) Time: 9:30 a.m. 1 C. D. Michel - SBN Joshua R. Dale - SBN Tamara M. Rider - SBN MICHEL & ASSOCIATES, P.C.

Transcription

1 1 C. D. Michel - SBN Joshua R. Dale - SBN Taara M. Rider - SBN MICHEL & ASSOCIATES, P.C. jiib East Ocean Blvd., Suite 200 Long Beach, CA Telephone: (562) APR Fax: (562) Jokn A. Claite, Executive OfficerlClerk Attorneys for Plaintiffs/Petitioners 6 Burton C. Jacobson, SBN Franklin S. Adler, SBN ATTORNEYS AT LAW 8 Beverly Hills Law Building 424 South Beverly Drive 9 Beverly Hills, California Tel: (310) Attorneys for Plaintiffs/Petitioners IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 13 FOR THE COUNTY OF LOS ANGELES 14 CENTRAL DISTRICT 15 DAVID R. DAVIS, etal. ) CASE NO.: B ) 16 Plaintiffs and Petitioners, ) ) 17 vs. ) Date: May 9,2012 ) Tie: 9:30 a.. 18 CITY OF LOS ANGELES, et al. ) Dept. 14 ) 19 Defendants and Respondents. ) The Honorable Jaes C. Chalfant Departent

2 1 TABLE OF CONTENTS 2 PAGE(S) 3 4 I. INTRODUCTION AND SUMMARY OF ISSUES 1 II. STATEMENT OF FACTS 1 6 A. Assenza Procedural History 1 7 B. Recent Assenza Copliance Efforts C. Davis Petitioners 4 III. SCOPE OF REVIEW IV. ARGUMENT 6 12 A. A Writ of Mandate Is the Appropriate Method for Enforcing a Judgent That Is a Consent Decree B. The Assenza Judgent Applies to Petitioners and to All Mebers of the Public as They Are Intended Beneficiaries of the Judgent 6 15 C. Respondents Failure to Follow the Stipulated Good Cause Standard 16 is Arbitrary, Capricious, Entirely Lacking in Evidentiary Support, 17 and Contrary to Their Legal Obligations Respondents Previously Understood, and Accurately Applied, Good Cause Respondents Are Arbitrarily and Inconsistently Applying Good Cause Respondents Have Unilaterally Altered their Policy to the 22 Pre-Assenza Status Quo By Arbitrarily and Inconsistently 2i Applying Good Cause, Causing Six Petitioners to Inappropriately Suffer D. Even Respondents CCW Processing Procedures Contradict the 25 Unequivocal Procedures of the Assenza Judgent E. Petitioners Are Entitled to Reiburseent of Attorney s Fees 27 and Costs V. CONCLUSION 18 1

3 1 TABLE OF AUTHORITIES 2 3 PAGE(S) 4 FEDERAL CASES 5 AFL-CIO C.L. C. v. City of Cleveland, 6 (1986)478U.S District of Colubia v. Heller, (2008) 128 S.Ct McDonald v. Chicago, (2010) 130 S.Ct s US. v. FMC Corp., (9th Cir.2008) 531 F.3d STATE CASES Assenza v. City oflos Angeles, Case No. BC passi 16 Bixby v. Pierno, 17 (1971)4Cal.3d California Correctional Supervisors Organization, Inc. v. Departent of Corrections, (2002) 96 Cal.App.4th Kih v. City oflos Angeles, 21 (June 3, 1994) Case No. BC , 8 22 Lake v. City ofsan Fernando, (Sept. 24, 1992) Case No. PC ,8, Mike Moore 24-Hour Towing v. City ofsan Diego, 24 (1996)45 Cal.App.4th People v. Picklesier, (2010)48Ca1.4th

4 1 TABLE OF AUTHORITIES 2 3 PAGE(S) STATE CASES CONT. Shelden v. Mann County Eployees Retireent Assn., (2010) 189 Cal.App.4th STATUTES & RULES California Code of Civil Procedure California Code of Civil Procedure California Code of Civil Procedure California Penal Code California Penal Code California Penal Code ,2,6,

5 1 I. INTRODUCTION AND SUMMARY OF ISSUES 2 Respondents City of Los Angeles, Los Angeles Police Departent (LAPD), and LAPD 3 Chief of Police have engaged in, and continue to engage in, a policy and practice of assessing and 4 denying carry concealed weapon ( CCW ) license applications in violation of a consent decree 5 voluntarily entered into by Respondents, the Judgent of Declaratory Relief entered in Assenza v. 6 City oflos Angeles, Case No. BC ( Assenza Judgent ). 7 Petitioners, six of who applied for a CCW but were iproperly denied a CCW license, 8 and three of who were never able to obtain the requisite CCW application aterials fro 9 Respondents in order to apply for a CCW, seek redress for Respondents failure to coply with 10 their obligations under forer Penal Code section and the Assenza Judgent. Specifically, 11 Respondents have continuously and repeatedly failed to provide the required CCW application 12 aterials to Petitioners and other applicants and failed to infor all denied applicants of the 13 existence of appeal rights through the Citizens Advisory Review Panel (established under the 14 Assenza Judgent). Consequently, CCW applicants are left for extended and unreasonable 15 periods of tie not knowing if their application has been granted, denied, or reconsidered. 16 Furtherore, Respondents CCW distribution and processing procedures violate their inisterial 17 duties iposed under Assenza, while the good cause standard (the standard utilized to deterine 18 if a CCW license should issue) is iproperly and arbitrarily applied, despite being unequivocally 19 delineated within the Assenza Judgent itself. 20 Resultantly, Petitioners request that this Court (1) issue a writ of andate to enforce the 21 Assenza Judgent, and to provide Petitioners with its benefit, (2) issue a writ of prohibition to 22 prohibit Respondents continued noncopliance, (3) award attorneys fees and costs for having to 23 bring this action, and (4) order Respondents to issue CCW perits to the six Petitioners who 24 applied but were denied CCW licenses insouch as those six Petitioners have good cause under 25 Section as interpreted by Assenza. 26 II. STATEMENT OF FACTS 27 A. Assenza Procedural History 28 On Noveber 4, 1994, Assenza v. City oflos Angeles, Case No. BC was filed 1 PETTTIQNERS TRIAL RRTPF

