandum

summarized Austin's reasons for requesting a CCW permit: 1) he is an armed

guard, he was threatened several times; 2) Austin protects celebrities, millionaires

and estates; 3) he was the victim of vandalism, theft, and he received an

anonymous cell phone death threat, but these events cannot be linked to his

employment; and 4) he wants to enhance his employment opportunities.

(4AA803.) Deputy ChiefDoan said Austin did not satisfy the criteria for a permit.

(4AA803.)

13

Chief Beck in a September 30, 2010, letter to Austin said he reviewed

Austin's application, acknowledged CARP's recommendation, but the Chief

denied it because Austin did not satisfy the Policy's requirements. (5AA919.)

The Chief said "[ c ]onvincing evidence was not established of a direct clear and

present danger to your life or of great bodily injury to yourself, which cannot be

adequately dealt with by existing law enforcement resources, and which danger

cannot be reasonably avoided by alternative measures, and which danger would be

significantly mitigated by carrying of a concealed weapon." ( 5AA919.)

c. The Trial Court's Ruling And Statement Of Decision

The trial court ruled mandamus does not lie for prospective relief.

(8AA1589.) Some of the issues raised by appellants did not pertain to whether the.. ''<

City had a mandatory duty to issue them permits, but whether the City properly

applied section !2050's good cause requirements to other applicants. (8AA1589.)

"These issues do not concern [appellants'] right to CCW permits, and are properly

the subject of declaratory relief, not mandamus." (8AA1589.) Appellants had an

adequate remedy, if at all, for these matters. (8AA 15 89.)

The trial court cited five reasons why appellants could not enforce the

Judgment by mandamus; they should attempt to intervene in the Assenza case.

(8AA1590-1591.) First, the court said a "consent decree" is a hybrid between a

contract and a judgment; mandamus is not a proper remedy for enforcing a

contractual obligation. (8AA1590-1591.) A public agency is free to breach a

contract, the adequate remedy at law is an action for breach of contract.

(8AA1591.) Assuming the chief breached the Judgment, he is free to do so for

purposes of mandate. (8AA1591.) "The appropriate remedy for [the Chiefs]

failure to comply [with the Judgment] is an OSC re: contempt in the Assenza

case." (8AA1591.)

14

. ~

Second, a single "consent decree" court will interpret it and impose

remedies for its violation. (8AA1591.) The Assenza court can properly interpret

the Judgment's provisions pertaining to good cause. (8AA1591.)

Third, the Assenza court is the only entity which can modify or clarify the

Judgment. (8AA1591.)

Fourth, mandamus IS inconsistent with the Judgment. The parties

bargained an enforcement either a motion to enforce the Judgment or for

contempt. (8AA1591.) "Neither the City nor the plaintiffs in the Assenza case

bargained for enforcement outside the terms of the Assenza case." (8AA1591.)

Fifth, mandamus lies to enforce a ministerial duty. There is no authority to

authorize a writ to comply with a Judgment. (8AA1591.) Assuming mandamus is

available to enforce a judgment, it is not available here. (8AA1591.)

The court found appellants are not plaintiffs in the Assenza case, but claim

to be third party beneficiaries. (8AA1591-1592.) The Assenza court makes that

decision upon a motion to intervene and if that fails the remedy is an action for

declaratory relief. (8AA1592.) The trial court offered no opinion whether the

Judgment could be applied in a declaratory relief action. (8AA1592.) The court

concluded the "Assenza judgment, and its circumstances deemed to constitute

good cause, cannot be applied to [appellants] in this mandamus proceeding."

(8AA1592.)

The trial court treated the petition as a review of the chiefs administrative

determination pursuant to section 12050, not the Judgment. (8AA1592.) The

court could not compel the chief to exercise his discretion in any particular

manner, only that discretion must be exercised. (8AA1592.) The court found

appellants "implicitly concede that the Chief did consider their applications,

exercised his discretion, and had some evidentiary support for his decision."

(8AA1592.)

Appellants claim that the Chiefs decision was arbitrary because similarly

situated Assenza plaintiffs received CCW permits. (8AA1592.) The evidence

15

showed the Chief renewed the Assenza plaintiffs' permits because he believed he

was under a mandatory duty to issue them. (8AA1592.) The court concluded if

the Chief had discretion he would not have renewed some or all of the Assenza

plaintiffs' permits. (8AA1592.) "This distinction means the Chiefs disparate

treatment of[appellants] and the Assenza plaintiffs is not arbitrary." (8AA1592.)

The court summarized its ruling: "[s]ection 12050 is the law which the

Chief ... is required to follow . . . Mandamus is not the proper remedy to compel

the City to comply with the procedures and requirements which the City agreed to

in the Assenza Judgment. The Assenza court alone may compel that compliance.

Petitioners are. not parties to that Judgment, but contend they are third party

beneficiaries. If so, they have a remedy of intervention in Assenza. If not, they

may have a declaratory relief remedy for their own rights and the rights Qf oth~rs ...

If neither is permitted by the trial or appellate court, then they have no Assenza

based remedy. Whichever alternative applies, Petitioners may not use mandamus

to compel the city to Comply with the Assenza Judgment." (8AA1593.)

STANDARD OF REVIEW

Appellants claim "in the interests of judicial efficiency and accuracy this

Court should engage in de novo review" of the trial court's ruling. (Second

Amended Opening Brief [SAAOB]10f Appellants are patently wrong. Mandate

is issued to compel the performance of a ministerial act or to correct an abuse of

discretion. (Golden Drugs Co., Inc. v. Maxwell-Jolly (2009) 179 Cal.App.4th

1455, 1466.) A ministerial duty obligates the public officer to perform an act in a

prescribed manner required by law. (Alliance for a Better Downtown Millbrae v.

Wade (2003) 108 Cal.App.4th 123, 128.) The petitioner must show a clear,

present right to the performance of the ministerial duty. (Ibid.) The performance

of a ministerial duty is reviewed for substantial evidence; questions of law are

8 This division twice struck the opening brief.

16

;J~ •• ~

. ~

independently reviewed. (Ibid.; Gifford v. City of Los Angeles (2001) 88

Cal.App.4th 801, 806 [court exercises independent review of a written

instrument].)

"When reviewing the exercise of discretion, [t]he scope of review is limited

.. The court may not reweigh the evidence or substitute its judgment for that of the

agency . . . In general . . . the inquiry is limited to whether the decision was

arbitrary, capricious, or entirely lacking in evidentiary support ... When making

that inquiry, the court must ensure that an agency has adequately considered all

relevant factors, and has demonstrated a rational connection between those factors,

the choice made, and the purposes of the enabling statute." (Golden Drugs Co.,

Inc. v. Maxwell-Jolly, supra, 179 Cal.App.4th 1455, 1466 citations and internal

quotation marks omitted; Gifford v. City of Los Angeles, supra, 88 Cat.App.4th.

801, 805 [mandamus review by court is "very limited."]) The arbitrary and

capricious standard is "more deferential to agency decision making than the

substantial evidence standard." (American Coatings Assn. v. South Coast Air

Quality Management Dist. (2012) 54 Ca1.4th 446, 461.)

Abuse of discretion requires the administrative decision to "exceed[] the

bounds of reason .. . "(State Farm etc. Ins. Co. v. Superior Court (1956) 47 Ca1.2d

428, 432; Golden Drugs Co., Inc. v. Maxwell-Jolly, supra, 179 Cal.App.4th 1455,

1465.) The petitioner at all times bears the burden of proof (American Coatings

Assn. v. South Coast Air Quality Management Dist., supra, 54 Cal.4th 446, 460.)

The issuance of mandamus lies in the discretion of the trial court which is

reviewed on appeal for abuse of discretion. (County of San Diego v. State of

California (2008) 164 Cal.App.4th 580, 593.) A court can only require the public

agency to exercise discretion, not compel discretion in any particular manner.

(AIDS Healthcare Foundation v. Los Angeles County Dept. of Health (2011) 197

Cal.App.4th 693, 700-701.)

17

DISCUSSION

I.

THIS COURT IS WITHOUT JURISDICTION TO CONSIDER APPELLANTS' APPEAL BECAUSE THEY ARE NOT THIRD PARTY BENEFICIARIES TO THE ASSENZA STIPULATED JUDGMENT.

"A contract made expressly for the benefit of a third person may be

enforced by him at any time before the parties thereto rescind it." (Civ. Code, §

1559.) There are two types of third party beneficiaries, intended and incidental.

