Filed 7/11/14 Owens v. CA Dept. of Corrections and Rehabilitation CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


FRED OWENS,                                                          B249560

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. BS135813)
         v.

CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION,

         Defendant and Respondent.



         APPEAL from a judgment of the Superior Court of the County of Los Angeles,
Luis A. Lavin, Judge. Affirmed.
         Law Offices of Michael A. Morguess, Michael A. Morguess for Plaintiff and
Appellant.
         California Department of Corrections and Rehabilitation, Stephen A. Jennings,
Staff Counsel IV, for Defendant and Respondent.
                                    INTRODUCTION


       Petitioner and appellant Fred Owens (petitioner) appeals from a denial of a
petition for writ of mandate to compel the defendant and respondent California
Department of Corrections and Rehabilitation (the Department) to authorize Owens, a
retired parole agent, to carry a firearm. We affirm the judgment.


                     FACTUAL AND PROCEDURAL BACKGROUND


       We set forth the Factual and Procedural Background from our prior opinion
involving the same parties to a dispute over the same subject matter (B215479).
       “Petitioner commenced employment with the Department (at that time, the
Department of Youth Authority) on August 9, 1976, and was appointed as a Youth
Counselor. On June 25, 1980, petitioner was appointed to a Senior Youth Counselor
position, and on May 18, 1987, he was promoted to the position of a Parole Agent 1.
       “On November 4, 1999, the Department revoked petitioner’s license to carry a
firearm citing Parole Services Manual section 2800 and Youth Authority Manual sections
5700 through 5780. The revocation included both on and off duty firearms. The
revocation also provided that petitioner’s license to carry a firearm may be reinstated
upon future evaluation.
       “On April 13, 2000, petitioner was dismissed as a Parole Agent from the
Department based upon violations of Government Code sections 19572, subdivisions (d)
(inexcusable neglect of duty), (f) (dishonesty), (o) (willful disobedience), (r) (violations
of the prohibitions set forth in accordance with Government Code section 19990), and (t)
(other failure of good behavior). Petitioner appealed his dismissal to the State Personnel
Board and was given a full evidentiary hearing. In its March 16, 2001, decision, the
Board modified the penalty from a dismissal to a demotion from the classification of
Parole Agent 1 to the classification Senior Youth Correctional Counselor.

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       “On or about April 16, 2002, the California State Personnel Board approved a
Stipulation for Settlement (or ‘Stipulation and Release’) between petitioner and the
Department that, inter alia, allowed petitioner to retire from the Parole Agent 1
classification effective May 1, 2001, in exchange for petitioner’s agreement not to work
for, apply to, or accept employment with the ‘Youth and Adult Corrections Agency,
including, but not limited to the Department and the Department of Corrections.’ The
Department also agreed to remove the Notice of Adverse Action, and all supporting
documentation, from petitioner’s personnel file as of May 1, 2001.
       “Thereafter, petitioner filed the original application for a CCW endorsement. The
Department denied that application on June 4, 2002, citing sections 12027[1] (exemption,
inter alia, for honorably retired peace officer from prohibitions on carrying concealed
weapon) and 12031, subdivision (b)(1) (penalties for carrying concealed weapon not
applicable to, inter alia, honorably retired peace officer). The Department also cited from
‘Conditions and Requirements to Carry a Concealed or Loaded Firearm’ (‘endorsement
shall not be authorized for a correctional peace officer returning under other than
honorable conditions . . . .’). The denial letter included instructions to petitioner
regarding his appeal rights, specifically advising that to appeal the denial, he would have
fifteen (15) calendar days to submit an appeal in writing stating an explanation to the
Director as to why the denial was not warranted.
       “On June 14, 2002, petitioner’s attorney wrote a letter to the Director requesting a
reversal of the June 4, 2002, denial. He did not specifically request a hearing. The trial
court viewed the letter as the equivalent of a request for a hearing. In his letter,
petitioner’s attorney argued, among other things, that the Department based its denial on
false information that petitioner was under investigation at the time his retirement was
deemed effective. The Department did not respond to the June 14, 2002, appeal letter,
and petitioner did not have an opportunity to be heard regarding the original application