6 I concerning the issuance of CCW licenses pursuant to forer Penal Code section In 1995, 2 Respondents entered into a Stipulated Judgent of Declaratory Relief due to their failure to 3 coply with rules, policies, practices, and procedures regarding the issuance of CCW licenses 4 pursuant to Penal Code section (See Trial Brief Exhibits at Bates No. AR )2 5 The purpose of the Stipulated Judgent was to clarify Respondents obligations under Penal Code 6 section and ensure that they abided by the express rules and guidelines proulgated by 7 the Stipulation for all City of Los Angeles residents. (See id. at AR [at 3:24-12:14].) 8 For exaple, the Stipulated Judgent clarifies what CCW aterials ust be handed out to the 9 public, how long Respondents have to respond to a pending CCW application, what factors can be 10 considered in issuing a CCW license, what conditions andate the issuance of a CCW license, 11 and where denied applicants have the opportunity to have their applications reviewed if they are 12 initially denied a CCW license by the LAPD. (See id.) 13 On March 30, 1995, the Assenza Judgent of Declaratory Relief (Pursuant to Stipulation), 14 was entered and signed by the Honorable Dzintra Janavs. (See AR ) 15 In July 1997, Bernard Parks becae the Chief of Police of the Los Angeles Police 16 Departent. Pursuant to this change in the Chief of Police, an Aended Judgent of Declaratory 17 Relief was entered on February 4, (See Decl. of Joshua R. Dale at 4.) 18 In May 1998, Plaintiffs filed an Order Show Cause regarding Contept alleging twenty- 19 four different counts, a handful of which alleged that Defendants failed to distribute a copy of the 20 Assenza good cause guidelines along with the CCW application for as required by the Judgent A copy of forer Penal Code section 12050(a)(1)(B) was attached to the Petition for Writ of Mandate and utilized as an exhibit during depositions in this atter, and is attached at AR (Trial Br. Ex. 110, at p 3:21-28, fn.1. See also AR and AR ) On January 1, 2012, a significant restructuring of the Penal Code took effect. As such, the text of forer 24 section is now published at Penal Code section and All of the subject 25 Petitioners subitted their applications and were denied under the forer section, and as such, all further references will be to Section Trial Brief Exhibit 110 is a true and correct copy of Petitioners Petition for Writ of Mandate, 27 Prohibition, and/or Other Appropriate Relief and includes 15 exhibits and additional alphabetized authenticated exhibits. Pursuant to Local Rule 3.231(h), Petitioners will always provide the 28 Adinistrative Record ( AR ) citation. For ease of reference, Petitioners will additionally provide the Trial Brief Exhibit citation or Petitioners Writ Petition citation where appropriate. 2

7 1 (See Dale Deci., at 4.) On July 29, 1998 the Honorable Alan Buckner issued an Order requiring 2 each and every sworn Coanding Officer of the 18 regional Los Angeles Police Departent 3 Stations or Divisions to file a declaration attesting their knowledge of the CCW policy and their 4 obedience to such policy. (See AR ) Specifically, the fourth ite of the Order 5 required a declaration regarding the present andfuture availability to any applicant for a 6 concealed firears license of both a copy of such stateent of policy and the Los Angeles Police 7 Departent [] application for concealed weapons license. (Id. at AR [at 2:16-20] 8 [ephasis added].) 9 Both in 2003 and in 2010, when the Chief of Police changed fro Bernard Parks to 10 Willia Bratton, and then subsequently changed fro Willia Bratton to Chief Charlie Beck, 11 Plaintiffs filed a Stipulation to Modify the Aended Judgent of Declaratory Relief to reflect 12 these changes. (See Dale Decl., at 5.) The current Third Aended Assenza Judgent was 13 entered by this Court on June 11, (See AR and AR ) Thus, even 14 though it was originally entered as a judgent in 1995, it has been an ongoing consent decree to 15 which Respondents ust continue to coply. 16 B. RecentAssenza Copliance Efforts 17 In May 2011, Plaintiffs filed a Motion to Enforce pursuant to Defendants delinquencies 18 to, once again, provide the public with a copy of both its CCW policy and a CCW application, as 19 required by both the Assenza Judgent and Judge Buckner s 1998 Order. (See Dale Decl., at 6.) 20 To reinforce that the public had access to these aterials, and to obtain inforation regarding 21 Defendants copliance with their requireents to the public under Assenza, the Honorable Terry 22 Green ordered Defendants to: (1) provide Plaintiffs with all contact inforation of every CCW 23 applicant who applied for a CCW since 1998, the date of Judge Buckner s Order, (2) file sworn 24 and signed declarations fro each station house coanding officer attesting to their copliance 25 with both the Assenza Judgent and Judge Buckner s Order, (3) post a copy of both the CCW 26 policy and the CCW application on the Los Angeles Police Departent website, and (4) coply 27 with such requireents by Septeber 7, (See AR ) Defendants filed two 28 separate copliance filings in id and late Septeber (See Dale Deci., at 7.) 3