An intended beneficiary may enforce those covenants made for his benefit; an

incidental beneficiary has no right to enforce those covenants. (Spinks v. Equity

Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1 022J '"1he ..

test for determining whether a contract was made for the benefit of a third person

is whether an intent to benefit a third person appears from the terms of the

contract. .. If the terms of the contract necessarily require the promissory to confer

a benefit on a third person, then the contract, hence the parties thereto,

contemplate a benefit to the third person."' (Ibid., citations omitted.) "The

circumstance that a literal contract interpretation would result in a benefit to the

third party is not enough to entitle that party to demand enforcement. The

contracting parties must have intended to confer a benefit on the third party."

(Neverkovec v. Fredricks (1999) 74 Cal.App.4th 337, 348 citing in part Walters v.

Calderon (1972) 25 Cal.App.3d 863, 871.) A third person need not be named in

the contract to be a third party beneficiary (Harper v. Wausau Ins. Co. (1997) 56

Cal.App.4th 1079, 1086-1087), but that person must be a member of the class on

persons for whose benefit it was made. (Spinks v. Equity Residential Briarwood

Apartments, supra, 171 Cal.App.4th 1004, 1023.)

The primary goal of contract interpretation is to effectuate the parties'

intent at the time of contracting. (Civ. Code, §§ 1636; Waller v. Truck Ins.

Exchange, Inc. (1995) 11 Cal.4th 1, 18.) Intent is to be inferred if possible solely

18

;t~. ~ '-

from the language of the written contract. (Spinks v. Equity Residential Briarwood

Apartments, supra, 171 Cal.App.4th 1004, 1023 citing Civ. Code, §§ 1638-1639;

Waller v. Truck Ins. Exchange, Inc., supra, 11 Cal.4th 1, 18.) Those seeking

intended third party beneficiary status bear the burden of proof. (Neverkovec v.

Fredricks, supra, 74 Cal.App.4th 337, 348.)

Appellants claim they are intended third party beneficiaries to the

Judgment. Just because appellants like a broken record this does not make it so.9

Examination of the Judgment manifests a clear intention that appellants are

not intended third party beneficiaries for sections E and F. Section C of the

judgment states in relevant part:

"defendants admit that certain rules, polices, practices and procedures, and certain features of the Board Policy Statement cited in the complaint, were not in compliance with Section 12050 ff . '\··. Those former rules, policies, practices and procedures have been altered. The Policy Statement itself has been repealed and will be replaced by the provisions of items E and F of this judgment ... " (1AA61, emphasis added.)

The Policy mirrors sections E and F of the Judgment. The Policy requires a

good cause showing of "convincing evidence of a clear and present danger to life

or great bodily injury ... ", the Judgment's five good cause categories, a

determination of favorable and unfavorable factors, among other requirements.

(Compare the Policy [1AA51-53] with the Judgment [1AA62-66].)

The clear intention of the Judgment is sections E and F are applicable only

to the parties; non-party good cause Department review is made pursuant to the

Policy. Appellants' reasons for ignoring the Policy in favor of the Judgment are

transparent; they want to pervert California law by contorting the required exercise

9 The trial court at the conclusion of its statement of decision did not decide whether appellants are third party beneficiaries. Rather, the court said: appellants "contend that they are third party beneficiaries. If so, they have a remedy of intervention in Assenza. If not, they may have a declaratory relief for their own rights and the rights of others." (8AA1593.)

19

of statutorily discretion into mandatorily requiring the issuance of CCW permits.

They also they want attorneys' fees and costs, no matter how badly they distort the

law because the Judgment at times permits attorneys' fees and costs. (See

SAAOB53-54; see also 1AA69 [attorneys' fees and costs available for violations

of the Judgment only].)

Appellants make several spurious arguments to support their third party

benetlciary claim. They principally rely upon a litigation induced declaration to

interpret the Judgment, but they make no claim of ambiguity. (Garcia v. World

Savings (2010) 183 Cal.App.4th 1031, 1045 [extrinsic evidence is relevant to

interpret a written instrument only if it is ambiguous, citations omitted].)

Even if this court considers appellants' extrinsic evidence it does not meet

their burden of proof. Appellants' claim section 12050 applies to all CalifoiJ)ia. "\··

residents, the Judgment is intended to resolve the Department's implementation of

section 12050, therefore the Judgment applies to all City residents. (SAAOB13.)

This argument oblivious to the language of the Judgment, i.e., the Policy will

govern nonparty "good cause" determinations. 10

Appellants' mechanically claim since other provisions of the Judgment are

assertedly applicable to the general public, sections E and F are automatically

applicable to them as well. (SAAOB13.) Once again, appellants are wrong.

Assuming without conceding that appellants are third party beneficiaries to other

portions Judgment's "contractual" provisions, that status does not mechanically

make them beneficiaries to sections E and F. (Whiteside v. Tenant Healthcare

Corp. (2002) 101 Cal.App.4th 693, 709 [a third party beneficiary is entitled to

receive the benefits from the contract provisions intended for his benefit only,

otherwise he is an '"intermeddler"' who seeks a "'bonus"' for those portions not

made for his benefit quoting Sessions v. Payroll Management, Inc. (2000) 84

10 Appellants at SAAOB14-16 make a similar argument, this time discussing the Judgment's good cause requirements. Appellants continue to ignore these same requirements are stated in the generally applicable Department policy.

20

. ~

Cal.App.4th 671, 680]; San Diego Housing Com. v. Industrial Indemnity Co.

(2002) 95 Cal.App.4th 669, 682 [same].)

Appellants next assert two earlier court orders establish they are third party

beneficiaries. (SAAOB13-14.) Appellants' argument actually supports the

conclusion the Policy, not the Judgment, controls Department good cause

determinations for non-parties. The first Assenza court order dated July 29, 1998,

involved the City and Assenza plaintiffs. (1AA47.) The order required the

Department to make available to the general public at each its police stations

copies of the Policy, not copies of the judgment. The second order, dated July 8,

2011, was issued by the Assenza court in a matter brought by the Assenza

plaintiffs. (5AA912.) The court's order too involved in relevant part the

availability of copies of the Policy, not the judgment, at the City's polic~ statiqps. ''~-·

and the Internet availability of the Policy, not the Judgment. (5AA913.)

Lastly, and desperately, appellants claim the now deceased City's counsel

who negotiated the original Assenza judgment manifested his intent that the

stipulated judgment was "entered for the benefit of the public" by comparing his

signature from the judgment with correspondence he signed in the context of Lake

v. City of Los Angeles (Super. Ct. L.A. County, 1996, No. PC008329). (5AA921.)

Appellant's reliance upon the Lake correspondence is outrageous. This court

refused appellants' request to judicially notice the Lake judgment and twice struck

appellants' opening brief because it in part relied upon the Lake judgment. This

court should not tolerate appellants' patent disregard of its repeated orders.

Assuming, however, this court overlooks appellants' outrageous conduct,

the Lake correspondence is of no moment. Aside from the fact the stale 16 year­

old letter was written in the context of a different lawsuit, the letter involved

permit renewals, not new permits. The stale letter does not explain the

circumstances for which these people were originally issued permits. Likewise,

there is no evidence these individuals were third party beneficiaries. Appellants

21

failed to meet their burden of proof. (Neverkovec v. Fredricks, supra, 74

Cal.App.4th 337, 348.)

Since appellants completely failed to meet their burden to prove they are

intended third party beneficiaries to the Judgment for sections at E and F, they

have no standing to sue to enforce any provisions of the Judgment, assuming its

applicability. This court may affirm the judgment on this basis alone and it need

not read the remainder of the City's arguments.

II.

ASSUMING THIS COURT CONCLUDES APPELLANTS ARE INTENDED THIRD PARTY BENEFICIARIES, THIS COURT IS WITHOUT JURISDICTION TO CONSIDER APPELLANTS' APPEAL BECAUSE INTENDED THIRJ) PARTY BENEFICIARIES HAVE NO STANDING TO ENFORCE STIPULATED JUDGMENTS.

A.

California Law Recognizes "Stipulated Judgments" Not "Consent Decrees." Irrespective Of The Label The General Public Does Not Have Automatic Standing To Enforce Stipulated Judgments.

Clarification of the terms "consent decree" and "stipulated judgment" is

required. Appellants from the start of their opening brief to its end ceaselessly

claim the Assenza "stipulated judgment" is a "consent decree" as if they say the

term frequently enough that will make it so. Appellants likewise conclusively

assume without any legal support because there is none, that the general public has

automatic standing to enforce a so-called "consent decree." Just because

appellants constantly make this unsupported broken record claim as well does not

make it so.

A "consent decree" does not exist under California law, it is a federal

litigation term which is analogous to a stipulated judgment; a stipulated judgment,

22

however, is authorized by California law. (Code Civ. Proc. § 664.6; Nogart v.

Upjohn Co. (1999) 21 Cal.4th 383, 400.)