1      Unless otherwise noted statutory references are to the Penal Code.
                                            3
or the denial of it. Petitioner, however, did not further pursue the appeal from the denial
of his original application or seek writ relief in the trial court.
          “Instead, on November 16, 2004, petitioner again applied to the Department,
incorrectly stating it was an ‘Initial application for endorsement to carry a concealed
firearm.’ He did not explicitly request a hearing. On June 28, 2005, the Department
denied petitioner’s second application. The denial letter cited the ‘good cause’ definition
in the Department of the Youth Authority Administrative Manual section 5828 that reads:
‘The retiree is discovered to have been involved in act(s) of misconduct which occurred
during regular service that may have reasonably resulted in adverse action.’ The denial
letter also stated that if petitioner wanted to appeal the decision, he would need to submit
a written appeal within fifteen (15) calendar days from the date petitioner received the
letter.
          “On July 7, 2005, petitioner’s attorney submitted a letter to the Department
requesting an appeal of the June 28, 2005, denial of the second application. In this
appeal, petitioner sought a description of the specific acts of misconduct alluded to in the
Department’s June 28, 2005, letter. No hearing was specifically requested. Again, the
trial court stated that the letter should be deemed a request for a hearing. On July 21,
2005, the Department denied petitioner’s appeal of the second application. This denial
cited sections 12027 and 12031, specifically stating that an employing agency can deny
or revoke a CCW endorsement for ‘good cause.’ The letter then provided the
Department of Youth Authority Administrative Manual section 5828 definition of ‘good
cause’ as used in the denial letter of June 28, 2005. The Department cited the May 2000
Notice of Adverse Action (dismissal ‘for numerous acts of misconduct’) as the reason for
the ‘good cause’ denial. The Department concluded this letter by stating that if petitioner
had any new information to be considered, he should submit a request for
reconsideration.
          “On August 3, 2005, petitioner personally submitted a letter seeking
reconsideration of the denial of the second application on the grounds that the

                                                4
Department had relied on false information. Petitioner explained that he was not under
investigation at the time he submitted his second application, he voluntarily retired, and
that the Notice of Adverse Action had been withdrawn by the Department. On August
25, 2005, the Department sent a letter to petitioner stating that no new information was
provided relevant to the decision regarding a CCW endorsement, and that ‘good cause’
existed for the denial of the second application.
       “On November 18, 2005, petitioner’s attorney submitted a letter to the Department
requesting that a hearing be conducted pursuant to section 12027.1, subdivision (d)
before a three (3) member panel board. Petitioner also requested that ‘good cause’ be
determined at the time and date of the hearing because determining ‘good cause’ from
time of the Notice of Adverse Action in 2000 would be too remote.
       “On August 10, 2006, the Department sent a letter to petitioner granting the
request for a ‘good cause’ hearing. In this letter, the Department notified petitioner of the
members of the three (3) panel board chosen by the Department, and gave petitioner
information on scheduling the hearing. On September 12, 2006, the Department
scheduled a ‘good cause’ hearing to take place in Glendale, California. But the
Department postponed the hearing pending verification of the issue of when ‘good cause’
should be determined, specifically, whether it should be determined by looking back at
1999 when petitioner’s permit was originally revoked, or at the time petitioner was
served Notice of Adverse Actions in April 13, 2000, or at the time of the ‘good cause’
hearing (September 12, 2006), as petitioner requested. Petitioner did not have an
opportunity to be heard at this hearing prior to its postponement.
       “On March 14, 2007, the California Correctional Peace Officers Association
(CCPOA), on behalf of petitioner, sent a letter to the Department inquiring whether the
issue as to when ‘good cause’ would be determined had been resolved and seeking to
reschedule a hearing. The latter stated, ‘appellant is now, with this letter, submitting a
new request to have his revoked CCW permit of November 4, 1999 be reinstated.’ There
is no record of a response to this letter by the Department.