8 1 As of the date of this filing, an Order to Show regarding Contept hearing is pending in 2 the Assenza atter due to Plaintiffs discovery of at least 75 percent non-copliance at the LAPD 3 station houses with the May 2011 Order. (See Dale Dccl., at 8.) 4 C. Davis Petitioners 5 Also in May 2011, nine Petitioners filed this writ petition pursuant to Code of Civil 6 Procedure section 1085 to address Respondents failure to provide the with the benefit of the 7 bargained-for Assenza Judgent and Penal Code section Petitioners David Davis, Jacob 8 Hill, Brian Goldstein, Paul Cohen, Scott Austin, and Eric Feder were wrongfully denied CCW 9 licenses, despite eeting at least one of the andatory issuance conditions expressly listed in the 10 Assenza Judgent. (See AR [at 5:3-26] [identifying when issuance of a CCW license is 11 andatory].) Petitioners occupations range fro a obile jewelry and expensive art salesan 12 (See AR [Davis]), a property owner who collects rents paid in cash (See AR Hill]), an owner, anager, and frequent transporter of expensive pharaceuticals (See 14 AR [Goldstein]), a private investigator involved in fraud, urder, and high profile 15 cases (See AR [Cohen]), a executive protection specialist and ared guard who 16 protects high profile clients and jewelry stores (See AR l026 [Austin]), and a television 17 producer supervisor who has received nuerous threats, soe of which have been acted upon, as 18 a result of a television show he produced about Russian organized crie (See AROO [Feder]). 20 Although ost of these Petitioners encountered difficulty obtaining the requisite CCW 21 aterials to apply for a CCW license, (See AR [at 3:27] and AR [at 5:4-6] [Davis 22 Deci.]; AR [at 4:1-3] [Hill Deci.]; AR [at 5:1-3] [Goldstein Dccl.]; AR [at 23 2:15-21] and AR [at 5:5-7] [Cohen Deci.]; and AR [at 2:14-22] and AR [at 24 4:7-9] [Austin Dccl.]), each of these Petitioners subsequently applied for a CCW license, soe 25 with the help of co-counsel Burton Jacobson, and deonstrated good cause as required by the 26 Assenza good cause conditions. (See AR and AR [Davis application and 27 correspondence]; AR [Hill application]; AR , AR , and 28 4

9 1 AR [Goldstein application and correspondence]; AR , AROO1002, AR , AR , and AR [Cohen application and correspondence]; AR , 3 AROO1O3O-1032, and AR [Austin application and correspondence]; AR [Feder 4 application]. See also AR [at 5:3-26] [identifying when issuance of a CCW license is 5 andatory].) 6 Each Petitioner was wrongfully denied a CCW license by Respondents. (See AR and AR [Davis denials]; AR and AR [Hill denials]; AR and 8 AR [Goldstein denials]; AR and AR [Cohen denials]; AROO 1028 and 9 AR [Austin denials]; and AROO 1056 and AR [Feder denials].) 10 As for Petitioners Jill Brown, Lisa Siegel, and Chris Butler, they did not receive either a 11 copy of the CCW application and/or a copy of the LAPD CCW Policy fro Respondents. (See 12 AROO1O4O [at 2:6-22] [Brown Decl.]; AR [at 2:6-18] [Siegel Decl.]; AR [at 13 2:12-3:1] [Butler Decl.].) As such, they were unable to even apply for a CCW license. 14 III. SCOPE OF REVIEW 15 A traditional writ of andate is used to copel a public entity to perfor a legal and 16 usually inisterial duty by which the trial court reviews its conduct to deterine whether it was 17 arbitrary, capricious, or entirely lacking in evidentiary support, or whether the agency failed to 18 follow the procedure and give the notices the law requires. []On appeal, the trial court s factual 19 findings ust be upheld if they are supported by substantial evidence. (Shelden v. Mann County 20 Eployees Retireent Assn. (2010) 189 Cal.App.4th 458, 463 [citation oitted].) 21 III 22 III If an adinistrative decision substantially affects a vested or fundaental right, the trial court 25 exaines the record for errors of law and exercises its independent judgent upon the evidence. Bixby v. Fierno (1971) 4 Cal.3d 130, 143 [reviewing an adinistrative andaus petition].) Per 26 District of Colubia v. Heller (2008) 128 S.Ct and McDonaldv. Chicago (2010) 130 S.Ct , the Second Aendent right to keep and bear ars has been deeed an incorporated fundaental right. However, whether this fundaental right applies to CCWs, thereby allowing 28 this Court to exercise its independent judgent, has not yet been decided. 5 PETITIONERS TRTAL BRIEF

10 1 IV. ARGUMENT 2 A. A Writ of Mandate Is the Appropriate Method for Enforcing a Is a Consent Decree 3 That Judgent 4 In a stipulated judgent, or consent decree, litigants voluntarily terinate a lawsuit by 5 assenting to specified ters, which the court agrees to enforce as a judgent. (Local No. 93, 6 Intern. Ass n offirefighters, AFL-CIO C.L.C. v. City ofcleveland (1986) 478 U.S. 501, 519). 7 [C]onsent decrees bear soe of the eararks ofjudgents entered after litigation. At the sae 8 tie, because their ters are arrived at through utual agreeent of the parties, consent decrees 9 also closely reseble contracts. (Ibid.) 10 Intended third-party beneficiaries have standing to enforce consent decrees in atters to 11 which they were not originally parties. (US. v. FMC Corp. (9th Cir.2008) 531 F.3d 813, [tribe did not have standing to enforce consent decree entered into as a result of litigation between 13 governent and ining copany, where decree specifically excluded enforceent by third party 14 beneficiaries].) 15 B. The Assenza Public as They Are 16 Judgent Applies to Petitioners and to All Mebers of the Intended Beneficiaries of the Judgent 17 The Assenza Judgent applies to Petitioners and all ebers of the public because it 18 governs, clarifies, and andates the policies, practices, procedures, and guidelines Respondents 19 ust follow in issuing or denying CCW licenses pursuant to Penal Code section 12050, et seq. 20 (See AR ) Penal Code section applies to all California residents and the 21 Assenza Judgent specifically seeks to ensure that all residents of the City of Los Angeles are 22 treated equally. (See AR ; and Decl. of Burton Jacobson at 5.) For exaple, the 23 Assenza Judgent provides not only discretionary factors for Respondents to consider when 24 issuing CCWs (see AR [at 5:27-7:10]), but it also provides express conditions 25 which, if established by the applicant, andates the issuance of a CCW absent strong 26 countervailing evidence. (See AR [at 5:3-26].) 27 The Assenza Judgent cae about because prior to 1994, Respondents had not issued 28 6