A stipulated judgment results when "'litigants voluntarily terminate a

lawsuit by assenting to specified terms, which the court agrees to enforce as a

judgment. [Citations.] . . . [S]tipulated judgments bear the earmarks both of

judgments entered after litigation and contracts derived through mutual agreement:

"[C]onsent decrees 'have attributes both of contracts and of judicial decrees'; a

dual character that has resulted in different treatment for different purposes."

[Citation.] ... [T]he issue before us is "not whether we can label a consent decree

as a 'contract' or a 'judgment,' for we can do both." [Citation.]'" (California State

Auto. Assn. Inter-Ins. Bureau v. Superior Court (1990)50 Cal.3d 658, 663-664.)

'"[A] stipulated judgment is indeed a judgment; entry thereof is a judiciaJ act tbat. ,,,­

a court has discretion to perform. Although a court may not add to or make a new

stipulation without mutual consent of the parties [citation], it may reject a

stipulation that is contrary to public policy [citation] . . . . "While it is entirely

proper for the court to accept stipulations of counsel that appear to have been

made advisedly, and after due consideration of the facts, the court cannot

surrender its duty to see that the judgment to be entered is a just one, nor is the

court to act as a mere puppet in the matter." [Citation.]"' (ld., at 664; emphasis

original.)

B.

Assuming Appellants Are Intended Third Party Beneficiaries To The Assenza Stipulated Judgment

They Have No Standing to Enforce It.

Research disclosed only one California case which discusses whether third

party beneficiaries have standing to enforce stipulated judgments. The court in In

re Tobacco Cases I (2011) 193 Cal.App.4th 1591, 1600, in the context of

stipulated judgments the court said at page 1600, footnote 2, "courts have rejected

the argument that consent decrees are contracts for . . . '"determining whether a

23

third party beneficiary action can be maintained for breach of that contract.'

(Johnson Products Co. v. FTC. [(7th Cir. 1977) 549 F.2d 35,] 38.)" In Johnson

Products, at 38 the court said "Control Data Corp v. International Business

Machines Corp. [(D. Minn. 1969)] 306 F. Supp. 309 aff'd [8th Cir. 1970] 430 F.2d

1277, rejected the argument that a consent decree should be treated as a contract

for determining whether a third party beneficiary breach of that contract."

The rule in California is intended third party beneficiaries have no standing

to enforce stipulated judgments. Assuming for the sake of argument only that

appellants are third party beneficiaries to the Judgment, and assuming the

Judgment is relevant to their CCW applications, they cannot maintain an action

against the City to enforce it.

Appellants in a patently false argument assert "[b ]ecause this is~ a noyel.. ''\··

issue under California law, the only significant authority on the enforceability of

consent decrees by intended third party beneficiaries is federal appellate

decisions." (SAAOB, at 16, fn. 4.) Appellant's argument is all the more

egregious because they repeatedly cite both Johnson Products and Tobacco Cases

I, but they intentionally chose not to cite these cases for the proposition that third

party beneficiaries have no standing to enforce stipulated judgments. (See

SAAOB, at 16, 27.) At page 27 of the opening brief appellants quote from In re

Tobacco Cases I, at page 1600, the same page as the opinion's footnote 2, but they

chose to mislead this court by ignoring the footnote.

Assuming this court wants to examine federal authority appellants'

argument is not helped. In Blue Chip Stamps v. Manor Drug Stores (1975) 421

U.S. 723, 750 (Blue Chip), the Supreme Court said:

"a well-settled line of authority from this Court establishes that a consent decree is not enforceable directly or in collateral proceedings by those who are not parties to it even though they were intended to be benefited by it. United States v. Armour &

24

Co., 402 U.S. 673 (1971i11l; Buckeye Co. v. Hocking Valley Co., 269 U.S. 42 (1925)." (Emphasis and Fn. added.)

The court in Vogel v. Cincinnati (6th Cir. 1992) 959 F.2d 594, 598 in

reliance upon Blue Chip and other authorities held third parties may not claim

rights under a consent decree. (Ibid.) In Aiken v. City of Memphis (6th Cir. 1994)

37 F.3d 1155, 1168 the court held "[t]he plain language of Blue Chip indicates that

even intended third party beneficiaries of a consent decree lack standing to enforce

its terms." (Emphasis original.) Likewise in Getty Oil v. Dept. of Energy (Temp.

Emerg. Ct. Appeals 1988) 865 F.2d 270, 276 the court said the "Supreme Court's

refusal in Blue Chip . . . to grant enforcement rights to nonparties to a consent

decree, 'even though they were intended to be benefited by it,' is fully applicable

to the case before us."

Other decisional authority agrees that intended third party beneficiaries

have no standing to enforce consent decrees. Ricci v. Okin (D. Mass. 2011) 770

F.Supp.2d 438, 444 said "'[a] well-settled line of authority from [the Supreme]

Court establishes that a consent decree is not enforceable directly or in collateral

proceedings by those who are not parties to it even though they were intended to

be benefited by it."' (Citing Blue Chip; at 444, fn. 28.) "Pursuant to the rule in

Blue Chip the Union, as a non-party to the Ricci cases, lacks standing to enforce

the Disengagement Order." (Ibid.) In Doe v. Briley (M.D. Tenn. 2007) 511

F.Supp.2d 904, 909 the court said "[u]nder Blue Chip Stamps, the plaintiff must

have been a party to the consent decree in order to enforce it." (See also Salter v.

Douglas MacArthur State Tech. College (M.D. Ala. 1996) 929 F.Supp. 1470, 1481

[consent decree third party beneficiaries lack standing to enforce it]; Riha v. State

11 Appellants too cite Armour (SAAOB 16), but consistent with their lack of candor when discussing Tobacco Cases I and Johnson Products they refuse to admit Armour concluded third party beneficiaries have no standing to enforce consent decrees.

25

Farm Ins. Co. (S.D. Ind. 2007) 2007 U.S. Dist. LEXIS 602 12, 18 [third party

beneficiaries iack standing to enforce consent decrees]; Local 634 Sch. Cafeteria

Workers v. Hanley (E.D. Pa. 1996) 1996 U.S. Dist. LEXIS 4422, 6 [even though

labor union and one of its members were intended beneficiaries of a consent

decree as '"constituent entities,"' they were without standing to enforce it].)

Appellants superficially r~ly upon United States. v. FMC Corp. (9th Cir.

2008) 531 F.3d 813, 820-821 (FMC) that as intended third party beneficiaries they

have standing to enforce the Judgment. (SAAOB24-25.) FMC acknowledged

Blue Chip's "sweeping and clear" proscription against third party beneficiary

enforcement of consent decrees, even by the intended third party beneficiaries.

(!d., at 820.) FMC, however, said the Ninth Circuit in Hook v. Ariz. Dep 't ofCorr.

(9th Cir. 1992) 972 F.2d 1012 (Hook) "carved out" an exception to Blue Chip and· ~;:-­

"limited its reach" by declaring Blue Chip only barred incidental beneficiaries

from enforcing a consent decree, intended beneficiaries had standing to enforce it.

(Ibid.) FMC quoting Hook said if Blue Chip '"were read broadly to preclude even

intended third party beneficiaries from enforcing a consent decree it would create

a conflict with [Federal] Rule [of Civil Procedure]71 P3l Rule 71 clearly allows

intended third party beneficiaries to enforce consent decrees, and Blue Chip

Stamps should be read to avoid eviscerating Rule 71." (Emphasis original, fn.

added.) Even so, the Ninth Circuit held in County of Santa Clara v. Astra United

States (9th Cir. 2008) 588 F.3d 1237, 1244 (revd. other grounds) (2011) _U.S._

to obtain third party beneficiary status in the context of government contracts is a

"comparatively difficult task." Third party beneficiaries to government contracts

12 Citation to unpublished federal decisions is permissible notwithstanding California Rules of Court, rule 8.1115. (Haligowski v. Superior Court (2011) 200 Cal.App.4th 983, 900, citations omitted.)

13 Federal Rules of Civil Procedure, rule 71, 28 U.S.C. (rule 71) provides "[ w ]hen an order grants relief for a nonparty or may be enforced against a nonparty, the procedure for enforcing the order is the same as for a party."

26

are '"assumed to be incidental beneficiaries ... ' and so 'may not enforce the

contract absent a clear intent to the contrary."' (Emphasis original, citations

omitted.)

FMC cited authority from other circuits which also "carved out" an

exception to Blue Chip's "sweeping and clear" language. (Ibid.) For example, the

court cited Beckett v. Airline Pilots Ass 'n (D.C. Cir. 1993) 995 F.2d 280, 286 and

Bergler v. Heckler (2d Cir. 1985) 771 F.2d 1556, 1565, both of which FMC said

followed Hook's reasoning. 14 (Ibid.)