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       “On February 22, 2008, the CCPOA on behalf of petitioner sent a letter to the
Department requesting a CCW endorsement and a ‘good cause’ hearing. The letter also
stated, ‘please consider appellant’s new request for reinstatement of his CCW.’ On May
28, 2008, the Department responded denying both the request for a CCW endorsement
and the request for a ‘good cause’ hearing. In denying the request for a CCW
endorsement, the letter cited to the Department’s policies codified in the Department
Operational Manual and case law stating that an employee cannot reapply for a CCW
endorsement once it has been denied or revoked. The letter cited to the Department of
Youth Authority Administrative Manual section 5828, and the Notice of Adverse Action
of April 13, 2000, to show the acts of misconduct that supported the finding of ‘good
cause.’ Additionally, the letter denied the request for a ‘good cause’ hearing, stating that
under section 12027.1, defendant had no obligation to provide petitioner with a ‘good
cause’ hearing.
       “While employed with the Department, petitioner was at all times a peace officer
within the meaning of section 830.5, and was deemed to have retired honorably from his
position.
       “On September 17, 2008, petitioner filed his verified petition for writ of
mandamus seeking an order compelling the Department to conduct a hearing before a
three-member panel to review the propriety of the denial of his application for a CCW
endorsement. In addition to being verified under oath, the petition included 16
documentary exhibits. The Department responded by filing an answer and a short
memorandum of points and authorities, but did not submit any declarations, documentary
exhibits, or other evidence in support of its opposition to the petition. The Department in
the answer pleaded two affirmative defenses: laches and untimeliness ‘under any
conceivable statute of limitations.’
       “At the hearing on the petition, the trial court denied the petition for a writ on the
grounds that a retired peace officer may only apply once for a CCW endorsement and
that petitioner’s claim that he was denied his right to a hearing was barred by the doctrine

                                              6
of laches. In its tentative ruling, which it adopted, the trial court stated, ‘Owens clearly is
guilty of laches in failing to seek mandamus to compel the Department to grant him a
three-member hearing board on the denial of his 2002 application.’ The trial court said
that petitioner is not barred by laches as to his 2004 application, but that he could not
reapply for the CCW endorsement. ‘His laches with respect to the first denial is binding;
he cannot reapply and seek a three-member hearing when a new application is denied.’”
Petitioner appealed from the denial of his petition and we reversed.
       On remand, petitioner was accorded “a good cause hearing” before a three-person
panel, including a member selected by petitioner. That panel concluded that there was
good cause to deny petitioner’s application to carry a concealed weapon. (§ 12027, subd.
(a)(1)(A).2)
       Petitioner filed in the trial court a petition for a writ of mandate to set aside the
decision denying his application to carry a concealed weapon. ~(AA 3)~ The trial court
denied the petition. The trial court said that mandamus would not lie from a decision by
the “good cause” panel. It also concluded that the panel’s decision was supported by
substantial evidence. A judgment denying the petition for writ of mandate was entered,
and petitioner appealed.

                                       DISCUSSION

       A.      Standard of Review
       Whether mandamus is an available remedy is an issue of law we review de novo.
(Zubarau v. City of Palmdale (2011) 192 Cal.App.4th 289, 305.) We review the trial
court’s Code of Civil Procedure section 1094.5 administrative mandamus decision under
the substantial evidence test. (JKH Enterprises, Inc. v. Department of Industrial
Relations (2006) 142 Cal.App.4th 1046, 1058.) We review a traditional writ of mandate
brought under Code of Civil Procedure section 1085 under the abuse of discretion test,


2      Now section 26320.
                                               7
unless the case involves the resolution of questions of law, in which event review would
be de novo. (O.W.L. Foundation v. City of Rohnert Park (2008) 168 Cal.App.4th 568,
585-586; but see Corrales v. Bradstreet (2007) 153 Cal.App.4th 33, 47-48.)


       B.     Mandamus Review
       As the Department argued, the trial court concluded that there was no relief by
way of mandamus from a determination by the panel to deny permission to a retired
peace officer to carry a concealed weapon. Section 12027.1, subdivision (b)(1)3 provided
that a retired peace officer may have a certificate authorizing the officer to carry a
concealed weapon revoked or denied by the issuing agency “only upon a showing of
good cause. Good cause shall be determined at a hearing, as specified in subdivision
(d).” Subdivision (d) provides, “Any hearing conducted under this section shall be held
before a three-member hearing board. One member of the board shall be selected by the
agency and one member shall be selected by the retired peace officer or his or her
employee organization. The third member shall be selected jointly by the agency and the
retired peace officer or his or her employee organization. Any decision by the board shall
be binding on the agency and the retired peace officer.”
       The purpose of the legislation providing for the procedures was to remove the
discretion to deny an application for a concealed weapon from the police chief and place
the issue before a three-member board (Assem. Com. on Pub. Safety, Analysis of
Assembly Bill No. 3446 (1987-1988) Reg. Sess.) (April 4, 1988, p. 2).) The proceeding
before the Board was informal, not adjudicatory. There is no requirement for the Board
to hear the evidence. “The statute and the underlying legislative history do not
contemplate a full blown hearing complete with witnesses, formal rules of evidence and
representation by counsel.” (Sommerfield v. Helmick (1997) 57 Cal.App.4th 315, 321.)