11 1 CCWs to any Los Angeles residents whatsoever. Then a CCW was issued to new LAPD Chief 2 Willie Willias, because he could not eet California POST (Police Officer Standards & 3 Training) requireents for issuance of a firear as a California Peace Officer. This raised equal 4 protection clais. Lawsuits arose, such as Assenza, Lake, and Kih, to copel the issuance of 4 5 CCWs to qualified individuals who were without sufficient political and/or econoic clout to 6 obtain one through the unsavory echanics of cronyis. Resultantly, Stipulated Judgents in 7 these copanion cases were subsequently filed and entered, and are virtually identical to the 8 Assenza Judgent, except with respect to the identified individuals initially ordered to receive 9 CCW licenses under the respective judgents. (See Jacobson Decl., at 2-5.) 10 Since its entry, the Assenza Judgent has reained substantively unchanged. It clearly 11 delineates when a CCW ust be issued upon the showing of certain good cause conditions. 12 (See AR [at 3:22-4:19] and AR [at 5:3-26].) Thus, not only does it clarify 13 Respondents good cause standard, it provides definitive objective standards as when a CCW 14 license ust issue, thereby liiting the Chiefs usual broader exercise of discretion granted under 15 Section Therefore, to settle Assenza, Kih, and Lake, Respondents agreed to narrow the 16 usual discretion afforded a chief of police in issuing CCWs and instead ipleent threshold, 17 objective standards for autoatic issuance. (Id.). This exact andatory issuance language was 18 utilized in Respondents LAPD CCW Policy that was handed out to CCW applicants prior to 19 Septeber (See AR and AR ) 5 Additionally, the Assenza Judgent 20 provides procedural andates as to CCW distributing and processing procedures. (See 21 AR [at 7:18-10:9].) Lake v. City ofsan Fernando, Case No. PC (filed Sept. 24, 1992) and Kih v. City Los Angeles, Case No. BC (filed June 3, 1994). (See, e.g., AR000185, AR000204, 24 AR000511, AR [at 23:5-10], and AR [at 35:17-20].) 25 In Defendants Septeber 2011 Assenza copliance filings, Defendants unilaterally revised 26 their LAPD CCW Policy without contacting Plaintiffs counsel prior to such aendent. Resultantly, language taken fro the Assenza Judgent was iproperly reoved fro the current 27 LAPD CCW Policy. (Copare AR with AR000I2O-l22 [reoval fro policy of Assenza-andated INTRODUCTORY and requires issuance of licenses paragraphs]. See also 28 Dale Decl., at 7.) of 7

12 1 Indicia of the Judgent s public applicability are abundant throughout the language of the 2 Judgent itself. For exaple, all applicants ust receive a copy of the CCW application and 3 policy (see AR [at 7:18-20]), all denied applicants are to be advised of the existence of the 4 Citizens Advisory Review Panel, (see AR [at 9:20-22]), all denied applicants can request 5 to have their application reviewed by the Panel (See AR [at 9:22-27]), and all denied 6 applicants have the ability to recover attorneys fees if they are ultiately issued a CCW upon the 7 recoendation of the Panel. (See AR [at 10:4-9].) Additionally, evidentiary 8 assuptions and andatory notification deadlines are iposed for all subitted applications. 9 (See AR [at 7:21-8:20]). Furtherore, the 1998 and recent 2011 Orders recognize 10 Assenza s applicability to the public at large. (See AR [at 2:16-22] and AR ) 11 Even Respondents officials have previously considered the Assenza Judgent as a 12 consent decree generally applicable to the public. Forer Assistant City Attorney Byron 13 Boeckan, who negotiated and entered into the Stipulated Judgent on behalf of Respondents 14 (see AR ), drafted correspondence to LAPD personnel referencing the siilar Lake 15 Judgent as a consent decree. (See AR ; see also Declaration of C.D. Michel, at 11.) 16 Likewise, forer Deputy Chief Bernard Parks called it a consent decree in LAPD policy 17 correspondence (Trial Br., Ex. 27 [AR ]; see also Michel Decl., at 8), while during 18 his deposition as Chief of Police he continually referred to it as a consent decree. (See 19 AR [at 22:23-23:17, and 24:1-5] and AR [at 33:21-34:3]; see also 20 Jacobson Dccl., at 16.) Chief Parks correctly testified that the Assenza, Lake, and Kih 21 Judgents were designed to provide instructions for all City of Los Angeles CCW applicants and 22 did not only relate to the plaintiffs in those cases. Furtherore, he testified that the discretion of 23 the Chief of Police ust be exercised in accordance with the ters set forth in those judgents. 24 (See AR [at 35:17-25 and 36:7-10].) 25 Now, for the first tie in 17 years, Respondents have changed positions as to who the 26 Assenza Judgent applies. In May 2011, Respondents first claied that the sole purpose of the 27 first Assenza Judgent of Declaratory Relief was to ensure that the LAPD established a policy for 28 8

13 1 the issuance of [CCW] perits that coplied with California Penal Code section The 2 purpose of each of the subsequent Judgents of Declaratory Relief in 1998, 2002 and 2010 was 3 the sae. (See AR [at 2:10-14]; see also Dale Decl., at 12.) Then, Respondents 4 represented to this Court the procedures agreed to in Assenza are irrelevant to Petitioners, and 5 therefore irrelevant to the public. (See AR [at 4: ). 5:6]; see also Dale Decl., at 7 Then, ost recently in March of this year, Defendants claied, for the first tie, that the 8 Introductory paragraph (see AR [at 3:23-28]) and a portion of the Presuption paragraph 9 (see AR [at 7:11-15]) apply only to the Assenza Plaintiffs. (See AR [at 2:9-13]; see 10 also Dale Decl., at 13.) When Defendants were specifically asked to adit whether Chief Beck 11 is bound or not bound by the Assenza Judgent, and whether the procedures section of the 12 Judgent (see AR [at 3:20-10:16]) apply or do not apply to CCW applicants. (See 13 AR ) Defendants denied each of these requests for adissions (see AR ) 14 and identified which portions they deterined applied to the City of Los Angeles residents. (See 15 AR ; see also Dale Decl., atj ) 16 Respondents new position as to Assenza s applicability is contrary to the intent of the 17 Assenza Judgent, contrary to what prior LAPD personnel believed to be true, and contrary to the and 2011 Orders. (See Jacobson Decl., at 17; AR ; AR ; AR ; AR ; AR ; AR ; and AR ) IftheAssenza 20 Judgent was only applicable to the naed parties who were ordered to receive CCWs fro 21 Respondents (see AR [at 2:20-3:11]), then the reaining rules and guidelines which 22 discuss Respondents procedural and substantive obligations would be oot. (See AR [at 3:20-10:17]; see also Jacobson Dccl., at 17.) 24 The Assenza Judgent is directly applicable to all CCW applicants including Petitioners. 25 C. Respondents Failure to Follow the Stipulated Good Cause Standard is Arbitrary, Capricious, Entirely Lacking in Evidentiary Support, and 26 Contrary to Their Legal Obligations 27 Respondents iproper and inconsistent application of good cause, in addition to their 28 9