The central problem with Hook's rationale and those cases which follow it

is California has no functional equivalent to rule 71. For this reason alone, Hook

and those cases following its rationale are inapplicable in California.

Second, in Hodges by Hodges v. Public Building Comm 'n (N.D. HI. 1994)- "<

864 F.Supp. 1493, 1508 the court said the primary basis for the holding in Hook

and the other authority is rule 71 would be "eviscerated." Hook is wrong. At best,

the Supreme Court's prohibition against intended third party beneficiaries from

enforcing federal consent decrees would create a narrow exception to rule 71. ·

Third, rule 71 was adopted in 1937, and amended twice thereafter in 1987

and 2007 and both of those amendments were technical in nature. (28 United

States Code Ann. (Thompson-West 2008) Fed. Rule Civ. Proc., rule 71, 28 U.S.C.,

Advisory Com. Notes, at 79.) This rule was in effect for 38 years when Blue Chip

14 FMC cited two other cases, Floyd v. Ortiz (lOth Cir. 2002) 300 F.3d 1223, 1226 which concluded "without analysis" that intended third party beneficiaries may enforce a consent decree (ibid.) and Pure Country, Inc. v. Sigma Chi Fraternity (8th Cir. 2002) 312 F.3d 952, 958 (Pure Country) in tum relied upon SEC v. Prudential Security, Inc. (D.C. Cir. 1998) 136 F.3d 153 (SEC). SEC in tum relied upon Hook. (SEC, at 157.) The court in Pure Country (in reliance upon SEC) as acknowledged by FMC, stated that for an intended third party beneficiary to have standing to enforce a consent decree not only must there be a finding that the plaintiff is an intended third party beneficiary, but also the third party has a "legally binding and enforceable right to that benefit." (FMC, at 820.)

27

was decided in 1975, so the Supreme Court was presumably aware of it when it

issued its "sweeping and clear" language prohibiting all third party beneficiaries,

including intended third party beneficiaries, from enforcing consent decrees.

Indeed, Aiken v. City of Memphis, supra, 37 F.3d 1155, 1168 rejected the Hook

because of Blue Chip's "plain language" and "unequivocal language."

Fourth, Johnson Products is consistent with Blue Chip's blanket exclusion

of third party beneficiaries from enforcing stipulated judgments. In re Tobacco

Cases I followed Johnson Products. Tobacco Cases I in fact follows the rule set

forth by the Supreme Court in Blue Chip. 15

Appellants as claimed intended third party beneficiaries are thus without

standing to enforce the Judgment. Once again, this court may affirm the judgment

on this basis alone and it need not consider the remainder of the City's argumentll· __ ~\··

III.

ASSUMING APPELLANTS ARE BOTH INTENDED THIRD PARTY BENEFICIARIES TO THE JUDGMENT AND THEY HAVE STANDING TO ENFORCE THE ASSENZA STIPULATED JUDGMENT, AND ASSUMING THE RELEVANCE OF THE JUDGMENT TO THE ISSUES PRESENTED, THEY CANNOT ENFORCE IT BY MANDAMUS BECAUSE THEY HAVE AN ADEQUATE REMEDY ATLAW.

A writ of mandate must "issue in all cases where there is not a plain,

speedy, and adequate remedy, in the ordinary course of law." (Code Civ. Proc., §

1086.) This means the petitioner bears the burden to prove (California School

15 Assuming appellants still desperately assert third party beneficiary status, under their relied upon Ninth Circuit rule they are presumed to be incidental beneficiaries without standing to enforce the Judgment "absent a clear intent to the contrary." (County of Santa Clara, supra, at 1244.) There is no "clear intent" language in the Judgment which confers upon them intended third party beneficiary status. So even under the Ninth Circuit's inapplicable rule they are without standing.

28

. ~

Bds. Assn. v. State of California (2011) 192 Cal.App.4th 770, 794) that other

remedies at law are inadequate. (Pomona Peace Officers' Assn. v. City of Pomona

(1997) 58 Cal.App.4th 578, 590.)

Assuming appellants have standing as third party beneficiaries to enforce

the Judgment and assuming the Judgment is relevant to the pending issues, they

have adequate legal remedies which preclude mandamus. 16 The Judgment states

that "[t]he court will retain continued jurisdiction of the action to make any further

orders which may be necessary." (1AA69.) Appellants could seek to intervene in

Assenza. (Code Civ. Proc., § 387, subd. (a) [any person with an interest in the

matter may seek an order to intervene]; Mallick v. Superior Court (1979) 89

Cal.App.3d 434, 437 [court permitted intervention after judgment].) Assuming the

Assenza court permits intervention appellants could move the court for an. orde~,to..

enforce the judgment, a contempt citation or any other order they deemed

necessary to enforce the judgment. The City in no manner suggests appellants

would succeed in this quest, rather these are simply adequate remedies at law.

Appellants made no attempt in the trial court to prove they had no adequate

remedy at law. In their petition appellants alleged inadequate remedies by

claiming the City showed "continued disrespect for Orders issued by the Court."

(1AA12.) This is not an allegation in inadequate remedies, it is an allegation that

there are adequate remedies, i.e., a motion for contempt. (Code Civ. Proc., §

1209, subd. (5).) The trial court in its statement of decision said appellants had an

adequate remedy at law and told them what it was. (8AA1591-1592.) Appellants

in their opening brief admit they must prove they have no adequate remedy at law

(SAAOB24 ), but they never, not once, claim the remedies at law are inadequate.

16 Throughout this brief the City will assume, but in no manner concede, appellants' dubious claim that mandamus is abstractly available to enforce a judgment. There is no need for this court to reach the issue because in this case even assuming the remedy is abstractly available, it is not available here.

29

(1~.~ "-.. ~

Appellants also claim that deceased Assistant City Attorney Byron

Boeckman (Boeckman) in the Assenza stipulation for judgment agreed that "CCW

license denial challenges will be brought by writ of mandate." (SAAOB19.)

Appellants are misleading this court. The stipulation states that "any Plaintiff in

this action [may challenge the denial of a permit] by way of a separate Writ of

Mandate." (8AA1574, emphasis added.) Appellants are not parties to the

Judgment and their attempt to relate this present litigation to the Assenza litigation

was rejected by the Assenza court. The trial court found Chief Beck issued CCW

permit renewals for Assenza plaintiffs because he believed pursuant to the

judgment he had a ministerial duty to issue permit renewals. (8AA1592

[statement of decision]; 7 AA1485 [Beck declaration; admits no discretion to

renew plaintiff CCW permits and permits state they were issued because of !he. ''<

court order].) The Boeckman statement is inapplicable.

IV.

ASSUMING APPELLANTS HAVE STANDING AND ASSUMING THE APPLICABILITY OF THE JUDGMENT, MANDAMUS WILL NOT LIE TO COMPEL THE PERFORMANCE OF A MINISTERIAL DUTY BECAUSE THE ISSUANCE A CCW PERMIT REQUIRES THE OF EXERCISE DISCRETION.

A.

The Stipulated Judgment Cannot Authorize The City To Contract Away Its Discretionary Police

Power Duty When Issuing CCW Permits.

The regulation of concealed firearms is a proper exercise of the

government's discretionary police power. (Ex Parte Luening (1906) 3 Cal.App.

76, 78.) Section 12050 and decisional authority (CBS, Inc. v. Block (1986) 42

Cal.3d 646, 655) mandates the exercise of discretion when issuing CCW permits.

Appellants concede the Judgment "was entered to put respondents into compliance

30

. ,_

with their obligations under then-Penal Code section 12050." (SAAOB1; see also

Judgment at 1AA61,62,64,66.) The Judgment thus merely implements the

Department's exercise its discretionary police powers in accordance with section

12050. The City cannot--and did not--contract away its mandatory duty to ·

exercise discretion when issuing new CCW permits. (County Mobilehome Positive

Action Com., Inc. v. County of San Diego (1998) 62 Cal.App.4th 727, 736

["police power cannot be "suspended by contract or irrepealable law"], citation

omitted, internal quotation marks deleted)]; Avco Community Developers, Inc. v.

South Coast Regional Com. (1976) 17 Cal.3d 785, 800 [same].)

Appellants claim mandamus will lie to compel the Department to

ministerially issue new CCW permits pursuant to the Judgment. If appellants are

correct the City contracted away its duty to exercise discretion thereby m~king !he. ''\--

issuance of new CCW permits under some circumstances to be ministerial, such as

in this case, then the Judgment would be contrary to law and void from its

inception. (Brown v. Kling (1894) 101 Cal. 295, 296; Mechanical Contractors

Assn. v. Greater Bay Area Assn. (1998) 66 Cal.App.4th 672, 680.)