3      The statute was reenacted effective January 1, 2012 with no material change as
sections 26305 and 26320.
                                             8
          The administrative mandamus statute applies “[w]here the writ is issued for the
purpose of inquiring into the validity of any final administrative order or decision made
as the result of a proceeding in which by law a hearing is required to be given, evidence
is required to be taken, and discretion in the determination of facts is vested in the
inferior tribunal, corporation, board, or officer.” (Code Civ. Proc., § 1094.5, subd. (a);
see Abbott and Giovinco, Administrative Mandamus, 1 Cal. Civil Writ Practice
(Cont.Ed.Bar 4th ed. 2014) § 3.3, p. 47 (Abbott).) “The decisive question is whether the
agency exercises an adjudicatory function in considering facts presented in an
administrative hearing.” (Temescal Water Co. v. Department of Public Works (1955) 44
Cal.2d 90, 101.) “Administrative mandamus is properly directed to formal adjudicatory
proceedings and not to informal administrative actions.” (Wasco v. Department of
Corrections (1989) 211 Cal.App.3d 996, 1001.) Accordingly, petitioner is not entitled to
seek relief by way of a writ of administrative mandamus.
          Petitioner relies on Sommerfield v. Helmick, supra, 57 Cal.App.4th 315. But in
that case, the court did not deal directly with whether mandamus is available to challenge
a decision by a “good cause” panel. There is no indication of what procedures existed at
the time of that decision or that petitioner did not have a fair hearing.
          Traditional mandamus under Code of Civil Procedure section 1085 is applicable to
review an adjudicatory hearing determination, when, as here, the three statutory
requirements for administrative mandamus are not met. (See, e.g., O.W.L. Foundation v.
City of Rohnert Park , supra,168 Cal.App.4th at p. 586; DeCuir v. County of Los Angeles
(1998) 64 Cal.App.4th 75, 81; Bunnett v. Regents of University of California (1995) 35
Cal.App.4th 843, 848; Abbott, 1 Cal. Civil Writ Practice, supra, at § 3.3, p. 47; § 3.8,
p. 52.)
          Accordingly, traditional writ review is available to petitioner.




                                                 9
       C.     Procedures
       Petitioner complains that the panel did not set forth any findings. But there is no
requirement that it do so.


       D.     Inadequate Record
       The trial court stated that the record and evidence are not sufficiently complete for
purposes of meaningful review. Petitioner has not set forth the evidence submitted to the
panel by him or the Department. The record does not contain any documents as to why
his ability to carry a concealed weapon was revoked. He does not set forth any evidence
not provided the panel that related to any issue of fairness. Thus, petitioner did not
submit a sufficient record in the trial court for purposes of review by way of traditional
mandamus.


       E.     Sufficient Evidence
       Even if we reviewed the available evidence, it is sufficient to support the
judgment. Section 26305, subdivision (b) provides that the denial of a permit to a retired
peace officer to carry a concealed weapon is appropriate if that officer has violated any
departmental rule or state or federal law that “if violated by an officer on active duty,
would result in that officer’s arrest, supervision, or removal from the agency.” Petitioner
received a Notice of Adverse Action dismissing him for violating a section of the
Department of Youth Authority Administrative Manual in effect at the time. Petitioner
and the Department settled the matter with the Department agreeing not to seek to
overturn the reduction of the dismissal to a demotion. Petitioner retired. He had violated
a Department rule that would result in a removal from the agency. A settlement to avoid
the removal does not mean that the provision is not applicable. It is the violation that can
result in the denial of a permit—not the adjudication of a violation. (See Sommerfield v.
Helmick, supra, 57 Cal.App.4th at p. 322.)



                                             10
       Petitioner argues that the literal language of section 26305, subdivision (A), means
that a permit can be denied to a retired peace officer only if he violates a law when
retired. Such a reading means that an officer who commits a violation of law before
retirement could not be denied a permit. This is an interpretation that would lead to
absurd results and thus should not be so interpreted. (See Gilbert v. Chiang (2014) __
Cal.App.4th __ [2014 WL 2919330]; see also Sommerfield v. Helmick, supra, 57
Cal.App.4th 315 [denied based on actions before retirement].)
       Thus, there was sufficient evidence supporting the good cause determination to
deny petitioner a concealed weapons permit and supporting the judgment under the
applicable standards of review.


                                     DISPOSITION
       The judgment is affirmed. Defendant is awarded its costs.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                 MOSK, J.

We concur:


              TURNER, P. J.



              KRIEGLER, J.




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