14 1 failure to issue a CCW when an applicant clearly satisfies any one of the good cause conditions, is 2 not only procedurally unfair and against public policy, but is arbitrary, capricious, and entirely 3 lacking in evidentiary support. (See Mike Moore s 24-Hour Towing v. City ofsan Diego (1996) 4 45 Cal.App.4th 1294, 1303 [ [W]hether the agency s decision was arbitrary, capricious or entirely 5 lacking in evidentiary support, contrary to established public policy or unlawful or procedurally 6 unfair, are essentially questions of law. ].) Where only one choice can be a reasonable exercise 7 of discretion, a court ay copel an official to ake that choice. (Caflfornia Correctional 8 Supervisors Organization, Inc. v. Departent of Corrections (2002) 96 Cal.App.4th 824, 827.) 9 1. Respondents Previously Understood, and Accurately Applied, Good Cause Prior to the Assenza lawsuit, Respondents utilized a vague, confusing, and abiguous 12 clear and present danger good cause standard which acted as an arbitrary platfor for an 13 unfettered abuse of discretion. (See AR [1993 LAPD CCW Application and Policy]; 14 see also Michel Decl., at 12; and Jacobson Decl., at J 6-7.) During the Assenza negotiations, it 15 was agreed that LAPD s clear and present danger language could be listed within the Assenza 16 Judgent. (See AR [at 3:12-20].) But, to provide clarification, accountability, and 17 illuination on when good cause shall exist, and to liit the Chief of Police s ability to abuse his 18 discretion, five explicit good cause conditions were purposefully and unequivocally identified so 19 that Respondents knew when a CCW ust be issued. (See AR [at 5:3-26]; see also 20 Jacobson Decl., at J 9, 11.) 21 As such, the Chief s discretion to issue CCWs ust be exercised in accordance with the 22 ters set forth in those judgents, as Chief Parks so accurately testified. (See AR [35:17-25 and 36:7-10]; see also AR [at 3:22-28] and AR [at 5:3-26].) With the 24 involveent of the City Attorney, Respondents were properly issuing CCWs after the Assenza Judgent was entered. (See AR [at 4:12-9:15] [at least 140 people held a 26 CCW]; see also AR000185, AR , AR , and AR ; and see Michel 27 Dccl., at I 7, ) In the last 14 years, however, only 18 people have been issued a CCW (see 28 10

15 1 AR [at 2:10-17]), and now only 17 CCW holders exist in the City of Los Angeles (nine are 2 original Assenza plaintiffs and one is an original Lake plaintiff). (See Dale Decl., at J ) 3 2. Respondents Are Arbitrarily and Inconsistently Applying Good Cause 4 Testiony elicited fro various LAPD personnel, including the Chief of Police hiself, 5 revealed that the good cause standard utilized to deterine whether a CCW license should issue 6 differs fro person to person. Such arbitrary variations have caused CCWs to rarely be issued. 7 For exaple, Coander Regina Scott, who reviewed CCWs applications of Petitioners 8 Davis and Cohen, claied: Based on Regina Scott s interpretation of good cause of the policy 9 based on what I ve been trained, again, it s clear and present danger of the applicant; and that the 10 danger is iediate, and continuous, and that there are no other reasonable eans to resolve that 11 issue. (See AR0006OI [at 34:19-24]). Thus, she believed that Respondentsforer definition of 12 good cause (see AR [at 3:12-20 ]), is the LAPD s standard for good cause. When her 13 attention was directed at the five conditions where good cause shall exist if any of the listed 14 conditions were found (see AR [at 5:3-26]), she did not consider those listed conditions as 15 standards of good cause, despite aditting that Petitioner Cohen s application fell under two of 16 the listed conditions. (See AR [at 89:6-90:17].) 17 Forer Chief of Detectives Deputy Chief David Doan, on the other hand, (who reviewed 18 applications of Petitioners Hill, Goldstein, Austin, and Feder) testified that the finding of only one 19 of these five listed good cause conditions requires the issuance of a CCW. (See AR [at 20 64:7-12].) Nevertheless, despite eeting at least one of the good cause conditions, none of these 21 Petitioners received a CCW license. (See AR and AR [Hill denials]; AR and AR [Goldstein denials]; AROO 1028 and AR [Austin denials]; and AR and AROO1 058 [Feder denials].) Contrary to both Coander Scott and Deputy Chief Doan, 24 Officer Kosal Bun testified that a CCW license should issue where only a portion of one of the 25 listed conditions of good cause is shown by a CCW applicant. (See AR [at 95: :4].) 27 Even the testiony of the LAPD s person ost qualified, Detective Richard Topkins, 28 contradicted these above-listed good cause interpretations. At first Detective Topkins testified, 11