B. The Judgment's Language Requires The Chief Of Police

To Exercise Discretion Before Issuing CCW Permits, Even For The Five Good Cause Categories At Section F(2)

Appellants repeatedly argue the Judgment's five specified categories for

"good cause" at section F(2) imposes upon the chief the duty to ministerially issue

CCW permits. (See e.g., SAAOB23,24,37.) Assuming the City's police power

can be contracted away, appellants' argument is in fundamental conflict with

California's CCW law. Section 12050 states upon a finding of good cause the

chief of police "may" issue a CCW permit. The express purpose of the Judgment

is to implement Section 12050 (1AA62), it can only be read so as to preserve the

chiefs discretion to issue CCW permits.

31

. ~

Appellants, however, want to pervert the Judgment's five discretionary

good cause categories at section F(2) into a "mandatory issue" classification.

Appellants' painfully twisted "mandatory issue" argument is fundamentally

antithetical to California law. California is not a lax gun toting mandatory issue

state; it is a cautious, deliberative discretionary issue state.

Close examination of the Judgment is consistent with California's cautious,

deliberative approach to issuing CCW permits. Like section 12050, the finding of

good cause in the Judgment requires the exercise of discretion. Even in general

use the term "good cause" is a discretionary concept. 17 Webster's Third New

International Dictionary (3d. ed. 1971), at 978 defines "good cause" to be "a cause

or reason sufficient in law: one that is based on equity or justice that would

motivate a reasonable man under all circumstances." Black's Law Dictio_pary (gth

ed. 1990) at 692 states the "[p ]hrase good cause depends on the circumstances of

the individual case, and finding of its existence lies largely in discretion of officer

or court to which decision is committed." (Citation omitted.)

Section E of the Judgment states good cause exists if there is "convincing

evidence of a clear and present danger to the life or great bodily injury to the

applicant. .. " For the chief of police to make this determination requires the

exercise of discretion. Section E also requires the chief of police in his discretion

to weigh whether there are alternative measures to "significantly mitigate[]"

against issuing a CCW permit when balanced against the claimed danger.

The first sentence of section F states the "following rules and guidelines are

provided for the interpretation and implementation of Item E." This sentence

states all of section F is designed to provide for the interpretation of section E;

section E requires the exercise of discretion. Section E and F, moreover, must be

17 Absent a contrary intent the words of documents are interpreted by their ordinary usage. (Transamerica Ins. Co. v. Sayble (1987) 193 Cal.App.3d 1562, 1566 [contract interpreted by ordinary usage of words]; Scharlin v. Superior Court (1992) 9 Cal.App.4th 162, 168 [same, trust]; Kobzoffv. Los Angeles County Harbor/UCLA Medical Center (1998) 19 Cal.4th 851, 861 [same, statute].)

32

read together. (Estate of Powell (2000) 83 Cal.App.4th 1434, 1440 [when

interpreting a document, the document must be considered as a whole]; Ike v.

Doolittle (1998) 61 Cal.App.4th 51, 73 [same].)

At the first paragraph of section F, "INTRODUCTORY," the Judgment

states section 12050 requires the issuance of CCW permits upon a finding of

"good cause" and these "guidelines" are designed to "implement the requirement."

Again, section 12050 imposes a discretionary duty to act. The word "guideline"

in its ordinary usage is defined by the Oxford English Dictionary as "a general

rule, principle, or piece of advice"18; this is discretionary language.

The first sentence of the next paragraph of the "INTRODUCTORY" portion of

section F states "[g]ood cause is more likely to be found ... " by a variety of

events such good character. This language requires a balancing process, whichcby..

definition requires the exercise of discretion.

At section F(2), the Judgment states "good cause shall be deemed to exist,

and a license will issue in the absence of strong countervailing factors ... " if any

of the five categories apply. This phrase expresses directory, not mandatory

intent. As discussed earlier, the phrase "good cause" is a discretionary term.

The word "deem" is defined as "[t]o have an opinion ... [t]o regard as;

consider" (Webster's Third New Intemat. Diet., supra, at 589); "[t]o hold;

consider; adjudge; believe; condemn; determine; treat as if; construe" (Black's

Law Diet., supra, at 415). For something to be deemed thus requires a weighing

(discretionary) process.

The word "shall" is not mechanically mandatory, absent being actually

defined as having mandatory application, the expression of mandatory or

discretionary intent depends on its context. (People v. Ledesma (1997) 16 Ca1.4th

90, 94; Fein v. Permanente Medical Group (1985) 38 Cal.3d 137, 155; Mitchell v.

Manson (1942) 20 Cal.2d 48, 51; Abbott Electric Corp. v. Storek (1994) 22

18 See http:// oxforddictionaries.com/ definition/american english/guideline

33

Cal.App.4th 1460, 1470.) The word "shall," like all of the words and phrases in

the Judgment, is not defined. The foundation for the Judgment is the

implementation of the discretionary section 12050. The word shall in F(2) is

flanked by two discretionary words, "good cause' and "deemed." In this case,

interpretation of "shall" to be mandatory rather than the linguistically proper

discretionary makes no sense whatsoever.

The word "will" is defined as "desire, wish ... something wished for or

desired ... the act or process or the felt or known experience of willing ... "

(Webster's Third New Internat. Diet., supra, at 2617, all caps deleted); "[w]ish;

desire; pleasure, inclination; choice; the faculty of conscious and especially of

deliberate action ... " (Black's Law Diet., supra, at 1598). 19 Wishes do not

impose ministerial duties.

Standing alone, the phrase "good cause shall be deemed to exist, and a

license will issue" is not an expression of mandatory intent. There is nothing in

this phrase which imposes upon the chief of police the ministerial duty to issue a

CCW permit if any of the section F(2) categories standing alone are satisfied.

Indeed, immediately following phrase as "good cause shall be deemed to exist,

and a license will issue" is the modifYing phrase "in the absence of strong

countervailing factors." This phrase by definition requires a balancing of factors,

i.e., discretion.

Moreover, the language of each of the five specified section F(2) categories

requires discretion to determine whether each category is satisfied. The first

category requires the applicant to establish an "immediate or continuing threat'

and for which "no other reasonable means" would "neutralize that threat" absent

19 At California Rules of Court, rule 1.5, the word "will" is defined for usage within the rules: will "expresses a future contingency or predicts action by a court or person in the ordinary course of events, but does not signifY a mandatory duty .. "

34

the issuance of a CCW permit. This requires the balancing of various factors to

discretionarily determine if the requirements are met.

The second category states if the applicant is employed in the field of

security and the work "is of such a nature that it requires the carrying of a

concealed weapon." Although the applicant must submit "satisfactory proof' of

the claimed need to carry a concealed weapon, discretion is necessary to ascertain

whether the applicant's work truly "requires" the carrying of a concealed weapon.

This requires the balancing of various factors to discretionarily determine if the

requirements are met.

The third category states if the applicant has a court order "which

establishes" the applicant is the "on-going victim of a threat or physical violence

or otherwise meets the criteria at Penal Code section 12025.5."20 In both jnstan~es.

discretion is necessary to ascertain whether either the court order or the Penal

Code classifications are met.

Fourth, the applicant bears the burden to prove the "circumstances

"requir[ e] the transport of valuable property and that armored car or "equivalent

services" are impractical for the transportation of these valuables. The

determination of what is or is not "valuable," what "circumstances require" the

transportation of this property, whether something is "impractical" or whether

"equivalent services" are available requires the balancing of various factors to

discretionarily determine if the requirements are met.

Fifth, the applicant establishes he is "subject to a particular and unusual

danger of physical attack and there are no reasonable means" to abate that threat.

(Emphasis added.) The determination of the type and nature of physical attack at

20 Section 12025.5 was repealed (stats. 2010, ch.711, § 4) and replaced without substantive change by section 25600 (stats. 2010, ch.711, § 6). Section 25600 pertains to justifiable violation of the crime of carrying a concealed firearm (§ 25400) if the finder of fact makes a determination that there was a reasonable belief of "grave danger."

35

issue and whether there are reasonable means to avoid it requires the balancing of

various factors to discretionarily determine if the requirements are met.

Even if any single discretionary F(2) category is satisfied discretion is still

required to consider these categories in light of section E which requires

"convincing evidence of a clear and present danger to the life or great bodily

injury"; the "favorable factors'' in the "[D]epartment['s] ... "discretion" (1AA64,

emphasis added) at section F(3) and the "unfavorable factors" at section F( 4). The

Judgment, moreover, at section F(7), "Evidence," states that although declarations

under penalty of perjury are sufficient to establish good cause, the chief of police

is not required to "accept the allegations in a declaration if [there] is credible

counter-evidence or [he] finds the declarant not credible." By definition, the

finding of credibility is a discretionary act. The combined weighing of s~ctions",E~. ,1

__

F(2), F(3) and F(7) and all in light of section 12050 by definition requires the use

of discretion; appellants' bald claim that section F(2) imposes a ministerial duty is

once again just plain wrong? 1

v. THE CHIEF OF POLICE'S DECISION THAT APPELLANTS' SHOULD NOT BE ISSUED CCW PERMITS WAS WITHIN THE PROPER EXERCISE OF HIS POLICE POWER DISCRETION.