16 1 siilar to Coander Scott, that a CCW applicant ust eet the good cause definition in order 2 to be issued a CCW license, regardless of whether any good cause conditions or guidelines were 3 satisfied. (See AR [at 361:14-24 ].) Later in his deposition, Mr. Topkins changed his 4 testiony and said that a CCW applicant ust first show that he satisfies one of the good cause 5 conditions and if he failed to do so, then the LAPD reverts back to the good cause definition and 6 sees if the applicant satisfies the definition. (See AR [at 5 17: :16.) 5 18:17 & 5 19:20-8 As for LAPD Chief Charlie Beck, he testified that the five good cause conditions are 9 judged in conjunction with the clear and present danger good cause definition fro the forer 10 policy, and, despite the explicit andatory issuance language, these good cause conditions are still 11 subject to and restricted by the clear and present danger language located within the forer 12 good cause definition. (See AR [at 42:4-10].) 13 Respondents varying interpretations and application of good cause are arbitrary, 14 capricious, and have consequently resulted in applicants qualified under the ters of the judgent 15 being denied CCW licenses. (Copare AR [at 2:10-17] with AR [at 4: :15].) The good cause conditions (see AR [at 5:3-26)) are neither listed to be ignored 17 copletely, nor to be considered as optional factors to be judged in conjunction with each other or 18 the forer good cause definition. (See Jacobson Decl., at 11.) Rather, they are purposefully 19 listed to identify when issuance is andatory, and reove the discretion that had previously been 20 abused by Respondents. (See Jacobson Deci., at J 11.) 21 Tellingly, forer City Attorney Byron Boeckan understood perfectly well the purpose of 22 these good cause conditions. (See Jacobson Decl., at 10.) In an August 1997 letter he drafted to 23 Officer-in-Charge at the Gun Unit, he indicated that based on those five good cause factors, and 24 those factors alone, CCW licenses should be issued to the naed individuals. (See AR ) In a October 1997 letter to Captain Whitley, Mr. Boeckan provided his analysis under 26 each relevant good cause factor as to why he recoended that 16 individuals be issued CCWs at 27 that tie. (See AR ) In both letters Mr. Boeckan did not include language 28 discussing or considering LAPD s forer good cause definition, i.e., clear and present danger. 12

17 1 Like the other crafter of the Assenza Judgent, Mr. Jacobson, Mr. Boeckan understood that the 2 forer clear and present danger standard no longer applied. 3 When Chief Beck was shown the August 1997 letter, and asked why Mr. Boeckan did 4 not discuss in any way the clear and present danger standard that Chief Beck dees CCW 5 applicants ust deonstrate under Assenza, Chief Beck glibly speculated that Mr. Boeckan s 6 failure to include the clear and present danger language ust have been an oission on Mr. 7 Boeckan s part. (See AR [at 49:3-21].) So according to Chief Beck, it is the City 8 Attorney who drafted the Assenza Judgent, and who was called upon to repeatedly apply it in 9 assessing CCW applications, who erred in interpreting Assenza. It is not the Chief hiself who is 10 interpreting Assenza in a contrary and arbitrary anner soe 15 years later Respondents Have Unilaterally Altered their Policy to the Pre-Assenza Status Quo By Arbitrarily and Inconsistently Applying Good Cause, 12 Causing Six Petitioners to Inappropriately Suffer 13 Because Respondents are arbitrarily applying good cause, and because Chief Beck, in 14 addition to Regina Scott, have reverted to the prior unlawful standard of good cause, six 15 Petitioners were not issued CCWs, despite having the sae or siilar facts as active CCW holders 16 or other applicants previously deeed by Mr. Boeckan to have good cause under Assenza s 17 factors. 18 For exaple, Petitioner Davis owns and anages obile jewelry businesses in which he 19 transports expensive erchandise to nuerous locations at irregular hours, often traveling alone 20 and at night. (See AR [at 2:3-3:8], AR000079, and AR ) Siilarly, 21 licensed CCW holders Joel C. Schlossan and Nathan D. Schlossan are business owners who 22 travel to retail jewelry stores with large aounts of valuable property and collect rents paid in 23 cash. (See AR000670, AR , AR000682, and AR ; see also Dale Decl., at ) All three deonstrate good cause under subdivision (d) or (e), and their circustances are 25 practically the sae, (see AR [at 5:18-26]), yet only the Schlossan brothers hold CCWs, 26 possibly because they are original Assenza plaintiffs, but Mr. Davis is not. Even three other 27 individuals with siilar, but less extree circustances than either the Schlossan brothers or 28 Mr. Davis, were recoended for issuance of CCWs by Mr. Boeckan. (See AR

18 back 1 [recoending Robert Serin] and AR [recoending Jeffery Rosen and Barron 2 Yanaga].) 3 Siilar to the Schlossan brothers, Petitioner Hill owns a property anageent 4 corporation where he collects rents, often paid in cash, in very unsafe neighborhoods and has 5 received threats fro both disgruntled eployees and tenants. (See AR [at 2:3-25], 6 AR000263, and AR ) Despite eeting the good cause definition under both 7 subdivision (d) and (e) (see AR [at 5:18-26]) and having circustances siilar to the 8 Schlossan brothers (see AR and AR ), Petitioner Hill was denied a CCW 9 license. (See AR and AR ) Nevertheless, another individual with siilar 10 circustances to Petitioner Hill was recoended to have a CCW license when City 11 Attorney Boeckan was assisting Respondents in properly interpreting their obligations under 12 Assenza. (See AR [recoending Stephen Xirinachs].) 13 Petitioner Goldstein owns and operates a pharaceutical copany and constantly 14 transports substantial sus of currency and expensive narcotic pain edications. (See AR [at 2:3-3:2], AR000329, and AR ) Siilarly, licensed CCW holder and original 16 Assenza plaintiff Jesse Ronald Rich is a traveling physician who carries a physician s bag for his 17 instruents. (See AR and AR000698; see also Dale Decl., at 19.) Even though Mr. 18 Rich has never been robbed, robbers could istake his bag as containing narcotics. (See 19 AR and AR ) Like Mr. Rich, Petitioner Goldstein clearly deonstrates good cause 20 under subdivision (d) (see AR [at 5:18-23]), yet unlike Mr. Rich, Mr. Goldstein was 21 inexplicably denied a license. (See AR and AR ) 22 Petitioner Cohen, a licensed private investigator priarily involved with high profile 23 cases, and who held a CCW in Ventura County for six years without incident (see AR at 24 2:3-14], AR000045, AR000053, and AR000055), and Petitioner Feder, a television producer 25 supervisor who has received nuerous threats due to a Russian television show he produced about 26 organized crie (see AROO1O5O-1051 [at 2:3-22, 3:5-11, & 3:23-24], AR000406, and 27 AR000415), both deonstrated good cause under subdivision (e) (See AR [at 5:23-26].) 28 Nevertheless, both were denied CCW licenses (see AR and AR [Cohen denials]; 14

19 1 and ARO and ARO [Feder denials]), despite there being current CCW holders who 2 have siilar facts as Cohen and Austin (see, e.g., AR000448, AR000704, and AR [Marshall Clifford Mars is a private investigator and security consultant]), and despite other 4 individuals with siilar circustances that were recoended to be issued CCWs. (See, e.g., 5 AR [Joseph Lazarovitz] and AR000315] [Howard Bennett]; see also Dale Decl., at 19.) 6 Satisfying a different good cause subdivision is Petitioner Austin, an executive protection 7 specialist for celebrities, jewelry stores, large real estates, and high profile clients, and a CCW 8 holder in both Utah and Florida. (See AR [at 2:3-13], AR000361, AR000369, AR000371, 9 and AR See also AR [at 5:9-14] [Assenza good cause subdivision (b)].) Siilar 10 to licensed CCW holder and original Assenza plaintiff Marshall Clifford Mars (see AR ), Petitioner Austin is in the business of personal security transporting valuable erchandise. 12 Unlike Mr. Mars, however, Petitioner Austin was denied a CCW license (see AROO 1028 and 13 AR000509) even though others with siilar facts were recoended to be issued a CCW license. 14 (See, e.g. AR [Joseph Lazarovitz]; see also Dale Decl., at 19.) Under Respondents 15 current tortured and self-serving reading of their obligations under the Assenza Judgent, it is 16 doubtful Messrs. Mars, Lazarovitz, Bennett, Scholssan, Rich, et al., would be deeed to have 17 good cause if they applied for a CCW license today. 18 Even though these Petitioners clearly satisfy good cause and provide the sae, if not ore 19 aggravated circustances that warrant the issuance of CCW license, Respondents iproperly and 20 arbitrarily denied the CCW licenses without any legitiate basis or evidentiary support. 21 Respondents should not be peritted to engage in such unfair practices. CCW licenses should be 22 issued to each Petitioner accordingly, or clearly explained why good cause was not satisfied. 23 D. Even Respondents CCW Processing Procedures Contradict the Unequivocal Procedures of the Assenza Judgent Respondents CCW processing procedures are procedurally unfair and in violation of the 26 Assenza Judgent. First, Respondents have failed to provide all applicants with a copy of the 27 CCW application and LAPD CCW Policy, despite their inisterial duty to do so. (See AR [at 7:19-20] and AR ; see also AROO1O4O [at 2:6-22] [Brown Decl. on lack of receipt 15

20 1 of aterials fro station house]; AR [at 2:6-18] [Siegel Dee!.]; AR [at 2:12-2 3:1] [Butler Deci.]. See also People v. Picklesier (2010)48 Cal.4th 330, 340 [ A inisterial 3 duty is an obligation to perfor a specific act in a anner prescribed by law whenever a given 4 state of facts exists, without regard to any personal judgent as to the propriety of the act. ].) 5 For first tie applicants, recoendation letters are drafted to superiors which are 6 nothing ore than denial letters with factual suaries, lacking any good cause analysis. (See 7 AR [Cohen denial letter]; AR and AR [Hill]; AR and AR [Goldstein]; AR and AR [Austin]; AR [Feder]; and AR [Davis]. See 9 also Dale Deci., at 10.) Soeties these letters are the only docuents presented to the 10 superior LAPD personnel for their review (see, e.g., AR , AR000290, AR000292, 11 AR000350, AR000356, AR000391, AR000393, and AR000421), and they are relied on to ake 12 ultiate decisions. (See AR [at 422:6-13 recoendations are always followed].) 423:10] [subordinate Detective Topkins 14 Denials to first tie applicants are iproperly delegated to a Coanding Officer or the 15 Chief of Detectives neither of who have never seen the Assenza Judgent (see AR [at 58:12-59:11] and AR [at 94:14-95:3]), and are not adequately infored of all of 17 their court-ordered obligations. For exaple, these LAPD personnel, despite being in decision- 18 aking capacities, were not aware of their Celerity requireent (see AR [at 8:8-20], 19 AR [at 66:14-25], and AR [at 100:22-101:5]), Presuption requireent (see 20 AR [at 7:11-18], AR [at 63:25-65:23], and AR [at 95: :13]), and Evidence requireent. (See AR [at 7:21-8:7], and AR [at 66: ].) Furtherore, denied applicants receive a boilerplate denial letter (see AR [denial language exeplars], and see Dale Deci., at 22) and are not always infored of the 24 existence of the Citizens Advisory Review Panel. (See, e.g., AR ) 25 Of the denied applicants who request to have their application reviewed by the Panel, the 26 Panel does not always receive all application aterials fro the LAPD, nor are the Panel s 27 questions tiely answered. (Copare AR [at 9:22-27] with AR and AR See also Jacobson, Decl., at 13.) Despite the good faith consideration that should be given 16