The Legislature and courts are historically hostile to private citizens

carrying concealed firearms. (Ex Parte Leuning, supra, 3 Cal.App. 76, 77-78

[Legislature may prohibit the carrying of concealed firearms; § 25400

[unauthorized carrying a concealed firearm is a crime].) Over time, the

Legislature enacted a comprehensive statutory scheme to "closely regulate []" the

21 The Policy is consistent with the Judgment. The Policy states in its first sentence "[p]ursuant to ... section 12050 [the chief of police] may issue a license to a person to carry a pistol . . .capable upon being concealed upon the person upon proof ... that good cause exists for the issuance of the license ... " (IAA, at 51, emphasis added.)

36

. ~

carrying of concealed weapons. (Erdelyi v. OBrien (9th Cir. 1982) 680 F.2d 61,

63.) Section 12050, subdivision (a)(l)(C) authorizes the sheriff or police chief to

issue a concealed firearms permit upon proof of good moral character and for

"good cause." The carrying of a concealed firearm is a "special privilege" for a

"select few." (CBS, Inc. v. Block, supra, 42 Cal.3d 646, 655; Erdelyi v. O'Brien,

supra, 680 F.2d 61, 63 [§ "12050 explicitly grants discretion to the issuing officer

to issue or not issue a license to applicants meeting minimum statutory

requirements"].) The discretion vested in the sheriff or police chief to determine

whether "good cause" exists is "unfettered." (CBS, Inc. v. Block, supra, 42 Cal.3d

646, 655; Nichols v. County of Santa Clara (1990) 223 Cal.App.3d 1236, 1241,

1244 [CCW permit is a "privilege.")

In Gifford v. City of Los Angeles, supra, 88 Cal App.4th 801, 80522 the. "i··

court said in reliance upon Erdelyi the discretion must be exercised "in each

individual case." Gifford quoting from Salute v. Pitchess (1976) 61 Cal.App.3d

557, 560-561 said '"[i]t is the duty ofthe sheriff to make such investigation and

determination, on an individual basis, on every application under section 12050. '"

The Judgment and Policy were approved to "comply" with section 12050.

Irrespective of whether the statute, the Judgment or the Policy is the template for

the City's exercise of discretion there was a "rational connection" which did not

"exceed the bounds of reason" (Golden Drugs Co., Inc. v. Maxwell-Jolly, supra,

179 Cal.App.4th 1455, 1466) for denying appellants' CCW permits.

22 Gifford involved an appeal from the City's denial of a CCW permit renewal by a named party pursuant to a stipulated judgment in Lake v. City of Los Angeles (Super. Ct. L.A. County, 1996, No. PC008329). (!d., at 803.) Gifford also arose by way of petition for writ to enforce the Lake judgment. The issue of whether mandamus is a proper remedy to enforce that judgment was not before the court. (People v. Jennings (20 1 0) 50 Cal. 4th 616, 684 [cases are not authority for propositions not decided].)

37

. "

Davis

Davis did not satisfy the good cause standards in the Policy, statute or even

the Judgment. The trial court in its statement of decision found, and Davis does

not contest, "the Chief did consider the applications, exercised his discretion, and

had some evidentiary support for his decision." Davis made no attempt to satisfy

the clear and present danger element, even though he admits he must comply with

it. (3AA495.) Davis failed to prove regular law enforcement cannot adequately

deal with this matter. Instead, Davis glibly said in his application there are no

alternative means and a police officer cannot constantly escort him. That's it.

Davis failed to prove an armored car or similar means of transport was

impractical. Davis' generalized fear of crime is an insufficient. Accordingly, there

was a clear "rational connection" for the Department to deny the application which.

did not "exceed the bounds of reason."

Goldstein

Goldstein did not satisfy the good cause standards in the Policy, statute or

even the Judgment. The trial court in its statement of decision found, and

Goldstein does not contest, "the Chief did consider the applications, exercised his

discretion, and had some evidentiary support for his decision." Goldstein made no

effort to prove there was clear and present danger to his safety. Goldstein's

generalized fear of crime and claims of travelling into vague high crime areas does

not satisfy any good cause standard, whether the Policy, statute, or Judgment.

Goldstein's post-application submission of a newspaper article about a pharmacy

delivery truck robbery is untimely plus it does not address his specific

circumstances. Goldstein's complete failure to address the armored car issue was

alone enough to deny the application. Goldstein's showing was likewise

insufficient to satisfy section I 2050's good cause requirement.

Hill

Hill did not satisfy the good cause standards in the Policy, statute or even

the Judgment. The trial court in its statement of decision found, and Hill does not

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contest, "the Chief did consider the applications, exercised his discretion, and had

some evidentiary support for his decision." Hill did not prove there was a clear

and present danger to his safety. The subjective claim that he vaguely travels to

unsafe neighborhoods is simply a generalized fear of crime. The attached arrest

report did not involve him. The fact the crime happened in one of his buildings is

of no moment, crime can happen anywhere. The vague, supposed telephone threat

from an employee fired several years earlier apparently never resulted in a police

report. When Hill emailed his lawyer to request the so-called voicemail transcript

of the supposed stale threat be included in his CCW application he merely asked

his lawyer for his "reaction to it." Hill never expressed of fear or concern. There

was a clear "rational connection" for the Department to deny the application which

did not "exceed the bounds of reason." Hill's showing was likewise insuf;ficient to.

satisfy section 12050's good cause requirement.

Besides, the Chief in his discretion could conclude that Hill's admitted

"extremely confrontational" rent collection business combined with a concealed

firearm could be the equivalent of pouring gasoline onto a fire and on that basis

alone he could rationally deny the application.

Cohen

Preliminarily, the carrymg of a concealed weapon is not an essential

requirement to be employed as a private investigator. (Nichols v. County of Santa

Clara, supra, 223 Cal.App.3d 1236, 1244.; accord Guillory v. County of Orange

(9th Cir. 1984) 731 F.2d 1379, 1382-1383 [private investigator no right to carry

concealed firearm]; Erdelyiv. OBrien, supra, 680 F.2d 61,63 [same].)

Cohen did not satisfy the good cause standards in the Policy, statute or even

the Judgment. The trial court in its statement of decision found, and Cohen does

not contest, "the Chief did consider the applications, exercised his discretion, and

had some evidentiary support for his decision." He made no attempt to prove there

was a clear and present danger to his safety. The bare fact that he investigated

unsavory activities or even criminal acts did not come close to proving a clear and

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present danger. At best, it speculatively suggested the possibility of danger.

Cohen likewise failed to prove there was an actual immediate and continuing

threat where there is no other means to neutralize it. He failed to establish he was

actually subject to a particular and unusual risk of physical attack where

reasonable actions could abate it. There was a clear "rational connection" for the

Department to deny the application which did not "exceed the bounds of reason."

Cohen's showing was likewise insufficient to satisfy section !2050's good cause

requirement.

Feder

Feder did not satisfy the good cause standards in the Policy, statute or even

the Judgment. The trial court in its statement of decision found, and Feder does not

contest, "the Chief did consider the applications, exercised his discretion., and l},ad.

some evidentiary support for his decision." The PBS documentary was produced

nine years before he submitted his application. The automobile burglary was five

years old when he submitted his application and a CCW permit would not have

protected Feder from an automobile burglary. Although Feder reported the

gunfire incident to police there was no evidence this single isolated event was

actually directed at him; the application merely says there was gunfire in front of

his house. As for the claimed vehicle tampering, Feder did not prove that a CCW

permit would have protected him from these claimed events. There was a clear

"rational connection" for the Department to deny the application which did not

"exceed the bounds of reason." Feder's showing was likewise insufficient to

satisfy section !2050's good cause requirement.

Austin

Austin did not satisfy the good cause standards in the Policy, statute or even

the Judgment. The trial court in its statement of decision found, and Feder does not

contest, "the Chief did consider the applications, exercised his discretion, and had

some evidentiary support for his decision." He failed to prove there clear and

present danger of attack. He likewise failed to prove he was "required" to carry a

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concealed firearm for his employment. The security guard company's letter

merely said Austin was an "on-call" employee and if he had a CCW permit more

job opportunities would be available to him. Austin's "wannbe" desires are

insufficient. Likewise he presented no evidence of an immediate or continuing

threat or a particular and unusual danger of physical attack. There was a clear

"rational connection" for the Department to deny the application which did not

"exceed the bounds of reason." Austin's showing was likewise insufficient to

satisfy section 12050's good cause requirement.