21 have 1 to the Panel s recoendations (see AR ), its recoendations have never been followed 2 since (See Jacobson, Deci., at 14). 3 After the Panel provides its recoendation, the Chief of Detectives subits another 4 uninforative recoendation letter to the Chief of Police for the Chief sfirst review, which 5 fails to state why the Panel believes the applicant deonstrates good cause, nor why the applicant 6 lacks good cause. (See, e.g., AR and AROO1006 [Cohen]; AR and AR [Hill]; AR and AR [Goldstein]; AR and AR [Austin]; and 8 AR and AR [Feder].) Despite testifying that the Detectives recoendation is 9 always reviewed before a decision is ade (see AR [at 160:10-19]), Chief Beck signed 10 Petitioner Hill s denial letter without reviewing the Detective s recoendation. (Copare 11 AR with AR ) Thus, the Chief rubber-staps denials and grants without all of the 12 inforation having been presented to hi. (See, e.g, AR [recoendation for Northrop 13 Gruan board eber Lewis Waldo Colean to receive CCW license without docuenting 14 specific threats for Chief s consideration]; and AR [at 108:18-111:15] [testiony re 15 sae].) 16 As a result of this scattershot approval process, since Chief Beck took office in 2009, only 17 two CCW licenses have been issued to new applicants. (See AR [at 499:5-8 & 500:3-18 7]; see also Dale Dccl., at 27.) One of these was to Lewis Waldo Colean based on an alleged 19 terrorist threat that neither Detective Topkins nor Chief Beck were ever told the details of and 20 which neither could describe in their testiony; they just recoended issuance based on the say- 21 so of another captain in the Departent. (See AR [at 505: :9] and AR [at 108:18-111:15]; see also Dale Dccl., at 28.) The only other CCW was issued to Bar 23 Kochba Meir Botach, an Orange County Reserve Sheriffs Deputy who supplies ilitary-grade 24 weapons to law enforceent officials, including the LAPD. (See AR [Botach license 25 issued 3/16/20 10]; see also Dale Decl., at 27.) While these two connected applicants are 26 recipients of licenses, none of the types of CCW applicants who previously were found by the City 27 Attorney and prior Chiefs to have good cause under Assenza jewelers, pharacists, and those 28 who work in dangerous jobs received CCW licenses under this Chief despite having as 17

22 1 uch good cause, if not ore, as Messrs. Colean and Botach. 2 Both the ethod by which the applications are processed as well as their disparate 3 outcoes are inherently unfair and against public policy, and violate the facial requireents of 4 Assenza. 5 E. Petitioners Are Entitled to Reiburseent of Attorney s Fees and Costs 6 Respondents derogation fro the Assenza Judgent, both procedurally and substantively, 7 caused all Petitioners to inappropriately suffer, receive iproper denials, or no CCW aterials 8 whatsoever. In agreeing to Assenza, Respondents further agreed that if they deviated fro their 9 agreed-to obligations and iproperly denied deserving CCW applicants licenses, where the 10 Citizens Advisory Review Panel recoended issuance, those applicants could seek a writ of 11 andate to copel the issuance of such licenses and recover their attorney s fees and costs in 12 doing so. (See AR [at 10:4-9]; Code Civ. Proc., 1717 [attorney s fees awarded where 13 allowed by contract]). Due to Respondents failure to adhere to their legal obligations to the 14 public at large under a consent decree, Petitioners are entitled to attorneys fees and costs. (See 15 Code Civ. Proc., [attorney s fee available where issue of public benefit is adjudicated]). 16 This issue should be litigated via a separate otion. 17 V. CONCLUSION 18 Petitioners request that this Court (1) issue a writ of andate to enforce the Assenza 19 Judgent to provide Petitioners with its benefit, (2) issue a writ of prohibition to prohibit 20 Respondents continued noncopliance, (3) award petitioners costs and attorneys fees for having 21 to bring this action, and (4) order Respondents to issue CCW perits to Petitioners who applied 22 but were denied CCW licenses. 23 Dated: April 16, 2012 MICHEL & ASSOCIATES, P.C. 24 IV 25 C.D.I1iV 26 Joshu Dale Attorre/s for Plaintiffs / 18

23 (BY (OVERNIGHT 1 PROOF OF SERVICE 2 STATE OF CALIFORNIA 3 COUNTY OF LOS ANGELES 4 I, Claudia Ayala, a eployed in the City of Long Beach, Los Angeles County, California. I a over the age eighteen (18) years and a not a party to the within action. My 5 business address is 180 East Ocean Blvd., Suite 200, Long Beach, California On April 17, 2012, I served the foregoing docuent(s) described as 7 8 on the interested parties in this action by placing [ ] the original 9 [X] a true and correct copy thereof enclosed in sealed envelope(s) addressed as follows: 10 SEE ATTACHED SERVICE LIST 12 MAIL) As follows: I a readily failiar with the fir s practice of collection and 13 processing correspondence for ailing. Under the practice it would be deposited with the U.S. Postal Service on that sae day with postage thereon fully prepaid at Long Beach, 14 California, in the ordinary course of business. I a aware that on otion of the party served, service is presued invalid if postal cancellation date is ore than one day after 15 date of deposit for ailing an affidavit. Executed on April 17, 2012, at Long Beach, California. 16 X (PERSONAL SERVICE) I caused such envelope to delivered by hand to the offices of the 17 addressee. Executed on April 17, 2012, at Long Beach, California. 18 MAIL) As follows: I a readily failiar with the fir s practice of 19 collection and processing correspondence for overnight delivery by UPS/FED-EX. Under the practice it would be deposited with a facility regularly aintained by UPS/FED-EX for 20 receipt on the sae day in the ordinary course of business. Such envelope was sealed and placed for collection and delivery by UPS/FED-EX with delivery fees paid or provided for 21 in accordance. Executed on April 17, 2012, at Long Beach, California. 22 X (STATE) I declare under penalty of perjury under the laws of the State of California that 23 the foregoing is true and correct. 24 (FEDERAL) I declare that I a eployed in the office of court at whose direction the service was ade. 25 ( 26 CLAUDL ALA PETTTJONERS TRIAL BRWF

24 1 SERVICE LIST 2 ANTHONY MARIO ASSENZA, et al. v. THE CITY OF LOS ANGELES, et al. Caren A. Trutanich, City Attorney Carlos De La Guerra, Managing City Attorney Debra L. Gonzalez, Assistant City Attorney CITY OF LOS ANGELES 200 North Main Street City Hall East, Roo Los Angeles, CA Burton C. Jacobson 8 ATTORNEYS AT LAW Beverly Hills Law Building South Beverly Drive Beverly Hills, California Attorneys for Defendants/Respondents Charlie Beck and City of Los Angeles Co-Counsel Ii

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