In light of the considerable discretion granted the chief of police by section

12050 and both the Policy and Judgment which implement the statute, coupled

with the deferential standard of review, the chief of police properly exercised his

discretion to deny appellants' CCW permits.

Appellants, however, make a variety of arguments to urge reversal; these

arguments are of no moment. Appellants complain senior officers below the chief

of police initially denied the CCW permits. The bare claim, unsupported by any

legal authority that the chief of police must personally make the initial decision to

deny the permits is waived. (Paterno v. State of California (1999) 74 Cal.App.4th

68, 105-106 [argument waived if no meaningful argument]; McComber v.

Wells (1999) 72 Cal.App.4th 512, 522 [failure to develop an issue with meaningful

argument constitutes a waiver of that issue].) Alternatively, the trial court found

and appellants admit the chief of police was the "ultimate arbiter." (SAAOB36.)

Any supposed error in this regard was cured because appellants admit the

"ultimate decisions" were made by the chief of police.

Appellants rely upon Boeckman's letters to claim third parties to the

Judgment established good cause for CCW permits. (SAAOB37-38.) Contrary to

appellants' claim, these stale 16 year-old recommendations were made in the

context of the Lake judgment, not Assenza. Appellants' reliance upon Lake is

outrageous. This court refused to judicially notice the Lake judgment and twice

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struck the opening brief. Even assuming this court considers these stale letters,

appellants admit they were just mere recommendations.

Appellants next complain their CCW applications were rejected, but since

other supposedly similar applications were approved that proves arbitrariness.

(SAAOB39-43.) The trial court it statement of decision found, and appellants do

not dispute, individuals such as Messers. Scholssman who were issued CCW

permits were Assenza plaintiffs and the chief of police said he was without

discretion to deny or issue them. Moreover, appellants claim that since at least

four individuals almost 20 years earlier were merely recommended by Boeckman

for CCW permits that too shows arbitrariness. (SAAOB40-41.) Not only is this

stale comparison facially absurd, two of those recommendations (Rosen and

Y anaga) were pursuant to the improper Lake judgment.

Appellants likewise fundamentally misunderstand the exercise of

discretion. The exercise of discretion is a "judgment call," one decision-maker on

the same set of facts can reach a different decision from another decision-maker.

(Riveros v. City of Los Angeles (1996) 41 Cal.App.4th 1342, 1362 [police officer

suspended from duty by the acting chief of police did not preclude the subsequent

the chief of police from firing the officer even though he began serving his

suspension]; Sanita v. Board of Police Comrs. (1972) 27 Cal.App.3d 993, 997

[Los Angeles Police Commission could redefine commission regulations

"according to the currently held subjective views of the board"]; Sunset

Amusement Co. v. Board of Police Commissioners (1972) 7 Cal.3d 64, 86, fn. 13

[practice to ministerially renew roller skating rink permits would not bar or estop

the Los Angeles Police Commission from exercising its authority to deny renewal

applications in the future] citing !scoff v. Police Commission (1963) 222

Cal.App.2d 395, 405-406; Cilderman v. City of Los Angeles (1998) 67

Cal.App.4th 1466, 1470 [no unequal treatment arising from the laxity in the

enforcement civil service rule]; Wade v. City and County of San Francisco (194 7)

82 Cal.App.2d 337, 339.)

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Most governmental decisions result from the exercise of discretion. To

argue discretionary decisions are "stare decisis" upon future decision-makers

eviscerates the ability of officials to exercise their discretion. Assume

hypothetically an utterly incompetent decision-maker's discretionary decision

resulted in absurd or even dangerous consequence. Assume a successor decision­

maker can not only remedy the absurdity, but reverse it. Should the successor be

bound by the predecessor decision-maker's perhaps dangerous incompetence? Of

course not; the successor official must be able to exercise discretion.

In the CCW permit context, assume one chief of police stupidly issues a

CCW permit which results in tragic consequences. Assume a second applicant

applies for a permit on similar set of facts as the first, should a subsequent chief of

police be barred. from exercising discretion for issuing this second~ permJt?.

Absolutely not, but if appellants' absurd arguments are accepted the ticking time

bomb second permit must be issued.

Appellants complain the Department acts arbitrarily because it "never"

follows CARP's CCW permit recommendations. (SAAOB45-46.) CARP is a

creation of the Judgment whose members are exclusively appointed by the

Assenza plaintiffs' counsel; they act in a purely advisory capacity. Nothing in the

Judgment obligates the chief of police to follow its recommendations.

Lastly, appellants surmise the chief of police as the "ultimate arbiter" was

nothing more than a rubber stamp for his subordinates. The claim is spurious (see

Evid. Code, § 664 [official duty is presumed to be regularly performed]; see also,

e.g., chief of police denial letters where he said he reviewed the CCW applications

[1AA92; 5AA917].)

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VII.

ASSUMING FOR THE SAKE OF ARGUMENT ONLY THE JUDGMENT IS REVERSED, THE ATTORNEYS' FEE ISSUE IS PREMATURE; THE ISSUE IS ONE FOR THE TRIAL COURT TO FIRST ADDRESS.

Appellants argue if they prevail on appeal this court should award them

attorneys' fees pursuant to the Judgment. (SAAOB53-54.) Appellants' attorneys'

fees claim is premature. If this court reversed the judgment it can do so by the

Policy or section 12050, neither of which provide for attorneys' fees.

Assuming the judgment is reversed pursuant to the Judgment, it requires a finding

of three criteria before an award of attorneys' fees maybe considered by the trial

court. (1AA69.) The trial court has not made these findings of fact. But evert if "::·

the trial court subsequently makes findings favorable to appellants on remand, the

Judgment states the City "may be liable for an award of attorney's fees ... "

(1AA69, emphasis added.) The award of attorneys' fees is discretionary matter

left to the trial court. (See, e.g., Chavez v. City of Los Angeles (2010) 47 Cal.4th

970, 976, 991 [Gov. Code, § 12965, subd. (b) states attorneys' fees "may" be

awarded, trial court did not abuse its discretion by denying prevailing plaintiffs

counsel attorney fees by the facts presented].)

Lastly, appellants not only claim they are entitled to attorneys' fees

pursuant to the Judgment, in the barest string citation they claim they are entitled

to attorney fees pursuant to section 12050, Civil Code section 1717, and Code of

Civil Procedure section 1021.5. These arguments are waived. (Paterno v. State of

California, supra, 74 Cal.App.4th 68, 105-106 [argument waived if no meaningful

argument]; McComber v. Wells, supra, 72 Cal.App.4th 512, 522 [failure to

develop an issue with meaningful argument constitutes a waiver of that issue].)

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CONCLUSION

Predicated upon the foregoing, respondents City of Los Angeles and

Charles Beck request the judgment be affirmed and they be awarded costs on

appeal.

Dated: September 17, 2013

MICHAEL N. FEUER City Attorney

GREGORY P. ORLAND

~~2d GRE RY P. ORLAND Attorneys for Respondents

City of Los Angeles and Charles Beck

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WORD COUNT CERTIFICATE

Pursuant to California Rules of Court, rule 8.204 (c)(l)-(3), a brief

produced on a computer must not exceed 14,000 words, including footnotes. The

word count certificate may exclude tables and any attachments to the brief. The

attached brief contains 13,929 words, according to the computer's word

processing software.

Dated: September 17, 2013

MICHAEL N. FEUER City Attorney

GREGORY P. ORLAND Deputy City Attorney

Attorneys for Respondents City of Los Angeles and Charles Beck

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ATTACHMENT

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JUN I 1 2010

JOHN!J~, • RK BYJ~

' EPury

SUPERIOR COURT FOR THE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES

10 ANTHONY MARIO ASSENZA, et al., ) CASE NO. BC 115813

II

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Plaintiffs/Petitioners

V.

CITY OF LOS ANGELES, et al.,

Defendants/Respondents.

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,._. THIRD AMENDlW JUDGMENT OF .P,. DECLARATORY RELIEF

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18 IT IS ORDERED that the rights and obligations of the parties

19 to this action are declared as follows:

20 A. Defendants Affected.

21 The defendants affected by this judgment herein are: CITY

22 OF LOS ANGELES, the CITY OF LOS ANGELES POLICE DEPARTMENT

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bhereinafter ~LAPD"), LOS ANGELES

~d CHARLIE BECK, CHIEF OF POLICE £.

P9LICE DEPARTMENT. I l 0

B. Introduction.

BOARD OF POLICE COMMISSIONERS,

OF THE CITY OF LOS ANGELES

This action challenging LAPD'a procedure, rules and

·1-TlURD ~ED JUI><1Kl!N'I' OF DECLARATORY UL:Il!:!'

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AA000060

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• • MARS, JOHN R. MARTIN, ROBERT KELLOGG MILLER, MICHAEL SCOTT

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2 ONTIVEROS, TED PASTERNACK, VICTOR DONALD RAPPOPORT, JESSEE DONALD

RICH, JEROME MARTIN ROSENBERG, JOEL C. SCHLOSSMAN, NATHAN DAVID

SCHLOSSMAN, CARLOS SEDILLO, SANFORD SHIRE, BERNICE SHARON SILVER,

RICHARD CLAYTON TEMME, JOHN HARRIS THALER, DONNA LYNNE THOMAS,

GARY BRIAN TIGAR, KENT LEE TURNIPSEED, and DAVID ALAN YOCHELSON.

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These named plaintiffs will receive licenses, and their license~

will be renewed for a one year term, but only so long as they

continue to have good cause, good character, not to be barred by

law from the ownership of concealable firearms, and to meet each

of the other requirements of licensure under Section 12050 tt.

~ The policy LAPD has adopted is that good,cause ex~sts if

there is convincing evidence of a clear and present danger to

life or of great bodily injury to the applicant, his (or her)

spouse, or dependent child, which cannot be adequately dealt with

by existing law enforcement resources, and which danger cannot be

reasonably avoided by alternative measures, and which danger

would be significantly mitigated by the applicant's carrying of a

concealed firearm.

F. The following further rules and guidelines are provided

for the interpretation and implementation of Item E:

INTRODUCTORY

f> The department recognizes that Pen. C. Section 12050 t

I ~equires the issuance of licenses to persons of good character

~o have good cause to carry a concealed firearm for the defense l. q~ themselves or others or in pursuing their livelihood. These

guidelines are designed to implement that requirement,

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• • Good cause is more likely to be found if the applicant has a

demonstrated record of responsible handling of firearms as

indicated by voluntarily having taken firearms training and/or

long- term participation in the shooting sports. Whi·le lack of

such a demonstrated record is not a disqualification if the

applicant is otherwise qualified to use a firearm properly,

licenses will not issue if there is substantial, articulable

reason to believe that issuance would be contrary to public

safety or if the applicant does not have good character. Among

other criteria to be considered are: the applicant's record and

history in accidents with firearms, automobiles or other

dangerous instrumen~alities; and association with persons.~aving

a criminal record or who are reliably known to lack good

character. The expression of dangerous or irresponsible

attitudes, or threats, toward or regarding the use of firearms or

other dangerous instrumentalities shall be grounds for denial or

revocation of a license.

CRITERIA FOR LICENSURE

1. Training. The license, if approved, shall not become

effective until the applicant has furnished proof to the

department that he or she has successfully completed the course

qt 1•aining in the carrying and use of firearms established / ~rsuant to Section 7585 et seq., of the California Business and

~~ofessions Code or some other appropriate course which included 1 ~e following subjects of training: knowledge of California laws

regarding weapons and deadly force use; safe handling, carriage,

THIRD AbDa!DllD JUDGMXNT OJ.' Dli:CLJJu..TORT RKLIJU'

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• • use and storage of concealable firearms; competency with the

2 ty~~s of firearms to be listed on the license.

3 2. Good Cause. Good cause shall be deemed to exist, and a

4 license will issue in the absence of strong countervailing

5 factors, upon a showing of any of the following circumstances:

6 a) The applicant is able to establish that there is ~~ immediate

7 or continuing threat, express or implied, to the applicant's, or

8 the applicant's family's, safety and that no other reasonable

9 means exist which would suffice to neutralize that threat. b) The

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applicant is employed in the field of security, has all requisite

licenses, is employed by a security firm having all requisite

licensee, and provides satisfactory proof that his or her wqrk is ·~

of such a nature that it requires the carrying of a concealed

weapon. c) The applicant has obtained, or is a person included

within the protections of, a court order which establishes that

the applicant is the on-going victim of a threat or physical

violence or otherwise meets the criteria set forth in Pen. c.

Section 12025.5. d) The applicant establishes that circumstances

exist requiring him or her to transport in public signific?nt

amounts of valuable property which it is impractical or

impracticable to entrust to the protection of armored car

services or equivalent services for safe transportation of

~rluables. e~The applicant establishes that he or she is subject J

~P a particular and unusual danger of physical attack and that no (.

;basonable means are available to abate that threat. I

{} 3. Favorable Factors. Among facta upon which the department

will, in the exercise of its discretion, look favorably in

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• • considering applications are whe~her a) the applicant has a

demonstrated record of responsible handling of firearms; b) the

applicant has a commitment to safe and responsible handling of

firearms as shown by having voluntarily taken firearms training;

c) the applicant has a record of good citizenship in general as

evidenced, for instance, by service to the community through such

activities as creditable service in the armed forces, including

the National Guard and state militia or in the police reserves,

or of active participation in charitable or public serJice

organizations or activities or in political affairs; d) the

applicant is trustworthy and responsible as evidenced, for

instance, by employment history, positions held that are ci~ic, 'i

or political, or religious, or secular achievements, or record of

personal accomplishment in other areas of endeavor; e) that the

applicant suffers under a disability or physical handicap,

including age or obesity, which hinders the applicant's ability

to retreat from an attacker.

4. Unfavorable Factors. Factors which will bear negatively

on issuance(unless they appear to be in the remote past) are: a)

the applicant has a long-term history of mental or emotional

instability, alcoholism, drug use or addiction; b) the applicant

has a~}story of fault in serious accidents with firearms,

~tomobiles or other dangerous instrumentalities; c) the

~plicant has had a permit to own or carry a concealed weapon q

denied, suspended or revoked for good cause by any issuing I

~~thority; d) the applicant has had a driver's license denied,

suspended or revoked for good cause by any issuing authority; e)

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• • the applicant has a long-term record of irresponsible and

2 dangerous behavior with automobiles as indicated by numerous

3 convictions of serious driving offenses; f) the applicant has a

4 long-term history of conduct from which it appears that he or she

5 is not now of good moral character, trustworthy or responsible.

6 While none of the foregoing disqualify an applicant per se, a

7 license will be denied if it appears, in the discretion of the

8 department, that the applicant does not now have good character

9 or that issuance of a license to him/her is not consistent with

10 public safety.

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5. PresumPtion. Absent good cause for denial, persons

having good cause as defined in paragraph 2 shall be issued ·~

licenses for the maximum time period allowed by section 12050,

and their licenses shall be renewed so long as they continue to

have good cause. No license shall issue if the a~plicant is

prohibited by law from possessing or acquiring firearms, or

concealable firearms, or is below the age of 21 years.

\ PROCEDURAL MATTERS

6. Diyulgence of Information. All applicants shall !eceive

a copy of these guidelines along with the application form.

7. Evidence. Declarations under penalty of perjury suffice

as evidence of facts showing good cause, provided that the

q~partment is not required to accept the allegations in a I

4~claration if it has credible counter-evidence or finds the lf

qeclarant not credible. The applicant will be required to furnish

~roof of his or her medical and psychological fitness in a manner

to be prescribed by the department. This shall include

AA000066

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PROOF OF SERVICE (Via Various Methods)

I, the undersigned, say: I am over the age of 18 years and not a party to the within action or proceeding. My business address is 900 City Hall East, 200 North Main Street, Los Angeles, California 90012.

On September 17, 2013, I served the foregoing document(s) described as RESPONDENTS BRIEF on all interested parties in this action by placing copies thereof enclosed in a sealed envelope addressed as follows:

C.D. Michel Michel & Associates, P.C. 180 E. Ocean Blvd., Suite 200 Long Beach, CA 90802

Los Angeles Superior Court Ill North Hill Street Los Angeles, CA 900 12 Honorable James Chalfant

Burton C. Jacobson Beverly Hills Law Bldg. 424 South Beverly Drive Beverly Hills, CA 90212-4414

[X] BY ELECTRONIC SUBMISSION - I submitted electronically a copy of this brief to the California Court of Appeal, 2nd District.

[X] BY MAIL - I deposited such envelope in the mail at Los Angeles, California, with first class postage thereon fully prepaid. I am readily familiar with the business practice for collection and processing of correspondence for mailing. Under that practice, it is deposited with the United States Postal Service on that same day, at Los Angeles, California, in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postage cancellation date or postage meter date is more than (1) day after the date of deposit for mailing in affidavit; and or

I declare under penalty of perjury that the foregoing is true and correct. '

Executed on September 17,2013, at Los Angeles, C

Z, Secretary